Appreciate very much, your continuing to bring detailed legal concerns to our
attention.
In delving into the USDA accredited certifying agent issue regarding
allocation of authority and responsibility, we, the organic community are
finally getting at the role of authority in assuring the customer they are
getting what they are paying for.
A quick review of OFPA indicates no specific reference to an accredited
organic "certifying agent" as being an agent of the USDA/NOP. The term
"certifying agent" has been in use for decades before passage of OFPA.
Perhaps, thinking and proposing that a "certifying agent" was an agent of the
government is presumptive. Perhaps, a contractual relationship with explicit
job description, authority and responsibility needs to be the language and
intent of the second proposed organic rule. The enabling legislation does
provide for accreditation as the single vehicle for being able to certify
"organically produced" in the US. And OFPA does provide for a USDA/NOP
determination that imported "organically produced" products "have been
produced and handled under an organic certification program that provides
safeguards and guidelines governing the production and handling of such
products that are at least equivalent to the requirements of this OFPA."
USDA/NOP is directed to determine that both the standards of farming and
handling and the methodology of certification is equivalent to those required
in the US.
The explicit purpose of OFPA is to provide a national consistency and
uniformity in certification of farms and handling operations as well as
labeling and selling of "organically produced" products marketed in the US.
There is no reason the organic community could not through a consensus process
recognize such a national organic standard, and simultaneously provide for
private or State accredited "certifying agents" to certify to other explicit
practices, processes or systems utilized in farming and handling. A
contractual relationship should be formulated and written into a second
proposed organic rule.
Best regards,
Eric Kindberg, certified organic farmer
"Dear Eric,
In reference to your correspondence with Grace et al about the construction of
OFPA and the scope of authority of USDA in regulating certifiers and the
authority
of certifiers to make representations peripheral to the precise act of
certifying
as organic, I note my prior emails to you about the inherent problem of
"agency".
"Agency" is a branch of law, akin to contract, but having a distinct
vocabulary
and history. In any agency relationship, there is always a question as to the
scope of authority. Certain presumptions can arise based on the power of the
parties, their inherent power and their specifically delegated power. When
dealing with government, a whole set of presumptions follow. A federal agency
may
be presumed to have certain powers and those dealing with government in the
private sector are presumed to not have certain rights. One could not make
such a
list, but my experience tells me that NO ONE wants to be an agent of the
federal
government or of one of its instrumentalities. The agency creation is, in my
opinion, a nightmarish place for private and state certifiers to be in. They
will
not know what powers they have. They may only have those powers specifically
delegated to them, and all other powers may be reserved to the federal agency.
There are endless vague formulations of agency powers and duties, but
generally I
can say that the US Gov't always wins and the private parties dealing with it
always loose. The debate about construction which you shared on your email
points
out the kinds of endless problems that are going to arise.
Solution: rewrite the Act and the Regs to make sure the certifying orgs are
not
agents. They can be recognized as authorized to certify as organic....without
having to be "agents". The relationship can be contractual, and not one of
agency. The distinction is, I believe, imprint. When the cerifying
organization
acts, it does so not as an agent of the gov't, but as a recognized certifier
authorized to place its own seal or mark. Certifiers should not have to use
the
USDA seal, its use might be discretionary with them. Certifiers then can
argue
that they retain what powers they always had to act, to withdraw certification
and
to administer as they always have. If they are agents, they may loose all
independence. They may, in fact, become functionaries.
Best,
Stephen Kaye
Lithgow Cottage Farm
Millbrook, NY"
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