The Honorable Dan Glickman
Secretary of Agriculture
U.S. Department of Agriculture
14th St. & Independence Ave., SW
Washington, D.C. 20250

Dear Mr. Secretary:

The National Organic Standards Board (Board) congratulates you and your staff on the publication of the Proposed National Organic Program. As you know, these Proposed Rules have been eagerly awaited by the organic farming, environmental, and consumer communities who worked together on passage of the 1990 farm bill. The outpouring of public comment highlights the great interest in national organic standards as well as the enormous work that remains before Final Rules are published. The Board stands ready to assist the Department in constructing a viable National Organic Program.

The Board would like to take this opportunity to develop a more active and cooperative relationship with you and with the National Organic Program as this process moves forward. We would like to explore with you a framework for a memorandum of understanding that details and describes our working relationship. It is essential that we find a mutually acceptable means for the Board to provide continuing input into the Department's decision-making.

We must point out, however, that the Board fundamentally disagrees with the Department's attempt to usurp the authority of the Board to approve and place synthetic materials on the National List. This is a major issue that divides us in our effort to form a working partnership. Prior to the publication of the proposed rule at several public meetings the staff of the National Organic Program assured the Board that the Department would not place any synthetic materials on the National List unless such materials had Board approval.

While Congress gave the Department limited authority to depart from the principle that certified organic products be free of synthetic substances, it carefully circumscribed that authority by dividing it between the Department and the Board. By disregarding the Board's role in this process, the Department upsets this careful balance struck by Congress and, in so doing, threatens to irreparably harm the organics market by undermining consumer confidence in organic products. Your recognition of the Board's authority over the placement of synthetic materials on the National List is essential to restoring the trust of the Board and the public in the National Organic Program.

The Board submits these comments on the Department's addition of non-Board approved synthetic substances to the National List in view of Congress' direction that the Board define the universe of synthetic substances that may appear on the National List. Although the Board has other concerns regarding the Proposed Rules, it writes separately here to present its views on this important issue.

We look forward to discussing the Board's role and other substantive concerns with you in the coming weeks. We recognize that developing Final Rules will entail great effort and while we are anxious to finalize the program, we urge you to take the time necessary to get the job done right. Thank you for convening our meeting in Ontario and for your support of our ongoing efforts. We appreciate the support and cooperation of your staff and welcome your selection of Keith Jones as program director.

The concern that the lack of consistent standards for organic foods was undermining consumer confidence, and thereby the growth of the organics market, prompted Congress to enact the Organic Foods Production Act (OFPA or Act), 7 U.S.C. §§ 6501-6522 (1994). In the OFPA, Congress sought to correct this problem by creating a nationwide certification program for organic products built on the fundamental principle that certified organic products should be free of synthetic substances.

While Congress gave the Department the authority to deviate from this principle, it carefully circumscribed the Department’s use of that authority in view of the purposes OFPA was meant to serve. Accordingly, while Congress directed the Department to promulgate a National List of synthetic substances that may be used in a certified organic system, it prohibited the Department from placing any such substance on that List unless the National Organic Standards Board (Board) has first approved and proposed the substance for inclusion on the List. 7 U.S.C. § 6517(d). In violation of this statutory prohibition, the Department has proposed a rule which places non-Board approved synthetic substances on the National List.

Although the Department has not offered a justification for this action, it has been suggested that the Department assumed the authority to add non-Board approved substances to the National List because it judged Congress’ delegation of authority to the Board to be unconstitutional. More particularly, the Department apparently holds the view that Congress’ delegation to the Board violates separation of powers principles. Since it is a central prerogative of the judicial branch to judge the constitutionality of an act of Congress, however, the Department’s reliance on this rationale offends the very separation of powers principles about which it purports to be concerned. That aside, a court would have to look no further than federal agricultural law to find that even broader delegations of authority have withstood constitutional challenge. And, finally, even if the delegation were found to be constitutionally suspect, the likely result would be that the delegation of authority to add synthetic substances to the National List would be struck from the statute altogether. Contrary to the Department’s assumption, total power to add synthetic substances to the National List would not vest in the Secretary by default.

Given that the statutory delegation of authority to the Board is beyond constitutional reproach, it has been suggested that the Department finds the authority to disregard the Board’s role in a subtle change in grammar within the statutory language. In interpreting statutory language, a court is bound to give effect to the plain meaning of Congress and, accordingly, agencies rarely win statutory construction cases on the basis of hyper-technical arguments. Courts are particularly disinclined to accept such arguments where, as here, the Department’s interpretation would expand its own authority on an issue that is the subject of a statutory prohibition. Furthermore, and irrespective of this context, the Department’s interpretation would fail for the independent reasons that it violates two independent cannons of statutory construction.

While the Department apparently maintains that the phrase ‘proposed national list’ has two different meanings, it is well established that identical words used in the same act are to be given the same meaning. Second, it is equally well established that statutes are to be interpreted in a manner which gives them meaning, and which does not render them superfluous. The Department’s apparent construction of the statutory language to merely require that any substance on the final National List first be advanced in the proposed rule fails under this cannon of construction because a different subsection within the same statutory section already contains that requirement. The Department’s related arguments supporting its assumption of Board authority actually demonstrate that the Board possesses the sole authority to define the universe of synthetic substances which may be placed on the National List.

I. The Organic Foods Production Act Prohibits the Department from Placing Non-Board Approved Synthetic Substances on the National List

Congress gave effect to OFPA’s purpose of "facilitiat[ing] interstate commerce in fresh and processed food that is organically produced," 7 U.S.C. § 6501(3), in part, by requiring that certified organic products be free of synthetic substances. E.g., 7 U.S.C. §§ 6504(1), 6508, 6509(d)(1), 6510, 6517(c)(1). While Congress provided the Secretary with limited discretion to permit exceptions to this guiding principle through the creation of a National List of synthetic substances permitted for use, it carefully circumscribed the exemption-setting process with both substantive and procedural limitations. In so doing, Congress recognized that maintaining the integrity of this exemption-setting process would be critical to protecting the consumer confidence upon which the organics market depends:

Most consumers believe that absolutely no synthetic substances are used in organic production. For the most part they are correct and this is the basic tenet of this legislation. But there are a few limited exceptions to the no-synthetic rule and the National List is designed to handle these exceptions . . . . The Committee does not intend to allow the use of many synthetic substances. This legislation has been carefully written to prevent widespread exceptions or ‘loopholes’ in the organic standards which would circumvent the intent of this legislation.

S. Rep. No. 101-357, at 300 (emphasis added).

Accordingly, Congress limited the Secretary’s discretion to permit the use of synthetic substances in two ways. First, Congress provided that only those synthetic substances falling within certain categories, and which would not otherwise be harmful to human health or the environment, may be used in a certified organic system. 7 U.S.C. § 6517(c)(1). Second, Congress provided that synthetic substances may only be used in a certified organic system if approved in accord with the procedures established in the Act. 7 U.S.C. § 6517(c)(1)(C). Those procedures provide that the Board first develop a list of synthetic substances meeting the substantive criteria, and propose those substances for inclusion on the National List of synthetic substances approved for use in a certified organic system:

(k) Responsibilities of Board . . .

(2) National List

The Board shall develop the proposed National List or proposed amendments to the National List for submission to the Secretary in accordance with section 6517 of this title.

7 U.S.C. § 6518.

The Secretary is then required to establish the National List based upon the Board’s proposed list. 7 U.S.C. § 6517(d)(1). While the Secretary is not required to place a Board-approved synthetic substance on the National List, the statute explicitly prohibits the Secretary from placing a synthetic substance on the National List unless it is approved and proposed by the Board. 7 U.S.C. § 6517(d)(2). The language of this statutory provision is clear:

(d) Procedure for establishing National List

(1) In general The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No additions The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List.

7 U.S.C. § 6517(d).

Given the clarity of this language, it is unexceptional to find it well-supported by its legislative history:

Several steps must be taken before an item appears on the National List . . . . first, the Organic Standards Board must review the substances in question based upon criteria cited in the bill and with the aid of the Board’s technical panels. The Board may decide what substances require review . . . . The Board then constructs a proposed National List which is submitted to the Secretary as a recommendation for the composition of the final National List.

The Secretary may not include exemptions for synthetic substances other than those exemptions recommended by the National Organic Standards Board.

S. Rep. No. 101-357, at 299 (emphasis added); H.R. Conf. Rep. No. 101-916, at 1179 ("The Secretary may not include exemptions for synthetic substances other than those exemptions recommended by the National Organic Standards Board.").

Ignoring this statutory prohibition, the Department has proposed a National List which includes synthetic substances not Board-approved and proposed. National Organic Program, 62 Fed. Reg. 65,850, 65,944 (December 16, 1997) (proposed rule) (e.g., proposed § 205.22(c)(9) ["Piperonyl butoxide may be used as a synergist"]; proposed § 205.22(d) ["Toxins, derived from genetically engineered bacteria (or other microorganisms) that are not released live into the agroecosystem, may be used as pesticides"]).

II. Congress’ Delegation of Authority to the Board Comports with the Constitution

It has been suggested that the Department has assumed the authority to add non-Board approved substances to the National List because it has judged Congress’ delegation of authority to the Board to violate the Constitution. That is, the Department apparently holds the view that Congress’ delegation to the Board violates separation of powers principles and, more particularly, the non-delegation doctrine. By purporting to judge the constitutionality of an act of Congress, however, the Department -- an executive branch agency -- has itself offended separation of powers principles by usurping the power of the judicial branch. That aside, this question would be easily resolved upon proper presentation to the judicial branch, for a court would have to look no further than federal agricultural law to find that broader delegations of authority have withstood similar constitutional challenges. Finally, even if the delegation were found to be constitutionally suspect, the likely result would be that the delegation of authority to add synthetic substances to the National List would be struck from the statute. Contrary to the Department’s assumption, total power to add synthetic substances to the National List would not vest in the Secretary by default.

a. The Department May Not Reject Congress’ Plain Intent Based Upon Its Own Judgment Concerning the Constitutional Propriety of Congress’ Delegation

The separation of powers doctrine reflects the "basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another." Loving v. United States, __ U.S. __, __, 116 S.Ct. 1737, 1743 (1996). Accordingly, it is the legislative branch that must make the law, the executive branch that must execute it, and the judicial branch that must interpret it. See INS v. Chada, 462 U.S. 919, 951 (1983). Dividing and separating these powers is designed to "diffus[e] power the better to secure liberty," Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring), based upon the premise that "if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will." United States v. Brown, 381 U.S. 437, 443 (1965).

Within this framework, the Constitution provides that "[t]he judicial Power . . . extends to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." U.S. Const. art. III, § 2. Accordingly, it is beyond question that "[i]t is emphatically the province and duty of the judicial department to say what law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). In Marbury, the Supreme Court elaborated that judging the constitutionality of acts of Congress is central to the judicial function:

So if a law be in opposition to the Constitution: if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.

Id. at 178 (emphasis added).

Where an executive branch agency is faced with the clearly expressed will of Congress, separation of powers principles dictate that the agency faithfully execute that will. By judging Congress’ delegation to the Board to be unconstitutional, the Department has assumed a fundamental judicial function, and thereby has offended the very separation of powers principles about which it purports to be concerned. Whether Congress’ delegation to the Board is constitutional is a question that is reserved to the judicial branch.

b. Upon Proper Presentation to the Judicial Branch for Resolution, Congress’ Delegation to the Board Would Withstand Constitutional Challenge

The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. I, § 1. The non-delegation doctrine gives effect to separation of powers principles by operating to limit the scope of Congress’ delegations of this legislative power. Mistretta v. United States, 488 U.S. 361, 372 (1989). According to that doctrine, Congress must provide an "intelligible principle" to guide its delegate to ensure that the delegation will not offend the Constitution. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928); Milk Industry Found. v. Glickman, 1998 WL 15286, * 3 (D.C. Cir. 1998) (citing Mistretta, 488 U.S. at 372 (1989)).^1/ While the Department presumably does not maintain that Congress has failed to provide the Board with an "intelligible principle" to carry out its duties,^2/ the Department apparently holds the view that the non-delegation doctrine prohibits Congress from instructing it to create a delegate which is empowered with authority not also possessed by the Secretary. Such delegations of authority, however, are a familiar creature in federal agricultural law, as well as other areas of the law, and have consistently been sustained in the face of constitutional challenges.

The black letter law on this issue, in fact, was developed in the context of federal agricultural law, and resulted in Supreme Court rulings consistently upholding the constitutionality of delegations which actually subordinated the power of the Secretary to the interests of private entities not appointed by him. In Wickard v. Filburn, 317 U.S. 111 (1942), for example, the Supreme Court upheld a referendum requirement of the Agricultural Adjustment Act which provided that an order of the Secretary could be vetoed by a vote of regulated individuals. Id. at 117-18. Similar provisions of the tobacco and milk programs have also been upheld by the Court. Currin v. Wallace, 306 U.S. 1, 15 (1939) (tobacco); United States v. Rock Royal Coop, 307 U.S. 533, 577-78 (1939) (milk). More recently, referendum provisions of the Beef Promotion and Research Act giving regulated individuals veto authority over the Secretary’s orders have also withstood constitutional delegation challenges. U.S. v. Frame, 885 F.2d 1119, 1127 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990); Goetz v. Glickman, 920 F. Supp. 1173, 1177 (D. Kan. 1996).

Given that these delegations are common in federal agriculture policy, e.g., 7 U.S.C. §§ 2102-18 (cotton); 7 U.S.C. §§ 2611-27 (potatoes); 7 U.S.C. §§ 2701-18 (eggs); 7 U.S.C. §§ 4501-38 (dairy); 7 U.S.C. §§ 4601-12 (honey); 7 U.S.C. §§ 4801-19 (pork), 7 U.S.C. §§ 4901-16 (watermelon); 7 U.S.C. §§ 1787 (wool); 7 U.S.C. §§ 3401-17 (wheat), the present confusion concerning the constitutionality of Congress’ delegation to the Board is inexplicable. Further, although it presumably would be quite difficult to argue on a delegation occurring within the agricultural field, the existence of these delegations cannot be disregarded as some antiquated curiosity particular to one discrete niche of the law. Similar delegations are common, and in some cases even more expansive, in other areas of the law.

In the area of monetary policy, for example, Congress has created the Federal Open Market Committee (FOMC), 12 U.S.C. § 263(a) (1994) (Committee composition), and given it substantial power to set such policy. E.g., 12 U.S.C. § 263(b) (Committee power to regulate Federal Reserve banks). Although the FOMC exercises this power within only a very general framework provided by Congress, and its actions are largely beyond judicial review, it has survived constitutional challenge. See Melcher v. FOMC, 644 F. Supp. 510 (D.D.C. 1986) (delegation to FOMC constitutional), aff’d on other grounds, 836 F.2d 561 (D.C. Cir. 1987) (limiting standing to review FOMC actions), cert. denied, 486 U.S. 1042 (1988).

Similar delegations have also been upheld in the area of health care policy. In Corum v. Beth Israel Med. Ctr., 373 F. Supp. 550 (S.D.N.Y. 1974), for example, the plaintiff challenged provisions of the Hill-Burton Act, 42 U.S.C. § 291c (1994). That Act provides that regulations of the Secretary of the Department of Health and Human Services may not take effect unless first approved by the Federal Hospital Council (Council), a private body with authority to affect the substance of such regulation. Corum, 373 F. Supp. at 552. Analogizing to the Supreme Court’s agriculture referendum cases, the court upheld the Council’s authority in the face of a delegation challenge because the Council did not have the ultimate authority to force the adoption of regulations:

The Council does not itself make the regulations. Only the Secretary has that power, a power which is conditioned on the approval of the Council in the same way as the Secretary of Agriculture’s power in Currin was conditioned on the vote of a majority of tobacco growers.

Id. at 553. See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940) (where actual law-making is not entrusted to private entities, scheme is "unquestionably valid").

Likewise, delegations of substantial authority have been upheld in the area of national defense policy. In the Base Closure Act, for example, Congress required the Secretary of Defense to close military bases recommended for closure by a private commission created by the Secretary. In National Fed’n of Fed. Employees v. United States, 905 F.2d 401, 404 (D.C. Cir. 1990), the D.C. Circuit found no delegation problem presented by the requirement that the Secretary approve the action of a private commission. Id. at 403-04.

While each of these delegation schemes is somewhat distinct, they share one common feature relevant here: all effect a delegation of substantially more power than Congress has delegated to the Board. Here, the Secretary appoints the Board, and therefore is not required, as he is in a referendum regime, to share authority with wholly private entities. Further, unlike in the referendum and health care regimes, the Board does not possess a veto which enables it to stop an order of the Secretary from taking effect. Nor, as in the base closure regime, is the Secretary required to give effect to the recommendations of the Board; he is not required to place Board-approved substances on the National List. Finally, unlike in the monetary regime, the Board is not itself given broad powers to both dictate and effect national policy. In view of these more extensive delegation regimes, Congress’ grant of authority to the Board occupies a comfortable, and clearly constitutional, position in the law.

c. A Successful Constitutional Challenge to the Board’s Authority Would Divest the Department of Its Power to Place Synthetic Substances on the National List

Even in the highly unlikely event that Congress’ grant of authority to the Board were found to be unconstitutional, the Department errs in its assumption that a court would then excise the Board’s authority to define the universe of permissible synthetic substances from the statute, and vest in the Department the compete authority to define that universe. In fact, the Supreme Court has cautioned against engaging in this type of "creative and imaginative statutory surgery," Bowsher, 478 U.S. at 736, where, as here, it would undo Congress’ clearly expressed statutory prohibition, and would subvert a statutory scheme predicated upon a sharing of powers.

The Supreme Court in Bowsher framed the relevant inquiry concerning the effect a court should give to a statute after finding a provision of the statute unconstitutional on separation of powers grounds. In that case, the Court indicated that the choice among the options available -- narrowly striking the provision, striking the overall power that was the subject of the provision, or striking the statute as a whole -- will depend on Congress’ intent on the issue. See id. at 734-35. The Court further instructed that if the effect of striking the provision is to remove a check on the discretion of another body to exercise power under the statute, a court should strike either the overall power at issue, or strike the statute as a whole. See id.

In Bowsher, the Supreme Court considered Congress’ delegation to the Comptroller General in the Gramm-Rudman Act to specify those deficit reductions required to be effected by the President. Since the Comptroller General was given executive powers, and based upon the fact that Congress controlled the Comptroller through its power to remove him, the Court held that Congress had effectively retained for itself executive branch power in violation of the Constitution.^3/ Having found the Comptroller’s role unconstitutional, the Court then dealt with the question of remedy: what effect would its ruling have on the deficit reduction scheme of the statute?

On that question, the petitioners urged the Court not to invalidate the Comptroller’s role in the deficit reduction process, but rather asked it to excise the provision of law entitling Congress to remove the Comptroller from his position. Noting that this would effectively make the Comptroller an executive branch officer, the Court refused petitioners request on the ground that "striking the removal provisions would lead to a statute that Congress would probably have refused to adopt," id. at 735, because:

‘[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself . . . .’

Id. at 735 (quoting Synar v. United States, 626 F. Supp. 1374, 1394 (D.D.C. 1986)).

Here, as in Bowsher, simply striking the power given to the Board and vesting in the Department the total authority to place synthetic substances on the National List "would lead to a statute that Congress would probably have refused to adopt." Bowsher, 478 U.S. at 735. As was true of Congress’ grant of power to the Comptroller in Bowsher, the grant of authority to the Board was designed to act as a check on the discretion of the Department to create exemptions from OFPA. Although that intent was only implicit in the Graham-Rudman Act scheme, it is explicit in OFPA: Congress has prohibited the Department from exercising unchecked control over the National List. See S. Rep. No. 101-357, at 300 ("The Committee does not intend to allow the use of many synthetic substances. This legislation has been carefully written to prevent widespread exceptions or ‘loopholes’ in the organic standards which would circumvent the intent of the legislation."); 7 U.S.C. § 6517(d)(2) (prohibiting Secretary from adding substances to the National List not first Board-approved); H.R. Conf. Rep. No. 101-916, at 1179 ("The Secretary may not include exemptions for synthetic substances other than those exemptions recommended by the National Organic Standards Board.").

In view of the clearly expressed intent of Congress that the Department should not possess total control to place synthetic substances on the National List, the outcome of a successful constitutional challenge to the Board’s authority would not be to give the Department total authority to place synthetic substances on the National List. Rather, under the reasoning of Bowsher, the statutory authority to create exemptions for synthetic substances, or the statute itself, would be invalidated.

III. The Department’s Interpretation Defies the Plain Language of OFPA, Would Trigger Heightened Judicial Scrutiny, and Would Fail Under Multiple Cannons of Statutory Construction

Given the impropriety of the Department’s foray into constitutional adjudication, and the substantial likelihood that the delegation would be upheld if ever properly presented to a court, the Department searches mightily for an ambiguity in the statutory provision vesting the Board with the sole authority to determine the universe of synthetic substances which may appear on the National List. The Department locates this purported ambiguity mainly in a change in capitalization in the phrase ‘proposed national list’ in section 6517(d). According to the Department’s view, the phrase "proposed national list" referred to in subsection (d)(1), is not the same list as the "Proposed National List" referred to in subsection (d)(2) from which the Secretary must draw synthetic substances for inclusion on the National List. Accordingly, in the Department’s view, the two lists are actually different, and therefore the Secretary’s discretion to add synthetic substances to the National List is not limited to those substances approved by the Board.^4/

In conducting a review of this argument, a court would begin with the plain language of the statute. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992). Where the statutory provision is clear, a court must give effect to the will of Congress, and would accord no deference to the Department’s interpretation of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9 (1984). The plain meaning of particular statutory language is ascertained by reference to that language, and the overall statutory context as informed by the policy the statute was designed to serve. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993); Crandon v. United States, 494 U.S. 152, 158 (1990) (court should "look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy"); Albertson’s, Inc. v. Commissioner of Internal Revenue, 42 F.3d 537, 545 (9th Cir. 1994) ("We may not adopt a plain language interpretation of a statutory provision that directly undercuts the clear purpose of the statute"). A court will also look to the legislative history to confirm its plain-meaning analysis.^5/ E.g., Reves v. Ernst & Young, 507 U.S. 170 (1993); Negonsott v. Samuels, 507 U.S. 99 (1993).

In determining whether Congress has clearly spoken, courts are particularly wary of agency attempts to introduce ambiguity into a clear statutory provision in order to win deference for an interpretation which takes an expansive view of the agency’s own authority. See Fertilzer Inst. v. EPA, 935 F.2d 1303, 1310 (D.C. Cir. 1991). This is particularly true where the statutory provision takes the form of a prohibition on the asserted authority. See Independent Insur. Agents of America, Inc. v. Board of Governors of the Federal Reserve Sys., 838 F.2d 627, 631 (D.C. Cir. 1988). Here, the Department’s construction would significantly expand its authority, and would do so in the face of a clear statutory prohibition on that asserted authority. Accordingly, a court would cast a highly critical eye upon the Department’s capitalization and other related arguments in support of its authority to add non-Board approved synthetic substances to the National List.

While the Department’s hyper-technical parsing of the statutory language would likely fail in view of the standard by which it would be judged, the Department’s interpretation would fail irrespective of this context because it violates multiple cannons of statutory construction. In particular, the Department’s argument that the term ‘proposed national list’ used within section 6517(d) has two different meanings violates the cannon of construction that identical words used in the same act are given the same meaning. Commissioner of Internal Revenue v. Keystone Consol. Indus., 508 U.S. 152, 159 (1993). Further, the logical consequence of the construction ascribed by the Department to subsection 6517(d)(2) -- that Congress merely meant to provide that any substance on the final National List first be advanced in the proposed rule -- violates the cannon of construction that statutes be interpreted in a manner which gives them meaning, and which does not render them superfluous. Bailey v. United States, 516 U.S. 137, 145-47 (1995); Sutton v. United States, 819 F.2d 1289, 1294 (5th Cir. 1987). The Department’s construction would violate this rule because subsection 6517(d)(4) already contains the requirement the Department ascribes to subsection 6517(d)(2).

a. Department’s Interpretation Would Trigger Heightened Judicial Scrutiny Because It Expands Secretary’s Authority in the Face of a Clear Statutory Prohibition

Courts are properly skeptical of agency arguments that a statutory provision is ambiguous, and that judicial deference to an agency interpretation of that provision is therefore proper, where such deference would sanction an interpretation that expands the agency’s own authority. This is particularly true where the agency interpretation expands its authority to create exemptions to the statutory scheme, or concerns an issue that is the subject of a statutory prohibition. The Department’s assumption of authority to place non-Board approved substances on the National List touches upon each of these concerns: it increases the Department’s authority, it entitles the Department to create exemptions to a statutory scheme, and it does so in derogation of a statutory prohibition.

Courts have consistently refused to accord agencies authority to expand their regulatory reach through creative readings of statutory language far less clear than the language at issue here. In American Petroleum Inst. v. EPA, 52 F.3d 1113 (D.C. Cir. 1995), for example, the D.C. Circuit struck an EPA rule requiring the use of renewable oxygenates to meet Clean Air Act reformulated gasoline (RFG) standards. While the statute was silent on the method by which EPA would meet RFG standards, the court rejected EPA’s argument that it had the authority to issue the renewable requirement because the statute did not explicitly preclude it. In so doing, the court cautioned that to suggest that an agency interpretation should be accorded deference "any time a statute does not expressly negate the existence of a claimed administrative power . . . is both flatly unfaithful to the principles of administrative law . . ., and refuted by precedent. Id. at 1120 (quoting Railway Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 665, 671 (D.C. Cir. 1994) (in banc), cert. denied, 514 U.S. 1032 (1995)). Even in the absence of a direct prohibition on the subject, the court rejected the EPA requirement, finding it to be generally contrary to other statutory provisions. See also Fertilizer Institute, 935 F.2d. at 1310 (striking agency authority to regulate not only releases of hazardous substances, but also threatened releases where statute spoke only in terms of "releases").

By contrast with these cases striking the claimed authority, here Congress has explicitly negated the existence of the very administrative power the Department has assumed.

Statutory construction cases reviewing agency assumptions of authority to create exemptions from law trigger similarly careful review. In MCI Telecommunications Corp. v. American Tel. and Tel. Co., 512 U.S. 218 (1994), for example, the Supreme Court strictly construed the FCC’s authority to create exemptions to statutory requirements. In that case, the FCC sought to exempt certain telephone carriers from the Communications Act requirement that carriers file tariffs with the agency. Although the Act provided the agency with the authority to modify the statutory filing requirement, the Supreme Court found that this authority could not be construed to give the agency the authority to exempt some carriers from the filing requirement altogether. Id. at 233. In so doing, the Court rejected the FCC’s argument that the statute’s broad goals could be invoked to support its expansive view of its own regulatory authority. Id. See also Natural Resources Defense Council v. Reilly, 976 F.2d 36, 40 (D.C. Cir. 1992) (limited authority to suspend emissions standards for one class of regulated entities does not empower EPA to suspend standards for another class).

Here, not only does the Department seek to create exemptions to the statute, but it can not even argue that it derives the claimed authority to do so from the broad purposes of the OFPA. Effecting the purpose of the OFPA -- facilitating the organics market -- is predicated upon maintaining consumer confidence in that market by limiting the use of synthetic substances.

Finally, courts are particularly disinclined to allow an agency’s hyper-technical reading of the statute to defeat the intent of Congress where that intent is expressed in prohibitive terms. In Independent Insur. Agents of America, 838 F.2d 627, for example, Congress prohibited the Board of Governors from allowing any bank holding company to acquire a bank offering insurance services. The Board then attempted to approve two such acquisitions which would have this effect, arguing that it had actually approved the acquisitions before the statutory prohibition took effect. While the statute did not speak to timing, the court rejected the Board’s argument, finding:

Though the classification of congressional intent as clear or ambiguous will sometimes be in the eye of the beholder, courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency in behalf of its proffered construction to thwart congressional intent expressed with reasonable clarity, under the guise of deferring to agency expertise on matters of minimal ambiguity.

Id. at 631 (emphasis added). The clear prohibitive intent of Congress, according to the court, may not be circumvented by an "artificially restricted interpretation." Id. at 634. Cf. Northern States Power Co. v. United States Dep’t of Energy, 128 F.3d 754 (D.C. Cir. 1997) (agency may not read qualifications into a statutory deadline); Indiana Michigan Power Co. v. United States Dep’t of Energy, 88 F.3d 1272 (D.C. Cir. 1996) (same).

Here, the Department’s interpretation would expand its own authority to create exemptions to the statute in derogation of a clear statutory limitation. Accordingly, the foregoing case law instructs that a court would view the Department’s rationale supporting the argument that Congress has not plainly prohibited it from exercising the claimed authority with great skepticism.

b. The Department’s Interpretation Violates the Cannon of Construction that Identical Words Used in the Same Act are Presumed to Have the Same Meaning

Even if a court were not obliged to cast a highly critical eye upon the Department’s interpretation of section 6517(d) given the context in which it is made, the Department’s argument that the phrase ‘proposed national list’ has more than one meaning would fail as a simple matter of statutory construction. "It is a ‘normal rule of statutory construction,’ Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986), that ‘identical words used in different parts of the same act are intended to have the same meaning.’" Comm’r of Internal Revenue, 508 U.S. at 159 (quoting Atl. Cleaners & Dryers, Inc. v. United States, 286 U.S. 427, 433 (1932)).

Despite this rule, the Department maintains that a change in capitalization supports its assumption of authority to add non-Board approved synthetic substances to the National List. That is, according to the Department’s apparent view, the change in capitalization in the phrase ‘proposed national list’ from subsection (d)(1) and (d)(2) indicates that the "proposed national list" referred to in subsection (d)(1), is not the same list as the "Proposed National List" referred to in subsection (d)(2). Accordingly, the Department maintains that the two lists are actually different, and therefore the Secretary’s discretion to add synthetic substances to the National List is not limited to those which are Board-approved.

The Department’s argument, however, would yield bizarre results. In particular, if the Department is correct that changes in capitalization may turn the same phrase into a different phrase, then Congress actually created not one, not two, but three distinct proposed national lists in OFPA. First, under the Department’s capitalization rule, Congress has purportedly created one distinct "proposed national list" in section 6517(d)(1). Next, in section 6517(d)(2) Congress has purportedly created a second "Proposed National List." And, finally, under the Department’s capitalization rule, by section 6518(k)(2), Congress purportedly meant to create still another "proposed National List."^6/

While the rule that identical words are to be ascribed the same meaning may be overcome if "the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent," Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934), there is no support for the Department’s capitalization argument and the necessary implication of that argument -- that Congress created three separate ‘proposed national lists.’ The phrase ‘proposed national list’ is used throughout the OFPA, and its legislative history, to connote one National List.^7/ See Sorenson, 475 U.S. at 859 (ascribing same meaning to term "overpayment" in two separate subsections of same statutory section). Rather than accepting a construction which effectively presumes that Congress intended the statutory equivalent of schizophrenia, a court would apply the above-referenced cannon of statutory construction to give the phrase ‘proposed national list’ the same meaning throughout OFPA.

c. The Department’s Interpretation Would Violate the Cannon of Construction that Statutes Be Given Such Effect that No Provision is Rendered Superfluous, Void, Contradictory or Insignificant

It is also a well established cannon of statutory construction that "whenever possible [,] statutes are to be given such effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant." Rockbridge v. Lincoln, 449 F.2d 567, 571 (9th Cir. 1971) (citing Richards v. United States, 369 U.S. 1, 11 (1962)); see also Bailey, 516 U.S. at 145-147. This cannon of construction reflects the common-sense assumption that "Congress intended its enactment to have meaningful effect and [a court] must, accordingly, construe it so as to give it such effect." Sutton, 819 F.2d at 1295.

Under the Department’s interpretation, all Congress intended by subsection 6517 (d)(2) is that the Secretary first place a synthetic substance on the National List contained in the proposed rule before promulgating a final rule that places that substance on the National List. That interpretation, however, would render subsection (d)(2) superfluous of subsection (d)(4) because subsection (d)(4) already requires the Secretary to publish the proposed list in the Department’s notice of proposed rulemaking:

(4) Notice and comment

Before establishing the National List or before making any amendments to the National List, the Secretary shall publish the Proposed National List or any Proposed Amendments to the National List in the Federal Register and seek public comment on such proposals. The Secretary shall include in such Notice any changes to such proposed list or amendments recommended by the Secretary.

7 U.S.C. § 6517(d)(4) (emphasis added). That is, if the Department is correct that all subsection 6517(d)(2) requires is that any substance on the final National List first be advanced in the proposed rule, that subsection would be superfluous of subsection 6517(d)(4). Accordingly, the Department’s capitalization argument would also fail under the above-referenced, and independent, cannon of statutory construction.

d. The Department’s Construction of Related OFPA Provisions to Support Its Assumption of Board Authority Fails Upon a Contextual Analysis

The Department also apparently attempts to enlist the aid of related statutory provisions to support its assumption of authority to add non-Board approved substances to the National List. Contrary to the Department’s view, however, the relevant provision supports the Board’s authority to define the universe of synthetic substances which may be placed on the National List.

The Department looks to the last sentence of subsection 6517(d)(4)^8/ -- "The Secretary shall include in such Notice any changes to such proposed list or amendments recommended by the Secretary" -- to support its view that it has the authority to add non-Board approved synthetic substances to the National List. If the Department’s authority were actually limited to deleting synthetic substances from the Board’s proposed list, the Department maintains, Congress would have used the word "deletions" in this subsection rather than the term "changes." That is, if the Secretary’s authority were so limited, this subsection would read: ‘The Secretary shall include in such Notice any [deletions] . . . to such proposed list or amendments recommended by the Secretary.’

The Department’s argument, however, mistakenly assumes that subsection 6517(d)(4) refers only to the Secretary’s authority to place synthetic substances on the National List. To the contrary, however, this subsection refers to the National List overall, which includes the Secretary’s authority to place prohibited natural substances on the National List. 7 U.S.C. § 6517(c)(2). In executing this distinct power, the Secretary’s authority is not limited to naturals proposed by the Board for inclusion on the National List. That is, he may both add and delete prohibited naturals from the list proposed by the Board. Accordingly, if the word "deletions" were substituted for the word "changes," the provision would no longer make sense in the context of the Secretary’s authority to prohibit the use of natural substances beyond those proposed by the Board.^9/

In fact, contrary to the Department’s argument, the scope of the Secretary’s authority with respect to placing prohibited naturals on the National List supports the clear statutory limitation on his authority with respect to placing permitted synthetics on the List. That is, if the Secretary’s power to both add and delete substances on the proposed national list were in fact identical in the case of synthetics and naturals as the Department effectively maintains, there is no explanation for Congress’ disparate treatment of the two powers within section 6517.

"It is axiomatic that an administrative agency’s power to promulgate . . . regulations is limited to the authority delegated by Congress." Davis County Solid Waste Management v. EPA, 101 F.3d 1395, 1410 (D.C. Cir. 1996) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)). In OFPA, Congress has spoken clearly both to the Department’s power, and to relative responsibilities of the Department and the Board. As against the clear language of section 6517(d), the structure of the OFPA and its legislative history, the Department advances a construction that is based mainly upon grammar. In a contest between an interpretation based upon the former and one based upon the later, the Supreme Court has declared that the former interpretation would be given effect:

A statute’s plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning. Along with punctuation, text consists of words living ‘a communal existence,’ in Judge Learned Hand’s phrase, the meaning of each word informing the others and ‘all in their aggregate tak[ing] their purport from the setting in which they are used.’

United States Nat’l Bank of Or., 508 U.S. at 454 (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (emphasis added)).

The "communal existence" in which section 6517(d) lives is an overall statute premised upon limiting the use of synthetic substances as a means of effecting the statutory purpose of bolstering the consumer confidence upon which the organics market depends, a statutory division of authority to effect that limitation, and a statutory caption whose very title "no additions" punctuates that limitation. In such a context, the Department would not be permitted to apply a grammarian’s interpretation to defeat the plain intent of Congress.

While Congress gave the Department limited authority to depart from the principle that certified organic products be free of synthetic substances, it carefully circumscribed that authority by dividing it between the Department and the Board. Should the Department assume the authority to add non-Board approved substances to the National List in the final rule, it would irreparably harm the organics market by undermining consumer confidence in organic products. By so doing, the Department would be acting contrary to both the public interest and congressional intent by thwarting, rather than facilitating, commerce in organic products. Given that a judicial challenge to the Department’s assumption of this authority in the final rule would bear a substantial likelihood of success on the merits,^10/ the Board anticipates and looks forward to a final rule which restores the critical balance struck by Congress.

^1/ Different separation of powers concerns are raised when Congress has retained executive power for itself. See, e.g., Metro. Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991) (executive power exercised by members of Congress); Bowsher v. Synar, 478 U.S. 714 (1986) (executive power exercised by Comptroller General). Since Congress has not retained power over the Board, these concerns are not implicated here. See 7 U.S.C. § 6518 (appointment and composition of Board).

^2/ Given the specificity with which Congress has done so, see 7 U.S.C. §§ 6517(c)(1), 6518, and the state of the law on this issue, e.g., Humphrey v. Baker, 848 F.2d 211, 217 (D.C. Cir. 1988)("Only the most extravagant delegations of authority, those providing no standards to constrain administrative discretion have been condemned by the Supreme Court as unconstitutional."), cert. denied, 488 U.S. 966 (1988), such an argument could hardly be maintained.

^3/ No such separation of powers concerns are raised here because Congress has not retained authority over the Board. See supra note 1.

^4/ The Department apparently also enlists the aid of a related statutory provision in support of its effort to locate an ambiguity. That argument is also considered and refuted by these comments. See infra at 26-27.

^5/ Advocating the consideration of legislative history as a means by which courts may test purportedly plain meaning constructions, Judge A. Raymond Randolph of the U.S. Court of Appeals for the District of Columbia Circuit commented:

The [legislative] history can supply information about how the statute is expected to operate, what subjects it addresses, what problems it seeks to solve, what objectives it tries to accomplish, and what means it employs to reach those objectives -- all of which the judge may draw upon in testing his tentative construction of the statutory language. This process, then, may mark the difference between a blind decision and a decision made with one’s eyes open.

A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 71, 76 (1994).

^6/ For ease of comparison, these provisions in their entirety state:

(d) Procedure for establishing the National List

(1) In general The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No additions The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List.

(k) Responsibilities of Board . . .

(2) National List The Board shall develop the proposed National List or proposed amendments to the National List for submission to the Secretary in accordance with section 6517 of this title.

7 U.S.C. §§ 6517(d)(1)-(2), 6518(k)(2) (emphasis added).

^7/ It is also worth noting that in all but one circumstance, the phrase ‘proposed national list’ is preceded by the word "the," see 7 U.S.C. §§ 6517(d)(2)-(5), 6518(k)(2)-(4), (l)(1)-(3), (m), (n), thereby reflecting the otherwise obvious fact that Congress was referring to one list in OFPA. Since subsection 6518(k)(2) describes the proposed list to be prepared by the Board as "the" proposed list, and subsection 6517(d)(2) limits the Secretary’s authority to place substances on the National List to those appearing on "the" proposed list, it is clear that the Secretary’s authority to place synthetic substances on the National List is limited under subsection 6517(d)(2) to the list prepared by the Board pursuant to subsection 6518(k)(2). Even if Congress’ use of the word "a" preceding the term "proposed national list" in subsection 6517(d)(1) could be taken to mean that Congress was referring to a different list, this would not change the fact that both subsection 6517(d)(2) and subsection 6518(k)(2) are referring to "the" same proposed list.

^8/ See previous page for full text of subsection 6517(d)(4).

^9/ In similar manner, the Department apparently maintains that the language in subsection 6517(d)(1) requiring that the National List be "based upon" the Board’s list would read "the same as" if the Secretary were truly not permitted to add non-Board approved synthetics to the list. This argument fails for at least two reasons. First, changing this language to "the same as" would not accurately reflect the Secretary’s authority under OFPA since he may decline to place a Board-approved synthetic on the National List. Second, changing this language would not take account of the Secretary’s authority to place prohibited naturals on the list beyond those proposed by the Board.

^10/ The outcome of such a challenge would likely call for an award of attorney fees and costs under the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412(d)(1)(A) (1994) (prevailing party entitled to award of fees and expenses "unless the court finds that the position of the United States was substantially justified . . . ."); 28 U.S.C. § 2412(d)(2)(D) ("position" of the United States "means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based") (emphasis added); see, e.g., Thomas v. Peterson, 841 F.2d 332, 334-35 (9th Cir. 1988) (EAJA creates the presumption that fees will be awarded unless government satisfies burden of demonstrating that its position had a reasonable basis in law); Union of Concerned Scientists v. United States Nuclear Regulatory Comm’n, 840 F.2d 957 (D.C. Cir. 1988) (per curiam) (EAJA award on successful challenge to regulation).