What You'll Learn
- What Noncompliances and Adverse Actions are
- Options for responding to Noncompliances and Adverse Actions
- The rebuttal, appeal, and mediation processes
- How maintaining good communication with you certifier can help you resolve or avoid Noncompliances and Adverse Actions
Each year, your certifier will make a determination on your organic status. Hopefully everything goes smoothly, but handlers new to organic have a lot to learn and mistakes do happen.
Issues with Certification
There are 3 different types of responses to issues that you may get from your certifiers: Minor Issues, Notice of Noncompliance, and Adverse Action.2, 3
Certification Letters with Minor Issues
After your application for certification has been thoroughly reviewed, your on-site inspection report submitted by the inspector, and your certifier has determined that you qualify for certification, they will send you a certification letter. These are what you want to receive each year after inspection!
Sometimes, there are Minor Issues raised in your inspection report and application review. If so, your certifier may ask for further information in this letter before they will issue your certificate. Your certification letter may also include specific conditions for your continued certification, with requirements for correcting the Minor Issues within a specific timeframe.
An example of a Minor Issue: You added a new air curtain to your loading bay door to prevent flying insects from entering the facility. While this is a good practice and is compliant with the pest management practices in the USDA organic regulations, you didn’t update your Organic System Plan with the new practice. Your certification letter may then include this as a Minor Issue and require that you update your OSP to reflect the new pest management practices and submit evidence of that update to your certifier within a provided timeframe.
Notice of Noncompliance
This letter addresses a compliance issue that is more significant than a Minor Issue, and requires a corrective action plan. This is commonly the next step if a condition for continued certification was not resolved by the deadline, or if you don’t respond to a certifier’s deadline to send them more information. An example of a more significant issue that could result in a letter of noncompliance is an organic label claim that had not been approved by the certifier before being used on a product for sale. Recordkeeping updates alone would not be enough to remedy this.
Adverse Action
These are violations that are determined to be uncorrectable, systemic, or willful. Noncompliances can elevate to Adverse Actions if an operation does not dispute or correct the issue. There are a few types of Adverse Actions, and they can each be resolved through mediation or appeal. Let’s look at the three main types:
- Notice of Denial of Certification: if a new applicant for certification does not rebut or resolve a Notice of Noncompliance by a given deadline, the certifier will propose denying certification. It does happen that a certifier issues a combined Notice of Noncompliance and a Denial of Certification. This could occur if they don’t think the handler can comply with the organic regulations.1
- Notice of Proposed Suspension of Certification: these letters set a date when certification will be suspended, unless mediation is requested or an appeal is filed. These would need to happen prior to the date given in the letter or 30 days from receiving the letter, whichever occurs later. Most commonly these letters result from a failure to correct or respond to a Notice of Noncompliance.
Suspended operations must immediately cease making organic claims, and must go through the reinstatement process prior to achieving certification again. Sometimes the Notice of Suspension gives a period of ineligibility that the suspended operation must wait before being reinstated.
In rare cases certifiers may send a combined Notice of Noncompliance and Proposed Suspension of Certification. These can be issued when a noncompliance issue is uncorrectable and it appears that the operation is not able to follow the organic standards. For example, if an operation changed processing aids without seeking certifier approval and then as a result sold product produced using a prohibited processing aid with organic claims.
- Notice of Proposed Revocation of Certification: these letters set a date when certification will be revoked unless mediation is requested or an appeal is filed prior to the date in the letter or 30 days from receipt of notification, whichever occurs later. These are reserved for cases when the operation knowingly violated the standards. Like, for example, deliberately using a prohibited substance or falsifying records. Generally, revoked operations cannot reapply for certification for 5 years.
Frequently Asked Questions
New organic handlers often begin their certification process afraid of their certifier because it’s hard to prepare for what you don’t know. But after a few years, most handlers learn the ropes and get to know what their certifier needs from them. Here are some questions that new handlers often have.
What are common reasons a certifier issues a Notice of Noncompliance?
You fail to meet a deadline given by the certifier to submit updated paperwork or fees.
Your practices don’t align with the organic standards, or your records are insufficient. Most commonly these issues are identified at an annual or unannounced inspection, or during a review of your Organic System Plan.
You didn’t respond to a request for more information about your certification by the certifier’s deadline.
Should I be worried if I get a Notice of Noncompliance?
Notices of Noncompliance can be resolved. Because certifiers must write noncompliance letters using regulatory language, they can feel intimidating. As long as you communicate with your certifier and work to resolve the issue, your certification does not need to be in jeopardy.
Experienced handlers tend to agree that noncompliances are not as scary as they seem. Certifiers are generally supportive in helping clients work through the noncompliance process.
Noncompliances are common in the industry. Ultimately they are an opportunity to improve your systems. Consider them great learning opportunities that can help identify issues like documentation gaps and insufficient training.
How can I respond to a Notice of Noncompliance?
Note the deadline in the letter – by that date you should either:3
Rebut, by providing information showing why you believe you are in compliance; or
Propose a corrective action plan to bring your operation into compliance by a specific date.
For example, if the noncompliance stemmed from an organic label claim being used without certifier approval, a rebuttal could consist of submitting documentation (like email communication) that the label was approved by the certifier, but that you had mistakenly not uploaded it to your certifier’s files. Or a corrective action plan could include submitting the label for approval, correcting any issues (if applicable), and updating your SOP on label approval to ensure all staff know that the certifier needs to approve the label before use.
If you have any questions about the noncompliance, contact your certifier to talk through it. They are there to provide information about the organic standards and they can explain things in clear ways over the phone, rather than the official language in the letter.
Can a Minor Issue result in an Adverse Action?
Yes. Although each situation can be unique, a common progression is:4
Your annual certification letter includes a condition for continued certification that you must correct a Minor Issue, perhaps a record was incomplete at inspection. The letter states that you must correct the issue by the next inspection to avoid escalation.
If the issue is not corrected by the next inspection, your certifier may issue a Notice of Noncompliance.
If you then submit a corrective action plan your certifier can accept it and issue a Noncompliance Resolution. Part of the resolution will include verifying that the issue was corrected within a specific time frame. If the issue is addressed at the next inspection the progression can stop there.
However, if the issue was not resolved by the next inspection then the certifier would likely again issue a Notice of Noncompliance or a Notice of Noncompliance combined with a Notice of Proposed Suspension, depending on the severity of the issue. And thus, a Minor Issue has escalated to an Adverse Action.
What happens if I don’t respond to a Notice of Noncompliance?
If you don’t respond to the Notice of Noncompliance by the specified deadline a Notice of Proposed Suspension may be issued.3 If you don’t request mediation or file and appeal in response to your Notice of Proposed Suspension by the certifier’s deadline your organic certification may be suspended. Once suspended, you must remove all organic claims from your packaging, sales records, and marketing materials. Suspended operations must not sell, label, or represent agricultural products as organic.
You will need to go through the reinstatement process if you wish to be certified organic again. The reinstatement process is time-consuming and requires additional fees. You are essentially submitting a full new application packet, undergoing another initial inspection, and then an additional review by USDA National Organic Program before a certification decision can be made.
How do I work with my certifier to resolve a Notice of Proposed Suspension, Revocation, or Denial?
You need to request mediation in writing within 30 days of receiving the letter.5
Your certifier can accept or reject (with justification) your request for mediation. If mediation is rejected you can appeal within 30 days of receiving your written rejection of mediation.
The goal of mediation is to identify specific terms that, when met, will result in full compliance with USDA organic regulations. The terms could be specific practices you must implement and additional inspections to verify these practices are in place to maintain your certification. Alternatively, you might achieve compliance by agreeing to surrender your certification and remove all organic claims from your products.
If mediation is accepted:
Both parties agree on the person conducting the mediation. As long as you agree on the mediator, you do not have to involve an outside mediator, and you and the certifier can mediate between yourselves.
If mediation is successful, the certifier will outline these terms in a Settlement Agreement that is signed by both parties. You have 30 days from the start of mediation to reach an agreement.
If meditation is unsuccessful, you have 30 days to appeal.
Typically, certifiers want to work with you to figure out a solution. And it is often a collaborative, amicable, and professional process.
Is there an appeals process?
Yes, you can file an appeal within 30 days if you receive a Notice of Proposed Suspension, Revocation, or Denial of Certification, or within 30 days if mediation is rejected or fails. It’s also possible that your certifier gives you a longer deadline.7
Operations located in California submit appeals to the California Department of Food and Agriculture. All other operations submit appeals to USDA National Organic Program. The adverse action notice will include the contact information for the appropriate appeals team.
Your appeal must include a copy of the Adverse Action and the reasons you think the decision was not proper or in accordance with the organic standards.
The NOP Appeals Team may ask for more information from you or the certifier. They review the appeal information and recommend an appeal outcome to the NOP Deputy Administrator, who will decide if a settlement agreement should be offered. There is a similar process for operations located in California who submit appeals to the California Department of Food and Agriculture
For more detailed information, see: Citation 6: NOP 4011 Appeals Procedures; Citation 7: eCFR :: 7 CFR 205.681 — Appeals.
Does my certification continue during the Appeals process?
Yes, if you are already certified, certification continues during the appeals process.6, 7 The appeal process can take time! Your certification will remain valid even with an outstanding Notice of Proposed Suspension, or Revocation. You and your certifier will continue to follow the annual certification process while the appeal is being reviewed.
What happens if my certification is suspended?
You are no longer certified organic and can no longer sell, label, or represent product as organic.3 The Organic Integrity Database will be updated within 3 days of your suspension to show this change. You can reapply for certification at any time (unless otherwise stated in the suspension notice) but you will need to go through the reinstatement process.
What happens if my certification is revoked?
You are no longer certified organic and can no longer sell, label, or represent product as organic.3 The Organic Integrity Database will be updated within 3 days of your suspension to show this change. You are not eligible to be certified again for 5 years from the date of your revocation.
How does the reinstatement process work?
If your certificate has been suspended or revoked, you can reapply for certification with the same certifier or a different one. If suspended, check the suspension notice to see if there is a period of ineligibility and if it has passed, or if you are eligible to reapply. If revoked you aren’t eligible for certification again for 5 years from the date of your revocation. Your application must disclose the past compliance issues and how you have since corrected them.
You will have an inspection to verify that you have corrected past noncompliances, and that your practices and records are aligned with the requirements of the organic standards. Having passed this inspection, you can then submit a request for reinstatement to the NOP. Your certifier will need to submit documentation that you have corrected all previous noncompliances and are in full compliance with the organic standards.
Reinstatement is a very tough process, it is time-consuming, and may require additional fees from your certifier. For more information, see NOP 2605 Reinstating Suspended Organic Operations
Conclusion
Many noncompliances and Adverse Actions are often a result of poor communication. Don’t get suspended because you didn’t communicate with your certifier. Work to address certification issues promptly and don’t let them escalate. Your certifier may be able to work with you on reasonable extensions of deadlines to help you avoid escalation.
Your Next Steps
- Call your certifier with any questions or if you need a reasonable extension. They may work with you.
- Make sure your certifier has your most up to date contact information, and that their emails are going to an inbox where they will get read.
- Carefully and promptly read all letters from your certifier.