OIA North America

On July 13, 2010, Miles McEvoy, Deputy Administrator of the USDA National Organic Program issued a document titled "Responsibilities of Certified Operations
Changing Certifying Agents" which describes the responsibilities of operations seeking to change certifiers as well as the responsibilities of certifiers who are certifying operations which switch certifiers. The document provides a description of the policies and procedures for conducting such switches and provides some rules. Of important note are the rules which state that operations switching certifiers must remain in good standing with their current certifier until certified by the new certifier OR must surrender their certification while applying for certification by the new certifier. What the memo makes clear is that operations must plan out any certifier switch and be sure to remain compliant with the certifier the operation is leaving during this process. Additionally, the memo establishes for the first time a rule that operations which switch certifiers must immediately change their packaging and label to reflect the identity of the new certifier. No stream of commerce exceptions.

The full text of the memo follows, and can also be accessed at the USDA NOP website at www.ams.usda.gov/nop. Please contact OIA North America if you have any questions.

Responsibilities of Certified Operations (Effective July 13, 2010)

Changing Certifying Agents

1 Purpose

This document establishes National Organic Program (NOP) policies and procedures for certified

operations and accredited certifying agents (ACA’s) when certified producers or handlers change to a

new ACA.

2 Scope

These procedures apply in all situations where certified operations change certifiers, either as a result

of a business decision or as a result of their current certifier losing accreditation.

3 References

7 CFR Part 205 Subpart E – Certification and Subpart F – Accreditation (Regulation)

4 Policy

4.1Certification under the Regulation is not transferrable between ACAs. ACAs may not sell or

otherwise transfer certified operation files or certificates to another ACA.

4.2Certification and certificates issued to certified operations are not transferrable to new owners

in cases of mergers, acquisitions, or other transfers of ownership of the certified operation. When

there is a change in ownership of a certified operation, the certified operation must apply for and

receive new certification from an ACA prior to selling, labeling, or representing products as organic.

4.3When a certified operation wishes to change from their existing ACA to new ACA, the

certified operation must complete an application and submit a complete organic systems plan (OSP)

to the new ACA.

4.3.1The new ACA must conduct a complete review and onsite inspection of the certified

operation’s OSP and ensure compliance with the NOP regulations prior to granting certification.

4.3.2When changing ACAs, the certified operation must either maintain the prior certification

according to the NOP regulations or surrender their prior certification in writing. Certified

operations who are changing ACAs must maintain their current certification until they have been

granted certification by the new ACA if they intend to continue to produce or sell products as

organic.

4.3.3If a certified operation applies for certification with a new ACA but does not maintain or

surrender their prior certification in writing and the prior ACA issues a notice of noncompliance or

proposed adverse action, the certified operation is still bound by the notice of noncompliance or

proposed adverse actions of the prior certifying agent.

4.3.4If the prior ACA issues a notice of suspension or revocation for failure to renew, pay fees,

submit an updated OSP or any other technical or administrative noncompliance to the NOP

Regulations, the certified operation must immediately cease the sale, labeling, and representation of

products as organic until all noncompliances are resolved and eligibility for reinstatement is granted

by the NOP.

4.4For voluntary changes of certifying agent:

4.4.1Certified operations that change ACAs voluntarily may not use up existing supplies of labels

which identify their prior ACA on products they produce or handle.

4.5For certified operations who change ACAs due to loss of a ACAs accreditation:

4.5.1Organic operations certified by an ACA that goes out of business or loses its accreditation for

any reason must apply for certification to another ACA within 60 days of the date of surrender,

suspension, or revocation of accreditation of their ACA.

4.5.2If an ACA discontinues service or loses its accreditation for any reason, all files for all

operations certified by that ACA at that time must be transferred to the NOP pursuant to

205.501(c)(3). If a certified operation does not find a new certifying agent within 60 days, the NOP

will reassign the supervision of the operation to another certifying agent who will manage the

surrender or ongoing certification of the certified operation or initiate proposed adverse actions for

failure to maintain certification under the NOP regulations.

4.5.3ACAs who receive applications for certification from a certified operation affected by the

loss of accreditation of their prior ACA may not grant ongoing certification on the basis of prior

inspections or decisions by the prior certifying agent.

4.5.4Certified operations that change ACAs due to their ACA going out of business may use

existing supplies of labels for no more than 90 days beyond the date that the ACA discontinued

service.

5 Procedures

5.1To change ACA, a certified organic operation must:

5.1.1Submit an application for certification to another ACA as a new applicant;

5.1.2Submit a complete OSP for the scope(s) of certification requested;

5.1.3Pay fees to the new ACA according to the fee schedule approved by the NOP;

5.1.4Maintain their current certification, including submitting annual updates, allowing timely

inspections, and payment of all required fees to the current ACA until the certification process for the

new ACA is complete and a new certificate has been issued if they continue to produce or sell

products as organic;

5.1.5Return their prior certificate along with a written notice of surrender to their prior ACA only

after the new certification process is complete.

5.4To receive new applicants currently or previously certified by another ACA, the new ACA

must:

5.4.1Require the applicant to submit a complete new application and OSP as a new applicant for

certification;

5.4.2Request information regarding their current certification status, including any outstanding

notices of noncompliance or proposed adverse actions. Certification may not proceed until

outstanding notices and proposed adverse actions are resolved and eligibility for reinstatement has

been issued from the NOP, as needed;

5.4.3Notify the applicant of their obligation to maintain their current certification throughout the

new certification process in order to sell, label or represent products as organic during the change to

the new ACA;

5.4.4Charge fees as approved by the NOP;

5.4.5Conduct a complete review of the application and OSP for compliance with the NOP

regulations;

5.4.6Schedule and conduct an onsite inspection pursuant to § 205.403; an inspection is required

prior to the issuance of a new certificate;

5.4.7Issue a new certificate only after the applicant is determined to be in compliance with the

NOP regulations;

5.4.8Not allow the new client to use labels which do not correctly identify the ACA of the finished

product beyond the tolerances allowed in this instruction;

7 Records

7.1ACAs will maintain records according to 205.510(b).

7.2Certified operations will maintain records according to § 205.400(d)