AMS to Require Certs for All Organic Imports; Will Allow Weekly, Monthly Certs

In response to concerns from industry that a proposed 30-day time frame for issuing organic certificates was unworkable (see 2010070043), particularly for perishable shipments crossing land borders, the AMS will allow organic certifiers to issue certificates for a specific time frame and volume, so that certificates may cover a week, month or season of organic imports.

Compliance with the final rule is required by March 19, 2024.

The final rule is meant to address concerns associated with a steep rise in organic shipments since the organic regulations were originally implemented. “Both demand for and sales of organic products have risen steadily; total U.S. sales of organic products reached more than $63 billion in 2021,” the AMS said. “The number of businesses producing, handling, marketing, and selling organic products has also grown to meet consumer demand. Rapid growth has attracted many businesses to the USDA organic label and increased the complexity of global organic supply chains.”

The AMS says the final rule will reduce the types of uncertified entities in the organic supply chain that operate without USDA oversight, including importers, certain brokers and traders of organic products. The import certificate requirement will improve the oversight and traceability of imported organic products. The final rule also clarifies the National Organic Program’s “authority to oversee certification activities, including the authority to act against an agent or office of a certifying agent.”

Among other things, the final rule will address the following:

Non-retail container labeling. Require that nonretail containers used to ship or store organic products be labeled with organic identity and b e traceable to audit trail documentation.

Unannounced inspections. Require certifying agents to conduct unannounced inspections of at least 5% of the operations they certify, complete mass-balance audits during annual on-site inspections, and verify traceability back to the previous certified operation in the supply chain during annual on-site inspections.

Mandated use of USDA database. Require certifying agents to issue standardized certificates of organic operation generated from the USDA’s Organic Integrity Database (OID). “This will simplify the verification of valid certificates of organic operation,” the AMS said.

Enforcement authority. “Clarify” that the National Organic Program may initiate enforcement action against any violator of the Organic Foods Production Act, “including uncertified operations and responsibly connected parties; clarify what actions may be appealed and by whom; and clarify NOP’s appeal procedures and options for mediation (alternative dispute resolution),” the AMS said.

Multi-ingredient products. Clarify the method of calculating the percentage of organic ingredients in a multi-ingredient product to promote consistent interpretation and application of the regulation.

NOP Organic Certificate Now Required for All Imports, Filed at Entry

The final rule requires that any organic agricultural product imported to the U.S. be “associated with” a valid NOP import certificate, “generated by the certifying agent of the final certified exporter sending the product to the United States.” That’s a change from current requirements, under which the certificate is only used for organic products imported from countries with which the AMS has an equivalence determination, i.e., the EU, Switzerland, Japan, South Korea, Taiwan and the U.K. (Canada also has an equivalence determination but uses a different certificate).

“The rulemaking changes this to make the use of NOP Import Certificates mandatory, regardless of an imported product’s country of origin or if that country has an equivalency determination with USDA,” the AMS said. “Specifically, this rulemaking requires that all imported products intended to be sold, represented, labeled, or marketed as organic in the United States must be declared as organic to [CBP], using an NOP Import Certificate."

The import certificates will be generated by the exporter’s USDA-accredited certifying agent or organic certifying agent accredited by countries with which the USDA has an equivalence determination or recognition arrangement. The certificates will be generated in the USDA’s Organic Integrity Database system. Only accredited organic certifying agents will be able to use the database. Each certificate will include a unique identifier. The certified organic exporter will provide the import certificate to the U.S. importer, which may then provide it to the customs broker.

“Organic exporters may be the final physical handler of organic products within a foreign country, or they may be the entities that facilitate, sell, or arrange the sale of organic products shipped to the United States,” the AMS said.

Data includes origin, certifying agent, HTS code. The U.S. importer or customs broker will then be responsible for entering the import certificate data into ACE as part of the import filing process, following the timelines set by CBP, the AMS said. Data to be entered in ACE includes the “origin; destination; the certifying agent issuing the NOP Import Certificate; harmonized tariff code, when applicable; total weight; and the organic standard the product was certified to (7 U.S.C. 6502(13)),” the AMS said.

No de minimis applies. The import certificates “are required for organic commodities regardless of value or size and is not applicable for any de minimis exemptions under current CBP regulations. A very limited number of exemptions will be allowed for items such as, but not limited to, food donations, non-retail samples, and humanitarian efforts,” the AMS said.

All entry documentation must state product is organic. Under the final rule, as the organic product moves from the exporting country into the U.S., “all entry documentation including, but not limited to bills of lading, bills of sale, commercial invoices, and packing lists must clearly state that the product is organic,” the AMS said.

Importer must verify organic compliance. Upon receiving a shipment, the organic importer must verify that the organic product complies with the USDA organic regulations. “This includes ensuring that an NOP Import Certificate is associated with the product received,” the AMS said. “It also includes verifying that the import has not been treated with a prohibited substance as a result of fumigation or treated with ionizing radiation at any point in the products’ movements across borders.” While verification may take various forms, the importer must have an “organic control system” that documents how the verification is conducted. That control system must be reviewed by the importer’s certifying agent, the AMS said.

Record-keeping. Both the organic exporter and the organic importer must maintain records of NOP import certificates which must be available for inspection by the NOP and certifying agents.