What is the Strengthening Organic Enforcement Rule?

 

The USDA National Organic Program (NOP) published the Strengthening Organic Enforcement (SOE) final rule in the Federal Register on January 19, 2023. The SOE final rule makes significant updates to the organic regulations to meet the growing complexity of organic supply chains. The SOE final rule includes several new changes that support robust organic control systems, improve farm-to-market traceability, increase import oversight, and provide full enforcement of the organic regulations. The NOP has set a 14-month implementation timeline. Operations can access the SOE final rule and related resources on the AMS website at: https://www.ams.usda.gov/rules-regulations/strengthening-organic-enforcement.

 

In general, the SOE final rule:

 

1. Reduces the number of uncertified entities

2. Requires the use of electronic import certificates

3. Strengthens recordkeeping and supply chain traceability

4. Strengthens oversight of accredited certifying agents

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A. How Does SOE Affect Who Has to be Certified? 

Introduction and Take-Aways:

• With the publication of the new Strengthening Organic Enforcement Rule, the USDA National Organic Program has broadened the types of operations that need to be certified as organic handlers. This now includes importers, traders, brokers, and distributors.

• Americert expects to receive many questions about what operations have to be certified. This guidance is intended to provide information on how to determine if an operation needs to be certified.

• Each operation certified by Americert or operating in the organic market has an independent obligation to understand and comply with these rules. You should not wait or depend on Americert making these determinations for you.

• A basic rule of thumb that would serve an operation well is to assume that if an operation receives a financial benefit from a transaction involving organic products, crops, or ingredients, they probably need to be certified.

• Americert will err on the side of caution in making such determinations and will favor determinations that an operation does need to be certified. This promotes the NOP goal of increased transparency and accountability in the supply chain.

• If you are wondering if an operation should be certified you should assume it should be certified.

• Americert will start enforcing these rules on April 1, 2023.

• The USDA National Organic Program will commence its active enforcement of these rules in March of 2024.

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As part of the effort to strengthen supply chain traceability and organic integrity by reducing the number of uncertified entities, the SOE final rule has made changes to the allowed exemptions: § 205.2 Handle, Handler, Handling operations, and Retail establishment; §205.100(a) What has to be certified; 205.101 Exemptions from certification; and §205.301(a) and (b) Agricultural products produced or processed by an exempt operation.

 

Regarding entities that need to be certified or are exempt, the SOE:

 

1. Requires certification of more businesses, like brokers and traders, at critical links in the organic supply chains. The NOP has stated that there should be a bias favoring certification rather than an exemption.

2. Provides limited exemptions to organic certification for certain entities and activities that present a low risk to organic integrity, reducing the types of uncertified entities in the organic supply chain that operate without USDA oversight—including importers, traders, and certain brokers of organic products. Exemptions are only for certain types of operations that conduct low-risk activities and are, therefore, less likely to compromise the organic integrity of the agricultural products they handle.

3. Requires organic certification of businesses that sell, process, or package organic agricultural products as handling operations, clarifying that most operations that operate in the middle of the organic supply chains must be certified organic.

4. Removes the term "exclusion." Prior exclusions have been incorporated into 205.101 exemptions.

 

To provide our clients with additional detail and guidance, Americert is issuing the attached Guidance. Please refer to this document for our requirements, recommendations, and suggested best practices for complying with supply chain certification requirements under the USDA National Organic Program, as updated by the SOE final rule.

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