AMS to Allow Grace Period for Importers to Certify as Organic as New Rule Takes Effect March 19

The Agricultural Marketing Service will begin with a period of soft “enforcement discretion” once its new regulations on organic import certificates take effect on March 19, but importers should nonetheless be working now to get their organic certifications as required under the rules, an AMS official said, speaking during a recent webinar.

The agency’s January 2023 final rule on “Strengthening Organic Enforcement” will require importers to be certified entities under the National Organic Program by March 19 in order to receive and file new import certificates for their shipments at entry that will also be required as of that date (see 2301180051), said Jennifer Tucker, deputy administrator of the National Organic Program at AMS.

However, AMS understands not all importers will be certified by March 19, and will initially let uncertified importers file organic certificates at entry, though the importer will get a warning, she said, speaking during a Feb. 26 webinar hosted by the National Customs Brokers & Forwarders Association of America.

Importer operational certifications are one of several initial priorities for AMS once the new regulations take effect. Tucker said AMS is seeing “a whole lot of questions, particularly from importers, who all the sudden are finding out” that they need to be certified. The process involves several steps, including applying to a certifier, an application review, an on-site inspection and a “full review for compliance,” she said, adding that the process “can take weeks or months.”

Though it will begin with a policy of enforcement discretion on March 19, AMS will eventually “take staged enforcement” against importers without a working certification that are importing organic goods and filing organic import certificates, Tucker said. The rule has been out for over a year, she noted, and “many businesses have already started or have completed certification.”

While not all import operations will complete the certification process before March 19, “we will consider the progress an operation has made against that goal when considering possible enforcement action,” Tucker said. An importer that says it has applied and is awaiting an inspection is “a really different answer” than not knowing about the requirements at all, she said. “Now’s the time,” added Tucker.

Foreign organic exporters, said Tucker, will not benefit from the same level of enforcement discretion as importers, because only a certified organic exporter may generate an import certificate. However, when the final rule takes effect March 19, AMS will at first allow entities that may not be the “final exporter” to certify organic shipments, though eventually the agency will “get that handshake as close as we need it to be” by requiring the final exporter to generate the certificate.

Other initial enforcement priorities for AMS as the new regulations take effect are “flagging and investigating invalid import certificate numbers” and reviewing certifier control systems, Tucker said. Under the final rule, importers must validate import certificate numbers and verify that the client can actually produce the relevant commodity in “the volume and time frame being requested,” she said.

Tucker clarified that, while the final rule takes effect March 19, shipments already in transit on that date may still enter the U.S. without a newly required import certificate. If the shipment is “on the water” but “not quite here by March 19, that’s considered stream of commerce,” she said. While those shipments won’t need an import certificate, any shipments leaving the port of export after March 19 must have one, she said.