• Appeal from an Adverse Action under the National Organic Program - a Procedural Primer
  • December 5, 2014
  • Law Firm: Sheppard Mullin Richter Hampton LLP - Los Angeles Office
  • “I never made a mistake in my life; at least, never one that I couldn’t explain away afterwards.” - Rudyard Kipling, Under The Deodars

    Everyone makes mistakes, right? Even the National Organic Program (“NOP”), a state official in a State organic program, or a private organic certification agency can misinterpret a rule or regulation resulting in harm to an organic producer, processor or manufacturer. So, what should you do if that happens to you? Although we all normally cringe when we hear, “Hi, I’m from the government and I’m here to help,” in this case Congress and the USDA have provided a navigable procedure to appeal any action taken by the NOP’s Deputy Administrator, a State organic program, or a certifying agent under the Organic Foods Production Act. 7 U.S.C. § 6520(a); 7 C.F.R. § 205.680. That said, there are serious traps for the unwary and unlike horseshoes and hand grenades, just being close to compliance doesn’t count here. In this article, we will discuss the procedural aspects of the NOP appeals process. In subsequent posts, we will examine how NOP appeals are reviewed substantively and the use of mediation and settlement agreements with respect to NOP disputes.

    If the NOP, a State official or your certification agency has taken action that adversely affects you or that you believe is inconsistent with the NOP’s organic certification program, you have a right to appeal that decision. The appeal will be reviewed, heard and decided by persons not involved in the underlying action that forms the basis for the appeal. 7 C.F.R. § 205.680(e).

    Timing and Contents of Appeal. An appeal must be filed within the time provided in the notice or within 30 days from the receipt of the notification, whichever occurs later. 7 C.F.R. § 205.681. The appeal must be filed in writing and sent to: Administrator, USDA, AMS c/o NOP Appeals Team, Stop 0203, Room 1114-S, 1400 Independence Avenue, Washington, DC 20250. The appeal must include a copy of the adverse decision and a statement of the appellant’s reasons for believing that the decision was not proper or not made in accordance with applicable program regulations, policies or procedures. The appellate review will then involve both procedural and substantive issues. In both of these areas, legal counsel familiar with the NOP regulations and prior decisions can help you insure that your appeal has the greatest chance of success. What does the procedural review of an appeal involve? Primarily whether the appeal complies with all applicable rules and whether the underlying decision complied with the appropriate procedural processes.

    Procedural Review of Appeal. The procedural review of the appeal itself confirms that the appeal complies with § 205.681’s requirements:

    • Was the appeal timely filed?
    • Is a copy of the adverse decision included with the appeal?
    • Does the appeal address alleged noncompliances or other adverse actions?
    • Were the adverse actions taken in accordance with applicable regulations?

    With respect to an appeal of a noncompliance issued by a certification agency, § 205.662 requires that the notification from the certification entity state:

    • The reasons for the proposed suspension or revocation;
    • The proposed effective date of such suspension or revocation;
    • The impact of a suspension or revocation on future eligibility for certification; and
    • The right to request mediation pursuant to § 205.663 or to file an appeal pursuant to § 205.681.

    If the appeal involves a denial of certification, § 205.405 requires that the notice of denial must state the reason(s) for denial and the applicant’s right to:

    • Reapply for certification;
    • Request mediation; or
    • File an appeal of the denial pursuant to § 205.681 or, if applicable, pursuant to a State organic program.

    If a certifying agency receives a notice that it is subject to a proposed suspension or revocation, § 205.665 requires that the notice state:

    • The reasons for the proposed suspension or revocation;
    • The proposed effective date of the proposed suspension or revocation;
    • The impact of a suspension or revocation on future eligibility for accreditation; and
    • The right to file an appeal pursuant to § 205.681.

    The procedural review of an appeal examines the above factors to determine whether the appeal meets each of the requirements that the regulations state the appellant must comply with in order to pursue an appeal. If these requirements are satisfied, the NOP will issue an Appeal Acknowledgement Letter and the appeal will proceed. If it does not, the appeal is dismissed and the appellant has no further appeal rights - kind of a one strike and you are out rule. The procedural review also determines whether the Adverse Action letters meet the procedural requirements of the NOP’s regulations. If they do not, the appeal might be sustained on that basis alone.

    In our next post, we will look at the substantive review of an appeal of an adverse action and the factors considered by the NOP in their review of an appeal on its merits.