CARACTERÍSTICAS Y COMPORTAMIENTO DE LA MEZCLA

The following situation constitutes a "real" conflict situation:

A CB is accredited or approved according to one regulation and in addition applies for approval or accreditation for another. In order to resolve a non-compliance it turns out that any effort to come in line with the additional regulation will result in a conflict with requirements applicable under the regulation the CB already meets.

Several CBs holding multiple accreditations have been asked regarding such “real” conflicts among certification requirements. The answers provided did not reveal “real” conflicts however demonstrate that the CBs are facing various problems in coping with the different requirements. Conflicts can be detected through document review. However these cases do not automatically constitute a real conflict situation for CBs. What determines this is the question of how the different supervising bodies interpret and implement the requirements.

The following problem areas are listed, each explained by providing examples and referring to the requirements concerned16.

6.1. Conflicting requirements

Stakeholder participation: Although not addressed by CBs, NOP in fact includes a requirement which conflicts with one ISO 65 requirement; it is related to the organizational structure applicable to CBs. ISO 65 requires “structural participation” of all significantly concerned parties whereas the NOP in any case excludes structural stakeholder

participation because of a supposed conflict of interest situation.

ISO Guide 65 section 4.2.e states that a certifier’s structure “shall enable the participation of all parties significantly concerned in the development of policies and principles

regarding the content and functioning of the certification system.” This requirement is specified and further explained in the IAF Guidance in the application of ISO 65 as follows:

“G.4.13 Clause 4.2.e) of ISO/IEC Guide 65, requires that the documented structure of the certification body has built into it provision for the participation of all the significantly concerned parties. This should normally be through some kind of committee. The structure established should be prescribed in the certification body’s written constitution and should

not be subject to change without notification to the accreditation body” (a similar requirement can be found in the IAC).

This contradicts NOP conflict of interest provision 205.501 (a) (11) (i), which prevents certification of operators who are responsibly connected to the certification agent. 6.2. Requirements result in major structural changes

Conflict of interest provisions: The following example demonstrates that CBs are forced to implement major structural changes in order to fulfil one regulation although they are already qualified according to another. The requirements dealing with conflict of interest issues differ to a broad extent.

As already summarized above, NOP 205.501 (a) (11) (i) prohibits a CB to certify the farm of a board member or of a certification committee member. This would constitute a commercial interest.

This requirement conflicts especially with the structure of membership based CBs having installed governing boards, recruiting board members among the members they serve. ISO Guide 65 (4.2.m) and IAC 1.3.19 do not imply such a definite exclusion. ISO and IAC similarly require that persons with a conflict of interest shall be excluded from work related to certification but this is limited to the specific case. To exclude individuals from dealing with a specific case in order to prevent a conflict of interest situation is acceptable according to ISO 65 and IAC, whereas this is not the case according to NOP requirement 205.501 (a) (11) (i).

This forces membership-based CBs to review and revise their form of organisation in order to come in line with NOP.

Inspectors: Another example for a major structural determination is included in the recently revised JAS regulation. JAS doesn’t allow inspectors to work for more than one certification body. This requirement is unique compared to all other systems whereas e.g. in the US it is common that CBs don’t employ inspectors but work with them on a

contractual basis. Most inspectors in the US are working independently and are contracted by more that just one CB. Similar situations are common in the EU system.

6.3. Apparent conflicts

Changes in the certification requirements: ISO Guide 6 requires CBs to “give due notice of any changes it intends to make in its requirements for certification. It shall take account of views expressed by interested parties before deciding the precise form and effective date of the changes. …” CBs implementing regulatory programmes don’t have the possibility to implement this respective requirement. They are bound to the legal framework. In most cases it is out of CBs’ control as changes most often are a result of changes in the regulatory system. This applies for standard changes but also applies for other requirements regarding inspection procedures.

Neither NOP nor EU Reg. details a comparable provision. Also, IAC does not address this topic.

As there are many CBs approved by a regulatory programme and at the same time accredited by an ISO 65 accreditor, the argumentation that a CB does not have the

authority to make changes in the certification requirements seems to be acceptable for ISO 65 accreditation bodies. In most cases the regulatory programme itself provides for

notification and consultation. Therefore it seems that in practice there is no problem although CBs cannot comply with the respective ISO 65 requirement.

Mutual acceptance: All regulatory schemes assume that CBs approved or accredited according to the respective system requirements mutually accept each other’s work. It is even a definite requirement according to NOP 501.a.13 and 501.a.1., whereas ISO 4.4. requires CBs to take full responsibility for work performed by others, either subcontracted or in case CBs’ work is reliant on the work of another body (see ISO 4.4 note 3 ) (e.g. in case a CB certifies a processor using ingredients from different sources certified by different certification bodies).

According to ISO 4.4, acceptance shall be based on appropriate arrangements and

evaluation of work performed by another body. In practice such measures are not foreseen within the regulatory programmes, they are even excluded according to NOP 501.a.13 and 501.a.1. Within regulatory systems CBs rely on other CBs’ accreditation or approval. Consistent performance according to the same procedures therefore is assumed.

IAC addresses the issue under Chapter 9 Acceptance of prior certification. IAC in any case requires evaluation and an agreement between CBs, but simplifies the measures in case IFOAM accredited CBs rely on each other’s work. IAC however provides for even more elaborated and detailed requirements than ISO Guide 65.

6.4. Mixing functions of certification and accreditation Appeals

ISO 4.2.p requires CBs to “have policies and procedures for the resolution of complaints, appeals and disputes received from suppliers or other parties about the handling of

certification or other related matters”, whereas NOP 205.405. (d) (3), 205.680 (c), 205.681 (a) requires appeals to be directed to the accreditation body (USDA) or to the State

program responsible.

Withdrawal or suspension

ISO 14.3 requires CBs to deal with “incorrect references to the certification system or misleading use of licences, certificates or marks …” by suitable action.

ISO 4.6.1 asks CBs to specify conditions for “granting, maintaining, extending, suspending and withdrawing certification”.

NOP considerably limits CBs room for manoeuvre even in case of “wilful violation”. 205.662 provide for an elaborated non-compliance procedure for certified operations; (d) wilful violations allow CBs to send a “notification of proposed suspension or revocation” but do not allow CBs to take direct action.

Providing such detailed and definite requirements at least raises the question where to draw the line between standard setting and implementing the standards and between

Although NOP involves private CBs with the implementation of the programme in fact NOP does not fully authorize CBs. It keeps key elements (e.g. withdrawal of certification, handling of appeals) within the scope of the competent authority. By doing this the

authority partly operates certification tasks although at the same time is performing accreditation and herby assessing the competence of a CB. Whereas ISO system (ISO 65 and ISO 61) differentiates between certification and accreditation function.

Comparable examples exist with other regulatory programmes as well and are not restricted to the NOP only.

Also the EU Regulation limits CBs authority; see Article 9, 9b, which requires CBs to consult the imposed withdrawal period with the competent authority:

“The inspection authority and inspection bodies referred to in Article 9 (1) must: …

(b) where a manifest infringement, or an infringement with prolonged effects, is found, withdraw from the operator concerned the right to use the indication shown in Annex V for a period to be agreed with the competent authority of the Member State.”

6.5. Different regulations or norms apply a different level of detail

This conflict occurs when one regulation has a very elaborated and detailed definition of an issue while the other regulation is general and leaves the procedure open for interpretation and implementation by the CB. This problem area is directly related to the discussion above and the distinction of certification and accreditation functions.

NOP for example requires CBs to work with the ‘organic production and handling system plan’ regulating the elements to be included in detail, whereas ISO 65 does not specify any requirements for operator documentation. IAC 6.1.5 regarding documentation states: “The certification body shall specify, in application documentation or elsewhere, the documentation to be maintained by the operator to enable verification of compliance. This shall specify which records shall be available and require that they be held in a form that enables verification to take place.” Compared to NOP the IAC provides for more flexibility and allows CBs to adapt documentation requirements depending to specific circumstances.

CBs in line with NOP requirements fulfil the IAC; CBs in line with IAC provision 6.1.5 are not automatically in line with NOP and would be required to specifically amend their documentation requirements in order to meet NOP requirements.

A similar situation occurs e.g. with regard to JAS qualification requirements that are very specific but unique compared to other requirements provided in NOP, EU Regulation or IAC.

6.6. Requirement to exclusively implement a norm

CBs reported that the respective authorities insist on exclusive implementation and documentation of the respective regulation. It is not possible to combine the different requirements e.g. in combined inspection checklists and or in combined procedural instructions etc. This forces CBs to operate different Quality Handbooks for different accreditations and approval purposes or to maintain different inspection checklists although they are mostly addressing the same issues in slightly different ways. This leads to increased bureaucracy in order to demonstrate that distinct systems are operated.

6.7. Concern regarding fair and consistent implementation

The problem of consistent and fair implementation occurs under e.g. the EU system that involves different competent authorities in each country or even in the federal states of a member state. Although the same requirements form the basis for the approval of

certification bodies CBs are not convinced that the requirements are implemented in a consistent manner by the different authorities. It is quite obvious for them (as for the most part, they are accredited and registered in different EU member states), that varying interpretations occur.

The fact that for third country CBs a formal EN 45011 (ISO 65) accreditation is required to be sufficient for acceptance, although the EU inspection bodies are not forced to have formal accreditation, was also raised as a concern of unfair competition disadvantaging foreign CBs.

At the same time EU-based CBs that are accredited according to EN 45011 (ISO 65) have to undergo just the regular approval procedures by each of the designated competent authorities in the EU. Approval issued by one EU competent authority is limited to the country or region for which the competent authority is responsible. Therefore, in case a CB wants to expand its activities to another country or region within the EU, the CB is

required again to demonstrate that it is qualified to implement the EU Regulation even if it already holds EN 45011 accreditation.

Concerns raised are also related to the NOP system. Although the Rule specifices that foreign CBs are subject to the same accreditation, evaluation and surveillance procedures, it was questioned whether foreign CBs are in fact evaluated with the same strictness and consequence the USDA applies for CBs based in the US.

6.8. General concern expressed by most CBs

CBs strongly expressed their wish that there should be one set of requirements that forms the basis for approval or accreditation of Certification Bodies. Concern was expressed that efforts to meet the differing requirements in the different regulations do not contribute to improve the integrity and reliability of the organic system; it even distracts CBs from concentrating on issues CBs identify as far more critical for ensuring organic integrity. The improvement of inspectors’ qualifications was specified as such an area. 6.9. Summary

There are several problem areas CBs face in trying to meet different requirements. Although a document review indicates that there might be conflicting areas, most issues are resolved because of the fact that some ISO 65 requirements are not applicable under regulatory systems or covered by mechanism the regulatory body applies directly.

There are differences in drawing the line between accreditation and certification tasks. This generally raises the question on how far involvement of governments should go and what might better by left to self regulated by the industry and actors involved. Thereby different social concepts and expectations regarding appropriate regulatory interference may collide.