§ 205.405 Denial of certification. ( a ) When the certifying agent has reason to believe, based on a review of the information specified in § 205.402 or § 205.404, that an applicant for certification is not able to comply or is not in compliance with the requirements of this part, the certifying agent must provide a written notification of noncompliance to the applicant. When correction of a noncompliance is not possible, a notification of noncompliance and a notification of denial of certification may be combined in one notification. The notification of noncompliance shall provide: ( 1 ) A description of each noncompliance;
( 2 ) The facts upon which the notification of noncompliance is based; and
( 3 ) The date by which the applicant must rebut or correct each noncompliance and submit supporting documentation of each such correction when correction is possible.
( b ) Upon receipt of such notification of noncompliance, the applicant may: ( 1 ) Correct noncompliances and submit a description of the corrective actions taken with supporting documentation to the certifying agent;
( 2 ) Correct noncompliances and submit a new application to another certifying agent: *Provided,* That, the applicant must include a complete application, the notification of noncompliance received from the first certifying agent, and a description of the corrective actions taken with supporting documentation; or
( 3 ) Submit written information to the issuing certifying agent to rebut the noncompliance described in the notification of noncompliance.
( c ) After issuance of a notification of noncompliance, the certifying agent must: ( 1 ) Evaluate the applicant's corrective actions taken and supporting documentation submitted or the written rebuttal, conduct an on-site inspection if necessary, and ( i ) When the corrective action or rebuttal is sufficient for the applicant to qualify for certification, issue the applicant an approval of certification pursuant to § 205.404; or
( ii ) When the corrective action or rebuttal is not sufficient for the applicant to qualify for certification, issue the applicant a written notice of denial of certification.
( 2 ) Issue a written notice of denial of certification to an applicant who fails to respond to the notification of noncompliance.
( d ) A notice of denial of certification must state the reason(s) for denial and the applicant's right to: ( 1 ) Reapply for certification pursuant to §§ 205.401 and 205.405(e);
( 2 ) Request mediation pursuant to § 205.663 or, if applicable, pursuant to a State organic program; or
( 3 ) File an appeal of the denial of certification pursuant to § 205.681 or, if applicable, pursuant to a State organic program.
( e ) An applicant for certification who has received a written notification of noncompliance or a written notice of denial of certification may apply for certification again at any time with any certifying agent, in accordance with §§ 205.401 and 205.405(e). When such applicant submits a new application to a certifying agent other than the agent who issued the notification of noncompliance or notice of denial of certification, the applicant for certification must include a copy of the notification of noncompliance or notice of denial of certification and a description of the actions taken, with supporting documentation, to correct the noncompliances noted in the notification of noncompliance.
( f ) A certifying agent who receives a new application for certification, which includes a notification of noncompliance or a notice of denial of certification, must treat the application as a new application and begin a new application process pursuant to § 205.402.
( g ) Notwithstanding paragraph (a) of this section, if a certifying agent has reason to believe that an applicant for certification has willfully made a false statement or otherwise purposefully misrepresented the applicant's operation or its compliance with the certification requirements pursuant to this part, the certifying agent may deny certification pursuant to paragraph (c)(1)(ii) of this section without first issuing a notification of noncompliance.
[65 FR 80637, Dec. 21, 2000, as amended at 88 FR 3624, Jan. 19, 2023]