documented soil deficiency; however, the soil nutrient information is not relevant, given the
larger prohibited substance issue. If soil analyses showed that Buena Tierra adequately
documented a soil deficiency before applying the micronutrient, the presence of a prohibited

substance would still lead to the suspension.

CONCLUSION
Though Buena Tierra submitted an argument to support its appeal, its argument is
without merit, because the substance that was applied is prohibited under the USDA organic
regulations. As a result of applying a prohibited substance, calcium oxide, four (4) of Buena
Tierra’s fields, A, B, D, and F, are not yet in full compliance with §205.105 and, therefore,

§205.202(b), Land requirements.

DECISION

The appeal is denied and TDA’s combined Notice of Noncompliance and Proposed

Partial Suspension is upheld. Buena Tierra’s organic certification is partially suspended for

fields A, B, D, and F for three (3) years from the date of substance application.

Attached to this formal Administrator’s Decision denying Buena Tierra’s appeal is a

Request for Hearing form. Buena Tierra has thirty (30) days to request an administrative hearing

before an Administrative Law Judge.

Done at Washington, D.C., on this ZF
day of Aa vEpnBER_, 2015.

Ree aA Pear

Rex A. Barnes

Associate Administrator


UNITED STATES DEPARTMENT OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE

BEFORE THE ADMINISTRATOR
In re: ) Administrator’s Decision
Buena Tierra ) APL-020-15

This Decision is in response to an appeal (APL-020-15) of a combined Notice of
Noncompliance and Proposed Partial Suspension to a certified organic crop producer, Buena
Tierra, by its United States Department of Agriculture (USDA) accredited certifying agent Texas
Department of Agriculture (TDA). The operation was deemed not in compliance with the

Organic Foods Production Act of 1990! and the USDA organic regulations,”

BACKGROUND

The Act authorizes the Secretary to accredit agents to certify crop, livestock, wild crop,
and/or handling operations to the USDA organic regulations (7 CFR Part 205). Certifying agents
also initiate compliance actions to enforce program requirements. Noncompliance procedures are
described in §205.662, Noncompliance procedure for certified operations, of the USDA organic
regulations. Persons subject to the Act who believe that they are adversely affected by a
noncompliance decision of a certifying agent may appeal such decision to the Administrator of
the Agricultural Marketing Service (AMS), USDA, pursuant to §205.680, Adverse Action

Appeal Process — General, and §205.681, Appeals, of the USDA organic regulations.

17U.S.C, 6501-6522
27 CER. Part 205


FINDINGS OF FACT

1, TDA is USDA-accredited certifying agent, first accredited on April 29, 2002.

2. On May 8, 2015, TDA issued its client, Buena Tierra, a certified organic crop producer, a
combined Notice of Noncompliance and Proposed Partial Suspension. The notice was
issued because TDA identified that a micronutrient mix containing a prohibited substance
had been applied to four (4) of Buena Tierra’s fields. TDA also identified that the
micronutrient mix was applied without a documented soil deficiency, which is a required
precondition for applying micronutrients. These noncompliances were classified as non-
correctable.

3. On June 8, 2015, the AMS Administrator received an appeal from Buena Tierra, which

was accepted as timely.

DISCUSSION

TDA has issued a combined Notice of Noncompliance and Proposed Partial Suspension
to Buena Tierra, a certified organic crop producer. No products from the suspended portion of an
operation can be sold, labeled, or represented as organic. The suspended fields will be eligible
for certification three years after prohibited substance application.

In its May 8, 2015, Combined Notice of Noncompliance and Proposed Partial
Suspension, TDA cited Buena Tierra for using a micronutrient (manganese) mix that contained a
prohibited substance, calcium oxide, on four (4) fields of certified organic land. TDA also cited
Buena Tierra for applying a micronutrient to certified organic land without a documented soil

deficiency, a condition for using micronutrients. TDA listed the following regulatory violations:


§205.105(a), Allowed and prohibited substances... in organic production, and §205.601 ()(6)(ii),
Synthetic substances allowed in organic production, as plant or soil amendments.

In its appeal, Buena Tierra admitted use of the manganese micronutrient mix on four of
its fields; it also stated it used a boron micronutrient nix Bo the same four fields. It
stated that it did not adequately check the product labels before applying the product to the
fields; but acknowledged that each micronutrient mix included calcium oxide, prohibited for use
in organic crop production, in the ingredient list of the manufacturer’s Material Safety Data
Sheet (MSDS).

Buena Tierra’s appeal argued two points. First, it stated that another USDA-accredited
certifying agent had indicated it would approve the micronutrient mixes with calcium oxide
because the certifier believed the calcium oxide was an impurity, not an ingredient. Second,
Buena Tierra argued that “a Supporting Documentation page from our °05 or ’06 renewal... lists
both a: (boron) and Zn (zinc), so TDA has been aware of the fact that we used i]
products since at least ’06 and never made a comment until sending us the Proposed
Suspension.”

Buena Tierra did not submit evidence to support its claims. For example, no evidence
was submitted to support the argument that calcium oxide in the mixes is an impurity rather than
an independently added ingredient; and it did not submit any supporting documentation
indicating that TDA had previously approved the substance. Buena Tierra did submit records for
fields A, B, D, and F for 2012 and 2013 years, confirming the manganese micronutrient was
applied.

Buena Tierra also provided soil analyses for fields proposed for suspension, in response

to TDA citing a noncompliance for applying a micronutrient to organic land without a