Bolicert that it conducted training for its producers on the use of prohibited substances, which
Bolicert confirmed. Bolicert also claims it has provided training to its staff on the timely
issuance of notices of adverse action, and a translator was present during the training to translate
for the Spanish-speaking staff.

Regarding the second outstanding noncompliance, Bolicert states that it involved a new
operator, Santa Teresa, which applied for certification in March 2015. Bolicert conducted the
inspection, found one noncompliance, and Santa Teresa signed a “commitment letter’ to resolve
the noncompliance. Based on this, Bolicert approved Santa Teresa for organic certification.
However, the following year, Santa Teresa requested renewal of its certification, but failed to
submit any updated documentation or the certification fee as required in the USDA organic
regulations for continuation of certification. Bolicert states that it issued a noncompliance
notification, and when Santa Teresa didn’t respond in the stated thirty days, or to Bolicert’s
subsequent emails, Bolicert issued a proposed suspension of certification, Bolicert states Santa
Teresa.claimed not to know whom to send the requested information and fee, but their
communication problems have been resolved. Bolicert states it has assigned one person, an
administrative assistant, to track each document so the status of each operation can be easily
determined, and they use ‘visual exposure strategies,” specifically the NOP Noncompliance and
Adverse Action Flowchart.

In its appeal, Bolicert submitted a December 2017 procedure manual entitled,
“Certification System for Organic Operations,” addressing such matters as conducting exit
interviews with operations, providing the inspection report to operations, and retaining
inspection and related records for ten years, The manual also has sections on procedures for

addressing noncompliances of operations, the issuance of notices of noncompliances, and the


suspension of accreditation from the NOP. The NOP has attempted to work with Bolicert to
become compliant and maintain compliance with the accreditation requirements; however,
Bolicert has also breached settlement agreements entered into with NOP. Bolicert has
demonstrated systemic and repeated violations of the organic regulations. Therefore, AMS finds
that the NOP’s November 6, 2017 Notice of Proposed Suspension of Accreditation was
appropriate.

DECISION

The appeal is denied and Bolicert’s organic accreditation is to be suspended for one year.
Attached to this formal Administrator’s Decision is a Request for Hearing form. Bolicert has
thirty days to request an administrative hearing before an Administrative Law Judge. If Bolicert
does not request a hearing in that period, this Decision will be implemented and the NOP will
suspend Bolicert’s organic accreditation.

In accordance with §205.665(g)(1) of the USDA organic regulations, “A certifying agent
whose accreditation is suspended by the Secretary under this section may at any time, unless
otherwise stated in the notification of suspension, submit a request to the Secretary for
reinstatement of its accreditation. The request must be accompanied by evidence demonstrating
correction of each noncompliance and corrective actions taken to comply with and remain in

compliance with the Act and the regulations in this part.”

Done at Washington, D.C., on this yt N
day of Septem be— » 2018.

jp

Bruce Summers
Administrator
Agricultural Marketing Service



issue notices of noncompliance to the operations, despite being notified by inspectors of issues of
concern with operations it certified.

The second outstanding noncompliance referred to USDA organic regulations at
§ 205.662 which states at paragraph (c), “Proposed suspension or revocation. When rebuttal is
unsuccessful or correction of the noncompliance is not completed within the prescribed time
period, the certifying agent of State organic program’s governing State official shall send the
certified operation a written notification of proposed suspension or revocation of certification of
the entire operation or a portion of the operation, as applicable to noncompliance...” NOP stated
in the Assessment Report that Bolicert hasn’t been issuing proposed adverse actions to their
certified operations when said operations fail to meet deadlines for submitting corrective actions
or rebuttals. NOP cited to a case where Bolicert merely de-certified an operation for not
providing an annual update and payment of fees, rather than following the sequential
noncompliance procedures provided in the USDA organic regulations. These procedures require
a notice of noncompliance, before finalizing an adverse certification decision.

In the appeal, Bolicert states that it has addressed all nine noncompliances but admitted
that it didn’t explain the corrective actions well and didn’t submit all requested documentation.
Bolicert states it has corrected problems which led to the noncompliances and no longer makes
such mistakes. Bolicert reports that it follows the USDA organic regulations, and that NOP will
be able to “check all of this on the next audit.”

Specifically addressing the first outstanding noncompliance noted by NOP, Bolicert
states it has sent a notification of noncompliance to operator El Ceibo about three of their
producers using prohibited substances. It hadn’t done so previously because the three producers

had already lost their organic status. Bolicert states that El Ceibo responded and informed


suspension or revocation of operations’ certification. Additional documents submitted with the
appeal include several letters to and from Bolicert, allegedly from and to operations; but all the

documents are in Spanish and no translation was provided. Registers for staff training on April
21, 2017, and certification decision staff training on September 23, 2017, show the attendees of
training on adverse actions.

The appeal admits fault in the handling of noncompliances discovered at operations
certified by Bolicert, and the issuance of needed adverse action notifications. Further, although
Bolicert issued a belated adverse action notification to operation El Ceibo, in response to an NOP
finding of noncompliance, the NOP Assessment Report sent with the Notice of Proposed *
Suspension of Accreditation lists several examples of failures to issue notices of noncompliance
and notices of proposed adverse action when these were warranted. Bolicert also discussed the
Santa Teresa operation in its appeal, but has not clearly resolved the situation that led to the
operation’s certification being suspended for not providing an annual update or payment of fees
without first issuing a notice of noncompliance.. Bolicert merely stated that it has designated an
administrative assistant to keep track of documentation and uses the NOP Noncompliance and
Adverse Action Flowchart.

Bolicert has a long history of noncompliances. This includes incomplete, insufficient and
delayed efforts to correct multiple noncompliances identified by the NOP and failing to uphold
two settlement agreements with the NOP. Bolicert has repeatedly failed to correct the recurrent
noncompliances and continues to have unresolved noncompliances. Bolicert’s noncompliances
are systemic; the repeated findings of noncompliance and insufficient corrective actions
demonstrate an inability to implement the USDA organic regulations in practice.

These noncompliances date back to 2011. A review of NOP files shows that the 2011


UNITED STATES DEPARTMENT. OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE

BEFORE THE ADMINISTRATOR

Administrator’s Decision
APL-011-18

In re:
Boliviana de Certificacion
La Paz, Bolivia

Veen

This Decision responds to an appeal (APL-011-18) of a Notice of Proposed Suspension
of Accreditation issued to Boliviana de Certificacién by the U.S. Department of Agriculture
(USDA), Agricultural Marketing Service (AMS), National Organic Program (NOP). The
certifier has been deemed not in compliance with the Organic Foods Production Act of 1990

(Act)! and the U.S. Department of Agriculture organic regulations.”

BACKGROUND

The Act authorizes the Secretary to accredit agents to certify crop, livestock, wild crop,
and handling operations pursuant to the USDA organic regulations (7 C.F.R. Part 205).

Accreditation of certifying agents is done by the NOP, which also initiates compliance actions to

enforce program requirements. Noncompliance procedures for certifying agents are set forth in
§205.665 of the USDA organic regulations. Persons subject to the Act who believe that they are

adversely affected by a noncompliance decision of the NOP may appeal such decision to the

17 U.S.C. 6501-6522
27 C.F.R. Part 205



mid-term accreditation assessment found Bolicert wasn’t compliant with a mimber of
accreditation requirements. After Bolicert was unable to submit acceptable corrective and
preventive actions, NOP issued a Notice a Proposed Suspension of Accreditation on January 4,
2013. An accompanying proposed settlement agreement was executed on January 11, 2013.
However, the 2014 accreditation renewal assessment found that two settlement terms were
outstanding and there were eight new non-compliances. NOP issued a June 16, 2015 Notice of
Proposed Suspension of Accreditation. NOP issued a Second Notice of Proposed Suspension on.
February 8, 2016, when Bolicert failed to successfully respond to a January 12, 2016 Notice of
Noncompliance. Bolicert filed appeals to both notices (APL-026-15 and APL-010-16). On May
24, 2016, Bolicert and AMS entered into a settlement agreement to resolve both the notices of
proposed suspension. However, Bolicert had failed to meet the terms of the settlement agreement
by September 2, 2016, and hence, AMS pursued administrative action against Bolicert. The
Administrator’s Decision was issued October 7, 2016, (APL-026b-15) suspending Bolicert’s
accreditation for one year. Bolicert requested an administrative hearing on October 13, 2016; the

hearing is still pending. This new decision does not address these prior actions, as they are being

addressed through a separate administrative complaint process.

CONCLUSION
As an accredited certifying agent, Bolicert must demonstrate the ability to fully comply
with the requirements for accreditation set forth in the organic regulations. The record
demonstrates that Bolicert has consistently failed to demonstrate compliance with the

regulations, resulting in a succession of notices of noncompliance and notices of proposed


AMS Administrator, pursuant to §205.680 Adverse Action Appeals Process — General, and

§205.681, Appeals of the USDA organic regulations.

FINDINGS OF FACT

1. Boliviana de Certificacién (Bolicert), based in La Paz, Bolivia, has been a USDA-accredited
certifying agent since March 13, 2003.

2. On January 19-20, 2017, the NOP conducted an onsite mid-term assessment audit of
Bolicert.

3. On May 25, 2017, the NOP completed a Noncompliance Report detailing nine
noncompliances resulting from the January 2017 on-site audit.

4. On June 9, 2017, the NOP issued a Notice of Noncompliance to Bolicert, listing the nine
noncompliances identified during the January 2017 mid-term audit. The notice required that
corrective actions, which indicate how the noncompliances will be corrected and how the
management system will be modified to prevent a recurrence of the noncompliances, would
need to be submitted within thirty days.

5. On July 11, 2017, Bolicert submitted corrective actions. NOP found them to be insufficient.
The NOP requested clarification and provided additional time, until September 8, 2017, to
provide sufficient corrective actions. Bolicert submitted additional corrective action
information to the NOP on September 8, 2017.

6. On November 6, 2017, NOP issued a Notice of Proposed Suspension of Accreditation to
Bolicert for two outstanding noncompliances. The unresolved noncompliances were related
to Bolicert’s failure to issue proposed adverse actions and notices of noncompliance to

operations they certified, when issues were identified with the operations and/or when said


operations missed deadlines for submitting corrective actions or rebuttals.

7. The NOP’s November 7, 2017 Assessment Report of Bolicert, which accompanied the
Notice of Proposed Suspension of Accreditation, noted that seven of the nine
noncompliances had been addressed and NOP had accepted Bolicert’s corrective
actions/rebuttals for those noncompliances. There were two remaining outstanding
noncompliances.

8. On December 5, 2017, Bolicert filed an Appeal to the Notice of Proposed Suspension of

Accreditation.

DISCUSSION

The NOP proposed suspending Bolicert’s accreditation for a period of one year. The
Notice of Proposed Suspension of Accreditation (“Notice”) stated that despite NOP giving
Bolicert several opportunities to submit adequate corrective actions for nine previously-noted
noncompliances, two of the noncompliances remain outstanding. The Notice referenced an
Assessment Report, which detailed all nine noncompliances, noting the resolution of seven, and
providing details on the two outstanding noncompliances upon which the proposed suspension of
accreditation is based.

The first outstanding noncompliance is in reference to the USDA organic regulations at 7
C.E.R. § 205.662, Noncompliance procedure for certified operations, which states that, “(a)
Notification. When an inspection, review, or investigation of a certified operation by a certifying
agent or a State organic program’s governing State official reveals any noncompliance with the
Act or regulations in this part, a written notification of noncompliance shall be sent to the

certified operation.” NOP cited in the Assessment Report several cases in which Bolicert didn’t