UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

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In re: 

Gem Empacadora 

Tierra Verde S de RL of CV, Administrator’s Decision 

Dba Green Earth Produce 

Coatepec, Harinas, Mexico APL-043-20 

This Decision responds to an appeal (APL-043-20) of a Notice of Noncompliance and 

Proposed Suspension of National Organic Program certification issued to Gem Empacadora 

Tierra Verde S de RL of CV, dba Green Earth Produce (Tierra) of Coatepec, Harinas, Mexico, 

by Organic Crops Improvement Association (OCIA). The operation has been deemed not in 

compliance with the Organic Foods Production Act of 1990 (Act)1 and the U.S. Department of 

Agriculture (USDA) organic regulations.2 

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 C.F.R. Part 205). Certifying 

agents also initiate compliance actions to enforce program requirements, as described in section 

205.662, Noncompliance procedure for certified operations. Persons subject to the Act who 

1

 7 U.S.C. 6501-6522 

2

 7 C.F.R. Part 205 

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believe they are adversely affected by a noncompliance decision of a certifying agent may appeal 

such decision to the USDA Agricultural Marketing Service (AMS) pursuant to §205.680 

Adverse Action Appeals Process – General, and §205.681, Appeals of the USDA organic 

regulations. 

FINDINGS OF FACT 

1. Tierra was initially certified organic for crops and handling on October 22, 2018. 

2. On February 6, 2020, OCIA issued a Notice of Noncompliance and Proposed Suspension. 

3. On February 17, 2020, OCIA issued a Notice of Mediation Rejection to Tierra’s request for 

mediation. 

4. On March 23, 2020, Tierra filed an Appeal. 

DISCUSSION 

The USDA organic regulations at 7 C.F.R. 205.102, Use of the term, “organic,” state that, 

“Any agricultural product that is sold, labeled, or represented as “100 percent organic,” 

“organic,” or “made with organic (specific ingredients or food group(s))” must be: (a) Produced 

in accordance with the requirements specified in §205.101 or §§205.202 through 205.207 or 

§§205.236 through 205.240 and all other applicable requirements of part 205; and (b) Handled in 

accordance with the requirements specified in §205.101 or §§205.270 through 205.272 and all 

other applicable requirements of this part 205.” 

The organic regulations at §205.103, Recordkeeping by certified operations, state that, 

“(a) A certified operation must maintain records concerning the production, harvesting, and 

handling of agricultural products that are or that are intended to be sold, labeled, or represented 

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as “100 percent organic,” “organic,” or “made with organic (specified ingredients or food 

group(s)); (b) Such records must: (1) Be adapted to the particular business that the certified 

operation is conducting; (2) Fully disclose all activities and transactions of the certified operation 

in sufficient detail as to be readily understood and audited;...(4) Be sufficient to demonstrate 

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

The organic regulations at §205.105, Allowed and prohibited substances, methods, and 

ingredients in organic production and handling, state that, “To be sold or labeled as “100 percent 

organic,” “organic,” or “made with organic (specified ingredients or food group(s)),” the product 

must be produced and handled without the use of: (a) Synthetic substances and ingredients, 

except as provided in §205.601 or §205.603; (b) Nonsynthetic substances prohibited in §205.602 

or §205.604...” 

The organic regulations at §205.201, Organic production and handling system plan, state 

that, “(a) The producer or handler of a production or handling operation, except as exempt or 

excluded under §205.101, intending to sell, label, or represent agricultural products as “100 

percent organic,” “organic,” or “made with organic (specified ingredients or food group(s))” 

must develop an organic production or handling system plan that is agreed to by the producer or 

handler and an accredited certifying agent. An organic system plan must meet the requirements 

set forth in this section for organic production or handling. An organic production or handling 

system plan must include: (1) A description of practices and procedures to be performed and 

maintained, including the frequency with which they will be performed; (2) A list of each 

substance to be used as a production or handling input, indicating its composition, source, 

location(s) where it will be used, and documentation of commercial availability, as applicable; 

(3) A description of the monitoring practices and procedures to be performed and maintained, 

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including the frequency with which they will be performed, to verify that the plan is effectively 

implemented; (4) A description of the recordkeeping system implemented to comply with the 

requirements established in §205.103; (5) A description of the management practices and 

physical barriers established to prevent commingling of organic and nonorganic products on a 

split operation and to prevent contact of organic production and handling operations and 

products with prohibited substances; and (6) Additional information deemed necessary by the 

certifying agent to evaluate compliance with the regulations.” 

The organic regulations at §205.202, Land requirements, state that, “Any field or farm 

parcel from which harvested crops are intended to be sold, labeled, or represented as “organic,” 

must: (a) Have been managed in accordance with the provisions of §§205.203 through 205.206; 

(b) Have had no prohibited substances, as listed in §205.105, applied to it for a period of 3 years 

immediately preceding harvest of the crop...” 

The organic regulations at §205.270, Organic handling requirements, state that, “...(c) 

The handler of an organic handling operation must not use in or on agricultural products 

intended to be sold, labeled, or represented as “100 percent organic,” “organic,” or “made with 

organic...” or in or on any ingredients labeled as organic: (1) Practices prohibited under 

paragraphs (e) and (f) of §205.105.” 

The organic regulations at §205.272, Commingling and contact with prohibited substance 

prevention practice standard, state that, “(a) The handler of an organic handling operation must 

implement measures necessary to prevent the commingling of organic and nonorganic products 

and protected organic products from contact with prohibited substances.” 

The organic regulations at §205.400, General requirements for certification, state that, “A 

person seeking to receive or maintain organic certification under the regulations in this part must: 

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(a) Comply with the Act and applicable organic production and handling regulations in this 

part...(f) Immediately notify the certifying agent concerning any: (1) Application, including 

drift, of a prohibited substance to any field, production unit, site, facility, livestock, or product 

that is part of an operation...” 

OCIA proposed a suspension of Tierra’s certification, stating that the December 2, 2019 

unannounced inspection revealed numerous noncompliances in Tierra’s operation, including the 

use of a prohibited substance on its crops, handling products for which it isn’t certified, and 

commingling organic and conventional products. 

In its Appeal, Tierra objects to the unannounced inspection; states that it has operating 

procedures for the receipt of organic products; will establish traceability procedures; obtain 

organic certificates for all products; and maintain all required records. 

Documentation substantiates that OCIA conducted an unannounced inspection of Tierra’s 

operation on December 2, 2019 and found many noncompliances. The inspector sampled 

Tierra’s tomato grape crop in Lot GEM 2B, and subsequent testing at Primus Labs revealed the 

presence of the insecticide Imidacloprid at 0.13 ppm as seen on the laboratory report of 

December 11, 2019. The Environmental Protection Agency (EPA), which sets limits on the 

amount of chemicals allowed on an agricultural product, set the tolerance level for Imidacloprid 

at 1.0 ppm. Five percent of that tolerance is 0.05 ppm. Therefore, the finding of the substance at 

0.13 ppm on Tierra’s tomato grape crop sample exceeds the level above which a product must 

not be sold, labeled or represented as organic. 

The inspection report documents that the inspector observed organic and conventional 

products being received and stored in the same area. However, Tierra’s Crop Production 

Overview within its Organic System Plan of October 7, 2019, states that Tierra is an organicPage 5 of 9 
 

 

 

 

 

 

 

 

only operation, and its organic certificate only allows for processing of its own organic crops. 

However, the inspector observed Tierra’s staff packing and labeling as organic the saladette 

tomatoes and brussel sprouts received from an external operation, and Tierra did not produce an 

organic certificate for the supplier. 

OCIA stated that Tierra doesn’t have field crops for these 2 commodities; however, 

Tierra’s Annual Summary of Organic Production and Sales of October 7, 2019, and the list of 

products for which certification was requested, does include saladette tomatoes. However, while 

the Annual Summary lists the saladette tomoatoes as 

(b) (4)

, the list of products for which 

certification is requested lists the acreage as 

(b) (4)

. Therefore, while Tierra does have field 

crops for saladette tomatoes, the acreage is uncertain. Also, brussel sprouts are seen on the List 

of Products for which Certification was requested and are mentioned on the Crop Post Harvest 

Handling document of October 7, 2019 but are not on the Annual Summary. Therefore, OCIA 

erred in stating in the Notice of Noncompliance and Proposed Suspension that Tierra doesn’t 

have field crops for those 2 commodities, though the inspector observed these same commodities 

obtained from another source being packed. The inspector also observed jalapeño products in 

greater quantities than Tierra’s jalapeño crops could produce. However, while the Annual 

Summary shows only 

(b) (4)

 of jalapeno peppers, OCIA didn’t provide any specific 

information on the quantity of jalapeno observed during the inspection. Therefore, OCIA’s 

contention regarding jalapeno production cannot be substantiated. 

The inspector also found that Tierra didn’t maintain facility or equipment cleaning 

records, and the facility wasn’t clean, with insects and vegetable remains seen on the floor. The 

raw materials door also wasn’t kept closed. The inspector found Tierra’s ‘flow chart’ doesn’t 

show any cleaning practices, though Tierra was also found to be handling conventional products. 

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There were also insufficient records to conduct an appropriate audit trail and mass balance 

exercise; and Tierra has continued to use an unreadable OCIA seal on its products. The 

inspector further noted that Tierra’s staff didn’t show an understanding of organic regulations, 

weren’t aware of the importance of crop rotation, and although Tierra had conducted training on 

Good Agricultural Practices, there hasn’t been staff training on organic practices. 

In its Appeal, Tierra objected to the unannounced inspection stating that it wasn’t 

scheduled. However, that is the nature of an unannounced inspection, which are ‘surprise’ visits 

and not scheduled with the operation. Tierra also stated it has submitted the noted 

documentation to OCIA; has operating procedures for receiving organic products; will maintain 

all required records; will establish traceability and tracking procedures; and will obtain the 

organic certificates for all received products. However, Tierra didn’t submit any documentation 

or details on these actions/proposed actions. Further, Tierra’s statement that it will take these 

corrective actions substantiates that they weren’t in place at the time of the inspection upon 

which the Notice of Noncompliance and Proposed Suspension was based. Tierra also failed to 

provide any possible explanation for the finding of a prohibited substance on its tomato grape 

crop. It is noted that subsequently on June 19, 2020, Tierra notified OCIA that it is surrendering 

its organic certification, which was acknowledged by OCIA. 

In conclusion, evidence substantiates that a prohibited substance was found to have been 

applied on Tierra’s tomato grape crop. While OCIA’s allegation regarding the volume of 

jalapeno peppers wasn’t substantiated, Tierra, in effect, admitted not maintaining the cited 

records when Tierra stated that it would do so in the future. The collective nature of the 

noncompliances demonstrates an overall failure to comply, justifying the combined notice of 

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noncompliance and proposed suspension. Further, Tierra states it is surrendering its 

certification; though, operations can’t avoid adverse actions by surrendering certification. 

CONCLUSION 

The USDA organic regulations assure consumers that products with the USDA organic 

seal meet consistent, uniform standards. Key to these standards is that products with the USDA 

organic seal are produced and handled in accordance with the organic regulations. However, 

Tierra violated the organic regulations at 7 C.F.R. §205.102; 7 C.F.R. §205.103; 7 C.F.R. 

§205.105; 7 C.F.R. §205.201; 7 C.F.R. §205.202; 7 C.F.R. §205.270; 7 C.F.R. §205.272; and 7 

C.F.R. §205.400. These noncompliances do not allow for continued certification. OCIA’s 

issuance of a combined Notice of Noncompliance and Proposed Suspension was justified 

because the scope of the noncompliances indicates there has been a noncorrectable, systemic 

failure of Tierra’s overall organic system. 

DECISION 

The Appeal is denied, and the February 6, 2020 Notice of Noncompliance and Proposed 

Suspension is affirmed. Tierra’s organic certification is to be suspended for 3 years from the 

date of the last sampling for which prohibited substances were found, namely December 2, 2019. 

Barring the interim use of prohibited substances on the land or crops, Tierra’s operation will be 

eligible to apply for reinstatement of organic certification on December 1, 2022. In addition, 

Tierra may not sell, represent, or label its agricultural products as organic. 

Attached to this formal Administrator’s Decision denying Tierra’s Appeal is a Request 

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

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_________________________________ 

Administrative Law Judge. If Tierra waives the hearing, the Agricultural Marketing Service will 

direct OCIA to issue a Notice of Suspension. After the end of the 3-year suspension on 

December 1, 2022, Tierra may, pursuant to 7 C.F.R. 205.662(g), submit a request to the 

Secretary for reinstatement of its certification. 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 _____ 

day of ________________, 2020 

BRUCE Digitally signed by BRUCE 

SUMMERS 

SUMMERS Date: 2020.07.26 20:54:09 -04'00'

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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