“

The organic regulations at 7 C.F.R. 205.406, Continuation of certification, state that in
order for a certified operation to continue certification, it must submit to the certifying agent any
update on the correction of minor noncompliances previously identified by the certifying agent
as being required for continued certification, and other information deemed necessary by the
certifying agent to determine the certified operation’s compliance with the Act and the USDA
organic regulations.

On January 2, 2018, OCIA proposed a suspension of Cross’ organic certification, which
would prohibit the sale, labeling, or representation of its products as organic. Presenting the
reasons for proposing a suspension, OCIA stated that Cross failed to maintain livestock audit
trail records as required by USDA organic regulations at § 205.103, as well as other livestock
records; and failed to meet the terms of a pre-existing settlement agreement, which required the
timely and complete submission of certification documents, thus violating USDA organic

~ regulations at § 205.406.

Addressing Cross’ failure to maintain livestock audit trail records, OCIA stated that at the
June 2017 inspection, Cross did not present livestock production records, including feeding
records, pasture movement/grazing records, and health/vaccination records for review. Further,
although Cross responded to the November 2017 Notice of Noncompliance, which was issued in
regard to the inspection findings, Cross’ response still showed deficiencies in recordkeeping.
Specifically, there was no evidence that Cross maintained complete feeding records or health and
vaccination records, as only pregnancy check and calving records were submitted, which also
revealed another noncompliance in that calves were given the same ID tag number as their

mothers. Further, the DMI information and calculation worksheets and the Livestock OSP still

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documentation or actions to resolve the noncompliances, Cross has been unable to fully come
into compliance and adequately address all the noncompliances raised by OCIA.
CONCLUSION

The availability of complete and coherent records for certifiers and inspectors is a basic
requirement for organic certification and is essential to oversight. Failure to maintain or make
available necessary documents precludes a certifier from verifying that practices throughout the
handling cycle comply with the USDA organic regulations.

Cross has shown an inability to comply with recordkeeping requirements and respond
sufficiently to the OCIA’s specific requests for documentation, despite OCIA giving Cross
several opportunitiés to do so, and Cross agreeing in a September 16, 2016 Settlement
Agreement to submit requested documentation to OCIA by or before deadlines set by OCIA.
Therefore, Cross is found to be violation of the Act and the USDA organic regulations,
specifically the recordkeeping provisions at § 205.103, and continuation of certification

requirements at § 205.406.

DECISION
‘The appeal is denied and Cross is to be suspended. Attached to this formal
Administrator’s Decision denying Cross’ appeal is a Request for Hearing form. Cross has thirty
(30) days to request an administrative hearing before an Administrative Law J udge.
If Cross waives the hearing, the Agricultural Marketing Service will direct OCIA to issue
a Notice of Suspension. At any time after suspension, Cross may, “...submit a request to the

Secretary for reinstatement of its certification. The request must be accompanied by evidence

Page 8 of 9


11.

12.

13.

items described in the Notice of Noncompliance by the given deadline (7 C.F.R.
205.406). Therefore, OCIA stated that it was re-instating the 2016 Notice of Proposed
Suspension (Exhibit 11).

On January 29, 2018, Cross submitted a mediation request (Exhibit 12) to OCIA along
with livestock records, including herd health information; bangs vaccination information;
ID numbers for replacement heifers; updated DMI sheets; and also submitted a Prior
Land Use Affidavit (PLUA) for land in transition to organic production, with maps and a
field history. Cross also submitted maps, a Prevention of Commingling and
Contamination form; a Certification Renewal Application dated December 2016; and
what appears to be a feed ‘diary.’ (Exhibit 10)

On February 8, 2018, OCIA denied Cross’ request for mediation, noting Cross’ continued
failure to submit requested documentation and Cross’ breach of the September 16, 2016
Settlement Agreement (Exhibit 13).

On March 1, 2018, AMS received Cross’ appeal to OCIA’s Notice of Proposed

Suspension. (Exhibit 14).

DISCUSSION

The organic regulations at 7 C.F.R. 205.103, Recordkeeping by certified operations, state

that 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
as organic. The records must fully disclose all activities and transactions of the certified
operation in sufficient detail as to be readily understood and audited; and be sufficient to

demonstrate compliance with the Act and the regulations.

Page 4 of 9


did not match, and the feed ration forms did not consistently show the season in which a feed is
provided or the amount provided per animal, or provide a specific date range for pasture access.
OCIA’s November 2017 Notice of Noncompliance had also listed the additional

information needed to finalize a certification decision on Cross. However, OCIA found that
Cross did not timely submit all information requested, as Cross had agreed to do in the
September 2016 Settlement Agreement. Cross had not successfully corrected or rebutted the
noncompliances, and while Cross provided some of the requested information, other items were
not addressed at all. Further, Cross’ OSP had not been revised to identify what equipment is
used on non-organic acreage and the current storage areas. Therefore, OCIA issued the Notice
of Proposed Suspension on January 2, 2018, and subsequently denied Cross’ request for °
mediation.

Cross stated in the Appeal that livestock audit trail records were not available at the June
2017 inspection due to unforeseen circumstances; however, they have since been provided to
OCIA, including feeding, pasture movement/grazing, and health vaccination records; and
additionally the DMI records were updated. Cross also claims that individual signing the PLUA
overlooked a section on the form, but it had been updated and no seed treatments were used on
the associated land.

Cross submitted numerous documents with the mediation request to OCIA and with the
appeal to AMS (Exhibit 10); though an inventory of the documents revealed that the same
documentation was supplied for both submissions. Most of said documentation had also been
submitted with Cross’ response to the prior Notice of Noncompliance, with the possible
exception of a DMI Calculation Worksheet submitted with the appeal. AMS sent this latter

document (Exhibit 15) to OCIA, and asked OCIA to determine if it addressed any of the

Page 6 of 9


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_2@ € “
day of “Sune , 2018.

Bruce Summers
Administrator
Agricultural Marketing Service

Page 9 of 9


UNITED STATES DEPARTMENT OF AGRICULTURE

AGRICULTURAL MARKETING SERVICE

BEFORE THE ADMINISTRATOR
)
Tn re: )
Joel Cross ) Administrator’s Decision
Harrisburg, Nebraska ) APL-024-18
)

This Decision responds to an appeal (APL-024-18) of a Notice of Proposed Suspension
of National Organic Program certification issued to Joel Cross of Harrisburg, Nebraska, by the
Organic Crop Improvement Association. The operation has been deemed not in compliance
with the Organic Foods Production Act of 1990 (Act)! and the U.S. Department of Agriculture
(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 C.F.R. Part 205). Certifying
agents also initiate compliance actions to enforce programm requirements, as described in
§ 205.662, Noncompliance procedure for certified operations. Persons subject to the Act who
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.

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

Page 1 of 9



noncompliances cited as the basis for the January 2018 Notice of Proposed Suspension. OCIA
replied that the DMI Calculation Worksheet was insufficient, because it did not properly address
the grazing season and because it listed feed for the entire year, treating the grazing season as
year round, when it is not year-round in practice. Further, the information on the Worksheet
does not match the information in the ration tables of the Livestock OSP in regard to the amounts
fed to various classes of livestock. (Exhibits 16 and 17) Despite Cross’ documentation
submissions with the mediation request and the appeal, numerous specific requests remain
unaddressed.

Additionally, during the pendency of the appeal, OCIA submitted to AMS a Pre-
Inspection Report issued on May 8, 2018, detailing several findings from OCIA’s review of
Cross’ 2018 certification renewal application. For example, there was conflicting information
within Cross’ records on the use of equipment and storage units; additional fields and/or acreage
added to existing fields which were not previously disclosed; a feed table showing uncertified
wheat straw; and a pasture map lacking information. There were also additional recordkeeping
discrepancies as well as missing information (Exhibit 18).

The record in this case shows a continual stream of noncompliances by Cross dating back
to the spring of 2016, when OCIA found that Cross failed to submit a complete application for
continuation of its organic certification. OCIA and Cross entered into a settlement agreement on
September 16, 2016, in an attempt to resolve the noncompliances, and Cross agreed, as part of
the terms of that settlement agreement, to answer all future requests from OCIA on or before
deadlines set by OCIA. However, the routine annual inspection of June 2017 showed continued
deficiencies in Cross’ recordkeeping in several areas; and although the November 2017 Notice of

Noncompliance and January 2018 Notice of Proposed Suspension specifically identify required

Page 7 of 9


FINDINGS OF FACT

. Organic Crop Improvement Association (OCIA) is an accredited certifying agent under
the USDA organic regulations, Joel Cross (Cross) of Harrisburg, Nebraska, is certified
for crops and livestock under the USDA organic regulations. (Exhibit 1).

. On September 30, 2015, OCIA issued a Notice of Noncompliance for Cross’ failure to
pay the 2014 “acreage fees” and 2015 certification fees, despite numerous contacts by
OCIA (Exhibit 2).

. In May 2016, OCIA offered Cross a Settlement Agreement, whereby Cross would agree
to submit a complete application for continuation of certification by May 20, 2016. Cross
signed the Settlement Agreement; however, due to an oversight, the Agreement was
never counter-signed by OCIA with a fully executed copy being sent to Cross (Exhibit 3).
. On June 2, 2016, OCIA issued a Notice of Noncompliance for Cross’ failure to submit
the 2016 certification materials and fees (Exhibit 4).

. On July 11, 2016, OCIA issued a Notice of Proposed Suspension after reviewing Cross’
certification application and finding that Cross failed to adequately meet the terms of the
May 2016 Settlement Agreement, because there was missing documentation in the
application for certification. OCIA did not realize at that time that it never executed the
Agreement (Exhibit 5).

. On September 16, 2016, OCIA and Cross entered into a Settlement Agreement, whereby
Cross agreed that he would answer all future correspondence and requests from OCIA on
or before the deadlines set by OCIA. (Exhibit 6)

. On June 27, 2017, OCIA conducted a routine annual inspection. OCIA noted in the

Livestock Inspection Report (Exhibit 7) that there were no records for recent spring cattle

Page 2 of 9


10.

working, i.e. dehorning; herd records were absent; and there were no grazing records,
feeding records or vaccination/health records. OCIA noted in the Crop Production
Inspection Report (Exhibit 8) that the field histories were not up to date for inputs applied
or crops grown on the fields; and the Organic System Plan (OSP) was inaccurate
regarding equipment and harvest production, as well as the storage facility information.
The traceback audit and audit trail conducted at the inspection were not successful due to
missing records.

On November 15, 2017, OCIA issued a Notice of Noncompliance stating that Cross
failed to maintain livestock and adequate crop production audit trail records. OCIA also
identified additional information needed to finalize a certification decision. OCIA stated
that responses to the noncompliance findings and the outstanding information must be
submitted to OCIA within 30 days of receipt of the Notice. (Exhibit 9)

On December 20, 2017, Cross submitted a response to the November 15, 2017 Notice
comprised of pregnancy check records, calving records, Dry Matter Intake (DMI) forms
and ration tables (Exhibit 10); however, Cross did not submit complete feeding records,
and health and vaccination records.

On January 2, 2018, OCIA issued a Notice of Proposed Suspension, stating that Cross’
response had not successfully corrected or rebutted the noncompliances and deficiencies
remained. Cross failed to maintain livestock audit trail records (7 C.F.R. 205.103),
specifically, livestock feed, health and vaccination records were absent; and the feed
information on the Livestock OSP did not match with information on the DMI
calculation worksheets. OCIA also stated that Cross had failed to meet the terms of the

September 2016 Settlement Agreement, because Cross did not respond to all outstanding

Page 3 of 9