ruminants over 6 months of age. The settlement terms, which were to be in place for 3 years,
required that Ranovael:
¢ Submit updated certification materials by April 1 each year;
¢ Provide auditable documentation for feed rations, including purchased feed and changes
to rations on a quarterly basis; and
¢ Permit 5 unannounced inspections over 2-year period.

In November 2017, NICS issued a Notice of Noncompliance and Proposed Suspension to
Ranovael for failure to comply with the terms of a 2014 settlement agreement. NICS also cited
additional noncompliances based on the findings from inspections conducted in September 2016
and March 2017. Specifically,

¢ Missing records for various activities: buffer harvest equipment cleaning, organic seed
search documentation, harvests, and field activity-logs; organic certificates for purchased
feeds; documentation of ration changes, health treatments, and temporary confinement.

NICS noted that many of these records were not available at prior inspections.

¢ Input materials (livestock medical treatments, feed ingredients) that had not been
disclosed to, or approved by, NICS. These included Quick Hit (zine sulfate) and Scarlet

Oil (parachlorometaxylenol) which contained prohibited ingredients.

e Failing to implement crop rotation practices in one field from 2012 to 2015.

¢ Providing livestock with an aloe vera feed supplement that contained nonorganic aloe
vera.

¢ Using mineral mixes containing prohibited ingredients and subsequently failing to

provide information on new mineral mixes.

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prior fax during that timeframe from that number, which NICS confirmed as Ranovael’s fax
number.
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,
Ranovael has shown systemic and repeated violations of the organic regulations at 7 C.F.R.
§205.103; 7 C.F.R. §205.105; 7 C.E.R. §205.237; 7 C.F.R. §205.238; 7 C.F.R. §205.239; and 7
C.F.R. §205.400.

The record shows that Ranovael Dairy has systemic recordkeeping issues and does not
document, and therefore cannot demonstrate, compliance for its livestock production. In
addition, there are other recurring noncompliant practices, such as no records of harvest amounts,
use of inputs that have not been approved by the certifier, unclean bedding for some animals and
no pasture access for 6- and 7-month-old animals. Some issues date back to 2014 and have not
been fully resolved despite two settlement agreements and multiple opportunities to comply.
Ranovael has attempted to submit records to correct the noncompliances, but the records
provided are incomplete. With respect to providing clean bedding and pasture access, Ranovael
has indicated that its employees are responsible for those tasks. That statement merely highlights
the inadequate oversight and does not excuse the noncompliances with those provisions. As the
operator, Ranovael is responsible for ensuring that its employees are using compliant practices.

In 2019, Ranovael signed a settlement agreement indicating it would provide feed rations,
feeding records and grazing records on a quarterly basis to NOP. At the time of this Decision,

two quarterly deadlines have passed. At this time, Ranovael has provided to NICS only feed

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medical treatments which had not been approved by NICS, Ranovael states that they were
unaware that one (Quick Hit) was being used on the farm and that the Scarlet Oil was never
used. Ranovael also stated that they changed the mineral mix and the aloe-vera feed supplement
and notified NICS. They also explain that all cows are on pasture 8-9 hours/day, 120 days/year.
Ranovael included documents to support their appeal: a record showing 6 buffer harvest dates
and amounts in 2016; feed labels for aloe pellets and 2 mineral mixes; records showing the status
of individual cows (dry, fresh, pregnant, etc) for one week in December 2017; grazing season
ration records for May through early November 2017 — one sheet per animal group; and a batch
sheet for cows for July 2016.

Ranovael entered a settlement agreement with USDA/AMS on April 23, 2019, to resolve
the outstanding noncompliances from the November 2017 Notice of Noncompliance and Notice
of Proposed Suspension. Per the terms of that agreement, Ranovael agreed to provide feed
ration, feeding records and grazing records quarterly to NICS. The due dates for the quarterly
submissions were set out in the settlement agreement as follows: July 15, 2019 (records from
April — June 2019); October 15, 2019 (records from July — September 2019); January 15, 2020
(records from October — December 2019) and April 15, 2020 (records from January — March
2020). As part of the settlement, Ranovael also agreed to submit complete and auditable feed
ration, feeding and grazing records to NICS within 15 days of the end of the grazing seasons in.
2020 and 2021 to show that the livestock are meeting the 30% DMI from pasture requirement. In
addition, Ranovael also agreed to 1 unannounced inspection each year in 2019, 2020 and 2021;
and to obtain approval for any crop or livestock inputs prior to use.

On July 23, 2019, NICS informed the NOP that Ranovael had not submitted the records

that were due on July 15, 2019. On July 29, 2019, the NOP issued a Notice of Noncompliance

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After Ranovael submitted its appeal in February 2018, NICS conducted inspections of
Ranovael in March 2018 (scheduled) and September 2018 (unannounced). Some information
collected at these inspections addressed several noncompliances. The appellant provided some
certificates for livestock feed ingredients, obtained non-GMO and untreated seed confirmation
for winter wheat, and corrected crop rotation practices. In addition, NICS was able to verify the
compliance of custom mineral mixes and the eligibility of 3 fields to be included in the organic
system plan (OSP). However, the balance of noncompliances were not resolved. NICS found
continued recordkeeping issues and failure to demonstrate compliance with the 30% DMI from
pasture requirement. Therefore, NICS issued a Notice of Noncompliance and Proposed
Suspension.

In its appeal, Ranovael argues that it understood that their farm was in compliance based on
an inspection from a former NICS staff member QR). Ranovacl commented that they
had created a new, improved pasture based on the advice of {J who was pleased with the
outcome. After [J passed away, Ranovael stated that NICS informed them that the farm
would need to be re-inspected as [EP's inspection notes were lost. Ranovael stated that
there were 2 inspectors who went back and forth from 2014 to 2016 and there were many
discrepancies in their inspection reports. Ranovael did not identify any specific discrepancies.

In its appeal, Ranovael claims that most of the missing records cited in the 2017 Notice were
available for the 2016 inspection. Specifically, Ranovael claims that buffer equipment is air
pressure cleaned and those cleaning logs are kept with the equipment; all organic certificates
were copied and available for inspection; temporary confinement is only when the cow is giving
birth; any changes to feed rations will be recorded on the calendar and big changes submitted to

NICS; and all health care treatments follow an SOP which is kept in a box in the barn. For the

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which were required to be submitted per the 2019 Settlement Agreement in order to demonstrate
compliance with the grazing requirements.

On September 5, 2019, EE. Ranovaci’s dairy nutritional consultant notified
NICS of ration changes. He provided ration sheets, all dated September 5, 2019, for the
following groups: Dry Cows Pasture, Heifers Pasture Pen 10, Heifers Pens D-E, Pasture Milking,
and Pasture Pen 5S.

On October 10, 2019, Ranovael submitted to NICS feed ration records dated October 9,
2019 for the Pasture Pen Milking, Pasture Pen 5, Dry Cows Pasture, Heifers Penl |-D-E pasture,
and Heifers Pen 10.

On October 18, 2019, NICS informed NOP that Ranovael had missed the October 15,
2019 deadline to submit the complete feed ration, feeding records and grazing records to cover
the July through September 2019 period. NICS indicated that Ranovacl had only submitted
ration records, but not feeding or grazing records.

On October 18, 2019, NOP issued a letter informing Ranovael that it had failed to submit
the complete records that were due on July 15, 2019 and October 15, 2019. In the letter, the NOP
also indicated that it would proceed with an administrative process to suspend Ranovael’s
certification.

On October 29, 2019, NICS notified NOP that it had received a faxed letter from Shirley
Vanden Elzen. The fax included a copy of the October 18, 2019 NOP letter and copies of
calendar pages from July — September which contain handwritten notations about whether or not
there was pasture each day. In the letter, Shirley Vanden Elzen states that the calendar pages had
been faxed to NICS after the feed rations were sent to NICS, NICS provided excerpts from the

fax activity log from October 4— October 29, 2019, as evidence that they had not received a

Page 9 of 12



UNITED STATES DEPARTMENT OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE

BEFORE THE ADMINISTRATOR

Tn re:

Ray and Shirley Vanden Elzen
Ranovael Dairy

DePere, Wisconsin.

Administrator’s Decision

APL-020-18

This Decision responds to an appeal (APL-020-18) of a Notice of Noncompliance and
Notice of Proposed Suspension of National Organic Program certification issued to Ray and
Shirley Vanden Elzen/Ranovael Dairy (Ranovael) of DePere, Wisconsin, by Nature’s
International Certification Services (NICS). 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 program requirements, as described in section
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

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



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 4 4
day of December > 2019.

Bruce Summers
Administrator
Agricultural Marketing Service

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ration records for the second quarter (due July 15, 2019) and feed ration and grazing records for
the third quarter (due October 15, 2019). It is not clear, based on the records, whether these cover
all animal groups because in 2 separate submissions, different groups were identified on the
ration sheets. Further, Ranovael has not submitted feeding ration records or grazing records for
the second quarter. In addition, Ranovael agreed to provide records of any treatment
administered to livestock, identifying the treatment, animal(s) treated and date of treatment.
During the inspections of March 2018 and July 31-August 1, 2019, inspectors could not identify
per the records which animals had received veterinary treatments. Finally, Ranovael also agreed
to obtain certifier approval for any materials used in livestock or crop production prior to use. At
the most recent inspection on July 31-August 1, 2019 the inspectors noted several unapproved

materials in use and/or on site. These included a prohibited livestock material.

DECISION

The appeal is denied and Ranovael’s organic certification for crops and livestock is to be
suspended. Attached to this formal Administrator’s Decision denying Ranovael’s appeal is a
Request for Hearing form. Ranovael has thirty (30) days to request an administrative hearing
before an Administrative Law Judge.

If Ranovael waives the hearing, the Agricultural Marketing Service will direct NICS to
issue a Notice of Suspension for Ranovael’s crops and livestock certification. At any time after
suspension, Ranovael may, “...submit a request to the Secretary for reinstatement of its crops

and livestock certification. The request must be accompanied by evidence demonstrating

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and Request for Corrective Action warning Ranovael of the missed deadline and providing an
additional 30 days to submit the records.

On July 31 and August 1, 2019, NICS conducted an unannounced inspection of Ranovael
Dairy. The inspectors noted continued recordkeeping issues, specifically: crop yields were not
recorded (corn and forage sorghum); an organic seed search was not documented for all crops;
receipts for all purchased inputs were not available; the feeding records (total mixed ration)
could not be audited; no records of which animals were treated by a veterinarian; no crop storage
records; hospital pen confinement was not documented; some feed supplier certificates were not
available for inspection; and 2018 organic and nonorganic milk sales were not available. The
inspection also found compliance issues with requirements for livestock living conditions: 6- and
7-month-old heifers were not provided pasture; four groups of animals were not bedded as
planned; and on one day in July for which the inspectors audited feed records, the ration sheets
showed that only 2 of 11 groups of animals met the 30% DMI on that day when the animals were
reportedly on pasture. In addition, the inspectors found new inputs, which had not been
approved and observed a prohibited product, ParlorPal, on site. Inspectors concluded that there
was “little to no improvement to correct previously identified noncompliant practices or
deficiencies in recordkeeping.”

On August 7, 2019, Ranovael submitted feed ration records to NICS. These were dated
April 1, 2019 and covered One Group April 1, 2019 and May 21, 2019; Milking Pen May 7,
2019; Heifers Pen 10, April 6, 2019, Heifers Pen 10 Pasture, May 22, 2019; Heifers D-E, April
2, 2019; Heifers D-E, May 2019; Pen 5 Pasture, April 8, 2019; and Pen 5 Pasture, June 2, 2019.

The submission did not include the feeding/total mixed ration (TMR) records or grazing records

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type and class of animal. (3) Document changes that are made to all rations throughout the year
in response to seasonal grazing changes...”

The organic regulations at §205.238, Livestock health care practice standard, state that,
“(b) When preventive practices and veterinary biologics are inadequate to prevent sickness, a
producer may administer synthetic medications: Provided, That, such medications are allowed
under §205.603...”

The organic regulations at §205.239, Livestock living conditions, state that, “(a) The
producer of an organic livestock operation must establish and maintain year-round livestock
living conditions which accommodate the health and natural behavior of animals, including:...
(2) For all ruminants, management on pasture and daily grazing throughout the grazing season(s)
to meet the requirements of §205.237, except as provided in paragraphs (b), (c), and (d) of this
section. (3) Appropriate clean, dry bedding. ..(c)The producer of an organic livestock operation
may, in addition to the times permitted under § 205.239(b), temporarily deny a ruminant animal
pasture or outdoor access under the following conditions:...(2) In the case of newborn dairy
cattle for up to six months, after which they must be on pasture during the grazing season...”

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:...“(£) Immediately notify the certifying agent concerning any:...(2) Change in a certified
operation or any portion of a certified operation that may affect its compliance with the Act and
the regulations in this part.”

Tn November 2014, Ranovael and NICS entered into a settlement agreement to resolve a
Notice of Proposed Suspension which was issued for inadequate pasture records, inability to

verify compliance with pasture requirements, and lack of acceptable pasture conditions for

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activities and transactions of the certified operation in sufficient detail as to be readily
understood and audited...and (4) Be sufficient to demonstrate compliance with the Act and the
regulations in this part. (c) The certified operation must make such records available for
inspection...”

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...”
The organic regulations at §205.237, Livestock feed, state that, “(a) The producer of an

organic livestock operation must provide livestock with a total feed ration composed of

2

agricultural products, including pasture and forage, that are organically produced and handled...”
Further, the regulations require that, “(c) During the grazing season, producers shall: (1) Provide
not more than an average of 70 percent of a ruminant’s dry matter demand from dry matter fed...
The section also states that producers shall “(2) Provide pasture of a sufficient quality and
quantity to graze throughout the grazing season and to provide all ruminants under the organic
system plan with an average of not less than 30 percent of their dry matter intake from grazing
throughout the grazing season.” Additionally, the regulations require that livestock producers
(1) Describe the total feed ration for each type and class of animal. The description must

include (i) All feed produced on-farm; (ii) All feed purchased from off-farm sources; (iii) The

percentage of each feed type, including pasture, in the total ration; and (iv) A list of all feed

supplements and additives. (2) Document the amount of each type of feed actually fed to each

Page 3 of 12


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. On November 19, 2017, NICS issued a Notice of Noncompliance and Notice of Proposed
Suspension to Ranovael for failure to comply with a 2014 settlement agreement between
NICS and Ranovael and for additional noncompliances.

2. On January 28, 2018, NICS rejected Ranovael’s request for mediation.

3. On February 22, 2018, Ranovael submitted a timely appeal to NOP.

4. On April 23, 2019, Ranovael and USDA/AMS entered into a settlement agreement.

5. On July 29, 2019, NOP issued a Notice of Noncompliance and Request for Corrective
Action to Ranovael for failing to comply with the April 23, 2019 settlement agreement.

6. On October 18, 2019, NOP notified Ranovael that it would begin the administrative
process to suspend its certification due to continued noncompliance with the settlement

agreement.

DISCUSSION
The USDA organic regulations at 7 C.F.R. 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 as “100 percent organic,” “organic,” or “made with organic

(specified ingredients or food groups(s)).” (b) Such records must:...(2) Fully disclose all

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