UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

In re:

Postmus Dairy LLC 

dba Postmus Organic Farms

) 

) 

) 

 ) 

)

) 

Dublin, Texas 

)

) 

Administrator’s Decision

APL-012-23 

This Decision responds to an Appeal (APL-012-23) of a Notice of Noncompliance and 

Proposed Suspension under the National Organic Program (NOP) issued to Postmus Dairy LLC, 

dba Postmus Organic Farms (Postmus) of Dublin, Texas by USDA accredited certifying agent 

Oregon Tilth Certified Organic (OTCO). Postmus 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 

INTRODUCTION 

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 or NOP 

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. On February 27, 2008, Postmus was certified for crops and livestock. 

2. On September 12, 2022, OTCO issued a Notice of Noncompliance and Proposed 

Suspension to Postmus. 

3. On October 10, 2022, OTCO accepted Postmus’ request for mediation. 

4. On December 6, 2022, after being unable to reach an agreement with Postmus, OTCO 

issued a Notice of Unsuccessful Mediation to Postmus. 

5. On January 5, 2023, Postmus filed an Appeal. 

REGULATORY CITATIONS 

The USDA organic regulations at 7 C.F.R. §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 regulations at §205.201, Organic production and handling system plan, state that, 

“(a) The producer or handler of a production or handling operation ... 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 

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plan that is agreed to by the producer or handler and an accredited certifying agent ... 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 ... (5) A description of 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 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: 

... (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 regulations at §205.204, Seeds and 

planting stock practice standard, state that, “(a) The producer must use organically grown seeds, 

annual seedlings, and planting stock: Except, That, (1) Nonorganically produced, untreated seeds 

and planting stock may be used to produce an organic crop when an equivalent organically 

produced variety is not commercially available ... (2) Nonorganically produced seeds and 

planting stock that have been treated with a substance included on the National List of synthetic 

substances allowed for use in organic crop production may be used to produce an organic crop 

when an equivalent organically produced or untreated variety is not commercially available ...” 

The regulations at §205.236, Origin of livestock, then in effect, state that, “(a) Livestock 

products that are to be sold, labeled, or represented as organic must be from livestock under 

continuous organic management from the last third of gestation or hatching ... (2) Dairy 

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animals. Milk or milk products must be from animals that have been under continuous organic 

management beginning no later than 1 year prior to the production of the milk or milk products 

that are to be sold, labeled, or represented as organic, Except, (i) That, crops and forage from 

land, included in the organic system plan of a dairy farm, that is in the third year of organic 

management may be consumed by the dairy animals of the farm during the 12-month period 

immediately prior to the sale of organic milk and milk products; ... (b) The following are 

prohibited: (1) Livestock or edible livestock products that are removed from an organic operation 

and subsequently managed on a nonorganic operation may be not (sic) sold, labeled, or 

represented as organically produced ...” 

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

livestock operation must provide livestock with a total feed ration comprised of agricultural 

products, including pasture and forage, that are organically produced and handled by operations 

certified to the NOP ... (b) The producer of an organic operation must not: ... (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 ... This shall be calculated as an average over 

the entire grazing season for each type and class of animal ... (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 through the grazing season ... (d) Ruminant livestock producers shall: (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...” 

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The regulations at §205.240, Pasture practice standard, state that, “The producer of an 

organic livestock operation must, for all ruminant livestock on the operation, demonstrate 

through auditable records in the organic system plan, a functioning management plan for pasture. 

(a) Pasture must be managed as a crop in full compliance ... Land used for the production of 

annual crops for ruminant grazing must be managed in full compliance with §§205.202 through 

205.206...” The regulation proceeds to set forth the numerous requirements for the pasture. 

The 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: (a) 

Comply with the Act and applicable organic production and handling regulations of this part; (b) 

Establish, implement, and update annually an organic production or handling system plan that is 

submitted to an accredited certifying agent ... (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 ...” 

DISCUSSION 

Postmus was certified organic for crops and livestock on February 27, 2008; and is 

certified by OTCO. Postmus has 

(b) (4)

acres of certified cropland, specifically pasture and 

forage, on which its certified livestock graze. The organic livestock include 

(b) (4)

milk cows; 

(b) (4)

dry cows; 

(b) (4)

calves;

(b) (4)

 open heifers; and

(b) (4)

 bred heifers. The 

(b) (4)

organic milk cows 

graze on 

(b) (4)

 acres of certified cropland close to the milking facility. The other 

(b) (4)

acres of 

certified cropland is used to graze the other certified livestock. 

OTCO conducted an annual inspection of the operation on May 17, 2022, where it was 

discovered that Postmus had planted treated Barduro Red Clover seed on October 21/22, 2021, in 

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the 

(b) (4)

acres used to graze the 

(b) (4)

 organic milk cows. OTCO found the seed was treated 

with Yellow Jacket Enhanced Seed Coating by Barenbrug USA, which contains Apron XL, a 

prohibited systemic fungicide with the active ingredient Mefenoxam. Therefore, OTCO 

determined that the 

(b) (4)

 acres must be removed from the organic crop certification for 3 years 

while it undergoes a transition period, after which it can be certified again, if there was no 

intervening use of any prohibited substances or seed treated with prohibited substances. Further, 

as organic milk cows grazed on the 

(b) (4)

 acres of pasture, and harvested crops from the pasture 

are kept for livestock feed, OTCO determined that the 

(b) (4)

 organic milk cows must lose their 

organic status. 

Therefore, on September 12, 2022, OTCO issued a Notice of Noncompliance and 

Proposed Suspension to Postmus, citing to these inspection findings. The Notice also stated that 

the inspector found that Postmus had used 15 new inputs without having them approved by 

OTCO, and 13 of the 15 inputs were not OMRI listed. Although OTCO didn’t issue a Notice of 

Noncompliance prior to issuing the combined notice, the organic regulations at 7 C.F.R. 

§205.662 provide for the issuance of a combined Notice of Noncompliance and Proposed 

Suspension when correction of a noncompliance is not possible. OTCO, having found that the 

planting of the treated seed and grazing of the organic livestock on the affected pasture weren’t 

correctable, issued the combined notice. Postmus requested mediation on October 10, 2022, 

which OTCO granted that same day. However, OTCO stated that the parties were unable to 

reach an agreement during the mediation session, and therefore, on December 6, 2022, OTCO 

issued a Notice of Unsuccessful Mediation. 

Postmus filed an Appeal on January 5, 2023, stating that it had no reason to believe that 

the Barduro Red Clover treated seed couldn’t be used in its organic crop operation until OTCO 

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informed it of such. Postmus stated that it had researched the seed prior to its purchase, and 

relied on their seed supplier, which knew Postmus is an organic operation, and a Texas Organic 

Program Specialist at the Texas A & M University AgriLife Extension. A 

(b) (4)

representative stated in a Declaration submitted by Postmus, that he is aware that seed coating is 

normally a clay-based material; and hadn’t been told that any of the different coatings of seeds 

he has sold contained any fungicides. From the material he had available at the time, the 

representative didn’t see any indication that the Barduro Red Clover seed was treated with 

Yellow Jacket coating containing Mefenoxam. 

Postmus stated in its Appeal that the Texas A&M specialist had examined the Barduro 

Red Clover treated seeds; and had planted a trial field with the Barduro Red Clover seed at the 

same time that Postmus planted the treated seed in 

(b) (4)

 acres of its certified cropland, on 

October 21/22, 2021. Subsequently, after OTCO raised the issue of the treated seed at the May 

17, 2022 inspection, Postmus and the specialist both state that the specialist looked further into 

the seed and discovered that the Barduro Red Clover seed is treated with Apron XL, and the 

active ingredient in the fungicide is Mefenoxam. 

Postmus and the specialist both contend that Mefenoxam breaks down very quickly in 

soil with a half-life of a few weeks and a half-life in plants of just a few days; and the seeds were 

planted deep in the soil. They further stated that none of the treated Barduro Red Clover seeds 

germinated in the 

(b) (4)

 acre pasture or in the specialist’s trial area, as the soil was too dry in the 

Fall of 2021, and drought conditions continued into May of 2022, with large fires occurring 

throughout the drought in the surrounding areas. 

Addressing the milk cows, Postmus stated that the organic milk cows didn’t return to the 

(b) (4)

 acres of pasture in which the treated seeds were planted until February 22, 2022, 

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approximately 4 months after the seeds were planted. Postmus and the Texas A&M specialist 

stated that in general, livestock are not grazed after seeds are just planted to allow the seedling 

plants to become well established. Further, Postmus argued that since the seeds didn’t 

germinate, they are “confident that none of my organic cows ever were in contact with or 

consumed either the treated seeds or the non-germinated crop.” The appeal notes that although 

Postmus “mistakenly used seed that it should not have,” the organic integrity of the crop and 

livestock operation wasn’t affected. Postmus also stated that it has never amended its Organic 

System Plan prior to using a new seed and will inform OTCO in the future before using any new 

seed. 

Postmus concludes in its Appeal that it is aware that it “cannot use any synthetic 

substances in its production and maintain its organic certification;” however, the organic 

regulation prohibiting such use is “not absolute.” Postmus points to the EPA (Environmental 

Protection Agency) tolerance levels whereby residues of prohibited pesticides up to 5 percent of 

the EPA tolerance level is allowed in organic operations, though no laboratory analysis of a 

sample from the affected 

(b) (4)

acres was submitted. Postmus states that while it used the treated 

seed, its use was not intentional and the seeds didn’t germinate, and therefore, a suspension of 

certification is too harsh a penalty. 

However, while the use of the treated seed wasn’t intentional, Postmus did acknowledge 

planting Barduro Red Clover seed treated with Yellow Jacket Enhanced Seed Coating containing 

Mefenoxam in 

(b) (4)

 acres of organic cropland used for grazing by its 

(b) (4)

organic milk cows. 

An Invoice from shows the purchase by Postmus on October 4, 2021 of 

of Barduro Red Clover seed. Documentation from Postmus shows that on 

(b) (4) (b) (4)

October 22, 2021, Postmus planted 6 varieties of seeds, with 2 passes/plantings of each; and the 

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Barduro Red Clover seed was the 5th variety planted. The tag for the Barduro Red Clover seed 

clearly shows the seed is treated with Barenbrug Yellow Jacket “Enhanced Seed Coating with 

Water Absorbing Technology” and that the seed has “50% coating material.” While the tag 

doesn’t state that the coating is Apron XL with the active ingredient being Mefenoxam, this 

information was obtained by OTCO, and can be seen by conducting a general internet search. 

OTCO also contacted Barenbrug whose representative informed OTCO that the Yellow Jacket 

coating on the Barduro Red Clover seed is “NON Organic,” and that their organic coating has 

the OMRI logo on the tag. Barenbrug stated that the Yellow Jacket Seed Coating contains 

Apron XL, which is a systemic fungicide, specifically Mefenoxam. The Apron XL fungicide is 

manufactured by Syngenta Crop Protection LLC. The EPA registered Apron XL and approved 

the Syngenta label on August 20, 2020, which identifies Mefenoxam as the active ingredient of 

the Group 4 Fungicide. Additionally, the EPA has stated that Mefenoxam is very persistent in 

soil, can readily leach into many soils, and can migrate to the water table. This conflicts with 

Postmus’ argument that Mefenoxam has a half-life of a few weeks in soil and a few days in 

plants. 

Further, Postmus claims that the Barduro Red Clover seed treated with Yellow Jacket 

Enhanced Seed Coating never germinated, citing to drought conditions. However, whether the 

seed germinated is irrelevant as the Barduro Red Clover seeds with the Mefenoxam coating 

remain in the soil of the 

(b) (4)

acres in which the seeds were planted. It is noted that Barenbrug 

states the benefits of the Yellow Jacket Seed Coating include needing less water for 

establishment and the enhanced coating can hold up to 600 times its weight in water; that the 

coated seed moves readily through the turf canopy for improved soil contact; is rigorously tested 

to ensure durability; has proven performance in the most demanding applications; that the seed 

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coating holds the fungicide Mefenoxam longer; has the ability to nearly double the germination 

percentage over uncoated seed; and performs well in drought conditions. 

Therefore, the above findings support OTCO’s determination that the 

(b) (4)

acres of 

organic pasture can no longer be certified organic and must undergo a 3 year transition from the 

date of the treated seed planting, October 21, 2021, to October 20, 2024, after which it is eligible 

again for certification. Further, as determined by OTCO, Postmus’ 

(b) (4)

 organic milk cows 

grazed on the affected 

(b) (4)

 acres can no longer be considered organic. Postmus stated that 

while the treated seed was planted on October 21/22, 2021, the organic milk cows didn’t return 

to the 

(b) (4)

acres until February 22, 2022. Postmus therefore concludes that this, coupled with 

the failure of the treated seed to germinate, means that, “the chances that any cow could have 

ingested mefenoxam from any feed ... or even walked around on mefenoxam soil ... is almost 

zero.” The specialist reiterated this contention in his Declaration. 

However, regardless of whether the treated seed germinated, it remains in the soil, and 

while Postmus stated in the Appeal that the treated seed was planted deep in the soil, Henk 

Postmus stated in a Declaration that the seed was planted 1⁄2 to 1 inch deep. Therefore, it is 

possible that the organic dairy cows came into contact with the seeds coated with Yellow Jacket 

Enhanced Seed Coating of mefenoxam. Further, the organic dairy cows continue to graze on the 

affected 

(b) (4)

acres. Postmus stated in its DMI (dry matter intake) charts that the organic dairy 

cows grazed from March 3, 2021 to September 8, 2021, which is prior to the planting of the 

treated seed, and again from March 1, 2022 (which contrasts with the statement that they 

returned February 22, 2022) to October 31, 2022. NOP asked Postmus about the other 

acres of certified land and was told that the organic dairy cows are grazed on the affected 

acres, as the other 

(b) (4)

 acres are too far from the milking facility. The other 

(b) (4)

 acres are 

(b) (4) (b) (4)

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used to graze the other organic livestock. Therefore, the organic dairy cows have grazed and 

continue to graze on the affected 

(b) (4)

acres. Further, OTCO states that Postmus has stated 

when the organic milk cows are provided outdoor access, they are again on the affected pasture; 

and crops harvested from the 

(b) (4)

 acre pasture are kept for livestock feed. Therefore, the 

organic milk cows are on the affected 

(b) (4)

acres beyond the ‘grazing season.’ 

Lastly, while OTCO cited in the Notice of Noncompliance and Proposed Suspension to 

the use of several new inputs without Postmus having received approval by OTCO, Postmus 

didn’t address this allegation in its Appeal. Rather, Postmus only addressed the use of the treated 

Barduro Red Clover seed without having informed OTCO beforehand; and stated it would 

inform OTCO in the future before using any new seed. Postmus’ OSP shows the use of 

numerous crop and livestock inputs, with some noted as being allowed, some for which use is 

restricted, and some for which additional information is needed prior to approval. However, no 

specific input is identified as having been used without approval. 

CONCLUSION 

Evidence substantiates that Postmus has violated the organic regulations at 7 C.F.R. 

§205.105, Allowed and prohibited substances, methods, and ingredients in organic production 

and handling; 7 C.F.R. §205.201, Organic production and handling system plan; 7 C.F.R. 

§205.202, Land requirements; 7 C.F.R. §205.204, Seeds and planting stock practice standard; 7 

C.F.R. §205.236, Origin of livestock; 7 C.F.R. §205.237, Livestock feed; 7 C.F.R. §205.240, 

Pasture practice standard; and 7 C.F.R. §205.400, General requirements for certification. 

Evidence substantiates that Postmus planted seeds treated with a prohibited substance in its 

acre pasture used to graze its 

(b) (4)

 organic milk cows and from which crops are harvested for 

(b) (4)

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livestock feed. Specifically, Postmus planted Barduro Red Clover seeds with Yellow Jacket 

Enhanced Seed Coating, containing Apron XL, specifically Mefenoxam. The organic 

regulations at 7 C.F.R. §205.105 state that an organic production operation can’t use any 

synthetic substance in the operation unless said substance is on the National List. Mefenoxam is 

not a synthetic substance allowed under 7 C.F.R. §205.601, Synthetic substances allowed for use 

in organic crop production. Although the prohibited substance wasn’t applied directly, but rather 

is in the coating of the planted treated seed, the regulations at 7 C.F.R. §205.204 state that only 

untreated seeds or seeds treated with a substance on the National List of synthetic substances 

may be used in organic crop production. Additionally, although Postmus doesn’t harvest and sell 

the crops from the 

(b) (4)

acre pasture, the operation’s organic milk cows are grazed on the 

pasture, and crops harvested from the pasture are kept for livestock feed. Further, although 

Postmus alleges that the treated seeds didn’t germinate, the seeds remain stable in the soil. As 

Postmus violated the regulations at 7 C.F.R. §205.202, the 

(b) (4)

acre pasture can’t maintain its 

organic status and must undergo a 3 year transition prior to being eligible again for certification. 

Additionally, as Postmus uses the 

(b) (4)

 acre pasture for the grazing of its 

(b) (4)

organic 

milk cows, the pasture must be managed as a crop and meet pasture practice standards. The 

producer of an organic livestock operation must ensure pasture of a sufficient quality and 

quantity is available to graze throughout the grazing season and provide all ruminants with an 

average of not less than 30 percent of their dry matter intake from grazing throughout the grazing 

season. Postmus grazed the organic milk cows on the 

(b) (4)

 pasture from February 2022 to 

October 2022, appearing to meet DMI requirements, and the cows are on that pasture again in 

2023. However, Postmus violated the organic regulations at 7 C.F.R. §205.240 by failing to 

manage the pasture as a crop in compliance with the regulations at 7 C.F.R. §205.202 and 7 

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C.F.R. §205.204, as stated above. Further, as the organic milk cows are grazing on pasture in 

which seed treated with a prohibited substance was planted, Postmus has violated the regulations 

at 7 C.F.R. §205.236 as milk or milk products must be from animals that have been under 

continuous organic management. While the regulations provide that the dairy animals may 

consume crops and forage from land included in the OSP of the dairy farm, the 

(b) (4)

acres in 

which the treated seed was planted have lost their organic status and, therefore, the organic milk 

cows, having grazed and continuing to graze, on the 

(b) (4)

 pasture have also lost their organic 

status. Additionally, Postmus has violated the regulations at 7 C.F.R. §205.237 as Postmus uses 

crops harvested from the 

(b) (4)

 pasture for livestock feed, contrary to the requirement in that 

regulations for the producer of an organic livestock operation to provide its livestock with a total 

feed ration composed of agricultural products, including pasture and forage, that are organically 

produced. 

Lastly, the use by Postmus of the treated seed without prior notification to and approval 

from OTCO, and the seed coating containing a prohibited substance, also constitute a violation 

of the organic regulations at 7 C.F.R. §205.201, which require that a certifier operation list all 

substances to be used as an input in the operation, and describe how the operation will prevent 

the contact of organic production operations and products with prohibited substances. The above 

cited violations constitute a violation of the organic regulations in general pursuant to 7 C.F.R. 

§205.400. It is acknowledged that Postmus states its planting of the seed with coating containing 

a prohibited substance wasn’t intentional. However, the organic regulations do not provide an 

exemption for the unintentional use of a prohibited substance, seed coated with a prohibited 

substance, or the grazing of organic livestock on pasture in which the seed was planted. 

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DECISION 

Postmus’ Appeal of January 5, 2023 is denied. The September 12, 2022 Notice of 

Noncompliance and Proposed Suspension is affirmed. The 

(b) (4)

acre pasture discussed above is 

suspended from organic crop certification, and must undergo a 3 year transition from the date the 

treated seeds were planted, October 21/22, 2021, to October 20, 2024. Further, as Postmus’ 

organic milk cows have been grazing on the affected 

(b) (4)

acre pasture, they are suspended from 

organic livestock certification. The remaining livestock and 

(b) (4)

acres of cropland remain 

certified. 

Additionally, attached to this formal Administrator’s Decision denying Postmus’ Appeal 

is a Request for Hearing form. Should Postmus wish to further appeal this decision, Postmus has 

thirty (30) days to request an administrative hearing before an Administrative Law Judge. 

Done at Washington, D.C., on this _____ 18th

day of ________________, 2023. May

Digitally signed by BRUCE BRUCE SUMMERS 

Date: 2023.05.18 21:28:23 SUMMERS -04'00' 

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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