In re: 

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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

Daniel Smith 

Kara Smith 

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Administrator's Decision 

APL-036-17 

This Decision responds to an appeal (APL-036-17) of a Notice of Denial of Certification 

of National Organic Program issued to Daniel and Kara Smith of Jolmsbury, Vermont by 

Ve1mont Organic Farmers (VOF). 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 § 

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. 

1 7 u.s.c. 6501-6522 2 7 CFR Part 205 

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FINDINGS OF FACT 

1. VOF is an accredited certifying agent under the USDA organic regulations. Daniel and 

Kara Smith (Smiths) of Johnsbury, Ve1mont have a dairy livestock operation currently in 

transition to organic certification under USDA organic regulations. 

2. On March 20, 2017, VOF received a complaint that the Smiths purchased and fed 

uncertified haylage to their herd during the organic transition period (May 15, 2016 -

May 15, 2017). VOF opened an investigation. 

3. On April 21, 2017, the Smiths submitted an application for certification to VOF. 

4. On May 15, 2017, VOF conducted the certification inspection at Smiths' operation. The 

Smiths did not disclose any feed purchases to the VOF inspector and the organic system 

plan (OSP) did not list any feed purchases. 

5. On May 16, 2017, VOF confirmed that on two separate occasions a neighboring farmer 

sold his nonorganic haylage to the Smiths: 10 tons on March 12, 2017 and 5 tons on April 

12, 2017. 

6. On May 17, 2017, VOF contacted Daniel Smith and presented the dates and quantities of 

feed reported by the seller. Daniel Smith admitted to the purchases and having provided 

the conventional feed to the transitioning herd. 

7. On May 19, 2017, VOF issued the Smiths a Denial of Certification in accordance with 

USDA organic regulation §205.405(g) because of false statements regarding purchases of 

nonorganic feed and omission of the purchase from the operation's OSP. 

8. On May 19, 2017, Daniel Smith submitted an appeal to AMS. 

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DISCUSSION 

VOF issued a Denial of Certification because the Smiths failed to disclose the purchase 

and feeding of conventional haylage to the operation's livestock herd during the organic 

transition period. The Smiths did not disclose these purchases to VOF in the OSP or at the 

inspection for ce1iification. VOF determined the lack of candor to be a willful misrepresentation 

of the operation's activities. 

In the appeal to AMS, Daniel Smith admitted his failure to disclose the purchases of the 

uncertified feed to VOF. Daniel Smith claimed the purchases occurred after attempts to locate 

certified organic feed were unsuccessful and proposed selling the IO cows that ate the 

nonorganic feed. 

CONCLUSION 

The Smiths misrepresented its compliance with the USDA organic livestock feed 

requirements by providing nonorganic feed to the dairy animals in transition to organic 

production. The Smiths fed nonorganic feed beginning in March 2017 and applied for organic 

certification in April 2017. The USDA organic regulations require that milk or milk products 

intended to be sold as organic must be from animals under continuous organic management for 

12 months, except that feed from land in the third year of transition to organic production may be 

fed to dairy animals during the 12-month period(§ 205.236(a)(2)). Further, the USDA organic 

regulations require that livestock consume organically produced feed (§205.237(a)). 

The Smiths purchased and fed nonorganic haylage from a neighboring nonorganic farm 

to their dairy cows in transition to organic production. Additionally, the Smiths failed to disclose 

these purchases and feeding to the certifying agent.. Based on infonnation from the seller of the 

feed and the Smiths later admittance to purchasing and feeding nonorganic feed, the certifying 

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agent properly issued a Denial of Certification in accordance with §205.405(g) of USDA organic 

regulations, which states, "Notwithstanding paragraph (a) of this section, if a certifying agent has 

reason to believe that an applicant for certification has willfully made false statements or 

otherwise purposefully misrepresents the applicant's operation or its compliance with the 

certification requirements pursuant to this part, the certifying agent may deny certification 

pursuant to paragraph ( c )(1 )(iii) of this section without first issuing a notification of 

noncompliance." 

DECISION 

The appeal is denied and VO F's Denial of Certification is upheld. Daniel and Kara 

Smith may reapply for organic certification at any time. However, any dairy animal that 

consumed nonorganic feed during the transition period would need to restart the transition to 

·organic production or remain in nonorganic production. 

Attached to this fonnal Administrator's Decision denying Daniel and Kara's appeal is a 

Request for Hearing form. The Smiths have thirty (30) days to request an administrative hearing 

before an Administrative Law Judge .. 

Done at Washington, D.C., on this / 7+~ 

day of Oc;.\- "~ .. .- , 2017. 

gi> ·~-~- - Brnce Summers 

Acting Administrator 

Agricultural Marketing Service 

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