UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

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In re: 

Dale Fink Farms 

Tomah, Wisconsin 

Administrator’s Decision 

APL-026-20 

This Decision responds to an appeal (APL-026-20) of a Notice of Noncompliance and 

Proposed Revocation under the National Organic Program issued to Dale Fink Farms (Fink) of 

Tomah, Wisconsin by the Minnesota Crop Improvement Association (MCIA). 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 

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 

1

 7 U.S.C. 6501-6522 

2

 7 C.F.R. Part 205 

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

regulations. 

FINDINGS OF FACT 

1. Fink is certified organic for crops. The Fink family (Dale, Samantha, and Cody) also have 

another certified operation, Triple F LLC (Triple), a livestock operation. The Fink family 

has both crops and livestock, with numerous fields at the 4 locations. 

2. On July 5, 2019, MCIA issued a Notice of Noncompliance and Proposed Revocation of 

Certification to Triple after 2 unannounced inspections on June 22, 2019 and June 27, 2019 

at the 4 locations revealed numerous noncompliances. The notice addressed noncompliances 

in both the livestock and crop operations of the Fink family. 

3. On July 29, 2019, MCIA issued a Rejection of Mediation notice to Triple’s July 22, 2019 

request for mediation. 

4. On August 29, 2019, Triple filed an Appeal. 

5. On January 14, 2020, MCIA told NOP that it had inadvertently neglected to add a second 

operation, Fink, to their database when converting software systems. Both operations had 

been folded together under the Triple certification in MCIA’s database and MCIA hadn’t 

obtained an updated separate Organic System Plan (OSP) or other documentation for the 

certification of Fink, a crops operation. Some noncompliances apply to both operations. 

6. On January 29, 2020, at the direction of NOP, MCIA rescinded the July 5, 2019 Notice of 

Noncompliance and Proposed Revocation issued to Triple and issued 2 separate Notices of 

Noncompliance and Proposed Revocation, one to Triple and one to Fink, breaking out the 

noncompliances by operation. The Appeal filed on August 29, 2019 addressed the 

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noncompliances cited in the original notice as to both operations and therefore, it was 

deemed an Appeal as to both operations and Fink didn’t need to file a new appeal. A 

corrected notice was issued to Fink on February 5, 2020, after an error was found in its 

reissued notice. Triple also appealed the Notice of Noncompliance and Proposed Revocation 

issued to it. It is a separate case, APL-072-19. 

DISCUSSION 

The USDA organic regulations at 7 C.F.R. 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 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, 

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 

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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; and (c) Have distinct, defined boundaries and buffer 

zones such as runoff diversions to prevent the unintended application of a prohibited substance to 

the crop or contact with a prohibited substance applied to adjoining land that is not under organic 

management.” 

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: 

(a) Comply with the Act and applicable organic production and handling regulations in 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:...(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.” 

The organic regulations at §205.406, Continuation of certification, state that, “(a) To 

continue certification, a certified operation must annually pay the certification fees and submit 

the following information, as applicable, to the certifying agent: (1) An updated organic 

production or handling system plan which includes: (i) A summary statement, supported by 

documentation, detailing any deviations from, changes to, modifications to, or other amendments 

made to the previous year’s organic system plan during the previous year; ;and (ii) Any additions 

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or deletions to the previous year’s organic system plan, intended to be undertaken in the coming 

year...(4) Other information as deemed necessary by the certifying agent to determine 

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

Certifier MCIA conducted unannounced inspections at the 4 locations on June 22, 2019 

and June 27, 2019, which revealed numerous noncompliances. MCIA states that Triple and Fink 

both have operations at various of the 4 locations. The noncompliances constitute violations by 

Fink of the organic regulations at 7 CFR §205.201, Organic production and handling system 

plan; 7 CFR §205.202, Land requirements; and 7 CFR §205.406, Continuation of certification. 

The noncompliances include spraying weeds next to a corn field requested for certification 

without informing MCIA and having no buffer; spraying herbicide around several silos and 

buildings without informing MCIA; converting a field from pasture to corn without informing 

MICA; and spraying several fields at Pine Creek Ridge, with a prohibited herbicide, after having 

converted these fields from organic to nonorganic, GMO status without informing MCIA. Some 

of the allegations in Fink’s notice - not having livestock out to pasture yet for the grazing season 

and reducing the amount of pasture available - also appear, and more accurately so, in Triple’s 

notice; therefore, they are not addressed here. Fink stated that the livestock operation is under 

Triple while the crop operation is under Fink, though both operations operate at any one of the 4 

locations. 

Fink addressed the cited noncompliances in its Appeal stating it believed the substances 

sprayed were allowed, and that it was unaware that it needed to inform MCIA when changing 

fields from pasture to corn, or from organic to nonorganic status. 

A review of the submitted documentation shows that MCIA conducted unannounced 

inspections on June 22, 2019 at the Trempealeau locations: , 

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Trempealeau, Wisconsin; , Arcadia, Wisconsin; and 

, Trempealeau, Wisconsin; and on June 27, 2019 at the Tomah location at 

, Tomah, Wisconsin. MCIA found numerous noncompliances throughout Fink’s 

operation which were described in detail by MCIA. 

MCIA found that Fink had sprayed herbicide on weeds around several silos and buildings 

without informing MCIA, as well as in a field adjoining a corn field requested for certification 

and next to the heifer pasture fence at , when there is no buffer on the pasture 

side of the fence. The June 22, 2019 inspection reports indicated there are several equipment 

storage areas around the buildings which had been sprayed. MCIA states it hadn’t been 

informed by Fink that it would be spraying these areas. Fink states it sprayed herbicides around 

the silos and other buildings, along with vinegar, salt and dish soap and believed that they could 

use that combination to kill weeds. Fink didn’t address the absence of a buffer zone next to the 

heifer pasture. However, the organic regulations at 7 CFR §205.201, Organic production and 

handling system plan, requires operations to describe practices and procedures to be performed at 

the operation; and to list all substances to be used as production or handling inputs so that the 

certifier can review and approve said substances. An operation must also describe practices and 

physical barriers to prevent contact of organic production and handling operations and products 

with prohibited substances. Therefore, Fink’s use of inputs, whether prohibited or not, and the 

spraying of herbicides, without the inputs, substances, or practices being in Fink’s OSP or having 

notified MCIA, is in violation of the organic regulations. Further, MCIA states that Fink had 

previously confirmed that it would mow or hand pull weeds around the silos and buildings. The 

OSP of April 18, 2016, although noted as being for dairy, covers the crops and livestock 

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operations. Due to MCIA’s inadvertent omission of Fink in its computer system, a separate OSP 

for Fink wasn’t obtained. 

Additionally, the organic regulations at 7 CFR §205.202, Land requirements, state that 

any field from which harvested crops are to be sold, labeled, or represented as “organic” must 

not have had any prohibited substances applied for a period of 3 years immediately preceding the 

harvest. The inspector noted in the inspection report of June 22, 2019, that he observed Fink 

spraying weeds in the field directly adjoining a corn field requested for certification. However, 

MCIA acknowledged it didn’t take samples from around the silos and buildings, or in the field 

adjoining the corn field or the corn field itself. Therefore, no testing was done to determine what 

substance was allegedly sprayed though MCIA claims that Fink admitted it used herbicides. 

Fink also didn’t provide information or documentation on what exactly was sprayed to 

substantiate that the substance wasn’t prohibited. 

MCIA states that Fink also violated the organic regulations at 7 CFR §205.406, 

Continuation of certification, which requires that certified operations annually provide to their 

certifiers an updated OSP, noting any additions or deletions from the prior plan; an update on the 

correction of previously identified minor noncompliances; and other information deemed 

necessary by the certifier to determine compliance with the Act and organic regulations. In 

addition to not notifying MCIA of spraying to be done around the silo and buildings, and in the 

field adjacent to a corn field, Fink hadn’t kept MCIA informed of changes in the status of various 

fields. Specifically, at the June 22, 2019 inspection, Fink stated that fields at 

had been changed from organic to nonorganic status; that GMO nonorganic corn had been 

planted in the fields; and that the fields had been sprayed with a herbicide which was prohibited 

for organic crops. Additionally, the lactating cow pasture south of at Tomah 

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had been converted from pasture to corn without informing MCIA. This, along with other 

pastures not being used yet for grazing, significantly impacts the amount of pasture available, 

and therefore, the livestock’s ability to meet dry matter intake (DMI) requirements. The 

reduction of pasture and DMI is addressed extensively in the Triple (livestock) case and is not 

addressed here. Lastly, MCIA states that a field was added to the Fink certification at the 

inspection on June 22, 2019, and another was added at the inspection on June 27, 2019, though 

neither had been updated in Fink’s OSP. The inspection reports show a field south of 

and what appear to be fields adjacent to being added. 

ln conclusion, the evidence substantiates that Fink violated the Act and the organic 

regulations at 7 CFR §205.201; and 7 CFR §205.406, as alleged by MCIA. Additionally, the 

evidence substantiates that Fink violated the regulations at 7 CFR §205.400, General 

requirements for certification, which require that a person seeking to maintain organic 

certification must immediately notify the certifying agent of any changes in the operation or any 

portion of the operation that may affect its compliance with the Act or regulations. As discussed 

above, Fink didn’t notify MCIA of several changes in its operations. However, the evidence 

doesn’t substantiate that Fink violated the organic regulations at 7 CFR §205.202, Land 

requirements, as MCIA did not collect samples from the corn field next to the Field by , 

and surrounding area or around the silo and buildings, to support its allegation that Fink sprayed 

prohibited herbicides. Therefore, no testing was done to determine what, if any prohibited 

substance, was sprayed. 

However, Fink’s noncompliances are systemic and repeated. Fink failed on numerous 

occasions to inform MCIA of changes/conversions/additions of various fields as well as 

sprayings to fields, and failed to provide information on inputs, substances, and practices in its 

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OSP. Additionally, Fink operates at 4 different locations, with numerous fields, and the Fink 

family has another operation, Triple, which was also issued a Notice of Noncompliance and 

Proposed Revocation by MCIA. Although Fink states that its operation – the Dale Fink Farms -

is mostly a crops operation and that the livestock are under the Triple F LLC certification, there 

is overlap between the two operations and within the various locations. Further, actions taken at 

one operation can affect the other operation. For example, the conversion of land from pasture to 

corn production affects the available grazing area for the livestock, and therefore, potentially 

detrimentally affects the livestock’s ability to meet the DMI requirement. As both operations 

can be found at any of the 4 locations, there is no clear delineation of operations by location. As 

Fink has been unable to maintain compliance with the organic regulations, it can’t remain 

certified at this time. 

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, 

Fink violated the Act and the organic regulations at 7 CFR §205.201; 7 CFR §205.400; and 7 

CFR §205.406. The repetitive, systemic violations require Fink to conduct a thorough review of 

its operation and ample time to correct the numerous noncompliances. Fink may not remain 

certified at this time; however, the noncompliances, unlike those found in the Triple case, do not 

warrant revocation of Fink’s certification. Although MCIA’s allegation that prohibited 

substances were sprayed on fields can’t be substantiated, Fink is informed that the finding of any 

prohibited substances on crops in the future will result in said crops prohibited from being sold, 

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_________________________________ 

labeled or represented as organic and the land on which the crops were raised being removed 

from organic status for 3 years pursuant to 7 CFR §205.202. 

DECISION 

The Appeal is denied and the Notice of Noncompliance and Proposed Revocation of 

Fink’s certification is upheld with a modification to suspend Fink’s certification. Fink’s crop 

certification is hereby suspended for 1 year. Pursuant to 7 CFR §205.662(f)(1), Fink may 

reapply for certification at any time but will be required to provide evidence that each 

noncompliance has been resolved and that Fink can meet all requirements for certification. 

Additionally, attached to this formal Administrator’s Decision denying Fink’s Appeal is a 

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

an Administrative Law Judge. 

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

day of ________________, 2020. 

BRUCE Digitally signed by BRUCE 

SUMMERS 

SUMMERS Date: 2020.05.11 11:49:19 -04'00'

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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