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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

 

In re: 

Sassy Cow Creamery LLC/ 

 ) 

 ) 

) 

) 

 ) 

) 

 ) 

 

Baerwolf Dairies LLC 

 

Columbus, Wisconsin 

 

 

Administrator’s Decision 

APL-060-20 

 

 

This Decision responds to an Appeal (APL-060-20) of a Notice of Proposed Suspension 

of National Organic Program (NOP) certification issued to Sassy Cow Creamery LLC/Baerwolf 

Dairies LLC (Baerwolf) of Columbus, Wisconsin, by Midwest Organic Services Association 

(MOSA). 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 

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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. Baerwolf was initially certified organic for crops and livestock on November 8, 2000. 

2. On January 16, 2018, Baerwolf and MOSA entered into a Settlement Agreement. 

3. On March 28, 2018, MOSA issued a Notice of Noncompliance. 

4. On December 20, 2018, MOSA issued a Notice of Proposed Suspension. 

5. On January 15, 2019, Baerwolf filed an Appeal. 

6. On July 30, 2019, AMS issued an Administrator’s Decision denying Baerwolf’s Appeal and 

affirming the Notice of Proposed Suspension (Case APL-017-19). 

7. On August 19, 2019, Baerwolf requested an administrative hearing before an Administrative 

Law Judge (ALJ). 

8. On August 19, 2019, Baerwolf’s hearing request was formally acknowledged. The hearing is 

still pending. 

9. On January 24, 2020, MOSA issued a Notice of Noncompliance. 

10. On March 19, 2020, MOSA issued a Notice of Proposed Suspension. 

11. On April 23, 2020, MOSA issued a Notice of Rejection of Mediation to Baerwolf’s request 

for mediation. 

12. On May 20, 2020, Baerwolf filed an Appeal. 
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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 group(s)); (b) Such records must: (1) Be adapted to the particular 

business that the certified operation is conducting; (2) Fully disclose all activities and 

transactions of the certified operation in sufficient detail as to be readily understood and audited; 

(3) Be maintained for not less than 5 years beyond their creation; and (4) Be sufficient to 

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

The organic regulations at §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 system plan must meet the requirements 

set forth in this section for organic production or handling. 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 
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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 

products with prohibited substances; and (6) Additional information deemed necessary by the 

certifying agent to evaluate compliance with the regulations.” 

The organic regulations at §205.205, Crop rotation practice standard, state that, “The 

producer must implement a crop rotation including but not limited to sod, cover crops, green 

manure crops, and catch crops that provide the following functions that are applicable to the 

operation: (a) Maintain or improve soil organic matter content..” 

The organic regulations at §205.236, Origin of livestock, 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: Except, That: ... (2) 

Dairy 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; and ... (iii) Once an entire, 

distinct herd has been converted to organic production, all dairy animals shall be under organic 

management from the last third of gestation...(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 
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produced... (c) The producer of an organic livestock operation must maintain records sufficient 

to preserve the identity of all organically managed animals and edible and nonedible animal 

products produced on the operation.” 

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 

agricultural products, including pasture and forage, that are organically produced and 

handled...(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. Ruminant 

animals must be grazed throughout the entire grazing season for the geographical region, which 

shall be not less than 120 days per calendar year. Due to weather, season, and/or climate, the 

grazing season may or may not be continuous. (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...(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. (2) Document the amount of each type of feed actually fed to each type and class of 

animal...” 

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: (1) 
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Year-round access for all animals to the outdoors, shade, shelter, exercise areas, fresh air, clean 

water for drinking, and direct sunlight...Yards, feeding pads, and feedlots may be used to 

provide ruminants with access to the outdoors during the non-grazing season...Continuous total 

confinement of any animal indoors is prohibited...(2) For all ruminants, management on pasture 

and daily grazing throughout the grazing season(s) to meet the requirements of §205.237...(4) 

Shelter designed to allow for...(b) The producer of an organic livestock operation may provide 

temporary confinement or shelter for an animal because of: (1) Inclement weather...” 

The organic 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.” Specifically, producers must manage pasture to annually provide a minimum of 30 

percent of a ruminant’s dry matter intake (DMI), on average, over the course of the grazing 

season. 

Certifier MOSA stated in the Notice of Proposed Suspension issued on March 19, 2020, 

that Baerwolf’s crop rotation practices found during the November 2019 inspection were noncompliant; Baerwolf had moved livestock between the organic and conventional operations; and 

records on livestock feed and rations were not available to determine compliance with the 

regulations. MOSA also found there was not enough information available to determine if DMI 

requirements were being met, and that not all livestock were provided year-round outdoor 

access. 

Baerwolf stated in its Appeal that it has “worked very hard in good faith with MOSA to 

correct any issues concerning our operation.” Baerwolf states it has repeatedly attempted to 

prove that the DMI requirements are being met, and that the raising of its heifers and the housing 
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operations are in compliance with the NOP organic regulations. However, Baerwolf states that 

MOSA doesn’t seem to understand its records, or it requests additional information above that 

required of other operations. 

Baerwolf operates organic and conventional dairy operations with organic and 

conventional livestock on separate farms; and markets their dairy products under their own brand 

name. Documentation substantiates that Baerwolf has a history of noncompliance regarding 

recordkeeping on livestock feed and rations, meeting DMI requirements, re-transitioning 

livestock, and crop rotation. MOSA’s November 2017 inspection revealed a number of 

noncompliances, which led to a Settlement Agreement of January 16, 2018 between MOSA and 

Baerwolf. However, after issuing a Pre-Decisional Requirements Letter on February 26, 2018, 

MOSA issued a Notice of Noncompliance on March 28, 2018, which was subsequently resolved 

on May 14, 2018. However, the October 29 – 30, 2018 inspection again revealed 

noncompliances and led to a December 20, 2018 Notice of Proposed Suspension, which 

Baerwolf appealed on January 15, 2019. 

On July 30, 2019, AMS issued an Administrator’s Decision (Case APL-017-19) denying 

Baerwolf’s Appeal and affirming the December 20, 2018 Notice of Proposed Suspension. On 

August 19, 2019, Baerwolf submitted a request for an administrative hearing before an ALJ, 

which was formally acknowledged that same day. However, as the requested hearing is still 

pending, Baerwolf’s certification remains active and it has continued operations under the review 

of MOSA. 

Therefore, as a separate set of actions from the previous proposed adverse action and 

appeal, MOSA conducted an inspection of Baerwolf’s farm, livestock, and handling operations 

on November 14 and 15, 2019. Many of the same noncompliances were again found; however, 
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because these happened after the issuance of the previous proposed adverse action, they are 

considered separate and independent violations from the previous case. The inspection findings 

resulted in issuance of a Notice of Noncompliance on January 24, 2020, stating that required 

records were not maintained; inputs were used prior to MOSA’s approval; Baerwolf’s crop 

rotation was non-compliant; and Baerwolf hadn’t followed the regulations regarding the origin of 

livestock and pasture practice standards. Baerwolf was given until February 17, 2020 to respond 

to MOSA, and although some of the cited noncompliances were subsequently resolved, others 

were not resolved. 

Therefore, on March 19, 2020, MOSA issued a Notice of Proposed Suspension citing to 

the still outstanding noncompliances. Specifically, MOSA stated that the May 23, 2019 

Certification Letter had noted Baerwolf’s typical crop rotation plan of 3 to 4 years of alfalfa 

followed by 1 to 2 years of corn, and that Baerwolf would notify MOSA if it planned to plant 

corn more than 2 consecutive years. However, this plan wasn’t followed, as Baerwolf’s Field 37 

had corn planted 4 consecutive years, while Field 38 had corn planted 6 consecutive years. 

MOSA noted that Baerwolf had responded to the Notice of Noncompliance and said that climate 

conditions and low-lying fields hadn’t allowed it to follow the crop rotation plan in 2019. 

However, while the November 2019 inspection reports noted that Baerwolf’s land is flat, MOSA 

stated that Baerwolf must have a more robust plan to ensure crop rotation even when weather 

conditions change. 

Lastly, MOSA stated that records weren’t available to determine Baerwolf’s compliance 

with pasture practice standards; feeding records didn’t show how many animals were in each 

group; and there wasn’t enough information to determine if Baerwolf had met DMI requirements 

of ruminant animals receiving at least 30% of the DMI from grazing throughout the grazing 
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season. Further, records showed that the animals were given outside access only 131 days in 

2019 while the average for the geographical area is 150 – 180 days. MOSA stated that while 

Baerwolf claims that the lactating cows were on pasture 131 days, the other groups of animals 

were on pasture at least 150 days, but there were no records submitted to substantiate this. 

Baerwolf requested mediation, which MOSA rejected on April 23, 2020. MOSA stated 

that due to several previously cited noncompliances, issuance of adverse action notices, and a 

settlement agreement with Baerwolf which was breached, MOSA doesn’t “have confidence” in 

Baerwolf’s ability to satisfactorily correct the noncompliances. MOSA also stated that it hadn’t 

received any new information that would change their decision. Baerwolf stated in its May 20, 

2020 Appeal that it wishes to continue working with MOSA, and already submitted its 2020 

documentation and certification fees, but that MOSA doesn’t seem to understand the 

documentation which Baerwolf has submitted although they have worked hard “in good faith” to 

correct noncompliances. 

During the pendency of the Appeal, MOSA conducted the 2020 inspection on September 

28 and 29, 2020, and submitted the Handler Inspection Report, Livestock Inspection Report, and 

Farm Inspection Report to NOP on October 9, 2020. Initially MOSA stated that it hadn’t yet 

reviewed the reports, though it appeared that there has been improvement by Baerwolf though 

clarification may still be needed on feed rations. NOP’s review of the reports shows the 

inspector noted that all animals now have or will have daily outdoor access including the dry 

cow/big heifer group which previously hadn’t had such access in the winter. The inspector 

stated that the grazing season had started May 1, 2020 and as of September 27, 2020, all groups 

of animals had 144 days on pasture, and with time still remaining in the grazing season would 
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reach 150 days for the season. This is an increase from the 2019 season where documentation 

substantiated only 131 days on pasture. 

The inspector identified calves still transitioning from conventional to organic 

management, for which Baerwolf has a transition plan in place. The inspector also stated that 

Baerwolf was prepared for the inspection with both pasture/feed logs and ration records for the 3 

animal groups. The Livestock Inspection Report stated that Baerwolf and its nutritionist 

disagreed with MOSA’s Dry Matter Demand chart and calculations, and the inspector noted that 

Baerwolf’s position was a ‘fair argument,’ for which Baerwolf’s nutritionist could submit a 

supporting letter. 

Lastly, the inspector noted that all corn planted in 2020 was planted in fields not used for 

corn in 2019. Baerwolf stated that it and the inspector spent a lot of time discussing the feed and 

pasture requirements at the recent inspection and that MOSA agreed that some of the benchmark 

figures need to be updated. However, MOSA subsequently informed NOP that it completed the 

review of the September 2020 inspection reports and issued a Notice of Noncompliance on 

October 19, 2020, for the continued use of inputs which hadn’t previously been approved by 

MOSA. 

In conclusion, while Baerwolf appears to now be addressing the noncompliances 

regarding the origin of livestock, recordkeeping, pasture practice standards, and crop rotation, the 

noncompliances have been long-standing, systemic, repeat noncompliances. Baerwolf must be 

able to consistently maintain compliance with all the organic regulations on a long-term basis, 

which hasn’t been established at this time. 
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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. Evidence 

substantiates that Baerwolf’s violations of the organic regulations at 7 C.F.R. §205.103; 7 C.F.R. 

§205.201; 7 C.F.R. §205.205; 7 C.F.R. §205.236; 7 C.F.R. §205.237; 7 C.F.R. §205.239; and 7 

C.F.R. §205.240. The November 2019 inspection by MOSA confirmed that these 

noncompliances occurred from October 31, 2018, subsequent to the prior inspection, to 

November 14-15, 2019, and are therefore separate from the case before the ALJ at this time. 

Therefore, Baerwolf may not remain certified at this time. 

DECISION 

The Appeal of May 20, 2020 is denied. MOSA’s March 19, 2020 Notice of Proposed 

Suspension is affirmed. Baerwolf’s crop and livestock certification is to be suspended. 

However, pursuant to 7 C.F.R. §205.662(f)(1), Baerwolf may apply for reinstatement of its crop 

and livestock certification at any time. The request for reinstatement must be accompanied by 

evidence demonstrating correction of each noncompliance found by MOSA and corrective 

actions taken to comply with and remain in compliance with the Act and the organic regulations. 

While its certification is suspended, Baerwolf may not sell, represent, or label its agricultural 

products as organic. 

Attached to this formal Administrator’s Decision denying Baerwolf’s Appeal is a 

Request for Hearing form. Baerwolf has thirty (30) days to request an administrative hearing 
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before an Administrative Law Judge. If Baerwolf waives the hearing, the Agricultural 

Marketing Service will direct MOSA to issue a Notice of Suspension. 

Done at Washington, D.C., on this _____ 23rd

 day of ________________, 2020 November

________________________________ 

BRUCE

SUMMERS

Digitally signed by BRUCE 

SUMMERS

Date: 2020.11.22 20:44:37 -05'00'

Bruce Summers 

Administrator 

Agricultural Marketing Service