with §205.105, Allowed and prohibited substances..., and, therefore, §205.202(b), Land

requirements.

DECISION
The appeal is denied and OEFFA’s combined Notice of Noncompliance and Proposed
Partial Suspension is upheld. Vernon Yoder’s organic certification is partially suspended for
fifty-four (54) acres of field L70 for three (3) years from the date of substance application.
Attached to this formal Administrator’s Decision denying Vernon Yoder’s appeal is a
Request for Hearing form. Vernon Yoder has thirty (30) days to request an administrative

hearing before an Administrative Law Judge.

Done at Washington, D.C., on this F
day of A’2VEmPER _, 2015.

Rex A. Barnes

Associate Administrator


UNITED STATES DEPARTMENT OF AGRICULTURE
AGRICULTURAL MARKETING SERVICE
BEFORE THE ADMINISTRATOR

Administrator’s Decision
APL-035-15

In re:

ww

Vernon Yoder

This Decision is in response to an appeal (APL-035-15) of a combined Notice of
Noncompliance and Proposed Partial Suspension of a specific field issued to a certified crop
operation, Vernon Yoder (Yoder), by its U.S. Department of Agriculture (USDA) accredited
certifying agent OEFFA Certified Organic (OEFFA). The operation was deemed not in
compliance with the Organic Foods Production Act of 1990 (Act)! and the 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 CFR Part 205). Certifying agents
also initiate compliance actions to enforce program requirements. Noncompliance procedures are
described in §205.662, Noncompliance procedure for certified operations, of the USDA organic
regulations. Persons subject to the Act who believe that they are adversely affected by a
noncompliance decision of a certifying agent may appeal such decision to the Administrator of

the Agricultural Marketing Service (AMS), United States Department of Agriculture (USDA),

7 U.S.C, 6501-6522
27 CER, Part 205



pursuant to §205.680, Adverse Action Appeals Process — General, and §205.681, Appeals, of the
USDA organic regulations,
FINDINGS OF FACT
1. OEFFA is an accredited certifying agent under the USDA organic regulations, first
accredited on April 29, 2002.
2. On July 8, 2015, OEFFA issued Yoder a combined Notice of Noncompliance and
Proposed Partial Suspension for a portion of his operation because OEFFA identified that
a molasses product that contained substances prohibited in organic crop product was
applied during an emergency replanting of his corn crop.
3. On August 6, 2015, Yoder requested mediation, which OEFFA rejected on August 21,
2015.
4. On September 18, 2015, AMS received an appeal from Yoder, which was accepted as

timely.

DISCUSSION
OEFFA has issued a combined Notice of Noncompliance and Proposed Partial
Suspension to Yoder for fifty-four (54) acres of field L70, due to the use of a molasses feed
product during replanting, which contains substances prohibited for use in organic crop
production. The effect of a suspension for this action means that no products from the suspended
portion of the operation can be sold, labeled, or represented as organic. The suspended fields will
be eligible for certification three (3) years after prohibited substance application,

In its appeal, Yoder explained the circumstances behind an emergency replanting of a

portion of his corn field. During the review of the field


who agreed the portion of the field should be replanted, Yoder discussed using AO |
a tor an in-furrow application. The TT +2: using the Pe |
RE ould help with the replanting, and suggested Yoder add molasses as well. Yoder
procured some molasses from a local livestock feed company and applied the product during
replanting.

Yoder stated that the use of prohibited substances during his emergency replanting of a
section of his corn field was accidental and unintentional; specifically, that he did not check the
molasses product label to confirm it was free from prohibited substances. Yoder explains in his
appeal that use of the molasses product was minimal; approximately three (3) ounces per acre
was applied. As the application was unintentional and a minima! amount was applied to a
portion of the land, Yoder requested the proposed partial suspension be reduced to one (1) year
instead of three (3) years.

The USDA organic regulations are clear regarding the use of prohibited substances on
crop land. Any use of prohibited substance, regardless of the reason, source, or hardship

endured, declassifies land of its “organic” status and requires a transition period for three years

preceding the harvest of a crop intending to be sold, labeled, or represented as “organic.”

CONCLUSION
Though Yoder submitted documentation to support his appeal, the noncompliance
leading to the Combined Notice of Noncompliance and Proposed Partial Suspension remains
unresolved. As a result of applying a molasses product that contains substances prohibited for

use in organic crop production, fifty-four (54) acres of field L70 is not yet in full compliance