UNITED STATES DEPARTMENT OF AGRICULTURE

BEFORE THE SECRETARY OF AGRICULTURE

In re:
	Texas Department of Agriculture,	OFPA Docket No. 23-J-0020
	Respondent.

Consent Decision and Order

This proceeding was instituted under the Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501-6524 (OFPA) (the Act), by a Complaint filed, by the Administrator, Agricultural Marketing Service, United States Department of Agriculture, alleging the Texas Department of Agriculture (Respondent) willfully violated the Act and the regulations promulgated thereunder by the Secretary of Agriculture (7 C.F.R. §§ 205.1-205.699 (NOP Regulations). This decision is entered pursuant to the consent decision provision of the Rules of Practice applicable to this proceeding (7 C.F.R. § 1.138).

Respondent admits the jurisdictional allegations in paragraph I of the Complaint and specifically admits that the Secretary has jurisdiction in this matter, neither admits nor denies the remaining allegations, however, admits that its organic program had compliance challenges over a number of years, waives further procedure, waives all rights to seek judicial review and otherwise challenge or contest the validity of this decision, including waiving challenges to the Administrative Law Judge’s authority to enter this Decision and Order under the Administrative Procedure Act and the Constitution of the United States, and waives any action against the United States Department of Agriculture under the Equal Access to Justice Act of 1980 (5 U.S.C. § 504 et seq.) for fees and other expenses incurred by Respondent in connection with this proceeding or any action against any USDA employee in their individual capacity.  The Complainant admits that the Respondent subsequently invested resources to bring itself into compliance during the course of the administrative proceedings. Although the Chief Administrative Law Judge’s decision suspended the Respondent’s accreditation and disqualified Respondent from being eligible to be accredited for one year, the parties consent and agree, for the purpose of settling this proceeding and for such purpose only, to the entry of this Decision.

Findings of Fact

1.         Texas Department of Agriculture of Austin, Texas (Respondent) is a department of the state government of Texas, and whose mailing address is 1700 N. Congress, 11^th Floor, Austin, Texas 78701.

2.         From April 29, 2002, to present date, Respondent has been an accredited certifying agent as defined in the OFPA.  Respondent became an accredited certifying agent on April 29, 2002, when NOP accredited Respondent to engage in organic certification services under OFPA and the NOP Regulations for crops, livestock, and handling.

3.         On January 11, 2017, NOP issued a Noncompliance Report after the December 5 – 9, 2016 renewal audit of Respondent. NOP deferred renewing Respondent’s accreditation.

4.         On June 1, 2018, NOP issued a Noncompliance Report detailing the findings of the March 12 – 14, 2018 onsite audit of Respondent.

5.         On November 2, 2018, NOP issued a Notice of Noncompliance after the review of Respondent’s certification and monitoring of organic dairies from May to August 2018.

6.         On July 8, 2019, NOP issued another Notice of Noncompliance after the review of Respondent’s Annual Report submitted on April 29, 2019.

7.         On August 19, 2019, NOP and Respondent entered into a Settlement Agreement setting forth eight specific terms specifying corrective actions which Respondent had to take, within specific time frames, to avoid a suspension of its livestock accreditation.

8.         On September 3, 2019, NOP issued a notice renewing Respondent’s accreditation for crops, livestock, and handling subject to the terms of the August 19, 2019, Settlement Agreement.  The effective date of the accreditation was backdated to April 29, 2017.

9.         On December 3, 2019, NOP issued another Notice of Noncompliance after the review of Respondents inspection of a dairy operation.

10.       On May 15, 2020, NOP wrote Respondent summarizing the findings of the desk audit of Respondent’s livestock program conducted on April 14 – 16, 2020, and granting Respondent an extension to July 30, 2020, in which to comply with certain terms of the August 2019 Settlement Agreement.

11.       On August 24 – 28, 2020, NOP conducted a desk audit of Respondent’s livestock program.

12.       On November 18 – 24, 2020, NOP conducted a mid-term audit of Respondent’s full organic program, including crops, handling, and livestock.

13.       On February 4, 2021, NOP sent Respondent a Summary of Findings from the August 2020 audit and the November 2020 mid-term audit and prior compliance audits.

14.       On June 2, 2021, NOP issued Respondent a ‘final opportunity letter’ with specific conditions which Respondent must satisfy to remain accredited.  The specific corrective actions/required actions were provided in detail and were divided into actions to be completed within 30, 60, or 90 days. Respondent was informed that NOP would conduct witness audits of operations, and Respondent was to conduct an internal program review.

15.       On August 25, 2021, NOP issued a report on the Results of Witness Audits, detailing the findings of NOP’s August 10 – 12, 2021 onsite audits of Respondent’s inspections of three of its certified operations, one each for crops, handling, and livestock.

16.       On February 25, 2022, NOP issued a Notice of Noncompliance and Proposed Suspension to Respondent.  NOP also offered Respondent a second Settlement Agreement.

17.       On March 24, 2022, Respondent submitted a timely Appeal with NOP appealing the February 25, 2022, Notice of Noncompliance and Proposed Suspension.

18.       On August 15, 2022, the Animal Plant Health Inspection Service (APHIS) Administrator, an independent decision-maker, denied Respondent’s appeal and upheld the Notice of Noncompliance and Proposed Suspension.  The notice was conveyed to Respondent on September 9, 2022.

19.       On October 3, 2022, Respondent filed a timely request for a formal administrative hearing before an Administrative Law Judge, which was accepted by NOP.

20.       Between January 29, 2024, and February 2, 2024, the Chief Administrative Law Judge held a five-day hearing.

21.       On October 29, 2024, the Chief Administrative Law Judge issued a decision and order suspending the Respondent’s accreditation and disqualifying Respondent from being eligible to be accredited for one year.

22.       On December 2, 2024, Respondent appealed the Chief Administrative Law Judge’s decision to the Judicial Officer.

23.       On February 3, 2025, the Judicial Officer remanded this matter to the Chief Administrative Law Judge to take further briefing on how legal principles of acquiescence by administrative agencies apply to this proceeding and whether the Chief Administrative Law Judge may decide the matter on the merits in the first instance in accordance with the Fifth Circuit’s opinion in Jarkesy.

Conclusions

            Respondent having admitted the jurisdictional facts and the parties having agreed to the entry of this decision; such decision will be entered.

Order

1.         This Order does not limit any rights or remedies available to the Complainant for any violation of OFPA and the NOP regulations committed in the future. The Respondent hereby waives and shall not assert any defenses it may have to any administrative action relating to violations of this Order that have been previously ruled upon that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution, the Excessive Fines Clause in the Eighth Amendment to the United States Constitution, any statute of limitations or the doctrine of laches, this Order bars a remedy sought in such administrative action.

2.         The parties agree that nothing in this Order shall preclude any future regulatory or administrative action authorized by law, regulation or otherwise, including, but not limited to the referral of any matter to any agency for enforcement proceedings.

3.         Respondent, its agents and employees, in connection with operations subject to the Act, shall not intentionally or knowingly commit any violations of OFPA and the NOP Regulations.

4.         Respondent will fully and completely cooperate with any NOP investigation, inquiry, review, audit, or examination of the Respondent’s compliance with the OFPA, the NOP Regulations, or this Order.

5.         The Chief Administrative Law Judge retains jurisdiction to issue further decisions and orders as may be necessary to construe, carry out, modify, or enforce compliance with this Order.  Should the Respondent fail to abide by and perform all the terms and conditions set forth herein or such further orders as may be entered in this action, the Complainant shall apply only to this venue for relief, and any alleged violation of this Order shall be adjudicated by the Chief Administrative Law Judge.

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