UNITED STATES DEPARTMENT OF AGRJCULTURE 

AGRJCULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

Inre: ) 

Agricola y Comercializadora ) Administrator's Decision 

Dos Hermanos Spa ) 

Santiago, Chile ) APL-044-19 

) 

) 

This Decision responds to an appeal (APL-044-19) of a Notice of Noncompliance and 

Proposed Suspension of National Organic Program certification issued to Agricola y 

Comercializadora dos Hermanos Spa (Agricola) of Santiago, Chile by the Certification of 

Envirornnental Standards GmbH (CERES). 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. Patt 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 

1 7 U.S.C. 6501-6522 

2 7 C.F.R. Part 205 

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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. On March 25, 2019, CERES issued a Notice of Noncompliance and Proposed Suspension 

citing to Agricola's use of prohibited substances. 

2. On April 1, 2019, Agricola submitted an Appeal with a supplement submitted on May 9, 

2019. 

DISCUSSION 

The USDA organic regulations at 7 C.F.R. 205.102, Use of the te1m, "organic," state that, 

Any agricultural product that is sold, labeled, or represented as "100 percent organic," "organic," 

or "made with organic (specified ingredients or food group(s))" must be: (a) Produced in 

accordance with the requirements specified in §205.101 or §§205.202 tlu·ough 205.207 or 

§§205.236 through 205.240 and all other applicable requirements of part 205 ... " 

The organic regulations at §205.105, Allowed and prohibited substances, methods, and 

ingredients in organic production and handling, state that, "To be sold or labeled as "l 00 percent 

organic," "organic," or "made with organic (specified ingredients or food group(s))," the product 

must be produced and handled without the use of: (a) Synthetic substances and ingredients, 

except as provided in §205.601 or §205.603 ... " 

The organic regulations at §205.202, Land requirements, state that, "Any field or faim 

parcel from which harvested crops are intended to be sold, labeled, or represented as "organic," 

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( 

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 ... " 

The organic regulations at §205.601, Synthetic substances allowed for use in organic crop 

production, state that, "In accordance with restrictions specified in this section, the following 

synthetic substances may be used in organic crop production: Provided, that, use of such 

substances do not contribute to contamination of crops, soil, or water." The section specifically 

lists the allowed synthetic substances. Synthetic substances not Jisted are prohibited in organic 

crop production. 

The organic regulations at §205.671, Exclusion from organic sale, state that, "When 

residue testing detects prohibited substances at levels that are greater than 5 percent of the 

Environmental Protection Agency's tolerance for the specific residue detected or unavoidable 

residual environmental contamination, the agricultural product must not be sold, labeled, or 

represented as organically produced." 

CERES issued a Notice of Noncompliance and Proposed Suspension on March 25, 2019, 

proposing a suspension of Agricola's entire operation after two unannounced inspections 

resulted in finding prohibited substances on samples collected at the inspections. On December 

6, 2018, CERES conducted an unannounced inspection and collected lemon leaf samples from 

Agricola's The January 18, 2019 laboratory results revealed the residue of 

Carbendazim at 0.033 mg/kg; Carbendazim/Benomyl at 0.033 mg/kg and Paclobutrazol at 0.013 

mg/kg on the lemon leaf samples. 

On February 27, 2019, CERES conducted another unannounced inspection and collected 

avocado leaf and fruit samples from a sample of water was collected from a 

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sprayer which Agricola uses on its crops. The March 15, 2019 laboratory results revealed the 

residue ofBoscalid at 0.012 mg/kg and Paclobutrazol at 0.89 mg/kg on the avocado leaves and 

fiuit. The March 20, 2019 lab report of the testing of the sprayer water revealed the presence of 

Carbendazim/Benomyl at 19 μg/I (micrograms per liter); Myclobutanil at 4.5 μg/I; Iprodione at 

1.3 μg/I; Triadimefon at 1.0 μ/I; Diazinon at 0.14 μg/I; Flusilazole at 0.19 μg/I; Kresoximmethyl at 0.03 μg/I and Paclobutrazol at 0.22 μg/I. 

CERES stated that these various prohibited substances are typically used in citrus and 

fruit trees as fungicides, and that the high concentrations of all the substances points to direct use 

and application. Therefore, CERES issued the Notice of Noncompliance and Proposed 

Suspension for Agricola's entire operation, including the lemon and avocado crops. 

In its Appeal, Agricola denies the use of prohibited substances on its lemon and avocado 

crops. Agricola states it collected its own samples of lemon leaves, which it submitted for 

analysis. The samples collected from the border of the property show higher levels of the specific 

prohibited substances than samples collected from the interior of the lemon crop. Agricola 

contends this proves that the contamination is due to drift and not its direct application of the 

Carbendazim, Carbendazim/Benomyl, and Paclobutrazol found in CERES' lab results. 

Regarding the avocado leaves and fruit, Agricola states it submitted samples for analysis; 

however, Agricola aclmowledges that its lab results show levels of Boscalid and Paclobutrazol 

which are similar to the levels found in the lab repmis submitted by CERES. Agricola agrees 

that the avocado crop should be removed from certification. Agricola states that its sampling and 

testing of the sprayer water didn't detect any residue, which differs from CERES' testing, which 

found multiple prohibited substances. 

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Agricola was initially certified organic for crops and handling on May 19, 2017. 

CERES' smprise inspections of Agricola's operation and analysis oflemon leaves collected at 

the December 6, 2018 inspection and analysis of avocado leaves and fruit, and water from a crop 

sprayer collected at the February 27, 2019 inspection show the presence of numerous synthetic 

prohibited substances. In its appeal, Agricola attempted to refute and/or explain the results of the 

laboratory analysis of samples CERES took at the two inspections. 

Agricola submitted a laboratory report of February 25, 2019 showing that sampled lemon 

leaves had residue for Carbendazim at 0.071 mg/kg; Carbendazim/Benomyl at 0.071 mg/kg; and 

Paclobutrazol at 0.016 mg/kg. These levels are slightly higher than those seen in CERES' lab 

reports from the lemon leaf samples collected at the December 6, 2018 inspection, but Agricola 

states the lemon leaf samples noted in this report were collected from the border of their 

property. Agricola states it also took lemon leaf samples from the center of its property and 

submitted a second laboratory report of February 25, 2019 which showed levels of Carbendazim 

at <0.01; Carbendazim/Benomyl was undetected; and Paclobutrazol at <0.01. Additionally, 

Agricola submitted a lab report on lemon leaf samples collected on April 4, 2019, almost 4 

months after CERES' inspection and sampling. The May 3, 2019 report states no pesticides 

were detected on the sampled lemon leaves. Agricola contends these results prove that the 

substances were not directly applied but are due to drift from a neighbor. Agricola also argues 

that the finding of these prohibited substances in higher levels along the lemon crop border 

doesn't mean the entire field is contaminated. However, Agricola also states that the substances 

are not approved for use in Chile and that its neighboring farms do not use the pesticides found 

on the lemon leaf sample, which contradicts Agricola's claim that the substances came to be on 

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the lemon leaves due to drift. Further, even if Chile prohibits the use of the substances, that 

doesn't prove that they weren't used in Chile. 

Additionally, even if Agricola's February 2019 lemon leaf samples had lower levels of 

the prohibited substances than the leaves sampled by CERES at the December 6, 2018 

inspection, and the April 2019 samples showed no pesticides, the findings don't negate CERES' 

lab reports/analysis of samples from the earlier inspection. As CERES contends, new samples 

collected 10 weeks later, and for the April 2019 sample, almost 4 months later, have no 

determinative value since any substances applied to or found on the lemon leaves from earlier 

would have degraded over time resulting in lower levels in subsequent samples. 

To support this point, CERES cited The University of Hertfordshire which maintains a 

Pesticide Properties Database from the International Union of Pure and Applied ChemistJy. The 

database-states that Carbendazim has a half-life in vegetative material of2.2 - 32 days, while 

Paclobutrazol has a half-life of 4.4- 6 days, which would explain subsequent lower levels if the 

substances weren't reapplied to the lemon crop. (A half-life is the time it takes for a 

concentration ofa substance to fall by half its initial value.) Additionally, CERES' refusal to 

take new lemon leaf samples at the February 27, 2019 inspection is irrelevant, because regardless 

of the results from taking new samples, the prior findings of prohibited substances remains. 

Lastly, it is noted that CERES stated it had provided information to Agricola on the requirements 

and procedures for counter sample analysis; however, CERES couldn't confirm if Agricola 

followed the procedures for its sampling and testing. 

Regarding the avocado leaves and fruit, Agricola states that CERES took extra samples at 

the February·27, 2019 inspection which it left with Agricola, and which it submitted separately 

for testing. However, Agricola aclmowledges that the lab results for samples of avocado leaves 

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it submitted show levels of Boscalid and Paclobutrazol which are similar to the levels found in 

lab reports submitted by CERES. Agricola's lab reports do not include the frnit. Specifically, 

CERES submitted a lab report of March 15, 2019 which shows the residue ofBoscalid 0.012 

mg/kg and Paclobutrazol at 0.89 mg/kg on avocado frnit and leaves sampled at the Febrnary 27, 

2019 inspection. Agricola's lab reports of March 6, 2019 show Boscalid at 0.01 mg/kg from 1 

sample of avocado leaves, and Boscalid at .011 mg/kg and Paclobutrazol at 0.455 mg/kg from 

the other sample of avocado leaves. 

Agricola attempts to explain the prohibited substance residues fouud on the avocado 

leaves and fruit, stating it discovered that the same tractor that had just applied Paclobutrazol to 

the conventional Gem avocados was used by mistake to apply Purespray Green Oil to the 

organic avocados even though there is separnte tractor used exclusively for the organic crops. 

The conventional tractor had also previously been used to apply Boscalid to conventional crops. 

It is noted that CERES states it was not aware that Agricola had conventional avocados as they 

were not declared in Agricola's organic plan. However, CERES contends that the level of 

Boscalid on the avocado leaf and fruit samples is too high to be attributed to the use of a tractor 

used for the conventional crops with Boscalid residue remaining on the tractor. Regardless, 

Agricola states the avocado crop was contaminated and agrees the avocado crop should be 

removed from its certification. 

Lastly, CERES' testing of the sprayer water sampled at the Febrnary 27, 2019 inspection 

revealed, in the March 20, 2019 report, the presence ofCarbendazim/Benomyl at 19 μg/1; 

Myclobutanil at 4.5 μg/1; Iprodione at 1.3 μg/1; Triadimefon at 1.0 μII; Diazinon at 0.14 μg/I; 

Flusilazole at 0.19 μg/I; Kresoxim-methyl at 0.03 μg/1 and Paclobutrazol at 0.22 μg/I, all of 

which are prohibited synthetic substances. It is understandable to find the 

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Carbendazirn/Benomyl and Paclobutrazol in the water sample, since those substances were also 

found on the lemon leaf samples and the sprayer had been used on the lemon crop. CERES also 

states that the laboratory double-ran the sample and confinned its initial findings. 

Agricola states that it took a sample of the sprayer water which it sent for testing, and the 

lab report of March 15, 2019 doesn't reveal any pesticide residue in the sprayer water sample. 

However, the analysis scope of the laboratory used by Agricola didn't include testing the sprayer 

water sample for fungicides Carbendazirn/Benomyl, Triadimefon, Flusilazole, Iprodione, 

Kresoxim-methyl, and Paclobutrazol. Therefore, it is expected that the results wouldn't reveal 

these substances and the results aren't contradictory to the lab report from CERES' sample 

which revealed numerous prohibited substances. 

Agricola also argues that although CERES states that Myclobutanil, Iprodione, and 

Triadimefon were found in the water sample, those substances were not found on the lemon leaf 

sample or the avocado leaves and fruit. However, while this is true, it is not known on what 

crop/area the sprayer had been used immediately prior to CERES taking its water sample. 

Further, the absence of these substances in the lemon and avocado samples doesn't contradict the 

possibility that these pesticides were used on prior occasions and degraded under field conditions 

as opposed to inside a sprayer. The University of Hertfordshire's Pesticide Properties Database 

shows that Myclobutanil and Triadimefon degrade much faster in soil than in water. 

Additionally, the sprayer in question is allegedly used only on organic crops and shouldn't have 

any fungicide residue. 

CERES notes that citrns fruits including lemons and avocados are both highly susceptible 

to diseases caused by fungi, and the substances found on the lemon leaves, avocado leaves and 

fruit, and in the water sprayer are fungicides. The University of California Agriculture and 

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Natural Resources Department confirms the susceptibility of lemons and avocados to fungi. 

CERES also contends that the concentration of the prohibited substances points to direct 

application by Agricola. Agricola's Organic Management Plan indicates there are problems with 

fungi in Agricola's operation, specifically the lemon crop. However, while Agricola's desire to 

control or eradicate the fungi from its crops is understandable, the use of such 

fungicides/pesticides is prohibited under the organic regulations. 

The Environmental Protection Agency (EPA) has established tolerance levels for various 

pesticide chemicals, setting limits on the amount of the chemical allowed on an agricultural 

product. It is noted that pursuant to 40 C.F.R. Part 180, the synthetic substances Carbendazim; 

Carbendazim/Benomyl; Paclobutrazol; Myclobutanil; Iprodione; Triadimefon; Diazinon; 

Flusilazole; and Kresoxim-methyl do not have established EPA tolerance levels. According to 

the Federal Food, Drug and Cosmetic Act, imported commodities are considered adulterated 

unless the EPA has established a tolerance for the pesticide on that commodity and the residues 

are within the tolerance (21 U.S.C. 346(a)). Therefore, these substances must not be used on 

agricultural commodities that will enter the U.S. market. However, because the residue was 

found on the lemon leaves, but the lemon fruit was not sampled, we are not reporting these 

results to the EPA. The one substance found in the samples that has an EPA tolerance is 

Boscalid, with a tolerance in or on avocados of 1.5 ppm. For Boscalid, 5% of the EPA tolerance 

is 0.075 ppm. Therefore, the above-referenced lab reports showing levels of 0.012, 0.011, and 

0.01 ppm on avocado leaf and fruit samples are below that threshold. Paclobutrazol was also 

detected on avocado fruit and leaf samples. There is no EPA tolerance for Paclobutrazol in or on 

avocados. 

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Lastly, it is noted that CERES also issued a Notice of Noncompliance and Proposed 

Suspension to Agricola on the same basis regarding Agricola's compliance with Chile's 

agriculture standards; and the Chilean Agriculture and Livestock Service (SAG), to which 

Agricola appealed, supported CERES' decision to downgrade Agricola's operation to 

conventional. 

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. Prohibited 

synthetic substances have been found on samples from Agricola's lemon crop, avocado crop, and 

a water sprayer used on the crops. The evidence shows that prohibited substances were applied 

to the lemon and avocado crops. Regardless of residue levels, the application of such substances 

is a violation of the organic regulations at 7 C.F.R. 205.102; 7 C.F.R. 205.105(a); and 7 C.F.R. 

205.601. Therefore, Agricola's crops may not be represented, labeled, or sold as organic. 

DECISION 

The appeal is denied and Agricola's organic certification as to crops is to be suspended 

for 3 years from the date of CERES' last sampling, February 27, 2019. Agricola is also 

prohibited from representing, labeling, or selling its crops as organic during the 3-year 

suspension period. Agricola's certification for handling is unaffected. 

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Attached to this fmmal Administrator's Decision denying Agricola's appeal is a Request 

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

Administrative Law Judge. 

If Agricola waives the hearing, the Agricultural Marketing Service will direct CERES to 

issue a Notice of Suspension for Agricola's crop certification for 3 years. Baning the interim use 

of any prohibited substance on the crops, Agricola will be eligible for reinstatement of its organic 

crop certification on February 27, 2022, after the 3-year suspension period has ended. The 

request must be accompanied by evidence demonstrating cmTection of each noncompliance and 

corrective actions taken to comply with and remain in compliance with the Act and the 

regulations in this pmi." 

Done at Washington, D.C., on this 1-f"- day of ()c.,\,.,p,t , 2019. 

ruceSummers 

Administrator 

Agricultural Marketing Service 

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