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Administrator’s Decision 

APL-051-22 

 

UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

In re:

 

Agricola EBM S.A. de C.

Baja California, Mexico 

V.

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This Decision responds to an Appeal (APL-051-22) of a Notice of Noncompliance and 

Proposed Revocation under the National Organic Program (NOP) issued to Agricola EBM S.A. 

de C.V. (EBM) of Baja California, Mexico by SCS Global Services (SCS), a USDA accredited 

certifying agent. 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. On January 14, 2020, EBM became certified for crops. 

2. On February 25, 2022, SCS issued a Notice of Noncompliance to EBM. 

3. On March 24, 2022, SCS issued a Notice of Noncompliance to EBM. 

4. On April 14, 2022, SCS issued a Notice of Noncompliance and Proposed Revocation to 

EBM. 

5. On April 21, 2022, SCS denied EBM’s request for mediation. 

6. On May 16, 2022, EBM filed an Appeal. 

DISCUSSION 

The USDA organic regulations at 7 C.F.R. §205.105, Allowed and prohibited substances, 

methods, and ingredients in organic production and handling, state that, “To be sold or labeled as 

“100 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; (b) Nonsynthetic 

substances prohibited in §205.602 or §205.604 ...” 

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: ... (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 §205.203, 

Soil fertility and crop nutrient management practice standard, state that, “(e) The producer must 

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not use: (1) Any fertilizer or composted plant and animal material that contains a synthetic 

substance not included on the National List of synthetic substances allowed for use in organic 

crop production ...” 

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 ... 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 ... must include: ... (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 ... (6) Additional information deemed 

necessary by the certifying agent to evaluate compliance with the regulations ...” 

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 ... 

(f) Immediately notify the certifying agent concerning any: (1) Application, including drift, of a 

prohibited substance to any field, production unit, site, facility, livestock, or product that is part 

EBM was certified organic for crops, specifically brussel sprouts, peas, and green beans, 

on January 14, 2020 by SCS. On February 14, 2022, SCS conducted a renewal inspection of 

EBM and took a sample of brussel sprouts in A 

 in which it grows organic brussel sprouts. The SIASA 

(b) (4)

(b) (4)

(Servicio Integral a la Agroindustria S.A. de C.V.) lab report of February 22, 2022 revealed the 

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presence of Chlorpyrifos-ethyl at 0.105 mg/kg and Imidacloprid at 0.934 mg/kg in the 

(b) (4)

sample. 

The Environmental Protection Agency (EPA) tolerance level for Chlorpyrifos-ethyl in 

brussel sprouts at that time was 1.0 mg/kg. Therefore, the 5% allowed level in organic brussel 

sprouts was 0.05 mg/kg. The EPA revoked the tolerance level for this substance on February 28, 

2022, barring all use in agricultural crops. The EPA tolerance level for Imidacloprid in brussel 

sprouts is 3.5 mg/kg and therefore, the allowed 5% level in organic brussel sprouts is 0.175 

mg/kg. The levels of these 2 prohibited substances in organic brussel sprouts sampled from 

EBM’s 

(b) (4)

 significantly exceed the allowed 5% level. However, EBM’s input list didn’t 

contain any prohibited substances. 

Therefore, on February 25, 2022, SCS issued a Notice of Noncompliance to EBM 

detailing the laboratory findings, stating that the brussel sprouts from 

(b) (4)

couldn’t be 

represented or sold as organic, and stating that EBM must submit a written rebuttal or correction 

action for the noncompliance, along with supporting documentation. SCS instructed EBM to 

provide an assessment of the affected product including lot numbers and quantities, report on the 

disposition of the contaminated product, investigate the origin of the contamination, and describe 

the procedures for preventing contamination in the future. 

EBM replied to SCS on March 8, 2022, stating that prohibited substances including 

Chlorpyrifos-ethyl and Azoxystrobin had been applied to 

(b) (4)

 due to input application staff 

not being supervised. EBM also stated that on March 7, 2022, it had conducted training of staff, 

specifically, “A training to the personnel that is dedicated to foliar applications and irrigators was 

made, emphasizing the lists of authorized products, and the identification of toxicity bands and 

OMRI registers in the label.” EBM stated that it renewed the contract of the engineer who is to 

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oversee the application of inputs, and it conducted sampling and testing of brussel sprouts from 

(b) (4)

 on March 1, 2022, and only found Chlorpyrifos-ethyl at 0.03 mg/kg. However, this 

finding doesn’t negate SCS’s original findings. 

Further, subsequent findings established the application of prohibited substances at all 

(b) (4)

locations. Specifically, on March 10, 2022, SCS conducted an unannounced 

inspection of EBM’s 

(b) (4)

 and took samples of the organic brussel sprouts in all 

(b) (4)

 locations, collecting leaves at 5 different points within each 

(b) (4)

. At the inspection, EBM 

stated that the prior contamination of 

(b) (4)

was the result of staff from the conventional plots 

applying inputs without the consent of the organic manager. 

The March 17, 2022 SIASA lab reports from the analyses of the samples from the 

organic brussel sprouts in 

(b) (4)

, revealed the presence of 9 different prohibited 

substances, with most substances found at levels exceeding 5% of the EPA tolerance level 

allowed in organic brussel sprouts. The results of the (b) ( SIASA lab reports were charted with the 

EPA tolerance levels and the 5% allowance for organic crops and show that each of the 

samples had various prohibited substances, with some of the substances found at levels that were 

multiple times the allowed levels. These include Chlorantraniliprole at 54.102 mg/kg on 

1; at 44.47 mg/kg on 

(b) (4)

and at 58.337 mg/kg on 

(b) (4) (b) (4) (b) (4)

Therefore, on March 24, 2022, SCS issued a second Notice of Noncompliance, detailing 

the laboratory findings of the samples from 

(b) (4)

; stating that the brussel sprouts from the 

(b) (4)

 couldn’t be represented or sold as organic; and again asking EBM to provide a written 

rebuttal or corrective actions in regard to the findings. EBM wrote SCS on March 29, 2022, 

stating that it has 

(b) (4)

 of meshed organic brussel sprouts, and investigated the findings of 

contamination in 

(b) (4)

. EBM acknowledged that the substances found on the 

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samples aren’t allowed in organic crop production, and stated it would sell the brussel sprouts as 

conventional. EBM didn’t mention 

(b) (4)

 even though prohibited substances had been found 

on those samples from February 14, 2022 and March 10, 2022. On April 4, 2022, EBM wrote 

SCS stating that “ignorance of some workers and the lack of supervision” caused the 

contamination of 

(b) (4)

. EBM stated that it decided to sell the brussel sprouts as 

conventional which explains the contamination of the crop. EBM wrote SCS on April 6, 2022, 

stating the brussel sprouts will be sold in the conventional market. SCS stated to NOP that EBM 

never mentioned converting the brussel sprout 

(b) (4)

 to conventional until sampling at the 

unannounced inspection revealed prohibited substances. 

Based on the above, SCS issued a Notice of Noncompliance and Proposed Revocation of 

certification on April 14, 2022. SCS stated that its review showed that EBM deliberately applied 

multiple prohibited substances, even after stating that the application of prohibited substances 

which led to sample results from 

(b) (4)

 taken February 14, 2022, was accidental and due to 

lack of staff supervision. Further, SCS stated that EBM had submitted corrective actions on 

March 8, 2022, and allegedly conducted training of staff on March 7, 2022. However, despite 

this, SCS found even higher levels of prohibited substances on samples taken March 10, 2022 at 

an unannounced inspection. SCS contends that the extremely high levels of some of the 

prohibited substances shows that the substances were recently applied, even subsequent to 

EBM’s alleged training of its staff and submission of corrective actions. SCS denied EBM’s 

mediation request, stating that “mediation would not be the appropriate course of action due to 

the nature of the violation.” It is noted that the finding of prohibited substances, especially the 

number of substances and widespread use in this case, isn’t correctable. 

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EBM filed an Appeal stating that it will not market the brussel sprouts from 

(b) (4)

as organic and will remove the 

(b) (4)

 of brussel sprouts from its organic production. EBM 

presented corrective actions including the hiring of qualified personnel, specifically an 

agronomist to manage its phytosanitary products; separating machinery between organic and 

conventional production; reviewing its coding system to avoid mixing organic and conventional 

crops; and reviewing and restructuring its ‘work system’ to avoid this situation in the future. 

EBM states that its organic peas and green beans are not affected by, nor close to, the brussel 

sprout 

(b) (4)

 and therefore, should retain certification. 

CONCLUSION 

Evidence substantiates that EBM willfully violated the organic regulations at 7 C.F.R. 

§205.105, Allowed and prohibited substances, methods, and ingredients in organic production 

and handling; 7 C.F.R. §205.201, Organic production and handling system plan; 7 C.F.R. 

§205.202, Land requirements; and 7 C.F.R. §205.400, General requirements for certification. A 

brussel sprout sample from EBM’s 

(b) (4)

 taken on February 14, 2022 revealed the presence of 

prohibited substances, which EBM, addressing the finding on March 8, 2022, blamed on 

unsupervised staff, and stated that it had conducted training of it staff on March 7, 2022 

regarding prohibited substances, and presented corrective actions to SCS. However, 2 days 

later, SCS conducted an unannounced inspection and samples from 

(b) (4)

of brussel 

sprouts revealed numerous prohibited substances on every sample, the majority exceeding the 

5% of the EPA tolerance level for organic brussel sprouts, and several exceeding the 5% 

numerous times over. Chlorantraniliprole was found at levels exceeding 250 times the allowed 

5% level for organic brussel sprouts. 

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Such high levels of prohibited substances points to the intentional application of said 

substances and can’t be explained by cross contamination from the conventional land, which 

isn’t close to the organic land. Further, it appears the prohibited substances were applied 

subsequent to the February 10, 2022 inspection and sampling from 

(b) (4)

which resulted in the 

February 25, 2022 Notice of Noncompliance. This constitutes a willful violation of the organic 

regulations and contrary to EBM’s corrective actions submitted to SCS and EBM’s own input 

list which didn’t include any of the substances. Further, it was only after the March 10, 2022 

samples revealed high levels of various prohibited substances, resulting in SCS issuing a 2nd 

Notice of Noncompliance, that EBM mentioned converting 

(b) (4)

 of brussel sprouts to 

conventional production. 

As the application of prohibited substances isn’t correctable, and SCS had reason to 

believe that EBM willfully violated the organic regulations, the issuance of a Notice of 

Noncompliance and Proposed Revocation was proper pursuant to the organic regulations at 7 

C.F.R. §205.662. The use of prohibited materials is a serious violation of the USDA organic 

standards, and it is essential that organic staff be aware of the regulatory requirements and 

effectively implement them. Further, any regulatory violations need to be resolved with 

corrective actions that are effective in their implementation over time. By issuing two 

noncompliances, SCS provided ample opportunities for EBM to improve its organic control 

system. Despite this, while EBM stated that it conducted staff training to address its violations, 

the training didn’t result in a correction of the noncompliance. Rather, a subsequent inspection 

found even higher levels of prohibited substances, resulting in the issuance of a second Notice of 

Noncompliance. 

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 y _________________________________ 

SUMMERS 

Effective and timely correction of noncompliances is an important part of maintaining 

organic certification. EBM was given the opportunity to take adequate corrective measures, but 

failed to do so. Therefore, due to the severity of the noncompliance and the willful violation of 

the regulations, EBM may not remain certified and its crop certification should be revoked in its 

entirety, including not only the brussel sprouts, but also the organic crops of green beans and 

peas. 

DECISION 

EBM’s May 16, 2022 Appeal of the April 14, 2022 Notice of Noncompliance and 

Proposed Revocation is denied. EBM’s crop certification is to be revoked in its entirety. 

Pursuant to the organic regulations at 7 C.F.R. §205.662(f), EBM is ineligible to receive 

certification for 5 years following the date of such revocation. Additionally, if EBM is found to 

knowingly sell or label its crops as organic, it shall be subject to a civil penalty of not more than 

the amount specified in 7 C.F.R. §3.91(b)(1) per violation, which is currently set at $20,130. 

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

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

before an Administrative Law Judge. 

Done at Washington, D.C., on this _____ 5th

September day of ________________, 2022. 

Digitally signed by BRUCE

BRUCE SUMMERS Date: 2022.09.05 17:11:39 -04'00' 

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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