Inre: 

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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

Dwight Miller and Son Orchards 

D. Read Miller 

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Administrator's Decision 

APL-029-17 

Malah Miller 

This Decision responds to an appeal (APL-029-17) of a Combined Notice of 

Noncompliance and Proposed Revocation of National Organic Program certification issued to 

Dwight Miller and Son Orchards (DMO) of Dummerston, Vermont by Vermont Organic 

Farmers, LLC (VOF). 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 § 

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. VOF is an accredited certifying agent under the USDA organic regulations. DMO of East 

Dummerston, Vermont, is certified under USDA organic regulations for crops. 

2. On January 18, 2017, VOF conducted routine residue sampling that generated positive 

test results for substances prohibited in organic production, including Captan, 

Diphenylamine, Phosmet, Boscalid, and Pyraclostrobin. Phosmet and Pyraclostrobin 

levels exceeded the established Environmental Protection Agency's (EPA) tolerance: 

Phosmet (EPA tolerance of 10 ppm for apple3) tested at 31 ppm 

Pyraclostrobin (EPA tolerance of 1.5 ppm for pears group 11-104) tested at 71 ppm 

3. On Febrnary 24, 2017, VOF notified the Vermont Agency of Agriculture (VAA) of the 

Phosmet and Pyraclost:robin test results, as required by §205.670(g). V AA opened a 

separate investigation. 

4. Between February 27 and March 1, 2017, V AA investigators collected 9 samples of 

DMO fruit: 2 from a retail setting in Vennont and 7 directly from DMO's fmm. All 

samples tested positive for the same prohibited substances identified in the VOF sample, 

with the addition of Acetamiprid, which is also prohibited. Eight of the samples tested at 

levels greater than 5% of the EPA tolerance, which is a violation of §205.671. 

5. On April 6, 2017, VOF issued a Combined Notice ofNoncompliance and Proposed 

Revocation. 

3 40 CFR 180.261, Phosmet; tolerances for residues, Available at https://www.ecfr.gov/cgi-bin/textidx?SJD~982227dcdee8fe6fd6c312dde988c8l a&mc=irue&node~se40,26. l 80 1261 &rgn~div8 4 40 CFR 180.582, Pyraclostrobin; tolerances for residues. Available at https://www.ecfr.gov/cgi-bin/textidx?SID~982227dcdee8fe6fd6c312dde988c8la&mc=irue&node~se40.26. l 80 _ 1582&rgn~div8 

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6. On May 10, 2017, DMO submitted to AMS its formal appeal of the Combined Notice of 

Noncompliance and Proposed Revocation. 

DISCUSSION 

VOF proposed a revocation ofDMO's organic certification which would make the 

operation and all persons responsibly connected with the operation ineligible to receive 

certification for a period of 5 years following the date of revocation. The proposal is based on 

the outcomes ofVOF and V AA investigations, each of which include test results that indicate the 

Appellant's fruit tested positive for substances prohibited in organic production. Additionally, 

the Certifier and the V AA consider the Appellant's explanation for the presence of these 

substances to be inconsistent with the levels detected in the samples. 

Test results show the levels of prohibited substances to exceed the NOP threshold for 

exclusion from organic sale, set at 5% of the established EPA tolerance. In addition, some levels 

exceeded the EPA's tolerances. In the VOF sample, results show Phosmet and Pyraclostrobin 

are 310% and 4733% above the EPA tolerance, respectively. In the VAA's sample, the levels of 

prohibited substances exceed the 5% NOP maximum threshold for Acetamiprid, Boscalid, 

Phosmet and Pyraclostrobin5• 

During each investigation, the Appellant provided statements to VOF and V AA that 

suggested either storage conditions or insufficient equipment cleaning may have resulted in 

lmintentional contamination. 

In the appeal, D. Read Miller ofDMO explained that the operation first commingled 

organic and non-organic fruit in 2016. He wrote, "the fruit that was organically grown by me was 

not marked as such" and, "the conventionally grown fruit was not marked as such either." He 

5 Acetamiprid -maximum NOP threshold of 0.05 ppm; Boscalid -maximum NOP threshold of0.15 ppm; Phosmet -

maximum NOP threshold of 0.5 ppm; Pyraclostrobin-maximum NOP threshold of 0.075 ppm 

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also provides statements that suggest the noncompliance may have occurred in January 2017, 

when he was away from the fmm. 

CONCLUSION 

USDA Organic regulations state "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 synthetic substances and ingredients, except as 

provided in §205.601 or §205.603" (§205.105(a)). Fruit samples collected by the Appellant's 

Certifier and the Ve1mont Agency of Agriculture confirmed through two separate lab reports the 

presence of substances prohibited in organic production of fruit marketed as organic. The levels 

and pesticide residue identified in these analyses indicates that prohibited substances were 

applied directly to the fiuit, and are not the result of unintentional contmnination as suggested by 

the Appellant. 

Producers or handlers must also develop an organic system plan that is agreed to by the 

accredited certifying agent (§205.201). This plan includes "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." Although the Appellant attests to the 

storage of non-organic crops in unmarked bins, and to the purchase of used farm equipment, 

none of this information was included in the Appellant's 2016 organic system plan, nor were the 

intentions disclosed to VOF during the 2016 on-site inspection. 

1n summm·y, the combination of laboratory results, omissions to the organic system plan, 

and inconsistency in statements made by the Appellant over the course of two separate 

investigations, demonstrate willful violation of organic regulations. 

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DECISION 

The appeal is denied and VOF's Notice of Noncompliance and Proposed Revocation is 

upheld. Dwight Miller and Son Orchards, operated by D. Read Miller, is to have its organic 

certification revoked for a period of 5 years. 

Attached to this formal Administrator's Decision denying Dwight Miller and Son 

Orchards' appeal is a Request for Hearing form. Dwight Miller and Son Orchards has thirty (30) 

days to request an administrative hearing before an Adminish·ative Law Judge. 

If Dwight Miller and Son Orchards waives the hearing, the Agricultural Marketing 

Service will direct VOF to issue a Notice of Revocation. The revocation will be effective for five 

years from the date of the hearing waiver. After the 5 year-period, the operation may, " ... submit 

a request to the Secretary for reinstatement of its certification. The request must be accompanied 

by evidence demonstrating c01Tection of each noncompliance and con-ective actions taken to 

comply with and remain in compliance with the Act and the regulations in this part." 

+'-. 

Done at Washington, D.C., on this~'~'-

day of 5:efk~ ,2017. 

,LL .. ~~ Bruce Summers 

Acting Administrator 

Agricultural Marketing Service 

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