UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

In re: 

Haciban S.A. 

El Oro, Ecuador 

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Administrator's Decision 

APL-067-19 

This Decision responds to an appeal (APL-067-19) of a Notice of Noncompliance and 

Proposed Suspension of National Organic Program certification issued to Haciban S.A. 

(Haciban) of El Oro, Ecuador, by Control Union Pem SAC (Control Union). 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 

Page 1 of 14 
Adverse Action Appeals Process - General, and § 205.681, Appeals of the USDA organic 

regulations. 

FINDINGS OF FACT 

1. On July 26, 2017, Haciban became certified for crops, specifically bananas. 

2. On December 4, 2017, Control Union conducted an inspection of Haciban's two finms, the 

Colon 1 Farm and the Mercedes Farm, and collected banana frnit samples from both. The 

resulting December 14, 2017 laboratory report found a prohibited substance on the banana 

fruit samples from both farms. The prohibited substance was Z-Cypem1ethrin, for which 

there is no EPA tolerance in/on bananas. 

3. On May 11, 2018, Control Union issued a Notice of Proposed Suspension to Haciban, stating 

that Haciban has been unable to detennine the source of contamination detected in the 

previous inspection. Control Union noted that Haciban had presented a letter, purporting to 

be from Haciban' s aerial fumigation 

company, stating that only allowed substances were used on the Colon 1 and Mercedes 

fanns. However, - tated they did not issue that letter. 

4. On May 16, 2018, Hacibanrequested mediation, alleging inegularities in the Control Union 

audit. No details on this allegation were provided. Haciban further stated th.at it obtained the 

. letter in question from who presented himself as a supplier of ..... 

Haciban also stated that its analysis of banana fruit had shown no prohibited substances in a 

laboratory report of August 30, 2017. 

Page 2 of 14 
5. On June 12, 2018, Control Union conducted another inspection and sampled banana fruit and 

banana leaves from both ofHaciban's farms. The subsequent June 27, 2018 laboratory 

report showed numerous prohibited substances on the leaves from both farms. 

6. On August 9, 2018, Control Union issued a Notice of Proposed Suspension to Haciban, 

citing to the second detection of prohibited substances found on banana leaf samples 

collected during the June 12, 2018 inspection and sampling. 

7. On August 14, 2018, Haciban completed an lncidentRep01t stating that the contamination of 

the banana leaves on its farms could be due to ineffective cleaning by-of mixing 

systems and the supply plane, as~lso conducts aerial fumigation for conventional 

farms. Haciban also suggested that the contamination could be due to aerial and ground 

spraying at a neighbor's conventional farm. Haciban noted planned conective actions to be 

taken: changing its aerial services to ~ expanding the buffer zones on the 

two fanns. 

8. On August 31, 2018, Haciban requested mediation, proposing an agreement whereby Control 

Union would take fruit samplings two or three times per year and would conduct two 

additional inspections per year, to con-oborate Haciban's fulfillment of corrective measures. 

9. On September 3, 2018, Control Union accepted Haciban' s mediation request, and set forth 

conditions for mediation, specifically that Haciban would commence a 3-year transition 

period and both farms must successfully undergo a conversion to obtain organic certification, 

during which time Haciban may not sell, \abel, represent any product from the two faims as 

organic. Control Union would also conduct two audits per year, during which time banana 

leaf samplings_would be collected. 

Page 3 of 14 
10. On September 5, 2018, Haciban stated it would not accept the terms of mediation and would 

instead appeal the Notice of Proposed Suspension to the USDA. 

11. On September 18, 2018, Haciban's Appeal to the August 9, 2018 Notice of Proposed 

Suspension, was received by NOP. 

12. On March 20, 2019, at the direction of NOP, Control Union rescinded the May 11, 2018 and 

August 9, 2018 Notices of Proposed Suspension because it hadn't issued notices of 

noncompliance prior to issuing the proposed suspension notices, nor was the August 9, 2018 

notice a combined notice of noncompliance and proposed suspension. Control Union was 

instructed to follow proper procedures in issuing adverse action notices. 

13. On March 22, 2019, NOP dismissed the September 18, 2018 Appeal ofHaciban as the 

Notices of Proposed Suspension had been rescinded. 

14. On April 3, 2019, Control Union issued a Combined Notice of Noncompliance and Proposed 

Suspension citing to the June 27, 2018 laboratory findings of prohibited substances found on 

banana leaf samples collected from both Haciban farms during the June 12, 2018 inspection 

and sampling. 

15. On July 16, 2019, after having accepted Haciban's request for mediation, Control Union 

issued a Mediation Failure letter stating that Haciban didn't agree to the terms of the 

proposed mediation agreement. 

16. On August 24, 2019, Haciban filed an Appeal to the April 3, 2019 Combined Notice of 

Noncompliance and Proposed Suspension which was accepted. 

17. On October 4, 2019, Control Union issued a Notice of Noncompliance based on finding 

prohibited substances on banana leaf samples collected from both Haciban farms during a 

September 12, 2019 inspection. 

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18. On December 13, 2019, Control Union issued a Notice of Proposed Suspension citing to the 

September 12, 2019 inspection of the 2 Haciban fmms and sampling and testing of banana 

leaves from both farms which again found prohibited substances. 

19. Haciban didn't file an Appeal to the December 13, 2019 notice and Control Union 

subsequently issued a Notice of Suspension on Janum·y 22, 2020. However, although 

Haciban has now been suspended, the Notice of Proposed Suspension is being addressed here 

as the adverse action was issued for the same violation, the finding of prohibited substances, 

when Control Union conducted 'follow up' inspection, smnpling, and testing. 

DISCUSSION 

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

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

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

in accordance with the requirements specified in §205.101 or §§205.202 through 205.207 or 

§§205.236 through 205.240 and all other applicable requirements of part 205; and (b) Handled in 

accordance with the requirements specified in §205.101 or §§205.270 through 205.272 and all 

other applicable requirements of this 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 "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 ... " The specific synthetic substances on the 

National List which are allowed for use in organic crop production are identified at §205.601. 

Page 5 of 14 
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 §205.671, Exclusion from organic sale, state that, "When · 

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

EnvironmentaJ 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 ... » 

Control Union previously proposed a suspension ofHaciban's organic certification, 

which would prohibit the sale, labeling, or representation of its products as organic. Control 

Union detected prohibited substances on banana fruit and banana leaf samplings from Haciban 's 

two farms on three occasions in the last two years. Laboratory analysis of banana fruit samples 

collected at the two faims at the December 4, 2017 inspection reveaJed a prohibited substance on 

the fruit samples from both fanns. Control Union refutes Haciban's suggestion that the 

prohibited substance was the result of its aerial fmnigation company not properly cleaning 

equipment used in fumigating both organic and conventional crops. Haciban also suggested that 

possibly drift from aerial and ground spraying at a neighbor's conventional farm caused the 

prohibited substance on its banana fruit. 

However, Control Union found that Haciban was unable to determine the actual source of 

the contanrination, and that a letter submitted by Haciban, allegedly from its aerial fumigation 

company,_, was fraudulent. Control Union had contacted AP ACSA to inquire about 

the letter and was told that the company hadn't issued it. Subsequently, an inspection and 

.Page 6 of 14 
sampling of banana fruit and banana leaves at both fatms on June 12, 2018 found multiple 

prohibited substances on the banana leaves of both farms. Control Union previously attempted 

to mediate with Haciban, which wouldn't accept the conditions of mediation. A second attempt 

at mediation was made after Conrol Union issued the Combined Notice of Noncompliance and 

Proposed Suspension, but Haciban again refused to accept the terms of the proposed mediation 

agreement. During the pendency of the August 16, 2019 Appeal filed by Haciban, Control 

Union conducted another inspection ofHaciban's 2 fa1ms on September 12, 2019, collecting 

banana leaf samples from both farms. Laboratory tests of these samples again revealed 

prohibited substances. 

In its Appeal of the April 3, 2019 Combined Notice of Noncompliance and Proposed 

Suspension, Haciban contends that the prohibited substances on the banana fruit and banana 

leaves are a result of-not properly cleaning its spraying equipment aftet· doing aerial 

fumigation over conventional farms. Haciban also suggests that drift from a neighbor's 

· conventional fam1 may be to blame. Haciban states their sampling and laboratory tests of 

August 30, 2017 did not reveal any prohibited substances. Haciban previously suggested 

continued sampling and testing on a regular basis, and also proposed conective actions of 

changing its fumigation service and expanding its buffer zones on the two farms. Haciban 

subsequently changed its aerial fumigation service from- to-and submitted 

numerous statements and certifications fro~ rega:rding - s inspection, 

calibration, and cleaning of its equipment. Haciban also re~submitted the maps of the Colon 1 

and Mercedes fanns, with buffer zones marked. 

A review of the evidence shows that sampling and testing of banana fruit and banana 

leaves from Haciban's two farms have resulted in findings of prohibited substances on three 

Page 7 of 14 
occasions since Haciban's initial certification on July 26, 2017. The first finding was a result of 

testing on banana fiuit samples collected December 4, 2017 from both farms, only five months 

after certification. The December 14, 2017 laboratory analysis report from AGQ Labs & 

Technological Services shows a finding of Z-Cypermethrin at 0.054 ppm on the sample from the 

Colon 1 fmm and Z-Cype1methrin at 0.012 ppm on the sample from the Mercedes farm. 

The second finding of prohibited substances occurred after an inspection on June 12, 

2018, when additional banana fruit and banana leaves were smnpled and subsequently tested. 

The June 27, 2018 laboratory analysis report from Eurofins shows a finding of Clortalonil at 

0.013 mg/kg; Difenoconazol at 0.065 mg/kg; Espiroxmnina at 0.60 mg/kg; Fenpropidina at 1.9 

mg/kg; Flutriafol at 0.022 mg/kg; Isopirazam at 0.14 mg/kg; Pirimetanil at 0.12 mg/kg; 

Propiconazol at 0.068 mg/kg; Tebuconazol at 0.36 mg/kg; and Triadimenol at 0.31 mg/kg. 

These substances were found on the banana leaves from the Colon 1 and Mercedes farms from 

which the smnples were mixed. 

The third finding of prohibited substances occurred after an inspection of September 12, 

2019, when additional banana leaf samples were collected and tested. The September 25, 2019 

laboratmy analysis repo1i from Eurofins shows a finding of Chlorothalonil at 0.18 mg/kg; 

Fenpropidine at 0.11 mg/kg; and Pyrimethanil at 0.013 mg/kg for the mixed sample ofleaves 

from both fmms. This third finding occuned after the August 16, 2019 Appeal of the April 3, 

2019 Notice of Noncompliance and Proposed Suspension but is addressed here as Control Union 

had continued to monitor Haciban for use of prohibited substances. 

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

chemicals, setting limits on the mnount of the chemical allowed on an agricultural product. The 

substances Clortalonil; Difenoconazol; Espir9xamina; Fenpropidina; Isopirazam; Pirimetanil; 

Page 8 of 14 
Propiconazol; and Tebuconazol do not have established EPA tolerance levels. The substances ZCypermethrin and Triadimenol have EPA tolerance levels but not for bananas. Therefore, 

bananas with residues of any of these substances must not be sold, labeled or represented as 

organic, and, furthennore, are considered adulterated under the Federal Food, Drug and 

Cosmetic Act. In this case, the banana crop sampled in December 2017 and which contained ZCypennethrin, should not have been sold, labeled or represented as organic. Except for ZCypermethrin, residues of the pesticides listed above were found on samples of banana leaves 

rather than banana fruit. WW le this does not exclude the edible crop from the organic market on 

that basis alone, it is evidence of applications of prohibHed substances in the organic production 

area. 

Tiiree of the substances - Chlorothalonil, Flutriafol and Pyrimethanil - have an EPA 

tolerance for bananas and exceeded the allowed 5% threshold for organic products. Specifically, 

Chlorothalonil has a tolerance in bananas of 0.5 ppm, making the allowed 5% threshold in 

organic products 0.025. The finding of0.18 ofChlorothalonil exceeds the allowed threshold. 

Flutriafol has a tolerance in bananas of 0.30 ppm, making the allowed 5% threshold 0.015. 

Therefore, the finding of 0.022 exceeds the allowed threshold. Lastly, Pyrimethanil has a 

tolerance in bananas of0.10 ppm, maldng the allowed 5% threshold 0.005. Therefore, the 

finding of 0.013 exceeds the allowed "threshold. Therefore, every substance found in the samples 

of banana fruit and leaves from Haciban's 2 farms is prohibited per the USDA organic 

regulations. 

Haciban previously suggested that its then-aerial fumigation company,-was to 

blame for the prohibited substances on Haciban' s banana frnit and leaf samples due to inefficient 

cleaning of plane tanks used in the fumigation since -does aerial fumigation on 

Page 9 of 14 
conventional and organic farms. Haciban submitted a letter to Control Union purpo1tedly from 

~hich stated that only allowed substances were used in the aerial fumigation of 

Haciban's Colon 1 and Mercedes farms on November 29 and 30, 2017. However, Control Union 

contacted-which stated it didn't wiite the letter and deemed it fraudulent. -

provided a written reply to Control Union confirming the letter was fraudulent. Fmther, 

-vas Haciban's contractor. Hence, Haciban is responsible for the actions or inactions 

of-and can't justify or excuse the finding of prohibited substances by blaming 

- · Haciban submitted invoices from - for fumigation services from mid-June 

and mid-July 2018, along vvith an Aerial Application Checklist of August 27, 2018. However, 

these documents post-date the samplings of banana frnit and leaves on December 4, 2017 and 

June 12, 2018 and resulting findings of prohibited substances and can't negate the laboratory 

findings. Haciban also submitted laboratory reports from August 30, 2017; however, these are 

not relevant as they pre-date the first finding of prohibited substances by over 3 months. 

Haciban has changed its aerial fumigation service from-to -and 

submitted numerous statements and certifications from -regarding its inspection, 

calibration, and cleaning of its equipment. These documents include a Commitment Letter of 

Aircraft Spray Calibration; a Certificate stating that-will triple wash its containers; 

and a Ceitificate of Procedures. All the documents are on- s letterhead and are dated 

August 9, 2019. However, while the change in companies and FumiPalm.a's commitment are 

"good going forward," they don't negate the pdor findings of prohibited substances. Further, 

subsequent to, and despite, the change in fumigation services~ the banana leaf samples collected 

at the September 12, 2019 inspection again revealed the presence of prohibited substances. 

Page 10 of 14 
Haciban also suggested drift from a neighboring conventional fann may be to blame and 

stated that the neighbors confirmed they use the prohibited substances listed on the laboratory 

repo1ts of December 14, 2017 and June 27, 2018. Control Union stated that Haciban has been 

unable to determine the exact source of the contamination which includes prohibited substances 

Cipennetrina (Cypem1erthi'in); Clortalonil; Difenoconazol; Espiroxamina; Fenpropidina; 

Flutriafol; Isopirazam; Pirimetanil; Propiconazol; Tebuconazol; and Triadimenol. However, 

Haciban presented the Registry of Application of Phytosanitary Products 2018 for 

who Haciban claims is a neighboring faimer. This document shows - grows conventional 

bananas, and that prohibited substances Clo1talonil and Difenoconazol were used by -◊n 

his crops. However, the authenticity of this document hasn't been established; and the document 

doesn't account for other prohibited substances found on Haciban's banana fruit and banana 

leaves. Additionally, the subsequent inspection and sampling of banana leaf samples on 

September 12, 2019 revealed the presence of additional prohibited substances Chlorothalonil and 

Pyrimethanil. Further, even if drift from Orrantia' s farm could explain the prohibited substances 

found on Haciban's banana fmit and banana leaves, it doesn't excuse the contamination. Even if 

one assumes that the contamination was a result of drift from conventional neighbors, it is 

Haciban's responsjbility as an organic operation to have adequate buffer zones to prevent drift 

contamination. Haciban has re-submitted the maps of the Colon 1 and Mercedes fanns, with 

buffer zones marked and one can see the buffer zone between Haciban's Colon 1 farm and 

Orrantia's farm. However, again, while an increased buffer zone is advantageous going forward, 

it doesn't negate the prior findings and prohibited substances were found again on samples 

collected on September 12, 2019. 

Page J 1 of 14 
Finally, in a prior case, Control Union accepted Haciban's request for mediation, and 

Haciban proposed additional inspections and samplings of banana fruit and banana leaves. 

However, Haciban wouldn't accept conditions set by Control Union. Specifically, Haciban 

would not agree that the two farms must be removed from organic production and go through a 

three-year transition to obtain organic certification again. After issuing the April 3, 2019 

Combined Notice of Noncompliance and Proposed Suspension, Control Union again accepted 

Haciban's request for mediation. Control Union again offered a mediation agreement whereby 

Haciban would agree to remove the Colon 1 and Mercedes farms from organic production for 3 

years due to the findings of prohibited substances. Further, the agreement would require 

Haciban to undergo 2 inspections per year; inform Control Union of any changes to its Organic 

Management Plan; meet the deadlines for responding to any future notices of noncompliance; 

and not use any prohibited substances on its fields. Haciban again rejected Control Union's 

tetms for an agreement resulting in Control Union issuing the July 16, 2019 Mediation Failure 

notice. Haciban had proposed that Control Union take samples from the farms multiple times 

each year, and stated that they hired a new aerial fumigation service, will hire a plant technician, 

and will extend the buffer zone around the fatms. However, Haciban wouldn't agree to the 3-

year ban on the farms required under 7 C.F .R. 205 .202 when prohibited substances are found. 

Subsequent testing on banana leaf satnples from September 12, 2019 again revealed the presence 

of prohibited substances. 

In conclusion, banana fruit and banana leaf samplings from Haciban's two farms, Colon 

1 and Mercedes, have revealed prohibited substances on tlu·ee occasions within 2 years. The 

organic regulations at 7 C.F.R. §205.202, specifically require that land from which harvested 

organic crops are sold, labeled, or represented as organic must not have had prohibited 

Page 12 of 14 
substances applied to it for a period of 3 years immediately preceding the harvest. Also, the 

organic regulations at 7 C.F.R. §205.105 state that synthetic substances and ingredients may not 

be used in organic crop production unless they are allowed per the National List. However, none 

of the substances detected are an allowed substance per the organic regulations. Fmiher, the 

prohibited substance, Z-Cype1methrin, found on the banana frnit samples does not have an EPA 

tolerance for bananas. Therefore, pursuant to the regulations at 7 C.F.R. §205.671, bananas 

containing residues of Z-Cypeimethrin, or any other pesticide for which there is no EPA 

tolerance, would be adulterated and cannot be sold as organic or conventional. Haciban has not 

been able to rebut the laboratory findings of prohibited substances. Also, although Haciban has 

obtained a new aerial fumigation service which has equipment cleaning procedures in place, this 

doesn't negate the prior findings of prohibited substances. Further, sampling and testing after the 

change in fumigation services again revealed the presence of prohibited substances. 

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. However, 

Haciban violated the organic regulations at 7 C.F.R. §205.102; 7 C.F.R. §205.105; 7 C.F.R. 

§205.202; and 7 C.F.R. §205.671. These noncompliances do not allow for continued 

certification. 

Page 13 of 14 
DECISION 

The appeal is denied and the suspension ofHaciban's organic certification is affirmed. 

Haciban is not eligible for organic ce1iification for 3 years from the date of the last sampling for 

which prohibited substances were found on Haciban's two farms, Colon I and Mercedes, 

specifically September 12, 2019. Barring the interim use of prohibited substances on the land or 

crops, the two farms will be eligible for organic certification on September 11, 2022, when 

Haciban may apply for reinstatement of its organic certification pursuant to 7 C.F.R. 

§205.662(£). Until Haciban's certification has been reinstated, it may not sell, label, or represent 

a product as organic. 

Attached to this formal Administrator's Decision denying Haciban's appeal is a Request 

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

Administrative Law Judge. 

If Haciban waives the hearing, the Agricultural Marketing Service will direct Control 

Union to issue a Notice of Suspension. At any time after suspension, Haciban may," ... submit a 

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

by evidence demonstrating correction of each noncompliance and corrective actions taken to 

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

may work with any certifier to complete a request for reinstatement. 

Done at Washington, D.C., on this ID-I\ 

day of Fe L ,.,~ , 2020. 

Bruce Summers 

Administrator 

Agricultural Marketing Service 

Page 14 of 14