Page 1 of 10 

UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

 

 

 )

 

 )

 

 

 

 

In re: 

Finca Solo 

 

Guayas, Ecuador

 

)

 

Administrator’s Decision 

APL-32-20

 

)

 

) 

 

) 

 

 

This Decision responds to an appeal (APL-032-20) of a Notice of Noncompliance and 

Proposed Suspension of National Organic Program (NOP) certification issued to Finca Solo 

(Solo) of Guayas, Ecuador by Quality Certification Services (QCS), an 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 

1

 7 U.S.C. 6501-6522 

2

 7 C.F.R. Part 205 
Page 2 of 10 

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 7, 2016, Solo was certified organic for crops, specifically bananas, by QCS. 

2. On October 7, 2019, QCS issued a Notice of Noncompliance and Proposed Suspension. 

3. On January 24, 2020, QCS issued a Notice of Unsuccessful Mediation regarding Solo’s 

October 24, 2019 request for mediation. 

4. On February 24, 2020, Solo filed an Appeal. 

DISCUSSION 

The USDA organic regulations at 7 CFR §205.103, Recordkeeping by certified 

operations, state that, “(a) A certified operation must maintain records concerning the 

production, harvesting, and handling of agricultural products that are or that are intended to be 

sold, labeled, or represented as “100 percent organic,” “organic,” or “made with organic 

(specified ingredients or food group(s)). (b) Such records must: ... (2) Fully disclose all 

activities and transactions of the certified operation in sufficient detail as to be readily 

understood and audited; ... (4) Be sufficient to demonstrate compliance with the Act and the 

regulations in this part...” 

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, 
Page 3 of 10 

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. 

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 ... must develop an 

organic production or handling system plan that is agreed to by the producer or handler and an 

accredited certifying agent... An organic production or handing system plan must include: (1) A 

description of practices and procedures to be performed and maintained...; (2) A list of each 

substance to be used as a production or handling input...(3) A description of the monitoring 

practices and procedures to be performed and maintained...(4) A description of the 

recordkeeping system implemented to comply with the requirements...(5) 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...” 

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, “(a) The producer must select and implement tillage and cultivation practices 

that maintain or improve the physical, chemical, and biological condition of soil and minimize 

soil erosion. (b) The producer must manage crop nutrients and soil fertility through rotations, 

cover crops, and the application of plant and animal materials. (c) The producer must manage 

plant and animal materials to maintain or improve soil organic matter... (e) The producer must 
Page 4 of 10 

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 §205.205, Crop rotation practice standard, state that, “The 

producer must implement a crop rotation including but not limited to sod, cover crops, green 

manure crops, and catch crops that provide the following functions that are applicable to the 

operation: (a) Maintain or improve soil organic matter content...” 

The organic regulations at §205.400, General requirements for certification, state that, 

“(a) 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 

of this part; (b) Establish, implement, and update annually an organic production or handling 

system plan that is submitted to an accredited certifying agent... (c) Permit on-site inspections 

with complete access to the production or handling operation, including noncertified production 

and handling areas, structures, and offices by the certifying agent... (d) Maintain all records 

applicable to the organic operation for not less than 5 years beyond their creation and allow 

authorized representatives of the ...certifying agent access to such records during normal 

business hours for review and copying to determine compliance with the Act and the regulations 

in this part...(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 of an operation...” 

The organic regulations at §205.401, Application for certification, state that, “A person 

seeking certification of a production or handling operation under this subpart must submit an 

application for certification to a certifying agent. The application must include the following 
Page 5 of 10 

information: (a) An organic production or handling system plan...(b) The name of the person 

completing the application...and, when the applicant is a corporation, the name...of the person 

authorized to act on the applicant’s behalf..” 

Certifier QCS states that the May 29, 2019 inspection revealed numerous 

noncompliances in Solo’s operation, including the use of prohibited substances on its banana 

crops, missing and inadequate records, ineffective soil management practices, and not allowing 

the inspector access to the accounting system records. 

 Appellant Solo states that it is attempting to recover physical and digital records lost 

during a flood of the offices; and questions the time between the sampling of bananas and banana 

leaves, and the laboratory results. Solo further contends that errors could have occurred due to 5 

different farms being inspected in a short time frame. 

A review of the evidence shows that QCS noted several noncompliances constituting 

violations of several provisions of the organic regulations. QCS found the buffer zones around 

Solo’s organic banana crops were unclear and its maps also do not identify the uses of adjacent 

land and buffer zones pursuant to 7 CFR §205.202. These regulations require distinct, defined 

boundaries and buffer zones to prevent the unintended application of a prohibited substance or 

contact with a prohibited substance. QCS was asked about the buffer zone noncompliance and if 

it existed at the time of Solo’s initial certification. QCS stated that the buffer zone 

noncompliance was not for an inadequacy in the size of the proposed buffer zones, but rather for 

the operation’s failure to properly manage the buffer zones. 

Specifically, QCS stated that banana bunches are covered in plastic bags to protect them 

during the maturation process while on the tree and different colors are used to distinguish 

between organic and conventional production. However, the inspector found conventional 
Page 6 of 10 

colored covers in the organic buffer zones. Also, corbertinas, a type of tie around the top of 

covers used only in conventional production, were also found in the buffer zones. While QCS 

didn’t provide this detail in the adverse action notice, it does state “plot in the northern area (a 

mixture of colored covers was evident) ...” 

While Solo’s maps didn’t identify the uses of adjacent lands, Solo’s Organic System Plan 

(OSP) of February 20, 2019 lists the adjacent land plots by name, their acreage, and their 

production as conventional bananas. Further, while the inspector noted that Solo hadn’t taken 

adequate measures to prevent the commingling of organic and conventional crops and 

contamination from conventional neighbors based on the above observations, it is not uncommon 

for commodities grown in buffer zones to be designated as conventional commodities in case of 

contamination from neighboring conventional production. 

However, the inspector also found that the operation engaged in mixed production, with 

livestock whose pastures were fertilized with prohibited inputs including ammonium nitrates, 

and there were no practices in place to avoid possible contamination of the organic crops. Solo’s 

OSP identified bananas as its only organic product. Solo didn’t identify its organic operation as 

including livestock. This mixed production and failure to disclose it to QCS created a high risk 

of contamination of the organic crop, as did the finding that prohibited inputs were used for weed 

control on the property’s roads, which also weren’t identified in Solo’s Organic Grower Plan as 

required per 7 CFR §205.401. 

The inspection also found spots of bare soil with clear evidence of herbicide application, 

contrary to 7 CFR §§205.203 and 7 CFR 205.205, which require soil fertility and crop nutrient 

management practices and crop rotation practices that maintain or improve the physical, 

chemical and/or biological condition of the soil, and maintain or improve soil organic matter 
Page 7 of 10 

content. The inspector also observed blue, brown, and green grains in the soil of the banana 

crops, pointing to the possible presence of fertilizers. However, the inspector couldn’t check the 

different inputs that had been applied to the fields, because Solo’s records were found to be 

incomplete and not sufficiently organized to be audited. There was also a lack of records, 

including sales invoices, that could identify the substances used. Additionally, QCS found that 

Solo failed to maintain cleaning-sanitation records for the (b) (4)

, despite Solo indicating in its OSP that it would maintain equipment cleaning records. 

QCS collected bananas and banana leaves samples within the banana crop, not in a buffer 

area, as documented on the Sample Collection Checklist and Chain of Custody document. The 

Groen Agro Control laboratory report of June 13, 2019 for the bananas shows that no residues 

were detected, and this was reiterated on the Pest Residue Test Results Notification. However, 

the testing of the banana leaves revealed the presence of several prohibited substances. 

Specifically, the June 26, 2019 Groen Agro Control laboratory report and corresponding Pest 

Residue Test Results Notification show the following substances detected, all of which are 

prohibited in organic production: Difenoconazol, Epoxiconazol, Fenpropimorph, Fenpropidin, 

Fluopyram, Pyrimethanil, Spiroxamine, Tebuconazole, Tridemorph, and Triadimenol. The 

presence of these substances on the banana leaves is justification for a suspension of Solo’s 

certification, as it substantiates the presence of prohibited substances in the production area. 

Solo didn’t contest the finding of the multiple prohibited substances in its Appeal. 

Rather, Solo only complained that while the cited samples were taken at the May 29, 2019 

inspection, the results were delayed with lab reports dated in June 2019, and QCS didn’t issue 

the Notice of Noncompliance and Proposed Suspension until October 7, 2019, prior to which 

Solo continued to export the bananas to the United States and European Union. The time 
Page 8 of 10 

between the inspection and sampling and the lab report appears reasonable. However, while the 

lapse between the issuance of the lab report and the issuance of the adverse action notice is 

longer, this is not grounds for negating the laboratory findings of prohibited substances on the 

banana leaves. Further, Solo hasn’t offered any alternative explanation for how the prohibited 

substances came to be on the banana leaves, and only suggests that errors could have occurred in 

the sampling. However, the Inspection Report of May 29, 2019 also shows the inspector found 

that Solo’s OSP doesn’t list all inputs being used or intended for use, and input applications 

submitted by Solo are not adequately documented to be readily understood and auditable. 

QCS’ inspection also found other noncompliances. There were no fruit harvest or sales 

records available for weeks 26 to 52 of crop year 2018, and therefore, the inspector couldn’t 

perform a mass balance exercise. Further, the inspector wasn’t given access to accounting 

system records to determine the actual income of the operation and couldn’t determine the 

destination of fruit produced and sold. These failures to maintain records and provide access to 

the inspector constituted violations of the recordkeeping requirements at 7 CFR §205.103 and the 

general requirements for certification under 7 CFR §205.400. 

QCS also contended there was a violation of the organic regulations at 7 CFR §205.401, 

because Solo listed a different responsible person in its OSP than requested certification. 

However, such a change is not a violation of the organic regulations. One of the purposes of the 

renewal application is to identify changes in the operations, such as responsible contacts. 

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 
Page 9 of 10 

organic seal are produced and handled in accordance with the organic regulations. However, the 

evidence substantiates that Solo violated the organic regulations at 7 CFR §205.103; 7 CFR 

§205.105; 7 CFR §205.201; 7 CFR §205.202; 7 CFR §205.203; 7 CFR §205.205; 7 CFR 

§205.400; and 7 CFR §205.401. Banana leaf samplings collected during the May 29, 2019 

inspection of Solo revealed the presence of numerous prohibited substances. Solo also failed to 

engage in soil fertility and management practices that maintain or improve the physical, chemical 

and/or biological condition of the soil. Solo’s failure to maintain records on inputs also 

prevented QCS from determining exactly what inputs were used. Although Solo’s 

noncompliances regarding the maintenance of fruit harvest and sales records are correctable, the 

presence of several prohibited substances are not. 

DECISION 

The Appeal is denied, and the Notice of Noncompliance and Proposed Suspension is 

affirmed. Solo is to be suspended for 3 years from the date of the last sampling for which 

prohibited substances were found, namely, May 29, 2019. Barring the interim use of prohibited 

substances on the land or crops, Solo will be eligible for organic certification on May 28, 2022. 

While it is suspended, Solo may not represent, label, or sell its bananas as organic. 
Page 10 of 10

Attached to this formal Administrator’s Decision denying Solo’s Appeal is a Request for 

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

Administrative Law Judge. If Solo waives the hearing, this Administrator’s Decision suspending 

Solo’s certification will become final. 

Done at Washington, D.C., on this _____ 11th

day of ________________, 2020. December

_________________________________ BRUCE SUMMERS Digitally signed by BRUCE 

SUMMERS 

Date: 2020.12.10 21:25:02 -05'00'

Bruce Summers 

Administrator

Agricultural Marketing Service