UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

In re: ) 

Asociacion de Produccion ) Administrator’s Decision 

Artesanal Guayusa Ecologica – ) 

Asoguay ) 

) 

Puya Pastaza, Ecuador ) APL-018-21 

) 

This Decision responds to an Appeal (APL-018-21) of two Notices of Proposed 

Suspension of National Organic Program (NOP) certification issued to Asociacion de 

Produccion Artesanal Guayusa Ecologica – Asoguay (Asoguay) of Puya Pastaza, Ecuador by 

USDA-accredited certifying agent, Kiwa BCS Oko-Garantie GmbH (BCS). 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 

1

 7 U.S.C. 6501-6522 

2

 7 C.F.R. Part 205 

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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 

Adverse Action Appeals Process – General, and § 205.681, Appeals of the USDA organic 

regulations. 

FINDINGS OF FACT 

1. On September 21, 2019, Asoguay was certified organic for crops by BCS. 

2. On April 17, 2020, BCS issued a Notice of Proposed Suspension regarding several 

noncompliances noted at the prior May 2019 inspection. 

3. On July 29, 2020, BCS and Asoguay entered into a Settlement Agreement to resolve the 

April 17, 2020 Notice of Proposed Suspension. 

4. On December 10, 2020, BCS issued a Notice of Noncompliance for Asoguay’s failure to 

submit its annual update for certification. 

5. On January 15, 2021, BCS issued a Notice of Proposed Suspension after Asoguay failed 

to successfully resolve the December 10, 2020 Notice of Noncompliance. 

6. On February 3, 2021, BCS issued a Notice of Denial of Mediation to Asoguay’s February 

2, 2021 request for mediation regarding the January 15, 2021 Notice of Proposed 

Suspension. 

7. On February 4, 2021, BCS issued a Notice of Proposed Suspension stating that Asoguay 

had breached the July 29, 2020 Settlement Agreement. 

8. On March 3, 2021, Asoguay filed an Appeal which was deemed an Appeal as to both 

adverse actions. 

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DISCUSSION 

The USDA organic regulations at 7 C.F.R. §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)).” The regulation further states, “(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; (3) Be maintained for not less than 5 years beyond their 

creation; and (4) Be sufficient to demonstrate compliance with the Act and the regulations in this 

part.” The 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... plan must include: ... (1) A description of practices and procedures to be 

performed and maintained, including the frequency with which they will be performed; (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 ... (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 established in §205.103; (5) A description of the 

management practices and physical barriers established to prevent ... contact of organic 

production and handling operations and products with prohibited substances; and (6) Additional 

information deemed necessary by the certifying agent to evaluate compliance with the 

regulations.” 

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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 of this part; 

(b) Establish, implement, and update annually an organic production or handling system plan 

that is submitted to an accredited certifying agent as provided for in §205.200; ... (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, as provided for in §205.103; ... ” The organic regulations at §205.406, Continuation 

of certification, state that, “(a) To continue certification, a certified operation must “... submit 

the following information, as applicable, to the certifying agent: (1) An updated organic 

production or handing system plan which includes: (i) A summary statement, supported by 

documentation, detailing any deviations from, changes to, modifications to, or other amendments 

made to the previous year’s organic system plan during the previous year; ... (4) Other 

information as deemed necessary by the certifying agent to determine compliance with the Act 

and the regulations in this part.” 

Asoguay was certified organic for crops on September 21, 2019. BCS stated that 

Asoguay breached its Settlement Agreement with BCS by failing to maintain and adequately 

update required records, including its Organic System Plan (OSP), maps, contracts with 

producers, and producer inspection records. Additionally, Asoguay failed to timely submit its 

annual update for certification by its anniversary date. Asoguay stated it wanted to appeal BCS’ 

adverse action but didn’t present any information or documentation to support the Appeal. 

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I 

I 

The evidence shows that on May 6 – 9, 2019, BCS conducted an inspection of Asoguay 

which produces, and markets guayusa products. Subsequently, on September 21, 2019, BCS 

certified Asoguay for organic crop production. A May 7, 2021 Evaluation Report on the 2019 

inspection indicates that BCS found that Asoguay received product from (b) (4)

producers/suppliers 

of organic guayusa who had previously been in the grower group of Runa Tarpuna, now known 

as AMI Runa Ecuador LLC. AMI Runa Ecuador LLC has been certified by BCS for crops and 

handling since August 15, 2011. 

At the May 2019 inspection of Asoguay, BCS found that the contracts between Asoguay 

and the producers didn’t indicate all required commitments; and BCS hadn’t provided adequate 

specific training to the producers on organic processes. Asoguay also hadn’t ensured separation 

of organic and conventional products for producers who still were producing conventional 

products. Asoguay’s OSP lacked sufficient detail on its operation; overview maps didn’t show 

the locations of all (b) (4)

 producers; and maps/sketches of production units were incomplete. 

Additionally, internal inspectors hadn’t submitted written statements indicating whether they had 

any conflicts of interest, and internal inspection reports were missing necessary information, 

including the total acreage of each producer, the last usage of prohibited substances on the land, 

and information on conventional production of each producer. BCS issued a Notice of 

Noncompliance, and a subsequent Notice of Proposed Suspension on April 17, 2020 after 

Asoguay failed to resolve the noncompliances. BCS accepted Asoguay’s request for mediation, 

and the parties entered into a Settlement Agreement on July 29, 2020. 

In the BCS-Asoguay Settlement Agreement, BCS acknowledged that Asoguay had fully 

resolved some of the outstanding noncompliances since issuance of the Notice of Proposed 

Suspension. These included the noncompliances regarding insufficient overview maps 

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I identifying the locations of all (b) (4)

 producers; the determination of separation measures of 

producers with organic and conventional production; and the lack of conflict of interest 

statements from internal inspectors. However, the agreement noted that the other 

noncompliances had not been fully resolved. As such, BCS set a deadline of September 30, 

2020 for their resolution. Specifically, Asoguay was to submit detailed sketches of productive 

units; provide missing detail in its OSP regarding producers; establish cleaning procedures and 

records for facilities, vehicles, and equipment; amend its contracts with producers to detail 

obligations of the parties; provide training to producers on organic regulations, as well as 

training to internal inspectors, including how to complete internal inspection reports; and add 

missing information to internal inspection reports. 

Asoguay’s certification renewal anniversary was September 30, 2020. However, 

Asoguay failed to submit its annual update and renewal application documentation. After still 

not receiving these materials, BCS issued a Notice of Noncompliance on December 10, 2020. 

Subsequently, BCS issued a Notice of Proposed Suspension on January 15, 2021, for Asoguay’s 

failure to successfully resolve the prior Notice of Noncompliance. On February 2, 2021, 

Asoguay requested mediation in response to the January 15, 2021 Notice of Proposed 

Suspension, which BCS denied on February 3, 2021. 

Concurrently, BCS issued a Notice of Proposed Suspension on February 4, 2021, stating 

that Asoguay had breached the July 29, 2020 Settlement Agreement. After NOP inquired, BCS 

stated that the noncompliances noted in the Settlement Agreement remained unresolved; as such, 

Asoguay had breached the agreement. BCS noted that a 2020 inspection wasn’t conducted due 

to Asoguay’s failure to submit its annual update documentation. Asoguay’s failure to submit an 

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updated OSP prevented BCS from verifying that corrective actions had been taken. As such, the 

settlement had been breached. 

On March 3, 2021, Asoguay filed an Appeal, stating that Asoguay was appealing the 

mediation denial. The appeal provided no detail, no other information on the noncompliances, 

and no rebuttal. Given that the Appeal was timely to both Notices of Proposed Suspension, the 

Appeal was deemed an Appeal to both the January 15, 2021 Notice of Proposed Suspension, and 

the February 4, 2021 Notice of Proposed Suspension. 

NOP had already sent an acknowledgment to Asoguay for the first appeal, and 

subsequently notified Asoguay that the Appeal was deemed an Appeal to both BCS notices. 

Asoguay did not respond with any information or documentation to NOP to support its Appeal. 

The acknowledgment letter of March 8, 2021 stated that Asoguay had 45 days to submit any 

support for the Appeal. After not receiving anything from Asoguay, NOP wrote Asoguay on 

April 29, 2021, again asking Asoguay if it was going to submit anything to support its Appeal. 

NOP has never received a response. 

The evidence substantiates that Asoguay failed to comply with all the terms of its July 29, 

2020 Settlement Agreement with BCS by the deadline of September 30, 2020 and failed to 

submit its annual update documentation for the renewal of its certification. This resulted in the 

concurrent adverse actions by BCS. However, despite the fact that Asoguay failed to submit 

anything in support of its Appeal, NOP considered the noncompliances to be correctable. 

Therefore, in a good faith effort to resolve the case, NOP offered Asoguay a Settlement 

Agreement as a last opportunity to come into compliance with the organic regulations prior to 

being suspended. The Settlement Agreement provided that Asoguay would agree to respond to 

all requests by its certifier for documentation and information by the deadline set by the certifier, 

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unless Asoguay promptly contacts its certifier and the parties agree to an extension of the 

deadline. Per the agreement, Asoguay also would agree to, within specified time frames, correct 

the other specific noncompliances that had led to the original Settlement Agreement with BCS. 

Again, the goal was to give the operation a final chance to come into compliance and avoid 

suspension. 

The proposed NOP Settlement Agreement was sent to Asoguay on June 3, 2021; the 

cover letter sent with the agreement told Asoguay that it had 15 days to consider the offered 

agreement and return the signed agreement to NOP. After not receiving any reply or 

acknowledgment of the Settlement Agreement offer, and the end of the 15 days approaching, 

NOP followed up with Asoguay on June 14, 2021 to remind Asoguay of the offer. Again, 

Asoguay didn’t reply or acknowledge the settlement offer. A last reminder was sent to Asoguay 

on June 21, 2021; however, Asoguay didn’t reply or return the signed Settlement Agreement. 

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, the 

evidence substantiates that Asoguay violated the organic regulations at 7 C.F.R. §205.103, 

Recordkeeping by certified operations; 7 C.F.R. §205.201, Organic production and handling 

system plan; 7 C.F.R. §205.400, General requirements for certification; and 7 C.F.R. §205.406, 

Continuation of certification. Specifically, Asoguay failed to maintain and adequately update 

required records, including its OSP, maps, contracts with producers, and producer inspection 

records. Additionally, Asoguay failed to timely submit its annual update for certification by its 

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y _________________________________ 

SUMMERS 

anniversary date, thereby preventing BCS from conducting the 2020 inspection. Asoguay also 

breached its Settlement Agreement with its certifier. Further, attempts to resolve the adverse 

actions issued by BCS through a Settlement Agreement with AMS/NOP were unsuccessful. 

DECISION 

Asoguay’s March 3, 2021 Appeal is denied, and both the January 15, 2021 Notice of 

Proposed Suspension, as well as the February 4, 2021 Notice of Proposed Suspension, both 

issued by BCS, are affirmed. Asoguay’s organic certification is to be suspended. 

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

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

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

suspending Asoguay’s certification will become final. 

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

day of ________________, 2021. July

Digitally signed by BRUCE

BRUCE SUMMERS 

Date: 2021.07.05 21:24:10 -04'00' 

Bruce Summers 

Administrator 

Agricultural Marketing Service 

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