Page 1 of 10 

UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

)

)

)

)

)

 

 

In re: 

Finca San Jose 

 

Guayas, Ecuador

 

 

 

Administrator’s Decision 

APL-34-20

 

 

This Decision responds to an appeal (APL-034-20) of a Notice of Noncompliance and 

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

(San Jose) 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 28, 2016, San Jose 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 San Jose’s 

October 24, 2019 request for mediation. 

4. On February 24, 2020, San Jose 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 28, 2019 inspection revealed numerous 

noncompliances in San Jose’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 San Jose 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, banana 

leaves, and banana soil and weeds, and the laboratory results. San Jose 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 San Jose’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 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 colored covers in the organic buffer zones. Also, corbertinas, a 
Page 6 of 10 

type of tie around the top of covers used only in conventional production, were found in the 

buffer zones. While QCS didn’t provide this detail in the adverse action notice, the inspector 

noted in the Inspection Report of May 28, 2019 that the buffer zones and safeguard measures to 

prevent contamination from conventional inputs on adjacent lands weren’t adequate. 

While San Jose’s maps didn’t identify the uses of adjacent lands, San Jose’s Organic 

System Plan (OSP) of February 19, 2019 lists the adjacent land plots by name and the crops, 

though it doesn’t state whether those adjacent crops are organic or conventional. Further, 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 

conventional production at another location which San Jose hadn’t claimed. The Inspection 

Report notes that San Jose’s conventional production was not adequately described in the OSP. 

In fact, San Jose’s OSP states that it is an organic operation only. However, empty bags from 

ammonium nitrate were seen on San Jose’s property and San Jose also acknowledged using the 

foliar fertilizer Ecosis XXI, for which no application records were maintained. The inspector 

also noted that San Jose’s input applications weren’t adequately documented so as to be readily 

understood and auditable. San Jose also couldn’t produce any invoices or purchase records for 

the post-harvest inputs (b) (4) and other inputs and there were no practices in 

place to avoid possible contamination of the organic crops. Further, San Jose’s OSP didn’t list all 

inputs used 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 as well as crop rotation practices that maintain or improve the physical, 
Page 7 of 10 

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

content. The inspector also observed brown 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 San Jose’s records were incomplete and in disarray. 

There was also a lack of records, such as sales invoices, that could identify the substances used. 

Additionally, QCS found that San Jose failed to maintain cleaning-sanitation records for the 

, despite San Jose stating in its OSP that it would 

maintain equipment cleaning records. 

Therefore, QCS collected samples of bananas, banana leaves, and soil and weeds 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 resides 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 25, 2019 Groen Agro Control laboratory report and 

Banana Leaves Pest Residue Test Results Notification show the following substances detected, 

all of which are prohibited in organic production: Difenoconazol, Epoxiconazol, 

Fenpropimorph, Propiconozol, Spiroxamine, Tebuconazole, Tridemorph, and Triadimenol. The 

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

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

Samples were also collected of the soil and weeds around the banana plants. The Groen 

Agro Control laboratory report of June 21, 2019 shows the presence of Paraquat at 1.1 ppm. 

Paraquat is a prohibited pesticide in organic crop production. The second Groen Agro Control 

report dated June 20, 2019, for soil and weed samples shows Glifosato, Glufosinato, and AMPA 

(b) (4)
Page 8 of 10 

(Aminomethylphosphonic acid) all at <0.5 ppm. These substances are also prohibited in organic 

production. Pest Residue Test Results Notification sheets reiterates the findings for the banana 

soil and weeds. 

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

Rather, San Jose only complained that while the cited samples were taken at the May 28, 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 San 

Jose continued to export the bananas to the United States and European Union. The time 

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

lapse between the lab reports 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 and 

banana soil and weeds. Further, San Jose hasn’t offered any alternative explanation for how the 

prohibited substances came to be on the banana leaves and banana soil and weeds, and only 

suggests that errors could have occurred in the sampling. However, the Inspection Report also 

shows the inspector found that San Jose’s OSP doesn’t list all inputs being used or intended for 

use, and the field and crop production don’t appear to be consistent with the use of approved 

fertilizer inputs. Additionally, the inspector noted that San Jose isn’t prepared to immediately 

notify QCS of the application of any prohibited substance to the fields or crops. 

QCS’ inspection also found other noncompliances. The inspector couldn’t perform a 

mass balance exercise due to inconsistencies between the numbers for covered and harvested 

banana clusters. A traceability exercise couldn’t be performed for product in week 39 of 2018 as 

there wasn’t any documentation available. There were also insufficient records to audit organic 

production from conventional production. Further, the inspector wasn’t given access to 
Page 9 of 10 

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

determine the destination of fruit produced and sold. San Jose also didn’t present Sigatoka 

evaluation documents for 2018 and week 12 of 2019 to explain the use of phytosanitary products 

for this leaf-spot disease of banana plants. 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 noted that San 

Jose’s OSP lists the operation as being hectares, while Ecuador’s Ministry of Agriculture, 

Livestock, Aquaculture and Fisheries lists the farm as hectares. 

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 San Jose 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 and banana plant soil and surrounding 

weed samplings collected during the May 28, 2019 inspection of San Jose revealed the presence 

of numerous prohibited substances. San Jose also failed to engage in soil fertility and 

management practices that maintain or improve the physical, chemical and/or biological 

condition of the soil. San Jose’s failure to maintain records on inputs also prevented QCS from 

determining exactly what inputs were used. Although San Jose’s noncompliances regarding the 

maintenance of various records are correctable, the presence of prohibited substances is not. 

(b) 

(4)

(b) 

(4)
Page 10 of 10

DECISION

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

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

prohibited substances were found, namely, May 28, 2019. Barring the interim use of prohibited

substances on the land or crops, San Jose will be eligible for organic certification on May 27,

2022. While it is suspended, San Jose may not represent, label, or sell its bananas as organic. 

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

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

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

suspending San Jose’s certification will become final. 

Done at Washington, D.C., on this _____ 21st

day of ________________, 2020. December

_________________________________

BRUCE 

SUMMERS

Digitally signed by BRUCE 

SUMMERS 

Date: 2020.12.21 10:42:49 

-05'00'

Bruce Summers 

Administrator

Agricultural Marketing Service