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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

 

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In re: 

Finca Esmeraldas 

 

Guayas, Ecuador 

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Administrator’s Decision 

APL-33-20

 

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This Decision responds to an appeal (APL-033-20) of a Notice of Noncompliance and 

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

Esmeraldas (Esmeraldas) 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 
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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 12, 2015, Esmeraldas 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 

Esmeraldas’s October 24, 2019 request for mediation. 

4. On February 24, 2020, Esmeraldas 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 
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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. 

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

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 
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application for certification to a certifying agent. The application must include the following 

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 30, 2019 inspection revealed numerous 

noncompliances in Esmeraldas’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 Esmeraldas 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 soil and weeds, and the laboratory results. Esmeraldas further contends that 

errors could have occurred due to 5 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, which requires 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 Esmeraldas’ 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 
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found conventional colored covers in the organic buffer zones. Also, corbertinas, a type of tie 

around the top of covers used only in conventional production, were found in the buffer zones. 

However, while the inspector noted in the May 30, 2019 Inspection Report that 

Esmeraldas 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 herbicide input GPlus was used but wasn’t identified 

in Appellant’s Organic System Plan (OSP) as required per 7 CFR §205.401. The inspector also 

found empty containers from the pesticide Gramoxone on Esmeraldas’ property. Further, 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, that require soil fertility and crop nutrient management 

practices as well as crop rotation practices that maintain or improve the physical, chemical 

and/or biological condition of the soil, and maintain or improve soil organic matter content. The 

inspector also observed small balls of different colors on the soil and observed the application of 

brown pellets suspected to be fertilizer. 

The inspector couldn’t check the different inputs that had been applied to the fields due 

Esmeraldas’ records being incomplete and in disarray, as well as the lack of records, such as 

sales invoices, that could identify the substances used. While Esmeraldas’ maps didn’t identify 

the uses of adjacent lands, Esmeraldas’ OSP of February 19, 2019 lists the adjacent land plots by 

name, their acreage, and their production as conventional bananas. 

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 
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Chain of Custody document. The Groen Agro Control laboratory report of June 12, 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 26, 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: Atrazine, Difenoconazol, Epoxiconazol, 

Fenpropimorph, Fenpropidin, Fluopyram, Propiconazol, Pyrimethanil, Spiroxamine, 

Tebuconazole, Tridemorph, and Triadimenol. The presence of these substances on the banana 

leaves is justification for a suspension of Esmeraldas’ certification as it substantiates the 

presence of prohibited substances. 

A sample was also taken of the soil and weeds around the banana plants where the 

inspector observed evidence of herbicide use, and the Groen Agro Control laboratory report of 

June 21, 2019 shows that Paraquat at 3.8 ppm was detected. Paraquat is a prohibited pesticide in 

organic crop production and is the active ingredient in Gramoxone, for which the inspector found 

empty containers on the property. This supports the intentional application of a prohibited 

substance. The Pest Residue Test Results Notification reiterates the findings for the banana soil 

and weeds. 

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

Rather, Esmeraldas only complained that while the cited samples were taken at the May 30, 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 

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

between the inspection and sampling and the lab report appears reasonable. However, while the 
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lapse between the issuance of the lab report and the issuance of the adverse action notice was 

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

banana leaves and banana soil and weeds. Further, Esmeraldas 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. Further, the 

inspector also found that Esmeraldas’ OSP of May 19, 2019 doesn’t list all inputs being used or 

intended for use, and the Inspection Report of May 30, 2019 notes that input applications 

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

The inspector also found that Esmeraldas’ crops don’t appear consistent with the non-use of 

prohibited pesticides, weed, and disease control substances. 

QCS’ inspection also found other noncompliances regarding recordkeeping. The 

Inspection Report of May 30, 2019 notes that Esmeraldas’ records don’t fully disclose all 

activities and transactions in sufficient detail to be readily understood and audited, and also 

weren’t maintained for at least 5 years beyond their creation as required in the organic 

regulations. Also, 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. This failure to provide access to the inspector also constituted a violation of the 

recordkeeping requirements at 7 CFR §205.103 and the general requirements for certification 

under 7 CFR §205.400. 

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 
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evidence substantiates that Esmeraldas 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. Specifically, banana leaf samplings and banana plant soil and 

surrounding weed samplings, all collected on May 30, 2019 from Esmeraldas’ banana crops 

revealed the presence of numerous prohibited substances. The findings, specifically of Paraquat 

residues in soil samples and empty containers of Gramoxone which has Paraquat as its active 

ingredient, demonstrates the intentional application of a prohibited substance. Esmeraldas also 

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

chemical and/or biological condition of the soil and bare spots of ground. Esmeraldas’ failure to 

maintain records on inputs also prevented QCS from determining exactly what inputs were used. 

Although Esmeraldas’ noncompliances regarding the maintenance of records are correctable, the 

presence of prohibited substances and evidence of their intentional application are not. 

DECISION 

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

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

prohibited substances were found, namely, May 30, 2019. Barring the interim use of prohibited 

substances on the land or crops, Esmeraldas will be eligible for organic certification on May 29, 

2022. Esmeraldas may request a reinstatement of organic certification on or after that date. While 

it is suspended, Esmeraldas may not represent, label, or sell its bananas as organic. 

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

Request for Hearing form. Esmeraldas has thirty (30) days to request an administrative hearing 
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before an Administrative Law Judge. If Esmeraldas waives the hearing, this Administrator’s 

Decision suspending Esmeraldas’ certification will become final. 

Done at Washington, D.C., on this _____ 14th

day of ________________, 2020. December

_________________________________

Bruce Summers 

Administrator

Agricultural Marketing Service

BRUCE SUMMERS Digitally signed by BRUCE 

SUMMERS 

Date: 2020.12.13 19:11:14 -05'00'