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March 16, 2001   ENF 2001-009
County Agricultural Commissioners  

Monterey 7 brand carbaryl insecticide was used in a residential setting at a rate of one ounce per gallon of water to control Glassy Wing Sharpshooter. Written instructions in the form of a recommendation were provided to the applicator. The Department has received questions regarding the maximum legal rate allowed on trees and ornamentals for the control of Glassy Winged Sharpshooters (GWSS) and the requirements for nonagricultural instructions.

Under the trees and ornamentals heading, the subject label displays a chart that contains four categories with three different rates. The categories are delineated by pest. The chart also provides specific directions for each category. The lowest rate, two teaspoons/gallon of water, is indicated for a variety of pests, including leafhoppers, and provides the specific direction, "Apply dilute sprays to obtain thorough coverage of upper and lower leaf surfaces." The second rate, two to four teaspoons has a pest list that does not include GWSS and provides the specific direction, "Use the higher rate when large larvae or heavy populations are present."

A much higher rate, 6.5 ounces per gallon of water, is listed for the last two sets of pests. The first category lists a number of beetles and provides the specific direction, "Treat tree trunks from ground level up, until trunk diameter is less than 5 inches." The last category lists the Elm bark beetle and provides the specific direction, "Apply approximately 20--30 gallons of spray mixture for each 50 feet of elm tree for thorough coverage of all bark surfaces on trunks, limbs and twigs."

The California Code of Regulations Section 6000 defines conflict with labeling as "...any deviation from instructions, requirements or prohibitions of pesticide product labeling concerning storage handling or use except...(d) Use to control a target pest not listed, provided the application is to a commodity/site that is listed and the use of the product against an unnamed pest is not expressly prohibited." The Department has no history or policy of enforcing California Food and Agricultural Code (FAC) section 12973, conflict with labeling, for use on an unnamed pest. In this case the violation of FAC Section 12973 is not related to the pest. On this label, broadcast sprays to trees and ornamentals are limited to four teaspoons (2/3 of ounce) per gallon of water.

Use of this product at any rate higher than four teaspoons per gallon of water is limited to tree trunks from the ground up to the point where the trunk is less than five inches in diameter or to elm tree trunks, limbs, and twigs. Spraying whole trees or non-tree ornamentals at a rate greater than four teaspoons per gallon of water is clearly in conflict with the label. The violation of FAC section 12973, in this case, would be for use on a site at a rate greater than allowed by the label and would not be concerned with the pest being controlled.

Instructions for the nonagricultural use of a pesticide are not recommendations. Nonagricultural pesticide use instructions are not covered by the prohibitions in FAC section 12971 (See the definition of recommendation at FAC Section 11411). The only exception is provisions in the Business and Professions Code regarding structural pest control operators. In cases that involve an agricultural use, recommendations that provide instructions in conflict with the label are in violation of FAC section 12971. FAC section 12023.5 also provides that repeated acts of recommending the clearly excessive use of a pesticide by a licensed pest control advisor constitute a basis for licensing action. The user of a pesticide must comply with the label in all use setting, irrespective of any written instructions provided.

If you have any questions, please contact your Liaison Senior Pesticide Use Specialist.

Original Signature by:
Scott T. Paulsen, Chief
Pesticide Enforcement Branch
(916) 324-4100

Enclosure, PDF (60 kb)

cc:  Mr. Daniel J. Merkley, Agricultural Commissioner Liaison (w/Enclosure)

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