California Code of Regulations (Title 3. Food
and Agriculture)
Division 6. Pesticides and Pest Control Operations
Division 6. Pesticides and Pest Control Operations
Chapter 1. Pesticide Regulatory Program
Subchapter 3. Agricultural Commissioner Penalties
Article 1. Guidelines
6128. Enforcement Response to Violations.
(a) The commissioner shall comply with the provisions of this section each time an incident or violation of law or regulation occurs related to agricultural or structural use of pesticides or any use of a fumigant, to determine the appropriate enforcement response.
(b) For purposes of this section, and sections 6130 and 6131, the following terms are defined as follows:
"Compliance action" is an action that documents that certain behavior or an act is in violation of the law or regulations. The documentation may or may not allege the recipient committed the violation at issue. Compliance actions do not directly impose a monetary penalty. Compliance actions include violation notice; warning letter; documented compliance interview; or noncompliance noted on an inspection form. Compliance actions also include public protection actions such as cease and desist orders; seize or hold product or produce orders; and prohibit harvest orders.
"Decision report" is a written record of the basis for a commissioner's decision not to take an enforcement action.
"Enforcement action" is an action with the potential to impose a monetary penalty or loss of a right or privilege initiated by a Notice of Proposed Action. Enforcement actions include administrative civil penalty; or disciplinary action (refuse, suspend, or revoke) against a county registration, certificate, or permit.
"Incident" is an occurrence in which one or more violations are discovered. An incident may be a single inspection or audit, a set of two or more inspections or audits related to the occurrence, or a pesticide episode investigation.
(c) After determining the violation class specified in Title 3, California Code of Regulations section 6130 or Title 16, California Code of Regulations section 1922, the commissioner shall respond to each incident with one or more of the enforcement responses listed below.
(1) Class A or Serious Violation
(A) A formal referral to the District Attorney, City Attorney, Circuit Prosecutor, or the Director or Structural Pest Control Board Registrar for a statewide licensing action.
(B) An enforcement action. If the enforcement response initially selected by the commissioner was a formal referral but the referral was declined, then the commissioner shall proceed with this enforcement response.
(2) Class B or Moderate Violation
(A) A formal referral to the District Attorney, City Attorney, Circuit Prosecutor, or the Director or Structural Pest Control Board Registrar for a statewide licensing action.
(B) An enforcement action. If the enforcement response initially selected by the commissioner was a formal referral but the referral was declined, then the commissioner shall proceed with this enforcement response.
(C) A compliance action with a decision report, provided there has not been a violation in Class A or B within two years of the current violation. In some instances, a compliance action may be taken in addition to the enforcement response in (2)(A) or (B), in which case a decision report is not required.
(3) Class C or Minor Violation Enforcement Response.
(A) An enforcement action; or
(B) A compliance action.
(d) If a decision report is required, the commissioner shall submit the decision report to the Director, within 60 days of the date of the initial compliance action, for concurrence. If the Director does not concur with the commissioner's decision, the Director shall notify the commissioner within 30 days of receipt of the decision report with the specific reasons for denial, and an enforcement action shall be taken by the commissioner. The commissioner shall retain a copy of the decision report for two years. A decision report shall contain:
(1) The identification of the respondent or case;
(2) A summary of the incident or act;
(3) The section(s) violated;
(4) The class of each violation pursuant to Title 3, California Code of Regulations section 6130 or Title 16, California Code of Regulations section 1922;
(5) An explanation of the circumstances that justify not taking an enforcement action;
(6) The date of decision; and
(7) The name of the Agency official responsible for the decision.
(e) In the case of a priority investigation, as defined in the 2005 Cooperative Agreement, dated April 2005, between the California Department of Pesticide Regulation, the California Agricultural Commissioners and Sealers Association, and the U.S. Environmental Protection Agency, Region IX, except in cases of intentional ingestion, the commissioner shall provide an opportunity to the District Attorney, City Attorney, or Circuit Prosecutor to participate in the investigation and/or pursue a civil or criminal action when a violation may have occurred.
NOTE: Authority cited: Sections 2281, 11456,12781, 12976, and 15203, Food and Agricultural Code. Reference: Sections 11892, 12996, 12997, 12999.5, and 15202, Food and Agricultural Code; and Section 8617, Business and Professions Code.
6130. Civil Penalty Actions by Commissioners.
(a) When taking civil penalty action on incidents or violations related to agricultural or structural use of pesticides and all uses of fumigants pursuant to section 12999.5 of the Food and Agricultural Code, county agricultural commissioners shall use the provisions of this section to determine the violation class and the fine amount. This section may also be used to determine the violation class and fine amount for violations involving other uses of pesticides.
(b) County agricultural commissioners shall designate violations as "Class A," "Class B," or "Class C" using the following definitions:
(1) A Class A violation is one of the following:
(A) A violation that caused a health, property, or environmental hazard.
(B) A violation of a law or regulation that mitigates the risk of adverse health, property, or environmental effects, and the commissioner determines that one of the following aggravating circumstances support elevation to Class A.
1. The respondent has a history of violations;
2. The respondent failed to cooperate in the investigation of the incident or allow a lawful inspection; or,
3. The respondent demonstrated a disregard for specific hazards of the pesticide used;
(C) A violation of a lawful order of the commissioner issued pursuant to sections 11737, 11737.5, 11896, 11897, or 13102 of the Food and Agricultural Code.
(2) A Class B violation is a violation of a law or regulation that mitigates the risk of adverse health, property, or environmental effects that is not designated as Class A.
(3) A Class C violation is a violation of a law or regulation that does not mitigate the risk of an adverse health, property, or environmental effect, including, but not limited to, Title 3, California Code of Regulations, sections 6624 through 6628, and Food and Agricultural Code sections 11732, 11733, and 11761.
(c) The fine range for each class of violation is:
(1) Class A: $700 to $5,000.
(2) Class B: $250 to $1,000.
(3) Class C: $50 to $400.
(d) When determining the fine amount within the fine range, the commissioner shall use relevant facts, including severity of actual or potential effects and the respondent's compliance history, and include those relevant facts in the notice of proposed action.
(e) The commissioner shall send a copy of the notice of proposed action to the Director no later than the time the notice is provided to the respondent.
(f) If the respondent requested and appeared at the hearing offered by the commissioner, the commissioner's decision shall include information concerning the person's right to appeal the decision to the Director.
(g) The commissioner shall send a copy of the notice of final action to the Director no later than the time the notice is provided to the respondent.
Note: Authority cited: Sections 12781, 12976, and 15203, Food and Agricultural Code. Reference: Sections 11892, 12973, 12997, 12999.5, and 15202, Food and Agricultural Code; and Section 8617, Business and Professions Code.
6131. Actions Allowed Against Licensed or Certificated Employees.
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(a) When bringing an enforcement action against an employee who failed to use personal protective equipment or other safety equipment as required by section 6702(c) or a pesticide product's labeling, the commissioner shall determine that all of the following conditions are met:
(1) The employee person is licensed or certified pursuant to Chapter 14, Division 3, of the Business and Professions Code; Chapters 5 or 8, Division 6, of the Food and Agricultural Code; or Chapters 3.4 or 3.6, Division 7, of the Food and Agricultural Code;
(2) The employer provided the equipment to the employee and the equipment was available at the work site in a condition that would have provided the safety or protection intended by the equipment;
(3) The employer has implemented a written workplace disciplinary action policy requiring the employee to use the equipment;
(4) The employee has acknowledged by signature having read and understood the employer's written workplace disciplinary action policy for failure to use the equipment; and,
(5) The employer has complied with applicable training requirements of this Division prior to the time the employee failed to use the equipment.
(b) A Notice of Proposed Action to fine an employee for failure to use personal protective equipment must include a copy of the text of subsection (a).
NOTE: Authority cited: Sections 12781, 12976, and 15203, Food and Agricultural Code. Reference: Sections 11892, 12973, 12997, and 15202, Food and Agricultural Code; and Section 8616.9, Business and Professions Code.