Public Agency Agricultural Use Pest Control Decisions and Pest Control Adviser Recommendations

In 2005, the Department of Pesticide Regulation (DPR) adopted Title 3, California Code of Regulations (3 CCR) section 6551:

Except as specifically exempted in section 12001 of the Food and Agricultural Code [FAC], any person employed by any federal, state, county, or local public agency who provides to that federal, state, county, or local public agency recommendations on any agricultural use must possess a valid agricultural pest control adviser license issued by the Director.

This letter explains the intent of 3 CCR section 6551 and clarifies the application of FAC sections 11410, 11411, 12001, 12003, and 12004 relative to agricultural use pest control decisions on public agency (i.e., government) property.

Are Public Agencies Exempt from PCA Licensing Statutes?

In 2005, DPR adopted section 6551 to clarify the original intent of the PCA licensing statutes related to public agency employees by explicitly requiring any person who is employed by any federal, state, county or local public agency (except those exempted by FAC 12001) who makes recommendations for any agricultural use to be licensed by the Director. In the Initial Statement of Reasons (ISOR) DPR stated:

“From the legislative history (Assembly Journal for Senate Bill 1021 ), it is apparent that from its inception this law was not intended to apply to employees of a firm discussing pest control pertaining to agricultural use of pesticides on that firm’s property; however, the express exemption of specified government employees (i.e., officials of federal, state, and county departments of agriculture and the University of California personnel engaged in official duties relating to agricultural use) in both FAC sections 11410 and 12001 reflect the intent of these statutes to include government employees who make agricultural pest control decisions within the scope of the licensing requirements.”

In other words, the Legislature’s licensing exception for internal decision making is limited to private firms and does not apply to agricultural use pest control decisions of public agencies, other than those employees specifically exempted in FAC section 12001.

Are Public Agency Agricultural Use Internal Pest Control Decisions Recommendations?

In adopting 3 CCR section 6551, DPR determined the PCA licensing exception of a firm’s internal pest control decisions does not apply to public agency employees who are not exempted under FAC 12001. By extension, the exception for a firm’s internal pest control decisions and recommendations also do not apply to public agency employee pest control decisions. As stated in the ISOR for 6551, government organizations are responsible for administering public property where the public, and more importantly children, congregate and should be held to a high standard of pest control expertise. Therefore, thepublic agency employee-PCA’s instructions or advice for pest control on public property is a “recommendation” as defined by FAC section 11411 to the public. FAC section 12003 requires PCAs to “put all recommendations concerning any agricultural use in writing.”

What Constitutes a Public Agency Pest Control Decision?

A public agency decision maker (required by 3 CCR section 6551 to be licensed as a PCA) may provide instructions to public agency employees or a hired contractor (i.e., a pest control business, PCB) to control pests on public property. As discussed above, this public agency pest control decision constitutes a “recommendation” and must be put in writing. The written document must meet the minimum standards for PCA written recommendations found in FAC section 12003 and 3 CCR section 6556. Under FAC section 12004, the PCA must maintain a copy of their written recommendation for one year and immediately provide it to the Commissioner upon request.¹

How is the Public Agency’s Agricultural Use Pest Control Decision Implemented?

Once the pest control decision has been documented as a PCA written recommendation, the FAC and DPR’s implementing regulations are silent on how the public agency’s pest control decision must be subsequently implemented. For example, the public agency can provide the written recommendation or can create and provide another public agency document (such as a work order, pesticide application log, work report, etc.) to the public agency’s employees or a hired PCB².

What Changes When a PCB Makes Agricultural Use Pest Control Decisions on Public Agency Property?

In most situations covered by the scope of this letter (including, but not limited to, pest control on greenbelts or parks, or along canals, rivers, or rights-of-way) the public agency will maintain primary responsibility for the control or management of the public property. However, some public agencies may choose to delegate some agricultural use pest control decision making authority to a PCB.

In that case, the individual at the PCB making the decision is seen as either offering a recommendation (“the giving of any instruction or advice”) on an agricultural use to the public agency or holding themself “forth as an authority on any agricultural use” to the public agency. (FAC sections 11410 and 11411.) Consequently, the individual working for the PCB who makes this pest control decision must be licensed as a PCA and document their advice or instruction as a written PCA recommendation to the public agency or face potential violations of FAC sections 12001 and/or 12003, respectively.

If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,

¹ FAC section 12004 applies to the PCA even after the employee separates from employment with their agency employer. Thus, it may be advisable for an employee-PCA to maintain a separate copy of their recommendations.

² If the pesticide requires an agricultural use restricted material permit, 3 CCR section 6632 requires the PCB to have a copy of the written recommendation, or a work order with the elements required of a recommendation.

Original signature by:

Joshua Ogawa

Chief, Enforcement Headquarters Branch

(916) 324-4100

Fidel Perez

Chief, Enforcement Regional Offices Branch

(916) 603-7700

CC:

Ms. Amber Morris, DPR County/State Liaison

Mr. Daniel Rubin, DPR Chief Counsel

Enforcement Branch Liaisons