Department of Pesticide Regulation

NOTICE OF PROPOSED ACTION REVIEW, COUNTY ADVOCATE ASSISTANCE, AND HEARING DECISION REVIEW

Effective July 1, 2013, certain Notices of Proposed Action (NOPAs) and certain proposed County Agricultural Commissioner (CAC) hearing decisions must be forwarded to the Department of Pesticide Regulation (DPR) before the CAC sends them to the respondent. This new policy supersedes the portion of Enforcement letter ENF 2006-4 that stated CACs were no longer required to submit NOPAs for review by DPR prior to sending them to the respondent

DPR hopes to increase communication between the CACs and the DPR Enforcement Branch and promote consistency and clarity in implementing pesticide enforcement response. The new policy will benefit the CACs by allowing DPR to:

• assist with priority investigations, as stated in DPR's guidance about CAC workplans (currently set forth in Enforcement letter ENF 12-20);
• provide information and assistance to CAC hearings advocates; and
• consult with the CAC about an action accepting or changing the hearing officer's proposed decision.

The enclosure "Routing Administrative Civil Penalty and Formal Referral Documents to DPR" is revised to include the new procedures for implementing this policy.

DPR Review of NOPAs

As part of the administrative civil penalty process, the CAC issues a NOPA levying a fine or other penalty against a respondent for pesticide violations. The California Code of Regulations (CCR) Title 3, section 6130 (e) states, "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."

In addition, the CAC must now first send certain NOPAs to the appropriate DPR Enforcement Branch regional office for review, before sending them to the respondent. The NOPA review is limited to incidents that met the human health Priority Episode criteria and any other violations that had substantial adverse effect to human health.

Hearing Advocates Consultation and Assistance

In a hearing, the CAC advocate presents evidence to support the CAC"s proposed action against the respondent. DPR strongly encourages CAC advocates to consult with their DPR regional office when preparing for a hearing involving a human health Priority Episode or violation that had substantial adverse effect to human health. Regional office staff may enlist assistance from DPR headquarters staff and, in appropriate cases, seek advice from a DPR staff counsel.

DPR Review of Proposed Hearing Decision

A respondent who receives a NOPA for a pesticide violation is granted a hearing, if requested by the respondent. After the hearing, the hearing officer prepares a proposed decision for the commissioner, who then may adopt, modify, or reject the hearing officer's proposed decision. See Enforcement letter ENF 12-09 for procedures relating to changing the hearing officer's proposed decision.

For hearings that involve a human health Priority Episode or other substantial adverse effect to human health, before issuing a decision to the respondent, the CAC must first send the hearing officer's proposed decision to the appropriate DPR regional office for review, if either of the following conditions is met::

• the hearing officer's proposed decision modifies or overturns the action that the CAC proposed in the NOPA, or
• the hearing officer's proposed decision upholds the action proposed in the NOPA, but the CAC plans to modify or reject the hearing officer's proposed decision.

If a CAC wants guidance on his or her options regarding a hearing officer's proposed Decision, DPR's regional office will contact DPR headquarters to make a DPR staff counsel available.

Strengthening Enforcement Through Communication

As discussed and supported at the October 2012 Director and Secretary's Winter Conference of CACASA (County Agricultural Commissioner and Sealers Association), the DPR review of certain NOPAs and civil penalty action hearing decisions prior to issuance is intended to support and strengthen enforcement and to assist the CACs with difficult or complicated enforcement action decisions. It is also part of DPR's responsibility under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) Sections 26 and 27, as the federally designated lead agency, to oversee pesticide enforcement.

DPR is also available to provide information about implementing enforcement response laws and regulations, including consultation with our legal office, as needed, for proposed actions or decisions. Consultation with the DPR's Office of Legal Affairs on the specifics of a case will require prohibiting the advising attorney from discussing it with other attorneys to ensure the integrity, in case of a potential appeal. DPR will manage the process of recusing the advising attorney.

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

cc:    Mr. Joe Marade, DPR Agricultural Commissioner Liaison