Department of Pesticide Regulation
Paul E. Helliker
Director
  Gray Davis
Governor
 
 
August 8, 2003
 
  ENF 03-29
 
TO:
County Agricultural Commissioners
SUBJECT:
TITLE 3, CALIFORNIA CODE OF REGULATIONS SECTION 6147 (25B PRODUCTS)
 

Section 12803 of the Food and Agricultural Code (FAC) provides the Department of Pesticide Regulation (DPR) with authority to exempt pesticide products from all or part of the requirements of FAC Division 7. DPR has exercised its authority by adopting Title 3, California Code of Regulations (3 CCR) section 6147.

Section 6147 exempts "manufacturers of, importers of, and dealers in" certain Federal Insecticide, Fungicide, and Rodenticide Act section 25b pesticide products from the registration and registration-related requirements of Division 7 of the FAC with one specified exception. That exception is an adverse effects reporting requirement placed on pesticide product registrants by FAC section 12825.5. [The term "dealers in" as it is used in the context of registration in FAC Division 7 is not the same as retail pest control dealer activities defined in FAC Division 6, section 11407.]

To determine the requirements of Division 7 from which "manufacturers of, importers of, and dealers in" the pesticides listed in section 6147 are exempt, one has to review Division 7 to see what requirements apply to "manufacturers of, importers of, and dealers in" pesticides.

FAC section 12811 (Pesticide Product Registration)

"Every manufacturer of, importer of, or dealer in any pesticide, except a person that sells any raw material to a manufacturer of any pesticide or a dealer or agent that sells any pesticide that has been registered by the manufacturer or wholesaler, shall obtain a certificate of registration from the department before the pesticide is offered for sale."

Discussion

The only time that the phrase "manufacturer of, importer of, and dealer in" pesticides is used in Division 7 is in section 12811, which requires persons (with certain listed exceptions) to obtain a certificate of registration before a pesticide is offered for sale. That is the requirement of Division 7 from which "manufacturers of, importers of, and dealers in" the specified pesticide products are exempt by section 6147.

There are other requirements of Division 7 that do not apply because they are part of the registration process or arise once a product is actually registered (such as payment of the mill assessment on registered product sales).

There is nothing in section 6147 that provides or implies that the pesticide products listed in section 6147 are no longer pesticides or cannot be regulated by DPR and the county agricultural commissioners (CACs). FAC section 12803 (the authority for section 6147) specifically provides that the DPR’s Director retains authority to regulate any substance which is exempted pursuant to section 12803, whether registered or not, and there is nothing in section 6147 that exempts users of section 6147 pesticide products from having to comply with applicable pesticides laws and regulations relating to the use of pesticides (such as DPR’s worker safety regulations).

Application of law

Generally, any California non-registration related pesticide law or regulation applies to the retail sale or use of pesticide products specified in section 6147. However, requirements based on the need for "registered labeling" cannot be enforced since there is no registered labeling.

The personal protective equipment requirements of the worker safety regulations would apply and if a product specified in section 6147 happens to be a toxicity category one pesticide (some have been identified), the closed system requirement would apply. On the other hand, FAC sections 12971 and 12973 and 3 CCR section 6602 would not apply since one element required for a violation of these sections relates to registered labeling.

The following are examples of other laws or regulations that still apply to those who recommend, sell, or use pesticide products specified in 6147:

  • Persons who perform any of the activities (such as recommending, selling or applying a section 6147 pesticide product) subject to the provisions specified in FAC Division 6 are still subject to licensing by DPR and registration with the CAC as provided for each specific activity in Division 6.
  • A CAC could require a permit for a section 6147 pesticide product’s agricultural use under FAC section 14006.6 if the commissioner is able to make the required determination that "its use will present an undue hazard when used under local conditions."
  • A section 6147 pesticide product is still subject to any applicable pesticide chemical residue tolerances in or on food commodities or animal feed.
  • Records of pesticide use (3 CCR section 6624) are necessary for other regulatory purposes, such as providing application specific information to meet worker safety requirements and would apply.

Pesticide use reports (3 CCR section 6625-6627) will not be required at this time for section 6147 pesticide products. Since there is no registration number, the DPR pesticide use report data system has no way to handle these products. Because the operator ID (3 CCR section 6622) and site ID (3 CCR section 6623) numbers form the foundation for the pesticide use reporting system, DPR has also determined that they will not be required at this time. Similarly, where other regulatory requirements require a registration number, the provisions will not be enforced with respect to section 6147 pesticide products. On forms requesting a registration number, a response of "none" or "section 6147 product" could be made.

Generally, products exempt from registration by section 6147 should be low risk and, therefore, are considered a low priority for routine regulatory activity. Since these products are not registered, they do not contribute to the enforcement program by paying mill assessment. However, should complaints, episodes, or other issues arise involving these products, DPR and the CACs have authority to take action within the guidelines outlined in this letter.

Enclosed is a copy of California Notice 2000-6 DPR issued by the Registration Branch to pesticide registrants when it adopted section 6147. It answers a number of additional questions about the impact of section 6147.

 
Sincerely,
 
 
Original Signature by:
 
Scott T. Paulsen, Chief
Enforcement Branch
916-324-4100
 
Enclosure, PDF (143 kb)

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



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