Restricted Materials Permitting Program Changes

On July 2, 2024, Governor Newsom signed Assembly Bill (AB) 2113 (Chapter 60, Statutes of 2024); the bill was an urgency statute and took effect immediately. Specific to the scope of this letter, AB 2113 amended Food and Agricultural Code (FAC) sections 12825, 14006.5, and 14009. The effects of these changes on the Restricted Materials Permitting Program are discussed below. This letter also addresses some other items that County Agricultural Commissioners (CACs) may find useful in crafting a permit review decision. These items will be included in a forthcoming update to Compendium Volume 3, Restricted Materials and Permitting, anticipated in early 2025.

FAC section 14006.5

In subsection (a), the reference to section 12825 was amended to reflect non-substantive changes in organization of that statute under AB 2113, namely the references to subsections (a), (b), or (c) are now references to subsection (a) paragraphs (1), (2), or (3) of section 12825. These three requirements are grounds under which the Commissioner must refuse (deny) a permit application. Subsection (b) now explicitly requires CACs to consider all the local conditions listed prior to issuing a permit.

FAC section 12825

As mentioned above, FAC section 12825(a)(1) is cross-referenced in FAC section 14006.5(a) as a reason the CAC must refuse (deny) a permit application. The grounds for CAC refusal under FAC section 12825(a)(1) was amended to “The pesticide has significant adverse environmental effects for which there is no feasible mitigation available.”

For permit and notice of intent (NOI) evaluation purposes, the phrases “significant adverse environmental effect” in FAC section 12825(a)(1) and “substantial adverse environmental impact” in Title 3, California Code of Regulations (3 CCR) section 6432(a) are considered equivalent. This means if the CAC identifies a substantial adverse environmental impact that cannot be adequately addressed via feasible alternatives or feasible mitigation measures under 3 CCR section 6432(a), the CAC must deny the permit application or NOI in accordance with 3 CCR section 6432(a) and FAC sections 14006.5 and 12825. In short, while AB 2113 changed the language of the statute, there is no change in the CAC restricted material permit or NOI evaluation process.

FAC section 14009

Under FAC section 14009(a), any interested person may ask the CAC to reconsider their decision in issuing, refusing, revoking, suspending, or conditioning a restricted material permit, including an NOI. The CAC may affirm, modify, or reverse their permit decision. For CACs, there are several changes to the FAC section 14009 process:

1. The request for CAC review is limited to the issues described in subsection (d): the use is consistent with the labeling and applicable regulations; the CAC properly considered FAC section 14006.5; and whether the CAC abused their discretion in issuing, refusing, revoking, or conditioning the permit. Previously, there was no explicit limitation.
2. If the CAC is unable to complete their review within 10 days, the CAC must notify the person in writing and include an estimated timeline for completion. This is a new requirement.
3. An interested person may appeal to the Director to review the CAC’s action within 30 days after receiving the CAC’s written decision. Previously, there was no explicit appeal deadline.
4. Under FAC section 14009(a)(2) CACs now must report to DPR the number of reviews completed in the previous calendar year that were not completed within 10 days, the average number of days required for review, and the number of permits that were affirmed, modified, or cancelled. DPR is creating a form to assist the CACs in providing uniform reporting of the required information in advance of the January 31 annual deadline.

Relevant Items for the CAC to Consider When Crafting a Review Decision

Compendium Volume 3 Chapter 11 provides guidance to CACs on things which should be included in a written decision under FAC section 14009.

The issuance of a restricted material permit is subject to the California Environmental Quality Act (CEQA). Under AB 3765 (Chapter 308, Statutes of 1978) the issuance of permits is exempt from CEQA’s requirement to prepare and make public a plan or other written documentation of its CEQA environmental analysis. However, it is a best practice for CACs to document or otherwise keep a record of their decision-making with regards to considerations they made in evaluating the permit application. These records may include, but are not limited to:

• Copies of any permit application materials (initial or supplemental) put before the CAC which may show the details that the CAC considered prior to approving a restricted materials permit, such as the location and distances to nearby sensitive sites, and adjacent property operator(s);
• CAC consideration of local conditions, including all the factors listed in FAC section 14006.5(b);
• Copies of any other materials the CAC considered during their evaluation, including but not limited to: registered product labels, applicable permit conditions and other use regulations, and when appropriate: map(s) showing distances and descriptions of difficult to evacuate sites, printout of PRESCRIBE use limitations, draft Fumigation Management Plans or other similar documents, and application history for the site;
• The permit applicant’s completed alternatives worksheet for each restricted material on the permit application, and any documented analysis by the CAC of the alternatives listed on the worksheet;
• If applicable, evidence of a site visit by CAC staff to evaluate the site and conditions prior to issuing the permit or permit supplement; or
• Any other formal or informal notes completed by CAC staff while considering the permit application.

As part of the permit review under FAC section 14009, any such records may be used by the CAC to show how the requirements of the FAC and CEQA were met, as well as to show how the CAC followed the guidance in Compendium Volume 3. These items may be vital to support a finding the CAC did not abuse their discretion in issuing a permit.

In addition, the Director has identified the applicable statute of limitations for an interested person to request the CAC review their decision to issue a permit under FAC section 14009(a) is 180 days from the date of issuance, as outlined in the CEQA Guidelines (Title 14, California Code of Regulations [14 CCR]) section 15112(c)(5). This longer 180-day statute of limitations applies to circumstances where no public notice is given that a decision has been made, such as CAC restricted material permit decisions.

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

Sincerely,