Section 6128 - Enforcement Response to Violations(a) The commissioner shall comply with the provisions of this section each time an incident or a 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(A) An enforcement action; or(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.Cal. Code Regs. Tit. 3, § 6128
1. New section filed 11-30-2006; operative 11-30-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 48).
2. Amendment of section heading, section and NOTE filed 8-23-2011; operative 9-22-2011 (Register 2011, No. 34). 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.
1. New section filed 11-30-2006; operative 11-30-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 48).
2. Amendment of section heading, section and Note filed 8-23-2011; operative 9-22-2011 (Register 2011, No. 34).