Pesticides: who may fumigate and what you can demand

It is the law that decides who may sell and apply pest poison in Puerto Rico, and what the container must carry. If you are hiring someone to fumigate your home or business, here are the two papers you can ask for — two, not one — and the duties that person owes you even if they are not in the contract. If what you are buying is the shelf product, here is what the law requires it to have.

As a customer you do not have to qualify for anything: the Act regulates whoever sells and whoever applies, not you. On the side of those who work with pesticides, the Act distinguishes two things people often confuse. One is the business licence, which Article 5(g) allows to be required of natural or juridical persons engaged in manufacture, packing or repacking; sale or distribution; commercial application; transport; and import and export of pesticides or devices. The other is the certification of the person who applies, governed by Article 5A: the Secretary sets standards by type, category and subcategory, may require written or practical examinations on the use and handling of pesticides, and certifies the applicator as commercial — with its categories — or as private, according to the activity carried out. A company may hold a licence and still send someone uncertified to apply; that is why it is worth asking about both.

• For the business applying commercially: the licence the Secretary may require under Article 5(g)(3).Verified against the official source
• For the person applying: the applicator certification, commercial or private, issued by the Department under Article 5A after meeting the requirements and passing the examinations the Secretary requires.Verified against the official source
• For the product: being registered at the Department of Agriculture by the manufacturer or its representative in Puerto Rico, with registration renewed every two (2) years.Verified against the official source
• For restricted-use pesticides: being sold, used, stored and applied only in the manner and under the conditions the Secretary sets.Verified against the official source

Information pending verification.

1. 1

   Step 1: Ask for two papers, not one

   This comes first because it is what people most confuse. Article 5(g) gives the Secretary power “to require a licence of natural or juridical persons engaged in … the commercial application of pesticides or devices.” That is the business licence. Separately, Article 5A gives power “to certify pesticide applicators as commercial applicators with the categories or as private applicators, according to the type of activity they carry out, and issue them the corresponding certification.” That is the certification of the person who will handle the equipment in your home. That the company holds a licence tells you nothing about whether whoever shows up to apply is certified, and vice versa.

2. 2

   Step 2: Check whether the category is yours

   Certification is neither single nor good for everything. Article 5A(a) requires setting standards “by type of certification, categories and subcategories,” and 5A(e)(2) allows denying, suspending or revoking certification when “the applicator is operating in a type of certification, category or subcategory within which they have not been certified by the Secretary.” Translated: an applicator certified for one thing who starts doing another is violating the Act. We do not publish the list of categories because it lives in the regulation and we did not read it, but we do tell you it exists and that you can ask for it.

3. 3

   Step 3: The product must be registered, and the container talks

   Article 5(d) leaves no room: “to be distributed in Puerto Rico it shall be an indispensable requirement that every pesticide or device be registered at the Department of Agriculture of Puerto Rico by the manufacturer’s representative(s) or agent(s) in Puerto Rico … or by the manufacturer of the pesticide or device in Puerto Rico.” Registration is required every two years. The same article adds a guarantee that helps you if something goes wrong: “The manufacturer of a pesticide or device shall be understood to guarantee the composition and analysis of the pesticide while it is kept in its unopened original container.” And on language, Article 5(c) empowers the Secretary “to require the use of the Spanish and English languages on the labels and labelling of pesticides and devices.”

4. 4

   Step 4: Restricted use: not the same as strong shelf poison

   Article 5(m) creates a separate classification, “restricted use,” for pesticides “whose high toxicity, residual effects or other characteristics or properties make special measures or care necessary for their sale, use or application.” What matters to you: those products “may be sold, distributed, used, labelled, stored or applied only in the manner and under the conditions the Secretary establishes,” and Article 5(e) contemplates licences for the establishments that sell them. A detail almost nobody knows: Article 5(f)(2) allows regulating sale “including their segregation, at all times until dispatch and delivery, and their exclusion from the self-service system.” That is, the Act contemplates that certain pesticides not sit on the shelf where you pick them up yourself.

5. 5

   Step 5: What the applicator owes you even if it is not in the contract

   Four duties that come from the Act, not from the agreement you signed. First, Article 5A(f): every applicator must keep or maintain records “relating to, among other things, the classes, quantities, application doses, dates and places where such pesticides are applied.” Second, Article 5A(h): they must inform the Department of Agriculture “immediately upon the occurrence of any accident involving any pesticide under their responsibility.” Third, Article 5(q): if they cause a spill, they must take the measures the regulation sets “to clean it up and protect living organisms and the environment from contamination,” with sanctions and penalties if they do not. Fourth, Article 5(l) allows prohibiting by regulation the use of a pesticide “for a use or purpose other than that for which the product was registered”: applying an agricultural product inside a house, for instance, is no small matter.

6. 6

   Step 6: There may be advance notice, and you can ask about it

   Article 5(r) empowers the Secretary “to establish, by regulation, requirements of notice to the public and/or to the Department, before, during or after the application of any pesticide, when the Secretary determines it necessary to protect public health, plants, animals or the environment.” We do not tell you what the regulation requires today because we did not read it, but we do tell you the Act contemplates notice before, during and after. If you live next to a farm or a building about to be fumigated, that is the question to put to the Department.

7. 7

   Step 7: If something went wrong: where the complaint goes

   Article 5(u) gives the Secretary power “to receive or initiate complaints regarding violations of laws, regulations, ordinances and guidelines related to pesticides and to institute the proceedings necessary to prevent such violations and to impose penalties and sanctions under the law.” That is, there is a door and it is the Department of Agriculture. Article 5(y) adds that the Secretary may charge the cost of chemical analysis and of samples taken “during the investigation of complaints, spills and incidents involving pesticides, when negligence or improper practice is determined” — that is, that cost may fall on whoever acted wrongly, not on you.

8. 8

   Step 8: What the non-complier risks

   Article 12 sets two routes. The judicial one: anyone failing to comply with this Act or its regulations “shall be charged with a misdemeanour and, if convicted, shall be punished with a fine of not less than two hundred (200) dollars nor more than five hundred (500) dollars for the first offence; and for each subsequent violation, with a fine of not less than five hundred (500) nor more than one thousand (1,000) dollars or imprisonment of not less than thirty (30) days nor more than six (6) months, or both penalties at the court’s discretion.” The administrative one: after a hearing, fines of up to three hundred (300) dollars the first time and up to five hundred (500) for any subsequent violation. “It shall be the Secretary’s discretion to determine whether to proceed against the violator administratively or judicially.” And Article 11 allows denying, suspending or cancelling the registration, licence, certification or permit on six grounds, among them failing to pay an administrative fine within thirty days.

9. 9

   Step 9: If you are the one denied or suspended

   Article 5B gives you a ladder with dates, and the dates are short. First: “It shall be the Secretary’s duty to hear in an administrative hearing any party aggrieved by a refusal to issue them a licence, certification or registration under this Act, provided they so request within thirty (30) days following the date the notice is deposited in the mail.” Second, and this protects whoever already holds the paper: the Secretary must also hold a hearing “before suspending or cancelling any licence, or any certification or registration.” Third: review before the Superior Court “within the fifteen (15) days following official notice,” limited to questions of law, with the Secretary’s findings of fact conclusive if supported by substantial evidence. Fourth: certiorari to the Supreme Court within twenty (20) days.

At the Department of Agriculture, which registers pesticides, issues the licences, administers the applicator certification plan and receives complaints. The Act publishes no form, office, address, telephone or public register of certified applicators, and we do not invent them: ask the Department directly before hiring.

• Asking only for the company licence: the applicator certification is a different document, under Article 5A.
• Taking any certificate at face value: certification is by type, category and subcategory, and operating outside yours is grounds for revocation.
• Buying a pesticide with no registration number: to be distributed in Puerto Rico it must be registered at the Department of Agriculture.
• Decanting the product into another container: the manufacturer’s guarantee of composition and analysis runs while it is kept in its unopened original container.
• Allowing a product to be applied for something other than what it was registered for: the Act allows prohibiting by regulation use for a purpose other than the registered one.
• Not asking for the application record: every applicator must keep classes, quantities, doses, dates and places.
• Staying silent after a spill or accident: the applicator must inform the Department immediately, and the Secretary may receive your complaint.
• Letting the deadlines pass: thirty days to request an administrative hearing, fifteen for review before the Superior Court, twenty for certiorari.

These are the government pages this guide is based on.

• Departamento de Agricultura de Puerto Rico

  Agricultura

  bvirtualogp.pr.gov