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OGC 3: Pesticide Recordkeeping and Reporting Of Commercial Applicators

New York State Department of Environmental Conservation

DEC Program Policy

Issuing Authority: Frank V. Bifera, General Counsel
Title: Pesticide Recordkeeping and Reporting of Commercial Applicators
Date Issued: July 10, 1998
Latest Date Revised:

Abstract: This document establishes a policy of enforcement discretion, effective immediately, with regard to the New York State pesticide recordkeeping and reporting requirements for commercial applicators.

I. Purpose

The purpose of this document is to establish a policy of enforcement discretion, effective immediately, with regard to the New York State pesticide recordkeeping and reporting requirements for commercial applicators.

Specifically, this "statewide deferral" will utilize the statutory mandates of Article 33, Title 12, of the Environmental Conservation Law (ECL) in lieu of certain regulatory recordkeeping and reporting requirements of the New York State Department of Environmental Conservation (Department), at 6 NYCRR Part 325.25. Compliance with these Title 12 provisions will be deemed compliance with particular regulatory requirements in Part 325. This deferral will allow all businesses required to register, pursuant to Section 325.23, to utilize a single recordkeeping or reporting method to comply with both Title 12 and certain regulatory requirements.

II. Background

On July 8, 1996, the Governor of the State of New York signed into law Chapter 279, Laws of 1996 establishing the Pesticide Sales and Use Data Base and Recordkeeping and Reporting Law (Pesticide Reporting Law or PRL)(amended L.1997, c.260, §1, eff. July 21, 1997). New Title 12 of ECL Article 33 requires commercial applicators to report, at least annually, all pesticide applications to the Department and requires sellers of restricted use pesticides to report, at least annually, sales to private applicators of restricted use pesticides and general use pesticides used in agricultural crop production. The law also requires pesticide importers and manufacturers to annually report sales of restricted use pesticides. All pesticide information received will be computerized and certain portions will be made available to the public and to health researchers.

Presently, regulations at 6 NYCRR 325.25 require similar, although not identical, reporting and recordkeeping requirements for commercial applicators.

A. REPORTING REQUIREMENTS

6 NYCRR 325.25(b) requires that all businesses required to register pursuant to section 325.23 file annual reports with the Department by January 15th of each year covering the previous calendar year. These reports are required to list, for each product, the quantity of pesticide used and the EPA registration number.

Pursuant to ECL §33-1205(1), all commercial applicators are required to file annual reports with the Department on or before February first for the prior calendar year. This report consists of pesticide use records for each pesticide application containing the following information: EPA registration number; product name; quantity of each pesticide used; date applied; location of application by address (including five-digit zip code).

B. RECORDKEEPING REQUIREMENTS

NYCRR 325.25(a) mandates that all businesses required to register pursuant to section 325.23 keep records showing the kind and quantity of each pesticide used, dosage rates, methods of application, target organisms and the use, date and place of application for each pesticide used. These records are to be maintained on an annual basis and retained for at least three years. They must be available for inspection upon request by the Department.

ECL §33-1205(1) mandates that all commercial applicators maintain pesticide use records for each pesticide application containing the EPA registration number, product name, quantity of each pesticide used, date applied, location of application by address (including five-digit zip code) and corresponding records of the dosage rates, methods of application and target organisms for each pesticide application. These records must be maintained on an annual basis and retained for a period of at least three years. They must be available for inspection upon request by the Department. Furthermore, the records which serve as the basis for the annual report, as noted above, are to be maintained for at least three years.

III. Policy

A. DUPLICATION

Clearly, there is an overlap between the regulatory requirements in 6 NYCRR Part 325 and the mandates of Title 12 regarding recordkeeping and reporting. As a result of the promulgation of Title 12, New York standards are now inadvertently redundant, providing the Department with duplicative information and imposing a paperwork burden on the regulated community.

Pesticide businesses and commercial applicators are currently required to comply with both the annual recordkeeping and reporting standards in the regulations and the statutory standards for recordkeeping and reporting. Consequently, both Department and regulated businesses staff resources are unnecessarily utilized to process this paperwork. To avoid this burden on the regulated community and Department staff, while still maintaining appropriate and mandated oversight on pesticide applications, a single annual report will hereafter be allowed to satisfy both the regulations and the PRL.

The PRL requirements for reporting cover all categories (i.e., two: quantity of pesticide used for each product and EPA registration number) of information required in the reporting regulation. As such, submission of an annual report that complies with the PRL annual report requirements will satisfy regulatory reporting requirements and thus no regulatory annual report is required. With respect to the due date for such annual reports, the statutory provision of February 1 will govern.

The PRL requirements for recordkeeping cover the following categories of information contained in the regulatory requirements at 6 NYCRR 325.25(a): dosage rates, methods of application (i.e., broadcast, aerial, hydraulic spray, compressed air spray, fumigation, etc.) and target organisms for each pesticide application, quantity of each pesticide used and date applied. The PRL also requires the "product name" of each pesticide used. Although the regulations require information on the "kind" of pesticide used, it is reasonable to expect that the "kind" of pesticide used can be ascertained from the product name and/or target organism information required by the PRL. Therefore, with respect to the above-mentioned categories, maintenance of records that comply with the PRL recordkeeping requirements will satisfy regulatory recordkeeping requirements.

There are, however, two remaining categories of information not covered by the PRL that are currently required by regulation: the use and place of each application for each pesticide used. While the PRL requires the "location of application by address, including five-digit zip code", the term "place" has been interpreted and applied as a more specific location (i.e., "Apartment 5" of 3 Oak Street, 12211, or "kitchen of restaurant" at 15 Maple Street, 12223). Furthermore, "use" of application for each pesticide is required pursuant to regulation but is not mentioned in the PRL. "Use" has been interpreted to mean, other than method, the equipment used in or the purpose of the application, as well as the "area of use".

In accordance with the spirit of the law, it is the Department's intention to ensure that commercial applicators submit information to accurately and precisely provide the Department, inspectors and Pesticide Program staff with a complete description about each pesticide application to enable an individual to return to a site and identify the exact location of the application. Thus, "place" is deemed to be warranted in addition to the PRL categories to more specifically identify where the application took place. The information submitted under the term "use", however, may be ascertained from information submitted under the method of application, the target organism or the product name. Thus, information on "use" will not be warranted in addition to the aforementioned PRL categories.

In conclusion, this Enforcement Directive will allow the submission of a report complying with the PRL standards to satisfy the regulatory annual report requirement and thus only one report is to be submitted by each commercial applicator. Records that are maintained for at least three years covering all subjects in the PRL will satisfy regulatory requirements for recordkeeping as long as the "place" of application for each pesticide used is included in such a record. Compliance with this directive will offer substantial regulatory relief to the regulated community, as well as the Department, and yet be no less protective of human health and the environment.

B. STATEMENT OF POLICY

In lieu of the regulatory language found at 6 NYCRR 325.25 regarding recordkeeping and reporting requirements for commercial applicators, the Department shall accept and allow annual reports submitted and records maintained in accordance with ECL §33-1205 (1) to satisfy all regulatory recordkeeping and reporting requirements as long as information regarding "place" of a pesticide application is included in all records maintained pursuant to ECL §33-1205(1). Information on "place" maintained by commercial applicators must be sufficient to accurately and precisely provide Department staff with a complete description about each pesticide application and enable an individual to return to a site and identify the exact location of the application.

C. ENFORCEMENT DISCRETION

A "statewide deferral" to the Title 12 requirements is prudent due to the significance of the paperwork reduction and the greater detail provided by Title 12 requirements. Exercise of the Department's prosecutorial discretion not to enforce the limitations in New York State's current regulations, in light of the statutory mandate currently in effect, is hereby authorized. Until these regulatory requirements are formally superseded or repealed, the Department will defer to Title 12 and this Enforcement Directive's requirements for all recordkeeping and reporting by registered pesticide businesses and commercial applicators.

Until 6 NYCRR 325.25 is formally superseded by repeal or regulatory amendment, the existing New York State pesticide regulations remain enforceable against violations related to recordkeeping and reporting for registered businesses and commercial applicators in New York State. Where a regulated entity is in compliance with Title 12 and this Enforcement Directive, the Department will exercise enforcement discretion against violations of existing standards for recordkeeping and reporting requirements, at 6 NYCRR 325.25, concerning pesticide records and reports. If the regulated entity fails to comply with Title 12 and this Enforcement Directive, New York reserves the right to take enforcement action for violations of the existing State regulation en toto at 6 NYCRR 325.25.

Interpretive aspects of Title 12 and this Enforcement Directive will be subject to Department standards and criteria.

D. NOTIFICATION

The Department shall notify the regulated community, the public and Department Staff of this enforcement discretion decision by:

  1. Publishing a notice of this memorandum (Attachment A) in the Environmental Notice Bulletin as soon as possible;
  2. Publishing a notice of this memorandum (Attachment A) in the State Register as soon as possible; and
  3. Immediate distribution of this memorandum to all Executive Office Staff, Division Directors and Regional Directors.

IV. Responsibility

The responsibility for interpretation and update of this document shall reside with the Pesticides Program and the Division of Legal Affairs.


ATTACHMENT A

PUBLIC NOTICE

The New York State Department of Environmental Conservation has decided to exercise enforcement discretion, effective immediately, with regard to the New York State Pesticide Records and Reports Regulations for Commercial Applicators. Specifically,

In lieu of the regulatory language found at 6 NYCRR 325.25 regarding recordkeeping and reporting requirements for commercial applicators, the Department shall accept and allow annual reports submitted and records maintained in accordance with ECL §33-1205(1) to satisfy all regulatory recordkeeping and reporting requirements as long as information regarding "place" of a pesticide application is included in all records maintained pursuant to ECL §33-1205(1). Information on "place" maintained by commercial applicators must be sufficient to accurately and precisely provide Department staff with a complete description about each pesticide application and enable an individual to return to a site and identify the exact location of the application.

The Department has deemed the public comment provision inappropriate in this case, as allowing for such comment would delay or impede compliance with the Pesticide Reporting Law (PRL) and 6 NYCRR Part 326. Based upon receipts of reports for the 1997 report year, we have found there is confusion in the regulated community and will facilitate compliance with such regulatory mandates. The delay of immediate application of this policy will further impact compliance with the PRL.

For further information, contact the Department's Division of Materials Management, Pesticide Reporting Section, at (518) 402-8788.


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