OGC 4: Pesticide Recordkeeping And Reporting For Commercial Permit Holders, Including Importers, Manufacturers And Compounders
New York State Department of Environmental Conservation
DEC Program Policy
Issuing Authority: Frank V. Bifera, General Counsel
Title: Pesticide Recordkeeping and Reporting for Commercial Permit Holders, Including Importers, Manufacturers and Compounders
Date Issued: September 23, 1998
Latest Date Revised:
Abstract: This document establishes a policy of enforcement discretion, effective thirty (30) days after publication in the Environmental Notice Bulletin, with regard to the New York State pesticide recordkeeping and reporting requirements for commercial permit holders, including importers, manufacturers and compounders.
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 permit holders, including importers, manufacturers and compounders.
Specifically, this "statewide deferral" will utilize the statutory mandates of Article 33, Title 12, of the Environmental Conservation Law (ECL) in lieu of and in addition to certain regulatory recordkeeping and reporting requirements of the New York State Department of Environmental Conservation (Department), at 6 NYCRR 326.10. Compliance with these Title 12 provisions will be deemed compliance with particular regulatory requirements in Part 326. This deferral will allow all persons who sell or offer for sale restricted use pesticides to private applicators, to other commercial permit holders and to commercial applicators for end use (hereinafter "commercial permit holder" or "commercial permittee") to utilize Title 12 recordkeeping and reporting methods at ECL §33-1205 to satisfy certain regulatory requirements. This deferral will also allow those commercial permit holders who are also importers, manufacturers or compounders to utilize Title 12 recordkeeping and reporting methods at ECL §33-1207 to satisfy 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 326.10 require similar, although not identical, recordkeeping and reporting requirements for commercial permit holders, including importers, manufacturers and compounders. Additionally, the reporting authority under the ECL is supplemented by 6 NYCRR 326.10(b)(3)(ii).
A. RECORDKEEPING REQUIREMENTS
6 NYCRR 326.10 (b)(3)(i) mandates that every commercial permit holder keep a separate sales invoice record for each purchase permit holder (or certification identification card holder) on an annual basis. These records must be retained by the commercial permit holder and kept for a minimum of three years.
ECL §33-1205(2)(a) mandates that all commercial permit holders who sell or offer for sale restricted use pesticides to private applicators issue a record to the private applicator of each sale of a restricted use pesticide or a general use pesticide used in agricultural crop production to such applicator. The record of each sale must include the following: EPA registration number, product name of the pesticide purchased, quantity of the pesticide purchased, date purchased and location of intended application by address, including five-digit zip code, or if the address is unavailable, then by town or city, including five-digit zip code, if the location of intended application differs from the billing address that appears on the record.
Those commercial permit holders that are also importers, manufacturers or compounders are required by ECL §33-1207(1) to maintain records of all sales within the state during the preceding year of each restricted use pesticide product which he or she has imported, manufactured or compounded. This record of each restricted use pesticide must include: (a) EPA registration number; (b) container size; and (c) number of containers sold to New York purchasers. Such records are to be maintained for a period of not less than three years.
Commercial permit holders are also required by ECL §33-0901(5) to maintain and make available to the commissioner or his agents, for at least two years, accurate and detailed records accounting for all restricted use pesticides acquired by him and disposed of by him, including, but not limited to dates, names and addresses of all suppliers and the quantities acquired from each, and the names, addresses, permit numbers or certification identification card numbers of all purchasers, and the quantities purchased by each.
Additionally, 6 NYCRR 326.3(f) requires that a commercial permit holder maintain all records pertaining to the acquisition, sale or disposal of restricted use pesticides for a period of two years and make available said records for inspection by the commissioner. Such records shall be kept in a manner and on such forms as the commissioner may prescribe.
B. REPORTING REQUIREMENTS
6 NYCRR 326.10(b)(3)(ii) requires that a commercial permit holder mail or deliver to the Department an annual report showing the total sales of each restricted substance listed in section 326.2(a) and the total sales of each restricted substance listed in section 326.2(b) no later than the 15th business day following the last day of the calendar year for which the report is being submitted. Additionally, under 6 NYCRR 326.10(b)(3)(ii), a commercial permit holder must submit any and all other forms, reports or information as the commissioner requires.
6 NYCRR 326.10(b)(3)(iii) also requires that Stub 2 of a purchase permit be attached to the commercial permit holder's annual report and mailed or delivered to the Department with that report.
Pursuant to ECL §33-1205(2)(a), all commercial permit holders who sell or offer for sale restricted use pesticides to private applicators are required to file, at least annually, a report or reports containing information on the above-referenced record that is issued to the private applicator. As noted above, this information consists of the EPA registration number, product name of the pesticide purchased, the quantity of the pesticide purchased, the date purchased and the location of intended application by address, including five-digit zip code, or if the address is unavailable, then by town or city, including five-digit zip code, if the location of intended application differs from the billing address that appears on the record. This report shall be submitted to the Department on or before February first for the prior calendar year.
Those commercial permit holders that are also importers, manufacturers or compounders are required by ECL §33-1207(2) to file an annual report containing information on each restricted use pesticide product sale on or before February first for the prior calendar year. The information must include the EPA registration number, container size and number of containers sold to New York purchasers.
III. Policy
A. DUPLICATION
Clearly, there is both overlap and distinction between the regulatory requirements in 6 NYCRR Part 326 and the mandates of Title 12 regarding recordkeeping and reporting. As a result of the enactment of Title 12, New York standards are now inadvertently redundant and sometimes at odds with one another, providing the Department with duplicative information and imposing a paperwork burden on the regulated community.
Commercial permit holders 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, the 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 maintaining appropriate and mandated oversight on pesticide applications, recordkeeping requirements will be consolidated and a single annual report will hereafter be allowed to satisfy both the regulations and the PRL for each statutory report at ECL §§ 33-1205 and 33-1207, similar to the Policy consolidating the reporting and recordkeeping requirements for commercial applicators.
The PRL requirements for recordkeeping for commercial permit holders differ from those standards in the regulations in that the statute requires only issuance of a record to the private applicator and the regulation requires only maintenance of a sales invoice by the commercial permit holder for each sale to a purchase permit holder. As there is no direct conflict between the two provisions, both provisions will be maintained so that a record will be issued by the commercial permit holder to a private applicator and such a record, hereby authorized to serve as the "sales invoice", will be maintained for a period of three years. Thus, to satisfy recordkeeping requirements for both the PRL and Part 326, a commercial permit holder must issue a record for each sale of a restricted use pesticide or a general use pesticide used in agricultural crop production to a private applicator with the information listed at ECL §33-1205(2)(a)(1) through (5) at the time of sale (i.e., when the applicator takes custody of the pesticide) and retain a copy of those records relative to restricted use pesticide sales for a minimum of three years.
The PRL recordkeeping requirements for importers, manufacturers and compounders may be viewed as less broad than the regulatory requirement for recordkeeping in that the statute requires maintaining records on sales to New York purchasers. Arguably, the regulatory requirement to maintain records for each sale to a purchase permit holder could result in recording sales to out-of-state purchasers who hold a New York purchase permit. In keeping with the legislative intent to track only those sales to New York purchasers, this Policy will defer to the statutory recordkeeping requirements for importers, manufacturers and compounders. Thus, only information on each restricted use pesticide product sale to New York purchasers is required to be recorded.
The PRL requirements for reporting at both ECL §§33-1205 and 33-1207 expand the regulatory categories of pesticides to be reported from only those listed in 6 NYCRR 326.2(a) and (b) to all restricted use pesticides sold to private applicators and all restricted use pesticides sold to New York purchasers. As the PRL is more comprehensive, submission of an annual report that complies with the PRL requirements will satisfy both the PRL requirements and the regulatory reporting requirements. Therefore, restricted use pesticides include those which are classified as restricted use by the label [6 NYCRR 326.1(k)]; listed by active ingredient at 6 NYCRR 326.2(a) or (b); identified on the label to be used only by commercial applicators [6 NYCRR 326.2(g)]; or aquatic use products [6 NYCRR 326.2(h)]. With respect to the due date for such annual reports, the statutory provision of February 1 will govern.
In accordance with the spirit of the law, it is the Department's intention to ensure that a commercial permit holder submit information to accurately and precisely provide the Department, inspectors and Pesticide Program staff with a complete description about each restricted use pesticide sale. The requirement at 6 NYCRR 326.10(b)(3)(iii) relating to the attachment of Stub 2 to the regulatory annual report is no longer warranted as such information is to be reported on the sales of restricted use pesticides to purchase permit holders on Form 44-15-25.
In conclusion, this Policy will allow commercial permit holders, including importers, manufacturers and compounders to submit an annual report or reports in compliance with the PRL standards at ECL §§33-1205 and 33-1207 (See Figure 1). This will satisfy the regulatory annual report requirement at 6 NYCRR Part 326. Records that are issued and maintained for at least three years covering information required in the PRL at ECL §33-1205 (sales to certified private applicators) will satisfy both statutory and regulatory requirements for recordkeeping. Recordkeeping standards at ECL §33-1207 will be used in lieu of those standards at 6 NYCRR Part 326 for other restricted use pesticide sales by commercial permit holders (including importers, manufacturers and compounders). Compliance with this Policy 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.
| Commercial Permit Holder Sales | Required Annual Report |
|---|---|
| Sales of Restricted Use Pesticides to Commercial Permit Holders for Resale | Restricted Use Pesticides Annual Report for Commercial Permittees (Including Importers, Manufacturers and Compounders) Form 44-15-25(1/98) |
| Sales of Restricted Use Pesticides to Commercial Applicators for End Use, Including Purchase Permit Sales | Restricted Use Pesticides Annual Report for Commercial Permittees (Including Importers, Manufacturers and Compounders) Form 44-15-25(1/98) |
| Sales of Restricted Use Pesticides by Importers, Manufacturers or Compounders | Restricted Use Pesticides Annual Report for Commercial Permittees (Including Importers, Manufacturers and Compounders) Form 44-15-25(1/98) |
| Sales of Restricted Use Pesticides or General Use Agricultural Pesticides to Certified Private Applicators | Commercial Permittee Annual Report for Sales of Restricted Use Pesticides and General Use Agricultural Pesticides to Certified Private Applicators Form 44-15-27(1/98) |
B. STATEMENT OF POLICY
In lieu of the regulatory language found at 6 NYCRR 326.10 regarding reporting requirements for commercial permit holders, the Department shall allow and accept an annual report or reports submitted in accordance with ECL §§ 33-1205(2)(a) and/or 33-1207(2). To satisfy both regulatory and statutory recordkeeping requirements for commercial permit holders who sell restricted use pesticides or general use pesticides used in agricultural crop production to certified private applicators, records must contain information listed at ECL §33-1205(2)(a) through (e) and be maintained for a minimum of three years. To satisfy both regulatory and statutory recordkeeping requirements for commercial permit holders (including importers, manufacturers and compounders), who sell restricted use pesticides to other commercial permit holders or commercial applicators for end use, records must contain information listed at ECL §33-1207(1)(a) through (c) and be maintained for a period of not less than three years.
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 Policy's requirements for all recordkeeping and reporting by commercial permit holders, including importers, manufacturers and compounders.
Until 6 NYCRR 326.10 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 permit holders in New York State. Where a regulated entity is in compliance with Title 12 and this Policy, the Department will exercise enforcement discretion against violations of existing standards for recordkeeping and reporting requirements, at 6 NYCRR 326.10, concerning pesticide records and reports. If the regulated entity fails to comply with Title 12 and this Policy, New York reserves the right to take enforcement action for violations of the existing State regulation en toto at 6 NYCRR 326.10.
Interpretive aspects of Title 12 and this Policy will be subject to Department standards and criteria.
D. NOTIFICATION
The Department shall notify the regulated community, the public and Department Staff of this policy of enforcement discretion decision by:
- Publishing a notice of this memorandum (Attachment A) in the Environmental Notice Bulletin as soon as possible;
- Publishing a notice of this memorandum (Attachment A) in the State Register as soon as possible; and
- 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 Office of General Counsel.
ATTACHMENT A
PUBLIC NOTICE
The New York State Department of Environmental Conservation has decided to exercise enforcement discretion, effective 30 days after publication in the Environmental Notice Bulletin, with regard to the New York State Pesticide Records and Reports Regulations for Commercial Permit Holders, Including Importers, Manufacturers and Compounders. Specifically,:
In lieu of the regulatory language found at 6 NYCRR 326.10 regarding reporting requirements for commercial permit holders, the Department shall allow and accept an annual report or reports submitted in accordance with ECL §33-1205(2)(a) and/or 33-1207(2). To satisfy both regulatory and statutory recordkeeping requirements for commercial permit holders who sell restricted use pesticides or general use pesticides used in agricultural crop production to certified private applicators, records must contain information listed at ECL §33-1205(2)(a) through (e) and be maintained for a minimum of three years. To satisfy both regulatory and statutory recordkeeping requirements for commercial permit holders (including importers, manufacturers and compounders), who sell restricted use pesticides to other commercial permit holders or commercial applicators for end use, records must contain information listed at ECL §33-1207(1)(a) through (c) and be maintained for a period of not less than three years.
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 receipt of reports for the 1997 report year, we have found there is confusion in the regulated community. This EGM will help clarify statutory and regulatory requirements for 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.
