3.1 Manner of Application & Lawful Label Deviations (Pes 501-504)

3.1 Manner of Application & Lawful Label Deviations (Pes 501-504)

Every field question on the regulations exam eventually reduces to one of two ideas: what the label requires and what New Hampshire adds on top of it. Pes 500 opens with those two ideas in order.

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Pes 501.01 - registration comes first

"All pesticides or formulations thereof, used within the state shall be registered as provided for under RSA 430:36."

Before the question of how to apply a product arises, the product itself must hold a current New Hampshire registration. Federal registration is necessary but not sufficient. This is why even a FIFRA section 25(b) minimum-risk product needs state registration before it is sold or used here.

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Pes 502.01 - use in accordance with labeling

The baseline is absolute: registered pesticides shall be used in strict accordance with the manufacturer's current labeling instructions. Note the word current - an old container label does not authorize a use the registrant has since removed.

The rule then lists five exceptions. Learn who each exception belongs to; that is how they are tested.

(a) Direction from a legally constituted authority

An application may follow procedures or rates prescribed by a legally constituted authority when all three of the following hold:

1. the rates or procedures reduce environmental risk without compromising effectiveness, or improve efficacy without adding risk to persons or the environment;
2. the procedures or rates are in writing and in the applicator's possession at the time of application; and
3. the authority agrees to make its supporting documentation available to the Division on request.

(b) Experimental work

Experimental work as specified in RSA 430:46, I.

(c) Private applicators and Category A commercial applicators

This is the exception most applicators actually use. For private applicators, and for commercial applicators registered under Category A applying to agricultural commodities, four deviations are lawful:

1. Applying at any dosage, concentration, or frequency LESS than the labeling specifies. Less is legal; more never is.
2. Applying against a target pest not specified on the labeling, if the application is to a crop, animal, or site that is specified - unless the label says the product may be used only against pests it names.
3. Employing any method of application not prohibited by the label.
4. Mixing a pesticide with a fertilizer when the labeling does not prohibit the mixture.

(d) Prohibited invasive species

The same first three deviations are allowed for controlling invasive species listed in Agr 3802.01 (NH Prohibited Invasive Species), plus common reed (Phragmites australis) and purple loosestrife (Lythrum salicaria).

(e) Aquatic below-label rates

Category D commercial applicators may apply below the labeled rate in aquatic environments when the below-label use was proposed in a special permit application and approved under Pes 600.

+------------------------------------------------------------------+
|  ALWAYS ILLEGAL, NO EXCEPTION                                    |
+------------------------------------------------------------------+
|  x  Exceeding the labeled rate, concentration, or frequency      |
|  x  Applying to a crop, animal, or site the label omits          |
|  x  Using a method the label expressly prohibits                 |
|  x  Ignoring a labeled REI, PHI, or safety/PPE requirement        |
|  x  Using a product with no current New Hampshire registration   |
+------------------------------------------------------------------+

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Pes 502.02 - the label goes with the product

"A complete copy of pesticide labeling, as it appears on the original registered product, shall accompany all service containers and pesticide application equipment in the vehicle transporting them."

This is a truck-inspection item. If an inspector stops a spray rig carrying a service tank of diluted product, the applicator must be able to produce the complete labeling of the original registered product - not just the abbreviated service container label. Many firms satisfy this with a binder of labels and Safety Data Sheets carried in the cab, alphabetized for fast retrieval in a spill.

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Pes 503 - protection of persons applying or handling pesticides

A holder of a supervisory registration certificate-general use may not supervise anything beyond general use pesticides, and may not serve as the designated supervisor of anyone applying non-general-use products.

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Pes 504 - equipment and vehicles

Service container labeling (Pes 504.01)

When a pesticide is transferred out of its original container into a service container, that container must bear abbreviated labeling affixed to the container with five elements:

1. Product name
2. Signal word of the original concentrate
3. Common name and percentage of active ingredients
4. Name, address, and telephone number of the pesticide application firm
5. A notation whether the material is dilute or concentrate

The second element catches people out. The signal word on the service container is that of the original concentrate, even though the tank now holds a diluted spray.

Vehicle identification (Pes 504.02)

All on-highway vehicles used for business purposes in the commercial application of pesticides must display the applicator's business name together with the firm registration number issued under Pes 307.04:

• Letters in a contrasting color from the vehicle or background;
• placed so as to be unobstructed and clearly visible; and
• lettering of the business name and firm registration number at least 2 inches high.

Firms registered as commercial applicators not for hire are not required to identify their vehicles.

Anti-siphon devices (Pes 504.03)

All pest control equipment using pesticides and drawing water from the surface waters of the state must have an effective anti-siphon device. Back-siphoning - the suction that pulls tank contents back down the fill hose when pressure drops - is one of the two classic ways a point source contaminates a whole water body. The other is leaving the fill hose submerged in the tank mix, which Pes 805.01(e) separately forbids.

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Worked example

A Category A1 fruit grower reads a fungicide label that lists apples as a site and names three diseases, but not the one he is seeing. His neighbor suggests he double the rate "since it is a hard year," add a liquid fertilizer, and spray from an air-blast rig even though the label mentions only ground boom application.

Working through Pes 502.01(c):

• Unlisted pest on a labeled site - lawful, because apples are on the label and the label does not restrict use to listed pests only.
• Doubling the rate - never lawful. Only dosages, concentrations, or frequencies less than labeled are permitted.
• Adding liquid fertilizer - lawful, provided the labeling does not prohibit fertilizer mixtures, and provided he runs a jar compatibility test first.
• Air-blast application - lawful if the label does not prohibit that method.
• Regardless of all this, the truck taking the mixed product to the block must carry a complete copy of the original product labeling (Pes 502.02), and any service container must carry the five Pes 504.01 elements including the concentrate's signal word.