1.2 FIFRA, EPA Registration & the Federal-State Framework

1.2 FIFRA, EPA Registration & the Federal-State Framework

The New Hampshire regulations exam covers state and federal law together: Pes 304.02(b)(2) says the regulations examination tests "applicable state and federal laws and rules that govern the conduct of pesticide activities in New Hampshire, in particular the Federal Insecticide, Fungicide, and Rodenticide Act, regulations under RSA 430:28-50 and the administrative rules written under those regulations, Pes 100-1100." This section covers the federal half.

---

What FIFRA is

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is the federal licensing statute for pesticides. It is administered by the United States Environmental Protection Agency (EPA). FIFRA does four things that matter to you in the field:

1. It requires registration. No pesticide may be distributed or sold in the United States unless EPA has registered it, or unless it falls within a narrow exemption.
2. It makes the label enforceable. It is a federal violation to use a registered pesticide in a manner inconsistent with its labeling. This is the legal basis for the phrase the label is the law.
3. It classifies products. Every registered use is classified general use or restricted use.
4. It sets penalties. Civil and criminal penalties apply to registrants, commercial applicators, dealers, and private applicators, with lower ceilings for private applicators than for commercial ones.

What EPA reviews before registering a product

To register a pesticide the applicant must supply data showing that the product, used according to its directions, will not cause unreasonable adverse effects on the environment. The data packages cover:

• Toxicity and toxicological tests - acute, subchronic, and chronic effects, including carcinogenicity, developmental and reproductive effects
• Efficacy or performance - does it actually control the pests claimed
• Degradation, mobility, and residue - how the chemical breaks down, whether it leaches or runs off, what residue remains on the crop
• Effects on wildlife and the environment - birds, fish, aquatic invertebrates, bees, non-target plants

EPA weighs the benefits of the use against those risks. Registration is therefore always use-specific: a product registered for greenhouse ornamentals is not registered for a food crop.

---

General use versus restricted use

New Hampshire adds a second layer. All uses restricted or prohibited by EPA are automatically so classified in New Hampshire (Pes 701.02(a)-(b)), and the state separately designates its own state restricted use and prohibited-limited use products. Those are covered in section 1.3.

Remember also that New Hampshire licensing is broader than the federal RUP rule. In New Hampshire, applying any pesticide - general use or restricted use - in the course of employment, or on the property of another for hire, requires a commercial credential. Federal law would not require certification for a general use product; state law does.

---

Section 24(a): the stringency rule

FIFRA section 24(a) is the provision that lets New Hampshire have a pesticide program at all. A state may regulate the sale or use of any federally registered pesticide within the state, but only to the extent the regulation does not permit any sale or use prohibited by FIFRA.

In plain terms:

• More restrictive is allowed. New Hampshire can prohibit compounds EPA still registers (Pes 701.04 does exactly that), require permits EPA does not require, impose setbacks EPA does not impose, and mandate notification EPA does not mandate.
• Less restrictive is never allowed. New Hampshire cannot authorize a rate above the label maximum, a crop the label omits, or a method the label prohibits.

---

Section 24(c) and section 18: the two ways to go beyond a label

Candidates confuse these constantly. Learn them as a pair.

Section 24(c) - Special Local Need (SLN) registration

• Issued by the state (here, NHDAMF), not by EPA, though EPA can disapprove it.
• Adds a new use to a product that is already federally registered - a different crop, site, pest, or rate within the established tolerance.
• Meets a special local need - a recurring regional agronomic problem.
• Creates a supplemental 24(c) label that carries its own SLN number. The applicator must have that supplemental labeling in possession at the time of use; the container label alone is not enough.

Section 18 - Emergency exemption

• Issued by EPA to a state or federal agency, in response to an emergency condition.
• Can authorize a use that is not registered at all, and in some cases a product with no tolerance, because EPA may set a time-limited tolerance.
• Time-limited, usually to a single season.
• Four types: specific (unexpected outbreak causing significant economic loss), quarantine (introduction or spread of a new pest), public health (disease vectors - the pathway used in New Hampshire for arbovirus mosquito control), and crisis (the state acts first when there is no time to obtain prior EPA authorization).

A third exemption is worth knowing by name only: FIFRA section 25(b) exempts certain minimum risk pesticides - products built from listed active ingredients such as cedar oil, peppermint oil, and cinnamon - from federal registration. They are still pesticides. RSA 430:36 requires that every pesticide distributed, sold, or offered for sale in New Hampshire be registered with the Division of Pesticide Control and that the registration be renewed annually, and Pes 501.01 requires that all pesticides used in the state be registered under RSA 430:36. A federal exemption from EPA registration is therefore not an exemption from New Hampshire registration.

---

Tolerances, and the other federal statutes

• A tolerance is the maximum amount of a pesticide residue legally permitted in or on a raw agricultural commodity or processed food. Tolerances are established by EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA) and enforced by the FDA (most foods) and USDA (meat, poultry, some egg products). A commodity carrying residue above tolerance - or any detectable residue where no tolerance exists - is adulterated and cannot lawfully be sold. This is why the pre-harvest interval on a label is not advice.
• The Food Quality Protection Act (FQPA) of 1996 rewrote the tolerance standard to a single health-based "reasonable certainty of no harm," required EPA to consider aggregate exposure and cumulative effects of chemicals sharing a mechanism of toxicity, and directed an additional tenfold safety factor for infants and children unless data show it is unnecessary.
• The Endangered Species Act (ESA) requires that a federal action, including pesticide registration, not jeopardize a listed species or destroy critical habitat. In practice this reaches you through Endangered Species Protection Bulletins, county-level use limitations referenced from the label and looked up through EPA's Bulletins Live! Two system.
• Federal regulations under FIFRA that you will meet by number: 40 CFR Part 165 (pesticide containers and containment), 40 CFR Part 170 (the Worker Protection Standard), and 40 CFR Part 171 (certification of applicators).

---

Worked example

A New Hampshire orchardist wants to use a fungicide that is federally registered for pome fruit but whose label does not list the specific disease she is fighting.

• Applying it to apples - a site the label covers - against a pest the label does not name is permitted, because neither FIFRA nor Pes 502.01 prohibits it, as long as she does not exceed the labeled rate and the label does not say "for use only against pests listed."
• If instead she wanted to use it on a crop the label does not list, no reading of the law helps her. She would need a section 24(c) SLN registration from NHDAMF, and she would have to carry the supplemental labeling with her.
• If a brand-new invasive pest arrived and no registered product worked at all, the pathway would be a section 18 emergency exemption obtained by the state from EPA.
• In every case, harvesting before the pre-harvest interval expires risks residue above tolerance, which makes the fruit adulterated under the FFDCA regardless of what New Hampshire law says.