1.4 State Laws, Special Registrations & Recordkeeping

State Laws, Special Registrations & Recordkeeping

While the Environmental Protection Agency (EPA) establishes the baseline framework for pesticide regulation in the United States through FIFRA, it is the states that play the most visible and critical role in managing day-to-day pesticide use within their borders. Understanding the relationship between federal authority and state authority, as well as the mechanisms for special registrations and mandatory recordkeeping, is absolutely essential for compliance and safe pesticide management.

State Authority Under FIFRA (Section 24a)

FIFRA Section 24(a) explicitly grants individual states the authority to regulate the sale or use of any federally registered pesticide. However, there is a fundamental constitutional and regulatory rule governing this state authority: State regulations can be more restrictive than federal regulations, but they can never be less restrictive.

This means a state cannot allow a pesticide use that the EPA has prohibited, nor can they ignore federal safety mandates. However, a state can implement stricter controls to address local environmental concerns, unique agricultural practices, or public safety issues specific to their geography.

Examples of State-Specific Restrictions

States frequently utilize their Section 24(a) authority to implement stricter controls to protect their unique resources. Common examples include:

• State-Restricted Use Pesticides: A state may classify a federally unclassified (general use) pesticide as a "State-Restricted Use Pesticide." This means that within that state, an applicator must be certified to purchase and apply it, often due to local concerns about groundwater contamination in sandy soils or risks to local endangered species.
• Expanded Application Buffer Zones: A state might establish larger mandatory buffer zones around schools, hospitals, or critical waterways than those required by the federal label to minimize the risk of drift in sensitive areas.
• Notification and Registry Requirements: A state may require commercial applicators to notify neighboring property owners a certain number of hours before an application, or they may manage a "pesticide registry" of chemically sensitive individuals who must be notified before certain types of applications (e.g., turf care applications in residential neighborhoods).
• Application Window Restrictions: States may prohibit the application of certain highly volatile herbicides during specific summer months to prevent damaging vapor drift to sensitive crops like grapes or tomatoes.

Applicators must be acutely aware that simply reading and following the federal label is not always sufficient; they are legally bound to comply with all state-specific regulations as well.

Special Registrations: 24(c) and Section 18

The standard EPA registration process for a new pesticide or a new use is exhaustive and can take several years. However, agriculture and public health are dynamic; they often face sudden, unexpected pest crises that demand immediate solutions. FIFRA provides specific regulatory mechanisms to address these situations through Special Local Needs (SLN) registrations and Emergency Exemptions.

Special Local Needs (SLN) - Section 24(c)

Under FIFRA Section 24(c), states are granted the authority to register an additional use for a federally registered pesticide product to address a Special Local Need (SLN). An SLN exists when an existing or imminent pest problem within a state cannot be adequately controlled by currently registered products, and the proposed use is deemed safe.

Key characteristics of a 24(c) SLN registration include:

• Targeted Additional Use: It typically allows a registered pesticide to be used on a new crop, against a new pest, or via a new application method (e.g., chemigation) not currently listed on the main federal label.
• State-Specific Validity: The 24(c) label is only valid within the borders of the state that issued it. It is illegal to use a 24(c) label issued by Oregon to apply a pesticide in Washington.
• Supplemental Labeling Requirement: Applicators using a product under a 24(c) registration must have the supplemental SLN label physically in their possession at the time of application, along with the main federal label. Both labels apply.
• EPA Oversight: While the state issues the registration to address local needs rapidly, the EPA maintains oversight. The EPA has 90 days to review the state's action and can disapprove the SLN if it determines the new use poses unreasonable adverse effects.

Emergency Exemptions - Section 18

FIFRA Section 18 provides a critical safety valve. It allows the EPA to temporarily exempt state or federal agencies from standard registration requirements during severe, unforeseen pest emergencies. This permits the temporary, unregistered use of a pesticide to prevent significant economic loss or a grave threat to public health or the environment.

There are four distinct types of Section 18 Emergency Exemptions:

1. Specific Exemption: Used to avert a significant economic loss or a significant risk to endangered species, beneficial organisms, or the environment. This is the most common type. For example, if a new, highly destructive aphid species invades a state's wheat crop and no registered products are effective, the state might request a specific exemption for an unregistered insecticide.
2. Quarantine Exemption: Used specifically to control the introduction or spread of an invasive pest species not previously known to be established in the U.S. (e.g., a new species of fruit fly discovered at a port of entry or a new fungal disease threatening domestic forests).
3. Public Health Exemption: Used to control a pest that poses a significant and immediate risk to human health, such as an unprecedented outbreak of disease-carrying mosquitoes (e.g., emergency vector control for Zika virus, West Nile virus, or Eastern Equine Encephalitis).
4. Crisis Exemption: Used when the emergency is so immediate and severe that there is literally no time for the EPA to process a formal Specific, Quarantine, or Public Health exemption request. The state can authorize immediate use but must notify the EPA within 36 hours and submit a full, formal application within 15 days to continue the program.

Like SLNs, Section 18 exemptions require the applicator to possess specific, temporary labeling and to adhere strictly to its stringent requirements and reporting mandates.

Recordkeeping Requirements for RUPs

Maintaining accurate, detailed records of pesticide applications is a fundamental requirement under both federal law and various state regulations. While states may have expansive requirements, the federal baseline focuses heavily on the application of Restricted Use Pesticides (RUPs).

The Purpose of Detailed Recordkeeping

Recordkeeping is not merely busywork; it serves multiple vital purposes for the applicator and the public:

• Medical Emergencies: Providing immediate, accurate information to medical personnel in the event of an accidental exposure or poisoning.
• Efficacy Tracking and Farm Management: Helping applicators evaluate which products, rates, and application timings were effective against specific pests in previous seasons, leading to better agronomic decisions.
• Liability Protection: Serving as a primary defense. Well-maintained records are critical evidence that an applicator followed label directions and standard operating procedures if they are wrongly accused of drift, crop damage, or environmental contamination.
• Regulatory Compliance: Demonstrating adherence to federal and state laws during routine inspections by state lead agencies.

Federal Requirements (USDA Baseline)

The 1990 Farm Bill mandated that all certified applicators (both private and commercial) maintain records of all RUP applications. The USDA Agricultural Marketing Service administers these federal regulations.

According to federal requirements, records must be recorded within 14 days of the application and retained for a minimum of two years. The required record must contain at least the following eight specific elements:

1. Applicator Information: The name and certification number of the certified applicator who made or directly supervised the application.
2. Date of Application: The month, day, and year the RUP was applied.
3. Brand or Product Name: The specific commercial name of the pesticide used (e.g., "Weed-B-Gone Pro").
4. EPA Registration Number: The unique identifier assigned by the EPA to that specific product formulation, found on the front panel of the label.
5. Total Amount Applied: The total quantity of the formulated product used (e.g., 2.5 gallons, 10 pounds), not the amount of active ingredient.
6. Size of Area Treated: The physical measurement of the treated area (e.g., 50 acres, 10,000 square feet, or linear feet for right-of-way applications).
7. Crop, Commodity, or Site: The specific target of the application (e.g., field corn, residential turf, hospital perimeter, stored grain).
8. Location: A clear, precise description of where the application occurred (e.g., field ID number, GPS coordinates, or a detailed physical address).

State Enhancements to Recordkeeping

It is crucial to emphasize that while the USDA requires these eight elements for RUPs, many states require much more extensive recordkeeping. For example, a state might require records for all pesticides (both general and restricted use), mandate the recording of weather conditions at the time of application (wind speed, wind direction, temperature, humidity), or require records to be kept for three to five years instead of the federal two years. Applicators must follow the most stringent requirement applicable in their jurisdiction to remain compliant.