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New York State Department of Environmental Conservation

Division of Solid & Hazardous Materials, Region One

Pesticide Management

Building 40-SUNY, Stony Brook, New York 1790-2356

Phone: (631) 4440340   FAX: (631) 444-0231

Website: www.dec.state.ny.us

  Dear Antifouling Paint User:

 This letter is intended to clarify regulatory requirements relating to the use of antifouling paint by individuals who are not certified with the New York State Department of Environmental Conservation (DEC) as a Commercial Pesticide Applicator, a Commercial Pesticide Technician (working under the required level of direct supervision of a Certified Commercial Pesticide Applicator when required), or a Commercial Pesticide Apprentice (working under the required level of direct supervision of a Certified commercial Pesticide Applicator).  The following information describes the requirements that relate to the use of antifouling paint in New York State.

 PESTICIDE CLASSIFICATION:  An individual who is not certified as a Commercial Pesticide Applicator or Commercial Pesticide Technician (working under the required level of direct supervision of a Certified Commercial Pesticide Applicator) in the subcategory 5D-Antifouling Paint, and who does not possess a valid Certification Identification Card issued by the DEC, and an individual who is not a Commercial Pesticide Apprentice working under the direct supervision of a Certified Commercial Pesticide Applicator, is not authorized to apply restricted use antifouling paint to any boat, regardless of boat ownership or where the boat is dry-docked at time of application.

 A Certified Commercial Pesticide Technician or Commercial Pesticide Apprentice can only work under the direct supervision of a Certified Commercial Pesticide Applicator if that Certified Commercial Pesticide Technician or Commercial Pesticide Apprentice is an employee of the Certified Commercial Pesticide Applicator. 6NYCRR Part 325.1(bg) states:

           ‘Under the direct supervision of’ means: the act or process in which the application of a

            Pesticide is made by a certified commercial pesticide technician or commercial pesticide

            apprentice acting under the instruction, control and authorization of a certified commercial

            applicator employed by the same registered business or agency or an individual acting under the      

            instruction and control of a certified private pesticide applicator who is responsible for the actions

            of that individual.

 [ VAP:149;antifoulingpaint.043001]

  BOAT OWNERSHIP: An individual who is not certified as a Commercial Pesticide Applicator or Commercial Pesticide Technician (working under the required level of direct supervision of a Certified Commercial Pesticide Applicator) in the Subcategory 5D-Antifouling Paint, and who does not possess a valid Certification Identification Card issued by the DEC, or who is not a Commercial Pesticide Apprentice working under the direct supervision or a Certified Commercial Pesticide Applicator, is not authorized to apply non-restricted antifouling paint to any boat the applicator personally owns or leases. 

 In summary, a person who is not a Certified Commercial Pesticide Applicator, or a properly supervised (as required) Certified Commercial Pesticide Technician or Commercial Pesticide Apprentice, can only paint a boat with antifouling paints if all three of the following conditions are met:

(1)   the applicator must use only antifouling paints that are classified as non-

     restricted (general use) pesticides, and

(2)   the applicator must personally own or lease the boat being painted, and

(3)   the boat must be dry-docked on property personally owned or leased by the

applicator.

The pertinent requirements of law and regulation that relate to use of antifouling paints are as follows:

Section 33-0905 (1) of the Environmental Conversation Law of New York State [ECL

§33-0905 (1)] requires the following:

           Any person who engages in the commercial or private application of pesticides or

          The sale of restricted use pesticides shall be certified by the commissioner except

          As provided in subdivision two of this section.  No certification shall be valid un-

          Less the certified person also holds a valid identification card issued by the       

          Commissioner. 

 Subdivision two of ECL §33-0905(1) states:

           The provisions of this article relating to registration and certification shall not

          Apply to: (a) residential application of pesticides as defined in this article; (b)

          Private application of a general use pesticide as defined in this article.

 ECL §33-0101 (11) defines “commercial application” as:

        Any application of any pesticide except as defined in private or residential

          Application of pesticides.

 ECL §33-0101 (41) defines “residential application” as:

           The application of general use pesticides by ground equipment on property owned

          Or leased by the applicator, excluding any establishment selling or processing food

          And any residential structure other than the specific dwelling unit in which the

          Applicator resides.

 ECL §33-0101 (38) defines “private application” as:

           Application of any pesticide for the purpose of producing an agricultural

          Commodity (a) on property owned or rented by the applicator or the applicator’s

          Employer, or (b) if applied without compensation other than the barter of personal

          Services between producers of agricultural commodities, on property owned or

          Rented by a party to such a barter transaction.

 ECL §33-1301 (8) states:

           It shall be unlawful…For any person to engage in the commercial application of

          Pesticides without a pesticide applicator certificate registration issued by the

          Commissioner, except while working under the direct supervision of a certified

          Applicator.

 In pertinent part, Part 325.7(a) of Title 6 of the New York Codes, Rules and Regulations

[6 NYCRR Part 325.7 (a)] states:

           An individual must not engage in the commercial application of pesticides, the 

          private application of restricted use pesticides, or the sale of restricted use 

          pesticides, unless that individual is a certified applicator and possesses, on their

          person, a valid identification card issued by the department and makes such

          identification card available upon request of this department.  Full certification is

          not required for:

(1)   a certifies commercial technician, hereinafter referred to as “technician,” using

general use pesticides;

(2)   a technician using pesticides under the direct supervision of a certified commercial pesticide applicator, as required in subdivision 325.7(d);

(3)   a commercial pesticide apprentice, hereinafter referred to as “apprentice,”

using pesticides under the direct supervision of a certified commercial pesticide

applicator, as required in subdivision 325.7(d);

(4)   an individual engaged in the residential application of pesticides.

The Standard for Supervision of Non-Certified Applicators by Certified Private or Commercial Applicators is stated at Appendix 8-C to Part 325, and requires in part, that the provisions of Section 171.6 of Title 40 of the Code of Federal Regulations be followed, and that the certified applicator be physically present, depending on the hazard of the situation.  In situations where the certified applicator is not required to be physically present, the certified applicator must provide verifiable instruction to a competent individual that includes detailed guidance for applying the pesticide properly, and provisions for contacting the certified applicator in the event he or she is needed.

 In addition, there are changes in the requirements relating to direct supervision that took effect when the regulations were revised on January 21, 2000.  To assist your understanding of these supervision requirements, I developed the following tables.

 CERTIFIED COMMERCIAL PESTICIDE APPLICATOR

CERTIFIED COMMERCIAL PESTICIDE TECHNICIAN

COMMERCIAL PESTICIDE APPRENTICE

Antifouling Boat Paints

 If there are any questions concerning Pesticide Applicator Certification requirements as such relates to the use of antifouling paints, please call or write.

                                                                      Sincerely,

                                                                     Vincent A. Palmer

                                                                     Case Review Officer

                                                                     Pesticide Control Specialist III

 Vap

 Cc:     A. Muench

          Region One Pesticide Unit

          File: Certification, 5D-Antifouling Paint

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Last modified: 04/09/06