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Pesticide Regulation Alert: California DPR Imposes New Copper-Based Antifouling Paint and Coating Regulations

The California Department of Pesticide Registration (“CDPR”) recently finalized a new regulation addressing the copper leach rate of copper-based antifouling paints and coatings. As of January 1, 2018, the new regulation imposes copper-leach-rate data submission requirements for new and amended copper-based antifouling paint and coating product pesticide registrations.  As of July 1, 2018, the new regulation establishes a maximum allowable leach rate, 9.5 μg/cm2/day, that will subject current registrations in violation to cancellation, and prevent registration of new products over the maximum rate.  The new rule is discussed in more detail below.

The new regulation is located at Title 3, California Code of Regulations (CCR) Section 6190, found here: http://www.cdpr.ca.gov/docs/legbills/calcode/020103.htm#a6190

Effective January 1, 2018 – New Data Submission Requirements

The new data submission requirements are triggered in three ways:

1)      Registration of a new copper-based antifouling paint or coating product,

2)      Amendment of a current registration, even if the amendment is for the purpose of adding a new color paint or modifying active or inert ingredient concentrations, or

3)      Amendment of a currently-registered product’s label to allow use on recreational vessels.

The regulation requires entities taking one of the above actions to submit the product’s mean copper leach rate, to be calculated using the International Organization for Standardization (ISO) 10890:2010 method, the product’s safety data sheet (SDS), its technical data sheet (TDS), and its confidential statement of formula (CSF).  Registrants cannot cite similar products to fulfill the data submission requirement, unless the product is an alternate or additional brand name, has a distributor or subregistration, or is a 100% identical repack of a registered product.  Note that new registrations and amendments are subject to the data requirement even if they are not labeled for use on recreational vessels.

Using the submitted data, CDPR will calculate (using regression analysis and a correction factor of 2.9) and assign to each registration an adjusted daily mean copper leach rate using a calculation it vetted during rulemaking.

Effective July 1, 2018 – Maximum Allowable Copper Leach Rate

A maximum allowable copper leach rate of 9.5 μg/cm2/day applies to all new and current copper-based antifouling paint and coating product registrations. Current registrations that are over the 9.5 μg/cm2/day daily copper leach rate will be subject to cancellation as of the July 1 effective date.  New registrations over the maximum daily copper leach rate will be denied.

DPR has not stated what action it will take as of July 1, 2018, if any, for current registrations that do not trigger data submission requirements. For these registrations, DPR will not have the data necessary to calculate the currently-registered product’s adjusted daily copper leach rate, and will thus not be able to determine whether the product’s rate is above the new maximum.

© 2021 Keller and Heckman LLPNational Law Review, Volume VIII, Number 46

About this Author

Michael Novak, Keller Heckman Law Firm, Environmental and Business Law Attorney

Michael Novak practices environmental and business law for chemical manufacturers and other clients, including agricultural, antimicrobial, and biochemical pesticide producers. His practice focuses on the regulation of pesticides and other chemicals under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); the Federal Food, Drug and Cosmetic Act (FFDCA); TSCA; EPCRA; and other federal and state regulatory programs.

Mr. Novak has expertise in pesticide regulatory issues associated with product registration, including the registration...