North Dakota State
University
NDSU Extension Service
Volume 17, No. 2, April 1999
1999 North Dakota Legislature Grapples with
Pesticide Issues
Coordinator's Comments
Commercial and Private Pesticide Applicator
Databases on the Web
Ag Supply Firm, Agronomists Fined in Pesticide
Incident
North Dakota Fungicide Label Updates for 1999
N.D. Legislature Approves Project Safe
Send for 1999 and 2000:
Another Pesticide Collection Planned for July
1999 New Herbicide Review
Proposed Restrictions on the Use
of Aluminum Phosphide and Magnesium Phosphide
EPA Grants Section 18 for Insecticde on
Canola
Update on 1998 Transgenic Crop
Acreages
Certification and
Recertification Opportunity for Right-of-Way Applicators
A Note About Reckless Endangerment
and Pesticide Use from the North Dakota Department of Agriculture
Lindane off the Market by 2001
Section 18 Pesticide Records for
Dealers
NDSU Plant Diagnostic Lab - 1999
Services and Fee Schedule
In addition to wrangling over allocation of state dollars, dealing with the farm crisis, and working on water projects, the legislature revisited some old pesticide issues and faced some new challenges with pesticides and our Canadian neighbors. Generally, the issues fell into two groups: spray drift liability and financial responsibility for commercial pesticide applicators, and registration of Canadian labeled pesticides and/or the exclusion of Canadian agricultural products containing pesticides not registered in the U.S. What follows is a rundown of the major pesticide related bills and resolutions:
A BILL for an Act to create and enact a new section to chapter 4-35 of the North Dakota Century Code, relating to financial responsibility for the application of nonrestricted use pesticides; and to amend and reenact section 4-35-09.1 of the North Dakota Century Code, relating to financial responsibility for the application of restricted use pesticides.
HB 1322 would have greatly expanded the financial responsibility requirements for commercial applicators to include mandatory spray drift coverage and would have required commercial applicators to become certified if they applied any pesticide for hire (presently commercial applicators need only become certified if they are applying Restricted Use pesticides). The bill failed to pass the committee and failed in the house by large majorities.
A concurrent resolution directing the Legislative Council to study the chemical application industry and develop a method for assessing or determining damage due to misapplication and for resolution of disputes through mediation.
In response to the growing restlessness of supporters of HB 1322, the House and then the Senate concurred with HCR 3058. The 1997 Legislature asked for a study of the same question about spray drift issues and mandatory insurance requirements. That study was unable to come to consensus, so a new study has been commissioned to explore this issue again. A major departure from the past is the call for examining dispute resolution via mediation rather than the conventional civil liability or court room route. Spray drift liability is an issue that has been simmering for years, and it has now come to a boil. By the time the 2001 Legislature meets it will likely boil over if the agriculture industry does not come up with an equitable way of dealing with this matter.
AN ACT to amend and reenact section 4-35-09.1 of the North Dakota Century Code, relating to proof of financial responsibility for commercial pesticide applicators; and to declare an emergency.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 4-35-09.1 of the 1997 Supplement to the North Dakota Century Code is amended and reenacted as follows:
4-35-09.1. (Effective January 1, 1998) (text in parentheses was deleated) Proof of financial responsibility - Exceptions.
1. A commercial pesticide applicator certificate may not be issued or renewed unless the applicant furnishes proof of financial responsibility as provided in this section. Minimum financial responsibility must be demonstrated annually in the amount of one hundred thousand dollars, and may be demonstrated by a notarized letter from an officer of a financial institution or from a certified public accountant attesting to the existence of net assets equal to at least one hundred thousand dollars, a performance bond, or a general liability insurance policy. The performance bond or insurance policy must contain a provision requiring the issuing company to notify the commissioner of agriculture at least ten days before the effective date of cancellation, termination, or other modification of the bond or insurance policy. The commissioner of agriculture must immediately request the suspension of the certification of a person who fails to maintain the minimum financial responsibility standards of this section. If there is any recovery against the certificate holder, the holder must demonstrate continued compliance with the minimum standards of this section. An employee of a commercial pesticide application business is not required to meet these standards separately if the business documents compliance with the minimum financial responsibility standards of this section. An application for reinstatement of a suspended certificate under this section must be accompanied by proof of satisfaction of any judgment previously rendered. (A rancher is exempt from this section if the) (text in parentheses was deleated)
2. This section does not apply to:
a. A rancher who is required to obtain a commercial pesticide applicator certificate for controlling noxious weeds on the leased federal acreage as a condition of a federal grasslands lease.
b. A grazing association and its members if either the association or any member is required to obtain a commercial pesticide applicator certificate for controlling noxious weeds on the leased federal acreage as a condition of a federal grasslands lease.
c. A person required to be certified in the right-of-way category.
d. An applicator who holds a commercial pesticide certificate and is controlling noxious weeds on grassland, land producing tame hay, or other lands not devoted to the production of an annual crop.
SECTION 2. EMERGENCY. This Act is declared to be an emergency measure.
HB 1439 did make it out of committee, passed both houses by large majorities, and was promptly signed by the governor. It was advanced by noxious weed control interests (primarily the North Dakota Weed Control Association). The sections that have strike marks through them are deletions of the existing law and the underlined portions are amendments to the existing law. It basically calls for financial responsibility exemptions for those people engaged in the control of noxious weeds in non-annual cropland or non-cropland. Since it has an emergency clause, it became law at the time of the governor's signature. The NDSU Extension Service Pesticide Program has already implemented these exemptions for covered individuals as of this year (1999).
AN ACT to create and enact a new section to chapter 4-35 of the North Dakota Century Code, relating to the presence of chemicals in agricultural products and livestock; to provide a penalty; and to provide an effective date.
HB1335 was a contentious bill that was designed to prevent the importation of agricultural crops or livestock into the state if they contained pesticides which were not registered for use in North Dakota. It went through several changes, was heavily debated, and was passed on to the governor with narrow majorities. It was targeted against Canadian imports, especially crops like wheat, durum, or canola which contain (or are suspected to contain) various unregistered (in the U.S.) pesticide residues. The bill would in effect slow or restrict the importation of these Canadian crops. The bill called into question international trade agreements and was in variance with federal law. The governor vetoed it, and an override was narrowly defeated.
A BILL for an Act relating to sale and use of crop protection products; and to declare an emergency.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. Crop protection products Canadian labels.
The agriculture commissioner, with the advice and consent of the appropriate agricultural commodity group, may authorize the sale and use in this state of a crop protection product that has a Canadian label, if the commissioner determines that a crop protection product having an American label contains substantially similar active ingredients and that its importation and use does not violate federal law. The commissioner shall require an applicator to possess the American label and apply the product in accordance with the American label provisions.
SECTION 2. Special local needs exemption — Tolerances.
The agriculture commissioner, in cooperation with the environmental protection agency, shall use tolerance data established or obtained in North America in pursuing special local needs exemptions for crop protection products under the federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.].
SECTION 3. Crop protection products — Registration process — Joint labeling.
The governor and the agriculture commissioner shall work with all appropriate public and private entities to foster the development of a single, uniform process for the joint North American labeling of crop protection products not available for sale and use in this state as of the effective date of this Act.
SECTION 4. Crop protection products — Request to petition for registration.
On the written request of any agricultural commodity group, the agriculture commissioner shall petition the Environmental Protection Agency for the American registration of a crop protection product approved for use in Canada.
SECTION 5. Crop protection products — Joint labeling — Report to legislative council.
During the 1999-2000 interim, the agriculture commissioner shall report at least twice to the legislative council regarding the efforts to develop a single, uniform process for the joint North American labeling of crop protection products.
SECTION 6. EMERGENCY. This Act is declared to be an emergency measure.
HB 1252 went through several revisions and was heavily debated before it was signed into law by the governor. In its earliest form it called for the North Dakota Commissioner of Agriculture to issue U.S. pesticide labels for products used in Canada. This was a hotly debated bill and the U.S. Environmental Protection Agency testified against it because in it's original language it was not in compliance with federal law and patently illegal. The salient language which neutralized EPA opposition can be found in the last sentence of section one of the bill: "The commissioner shall require an applicator to possess the American label and apply the product in accordance with the American label provisions." Essentially, Canadian labeled products are still illegal in the US until such time as EPA issues or approves an American label.
A concurrent resolution directing the Legislative Council to study the disparity in prices and the inconsistency in the registration of agricultural pesticides. (Between Canada and the United States.)
A concurrent resolution urging the Environmental Protection Agency and the Congress of the United States to increase resources for and efforts of the U.S.-Canada Technical Working Group to harmonize pesticide regulations between the two countries, to commit more resources and efforts toward establishing tolerances for pesticides registered for use in Canada but not in the United States, and to accept registration data currently accepted by Canadian officials in support of Canadian pesticide registrations.
Frustrated with the their inability to deal with the Canadian/U.S. trade/pesticide issue, the Legislature approved HCR 3014 and 3035. They call for further study of the issue and they implore the EPA to take action to redress these issues.
A BILL for an Act to provide an appropriation for defraying the expenses of the agriculture commissioner; to create a legislative council committee; to provide an appropriation to the legislative council; to provide a statement of legislative intent; to provide for a transfer; to create and enact a new subdivision to subsection 1 of section 57-38-01.2 and a new subdivision to subsection 3 of section 57-38-30.3 of the North Dakota Century Code, relating to an income tax exemption for indemnities received for destruction of cattle; to amend and reenact sections 4-01-21, 4-35-06.3, and 19-18-04 of the North Dakota Century Code, relating to the minor use pesticide fund, the salary of the agriculture commissioner, and pesticide registration fees; to provide an effective date; to provide an expiration date; and to declare an emergency.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 3. AMENDMENT. Section 4-35-06.3 of the 1997 Supplement to the North Dakota Century Code is amended and reenacted as follows:
4-35-06.3. Minor use pesticide fund — Continuing appropriation. The minor use pesticide fund is created as a special fund in the state treasury. All moneys in the fund are appropriated on a continuing basis to the pesticide control board for the purpose of conducting or commissioning studies, investigations, and evaluations regarding the registration and use of pesticides for minor crops, minor uses, and (emergency uses) other uses as determined by the board. (text in parentheses was deleated)
SECTION 11. LEGISLATIVE COUNCIL — CROP HARMONIZATION COMMITTEE.
The legislative council shall create a crop harmonization committee consisting of the chairman of the house agriculture committee, the chairman of the senate agriculture committee, and three other individuals appointed by the legislative council chairman, one of whom must represent the crop protection manufacturing industry. In consultation with the pesticide control board, the committee shall:
1. Identify and prioritize crop protection product labeling needs;
2. Explore the extent of authority given to this state under the federal Insecticide, Fungicide, and Rodenticide Act;
3. Identify the data necessary to enable registration of a use to occur in a timely manner;
4. Determine what research, if any, is necessary to fulfill data requirements for activities listed in this section and communicate its findings to the agriculture commissioner;
5. Request the agriculture commissioner to pursue specific research funding options from public and private sources; and
6. Report to the legislative council in the same manner as do other interim legislative council committees.
SECTION 12. APPROPRIATION — LEGISLATIVE COUNCIL.
There is hereby appropriated out of any moneys in the minor use pesticide fund in the state treasury, not otherwise appropriated, the sum of $15,000, or so much of the sum as may be necessary, out of any moneys in the general fund in the state treasury, not otherwise appropriated, the sum of $15,000, or so much of the sum as may be necessary, and from special funds derived from grants or donation income, the sum of $150,000, or so much of the sum as may be necessary, to the legislative council for the purpose of addressing crop protection product registration and labeling as provided for in section 11 of this Act for the biennium beginning July 1,1999, and ending June 30, 2001.
SECTION 13. LEGISLATIVE INTENT.
It is the intent of the fifty-sixth legislative assembly that the agriculture commissioner, agricultural experiment station, and North Dakota State University Extension Service use resources available to them to assist in the registration of crop protection pesticides in cooperation with the crop protection industry for use in the North Dakota agriculture industry for the biennium beginning July 1,1999, and ending June 30, 2001.
SB 2009 was originally just the appropriation bill for the North Dakota Department of Agriculture. However, during the final hours of the session the conference committee inserted a couple of important provisions into this appropriation bill. In section three it added tremendous latitude to the Pesticide Control Board to foster pesticide registrations, especially registration of pesticides available in Canada and not available in North Dakota. In section eleven it expressly directed the Legislative Council to work to secure harmonization between Canadian and US pesticide laws. In section twelve it appropriated funds to support this effort, and in section thirteen it directed NDSU and the Commissioner of Agriculture to work aggressively with EPA to secure pesticide registrations for North Dakota farmers and advance the harmonization of U.S. and Canadian pesticide laws.
Another training season is drawing to an end just as the growing season is beginning. For those of us in the pesticide certification program, this summer and fall will be a time for reflection, regrouping, updating, planning, and preparing for the year 2000 training season. We are carefully evaluating what worked and what did not work this past year, and we will move forward on these matters accordingly. Below are some of the issues we are dealing with in the pesticide certification arena:
Generally all applicators expressed positive comments about the upgrading and modernizing of the written materials used in the program. They also appreciated the fact that the number of materials used in the testing process were thinned down and a considerable portion of the testing process covered real life questions from actual pesticide labels.
Other positive opinions were expressed about the recertification videotape programs that emphasized updates rather than re-hash and regional specificity rather than one size fits all. We also heard lots of people expressing thanks for providing trainings in new locations this year — like Dickinson instead of the usual big three or four cities.
There are plenty of areas we need to improve, and many of you let us know this. Telephone response time is probably the biggest frustration people express, and this is a problem that can be compounded by other issues. If a problem arises due to a mailing snafu or lack of documentation for financial responsibility, our people must divert their attention away from telephone time, and this increases our response times. Consequently, people become frustrated that they cannot speak to a real live person when they call. The ultimate solution is to streamline our process and minimize our mistakes so we can maximize telephone time.
In an effort to bring our computer database of certified applicators into the 21st century, we encountered bugs in the programming. (See article on public Web access of our database.) This caused us to process records twice or three times, and it also meant that sometimes we sent incomplete or incorrect certification materials to applicators. So, applicators had to call us to inquire or question our data. This predictably increased our telephone traffic and again decreased our response time. Happily, at the time of this writing, we believe we have turned the corner on this issue. However, the tight job market for computer programmers in this state has greatly reduced the amount of support we have available to us. This is a serious problem and one that I cannot see being solved either quickly or easily.
Inevitably people have expressed displeasure about either the length or the content of the tests that we administer. To the extent that our tests (which were all revised this year) had errors or ambiguous questions in them, we can and will address these deficiencies before the 2000 certification season. As for the length of the tests or the content in the tests, I can see no suitable substitute to measure competency. Exams are not enjoyable for anyone, but we go the extra mile in North Dakota in that we have open book tests, and if applicators attend trainings, we provide excellent assistance and advice before and during the exam to help applicators pass their exams. Next year, an additional (optional) help session will be offered at trainings for those people who want more in depth study time for exam preparation. You will see additional information on this in the September issue of the Pesticide Quarterly. Unfortunately, exams will only become more difficult over time due to new federal mandates. Therefore, the rules used to administer them (open book versus closed book) will become more rigorous.
At the state level, we have new legislation pertaining to pesticide use, and as a consequence we will have new rule making. Some applicators will be impacted immediately, and others not until the year 2000. (See North Dakota Legislative roundup). But they will have impacts.
At the federal level, the Certification and Training Assessment Group (CTAG) Report will be finalized in August. This report will be used by EPA as a blueprint to reform, tighten, and standardize certification and training requirements. It will be revolutionary; it will be controversial; it will take years to implement; and it will have dramatic impact on pesticide use. You will hear more about CTAG over the next couple of years and you should carefully follow this issue as it unfolds.
A year ago I wrote my first comments for the Pesticide Quarterly. The words I wrote then are just as applicable today:
"I'm asking that you take the time to give me a call, write me some e-mail (athosten@ndsuext.nodak.edu), or scribble a note to me concerning what we do right, what we do wrong, and what we can do better in our training program. I have a very thick skin, and I still have a sense of humor so do not be afraid to speak your mind. I also enjoy spirited debate and even passionate discussion, so be frank."
Best regards,
Andrew A. Thostenson,
Pesticide Program Specialist
We have made a couple of very important leaps towards providing instantaneous information to applicators, dealers, regulators, and NDSU Extension Service personnel over the last couple of months. This past fall we initiated a computer programming effort to make our database available on the World Wide Web. The first phase of this effort is now complete. Now, anyone who has access to the Web can go to our database and look up information about the certification of any applicator if they know their name or certification identification number. The information will be in real time so the record(s) displayed will be the latest information we have keyed into our computers here at NDSU. So, how can you use this data?
The first stage of this project provides very basic public information. It does not allow the user to manipulate data or view personal information such as addresses and test scores. The second stage of this project will enable NDSU personnel from all over the state and the North Dakota Department of Agriculture password protection access to the entire database — test scores, telephone numbers, and addresses. The third phase of this project will enable NDSU personnel in the counties to enter information into the database from a remote location. For obvious security and database integrity reasons, this will be the most difficult goal to achieve, but we will get there.
These upgrades are important for the entire industry because they will greatly increase the speed and accuracy of the information we collect and disseminate. This will allow people to make better decisions and reduce their dependency on finding out what is going on by word of mouth or dated paper lists.
Here are the appropriate World Wide Web address. Bookmark them and use them:
Please note:
You can access both databases by going to the NDSU Pesticide
Training and Certification Program Home Page and clicking on the
"Certification Information" button.
An agricultural supply company and one of its employees have been fined $10,000 for illegal application of pesticides. North Dakota Commissioner of Agriculture Roger Johnson signed a consent order in which South Dakota Wheat Growers Association, an Oakes-based pesticide and fertilizer company, and Benjamin C. Hansen, employed by the company as an agronomist, agreed to pay the fine.
In addition to the fine, Hansen also agreed to a year-long suspension of his pesticide applicator's license. If Hansen seeks reinstatement of the license, he must successfully pass a certification examination. In separate action by the North Dakota Certified Crop Advisors Oversight Committee, Hansen's Certified Crop Advisor status was also revoked for his failure to meet ethics standards.
South Dakota Wheat Growers and Hansen admitted that on Hansen's recommendation, a company employee applied the herbicide Roundup Ultra RT on dry edible beans in the Oakes area on Aug. 20 and Sept. 11, 1998. At that time, Roundup Ultra RT was not labeled by the U.S. Environmental Protection Agency for use on dry edible beans.
The company and Hansen admitted the recommendation and application of the herbicide was inconsistent with the labeling and known to be ineffective and improper, and that they operated in a faulty, careless or negligent manner in violation of North Dakota law and regulations.
Civil liability action is also pending for their actions because the drybeans that were illegally treated were temporarily quarantined and prevented from sale. This resulted in demurrage losses by the drybean processors in the area as well as non-performance on several sales contracts. Estimated processor losses for this incident are in excess of $100,000.
Art Lamey and Marcia McMullen
NDSU Extension Service
Plant Pathology Specialists
Canola:
Ronilan, for Sclerotinia stalk rot; status is pending
as of 4/22/99, no news from EPA; concern that section 3
for Quadris may lead EPA to believe Ronilan not needed, even
though Quadris supplies are questionable. No chance for a section
18 for Benlate in 1999, but a possibility of full section 3
registration in 2000 or 2001 if all goes well.
Dry Bean:
Tilt, for rust; label pending with no news from EPA as
of 4/22/99, but I see no reason it would not be granted,
since this is a repeat request for a product that is under
registration and all input required of Novartis has been
submitted to EPA.
Lentil:
SP, for seed treatment (Ascochyta); approved. LSP
is under IR-4 for full registration
Potato:
Tattoo, for late blight; label pending with no news from
EPA as of 4/22/99.
Sugarbeet:
Eminent, for Cercospora Ieafspot; approved with
120 day plant back restriction
Sunflower:
Folicur, for rust; label pending with no news from EPA as
of 4/22/99. Primary use area is the for North Central
part of the state.
Sunflower:
Crisis exemption approved for Respect (same
active ingredients as Acrobat MZ), seed treatment for
Apron-resistant downy mildew; not used much since product reduces
germination of some seed lots.
Wheat and Barley:
Folicur for Fusarium head blight (scab); approved.
LSP:
Chickpea or garbonzo bean seed treatment for the control of
Ascochyta
Maxim-MZ:
Potato seed piece treatment for suppression of silver scurf,
Fusarium dry rot and Rhizoctonia stem canker. For use by seed
producers or by commercial growers. Provides excellent silver
scurf control.
MZ Curzate:
Potato seed piece treatment for the suppression of seed borne
late blight and Fusarium dry rot
Ridomil Gold EC:
In-furrow application of Ridomil Gold at planting for the control
of pink rot and Pythium leak.
Tilt:
Wheat only for the suppression of Fusarium head blight (scab) up
through heading = Feekes growth stage 10.5. Maximum rate = 4.0.
fl oz
TOPS MZ-Curzate:
Potato seed piece treatment for the suppression of
Rhizoctonia stem canker, Fusarium dry rot, silver scurf and
seed-piece borne late blight
As of 4/23/99, the state label (24c) for Apron Maxx RTA on soybeans has been denied by EPA. A state label was granted by a number of states, including North Dakota and Minnesota. Denial apparently was based on an ingredient other than the Apron XL or Maxim contained in the product. All shipments and sales of Apron Maxx RTA have been stopped. All product at distributors is being recalled. Any seed already treated may be planted. Any open containers may be used and seed treated from those open containers may be planted.
Quadris:
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Pesticide Quarterly - Volume 17, No. 2, April 1999
NDSU Extension Service, North Dakota State University of
Agriculture and Applied Science, and U.S. Department of
Agriculture cooperating. Sharon D. Anderson, Director, Fargo,
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