North Dakota Department of Agriculture

Plant Protection Division

The following information has been assembled to nursery growers and dealers in North Dakota. If you have any questions or concerns not addressed in this information, please contact us.

1. Summary of Nursery Stock Requirements 2
2. State Laws and Regulations Affecting Nurseries 3
3. North Dakota Nursery Law (NDCC 4-21.1) 4
4. North Dakota Nursery Regulations (Chapter 7-04-02) 6
5. Nursery Related Contacts and Services 8
6. Additional Grower Information 9
7. Reference Information 10
8. North Dakota Nonhardy List separate publication

Summary of North Dakota Nursery Stock Requirements

Nursery stock includes all trees, shrubs, and woody vines and parts thereof, which are capable of propagation or growth except seed. Only those plants intended for outdoor planting are considered nursery stock. All Clematis, Rosa, and Yucca species are exempt.

All nursery stock being offered for sale within North Dakota must be from officially inspected sources. A copy of a certificate of inspection from the state of origin must accompany each commercial lot or shipment of nursery stock that is transported into or offered for sale within North Dakota.

No person may sell nursery stock without a license (see NDCC 4-21.1-14 and NDAC 7-04-02.01).

All nursery stock offered for sale within the state must be labeled in accordance with the International Code of nomenclature for cultivated plants with the complete correct botanical or approved recognized common name.

All nursery stock offered for sale or distribution must be in a viable condition and must be stored and displayed under conditions that will maintain its viability and must conform with the American Association of Nurserymans `American Standard for Nursery Stock .

It is unlawful for any person to misrepresent the name, age, origin, grade, variety, quality, or hardiness of any nursery stock being offered for sale.

All nursery stock designated as nonhardy must be labeled as 'Nonhardy' in North Dakota. A list of nonhardy plant material is available on request.

All Berberis, Mahoberberis, and Mahonia shipped into the state must comply with the Federal (7CFR 301.38) and State Black stem rust quarantines. All such plants shipped into the state must be accompanied by a Federal certificate or stamp. Plants and shipping documents must be properly labeled with approved rust-resistant varieties listed in the Federal Quarantine. Out of state shippers should work closely with their state department of agriculture to assure that provisions of the quarantines are followed.

All Federal quarantines including the Gypsy Moth, Pine Shoot Beetle, and Black Stem Rust (barberry) must also be complied with.

North Dakota is classified as a category 2 state under the Japanese Beetle Harmonization Agreement. JB is not known to be established in North Dakota although single trap catches have been made on rare occasions during the annual JB survey. Nursery stock from infested areas must meet certification requirements.

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NDCC - Chapter 4-20.1 Nurseries. Provides for the inspection and certification of nursery stock and provides for licensing of nurseries. Administered by the North Dakota Department of Agriculture. Telephone (701-328-4765).

North Dakota Administrative Code - Chapter 7-04-02. Nurseries. Contains nursery regulations. Administered by the North Dakota Department of Agriculture.

North Dakota Administrative Code - Chapter 7-04-01. Pest Prevention - Black Stem Rust Quarantine. Establishes a quarantine to prevent the introduction of black stem rust into North Dakota. Establishes permit requirements for movement of barberry (Berberis), Mahonia, and Mahoberberis. Administered by the North Dakota Department of Agriculture. Telephone (701-328-4765).

NonHardy List Designated by the Commissioner. All non-hardy trees and shrubs, as designated by the Commissioner, must be labeled with the statement 'Non-hardy in North Dakota' (NDCC 4-21.1-11).

NDCC 4-25. Pesticide Act. Provides for the training and certification of pesticide applicators and dealers. Administered by the Pesticide Control board. Contact the Pesticide Division - North Dakota Department of Agriculture. Telephone (701-328-2231).

NDCC Chapter 4-09. Labeling requirements for vegetable, flower, shrub, and tree seed. Bulletin 51-T. Tree and shrub Seed Certification - Rules and Regulations. Administered by the State Seed Department, State University Station, Fargo, North Dakota 58105. Telephone (701-239-7210).

NDCC Chapter 63-01.1. Control and eradication of noxious weeds. Administered by the North Dakota Department of Agriculture, State Capitol, Bismarck, North Dakota 58505. Telephone (701-328-2231).

NDCC Chapter 57-39.2. Sales Tax Requirements. A retail sales tax permit must be procured by every person before engaging in the business of selling nursery stock. A permit is needed for each separate business location including transient merchants. Occasional or casual sales are not subject to North Dakota Sales Tax. Administered by the State Tax Department, State Capitol, Bismarck, North Dakota 58505. Telephone (701-328-2770).

NDCC 51-04. Transient Merchants. Any person who engages in or transacts any temporary business in the state, either in one locality or in traveling from place to place, selling goods, wares, merchandise, personal property and personal services including spraying, trimming, or pruning trees, painting or repairing buildings or structures and pest or rodent control must be licensed and bonded with the Attorney General. Administered by the Consumer Fraud and Antitrust Division of the Attorney General, State Capitol, Bismarck, North Dakota 58505. Telephone (800-472-2600).

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4-21.1-01. Definitions. In this chapter, except where the context or subject matter

otherwise requires:

1. "Certificate of inspection" means a document issued or authorized by the commissioner stating that nursery stock is practically free from damaging pests.

2. "Commissioner" means the commissioner of agriculture or the commissioner's authorized representative.

3. "Grower" means any person who takes a reproductive part of nursery stock and increases its size and development for at least one full growing season. This includes a person producing nursery stock from tissue culture.

4. "Infested" means actually infested or infected with a pest or so exposed to infestation that it would be reasonable to believe that an infestation exists.

5. "Nonhardy" means plant species, varieties, and cultivars that will not survive climatic conditions in North Dakota.

6. "Nursery" means any place where nursery stock is propagated, grown, or offered for sale.

7. "Nursery stock" means all trees, shrubs, and woody vines and parts thereof which are capable of propagation or growth; except seed. Only those plants that are intended for outdoor planting are considered nursery stock.

8. "Person" means any individual, corporation, limited liability company, company, society, association, government agency, or other entity.

9. "Pest" means any invertebrate animal, pathogen, parasitic plant, or other similar organism which can cause damage to nursery stock.

10. "Place of business" means each separate location from which nursery stock is being offered for sale.

11. "Viable nursery stock" means nursery stock that is capable of living and accomplishing the purpose for which it is grown, whether for foliage, flowers, fruit, or special use.

4-21.1-02. Administration - Rulemaking authority. The commissioner has the responsibility for administration of the provisions of this chapter. The commissioner may adopt such rules pursuant to chapter 28-32 as are necessary to carry out the purposes and provisions of this chapter.

4-21.1-03. Authority for inspection. The commissioner shall inspect all nursery stock being grown in North Dakota at least once each year and may enter and inspect any nursery or place of business during normal business hours.

4-21.1-04. Authority for abatement - Removal from sale. The commissioner may, upon giving notice to the owner or the owner's agent, destroy, treat, or remove from sale, at the owner's expense, any nursery stock offered for sale that is found to be not viable, not accompanied by a certificate of inspection, not labeled correctly, or infested with a pest.

4-21.1-05. Certification of nursery stock. A certificate of inspection may be issued annually by the commissioner for nursery stock grown in licensed nurseries within North Dakota that is found to be practically free from damaging pests. Certificates expire December thirty-first unless canceled at an earlier date. Certification may be withheld when nursery stock is infested with a pest or if weeds or other objects prevent the commissioner from making an adequate inspection of the nursery stock. All nursery stock being offered for sale within North Dakota must be from officially inspected sources. A copy of a certificate of inspection from the state of origin

must accompany each commercial lot or shipment of nursery stock that is transported into or offered for sale within North Dakota. All reproductions of the North Dakota certificate of inspection needed for shipping purposes must be approved by the commissioner.

4-21.1-06. Nursery license - Fee. No person may sell nursery stock without a license issued by the commissioner. Licenses expire December thirty-first unless revoked at an earlier date. An application for renewal of license with any information requested by the commissioner must be submitted and accompanied by a fee of fifty dollars on or before December thirty-first each year. A separate license is required for each place of business. The fee for each additional license, other than the principal place of business, is ten dollars. No license may be issued to a grower unless the grower has been issued a certificate of inspection.

4-21.1-07. Dealer's license - Fee. Repealed by S.L. 1987, ch. 88, § 12.

4-21.1-08. Agent's license - Fee. Repealed by S.L. 1987, ch. 88, § 12.

4-21.1-09. Suspension and revocation of licenses. Repealed by S.L. 1987, ch. 88, § 12.

4-21.1-10. Special inspections - Fees. Repealed by S.L. 1987, ch. 88, § 12.

4-21.1-11. Labeling and standards for nursery stock. No person may sell or offer for sale any nursery stock not labeled in accordance with the international code of nomenclature for cultivated plants with the complete correct botanical or approved recognized common name. All nonhardy trees and shrubs, as designated by the commissioner, must be labeled with the statement "nonhardy in North Dakota". All nursery stock offered for sale or distribution must be in a viable condition and must be stored and displayed under conditions that will maintain its viability. Materials used to coat the aerial parts of the plant that change the appearance of the plant surface so as to prevent adequate inspection are prohibited.

4-21.1-12. Misrepresentation. It is unlawful for any person to misrepresent the name, age, origin, grade, variety, quality, or hardiness of any nursery stock being offered for sale.

4-21.1-13. Reciprocal agreements. The commissioner may enter into reciprocal agreements with officers of other states for the recognition of official licenses and inspection certificates.

4-21.1-14. Exemptions. The commissioner may exempt certain nursery stock, nurseries, or persons from all or part of the sections of this chapter. Exemptions from licenses and fees include: 1. Persons growing and propagating nursery stock for research or experimental purposes.

2. Soil conservation districts selling nursery stock for the prevention of soil and wind erosion or other conservation plantings.

3. Persons growing nursery stock for noncommercial purposes or that the commissioner designates as exempt.

4-21.1-15. Late filing of license applications - Payment of fees. Repealed by S.L. 1987, ch. 88, § 12.

1. Any person who violates this chapter, or any rules adopted pursuant to it, is guilty of a class B misdemeanor.

2. Any person who violates any of the provisions of this chapter, or rules adopted pursuant to it, is subject to a civil penalty not to exceed five hundred dollars for each violation. The civil penalty may be adjudicated by the courts or by the commissioner through an administrative hearing pursuant to chapter 28-32.

3. The department may, in accordance with the laws of this state, maintain an appropriate civil action in the name of the state against any person violating this chapter or rules adopted under this chapter.

4. The commissioner may refuse to grant a license to any person found guilty of repeated violations of this chapter or rules adopted under this chapter, or to any person who has failed to pay an adjudicated civil penalty for violation of this chapter within thirty days after a final determination that the civil penalty is owed.

4-21.1-17. Deposit of funds. Repealed by S.L. 1987, ch. 88, § 12.

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1. "Noncommercial" means sales made by nonprofit and charitable organizations, occasional sales or nursery stock that has not been specifically grown for sale purposes, and sales from hobby-type growers or propagators.
2. "Occasional sales" means the sale of not more than twelve trees, shrubs, or woody vines within one calendar year. This exemption is restricted to only nursery stock grown by the seller.

History: Amended effective August 1, 1978; January 1, 1988.

General Authority: NDCC 4-21.2-02

Law Implemented: NDCC 4-21.1-01

7-04-02-02. Shipping tag required. Repealed effective January 1, 1988.

7-04-02-03. License to be posted. The nursery license must be posted conspicuously in each place of business. A person offering nursery stock for sale from a vehicle shall have the license in that vehicle.

History: Amended effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-06.

1. No person may sell or offer for sale any nursery stock which is not securely labeled in accordance with e "International Code of Nomenclature for cultivated Plants" with the complete correct botanical or approved recognized common name as recognized by the latest edition of one of the following:

1. Hortus Third, Liberty Hydge Bailey Hortorium
2. Hilliers' Manual of Trees and Shrubs
3. Manual of Cultivated Conifers, Den Oudem and Boon.
4. Plant names recognized and accepted by the American Association of Nurserymen, incorporated as published annually in Sources of Plants and Related Supplies.
5. Plant-name listings of well-recognized, nonprofit horticultural societies and organizations.

1. Fruit trees, evergreens, shade trees, flowering trees and shrubs must be labeled as to variety.
2. All collected wild plants offered for sale must be labeled "collected from the wild" unless the stock has been grown under cultivation for at least one year.

History: Amended effective August 1, 1978; January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-11.

7-04-02-05. Storage and display requirements. All nursery stock offered for sale must be stored and displayed as follows:

1. Roots of balled and burlapped stock must be kept moist at all times and should be kept in sawdust, shingle tow, peat, sphagnum moss, or other nonphytotoxic moisture-holding material of sufficient depth to cover one-half of the ball of earth.
2. Container stock must be watered sufficiently to maintain the viability and vigor of the stock. Potting media must be maintained at a depth so as to cover all roots of the plants.
3. Bare-root stock must be kept under conditions of temperature and moisture to retard growth and maintain viability. Moisture must be supplied to the root system by high humidity conditions in storage or by covering the roots with soil, sawdust, peat, wood shavings, or other moisture-holding material not toxic to plants. The material is to be kept moist at all times. Roots of heeled-in stock must be covered with well-packed soil at least one inch [2.54 centimeters] above the crown of the plant.
4. Prepackaged stock with roots packaged in moisture-retaining plastic, peat, wood shavings, or other material must be stored and displayed under conditions that will retard etiolated (nongreen) or otherwise abnormal growth and will ensure an adequate supply of moisture to the roots at all times.

History: Amended effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-11.

7-04-02-06. Minimum standards of viability. All nursery stock offered for sale must meet these minimum standards of viability or be removed from public view and not offered for sale.

1. Woody-stemmed deciduous stock must have moist, green cambium tissue in the stems and branches and must have viable buds or normal green, unwilted growth sufficient to permit the stock to live and grow in a form characteristic of the species when planted and given reasonable care.
2. Nursery stock when in a wilted, rotted, or other such condition indicative of subnormal vitality may not be sold or offered for sale.
3. Bare-rooted or prepackaged woody-stemmed stock having more than two inches [5.08 centimeters] of etiolated (nongreen) growth from individual buds may not be sold or offered for sale.
4. Balled and burlapped stock in a weakened condition as evidenced by dieback or dryness of foliage or stock having broken or loose soil balls or soil balls of a size smaller than that specified by the American association of nurserymen's "American Standard for Nursery Stock" may not be sold or offered for sale.
5. Colored waxes or other materials used to coat the aerial parts of plants that change the appearance of the plant surface so as to prevent adequate inspection are prohibited.

History: Amended effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented NDCC 4-21.1-11.

7-04-02-07. Exemptions. The following plant species are exempt from all provisions of North Dakota Century Code chapter 4-21.1:

1. All clematis species.
2. All rosa species.
3. All yucca species.

History: Amended effective August 1, 1978; January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented NDCC 4-21.1-14.

8. Misrepresentation. Repealed effective January 1, 1988.

1. An inspection certificate will not be issued for any deciduous nursery stock unless the stock has been inspected during active growth.
2. Person growing Christmas trees and persons with overgrown trees or shrubs that will no longer be sold as nursery stock may be required to declare which trees are to be inspected for certification.
3. All field-grown nursery stock must be maintained by mechanical or chemical, or both, vegetation control. Nursery stock growing in grass or sod will not be certified.

History: Effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-05.

7-04-02.10. License fees. A person with more than one place of business must operate all of the locations as one business to qualify for the ten dollar fee for additional licenses. The name and address of the principal place of business must be the same on all licenses issued to the person. The address of the other place of business must be on the license.

History: Effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-06.

7-04-02.10. Application for license. Each application for an initial license or annual renewal must set forth the applicant's business name, phone number, the name of the manager or owner, the principal location where nursery stock will be sold, the address or location of additional sales locations, the mailing address, the location of the growing area, the number of acres [hectares] in the growing area, the number and type of plant species being grown, and a map of the growing area. The application must also include the names and addresses of the nurseries of the sources of their stock. The applicant must certify that only officially inspected and certified nursery stock will be offered for sale.

History: Effective January 1, 1988.

General Authority: NDCC 4-21.1-02.

Law Implemented: NDCC 4-21.1-06.

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State Regulations, Certification and Licensing
(NDDA WebPage: http://www.agdepartment.com):