Testimony of Jim Gray
Pesticide Registration Coordinator
Senate Bill 2081
February 27, 2003
9:30 a.m.
House Agriculture Committee
Peace Garden Room

Chairman Nicholas and members of the committee, I am Jim Gray, Pesticide Registration Coordinator with the North Dakota Department of Agriculture. I am here to provide testimony is support of SB 2081. This bill amends Chapters 19-18 and 4-35 of the North Dakota Century Code (N.D.C.C.) to consolidate authority relating to pesticide experimental use permits (EUPs) and designation of certain pesticides as Restricted Use Pesticides (RUPs).

To understand the basis for this bill, we must remember that North Dakota's pesticide laws are split into two separate chapters of the Century Code. N.D.C.C. 4-35, administered by the Pesticide Control Board, deals with enforcement of commercial pesticide applicators, certification of individuals who sell or use restricted use pesticides, and issues dealing with pesticide storage, and sales, and use. In contrast, N.D.C.C. 19-18, administered by the Agriculture Commissioner, deals with pesticide registrations and labeling.

Section 1 of the bill moves the authority to issue experimental use permits from N.D.C.C. 4-35-07 to N.D.C.C. 19-18. Experimental use permits are used by pesticide manufacturers to conduct exploratory research on new pesticide use sites, rates, timings, and tank-mixes in hopes of developing new use patterns to benefit North Dakota farmers and ranchers. Pesticide uses under EUPs are unregistered pesticide uses, and EUPs are usually granted with specific directions related to experimental protocols and the fate of any treated crops.

Moving authority to issue EUPs from N.D.C.C. 4-35 to N.D.C.C. 19-18 makes sense for several reasons. First, activities involved with reviewing and granting EUP requests closely mimic those involved with pesticide registrations and emergency exemptions. Second, some pesticide manufacturers have withdrawn EUP requests in recent years because of their concerns that the details of the research would be accessible via open records requests. N.D.C.C. 19-18-04.2 offers protection of this information from open records requests. This should alleviate concerns with public access to specific information on research being conducted under EUPs, and encourage pesticide manufacturers to develop new pesticide use patterns to benefit North Dakota. Finally, the Pesticide Control Board has considered this issue and approved moving the oversight of EUP's to the responsibility of the Agriculture Commissioner at its meeting on November 14, 2002.

Section 2 of the bill clarifies which state agency has authority to designate a pesticide as a restricted use pesticide (RUP) by repealing N.D.C.C. 4-35-07. To provide some background, there are two general classes of pesticides: 1) general use pesticides, and 2) restricted use pesticides. General use pesticides can be used by anybody as long as that person uses the product according to the label directions. However, there are other pesticides that also require specialized training prior to their use due to toxicity or environmental impact concerns. Designation of these products as RUPs restricts their use to only those people that have received this specialized training. Granting a product RUP status also requires that special language to be added to the product's labeling to make it clear that they can only be used or sold by individuals certified by the North Dakota State University Extension Service to do so.

Currently, the authority to designate a pesticide as a restricted use pesticide is found in both N.D.C.C. 4-35 and N.D.C.C. 19-18. Because the Pesticide Control Board administers N.D.CC. 4-35 and the Agriculture Commissioner administers N.D.C.C. 19-18, this has the potential of confusion. Pesticide enforcement activities allowed under N.D.C.C. 4-35 are based largely on pesticide label language. It is evident that authority to designate a pesticide as an RUP must be consolidated in the Century Code under Chapter 19-18. The Pesticide Control Board has considered and approved consolidating the authority to designate a pesticide as an RUP under N.D.C.C. 19-18, the chapter of the Century Code that deals with pesticide registrations at its November 14, 2002 meeting.

The pesticide registration process involves approval of product labeling, and ensuring that label directions are adequate to prevent unreasonable adverse effects to humans and the environment. Furthermore, a pesticide manufacturer cannot distribute any product with labeling that has not been approved by the North Dakota Department of Agriculture. As such, designation of a product as an RUP by the Pesticide Control Board under the current authority described in N.D.C.C. 4-36-07 is meaningless unless the Department has also designated the product as restricted use. Therefore, because designation of a product as an RUP and the subsequent labeling requirements are a product of the pesticide registration process, it makes most sense to repeal N.D.C.C. 4-35-07.

Below is a copy of the minutes from the November 14, 2002, meeting of the Pesticide Control Board. You will see that the Board approved this bill language to amend the Century Code.

Thank you for consideration of this bill. I would be happy to answer any questions.

Pesticide Control Board
Meeting minutes 11/14/02
Page 1 of 1

Call to Order and Introductions

Roger Johnson called the meeting to order at 10:40 a.m. on November 14. The meeting was held in the Agriculture Commissioner's office in Bismarck. Board members present were Roger Johnson, North Dakota Agriculture Commissioner; Ken Grafton, NDSU Experiment Station Director; and Sharon Anderson, NDSU Extension Service Director. Others present were Jeff Olson, ND Department of Agriculture. Andrew Thostenson joined the meeting via conference call at 10:53.

Anderson moved to approve the minutes of the June 10, 2002, PCB meetings. Seconded by Grafton. All members voted "aye."

Thostenson presented the NDSU Pesticide Program update and activities. Thostenson proposed a one dollar fee increase for certification exams from $19 to $20. There were discussions on how much to increase the fee. Anderson stated that instead of increasing it one dollar, that it should be increased to $25 to cover more of the costs of operating the program. Johnson stated that an Attorney general's opinion in 1999 stated that the board can only increase the fee to cover its actual costs. Anderson stated that $25 would still be below the actual cost of operating the program. Thostenson was directed by the Board to determine the actual cost of operating the program and report it to the Board. Anderson moved to approve the fee increase to $25 from the present $19 for certification exams on condition that Thostenson's cost evaluation exceeds the $25 limit. Grafton seconded. All members voted "aye.

Olson presented to the Board a draft administrative rule covering cheating on certification exams. Olson stated that it was approved by the advisory committee in August to recommend the rule. Thostenson expanded on the background of the discussion and its effectiveness in other states. The reason for the rule is because of an investigation that occurred in Cavalier County earlier this year. Johnson stated that he wasn't opposed to the rule but suggested that the process should wait until after the legislative session is complete incase there are other changes that may need to be made. The decision on the administrative rule was tabled until after the legislative session.

Olson next presented three bill drafts that dealt with N.D.C.C. 4-35 06 (2) and 19-18. One draft would remove the ability of the Board to designate restricted use pesticides. This jurisdiction is found in both NDCC 4-35-06 (2), Pesticide Control Board and 19-18, Agriculture Commissioner. The reason for keeping with the Agriculture Commissioner is because it is more of a registration issue than an enforcement issue. Another issue on the same bill draft would move NDCC 4-35-07 to NDCC 19-18. This section covers the review of experimental use permits. The reason for this move is because it is an experimental registration issue.

North Dakota Century Code 4-35-23 (4) will be amended to clarify language at the recommendation of the Attorney General's Office. NDCC 4-35-05-09, 14, and 18 are housing cleaning amendments to clarify confusion in the statutes. Grafton moved that the Board approve the bill drafts subject to review and approval of the Attorney General's Office. Anderson seconded. All members voted "aye".

Olson updated the Board on the pesticide enforcement numbers for the past federal fiscal year and was directed to supply the number of outstanding cases to the Board. Olson explained the investigations and enforcement issues relating to the import of Canadian Liberty and the off label application of Round-up on mustard and dry beans. Olson next explained the final investigation to the dinoseb groundwater contamination in Pembina County. Olson explained that the Department's investigation included a fly-over of the vicinity looking for "old" dumps and landfills, the search of the located dumps, and soil sample collection and analysis surrounding the well in question. Olson explained that the soil analysis indicated the residue was found in the soil profile and originated from an area where potato truck boxes were stored on old fifty-five gallon drums during the 1970's. Olson's conclusion was that the dinoseb residue is slowly leaching through the soil profile with residue levels well below the MCL level and there was no danger to human health or the environment. Olson stated that EPA was briefed on these conclusions and was satisfied with the results.

Meeting adjourned at 11:00 a.m.

The minutes were submitted by Jeff Olson.