Testimony of Jeff Olson
Program Manager
Senate Bill 2081
January 17, 2003
9:00 a.m.
Senate Agriculture Committee
Roosevelt Room

Chairman Flakoll and members of the committee, I am Jeff Olson, Program Manager 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 Second, some pesticide manufacturers have withdrawn EUP requests in recent years because of their concerns that the details of the research would be accessible via open records requests.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. The Pesticide Control Board 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 approved to consolidate 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.

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