N.D. Admin. Code Title 60 — Pesticide Control Board

Article 60-01 General Administration

Chapter 60-01-01 Organization of Board

N.D. Admin. Code 60-01-01-01 Organization and purpose of pesticide control board

1.Board membership. The pesticide control board consists of the agriculture commissioner, who is chairman of the board; the director of the North Dakota state university extension service; and the director of the agricultural experiment station at North Dakota state university of agriculture and applied science.

2.Enforcement responsibility. The agriculture commissioner is responsible for the enforcement of North Dakota Century Code chapter 4.1-33.

3.Inquiries. General inquiries regarding the pesticide control board may be addressed to:

Agriculture Commissioner, Chairman Pesticide Control Board North Dakota Department of Agriculture 600 East Boulevard State Capitol, 6th Floor Bismarck, North Dakota 58505-0020 (701)328-2231; e-mail ndda@state.nd.us

History

• History: Amended effective January 1, 1992; March 1, 2003.
• General Authority: NDCC 28-32-02.1
• Law Implemented: NDCC 28-32-02.1

Article 60-02 Rules of Practice and Procedure

Chapter 60-02-01 General Provisions

N.D. Admin. Code 60-02-01-01 Scope

The provisions of this article shall apply to all hearings held by the commissioner for the purposes of adjudicating the rights of parties under North Dakota Century Code chapter 4.1-33. This article shall provide procedures in addition to or in explanation of those procedures provided by North Dakota Century Code chapters 4.1-33 and 28-32.

History

• General Authority: NDCC 4.1-33-03, 28-32-02
• Law Implemented: NDCC 4.1-33-13, 28-32-02

N.D. Admin. Code 60-02-01-02 Liberal construction

This article shall be liberally construed in order to secure just, speedy, and inexpensive determination of the issues presented.

N.D. Admin. Code 60-02-01-03 Suspension of article

The commissioner or any hearing officer shall have the right, upon either the commissioner's or hearing officer's own motion or the motion of any party, to suspend the operation and effect of this

article or any portion thereof, whenever the public interest or the interests of any party to a proceeding shall not be substantially prejudiced by such suspension.

N.D. Admin. Code 60-02-01-04 Definitions

As used in this article, the following words shall have the meaning given to them below, unless otherwise made inappropriate by context:

1."Certification" means a private applicator's certification granted under the provisions of North Dakota Century Code section 4.1-33-12.

2."Commissioner" means the North Dakota commissioner of agriculture.

3."Department" means the North Dakota department of agriculture.

4."Hearing officer" or "officer" means the person appointed by the board to call and conduct a hearing.

5."License" means a commercial applicator or dealer license issued under the provisions of North Dakota Century Code section 4.1-33-07 or 4.1-33-11.

6."Order" means any written command or direction made by the board as provided by law.

7."Person" means any real person, county, municipality, or other political subdivision, department, agency, or commission, any public or private corporation, any partnership, association, or other organization, any receiver, trustee, assignee, or other legal entity, other than a court of law, or other legal representative of the foregoing but does not include the board.

N.D. Admin. Code 60-02-01-05 Case numbers and title

Each matter coming formally before the commissioner for hearing will be known as a case and shall be given a docket number and title, descriptive of the subject matter. Such number and title shall be used on all papers in the case, and as far as possible, any communication to the commissioner in any particular case shall bear the number of the case.

N.D. Admin. Code 60-02-01-06 Personal appearances

Participants may appear in any proceeding in person or by an attorney or other representative qualified under subsection 3 of section 60-02-01-07. An individual may appear in the individual's own behalf, a member of a partnership may represent the partnership, a bona fide officer or duly authorized employee of a corporation, association, or group may represent the corporation, association, or group, and an officer or employee of a state agency, a department or political subdivision of the state, or other governmental authority may represent the state agency or the department or the political subdivision of the state or other governmental authority in any proceeding.

N.D. Admin. Code 60-02-01-07 Practice before the commissioner

1.Person in own interest. Any person may appear before the commissioner in the person's own right if the person has a bona fide interest in the subject matter of the proceeding.

2.Attorneys. Attorneys at law who are admitted to practice before the courts of the state of North Dakota may represent any party to a proceeding. Any member of the bar of another state may be permitted by the commissioner to appear in and conduct a case or proceeding while retaining residence in another state.

3.Other persons. Any other person who shall file proof to the satisfaction of the commissioner that the person is possessed of necessary legal or technical qualifications to enable the person to render valuable service may be permitted to practice before the commissioner.

4.Rules of conduct. All persons appearing before the commissioner must conform to the standards of ethical conduct required of practitionersbefore the courts of the state of North Dakota.

N.D. Admin. Code 60-02-01-08 Parties

1.Complainant. Persons who complain of any act or omission in violation of any statute or

regulation shall be styled complainants.

2.Intervenor. Persons petitioning to intervene when admitted as a participant to a proceeding shall be styled intervenors. Admission as an intervenor shall not be construed as recognition by the commissioner that such intervenor might be aggrieved by any order of the commissioner in such proceeding.

3.Parties. Any person whose legal rights, duties, or privileges may be determined in the case for which the hearing may be held shall be a party. When a hearing is held pursuant to a request for a hearing, the person making the request shall be a party. The commissioner shall be a party in any action to enforce any regulation, statute, or other of the commissioner. Any person who has properly intervened in a case shall be a party.

4.Petitioner. Any person seeking reconsideration, as provided by law, of any administrative action taken pursuant to law and this article shall be styled the petitioner.

5.Respondent. Any person against whom any complaint is filed or order issued under this

article shall be styled the respondent.

N.D. Admin. Code 60-02-01-09 Investigation on commissioner's own motion

The commissioner may at any time, upon the commissioner's own motion, or upon the complaint of any person, institute investigations and order hearings in any thing done by any person which the commissioner may believe is in violation of the law or any regulation or order of the commissioner. The commissioner may secure and present such evidence as it may consider necessary or desirable in any proceeding in addition to the evidence presented by any other party.

History

• Law Implemented: NDCC 28-32-08

N.D. Admin. Code 60-02-01-10 Computation of time

1.In determining the day upon which an answer must be served pursuant to North Dakota Century Code section 28-32-05, the day of the hearing and the last day upon which an answer may properly be received shall not be included in computing the required three-day time period. If the day upon which the answer is due falls on a Saturday, Sunday, or legal holiday, the answer shall be due on the preceding business day.

2.In computing any period of time prescribed or allowed by this article, other than that time period set out in subsection 1, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Sundays and holidays shall be excluded in the computation.

N.D. Admin. Code 60-02-01-11 Service

For the purposes of this article, service or filing shall be deemed to have occurred upon actual receipt of the document served or filed.

N.D. Admin. Code 60-02-01-12 Record

Unless any party demands otherwise at least ten days prior to the date of hearing, a written summary record or tape recording of the proceeding will be made and filed. If demanded, the commissioner shall cause a verbatim transcript to any proceedings to be made at the expense of the demanding parties. The time period required herein shall be computed, as nearly as practicable, by that method specified in section 60-02-01-10.

History

• Law Implemented: NDCC 28-32-12

Chapter 60-02-02 Pleadings

N.D. Admin. Code 60-02-02-01 Informal complaint

Informal complaints may be made orally or in writing addressed to the commissioner. Letters of complaint to the commissioner will be considered as informal complaints. Matters thus represented will be handled by correspondence or by other informal communications, or by conference with the party or parties complained of, or by formal investigation instituted by the commissioner upon the commissioner's own motion, or in such other manner as the commissioner shall deem to be appropriate and warranted by the facts and the nature of the complaint in an endeavor to bring about satisfaction of the complaint without formal hearing.

History

• Law Implemented: NDCC 28-32-07

N.D. Admin. Code 60-02-02-02 Formal complaints

1.Complaints shall be made by the commissioner on the commissioner's own motion by complaint in writing, setting forth any act or thing done or omitted to be done in violation or claimed to be violation of any provision of law or of any rule, regulation, or order of the commissioner.

2.Each formal complaint shall show the venue, "before the North Dakota department of agriculture" and shall contain a heading, "in the matter of", showing the name and address of the respondent. The complaint shall be so drawn as to fully and completely advise the respondent or the commissioner of the facts constituting the ground of the complaint; the provisions of the statutes, regulations, or order relied upon; the injury complained of; and shall contain a clear, concise statement of the relief sought.

3.The commissioner shall serve a true copy of the complaint and notice for hearing upon the respondent personally, or by registered or certified mail, as the commissioner may determine, in such time as provided by law before the time specified for hearing thereof unless the service of such complaint or notice of hearing is waived, in writing, by the respondent, or unless the parties agree upon a definite time and place for hearing thereof with the consent of the commissioner. However, in case of an emergency the commissioner shall notice a proceeding for hearing upon its merits as provided by law.

N.D. Admin. Code 60-02-02-03 Order to show cause

1.The commissioner may, by order, compel any person who the commissioner believes is violating any law, regulation, or order of the commissioner subject to enforcement by this

article, or any person who has been granted a license or certification, to show cause why such law, regulation, or order should not be enforced against such person or why such license or certification should not be suspended, revoked, or modified, either in whole or in part.

2.An order to show cause shall specifically advise the respondent of the facts of the violation and law applicable thereto and of the time and place of the hearing to be conducted on the order.

3.If the commissioner finds that the respondent is committing or is about to commit an alleged violation, the commissioner may order the respondent to cease and desist from the acts constituting the violation. The commissioner may also, or in lieu thereof, enter any other just and reasonable order.

N.D. Admin. Code 60-02-02-04 Petition for hearing

Any petitioner requesting the commissioner to review by hearing, as provided by law, any commissioner action, rule, or regulation shall file with the commissioner a petition, which may be in letter form, advising the commissioner of the facts constituting the grounds for the petition, the injury complained of, and a clear and concise statement of the relief sought.

N.D. Admin. Code 60-02-02-05 Answers

1.Each answer filed with the commissioner shall be designated as an "answer" and shall contain the correct title of the proceeding, a specific denial of such material allegations of the complaint as are controverted by the respondent, and a statement of any new matter which may constitute a defense. If the answering party has no information or belief upon the subject sufficient to enable the answering party to answer an allegation of the complaint, the answering party may so state in the answer and place the denial upon that ground. The filing of an answer will not be deemed an admission of the sufficiency of the complaint.

2.An answer must be signed and verified by the respondent filing the answer.

3.Two true and correct copies of the answer shall be served upon the commissioner personally or by registered mail, at least three days before the time specified in the complaint for hearing.

N.D. Admin. Code 60-02-02-06 Response to petition for hearing

1.Upon receiving a petition for hearing upon any matter, as provided by law, the commissioner shall, within thirty days of such receipt, serve upon the petitioner a response to the petition.

The response may be in letter form and shall state the decision of the commissioner whether or not to hold the requested hearing. If a hearing is granted, the response shall state the date upon which the petitioning party may appear to be heard, and such other conditions of the hearing as the commissioner may determine. If the requested hearing is denied, the reasons for such denial shall be clearly stated. This subsection shall not apply to hearings on emergency orders.

2.Upon receiving a petition for hearing pursuant to an emergency order, as provided by law, the commissioner shall set a date for hearing to be held within ten days of receipt of such petition and shall notify the petitioner of such date and of such other conditions of the hearing as the commissioner shall determine.

N.D. Admin. Code 60-02-02-07 Intervention

In any formal proceeding, any person having a substantial interest in the subject matter of such proceeding may petition for leave to intervene in such proceeding and may become a party thereto upon compliance with the provisions of this section. In general, such petitions will not be granted unless it shall be found that such person has a statutory right to be made a party to such proceedings or that such person has a property, financial, or other legally-recognizable interest which may not be adequately represented by existing parties, and such intervention would not unduly broaden the issues or delay the proceeding.

1.A petition for leave to intervene shall be in writing, unless made at the commencement of a hearing, and must set forth the grounds of the proposed intervention, the position and interest of the petitioner in the proceeding, and whether the petitioner's position is in support of or in opposition to the relief sought.

2.A written petition for leave to intervene in any proceeding may be filed prior to or at the commencement of the hearing, but not after commencement, except for good cause shown.

3.The petitioner shall furnish a copy of any written petition to each party to the proceeding, including the commissioner.

4.Admission as an intervenor shall not be construed as recognition by the commissioner that such intervenor might be aggrieved by any act of the commissioner in such proceeding.

N.D. Admin. Code 60-02-02-08 Amendments

The commissioner, prior to any hearing, or the hearing officer during any hearing, may, after notice to the other parties to a proceeding, allow any pleading to be amended or corrected or any omission therein to be supplied, provided that if any such amendment, when allowed, so alters or broadens the issues that it appears proper, the commissioner may permit any party affected thereby a reasonable time to prepare to meet the changed issues.

N.D. Admin. Code 60-02-02-09 Withdrawal of pleading

A party desiring to withdraw a pleading filed with the commissioner may file a notice of withdrawal thereof with the commissioner. The notice shall set forth the reason for the withdrawal. A copy of the withdrawal notice must be served upon all other parties to the proceeding and a certificate of service to that effect filed with the notice of withdrawal. Withdrawal of any pleading in any proceeding in which a hearing has been held or convened shall not be allowed without express permission of the commissioner.

N.D. Admin. Code 60-02-02-10 Motions

After a complaint or petition has been served, a request may be made by motion for any procedural or interlocutory ruling or relief proper and desired. All motions not made in the course of a hearing shall be in writing and shall be served on the other parties to the hearing by the moving party.

1.The commissioner, prior or subsequent to any hearing, or the hearing officer during any hearing, may set any motion for oral argument.

2.The hearing officer designated to preside at a hearing is authorized to rule upon any motion not formally acted upon by the commissioner prior to the commencement of the hearing, wherein the immediate ruling is essential in order to proceed with the hearing and upon any motion filed and made after the commencement thereof and prior to the decision in the proceedings. However, no motion made before or during a hearing, a ruling upon which would involve or constitute a final determination of the proceeding, shall be ruled upon by a hearing officer.

3.Motions not ruled upon by the hearing officer shall be ruled upon by the commissioner.

4.Appeals from rulings of the hearing officer on any motion may be taken as provided in section 60-02-04-06.

Chapter 60-02-03 Prehearing Matters

N.D. Admin. Code 60-02-03-01 Informal disposition

Informal disposition may be made of any case, or any issue therein, by stipulation, or consent order at any point therein, subject to the approval of such informal disposition, or any terms thereof, by the commissioner.

N.D. Admin. Code 60-02-03-02 Prehearing conference

A prehearing conference may be held at any time at the discretion of the commissioner or hearing officer prior to any hearing. The prehearing conference shall be an informal proceeding conducted fairly and expeditiously by the hearing officer, for purposes of identifying and simplifying the issues to be determined, identifying and limiting the number of witnesses, and reaching an agreement on any or all issues of law or fact without the necessity for further hearing thereon. In addition to any offer of settlement, the following are appropriate for consideration at a prehearing conference:

1.The simplification of issues.

2.The necessity or desirability of amendment to the pleadings.

3.The exchange and acceptance of service of exhibits proposed to be offered in evidence.

4.The obtaining of admission as to, or stipulations of, facts not remaining in dispute, or the authenticity of documents which may properly shorten the hearing.

5.The limitation of the number of witnesses.

6.Such other matters as may properly be dealt with to aid in expediting the orderly conduct of the proceeding.

N.D. Admin. Code 60-02-03-03 Conference results stipulated

Upon conclusion of prehearing conference, the parties shall immediately reduce the results thereof to the form of a written stipulation which recites the matters agreed upon, and the stipulation shall be filed with the commissioner. Any such stipulation may be received in evidence at a hearing and, when so received, shall be binding on the parties with respect to the matters therein stipulated.

N.D. Admin. Code 60-02-03-04 Consolidation

The commissioner, upon the commissioner's own motion, or upon motion by any party, may order two or more proceedings involving a similar question of law or facts to be consolidated for hearing where rights of the parties or the public interest will not be prejudiced by such procedure.

Chapter 60-02-04 Hearings

N.D. Admin. Code 60-02-04-01 Hearing officers

1.Appointment. All hearing officers shall be appointed by the commissioner. The commissioner shall appoint a hearing officer within five days of service of a complaint or petition. Notification of the appointment shall be made to all parties in such manner as the commissioner may determine.

2.Qualifications.

a.All appointments of hearing officers shall be consistent with the purpose of obtaining objectivity and impartiality in making decisions.

b.The hearing officer may be an employee or a member of the department. The commissioner may appoint as hearing officer a person who is not an employee or member of the department. In such event, the hearing officer shall be an attorney at law licensed to practice in North Dakota, unless some other person is agreed upon by all parties; provided, that such hearing officer shall be considered an employee of the commissioner for the sole purpose of compensation, if any, and authorization to conduct the hearing and recommend findings of fact and a decision to the commissioner. In all other respects, the hearing officer shall be independent of the department.

c.In all cases, the commissioner retains discretion to conduct the hearing personally, in which case an employee of the department shall be the hearing officer.

3.Authority. The appointment of the hearing officer shall, to the extent permitted by law, authorize and direct the hearing officer to conduct the hearing and recommend a decision to the commissioner. When evidence is to be taken in a proceeding, one or more of examiners, when duly designated for that purpose, shall preside at the hearing. An officer duly designated by the commissioner to preside at a hearing shall have the authority to take any of the following actions in the name of the commissioner:

a.To regulate the course of hearing.

b.To administer oath.

c.To issue subpoenas.

d.To take depositions or cause depositions to be taken.

e.To rule upon offers of proof and to receive evidence.

f.To hold appropriate conferences before or during hearings.

g.To dispose of procedural matters but not to dispose of motions made during hearings to dismiss proceedings or other motion which involves a final determination of proceedings.

h.To exclude evidence which is cumulative or repetitious.

i.To authorize any party to furnish and serve designated late-filed exhibits with a specified time after the close of the hearing.

j.To order discovery.

k.Within the hearing officer's discretion, or upon direction of the commissioner, to certify any question to the commissioner for the commissioner's consideration and disposition.

l.To take any other action necessary or appropriate to discharge the duties vested in the hearing officer, consistent with statutory or other authorities under which the commissioner functions and with the rules, regulations, and policies of the commissioner.

4.Limitations. Hearing officers shall perform no duties inconsistent with their responsibilities as such. No officer shall in any proceeding for an adjudication required by statute to be determined on the record after opportunity for hearing consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate.

5.Disqualification.

a.Any party may file a petition with the commissioner to disqualify any hearing officer. The commissioner shall determine the petition in accordance with this subsection and enter the commissioner's decision on the record.

b.The commissioner may, for good cause, revoke the appointment of any hearing officer upon the filing of a petition of a party or upon the commissioner's own motion. Any such revocation shall be effective upon notice to the officer.

c.A hearing officer shall withdraw from participation in a hearing at any time prior to the final determination if the officer deems oneself disqualified for any reason.

d.Whenever a hearing officer withdraws or is disqualified, the commissioner shall appoint another in the officer's place, without the need for such newly appointed officer hearing evidence already presented in the case.

N.D. Admin. Code 60-02-04-02 Discovery

1.Agency discovery.

a.Information. Upon request of the commissioner or the hearing officer, any party to the matter shall furnish to the commissioner or the hearing officer any information which the party may have which is relevant to the matter under consideration.

b.Examination of records. Upon request of the commissioner or the hearing officer, any party shall allow the commissioner or any member, employee, or agent of the department, when authorized by the commissioner or the hearing officer, or the officer personally, to examine and copy any books, papers, records, or memoranda pertaining to the matter under consideration.

c.Inspection of premises. Upon request of the commissioner or the hearing officer, any party shall allow the commissioner or any member, employee, or agent of the department when authorized by the commissioner or the hearing officer, or the hearing officer personally, to enter upon any of the party's property for the purpose of obtaining information, examining any physical facility, or examining records or conducting surveys or investigations.

2.Discovery by parties.

a.Parties other than the commissioner may obtain discovery by examination of those public records which are in possession of the hearing officer or the department. Any party to a case may request the commissioner or the hearing officer to exercise its powers in subsection 1 to obtain public information or to issue a subpoena as provided in section

N.D. Admin. Code 60-02-05-03 The commissioner or the hearing officer may grant or deny such requests

A party may request voluntary disclosure of information by any other party.

b.The deposition of any witness or party required in any proceeding before the commissioner may be taken in the same manner and on the same notice as in an action pending in the district courts of this state. Any person whose deposition is taken shall receive the same fees and mileage as a witness in a civil case in the district courts and such costs shall be paid by the party at whose insistence the deposition is taken.

c.Interrogatories may be issued, in any proceeding before the commissioner, in the same manner as in an action pending in the district courts of this state.

N.D. Admin. Code 60-02-04-03 Appearance

Interested parties shall enter their appearances at the beginning of the hearing by giving their name and address and briefly stating whether they appear in support of the complaint or in opposition thereto, or otherwise. All such appearances shall be noted on the record with a notation in whose behalf each appearance is made. Included in such appearances shall be the names of the employees of the department participating in the hearing of investigation and the names of any other persons appearing for the commissioner.

N.D. Admin. Code 60-02-04-04 Continuance

Before or after any hearing, continuances may be granted by the commissioner for good and sufficient cause. A motion for such a continuance shall be made in writing, filed with the commissioner, and served on opposing counsel or parties. Such motions shall be presented as far in advance of date fixed for hearing as possible to ensure favorable action. The commissioner may effect a continuance before or after any hearing upon the commissioner's own motion. The hearing officer may grant oral or written requests for continuances during any hearing.

N.D. Admin. Code 60-02-04-05 Order of procedure

In hearings on formal complaints and petitions, the complainant or petitioner, as the case may be, shall open and close. In hearings on an order to show cause, the respondent shall open and close.

When proceedings have been consolidated for hearing, the officer shall designate who shall open and close. Intervenors shall follow the parties in whose behalf the intervention is made. Where the intervention is not in support of an original party, the presiding officer shall designate at which stage such intervenor shall be heard. In proceedings where the evidence is materially within the knowledge or control of another party or participant, the foregoing order or presentation may be varied by the officer.

N.D. Admin. Code 60-02-04-06 Appeal to commissioner from ruling of hearing officer - Offer of proof

An appeal may be taken to the commissioner from a ruling of an officer during the course of a hearing only where extraordinary circumstances necessitate a prompt decision by the commissioner to prevent detriment to the public interest.

Any offer of proof made in connection with an objection taken to any ruling of the hearing officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence in documentary or written form or reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.

N.D. Admin. Code 60-02-04-07 Oral argument

1.Before officer. When, in the opinion of the hearing officer, time permits and the nature of the proceedings, the complexity or the importance of the issues of fact or law involved, and the public interest warrant, such officer may, either on the officer's own motion, or at the request of any party at or before the close of the taking of testimony, allow and fix a time for the presentation of oral argument imposing such limits of time on the argument as deemed appropriate. Such arguments shall be transcribed and bound with the transcript of testimony, if a transcript is prepared.

2.Before commissioner. Request for authority to represent oral argument before the commissioner may be made at the time of any appeal taken during the hearing, at the conclusion of the taking of evidence, or on brief, at such time as the commissioner may allow.

The commissioner will fix the time for oral argument, if allowed, and notify the parties.

N.D. Admin. Code 60-02-04-08 Briefs and proposed findings of fact and conclusions of law

1.Each party to any proceeding may file proposed findings of fact and conclusions of law, briefs, or memoranda of law; provided, however, that the commissioner or hearing officer may direct any party to file proposed findings of fact and conclusions of law, briefs, or memoranda of law.

2.The commissioner or hearing officer shall fix the time for the filing and service of proposed findings of fact and conclusions of law, briefs, or memoranda of law, giving due regard to the nature of the proceeding, the magnitude of the record, and the complexity or importance of the issues involved, and shall fix the order in which such documents shall be filed.

3.Should a party find that it is unable to meet the date for filing and serving proposed findings of fact and conclusions of law, briefs, or memoranda of law, such party shall so notify the commissioner or hearing officer and the other parties in writing, therein setting forth the reasons for such inability together with a request for an extension of time to a date certain for filing and service.

4.When it is ordered that proposed findings of fact and conclusions of law, briefs, or memoranda of law be filed and served by the party initiating the proceeding, and where such party fails to file and serve by the date specified without complying with subsection 3, the commissioner on the commissioner's own motion or the motion of any party may, in the commissioner's discretion, dismiss the proceeding. Such failure in the case of an intervenor, protestant, or respondent may be deemed a waiver of the right to participate further in the proceeding, and the commissioner on the commissioner's own motion of the motion of any party may so order.

5.Exhibits should not be reproduced in a brief, but may, if desired, be reproduced in a appendix to the brief. Every brief of more than twenty pages shall contain a subject index, with page references, and the pages where the citations appear. All briefs shall be as concise as possible.

6.All briefs shall be accompanied by a certificate showing service upon all parties or their attorneys who appeared at the hearing. One copy of each brief shall be furnished for the use of the commissioner unless otherwise directed by the commissioner or hearing officer.

Chapter 60-02-05 Evidence

N.D. Admin. Code 60-02-05-01 Admissibility

The admissibility of evidence shall be determined generally in accordance with the practice in the district courts of this state, except to the extent that this article conflicts therewith. However the commissioner or the hearing officer may waive the usual common law or statutory rules of evidence where such waiver is necessary to ascertain the substantial rights of the public and interested parties.

When objection is made to the admissibility of evidence, the hearing officer shall rule thereon.

N.D. Admin. Code 60-02-05-02 Witnesses

Witnesses will be orally examined under oath before the commissioner or hearing officer. Testimony may also be taken by deposition as provided in subdivision b of subsection 2 of section 60-02-04-02.

Written testimony of any witness may be received when properly supported by the oral testimony of its author.

History

• Law Implemented: NDCC 28-32-09

N.D. Admin. Code 60-02-05-03 Subpoena

Subpoenas for the attendance of witnesses or for the production of documentary evidence, unless directed by the commissioner upon the commissioner's own motion, will issue only upon application in writing to the commissioner, or to the hearing officer, except that during a hearing such application may be made orally on the record before the hearing officer who shall have the authority to determine the relevancy and the materiality of the evidence sought and to issue such subpoenas if warranted. Written application shall specify the general relevance and materiality of the testimony or documentary evidence sought, including, as to documentary evidence, specifications as nearly as may be of the documents desired and the facts to be proved by them. The cost of serving any subpoena shall be paid by the party requesting it. Any witness who is subpoenaed under the provisions of this section and who appears at the hearing shall receive the same fees and mileage as witnesses in the district courts of this state, and such costs will be paid by the party at whose instance the witness appears. No witness fees will be allowed except on a subpoena.

History

• Law Implemented: NDCC 28-32-09

N.D. Admin. Code 60-02-05-04 Stipulations

The parties to any proceeding before the commissioner may, by stipulation in writing, filed with the commissioner or orally entered in the record, agree upon the facts, or any portion thereof, involved in the controversy, and such stipulation may be received in evidence at a hearing and when so received, shall be binding upon the parties with respect to the matters stipulated therein.

N.D. Admin. Code 60-02-05-05 Documentary evidence

Where relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter not material or relevant, the party must plainly designate the matter so offered. If the other matter is in such volume as would unnecessarily encumber the record, such book, paper, or document will not be received in evidence but may be marked for identification and, if properly authenticated, the relevant and material matter may be read into the record, or if the commissioner or hearing officer directs, a true copy of such matter in proper form shall be received as an exhibit and like copies delivered by the party offering the same to all parties or their attorneys appearing at the hearing who shall be afforded an opportunity to examine the entire book, paper, or document and to offer in evidence in like manner any portions thereof found to be material and relevant. Any matter contained in a report or other official document on file with the department may be offered in evidence by merely identifying the report, document, or other file containing the matter so offered.

N.D. Admin. Code 60-02-05-06 Exhibits

1.Exhibits must be on paper of good quality and so prepared as to be plainly legible and durable whether printed, typewritten, mimeographed, photographed, or otherwise, and if possible should be folded to a size not to exceed eight and one-half by fourteen inches (21.59 by 35.56 centimeters). Whenever practicable, the sheets of each exhibit and line of each sheet should be numbered, and if the exhibit consists of five or more sheets, the first sheet or title page should contain a brief statement of what the exhibit purports to show with reference by sheet and line to illustrative or typical example contain in the exhibit. Whenever practicable, documents produced by a single witness shall be assembled and bond together suitably arranged and indexed so that they may be identified and offered as one exhibit. The source of all material contained in any exhibit should be definitely shown.

2.Two copies of each exhibit will be furnished for the use of the commissioner whenever the commissioner shall request. Copies must also be available for all parties of record in a proceeding.

N.D. Admin. Code 60-02-05-07 Official notice

The commissioner or the hearing officer may take notice of any fact or facts set forth in duly established regulations, annual reports, or any statistical data to which reference is made on the record at the hearing or any facts which are judicially noticed by the courts of this state.

Chapter 60-02-06 Reopening, Rehearing, and Review

N.D. Admin. Code 60-02-06-01 Petition to reopen

At any time after the conclusion of a hearing, but before entry of the final order by the commissioner, any party to a proceeding may file with the commissioner a petition to reopen the proceeding for the purpose of taking additional evidence.

1.The petition shall set forth clearly the facts claimed to constitute the grounds requiring reopening of the proceeding, including the material changes of fact or law alleged to have occurred since the conclusion of the hearing.

2.A copy of the petition to reopen shall be served by the petitioning party upon all parties to the proceedings of their attorneys of record, and a certificate to that effect will be attached to the petition when filed with the commissioner.

3.Within ten days following the service of any petition to reopen, any other party to the proceeding may file with the commissioner the party's answer thereto. Any party not filing such answer is in default thereof and shall be deemed to have waived any objection to the granting of such petition.

4.If, after the hearing in a proceeding, either before or after the issuance of the commissioner's final order, or if no hearing has been held, only after the issuance of the commissioner's final order, the commissioner shall have reason to believe the conditions of fact or law have so changed as to require, or that public interest requires, the reopening of such proceeding, the commissioner may issue an order for the reopening of the proceeding.

5.The commissioner shall act on any petition to reopen within ten days of receipt thereof and may, in the commissioner's discretion, hear oral argument on any such petition.

History

• Law Implemented: NDCC 28-32-14

N.D. Admin. Code 60-02-06-02 Petition for rehearing

1.A petition for rehearing of a proceeding must be filed within fifteen days after a copy of the final order has been sent to the petitioning party by the commissioner.

2.The petition shall state concisely the alleged errors in the commissioner's decision or order and the specific grounds relied upon by the petitioner. If an order of the commissioner is sought to be vacated, reversed, or modified by reason of matters that have arisen since the hearing and decision or order, or by reason of a consequence that would result from the compliance therewith, the matters relied upon by the petitioner shall be set forth in the petition.

3.A petition for rehearing shall be served by the petitioner upon all parties to the proceeding or their attorneys of record.

4.Within ten days following the service of such petition, any party to the proceeding may file with the commissioner the party's answer thereto. Any party not filing such an answer is in default thereof and shall be deemed to have waived any objection to the granting of such petition.

5.The commissioner shall act on any petition for rehearing within ten days of receipt thereof and may, in the commissioner's discretion, hear oral argument on such petition.

History

• Law Implemented: NDCC 28-32-14

N.D. Admin. Code 60-02-06-03 Appeal

Any party to a proceeding conducted pursuant to this article or other provisions of North Dakota Century Code chapter 28-32 shall have the right of appeal, in the manner provided in North Dakota Century Code chapter 28-32, from any adverse ruling by the commissioner. Such appeal shall not be a trial de novo but shall be limited to the hearing record and to those issues specified in North Dakota Century Code section 28-32-19.

History

• Law Implemented: NDCC 28-32-19

Article 60-03 Pesticides

Chapter 60-03-01 Pesticide, Distribution, Handling, and Use

N.D. Admin. Code 60-03-01-01 Scope

N.D. Admin. Code 60-03-01-02 Definitions

As used in this chapter, the following words have the meaning given to them below, unless otherwise made inappropriate by use and context. Words not defined in this section have the meaning given to them in North Dakota Century Code chapter 4.1-33.

1."Agricultural plants" means any plants grown or maintained for commercial or research purposes.

2."Board" means the North Dakota pesticide control board created pursuant to North Dakota Century Code section 4.1-33-02.

3."Bulk pesticide" means any volume of pesticide that is intended to be repackaged, can be accurately measured, and can be transported or held in an individual container.

4."Bulk pesticide facility" means any place used to handle or store bulk pesticides.

5."Certification" means recognition by the board or its designee that a person is competent and thus authorized as a:

a.Certified private applicator to use a restricted use pesticide or supervise the use of restricted use herbicides or general pesticides in noncommercial settings.

b.Certified commercial applicator to use a restricted use pesticide or supervise the use of a general use pesticide in commercial settings.

c.Certified public applicator to use a restricted use pesticide or supervise the use of a general use pesticide in settings that do not require maintaining proof of financial responsibility.

d.Certified dealer to distribute restricted use pesticides.

6."Commissioner" means the North Dakota agriculture commissioner.

7."Compensation" means monetary payment for a specific service.

8."Competent" means qualified to perform functions associated with pesticide applications, the degree of competency required being directly related to the nature of the activity and the associated responsibility, including receiving proper training to know and understand the pesticide label, the product name and application rate, proper application techniques, recordkeeping requirements, worker protection standards, and emergency response and being able to identify workplace hazards.

9."Custom blend" means any diluted mixture of pesticide prepared by a dealer to the specifications of the end-user and not held in inventory.

10."End-use labeling" means the written, printed, or graphic matter on, attached to, or accompanying the pesticide or device or any of its containers or wrappers.

11."End-user" means the person who applies the pesticide.

12."FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act of 1947, as codified and amended at 7 U.S.C. 136-136y.

13."Fumigant pesticide" means a chemical compound whose pesticidal action occurs in a gaseous state.

14."General use pesticide" means any pesticide formulation which is not classified for restricted use.

15."Handling" means the mixing, loading, application, repackaging, storage, transportation, distribution, sale, purchase, or disposal of pesticides.

16."Mixture" means any pesticide combined with fertilizer, seed, or other substance.

17."Mobile container" means a container used to transport pesticides.

18."Operational area" means:

a.An area within a permanent containment area where pesticides are transferred, loaded, unloaded, mixed, repackaged, or refilled; or

b.An area where pesticides are rinsed from a container.

19."Permanent containment area" means:

a.An aboveground pad or dike constructed of impervious material, such as sealed concrete, stainless steel, or other material as approved by the registrant, unless the commissioner approves or requires material other than that approved by the registrant; or

b.An area that has a berm or curb or is otherwise designed to contain discharges that may occur while handling pesticides or pesticide-containing materials.

20."Pesticide-containing material" means:

a.Any container of a pesticide product that has not been triple-rinsed or the equivalent of triple-rinsed;

b.Any rinsate that is derived from a pesticide container, pesticide application equipment, or equipment washing;

c.Any material that is used to collect or contain excess or spilled pesticide or rinsate;

d.Any mixture of pesticide and diluent such as wash water, rinse water, or rainwater; or

e.Material that is generated as a result of contact with or utilization of a pesticide in an application, containment, recovery, reuse, or treatment system. The term does not include personal protective equipment that contains pesticide residue.

21."Pesticide-producing establishment" means any site where a pesticide is manufactured, packaged, repackaged, prepared, processed, labeled, relabeled, or held for distribution.

22."Registrant" means the person holding the pesticide product registration under North Dakota Century Code chapter 4.1-34.

23."Repackaging" means the transfer of a pesticide in an unaltered state from a container into a designated or dedicated refillable container for the purpose of distribution.

24."Spill kit" means a portable kit or other equipment that is designed to recover, minimize, contain, or absorb discharges of pesticides. A spill kit must include the following:

a.Enough absorbent material, or any combination of absorbent pads, pillows, or tubes sufficient to absorb five gallons [18.93 liters] of liquid;

b.One or more impervious containers with a combined minimum capacity of ten gallons [37.85 liters]; and

c.Adequate tools to collect and place pesticide-contaminated material in containers.

25."Under the direct supervision" means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified applicator who is responsible for the actions of that person and who is available if and when needed, even though the certified applicator is not physically present at the time and place the pesticide is applied. The certified applicator must be able to physically arrive at the location of a supervised applicator within thirty minutes.

26."Use of a pesticide" means mixing, filling application equipment, applying, storing, distributing, and disposing of a pesticide.

27."Use of a pesticide in a manner inconsistent with its labeling" means using any pesticide in a manner that is not permitted by the labeling, except that the term does not apply to any of the following:

a.Applying a pesticide at any dosage, concentration, or frequency that is less than that specified on the label, unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency.

b.Applying a pesticide against any target pest that is not specified on the labeling if the application is to the crop, animal, or site that is specified on the label.

c.Employing any method of application that is not prohibited by the labeling unless the label specifically states that the product may be applied only by the methods specified on the labeling.

d.Mixing a pesticide or pesticides with a fertilizer when the labeling does not prohibit such mixture.

e.Any use of a pesticide that is in compliance with section 5, 18, or 24 of the Federal Insecticide, Fungicide, and Rodenticide Act of 1947 [Pub. L. 104-170; Stat. 7 U.S.C. 136 et seq.].

January 1, 2013; April 1, 2026.

History

• History: Amended effective April 15, 1985; October 1, 1990; July 1, 1992; March 1, 2003; July 1, 2004;
• Law Implemented: NDCC 4.1-33-03

N.D. Admin. Code 60-03-01-03 Restricted use pesticides

N.D. Admin. Code 60-03-01-04 Prohibited pesticides. [Reserved]

N.D. Admin. Code 60-03-01-05 Classes of commercial applicator, public applicator, and dealer certifications

A commercial applicator, public applicator, or dealer certificate may be issued to an individual who passes a core certification examination and who has obtained certification in one or more of the following classes:

1.Agricultural pest control - Crop. The class authorizes the use of pesticides in production of agricultural commodities, including grains, vegetables, small fruits, tree fruits, peanuts, tree nuts, tobacco, cotton, feed and forage crops including grasslands, and noncrop agricultural lands.

2.Agricultural pest control - Livestock. The class authorizes the use of pesticides on animals or to places on or in which animals are confined. Certification in the class alone is not sufficient to authorize the purchase or use of sodium cyanide or sodium fluoroacetate products for predator control.

3.Forest pest control. The class authorizes the use of pesticides in forests, forest nurseries, and forest seed production.

4.Ornamental and turf pest control. The class authorizes the use of pesticides to control pests in the maintenance and production of ornamental plants and turf.

5.Seed treatment. The class authorizes the use of pesticides on seeds in seed treatment facilities.

6.Aquatic pest control. The class authorizes the use of pesticides purposefully applied to standing or running water, excluding applicators engaged in public health related activities included in subsection 9.

7.Right-of-way pest control. The class authorizes the use of pesticides in the maintenance of roadsides, powerlines, pipelines, and railway rights-of-way, and similar areas.

8.Industrial, institutional, and structural pest control. The class authorizes the use of pesticides in, on, or around the following:

a.Food handling establishments, packing houses, and food-processing facilities;

b.Human dwellings;

c.Institutions, such as schools, hospitals, and prisons; and

d.Industrial establishments, including manufacturing facilities, warehouses, grain elevators, and any other structures and adjacent areas, public or private, for the protection of stored, processed, or manufactured products.

9.Public health pest control. The class authorizes the use of pesticides by state, tribal, federal or other governmental employees and contractors in government-sponsored public health programs for the management and control of pests having medical and public health importance.

10.Demonstration and research. The class authorizes the use of pesticides by individuals who demonstrate to the public the proper use and techniques of application of such demonstration and to persons conducting field research with pesticides. The individuals include:

a.Extension specialists and county agents;

b.Commercial representatives demonstrating pesticide products;

c.Individuals demonstrating application or pest control methods used in public or private programs; and

d.State, federal, commercial, and other persons conducting field research on or involving

11.Soil fumigation. The class authorizes the use of pesticides to fumigate soil.

12.Nonsoil fumigation. The class authorizes the use of pesticides to fumigate anything other than soil.

13.Aerial pest control. The class authorizes the use of pesticides applied by fixed or rotary wing aircraft.

14.Wood preservatives. The class authorizes the use of pesticides intended to preserve lumber products. Holders of the class shall demonstrate practical knowledge of the types of wood that require chemical protection against pests and other factors of decay. They must demonstrate a practical knowledge of wood preservatives being used for preserving and protecting wood. posts, treated wood products, and various lumber products. They also must demonstrate knowledge of the hazards associated with handling, treating, storage, and transport of treated wood products. They must demonstrate a knowledge of the concept and methods for sealing treated wood to minimize exposure.

15.Vertebrate. The class authorizes the use of pesticides intended to control vertebrate pests, such as rodents, certain predators, and bats not in or around structures. The class does not authorize the use of sodium cyanide and sodium fluoroacetates for predator control. Holders of this class shall demonstrate practical knowledge of pest vertebrate life cycles, habitat, and damage symptoms, including primarily rodent and predator problem vertebrate animals. The applicator shall demonstrate a practical knowledge of pesticide formulations and application techniques that avoid contamination of the habitat of nontarget animals, and avoid exposure to people and animals. Since pest vertebrate control usually involves outdoor applications, applicators must also demonstrate practical knowledge of the environmental conditions particularly related to this activity. Applicators shall demonstrate comprehension of all laws and regulations applicable to the pesticides use on vertebrate animals, including the United States fish and wildlife service requirements for protecting endangered species.

16.Sewer root control. The class authorizes the use of pesticides intended to control tree or other plant roots infesting sewer systems. Holders of the class shall exhibit knowledge of root problems in sewers, root growth biology, pesticides used to control roots in sewers, safe handling procedures, transporting pesticides, storing pesticides, equipment types, calibration procedures, pesticide mixing, safety procedures, personal protective equipment, and application concerns such as the effect on wastewater treatment plants.

17.Greenhouse. The class authorizes the use of pesticides intended for greenhouses. Holders of this class shall demonstrate practical knowledge of pests, pesticide problems, application of a pesticides in confined areas associated with the management of a greenhouse, and distribution to the public of any treated plant materials. Because of frequent visitation by humans, applicators in this category shall demonstrate safe and practical knowledge of application methods which minimizes or prevents hazards to customers and employees.

August 1, 2000; March 1, 2003; January 1, 2013; April 1, 2026.

1.A commercial applicator, public applicator, or dealer certificate may be issued only to persons who:

a.Are eighteen years of age or older;

b.Complete an application on forms and in the manner required by the board or its designee;

c.Demonstrate competence in the use of pesticides as described in the core competencies contained in title 40, Code of Federal Regulations found in section 171.103 as they existed on January 4, 2017; and

d.Pay the costs of training and education and any other fees.

2.Commercial applicator, public applicator, and dealer certificates shall expire on April first following the third anniversary of the year of certification or recertification. A person holding these certificates may be recertified by attending a board-approved training or by passing a board-approved examination, or both if required by the board, at least every third year. All board-approved examinations and trainings must comply with title 40, Code of Federal Regulations found in section 171.107 as they existed on January 4, 2017.

3.A person holding a commercial applicator, public applicator, or dealer certificate who is unable to complete recertification requirements due to active duty military service may apply for an extension of the person's certification status for a time period not to extend beyond April first of the year following the person's return from active duty. The application must be in writing and accompanied by a certified copy of military orders or other trustworthy proof showing the date on which active duty military service began and ended. The board has discretion whether to grant the application.

4.A person holding an aerial pest control certificate shall attend a professional aerial applicators' support system (PAASS) program or other board-approved program at least once every three years. Proof of attendance at a PAASS program or other board-approved program must be received by the North Dakota state university extension service before recertification is issued.

5.Any person who fails an examination may retake it after three or more days.

6.All commercial and public applicators must be certified, under section 60-03-01-05, in the class that applies to how they use pesticides.

7.All dealers must be certified, under section 60-03-01-05, in the class that applies to the pesticides they distribute.

8.If a pesticide is labeled for more than one target pest, a dealer only needs to be certified in one of the applicable classes.

9.The board designates the North Dakota state university extension service to provide training, administer testing, and issue certifications under this section.

1.A private applicator certification shall be issued only to persons who:

a.Are eighteen years of age or older;

b.Complete an application on forms and in the manner required by the board or its designee;

c.Demonstrate competence in the use of pesticides as described in the core competencies contained in title 40, Code of Federal Regulations found in section 171.105 as they existed on January 4, 2017; and

d.Pay the costs of training and education and any other fees.

2.The board designates the North Dakota state university extension service to provide training, administer testing, and issue certifications under this section. An individual seeking certification as a private applicator may demonstrate competence by:

a.Attending a board-approved educational seminar, signing of a certificate of attendance, and passing a written examination administered by the board or its designee;

b.Completing a course of self-instruction and passing a written examination administered by the board or its designee; or

c.Passing the dealer, public applicator, or commercial applicator certification examination and submitting the passing grade to the board or its designee.

3.Certified private applicators purchasing, storing, or applying restricted use fumigant pesticides intended for use on agricultural commodities and in grain storage structures shall pass a board-approved commodity and structural fumigation examination. The fee for the private fumigation certification is set by the North Dakota state university extension service.

4.Certified private applicators purchasing, storing, or applying restricted use fumigant pesticides for burrowing pest control shall pass a board-approved vertebrate examination. The fee for the private vertebrate certification will be set by the North Dakota state university extension service.

5.Certified private applicators purchasing, storing, or applying restricted use soil fumigants shall complete the soil fumigation class requirements for commercial applicators and public applicators. The fee for the certification is set by the North Dakota state university extension service.

6.Certified private applicators applying restricted use pesticides applied by fixed or rotary wing aircraft shall complete the aerial pest control class requirements for commercial applicators and public applicators. The fee for the certification is set by the North Dakota state university extension service.

7.A certified private applicator must be recertified by attending a board-approved seminar or by passing a board-approved examination, or both if required by the board, at least every third year. All board approved examinations and trainings must comply with title 40, Code of Federal Regulations found in section 171.107 as they existed on January 4, 2017.

8.A person holding a private applicator certificate who is unable to complete recertification requirements due to active duty military service may apply for an extension of the person's certification status for a time period not to extend beyond April first of the year following the person's return from active duty. The application must be in writing and accompanied by a certified copy of military orders or other trustworthy proof showing the date on which active duty military service began and ended. The board has discretion whether to grant the application.

9.Any person who fails an examination may retake such examination after three or more days.

No more than three examinations may be given before requiring attendance at another initial training course.

10.The board designates the North Dakota state university extension service to provide training, administer testing, and issue certifications under this section.

1.An individual who seeks certification under section 60-03-01-05.1 or 60-03-01-05.2 may not, while taking a written examination, give or receive information or assistance to or from any other person, utilize the assistance of any electronic device capable of storing data, or consult any written materials unless expressly authorized in advance by the board or its designee.

The written examination and any other writings made during the examination period must be provided to the board or its designee at the end of the examination period.

2.Cheating by an applicant in applying for or taking the examination may result in the invalidating of examination grades, expulsion from the examination room, disqualification from taking the examination for a specified period of time, and other penalties the board may impose. When the board believes that cheating has occurred, the applicant or certified individual must be given notice and an opportunity to be heard pursuant to North Dakota Century Code chapter 28-32 before imposing any penalties.

1.The board, or its designee, may refuse to issue a pesticide certification, including an applicant for reciprocal certification under North Dakota Century Code section 4.1-34-15, to an individual who has had that individual's certification suspended or revoked in the past three years in any state or province or to an individual that has committed a documented violation of FIFRA or the pesticide regulations of any state, provincial, or tribal authority within the last three years.

2.The board, or its designee, may require an additional demonstration of applicator qualification if the applicator has had a license suspended or revoked or has otherwise had a history of pesticide violations.

History

• History: Amended effective February 1, 1982; October 1, 1990; November 1,1991; March 1, 1996;
• Law Implemented: NDCC 4.1-33-03, 4.1-33-06, 4.1-33-07, 4.1-33-11, 4.1-33-12 60-03-01-05.1. Commercial applicator, public applicator, and dealer certifications.
• History: Effective March 1, 2003; amended effective July 1, 2004; January 1, 2013; April 1, 2026.
• Law Implemented: NDCC 4.1-33-06, 4.1-33-07, 4.1-33-08, 4.1-33-11 60-03-01-05.2. Private applicator certification.
• History: Effective March 1, 2003; amended effective July 1, 2004; January 1, 2013; April 1, 2026.
• Law Implemented: NDCC 4.1-33-06, 4.1-33-12 60-03-01-05.3. Pesticide certification examination - Cheating.
• History: Effective July 1, 2004; amended effective January 1, 2013.
• Law Implemented: NDCC 4.1-33-06, 4.1-33-07, 4.1-33-11, 4.1-33-12 60-03-01-05.4. Certification denial.
• History: Effective July 1, 2004; amended effective January 1, 2013.
• Law Implemented: NDCC 4.1-33-06, 4.1-33-07, 4.1-33-11, 4.1-33-12, 4.1-33-15

N.D. Admin. Code 60-03-01-06 Pesticide mixing, filling, and application - Storage - Transportation - Disposal

1.Mixing, filling, and application.

a.All pesticides must be used in accordance with the labeling.

b.Pesticide applications must be made in a manner that prevents off-target discharges of

c.Pesticide application equipment or equipment used to fill application equipment that is designed to draw water from surface water must have a properly functioning antisiphoning device attached to the inlet hose.

d.Applications must not occur when the atmospheric conditions favor the off-target drift of pesticides or prevent the proper deposition of pesticides to the target area.

e.Pesticides must be applied in a manner that minimizes exposure to animals. Unless permitted by the labeling, an applicator shall take all reasonable precautions to prevent a pesticide from being applied if unprotected persons are present within the application site or are present in adjacent areas when off-target drift may occur.

f.Pesticide applicators and persons assisting with an application shall follow all safety precautions as specified on the labeling.

g.All equipment used in pesticide mixing, filling application equipment, and application must be operationally sound and properly calibrated to prevent adverse effects on the environment.

h.Any commercial or public applicator who mixes, fills application equipment, or otherwise uses pesticides shall have immediate access to a spill kit at the filling site. The spill kit requirement does not apply to a person using only ready-to-use pesticides.

i.The labeling, a legible reproduction of the labeling, or a specimen labeling of the pesticides being applied must be at the application site during the application. Aerial applicators must have the labeling available at the filling site.

2.Storage.

a.All pesticides, except bulk pesticides, must be stored in their original container and in accordance with labeling recommendations. All labeling of stored pesticides must be plainly visible. All pesticide containers must have a proper label affixed to them.

b.All pesticides must be stored in dry, well-ventilated spaces, and in a manner that will not endanger humans, animals, or the environment, nor contaminate food, feed, seed, or any goods intended for consumer distribution, through a release or escape of pesticide products.

c.If a storage area contains a floor drain, it must be sealed or self-contained.

d.Pesticide storage areas containing products intended for distribution or use by commercial or public applicators and dealers must be marked at all entrances. Storage areas containing only hard surface disinfectants are exempt from this requirement.

e.Label-specific safety equipment for all pesticides stored must be available at the immediate storage site.

f.Stored pesticides must be secured in a manner that prevents children, unauthorized persons, or animals from gaining entry or access to them. Security of a pesticide storage area is achieved when normal points of access are closed and locked while unattended and the structural integrity of the area prevents access by other than normal means.

3.Transportation.

a.All pesticides, except bulk pesticides, must be transported in their original containers. All pesticides must be transported in a secure manner to avoid breakage of containers, spills, or any other manner of contamination.

b.Pesticides must not be transported with foodstuffs, feed, or any other product or material so as to pose a hazard to humans, animals, or the environment.

c.Pesticides in an unattended transport vehicle must be secured to prevent children, unauthorized persons, or animals from gaining access.

d.Equipment contaminated while transporting pesticides must be cleaned and decontaminated prior to any other use.

4.Disposal.

a.Empty pesticide containers must be stored in accordance with label recommendations and in a manner that will not endanger humans, animals, or the environment.

b.Empty nonreturnable pesticide containers must be triple-rinsed or the equivalent on the day of their use. Secondary use of such containers that would endanger humans, animals, or the environment is prohibited.

c.Pesticide containers must be disposed of in accordance with labeling directions and in a manner that will not endanger humans, animals, or the environment.

March 1, 2003; July 1, 2004; January 1, 2013.

History

• History: Amended effective April 15, 1985; October 1, 1990; July 1, 1992; May 1, 1994; March 1, 1996;
• Law Implemented: NDCC 4.1-33-03, 4.1-33-17

N.D. Admin. Code 60-03-01-07 Recordkeeping - Commercial, public, and private applicators and dealers

1.Every pesticide dealer shall keep separate, accurate, and complete records of all of the dealer's purchases and sales of restricted use pesticides and all pesticides used under

section 18 (emergency exemption) and section 24-c (special local needs) of FIFRA. Dealers shall positively identify all purchasers of restricted use pesticides using any trustworthy proof of identification. If a restricted use pesticide is to be delivered to a person other than the certified applicator making the purchase, the dealer must have a completed and signed authorization to receive restricted use pesticides form on file for the purchaser for the current year. The records must include the following:

a.For each pesticide purchased:

(1)Dealer's name and address.

(2)Pesticide trade name and environmental protection agency registration number, if available.

(3)Quantity of pesticide.

(4)Date pesticide was shipped or received.

(5)Name of the person from whom the pesticide was received.

b.For each pesticide sold:

(1)Dealer's name and address and identification of the person making the sale.

(2)Name, address, certification number, and signature of the certified applicator making the purchase.

(3)Date of sale.

(4)Trade name and environmental protection agency registration number, if available.

(5)Quantity of pesticide.

(6)Accurate inventory by product.

(7)Certification class and expiration date of the certification.

(8)Intended application site or intended crop for all pesticides used under section 18 of FIFRA.

(9)All purchasers of restricted use pesticide products, which must be positively identified by the dealer.

(10)The state, tribe, or federal agency that issued the certification document.

2.Commercial and public applicators shall keep a record of all pesticide applications and of the use or disposal of all pesticide rinsate. The record must be made within twenty-four hours of the pesticide application or the use or disposal of the pesticide rinsate. A copy of the record must be provided to the applicator's client as soon as possible, not to exceed thirty days, unless the applicator has on file a signed letter from the client waiving the right to receive a copy. The record must include for each application:

a.Name and address of the person for whom the pesticide was applied.

b.Legal description of the land, specific crops, commodities, and total acreage [hectarage] or other common identifying unit of measure, grain bin identification, railcar number, or other description of where the pesticide was applied.

c.Pest or pests controlled.

d.Start and completion time of the pesticide application (month, day, year, and hour).

e.Person who supplied the pesticide that was applied, if other than the person making the application or that person's employer.

f.Specific trade name and environmental protection agency registration number of the pesticide that was applied.

g.Direction and estimated velocity of the wind and the estimated temperature of the outdoor air at the time the pesticide was applied. This requirement shall not apply to seed treatment applications or if bait is used to attract the pest or pests or if the application is made indoors.

h.Amount of pesticide used, including:

(1)Pounds [kilograms] or gallons [liters] per acre [.40 hectare] of formulated product.

(2)Pounds [kilograms] or gallons [liters] of tank mix applied per acre [.40 hectare].

i.Specific crops, commodities, and total acreage [hectarage] or other common identifying unit of measure to which the pesticide was applied.

j.Description of equipment used in application.

k.Signature and number of applicator, if any.

l.Right-of-way applicators must record weather conditions and geographic location in two-hour increments.

3.Private applicators shall keep a record of all restricted use pesticide applications. The record must be made within twenty-four hours of the pesticide application or the use or disposal of the pesticide rinsate. The record must include for each application:

a.Legal description of the land, grain bin identification, or other description of where the pesticide was applied.

b.State and completion time of the pesticide application (month, day, year, and hour).

c.Specific trade name and environmental protection agency registration number of the restricted use pesticide that was applied.

d.Total amount of pesticide used, including:

(1)Pounds [kilograms] or gallons [liters] per acre [.40 hectare] of formulated product.

(2)Pounds [kilograms] or gallons [liters] of tank mix applied per acre [.40 hectare].

e.Specific crops, commodities, and total acreage [hectarage] or other common identifying unit of measure to which the pesticide was applied.

f.Signature and certification number of applicator, if any.

History

• History: Amended effective October 1, 1990; May 1, 1994; March 1, 1996; March 1, 2003; July 1, 2004; January 1, 2013; April 1, 2026.
• Law Implemented: NDCC 4.1-33-03, 4.1-33-14 60-03-01-07.1. Report of loss records.

N.D. Admin. Code 60-03-01-08 Unlawful acts

Repealed effective March 1, 2003.

N.D. Admin. Code 60-03-01-09 Reports of pesticide incidents

Any person who is involved in or causes a pesticide incident that could result in adverse effects to humans, animals, or the environment must report it to the commissioner. The report must be made within twenty-four hours after the incident. The report may be filed by letter or electronic mail at the address or number identified in subsection 4 of section 60-01-01-01. A telephone report is acceptable if followed within twenty-four hours by a letter or electronic mail report. The report must contain:

1.The specific trade name of the pesticide.

2.The amount of pesticide or tank mix or both.

3.The location of the incident.

4.The time of the incident (month, day, year, and hour).

5.The direction and estimated velocity of the wind and estimated temperature at the time of the incident, if outdoors.

6.Actions taken to remedy the adverse effects on humans, animals, and the environment.

7.The name of and contact information for the person making the report.

History

• History: Effective February 1, 1982; amended effective March 1, 1996; March 1, 2003; January 1, 2013.
• Law Implemented: NDCC 4.1-33-03

N.D. Admin. Code 60-03-01-10 Identifying information for pesticide mixtures, custom blends, and bulk containers

1.Any person who produces a mixture of any quantity of pesticide, to be applied by another person must have an environmental protection agency establishment number.

The person making the mixture must supply the person applying the mixture with end-use labeling for each pesticide in the mixture. The end-use labeling must include the environmental protection agency establishment number of the facility that supplied the mixture.

2.The environmental protection agency establishment number of the facility that supplied the pesticide, end-use labeling, and the business name and physical address of the facility where the bulk storage container resides must be attached to bulk pesticide storage containers.

3.The environmental protection agency establishment number of the facility that supplied the pesticide, end-use labeling, and quantity of pesticide must accompany or be attached to the mobile bulk pesticide container.

4.Any person who custom blends any quantity of pesticide to be applied by another person must ensure that end-use labeling for all pesticides in the blend accompanies the blend to the point where the blend leaves that person's control. No environmental protection agency establishment number is required for the blending facilities.

January 1, 1997; March 1, 2003; January 1, 2013.

History

• History: Effective April 15, 1985; amended effective October 1, 1990; July 1, 1992; May 1, 1994;

N.D. Admin. Code 60-03-01-11 Storage and transportation of bulk pesticides

1.Transporting and storing bulk pesticides must comply with the manufacturer's requirements.

2.Transporting bulk pesticides must comply with all applicable state and United States department of transportation rules and regulations.

3.A bulk pesticide storage container must be made of materials approved by the registrant and so constructed to be compatible with the pesticide stored and the conditions of storage, including any specifications that may appear on the pesticide label and labeling. The commissioner may approve or require materials other than those approved by the registrant.

4.A bulk storage container and loading areas must be constructed and located on a site in a manner so that pesticides will not contaminate the environment, such as streams and water supplies.

5.A permanent bulk storage container must be equipped with a locking withdrawal valve or must be stored in a secure locked area. The valves or storage area must be locked during nonbusiness hours or while unattended.

6.A bulk pesticide storage container that is going to be refilled with a different pesticide must be cleaned and rinsed according to both the facility's and manufacturer's agreed-upon written instructions and all former labeling must be removed.

The environmental protection agency pesticide container regulations effective as of August 17, 2011, as provided under title 40, Code of Federal Regulations, part 165 subparts A, B, C, and D, are hereby adopted by the board and incorporated by reference and made part of this title. Copies of title 40, Code of Federal Regulations, part 165 subparts A, B, C, and D, are available upon request by contacting the board at its inquiry address listed in section 60-01-01-01.

1.An outdoor permanent containment area must be constructed of sufficient size and material so as to contain any spilled or discharged materials. Minimum containment capacity must be one hundred twenty-five percent of the single largest bulk pesticide storage container, or sufficient to recover and contain a volume of a four-inch rainfall, whichever is greater.

2.An indoor permanent containment area located within an enclosed structure must be constructed of sufficient size and material to contain any spilled or discharged materials, and approved by the pesticide registrant. Minimum containment capacity must be one hundred ten percent of the single largest bulk pesticide storage container.

3.A permanent containment area must not have a drain that exits the containment area.

4.A permanent containment area must be constructed to provide protection of appurtenances (hoses, pumps, valves, pipes, etc.) and stationary pesticide containers against damage from operating personnel and moving equipment.

5.Appurtenances, discharge outlets, or gravity drains must not be configured through the base or wall of the permanent containment structure, except for direct connections between adjacent structures. The configuration of appurtenances must allow easy observation of discharges.

6.Inspections of permanent containment areas, bulk pesticide containers within containment areas, and appurtenances must be completed at least monthly during periods when pesticides are being stored or dispensed.

7.Initial repairs on any damage, cracks, or gaps in permanent containment areas and bulk pesticide containers must begin within twenty-four hours from when the problem is noticed.

Completed repairs using materials approved by the registrant of the pesticides stored in the containment area or bulk pesticide container must be made within a reasonable time, taking into account factors such as the weather and the availability of cleanup materials, trained staff, and equipment. Additional pesticides must not be stored in the permanent containment area or bulk pesticide container until repairs are completed.

8.Records of inspection and maintenance for permanent containment areas and for bulk pesticide containers and their appurtenances must be kept for three years and must including the following:

a.Name of the individual conducting the inspection or maintenance;

b.Date the inspection or maintenance was conducted;

c.A description of the conditions found during the inspection; and

d.Specific maintenance performed.

History

• History: Effective March 1, 2003; amended effective July 1, 2004; January 1, 2013.
• Law Implemented: NDCC 4.1-33-03, 4.1-33-13 60-03-01-11.1. Adoption of the environmental protection agency pesticide container regulations.
• History: Effective January 1, 2013.
• Law Implemented: NDCC 4.1-33-03, 4.1-33-13 60-03-01-11.2. Permanent containment area - Construction - Inspection - Maintenance - Recordkeeping requirements.
• History: Effective January 1, 2013.
• Law Implemented: NDCC 4.1-33-03, 4.1-33-08

N.D. Admin. Code 60-03-01-12 Repackaging requirements for bulk pesticides

1.A person must obtain a repackaging agreement from the registrant prior to repackaging bulk

2.Repackaging must be performed at a facility with an environmental protection agency establishment number.

3.Repackaging must use meters or scales, or both, compatible with the pesticide being repackaged.

4.Repackaging must be done in a permanent containment area with a primary shutoff valve or switch within immediate reach of the person who is repackaging.

5.The repackaging area must be kept clean of clutter and not used as a storage area for items not immediately used for repackaging.

6.A spill kit must be located within fifty feet of an operational area.

7.During repackaging, clean up of any discharged pesticide or pesticide-containing materials must be performed immediately after the occurrence and reported according to local, state, and federal guidelines.

8.During repackaging, a discharged pesticide or pesticide-containing material must be contained by the permanent containment area, mitigated using a spill kit, or drained, pumped, or transferred to an additional impermeable, aboveground holding tank or reservoir until utilized or disposed of in compliance with applicable local, state, and federal laws. The holding tank or reservoir must be suitably constructed to prevent the release of pesticides or pesticide-containing materials to the environment.

History

• History: Effective March 1, 2003; amended effective January 1, 2013.

N.D. Admin. Code 60-03-01-13 Prohibitions

No person may:

1.Repackaging into a container unless the container is capable of holding, in undivided quantities, the capacity as specified by the environmental protection agency.

2.Hold in inventory a mixture or custom blend of any quantity of pesticide, but rather, after producing a mixture or custom blend, it must be promptly delivered to the person requesting it.

3.Place bulk pesticide storage containers underground.

4.Repackage into improperly labeled containers.

5.Repackage into containers not designated as refillable by the registrant and container manufacturer.

History

• History: Effective March 1, 2003; amended effective January 1, 2013.

Chapter 60-03-02 Minor Use Pesticide Fund [Repealed]

N.D. Admin. Code 60-03-02 Minor Use Pesticide Fund [Repealed]

CHAPTER 60-03-02

MINOR USE PESTICIDE FUND [Repealed effective December 1, 2001]

Determined repealed by the office of the Legislative Council pursuant to North Dakota Century Code

section 28-32-06 because the authority for adoption of the rules was transferred to another agency by S.L. 2001, chps. 9 and 75.

Chapter 60-03-03 Worker Protection Standard

N.D. Admin. Code 60-03-03-01 Scope and purpose

This chapter contains a standard designed to reduce the risks of illness or injury resulting from workers' and handlers' occupational exposures to pesticides used in the production of agricultural plants on farms or in nurseries, greenhouses, and forests and also from the accidental exposure of workers and other persons to such pesticides. It requires workplace practices designed to reduce or eliminate exposure to pesticides and establishes procedures for responding to exposure-related emergencies.

History

• History: Effective July 1, 2004.

N.D. Admin. Code 60-03-03-02 Definitions

Any term used in this chapter has the same meaning as defined in title 40, Code of Federal Regulations, section 170.3, unless defined in North Dakota Century Code chapter 4.1-33, in which case the North Dakota Century Code definition governs.

History

• History: Effective July 1, 2004.

N.D. Admin. Code 60-03-03-03 Adoption of worker protection standard

The environmental protection agency worker protection standard regulations effective as of January 1, 2016, as provided under title 40, Code of Federal Regulations, part 170, are hereby adopted by the board and incorporated by reference and made a part of this title. Copies of title 40, Code of Federal Regulations, part 170, are available upon request by contacting the board at its inquiry address listed in section 60-01-01-01.

History

• History: Effective July 1, 2004; amended effective January 1, 2013; January 1, 2022.