§149A-2  Definitions.  As used in thischapter, unless the context clearly requires otherwise:

"Active ingredient" means:

(1)  In the case of a pesticide other than a plantregulator, defoliant, or desiccant, an ingredient which will prevent, destroy,repel, or mitigate any pest;

(2)  In the case of a plant regulator, an ingredientwhich, through physiological action, will accelerate or retard the rate ofgrowth or maturation or otherwise alter the behavior of ornamental or cropplants or the produce thereof;

(3)  In the case of a defoliant, an ingredient whichwill cause the leaves or foliage to drop from a plant; and

(4)  In the case of a desiccant, an ingredient whichwill artificially accelerate the drying of plant tissues.

"Adulterated" means any pesticide ifits strength or purity falls below the professed standard of quality asexpressed on its labeling under which it is sold, or if any substance has beensubstituted wholly or in part for the pesticide, or if any valuable constituentof the pesticide has been wholly or in part abstracted.

"Animal" means all vertebrate andinvertebrate species, including but not limited to humans and other mammals,birds, fish, and shellfish.

"Board" means board of agriculture.

"Certified pesticide applicator" meansany individual who is certified under section 149A-33(1) as authorized to useor supervise the use of any pesticide which is classified for restricted use.

"Chairperson" means chairperson ofthe board of agriculture.

"Commercial pesticide applicator" meansany certified pesticide applicator, whether or not the applicator is a privatepesticide applicator with respect to some uses, who uses or supervises the useof any pesticide which is classified for restricted use for any purpose or onany property other than as provided by section 149A-2.

"Defoliant" means any substance ormixture of substances intended for causing the leaves or foliage to drop from aplant, causing or without causing abscission.

"Department" means department ofagriculture.

"Desiccant" means any substance ormixture of substances intended for artificially accelerating the drying ofplant tissues.

"Device" means any instrument orcontrivance, other than a firearm, which is intended for trapping, destroying,repelling, or mitigating any pest or any form of plant or animal life (otherthan humans and other than bacteria, viruses, or other microorganisms on orliving in humans or other animals); but not including equipment used forapplication of pesticides when sold separately therefrom.

"Distribute or sell" means todistribute, sell, offer for sale, hold for distribution, hold for sale, holdfor shipment, ship, deliver for shipment, release for shipment, or receive anddeliver or offer to deliver; provided that the term does not include theholding or application of registered pesticides or the use of dilutions ofregistered pesticides by any applicator who provides a service of controllingpests without delivering any unapplied pesticide to any person so served.

"Environment" includes water, air,land, and all plants and humans and other animals living therein, and theinterrelationships which exist among these.

"EPA" means the United StatesEnvironmental Protection Agency.

"FIFRA" means the FederalInsecticide, Fungicide and Rodenticide Act, as amended.

"Fungi" means allnonchlorophyll-bearing thallophytes including rusts, smuts, mildews, molds,yeasts, and bacteria, except those on or living in humans or other animals andthose on or in processed foods, beverages, or pharmaceuticals.

"General use pesticide" means apesticide other than one designated as restricted pesticide.

"Imminent hazard" means a situationwhich exists when the continued use of a pesticide during the time required fora cancellation proceeding would likely result in unreasonable adverse effectson the environment or will involve unreasonable hazard to the survival of aspecies declared endangered by the Secretary of the Interior under theEndangered Species Act.

"Inert ingredient" means aningredient which is not an active ingredient.

"Ingredient statement" means:

(1)  A statement of the name and percentage of eachactive ingredient, together with the total percentage of the inert ingredients,in the pesticide; and

(2)  In case the pesticide contains arsenic in anyform, a statement of the percentages of total and water soluble arsenic, eachcalculated as elemental arsenic.

"Insect" means invertebrate animalsbelonging to the class insecta, including beetles, bugs, bees, flies, and otherallied classes of arthropods, including spiders, mites, ticks, centipedes, andwood lice.

"Integrated pest management" means asustainable approach to managing pests by combining biological, cultural,physical, and chemical tools in a way that minimizes economic, health, andenvironmental risks.

"Label" means the written, printed,or graphic matter on or attached to the pesticide or device or any of itscontainers or wrappers.

"Labeling" means all labels and otherwritten, printed, or graphic matter accompanying the pesticide or device at anytime or to which reference is made on the label or in literature accompanyingthe pesticide or device, except to current official publications of the EPA,the United States Departments of Agriculture and the Interior, the United StatesDepartment of Health and Human Services, state experiment stations, stateagriculture colleges, or other similar federal or state institutions oragencies authorized by law to conduct research in the field of pesticides.

"License" means the process of beingallowed to register a pesticide product pursuant to provisions of thischapter.  "Licensee" means a person who has been licensed to registera product pursuant to provisions of this chapter.

"Misbranded" includes any of thefollowing:

(1)  The labeling of the pesticide or device bears anystatement, design, or graphic representation relative thereto or to itsingredients or functions which is false or misleading in any particular;

(2)  The pesticide is contained in a package or othercontainer or wrapping which does not conform to the standards established byfederal law;

(3)  The pesticide is an imitation or is offered forsale under the name of another pesticide;

(4)  The label does not bear the federal registrationnumber assigned to each establishment in which it was produced;

(5)  Any word, statement, or other informationrequired by or under authority of the federal law to appear on the label orlabeling is not prominently placed thereon with such conspicuousness (ascompared with other words, statements, designs, or graphic matter in thelabeling) and in terms to render it likely to be read and understood by theordinary individual under customary conditions of purchase and use;

(6)  The labeling accompanying the pesticide does notcontain directions for use which are necessary for effecting the purpose forwhich the product is intended and if complied with, together with anyrequirements imposed under FIFRA are adequate to protect health and theenvironment;

(7)  The label does not contain a warning or cautionstatement which may be necessary and if complied with, together with anyrequirements imposed under federal law, is adequate to protect health and theenvironment;

(8)  The label does not bear an ingredient statementon that part of the immediate container (and on the outside container orwrapper of the retail package, if there be one, through which the ingredientstatement on the immediate container cannot be clearly read) which is presentedor displayed under customary conditions of purchase, except that a pesticide isnot misbranded under this section if:

(A)  The size or form of the immediatecontainer, or the outside container or wrapper of the retail package, makes itimpracticable to place the ingredient statement on the part which is presentedor displayed under customary conditions of purchase; and

(B)  The ingredient statement appearsprominently on another part of the immediate container, or outside container orwrapper, permitted by the department;

(9)  The labeling does not contain a statement of theuse classification under which the product is registered;

(10)  There is not affixed to its container, and to theoutside container or wrapper of the retail package, if there be one, throughwhich the required information on the immediate container cannot be clearlyread, a label bearing:

(A)  The name and address of the producer,registrant, or person for whom produced;

(B)  The name, brand, or trademark under whichthe pesticide is sold;

(C)  The net weight or measure of the content;provided that the EPA Administrator may permit reasonable variations; and

(D)  When required by federal regulations toeffectuate the purposes of this law, the registration number assigned to thepesticide under federal law and the use classification; and

(11)  The pesticide contains any substance orsubstances in quantities highly toxic to humans, unless the label shall bear,in addition to any other matter required by this law:

(A)  The skull and crossbones;

(B)  The word "poison" prominently inred on a background of distinctly contrasting color; and

(C)  A statement of a practical treatment(first aid or otherwise) in case of poisoning by the pesticide.

"Nematode" means invertebrate animalsof the phylum nemathelminthes and the class nematoda, including unsegmentedround worms with elongated fusiform or sac-like bodies covered with cuticle,and inhabiting soil, water, plants, or plant parts.

"Nonrestricted use pesticide" means apesticide other than one designated as restricted use pesticide.

"Person" means any individual, firm,corporation, association, or partnership or any organized group of personswhether incorporated or not.

"Pest" means any insect, rodent,nematode, fungus, weed, or any other form of terrestrial or aquatic plant oranimal life or virus, bacterium, or any other microorganism, except viruses,bacterium, or any other microorganisms on or in living humans or other livinganimals, which the Administrator of the United States Environmental ProtectionAgency determines to be a pest pursuant to the [Federal Insecticide, Fungicideand Rodenticide Act].

"Pest control operator" means acommercial pesticide applicator, who is required to possess a valid license forpest control under chapter 460J.

"Pesticide" means:

(1)  Any substance or mixture of substances intendedfor preventing, destroying, repelling, or mitigating any pest; and

(2)  Any substance or mixture of substances intendedfor use as a plant regulator, defoliant, or desiccant.

"Plant regulator" means any substanceor mixture of substances intended, through physiological action, foraccelerating or retarding the rate of growth or maturation or for otherwisealtering the behavior of plants or the produce thereof, but does not includesubstances to the extent that they are intended as plant nutrients, traceelements, nutritional chemicals, plant inoculants, and soil amendments.

"Private pesticide applicator" meansa certified pesticide applicator who uses or supervises the use of anypesticide which is classified for restricted use for purposes of producing anyagricultural commodity on property owned or rented by the applicator or theapplicator's employer if applied without compensation other than trading ofpersonal services between producers of agricultural commodities on the propertyof another person.

"Producer" means any person whomanufactures, prepares, compounds, propagates, or processes any pesticide ordevice. "Produce" means to manufacture, prepare, compound, propagate,or process any pesticide or device.

"Protect health and the environment"or "protection of health and the environment" means protectionagainst unreasonable adverse effects on the environment.

"Restricted use pesticide" means:

(1)  A pesticide or pesticide use classified by theAdministrator, EPA, for use by certified applicators or competent persons undertheir direct supervision and so designated on its label; or

(2)  A pesticide or pesticide use classified by theboard for use by certified applicators or competent persons under their directsupervision.

"Registrant" means the personregistering or licensing any pesticide pursuant to this chapter.

"Sell or distribute" means todistribute, solicit, sell, offer for sale, hold for sale, transport, or deliverfor transportation in intrastate commerce or between points within the Statethrough any point outside the State.

"Under the direct supervision of acertified applicator" means, unless otherwise prescribed by its labeling,a pesticide shall be considered to be applied under the direct supervision of acertified applicator if it is applied by a competent person acting under theinstructions and control of a certified applicator who is available if and whenneeded, even though the certified applicator is not physically present at thetime and place the pesticide is applied.

"Unreasonable adverse effects on theenvironment" means any unreasonable risk to humans or the environment,taking into account the economic, social, and environmental costs and benefitsof the use of the pesticide.

"Weed" means any plant which growswhere not wanted. [L 1972, c 58, pt of §1; am L 1975, c 126, pt of §1; am L1981, c 33, §1; am L 1985, c 131, §3; gen ch 1985; am L 1987, c 310, §1; gen ch1993; am L 2000, c 154, §1; am L 2007, c 71, §1 and c 174, §2]

 

Revision Note

 

  Reference to "149A-2(28)" in definition ofcommercial pesticide applicator changed to "149A-2".