An Act to revise certain provisions regarding pesticide registration, pesticide application, and enforcement of pesticide laws.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 38-20A-15 be AMENDED:

38-20A-15. Information regarding pesticide formulas--Prohibitions--Violations as misdemeanors--Exceptions.

It is a Class 1 misdemeanor for any person to use for his the person's own advantage, or to reveal, other than to the secretary of agriculture or proper officials or employees of the state or to the courts of this state in response to a subpoena, or to physicians, or in emergencies to pharmacists and other qualified persons for use in the preparation of antidotes, any information relative to formulas of products acquired by authority of in accordance with §§ 38-20A-4 to 38-20A-13, inclusive. Notwithstanding the provisions of § 38-20A-48, any person who, with intent to defraud, uses or reveals it is a Class 2 misdemeanor for any person to use or reveal information relative to formulas of products acquired under authority of in accordance with §§ 38-20A-4 to 38-20A-13, inclusive, commits a petty offense with the intent to defraud.

This section does not apply to information revealed to the secretary, or to any official or employee of this state, or to the courts of this state in response to a subpoena, or, in an emergency, to physicians, pharmacists, and other qualified persons for use in the preparation of antidotes.

Section 2. That § 38-20A-48 be AMENDED:

38-20A-48. Violation of chapter--Penalties.

Any person violating any provision of this chapter which is not otherwise classified is guilty of a Class 2 misdemeanor, or may be subject to a civil penalty not to exceed five thousand dollars per violation, or both. A civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.

Section 3. That § 38-20A-49 be AMENDED:

38-20A-49. Notice of contemplated criminal proceedings--Opportunity to present views--Referral to state's attorney.

If it appears from an examination pursuant to the provisions of under § 38-20A-39 that a pesticide or device fails to comply with the provisions of this chapter, and the secretary contemplates instituting a referral to the state's attorney to institute criminal proceedings against a person, he the secretary shall notify that person. A person so notified shall be given an opportunity to may present his the person's views within fifteen days of receiving notice, either orally or in writing, with regard to the contemplated proceedings. If, in the opinion of the secretary, it appears that the provisions of the this chapter have has been violated by the person, the secretary shall refer the facts to the state's attorney for the county in which the violation occurred with a copy of the results of the analysis or the examination of the pesticide or device.

Section 4. That § 38-20A-50 be AMENDED:

38-20A-50. Minor violations--Written warning.

Nothing in this chapter requires the secretary of agriculture to report refer for prosecution or for institution of other proceedings minor violations of this chapter whenever he the secretary believes that the public interests will be best served by a written warning.

Section 5. That a NEW SECTION be added:

38-20A-50.1. Voluntary compliance--Administrative settlement agreements.

Nothing in this chapter prevents the department from obtaining voluntary compliance with this chapter through a conference, settlement, or any other appropriate means. The secretary may enter into an administrative settlement agreement regarding any violation of this chapter, including stipulated settlements of any civil penalty authorized under this title.

Section 6. That § 38-21-14 be AMENDED:

38-21-14. Definitions.

Terms used in this chapter mean:

(1) "Agricultural pesticide," any pesticide used to eliminate or control pests that can damage agricultural crops or livestock or reduce farm productivity;

(2) "Animals," all vertebrate and invertebrate species, including man humans;

(2)(3) "Bulk pesticide," any volume of a pesticide which is transported or held in an immediate reusable container in undivided quantities greater than one hundred pounds net dry weight of fifty-five United States gallons liquid measure. This The term does not include pesticides which that are in the custody of the ultimate user and are fully prepared for use by the user;

(3)(4) "Bulk pesticide storage facility," any area, location, tract of land, building, structure, or premises constructed in accordance with rules promulgated by the secretary for the storage of bulk pesticides;

(4)(5) "Certified applicator," any individual who is certified under this chapter to use any pesticide;

(5)(6) "Commercial applicator," any certified applicator eighteen years of age or older who uses any pesticide on any property other than as a private applicator;

(6)(7) "Defoliant," any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission;

(7)(8) "Desiccant," any substance or mixture of substances intended for artificially accelerating the drying of plant tissue;

(8)(9) "Device," any instrument or contrivance, other than a firearm, which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life, other than man and other than bacteria, virus, or other microorganism on or in living man or other living animals, but not including equipment used for the application of pesticides when sold separately therefrom insects or for destroying, repelling, or mitigating fungi, weeds, rodents, or any other pests designated by the secretary, but not including equipment used for the application of pesticides if sold separately, and not including rodent traps;

(9)(10) "Environment," includes water, air, land, and all plants and animals living therein, and the interrelationships which exist among these;

(10)(11) "Equipment," any type of ground, water, or aerial equipment or contrivance any device using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in such land, but does not include any pressurized, hand-sized household apparatus used contrivance of which device that requires the person who is applying the pesticide is to be the source of power or energy in making to make the pesticide application;

(11)(12) "Fungus," any nonchlorophyll-bearing thallophyte, except those on or in processed food, beverages, or pharmaceuticals or those on or in living animals;

(12)(13) "Insect," any of the numerous small invertebrate animals belonging to the class insecta or to other allied classes of arthropods;

(13)(14) "Labeling," any label and other written, printed, or graphic matter:

(a) On the pesticide or device or any of its containers or wrappers;

(b) Accompanying the pesticide or device at any time; or

(c) To which reference is made on the label or in literature accompanying the pesticide or device, except accurate, nonmisleading reference to current official publications of any government institution or official agency of the United States or of this or any other state, authorized by law to conduct research in the field of pesticides;

(14)(15) "Land," all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation;

(15) "Licensed applicator," any certified applicator who is licensed under this chapter and who owns, manages, or is employed by a pesticide application business which is engaged in the business of applying pesticides upon the lands of another or applies pesticides while in the performance of his duties as a government employee;

(16) "Licensed pesticide "Pesticide dealer," any person who is licensed under this chapter and who entity that distributes agricultural pesticides, restricted-use pesticides, or pesticides whose uses or distribution are restricted in use or distribution by regulation;

(17)(16) "Nematode," any invertebrate animal of the phylum ne-mathel-minthes or nematoda;

(18)(17) "Pest," any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man human or other living animals, which the secretary by regulation may declare declares to be a pest;

(19)(18) "Pesticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant or any substance or mixture of substances intended to be used as a spray adjuvant;

(20)(19) "Plant regulator," any substance or mixture of substances, intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of ornamental or crop plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;

(21)(20) "Private applicator," a certified applicator over the age of eighteen who:

(a) Uses any pesticide other than a restricted-use pesticide for purposes of producing any agricultural commodity amounting to greater than one thousand dollars gross sales potential per year on property owned or rented by the private applicator or the private applicator's employer; or

(b) Uses any restricted-use pesticide for the purpose of producing any agricultural commodity on property owned or rented by the private applicator or the private applicator's employer; or

(c) Applies any pesticide on the property of another person without compensation other than trading of personal services between producers of agricultural commodities; or

(d) Is not regularly in the business of applying pesticides for hire amounting to a principal or regular occupation and is not held out to the public as a commercial applicator;

(21)(22) "Registrant," the person registering any pesticide in accordance with the provisions of this chapter;

(22)(23) "Restricted-use pesticide," any pesticide classified as a restricted-use pesticide by the secretary of the Department of Agriculture;

(23)(24) "Rinsate," any solution containing pesticide residue which is generated from washing or flushing of pesticide containers and pesticide equipment;

(24)(25) "Secretary," the secretary of the Department of Agriculture;

(25)(26) "Spray adjuvant," any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent intended to be used with any other pesticide as an aid to the application or to the effect thereof, and which is in a package or container separate from that of the pesticide with which it is to be used;

(26)(27) "Unreasonable adverse effects on the environment," any unreasonable risk to man humans or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide;

(27)(28) "Weed," any plant which grows where not wanted.

Section 7. That § 38-21-15 be REPEALED.

38-21-15. Pesticide handling causing injury or pollution prohibited--Rules and regulations--Penalty for violation.

Section 8. That § 38-21-16 be AMENDED:

38-21-16. Pesticide incidents--Report of damage--Inspection by secretary.

The secretary of agriculture shall establish rules pursuant to chapter 1-26 to require the reporting of significant pesticide accidents or incidents.Any person may report damage from the use of a pesticide or any alleged pesticide incident to the secretary on a form provided by the secretary, with a written statement, within thirty days after the date the damage was observed or the incident occurred. Any person alleging damage shall permit the secretary to inspect, during reasonable hours, the lands where the alleged damage or incident occurred, or any organism is alleged to have been damaged.

Section 9. That § 38-21-33 be AMENDED:

38-21-33. Classes of certifications and licenses.

The secretary of agriculture may further classify or subclassify certifications or licenses to be issued under this chapter. Such The classifications may include, but shall not be limited to soil fumigation, nonsoil fumigation, pest control operators, ornamental or agricultural pesticide applicators, and right‑of‑way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides or to the use of pesticides to control insects and plant diseases, rodents or weeds. Each classification shall be subject to separate testing procedures and requirements.

Section 10. That § 38-21-34 be AMENDED:

38-21-34. Applicator's license--Limitations.

No person shall be required to pay an additional license fee if such person desires to be licensed in two or more of the license classifications provided for by the secretary of agriculture under the authority of § 38-21-33 applicator may hold more than one applicator's license simultaneously. Any private applicator's license held by a commercial applicator shall become invalid upon issuance of a commercial applicator's license by the secretary.

Section 11. That § 38-21-38 be REPEALED.

38-21-38. Personal farm use exempt.

Section 12. That § 38-21-40 be AMENDED:

38-21-40. Restricted‑use pesticides--Licensure required--Restrictions--Criteria--Penalty.

No person may use any restricted‑use pesticide without that person first complying with the certification licensing requirements of this chapter or such and any other restrictions as may be determined by the secretary of agriculture, pursuant to § 38-21-39, as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. In determining restrictions, the secretary shall, pursuant to § 38-21-39, consider the characteristics of the pesticide formulation such as the acute dermal inhalation toxicity; the persistence, mobility, and susceptibility to biological concentration; the use experience which may reflect an inherent misuse of an unexpected good safety record which does not always follow laboratory toxicological information; the relative hazards of patterns of use such as granular soil applications, ultra‑low volume or dust aerial applications, or air blast sprayer applications; and the extent of the intended use. Any person using restricted-use pesticides without complying with the certification requirements of who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.

Section 13. That § 38-21-42 be AMENDED:

38-21-42. Renewal of license--Requirements--Exceptions.

Any person holding a current valid license or certification may renew such the license or certification for the next biennium without taking another examination unless the secretary of agriculture determines that additional knowledge related to classifications for which the applicant has applied makes a new examination necessary or if additional demonstration of qualifications is determined necessary for a person who has had a license suspended or revoked or has had one or more previous violations of this chapter. Any person whose license has expired and has not been renewed in accordance with this chapter before the expiration, shall be required to take the examination to obtain a new license.

Section 14. That § 38-21-44 be AMENDED:

38-21-44. Suspension, revocation, or modification of license--Grounds--Violation as misdemeanor--Civil penalty.

The secretary of agriculture, pending inquiry examination and after notice and opportunity for a hearing, pursuant to chapter 1-26, may deny, suspend, revoke, or modify any provision of any license or certification issued under this chapter and held by the violator, if he the secretary finds that the applicant or the holder of a any license or certification has committed any of the following acts, each of which is declared to be a violation of this chapter:

(1) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;

(2) Made a pesticide recommendation or application inconsistent with the labeling or mixed, loaded, stored, transported, disposed, displayed, or handled a pesticide or pesticide container inconsistent with the product label or labeling. However, a A deviation may include the loading and handling of the manufacturer's unbroken immediate container and provisions set forth in section 2(ee) of the Federal Insecticide, Fungicide and Rodenticide Act, as amended through July 1, 1989;

(3) Applied known ineffective or improper materials;

(4) Operated faulty or unsafe equipment;

(5) Operated in a faulty, careless, or negligent manner;

(6) Neglected or, after notice, refused to comply with the provisions of this chapter, the rules adopted hereunder thereunder, or of any lawful order of the secretary;

(7) Refused or neglected to keep and maintain the records required by this chapter, or to make reports when and as required;

(8) Made false or fraudulent records, invoices, or reports;

(9) Engaged in the business of applying a pesticide on the lands of another without having such a license or certification as may be required by this chapter;

(10) Used fraud or misrepresentation in making an application for, or renewal of, a license or certification;

(11) Refused or neglected to comply with any limitations or restrictions listed on or in a duly an issued license or certification;

(12) Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, conspired with such a licensed or an unlicensed person to evade the provisions of this chapter, or allowed one's license or certification to be used by another person;

(13) Made false or misleading statements to the secretary or his the secretary's agents during an inspection or investigation conducted under the authority of this chapter;

(14) Impersonated any federal, state, county, or city inspector or official; or

(15) Fails Failed to maintain the aerial requirements as stated provided in § 38-21-20; or

(16) Transported, stored, used, disposed of, or handled any pesticide, pesticide container, rinsate, or application equipment in a manner as to endanger or cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or to pollute groundwater or surface water.

In addition to the administrative sanctions available to the secretary of agriculture pursuant to this section, any licensed or nonlicensed, certified or noncertified person who commits any of the above-mentioned acts is guilty of a violation of this section by any person is a Class 2 misdemeanor and may be assessed a civil penalty not to exceed five thousand dollars per violation by the circuit court. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund. The secretary of agriculture is not required to seek the administrative sanctions available under this section prior to before referring charges or commencing an any action in circuit court against an alleged violator of this section.

Section 15. That a NEW SECTION be added:

38-21-44.1. Contemplated criminal proceedings--Notice--Opportunity to present views--Referral to state's attorney.

If it appears from an examination pursuant to this chapter that there has been a violation of this chapter, and the secretary contemplates a referral to the state's attorney for criminal proceedings against a person, the secretary shall notify that person in writing. A person so notified may present the person's views within fifteen days of receiving notice, either orally or in writing, with regard to the contemplated proceedings. If, in the opinion of the secretary, it appears that this chapter has been violated by the person, the secretary shall refer the facts to the state's attorney for the county in which the violation occurred with a copy of the results of the analysis, the examination of the pesticide or device or any other relevant evidence, and information in the possession of the secretary. This referral by the secretary is not required if it appears to the secretary that the violation is minor, and the secretary believes that the public will be best served by a written warning.

Section 16. That a NEW SECTION be added:

38-21-44.2. Prosecution of violations.

Each state's attorney to whom any violation of this chapter is reported shall cause appropriate proceedings to be instituted and prosecuted without delay.

Section 17. That a NEW SECTION be added:

38-21-44.3. Obtaining voluntary compliance--Administrative settlement agreements.

Nothing in this chapter prevents the department from obtaining voluntary compliance with the provisions of this chapter through a conference, settlement, or any other appropriate means. The secretary may enter into an administrative settlement agreement regarding any violation of the provisions of this chapter including stipulated settlements of any civil penalty or administrative sanction authorized under this title.

Section 18. That § 38-21-45 be AMENDED:

38-21-45. Pesticide damage--Liability.

Nothing in this chapter shall may be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides even though such the use conforms to the rules and regulations promulgated under the authority of this chapter.

Section 19. That § 38-21-46 be AMENDED:

38-21-46. Notice of damage--Requirements--Exception.

Any person claiming damages from any use of a pesticide shall file with the secretary of agriculture on a form prescribed by the secretary a written statement within thirty notify by certified mail the pesticide applicator of the alleged damage within the earlier of:

(1) Thirty days after the date that the damages occurred. were observed or should have been observed; or

(2) If a growing crop is alleged to have been damaged, the report shall be filed prior to that before the time that twenty‑five percent of the crop has been harvested or destroyed.

This section does not apply if the person seeking reimbursement for damage was the applicator of the pesticide.

Section 20. That § 38-21-47 be AMENDED:

38-21-47. Inspection of damages--Requirements.

The secretary of agriculture shall, upon receipt of a statement filed pursuant to § 38-21-46, notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility of the damages claimed, and furnish copies of such statements as may be requested. The secretary shall inspect damages whenever possible and, if he determines that the complaint has merit, he shall make such information available to the person claiming damage and to the person who is alleged to have caused the damage. Upon notifying the applicator as required under § 38-21-46, the person seeking reimbursement for the alleged damage shall permit the applicator and up to four representatives of the applicator to enter the person's property during reasonable hours for the purpose of observing and examining the alleged damage. If the person fails to allow entry, the person is barred from asserting a claim against the applicator.

Section 21. That § 38-21-48 be REPEALED.

38-21-48. Observation of claimed damage to be permitted.

Section 22. That § 38-21-49 be AMENDED:

38-21-49. Pesticide incident--Failure to report.

The failure to file such a statement under report an incident in accordance with the provisions of § 38-21-46 shall § 38-21-16 is not be a violation of this chapter. However, if If the person failing to file such a report is the only one injured from such the use or application of a pesticide by others, the secretary of agriculture may, when in the public interest, refuse to hold a hearing for the denial, suspension, modification, or revocation of a license or certification issued under this chapter.

Section 23. That § 38-21-50.1 be REPEALED.

38-21-50.1. Application without license as misdemeanor--Additional penalty for violation.

Section 24. That § 38-21-50.2 be AMENDED:

38-21-50.2. Damages to injured person.

Civil penalties specified in §§ 38-21-15, §§ 38-21-15.2, 38-21-17, 38-21-23, 38-21-33.1, 38-21-39.1, 38-21-39.2, 38-21-39.3, 38-21-40, and 38-21-44, and 38-21-50.1 do not lessen the damages that may be awarded to any person injured.

Section 25. That § 38-21-58 be AMENDED:

38-21-58. Application of pesticide--Licensed commercial applicator--Personal property.

Any commercial applicator who is licensed or certified pursuant to this chapter to apply pesticides to agricultural land may apply pesticides to property owned by the applicator without a private applicator's license if the commercial categories in which the applicator is licensed are the appropriate applications to be made. Any such applicator shall abide by all state and federal rules and regulations pertaining to private applicator pesticide application in this state when applying pesticides on the applicator's own property.