SB0161

SENATE BILL 161

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Mimi Stewart and Bill B. O'Neill

AN ACT

RELATING TO THE ENVIRONMENT; RESTRICTING THE USE OF NEONICOTINOID CLASS PESTICIDES; PROVIDING EXCEPTIONS; REQUIRING AN EDUCATION AND TRAINING PROGRAM; AMENDING AND ENACTING SECTIONS OF THE PESTICIDE CONTROL ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 76-4-1 NMSA 1978 (being Laws 1973, Chapter 366, Section 1) is amended to read:

"76-4-1. SHORT TITLE.--[This act] Chapter 76, Article 4 NMSA 1978 may be cited as the "Pesticide Control Act"."

SECTION 2. Section 76-4-3 NMSA 1978 (being Laws 1973, Chapter 366, Section 3, as amended by Laws 2009, Chapter 101, Section 1 and by Laws 2009, Chapter 109, Section 1) is amended to read:

"76-4-3. DEFINITIONS.--As used in the Pesticide Control Act:

[A. "equipment" means any type of ground, water or aerial equipment, device or contrivance using motorized, mechanical or pressurized power 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 device used by a homeowner to apply a pesticide or any equipment, device or contrivance of which the person who is applying the pesticide on the person's own land is the source of power or energy in making the pesticide application;

B.] A. "board" means the board of regents of New Mexico state university;

B. "commercial applicator" means a licensed applicator, whether or not the licensed applicator is also a private applicator with respect to some uses, who for compensation uses or supervises the use of any pesticide for any purpose on any property other than as provided by Sections 76-4-19 and 76-4-20.1 NMSA 1978;

C. "department" means the New Mexico department of agriculture;

D. "device" means [any] an instrument or contrivance other than a firearm that is intended for trapping, destroying, repelling or mitigating any pest or any other form of plant or animal life, other than humans and other than bacteria, viruses or other microorganisms on or in any living thing other than plants, but does not include equipment used for the application of pesticides when sold separately [therefrom] from a pesticide, or traps used to control predators or rodents or sterilization using dry heat or steam;

E. "distribute" means to offer for sale, hold for sale, sell, barter or supply in this state;

F. "environment" includes water, air and land and all plants and every living thing in water, in air and on land and the existing interrelationships;

G. "equipment" means any type of ground, water or aerial equipment, device or contrivance using motorized, mechanical or pressurized power to apply a pesticide on land and anything that may be growing, habitating or stored on or in such land, but does not include a pressurized hand-sized household device used by a homeowner to apply a pesticide or any equipment, device or contrivance of which the person who is applying the pesticide on the person's own land is the source of power or energy in making the pesticide application;

[G.] H. "insect" means any of the numerous small invertebrate animals belonging principally to the class insecta, including beetles, bugs, bees and flies, and to other allied classes of arthropods, including spiders, mites, ticks, millipedes, centipedes and sowbugs;

[H.] I. "ingredient statement" means a statement that contains the name and percentage of each ingredient of [any] a pesticide that is intended for one of the purposes [under Paragraphs (1) through (4) of] specified in Subsection [N] R of this section and the total percentage of all ingredients in the pesticide not for one of those purposes. If the pesticide contains arsenic in any form, the ingredient statement shall contain a statement of the percentages of total and water-soluble arsenic, calculated as elemental arsenic;

[I.] J. "label" means the written, printed or graphic matter on or attached to the pesticide or device or any of its containers or wrappers;

[J.] K. "labeling" means all labels and all other written, printed or graphic matter accompanying the pesticide or device at any time; or to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the department; the United States environmental protection agency; United States departments of agriculture, the interior and health and human services; state agricultural universities and other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides;

[K.] L. "land" means all land and water areas, including air space, and all living things and all structures, buildings, contrivances and machinery appurtenant [thereto] to the land or situated [thereon] on the land, fixed or mobile, including any used for transportation;

M. "neonicotinoid class pesticide" means a pesticide belonging to the neonicotinoid class of chemicals, including clothianidin, dinotefuran, imidacloprid, nithiazine, nitenpyram, thiacloprid and thiamethoxam and any other pesticide identified as a neonicotinoid by the United States environmental protection agency, but does not include acetamiprid;

N. "noncommercial applicator" means a person licensed to use or demonstrate restricted use pesticides who does not qualify as a private applicator and who is not required to have a commercial applicator's license;

O. "not pollinated by insects" means agricultural crops not dependent on insect pollination, including alfalfa grown for animal feed, wheat, corn, sorghum, cotton, pecans, dry beans, chile, peanuts, pistachios, grapes, lettuce harvested prior to seeding, berries, plums, onions harvested prior to flowering and potatoes and crops that either do not bloom or are not allowed to bloom before harvest;

[L.] P. "person" has the extended meaning ascribed to it in Subsection E of Section 12-2A-3 NMSA 1978;

[M.] Q. "pest" means any living organism injurious to other living organisms, except humans, viruses, bacteria or other microorganisms in or on other living organisms other than plants, that the board by rule declares to be a pest;

[N.] R. "pesticide" means [any] a substance or mixture of substances intended for:

(1) preventing, destroying, repelling or mitigating [any] a pest;

(2) causing the leaves or foliage to drop from a plant, with or without causing abscission;

(3) artificially accelerating the drying of plant tissue; or

(4) 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] of ornamental or crop plants, through physiological action, but not including substances that are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments;

[O.] S. "pesticide dealer" means [any] a person [who distributes] licensed to distribute highly toxic pesticides, restricted use pesticides or both, which pesticides are restricted by rule to distribution only by [licensed] pesticide dealers;

[P.] T. "pest management consultant" means [any individual who offers or supplies] a person licensed to offer or supply technical advice or [makes] make recommendations to the user of highly toxic pesticides, restricted use pesticides or both, which pesticides are restricted by rule to distribution only by [licensed] pesticide dealers;

U. "private applicator" means a certified applicator who uses or supervises the use of a pesticide that is classified for restricted use for purposes of producing an agricultural commodity on property owned or rented by the certified applicator or the certified applicator's employer or on the property of another person if applied without compensation other than trading of personal services between producers of agricultural commodities;

V. "public applicator" means a licensed applicator who as an employee of a federal, state, county or municipal agency or municipal corporation uses a pesticide classified for restricted use or general use to apply to sites or under conditions identified by rule promulgated by the board;

[Q.] W. "registrant" means a person who has registered [any] a pesticide pursuant to the provisions of the Pesticide Control Act;

[R.] X. "restricted use pesticide" means any pesticide or device designated by the board as requiring specific restrictions to prevent unreasonable adverse effects on the environment, including humans, beneficial insect predators and parasites, pollinating insects, animals, crops, wildlife and lands, but excluding the pests the pesticide or device is intended to prevent, destroy, control or mitigate; and

[S. "unreasonable adverse effects on the environment" means an unreasonable risk to humans or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide;

T. "noncommercial applicator" means a person who uses or demonstrates restricted use pesticides and does not qualify as a private applicator and is not required to have a commercial applicator's license;

U. "private applicator" means a certified applicator who uses or supervises the use of any pesticide that is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the certified applicator or the certified applicator's employer or on the property of another person if applied without compensation other than trading of personal services between producers of agricultural commodities;

V. "public applicator" means a certified applicator who as an employee of a federal, state, county or municipal agency or municipal corporation uses any pesticide that is classified for restricted use or any general use pesticide, when applied to sites or under conditions identified by rule promulgated by the board; and

W. "commercial applicator" means a certified applicator, whether or not the certified applicator is a private applicator with respect to some uses, who for compensation uses or supervises the use of any pesticide for any purpose on any property other than as provided by Sections 76-4-19 and 76-4-20.1 NMSA 1978.]

Y. "unreasonable adverse effects on the environment" means an unreasonable risk to humans; animals, including wildlife and domestic animals; beneficial pollinators, insect predators and parasites; crops; land; habitats; aquatic life; or other damages, but excluding the pests the pesticide or device is intended to prevent, destroy, control or mitigate and taking into account the economic, social and environmental costs and benefits of the use of any pesticide."

SECTION 3. Section 76-4-5 NMSA 1978 (being Laws 1973, Chapter 366, Section 5) is amended to read:

"76-4-5. PROHIBITED ACTS.--

A. It is unlawful for [any] a person to distribute within the state, to deliver for transportation or to transport in intrastate commerce or between points within this state through any point outside this state or to use any of the following:

(1) [any] a pesticide [which] that has not been registered in accordance with the Pesticide Control Act or [regulations adopted] rules promulgated pursuant to that act;

(2) [any] a pesticide if any of the claims made for it or any of the directions for its use or other labeling differs from the representations made in connection with its registration or if the composition as represented in connection with its registration differs. However, at the discretion of the department, a change in the labeling of a pesticide, except changes in the ingredient statement, may be made within a registration period without requiring reregistration of the product if the change will not have unreasonable adverse effects on the environment;

(3) [any] a pesticide [unless it] that is not in the unbroken immediate container of the registrant or manufacturer and to which there is not affixed to the container, and to the outside container or wrapper of the retail package if there is one through which the required information on the immediate container cannot be clearly read, a label bearing the information required [in] by the Pesticide Control Act and the [regulations adopted] rules promulgated pursuant to that act;

(4) [any] a pesticide [which] that has not been colored or discolored as required by the Pesticide Control Act;

(5) [any] a pesticide [which] that does not meet the professed standard of quantity or quality, as expressed on the labeling under which it is sold, or in which [any] a substance has been substituted wholly or in part for the pesticide, or if [any] a valuable constituent has been wholly or in part abstracted or if [any] a contaminant is misbranded or is present in an amount determined by the department to be a hazard;

(6) [any] a device [which] that is misbranded; [or]

(7) [any] a pesticide in containers violating [regulations adopted] rules promulgated pursuant to the Pesticide Control Act or pesticides found in damaged containers [which] that constitute a hazard to the environment; or

(8) a neonicotinoid class pesticide, or any substance or product containing a neonicotinoid class pesticide, unless:

(a) the product is being used by a licensed applicator in commercial agriculture on crops not pollinated by insects;

(b) the product's use is intended for the eradication, control or mitigation of parasites harmful to domestic animals;

(d) the product's use is intended for indoor use in an enclosed space to eradicate, control or mitigate pests; or

(e) the neonicotinoid class pesticide is contained in a wood product that has been treated with a neonicotinoid class pesticide.

B. It is unlawful:

(1) to distribute a restricted use pesticide to [any] a person who is required by law or [regulations] rules promulgated pursuant to the Pesticide Control Act to be licensed or certified to use the restricted use pesticide and the person, including the license holder's or certificate holder's agent, does not have a permit to use or purchase the kind and quantity of the restricted use [pesticides, unless the person or his agent to whom sale or delivery is made has a valid permit to use or purchase the kind and quantity of the restricted use] pesticide; provided, however, subject to conditions established by the department, [such] a permit may be obtained from [any] a person who has been designated by the department to issue permits immediately prior to distribution;

(2) for [any] a person to detach, alter, deface or destroy, wholly or in part, any label or labeling provided for in the Pesticide Control Act or [regulations adopted] rules promulgated pursuant to that act or to add any substance to or take any substance from a pesticide in a manner that may defeat the purpose of the Pesticide Control Act or the [regulations adopted thereunder] rules promulgated pursuant to that act;

(3) for [any] a person to use or cause to be used [any] a restricted use pesticide contrary to directions on the label or to [regulations] rules of the board if those [regulations] rules differ from or further restrict the labeling;

(4) for [any] a person to use for [his own] personal advantage or to reveal [other than to the department, or to the courts of the state in response to a subpoena, or to physicians, or in emergencies to pharmacists and other qualified person for use in the preparation of a practical treatment including first aid, in case of poisoning] any information relative to formulas of products acquired by authority of the Pesticide Control Act; provided, however, that a person may reveal formula information to:

(a) the department;

(b) the courts of the state in response to a subpoena;

(d) pharmacists or other qualified persons in emergencies to prepare a practical treatment, including first aid, in case of poisoning;

(5) for [any] a person to handle, transport, store, display, distribute or use pesticides in such a manner as to endanger [man and his] human health or the environment or to endanger food, feed or any other products that may be transported, stored, displayed or distributed with [such] the pesticides; [or]

(6) for [any] a person to dispose of, discard or store [any] pesticides or pesticide containers in a manner that may cause injury to humans, vegetation, crops, livestock, wildlife or domestic animals or pollinating insects or to pollute any water supply or waterway; or

(7) to provide for sale blooming or flowering plants, plant material or seed that has been treated with a neonicotinoid class pesticide, unless the blooming or flowering plant, plant material or seed is clearly and conspicuously labeled as having been treated with a neonicotinoid class pesticide and includes a description of the risks to pollinators and other nontarget organisms associated with the use of neonicotinoid class pesticides."

SECTION 4. A new section of the Pesticide Control Act is enacted to read:

"[NEW MATERIAL] POLLINATOR HEALTH OUTREACH AND EDUCATION PLAN--EDUCATIONAL AND TRAINING MATERIALS DEVELOPMENT.--

A. The department, in consultation with the college of agriculture, consumer and environmental sciences at New Mexico state university, shall develop:

(1) a pollinator health outreach and education plan to educate the public regarding the best practices for avoiding adverse effects from pesticides on populations of bees and other pollinating insects; and

(2) educational and training materials for pesticide dealers; pest management consultants and licensed or certified applicators, including commercial, public, private and noncommerical applicators, and operators; farmers and ranchers; and owners and employees of nurseries and other wholesale or retail sellers of plants and plant materials regarding the best practices for avoiding adverse effects from pesticides on populations of bees and other pollinating insects.

B. The educational and training materials shall include measures that pesticide dealers; pest management consultants and licensed or certified applicators, including commercial, public, private and noncommercial applicators, and operators; and farmers and ranchers are required to take to protect native bees, honeybees and other pollinators. The educational and training materials for owners and employees of nurseries and other wholesale or retail sellers of plants and plant materials shall include recommended measures to protect native bees, honeybees and other pollinators.

C. The department shall:

(1) design the educational and training materials to ensure that all classes of pesticide applicators applying or supervising the application of a pesticide are knowledgeable regarding alternatives to, the appropriateness of and precautions for pesticide use that may be injurious to the health of bees and other pollinating insects; and

(2) make the educational and training materials part of the education required for taking any licensing or certification examination or continuing education requirement under the Pesticide Control Act."

SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.

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