FORMERLY HOUSE BILL NO. 350
AS AMENDED BY HOUSE AMENDMENTS NO. 3 AND 4
AN ACT TO AMEND TITLE 3, DELAWARE CODE, PART II, BY ADDING A CHAPTER 12 THERETO RELATING TO THE DISTRIBUTION, SALE, TRANSPORTATION AND APPLICATION OF INSECTICIDES, FUNGICIDES, RODENTICIDES, DEFOLIANTS, DESICCANTS, PLANT REGULATORS, NEMATOCIDES, MITICIDES, AND OTHER PESTICIDES AND REGULATING TRAFFIC THEREIN; PROVIDING FOR REGISTRATION AND EXAMINATION OF SUCH MATERIALS, IMPOSING PENALTIES, FOR OTHER PURPOSES, AND IMPOSING DUTIES UPON AND GIVING CERTAIN POWERS TO THE STATE DEPARTMENT OF AGRICULTURE, AND MAKING AN APPROPRIATION THEREFOR.
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Title 3, Delaware Code, Part II, is amended by adding thereto a new Chapter 12 to read as follows:
CHAPTER 12. PESTICIDES
§ 1201. Declaration of purpose
The purpose of this chapter is to regulate the sale and use of pesticides in the interest of the overall public welfare; to protect the consumer by requiring that pesticides sold in this State be correctly labeled with adequate directions for use and warnings; and to restrict the use of any pesticides which are found to be so hazardous to man or to his environment that restrictions are necessary in the overall public interest, weighing the benefits and the risks of that use.
§ 1202. Definitions
For the purpose of this chapter:
"Adulterated" shall apply to any pesticide if its strength or gating any insects, rodents, nematodes, fungi, weeds, or other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the State Department of Agriculture shall declare to be a pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.
"Department" means the State Department of Agriculture.
"Secretary" means the Secretary of the Department of Agriculture or his designee.
"Structural Pesticide Applicator" means those persons who offer for hire or service the application of pesticides to prevent, destroy, repel or mitigate insects, fungus, rodents and other vertebrate animal pests which are harmful to buildings or their contents or are a hazard to the health or comfort of animals or humans living or working therein when such application is made on, within, under or around the building or on or within vehicles, ships, aircraft or other means of transporting persons or property by land, water or air.
"Commercial Pesticide Applicator" means any person who owns or manages a pesticide application business which is engaged in the business of applying pesticides upon the lands of another, or who operates equipment for the application of pesticides or applies pesticides manually.
"User" means those persons who apply pesticides for any purpose, including structural pesticide applicators and commercial pesticide applicators.
"Device" means any instrument or contrivance intended for trapping, destroying, repelling, or mitigating insects or rodents or destroying, repelling, or mitigating fungi, weeds, nematodes, or such other pests as may be designated by the Secretary, but not including equipment used for the application of economic poisons when sold separately therefrom.
"Insecticide" includes any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever.
"Fungicide" includes any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any fungi.
"Rodenticide" includes any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating rodents or any other vertebrate animal which the State Department of Agriculture shall declare to be a pest.
"Herbicide" includes any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any weed. •
"Nematocide" includes any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating nematodes.
"Miticide" includes any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any mites.
"Plant Regulator" includes 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 shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.
"Defoliant" includes any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
"Desiccant" includes any substance or mixture of substances intended for artificially accelerating the drying of plant tissues.
"Nematode" includes invertebrate animals of the phylum Nemathelminthes and class Nematoda, that is, unsegmented round worms with elongated, fusiform or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts; may also be called nemas or eelworms.
"Insect" includes any of the numerous small invertebrate animals generally having the body more or less obviously
segmented, for the most part belonging to the class Insecta, comprising six-legged, usually winged forms, including, but not limited to beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, including, but not limited to, spiders, mites, ticks, centipedes and wood lice.
"Mite" includes any of the numerous, often very minute, acarines often infesting animals, plants, and stored foods belonging to the class Arachnida and to other acarina.
"Fungi" includes all non-chlorophyll-bearing thallophytes (that is, all non-chlorophyll-bearing plants of a lower order than mosses and liverworts) including, but not limited to, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living man or other animals.
"Weed" means any plant which grows where not wanted. "Ingredient statement" means either —
(a) a statement of the name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in the pesticide, or
(b) a statement of the name of each active ingredient, together with the name of each and total percentage of the inert ingredients, if any there be, in the pesticide (except Option 1 shall apply if the preparation is highly toxic to man, determined as provided in Section 1207 of this Chapter; and, in addition to subsections (1) or (2) of subsection (a) of that section, in case of the pesticide contains arsenic in any form, a statement of the percentage of total and water soluble arsenic, each calculated as elemental arsenic.)
"Active ingredient" means —
(a) in the case of pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate insects, mites, nematodes, fungi, rodents, weeds, or other pests.
(b) in the case of a plant regulator, an ingredient which, through physiological action, will accelerate or regard the rate of
growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof.
(c) in the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant;
(d) in the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue.
"Inert ingredient" means an ingredient which is not an active ingredient.
"Antidote" means the most practical immediate treatment in case of poisoning and includes first aid treatment.
"Person" means any individual, partnership, association, corporation, or organized group of persons whether incorporated or not.
"Registrant" means the person registering any pesticide pursuant to the provisions of this Chapter.
"Label" means the written, printed, or graphic matter on, or attached to, the pesticide or its container or wrapper of the retail package, if any there be, of the pesticide or its container.
"Labeling" means all labels and other written, printed, or graphic matter
(a) upon the pesticide or any of its containers or wrappers.
(b) accompanying the pesticide or its container at any time.
(c) to which reference is made on the label or in literature accompanying the pesticide or its container except when accurate, non-misleading reference is made to current official publications of the United States Departments of Agriculture or Interior, or the United States Public Health Service, State Experiment Stations, State Agricultural Colleges, or other similar Federal institutions or official agencies of this State or other States authorized by law to conduct research in the field of pesticides.
purity falls below the professed standard or quality as expressed on labeling or under which it is sold, or if any substance has been substituted wholly or in part for the article, or if any valuable constituent of the article has been wholly or in part abstracted.
"Misbranded" shall apply —
(a) to any pesticide or its container if its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular.
(b) to any pesticide —
(1) if it is an imitation of or is offered for sale under the name of another pesticide.
(2) if its labeling bears any reference to registration under this Chapter and such pesticide has not been registered pursuant to the Chapter;
(3) if the labeling accompanying it does not contain adequate instructions for use which are necessary and, if complied with, adequate for the protection of the public.
(4) if the label does not contain a warning or caution statement which may be necessary, and if complied with, adequate to prevent injury to living man and other vertebrate animals.
(5) if the label or container of the product does not bear an ingredient statement that may be clearly read and understood when the unit for sale is displayed under customary conditions of purchase, handling, storage and use.
(6) if any word, statement, or other information required by or under the authority of this Chapter to appear on the labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; or
(0) if in the case of an insecticide, nematocide, fungicide, or herbicide, when used as directed or in accordance with commonly
recognized practice, it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which it is applied, or to the person applying such pesticide; or
(8) in the case of a plant regulator, defoliant, or desiccant when used as directed it shall be injurious to living man or other vertebrate animals, or vegetation to which it is applied, or to the person applying such pesticide; Provided that physical or physiological effects on plants or parts of thereof shall not be deemed to be injury, when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with the label claims and recommendations.
(c) to any device or its container if its labeling bears any statement, design or graphic representation relative thereto or to its ingredients which is false or misleading in any particular.
§ 1203. Prohibited acts
a. It shall be unlawful for any person to distribute, sell, or offer for sale within this State any of the following:
(1) Any pesticide which has not been registered pursuant to the provisions of Section 1204 of this Chapter, or any pesticide if any of the claims made for it or any of the directions for its use differ in substance from the representations made in this connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration: Provided that, in the discretion of the Secretary, a change in the labeling or formula of a pesticide may be made within a registration period without requiring re-registration of the product.
(2) Any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container, and there is visibly affixed to such container, by printing or labeling the following:
(A) the name and address of the manufacturer, registrant, or person for whom manufactured.
(B) the name, brand, or trademark under which said article is sold;
(C) an ingredient statement containing the net weight or measure of the contents subject, however, to such reasonable variations as the Department may permit; and
(D) recommended instructions for use.
(3) Any pesticide which contains any substance or substances in quantities highly toxic to man, determined as provided in Section 1207 of this chapter, unless the label shall bear, in addition to any other matter required by this chapter,
(A) the skull and crossbones;
(B) the word "poison" prominently, in red, on a background of distinctly contrasting color; and
(C) a statement of an antidote for the pesticide
(4) The pesticides commonly known as standard lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosilicate, and barium fluosilicate unless they have been distinctly colored or discolored as provided by regulations issued in accordance with this Chapter, or any other white powder pesticide which the Department, after investigation of and after public hearing on the necessity for such action for the protection of the public health and the feasibility of such coloration or discoloration, shall, by regulation, require to be distinctly colored or discolored; unless it has been so colored or discolored; Provided that the Secretary may exempt any pesticide to the extent that it is intended for a particular use or uses from the coloring or discoloring required or authorized by this section if the Secretary of the Department determines that such coloring or discoloring for such use or uses is not necessary for the protection of the public health.
(5) Any pesticide which is adulterated not branded or misbranded, or any container which is misbranded or not branded.
(6) Any pesticide shipped in interstate commerce into Delaware for sale in this State which has not been registered with the United States government.
b. It shall be unlawful —
(1) for any person to detach', alter, deface, or destroy in whole or in part, any label or labeling prior to purchase by the ultimate consumer, provided for in this Chapter or regulations promulgated hereunder or to add any substance to, or take any substance from a pesticide in a manner that may defeat the purpose of this Chapter;
(2) for any person to use for his own advantage or to reveal any information relative to formulas of products acquired by authority of Section 1204 of this Chapter.
§ 1204. Registration
a. Every pesticide which is distributed, sold or offered for sale within this State shall be registered with the Department, for an annual fee of $7.00 for each pesticide registered, and such registration shall be reviewed annually; Provided that products, which have the same formula, are manufactured by the same person, the labeling of which contains the same claims, and the labels of which bear a designation identifying the product as the same pesticide may be registered as a single pesticide; and additional names and labels shall be added by supplement statements during the current period of registration. Each pesticide registered under applicable federal law and bearing a federal registration number on the label shall be registered by the Department upon submission of the application, a true copy of the approved label and the applicable registration fee. Pesticides not registered under applicable federal law shall be registered in accordance with the following procedures. The applicant for registration shall file with the Department a statement including:
(1) the name and address of the applicant and the name and address of the person whose name will appear on the label, if other than the applicant;
(2) the name of the pesticide;
(3) a complete copy of the labeling accompanying the pesticide and a statement of all claims to be made for it including directions for use; and
(4) if requested by the Department a full description of the tests made and the results thereof upon which the claims are based. In the case of renewal of registration, a statement shall be required only with respect to information which is different from that furnished when the pesticide was registered or last reregistered.
b. The Department, whenever it deems it necessary in the administration of this Chapter, may require the submission of the complete formula of any pesticide which does not have Federal registration. If it appears to the Department that the composition of the article is such as to warrant the proposed claims for it and its labeling and other material required to be submitted comply with the requirements of Section 1203 of this Chapter, it shall be registered.
c. If it does not appear to the Department that the article is such as to warrant the proposed claims for it or if the article and its labeling and other material required to be submitted do not comply with the provisions of this Chapter, the Department shall notify the applicant of the manner in which the article, labeling or other material required to be submitted fail to comply with the Chapter so as to afford the applicant an opportunity to make the necessary correction. If upon receipt of such notice, the applicant does not make the correction, the Department may refuse to register the article. The Department, in accordance with the procedures specified herein, may suspend or cancel the registration of a pesticide whenever it does not appear that the article or its labeling complies with the provisions of this Chapter. Whenever an application for registration is refused or the Department proposes to suspend or cancel a registration, notice of such action shall be given to the applicant or registrant who shall have thirty days from the date of such notice to request a hearing on the proposed action of the Department. The hearing shall be conducted by the Secretary, or his designee, for the purpose of receiving evidence relevant and material to the issues, following the conclusion of which the Secretary shall issue an order with finding of fact and notify the applicant or registrant thereof. The Secretary's order shall be based only on evidence of record taken at the hearing.
Any person who will be adversely affected by such order may obtain judicial review thereof by filing in the Superior Court, within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith transmitted by the Prothonotary to the Secretary and thereupon the Secretary shall file in the Court the record of the proceedings on which he based his order. The Court shall have jurisdiction to affirm or set aside the order complained of in whole or in part. The findings of the Secretary with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole. Upon application, the Court may remand the matter to the Secretary to take further testimony if there are reasonable grounds for the failure to adduce such evidence in the prior hearing. The Secretary may modify his findings and his order by reason of the additional evidence so taken and shall file the additional record and any modification of the findings or order with the Prothonotary.
d. Notwithstanding any other provision of this Chapter, registration is not required in the case of a pesticide shipped from one plant within this State to another plant within this State operated by the same person.
§1205. Restricted use pesticides
In order to assure that pesticides are used in accordance with the directions and cautions on the registered labels, the Secretary, in consultation with the Pesticide Advisory Committee, may, if he deems it necessary, adopt by regulation a list of pesticides to be classified as restricted use pesticides in accordance with the procedures established in this section.
(a) Designation of restricted use pesticides.
"Restricted use pesticide" means a pesticide intended for agricultural or commercial use which the Secretary, under the guidance of the Pesticide Advisory Committee, has found is so hazardous to man or to his environment when used as directed on the label or in the labeling except the pest or vegetation which it is intended to control, that restrictions on its purchase and use are necessary to assure that it is used only as directed to protect the public interest and welfare. The Secretary shall, after notice and public hearing, designate by regulation those pesticides which he finds to be "restricted use pesticides." The order shall contain specific findings for each pesticide so designated, based upon the record of the hearing. The order shall be subject to review by the
Superior Court upon the filing of a petition for review within 20 days of the date of the order.
It is unlawful:
(1) To purchase or use a restricted use pesticide except in accordance with a permit granted by the Secretary.
(2) To sell or to offer to sell a restricted use pesticide unless the purchaser has been issued a permit for its purchase and use and that permit has not been canceled.
(b) Applications for permits shall be made to the Secretary on forms prepared by him. The Secretary shall grant a permit to purchase and use a restricted use pesticide subject to such restrictions as he finds necessary in each case to protect the overall public interest and welfare. The permit may specify the area, time, amount or rate of application or such other conditions of use as he finds necessary to carry out the purposes of this Act. The Secretary may deny a permit to any person if he finds after a hearing that the public interest requires such denial. Structural pesticide applicator permits shall be issued on an annual basis.
(c) The Secretary may cancel a permit, after due notice to permit holder an opportunity for hearing, if he finds that the permit holder has violated this section or if an emergency creates a clear and present danger to the overall public interest and welfare from the uses authorized by the permit.
(d) A person whose permit is denied or canceled may request a hearing before the Secretary. A hearing shall be held within thirty days after requested. Within thirty days after the hearing the Secretary shall affirm, withdraw, or modify his action by an order based upon the record of the hearing. An appeal from that order may be taken to the Superior Court within thirty days of the date of the order.
(e) The Secretary is hereby empowered to promulgate such rules, regulations and fees as in his judgment are necessary to carry into effect the provisions of this Section and to alter or uniformly suspend such rules when necessary. Prior to the promulgation of any rules, regulations and fees, the Secretary shall hold public hearings following due notice. The hearing shall be conducted by
the Secretary, or his designee, for the purpose of receiving evidence relevant and material to the issues, following the conclusion of which the Secretary may issue such rules, regulations and fees as he sees fit, based on the evidence received at such hearings, provided that any fee for a permit required by Section 1205 should not exceed $15.00. An appeal from that order may be taken to the Superior Court within thirty days of the date of the order.
1206. Discard of restricted use pesticide or container
The Secretary, with the guidance of his Advisory Pesticide Committee, shall establish regulations relating to the discard for disposal of any restricted use pesticide or its container. These regulations shall be incorporated into permits granted for the purchase or use of such restricted use pesticide and the failure of the purchaser to comply with these regulations shall be deemed sufficient grounds for suspending or canceling a purchase or use permit. The Secretary's regulation shall provide for reasonable and practicable methods of disposing of restricted use pesticides and their containers when he finds that restrictions are necessary to carry out the purposes of this Act. No person shall dispose of restricted pesticide except according to such regulation.
§1207. Determinations Rules and Regulations; uniformity
a. The Department is authorized, after opportunity for a hearing
(I) to declare as a pest any form of plant or animal life or virus which is injurious to plants, men, domestic animals, articles, or substances;
(2) to determine standards of coloring or discoloring for pesticides, and to subject pesticides to the requirements of Section 1203 a (4) of this chapter.
(3) to determine which pesticides are highly toxic to man.
b. The Department is authorized to make appropriate rules and regulations for carrying out the provisions of this chapter, after a hearing following the proper notification to all organizations representing interested parties, including rules and regulations providing for the collection and examination of samples of pesticides or devices and granting permits to users of restricted use pesticides. No applicators' permits will be issued unless the permit holder operates under an authorized consultant or has demonstrated expertise in the proper use of the pesticide for which the permit is issued.
c. The Department may, after a hearing, deny, suspend, revoke, or modify any permit issued under this chapter, if it finds that the applicant or permit holder 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 not in accordance with the label registered under Federal law or by the Department;
(3) Applied known ineffective or improper materials;
(4) Operated faulty or unsafe equipment;
(5) Operated in a faulty, careless, or negligent manner;
(6) Refused or, after notice, neglected to comply with the provisions of this Act;
(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) Used fraud or misrepresentation in making an application for a permit or renewal of a permit;
(0) Refused or neglected to comply with any limitations or restrictions on or in a duly issued permit;
(1) Made false or misleading statements during or after an inspection concerning any infestation or infection of pests found on land; or
(12) Impersonated any State, county, or city inspector or official.
d. In order to avoid confusion endangering the public health, resulting from diverse requirements, particularly as to the labeling and coloring of pesticides, and to avoid increased costs to the people of this State due to the necessity of complying with such diverse requirements in the manufacture and sale of such pesticides, it is desirable that there should be uniformity between the requirements of the several states and the Federal Government relating to such pesticides. To this end the Department is authorized to adopt such regulations, applicable to and in conformity with the primary standards established by this chapter, as have been or may be prescribed in the United States Government with respect to pesticides.
§1208. Pesticide Advisory Committee; composition; terms
a. There is hereby created a Pesticide Advisory Committee, consisting of three pesticide applicators residing in the State, one qualified to operate ground equipment, one qualified to operate aerial equipment and one qualified for structural pest control; one entomologist in public service; one environmental health specialist from the State Department of Health and Social Services, one toxicologist in public service; one plant pathologist in public service; one member from the agricultural chemical industry; one member from the food processing industry; one producer of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides; two representatives of the Department of Natural Resources and Environmental Control — one who in his employment is responsible for the protection of environmental control, and one who in his employment is responsible for fish and wildlife protection. Such members shall be appointed by the Governor for terms of three years and may be appointed for successive three year terms at the discretion of the Governor. The Governor may remove any member of the Committee prior to the expiration of his term of appointment for cause; PROVIDED, that at the inception of this chapter the Governor shall appoint four members, not including more than one member from any one representative group, for a period of one year; four members, not including more than one member from any one representative group, for a period of two years; and four members, not including more than one member
from any one representative group, for a period of three years. All subsequent terms for appointments to such Committee shall be for a period of three years.
b. Upon the death, resignation, or removal for cause of any member of the Committee, the Governor shall fill such vacancy.
c. The Committee shall advise the Department on any or all problems relating to the use and application of pesticides in the State.
d. The Committee shall elect one of its members chairman. The members of the Committee shall meet at such time and at such place as shall be specified by the call of the Department, chairman, or a majority of the Committee.
. The members of the Committee shall receive expenses only.
a. The examination of pesticides or devices shall be made under the direction of the Secretary for the purpose of determining whether they comply with the requirements of this Chapter. If it shall appear from such examination that a pesticide or device fails to comply with the provisions of this Chapter, and the Secretary contemplates instituting criminal proceedings against any person, the Secretary shall cause appropriate notice to be given to such person. Any person so notified shall be given an opportunity to present his view, either orally or in writing, with regard to such contemplated proceedings and if thereafter in the opinion of the Secretary it shall appear that the provisions of the Chapter have been violated by such person, then the Secretary shall refer the facts to the Attorney General with a copy of the results of the analysis or the examination of such article: Provided, however, that nothing in this Chapter shall be construed to require the Secretary to report for prosecution, or for the institution of other proceedings minor violators of the Chapter whenever he believes that the public interests will best be served by a suitable notice of warning in writing.
b. It shall be the duty of the Attorney General to whom
any such violation is reported to cause appropriate proceedings to be instituted and prosecuted without delay.
c. The Secretary shall, by publication in such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this chapter.
§ 1210. Exemptions
a. The penalties provided for violation of this chapter shall not apply to:
(1) Any carrier while lawfully engaged in transporting an economic poison within this State, if such carrier shall, upon request, permit the Secretary or his designated agent to copy all records showing the transactions in and movement of the articles.
No article shall be deemed in violation of this Act when intended solely for export to a foreign country, and when prepared or packed according to the specifications or directions of the purchaser. If not so exported, all the provisions of this chapter shall apply.
(2) the manufacturer or shipper of a pesticide for experimental use only
(a) by or under the supervision of an agency of this State or of the Federal Government authorized by law to conduct research in the field of pesticides, or
(b) by others if the pesticide is not sold and if the container thereof is plainly and conspicuously marked 'for experimental use only — Not to be sold', together with the manufacturer's name and address: Provided, however, that if a written permit has been obtained from the Secretary, pesticides may be sold for experiment purposes subject to such restrictions and conditions as may be set forth in the permit.
a. Any pesticide or device that is distributed, sold, or offered for sale within this State shall be liable to seizure and
forfeiture by the Department upon application to Superior Court
in and for the county wherein the pesticide in question is located.
(1) in the case of a pesticide, the court shall order forfeiture without compensation:
(a) if it is adulterated or misbranded;
(b) if it has not been registered under the provisions of Section 1204 of this Chapter;
(c) if it fails to bear on its label the information required by this Chapter;
(d) if it is a white powder pesticide and is not colored as required under this Chapter.
(2) in the case of a device, if it is misbranded.
b. If the article is forfeited or condemned, it shall, after entry of decree, be disposed of by destruction or sale as the Department may direct and the proceeds, if such article is sold, less legal costs, shall be paid to the General Fund; Provided, that the article shall not be sold contrary to the provision of this Chapter; and Provided, further, that upon payment of costs and execution and delivery of a good and sufficient bond conditioned that the article shall not be disposed of unlawfully, the Department may direct that said article be delivered to the owner thereof for relabeling or reprocessing as the case may be.
c. When a decree of condemnation or forfeiture is entered against the article, Department costs and fees and storage and other proper expenses shall be awarded against the person, if any, intervening as claimant of the article.
§ 1 21 2. Delegation of duties
All authority vested in the Secretary by virtue of the provisions of this Chapter may with like • force and effect be executed by such employees of the Department as may be designated for said purpose.
§ 1213. Stop Sale, Use or Removal Orders
When the Secretary or his authorized agent has reasonable cause to believe a pesticide or device is being distributed or used in violation of any of the provisions of this Chapter, or of any of the prescribed regulations under this Chapter, he may issue and serve a written 'Stop Sale, Use or Removal' order upon the owner or custodian of any such pesticide or device. Any such "Stop Sale, Use or Removal" order shall remain in effect no longer than 30 days, or until a permanent injunction is obtained from the Court of Chancery, or until voided by Superior Court, whichever occurs first. The pesticide or device shall not be sold, used or removed until the provisions of this Chapter have been complied with and the pesticide or device has been released in writing by the Secretary or the violation has been otherwise disposed of as provided in this Chapter by a court of competent jurisdiction.
§ 1214. Cooperation
The Department may cooperate or enter into formal agreements with the Department of Natural Resources and Environmental Control, the University of Delaware and any other agency or educational institution of this State or its subdivisions or with any agency of any other State or of the Federal Government for the purpose of carrying out the provisions of this Chapter and of securing uniformity of regulations, including monitoring and analyzing.
§ 1215. Penalties
Whoever violates any provisions of this Chapter shall be fined not more than $5,000 for each offense. Superior Court shall have exclusive original jurisdiction over offenses under this Chapter.
§ 1216. Disposition of collected fees
The fees collected by the State Department of Agriculture under the provisions of this chapter shall be paid to the State Treasurer and placed in the General Fund.
§ 1217. Repeals
Jurisdiction in all matter pertaining to the distribution, sale
and transportation of pesticides and devices, is by this Chapter vested exclusively in the State Department of Agriculture, and all acts and parts of acts inconsistent with this Chapter are hereby expressly repealed.
§ 1218. Severability and savings clause
If any provision of this Chapter is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of this Chapter and the applicability thereof to other persons and circumstances shall not be affected thereby.
§ 1219. Effective date
All provisions of this Chapter, except as otherwise provided, shall take effect July 1, 1971.
Section 2. The sum of $25,000 is hereby appropriated to the Department of Agriculture for the implementation of this Act, which appropriation shall be paid out of the General Fund from monies not otherwise appropriated. Any funds hereby appropriated which remain unexpended on June 30, 1972 shall revert to the General Fund.
Approved June 25, 1971.