TITLE 3

Agriculture

Regulatory Provisions

CHAPTER 12. PESTICIDES

Subchapter II. Regulation of Sale and Use of Pesticides and Devices


(a) In order to regulate the sale and/or use of pesticides and devices in this State, the Department shall, by regulation, provide that every pesticide and device distributed and/or used within this State shall be duly registered with the Department. The Department, with the approval of the Secretary of Agriculture, shall establish a biennial registration fee, not to exceed $140, for each pesticide or device registered. The fee established by the Secretary of Agriculture shall approximate and reasonably reflect all costs necessary to defray the expenses of the Department's activities pursuant to this chapter. At the beginning of each calendar year, the Department shall compute the appropriate pesticide or device registration fee. All revenue generated by this fee shall be deposited in an appropriated special fund account in the Department of Agriculture.

(b) Any regulation adopted by the Department pursuant to its authority under § 1237 of this title may prescribe the methods to be used in application of pesticides, and may relate to the time, place, manner, materials and amounts and concentrations, in connection with the application of the pesticides, and may restrict or prohibit use of pesticides in designated areas during specified periods of time and shall encompass all reasonable factors which the Department deems necessary to prevent damage or injury by drift or misapplication to:

(1) Plants, including forage plants, or adjacent or nearby lands;

(2) Wildlife in the adjoining or nearby areas;

(3) Fish and other aquatic life in waters in reasonable proximity to the areas to be treated; or

(4) Humans, animals or beneficial insects.

(c) The Department may also, by regulation, after a public hearing following due notice, determine "state restricted pesticide uses" for the State or for designated areas within the State, and may require a permit for purchase, possession and application of a pesticide labeled for a use which is designated as a "state restricted pesticide use."

(d) In issuing such regulations, the Department shall give consideration to pertinent research findings and recommendations of other agencies of the State, the federal government or other reliable sources.

(e) The Department shall adopt "restricted use pesticide" classifications. For the purpose of uniformity and in order to enter into cooperative agreements, these classifications shall conform to all current and future classifications adopted by E.P.A.

(f) The Department, after notice and hearing, and in agreement with the Department of Natural Resources and Environmental Control of the State, is authorized to declare a pest any form of plant or animal life (other than humans and other than bacteria, virus and other microorganisms on or in living humans or other living animals) which is injurious to health or the environment.

(g) In order to comply with § 4 of FIFRA [7 U.S.C. § 136i(a)-(c)], the Department is authorized to make such reports to the E.P.A. in such form and containing such information as E.P.A. may from time to time require.

(h) The Department is authorized, by regulation, to determine standards of coloring or discoloring for pesticides.

(i) The Secretary shall have the power to issue an order to any person violating any rule, regulation or order, or provision under this chapter to cease and desist from such violation; provided that any cease and desist order issued pursuant to this section shall expire:

(1) After 30 days of its issuance; or

(2) Upon withdrawal of said order by the Secretary; or

(3) When the order is superseded by an injunction, whichever occurs first.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1; 64 Del. Laws, c. 189, §§ 3, 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 233, § 1; 78 Del. Laws, c. 258, § 1.;

(a) This section shall become effective upon certification of the State by the Administrator of E.P.A. pursuant to § 24(c) of FIFRA [7 U.S.C. § 136v].

(b) Every pesticide which does not have E.P.A. registration for the use intended and which is formulated for distribution and use within this State shall be duly registered with the Department in accordance with this section.

(c) Any application for the registration of a pesticide under this section shall be filed with the Department and include the information set forth pursuant to the regulations adopted under § 1203 of this title. The Department may register such pesticide if it determines that:

(1) Its composition is such as to warrant the proposed claim for it;

(2) Its labeling and other material required to be submitted comply with the requirements of this chapter;

(3) It will perform its intended function without unreasonable adverse effects on the environment;

(4) When used in accordance with widespread and commonly recognized practice, it will not generally cause unreasonable adverse effects upon the environment;

(5) The classification for general or restricted use is in conformity with § 3(d) of FIFRA [7 U.S.C. § 136a(d)]; and provided, that the Department shall not make any lack of essentiality a criterion for denying registration of any pesticide. Where 2 pesticides meet the requirements of this paragraph, 1 should not be registered in preference to the other; or

(6) Special local needs exist.

60 Del. Laws, c. 671, § 1.;

(a) The Department may, after due notice, including notice to the registrant and opportunity for a hearing, revoke the registration of a pesticide registered pursuant to this chapter if the pesticide or its labeling does not comply with the requirements of this chapter or the regulations promulgated by the Department, or to prevent unreasonable adverse effects on the environment. A person affected by such revocation may request a hearing before the Department. A hearing shall be held within 30 days after request. Within 30 days after the hearing, the Department shall affirm, withdraw or modify its action by an order based upon the record of the hearing. An appeal from that order may be taken to the Superior Court within 30 days of the date of the order.

(b) The Department may suspend the registration of any pesticide pending the completion of revocation proceedings if the continued use of a pesticide during the time required for revocation proceedings would be likely to result in unreasonable adverse effects on the environment. A revocation order shall be issued with the suspension order so that the hearing procedure may be initiated as provided in cases of revocation of registration. If no request for a hearing is made within 30 days of the suspension order, the revocation order will be effective and the registration is revoked.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1.;

(a) No person shall engage in the business of applying pesticides to the lands or personal property of another unless such person has been duly licensed by the Department. Further, no license shall be issued to any person, nor shall it remain valid, unless such person is certified or employs a certified applicator at all times. At least 1 person designated as a certified applicator under the license shall meet the experience requirement specified in § 1207(c) of this title. No license shall be required of any private applicator.

(b) The Department shall classify or subclassify licenses to be issued under this chapter. Such classifications may include, but are not limited to, pest control operators and ornamental, agricultural or right-of-way pesticide applicators. Separate subclassifications may be specified as to ground, aerial or manual methods used by any licensee to apply pesticides and to the use of pesticides to control pests (provided that no person shall be required to pay an additional license fee if such person desires to be licensed in 1 or all of the license classifications provided for by the Department under the authority of this chapter).

60 Del. Laws, c. 671, § 1; 69 Del. Laws, c. 101, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 234, § 1.;

(a) Application for a license shall be made in writing to the Department on a designated form obtained from the Department.

(b) The Department shall require a fee of $50 for an annual license or $100 for a biennial license.

(c) The Department shall issue a license limited to the classifications of pesticide use for which an applicant is qualified. To qualify for a license, the following conditions shall be met:

(1) The applicant must provide evidence that at least 1 applicator in his or her employ is certified to apply pesticides in the classification(s) of pest control for which he or she is applying. At least 1 of these certified applicators must have a minimum of 2 years practical experience under the supervision of a certified applicator. This experience shall have been acquired during the previous 3-year period and shall be related to the license classification at issue.

(2) The applicant files the proper proof of financial responsibility as required under § 1208(a) of this title.

(3) If the applicant is applying for a license to engage in the aerial application of pesticides, he or she shall have met all the requirements of the Federal Aviation Administration and any other applicable federal or state laws or regulations to operate the equipment described in the application.

(d) The Department may limit the license of the applicant to the use of certain pesticides, to certain areas or to certain types of equipment if the applicant is only so qualified. If a license is not issued as applied for, the department shall inform the applicant in writing of the reasons therefor.

(e) If the application for renewal of any license provided for in this chapter is not filed prior to the 1st day of January in any year, a penalty of 20 percent of the yearly fee shall be assessed and added to the renewal fee and shall be paid by the applicant before the renewal license shall be issued.

60 Del. Laws, c. 671, § 1; 65 Del. Laws, c. 187, § 5; 67 Del. Laws, c. 137, § 1; 67 Del. Laws, c. 260, § 1; 72 Del. Laws, c. 233, § 2; 72 Del. Laws, c. 234, § 2.;

(a) The Department shall refuse to grant a license until the applicant has furnished evidence of financial responsibility with the Department consisting either of a surety bond or a liability insurance policy or certification thereof, or other evidence of financial responsibility acceptable to the Department within the financial capabilities of the industries involved. The Department may determine the insurance and surety requirements after due notice and a hearing.

(b) The Department may refuse to grant a license to any person who has committed any unlawful acts pursuant to § 1224 of this title.

60 Del. Laws, c. 671, § 1; 72 Del. Laws, c. 234, § 3.;

(a) The Department may, after notice and opportunity for a hearing, suspend or modify any license granted under this chapter where the Department has reasonable grounds to believe that the licensee is responsible for any unlawful acts pursuant to § 1224 of this title. The Department shall furnish the licensee with notice of the time and place of the hearing, which notice shall be served personally or by registered mail directed to the licensee's place of business or last known address with postage fully paid within 10 days prior to the time fixed for the hearing.

(b)(1) The Department may, after notice and opportunity for hearing, revoke any license granted under this chapter if the licensee has been found to have committed any unlawful act under this chapter.

(2) Should the surety furnished for a license become unsatisfactory, the licensee shall, upon notice, immediately execute a new bond, insurance or other financial responsibility, or, should the licensee fail to furnish a new surety, the Department shall revoke the license and give the licensee notice of the revocation.

(3) Should the licensee no longer employ a certified applicator with 2 years practical experience, the department shall revoke the licensee's license and give the licensee notice of the revocation.

60 Del. Laws, c. 671, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 234, § 3.;

All licenses shall continue in effect until December 31 of the year in which the license expires, whereupon they shall become invalid unless renewed, except that a license for which a renewal application has been submitted to the Department by November 30 shall remain in full force and effect until such time as the Department gives written notice to the license holder of renewal or denial. Forms for renewal shall be mailed to all holders of current licenses by the Department by October 1 of the year in which they expire.

60 Del. Laws, c. 671, § 1; 72 Del. Laws, c. 233, § 3.;

This subchapter, relating to licenses and requirements for their issuance, shall not apply to research personnel applying pesticides to bona fide experimental plots. By regulation, the Department may exempt certain license applicants from the experience requirements specified in § 1207(c) of this title. Exemptions from the § 1207(c) requirements shall include, but not be limited to, persons applying pesticides to turf or ornamental plants.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1; 72 Del. Laws, c. 234, § 4.;

(a) The Department shall by regulation provide a program of registering noncertified individuals in the employ of licensees.

(b) The Department shall by regulation charge a fee not to exceed $25 for the registration of noncertified individuals in the employ of licensees.

(c) The employee registration fee shall not be required of a certified commercial applicator, provided that the applicator's certificate is valid.

60 Del. Laws, c. 671, § 1; 67 Del. Laws, c. 275, §§ 1-3.;

Any nonresident applying for a license under this chapter shall appoint and constitute the Secretary of State of this State the nonresident's agent for the acceptance of legal process in any civil action against such nonresident. Any such process when so served shall be of the same legal force and validity as if served upon such nonresident personally within the State. Such appointment shall be irrevocable and binding on the nonresident's executor or administrator; provided, however, that any such nonresident who has a duly appointed resident agent upon whom process may be served as provided by law shall not be required to designate the Secretary of State as such agent. The Secretary of State shall be allowed such fees therefor as provided by law for designating resident agents. The Department shall be furnished with a copy of such designation of the Secretary of State or of a resident agent, such copy to be duly certified by the Secretary of State.

60 Del. Laws, c. 671, § 1; 70 Del. Laws, c. 186, § 1.;

(a) The Department shall require that:

(1) No person may use a pesticide designated as a "state restricted use pesticide" until that person has a permit duly issued by the Department; and

(2) No person may sell a "restricted use pesticide" or a "state restricted use pesticide" unless that person has a dealer permit.

(b) Applications for permits shall be made to the Department on forms prepared by it. The Department shall grant a permit to purchase and/or use a pesticide designated for use as a "state restricted pesticide use" subject to such restrictions as it 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 the Department finds necessary to carry out the purposes of this chapter. Permits shall be issued on an annual basis.

(c) The Department shall promulgate such rules, regulations and fees necessary to carry into effect this section and to alter or uniformly suspend such rules, regulations and fees when necessary. Prior to the promulgation of any rules, regulations and fees, the Department shall hold public hearings following due notice. The hearings shall be conducted by the Department for the purpose of receiving evidence relevant and material to the issues, following the conclusion of which the Department shall issue such rules, regulations and fees as it sees fit, based on the evidence received at such hearings. An appeal from that order may be taken to the Superior Court within 30 days of the date of the order.

(d) The Department may require a permit fee.

(e) Provided the State is authorized by the Administrator of E.P.A. to issue experimental use permits, the Department may:

(1) Issue an experimental use permit to any person applying for an experimental use permit if it determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide under § 1204 of this title. An application for an experimental use permit may be filed at the time of, or before or after an application for registration is filed;

(2) Prescribe terms, conditions and periods of time for the experimental use permit which shall be under the supervision of the Department; and

(3) Revoke or modify any experimental use permit, at any time, if it finds that its terms or conditions are being violated, or that its terms and conditions are inadequate to avoid unreasonable adverse effects on the environment.

(f) All permits, except experimental use permits, shall continue in full force and effect until December 31st of each year whereupon they shall become invalid unless renewed, except that a permit for which a renewal application has been submitted to the Department by December 31st shall remain in full force and effect until such time as the Department gives written notice to the permit holder of renewal or denial. Forms for renewal shall be mailed to all holders of current permits by the Department by October 1st of each year.

(g)(1) The Department may deny a permit to any person if it finds after a hearing that the public interest requires such denial.

(2) The Department may revoke a permit, after due notice to the permit holder and opportunity for hearing, if it finds that the permit holder has violated this chapter, or if an emergency creates a clear and present danger to the overall public interest and welfare from the uses authorized by the permit.

(3) A person whose permit is denied or revoked may request a hearing before the Department. A hearing shall be held within 30 days after request. Within 30 days after the hearing, the Department shall affirm, withdraw or modify its action by an order based upon the record of the hearing. An appeal from that order may be taken to the Superior Court within 30 days of the date of the order.

58 Del. Laws, c. 166; 60 Del. Laws, c. 671, § 1; 67 Del. Laws, c. 51, § 2.;