SENATE BILL 103

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Mimi Stewart

 

 

 

 

 

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 that act selectively on nicotine acetylcholine receptors of organisms and are absorbed into plant tissue and that can be present in pollen and nectar, including acetamiprid, clothianidin, dinotefuran, imidacloprid, nithiazine, nitenpyram, thiacloprid and thiamethoxam and any other pesticide identified as a neonicotinoid by the United States environmental protection agency;

                   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 visited by pollinators, including 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