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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Agriculture
Chapter : REGULATORY PROVISIONS
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3-201.01 Associate director; powers and duties
A. The associate director may, as authorized by the director:
1. Quarantine, treat, eradicate, destroy or reject out of state pests and all
plants that are infested or infected with pests or that are the host or carrier or the
means of propagating or disseminating a pest.
2. Enforce all rules and orders necessary to carry out the purposes of this
article:
(a) To prevent introduction of a pest into the state.
(b) To prevent propagation or dissemination of a pest from one locality to another
in this state.
(c) To control, eradicate or suppress a pest or prevent introduction into this
state of a pest from out of state.
(d) To fix the terms and conditions on which plants or any other article or thing
of any nature whatever likely to be infested or infected with or be the carrier of, or
the means of propagating or disseminating, a pest that may be shipped or brought into
this state, or moved from one locality or place to another in this state.
(e) To prohibit plants or things likely to be infected with, be the carrier of or
be the means of spreading, propagating or disseminating a pest from being shipped or
brought into this state or moved from one locality to another in this state.
3. Cooperate with the United States secretary of agriculture and the secretary's
representatives in interstate matters pertaining to the objects of this article.
4. Proceed according to law to abate any public nuisance prohibited by this
article.
5. Establish fees pursuant to section 3-217 and adopt rules necessary to effect and
administer an ARIZONA nursery certification program, for any person who requests to
participate, to certify that a participating nursery meets the criteria established by
the associate director or the entry criteria established by another state, commonwealth
or country.
6. Require records to determine the origin and quarantine certification status of
nursery stock sold, offered for sale or transported by any person into or within this
state.
B. The associate director shall:
1. Keep the director informed concerning dangers to the agricultural and
horticultural interests of this state from pests.
2. Faithfully enforce and execute all rules and orders of the department pertaining
to the division, using all necessary and proper means including court action.
3. Prepare, publish electronically, post and make available at least once each year
bulletins containing such information as the associate director deems proper and the
current rules and orders of the department.
4. Enter in or on any premises or other place, train, vehicle or other means of
transportation in or entering this state that is suspected of containing, harboring or
having present one or more pests.
5. Make inspections to determine if a pest is present.
6. Open, without unnecessary injury to property, any box, container or package at
any time during business or operating hours, and, after notifying the owner or person in
charge, if the owner or person in charge is found in the county, open any car, enclosure
or building that the associate director suspects contains, harbors or has present a pest,
and examine and inspect the contents as may be necessary to determine if a pest is
present.
7. If in performing other duties the associate director determines that plant
materials inspected and being delivered or transported or shipped by mail or courier are
dead, dying or otherwise inferior in quality, mark the plant or package, or both,
advising the recipient and sender that, in the judgment of the associate director, the
plant materials were found to be dead, dying or of inferior quality. This paragraph does
not authorize the associate director to perform inspections solely for the purposes set
forth in this paragraph.
3-201 Definitions
In this article, unless the context otherwise requires:
1. "Associate director" means the associate director of the division.
2. "Diseases" includes any fungus, bacterium, virus or other organism of any kind
and any unknown cause that is or may be found to be injurious, or likely to be or to
become injurious to any domesticated or cultivated plant, or to the product of any such
plant.
3. "Division" means the plant services division of the ARIZONA department of
agriculture.
4. "Noxious weed" means any species of plant that is, or is liable to be,
detrimental or destructive and difficult to control or eradicate and shall include any
species that the director, after investigation and hearing, shall determine to be a
noxious weed.
5. "Nursery" means real property or other premises on or in which nursery stock is
propagated, grown or cultivated or from which source nursery stock is offered for
distribution or sale.
6. "Nursery stock" includes all trees, shrubs, vines, cacti, agaves, succulents,
herbaceous plants whether annuals, biennials or perennials, bulbs, corms, rizomes, roots,
decorative plant material, flowers, fruit pits or seeds, cuttings, buds, grafts, scions
and other plants intended for sale, gift or propagation, either cultivated or collected
in the wild, except seeds as regulated by article 2 of this chapter, fruit and vegetables
regulated by chapter 3, articles 2 and 4 of this title and cotton plants.
7. "Pests" includes all noxious weeds, insects, diseases, mites, spiders, nematodes
and other animal or plant organisms found injurious, or likely to be or to become
injurious, to any domesticated, cultivated, native or wild plant, or to the product of
any such plant.
8. "Plant" or "crop" includes every kind of vegetation, wild or domesticated, and
any part thereof, as well as seed, fruit or other natural product of such vegetation.
9. "Shipment" includes anything that is brought into the state or that is
transported within the state and that may be the host or may contain or carry or may be
susceptible of containing, carrying or having present on, in or about it any plant pest
or plant disease. 3-202 Infested or infected plants as publicnuisances
All plants, soil and other things found infested or infected with a crop pest or
disease or which are the host or carrier or means of disseminating or propagating a crop
pest or disease is declared a public nuisance, and may be abated, suppressed, controlled
or regulated as provided in this article and by the rules and orders of the director.
3-203 Quarantine of infected and diseasedplants; notice; hearing
A. When a plant or any other thing is found infested or infected by or to contain
or harbor a crop pest or disease, the director shall place thereon a written warning or
notice, stating:
1. That the plant or thing is held under quarantine by the department.
2. That all persons are forbidden to remove or otherwise disturb the plant or thing
pending further action by the department under section 3-204 or 3-205.
B. The director shall, as soon as practical, notify in writing the owner or person
in charge of the plant or thing, if he can be found within the county, of his finding the
crop pest or disease, stating the name thereof, and giving a sufficient description of
the plant or thing by name, location or otherwise in order that it may be readily
identified.
C. An owner or person in charge of a plant or thing that is subject to this section
may request a hearing pursuant to title 41, chapter 6, article 10, but the request for a
hearing shall not stay necessary abatement action under section 3-204 or 3-205.
3-204 Summary abatement of imminently dangerousnuisance; procedure; expense; lien; public sale; reimbursement costsand penalties to state for certain abatements
A. If, in the opinion of the director, the danger to the agricultural and
horticultural industry of the state is imminent if the nuisance caused by a plant or
thing is not speedily abated or suppressed, and if he finds it is practical to summarily
abate the nuisance, either by the destruction of the plant or thing or by the treatment
thereof so as to destroy or eradicate the crop pest or disease without actually
destroying the plant or thing, the director shall in writing direct the owner or person
in charge of the nuisance, if he is found in the county, forthwith and at his expense to
abate and suppress the nuisance in the manner provided in the written direction. If the
owner or person in charge fails or neglects to comply with the direction for a period of
five days after the date on which the direction was delivered to or served upon him, then
the director shall summarily abate the nuisance in the manner specified in the written
direction.
B. If the owner or person in charge or control of the nuisance is a nonresident of
the state or cannot, after reasonable diligence by the director, be found within the
county where the nuisance exists, the director shall publish the notice and the direction
one time in a newspaper published in the county, and shall post a copy at, on or in the
immediate vicinity of the nuisance, and after seven days from the first publication and
posting, the director shall abate the nuisance in the manner specified in the direction.
C. If the nuisance is abated by the director the expense shall be borne by the
state, but, when the abatement does not involve the destruction of the plant or thing and
it has some value after the crop pest or disease has been eradicated, then the state
shall have a first claim and lien thereon for the payment of expenses incurred in the
abatement of the nuisance.
D. The director shall notify the owner or person in charge or control of the
nuisance of the amount of the expenses, and that unless the amount is paid within ten
days after the date of service of the notice upon the owner or person in charge, the
plant or thing will be sold at public sale, and the proceeds, or so much thereof as may
be necessary, applied to the payment of the expenses. The notice shall be personally
served or posted as required in this section for notices to abate.
E. If the owner or person in charge of the plant or thing fails to pay the expenses
within the time specified in the notice, the director shall give public notice of the
time and place of sale with a description of the plant or thing to be sold, and the
amount of expenses against it, which shall include costs of publication, posting and
service of notice. The notice of sale shall be published and posted as provided in this
section for the publication and posting of direction to suppress the nuisance.
F. The owner or person in charge of a plant or thing constituting the nuisance may
waive in writing the service of all directions and notices in connection with the
abatement or sale thereof.
G. If the director is required to abate the nuisance of cotton or cotton stubble
which is not destroyed before a date established by the director or is required to abate
the nuisance of cotton planted before a date established by the director, unless the
director waives such dates due to variations in weather conditions, following the refusal
by the owner or person in charge or control of the nuisance to do so, the owner or person
in charge or control of the nuisance shall reimburse the department for the actual costs
of the state's abatement of the nuisance. An injunction shall not be granted to stay
this state from abating the nuisance. To collect the costs of reimbursement, the
director may either request reimbursement from the cotton research and protection council
under programs of the council to abate cotton fields or from the owner or person in
charge. If the actual costs of abatement are not paid within ten days after the owner or
person in charge receives notice of the amount of the costs, the director may impose a
penalty of fifty per cent of the costs of abatement and may prepare and file or record in
the office of the county recorder of the county where the land is situated a notice of
lien, setting forth the amount of the unpaid costs, the amount of the penalty and the
name of the owner or person in charge. Upon such recording, the amount required to be
reimbursed becomes a lien on the land subordinate only to any lien for state and local
taxes. The director may issue a notice of abatement penalty to be applied to any rebate
authorized pursuant to section 3-1083, subsection B, paragraph 4 and section 3-1087,
subsection B. All penalties collected under this section shall be deposited in the
cotton research and protection council fund established by section 3-1085.
3-205.01 Summary abatement of noxious weeds, crop pests or diseases under preapproved programs
The director may treat, spray, control, suppress or eradicate noxious weeds, crop
pests or diseases through a countywide, area-wide or statewide program or programs that
have been approved or authorized by the department. If such countywide, area-wide or
statewide program or programs affect cotton, the program or programs must also be
approved by the cotton research and protection council. The director may take whatever
actions that are necessary to assist, support or enforce such programs including entering
any fields to treat, spray, control, suppress or eradicate noxious weeds, crop pests or
diseases under these authorized or approved programs.
3-205.02 Regulating production of colored cotton; civil penalties
A. The director may adopt rules to regulate the production of colored cotton. The
rules shall include registering producers, production requirements, field separation,
cotton appliances used to produce, transport and handle colored cotton and ginning and
seed requirements.
B. The director may impose the following sanctions for violating colored cotton
rules:
1. A civil penalty assessed against a grower of not more than seven hundred fifty
dollars per acre for each planted acre of colored cotton unless the grower voluntarily
abates the colored cotton crop before the first bloom.
2. A civil penalty assessed against the owner or operator of a cotton gin of not
more than one hundred dollars per bale of colored cotton for violating ginning rules.
3. A civil penalty assessed against the owner or operator of a cotton appliance of
not more than five hundred dollars per violation for violating the cotton appliance
rules.
4. Suspension or revocation of a grower's colored cotton registration.
C. All civil penalties assessed pursuant to this section shall be deposited,
pursuant to sections 35-146 and 35-147, in the state general fund.
3-205 Abatement of nuisance not imminentlydangerous; procedure; lien; foreclosure; release of lien;reimbursement costs and penalties to state for certainabatements
A. If the director believes the danger to the agricultural and horticultural
industry is not imminent, or if impractical for any reason to summarily abate the
nuisance, as described in sections 3-203, 3-204, 3-206 and 3-207, the direction shall not
require summary destruction or eradication, but shall set forth the measures required to
be taken by the owner or person in charge to control, suppress or eradicate the danger,
and shall require the person, at his expense, to take and comply with the measures
specified in the direction and subsequent directions.
B. The directions shall be made, given and served as prescribed for summary
abatement, and if they are not complied with, the director may proceed as provided by the
directions, and the expense shall be charged against the state.
C. If the plant or thing constituting the nuisance consists only of personalty, and
is not attached to land or contained in a building, enclosure, vehicle or place belonging
to the person, the state shall have the same lien and it is enforceable in the same
manner as provided for summary abatement of the nuisance under section 3-204.
D. If the plant or thing is attached to land, or contained in a building, enclosure
or vehicle which is the property of the person, then the lien shall also attach to the
land, building, enclosure or vehicle, and the director shall prepare and file in the
office of the county recorder where the property is situated a notice of the lien,
setting forth the amount and the name of the owner or person in charge, and stating that
the amount of the lien shall be paid within thirty days from filing the notice, or
otherwise the property will be subjected to payment thereof.
E. The lien shall be prior to all other liens against the property except liens for
state and county taxes. If the amount of the lien is not paid within the thirty days,
the county attorney shall, on written request of the director, foreclose the lien against
the property impressed therewith as other liens are foreclosed.
F. Upon satisfaction of the lien, the director shall issue a release of the lien to
the person against whom the lien was claimed. Such release shall be a document in a form
as specified in section 11-480.
G. If the director is required to abate the nuisance of cotton or cotton stubble
which is not destroyed before a date established by the director or is required to abate
the nuisance of cotton planted before a date established by the director, unless the
director waives such dates due to variations in weather conditions, following the refusal
by the owner or person in charge or control of the nuisance to do so, the owner or person
in charge or control of the nuisance shall reimburse the department for the actual costs
of the state's abatement of the nuisance. In addition, a penalty of fifty per cent of
the costs of the state's abatement of the nuisance shall be imposed. All penalties shall
be deposited in the cotton research and protection council fund established by section
3-1085. An injunction shall not be granted to stay this state from abating the
nuisance. To collect the costs of reimbursement, the director may either request
reimbursement from the cotton research and protection council under programs of the
council to abate cotton fields or from the owner or person in charge. If the actual costs
of abatement are not paid within ten days after the owner or person in charge receives
notice of the amount of the costs, the department may charge one hundred fifty per cent
of the costs and may prepare and file or record in the office of the county recorder of
the county where the land is situated a notice of lien, setting forth the amount of the
unpaid costs and the name of the owner or person in charge, and upon such recording, the
amount required to be reimbursed becomes a lien on the land subordinate only to any lien
for state and local taxes. The director may issue a notice of abatement penalty to be
applied to any rebate authorized pursuant to section 3-1083, subsection B, paragraph 4
and section 3-1087, subsection B.
3-206 Destruction of noninfected crops uponabatement of nuisance; procedure; hearing; evidence;compensation
A. If the plants constituting the nuisance consist of growing crops, trees,
orchards, vines or shrubbery, and the infestation or infection is by a plant pest or
disease of such a nature, or if the location of the plants with respect to other plants
not infested or infected is a part of the same crop, or is growing immediately adjacent
to the infested or infected plants, and the director believes it is impractical to abate
the nuisance, and to suppress, eradicate or control the crop pest or disease without
destroying the whole of the crop, trees, orchard, vines or shrubbery of which the
infested or infected plants are a part, or without serious injury to uninfected or
uninfested plants, then the director may adopt proper measures to control, eradicate and
suppress the crop pest or disease, although it causes a destruction of the crops, trees,
orchards, vines and shrubbery, or an injury to uninfected or uninfested plants which are
a part of the crops, trees, orchards, vines or shrubbery.
B. Before proceeding with abatement of the nuisance or suppressing, eradicating or
controlling the crop pest or disease, the director shall serve written notice upon the
owner or person in charge of the premises on which the nuisance is located, specifying
the infestation or infection and directing the person to appear at a hearing to be held
at a time and place within the county where the nuisance exists, and show cause why the
crop, trees, orchard, vines or shrubbery should not be destroyed in whole or in part.
C. The notice shall be personally served on the person, if he is found within the
county where the nuisance exists, at least five days prior to the hearing. If the person
is a nonresident or cannot be found in the county, then the notice shall be published in
a newspaper published in the county for at least seven days prior to the hearing, and in
addition, a copy thereof shall be posted in a conspicuous place on or at the premises
involved for a like period.
D. Any interested party may appear at the hearing and be heard, either in person
or by attorney. The hearing officer shall preserve a record of all evidence introduced,
and at the conclusion of the hearing shall enter an order conforming to his findings.
E. Any crop or portion thereof which is destroyed pursuant to this section shall be
paid for from the general fund. The payments shall equal sixty per cent of its value at
the time of destruction. If the damages are disputed the director may settle the dispute
by arbitration.
3-207 Crop pest or disease menacing state;notice of hearing; publication
A. When a crop pest or disease is discovered within this state, or any section of
an adjoining state or country, which the director believes menaces or threatens serious
injury to the horticultural or agricultural industry of this state unless the crop pest
or disease is eradicated, suppressed or controlled so as not to cause the threatened
injury, and if the director believes it impractical to prevent the threatened injury
except by destruction in whole or part of uninfested or uninfected plants within this
state which would, if not destroyed or injured, permit the crop pest or disease to be
introduced into this state or cause its spread and dissemination either within or without
the state, he shall give public notice of the menace stating the character thereof, its
present location and the crops to which it is injurious. The notice shall direct all
persons interested:
1. To appear at the division office at a time therein specified to consider
measures for the suppression, eradication or control of the threatened injury.
2. To show cause why the director should not order the destruction or injury of all
or such portion of the plants, which, if not destroyed or injured, will become the means
of introducing the crop pest or disease into the state or of spreading it to other
places, or to show cause why a quarantine zone should not be established.
B. The notice shall be published at least seven days prior to the hearing in at
least one newspaper for at least one insertion in each county wherein the director deems
it necessary to destroy or injure the plants, and in a newspaper published at Phoenix.
3-208 Hearing on plant menace; evidence;quarantine zones; violation
A. Any interested party may be heard at the hearing, either in person or by
attorney. The department shall preserve a written record of all evidence introduced at
the hearing.
B. If the director finds that a menace exists, he may make and enforce rules and
orders and establish quarantine zones or districts to eradicate, suppress or control the
menace.
C. When the director finds the danger which caused the establishment of a
prohibited zone is no longer present, he shall revoke the order establishing the zone,
and may by order change or modify the order establishing a zone or applicable rules
without notice or hearing, but no additional territory shall by subsequent order be added
to or included within the boundaries of the zone except by notice and hearing as required
for establishing the zone.
D. After the date on which the director enters the order establishing a zone, it
shall be unlawful to plant, grow or cultivate, or have in, or to transport from or into
the district any plant of the kind specified in the order except in accordance with the
order or subsequent orders.
3-209 Quarantines; notice to common carriers;duty to hold for inspection; certificate of release;inspection
A. When the director believes the importation from designated countries, states or
localities of specified varieties of plants, fruits, vegetables, seeds, soil or
agricultural or horticultural products is dangerous to this state or to the agricultural
or horticultural industry of this state because of the likelihood of infestation with
crop pests or diseases, the director may declare a quarantine against all varieties from
those places. Common carriers shall be immediately notified of the declaration of
quarantine and are prohibited from transporting quarantined products or pests and
diseases associated with the quarantined products from the designated places into the
state.
B. Any person who brings or causes to be brought into the state plants, fruits,
vegetables or agricultural or horticultural products is subject to either of the
following procedures:
1. The inspector may issue a certificate of release to the person at a properly
signed border inspection station.
2. The inspector may instruct the person, at a properly signed border inspection
station, to hold the shipment at the place where it is to be received, without
unnecessarily moving or placing it where it may be harmful, for immediate inspection of
the inspector, and shall not deliver the shipment to the person entitled to it until
furnished with a certificate of release by the inspector.
C. If a person does not obtain a certificate of release as prescribed by subsection
B, the person shall, immediately after arrival in this state, notify the inspector of the
place where the shipment will be received, and hold it, without unnecessarily moving or
placing it where it may be harmful for immediate inspection of the inspector, and shall
not deliver the shipment to the person entitled to it until furnished with a certificate
of release by the inspector.
D. The director, the associate director or the inspector may enter into any place
where the products are received, as described in subsection C, for the purpose of making
the investigation or examination.
3-210 Destruction of infected shipments
A. When a shipment of any plant, plant product, soil or other thing imported or
brought into the state is found to be infested by or to harbor insects, noxious weeds or
other pests dangerous to the interests of the state, the director shall notify, in
writing, the shipper, consignee or owner, and shall require the shipper, consignee or
owner, at the owner's option, immediately to reship from the state, treat or destroy the
plant or other thing in whole or in part as the director deems necessary, at the owner's
expense. If the shipper, consignee or owner neglects or refuses to reship from the state
or treat or destroy the infested shipment the director shall order the infested shipment
to be destroyed.
B. A shipper, consignee or owner of any plant, plant product, soil or other thing
that is subject to this section may request a hearing pursuant to title 41, chapter 6,
article 10, but the request for a hearing shall not stay necessary treatment action under
this section.
3-211 Imported nursery stock; labeling;certificate of inspection
Nursery stock shipped into this state from another state or country shall be
prominently labeled with the name and address of both the shipper and consignee, and
shall be accompanied by a certificate of inspection dated within one year, or a copy of
the certificate, made by a duly authorized official of the state or country in which the
stock was grown. Shipments of plants, fruits, vegetables or seeds, not grown in the
locality from which shipment was made, shall, in addition, specify where the plants or
products were grown. Shipments into the state shall conform to rules adopted by the
director.
3-212 Infested plants; sale or transportationprohibited; disposition of infested or wormy apples andpears
A. It is unlawful to offer for sale, sell, give away or transport, except from the
state as provided in section 3-211, plants, fruits, vegetables or seeds known to be
infested by dangerously injurious insects or plant diseases or known to harbor any pest
whatsoever.
B. When apples or pears are infested by the coddling moth, plain evidence of injury
by this insect to the fruit shall constitute a condition of infestation.
C. When the director believes the protection of the industry requires such action,
fruit commonly known as "wormy," together with other apples or pears in the same
container or lot together with the containers, shall be declared a public nuisance by the
director, and offering for sale, selling, giving away or transporting the fruit after it
is declared a public nuisance is unlawful.
3-213 Concealment of plants or agriculturalproducts
It is unlawful for a person to conceal from a quarantine officer any plant or plant
product or to fail to present such plant or plant product or any quarantined article for
inspection at the request of such officer.
3-214.01 Dangerous plants, pests and diseases fund
A. A dangerous plants, pests and diseases fund is established. All monies
collected under the provisions of this article except civil penalties assessed pursuant
to section 3-204, 3-205, 3-205.02 or 3-215.01 shall be deposited, pursuant to sections
35-146 and 35-147, in the dangerous plants, pests and diseases fund.
B. The director shall administer the fund. On notice from the director, the state
treasurer shall invest and divest monies in the fund as provided by section 35-313, and
monies earned from investment shall be credited to the fund.
C. All monies in the dangerous plants, pests and diseases fund are to be used by
the department subject to legislative appropriation to carry out the provisions of this
article, including salaries, fees and office, administrative, bonding and travel expenses
incurred.
D. The unexpended and unencumbered balance of monies, if any, remaining in the
dangerous plants, pests and diseases fund at the end of each fiscal year shall not revert
to the state general fund.
3-214 Failure to stop at inspectionstation
It is unlawful for a person in possession or in control of a vehicle to fail to stop
the vehicle at a properly signed border inspection station, or upon demand of a plant
quarantine officer, for the purpose of determining whether any quarantine established
pursuant to the provisions of law is being violated or whether the vehicle may harbor
pests or diseases associated with a quarantine.
3-215.01 Violation; civil penalty
A. A person who knowingly transports or causes the transportation of a crop pest or
crop disease into this state is subject to a civil penalty as prescribed by subsection B
of this section. A person who receives a certificate of release under section 3-209 is
exempt from this section.
B. The director may bring an action under this section in superior court in the
county in which a violation is alleged to have occurred. On finding a knowing violation,
the court may assess the civil penalty in an amount it considers appropriate, but not
exceeding five thousand dollars for each violation. In determining the amount of the
penalty, the court shall consider at least the following items:
1. Any prior violations of the same nature within the preceding twenty-four months.
2. The actual consequences and danger of the crop pest or crop disease to the state
or to the agricultural or horticultural industry in this state.
3. The commodity or other thing that carries the crop pest or crop disease into
this state.
4. The class of crop pest or crop disease introduced.
5. Whether the defendant possesses a certificate of release.
6. Any abatement action taken by the defendant.
7. The extent of the infestation.
C. All civil penalties assessed pursuant to this section shall be deposited,
pursuant to sections 35-146 and 35-147, in the state general fund.
3-215 Violations; classification
A. It is unlawful to knowingly refuse or fail to comply with any rule or order
adopted by the director to protect the agricultural or horticultural industry, or adopted
to control a quarantine zone established by the director. A violation of this subsection
is a class 2 misdemeanor.
B. A person obstructing or conspiring to obstruct the director or his
representatives, in the performance of their duties, or who violates any provision of
this article is guilty of a class 1 misdemeanor. Each separate violation shall
constitute a separate offense.
C. This section does not apply to a person who fails to destroy cotton or cotton
stubble before an established date or who plants cotton before an established date.
3-216 Enforcement powers of deputy, inspectoror agent; cooperation
A. When any power or authority is given by any provision of this article to the
director, it may be exercised by any deputy, inspector or agent duly authorized by the
director.
B. Any person in whom the enforcement of any provision of this article is vested
has the power of a peace officer as to such enforcement.
C. By interagency agreement, the department of agriculture and the motor vehicle
division of the department of transportation shall cooperate at the ports of entry to
carry out the provisions of this article.
3-217 Nursery or nursery stock certification;fee; denial, revocation or suspension; hearing
A. If the associate director establishes a nursery certification program, the
associate director, by rule, shall set and collect a variable fee for each nursery or
nursery stock certification inspection based on a schedule of costs for services as may
be appropriate to recover the actual direct costs incurred by the division, but not more
than fifty dollars for each inspection.
B. If the state agricultural laboratory performs tests under a nursery
certification program, the laboratory may collect fees prescribed by rule for the tests
established as follows:
1. The associate director shall establish by rule the extent and type of testing
required for the ARIZONA certified nursery program including only tests that the
department would not otherwise have performed to determine if the nursery or nursery
stock is infested or infected with a crop pest or disease.
2. The extent and type of testing required for the export criteria program shall be
established according to the requirements of another state, country or commonwealth.
C. The associate director may issue, refuse to issue, revoke or suspend a nursery
certificate under the nursery certification program.
D. A person who is aggrieved by any action under the nursery certification program
may request a hearing pursuant to title 41, chapter 6, article 10.
3-218 Citrus budwood certification; fee
A. The director may direct a state citrus budwood certification program. Under the
program, inspectors may:
1. Monitor the fumigation of blocks of citrus trees.
2. Monitor the transplanting of seedlings from the seed bed.
3. Monitor the cutting of budwood from mother blocks or other certified blocks
within a twenty-four hour period.
4. Tag certified citrus trees with certified tags.
5. Map blocks in a certified nursery.
6. Audit records that are kept by the nursery and by private inspection
associations.
B. The director may assess a fee of not more than ten cents per budwood to cover
the costs of implementing the citrus budwood certification program. The director shall
establish the amount of the fee by rule pursuant to a cooperative agreement among the
department, private inspection associations and the university of ARIZONA, Yuma Mesa
agricultural center. The director shall deposit, pursuant to sections 35-146 and 35-147,
revenues collected from the fee in the dangerous plants, pests and diseases fund
established by section 3-214.01.
3-221 Agreements for joint exercise of powers;review by attorney general; continuing obligation
A. The director may enter into agreements with adjoining states for the joint
exercise of power in the construction and operation of inspection stations or other
necessary facilities within the boundaries of this state or the adjoining state and the
director may contract for such construction by an adjoining state if such method is
determined to be economically feasible.
B. Any such agreement made with an adjoining state shall be submitted to the
attorney general who shall determine whether the agreement is in proper form and is
within the powers and authority of the laws of this state.
C. No agreement made under the provisions of this article shall relieve the
department of any obligation or responsibility imposed upon it by law or by the
Constitution of ARIZONA.
D. The director may by administrative arrangement or by contract make agreements
for the operation of the inspection station which are not precluded by law or the
constitution.
3-222 Employees assigned to adjoiningstate
Employees of the department who are assigned to inspection stations or other
facilities operating under a joint state agreement and located within an adjoining state
shall retain all rights and privileges of, and shall be subject to all laws, rules and
regulations governing, other state employees.
3-223 Interdivision livestockinspection
The plant services division, the animal services division and the office of
inspections shall cooperate to provide livestock inspections at border inspection
stations or department offices as required under section 3-1332, subsection E and to
train the appropriate personnel to perform the livestock inspections. 3-231 Definitions
In this article, unless the context otherwise requires:
1. "Advertisement" means all representations, other than those on the label, made
in any manner relating to seed within the scope of this article.
2. "Agricultural seed" means the seeds of grass, forage, cereal, and fiber crops
and any other kinds of seeds commonly recognized within this state as agricultural seeds,
lawn seeds and mixtures of such seeds, and may include noxious-weed seeds when the
department determines that such seed is being used as agricultural seed.
3. "Cease and desist order" means an administrative order provided by law
restraining the sale, use, disposition and movement of a definite amount of seed.
4. "Certified seed" or "registered seed" means seed that has been produced and
labeled in accordance with the procedures and in compliance with the rules and
regulations of an officially recognized seed-certifying agency.
5. "Custom application" means an application of pesticide to a seed by a pesticide
applicator who does not hold title to the seed.
6. "Dealer" means any person who sells seed.
7. "Division" means the environmental services division of the ARIZONA department
of agriculture.
8. "Established plant, warehouse, or place of business" means any permanent office
headquarters maintained by an importer, broker, seller or authorized manufacturer's
agent, or any permanent warehouse, building or structure in or from which a permanent
business is operated, at which stocks of agricultural seed, vegetable seed or ornamental
plant seed regulated by this article are sold, distributed, processed, mixed, stored or
kept.
9. "Hybrid" means the first generation seed of a crossbreed produced by controlling
pollination and by combining two or more inbred lines, or one inbred or a single
crossbreed with an open pollinated variety, or two varieties or species, except open
pollinated varieties of corn (zea mays). The second generation, or subsequent
generations from such crosses, shall not be regarded as crosses. Hybrid designations
shall be treated as variety names. Any kinds or varieties that have pure seed which is
less than ninety-five per cent but more than seventy-five per cent hybrid seed as a
result of incompletely controlled pollination in a cross shall be labeled to show the
percentage of pure seed that is hybrid seed, or shall be labeled with a statement such as
"contains from seventy-five per cent to ninety-five per cent hybrid seed". No one kind
of seed shall be labeled as hybrid if the pure seed contains less than seventy-five per
cent hybrid seed.
10. "Inoculant" means a commercial preparation containing nitrogen-fixing bacteria
that is applied to seed.
11. "Kind" means one or more related species or subspecies which singly or
collectively are known by one common name, such as corn, oats, alfalfa and timothy.
12. "Label" means any label or other written, printed or graphic representations, in
any form whatsoever, accompanying or pertaining to any seed whether in bulk or in
containers and includes representations or invoices.
13. "Labeler" means any person whose name and address appear on the label pertaining
to or attached to a lot or container of agricultural, vegetable or ornamental plant seed
sold, offered for sale, exposed for sale or transported for sowing purposes.
14. "License" means an ARIZONA state seed license that is obtained from the
department.
15. "Lot" means a definite quantity of seed identified by a lot number or other
mark, every portion or bag of which is uniform within recognized tolerances for the
factors which appear in the labeling.
16. "Noxious-weed seeds" means "prohibited noxious-weed seeds" and "restricted
noxious-weed seeds" as defined as follows and as listed in the rules adopted under this
article.
(a) "Prohibited noxious-weed seeds" are the seeds of perennial or annual weeds
which, when established, are highly destructive and difficult to control by ordinary good
cultural practice and the seed of which is prohibited by this article subject to
recognized tolerances.
(b) "Restricted noxious-weed seeds" are all noxious-weed seed not classified as
prohibited noxious-weed seed.
17. "Ornamental plant seed" means the seed of any plant used for decorative or
ornamental purposes and includes flower seed.
18. "Person" means any individual, partnership, corporation, company, society or
association.
19. "Pure seed", "germination" and other seed labeling and testing terms in common
usage shall be defined as in the federal seed act (53 Stat. 1275; 7 United States Code
sections 1551 through 1611) and the rules and regulations promulgated under that act.
20. "Record" means all information relating to the shipment or shipments involved
and includes a file sample of each lot of seed.
21. "Sell" means offer for sale, expose for sale, possess for sale, exchange, barter
or trade.
22. "Treated" means that the seed has received an application of a substance or
process that is designed to reduce, control or repel certain disease organisms, insects
or other pests attacking such seeds or seedlings growing from the seeds.
23. "Type" means either a group of varieties so similar that the individual
varieties cannot be clearly differentiated except under special conditions or, when used
with a variety name, seed of the variety named which may be mixed with seed of other
varieties of the same kind and of similar character. If type is designated, the
designation may be associated with the name of the kind but in all cases shall be clearly
associated with the word "type". If the type designation does not include a variety
name, it shall include a name that describes a group of varieties of similar character,
and the pure seed shall be at least ninety per cent of one or more varieties all of which
conform to the type designation.
24. "Variety" means a subdivision of a kind characterized by growth, yield, plant,
fruit, seed or other characteristics by which it can be differentiated from other plants
of the same kind.
25. "Vegetable seeds" means seeds of those crops which are grown in gardens and on
truck farms and are generally known and sold under the name of vegetable seeds in this
state.
26. "Weed seeds" means the seeds of all plants generally recognized as weeds within
this state and includes noxious-weed seeds.
3-232 Enforcement of article
A. The director shall enforce the provisions of this article. The director shall:
1. Sample, inspect, analyze and test agricultural, vegetable and ornamental plant
seed transported, sold or offered or exposed for sale for sowing purposes, as provided by
section 3-233 and to the extent he deems necessary to determine whether the agricultural,
vegetable and ornamental plant seeds are in compliance with the provisions of this
article, and he shall notify promptly the person who transported, sold, offered or
exposed the seed for sale of any violation.
2. Prescribe and, after public hearing following due public notice, adopt rules
governing:
(a) The methods of sampling, inspecting, analyzing, testing and examining
agricultural, vegetable and ornamental plant seed and the tolerances to be followed in
the administration of this article that comply with the federal seed act (7 United States
Code sections 1551 through 1611; 53 Stat. 1275) and the rules and regulations promulgated
under that act.
(b) A prohibited and restricted noxious weed list and subsequent revisions to the
list.
(c) Reasonable standards of germination for vegetable seeds.
(d) Such other rules as are necessary to secure the efficient enforcement of this
article.
3. Designate seed-certifying agencies which he finds qualified to certify
agricultural or vegetable seeds as to variety, purity, quality or other related
designations. The director shall consult with the director of the university of ARIZONA
agricultural experiment station before approving the qualifications of any agency to
certify as to variety, strain or other genetic character of agricultural or vegetable
seeds.
B. The director may assign personnel from the office of inspections to perform any
of the inspection-related activities prescribed by this article.
3-233 Powers and duties; fees; penalty
A. For the purpose of carrying out this article, the director may:
1. In order to have access to seeds and the records pertaining to seeds subject to
this article and the rules adopted under this article, enter upon:
(a) Any established plant, warehouse or place of business during customary business
hours.
(b) Any truck or other conveyance operated on land, on water or in the air on
probable cause or reasonable suspicion to believe that a violation of this article has
occurred.
2. Issue and enforce a written cease and desist order to the owner or custodian of
any lot of agricultural, vegetable or ornamental plant seed which the director finds is
in violation of this article, as provided in section 3-238, and any lot or lots of seed
sold, or transported for sale, which do not meet all requirements of the plant variety
protection act (P.L. 91-577; 84 Stat. 1542; 7 United States Code sections 2321 through
2582).
3. Provide through the state agricultural laboratory for seed testing facilities,
employ qualified persons and incur expenses necessary to comply with this article.
4. Through the state agricultural laboratory:
(a) Provide for making purity and germination tests of seeds for farmers and
dealers on request pursuant to rules prescribed by the director governing such testing.
(b) Collect charges for the tests as prescribed by the director.
5. Cooperate with the United States department of agriculture and other agencies in
seed law enforcement.
6. Revoke, suspend, restrict, deny or choose not to renew a license issued under
this article or fix periods and terms of probation for a license holder after a hearing
at which the license holder is found by a preponderance of the evidence to have violated
this article or any of the rules adopted under this article.
7. Establish by rule fees that are sufficient to cover the costs of interstate and
international exportation inspection activities under section 3-232, subsection A,
paragraph 1, but annually not more than one dollar fifty cents per acre. Monies received
under this paragraph shall be deposited in the seed law fund pursuant to section 3-234.
B. For purposes of this article, the director, after an opportunity for a hearing,
shall establish and collect the following fees:
1. For a seed dealer's license, not more than fifty dollars per year.
2. For a labeler's license, not more than five hundred dollars per year.
C. The director shall assess a license holder who does not submit the annual
license renewal fees to the department by July 1 a penalty of ten per cent of the amount
of the license fee per month for not more than three months. Penalties collected under
this subsection shall be deposited in the seed law fund pursuant to section 3-234.
3-234 Seed law fund
A. A seed law fund is established. All monies collected pursuant to section 3-233
shall be deposited, pursuant to sections 35-146 and 35-147, in the seed law fund.
B. The director shall administer the fund. On notice from the director, the state
treasurer shall invest and divest monies in the fund as provided by section 35-313, and
monies earned from investment shall be credited to the fund.
C. All monies in the seed law fund are subject to legislative appropriation to the
department to be spent as directed by the director to carry out the provisions of this
article.
3-235 Seed dealer and labeler licenses; fee;exception
A. An ARIZONA seed dealer or an out-of-state seed dealer who sells, distributes,
processes or mixes for the use of others any agricultural, vegetable or ornamental plant
seed, except vegetable and ornamental plant seed in packages of less than one pound,
shall obtain a license from the division, authorizing the dealer to sell, distribute,
process or mix such seed. A dealer is not entitled to have a license unless the dealer
has an established plant, warehouse or place of business. A separate seed dealer license
is required for each place of business in this state from which seed regulated by this
article is sold.
B. A seed labeler who labels any agricultural, vegetable or ornamental plant seed
for sale, distribution or processing shall obtain a seed labeler license from the
division for each place of business at which seed regulated by this article is labeled.
C. An application for a license shall be accompanied by the fee prescribed by
section 3-233. A license shall be renewed annually not later than July 1, and the
application for renewal shall be accompanied by the fee prescribed by section 3-233.
D. This section does not apply to a farmer growing seed crops for sale to a seed
dealer or labeler. The portion of crops received by an individual who harvests the
producer's crop and receives part of the crop as payment for services rendered in the
harvesting shall be exempt from this section. 3-236 Retention of invoices and records
Each person whose name appears on the label of and handles agricultural and
vegetable seeds subject to this article shall keep for a period of two years complete
records of each lot of agricultural or vegetable seed handled, and keep for one year a
file sample of each lot of seed after disposition of the lot. All records pertaining to
the lot or lots involved shall be accessible for inspection during customary business
hours. All invoices, receiving records and records of purchases must have the kind,
variety and lot number of seed sold in the state of ARIZONA.
3-237 Label requirements; rules
(L05, Ch. 173, sec. 2. Eff. 9/1/06)
The director shall adopt rules to specify labeling requirements for each container
of agricultural, vegetable and ornamental plant seed sold, offered for sale, exposed for
sale or transported in this state for sowing purposes. The labeling requirements shall
include:
1. Germination.
2. Purity.
3. Noxious weed content.
4. Precautionary statements the director considers to be necessary.
5. Labeler or packager information.
6. Seed origin.
7. Other issues the director considers to be necessary. 3-237 Label requirements
(L04, Ch. 301, sec. 11. Rpld. 9/1/06)
A. Each container of agricultural, vegetable and ornamental plant seed sold,
offered for sale, exposed for sale or transported within the state for sowing purposes
shall bear or have attached in a conspicuous place a plainly written label or tag in the
English language, which statement shall not be modified or denied in the labeling or on
another label attached to the container, giving the following information:
1. For all seeds named and treated as defined in this article:
(a) A word or statement indicating that the seed has been treated.
(b) The commonly accepted coined chemical or abbreviated chemical name of the
applied substance or substances used for treating seed which substances must be
registered for use by the division, the United States department of agriculture and the
United States environmental protection agency. This section shall also apply to seed
that has been treated by custom applicators, or in a custom manner, even though the
transfer of ownership is not intended.
(c) If the substance in the amount present with the seed is harmful to human or
other vertebrate animals, a cautionary statement such as "Do not use for food or feed or
oil purposes." The cautionary statement for mercurials and similarly toxic substances
shall be a poison statement or symbol.
(d) If the seed is claimed to be inoculated, a label to show the month and year
beyond which the inoculant on the seed is no longer claimed to be effective, using a
statement such as: "Inoculant not claimed to be effective after (month and year)."
2. For agricultural seeds:
(a) The commonly accepted name of the kind or the kind and variety of each
agricultural seed component in excess of five per cent of the whole, and the percentage
by weight of each in the order of its predominance. For kinds of seed whose variety is
generally known, the label shall show the name of the kind and variety. If the words "
variety not stated" are used, the word "type" may also be used. The director shall
determine by rule which kinds of agricultural seeds must be labeled to show the variety
name or the words "variety not stated". Hybrids shall be labeled as "hybrids". Where
more than one component is named, the word "mixture" or the word "mixed" shall be shown
conspicuously on the label.
(b) The lot number or other lot identification.
(c) The origin, state or foreign country, if known, of alfalfa, red clover and
field corn, except hybrid corn. If the origin is unknown, that fact shall be stated.
(d) The percentage by weight of all weed seed.
(e) The name and rate of occurrence per pound of each kind of restricted
noxious-weed seed present.
(f) The percentage by weight of agricultural seeds, which may be designated as
"crop seeds," other than those required to be named on the label.
(g) The percentage by weight of inert matter.
(h) For each named agricultural seed:
(i) The percentage of germination, exclusive of hard seed.
(ii) The percentage of hard seed, if present.
(iii) If desired, the germination and hard seed total.
(iv) The month and year the test was completed to determine such percentages.
(i) The name and address of the person who labeled the seed, or who sells, offers
or exposes the seed for sale within this state.
3. For vegetable seeds in containers of one pound or less:
(a) The name of the kind and variety of seed.
(b) For seeds that germinate less than the standard last established by the
director under this article:
(i) The percentage of germination, exclusive of hard seed.
(ii) The percentage of hard seed, if present.
(iii) The month and year the test was completed to determine such percentages.
(iv) The words "below standard" in not less than eight point type.
(c) The name and address of the person who labeled the seed, or who sells, offers
or exposes the seed for sale within this state.
4. For vegetable seeds in containers of more than one pound:
(a) The name of each kind and variety present in excess of five per cent and the
percentage by weight of each in order of its predominance.
(b) The lot number or other lot identification.
(c) For each named vegetable seed:
(i) The percentage of germination, exclusive of hard seed.
(ii) The percentage of hard seed, if present.
(iii) If desired, the germination and hard seed total.
(iv) The month and year the test was completed to determine such percentages.
(d) The name and address of the person who labeled the seed, or who sells, offers
or exposes the seed for sale within this state.
5. For ornamental plant seed:
(a) The name of the kind and variety of seed.
(b) The calendar month and year in which the seed was tested or the year in which
the seed was packaged.
(c) The name and address of the person or firm that packeted the seed and labeled
it.
6. For agricultural, vegetable and ornamental seeds in containers or bulk:
(a) On applying for protection of a variety and payment of the prescribed fee, the
owner or the owner's designee may label the variety or containers of the seed of the
variety or plants produced from the seed substantially as follows: "unauthorized
propagation prohibited--(unauthorized seed multiplication prohibited)--U.S. variety
protection applied for." If applicable, "PVPA 1994" may be added to the notice.
(b) On issuance of a certificate, the owner of the variety or the owner's designee
may label the variety or containers of the seed of the variety or plants produced from
the seed substantially as follows: "unauthorized propagation prohibited--(unauthorized
seed multiplication prohibited)--U.S. protected variety." If applicable, "PVPA 1994" may
be added to the notice.
(c) On filing an application or an amendment to an application specifying seed of
the variety is to be sold by the variety name only as a class of certified seed, the
owner or the owner's designee may label containers of the seed of the variety
substantially as follows: "unauthorized propagation prohibited--U.S. variety protection
applied for specifying that seed of this variety is to be sold by variety name only as a
class of certified seed."
B. In addition to the requirements of subsection A of this section, at the time of
sale at retail the label on each container of seed for nonfarm usage shall bear a
conspicuous viability statement that:
1. Is printed in capital letters the same size as other printed words on the label
and is contiguous to the germination date.
2. States "sell by (month and year)". The date shall not exceed the fifteen month
retail period established by section 3-242, subsection A, paragraph 1, subdivision (b).
3. Shall be affixed at the time containers intended for retail sales are labeled. 3-238 Cease and desist order; appeal
A. The director may issue and enforce a written cease and desist order to the
owner or custodian of any lot of agricultural, vegetable or ornamental plant seed which
the director finds is in violation of any of the provisions of this article, which
order shall prohibit further sale, processing and movement of the seed except on
approval of the director, until the director has evidence that the law has been
complied with and the director has issued a release of the seed from the cease and
desist order.
B. The owner or custodian of seeds which have been denied further sale,
processing and movement may request a hearing pursuant to title 41, chapter 6, article
10.
C. This section shall not be construed as limiting the right of the director to
proceed as authorized by other sections of this article.
3-239 Seizure and disposition of noncomplyingseed
A. Any lot of agricultural, vegetable or ornamental plant seed not in compliance
with the provisions of this article is subject to seizure upon complaint of the director
to a court of competent jurisdiction in the locality in which the seed is located.
B. If the court finds the seed is in violation of this article and orders
condemnation of the seed, it shall be denatured, processed, destroyed, relabeled or
otherwise disposed of in compliance with the laws of this state. Before the court orders
such disposition of the seed, it shall first give the claimant an opportunity to apply to
the court for release of the seed or permission to process or relabel it to bring it into
compliance with this article.
3-240 Prosecutions; classification; publicationof results; injunction
A. Any person violating any provision of this article is guilty of a petty offense.
B. A person who violates any provision of this article with the intent to commit
fraud is guilty of a class 6 felony.
C. When the director finds that a person has violated any of the provisions of this
article, the director may institute proceedings in a court of competent jurisdiction in
the locality in which the violation occurred to have the person prosecuted for the
violation, or may file with the county attorney, with the view of prosecution, such
evidence as the county attorney deems necessary.
D. The county attorney of the county in which the violation occurred shall
institute proceedings at once against any person charged with a violation of this article
if, in his judgment, the information submitted warrants such action.
E. After judgment by the court in any case arising under this article, the director
shall publish any information pertinent to the issuance of the judgment by the court in
such media as he may at any time designate.
F. The director may enjoin any violation of this article in a court of competent
jurisdiction without commencing any other action.
3-241 Exemptions; exceptions
A. The provisions of sections 3-237 and 3-242 do not apply:
1. To seed or grain not intended for sowing purposes.
2. To seed in storage in, or being transported or consigned to a cleaning or
processing establishment for cleaning or processing, if the invoice or labeling
accompanying any shipment of such seed bears the statement "seed for processing," and if
any labeling or other representation which may be made with respect to the uncleaned or
unprocessed seed shall be subject to this article.
3. To any carrier in respect to any seed transported or delivered for
transportation in the ordinary course of its business as a carrier, if the carrier is not
engaged in producing, processing, or marketing agricultural, vegetable or ornamental
plant seed subject to provisions of this article.
B. No person shall be subject to the penalties of this article for having sold or
offered or exposed for sale in the state any agricultural, vegetable or ornamental plant
seeds, which were incorrectly labeled or represented as to kind, variety, type or origin,
which seeds cannot be identified by examination thereof, unless he has failed to obtain
an invoice or grower's declaration, if required, and to take such other precautions as
are necessary to insure the identity to be that stated.
3-242 Violations; civil penalties
A. The director may assess a civil penalty of at least fifty dollars but not more
than three hundred dollars for each violation, with each affected customer constituting a
separate violation, against a seed dealer or labeler who, after a hearing, is found by a
preponderance of the evidence:
1. To have not completed the test to determine the percentage of germination
required by section 3-237 immediately before the sale, offering for sale or
transportation:
(a) Within a nine month period, exclusive of the calendar month in which the test
was completed, for any agricultural, ornamental or vegetable seed intended for wholesale
or commercial producer purchase.
(b) Within a fifteen month period, exclusive of the calendar month in which the
test was completed, for any agricultural, ornamental or vegetable seed intended for
retail purchase.
2. To have not obtained any license that is required by this article.
B. The director may assess a civil penalty of not more than two thousand five
hundred dollars for each violation, with each affected customer constituting a separate
violation, against a seed dealer or labeler who, after a hearing, is found by a
preponderance of the evidence:
1. To have labeled or sold seed represented to be certified seed, registered seed
or foundation seed unless it has been produced and labeled according to the rules and
regulations of an officially recognized seed certification or registration agency.
2. To have labeled or sold seed that has been treated with any approved substance
designed to control or repel plant disease organisms or insect pests attacking the seeds,
unless each container bears a label giving information in the form the director
prescribes by rule, showing the commonly accepted name and the kind or nature of the
substance and, if the substance may be harmful to humans or other vertebrate animals, a
warning or cautionary statement that is adequate to protect the public.
3. To have hindered or obstructed an authorized agent of the department from
performing official duties under this article.
4. To have failed to comply with a cease and desist order.
5. To have labeled or sold seed that has a false or misleading label.
6. To have labeled or sold seed that has been advertised in a false or misleading
manner. 3-243 Seed labeling regulation; statepreemption
The regulation and use of seeds are of statewide concern. The regulation of seeds
pursuant to this article and their use is not subject to further regulation by a county,
city, town or other political subdivision of this state. 3-261 Applicability of article
The provisions of this article shall apply to any substance or mixture of substances
intended to be used for promoting or stimulating the growth of plants, increasing the
productiveness of plants, improving the quality of crops or producing any chemical or
physical change in the soil. Except as provided in section 3-274, this article shall not
apply to sales for export outside the state nor to sales of agricultural minerals to any
licensed producer, manufacturer, importer, agent or dealer in agricultural minerals, or
to sales of fertilizing materials to any licensed producer, manufacturer, importer, agent
or dealer in commercial fertilizers, but such exemptions shall not relieve such licensed
persons from the tonnage license fee provided for in section 3-268 when purchased
fertilizing materials are used upon their own lands within this state.
3-262 Definitions
A. As used in this article the substances and mixtures of substances referred to in
section 3-261 are defined as follows:
1. "Animal manures" means the excreta of domestic animals or domestic fowls when
not artificially mixed with any material or materials other than those that have been
used for bedding, sanitary or feeding purposes for the animals or fowls or for the
preservation of animal manure.
2. "Commercial fertilizer" means any substance that contains one or more recognized
plant nutrients, that is used for its plant nutrient content and that is designed for use
or claimed to have value in promoting plant growth, except unmanipulated animal and
vegetable manures, and other products exempted by rule.
3. "Fertilizer material" means any substance or mixture of substances intended to
be used for promoting or stimulating the growth of plants, increasing the productiveness
of plants, improving the quality of crops or producing any chemical or physical change in
the soil.
B. In this article, unless the context otherwise requires:
1. "Associate director" means the associate director of the environmental services
division of the ARIZONA department of agriculture.
2. "Brand" means a term, design or trademark used in connection with one or several
grades of commercial fertilizer.
3. "Bulk" means fertilizer materials delivered to the purchaser in the solid or
liquid state, in a nonpackaged form to which a label cannot be attached.
4. "Distributor" means any person who offers for sale, sells, barters, solicits
business or otherwise supplies fertilizer materials.
5. "Grade" means the percentage of total nitrogen, available phosphate or soluble
potash stated in whole numbers in the same terms, order and percentages as in the
guaranteed analysis. Fertilizer materials, bone meal, manures and similar raw materials
may be guaranteed in fractional units.
6. "Manufacture" means to compound, produce, granulate, mix, blend or alter the
composition of fertilizer materials.
7. "Mixed fertilizer" means any combination of fertilizer materials coming within
the classification of commercial fertilizers.
8. "Official sample" means any sample of fertilizer materials taken by the
associate director or the associate director's agent and designated as official by the
associate director.
9. "Per cent" or "percentage" means the percentage by weight.
10. "Person" includes individual, partnership, association, firm or corporation.
11. "Primary plant nutrient" means total nitrogen, available phosphate or soluble
potash.
12. "Sell" or "sale" includes exchange.
13. "Ton" means a net weight of two thousand pounds avoirdupois. The director may,
after opportunity for hearing, define weights in the metric system.
3-263 Fertilizer labeling regulation; statepreemption
The provisions of this article and the rules that implement this article are of
statewide concern. The labeling of fertilizers and other substances regulated pursuant to
this article are not subject to further regulation by a county, city, town or other
political subdivision of this state.
3-264 Enforcement and administrativepowers
A. The associate director may refuse to license or may cancel the license of any
distributor who violates any provision of this article. The director shall review the
associate director's action on request of any person adversely affected by the action.
B. The director may, after an opportunity for a hearing:
1. Determine and publish at least annually the values per unit of weight of
nitrogen, phosphorus and potassium in commercial fertilizers in the state for the purpose
of assessing penalties on commercial fertilizers under the provisions of section 3-276.
2. Adopt rules that the director deems necessary for the efficient administration
and enforcement of this article, including the collection and examination of samples of
fertilizer materials, and rules pertaining to composition and use of fertilizer
materials, including, without limiting the foregoing general terms, the establishment of
tolerances, deficiencies and penalties where not specifically provided for in this
article.
3. Prohibit the sale or use in fertilizer materials of any substance proven to be
detrimental to agriculture.
4. Provide for incorporating into commercial fertilizers other substances as
pesticides and provide for proper labeling of the mixture.
5. Prescribe the information which shall appear on the tag, other than as
specifically set forth in this article.
3-265 Rules; advisory committee
A. If before adopting rules pursuant to this article, the director determines that
it is necessary or desirable, the director may appoint an advisory committee pursuant to
section 3-106.
B. Any licensee, distributor or person offering for sale or selling fertilizer
materials in the state may propose a rule and such proposal shall be acted upon within a
reasonable time, not exceeding sixty days, after it is filed. Any interested person
shall have an opportunity to appear before the director in person or through an attorney
for the purpose of discussing such proposed rule.
3-266 Annual reports and publications;membership in professional organizations
A. The director may provide for publishing at such times and in such form as he
deems proper information concerning the sale of fertilizer materials together with such
data on their production and use as he considers advisable, and a report of the monies
received and expended, but the information concerning production and use of fertilizer
materials shall not disclose the operations of any one person. Reports of chemists'
findings based on official samples of each brand of fertilizer material sampled and
analyzed during the year as compared to the guaranteed chemical analysis for each such
fertilizer material shall be published annually as promptly as possible after January 1
each year.
B. The director may authorize employees of the division to join and subscribe to
any state, district, regional or national organizations or publications relating to sale
and distribution or control of sale and distribution of fertilizer materials, and attend
state, district, regional and national meetings relating to sale and distribution or
control of sale and distribution of fertilizer materials.
C. Expenses authorized by this section shall be paid from and limited by the
fertilizer materials fund.
3-267 Inspections; official samples; analysis;report
A. The director, who may act through an authorized agent, shall sample, inspect and
make analyses of fertilizer materials distributed within the state at such time and place
and to such an extent as the director deems necessary to determine whether or not such
fertilizer materials are in compliance with the provisions of this article. The
director, individually or through an agent, may enter upon any public or private premises
during regular business hours in order to have access to such fertilizer materials
subject to the provisions of this article and the rules pertaining to this article.
B. The director, in determining for administrative purposes whether or not
fertilizer materials are deficient in any of their component parts, shall be guided
solely by the official sample as defined in section 3-262, subsection B, and obtained and
analyzed as provided in subsection A of this section.
C. The results of official analyses of any fertilizer material which has been found
to be subject to penalty or other legal action shall be forwarded by the director to the
licensee or other responsible person and to the purchaser forthwith. Upon request within
thirty days of the issuance of the analytical report, the director shall furnish to the
licensee or other responsible person a portion of any sample found subject to penalty or
other legal action.
3-268 Inspection fees and reports;classification
A. An inspection fee at the rate of twenty cents per ton shall be paid to the
department on commercial fertilizers distributed in this state by any person subject to
the following:
1. If more than one distributor is involved in the chain of distribution, the one
who sells directly to the ultimate consumer or to a distributor exempted from a license
is responsible for submitting the tonnage report and the payment of inspection fees.
2. Distributors exempt from a license shall not be responsible for the filing of
tonnage reports or the payment of the inspection fees for products purchased from a
licensee and sold in the form in which received.
3. No inspection fees are required for commercial fertilizers sold or exchanged
between licensed manufacturers for further manufacturing or processing, or for commercial
fertilizers on which the inspection fee has been paid by a previous manufacturer or
distributor in the chain of distribution.
4. The minimum inspection fee shall be two dollars per quarter.
5. The director may, after opportunity for hearing, decrease or increase the
inspection fee provided in this section, but at no time shall the rate exceed twenty-five
cents per ton.
B. Each person who is liable for the payment of such fee shall:
1. File, not later than the last day of January, April, July and October of each
year, a quarterly statement, setting forth the number of net tons of commercial
fertilizers distributed in this state during the preceding calendar quarter. Upon filing
the statement such person shall pay the inspection fee at the rate stated in subsection A
of this section. Inspection fees which are due and owing and have not been remitted to
the department within thirty days following the date due shall have a penalty fee of ten
per cent or ten dollars whichever is larger added to the amount due when payment is
finally made. The assessment of this penalty fee shall not prevent the director from
taking other actions pursuant to this article.
2. Keep such records as may be necessary or required by the director to indicate
accurately the tonnage of commercial fertilizer distributed in this state. The director
shall have the right to examine such records to verify statements of tonnage. Failure to
make an accurate statement of tonnage or to pay the inspection fee or comply as provided
in this section shall constitute cause for cancellation of any or all commercial
fertilizer licenses on file for the distributor.
C. Fees collected shall constitute a fund for the payment of the costs of
inspection, sampling, analysis and other expenses necessary for the administration of
this article.
D. The director or any officer or employee of the state whose duties require the
compilation of reports based upon the information required by this section who knowingly
compiles or issues any false information or report, or who knowingly, directly or
indirectly, discloses information thus obtained regarding the business of any person,
except with the consent of such person, or in the form of unidentifiable totals, or as
authorized by section 3-266, is guilty of a class 2 misdemeanor.
3-269 Fertilizer materials fund
A. The fertilizer materials fund is established. Except as provided in section
3-272, subsection B, paragraph 2, all monies collected under the provisions of this
article shall be deposited, pursuant to sections 35-146 and 35-147, in the fund.
B. The director shall administer the fund. On notice from the director, the state
treasurer shall invest and divest monies in the fund as provided by section 35-313 and
monies earned from the investment shall be credited to the fund.
C. The fund shall be used solely for the purpose of administering the provisions of
this article upon the order of the director.
D. The fertilizer materials fund shall be exempt from the provisions of section
35-190 relating to lapsing appropriations.
3-271 Restrictions upon enforcingofficers
No person charged with the enforcement of any of the provisions of this article
shall be directly or indirectly interested in the sale, manufacture or distribution of
any fertilizer material.
3-272 Commercial fertilizer license; specialtyfertilizers
A. No person may manufacture or distribute commercial fertilizer in this state
without a commercial fertilizer license from the division, except that no license shall
be required of persons distributing only:
1. Commercial fertilizers to licensed manufacturers for further manufacturing.
2. Packaged commercial fertilizer in the original packages or containers of a
licensee as packaged and labeled by the licensee.
3. Bulk commercial fertilizer in the form received from a licensee and labeled as
required with label information furnished by the licensee, except for a net weight
statement.
B. Applications for a license shall be made on forms prescribed by the director
listing each business location used in the manufacture or distribution of commercial
fertilizer in this state and such other information the director requires. Applications
shall be accompanied by a license fee of one hundred twenty-five dollars per year for
each separate place of business used in the manufacture of commercial fertilizers in this
state. Applications of manufacturers or distributors having no established place of
business in this state, but otherwise subject to a license under this section, shall be
accompanied by a license fee of one hundred twenty-five dollars per year. All licenses
issued through 1998 shall expire on the last day of February of the following
year. Beginning in 1999, the director may provide by rule for licenses having a term of
one or more years and may prescribe the date on which licenses expire. Licenses are not
transferable and no credit or refund may be granted for licenses held for less than a
full license year. Monies collected from license fees shall be allocated as follows:
1. Twenty-five dollars for each year of the license term shall be allocated
pursuant to section 3-269.
2. One hundred dollars for each year of the license term shall be deposited in the
water quality assurance revolving fund established by section 49-282.
C. In addition to the requirements of subsections A and B of this section, the
manufacturer or distributor whose name appears on the label of a specialty fertilizer
shall register each specialty fertilizer with the division. The director may provide by
rule for multiyear licenses. Applications for registration shall be accompanied by a
registration fee of fifty dollars per year per brand and grade of specialty
fertilizer. The director may, after opportunity for hearing, decrease or increase the
registration fee prescribed by this subsection but at no time shall the rate exceed one
hundred dollars per year. For purposes of this subsection, "specialty fertilizer" means
a commercial fertilizer which is distributed for nonfarm use, including home gardens,
lawns, golf courses, parks and cemeteries.
3-273 Labeling
A. Any commercial fertilizer offered for sale, sold or distributed in this state in
bags, barrels or other containers shall have placed on or affixed to the container in
printed form either on tags affixed to the end of the package on the sewed end or
directly on the package the following information:
1. Name and address of licensee.
2. Brand name.
3. Grade as required by regulation.
4. Guaranteed analysis.
5. Net weight.
B. If distributed in bulk, a written or printed statement showing the net weight
and the information required by paragraphs 1, 2, 3 and 4 of subsection A of this section
shall accompany the delivery and be supplied to the purchaser.
C. In case of liquid materials, in lieu of stating the net weight as required in
subsections A and B of this section, the net contents may be given in terms of liquid
measure if the weight per gallon in terms of pounds per gallon at sixty-eight degrees
Fahrenheit or the specific gravity at twenty degrees Celsius is also given.
3-274 Label as warranty
Any label or descriptive tag attached to a lot, parcel or package of commercial
fertilizer, agricultural mineral or other fertilizer material carrying a chemical
analysis or claims for other values shall be deemed a warranty as to the things stated
thereon by the person attaching the label or tag in favor of the buyer and of each
successive buyer purchasing the goods relying thereon.
3-275 Guaranteed analysis required in licensingand labeling
A. The guaranteed analysis of a commercial fertilizer shall state the represented
percentages of nitrogen, available phosphate and soluble potash if claimed. The
percentage of phosphate shall be expressed in terms of phosphorus pentoxide and the
percentage of potash in terms of potassium oxide.
B. The guaranteed analysis for other commercial fertilizers shall be represented as
required by rule.
3-276 Deficiencies in guaranteed analysis;penalties payable to consumer
A. If the analysis of any fertilizer material shows a deficiency in any constituent
other than a primary plant nutrient of not more than the investigational allowance of the
guaranteed total percentage of the constituent, the statement of the licensee,
distributor or other person, as required by this article, is not false within the meaning
of this article. When the deficiency exceeds the investigational allowance, the
purchaser shall be entitled to a refund based on the percentage of the deficiency.
B. If the analysis of any commercial fertilizer shows a deficiency in the
guaranteed analysis in any one primary plant nutrient, a penalty shall be assessed in
accordance with the following provisions:
1. Total nitrogen: A penalty of three times the value of the deficiency, if the
deficiency exceeds the investigational allowances.
2. Available phosphate: A penalty of three times the value of the deficiency, if
the deficiency exceeds the investigational allowances.
3. Soluble potash: A penalty of three times the value of the deficiency, if the
deficiency exceeds the investigational allowances.
C. The director shall establish by rule investigational allowances for plant
nutrients.
D. Nothing contained in this article shall prohibit any person from appealing
according to law.
E. All penalties assessed under this section shall be paid to the consumer of the
lot of fertilizer material represented by the sample analyzed within three months after
the date of notice from the department to the licensee or other responsible person and
receipts taken therefor and promptly forwarded to the department. If the consumer cannot
be found, the amount of the penalty shall be paid to the department. The director shall
deposit, pursuant to sections 35-146 and 35-147, the penalty receipts in the state
general fund. 3-278 Materials containing unavailable plantfood and undesirable substances
A. No person shall sell as a commercial fertilizer or as an ingredient thereof any
leather, hair, hoofs, horns, wool waste or other substances containing inert plant food
material unless there is affixed to every lot, parcel or package a label stating that it
contains such substance.
B. No person shall sell any manure to which water or any material or substance not
commonly used for bedding of domestic animals or fowls, for sanitary or feeding purposes,
or for the preservation of manures, has been artificially added unless there is affixed
to every lot or container delivered to a particular purchaser a statement of the fact
that such artificial addition has been made.
3-279 Cease and desist order
A. If the director has reasonable cause to believe from investigation that any
fertilizer material is being offered or exposed for sale in violation of any of the
provisions of this article, the director may serve the person a cease and desist order
requiring such person, on receiving the notice, to immediately cease and desist from
such act. The order shall be served by any method of service authorized by the ARIZONA
rules of civil procedure.
B. After service is made upon such person of a cease and desist order, the person
or the director may file an action in the superior court in the county in which a
violation of this article is alleged to have occurred, for an adjudication of the alleged
violation. The court may issue temporary or permanent injunctions, mandatory or
restraining, and intermediate orders it deems necessary. The action shall be tried de
novo.
3-280 Seizure, condemnation and sale ofnoncomplying materials
Any lot of fertilizer material not in compliance with the provisions of this article
shall be subject to seizure upon complaint of the director to a court of competent
jurisdiction in the area in which the fertilizer material is located. If the court finds
the fertilizer material to be in violation of this article and orders the condemnation of
the fertilizer material, it shall be disposed of in any manner consistent with the
quality of the fertilizer material and the laws of the state, but in no instance shall
the disposition of the fertilizer material be ordered by the court without first giving
the claimant an opportunity to apply to the court for release of the fertilizer material
or for permission to process or relabel the fertilizer material to conform it with this
article.
3-281 False or misleading statements
It is unlawful to distribute a misbranded fertilizer material. A fertilizer
material is misbranded if it carries any false or misleading statement upon or attached
to the container, or if false or misleading statements concerning its agricultural value
are made on the container or in any advertising matter accompanying or associated with
the fertilizer material.
3-282 Short weight
If any fertilizer material in the possession of the consumer is found by the
director to be short in weight, the licensee or distributor of the fertilizer material
shall, within thirty days after official notice from the department, pay to the consumer
a penalty equal to four times the value of the actual shortage.
3-283 Violations; notice; criminalclassification; injunctive relief
A. If it appears from the examination of any fertilizer material that any of the
provisions of this article or the rules adopted under this article have been violated,
the director shall pursue one or more of the following courses of enforcement, as
appropriate:
1. The director may cause notice of the violation to be given to the licensee or
person responsible for placing the fertilizer material on sale. Any person so notified
shall be given opportunity to be heard. If the hearing officer finds, either in the
presence or absence of the person so notified, that any of the provisions of this article
or rules adopted under this article have been violated, the director may certify the
facts to the department legal counsel or the county attorney.
2. The director may request the county attorney to initiate criminal prosecution
under this paragraph. Any person who knowingly violates any provision of this article or
the rules adopted under this article is guilty of a class 2 misdemeanor.
3. Nothing in this article shall be construed as requiring the director or the
director's representative to report for prosecution or for the institution of seizure
proceedings minor violations of this article if the director believes that the public
interest will be best served by a suitable notice of warning in writing.
4. The director may apply for and the court may grant a temporary or permanent
injunction restraining any person from violating or continuing to violate any of the
provisions of this article or any rule adopted under this article notwithstanding the
existence of other remedies at law.
B. Any monies collected pursuant to this section shall be deposited, pursuant to
sections 35-146 and 35-147, in the state general fund.
3-284 Exchanges between manufacturers
Nothing in this article shall be construed to restrict or avoid sales or exchanges
of fertilizer materials to each other by importers, manufacturers or manipulators who mix
fertilizer materials for sale or to prevent the free and unrestricted shipments of
fertilizer materials to manufacturers or manipulators.
3-301 Developing and adopting the program;advisory committee
A. The director may develop and adopt by rule an ARIZONA organic food certification
program that shall meet the requirements of the national organic program (7 Code of
Federal Regulations part 205).
B. If the director establishes such a program, the director shall establish one or
more advisory committees pursuant to section 3-106 to assist in developing the program.
3-341 Definitions
For the purposes of this article:
1. "Active ingredient" means an ingredient which will prevent, destroy, repel or
mitigate pests, or which will act as a plant regulator, defoliant or desiccant.
2. "Adulterated" means any pesticide the strength or purity of which 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.
3. "Animal" means all vertebrate and invertebrate species, including, but not
limited to, humans and other mammals, birds, fish and shellfish.
4. "Antidote" means the most practical immediate treatment in case of poisoning and
includes first aid treatment.
5. "Associate director" means the associate director of the environmental services
division.
6. "Beneficial insects" means those insects which, during their life cycle, are
effective pollinators of plants, are parasites or predators of pests or are otherwise
beneficial.
7. "Defoliant" and "desiccant" means any substance or mixture of substances
intended for killing or artificially accelerating the drying of plant tissues, with or
without causing abscission.
8. "Device" means any instrument or contrivance intended for trapping insects, and
includes any instrument or contrivance intended for destroying, repelling or mitigating
insects or rodents or destroying, repelling or mitigating fungi or weeds, or such other
pests as may be designated by the director, but not including equipment used for the
application of pesticides when sold separately therefrom.
9. "Distribute" means to offer for sale, hold for sale, sell, barter, ship or
deliver for shipment or receive, deliver or offer to deliver, pesticides in this state.
10. "Division" means the environmental services division of the ARIZONA department
of agriculture.
11. "Fungi" means all non-chlorophyll-bearing thallophytes, that is, all
non-chlorophyll-bearing plants of a lower order than mosses and liverworts, as, for
example, rusts, smuts, mildews, molds and yeasts, except those on or in living humans or
other animals.
12. "Inert ingredient" means an ingredient which is not an active ingredient.
13. "Ingredient statement" means a statement of the name and percentage of each
active ingredient, together with the total percentage of the inert ingredients, in the
pesticide.
14. "Insect" means 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, as, for example, beetles, bugs,
bees and flies, and to other allied classes of arthropods whose members are wingless and
usually have more than six legs, as, for example, spiders, mites, ticks, centipedes and
wood lice.
15. "Label" means the written, printed or graphic matter on, or attached to, the
pesticide or device, or the immediate container thereof, and the outside container or
wrapper of the retail package, if there is any, of the pesticide or device.
16. "Labeling" means all labels and other written, printed or graphic matter:
(a) Upon the pesticide or device or any of its containers or wrappers.
(b) Accompanying the pesticide or device at any time.
(c) To which reference is made on the label or in literature accompanying the
pesticide or device, except when accurate, non-misleading reference is made to current
official publications of the United States departments of agriculture or interior, the
United States public health service, state experiment stations, state agricultural
colleges or other similar federal institutions or official agencies of the state or other
states authorized by law to conduct research in the field of pesticides.
17. "Misbranded" shall apply:
(a) To any pesticide or device 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:
(i) If it is an imitation of, or is offered for sale under the name of, another
pesticide.
(ii) If the labeling accompanying it does not contain directions for use which are
necessary and, if complied with, adequate for the protection of the public.
(iii) 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 humans and other
vertebrate animals.
(iv) If the label does not bear an ingredient statement on that part of the
immediate container and on the outside container or wrapper, if there is one, through
which the ingredient statement on the immediate container cannot be clearly read, of the
retail package which is presented or displayed under customary conditions of purchase.
(v) If any word, statement or other information required by or under the authority
of this article 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.
(vi) If used as directed or in accordance with commonly recognized practice, it is
injurious to living humans or other vertebrate animals or vegetation, other than the pest
to which it is applied, or to the person applying such pesticide.
18. "Nematode" means invertebrate animals of the phylum nemathelminthes and class
nematoda including unsegmented round worms with elongated, fusiform, or sac-like bodies
covered with cuticle and inhabiting soil, water, plants or plant parts.
19. "Person" means any individual, partnership, association, corporation or
organized group of persons whether incorporated or not.
20. "Pest" means:
(a) Any weed, insect, vertebrate pest, nematode, fungus, virus, bacteria or other
pathogenic organisms.
(b) Any other form of terrestrial or aquatic plant or animal life, except virus,
bacteria or other microorganism on or in living humans or other living animals, which the
director declares to be a pest for the purpose of enforcement of this article.
21. "Pesticide" means:
(a) Any substance or mixture of substances intended for preventing, destroying,
repelling or mitigating any pest.
(b) Any substance or mixture of substances intended for use as a plant regulator,
defoliant or desiccant.
22. "Plant regulator" means 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 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 and soil amendments.
23. "Registrant" means the person registering any pesticide pursuant to this
article.
24. "Weed" means any plant which grows where not wanted.
3-343 Enforcement and administrativepowers
A. This article shall be administered and its provisions and all rules adopted
under this article shall be enforced by the associate director.
B. The director may, after a hearing:
1. Declare as a pest any form of plant or animal life or virus which is injurious
to plants, humans, domestic animals, articles or substances.
2. Determine whether or not pesticides present an unreasonable risk to humans.
3. Determine standards of coloring or discoloring for pesticides, and subject
pesticides to the requirements of section 3-352.
C. The director may, after a hearing, make rules concerning safety in the
distribution and sale of pesticides or devices.
D. All rules adopted under authority of this article shall be divided into two
classes to be known as "technical rules" and "administrative rules", such rules to be
filed in the office of the secretary of state and subject to judicial review.
E. The director may adopt administrative and technical rules deemed necessary to
effectuate the purposes of this article, but only after a hearing.
3-344 Advisory committee; membership;appointment; duties; uniformity of labeling and standards ofpesticides
A. The director may appoint an advisory committee as needed to assist and advise
the director and associate director in adopting technical rules. The director shall
designate the chairman. Meetings of the committee shall be held upon call of the
associate director or director. Members of the committee shall serve without
compensation, but shall be entitled to reimbursement for expenses of travel and
subsistence incurred in the performance of their duties which shall be paid from and
limited by the pesticide fund.
B. In order to avoid confusion endangering the public health, which would result
from diverse requirements, particularly as to the labeling and coloring of pesticides,
and to avoid increased costs to the public 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 director may after a hearing
adopt rules applicable to and in conformity with primary standards established by this
article as have been or may be prescribed by federal agencies with respect to pesticides.
3-345 Publications; membership in professionalorganizations
A. The department may publish at such times and in such forms as the director deems
proper, information concerning the production and use of pesticides and reports of
chemists' findings based on official samples taken of pesticides sold within the state as
compared with guaranteed analysis registered under section 3-351.
B. The director may authorize employees of the department to:
1. Join and subscribe to any state, district, regional or national organizations or
publications relating to and dealing with pesticides.
2. Attend state, district, regional and national meetings relating to pesticides
that in the director's discretion may be necessary or for the best interests of those
affected by this article.
C. Expenses authorized by this section shall be paid from and limited by the
pesticide fund.
3-346 Agreements with other agencies andstates
The director with the advice of the associate director may cooperate with and after
a hearing enter into agreements with any other agency of this state, the United States
government, and any other state or agency thereof for the purpose of carrying out the
provisions of this article and securing uniformity of regulations.
3-347 Delegation of duties
All authority vested in the director under this article may with like force and
effect be executed by his authorized representatives as he designates for such purpose.
3-349 Restrictions upon enforcingofficers
No person charged with the enforcement of any of the provisions of this article
shall be directly or indirectly interested in the sale, manufacture or distribution of
any pesticide.
3-350.01 Experimental use permits
The division may issue an experimental use permit to any public or private research
agency or educational institution for the purpose of experimentation. All experimental
use permits shall contain provisions for the review and monitoring of the use allowed by
the permit under rules of the department.
3-350 Pesticide fund
A. The pesticide fund is established. Except as provided in section 3-351,
subsection D, paragraph 2, all monies collected under the provisions of this article
shall be deposited, pursuant to sections 35-146 and 35-147, in the fund.
B. The director shall administer the fund. On notice from the director, the state
treasurer shall invest and divest monies in the fund as provided by section 35-313 and
monies earned from investment shall be credited to the fund.
C. The fund shall be used solely for the purpose of administering the provisions of
this article upon the order of the director.
D. The pesticide fund shall be exempt from the provisions of section 35-190
relating to lapsing appropriations. 3-351 Registration; fee; confidentialinformation
A. Every pesticide which is distributed, sold or offered for sale within the state
or delivered for transportation or transported in intrastate commerce or between points
within this state through any point outside the state shall be registered with the
division. Through 1998, the registration expires on December 31 of the year in which the
registration was made and shall be renewed annually. Beginning in 1999, the director may
provide by rule for registration having a term of one or more years and may prescribe the
date on which registrations expire.
B. The registrant shall file with the division a statement including:
1. The name and address of the registrant and the name and address of the person
whose name will appear on the label, if other than the registrant.
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.
4. If requested by the division, a full description of the tests made and the
results thereof upon which the claims are based.
C. For a 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.
D. Any person desiring to register under the provisions of this article shall pay
to the division a registration fee of one hundred dollars per year for each
pesticide. The monies collected from registration fees shall be allocated as follows:
1. Twenty-five dollars for each year of the registration term shall be allocated
pursuant to section 3-350.
2. Seventy-five dollars for each year of the registration term shall be deposited
in the water quality assurance revolving fund established by section 49-282.
E. All federal, state and county offices shall register without fee all pesticides
sold at cost by them.
F. If the director deems it necessary in the administration of this article, the
director may require the submission of the complete formula of any pesticide or the
confidential statement of formula and the analytical methods for the analysis of the
active ingredients in the formulation. For any product having a federal registration,
the director may request, upon reasonable cause, the analytical methods for the analysis
of residues of the active ingredients of the pesticide in environmental media provided
that this information has been developed by the applicant and submitted to the United
States environmental protection agency. Information provided by the applicant pursuant
to this section shall be afforded applicable trade secret and confidentiality
protections. Other products exempted from federal registration requirements and required
to be registered under this section shall be subject to this subsection.
G. If it appears to the director that the composition of the article is such as to
warrant the proposed claims for it and if the article and its labeling and other material
required to be submitted comply with the requirements of section 3-352, the division
shall register the article. If the director finds that the pesticide does not warrant
the proposed claims, the director may request a full description of the tests conducted
and the results of the tests on which the claims are based. If the pesticide or its
labeling and other material that are required to be submitted do not comply with this
article, the director shall notify the applicant of the manner in which the pesticide,
labeling or other material fails to comply with the law to afford the applicant an
opportunity to make the necessary corrections. If the applicant does not make the
corrections and cannot support the claim on the label, the director may refuse to
register the pesticide.
H. In submitting data required by this article, the applicant shall clearly mark
any portions that are trade secrets or commercial or financial information. The
applicant shall identify as confidential information any such marked material and submit
it separately from other material required to be submitted under this article. The
information shall be kept confidential by the department unless written permission to
release the information is granted by the registrant or upon order of a court of
jurisdiction.
I. In order to protect the public, the associate director may, after a hearing,
cancel the registration of a pesticide. The associate director shall cancel the
registration of a pesticide on notification by the director of environmental quality
pursuant to section 49-306 or 49-309.
J. Notwithstanding any other provision of this article, registration is not
required in the case of a pesticide shipped from one plant within the state to another
plant within the state operated by the same person.
K. A registrant who discontinues distribution of a pesticide shall continue its
registration in this state for three years after the discontinuation to allow the
remaining product to move through the channels of trade. The registrant shall notify the
appropriate entities within the channels of trade of the effective date of the
discontinuation.
3-352 Prohibited acts
A. It is unlawful for any person acting independently or as agent to distribute,
sell or offer for sale within the state or deliver for transportation or transport in
intrastate commerce or between points within the state through any point outside this
state any of the following:
1. Any pesticide which has not been registered pursuant to the provisions of
section 3-351, 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 connection with its
registration, or if the composition of a pesticide differs from its composition as
represented in connection with its registration, but at the discretion of the director, a
change in the labeling or formula of a pesticide may be made within a registration period
without requiring reregistration of the product.
2. Any pesticide unless it is in the registrant's or the manufacturer's unbroken
immediate container and there is affixed to such 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:
(a) The name and address of the manufacturer, registrant or person for whom
manufactured.
(b) The name, brand or trademark under which the article is sold.
(c) The net weight or measure of the content subject, however, to such reasonable
variations as the state may permit.
3. Any pesticide which contains any substance or substances in quantities highly
toxic to humans, determined as provided in section 3-343, unless the label bears, in
addition to any other matter required by this article:
(a) Warning statements or symbols required by regulation.
(b) A statement of a practical treatment, first aid or otherwise in case of
poisoning by the pesticide.
4. Any pesticide which is adulterated or misbranded, or any device which is
misbranded.
5. Any pesticide the label of which does not contain necessary information, which
information the director has prescribed by rule.
B. It is unlawful:
1. For any person to detach, alter, deface or destroy, wholly or in part, any label
or labeling provided for in this article or rules adopted under this article, or to add
any substance to, or take any substance from, a pesticide in a manner that may defeat the
purposes of this article.
2. For any person to use for his own advantage or to reveal, other than to the
director or proper officials or employees of the state or to the courts of the 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 section 3-351.
3-353 Exemptions
A. The penalties provided for violations of subsection A of section 3-352 shall not
apply to:
1. Any carrier while lawfully engaged in transporting a pesticide within the state,
if such carrier, upon request, permits the director or a designated agent to copy all
records showing the transactions in and movement of the articles.
2. Public officials of the state and the federal government engaged in the
performance of their official duties.
3. The manufacturer or shipper of a pesticide for experimental use only by or under
the supervision of an agency of the state or of the federal government authorized by law
to conduct research in the field of pesticides.
B. No article shall be deemed in violation of this article 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 article
shall apply.
3-354 Cease and desist orders; condemnation anddestruction or sale of noncomplying pesticides or devices
A. When the director finds from investigation that any pesticide or device being
distributed, sold or offered for sale within this state or delivered for transportation
or transported in intrastate commerce or between points within the state through any
point outside this state does not meet the requirements of this article as follows, the
director may take the action prescribed by subsection B of this section:
1. In the case of a pesticide:
(a) If it is adulterated or misbranded.
(b) If it has not been registered under the provisions of section 3-351.
(c) If it fails to bear on its label the information required by this article.
(d) If it is a white powder pesticide and is not colored as required under this
article.
2. In the case of a device, if it is misbranded.
B. Upon the discovery of any of the facts set forth in subsection A of this
section:
1. The director may serve the person violating any provisions of this article with
a cease and desist order requiring the person, on receiving the notice, to immediately
cease and desist the violation. The order shall be served by any method of service
authorized by the ARIZONA rules of civil procedure.
2. The department may issue and serve a written cease and desist order upon the
owner or custodian of any pesticide or device found to be in violation of this
article. The pesticide or device shall not be sold, used or removed until the provisions
of this article have been complied with and the pesticide or device has been released in
writing by the director or the violation has been otherwise disposed of as provided in
this article by a court of competent jurisdiction.
3. If the director discovers any pesticide or device which is in violation of this
article, and the owner or custodian is not available for service of the order, the
director may attach the order to the pesticide or device and the pesticide or device
shall not be sold, used or removed until the provisions of this article have been
complied with and the pesticide or device has been released in writing by the director or
the violation has been otherwise disposed of as provided in this article by a court of
competent jurisdiction.
C. After a cease and desist order is served on any person, either that person or
the director may file an action in the superior court in the county in which a violation
of this article is alleged to have occurred for an adjudication of the alleged
violation. The court may issue temporary or permanent injunctions, mandatory or
restraining, and intermediate orders it deems necessary or advisable. The court may
order condemnation of any pesticide or device which does not meet the requirements of
this article. The action shall be tried de novo.
D. If the article is condemned, it shall, after entry of decree, be disposed of by
destruction or sale as the court directs, and the proceeds, if the article is sold, less
legal costs, shall be paid into the pesticide fund. Upon payment of costs and execution
and delivery of a good and sufficient bond conditioned so that the article shall not be
disposed of unlawfully, the court may direct that the article be delivered to the owner
of the article for relabeling or reprocessing as the case may be.
E. When a decree of condemnation is entered against the article, court costs, fees
and storage and other proper expenses shall be awarded against the person, if any,
intervening as claimant of the article.
3-355 Enforcement procedures
A. The results of official analyses of any pesticide which has been found to be
subject to penalty or other legal action shall be forwarded by the department to the
registrant or other responsible person and to the purchaser forthwith. Upon request
within thirty days of issuance of the analytical report, the department shall furnish to
the registrant or other responsible person a portion of any sample found subject to
penalty or other legal action. If it appears from such examination that a pesticide or
device fails to comply with the provisions of this article, and the director contemplates
instituting criminal proceedings against any person, the director shall cause appropriate
notice to be given to such person. Persons so notified shall be given an opportunity to
present their views, either orally or in writing, with regard to the contemplated
proceedings. If thereafter in the opinion of the director it appears that the provisions
of the article have been violated by such person, the director shall refer a copy of the
results of the analysis or the examination of such article to the department counsel.
B. Nothing in this article shall be construed as requiring the director to report
for prosecution or for the institution of condemnation proceedings minor violations of
this article when the director believes that the public interests will be best served by
a suitable notice of warning in writing.
C. The director shall, by publication, give notice of all judgments entered in
actions instituted under the authority of this article.
3-356 Violations; criminal classification;injunctive relief
A. Any person violating any provision of this article is guilty of a class 3
misdemeanor. A registrant who violates any provision of this article after having been
issued a warning pursuant to this article is guilty of a class 1 misdemeanor.
B. The director may apply for and the court may grant a temporary or permanent
injunction restraining any person from violating or continuing to violate any of the
provisions of this article or any rule adopted under this article notwithstanding the
existence of other remedies at law.
C. If any person, with intent to defraud, uses or reveals information relative to
formulas of products acquired under authority of section 3-351, the person is guilty of a
class 1 misdemeanor.
D. Any monies collected pursuant to this section shall be deposited, pursuant to
sections 35-146 and 35-147, in the state general fund.
3-361 Definitions
In this article, unless the context otherwise requires:
1. "Associate director" means the associate director of the division.
2. "De minimis violation" means a violation which, although undesirable, has no
direct or immediate relationship to safety, health or property damage. Repeated de
minimis violations constitute a nonserious violation.
3. "Division" means the environmental services division of the ARIZONA department
of agriculture.
4. "Nonserious violation" means a violation that may have had a direct or immediate
relationship to safety, health or property damage, but which does not constitute a de
minimis violation or a serious violation, unless the violator did not, and could not with
the exercise of reasonable diligence, know of such safety, health or property damage risk
in which case the violation is de minimis.
5. "Paraquat" means the pesticide dimethyl-dipyridinium dichloride.
6. "Pesticide" means any substance or mixture of substances intended to be used for
defoliating plants or for preventing, destroying, repelling or mitigating insects, fungi,
bacteria, weeds, rodents, predatory animals or any form of plant or animal life which is,
or which the director may declare to be, a pest which may infest or be detrimental to
vegetation, humans, animals or households or which may be present in any environment.
7. "Pesticide use" means the sale, processing, storing, transporting, handling or
applying of a pesticide and disposal of pesticide containers.
8. "Restricted use pesticide" means a pesticide classified as such by the United
States environmental protection agency.
9. "Serious violation" means a violation of this article or a rule adopted under
this article which produces a substantial probability that death or serious physical harm
could result, unless the violator did not, and could not with the exercise of reasonable
diligence, know of such safety or human health risk, in which case the violation is
nonserious. 3-362 Powers and duties
A. The director is responsible for administering this article and shall:
1. Conduct investigations, on complaint and on his own initiative, regarding
violations of this article and compile information necessary to administer this article.
2. Take timely action necessary to enforce this article against violators including
seeking injunctive relief and other penalties and sanctions authorized by this article.
3. Publish a list of pesticides, by common and proprietary names, which the
director determines to be highly toxic, odoriferous, such as profenofos, sulprofos, def
and merphos and other pesticides with similar odoriferous characteristics, or otherwise
appropriate for inclusion and shall include in that list paraquat and gramoxone.
4. Submit to the United States environmental protection agency a state plan for
issuing, monitoring, and controlling experimental use permits pursuant to section 5 of
the federal insecticide, fungicide, and rodenticide act (7 United States Code section
136c(f)).
5. Develop systems and procedures to encourage and ensure public contact with the
department, which may include:
(a) A telephone hotline for pesticide complaints, which is operated and publicized
by the department.
(b) Outreach and education programs to inform the general public and solicit input
regarding pesticide use and public health, safety and the environment.
B. The director may enter into intergovernmental agreements pursuant to title 11,
chapter 7, article 3 if the agreement is necessary to more effectively administer the
powers and duties described in this article.
3-363.01 Reporting requirements; interagency agreement
A. The director of the ARIZONA department of agriculture may enter into an
interagency agreement with the department of environmental quality to allow the director
to collect the pesticide reports required pursuant to section 49-305, subsection B.
B. Rules adopted by the director pursuant to section 3-363, paragraph 6 shall not
prevent the director from collecting the pesticide reports required pursuant to section
49-305, subsection B as a part of any interagency agreement entered into with the
department of environmental quality.
3-363 Rules
The director shall adopt rules to regulate pesticides which shall include provisions
to:
1. Administer and implement this article.
2. Prescribe measures to control, monitor, inspect and govern pesticide use.
3. Prohibit or restrict pesticide use.
4. Restrict the areas in which pesticide use may occur.
5. Prescribe minimum qualifications for all persons who engage in pesticide use,
including, as appropriate, requirements that the persons have valid licenses, permits or
certificates, have adequate training, including continuing education requirements and
meet financial responsibility standards.
6. Prescribe appropriate record keeping and reporting requirements regarding
pesticide use, except that the record keeping and reporting requirements for growers and
certified private applicators who apply pesticides shall be equivalent to, but not more
stringent than, the requirements prescribed under the federal insecticide, fungicide and
rodenticide act (61 Stat. 163) and the food, agriculture, conservation and trade act of
1990 (P.L. 101-624; 104 Stat. 3359).
7. Prohibit pesticide use which is inconsistent with the pesticide label as
required under the federal insecticide, fungicide and rodenticide act (61 Stat. 163).
8. Exempt from regulation under this article pesticide use that is regulated in
title 32, chapter 22.
9. Issue licenses, permits and certificates for pesticide use, as appropriate,
having terms of one or more years.
10. Charge and collect the following fees for each permit, license and certification
under this article:
(a) Not to exceed twenty dollars per year for a grower permit.
(b) Not to exceed one hundred dollars per year for a seller permit.
(c) Not to exceed one hundred dollars per year for a custom applicator license.
(d) Not to exceed fifty dollars per year for a pilot license.
(e) Not to exceed fifty dollars per year for a pest control advisor license.
(f) Not to exceed twenty-five dollars per year for a piece of equipment used to
apply pesticides by a custom applicator.
(g) Not to exceed fifty dollars per year for restricted use certification.
11. Establish a nonexclusive list of acts and omissions that constitute serious,
nonserious and de minimis violations of this article.
12. Establish a system of administrative penalties and fines for violations of this
article and any rules adopted under this article. Under this system:
(a) Violators shall be assessed a number of points for each violation, depending
upon such factors as:
(i) Potential and actual consequences of the violation on public and worker health
and safety and the environment.
(ii) Wrongfulness of the conduct.
(iii) Degree of culpability of the violator.
(iv) Duration of the violation.
(v) Prior violations or citations.
(b) Penalties shall be assessed depending upon the number of points accrued by the
violator.
3-364 Inspection powers; notice
A. The director may enter at reasonable times into or on or through any public or
private property for the purpose of ascertaining compliance or noncompliance with any
rules or orders adopted or issued under this article. If practicable, and if notice will
not inhibit the director's ability to enforce this article, the director or the
director's agent shall notify the owner, operator or lessee of the property when entering
on the property.
B. Within five days after the inspection the director shall inform any alleged
violator in writing if the director anticipates an enforcement action. The notice of a
potential enforcement action shall indicate the nature of the alleged violation and the
last possible date for issuing a citation under section 3-368, subsection F. If in the
course of an investigation the department identifies any additional alleged violator, the
director shall inform the additional alleged violator within five days of initiating the
new investigation. The notice of a potential enforcement action against the additional
alleged violator shall indicate the nature of the alleged violation and the last possible
date for issuing a citation or notice of de minimis violation under section 3-368,
subsection F. If the director does not issue a notice of a potential enforcement action,
the director shall inform the alleged violator within fifteen days after the inspection
that the director does not anticipate any enforcement action.
3-365 Buffer zones
A. The odoriferous pesticides profenofos, sulprofos, def and merphos and other
pesticides with similar odoriferous characteristics shall not be applied within
one-fourth mile of a school, a day care center, a health care institution, a child care
group home as defined by section 36-897 or at least twenty-five residences adjoining the
field to be sprayed, except by soil injection.
B. Highly toxic pesticides or paraquat shall not be applied within four hundred
feet of a health care institution, except by soil injection.
C. Highly toxic pesticides or paraquat shall not be applied in liquid form, except
by soil injection, within one hundred feet by aircraft or within fifty feet by ground
equipment of at least twenty-five residences adjoining the field to be sprayed. Highly
toxic pesticides shall not be applied in dust form by aircraft within three hundred feet
of at least twenty-five residences adjoining the field to be sprayed.
D. Highly toxic pesticides and paraquat shall not be applied within one-fourth mile
of schools, child care group homes, or day care centers. However, highly toxic
pesticides and paraquat may be applied within one-fourth mile of schools, child care
group homes, and day care centers unless authorized activities at the school, child care
group home or day care center are scheduled to occur before the reentry time period
assigned to the pesticide by provisions of the product label elapses. A responsible
individual at a school or a day care center shall be notified of the application of
pesticides, other than highly toxic pesticides or paraquat, by aircraft during daylight
hours.
E. Nothing in this section permits the application of pesticide in such a way as to
cause drift within the grounds of a residence, school, health care institution, child
care group home, or day care center, but compliance with this section and the
requirements of the pesticide label establishes a presumption of compliance with this
subsection.
F. For the purposes of this section, distances shall be measured from the property
boundary of a school, residence, day care center, child care group home, or health care
institution closest to the field to be sprayed to the area of the field that is to be
sprayed.
3-366 Pesticide management areas
A. The director shall designate pesticide management areas. Pesticide management
areas may be urban areas that are adjacent to farmlands and have a history of concerns
known by the department regarding nearby aerial pesticide applications. The director may
adopt rules for designating pesticide management areas.
B. If possible at least twenty-four hours before applying a pesticide listed by the
director under section 3-362, subsection A, paragraph 3 by aircraft in a pesticide
management area the applicator shall notify the department. In any event, every
reasonable attempt shall be made to notify the department before every application of
pesticide in a pesticide management area.
3-367.01 Report of loss, damage or nonperformance; effect of failure to file
A. A person suffering loss, damage or nonperformance on any agricultural,
ornamental or silvicultural crop resulting from the use or application by others of a
pesticide or a method or device for applying pesticides shall file with the department
and with the person or persons who are alleged to have caused the loss, damage or
nonperformance a written report as prescribed by subsection B within the following times:
1. For a growing crop, within thirty days after the damage is noticed or before
fifty per cent of the affected portion of the crop is harvested.
2. For a crop if damage is not visible during growing, within fifteen working days
after the damage was visible at harvest.
3. For a crop if damage was not visible during growing or at harvest and the crop
is sold by the farmer, within fifteen working days after the farmer is notified of the
damage by the buyer.
B. The report shall include, so far as is known to the claimant:
1. The name and address of the claimant.
2. The type, kind and location of property allegedly injured or damaged.
3. The date the alleged loss, damage or nonperformance occurred.
4. The name of the person allegedly responsible for the loss, damage or
nonperformance.
5. The suspected pesticide or action that caused the loss, damage or
nonperformance.
6. The name of the owner or occupant of the property on which the loss, damage or
nonperformance occurred.
C. The failure to report damage as required under this section is prima facie
evidence that no loss occurred.
3-367.02 Notification by beekeepers of bees located in a commercial agricultural area
A. Before locating bees on an apiary site, the owner of the bees shall obtain the
landowner's or lessee's permission and notify in writing persons engaged in commercial
agriculture on whose land the bees may forage. The notice shall include the beekeeper's
address and telephone number, the location of the hives within a quarter section and the
exact dates that the bees will be in the area.
B. After receiving the notice required by subsection A, the person who engages in
commercial agriculture shall inform the beekeeper, before application, when a bee
sensitive pesticide will be applied to the area in which the bees are foraging.
C. A failure by the beekeeper or the owner of the bees to notify the person or
persons who engage in commercial agriculture as provided by subsection A constitutes
prima facie evidence that no loss occurred due to a pesticide application and no
pesticide violation related to bees has occurred.
3-367 Private right of action
A. Except as provided in subsection B of this section, any person having an
interest that is or may be adversely affected may commence a civil action in superior
court on the person's own behalf:
1. Against any person, including this state and any political subdivision of this
state, who is alleged to be in violation of this article or of an order, permit or rule
adopted or issued pursuant to this article other than a de minimis violation. The court
shall have jurisdiction to enforce the provision, order, permit or rule and to apply any
appropriate civil penalty under section 3-370.
2. Against the director where there is alleged a failure of the director to perform
any act or duty under this article that is not discretionary with the director. The
court shall have jurisdiction to order the director to perform such act or duty.
B. No action may be commenced in either of the following cases:
1. Before sixty days after the plaintiff has given notice of the alleged violation
to the department and to any alleged violator or if, within the sixty days, the director
begins and diligently performs the act or duty sought to be compelled.
2. If the attorney general has commenced and is diligently prosecuting an action
before the department under section 3-368 or a civil action in the superior court of this
state to require compliance with the permit, order, rule or provision of this article.
C. In any action under this section:
1. The director, if not a party, may intervene as a matter of right.
2. The plaintiff has the burden of proof.
D. The court, in issuing any final order in any action brought pursuant to this
section, may:
1. Award costs of litigation, including reasonable attorney and expert witness
fees, to any party whenever the court determines such award is appropriate and, in
addition, to the defendant in the case of a frivolous action.
2. Provide for injunctive or other equitable relief or assess civil penalties that
could have been administratively assessed. Any monies collected as civil penalties shall
be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.
E. This section shall not be construed to abrogate the provisions of chapter 1,
article 2 of this title.
3-368 Enforcement; consultation with attorneygeneral; citations and notices of violation
A. The director is responsible for enforcing this article and shall receive and
shall promptly and efficiently process all complaints regarding pesticide use. The
director shall furnish to the attorney general a copy of each complaint filed under this
article and copies of all investigative reports, citations, hearing notices and other
action or pending action documents. Before a final disposition of a pesticide complaint
the director and the attorney general shall jointly review the case to ensure that proper
action is taken and to determine whether additional action or prosecution is required.
B. The director shall notify all persons who submit complaints alleging violations
of this article or rules adopted pursuant to this article of the progress, status and
disposition of their complaints.
C. If the director investigates an alleged violation under this article and rules
adopted pursuant to this article and determines that the violation did not result in any
adverse health effects or property damage, the director may issue a letter of warning. A
letter of warning issued pursuant to this subsection is not subject to section 3-363,
paragraph 12.
D. If the director following an inspection or investigation determines that a de
minimis violation occurred, the director shall issue a notice of de minimis violation and
maintain a record of the violation for three years. A person receiving a notice of de
minimis violation may request a hearing pursuant to title 41, chapter 6, article 10.
E. If the director following an inspection or investigation determines that a
nonserious or serious violation occurred, the director shall issue a written citation.
The citation shall be issued within twenty days for a nonserious violation or within ten
days for a serious violation. Each citation shall contain the following:
1. A particular description of the nature of the violation, including a reference
to the provision of this article.
2. A reasonable time to abate the violation or take appropriate action.
3. A notice of the right to a hearing pursuant to title 41, chapter 6, article 10.
F. No citation or notice of de minimis violation may be issued after the expiration
of six months from the date of the inspection which produced evidence of the violation.
If in the course of an investigation the department identifies any additional alleged
violator, the department may investigate the additional alleged violator. No citation or
notice of de minimis violation may be issued after the expiration of six months from the
date any additional alleged violator is identified by the department.
3-370 Civil penalty; criminal violation;classification
A. A person who, after a hearing, is found to have caused a nonserious violation of
any provision of this article or any rule or order issued or adopted pursuant to this
article is subject to probation or suspension, revocation, nonrenewal or denial of a
permit, license or certification. Additionally, a person may be subject to a civil
penalty of not to exceed five hundred dollars for each nonserious violation.
B. A person who, after a hearing, is found to have caused a serious violation of
any provision of this article or any rule or order issued or adopted pursuant to this
article is subject to probation or suspension, revocation, nonrenewal or denial of a
permit, license or certification. Additionally, the person may be subject to a civil
penalty of not more than ten thousand dollars for each serious violation.
C. In addition to civil penalties prescribed by this section, a person who
knowingly commits:
1. A nonserious violation of this article is guilty of a class 1 misdemeanor.
2. A serious violation of this article is guilty of a class 6 felony.
D. Actions to recover penalties under subsection C shall be brought by the attorney
general in the name of this state in the superior court in the county in which the
violation occurred or in a county in which the department maintains an office.
3-371 Cease and desist order
The director of the ARIZONA department of agriculture or the director of the
department of health services may issue a cease and desist order for not to exceed
twenty-four hours, or until an administrative hearing is held, to terminate the
application of pesticides if either or both find that an imminent and serious hazard to
the public health and safety exists. The order is immediately effective. The order shall
also set a time, but not later than twenty-four hours after the date and time of the
order, for the hearing on the order. If evidence produced at the hearing shows that the
order was unreasonable and that public health and safety were not threatened or that
conditions have changed making the order unnecessary, the order shall be revoked. Except
as provided in section 41-1092.08, subsection H, a party to the final administrative
decision on the cease and desist order may obtain judicial review pursuant to title 12,
chapter 7, article 6.
3-372 Emergency use of pesticides
During a time when a person's license, permit, certificate or registration is under
suspension or revocation or an order has been issued, a person requiring the application
of a pesticide may apply to the director for emergency relief. If the director
determines that an emergency exists which requires an application of pesticide, the
director may authorize an application of pesticide under supervision and under conditions
prescribed by the director. The cost of such supervision shall be borne by the person
whose permit or license is suspended or revoked or on whom an order has been issued. The
director shall adopt guidelines on what constitutes an emergency.
3-373 Annual pesticide report
The associate director shall submit an annual report to the director, the governor
and the legislature on or before October 1 each year containing the following information
for the preceding fiscal year relating to the division's activities under this article:
1. The number of full-time employee positions in the division that are authorized
and filled for regulating pesticides as of June 30.
2. A brief summary of rules proposed or adopted during the reporting period.
3. The number of persons having each type of permit, certificate, license and
registration issued as of June 30.
4. The number of persons whose permits, certificates, licenses or registrations
were revoked, suspended or otherwise altered in status with brief statements of the
reasons for the revocation, suspension or alteration.
5. The number of written complaints and other communications received by the
division which allege a violation of this article or a rule adopted under this article.
6. A summary, by specific category, of the substance of the complaints and
communications referred to in paragraph 5 of this section and, for each specific
category, the responses or dispositions of those complaints.
7. A compilation, based upon reports filed in compliance with rules adopted
pursuant to section 3-363, of the amount, frequency and type of pesticides used in this
state by specific categories of acute toxicity and including but not limited to
identification of pesticides which:
(a) Are known by the administrator of the federal environmental protection agency
to require special application procedures to protect endangered species or which contain
ingredients or produce degradation products that are carcinogenic, mutagenic or
teratogenic.
(b) Are extremely hazardous substances listed pursuant to section 302 of the
superfund amendments and reauthorization act or title III of the clean air act as
amended.
(c) Have extended reentry intervals of greater than forty-eight hours for worker
protection.
8. Based on reports received from pesticide users and reports prepared pursuant to
paragraphs 4, 5 and 6 of this section, specific recommendations regarding statutory or
administrative changes to improve pesticide regulation in this state considering
environmental and public health and safety factors.
9. Any other information which the associate director believes is useful in
reviewing the division's activities.
3-374 Availability of information to thepublic
A. Any records, reports or information obtained from any person under this article,
including records, reports or information obtained or prepared by the department, shall
be available to the public, except that the information, or a particular part of the
information, shall be considered confidential on either:
1. A showing, satisfactory to the director, by any person that the information, or
a particular part of the information, if made public, would divulge the trade secrets of
the person.
2. A determination by the attorney general that disclosure of the information, or a
particular part of the information, would be detrimental to an ongoing investigation by
the director.
3. A determination by the attorney general that disclosure of the information or a
particular part of the information would be detrimental to an ongoing criminal
investigation or to an ongoing or contemplated civil enforcement action under this
article in superior court.
B. Notwithstanding subsection A, the following information shall be available to
the public:
1. The name and address of any permit applicant or permittee.
2. Information contained in or derivable from the pesticide label or the relevant
material safety data sheet.
C. Notwithstanding subsection A, the director may disclose any records, reports or
information obtained from any person under this article, including records, reports or
information obtained by the department, to:
1. Other state employees concerned with administering this article or if relevant
to any administrative or judicial proceeding under this article.
2. Employees of the United States environmental protection agency if such
information is necessary or required to administer and implement or comply with
applicable federal law.
3-375 Preservation of rights
This article shall not be construed to abridge or alter causes of action or remedies
under the common law or statutory law, criminal or civil, nor shall any provision of this
article, or any act done by virtue of this article, be construed so as to estop any
person, this state or any political subdivision of this state, or owners of land having
groundwater or surface water rights or otherwise, from exercising their rights or, under
the common law or statutory law, from suppressing nuisances or preventing injury due to
pesticide use.
3-376 Discrimination prohibited
A. No person may intimidate, threaten, restrain, coerce, blacklist, discharge or in
any manner discriminate against any person because that person has filed a complaint or
instituted, or caused to be instituted, a proceeding under this article or has testified
or is about to testify in such a proceeding or has exercised, on behalf of himself or
others, any right or protection afforded by this article.
B. A person who believes he has been discriminated against in violation of this
section may, within one hundred eighty days after the violation, file a complaint with
the attorney general. On receipt of the complaint, the attorney general may investigate
as he deems appropriate. If, after investigation, the attorney general determines that
this section has been violated, he may bring an action in superior court against any
alleged violator.
C. In an action brought under this section, the court has jurisdiction to restrain
a violation and order any appropriate relief, including rehiring or reinstatement of a
person, with back pay and double damages.
3-377 Local regulation
The provisions of this article and the rules which implement this article are of
statewide concern and are not subject to further local regulation.
3-381 Integrated pest managementprogram
A. An integrated pest management program is established in the ARIZONA department
of agriculture for the purposes of managing insects, diseases, nematodes, weeds and
rodents, educating the public and agricultural community and integrating crop management
and cultural practices, field scouting, economic thresholds and chemical and biological
control to reduce the use of chemical pesticides.
B. The integrated pest management program shall include instruction, research and
development components. These components shall be developed and administered in a manner
which encourages the following:
1. Expanded research on biological and cultural pest management technologies and on
crop and pest resistance technologies.
2. Use of sampling methods, economic thresholds, monitoring technology, pest
forecasting and the effects of weather on pest and crop parameters.
3. Delivery of current and new integrated pest management technology to the
agricultural industry through cooperative extension.
4. Minimized levels of pesticides in feed, food and the environment.
5. Minimized economic losses due to crop, animal and stored grain pests.
3-382 Program structure;responsibilities
A. The integrated pest management program shall include programs for pest
management and the impact of pest management in the following areas, listed in order of
priority:
1. Cotton, grain and forage production.
2. Livestock, fruit, nut, vegetable and ornamentals production.
B. The integrated pest management program shall:
1. Develop systematic insect, disease and weed pest management strategies for use
on farms in this state which integrate management tactics into environmentally compatible
and economically sound systems to be used by producers, extension personnel and private
enterprise.
2. Obtain information regarding crop, animal and stored grain pest occurrence and
severity, pesticide usage, other pest management strategies used, effective pest
monitoring techniques and scouting intervals and the effectiveness of producers' current
pest control practices.
3. Determine the most effective, low cost methods and organizational structures for
delivering integrated pest management systems to individual farming operations.
4. Investigate alternative pest management tactics such as biological and cultural
control and plant resistance and determine how to integrate these tactics with chemical
control and horticultural practices.
5. Determine accurate and time efficient sampling procedures and forecasting
methods which can be utilized by private consultants or through cooperative extension.
6. Determine the economic relationship of pest incidence to yield or quality loss.
7. Develop nonpesticide methods of pest management in the areas of cultural
practices, biological control and crop resistance.
8. Integrate the proper timing, selection and use of pesticides into overall
management programs.
9. Aid growers in executing the most optimal crop protection program by providing
them with timely reports on pest presence and population density levels, forecasted pest
occurrences, crop growth, weather and other environmental information and by providing
the most current interpretation of the data.
10. Act as a training mechanism for individuals at all levels of operation.
C. Wherever possible the director shall encourage, and if an adequate scientific
and economic basis exists, may require, applicators, pest control advisors and growers to
pursue integrated pest management techniques.
3-383 Powers
The director may contract with any university or community college in this state for
the planning, design and implementation of an integrated pest management program in this
state.
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