03-08-84
FORT BERTHOLD RESERVATION PESTICIDE CODE
TABLE OF CONTENTS
PAGE
I. PURPOSE ................................................... 1
II. DEFINITIONS ............................................... 2
III. CLASSIFICATION OF PESTICIDES .............................. 5
IV. CLASSIFICATION OF PESTICIDE APPLICATORS ................... 5
V. CATEGORIZATION OF COMMERCIAL APPLICATORS .................. 5
VI. STANDARDS OF COMPETENCY FOR CERTIFICATION ................. 7
VII. CERTIFICATION PROCEDURES ..................................14
VIII. STORAGE AND DISPOSAL OF PESTICIDES AND
PESTICIDE CONTAINERS ......................................16
IX. RECORD KEEPING ............................................16
X. UNLAWFUL ACTS .............................................16
XI. DENIAL, SUSPENSION, REVOCATION, OR
MODIFICATION OF CERTIFICATION .............................18
XII. PENALTIES .................................................19
XIII. CIVIL DAMAGE AND/OR INJUNCTIVE ACTIONS ....................19
I. PURPOSE
The possibility of uncontrolled and improper use of pesticides on
the Fort Berthold Reservation poses a threat to the health and welfare
of Tribal members and non-members living on, or transgressing through
the Fort Berthold Reservation. In order to protect the health and
welfare of all persons living on, or transgressing through the
Fort Berthold Reservation this code is adopted.
II. DEFINITIONS
For purposes of this code:
A. The term "Administrator" means the Administrator of the
Environmental Protection Agency.
B. The term "agricultural commodity" means any plant or part thereof,
or animal, or animal product, produced by a person (including
farmers, ranchers, vineyardists, plant propagators, Christmas tree
growers, aquaculturists, floriculturists, orchardists, foresters,
or other comparable persons) primarily for sale, consumption,
propagation, or other use by man or animals.
C. The term "animal" means all vertebrate and invertebrate species,
including but not limited to man and other mammals, birds, fish,
and shellfish.
D. Applicators:
1. The term "certified applicator" means any individual who is
certified by the Natural Resources Department as authorized to
use or supervise the use of any restricted use pesticide.
2. The term "private applicator" means a certified applicator who
uses or supervises the use of any restricted pesticides for
purpose of producing any agricultural commodity on property
owned or (ILLEGIBLE TEXT) by him or his employer (if applied
without compensation other than trading or personal services
between producers or agricultural commodities) on the property
of another person.
3. The term "commercial applicator" means a certified applicator
(whether or not he is a private applicator with respect to
some uses) who uses or supervises the use of any restricted use
pesticide for any purpose or on any property other than as
provided by paragraph 2.
4. Unless otherwise prescribed by its labeling, a restricted use
pesticide shall be considered to be applied "under the direct
supervision of a certified applicator" if it is applied by a
competent person acting under the instructions and control of
a certified applicator who is available if and when needed,
even though such certified applicator is not physically present
at the time and place the pesticide is applied.
E. The term "Code" means the Fort Berthold Reservation Pesticide code.
F. The term "Department" means the Three Affiliated Tribes Natural
Resources Department.
G. The term "Council" means the Three Affiliated Tribes Tribal
Council.
H. The term "EPA" means the U.S. Environmental Protection Agency.
I. The term "district court" means a United States district court.
J. The term "environment" includes water, air, land, and all plants
and man and other animals living therein, and the inter-relationship
which exist among these.
K. The term "FIFRA" means the Federal Insecticide, Fungicide and
Rodenticide Act, as Amended (1972, 1975, and 1978).
L. The term "insect" means any of the numerous small invertebrate
animals generally having a body more or less obviously segmented,
for the most part belonging to the class insect, comprising,
six-legged, usually winged forms, as for example, beetles, bugs,
bees, 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.
M. Label and Labeling:
1. The term "label" means the written, printed, or graphic
matter on, or attached to, the pesticide or device or any of
its containers or wrappers.
2. The term "labeling" means all labels and all other written,
printed or graphic matter -
a. accompanying the pesticide or device at any time; or
b. to which reference is made on the label or in literature
accompanying the pesticide or device, except to current
official publications of the Environmental Protection
Agency, the United States Departments of Agriculture and
Interior, the Department of Health, Education and Welfare,
State experiment stations, State agricultural colleges, and
other similar Federal or State institutions or agencies
authorized by law to conduct research in the field of
pesticides.
N. The term "land" means all land and water areas, including airspace,
and all plants, animals, structures, buildings, contrivances, and
machinery appurtenant thereto or situated thereon, fixed or mobile,
including any used for transportation, within the exterior
boundaries of the Reservation.
O. The term "pest" means:
(1) any insect, rodent, nematode, fungus, weed, or
(2) any other form of terrestrial or aquatic plant or animal life
or virus, bacteria, or other micro-organism (except viruses,
bacteria, or other micro-organisms on or in living man or
other living animals) which the Administrator declares to be
a pest.
P. The term "pesticide" means:
(1) any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating any pest, and
(2) any substance or mixture of substances intended for use as a
plant regulator, defoliant, or desiccant: Provided, that the
term "pesticide" shall not include any article
(1)(a) that is a "new animal drug" within the meaning of
Section 201(w) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321(w)).
(b) that has been determined by the Secretary of Health,
Education, and Welfare not to be a new animal drug by
a regulation establishing conditions of use for the
article, or
(2)(a) that is an animal feed within the meaning of Section
201(x) of such Act (21 U.S.C. 321(x)) bearing or
containing an article covered by clause (1) of this
proviso.
Q. The term "protect health and the environment" and "protection of
health and the environment" means protection against any
unreasonable adverse effects on the environment.
R. The term "person" shall include natural persons, both members and
non-members of the Three Affiliated Tribes, associations,
partnership, corporations, and other organizational entites.
S. The term "restricted use pesticide" means any pesticide formulation
which is classified for "restricted use" by EPA and the Department.
T. The term "Commissioner" means the Commissioner of the North
Dakota State Department of Agriculture.
U. The term "State" means the State of North Dakota.
V. The term "unreasonable adverse effects on the environment" means
any unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and
benefits of the use of any pesticide.
W. The term "weed" means any plant which grows where not wanted.
X. The term "wildlife" means all living things that are neither human,
domesticated, nor, as defined in this Code, pests, including but
not limited to mammals, birds, and aquatic life.
III. CLASSIFICATION OF PESTICIDES
Individuals not appropriately certified are prohibited from using any
restricted use pesticides, with the exception of those individuals
applying the pesticides under the direct supervision of a certified
applicator.
Applicators using pesticides, which are not classified as "restricted
use", do not need to be certified.
IV. CLASSIFICATION OF PESTICIDE APPLICATORS
Pesticide applicators shall be classified as commercial applicators or
private applicators according to the definitions shown in section II.D
of this code.
V. CATEGORIZATION OF COMMERCIAL APPLICATORS
Commercial applicators shall be categorized in one or more of the
categories defined below, based on the application site and the type
of work they perform.
A. CATEGORIES
1. Agricultural Pest Control
a. Plant
This category includes commercial applicators using or
supervising the use of pesticides in production of
agricultural crops, including without limiting the
foregoing, tobacco, peanuts, cotton, feed grains, soybeans
and forage, vegetables, small fruits, trees fruits and
nuts, as well as on grasslands and non-crop agricultural
lands.
b. Animal
This category includes commercial applicators using or
supervising the use of pesticides on animals, including
without limiting the foregoing, beef cattle, dairy
cattle, swine, sheep, horses, goats, poultry and
lifestock, and to places on or in which animals are
confined.
2. Ornamental and Turf Pest Control
This category includes commercial applicators using or
supervising the use of pesticides to control pests in the
maintenance and production of ornamental trees, shrubs,
flowers, and turf.
3. Seed Treatment
This category includes commercial applicators using or
supervising the pesticides on seeds.
4. Aquatic Pest Control
This category includes commercial applicators using or
supervising the use of pesticides purposefully applied to
standing or running water, excluding applicators engaged in
public health related activities including in category 7
below.
5. Right-of-way Pest Control
This includes commercial applicators using or supervising the
use of pesticides in the maintenance of public roads, electric
powerlines, railway rights-of-way or other similar areas.
6. Industrial, Institutional, Structural and Health Related Pest
Control
This category includes commercial applicators using or
supervising the use of pesticides in, on, or around food
handling establishments, human dwellings, institutions, such
as schools and hospitals, industrial establishments, including
warehouse and grain elevators, and any other structures and
adjacent area, public or private, and for the protection of
stored, processed, or manufactured products.
7. Public Health Pest Control
This includes State, Federal, Tribal or other governmental
employees using or supervising the use of pesticides in public
health programs for the management and control of pests having
medical and public health importance.
8. Regulatory Pest Control
This category includes State, Federal, Tribal or other
governmental employees who use or supervise the use of
pesticides in the control of regulated pests.
9. Research and Demonstration Pest Control
This category includes:
(1) individuals who demonstrate to the public the proper use
and techniques of application of pesticides or supervise
such demonstration, and
(2) persons conducting field research with pesticides, and in
doing so, use or supervise the use of pesticides.
Included in the first group are such persons as extension
specialists and county agents, commercial representatives
demonstrating pesticide products, and those individuals
demonstrating methods used in public programs.
The second group includes: State, Federal, commercial and
other persons conducting field research on or utilizing
pesticides.
10. Vertebrate Pest Control
This category includes commercial applicators using or
supervising the use of any pesticide in the control of rodents,
predators, or birds.
All applicators who apply pesticides via aircraft must comply with
all applicable Federal regulations and regulations administered by the
State of North Dakota.
VI. STANDARDS OF COMPETENCY FOR CERTIFICATION
A. General Standards for Commercial Applicators
All commercial applicators shall demonstrate knowledge of the
following subjects:
1. Label & Labeling Comprehension
a. The general format and terminology of pesticide labels and
labeling;
b. The understanding of instructions, warnings, terms, symbols,
and other information commonly appearing on pesticide
labels;
c. Classification of the product, general or restricted; and
d. Necessity for use consistent with the label.
2. Safety - Factors including:
a. Pesticide toxicity and hazard to man and common exposure
routes;
b. Common types and causes of pesticide accidents;
c. Precautions necessary to guard against injury to
applicators and other individuals in or near treated areas;
d. Need for and use of protective clothing and equipment;
e. Symptoms of pesticide poisoning;
f. First aid and other procedures to be followed in case of a
pesticide accident; and
g. Proper identification, storage, transport, handling, mixing
procedures and disposal methods for pesticides and used
pesticide containers, including precautions to be taken to
prevent children from having access to pesticides and
pesticide containers.
3. Environment - The potential environmental consequences of the
use and misuse of pesticides as may be influenced by such
factors as:
a. Weather and other climatic conditions;
b. Types of terrain, soil or other substrate;
c. Presence of fish, wildlife and other non-target
organisms; and
d. Drainage patterns.
4. Pests - Factors such as:
a. Common features of pest organisms and characteristics of
damage needed for pest recognition;
b. Recognition of relevant pests; and
c. Pest development and biology as it may be relevant to
problem identification and control.
5. Pesticides - Factors such as:
a. types of pesticides;
b. types of formulations;
c. compatibility, synergism, persistence and animal and
plant toxicity of the formulations;
d. Hazards and residues associated with use;
e. Factors which influence effectiveness or lead to such
problems as resistance to pesticides; and
f. Dilution procedures.
6. Equipment - Factors including:
a. Types of equipment and advantages and limitations of
each type; and
b. Uses, maintenance and calibration.
7. Application Techniques - Factors including:
a. Methods of procedure used to apply various formulations of
pesticides, solutions, and grass, together with a knowledge
of which technique of application to use in a given
situation.
b. Relationship of discharge and placement of pesticides to
proper use, unnecessary use, and misuse; and
c. Prevention of drift and pesticide loss into the
environment.
8. Laws and Regulations - Applicable State, Federal and Tribal
Laws and Regulations.
a. Any person having their state or federal, private and/or
commercial credentials revoked or suspended by the state or
federal, will also void their Tribal private and commercial
applicators, credentials within the boundaries of the
Fort Berthold Reservation.
B. Category Specific Standards:
In addition to the general standards, commercial applicators must
demonstrate knowledge of the principles of pesticide use as they
relate to the particular use category in which the applicator is
involved. The following are the category specific standards:
1. Agricultural Pest Control
a. Plant
Applicators must demonstrate practical knowledge of the
crops grown and the specific pests of those crops on which
they may be using pesticides. The importance of such
competency is amplified by the extensive areas involved,
the quantities of pesticides needed, and the ultimate use
of many commodities as food and feed. Practical
knowledge is required concerning soil and water problems,
pre-harvest intervals, re-entry intervals, phytotoxicity,
and potential for environmental contamination, non-target
injury and community problems resulting from the use of
restricted use pesticides in agricultural areas.
b. Animal
Applicators applying pesticides directly to animals must
demonstrate practical knowledge of such animals and
their associated pests. A practical knowledge is also
required concerning specific pesticide toxicity and
residue potential, since host animals will frequently be
used for food. Further, the applicator must know the
relative hazards associated with such factors as
formulation, application techniques, age of animals, stress
and extent of treatment.
2. Ornamental and Turf Pest Control
Applicators shall demonstrate practical knowledge of pesticide
problems associated with the production and maintenance of
ornamental trees, shrubs, plantings, and turf, including
cognizance of potential phytotoxicity due to a wide variety of
plant material, drift, and persistence beyond the intended
period of pest control. Because of the frequent proximity of
human habitations to application activities applicators in this
category must demonstrate practical hazards to humans, pets,
and other domestic animals.
3. Seed Treatment
Applicators shall demonstrate practical knowledge of types of
seeds that require chemical protection against pests and
factors such as seed coloration, carriers, and surface active
agents which influence pesticide binding and may affect
germination. They must demonstrate practical knowledge of
hazards associated with handling, sorting and mixing, and
misuse of treated seed such as introduction of treated seed
into food and feed channels, as well as proper disposal.
4. Aquatic Pest Control
Applicators shall demonstrate practical knowledge of the
secondary effects which can be caused by improper application
rates, incorrect formulations, and faulty application of
restricted use pesticides used in this category. They shall
demonstrate practical knowledge of various water use
situations and the potential of downstream effects. Further,
they must have practical knowledge concerning potential
pesticide effects on plants, fish, birds, beneficial insects
and other organisms which may be present in aquatic
environments. These applicators shall demonstrate practical
knowledge of the principles of limited area application.
5. Right-of-Way Pest Control
Applicators shall demonstrate practical knowledge of a wide
variety of environments since rights-of-way can traverse many
different terrains, including waterways. They shall
demonstrate practical knowledge of problems on runoff, drift,
and excessive foliage destruction and ability to recognize
target organisms. They shall also demonstrate practical
knowledge of the nature of the herbicides and the need for
containment of these pesticides within the right-of-way areas,
and the impact of their application activities in the adjacent
areas and communities.
6. Industrial, Institutional, Structural and Health Related Pest
Control
Applicators must demonstrate a practical knowledge of a wide
variety of pest including their life cycles, types of
formations appropriate for their control and methods of
application that avoid contamination of food, damage and
contamination of habitat and exposure of people and pets. Since
human exposure, including babies, children, pregnant women, and
elderly people, is frequently a potential problem, applicators
must demonstrate practical knowledge of the specific factors
which may lead to a hazardous condition, including continuous
exposure to the various situations encountered in this category.
Because health related pest control may involve outdoor
applications, applicators must also demonstrate practical
knowledge of environmental conditions particularly related to
this activity.
7. Public Health Pest Control
Applicators shall demonstrate practical knowledge of
vector-disease transmission as it relates to and influences
application programs. A wide variety of pests is involved,
and it is essential that they be known and recognized,
and appropriate life cycles and habitats be understood as a
basis for control strategy. These applicators shall have
practical knowledge of a great variety of environments
ranging from streams to those conditions found in buildings.
They should also have practical knowledge of the importance
and employment of such non-chemical control methods as
sanitation, waste disposal (ILLEGIBLE TEXT).
8. Regulatory Pest Control
Applicators shall demonstrate practical knowledge of regulated
pests, applicable laws relating to quarantine and other
regulation of pests, and potential impact on the environment
of restricted use pesticide used in suppression and
eradication programs, they shall demonstrate knowledge of
factors influencing introduction, spread, and population
dynamics of relevant pests. Their knowledge shall extend
beyond that required by their immediate duties since their
services are frequently required in other areas of the country
where emergency measures are invoked to control regulated pests,
and where individual judgments must be made in new situations.
9. Research and Demonstration Pest Control
Persons demonstrating the safe and effective use of
pesticides to other applicators and the public will be
expected to meet comprehensive standards reflecting a broad
spectrum of pesticide uses. Many different pest problem
situations will be encountered in the course of activities
associated with demonstration, and practical knowledge of
problems, pests, and population levels occurring in each
demonstration situations is required. Further they should
demonstrate an understanding of pesticide use with other
control methods. In general, it would be expected that
applicators doing demonstration pest control work, possess a
practical knowledge of all of the standards detailed Section
171.4(b) of FIFRA regulations. In addition, they shall meet
the specific standard required for categories (1) through (6)
of this section as may be applicable to their particular
activity.
Persons conducting field research or method improvement work
with restricted use pesticides should be expected to know the
general standards detailed in Section V(A) of this Code. In
addition, they shall be expected to know the specific
standards required for categories (1) through (8) and (10) of
this section, applicable to their particular activity, or
alternatively, to meet the more inclusive requirements listed
under "Demonstration".
10. Vertebrate Animal Control
Illegible lines
introduction, spread, life cycles, and population dynamics
as a basis for control strategy. They should know about the
importance of using non-chemical control methods such as
sanitation, habit modification, trapping, and frightening
devices. The applicator shall also have practical knowledge
of the potential for environmental contamination, non-target
injury and community problems resulting from the use of
restricted use pesticides.
A. Exemptions from Standards
The above standards do not apply to the following persons
for purpose of this Code:
1. Persons conducting laboratory type research involving
restricted use pesticides; and
2. Doctors of Medicine and Doctors of Veterinary Medicine
applying pesticides as drugs or medication during the
course of their normal practice.
B. Standards of Competency for Private Applicators
All private applicators shall demonstrate knowledge of the
following subjects:
1. Recognize common pest to be controlled and damaged
caused by them.
2. Read and understand the label and labeling information
including the common name of pesticide he applied;
pest (s) to be controlled; timing and methods of
application; safety precautions; and preharvest or
re-entry restrictions; and any specific disposal
procedures.
3. Apply pesticides in accordance with label instructions
and warnings, including the ability to prepare the
proper concentrations of pesticides to be used under
particular circumstances taking into account such
factors as area to be covered, speed at which
application equipment will be driven, and the quantity;
dispersed in given period of operation.
4. Recognize local environmental situations that must be
considered during application to avoid contamination.
5. Recognize poisoning symptoms and procedures to follow
in case of a pesticide accident.
C. Standards for Supervisions of Non-Certified Applicators by
Certified Private and Commercial Applicators.
Certified applicators whose activities indicate a
supervisory role must demonstrate a practical knowledge of
Federal, State and (ILLEGIBLE TEXT)
The availability of the certified applicator must be
directly related to the hazard of the situation. In many
situation, where the certified applicator is not required
to be physically present, "direct supervision" shall
include verifiable instruction to the competent person,
as follows;
1. detailed guidance for applying the pesticide properly,
and
2. provisions for contacting the certified applicator in
the event he is needed. In other situations, and as
required by the label, the actual physical presence of
a certified applicator may be required when application
is made by a non-certified applicator.
VII. CERTIFICATION PROCEDURES
A. Commercial Applicators
1. Certification Document Required
No person shall apply restricted use pesticides on
Fort Berthold Reservation lands without first obtaining a
Fort Berthold Reservation certification document from the
Natural Resources Department. Fort Berthold Reservation
certification is obtained by presenting to the Department a
valid commercial applicator certification document issued by
the State of North Dakota or by receiving the appropriate
training to obtain a State certificate or by presenting
proof of certification issued under an approved Federal
Applicator Certification Plan. The Tribal certification
document issued will reflect tribal certification only in the
commercial document presented which the Department determines
to meet the competency standards given in Section VI(B) of this
Code. Further, the expiration date on the Fort Berthold
certification document shall not exceed the expiration date
printed on the State or Federal certification document
presented. Applicators using pesticides, which are not
classified as "restricted use", in or around their own
homes do not need to be certified.
2. (ILLEGIBLE TEXT)
(ILLEGIBLE TEXT)
procedures described in section VII.A.1. of this Code by
presenting a valid State or Federal certification document, or
Tribal certification document to the Natural Resources
Department.
3. Records Maintained
Commercial applicators shall keep and maintain records of each
application of any restricted use pesticide to include the
following information:
a. Name and address of owner or leaser of property treated;
b. Location of treatment site, if different from (a);
c. Date of application;
d. Name of pesticide, formulation, concentration, rate
applied, and total amount used; and
e. Purpose of application (name of site, crop, pest
treated).
Such records shall be kept for a period of two years from the
date of application of the pesticide and shall be available for
inspection by the Department at reasonable times. The
Department shall, upon request, be furnished a copy of such
records by the commercial applicator. Records of pesticide
applications performed by persons under the direct supervision
of a certified commercial applicator shall be the responsibility
of the supervising certified applicator.
4. Exemption
The provision of this section concerning records shall not
apply to persons conducting research involving restricted
use pesticides nor to Doctors of Medicine or Doctors of
Veterinary Medicine applying pesticides as drugs or medication
during the course of their normal practice.
B. Private Applicators
1. Certification Required
No private applicator as defined in section II.D.2. of this
Code shall use or supervise the use of any restricted use
pesticide without a private applicator's certificate issued by
the Tribes Natural Resources Department. Applicators using
pesticides which are not classified as "restricted use", in or
around their own homes do not need to be certified.
2. Certification (ILLEGIBLE TEXT)
A private (ILLEGIBLE TEXT) may become certified or purchase
and/or apply any pesticides on Fort Berthold Reservation lands
by presenting a current valid North Dakota Private Applicator's
certificate to the Department. The Department will issue a
certification document to the holder of a North Dakota
certification document. The expiration date of the tribal
certification will be the same as that given on the North
Dakota document. Recertification may be obtained by presenting
an updated North Dakota certification document to the
Department.
3. Certification of Non-English Speaking Applicators
Since pesticide labels are printed in English,
a. tribal members who cannot read English will be assisted by
a bilingual interpreter who will assist them in the
certification process.
b. All other persons who cannot read English will be
assisted by a bilingual interpreter who will assist them in
the certification process.
VIII. STORAGE AND DISPOSAL OF PESTICIDES
AND PESTICIDE CONTAINERS
No persons shall transport, store, or dispose of any pesticide or
pesticide container in such a manner as to cause injury to humans,
vegetation, crops, livestock, wildlife, beneficial insects, or to
pollute any waterway in a manner harmful to any wildlife therein.
All pesticides shall be stored in their original container and in
accordance with label recommendations. All labels of stored
pesticides shall be plainly visible.
All pesticides shall be transported in their original containers.
No pesticide shall be transported with foodstuff, feed or any
material so as to pose a hazard to human, animals or the
environment.
IX. RECORD KEEPING
Every pesticide dealer shall keep an accurate and complete record
of all purchases and sales of restricted use pesticides, which records
shall include at least the following of each pesticide so purchased
or sold:
Purchases
A. Dealers name and address.
B. Pesticides name.
C. Volume of pesticide.
D. Date pesticide was shipped or received.
E. Distributors name (person from whom the pesticide was
received)
(ILLEGIBLE TEXT)
A. (ILLEGIBLE TEXT) name and address and (ILLEGIBLE TEXT) of person
(ILLEGIBLE TEXT) the sale.
B. Name, address, license number and signature of private or
commercial applicator.
C. Date of sale.
D. Trade name and/or common name and quantity of pesticide sold.
E. Intended use by purchaser.
X. UNLAWFUL ACTS
Any person who has committed any of the following acts is subject
to penalties provided in section XII, of this Code:
A. Made false or fraudulent claims through any media,
misrepresenting the effect of pesticide or methods to be
utilized;
B. Made a pesticide recommendation or application inconsistent with
the labeling registered with EPA, for that pesticide, or in
violation of EPA's, or the Department restrictions on the use
of that pesticide;
C. Operated faulty or unsafe pesticide application equipment;
D. Operate pesticide application equipment in a faulty, careless,
or negligent manner;
E. Neglected, or after notice, refused to comply with the
provisions of this Code or any lawful order of the Department;
F. Refused or neglected to keep and maintain the records
required by this Code or to make reports when and as required;
G. Made false or fraudulent records, invoices, or reports;
H. Used, or supervised the use of, a restricted pesticide without
having qualified as a certified applicator; or without working
under the direct supervision of a certified applicator as
described in Section VI(E) of this Code, except for
applicators using pesticides, which are not classified as
"restricted use", in or around their own homes.
I. Used fraud or misrepresentation in making application for or
renewal of certification;
J. Refused or neglected to comply with any limitations or
restrictions on or in a duly issued certification;
K. Used or caused to be used any pesticides in a manner
inconsistent with its labeling or codes of the Department if
these codes further restrict the uses provided on the labeling.
L. (ILLEGIBLE TEXT)
provisions of this code; conspired with a certified or an
uncertified person to evade the provisions of this Code; or
allowed one's certification to be used by another person;
M. Made false or misleading statements during an inspection
concerning any infestation or infection of pests found on
land;
N. Impersonated any Federal, State, County, Tribal or other
governmental official;
O. Distributed any restricted use pesticide or any person
unless such person or his agent has a valid certification to
use, supervise the use of or distribute, pesticides; except
that pesticides, which are not classified as "restricted use",
may be distributed to non-certified people for use in or around
their own homes;
P. Applied restricted use pesticides onto any land without the
consent of the owner or person in possession thereof; Except,
for governmental agencies which must abate a public health
problem.
XI. DENIAL, SUSPENSION, REVOCATION,
OR MODIFICATION OF CERTIFICATION
A. The Department or its designated agent, may, for good cause shown
or upon its own information and belief, informally contact any
applicator about possible violations of the Code or practices
which may result in violations. These informal contacts are to
assist the applicator in adhering to practices which promote the
proper use of pesticides. If consent for right-of-entry is not
voluntarily given, the Department or its designated agent, may
obtain a warrant for right-of-entry for sampling, inspection, and
observation purposes.
B. Upon recommendation to the Department by its designated agent, or,
based its own findings and belief, the Department may issue a
Warning of Possible Violation in the form of a letter from the
Department to an applicator. The letter will explain the basis for
the Warning, possible measures which the applicant may take to
mitigate the basis of the Warning, and an explanation of the steps
that the Department may take if the applicator does not take
positive corrective action.
C. The Department may suspend, pending inquiry, for not longer than
ten days; and, after opportunity for a hearing, may deny, revoke
or modify; any certification issued under this Code when the
Department finds that the applicant or the holder of a
certification has been convicted or is subject to a final order
imposing a criminal or civil penalty pursuant
(ILLEGIBLE TEXT)
certification under this Code shall be subject to the penalties
provided for by Section XII of this Code.
XII. PENALTIES
A. Any person violating any provision of this Code may be assessed a
civil penalty not to exceed $500.00 per violation. In determining
the amount of the penalty, the Department shall consider the
appropriateness of such penalty to the size of business of the
person charged, the effect on the person's ability to continue in
business, and the gravity of the violation.
B. Any penalty assessed by the Department following a penalty
proceeding may be appealed to the appropriate tribal court.
C. This ordinance in no way restricts an individual's or the Tribe's
right to file suit against a party for damage incurred from the
improper use of any pesticide.
XIII. CIVIL DAMAGES AND/OR INJUNCTIVE ACTIONS
In the event that any person or person under their direct supervision
should cause any physical damage (resulting from the use of any
pesticide) to any real or personal property, belonging to any other
person, persons or governments, within the exterior boundries of the
Reservation, the government or the person or persons adversely
affected shall have the right to seek monetary and/or injunctive
relief in the appropriate judicial forum.
Resolution No. 84-54-5
RESOLUTION OF THE GOVERNING BODY OF
THE THREE AFFILIATED TRIBES OF THE
FORT BERTHOLD INDIAN RESERVATION
WHEREAS, This Nation having accepted the Indian Reorganization Act of
June 18, 1934, and the authority under said Act; and
WHEREAS, The Constitution of the Three Affiliated Tribes generally
authorizes and empowers the Tribal Business Council to engage
in activities on behalf of and in the interest of the welfare
and benefit of the Tribes and of the enrolled members
thereof; and
WHEREAS, Article VI, Section 5 (j) of the constitution of the Three
Affiliated Tribes authorizes and empowers the Tribal Business
Council to protect and preserve the property, wildlife, and
natural resources of the tribes; and
WHEREAS, The Tribal Business Council recognizes that the Fort
Berthold Pesticide Applicators Certification Plan and the Fort
Berthold Reservation Pesticide Code, which were initially
approved by Tribal Resolution #82 - 21 - S, need to remain in
full force and effect to protect the health and welfare of the
residents of the Fort Berthold Indian Reservation; and
WHEREAS, Several revisions have been made in the aforementioned Plan
and Code, acting on the advise of the United States
Environmental (ILLEGIBLE TEXT) Agency, (ILLEGIBLE TEXT)
further ensure that the Berthold (ILLEGIBLE TEXT) Reservation
Pesticide Code protect and preserve the property, wildlife,
and natural resources of the tribes, while at the same time
ensuring the health and welfare of the resident enrolled
members and the non-enrolled residents of the Fort Berthold
Indian Reservation;
NOW, THEREFORE, BE IT RESOLVED, That the Tribal Business Council of the
Three Affiliated Tribes hereby supports and approves the
proposed revision of the Fort Berthold Pesticide Applicators
Certification Plan and The Fort Berthold Reservation
Pesticide Code which include the recognition of an EPA
approved Federal Certification Plan, true and correct,
photostatic copies of which documents are attached hereto and
made part hereof.
C E R T I F I C A T I O N
I, the undersigned, as Secretary of the Tribal Business Council of
the Three Affiliated Tribes of the Fort Berthold Reservation, hereby
certify that the Tribal Business Council is composed of 11 members of
whom 7 constitutes a quorum, 11 were present at a Regular Meeting,
thereof duly called, noticed, convened, and held on the 8 day of March
1984; that the foregoing Resolution was duly adopted at such meeting
by the affirmative vote of 11 members, - members opposed, - members
abstained, - members not voting, and that said Resolution has not been
rescinded or amended in any way.
Page Two
Chairman (voting).
Dated this 8 day of March, 1984
__________________________________
Secretary, Tribal Business Council
ATTEST:
__________________________________
Chairman, Tribal Business Council
May 26, 1982
Mr. Titus Hall
Natural Resources
Three Affiliated Tribes
New Town, N.D. 58763
Dear Titus,
This is to inform you that the Fort Berthold
Extension office is equipped to train private
pesticide applicators in the pesticide certification
program.
The training does take some time so preferably,
we like to train a group rather than one at a
time.
Sincerely,
_______________________
J. Keith Soiseth
County Extension Agent
Fort Berthold
New Town, N.D. 58763
JKS:ah
ATTACHMENT - SEE HARD COPY
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