1.2 Nebraska Pesticide Act & Title 25 NAC

1.2 Nebraska Pesticide Act & Title 25 NAC

Exam Focus: While the EPA establishes federal baselines under FIFRA, primary operational jurisdiction and day-to-day enforcement over pesticide distribution, licensing, and field use in Nebraska rests exclusively with the Nebraska Department of Agriculture (NDA). Key testable items include the three applicator licensing classes, the $90 commercial fee, the April 15 expiration date, and NDA's enforcement authority under Neb. Rev. Stat. §§ 2-2622 to 2-2659.

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State Lead Agency & Statutory Structure

Under Section 26 and Section 27 of FIFRA, the EPA delegates primary enforcement responsibility (primacy) to qualified state regulatory authorities. In Nebraska, the designated State Lead Agency (SLA) is the Nebraska Department of Agriculture (NDA), operating through its Animal and Plant Health Protection division.

The statutory architecture governing chemical pest control in Nebraska comprises two foundational legal authorities:

1. The Nebraska Pesticide Act: Codified within the Nebraska Revised Statutes at Neb. Rev. Stat. §§ 2-2622 through 2-2659. This statute establishes state legislative policies, defines licensing categories, prescribes registration fees, creates the Pesticide Administrative Cash Fund, and grants inspection and enforcement powers to the Director of Agriculture.
2. Title 25 Nebraska Administrative Code (NAC) Chapter 2: The administrative regulations promulgated by the NDA to operationalize the Nebraska Pesticide Act. Title 25 NAC Chapter 2 provides granular regulatory requirements concerning certification exams, applicator classifications, recordkeeping elements, operational safety, and chemical containment standards.

NDA vs. UNL Extension: Distinct Regulatory Roles

A critical distinction frequently evaluated on licensing exams is the division of responsibilities between the Nebraska Department of Agriculture (NDA) and the University of Nebraska–Lincoln (UNL) Extension:

• Nebraska Department of Agriculture (NDA): The regulatory, licensing, and enforcement body. The NDA approves product registrations, processes license applications and renewal fees, oversees examination administration, conducts routine audits and compliance inspections, investigates pesticide drift or misuse complaints, and assesses administrative fines or license revocations.
• UNL Extension (PSEP): The educational arm. UNL's Pesticide Safety Education Program (PSEP) authors training manuals, develops educational curricula, conducts commercial and private applicator training conferences, and provides technical pesticide safety education. UNL Extension does not issue licenses, collect state licensing fees, or enforce regulations.

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Applicator Licensing Classifications

Nebraska law establishes three distinct applicator classifications based upon the economic nature of the application, the ownership of the treated site, and whether Restricted-Use Pesticides (RUPs) are involved.

1. Commercial Applicators

A Commercial Applicator license is legally mandatory for any person who advertises or provides pesticide application services on the property of another for compensation. This encompasses custom agricultural applicators, aerial applicators, commercial lawn care and landscape operators, golf course superintendents, right-of-way weed control contractors, structural pest control technicians, and commercial mosquito control contractors.

Critical Legal Rule: For a commercial applicator, licensing is required to apply ANY pesticide—even common over-the-counter, general-use herbicides or turf fertilizers with pre-emergent weed control. A custom lawn service cannot legally apply general-use weed control to a client's turf for compensation without a valid commercial applicator license.

2. Private Applicators

A Private Applicator certification is designed specifically for agricultural producers—farmers, ranchers, and livestock operators. A private applicator certification authorizes the individual to purchase, mix, load, apply, and supervise the use of Restricted-Use Pesticides (RUPs) for producing agricultural commodities on property owned, rented, or leased by the applicator or their agricultural employer. Private applicators are not licensed to provide custom applications for a fee on a neighbor's property, though traditional reciprocal farm labor exchanges (trading harvesting or spraying work without cash payment) are permitted.

3. Non-Commercial Applicators

A Non-Commercial Applicator license applies to individuals who apply RUPs as part of their employment duties, but do not contract out their services or bill customers for pesticide application. Typical non-commercial applicators include:

• Employees of federal, state, county, or municipal government agencies (e.g., County Weed Control Superintendents, Nebraska Department of Transportation highway maintenance crews, municipal park workers).
• Employees of private industrial, commercial, or agricultural processing facilities (e.g., grain elevator staff treating employer-owned grain bins with RUP fumigants, research laboratory technicians) applying RUPs solely to land, grain, or buildings owned or leased by their employer.

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Licensing Mechanics, Fees, and Renewal Cycles

Nebraska maintains rigid statutory standards regarding licensing fees, credential terms, and expiration dates:

+-------------------------------------------------------------------------+
|                    COMMERCIAL LICENSING QUICK FACTS                     |
| - Application Fee: $90 payable to Nebraska Department of Agriculture   |
| - Term Duration: 3 calendar years                                       |
| - Expiration: APRIL 15 of the third year (Neb. Rev. Stat. 2-2642(1))    |
| - Minimum Age: 18 to use an RUP (Neb. Rev. Stat. 2-2636(2)(a))          |
+-------------------------------------------------------------------------+

• License Fee: Neb. Rev. Stat. § 2-2638 sets the commercial pesticide applicator license fee at $90, remitted directly to the Nebraska Department of Agriculture once the certification exams are passed. The statute permits the Director to adjust the fee by rule but caps it at $150. Neb. Rev. Stat. § 2-2639 states the department "shall not charge a noncommercial applicant a license fee," so noncommercial applicators pay $0 while meeting identical examination standards. Private applicator licenses cost $25 under Neb. Rev. Stat. § 2-2641.
• Three-Year Cycle & April 15 Expiration: The expiration date is set by statute, not by regulation. Neb. Rev. Stat. § 2-2642(1) provides that "each commercial, noncommercial, and private applicator license shall expire on April 15 following the third year in which it was issued." A holder of a valid commercial or noncommercial license renews for another three-year period by paying the fee and either completing department-approved training or submitting to retesting (§ 2-2642(2)). Anyone who lets a license expire must submit to testing before it can be renewed (§ 2-2642(3)) — training alone will not restore a lapsed credential. Title 25 NAC Chapter 2, § 005.05A adds one narrow exception: NDA grants a one-year license extension to military personnel who were on active duty during the period in which they would otherwise have renewed.
• Minimum Age: Under Neb. Rev. Stat. § 2-2636(2)(a), a person must be at least 18 years old to use a restricted-use pesticide (except for the family-farm provision in § 2-2642(6)). A 16-year-old may apply lawn-care or structural general-use pesticides for hire, or general-use pesticides for outdoor vector control on behalf of a political subdivision, only while working under the direct supervision of a licensed certified applicator (§ 2-2636(3)–(4)).

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NDA Regulatory and Enforcement Powers

Under the Nebraska Pesticide Act — chiefly Neb. Rev. Stat. § 2-2626, which enumerates the department's powers — the NDA possesses broad administrative and investigative powers to ensure statutory compliance and environmental protection.

Routine and For-Cause Inspections

NDA agricultural inspectors have the statutory authority to enter, during normal business hours or reasonable operational periods, any public or private premises, chemical storage facility, commercial application vehicle, mixing/loading pad, or field application site. Inspectors may:

• Inspect and audit required pesticide application records, employee safety training logs, and equipment containment systems.
• Inspect application machinery, pressure gauges, shutoff valves, and nozzle configurations for leaks or improper calibration.
• Collect formal physical samples of pesticide formulations, spray tank mixtures, treated crops, soil, groundwater, or surface water for forensic residue analysis.

Administrative Enforcement Actions

When compliance deficiencies or pesticide misapplications are detected, the NDA implements progressive enforcement remedies:

1. Notice of Non-Compliance / Warning Letter: Issued for minor, first-time, or technical infractions (such as minor clerical omissions in application record books) where no environmental contamination or human injury occurred.
2. Stop-Sale, Stop-Use, or Removal Order (SSURO): Authorized by Neb. Rev. Stat. § 2-2626(7), this is a binding written order prohibiting the sale, removal, or use of a pesticide the department believes is being sold or used in violation of the act. The person served may not distribute, remove, or use the product until NDA determines it is in compliance.
3. License Probation, Suspension, Modification, or Revocation: Under Neb. Rev. Stat. §§ 2-2643.01 to 2-2643.03, the Director may place a license holder on probation, modify or suspend the license, or revoke it after written notice and an opportunity for hearing. The prohibited acts in § 2-2643.01 include making a recommendation or use inconsistent with the labeling, operating "in a faulty, careless, or negligent manner," refusing to keep required records, falsifying records or reports, using fraud in a license application, and aiding another person in evading the act. A license may be suspended immediately before hearing when the Director finds an immediate danger to public health, safety, or welfare; if the holder asks for a hearing within two business days, the Director must set one within two business days (§ 2-2643.03(3)).
4. Administrative Fines: Under Neb. Rev. Stat. § 2-2626(9), NDA may impose or levy an administrative fine of not more than $5,000 for each violation, where a violation means each act that breaches a separate provision, requirement, condition, limitation, or duty. Title 25 NAC Chapter 2, § 007 sets the base fines for each prohibited act in § 2-2646 (generally $1,000–$2,500 for a first violation and $2,000–$5,000 for a subsequent violation), then adjusts them for gravity of harm, gravity of misconduct, and size of business. A "subsequent violation" under § 003.03 is one committed within three years of a prior finding, uncontested settlement, or warning letter.
5. Civil Fines in District Court: Separately, Neb. Rev. Stat. § 2-2648 authorizes a civil fine of not more than $15,000 for each offense, and in the case of a continuing violation each day is a separate offense. This is the provision that carries the per-day multiplier — the § 2-2626(9) administrative fine does not.
6. Criminal Sanctions: Under Neb. Rev. Stat. § 2-2647(1), an unlawful act under the Pesticide Act is a Class III misdemeanor, and a Class I misdemeanor on a subsequent conviction. The Attorney General or county attorney prosecutes when notified by the Director.
7. Business Liability: Under Neb. Rev. Stat. § 2-2646.01, any person who owns or operates a business that applies pesticides on the property of another for hire is responsible for the acts or omissions of anyone using a pesticide for that business, and is subject to the same fines and license actions as the applicator.