1.1 RSA 430, the Pesticide Control Board & the Division

1.1 RSA 430, the Pesticide Control Board & the Division

The regulations examination is one of the three written exams every New Hampshire applicator has to pass, and it starts here. Before you can answer a question about a setback or a record, you have to know who wrote the rule, who enforces it, and what happens when it is broken. New Hampshire splits those jobs between a statute, a rulemaking board, and an operating division, and exam questions routinely test whether you can tell them apart.

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The statute: RSA 430:28-50

Pesticides in New Hampshire are controlled by RSA Chapter 430, sections 28 through 50, the Pesticides Controls subdivision of Title XL (Agriculture, Horticulture and Animal Husbandry). The statute declares that pesticides are necessary for agriculture, forestry, and public health, but that careless distribution and use threaten people, livestock, wildlife, and the state's water. It therefore places the whole pesticide program inside the Department of Agriculture, Markets & Food (NHDAMF).

Sections you should be able to recognize by number:

One of these is a common trap. RSA 430:50 is the IPM program statute — it directs the commissioner to promote integrated pest management and funds that work with 25 percent of pesticide product registration fees. It is not a notification statute. New Hampshire's posting and notification duties live in the rules (Pes 508 for turf) and in RSA 430:34-a for aerial work.

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The Pesticide Control Board (RSA 430:30)

The Board is the rulemaking and appeal body. It does not license you and it does not grade your exam.

Composition — 13 members

The governor appoints all 13 members with the consent of the council:

1. The commissioner of agriculture, markets, and food
2. The commissioner of health and human services, or designee
3. The commissioner of natural and cultural resources, or designee
4. The executive director of fish and game, or designee
5. The commissioner of environmental services, or designee
6. The state entomologist
7. A licensed physician representing the public interest
8. A person holding an advanced degree in a biological science, representing the public interest
9. A licensed or permitted pesticide applicator
10. One person drawn from a slate of three presented by the NH Horticultural Industries Council 11-12. Two public-interest members unaffiliated with pesticide manufacture or distribution, who are neither commercial nor private applicators
11. One municipal representative nominated by the NH Municipal Association

Operating rules you can be asked about

• Terms run 3 years.
• The Board selects its own chair for a 3-year term, and all members must be New Hampshire residents.
• The Board meets 4 times annually, and additionally at the call of the chair or on the request of any 4 members.
• Seven members constitute a quorum.
• Members receive no compensation, only reimbursement of necessary expenses.
• Public-interest members may not have a contractual relationship with, or draw significant income from, anyone subject to Division permits or enforcement, and any member must disclose conflicts and abstain.

Under RSA 430:31 the Board adopts the administrative rules — Pes 100 through Pes 1100 — that occupy most of the regulations exam.

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The Division of Pesticide Control

The Division of Pesticide Control is the operating agency inside NHDAMF, located at 1 Granite Place South, Suite 211, Concord. It is the office you actually deal with. Its duties include:

• Preparing, supervising and grading every examination (Pes 304.07(f)); exams are administered by department personnel, by appointment only.
• Issuing and renewing commercial certificates of registration, private applicator permits, dealer licenses, and business (firm) registrations.
• Approving recertification seminars and the credits they carry (Pes 402).
• Issuing the special permits the rules require — aerial work, aquatic treatments, applications near public water supplies, and waterfront-buffer or wetland treatments for biting arthropods.
• Inspecting facilities, storage, vehicles, equipment, and records; investigating drift complaints and water contamination reports.
• Taking enforcement action, including cease-and-desist orders under Pes 404.

+---------------------------------------------------------------+
|  WHO DOES WHAT IN NEW HAMPSHIRE                               |
+---------------------------------------------------------------+
|  LEGISLATURE ......... writes RSA 430:28-50                   |
|  PESTICIDE CONTROL ... adopts Pes 100-1100; hears appeals      |
|  BOARD (13 members)     from Division orders (RSA 430:44)      |
|  DIVISION OF ......... licenses, examines, permits, inspects,  |
|  PESTICIDE CONTROL      enforces, approves CEU seminars        |
|  US EPA .............. registers products, sets federal label  |
|                         and Worker Protection Standard floors  |
+---------------------------------------------------------------+

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Penalties and appeals

RSA 430:45 is short and frequently tested. A person who violates the subdivision, a Board rule, or a Division order — or who falsifies a required record or obtains a certificate by misrepresenting a material fact — faces three separate exposures:

Forfeiture proceeds are dedicated to enforcement, pesticide control research, or repairing damage to state resources caused by unlawful pesticide use.

Separately, Pes 401.02 lets the Division deny, revoke, suspend, or modify a license, permit, or certification, and Pes 404.01 authorizes a cease-and-desist order.

The appeal path

1. The Division issues an order or decision.
2. Under RSA 430:44 and Pes 202, the aggrieved person files a petition for appeal with the Board within 30 days of the Division decision.
3. The Board holds an adjudicative hearing and may affirm, deny, or modify the Division's order.
4. Rehearings and appeals from the Board's decision follow RSA 541.

Note what this does not say. You do not appeal a Division order straight to Superior Court, and the Board is not the body that issued the order in the first place. Keeping the Division/Board division of labor straight is worth easy points on the regulations exam.

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Worked example

A commercial firm in Grafton County is inspected. The inspector finds one product in the shed that has no New Hampshire registration, and daily application records that stop three months ago. The Division issues a notice of violation and levies an administrative fine.

• The Division, not the Board, issues the order and the fine — and the fine is capped at $1,000 per violation.
• If the Division refers the matter and the attorney general pursues civil forfeiture, exposure rises to $5,000 per violation or per day of a continuing violation.
• The firm's route of challenge is a petition for appeal to the Board within 30 days, then RSA 541 review — not a direct court filing.
• Falsifying the missing records to close the gap would convert a recordkeeping violation into a separate misdemeanor under RSA 430:45, I.