N-Serve, a nitrogen stabilizer, is used in anhydrous ammonia, dry ammonium, and urea fertilizers to inhibit the bacteria that naturally convert N from the ammonium form to the mobile nitrate form. There are several nitrogen stabilizer products available to consumers, but N-Serve is the only one that is registered by EPA as a pesticide because it acts on soil bacteria. Thus, the question came up whether a custom applicator of fertilizer containing N-Serve needs to be a certified and licensed pesticide applicator.

 

After consulting with WDATCP’s pesticide regulatory section, the simple answer is: no. Well, maybe simple is “oversimplified” – here’s the reason why. The application of N-Serve, a pesticide, is to the fertilizer itself with the purpose of protecting the fertilizer. The treated fertilizer, then, is applied to the crop or crop site. For this reason, the fertilizer with N-Serve is considered a “treated article”, exempt from further EPA regulation. In most cases, the untreated fertilizer is owned by the co-op, and being N-Serve is a non restricted-use pesticide, a co-op employee can apply N-Serve to the nitrogen fertilizer without being certified or licensed. And being the co-op applicator is applying a treated article, even if the article was previously treated with a restricted-use pesticide, that person too is not legally required to be certified and licensed. The situation would not be true if, for example, a co-op employee injected N-Serve to farmer-owned nitrogen fertilizer. In the latter case, this is a for-hire application of a pesticide and such a person would need to be certified and licensed as is the case when applying any pesticide on a for-hire basis.

 

To help better understand the concept of a treated article, let’s look at another example: treated seed. Here again, the pesticide is applied to protect the article, in this case, seed. Thus, a co-op employee applying a non restricted-use fungicide to seed owned by the co-op does not need to be certified and licensed in the Seed Treatment category. And, as with fertilizer treated with N-Serve, a custom planter does not need to be certified or licensed to plant treated seed. On the other hand, an employee would require certification and licensing if treating seed owned by the farmer for the same reason as when treating nitrogen fertilizer owned by the farmer.

 

In the above examples, each of the treated articles requires another handling step of either applying or planting it for it to be used as intended. And it is this separate handling step that naturally raised the question for us whether the person doing the handling must be certified or licensed (of which we have determined that he or she does not). However, pressure-treated wood is an example of a treated article which is intended to be used as is. Wood preservatives are pesticides, and many are restricted-use. Although employees at a pressure-treating plant are required to be certified and licensed in the Wood Preservation category (depending whether they use restricted-use preservatives and/or own the wood at the time of treatment), as consumers we don’t need to be certified and licensed to purchase treated wood – even wood treated with a restricted-use pesticide – because we are buying and using a treated article.

 

Hay treated with propionic acid is, by definition, a treated article and, like treated wood, it too is a finished product to be used as is. Thus, just as is the case when treating fertilizer or treating seed, a person treating one’s own hay using a non restricted-use pesticide does not require certification or licensing. But when custom applying propionic acid or any other pesticide to someone else’s hay, that person must be certified and licensed in the Field & Vegetable Crops category.

 

On the heels of the N-Serve example, one may erroneously jump to the conclusion that applying a dry fertilizer impregnated with a herbicide is also an application of a treated article and, therefore, the operator of the spreader truck does not need to be certified and licensed. As stated, this is an erroneous assumption. Why? Because the herbicide is not protecting the article (a.k.a., the fertilizer) and, therefore, not considered a treated article by EPA’s definition. This example is no different than adding a herbicide to a tankful of 28% nitrogen solution for simultaneous application. In both examples, one is merely “tank mixing” a herbicide with a carrier.