74R10506 JRD-F
By Turner of Coleman H.B. No. 2479
Substitute the following for H.B. No. 2479:
By Yost C.S.H.B. No. 2479
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the consolidation of herbicide, pesticide, and
1-3 agricultural workplace chemical laws under the jurisdiction of the
1-4 Department of Agriculture.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 76, Agriculture Code, is amended to read
1-7 as follows:
1-8 CHAPTER 76. PESTICIDE REGULATION
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 76.001. Definitions. In this chapter:
1-11 (1) "Active ingredient" means:
1-12 (A) in the case of a pesticide other than a
1-13 plant regulator, defoliant, or desiccant, an ingredient that
1-14 prevents, destroys, repels, or mitigates a pest;
1-15 (B) in the case of a plant regulator, an
1-16 ingredient that through physiological action accelerates or retards
1-17 the rate of growth or rate of maturation or otherwise alters the
1-18 behavior of an ornamental or crop plant or the product of an
1-19 ornamental or crop plant;
1-20 (C) in the case of a defoliant, an ingredient
1-21 that causes leaves or foliage to drop from a plant; or
1-22 (D) in the case of a desiccant, an ingredient
1-23 that artificially accelerates the drying of plant tissue.
1-24 (2) "Animal" means a vertebrate or invertebrate
2-1 species, including man, other mammals, birds, fish, and shellfish.
2-2 (3) "Antidote" means a practical treatment used in
2-3 preventing or lessening ill effects from poisoning, including first
2-4 aid.
2-5 (4) "Application of a herbicide" means the spreading
2-6 of a herbicide on real property having a continuous boundary line.
2-7 (5) "Defoliant" means a substance or mixture of
2-8 substances intended to cause the leaves or foliage to drop from a
2-9 plant, with or without causing abscission.
2-10 (6) "Department" means the Department of Agriculture.
2-11 (7) <(5)> "Desiccant" means a substance or mixture of
2-12 substances intended to artificially accelerate the drying of plant
2-13 tissue.
2-14 (8) <(6)> "Device" means an instrument or contrivance,
2-15 other than a firearm, that is used to trap, destroy, repel, or
2-16 mitigate a pest or other form of plant or animal life, other than
2-17 man or a bacteria, virus, or other microorganism on or in living
2-18 man or other living animals. The term does not include equipment
2-19 sold separately from a pesticide.
2-20 (9) <(7)> "Distribute" means offer for sale, hold for
2-21 sale, sell, barter, or supply.
2-22 (10) <(8)> "Environment" includes water, air, land,
2-23 plants, man, and other animals living in or on water, air, or land,
2-24 and the interrelationships that exist among them.
2-25 (11) <(9)> "Equipment" means any type of ground,
2-26 water, or aerial equipment or contrivance employing motorized,
2-27 mechanical, or pressurized power and used to apply a pesticide to
3-1 land or to anything that may be inhabiting or growing or stored on
3-2 or in the land. The term does not include a pressurized hand-sized
3-3 household apparatus used to apply a pesticide or any equipment or
3-4 contrivance for which the person applying the pesticide is the
3-5 source of power or energy used in making the pesticide application.
3-6 (12) "FIFRA" means the Federal Insecticide, Fungicide,
3-7 and Rodenticide Act (7 U.S.C. Section 136 et seq.).
3-8 (13) <(10)> "Fungus" means a non-chlorophyll-bearing
3-9 thallophyte, including rust, smut, mildew, mold, yeast, or
3-10 bacteria, but not including a non-chlorophyll-bearing thallophyte
3-11 on or in living man or other living animals or on or in a processed
3-12 food, beverage, or pharmaceutical.
3-13 (14) <(11)> "Inert ingredient" means an ingredient
3-14 that is not an active ingredient.
3-15 (15) <(12)> "Insect" means any of the numerous small
3-16 invertebrate animals generally having a segmented body and for the
3-17 most part belonging to the class Insecta, comprising six-legged,
3-18 usually winged forms such as beetles, bugs, bees, and flies. The
3-19 term includes allied classes of arthropods, the members of which
3-20 are wingless and usually have more than six legs, such as spiders,
3-21 mites, ticks, centipedes, and wood lice.
3-22 (16) <(13)> "Label" means the written, printed, or
3-23 graphic matter on or attached to a pesticide or device or any of
3-24 its containers or wrappers.
3-25 (17) <(14)> "Labeling" means a label or any other
3-26 written, printed, or graphic matter prepared by a registrant:
3-27 (A) accompanying the pesticide or device at any
4-1 time; or
4-2 (B) to which reference is made on a label or in
4-3 literature accompanying or referring to a pesticide or device,
4-4 except accurate, nonmisleading references made to a current
4-5 official publication of a federal or state institution or agency
4-6 authorized by law to conduct research in the field of pesticides.
4-7 (18) <(15)> "Land" means any land or water area,
4-8 including airspace, and any plant, animal, structure, building,
4-9 contrivance, or machinery, whether fixed or mobile, appurtenant to
4-10 or situated on a land or water area or airspace, including any used
4-11 for transportation.
4-12 (19) <(16)> "License use category" means a
4-13 classification of pesticide use based on the subject, method, or
4-14 place of pesticide application.
4-15 (20) <(17)> "Nematode" means an invertebrate animal of
4-16 the phylum Nemathelminthes and class Nematoda (an unsegmented
4-17 roundworm with an elongated, fusiform, or sac-like body covered
4-18 with cuticle) inhabiting soil, water, plants, or plant parts.
4-19 (21) <(18)> "Pesticide" means a substance or mixture
4-20 of substances intended to prevent, destroy, repel, or mitigate any
4-21 pest, or any substance or mixture of substances intended for use as
4-22 a plant regulator, defoliant, or desiccant.
4-23 (22) <(19)> "Plant regulator" means a substance or
4-24 mixture of substances intended through physiological action to
4-25 accelerate or retard the rate of growth or rate of maturation, or
4-26 otherwise to alter the behavior of an ornamental or crop plant or
4-27 the product of an ornamental or crop plant, but does not include a
5-1 substance to the extent that it is intended as a plant nutrient,
5-2 trace element, nutritional chemical, plant inoculant, or soil
5-3 amendment.
5-4 (23) "Registrant" means a person who under this
5-5 chapter has registered a pesticide. <(20) "Regulatory agency"
5-6 means a state agency with responsibility for certifying applicators
5-7 under Subchapter E of this chapter.>
5-8 (24) <(21)> "Restricted-use pesticide" means a
5-9 pesticide classified as a restricted-use pesticide by the
5-10 Environmental Protection Agency.
5-11 (25) <(22)> "Thallophyte" means a
5-12 non-chlorophyll-bearing plant of a lower order than mosses and
5-13 liverworts.
5-14 (26) <(23)> "Weed" means any plant that grows where
5-15 not wanted.
5-16 (27) "Worker protection standard" means the federal
5-17 worker protection standard as found in the Code of Federal
5-18 Regulations, 40 C.F.R. Parts 156 and 170.
5-19 Sec. 76.002. Pests. The department shall determine what
5-20 organisms constitute pests for purposes of this chapter and may
5-21 include in the list of pests:
5-22 (1) any insect, snail, slug, rodent, bird, nematode,
5-23 fungus, weed, or other form of terrestrial or aquatic plant or
5-24 animal life; or
5-25 (2) any virus, bacteria, or other microorganism, other
5-26 than a virus, bacteria, or other microorganism on or in living man
5-27 or other living animals.
6-1 Sec. 76.003. State-Limited-Use Pesticides. (a) After notice
6-2 and public hearing, the department may adopt lists of
6-3 state-limited-use pesticides for the entire state or for a
6-4 designated area within the state.
6-5 (b) A pesticide may be included on a list of
6-6 state-limited-use pesticides if the department determines that,
6-7 when used as directed or in accordance with widespread and commonly
6-8 recognized practice, the pesticide requires additional restrictions
6-9 to prevent unreasonable risk to man or the environment, taking into
6-10 account the economic, social, and environmental costs and benefits
6-11 of use of the pesticide. However, the department shall not place a
6-12 pesticide on the state-limited-use list solely on the basis of
6-13 actual damage or risk of damage to water quality without first
6-14 obtaining approval from the Texas Natural Resource Conservation
6-15 <Water> Commission based on the impact of the pesticide's use on
6-16 water quality.
6-17 (c) The department shall formally request an opinion
6-18 regarding impact on water quality from the Texas Natural Resource
6-19 Conservation <Water> Commission during department consideration of
6-20 any amendments to the current list of state-limited-use pesticides.
6-21 (d) At the direction of the Texas Natural Resource
6-22 Conservation <Water> Commission in conjunction with its
6-23 responsibilities pursuant to Chapter 26, Water Code, the department
6-24 shall consider any formal request to add any pesticide to the
6-25 state-limited-use list under Subsection (b), and the department
6-26 shall issue regulations regarding the time, place, and conditions
6-27 of such pesticide's use.
7-1 (e) The department may regulate the time and conditions of
7-2 use of a state-limited-use pesticide and may require that it be
7-3 purchased or used only:
7-4 (1) with permission of the department;
7-5 (2) under direct supervision of the department in
7-6 certain areas under certain conditions; or
7-7 (3) in specified quantities and concentrations.
7-8 (f) The department may require a person authorized to
7-9 distribute or use a state-limited-use pesticide to maintain records
7-10 of the person's distribution or use and may require that the
7-11 records be kept separate from other business records.
7-12 Sec. 76.004. Department Rules. (a) After notice, the
7-13 department shall conduct at least five regional hearings throughout
7-14 the state before the adoption of any rule for carrying out the
7-15 provisions of this chapter. Thereafter, the department may adopt
7-16 rules for carrying out the provisions of this chapter, including
7-17 rules providing for:
7-18 (1) the collection, examination, and reporting of
7-19 records, devices, and samples of pesticides;
7-20 (2) the safe handling, transportation, storage,
7-21 display, distribution, or disposal of pesticides and pesticide
7-22 containers;
7-23 (3) labeling requirements for pesticides and devices
7-24 required to be registered under this chapter; and
7-25 (4) compliance with federal pesticide rules and
7-26 regulations.
7-27 (b) Any rules adopted by the department for the purpose of
8-1 protection or enhancement of water quality shall not be
8-2 inconsistent with nor less stringent than rules adopted <developed>
8-3 for the protection or enhancement of water quality by the Texas
8-4 Natural Resource Conservation <Water> Commission pursuant to
8-5 recommendations of the Texas Groundwater Protection Committee.
8-6 Sec. 76.005. Notice of Hearing. (a) Before adopting a rule
8-7 under this chapter, the department <or a regulatory agency> shall
8-8 publish notice of a public hearing in three newspapers of general
8-9 circulation throughout the state. The notice must include the
8-10 following information relating to the hearing:
8-11 (1) the time;
8-12 (2) the place;
8-13 (3) the subject matter;
8-14 (4) a general statement of the proposed action; and
8-15 (5) the class or group of persons to be directly
8-16 affected.
8-17 (b) Notice must be published under this section before the
8-18 10th day preceding the day of the hearing.
8-19 Sec. 76.006. Pesticide Examination and Testing. (a) The
8-20 department may contract with a state college or university, state
8-21 agency, or commercial laboratory for examination of a pesticide.
8-22 The department shall let contracts with commercial laboratories
8-23 under this subsection on the basis of competitive bidding.
8-24 (b) The department may <shall> make or provide for sample
8-25 tests of a pesticide on request and may charge and collect a fee
8-26 for the tests in an amount necessary to cover expenses incurred in
8-27 making or providing for the tests.
9-1 Sec. 76.007. Interagency Cooperation. (a) The department
9-2 shall be the lead agency for pesticide regulation in Texas. In
9-3 cooperation with the U.S. Environmental Protection Agency or any
9-4 federal agency responsible for implementation of federal pesticide
9-5 law, the department shall:
9-6 (1) register pesticides for use in Texas;
9-7 (2) adopt lists of state-limited-use pesticides;
9-8 (3) provide for training, certification, and licensure
9-9 of all classes of pesticide applicators;
9-10 (4) enforce pesticide laws and regulations governing
9-11 the safe handling, use, storage, distribution, and disposal of
9-12 pesticide products; and
9-13 (5) adopt rules to carry out the provisions of this
9-14 chapter.
9-15 (b) The Texas Natural Resource Conservation <Water>
9-16 Commission shall have principal authority to regulate and control
9-17 water pollution. The department shall cooperate with the Texas
9-18 Groundwater Protection Committee in developing and implementing
9-19 federally mandated state management plans for pesticides in
9-20 groundwater in accordance with Section 26.407, Water Code. If the
9-21 United States Environmental Protection Agency adopts a final rule
9-22 requiring states to implement a state management plan for
9-23 pesticides in groundwater, then the department may by rule assess
9-24 an additional pesticide registration fee of not more than $200, in
9-25 an amount determined by the department, to recover the department's
9-26 costs and the costs of other state agencies in implementing,
9-27 monitoring, and managing all aspects of a state management plan for
10-1 pesticides in groundwater.
10-2 (c) The department shall seek advice from the Texas Natural
10-3 Resource Conservation <Water> Commission, the Parks and Wildlife
10-4 Department, the Texas Department of Health, and the Texas
10-5 Agricultural Extension Service in reviewing applications for
10-6 special local need or emergency pesticide registrations. The
10-7 department shall act expeditiously to review any application for
10-8 special local need or emergency pesticide registrations.
10-9 (d) The department shall give written notice to the Texas
10-10 Natural Resource Conservation <Water> Commission whenever it has
10-11 probable cause to believe that serious contamination of water has
10-12 occurred as a result of use, misuse, manufacture, storage, or
10-13 disposal of pesticides so that the Texas Natural Resource
10-14 Conservation <Water> Commission may proceed with an investigation
10-15 of a possible violation of the Water Code.
10-16 (1) If the Texas Natural Resource Conservation <Water>
10-17 Commission determines that a violation of the Water Code has
10-18 occurred, the commission shall seek the remedies provided by the
10-19 Water Code.
10-20 (2) If the department determines that a violation of
10-21 the Agriculture Code has occurred regarding the use, manufacture,
10-22 storage, or disposal of pesticides, the department shall seek the
10-23 remedies provided by this code.
10-24 (3) The foregoing remedies shall not be mutually
10-25 exclusive.
10-26 (e) The Texas Natural Resource Conservation <Water>
10-27 Commission shall give written notice to the department whenever it
11-1 has probable cause to believe that serious contamination of water
11-2 has occurred as a result of the use, misuse, storage, disposal, or
11-3 manufacture of pesticides so that the department may proceed with
11-4 an investigation to determine if a violation of the Agriculture
11-5 Code has occurred.
11-6 (1) If the department determines that a violation of
11-7 the Agriculture Code has occurred, the department shall seek the
11-8 remedies provided by this code.
11-9 (2) If the Texas Natural Resource Conservation <Water>
11-10 Commission determines that a violation of the Water Code has
11-11 occurred, the Texas Natural Resource Conservation <Water>
11-12 Commission shall seek the remedies provided by the Water Code.
11-13 (3) The foregoing remedies shall not be mutually
11-14 exclusive.
11-15 (f) The department shall consult with the Texas Department
11-16 of Health before denying or canceling a pesticide registration
11-17 because of a suspected public health threat. The department shall
11-18 also coordinate enforcement efforts with the department of health
11-19 when a serious public health threat is suspected.
11-20 (g) The department <A regulatory agency> may receive
11-21 grants-in-aid from any federal agency and may enter into
11-22 cooperative agreements with a federal agency, an agency of this
11-23 state, a subdivision of this state, or an agency of another state
11-24 for the purpose of obtaining assistance in the implementation of
11-25 this chapter.
11-26 Sec. 76.008. Exemption. Sections 76.007, 76.104-76.106,
11-27 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,
12-1 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is
12-2 regulated by the Texas Structural Pest Control Act, as amended
12-3 (Article 135b-6, Vernon's Texas Civil Statutes).
12-4 Sec. 76.009. Agriculture Resources Protection Authority.
12-5 (a) The Agriculture Resources Protection Authority is an agency of
12-6 state government. The authority is composed of the following nine
12-7 members:
12-8 (1) the director of the Texas Agricultural Experiment
12-9 Station;
12-10 (2) the dean of the College of Agricultural Sciences
12-11 of Texas Tech University;
12-12 (3) the dean of The University of Texas School of
12-13 Public Health at Houston;
12-14 (4) the director of the environmental epidemiology
12-15 program of the Texas Department of Health;
12-16 (5) the chief of the groundwater conservation section
12-17 of the Texas Natural Resource Conservation <Water> Commission;
12-18 (6) the director of the Institute for International
12-19 Agribusiness Studies of Prairie View A&M University;
12-20 (7) one person appointed by the governor to represent
12-21 the interests of consumers;
12-22 (8) a producer of agricultural products appointed by
12-23 the governor; and
12-24 (9) the commissioner of agriculture.
12-25 (b) A person appointed by the governor, with the advice and
12-26 consent of the senate, under Subdivision (7) or (8) of Subsection
12-27 (a) of this section serves a two-year term ending on February 1 of
13-1 each odd-numbered year. A vacancy in one of those positions shall
13-2 be filled by appointment by the governor for the unexpired term.
13-3 (c) The commissioner of agriculture is the presiding officer
13-4 of the authority.
13-5 (d) The authority shall meet quarterly and at the call of
13-6 the presiding officer or a majority of the members. To take an
13-7 action, the authority must approve the action by a concurring vote
13-8 of a majority of the total membership of the authority.
13-9 (e) A member may not receive compensation for service as a
13-10 member of the authority. A member is entitled to reimbursement for
13-11 actual and necessary expenses incurred in the performance of the
13-12 functions of the authority, subject to any limitations on
13-13 reimbursement provided by the General Appropriations Act.
13-14 (f) The delegation of functions under this section is
13-15 designed to avoid overlapping responsibilities, to provide a means
13-16 for all involved agencies to participate in the regulation of
13-17 pesticides, and to clarify various areas of responsibility.
13-18 (g) The authority is the coordinating body for the policies
13-19 and programs of management, regulation, and control of pesticides
13-20 conducted by the department, the State Soil and Water Conservation
13-21 Board, the Texas Agricultural Extension Service, the Texas
13-22 Department of Health, the Texas Natural Resource Conservation
13-23 <Water> Commission, and the Texas Structural Pest Control Board.
13-24 Notwithstanding any other provision of this code or of any other
13-25 law, the authority may:
13-26 (1) adopt any rule relating to pesticides, including a
13-27 rule that amends or repeals an existing rule, except that the
14-1 authority may not:
14-2 (A) <adopt, amend, or repeal a rule under
14-3 Chapter 125 of this code;>
14-4 <(B)> repeal a rule that was adopted by an
14-5 agency for which the authority is the coordinating body and that
14-6 was in effect on May 1, 1989; or
14-7 (B) <(C)> amend a rule in effect on May 1, 1989,
14-8 that would make the rule less protective of the public health,
14-9 safety, or welfare;
14-10 (2) review and approve or disapprove any rule relating
14-11 to pesticides that is proposed by an agency for which the authority
14-12 is the coordinating body<, except a rule under Chapter 125 of this
14-13 code>;
14-14 (3) cooperate with and advise the department, the
14-15 State Soil and Water Conservation Board, the Texas Agricultural
14-16 Extension Service, the Texas Department of Health, the Texas
14-17 Natural Resource Conservation <Water> Commission, the Texas
14-18 Structural Pest Control Board, and any other state agency that may
14-19 be concerned with the regulation of pesticides and notify those
14-20 agencies of any rule the authority intends to adopt;
14-21 (4) collect, analyze, and disseminate information
14-22 necessary for the effective operation of all existing or
14-23 contemplated programs regulating pesticides;
14-24 (5) provide professional advice to private agencies
14-25 and citizens of this state on matters relating to pesticides in
14-26 cooperation with other state agencies, with professional groups,
14-27 and with either state or private educational institutions;
15-1 (6) accept gifts, devises, and bequests and, with the
15-2 approval of the governor, comply with terms and conditions of any
15-3 grant to accomplish any of the purposes of the authority;
15-4 (7) inform and advise the governor on matters
15-5 involving pesticides and prepare and recommend to the governor and
15-6 to the legislature any legislation the authority considers proper
15-7 for the management and control of pesticides;
15-8 (8) make annual reports to the governor and the
15-9 appropriate legislative oversight committees;
15-10 (9) exempt any federal or state agency from any
15-11 regulatory provision if the authority determines that emergency
15-12 conditions exist that require the exemption; and
15-13 (10) notwithstanding any conflicting or inconsistent
15-14 provision in this code, hear and determine all appeals from orders
15-15 entered, by an agency for which the authority is the coordinating
15-16 body, under this chapter <or Chapter 75 or 125 of this code>.
15-17 (h) An agency for which the authority is the coordinating
15-18 body may not adopt a rule disapproved by the authority under
15-19 Subsection (g)(2) of this section.
15-20 (i) To ensure due process, the commissioner, because of the
15-21 commissioner's statutory power over departmental orders, may not
15-22 participate in the discussions or the determinations to be reached
15-23 on appeals to the authority under Subsection (g)(10) of this
15-24 section.
15-25 (j) The commissioner shall:
15-26 (1) as necessary, employ personnel as the duties of
15-27 the authority may require and to the extent of legislative
16-1 appropriations to the authority;
16-2 (2) keep an accurate and complete record of all
16-3 authority meetings and hearings of the authority and maintain legal
16-4 custody of all books, papers, documents, and other records of the
16-5 authority;
16-6 (3) administer this chapter and <Chapters 75 and 125
16-7 of this code and> the rules adopted by the authority; and
16-8 (4) assign, reassign, or delegate the administrative
16-9 and enforcement functions assigned to the commissioner by this
16-10 subsection or by rules or policies established under this
16-11 subsection to one or more of the divisions or other units within
16-12 the department or to one or more employees of the department.
16-13 SUBCHAPTER B. LABELING
16-14 Sec. 76.021. Labeling Information. (a) Each pesticide
16-15 distributed in this state shall bear a label containing the
16-16 following information relating to the pesticide:
16-17 (1) the information required by Section 3 of FIFRA, if
16-18 the pesticide is subject to registration under that law; or
16-19 (2) the following information, if the pesticide is not
16-20 subject to registration under Section 3 of FIFRA:
16-21 (A) <(1)> the name, brand, or trademark under
16-22 which the pesticide is distributed;
16-23 (B) <(2)> the name and percentage of each active
16-24 ingredient and the total percentage of inert ingredients;
16-25 (C) <(3)> directions for use that are necessary
16-26 for effecting the purpose for which the product is intended and, if
16-27 complied with, are adequate for the protection of health and the
17-1 environment;
17-2 (D) <(4)> if the pesticide contains any form of
17-3 arsenic, the percentage of total water-soluble arsenic, calculated
17-4 as elementary arsenic;
17-5 (E) <(5)> the name and address of the
17-6 manufacturer, registrant, or person for whom the pesticide was
17-7 manufactured;
17-8 (F) <(6)> numbers or other symbols to identify
17-9 the lot or batch of the manufacturer of the contents of the
17-10 package; and
17-11 (G) <(7)> a clear display of appropriate
17-12 warnings, symbols, and cautionary statements commensurate with the
17-13 toxicity or use classification of the pesticide.
17-14 (b) <The labeling of each pesticide distributed in this
17-15 state shall state the use classification for which the product is
17-16 registered.>
17-17 <(c)> The label bearing the ingredient statement under
17-18 Subsection (a)(2)(B) of this section shall be on or attached to
17-19 that part of the immediate container that is presented or displayed
17-20 under customary conditions of purchase and, if the ingredient
17-21 statement cannot be clearly read without removing the outer
17-22 wrapping, on any outer container or wrapper of a retail package.
17-23 Sec. 76.022. Conspicuous Lettering. Any word, statement, or
17-24 information required by this chapter to appear on a label or in
17-25 labeling of a pesticide or device registered by the department
17-26 shall be prominently and conspicuously placed so that, if compared
17-27 with other material on the label or in the labeling, it is likely
18-1 to be understood by the ordinary individual under customary
18-2 conditions of use.
18-3 Sec. 76.023. Misbranded Pesticide or Device. (a) A
18-4 pesticide or device is misbranded if:
18-5 (1) it is subject to registration under Section 3 of
18-6 FIFRA and it does not fully comply with the labeling requirements
18-7 of the United States Environmental Protection Agency; or
18-8 (2) it is not subject to registration under Section 3
18-9 of FIFRA and:
18-10 (A) <(1)> its labeling bears a statement,
18-11 design, or graphic representation relating to the pesticide or
18-12 device, or the ingredients of either, that is false or misleading
18-13 in any particular;
18-14 (B) <(2)> it is an imitation of or is
18-15 distributed under the name of another pesticide or device; or
18-16 (C) <(3)> it is not conspicuously labeled in
18-17 accordance with Section 76.022 of this code.
18-18 (b) A pesticide is misbranded if:
18-19 (1) its labeling bears any reference to registration
18-20 under this chapter, unless the reference is required by a rule
18-21 adopted under this chapter;
18-22 (2) it does not bear a label as required by Section
18-23 76.021 of this code; or
18-24 (3) its label does not bear information as required by
18-25 Section 76.021 of this code or a rule adopted under this chapter.
18-26 SUBCHAPTER C. REGISTRATION
18-27 Sec. 76.041. Registration Required. (a) Except as provided
19-1 by Subsection (b), <or> (c), (d), or (e) of this section, before a
19-2 pesticide is distributed in this state or is delivered for
19-3 transportation or is transported in intrastate commerce or between
19-4 points within this state through a point outside the state, it must
19-5 be registered with the department. The manufacturer or other
19-6 person whose name appears on the label of the pesticide shall
19-7 register the pesticide.
19-8 (b) Registration is not required for the transportation of a
19-9 pesticide from one plant or warehouse to another plant or warehouse
19-10 operated by the same person if the pesticide is used solely at the
19-11 second plant or warehouse as a constituent of a pesticide that is
19-12 registered under this chapter.
19-13 (c) Registration is not required for a pesticide that is not
19-14 for use in this state and is only being manufactured, transported,
19-15 or distributed for use outside of this state.
19-16 (d) Registration is not required for a chemical compound
19-17 being used only to develop plot data as to the possible pesticidal
19-18 action of the chemical.
19-19 (e) Unless otherwise required by rule of the department,
19-20 registration is not required for a pesticide that is exempt from
19-21 registration with the United States Environmental Protection
19-22 Agency.
19-23 (f) The Texas Feed and Fertilizer Control Service may not
19-24 register under Chapter 63 a fertilizer that contains a pesticide
19-25 that must be registered with the department under this chapter
19-26 unless the constituent pesticide is first registered with the
19-27 department. The Texas Feed and Fertilizer Control Service shall
20-1 consult with the department about the current registration status
20-2 of a pesticide before registering any fertilizer mix containing
20-3 that pesticide under Chapter 63. The department shall notify the
20-4 Texas Feed and Fertilizer Control Service of any changes to a
20-5 pesticide registration.
20-6 (g) A pesticide that has been registered with the department
20-7 must be currently registered as long as the pesticide remains in
20-8 the channels of trade in this state. It is the registrant's
20-9 responsibility to ensure that the pesticide remains currently
20-10 registered.
20-11 (h) If the department issues a stop use, stop distribution,
20-12 or removal order concerning a pesticide because the pesticide is
20-13 not currently registered with the department, the registrant if the
20-14 registration has expired or the person required to register the
20-15 pesticide if the pesticide was never registered is responsible for
20-16 taking the necessary actions to remedy the situation. The
20-17 necessary actions may include reimbursing persons who are subject
20-18 to the stop use, stop distribution, or removal order for the
20-19 persons' costs in complying with the order.
20-20 Sec. 76.042. Content of Registration Application. (a) The
20-21 application for registration of a pesticide shall include:
20-22 (1) the name and address of the applicant and the name
20-23 and address of the person whose name will appear on the pesticide
20-24 label, if not the applicant's;
20-25 (2) the name of the pesticide;
20-26 (3) a complete copy of all labeling to accompany the
20-27 pesticide and a statement of all claims to be made for it,
21-1 including the directions for use and, if the pesticide is required
21-2 to be registered with the United States Environmental Protection
21-3 Agency, a copy of the Environmental Protection Agency stamped
21-4 accepted labeling and any applicable comment pages;
21-5 (4) the use classification, whether for restricted or
21-6 general use, as provided by the Federal Insecticide, Fungicide, and
21-7 Rodenticide Act, as amended, or by a rule adopted under that Act;
21-8 (5) the use classification proposed by the applicant,
21-9 if the pesticide is not required by federal law to be registered
21-10 under a use classification; and
21-11 (6) other information required by the department for
21-12 determining the eligibility for registration.
21-13 (b) The department may require the applicant to submit the
21-14 complete formula for a pesticide, including active and inert
21-15 ingredients, as a prerequisite to registration.
21-16 (c) The department may require a full description of the
21-17 tests made and the results of the tests on which claims are based
21-18 before approving registration of a pesticide that is not registered
21-19 under federal law or for which federal or state restrictions on use
21-20 are being considered.
21-21 (d) A person located outside this state, as a condition to
21-22 registration of a pesticide, shall file with the department a
21-23 written instrument designating a resident agent for service of
21-24 process in actions taken in the administration and enforcement of
21-25 this chapter. Instead of designating a resident agent, the person
21-26 may designate in writing the secretary of state as the recipient of
21-27 service of process for the person in this state.
22-1 Sec. 76.043. Expiration and Renewal. (a) Registration of a
22-2 pesticide expires on the second anniversary of the date of its
22-3 registration or registration renewal unless the department adopts
22-4 by rule a system under which registrations expire on specified
22-5 dates during a year <annually on December 31>.
22-6 (b) A person who applies for renewal of registration shall
22-7 include in the renewal application only information that is
22-8 different from the information furnished at the time of the most
22-9 recent registration or renewal.
22-10 (c) A registration in effect <on December 31> for which a
22-11 renewal application has been filed and renewal fee has been paid
22-12 before its expiration date continues in effect until the department
22-13 notifies the applicant that the registration has been renewed or
22-14 denied renewal.
22-15 Sec. 76.044. Fees. (a) A maximum two-year <nonrefundable>
22-16 fee of $200 <$100> for each pesticide to be registered must be
22-17 submitted with an application for registration or renewal of
22-18 registration. The department may prorate registration fees on a
22-19 monthly basis.
22-20 (b) A person who fails to apply for renewal of registration
22-21 on or before the expiration date of the registration must pay, in
22-22 addition to the renewal fee, the late fee provided by Section
22-23 12.024 of this code for each brand to be renewed.
22-24 Sec. 76.045. DEPARTMENT APPROVAL. The department may not
22-25 approve an application for registration unless the department finds
22-26 that<:>
22-27 <(1) the composition of the pesticide warrants the
23-1 proposed claims made for it; and>
23-2 <(2)> the pesticide, its labeling, and other materials
23-3 required to be submitted under this chapter comply with the
23-4 requirements of this chapter.
23-5 Sec. 76.046. Registration for Special Local Need. (a) The
23-6 department may register a pesticide for additional uses and methods
23-7 of application not covered by federal registration <regulation> but
23-8 not inconsistent with federal law, for the purpose of meeting a
23-9 special local need.
23-10 (b) Before approving a registration under this section, the
23-11 department shall determine that the applicant meets the other
23-12 requirements of this subchapter.
23-13 Sec. 76.047. Denial or Cancellation of Registration.
23-14 (a) If the department has reason to believe that any use of a
23-15 registered pesticide is in violation of a provision of this chapter
23-16 or is dangerous or harmful, the department may conduct a hearing on
23-17 denial or cancellation of registration.
23-18 (b) The department shall issue written notice of a hearing
23-19 under this section to the registrant of the pesticide. The notice
23-20 must contain a statement of the time and place of the hearing. The
23-21 hearing shall be held after the 10th day following the day on which
23-22 the notice is issued.
23-23 (c) After opportunity at the hearing for presentation of
23-24 evidence by interested parties, the department may deny or cancel
23-25 the registration of the pesticide if the department finds that:
23-26 (1) use of the pesticide has demonstrated
23-27 uncontrollable adverse environmental effects;
24-1 (2) use of the pesticide is a detriment to the
24-2 environment that outweighs the benefits derived from its use;
24-3 (3) even if properly used, the pesticide is
24-4 detrimental to vegetation, except weeds, to domestic animals, or to
24-5 public health and safety;
24-6 (4) a false or misleading statement about the
24-7 pesticide has been made or implied by the registrant or the
24-8 registrant's agent, in writing, verbally, or through any form of
24-9 advertising literature; or
24-10 (5) the registrant has not complied or the pesticide
24-11 does not comply with a requirement of this chapter or a rule
24-12 adopted under this chapter.
24-13 Sec. 76.048. Experimental Use Permit. (a) The department
24-14 may issue an experimental use permit if the department determines
24-15 that the applicant needs the permit in order to accumulate data
24-16 necessary to register a pesticide under this chapter.
24-17 (b) A person may file an application for an experimental use
24-18 permit before or after applying for registration.
24-19 (c) Use of a pesticide under an experimental use permit is
24-20 under the supervision of the department and is subject to the terms
24-21 and conditions, and valid for a period of time, prescribed by the
24-22 department in the permit.
24-23 (d) The department may charge a fee for issuing a permit
24-24 under this section in an amount, prorated on a monthly basis, equal
24-25 to the amount charged for registration under Section 76.044(a).
24-26 (e) The department may revoke an experimental use permit at
24-27 any time if the department finds that:
25-1 (1) the terms or conditions of the permit are being
25-2 violated; or
25-3 (2) the terms and conditions of the permit are
25-4 inadequate to avoid any unreasonable risk to man or the
25-5 environment, taking into account the economic, social, and
25-6 environmental costs and benefits of use of the pesticide.
25-7 SUBCHAPTER D. LICENSING OF DEALERS
25-8 Sec. 76.071. License Required. (a) A person may not
25-9 distribute in this state a restricted-use or state-limited-use
25-10 pesticide without a valid current pesticide dealer license issued
25-11 by the department.
25-12 (b) Except as otherwise provided by this section, a
25-13 pesticide dealer must obtain a license for each location in the
25-14 state that is used for distribution. If the person does not have a
25-15 place of business in this state, the person may obtain one license
25-16 for all out-of-state locations, but shall file as a condition to
25-17 licensing a designation of an agent for service of process as
25-18 provided by Section 76.042(d) of this code.
25-19 (c) A person must apply for a pesticide dealer license on
25-20 forms prescribed by the department.
25-21 Sec. 76.072. Expiration. A pesticide dealer license expires
25-22 on the second anniversary of the date of its granting or renewal
25-23 unless the department by rule adopts a system under which licenses
25-24 expire on specified dates during a <December 31 of each> year.
25-25 Sec. 76.073. Fees. (a) An application for a pesticide
25-26 dealer license must be accompanied by a biennial <nonrefundable
25-27 annual> registration fee of not more than $200 <$100>, as fixed by
26-1 the department. The department may prorate fees on a monthly
26-2 basis.
26-3 (b) A person who fails to apply for renewal of a pesticide
26-4 dealer license on or before the expiration date of the license must
26-5 pay, in addition to the renewal fee, the late fee provided by
26-6 Section 12.024 of this code.
26-7 <(c) A person licensed as a dealer under Chapter 75 of this
26-8 code may not be required to pay an additional fee for the license
26-9 prescribed in this subchapter.>
26-10 Sec. 76.074. Display of Dealer License. (a) Each dealer
26-11 shall prominently display the pesticide dealer license in the
26-12 dealer's place of business.
26-13 (b) Failure to display a license as required by this section
26-14 is a ground for revocation of the license.
26-15 Sec. 76.075. Records. (a) A person required to obtain a
26-16 dealer's license by Section 76.071 shall record each distribution
26-17 of a restricted-use or state-limited-use pesticide and shall
26-18 maintain a copy of the record for at least two years after the date
26-19 of the distribution.
26-20 (b) The department shall adopt rules that prescribe the
26-21 information to be stated in the records required by this section.
26-22 (c) The department may require that a copy of the records
26-23 required by this section be submitted periodically to the
26-24 department. The copies submitted to the department are public
26-25 information.
26-26 (d) The department may revoke a dealer's license if the
26-27 licensee fails to submit a copy of a record as required under
27-1 Subsection (c) or makes false or fraudulent records, invoices, or
27-2 reports. <(a) A licensed pesticide dealer shall maintain for a
27-3 period of two years records of each restricted-use and
27-4 state-limited-use pesticide sold. The department shall prescribe
27-5 the information to be included in the records.>
27-6 <(b) The department may require a licensed pesticide dealer
27-7 to submit records to the department. Failure to submit a record
27-8 requested by the department is a ground for revocation of a
27-9 license.>
27-10 Sec. 76.076. DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION
27-11 OF LICENSE. (a) The department may deny an application for a
27-12 dealer's license if the applicant fails to comply with this
27-13 chapter. The department may revoke, modify, or suspend a license,
27-14 assess an administrative penalty, place on probation a person whose
27-15 license has been suspended, or reprimand a licensee for a violation
27-16 of this chapter or a rule adopted by the department under this
27-17 chapter.
27-18 (b) If a license suspension is probated, the department may
27-19 require the person to:
27-20 (1) report regularly to the department on matters that
27-21 are the basis of the probation; or
27-22 (2) limit business to the areas prescribed by the
27-23 department.
27-24 (c) If the department proposes to deny a person's
27-25 application for a license or revoke, modify, or suspend a person's
27-26 license, the person is entitled to a hearing before a hearings
27-27 officer designated by the department. The decision of the
28-1 department is appealable to district court in the manner prescribed
28-2 by Chapter 2001, Government Code. <(a) The department may refuse
28-3 to issue a pesticide dealer license if the applicant fails to
28-4 comply with this subchapter.>
28-5 <(b) The department shall revoke, modify, or suspend a
28-6 license, assess an administrative penalty, place on probation a
28-7 person whose license has been suspended, or reprimand a licensee if
28-8 the licensee fails to comply with this subchapter or a rule adopted
28-9 by the department under this subchapter.>
28-10 <(c) If a license suspension is probated, the department may
28-11 require the person to:>
28-12 <(1) report regularly to the department on matters
28-13 that are the basis of the probation;>
28-14 <(2) limit practice to the areas prescribed by the
28-15 department; or>
28-16 <(3) continue or renew professional education until
28-17 the person attains a degree of skill satisfactory to the department
28-18 in those areas that are the basis of the probation.>
28-19 <(d) If the department proposes to deny a person's
28-20 application for a pesticide dealer license or to revoke, modify, or
28-21 suspend a person's license, the person is entitled to a hearing
28-22 before a hearings officer designated by the department. The
28-23 decision of the department is appealable in the same manner as
28-24 provided for contested cases under the Administrative Procedure and
28-25 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
28-26 Statutes).>
28-27 Sec. 76.077. Exceptions. (a) This subchapter does not
29-1 apply to a manufacturer or formulator of a pesticide who does not
29-2 sell directly to the user.
29-3 (b) This subchapter does not apply to a licensed pesticide
29-4 applicator who:
29-5 (1) distributes restricted-use or state-limited-use
29-6 pesticides only as an integral part of the pesticide application
29-7 business; and
29-8 (2) dispenses the pesticides only through equipment
29-9 used in the pesticide application business.
29-10 (c) This subchapter does not apply to a federal, state,
29-11 county, or municipal agency that provides pesticides only for its
29-12 own programs.
29-13 SUBCHAPTER E. USE AND APPLICATION
29-14 Sec. 76.101. Coordination. (a) The department is the lead
29-15 agency in the regulation of pesticide use and application and is
29-16 responsible for coordinating activities of state agencies, except
29-17 as provided by Section 76.007(b) of this code and by Chapter 26 of
29-18 the Water Code. The department shall submit a state plan for the
29-19 licensing of pesticide applicators to the administrator of the
29-20 Environmental Protection Agency.
29-21 (b) The department shall coordinate, plan, and approve
29-22 training programs and shall use the public and private resources of
29-23 this state, including state universities, colleges, junior
29-24 colleges, community colleges, the Texas Agricultural Extension
29-25 Service, and the Texas Agricultural Experiment Station <experiment
29-26 station>. The department and the Texas Agricultural Extension
29-27 Service shall adopt a memorandum of understanding to jointly
30-1 coordinate, plan, and approve the training programs for private
30-2 applicators.
30-3 (c) The department shall make plans under this section on
30-4 the basis of convenience to applicants, thoroughness of preparation
30-5 and testing, and maximum economy in expenditures for this purpose.
30-6 The department shall make full use of grants-in-aid and cooperative
30-7 agreements in administering this subchapter.
30-8 (d)(1) Except as otherwise provided by this subsection, no
30-9 city, town, county, or other political subdivision of this state
30-10 shall adopt any ordinance, rule, or regulation regarding pesticide
30-11 sale or use.
30-12 (2) Nothing in this subsection shall be construed to
30-13 limit the authority of a city, town, or county to:
30-14 (A) encourage locally approved and provided
30-15 educational material concerning a pesticide;
30-16 (B) zone for the sale or storage of such
30-17 products;
30-18 (C) adopt fire or building regulations as
30-19 preventative measures to protect the public and emergency services
30-20 personnel from an accident or emergency involving such products,
30-21 including regulations governing the storage of such products or
30-22 governing fumigation and thermal insecticidal fogging operations;
30-23 (D) provide or designate sites for the disposal
30-24 of such products;
30-25 (E) route hazardous materials; or
30-26 (F) regulate discharge to sanitary sewer
30-27 systems.
31-1 (3) This subsection shall not prevent a city, town,
31-2 county, or any political subdivision from complying with any
31-3 federal or state law or regulation. This subsection shall not
31-4 prevent a city, town, county, or any political subdivision from
31-5 attaining or maintaining compliance with federal or state
31-6 environmental standards including Texas water quality standards. A
31-7 city, town, county, or other political subdivision may take any
31-8 action otherwise prohibited by this subsection in order to comply
31-9 with any federal requirements, to avoid any federal or state
31-10 penalties or fines, or to attain or maintain federal or state
31-11 environmental standards including Texas water quality standards.
31-12 <(4) Nothing in this subsection may be construed to
31-13 affect Chapter 75 of this code.>
31-14 Sec. 76.102. Agencies Responsible for Licensing Pesticide
31-15 Applicators. (a) The department shall license pesticide
31-16 applicators involved in the following license use categories:
31-17 (1) agricultural pest control, including animal pest
31-18 control;
31-19 (2) forest pest control;
31-20 (3) ornamental and turf pest control, except as
31-21 provided by the Texas Structural Pest Control Act, as amended
31-22 (Article 135b-6, Vernon's Texas Civil Statutes);
31-23 (4) seed treatments;
31-24 (5) right-of-way pest control;
31-25 (6) regulatory pest control;
31-26 (7) aquatic pest control; <and>
31-27 (8) demonstration pest control; and
32-1 (9) other license use categories as necessary to
32-2 comply with federal requirements. The department may not adopt
32-3 license use categories that are designated by statutes for
32-4 regulation by another agency.
32-5 (b) The Texas Structural Pest Control Board <Texas
32-6 Department of Health> shall license pesticide applicators involved
32-7 in the license use category of health-related pest control.
32-8 Sec. 76.103. Program Contingent on Federal Funds. (a) The
32-9 licensing of commercial applicators, noncommercial applicators, and
32-10 private applicators is contingent on the availability of federal
32-11 funds to pay part of the costs of administering and enforcing the
32-12 program.
32-13 (b) If federal funds and other funds made available for this
32-14 program are not sufficient to pay all costs of administering and
32-15 enforcing the program, the department shall certify that fact and
32-16 discontinue the licensing of commercial applicators, noncommercial
32-17 applicators, and private applicators. The department shall publish
32-18 notice of the discontinuance of the program in the Texas Register.
32-19 (c) If sufficient funds become available after
32-20 discontinuance, the department shall certify the availability of
32-21 sufficient funds to pay all costs of administration and enforcement
32-22 of the program and shall resume the licensing of commercial
32-23 applicators, noncommercial applicators, and private applicators.
32-24 The department shall publish notice of resumption of the program in
32-25 the Texas Register.
32-26 (d) The department shall determine the effective date of
32-27 discontinuance or resumption of the program, but the date may not
33-1 be before the date of publication of notice in the Texas Register.
33-2 (e) During any period in which the program has been
33-3 discontinued, a person is not required to have a license provided
33-4 by this subchapter in order to use pesticides, but a person may be
33-5 prosecuted for acts committed or omitted when the program was in
33-6 effect.
33-7 Sec. 76.104. Department <AGENCY> RULES FOR APPLICATION OF A
33-8 PESTICIDE. (a) The department <head of each regulatory agency>
33-9 may, after notice and public hearing, adopt rules to carry out the
33-10 provisions of this subchapter <for which the agency is
33-11 responsible>.
33-12 (b) Rules adopted under this section may:
33-13 (1) prescribe methods to be used in the application of
33-14 a restricted-use or state-limited-use pesticide;
33-15 (2) relate to the time, place, manner, method, amount,
33-16 or concentration of pesticide application or to the materials used
33-17 in pesticide application; and
33-18 (3) restrict or prohibit use of a restricted-use or
33-19 state-limited-use pesticide in designated areas during specific
33-20 periods of time.
33-21 (c) The department <A regulatory agency> may adopt a rule
33-22 under this section only after consideration of precautions or
33-23 restrictions necessary to prevent unreasonable risk to man or the
33-24 environment, taking into account the economic, social, and
33-25 environmental costs and benefits of the use of the pesticide.
33-26 (d) The department shall adopt worker protection standards
33-27 for pesticides if the federal worker protection standard is not
34-1 adopted or under consideration for adoption. The department may
34-2 adopt other rules for the protection of the health, safety, and
34-3 welfare of farm workers and pesticide handlers.
34-4 Sec. 76.105. License Required. (a) Except as provided
34-5 under Section 76.003(e), a <A> person may not purchase or use a
34-6 restricted-use or state-limited-use pesticide unless the person is:
34-7 (1) licensed as a commercial applicator, noncommercial
34-8 applicator, or private applicator and authorized by the license to
34-9 purchase or use the restricted-use or state-limited-use pesticide
34-10 in the license use categories covering the proposed pesticide use;
34-11 (2) an individual acting under the direct supervision
34-12 of a licensed applicator, in accordance with Subsection (b) and
34-13 Section 76.116(e); or
34-14 (3) a certified private applicator as defined in
34-15 Section 76.112(j) of this code.
34-16 (b) An individual is under the direct supervision of a
34-17 licensed noncommercial, licensed commercial, or <a> licensed
34-18 private applicator if the individual is acting under the
34-19 instructions and control of a licensed noncommercial, licensed
34-20 commercial, or <a> licensed private applicator who is responsible
34-21 for the actions of the individual and who is available if and when
34-22 needed. A licensed applicator may not supervise an applicator
34-23 whose license or certificate is under suspension or revocation.
34-24 The licensed noncommercial, licensed commercial, or licensed
34-25 private applicator is not required to be physically present at the
34-26 time and place of the pesticide application unless the label of the
34-27 applied pesticide states that the presence of the licensed
35-1 applicator is required.
35-2 (c) <An individual is under the direct supervision of a
35-3 licensed commercial applicator if the individual is acting under
35-4 the instructions and control of a licensed commercial applicator
35-5 who is responsible for the actions of the individual and who is
35-6 continuously physically present at the time and place of the
35-7 pesticide application.>
35-8 <(d)> A licensed applicator is responsible for assuring that
35-9 the person working under the licensee's direct supervision is
35-10 knowledgeable of the label requirements and rules and regulations
35-11 governing the use of <the particular> pesticides <being used by the
35-12 individual>. A licensed applicator satisfies the requirements of
35-13 this subsection if the person working under the licensee's direct
35-14 supervision has been trained as a handler under the federal worker
35-15 protection standard <attends a program conducted by the department
35-16 that is designed to make the person knowledgeable of the label
35-17 requirements and rules and regulations governing the use of
35-18 pesticides>.
35-19 (d) <(e)> A person who is authorized under this chapter to
35-20 use restricted-use or state-limited-use pesticides shall comply
35-21 with all applicable federal and state rules, regulations, and court
35-22 orders regarding the use of restricted-use or state-limited-use
35-23 pesticides.
35-24 (e) Except as provided under Section 76.003(e), a person may
35-25 not purchase a restricted-use or state-limited-use pesticide unless
35-26 the person is a licensed or a certified applicator or authorized by
35-27 a licensed or certified applicator to purchase or take delivery for
36-1 the applicator.
36-2 (f) The other provisions of this section notwithstanding,
36-3 the department may adopt rules or establish programs that the U.S.
36-4 Environmental Protection Agency or another federal agency requires
36-5 as a condition for receiving:
36-6 (1) approval to authorize use of certain
36-7 restricted-use or state-limited-use pesticides;
36-8 (2) federal funding for licensing or certification of
36-9 pesticide applicators;
36-10 (3) federal funding for pesticide law enforcement
36-11 efforts; or
36-12 (4) other federal funding related to pesticide risk
36-13 reduction.
36-14 (g) The other provisions of this chapter notwithstanding, if
36-15 the U.S. Environmental Protection Agency or another federal agency
36-16 imposes on the state standards for certification of commercial,
36-17 noncommercial, or private pesticide applicators, the department may
36-18 adopt by rule the federal standards for each classification of
36-19 applicators for which the federal standards are imposed.
36-20 Sec. 76.106. Classification of Licenses. (a) The
36-21 department <head of each regulatory agency> may classify commercial
36-22 applicator and noncommercial applicator licenses under
36-23 subcategories of license use categories according to the subject,
36-24 method, or place of pesticide application.
36-25 (b) The department <A regulatory agency head> shall
36-26 establish separate testing requirements for licensing in each
36-27 license use category for which the agency is responsible and may
37-1 establish separate testing requirements for licensing in
37-2 subcategories within a license use category.
37-3 (c) The department <Each regulatory agency> may charge a
37-4 <nonrefundable> testing fee of not more than $20 for testing in
37-5 each license use category or subcategory as determined by the
37-6 department.
37-7 Sec. 76.107. Licensing by More Than One Agency. (a) A
37-8 person who wants to be licensed as a pesticide applicator under
37-9 license use categories regulated by more than one regulatory agency
37-10 may do so by paying a single license fee to the agency regulating
37-11 the person's primary business and meeting licensing requirements
37-12 for each category for which the person desires licensing.
37-13 (b) A person licensed under this section must pay testing
37-14 fees required by each regulatory agency.
37-15 Sec. 76.108. Commercial Applicator License. (a) A person
37-16 who operates a business or is an employee of a business that
37-17 applies state-limited-use or restricted-use pesticides to the land
37-18 of another person for hire or compensation and who is required to
37-19 be licensed by Section 76.105 of this code shall apply to the
37-20 department <appropriate regulatory agency> for a commercial
37-21 applicator license issued for the license use categories and
37-22 subcategories in which the pesticide application is to be made.
37-23 (b) A person shall apply for an original or renewal
37-24 commercial applicator license on forms prescribed by the department
37-25 <regulatory agency>. The application shall include information as
37-26 required by rule of the department <head of the agency> and must be
37-27 accompanied by an <a nonrefundable> annual license fee of no more
38-1 than $150, as fixed by the department <head of the agency>.
38-2 (c) The department <head of a regulatory agency> may not
38-3 issue an original commercial applicator license before the
38-4 applicant has:
38-5 (1) filed with the agency evidence of financial
38-6 responsibility as required by Section 76.111 of this code; and
38-7 (2) passed an examination under Section 76.110 of this
38-8 code.
38-9 (d) The department <head of a regulatory agency> may not
38-10 issue a commercial applicator license if it has been determined
38-11 that:
38-12 (1) the applicant has been convicted of a felony
38-13 involving moral turpitude in the last five years;
38-14 (2) the applicant has had a license issued under this
38-15 subchapter revoked within the last two years;
38-16 (3) the applicant, or the applicant's representative
38-17 if the applicant is a business, has been unable to satisfactorily
38-18 fulfill licensing requirements; or
38-19 (4) the applicant for any other reason cannot be
38-20 expected to be able to fulfill the provisions of this subchapter
38-21 applicable to the license use category for which application is
38-22 made.
38-23 (e) An individual to whom a commercial applicator license is
38-24 issued is authorized to purchase, use, and supervise the use of
38-25 restricted-use and state-limited-use pesticides in the license use
38-26 categories and subcategories in which the individual is licensed.
38-27 (f) If a license is issued in the name of a business, the
39-1 business must have a licensed applicator employed at all times.
39-2 Failure to have a licensed applicator employed is a ground for
39-3 revocation of a business commercial applicator license.
39-4 (g) As a condition to issuance of a commercial applicator
39-5 license, an applicant located outside this state shall file with
39-6 the department <regulatory agency> a written instrument designating
39-7 a resident agent for service of process in actions taken in the
39-8 administration and enforcement of this chapter. Instead of
39-9 designating a resident agent, the applicant may designate in
39-10 writing the secretary of state as the recipient of service of
39-11 process for the applicant in this state.
39-12 Sec. 76.109. Noncommercial Applicator License. (a) A
39-13 person who is required to be licensed under Section 76.105 of this
39-14 code but who does not qualify as a commercial applicator or a
39-15 private applicator shall apply to the department <appropriate
39-16 regulatory agency> for a noncommercial applicator license issued
39-17 for the license use categories and subcategories in which the
39-18 pesticide application is to be made.
39-19 (b) A person shall apply for an original or renewal
39-20 noncommercial applicator license on forms prescribed by the
39-21 department <regulatory agency>. An <A nongovernmental> applicant
39-22 shall include with the application an <a nonrefundable> annual
39-23 license fee of not more than $100, as fixed by the department <head
39-24 of the regulatory agency>. <A regulatory agency may not charge a
39-25 governmental entity applicant a license fee.>
39-26 (c) The department <head of a regulatory agency> may not
39-27 issue an original noncommercial applicator license before the
40-1 applicant has passed an examination under Section 76.110 of this
40-2 code.
40-3 (d) An individual to whom a noncommercial applicator license
40-4 is issued is authorized to purchase, use, and supervise the use of
40-5 restricted-use and state-limited-use pesticides in the license use
40-6 categories and subcategories in which the individual is licensed.
40-7 (e) If a license is issued in the name of a governmental
40-8 entity, the entity must have a licensed applicator employed at all
40-9 times. Failure to have a licensed applicator employed is a ground
40-10 for revocation of a governmental entity noncommercial applicator
40-11 license.
40-12 (f) As a condition to issuance of a noncommercial applicator
40-13 license, an applicant located outside this state shall file with
40-14 the department <regulatory agency> a written instrument designating
40-15 a resident agent for service of process in actions taken in the
40-16 administration and enforcement of this chapter. Instead of
40-17 designating a resident agent, the applicant may designate in
40-18 writing the secretary of state as the recipient of service of
40-19 process for the applicant in this state.
40-20 Sec. 76.110. Commercial and Noncommercial Applicator
40-21 Examination; Reciprocal Agreements. (a) Each person applying for
40-22 a license as a commercial applicator or a noncommercial applicator
40-23 must pass an examination demonstrating that the person:
40-24 (1) is properly qualified to perform functions
40-25 associated with pesticide application to a degree directly related
40-26 to the nature of the activity and the associated responsibility;
40-27 and
41-1 (2) has knowledge of the use and effects of
41-2 restricted-use and state-limited-use pesticides in the license use
41-3 categories and subcategories in which the person is to be licensed.
41-4 (b) Not later than the 30th day after the date on which a
41-5 licensing examination is administered under this section, the
41-6 department <appropriate regulatory agency> shall notify each
41-7 examinee of the results of the examination. However, if an
41-8 examination is graded or reviewed by a national testing service,
41-9 the department <appropriate regulatory agency> shall notify
41-10 examinees of the results of the examination not later than the 14th
41-11 day after the date on which the department <appropriate regulatory
41-12 agency> receives the results from the testing service. If the
41-13 notice of examination results graded or reviewed by a national
41-14 testing service will be delayed for longer than 90 days after the
41-15 examination date, the department <appropriate regulatory agency>
41-16 shall notify the examinee of the reason for the delay before the
41-17 90th day.
41-18 (c) If requested in writing by the person who fails a
41-19 licensing examination administered under this section, the
41-20 department <appropriate regulatory agency> shall furnish the person
41-21 with an analysis of the person's performance on the examination.
41-22 (d) The department <head of a regulatory agency> may waive
41-23 part or all of any license examination requirements on a reciprocal
41-24 basis with any other state or federal agency that has substantially
41-25 the same examination standards.
41-26 Sec. 76.111. Commercial Applicator Proof of Financial
41-27 Responsibility. (a) Except as otherwise provided by this section,
42-1 each applicant for a commercial applicator license shall file with
42-2 the department <regulatory agency> issuing the license<:>
42-3 <(1) a bond executed by the applicant as principal and
42-4 by a corporate surety licensed to do business in Texas as surety;
42-5 or>
42-6 <(2)> a liability insurance policy, or certification
42-7 of a policy, protecting persons who may suffer damages as a result
42-8 of the operations of the applicant.
42-9 (b) If the Texas Department of Insurance determines that the
42-10 liability insurance policy required by Subsection (a) is not
42-11 generally and reasonably available to commercial pesticide
42-12 applicators, then in lieu of the requirements of Subsection (a), an
42-13 applicant for a commercial applicator license may:
42-14 (1) file with the department property damage and
42-15 personal injury insurance or certification of such insurance that
42-16 is generally and reasonably available as determined by the Texas
42-17 Department of Insurance; or
42-18 (2) <If an applicant cannot reasonably obtain
42-19 insurance coverage or a bond as specified by Subsection (f) of this
42-20 section, the regulatory agency shall accept a certificate of
42-21 deposit or a letter of credit that meets the requirements of
42-22 Subsection (c)(1) and rules adopted under Subsection (e) of this
42-23 section.>
42-24 <(c) If the State Board of Insurance determines after giving
42-25 notice to the regulatory agency that the liability insurance policy
42-26 required by Subsection (a)(2) of this section is not generally and
42-27 reasonably available to commercial pesticide applicators, then in
43-1 lieu of the requirements of Subsection (a) of this section, an
43-2 applicant for a commercial applicator license may:>
43-3 <(1) tender from a state or federal financial
43-4 institution whose deposits are insured by the Federal Deposit
43-5 Insurance Corporation or by the Federal Savings and Loan Insurance
43-6 Corporation a certificate of deposit or letter of credit in the
43-7 amount prescribed by Subsection (f) of this section, made payable
43-8 to the regulatory agency and issued for the purpose of protecting
43-9 persons who may suffer damages as a result of the operations of the
43-10 applicant;>
43-11 <(2) file property damage and personal injury
43-12 insurance or certification of such insurance that is generally and
43-13 reasonably available as determined by the State Board of Insurance;
43-14 or>
43-15 <(3)> comply with other proof of financial
43-16 responsibility requirements adopted by rule of the department
43-17 <regulatory agency> under this subchapter.
43-18 (c) <(d)> The proof of financial responsibility required by
43-19 this section is not required to apply to damages or injury to
43-20 agricultural crops, plants, or land being worked on by the
43-21 applicant.
43-22 (d) <(e)> The proof of financial responsibility required by
43-23 this section must be approved by the department <regulatory agency>
43-24 and conditioned on compliance with the requirements of this chapter
43-25 and rules adopted under this chapter.
43-26 (e) <(f)> Except as otherwise provided by this section, the
43-27 amount of the proof of financial responsibility may not be less
44-1 than an aggregate of $200,000 for bodily injury and property damage
44-2 <$100,000 for property damage and may not be less than $100,000 for
44-3 bodily injury>. The department <head of a regulatory agency> by
44-4 rule may require higher or lower <different> amounts of coverage
44-5 for different classifications of operations under this chapter. At
44-6 all times during the license period, the coverage must be
44-7 maintained at not less than the amount set by the department
44-8 <agency head> or the Texas Department <State Board> of Insurance,
44-9 except as provided by Subsection (i) <as applicable>.
44-10 (f) <(g)> At least 10 days before a reduction requested by a
44-11 licensee or a cancellation of a <bond or> liability insurance
44-12 policy, the party taking the action shall notify the department
44-13 <head of the appropriate regulatory agency>. If the party does not
44-14 give that notice, the liability of the <surety or> insurer is
44-15 limited to the <bond or> liability insurance policy.
44-16 (g) <(h)> The department <head of a regulatory agency> may
44-17 accept a <bond or> liability insurance policy in the proper sum
44-18 which has a deductible clause in an amount of not more than $1,000
44-19 for the total amount of the <bond or> liability insurance policy
44-20 required by this section. If the applicant has not satisfied the
44-21 requirement of the deductible amount in any prior legal claim, the
44-22 department <an agency head> may not accept a <bond or> policy with
44-23 a deductible clause unless the applicant furnishes the department
44-24 <agency> with a surety bond that satisfies the amount of the
44-25 deductible clause as to all claims that may arise as a result of
44-26 the applicant's operation.
44-27 (h) <(i) The department shall exempt a commercial applicator
45-1 from the requirements of showing proof of financial responsibility
45-2 under this section if the applicator agrees:>
45-3 <(1) to a license for use of ground application
45-4 equipment only; and>
45-5 <(2) to a license that limits the application to only
45-6 those herbicides determined by the department not to create a
45-7 substantial risk of drift because of volatility.>
45-8 <(j)> Should the insurance policy <surety> furnished under
45-9 this section become insufficient or otherwise unsatisfactory, a
45-10 licensee shall, on notice of the insufficiency or other defect,
45-11 immediately file a new <bond,> liability insurance policy<, or any
45-12 other proof of financial responsibility> as authorized by rule of
45-13 the department, except as provided under Subsection (i) <regulatory
45-14 agency>. A licensee may not operate as a commercial applicator
45-15 during an uncovered period. Failure to file or maintain a
45-16 liability insurance policy with the proper insurance coverage while
45-17 applying restricted-use or state-limited-use pesticides as a
45-18 commercial applicator <a bond, liability insurance policy, or
45-19 other proof of authorized financial responsibility or failure to
45-20 maintain the surety in the required amount> is a ground for
45-21 suspension or revocation of a commercial applicator license, an
45-22 assessment of an administrative penalty, or both.
45-23 (i) A licensed commercial applicator does not need to
45-24 maintain insurance coverage as required by this section if the
45-25 applicator provides written notice to the department that the
45-26 applicator will not operate as a commercial applicator, applying or
45-27 supervising restricted-use or state-limited-use pesticides or
46-1 regulated herbicides during an uncovered period. Such written
46-2 notice must be received by the department prior to cancellation of
46-3 the insurance policy required by this section.
46-4 <(k) The regulatory agency by rule may prescribe acceptable
46-5 proof of financial responsibility and appropriate procedures to
46-6 carry out the purposes of this section. The regulatory agency may
46-7 adopt rules governing the conditions and handling of certificates
46-8 of deposit and letters of credit, but may not disburse funds or
46-9 release a certificate or letter except by consent of the commercial
46-10 applicator or pursuant to court order.>
46-11 Sec. 76.112. Private Applicator. (a) A person is a private
46-12 applicator if the person uses or supervises the use of a
46-13 restricted-use or state-limited-use pesticide for the purpose of
46-14 producing an agricultural commodity:
46-15 (1) on property owned or rented by the person or the
46-16 person's employer or under the person's general control; or
46-17 (2) on the property of another person if applied
46-18 without compensation other than the trading of personal services,
46-19 or services related to agricultural production including the use of
46-20 equipment, between producers of agricultural commodities.
46-21 (b) A private applicator is required to be either licensed
46-22 or certified to use restricted-use or state-limited-use pesticides.
46-23 (c) An employee qualifies as a private applicator under
46-24 <Subdivision (1) of> Subsection (a)(1) of this section only if he
46-25 is employed to perform other duties related to agricultural
46-26 production and provide labor for the pesticide application but does
46-27 not provide the necessary equipment or pesticide.
47-1 (d) A private applicator who is required to be licensed by
47-2 Section 76.105 of this code shall apply to the department
47-3 <appropriate regulatory agency> for a private applicator license.
47-4 (e) A person shall apply for an original or renewal private
47-5 applicator license on forms prescribed by the department
47-6 <regulatory agency>. The application shall include information as
47-7 required by department <agency> rule and must be accompanied by a
47-8 nonrefundable fee of $50.
47-9 (f) The department <head of a regulatory agency> may not
47-10 issue an original private applicator license before the applicant
47-11 has attended a training course conducted by the Texas Agricultural
47-12 Extension Service or another training course approved by the
47-13 department. The department shall approve appropriate training
47-14 courses developed under the coordination of the Texas Agricultural
47-15 Extension Service and to be conducted by other governmental
47-16 agencies or nongovernmental entities. The training course shall
47-17 cover the use, effects, and risks of restricted-use and
47-18 state-limited-use pesticides.
47-19 (g) The department <head of a regulatory agency> may not
47-20 issue a private applicator license if the applicant has had a
47-21 license issued under this subchapter revoked within the last two
47-22 years.
47-23 (h) An individual to whom a private applicator license is
47-24 issued is authorized to purchase, use, and supervise the use of
47-25 restricted-use and state-limited-use pesticides in all license use
47-26 categories and subcategories for the purpose of producing an
47-27 agricultural commodity on property described by Subsection (a)(1)
48-1 or (a)(2) of this section.
48-2 (i) As a condition to issuance of a private applicator
48-3 license, an applicant located outside this state shall file with
48-4 the department <regulatory agency> a written instrument designating
48-5 a resident agent for service of process in actions taken in
48-6 administration and enforcement of this chapter. Instead of
48-7 designating a resident agent, the applicant may designate in
48-8 writing the secretary of state as the recipient of service of
48-9 process for the applicant in this state.
48-10 (j) For purposes of this chapter, a certified private
48-11 applicator is a private applicator who has been previously
48-12 certified under the department's voluntary certification program
48-13 and who holds a private applicator certificate dated prior to
48-14 January 10, 1989. A certified private applicator is authorized to
48-15 use restricted-use and state-limited-use pesticides in all license
48-16 use categories and subcategories for the purpose of producing an
48-17 agricultural commodity on property described by Subsection (a)(1)
48-18 or (a)(2) of this section. A certified private applicator may not
48-19 supervise the use of restricted-use and state-limited-use
48-20 pesticides.
48-21 Sec. 76.113. Expiration and Renewal of Licenses. (a) Each
48-22 commercial applicator or noncommercial applicator license expires
48-23 on the last day of February of the year following the year in which
48-24 it was issued.
48-25 (b) Each private applicator license expires on the last day
48-26 of February of the fifth year following the year in which it was
48-27 issued.
49-1 (c) Except as provided by Subsection (d) of this section, a
49-2 person having a valid license issued under this subchapter may
49-3 renew the license for another term without retesting by paying to
49-4 the department <regulatory agency> the license fee required by this
49-5 subchapter. A person who fails to apply for renewal of a license
49-6 on or before the expiration date must pay, in addition to the
49-7 annual license fee, the late fee provided by Section 12.024 of this
49-8 code.
49-9 (d) A licensee must undertake training, submit to retesting,
49-10 or both, before renewal of a license if the department <head of the
49-11 agency> determines that additional knowledge is required for
49-12 renewal.
49-13 Sec. 76.114. Records. (a) The department <A regulatory
49-14 agency> shall require each commercial, <applicator and>
49-15 noncommercial, and private applicator licensee or certificate
49-16 holder to maintain records of pesticide use. All commercial and
49-17 noncommercial applicators will maintain records of all pesticide
49-18 use. All private applicators shall maintain records of
49-19 restricted-use and state-limited-use pesticides <the licensee's use
49-20 of pesticides>. The department <regulatory agency> by rule shall
49-21 prescribe the information to be entered into <included in> the
49-22 records.
49-23 (b) The department <A regulatory agency> may require a
49-24 commercial, <applicator and> noncommercial, and private applicator
49-25 licensee or certificate holder to keep records of the licensee's or
49-26 certificate holder's application of a specific restricted-use or
49-27 state-limited-use pesticide and may require those records to be
50-1 kept separate from other business records.
50-2 (c) A licensee or certificate holder shall keep records
50-3 required under this section for a period of two years from the date
50-4 of the pesticide application. The licensee or certificate holder
50-5 shall keep these records accessible and available for copying and
50-6 shall store them in a location suitable to preserve their physical
50-7 integrity.
50-8 (d) On written request of the department <regulatory
50-9 agency>, a licensee or certificate holder shall furnish the
50-10 department <agency> a copy of any requested record pertaining to
50-11 the application of pesticides. The department may require all
50-12 persons who apply a regulated herbicide to submit periodically to
50-13 the department a copy of the records required by this section.
50-14 (e) Except as otherwise provided by this section, all
50-15 private applicators shall, on request, show any records required by
50-16 this section to an employee, an employee's designated
50-17 representative, treating medical personnel, or a member of the
50-18 community as defined by rule of the department. The designated
50-19 representative or treating medical personnel are not required to
50-20 identify the employee represented or treated.
50-21 (f) A private applicator may not refuse to provide a record
50-22 subject to this subsection to an employee, treating medical
50-23 personnel, designated representative, or member of the community.
50-24 If an employee, treating medical personnel, designated
50-25 representative, or member of the community requests a copy of a
50-26 record and the private applicator or other entity refuses to
50-27 provide a copy, that person shall notify the department in writing
51-1 of the request and the private applicator's or other entity's
51-2 refusal. The department shall obtain copies of the record in
51-3 accordance with rules adopted by the department.
51-4 Sec. 76.115. <Registration and> Inspection of Equipment.
51-5 (a) The department may inspect <Each regulatory agency shall
51-6 provide for the registration and inspection of> equipment used in
51-7 the <commercial> application of a restricted-use or
51-8 state-limited-use pesticide.
51-9 (b) The department <A regulatory agency> may require repairs
51-10 or alterations of equipment before further use.
51-11 (c) The department by rule may:
51-12 (1) provide requirements for equipment used to apply
51-13 regulated herbicides; and
51-14 (2) regulate or prohibit the use of certain equipment
51-15 in the application of regulated herbicides if that use would be
51-16 hazardous in an area of the state. <The head of a regulatory
51-17 agency by rule shall adopt standards that must be met before
51-18 equipment may be registered.>
51-19 <(d) Each piece of registered equipment shall be identified
51-20 by a license plate or decal furnished by a regulatory agency at no
51-21 cost to the licensee. The license plate or decal must be attached
51-22 to the equipment in a manner and location prescribed by the
51-23 regulatory agency.>
51-24 Sec. 76.116. Suspension, Modification, or Revocation of
51-25 License. (a) The department may refuse to renew, <head of a
51-26 regulatory agency that licensed or certified an applicator may>
51-27 suspend, modify, or revoke a <any provision in the> license or
52-1 certificate, assess an administrative penalty, place on probation a
52-2 person whose license or certificate has been suspended, <or>
52-3 reprimand a licensee or certificate holder, or take a combination
52-4 of those actions if the department <head of the agency> finds that
52-5 the licensee or certificate holder has:
52-6 (1) made a pesticide recommendation or application
52-7 inconsistent with the pesticide's labeling or with the restrictions
52-8 on the use of the pesticide imposed by the state or the
52-9 Environmental Protection Agency;
52-10 (2) operated in a faulty, careless, or negligent
52-11 manner;
52-12 (3) refused, or after notice, failed to comply with an
52-13 applicable provision of this chapter, a rule adopted under this
52-14 chapter, or a lawful order of the commissioner <head of a
52-15 regulatory agency by which the licensee is licensed>;
52-16 (4) refused or neglected to keep and maintain the
52-17 records required by this chapter or to make reports when and as
52-18 required by this chapter;
52-19 (5) failed to maintain a <bond or> policy of insurance
52-20 as required by this chapter;
52-21 (6) made false or fraudulent records, invoices, or
52-22 reports;
52-23 (7) used fraud or misrepresentation in making an
52-24 application for a license or renewal of a license; or
52-25 (8) aided or abetted a certified, licensed, or an
52-26 unlicensed person to evade the provisions of this chapter,
52-27 conspired with a certified, licensed, or an unlicensed person to
53-1 evade the provisions of this chapter, or allowed the licensee's
53-2 license or the certificate holder's certificate to be used by
53-3 another person.
53-4 (b) The department <A regulatory agency> may temporarily
53-5 suspend a license or certificate under this section for not more
53-6 than 10 days after giving the licensee or certificate holder
53-7 written notice of noncompliance.
53-8 (c) If a license or certificate suspension is probated, the
53-9 department <regulatory agency> may require the person to:
53-10 (1) report regularly to the department <agency> on
53-11 matters that are the basis of the probation;
53-12 (2) limit practice to the areas prescribed by the
53-13 department <agency>; or
53-14 (3) continue or renew professional education until the
53-15 person attains a degree of skill satisfactory to the department
53-16 <agency> in those areas that are the basis of the probation.
53-17 (d) Except for a temporary suspension under Subsection (b)
53-18 of this section, if the department <regulatory agency> proposes to
53-19 not renew, suspend, modify, or revoke a person's license or
53-20 certificate, the person is entitled to a hearing before a hearings
53-21 officer designated by the department <agency>. The department
53-22 <agency> shall prescribe procedures by which all decisions to not
53-23 renew, suspend, modify, or revoke are appealable to the
53-24 commissioner <governing officer or board of the agency>.
53-25 (e) Any applicator whose license or certificate is under
53-26 suspension or revocation by the department may not apply
53-27 restricted-use or state-limited-use pesticides under the direct
54-1 supervision of another licensed applicator during that period of
54-2 suspension or revocation.
54-3 Sec. 76.117. Property Owner Use. This chapter does not
54-4 prohibit a property owner from using in the property owner's house,
54-5 lawn, or garden a pesticide that is labeled for that use, other
54-6 than a pesticide that may be registered or <and> classified for use
54-7 only by certified applicators.
54-8 SUBCHAPTER F. STORAGE AND DISPOSAL
54-9 Sec. 76.131. Rules. (a) The department may adopt rules
54-10 governing the storage and disposal of pesticides and pesticide
54-11 containers for the purpose of:
54-12 (1) preventing injury from storage or disposal to man,
54-13 vegetation, crops, or animals; and
54-14 (2) preventing any water <waterway> pollution that is
54-15 harmful to man or wildlife provided, however, that such rules be
54-16 consistent with and not less stringent than <Texas Water
54-17 Commission> rules adopted by the Texas Natural Resource
54-18 Conservation Commission under Chapter 26 of the Water Code.
54-19 (b) A person may not store or dispose of a pesticide in
54-20 violation of a rule adopted by the department under this section.
54-21 (c) Applicators and other entities covered by this chapter
54-22 who normally store products listed under FIFRA in an amount that
54-23 exceeds 55 gallons, 500 pounds, or a lesser amount the department
54-24 determines by rule for certain highly toxic or dangerous chemicals
54-25 covered by this chapter, within one-quarter mile of a residential
54-26 area composed of three or more private dwellings for more than 72
54-27 hours shall provide to the fire chief of the fire department having
55-1 jurisdiction over the storage place, in writing, the name and
55-2 telephone number of the applicator or a knowledgeable
55-3 representative of the applicator or other entity storing the
55-4 product who can be contacted for further information or contacted
55-5 in case of emergency.
55-6 (d) On request, each applicator or entity shall provide to
55-7 the fire chief having jurisdiction over the storage place a copy of
55-8 a list of pesticides stored by the applicator or entity. The
55-9 applicator or other entity shall notify the fire chief of any
55-10 significant changes that occur relating to the stored pesticides if
55-11 requested by the fire chief in writing.
55-12 (e) The fire chief having jurisdiction over the storage
55-13 place or his representative, on request, shall be permitted to
55-14 conduct on-site inspections of the pesticides stored for the sole
55-15 purpose of preparing fire department activities in case of an
55-16 emergency.
55-17 (f) On request, the fire chief having jurisdiction over the
55-18 storage place shall make the stored pesticide list available to
55-19 members of the fire department having jurisdiction over the
55-20 workplace and to personnel outside the fire department who are
55-21 responsible for preplanning emergency activities, but may not
55-22 otherwise distribute the information without approval of the
55-23 applicator.
55-24 SUBCHAPTER G. HERBICIDES
55-25 Sec. 76.141. REGULATED HERBICIDES. (a) After a public
55-26 hearing on the issue, and in accordance with Subsection (b), the
55-27 department by rule may adopt a list of regulated herbicides for the
56-1 state or for one or more designated areas in the state.
56-2 (b) The department may include a herbicide on the list of
56-3 regulated herbicides if the department determines that, if used as
56-4 directed or in accordance with widespread and commonly recognized
56-5 practice, the herbicide requires additional restrictions to prevent
56-6 a hazard to desirable vegetation through drift or other
56-7 uncontrolled application.
56-8 Sec. 76.142. APPLICATION OF REGULATED HERBICIDE. (a) If a
56-9 person applies a regulated herbicide, the person shall act in
56-10 accordance with rules adopted by the department, including rules
56-11 adopted under this subchapter.
56-12 (b) If a regulated herbicide is applied by a commercial
56-13 applicator, the person in control of the crop or land to which the
56-14 regulated herbicide is applied and the commercial applicator
56-15 jointly are responsible for ensuring that the application is in
56-16 compliance with this chapter and the rules adopted by the
56-17 department.
56-18 (c) If the department finds that an application of a
56-19 regulated herbicide is hazardous to crops or valuable plants in an
56-20 area, the department may prohibit the application of a regulated
56-21 herbicide in that area for the period during which the hazard
56-22 exists.
56-23 Sec. 76.143. RULES. As soon as practicable after receiving
56-24 a written request for a revision of a rule, an exemption from a
56-25 requirement of this chapter, or a prohibition of the spraying of a
56-26 regulated herbicide in an area, the department may hold a public
56-27 hearing to consider the request.
57-1 Sec. 76.144. COUNTY HERBICIDE REGULATIONS. (a) If the
57-2 commissioners court of a county determines that a valuable crop or
57-3 vegetation susceptible to being adversely affected by the
57-4 application of a regulated herbicide exists in an area of the
57-5 county and that a departmental rule adopted or prohibition
57-6 prescribed under Section 76.141 or 76.142 not currently applicable
57-7 to the area should apply to the area, the commissioners court may
57-8 enter an order in the minutes of the court under which the
57-9 department's rule or prohibition under Section 76.141 or 76.142
57-10 becomes effective in the specified area of the county beginning
57-11 January 1 of the following year.
57-12 (b) If the commissioners court of a county determines that
57-13 there is no longer a valuable crop or vegetation susceptible to
57-14 being adversely affected by the application of a regulated
57-15 herbicide in the specified area of the county, the court may
57-16 rescind its order under Subsection (a) effective January 1 of the
57-17 following year.
57-18 (c) The department shall adopt rules concerning the use of a
57-19 regulated herbicide in a county in which a commissioners court has
57-20 entered an order under Subsection (a) of this section.
57-21 (d) On request by a commissioners court of a county that has
57-22 entered an order under Subsection (a) and a determination by the
57-23 department that an emergency exists, the department may suspend
57-24 regulations under the commissioners court order concerning
57-25 application dates of regulated herbicides. Only an imminent threat
57-26 to agricultural interests in a county that, if not immediately
57-27 addressed, would create a significant economic loss to producers
58-1 and ranchers in the county is an emergency for purposes of this
58-2 subsection.
58-3 (e) Before a commissioners court may enter an order under
58-4 this section, the commissioners court shall hold a hearing to
58-5 determine whether the order should be issued. Before the 10th day
58-6 before the date on which the hearing is to be held, the
58-7 commissioners court shall publish notice of the hearing in at least
58-8 one newspaper in the county.
58-9 (f) The commissioners court shall transcribe the hearing,
58-10 and make findings of fact based on the hearing and conclusions of
58-11 law to support its order in the manner prescribed for a final order
58-12 or decision in a contested case under Chapter 2001, Government
58-13 Code.
58-14 (g) Before the 21st day after the date on which an order
58-15 under Subsection (a) is entered, an interested person may appeal
58-16 the order to a district court in the county to test the
58-17 reasonableness of the basis for the commissioners court order. The
58-18 provisions of Subchapter G, Chapter 2001, Government Code, that
58-19 apply to the judicial review of a contested case under the
58-20 substantial evidence rule apply to the appeal as if the
58-21 commissioners court were a state agency subject to Chapter 2001,
58-22 Government Code, except that the appeal is brought in a district
58-23 court in the county in which the appealed order applies. Appeals
58-24 may be taken from the district court as in other civil cases.
58-25 (h) The commissioners court shall notify the department of a
58-26 change in the status of a county or a portion of a county under
58-27 this section.
59-1 SUBCHAPTER H <G>. ENFORCEMENT
59-2 Sec. 76.151. Entry Power. (a) For the purpose of
59-3 inspection, examination, or sampling, the department is entitled to
59-4 enter at reasonable hours any building or place owned, controlled,
59-5 or operated by a registrant or dealer if from probable cause it
59-6 appears that the building or place contains a pesticide.
59-7 (b) The department <A regulatory agency> is entitled to
59-8 enter any public or private premises at reasonable times to:
59-9 (1) inspect any equipment authorized or required to be
59-10 inspected under this chapter or to inspect the premises on which
59-11 the equipment is kept or stored;
59-12 (2) inspect or sample land exposed or reported to be
59-13 exposed to a pesticide;
59-14 (3) inspect an area where a pesticide is disposed of
59-15 or stored; or
59-16 (4) observe the use and application of a
59-17 restricted-use or state-limited-use pesticide.
59-18 (c) If the department <a regulatory agency> is denied access
59-19 to any land to which access was sought at a reasonable time for any
59-20 of the purposes listed in Subsection (b) of this section, the
59-21 department <head of the regulatory agency> may apply to a
59-22 magistrate for a warrant authorizing access to the land for any of
59-23 those purposes. On a showing of probable cause to believe that a
59-24 violation of a rule relating to a purpose listed in Subsection (b)
59-25 of this section has occurred, the magistrate shall issue the search
59-26 warrant for the purposes requested.
59-27 Sec. 76.152. Sampling. The department is entitled to take a
60-1 sample for official analysis from any package or lot of pesticides
60-2 found within this state.
60-3 Sec. 76.153. STOP USE, STOP DISTRIBUTION, OR REMOVAL
60-4 <STOP-SALE> ORDER. (a) If the department has reason to believe
60-5 that a pesticide is in violation of any provision of this chapter,
60-6 the department may issue and enforce a written or printed order to
60-7 stop the use, distribution, or use and distribution <sale> of the
60-8 pesticide or requiring the pesticide to be removed and secured from
60-9 further distribution or use. The department shall present the
60-10 order to the owner or custodian of the pesticide. The person who
60-11 receives the order may not sell, distribute, or use the pesticide
60-12 until the department determines that the pesticide:
60-13 (1) is in compliance with this chapter; or
60-14 (2) does not present a hazard to the public health,
60-15 safety, or welfare.
60-16 (b) This section does not limit the right of the department
60-17 to proceed as authorized by another section of this chapter.
60-18 Sec. 76.154. Injunction. (a) The department may sue in the
60-19 name of the commissioner to enjoin any violation of a provision of
60-20 this chapter. Venue is in the county in which the alleged
60-21 violation occurred or is occurring.
60-22 (b) The department <A regulatory agency> may request an
60-23 appropriate prosecuting attorney or the attorney general to sue to
60-24 enjoin a violation or threatened violation of a provision of this
60-25 chapter that is within the department's <agency's> responsibility.
60-26 Sec. 76.155. Prosecutions. The department <A regulatory
60-27 agency> may request the appropriate prosecuting attorney to
61-1 prosecute a violation of a provision of this chapter.
61-2 Sec. 76.1555. Administrative Penalty. (a) If a person
61-3 violates a provision of this chapter <Chapter 75 or 76 of this code
61-4 administered by the department> or a rule or order adopted by the
61-5 department under this chapter <either of those chapters>, the
61-6 department may assess an administrative penalty against the person
61-7 using the procedures prescribed <as provided> by Section 12.020
61-8 <this section>.
61-9 (b) The penalty may be in an amount not to exceed $2,000 for
61-10 each violation, provided that the penalty shall not exceed $4,000
61-11 for all violations related to a single incident. The department
61-12 shall establish a schedule stating the types of violations possible
61-13 under this chapter <Chapters 75 and 76 of this code> and the
61-14 maximum fine applicable to each type of violation. The department
61-15 is not required to comply with Subchapter B, Chapter 2001,
61-16 Government Code, <Section 5 Administrative Procedure and Texas
61-17 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes),>
61-18 when establishing or revising the schedule. The department shall
61-19 publish the initial schedule and any subsequent revision in the
61-20 Texas Register before the schedule or revision is implemented.
61-21 (c) <In determining the amount of the penalty, the
61-22 department shall consider:>
61-23 <(1) the seriousness of the violation, including but
61-24 not limited to the nature, circumstances, extent, and gravity of
61-25 the prohibited acts, and the hazard or potential hazard created to
61-26 the health or safety of the public;>
61-27 <(2) the economic damage to property or the
62-1 environment caused by the violation;>
62-2 <(3) the history of previous violations;>
62-3 <(4) the amount necessary to deter future violations;>
62-4 <(5) efforts to correct the violation; and>
62-5 <(6) any other matter that justice may require.>
62-6 <(d) If, after investigation of a possible violation and the
62-7 facts surrounding that possible violation, the department
62-8 determines that a violation has occurred, the department may issue
62-9 a violation report stating the facts on which the conclusion that a
62-10 violation occurred is based and may recommend that an
62-11 administrative penalty under this section be imposed on the person
62-12 charged and recommending the amount of that proposed penalty. The
62-13 department shall base the recommended amount of the proposed
62-14 penalty on the seriousness of the violation determined by
62-15 consideration of the factors set forth in Subsection (c) of this
62-16 section.>
62-17 <(e) Not later than the 14th day after the date on which the
62-18 report is issued, the department shall give written notice of the
62-19 report to the person charged. The notice shall include a brief
62-20 summary of the charges, a statement of the amount of the penalty,
62-21 if any is recommended, and a statement of the right of the person
62-22 charged to a hearing on the occurrence of the violation or the
62-23 amount of the penalty, or both the occurrence of the violation and
62-24 the amount of the penalty.>
62-25 <(f) Not later than the 20th day after the date on which
62-26 notice is received, the person charged either may accept the
62-27 determination of the department made under Subsection (d) of this
63-1 section, including the recommended penalty, or make a written
63-2 request for a hearing on the determination.>
63-3 <(g) If the person charged with the violation accepts the
63-4 determination of the department, the commissioner shall issue an
63-5 order approving the determination and ordering the payment of the
63-6 recommended penalty.>
63-7 <(h) If the person charged requests a hearing or fails to
63-8 timely respond to the notice, the department shall set a hearing
63-9 and give notice of the hearing. The hearing shall be held by a
63-10 hearing examiner designated by the department. The hearing
63-11 examiner shall make findings of fact and conclusions of law and
63-12 promptly issue to the commissioner a proposal for decision as to
63-13 the occurrence of the violation, including a recommendation as to
63-14 the amount of the proposed penalty if a penalty is warranted.
63-15 Based on the findings of fact, conclusions of law, and
63-16 recommendations of the hearing examiner, the commissioner by order
63-17 may find a violation has occurred and may assess a penalty or may
63-18 find that no violation has occurred. All proceedings under this
63-19 subsection are subject to the Administrative Procedure and Texas
63-20 Register Act (Article 6252 13a, Vernon's Texas Civil Statutes).>
63-21 <(i) The department shall give notice of the commissioner's
63-22 order to the person charged. The notice shall include:>
63-23 <(1) the findings of fact and conclusions of law
63-24 separately stated;>
63-25 <(2) the amount of the penalty ordered, if any;>
63-26 <(3) a statement of the right of the person charged to
63-27 judicial review of the commissioner's order, if any; and>
64-1 <(4) other information required by law.>
64-2 <(j) Within the 30-day period immediately following the day
64-3 on which the order becomes final as provided by Section 16(c),
64-4 Administrative Procedure and Texas Register Act (Article 6252 13a,
64-5 Vernon's Texas Civil Statutes), the person charged with the penalty
64-6 shall:>
64-7 <(1) pay the penalty in full; or>
64-8 <(2) if the person files a petition for judicial
64-9 review contesting either the amount of the penalty or the fact of
64-10 the violation or contesting both the fact of the violation and the
64-11 amount of the penalty, post a supersedeas bond in a form approved
64-12 by the department for the amount of the penalty or $1,000,
64-13 whichever is less, the bond to be effective until all judicial
64-14 review of the order or decision is final.>
64-15 <(k) A bond under Subsection (j)(2) of this section must be
64-16 posted with the district clerk. The bond must be filed at the same
64-17 time the petition for judicial review is filed.>
64-18 <(l) If a person charged is financially unable to post a
64-19 supersedeas bond, the person may satisfy the requirements of
64-20 Subsection (j)(2) of this section by filing with the district clerk
64-21 an affidavit sworn by the person charged stating that the person is
64-22 financially unable to post a bond.>
64-23 <(m) Failure to post the bond or file the affidavit within
64-24 the time provided by Subsection (j) of this section results in a
64-25 waiver of all legal rights to judicial review. Also, if the person
64-26 charged fails to pay the penalty in full as provided under
64-27 Subsection (j)(1) of this section or post the bond or file the
65-1 affidavit as provided by Subsection (j) or (l) of this section, the
65-2 department may forward the matter to the attorney general for
65-3 enforcement.>
65-4 <(n) Judicial review of the order or decision of the
65-5 department assessing the penalty shall be under the substantial
65-6 evidence rule and shall be instituted by filing a petition with a
65-7 district court in Travis County, as provided by Section 19,
65-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
65-9 Vernon's Texas Civil Statutes).>
65-10 <(o) On final judgment of the court and payment of any
65-11 penalties and costs assessed by the court, the department shall
65-12 execute a release of any supersedeas bond posted under this
65-13 section.>
65-14 <(p) A penalty collected under this section shall be
65-15 deposited in the state treasury to the credit of the General
65-16 Revenue Fund.>
65-17 <(q)> If the department elects to assess an administrative
65-18 penalty, no action for a civil penalty may be based on the same
65-19 violation or violations.
65-20 Sec. 76.156. Civil Penalty. (a) A person who violates a
65-21 provision of this chapter administered by a regulatory agency other
65-22 than the department or a rule adopted by a regulatory agency other
65-23 than the department under this chapter is liable for a civil
65-24 penalty of not less than $50 nor more than $1,000 for each day on
65-25 which the violation occurs.
65-26 (b) A person who violates a provision of this chapter
65-27 administered by the department or a rule adopted by the department
66-1 under this chapter is liable for a civil penalty of not less than
66-2 $50 nor more than $10,000 for each violation, provided that the
66-3 penalty shall not exceed $25,000 for all violations related to a
66-4 single incident.
66-5 (c) No civil penalty may be collected for any violation that
66-6 constituted the basis for a department proceeding to assess an
66-7 administrative penalty, regardless of whether the department was or
66-8 was not successful in collecting the administrative penalty.
66-9 (d) A county attorney, a district attorney, or the attorney
66-10 general shall sue in the name of the state for the collection of a
66-11 civil penalty provided by this section.
66-12 (e) The appropriate regulatory agency may request an
66-13 appropriate prosecuting attorney or the attorney general to bring
66-14 suit under this section.
66-15 (f) A civil penalty collected under this section shall be
66-16 deposited in the state treasury to the credit of the General
66-17 Revenue Fund. All civil penalties recovered in suits first
66-18 instituted by a local government or governments under this section
66-19 shall be equally divided between the State of Texas and the local
66-20 government or governments with 50 percent of the recovery to be
66-21 paid to the General Revenue Fund and the other 50 percent equally
66-22 to the local government or governments first instituting the suit.
66-23 SUBCHAPTER I <H>. REMEDIES
66-24 Sec. 76.181. Appeal of Denial or Cancellation of Pesticide
66-25 Registration. (a) A person whose application for registration of
66-26 a pesticide has been denied or whose registration for a pesticide
66-27 has been canceled may appeal the action in the manner provided for
67-1 appeal of contested cases under Chapter 2001, Government Code <the
67-2 Administrative Procedure and Texas Register Act (Article 6252-13a,
67-3 Vernon's Texas Civil Statutes)>.
67-4 (b) Appeal under this section is governed by the substantial
67-5 evidence rule.
67-6 Sec. 76.182. Appeal of Permit or License Denial, Suspension,
67-7 Modification, or Revocation. (a) A person whose application for
67-8 an experimental use permit, pesticide dealer license, commercial
67-9 applicator license, noncommercial applicator license, or private
67-10 applicator license has been denied or whose experimental use
67-11 permit, pesticide dealer license, commercial applicator license,
67-12 noncommercial applicator license, private applicator license, or
67-13 private applicator certificate has been suspended for more than 10
67-14 days, revoked, or modified may appeal the action in the manner
67-15 provided for appeal of contested cases under Chapter 2001,
67-16 Government Code <the Administrative Procedure and Texas Register
67-17 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
67-18 (b) Appeal under this section is governed by the substantial
67-19 evidence rule.
67-20 Sec. 76.183. Appeal of Stop-Sale Order. (a) The owner or
67-21 custodian of a pesticide to which a stop-sale order is imposed
67-22 under Section 76.153 <applies> may appeal the order to a court of
67-23 competent jurisdiction in the county where the pesticide is found.
67-24 (b) Appeal under this section is by trial de novo.
67-25 Sec. 76.184. REPORTS OF PESTICIDE ADVERSE EFFECTS <DAMAGE
67-26 CLAIMS>. (a) A person claiming adverse effects from an
67-27 application of a pesticide may file with the department a complaint
68-1 report. The complaint report must contain the name of the person,
68-2 if known, allegedly responsible for the application of the
68-3 pesticide and the name of the owner or lessee of the land on which
68-4 the pesticide was applied. The department shall prepare a form to
68-5 be furnished to persons for use in filing complaint reports. The
68-6 form may contain other information that is within the person's
68-7 knowledge and requested by the commissioner.
68-8 (b) As soon as practicable after receiving a complaint
68-9 report, the department shall notify the licensee, the owner or
68-10 lessee of the land on which the alleged application occurred, and
68-11 any other person who may be charged with responsibility for the
68-12 adverse effects claimed. The department shall furnish copies of
68-13 the complaint to those people on request.
68-14 (c) To assess any adverse effects, the complaining party
68-15 shall permit the department and the licensee to observe, within
68-16 reasonable hours, the land or nontarget organism alleged to have
68-17 been adversely affected.
68-18 (d) Failure to file a complaint does not bar a civil or
68-19 criminal action from being filed and maintained.
68-20 (e) The department may prescribe by rule the procedures to
68-21 be followed in the investigation of a report claiming adverse
68-22 effects from an application of a pesticide. <(a) A person
68-23 claiming damages from a pesticide application may file with the
68-24 regulatory agency that licensed the certified applicator whose
68-25 action allegedly caused the damage a written statement claiming
68-26 that the person has been damaged. To be eligible for consideration
68-27 by the agency, the report must be filed before the 31st day
69-1 following the day of the alleged occurrence or, if a growing crop
69-2 is alleged to have been damaged, before the time that 25 percent of
69-3 the crop has been harvested or before the 31st day, whichever is
69-4 less. The report must contain the name of the person allegedly
69-5 responsible for the application of the pesticide and the name of
69-6 the owner or lessee of the land on which the crop is grown and to
69-7 which damage is alleged to have occurred. The regulatory agency
69-8 shall prepare a form to be furnished to persons for use in filing
69-9 damage reports. The form may contain other information that is
69-10 required by the head of the regulatory agency.>
69-11 <(b) On receipt of a report, the regulatory agency shall
69-12 notify the licensee, the owner or lessee of the land on which the
69-13 alleged act occurred, and any other person who may be charged with
69-14 responsibility for the damages claimed. The regulatory agency
69-15 shall furnish copies of the report to those people on request.>
69-16 <(c) The regulatory agency shall inspect damages whenever
69-17 possible and shall report its findings to the person claiming
69-18 damage and to the person alleged to have caused the damage. In
69-19 order that damage may be assessed, the claimant shall permit the
69-20 regulatory agency and the licensee to observe, within reasonable
69-21 hours, the land or nontarget organism alleged to have been damaged.>
69-22 <(d) Failure to file a report does not bar maintenance of a
69-23 civil or criminal action. If a person fails to file a report and
69-24 is the only person claiming injury from the particular use or
69-25 application of a pesticide, the regulatory agency may, if in the
69-26 public interest, refuse to hold a hearing for the denial,
69-27 suspension, or revocation of a license issued under this chapter to
70-1 the person alleged to have caused the damage.>
70-2 SUBCHAPTER J <I>. PENALTIES
70-3 Sec. 76.201. Offenses. (a) A person commits an offense if
70-4 the person distributes within this state or delivers for
70-5 transportation or transports in intrastate commerce or between
70-6 points within this state through a point outside this state, any of
70-7 the following:
70-8 (1) a pesticide that has not been registered as
70-9 provided by this chapter, except for a pesticide that is not for
70-10 use in this state and is only being manufactured, transported, or
70-11 distributed for use outside of this state;
70-12 (2) a pesticide that has a claim, a direction for its
70-13 use, or labeling that differs from the representations made in
70-14 connection with its registration;
70-15 (3) a pesticide that is not in the registrant's or
70-16 manufacturer's unbroken immediate container and that is not labeled
70-17 with the information and in the manner required by Section 76.021
70-18 of this code;
70-19 (4) a pesticide:
70-20 (A) that is of strength or purity that falls
70-21 below the professed standard or quality expressed on its labeling
70-22 or under which it is sold;
70-23 (B) for which a substance has been substituted
70-24 wholly or in part;
70-25 (C) of which a valuable constituent has been
70-26 wholly or in part abstracted; or
70-27 (D) in which a contaminant is present in an
71-1 amount that is determined by the department to be a hazard;
71-2 (5) a pesticide or device that is misbranded; or
71-3 (6) a pesticide in a container that is unsafe due to
71-4 damage.
71-5 (b) A person commits an offense if the person:
71-6 (1) detaches, alters, defaces, or destroys, wholly or
71-7 in part, any label or labeling provided for by this chapter or a
71-8 rule adopted under this chapter before the container has been
71-9 emptied and rinsed properly;
71-10 (2) adds any substance to or takes any substance from
71-11 a pesticide in a manner that may defeat the purpose of this chapter
71-12 or a rule adopted under this chapter;
71-13 (3) uses or causes to be used a pesticide contrary to
71-14 its labeling or to a rule of the department limiting the use of the
71-15 pesticide;
71-16 (4) handles, transports, stores, displays, or
71-17 distributes a pesticide in a manner that violates a provision of
71-18 this chapter or a rule adopted by the department under this
71-19 chapter; or
71-20 (5) disposes of, discards, or stores a pesticide or
71-21 pesticide container in a manner that the person knows or should
71-22 know is likely to cause injury to man, vegetation, crops,
71-23 livestock, wildlife, or pollinating insects.
71-24 (c) A person other than a person to whom the pesticide is
71-25 registered commits an offense if the person uses for the person's
71-26 advantage or reveals, other than to a properly designated state or
71-27 federal official or employee, a physician, or in emergency to a
72-1 pharmacist or other qualified person for the preparation of an
72-2 antidote, any information relating to pesticide formulas, trade
72-3 secrets, or commercial or financial information acquired under this
72-4 chapter and marked as privileged or confidential by the registrant.
72-5 (d) A person commits an offense if the person:
72-6 (1) commits an act for which a certified applicator's
72-7 license may be suspended, modified, or revoked under Section 76.116
72-8 of this code; or
72-9 (2) violates any <other> provision of this chapter to
72-10 which this section does not expressly apply.
72-11 (e) A person commits an offense if the person:
72-12 (1) knowingly or intentionally uses, causes to be
72-13 used, handles, stores, or disposes of a pesticide in a manner that
72-14 causes injury to man, vegetation, crops, livestock, wildlife, or
72-15 pollinating insects;
72-16 (2) acts in violation of Section 76.071(a);
72-17 (3) has a permit to apply a powder or dry-type
72-18 regulated herbicide and applies a herbicide that does not meet the
72-19 requirements established under Section 76.144(c);
72-20 (4) violates a rule adopted under this chapter; or
72-21 (5) fails to keep or submit records in violation of
72-22 this chapter.
72-23 Sec. 76.202. Penalty. (a) Except as provided by Subsection
72-24 (b) of this section, an offense under Section 76.201 of this code
72-25 is a Class C misdemeanor, unless the person has been previously
72-26 convicted of an offense under that section, in which event the
72-27 offense is a Class B misdemeanor.
73-1 (b) An offense under Section 76.201(e) of this code is a
73-2 Class A misdemeanor, unless the person has been previously
73-3 convicted of an offense under that subsection, in which event the
73-4 offense is a felony of the third degree.
73-5 Sec. 76.203. Defenses. (a) It is a defense to prosecution
73-6 under this subchapter that the defendant:
73-7 (1) is a carrier who was lawfully engaged in
73-8 transporting a pesticide or device within this state and who, on
73-9 request, permitted the department to copy all records showing the
73-10 transactions in and movement of the pesticide or device;
73-11 (2) is a public official of this state or the federal
73-12 government who was engaged in the performance of an official duty
73-13 in administering state or federal pesticide law or engaged in
73-14 pesticide research;
73-15 (3) is the manufacturer or shipper of a pesticide that
73-16 was for experimental use only by or under the supervision of an
73-17 agency of this state or of the federal government authorized by law
73-18 to conduct research in the field of pesticides and the manufacturer
73-19 or shipper held a valid experimental use permit as provided by this
73-20 chapter; and
73-21 (4) manufactured or formulated a pesticide or device
73-22 solely for export to a foreign country and prepared or packed the
73-23 pesticide or device according to the specifications or directions
73-24 of the purchaser.
73-25 (b) It is a defense to prosecution under Section
73-26 76.201(a)(3) of this code that the defendant is an applicator who,
73-27 after acquiring an unbroken container, opened and transported the
74-1 open container to and from application and storage sites as
74-2 necessary.
74-3 (c) It is an affirmative defense to prosecution under
74-4 Section 76.201(e) of this code that the defendant was using,
74-5 causing to be used, handling, storing, or disposing of the
74-6 pesticide in accordance with a label that complied with this
74-7 chapter and rules adopted under this chapter.
74-8 SECTION 2. Chapters 75 and 125, Agriculture Code, are
74-9 repealed.
74-10 SECTION 3. A license issued under Subchapter E, Chapter 76,
74-11 Agriculture Code, by a state agency other than the Department of
74-12 Agriculture that is of a type that will be issued by the department
74-13 under the changes in law to Subchapter E made by this Act remains
74-14 valid, subject to the terms and conditions under which it was
74-15 issued, for the remainder of the period for which it was issued.
74-16 When the license expires it is subject to renewal under Subchapter
74-17 E, Chapter 76, Agriculture Code, as amended by this Act.
74-18 SECTION 4. The importance of this legislation and the
74-19 crowded condition of the calendars in both houses create an
74-20 emergency and an imperative public necessity that the
74-21 constitutional rule requiring bills to be read on three several
74-22 days in each house be suspended, and this rule is hereby suspended,
74-23 and that this Act take effect and be in force from and after its
74-24 passage, and it is so enacted.