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.