By Haywood S.B. No. 1031
74R6807 JRD-F
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 bacterial, 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 <(20) "Regulatory agency" means a state agency with
5-5 responsibility for certifying applicators under Subchapter E of
5-6 this chapter.>
5-7 (23) <(21)> "Restricted-use pesticide" means a
5-8 pesticide classified as a restricted-use pesticide by the
5-9 Environmental Protection Agency.
5-10 (24) <(22)> "Thallophyte" means a
5-11 non-chlorophyll-bearing plant of a lower order than mosses and
5-12 liverworts.
5-13 (25) <(23)> "Weed" means any plant that grows where
5-14 not wanted.
5-15 (26) "Worker protection standard" means the federal
5-16 worker protection standard as found in the Code of Federal
5-17 Regulations, 40 C.F.R. Parts 156 and 170.
5-18 Sec. 76.002. Pests. The department shall determine what
5-19 organisms constitute pests for purposes of this chapter and may
5-20 include in the list of pests:
5-21 (1) any insect, snail, slug, rodent, bird, nematode,
5-22 fungus, weed, or other form of terrestrial or aquatic plant or
5-23 animal life; or
5-24 (2) any virus, bacteria, or other microorganism, other
5-25 than a virus, bacteria, or other microorganism on or in living man
5-26 or other living animals.
5-27 Sec. 76.003. State-Limited-Use Pesticides. (a) After notice
6-1 and public hearing, the department may adopt lists of
6-2 state-limited-use pesticides for the entire state or for a
6-3 designated area within the state.
6-4 (b) A pesticide may be included on a list of
6-5 state-limited-use pesticides if the department determines that,
6-6 when used as directed or in accordance with widespread and commonly
6-7 recognized practice, the pesticide requires additional restrictions
6-8 to prevent unreasonable risk to man or the environment, taking into
6-9 account the economic, social, and environmental costs and benefits
6-10 of use of the pesticide. However, the department shall not place a
6-11 pesticide on the state-limited-use list solely on the basis of
6-12 actual damage or risk of damage to water quality without first
6-13 obtaining approval from the Texas Natural Resource Conservation
6-14 <Water> Commission based on the impact of the pesticide's use on
6-15 water quality.
6-16 (c) The department shall formally request an opinion
6-17 regarding impact on water quality from the Texas Natural Resource
6-18 Conservation <Water> Commission during department consideration of
6-19 any amendments to the current list of state-limited-use pesticides.
6-20 (d) At the direction of the Texas Natural Resource
6-21 Conservation <Water> Commission in conjunction with its
6-22 responsibilities pursuant to Chapter 26, Water Code, the department
6-23 shall consider any formal request to add any pesticide to the
6-24 state-limited-use list under Subsection (b), and the department
6-25 shall issue regulations regarding the time, place, and conditions
6-26 of such pesticide's use.
6-27 (e) The department may regulate the time and conditions of
7-1 use of a state-limited-use pesticide and may require that it be
7-2 purchased or used only:
7-3 (1) with permission of the department;
7-4 (2) under direct supervision of the department in
7-5 certain areas under certain conditions; or
7-6 (3) in specified quantities and concentrations.
7-7 (f) The department may require a person authorized to
7-8 distribute or use a state-limited-use pesticide to maintain records
7-9 of the person's distribution or use and may require that the
7-10 records be kept separate from other business records.
7-11 Sec. 76.004. Department Rules. (a) After notice, the
7-12 department shall conduct at least five regional hearings throughout
7-13 the state before the adoption of any rule for carrying out the
7-14 provisions of this chapter. Thereafter, the department may adopt
7-15 rules for carrying out the provisions of this chapter, including
7-16 rules providing for:
7-17 (1) the collection, examination, and reporting of
7-18 records, devices, and samples of pesticides;
7-19 (2) the safe handling, transportation, storage,
7-20 display, distribution, or disposal of pesticides and pesticide
7-21 containers;
7-22 (3) labeling requirements for pesticides and devices
7-23 required to be registered under this chapter; and
7-24 (4) compliance with federal pesticide rules and
7-25 regulations.
7-26 (b) Any rules adopted by the department for the purpose of
7-27 protection or enhancement of water quality shall not be
8-1 inconsistent with nor less stringent than rules adopted <developed>
8-2 for the protection or enhancement of water quality by the Texas
8-3 Natural Resource Conservation <Water> Commission pursuant to
8-4 recommendations of the Groundwater Protection Committee.
8-5 Sec. 76.005. Notice of Hearing. (a) Before adopting a rule
8-6 under this chapter, the department <or a regulatory agency> shall
8-7 publish notice of a public hearing in three newspapers of general
8-8 circulation throughout the state. The notice must include the
8-9 following information relating to the hearing:
8-10 (1) the time;
8-11 (2) the place;
8-12 (3) the subject matter;
8-13 (4) a general statement of the proposed action; and
8-14 (5) the class or group of persons to be directly
8-15 affected.
8-16 (b) Notice must be published under this section before the
8-17 10th day preceding the day of the hearing.
8-18 Sec. 76.006. Pesticide Examination and Testing. (a) The
8-19 department may contract with a state college or university, state
8-20 agency, or commercial laboratory for examination of a pesticide.
8-21 The department shall let contracts with commercial laboratories
8-22 under this subsection on the basis of competitive bidding.
8-23 (b) The department may <shall> make or provide for sample
8-24 tests of a pesticide on request and may charge and collect a fee
8-25 for the tests in an amount necessary to cover expenses incurred in
8-26 making or providing for the tests.
8-27 Sec. 76.007. Interagency Cooperation. (a) The department
9-1 shall be the lead agency for pesticide regulation in Texas. In
9-2 cooperation with the U.S. Environmental Protection Agency or any
9-3 federal agency responsible for implementation of federal pesticide
9-4 law, the department shall:
9-5 (1) register pesticides for use in Texas;
9-6 (2) adopt lists of state-limited-use pesticides;
9-7 (3) provide for training, certification, and licensure
9-8 of all classes of pesticide applicators;
9-9 (4) enforce pesticide laws and regulations governing
9-10 the safe handling, use, storage, distribution, and disposal of
9-11 pesticide products; and
9-12 (5) adopt rules to carry out the provisions of this
9-13 chapter.
9-14 (b) The Texas Natural Resource Conservation <Water>
9-15 Commission shall have principal authority to regulate and control
9-16 water pollution. The department shall be the lead agency for any
9-17 federally mandated state management plan for pesticides in
9-18 groundwater. If the United States Environmental Protection Agency
9-19 adopts a final rule requiring states to implement a state
9-20 management plan for pesticides in groundwater, then the department
9-21 may by rule assess an additional pesticide registration fee of not
9-22 more than $200, in an amount determined by the department, to
9-23 recover the department's costs in implementing, monitoring, and
9-24 managing all aspects of a state management plan for pesticides in
9-25 groundwater.
9-26 (c) The department shall seek advice from the Texas Natural
9-27 Resource Conservation <Water> Commission, the Parks and Wildlife
10-1 Department, the Texas Department of Health, and the Texas
10-2 Agricultural Extension Service in reviewing applications for
10-3 special local need or emergency pesticide registrations. The
10-4 department shall act expeditiously to review any application for
10-5 special local need or emergency pesticide registrations.
10-6 (d) The department shall give written notice to the Texas
10-7 Natural Resource Conservation <Water> Commission whenever it has
10-8 probable cause to believe that serious contamination of water has
10-9 occurred as a result of use, misuse, manufacture, storage, or
10-10 disposal of pesticides so that the Texas Natural Resource
10-11 Conservation <Water> Commission may proceed with an investigation
10-12 of a possible violation of the Water Code.
10-13 (1) If the Texas Natural Resource Conservation <Water>
10-14 Commission determines that a violation of the Water Code has
10-15 occurred, the commission shall seek the remedies provided by the
10-16 Water Code.
10-17 (2) If the department determines that a violation of
10-18 the Agriculture Code has occurred regarding the use, manufacture,
10-19 storage, or disposal of pesticides, the department shall seek the
10-20 remedies provided by this code.
10-21 (3) The foregoing remedies shall not be mutually
10-22 exclusive.
10-23 (e) The Texas Natural Resource Conservation <Water>
10-24 Commission shall give written notice to the department whenever it
10-25 has probable cause to believe that serious contamination of water
10-26 has occurred as a result of the use, misuse, storage, disposal, or
10-27 manufacture of pesticides so that the department may proceed with
11-1 an investigation to determine if a violation of the Agriculture
11-2 Code has occurred.
11-3 (1) If the department determines that a violation of
11-4 the Agriculture Code has occurred, the department shall seek the
11-5 remedies provided by this code.
11-6 (2) If the Texas Natural Resource Conservation <Water>
11-7 Commission determines that a violation of the Water Code has
11-8 occurred, the Texas Natural Resource Conservation <Water>
11-9 Commission shall seek the remedies provided by the Water Code.
11-10 (3) The foregoing remedies shall not be mutually
11-11 exclusive.
11-12 (f) The department shall consult with the Texas Department
11-13 of Health before denying or canceling a pesticide registration
11-14 because of a suspected public health threat. The department shall
11-15 also coordinate enforcement efforts with the department of health
11-16 when a serious public health threat is suspected.
11-17 (g) The department <A regulatory agency> may receive
11-18 grants-in-aid from any federal agency and may enter into
11-19 cooperative agreements with a federal agency, an agency of this
11-20 state, a subdivision of this state, or an agency of another state
11-21 for the purpose of obtaining assistance in the implementation of
11-22 this chapter.
11-23 Sec. 76.008. Exemption. Sections 76.007, 76.104-76.106,
11-24 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,
11-25 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is
11-26 regulated by the Texas Structural Pest Control Act, as amended
11-27 (Article 135b-6, Vernon's Texas Civil Statutes).
12-1 Sec. 76.009. Agriculture Resources Protection Authority.
12-2 (a) The Agriculture Resources Protection Authority is an agency of
12-3 state government. The authority is composed of the following nine
12-4 members:
12-5 (1) the director of the Texas Agricultural Experiment
12-6 Station;
12-7 (2) the dean of the College of Agricultural Sciences
12-8 of Texas Tech University;
12-9 (3) the dean of The University of Texas School of
12-10 Public Health at Houston;
12-11 (4) the director of the environmental epidemiology
12-12 program of the Texas Department of Health;
12-13 (5) the chief of the groundwater conservation section
12-14 of the Texas Natural Resource Conservation <Water> Commission;
12-15 (6) the director of the Institute for International
12-16 Agribusiness Studies of Prairie View A&M University;
12-17 (7) one person appointed by the governor to represent
12-18 the interests of consumers;
12-19 (8) a producer of agricultural products appointed by
12-20 the governor; and
12-21 (9) the commissioner of agriculture.
12-22 (b) A person appointed by the governor, with the advice and
12-23 consent of the senate, under Subdivision (7) or (8) of Subsection
12-24 (a) of this section serves a two-year term ending on February 1 of
12-25 each odd-numbered year. A vacancy in one of those positions shall
12-26 be filled by appointment by the governor for the unexpired term.
12-27 (c) The commissioner of agriculture is the presiding officer
13-1 of the authority.
13-2 (d) The authority shall meet quarterly and at the call of
13-3 the presiding officer or a majority of the members. To take an
13-4 action, the authority must approve the action by a concurring vote
13-5 of a majority of the total membership of the authority.
13-6 (e) A member may not receive compensation for service as a
13-7 member of the authority. A member is entitled to reimbursement for
13-8 actual and necessary expenses incurred in the performance of the
13-9 functions of the authority, subject to any limitations on
13-10 reimbursement provided by the General Appropriations Act.
13-11 (f) The delegation of functions under this section is
13-12 designed to avoid overlapping responsibilities, to provide a means
13-13 for all involved agencies to participate in the regulation of
13-14 pesticides, and to clarify various areas of responsibility.
13-15 (g) The authority is the coordinating body for the policies
13-16 and programs of management, regulation, and control of pesticides
13-17 conducted by the department, the State Soil and Water Conservation
13-18 Board, the Texas Agricultural Extension Service, the Texas
13-19 Department of Health, the Texas Natural Resource Conservation
13-20 <Water> Commission, and the Texas Structural Pest Control Board.
13-21 Notwithstanding any other provision of this code or of any other
13-22 law, the authority may:
13-23 (1) adopt any rule relating to pesticides, including a
13-24 rule that amends or repeals an existing rule, except that the
13-25 authority may not:
13-26 (A) <adopt, amend, or repeal a rule under
13-27 Chapter 125 of this code;>
14-1 <(B)> repeal a rule that was adopted by an
14-2 agency for which the authority is the coordinating body and that
14-3 was in effect on May 1, 1989; or
14-4 (B) <(C)> amend a rule in effect on May 1, 1989,
14-5 that would make the rule less protective of the public health,
14-6 safety, or welfare;
14-7 (2) review and approve or disapprove any rule relating
14-8 to pesticides that is proposed by an agency for which the authority
14-9 is the coordinating body<, except a rule under Chapter 125 of this
14-10 code>;
14-11 (3) cooperate with and advise the department, the
14-12 State Soil and Water Conservation Board, the Texas Agricultural
14-13 Extension Service, the Texas Department of Health, the Texas
14-14 Natural Resource Conservation <Water> Commission, the Texas
14-15 Structural Pest Control Board, and any other state agency that may
14-16 be concerned with the regulation of pesticides and notify those
14-17 agencies of any rule the authority intends to adopt;
14-18 (4) collect, analyze, and disseminate information
14-19 necessary for the effective operation of all existing or
14-20 contemplated programs regulating pesticides;
14-21 (5) provide professional advice to private agencies
14-22 and citizens of this state on matters relating to pesticides in
14-23 cooperation with other state agencies, with professional groups,
14-24 and with either state or private educational institutions;
14-25 (6) accept gifts, devises, and bequests and, with the
14-26 approval of the governor, comply with terms and conditions of any
14-27 grant to accomplish any of the purposes of the authority;
15-1 (7) inform and advise the governor on matters
15-2 involving pesticides and prepare and recommend to the governor and
15-3 to the legislature any legislation the authority considers proper
15-4 for the management and control of pesticides;
15-5 (8) make annual reports to the governor and the
15-6 appropriate legislative oversight committees;
15-7 (9) exempt any federal or state agency from any
15-8 regulatory provision if the authority determines that emergency
15-9 conditions exist that require the exemption; and
15-10 (10) notwithstanding any conflicting or inconsistent
15-11 provision in this code, hear and determine all appeals from orders
15-12 entered, by an agency for which the authority is the coordinating
15-13 body, under this chapter <or Chapter 75 or 125 of this code>.
15-14 (h) An agency for which the authority is the coordinating
15-15 body may not adopt a rule disapproved by the authority under
15-16 Subsection (g)(2) of this section.
15-17 (i) To ensure due process, the commissioner, because of the
15-18 commissioner's statutory power over departmental orders, may not
15-19 participate in the discussions or the determinations to be reached
15-20 on appeals to the authority under Subsection (g)(10) of this
15-21 section.
15-22 (j) The commissioner shall:
15-23 (1) as necessary, employ personnel as the duties of
15-24 the authority may require and to the extent of legislative
15-25 appropriations to the authority;
15-26 (2) keep an accurate and complete record of all
15-27 authority meetings and hearings of the authority and maintain legal
16-1 custody of all books, papers, documents, and other records of the
16-2 authority;
16-3 (3) administer this chapter and <Chapters 75 and 125
16-4 of this code and> the rules adopted by the authority; and
16-5 (4) assign, reassign, or delegate the administrative
16-6 and enforcement functions assigned to the commissioner by this
16-7 subsection or by rules or policies established under this
16-8 subsection to one or more of the divisions or other units within
16-9 the department or to one or more employees of the department.
16-10 SUBCHAPTER B. LABELING
16-11 Sec. 76.021. Labeling Information. (a) Each pesticide
16-12 distributed in this state shall bear a label containing the
16-13 following information relating to the pesticide:
16-14 (1) the information required by Section 3 of FIFRA, if
16-15 the pesticide is subject to registration under that law; or
16-16 (2) the following information, if the pesticide is not
16-17 subject to registration under Section 3 of FIFRA:
16-18 (A) <(1)> the name, brand, or trademark under
16-19 which the pesticide is distributed;
16-20 (B) <(2)> the name and percentage of each active
16-21 ingredient and the total percentage of inert ingredients;
16-22 (C) <(3)> directions for use that are necessary
16-23 for effecting the purpose for which the product is intended and, if
16-24 complied with, are adequate for the protection of health and the
16-25 environment;
16-26 (D) <(4)> if the pesticide contains any form of
16-27 arsenic, the percentage of total water-soluble arsenic, calculated
17-1 as elementary arsenic;
17-2 (E) <(5)> the name and address of the
17-3 manufacturer, registrant, or person for whom the pesticide was
17-4 manufactured;
17-5 (F) <(6)> numbers or other symbols to identify
17-6 the lot or batch of the manufacturer of the contents of the
17-7 package; and
17-8 (G) <(7)> a clear display of appropriate
17-9 warnings, symbols, and cautionary statements commensurate with the
17-10 toxicity or use classification of the pesticide.
17-11 (b) <The labeling of each pesticide distributed in this
17-12 state shall state the use classification for which the product is
17-13 registered.>
17-14 <(c)> The label bearing the ingredient statement under
17-15 Subsection (a)(2)(B) of this section shall be on or attached to
17-16 that part of the immediate container that is presented or displayed
17-17 under customary conditions of purchase and, if the ingredient
17-18 statement cannot be clearly read without removing the outer
17-19 wrapping, on any outer container or wrapper of a retail package.
17-20 Sec. 76.022. Conspicuous Lettering. Any word, statement, or
17-21 information required by this chapter to appear on a label or in
17-22 labeling of a pesticide or device registered by the department
17-23 shall be prominently and conspicuously placed so that, if compared
17-24 with other material on the label or in the labeling, it is likely
17-25 to be understood by the ordinary individual under customary
17-26 conditions of use.
17-27 Sec. 76.023. Misbranded Pesticide or Device. (a) A
18-1 pesticide or device is misbranded if:
18-2 (1) it is subject to registration under Section 3 of
18-3 FIFRA and it does not fully comply with the labeling requirements
18-4 of the United States Environmental Protection Agency; or
18-5 (2) it is not subject to registration under Section 3
18-6 of FIFRA and:
18-7 (A) <(1)> its labeling bears a statement,
18-8 design, or graphic representation relating to the pesticide or
18-9 device, or the ingredients of either, that is false or misleading
18-10 in any particular;
18-11 (B) <(2)> it is an imitation of or is
18-12 distributed under the name of another pesticide or device; or
18-13 (C) <(3)> it is not conspicuously labeled in
18-14 accordance with Section 76.022 of this code.
18-15 (b) A pesticide is misbranded if:
18-16 (1) its labeling bears any reference to registration
18-17 under this chapter, unless the reference is required by a rule
18-18 adopted under this chapter;
18-19 (2) it does not bear a label as required by Section
18-20 76.021 of this code; or
18-21 (3) its label does not bear information as required by
18-22 Section 76.021 of this code or a rule adopted under this chapter.
18-23 SUBCHAPTER C. REGISTRATION
18-24 Sec. 76.041. Registration Required. (a) Except as provided
18-25 by Subsection (b), <or> (c), (d), or (e) of this section, before a
18-26 pesticide is distributed in this state or is delivered for
18-27 transportation or is transported in intrastate commerce or between
19-1 points within this state through a point outside the state, it must
19-2 be registered with the department. The manufacturer or other
19-3 person whose name appears on the label of the pesticide shall
19-4 register the pesticide.
19-5 (b) Registration is not required for the transportation of a
19-6 pesticide from one plant or warehouse to another plant or warehouse
19-7 operated by the same person if the pesticide is used solely at the
19-8 second plant or warehouse as a constituent of a pesticide that is
19-9 registered under this chapter.
19-10 (c) Registration is not required for a pesticide that is not
19-11 for use in this state and is only being manufactured, transported,
19-12 or distributed for use outside of this state.
19-13 (d) Registration is not required for a chemical compound
19-14 being used only to develop plot data as to the possible pesticidal
19-15 action of the chemical.
19-16 (e) Unless otherwise required by rule of the department,
19-17 registration is not required for a pesticide that is exempt from
19-18 registration with the United States Environmental Protection
19-19 Agency.
19-20 (f) The department may not register under Chapter 63 a
19-21 fertilizer that contains a pesticide that must be registered with
19-22 the department under this chapter unless the constituent pesticide
19-23 is first registered with the department. The Texas Feed and
19-24 Fertilizer Control Service shall consult with the department about
19-25 the current registration status of a pesticide before registering
19-26 any fertilizer mix containing that pesticide under Chapter 63. The
19-27 department shall notify the Texas Feed and Fertilizer Control
20-1 Service of any changes to a pesticide registration.
20-2 Sec. 76.042. Content of Registration Application. (a) The
20-3 application for registration of a pesticide shall include:
20-4 (1) the name and address of the applicant and the name
20-5 and address of the person whose name will appear on the pesticide
20-6 label, if not the applicant's;
20-7 (2) the name of the pesticide;
20-8 (3) a complete copy of all labeling to accompany the
20-9 pesticide and a statement of all claims to be made for it,
20-10 including the directions for use and, if the pesticide is required
20-11 to be registered with the United States Environmental Protection
20-12 Agency, a copy of the Environmental Protection Agency stamped
20-13 accepted labeling and any applicable comment pages;
20-14 (4) the use classification, whether for restricted or
20-15 general use, as provided by the Federal Insecticide, Fungicide, and
20-16 Rodenticide Act, as amended, or by a rule adopted under that Act;
20-17 (5) the use classification proposed by the applicant,
20-18 if the pesticide is not required by federal law to be registered
20-19 under a use classification; and
20-20 (6) other information required by the department for
20-21 determining the eligibility for registration.
20-22 (b) The department may require the applicant to submit the
20-23 complete formula for a pesticide, including active and inert
20-24 ingredients, as a prerequisite to registration.
20-25 (c) The department may require a full description of the
20-26 tests made and the results of the tests on which claims are based
20-27 before approving registration of a pesticide that is not registered
21-1 under federal law or for which federal or state restrictions on use
21-2 are being considered.
21-3 (d) A person located outside this state, as a condition to
21-4 registration of a pesticide, shall file with the department a
21-5 written instrument designating a resident agent for service of
21-6 process in actions taken in the administration and enforcement of
21-7 this chapter. Instead of designating a resident agent, the person
21-8 may designate in writing the secretary of state as the recipient of
21-9 service of process for the person in this state.
21-10 Sec. 76.043. Expiration and Renewal. (a) Registration of a
21-11 pesticide expires on the second anniversary of the date of its
21-12 registration or registration renewal unless the department adopts
21-13 by rule a system under which registrations expire on specified
21-14 dates during a year <annually on December 31>.
21-15 (b) A person who applies for renewal of registration shall
21-16 include in the renewal application only information that is
21-17 different from the information furnished at the time of the most
21-18 recent registration or renewal.
21-19 (c) A registration in effect <on December 31> for which a
21-20 renewal application has been filed and renewal fee has been paid
21-21 before its expiration date continues in effect until the department
21-22 notifies the applicant that the registration has been renewed or
21-23 denied renewal.
21-24 Sec. 76.044. Fees. (a) A maximum two-year <nonrefundable>
21-25 fee of $200 <$100> for each pesticide to be registered must be
21-26 submitted with an application for registration or renewal of
21-27 registration. The department may prorate registration fees on a
22-1 monthly basis.
22-2 (b) A person who fails to apply for renewal of registration
22-3 on or before the expiration date of the registration must pay, in
22-4 addition to the renewal fee, the late fee provided by Section
22-5 12.024 of this code for each brand to be renewed.
22-6 <Sec. 76.045. DEPARTMENT APPROVAL. The department may not
22-7 approve an application for registration unless the department finds
22-8 that:>
22-9 <(1) the composition of the pesticide warrants the
22-10 proposed claims made for it; and>
22-11 <(2) the pesticide, its labeling, and other materials
22-12 required to be submitted under this chapter comply with the
22-13 requirements of this chapter.>
22-14 Sec. 76.046. Registration for Special Local Need. (a) The
22-15 department may register a pesticide for additional uses and methods
22-16 of application not covered by federal registration <regulation> but
22-17 not inconsistent with federal law, for the purpose of meeting a
22-18 special local need.
22-19 (b) Before approving a registration under this section, the
22-20 department shall determine that the applicant meets the other
22-21 requirements of this subchapter.
22-22 Sec. 76.047. Denial or Cancellation of Registration.
22-23 (a) If the department has reason to believe that any use of a
22-24 registered pesticide is in violation of a provision of this chapter
22-25 or is dangerous or harmful, the department may conduct a hearing on
22-26 denial or cancellation of registration.
22-27 (b) The department shall issue written notice of a hearing
23-1 under this section to the registrant of the pesticide. The notice
23-2 must contain a statement of the time and place of the hearing. The
23-3 hearing shall be held after the 10th day following the day on which
23-4 the notice is issued.
23-5 (c) After opportunity at the hearing for presentation of
23-6 evidence by interested parties, the department may deny or cancel
23-7 the registration of the pesticide if the department finds that:
23-8 (1) use of the pesticide has demonstrated
23-9 uncontrollable adverse environmental effects;
23-10 (2) use of the pesticide is a detriment to the
23-11 environment that outweighs the benefits derived from its use;
23-12 (3) even if properly used, the pesticide is
23-13 detrimental to vegetation, except weeds, to domestic animals, or to
23-14 public health and safety;
23-15 (4) a false or misleading statement about the
23-16 pesticide has been made or implied by the registrant or the
23-17 registrant's agent, in writing, verbally, or through any form of
23-18 advertising literature; or
23-19 (5) the registrant has not complied or the pesticide
23-20 does not comply with a requirement of this chapter or a rule
23-21 adopted under this chapter.
23-22 Sec. 76.048. Experimental Use Permit. (a) The department
23-23 may issue an experimental use permit if the department determines
23-24 that the applicant needs the permit in order to accumulate data
23-25 necessary to register a pesticide under this chapter.
23-26 (b) A person may file an application for an experimental use
23-27 permit before or after applying for registration.
24-1 (c) Use of a pesticide under an experimental use permit is
24-2 under the supervision of the department and is subject to the terms
24-3 and conditions, and valid for a period of time, prescribed by the
24-4 department in the permit.
24-5 (d) The department may charge a fee for issuing a permit
24-6 under this section in an amount, prorated on a monthly basis, equal
24-7 to the amount charged for registration under Section 76.044(a).
24-8 (e) The department may revoke an experimental use permit at
24-9 any time if the department finds that:
24-10 (1) the terms or conditions of the permit are being
24-11 violated; or
24-12 (2) the terms and conditions of the permit are
24-13 inadequate to avoid any unreasonable risk to man or the
24-14 environment, taking into account the economic, social, and
24-15 environmental costs and benefits of use of the pesticide.
24-16 SUBCHAPTER D. LICENSING OF DEALERS
24-17 Sec. 76.071. License Required. (a) A person may not
24-18 distribute in this state a restricted-use or state-limited-use
24-19 pesticide or regulated herbicide without a valid current pesticide
24-20 dealer license issued by the department.
24-21 (b) Except as otherwise provided by this section, a
24-22 pesticide dealer must obtain a license for each location in the
24-23 state that is used for distribution. If the person does not have a
24-24 place of business in this state, the person may obtain one license
24-25 for all out-of-state locations, but shall file as a condition to
24-26 licensing a designation of an agent for service of process as
24-27 provided by Section 76.042(d) of this code.
25-1 (c) A person must apply for a pesticide dealer license on
25-2 forms prescribed by the department.
25-3 Sec. 76.072. Expiration. A pesticide dealer license expires
25-4 on the second anniversary of the date of its granting or renewal
25-5 unless the department by rule adopts a system under which licenses
25-6 expire on specified dates during a <December 31 of each> year.
25-7 Sec. 76.073. Fees. (a) An application for a pesticide
25-8 dealer license must be accompanied by a biennial <nonrefundable
25-9 annual> registration fee of not more than $200 <$100>, as fixed by
25-10 the department. The department may prorate fees on a monthly
25-11 basis.
25-12 (b) A person who fails to apply for renewal of a pesticide
25-13 dealer license on or before the expiration date of the license must
25-14 pay, in addition to the renewal fee, the late fee provided by
25-15 Section 12.024 of this code.
25-16 <(c) A person licensed as a dealer under Chapter 75 of this
25-17 code may not be required to pay an additional fee for the license
25-18 prescribed in this subchapter.>
25-19 Sec. 76.074. Display of Dealer License. (a) Each dealer
25-20 shall prominently display the pesticide dealer license in the
25-21 dealer's place of business.
25-22 (b) Failure to display a license as required by this section
25-23 is a ground for revocation of the license.
25-24 Sec. 76.075. Records. (a) A person required to obtain a
25-25 dealer's license by Section 76.071 shall record each distribution
25-26 of a restricted-use or state-limited-use pesticide and shall
25-27 maintain a copy of the record for at least two years after the date
26-1 of the distribution.
26-2 (b) The department shall adopt rules that prescribe the
26-3 information to be stated in the records required by this section.
26-4 (c) The department may require that a copy of the records
26-5 required by this section be submitted periodically to the
26-6 department. The copies submitted to the department are public
26-7 information.
26-8 (d) The department may revoke a dealer's license if the
26-9 licensee fails to submit a copy of a record as required under
26-10 Subsection (c) or makes false or fraudulent records, invoices, or
26-11 reports. <(a) A licensed pesticide dealer shall maintain for a
26-12 period of two years records of each restricted-use and
26-13 state-limited-use pesticide sold. The department shall prescribe
26-14 the information to be included in the records.>
26-15 <(b) The department may require a licensed pesticide dealer
26-16 to submit records to the department. Failure to submit a record
26-17 requested by the department is a ground for revocation of a
26-18 license.>
26-19 Sec. 76.076. DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION
26-20 OF LICENSE. (a) The department may deny an application for a
26-21 dealer's license if the applicant fails to comply with this
26-22 chapter. The department may revoke, modify, or suspend a license,
26-23 assess an administrative penalty, place on probation a person whose
26-24 license has been suspended, or reprimand a licensee for a violation
26-25 of this chapter or a rule adopted by the department under this
26-26 chapter.
26-27 (b) If a license suspension is probated, the department may
27-1 require the person to:
27-2 (1) report regularly to the department on matters that
27-3 are the basis of the probation; or
27-4 (2) limit business to the areas prescribed by the
27-5 department.
27-6 (c) If the department proposes to deny a person's
27-7 application for a license or revoke, modify, or suspend a person's
27-8 license, the person is entitled to a hearing before a hearings
27-9 officer designated by the department. The decision of the
27-10 department is appealable to district court in the manner prescribed
27-11 by Chapter 2001, Government Code. <(a) The department may refuse
27-12 to issue a pesticide dealer license if the applicant fails to
27-13 comply with this subchapter.>
27-14 <(b) The department shall revoke, modify, or suspend a
27-15 license, assess an administrative penalty, place on probation a
27-16 person whose license has been suspended, or reprimand a licensee if
27-17 the licensee fails to comply with this subchapter or a rule adopted
27-18 by the department under this subchapter.>
27-19 <(c) If a license suspension is probated, the department may
27-20 require the person to:>
27-21 <(1) report regularly to the department on matters
27-22 that are the basis of the probation;>
27-23 <(2) limit practice to the areas prescribed by the
27-24 department; or>
27-25 <(3) continue or renew professional education until
27-26 the person attains a degree of skill satisfactory to the department
27-27 in those areas that are the basis of the probation.>
28-1 <(d) If the department proposes to deny a person's
28-2 application for a pesticide dealer license or to revoke, modify, or
28-3 suspend a person's license, the person is entitled to a hearing
28-4 before a hearings officer designated by the department. The
28-5 decision of the department is appealable in the same manner as
28-6 provided for contested cases under the Administrative Procedure and
28-7 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
28-8 Statutes).>
28-9 Sec. 76.077. Exceptions. (a) This subchapter does not
28-10 apply to a manufacturer or formulator of a pesticide who does not
28-11 sell directly to the user.
28-12 (b) This subchapter does not apply to a licensed pesticide
28-13 applicator who:
28-14 (1) distributes restricted-use or state-limited-use
28-15 pesticides only as an integral part of the pesticide application
28-16 business; and
28-17 (2) dispenses the pesticides only through equipment
28-18 used in the pesticide application business.
28-19 (c) This subchapter does not apply to a federal, state,
28-20 county, or municipal agency that provides pesticides only for its
28-21 own programs.
28-22 SUBCHAPTER E. USE AND APPLICATION
28-23 Sec. 76.101. Coordination. (a) The department is the lead
28-24 agency in the regulation of pesticide use and application and is
28-25 responsible for coordinating activities of state agencies, except
28-26 as provided by Section 76.007(b) of this code and by Chapter 26 of
28-27 the Water Code. The department shall submit a state plan for the
29-1 licensing of pesticide applicators to the administrator of the
29-2 Environmental Protection Agency.
29-3 (b) The department shall coordinate, plan, and approve
29-4 training programs and shall use the public and private resources of
29-5 this state, including state universities, colleges, junior
29-6 colleges, community colleges, the Texas Agricultural Extension
29-7 Service, and the Texas experiment station. The department and the
29-8 Texas Agricultural Extension Service shall adopt a memorandum of
29-9 understanding to jointly coordinate, plan, and approve the training
29-10 programs for private applicators.
29-11 (c) The department shall make plans under this section on
29-12 the basis of convenience to applicants, thoroughness of preparation
29-13 and testing, and maximum economy in expenditures for this purpose.
29-14 The department shall make full use of grants-in-aid and cooperative
29-15 agreements in administering this subchapter.
29-16 (d)(1) Except as otherwise provided by this subsection, no
29-17 city, town, county, or other political subdivision of this state
29-18 shall adopt any ordinance, rule, or regulation regarding pesticide
29-19 sale or use.
29-20 (2) Nothing in this subsection shall be construed to
29-21 limit the authority of a city, town, or county to:
29-22 (A) encourage locally approved and provided
29-23 educational material concerning a pesticide;
29-24 (B) zone for the sale or storage of such
29-25 products;
29-26 (C) adopt fire or building regulations as
29-27 preventative measures to protect the public and emergency services
30-1 personnel from an accident or emergency involving such products,
30-2 including regulations governing the storage of such products or
30-3 governing fumigation and thermal insecticidal fogging operations;
30-4 (D) provide or designate sites for the disposal
30-5 of such products;
30-6 (E) route hazardous materials; or
30-7 (F) regulate discharge to sanitary sewer
30-8 systems.
30-9 (3) This subsection shall not prevent a city, town,
30-10 county, or any political subdivision from complying with any
30-11 federal or state law or regulation. This subsection shall not
30-12 prevent a city, town, county, or any political subdivision from
30-13 attaining or maintaining compliance with federal or state
30-14 environmental standards including Texas water quality standards. A
30-15 city, town, county, or other political subdivision may take any
30-16 action otherwise prohibited by this subsection in order to comply
30-17 with any federal requirements, to avoid any federal or state
30-18 penalties or fines, or to attain or maintain federal or state
30-19 environmental standards including Texas water quality standards.
30-20 <(4) Nothing in this subsection may be construed to
30-21 affect Chapter 75 of this code.>
30-22 Sec. 76.102. Agencies Responsible for Licensing Pesticide
30-23 Applicators. (a) The department shall license pesticide
30-24 applicators involved in the following license use categories:
30-25 (1) agricultural pest control, including animal pest
30-26 control;
30-27 (2) forest pest control;
31-1 (3) ornamental and turf pest control, except as
31-2 provided by the Texas Structural Pest Control Act, as amended
31-3 (Article 135b-6, Vernon's Texas Civil Statutes);
31-4 (4) seed treatments;
31-5 (5) right-of-way pest control;
31-6 (6) regulatory pest control;
31-7 (7) aquatic pest control; <and>
31-8 (8) demonstration pest control; and
31-9 (9) other license use categories as necessary to
31-10 comply with federal requirements. The department may not adopt
31-11 license use categories that are designated by statutes for
31-12 regulation by another agency.
31-13 (b) The Texas Structural Pest Control Board <Texas
31-14 Department of Health> shall license pesticide applicators involved
31-15 in the license use category of health-related pest control.
31-16 Sec. 76.103. Program Contingent on Federal Funds. (a) The
31-17 licensing of commercial applicators, noncommercial applicators, and
31-18 private applicators is contingent on the availability of federal
31-19 funds to pay part of the costs of administering and enforcing the
31-20 program.
31-21 (b) If federal funds and other funds made available for this
31-22 program are not sufficient to pay all costs of administering and
31-23 enforcing the program, the department shall certify that fact and
31-24 discontinue the licensing of commercial applicators, noncommercial
31-25 applicators, and private applicators. The department shall publish
31-26 notice of the discontinuance of the program in the Texas Register.
31-27 (c) If sufficient funds become available after
32-1 discontinuance, the department shall certify the availability of
32-2 sufficient funds to pay all costs of administration and enforcement
32-3 of the program and shall resume the licensing of commercial
32-4 applicators, noncommercial applicators, and private applicators.
32-5 The department shall publish notice of resumption of the program in
32-6 the Texas Register.
32-7 (d) The department shall determine the effective date of
32-8 discontinuance or resumption of the program, but the date may not
32-9 be before the date of publication of notice in the Texas Register.
32-10 (e) During any period in which the program has been
32-11 discontinued, a person is not required to have a license provided
32-12 by this subchapter in order to use pesticides, but a person may be
32-13 prosecuted for acts committed or omitted when the program was in
32-14 effect.
32-15 Sec. 76.104. Department <AGENCY> RULES FOR APPLICATION OF A
32-16 PESTICIDE. (a) The department <head of each regulatory agency>
32-17 may, after notice and public hearing, adopt rules to carry out the
32-18 provisions of this subchapter <for which the agency is
32-19 responsible>.
32-20 (b) Rules adopted under this section may:
32-21 (1) prescribe methods to be used in the application of
32-22 a restricted-use or state-limited-use pesticide;
32-23 (2) relate to the time, place, manner, method, amount,
32-24 or concentration of pesticide application or to the materials used
32-25 in pesticide application; and
32-26 (3) restrict or prohibit use of a restricted-use or
32-27 state-limited-use pesticide in designated areas during specific
33-1 periods of time.
33-2 (c) The department <A regulatory agency> may adopt a rule
33-3 under this section only after consideration of precautions or
33-4 restrictions necessary to prevent unreasonable risk to man or the
33-5 environment, taking into account the economic, social, and
33-6 environmental costs and benefits of the use of the pesticide.
33-7 (d) The department shall adopt worker protection standards
33-8 for pesticides if the federal worker protection standard is not
33-9 adopted or under consideration for adoption. The department may
33-10 adopt other rules for the protection of the health, safety, and
33-11 welfare of farm workers and pesticide handlers.
33-12 Sec. 76.105. License Required. (a) A person may not
33-13 purchase or use a restricted-use or state-limited-use pesticide
33-14 unless the person is:
33-15 (1) licensed as a commercial applicator, noncommercial
33-16 applicator, or private applicator and authorized by the license to
33-17 purchase or use the restricted-use or state-limited-use pesticide
33-18 in the license use categories covering the proposed pesticide use;
33-19 (2) an individual acting under the direct supervision
33-20 of a licensed applicator, except as provided in Subsection (b) of
33-21 this section and in Sections 76.003(e) and 76.116(e); or
33-22 (3) a certified private applicator as defined in
33-23 Section 76.112(j) of this code.
33-24 (b) An individual is under the direct supervision of a
33-25 licensed noncommercial, licensed commercial, or <a> licensed
33-26 private applicator if the individual is acting under the
33-27 instructions and control of a licensed noncommercial, licensed
34-1 commercial, or <a> licensed private applicator who is responsible
34-2 for the actions of the individual and who is available if and when
34-3 needed. A licensed applicator may not supervise an applicator
34-4 whose license or certificate is under suspension or revocation.
34-5 The licensed noncommercial, licensed commercial, or licensed
34-6 private applicator is not required to be physically present at the
34-7 time and place of the pesticide application.
34-8 (c) <An individual is under the direct supervision of a
34-9 licensed commercial applicator if the individual is acting under
34-10 the instructions and control of a licensed commercial applicator
34-11 who is responsible for the actions of the individual and who is
34-12 continuously physically present at the time and place of the
34-13 pesticide application.>
34-14 <(d)> A licensed applicator is responsible for assuring that
34-15 the person working under the licensee's direct supervision is
34-16 knowledgeable of the label requirements and rules and regulations
34-17 governing the use of <the particular> pesticides <being used by the
34-18 individual>. A licensed applicator satisfies the requirements of
34-19 this subsection if the person working under the licensee's direct
34-20 supervision has been trained as a handler under the federal worker
34-21 protection standard <attends a program conducted by the department
34-22 that is designed to make the person knowledgeable of the label
34-23 requirements and rules and regulations governing the use of
34-24 pesticides>.
34-25 (d) <(e)> A person who is authorized under this chapter to
34-26 use restricted-use or state-limited-use pesticides shall comply
34-27 with all applicable federal and state rules, regulations, and court
35-1 orders regarding the use of restricted-use or state-limited-use
35-2 pesticides.
35-3 (e) A person may not purchase a restricted-use or
35-4 state-limited-use pesticide unless the person is a licensed or a
35-5 certified applicator or authorized by a licensed or certified
35-6 applicator to purchase or take delivery for the applicator.
35-7 (f) The other provisions of this section notwithstanding,
35-8 the department may adopt rules or establish programs that the U.S.
35-9 Environmental Protection Agency or another federal agency requires
35-10 as a condition for receiving:
35-11 (1) approval to authorize use of certain
35-12 restricted-use or state-limited-use pesticides;
35-13 (2) federal funding for licensing or certification of
35-14 pesticide applicators;
35-15 (3) federal funding for pesticide law enforcement
35-16 efforts; or
35-17 (4) other federal funding related to pesticide risk
35-18 reduction.
35-19 (g) The other provisions of this chapter notwithstanding, if
35-20 the U.S. Environmental Protection Agency or another federal agency
35-21 imposes on the state standards for certification of commercial,
35-22 noncommercial, or private pesticide applicators, the department may
35-23 adopt by rule the federal standards for each classification of
35-24 applicators for which the federal standards are imposed.
35-25 Sec. 76.106. Classification of Licenses. (a) The
35-26 department <head of each regulatory agency> may classify commercial
35-27 applicator and noncommercial applicator licenses under
36-1 subcategories of license use categories according to the subject,
36-2 method, or place of pesticide application.
36-3 (b) The department <A regulatory agency head> shall
36-4 establish separate testing requirements for licensing in each
36-5 license use category for which the agency is responsible and may
36-6 establish separate testing requirements for licensing in
36-7 subcategories within a license use category.
36-8 (c) The department may charge a <nonrefundable> testing fee
36-9 of not more than $20 for testing in each license use category or
36-10 subcategory as determined by the department.
36-11 Sec. 76.107. Licensing by More Than One Agency. (a) A
36-12 person who wants to be licensed as a pesticide applicator under
36-13 license use categories regulated by more than one regulatory agency
36-14 may do so by paying a single license fee to the agency regulating
36-15 the person's primary business and meeting licensing requirements
36-16 for each category for which the person desires licensing.
36-17 (b) A person licensed under this section must pay testing
36-18 fees required by each regulatory agency.
36-19 Sec. 76.108. Commercial Applicator License. (a) A person
36-20 who operates a business or is an employee of a business that
36-21 applies state-limited-use or restricted-use pesticides to the land
36-22 of another person for hire or compensation and who is required to
36-23 be licensed by Section 76.105 of this code shall apply to the
36-24 department <appropriate regulatory agency> for a commercial
36-25 applicator license issued for the license use categories and
36-26 subcategories in which the pesticide application is to be made.
36-27 (b) A person shall apply for an original or renewal
37-1 commercial applicator license on forms prescribed by the department
37-2 <regulatory agency>. The application shall include information as
37-3 required by rule of the department <head of the agency> and must be
37-4 accompanied by an <a nonrefundable> annual license fee of no more
37-5 than $150, as fixed by the department <head of the agency>.
37-6 (c) The department <head of a regulatory agency> may not
37-7 issue an original commercial applicator license before the
37-8 applicant has:
37-9 (1) filed with the agency evidence of financial
37-10 responsibility as required by Section 76.111 of this code; and
37-11 (2) passed an examination under Section 76.110 of this
37-12 code.
37-13 (d) The department <head of a regulatory agency> may not
37-14 issue a commercial applicator license if it has been determined
37-15 that:
37-16 (1) the applicant has been convicted of a felony
37-17 involving moral turpitude in the last five years;
37-18 (2) the applicant has had a license issued under this
37-19 subchapter revoked within the last two years;
37-20 (3) the applicant, or the applicant's representative
37-21 if the applicant is a business, has been unable to satisfactorily
37-22 fulfill licensing requirements; or
37-23 (4) the applicant for any other reason cannot be
37-24 expected to be able to fulfill the provisions of this subchapter
37-25 applicable to the license use category for which application is
37-26 made.
37-27 (e) An individual to whom a commercial applicator license is
38-1 issued is authorized to purchase, use, and supervise the use of
38-2 restricted-use and state-limited-use pesticides in the license use
38-3 categories and subcategories in which the individual is licensed.
38-4 (f) If a license is issued in the name of a business, the
38-5 business must have a licensed applicator employed at all times.
38-6 Failure to have a licensed applicator employed is a ground for
38-7 revocation of a business commercial applicator license.
38-8 (g) As a condition to issuance of a commercial applicator
38-9 license, an applicant located outside this state shall file with
38-10 the department <regulatory agency> a written instrument designating
38-11 a resident agent for service of process in actions taken in the
38-12 administration and enforcement of this chapter. Instead of
38-13 designating a resident agent the applicant may designate in writing
38-14 the secretary of state as the recipient of service of process for
38-15 the applicant in this state.
38-16 Sec. 76.109. Noncommercial Applicator License. (a) A
38-17 person who is required to be licensed under Section 76.105 of this
38-18 code but who does not qualify as a commercial applicator or a
38-19 private applicator shall apply to the department <appropriate
38-20 regulatory agency> for a noncommercial applicator license issued
38-21 for the license use categories and subcategories in which the
38-22 pesticide application is to be made.
38-23 (b) A person shall apply for an original or renewal
38-24 noncommercial applicator license on forms prescribed by the
38-25 department <regulatory agency>. An <A nongovernmental> applicant
38-26 shall include with the application an <a nonrefundable> annual
38-27 license fee of not more than $100, as fixed by the department <head
39-1 of the regulatory agency>. <A regulatory agency may not charge a
39-2 governmental entity applicant a license fee.>
39-3 (c) The department <head of a regulatory agency> may not
39-4 issue an original noncommercial applicator license before the
39-5 applicant has passed an examination under Section 76.110 of this
39-6 code.
39-7 (d) An individual to whom a noncommercial applicator license
39-8 is issued is authorized to purchase, use, and supervise the use of
39-9 restricted-use and state-limited-use pesticides in the license use
39-10 categories and subcategories in which the individual is licensed.
39-11 (e) If a license is issued in the name of a governmental
39-12 entity, the entity must have a licensed applicator employed at all
39-13 times. Failure to have a licensed applicator employed is a ground
39-14 for revocation of a governmental entity noncommercial applicator
39-15 license.
39-16 (f) As a condition to issuance of a noncommercial applicator
39-17 license, an applicant located outside this state shall file with
39-18 the department <regulatory agency> a written instrument designating
39-19 a resident agent for service of process in actions taken in the
39-20 administration and enforcement of this chapter. Instead of
39-21 designating a resident agent the applicant may designate in writing
39-22 the secretary of state as the recipient of service of process for
39-23 the applicant in this state.
39-24 Sec. 76.110. Commercial and Noncommercial Applicator
39-25 Examination; Reciprocal Agreements. (a) Each person applying for
39-26 a license as a commercial applicator or a noncommercial applicator
39-27 must pass an examination demonstrating that the person:
40-1 (1) is properly qualified to perform functions
40-2 associated with pesticide application to a degree directly related
40-3 to the nature of the activity and the associated responsibility;
40-4 and
40-5 (2) has knowledge of the use and effects of
40-6 restricted-use and state-limited-use pesticides in the license use
40-7 categories and subcategories in which the person is to be licensed.
40-8 (b) Not later than the 30th day after the date on which a
40-9 licensing examination is administered under this section, the
40-10 department <regulatory agency> shall notify each examinee of the
40-11 results of the examination. However, if an examination is graded
40-12 or reviewed by a national testing service, the department
40-13 <appropriate regulatory agency> shall notify examinees of the
40-14 results of the examination not later than the 14th day after the
40-15 date on which the department <appropriate regulatory agency>
40-16 receives the results from the testing service. If the notice of
40-17 examination results graded or reviewed by a national testing
40-18 service will be delayed for longer than 90 days after the
40-19 examination date, the department <appropriate regulatory agency>
40-20 shall notify the examinee of the reason for the delay before the
40-21 90th day.
40-22 (c) If requested in writing by the person who fails a
40-23 licensing examination administered under this section, the
40-24 department <appropriate regulatory agency> shall furnish the person
40-25 with an analysis of the person's performance on the examination.
40-26 (d) The department <head of a regulatory agency> may waive
40-27 part or all of any license examination requirements on a reciprocal
41-1 basis with any other state or federal agency that has substantially
41-2 the same examination standards.
41-3 Sec. 76.111. Commercial Applicator Proof of Financial
41-4 Responsibility. (a) Except as otherwise provided by this section,
41-5 each applicant for a commercial applicator license shall file with
41-6 the department <regulatory agency> issuing the license<:>
41-7 <(1) a bond executed by the applicant as principal and
41-8 by a corporate surety licensed to do business in Texas as surety;
41-9 or>
41-10 <(2)> a liability insurance policy, or certification
41-11 of a policy, protecting persons who may suffer damages as a result
41-12 of the operations of the applicant.
41-13 (b) If the Texas Department of Insurance determines that the
41-14 liability insurance policy required by Subsection (a) is not
41-15 generally and reasonably available to commercial pesticide
41-16 applicators, then in lieu of the requirements of Subsection (a), an
41-17 applicant for a commercial applicator license may:
41-18 (1) file with the department property damage and
41-19 personal injury insurance or certification of such insurance that
41-20 is generally and reasonably available as determined by the Texas
41-21 Department of Insurance; or
41-22 (2) <If an applicant cannot reasonably obtain
41-23 insurance coverage or a bond as specified by Subsection (f) of this
41-24 section, the regulatory agency shall accept a certificate of
41-25 deposit or a letter of credit that meets the requirements of
41-26 Subsection (c)(1) and rules adopted under Subsection (e) of this
41-27 section.>
42-1 <(c) If the State Board of Insurance determines after giving
42-2 notice to the regulatory agency that the liability insurance policy
42-3 required by Subsection (a)(2) of this section is not generally and
42-4 reasonably available to commercial pesticide applicators, then in
42-5 lieu of the requirements of Subsection (a) of this section, an
42-6 applicant for a commercial applicator license may:>
42-7 <(1) tender from a state or federal financial
42-8 institution whose deposits are insured by the Federal Deposit
42-9 Insurance Corporation or by the Federal Savings and Loan Insurance
42-10 Corporation a certificate of deposit or letter of credit in the
42-11 amount prescribed by Subsection (f) of this section, made payable
42-12 to the regulatory agency and issued for the purpose of protecting
42-13 persons who may suffer damages as a result of the operations of the
42-14 applicant;>
42-15 <(2) file property damage and personal injury
42-16 insurance or certification of such insurance that is generally and
42-17 reasonably available as determined by the State Board of Insurance;
42-18 or>
42-19 <(3)> comply with other proof of financial
42-20 responsibility requirements adopted by rule of the department
42-21 <regulatory agency> under this subchapter.
42-22 (c) <(d)> The proof of financial responsibility required by
42-23 this section is not required to apply to damages or injury to
42-24 agricultural crops, plants, or land being worked on by the
42-25 applicant.
42-26 (d) <(e)> The proof of financial responsibility required by
42-27 this section must be approved by the department <regulatory agency>
43-1 and conditioned on compliance with the requirements of this chapter
43-2 and rules adopted under this chapter.
43-3 (e) <(f)> Except as otherwise provided by this section, the
43-4 amount of the proof of financial responsibility may not be less
43-5 than $100,000 for property damage and may not be less than $100,000
43-6 for bodily injury to one person and an aggregate of $200,000 for
43-7 bodily injury to more than one person. The department <head of a
43-8 regulatory agency> by rule may require higher or lower <different>
43-9 amounts of coverage for different classifications of operations
43-10 under this chapter. At all times during the license period, the
43-11 coverage must be maintained at not less than the amount set by the
43-12 department <agency head> or the Texas Department <State Board> of
43-13 Insurance, except as provided by Subsection (i) <as applicable>.
43-14 (f) <(g)> At least 10 days before a reduction requested by a
43-15 licensee or a cancellation of a <bond or> liability insurance
43-16 policy, the party taking the action shall notify the head of the
43-17 department <appropriate regulatory agency>. If the party does not
43-18 give that notice, the liability of the <surety or> insurer is
43-19 limited to the <bond or> liability insurance policy.
43-20 (g) <(h)> The department <head of a regulatory agency> may
43-21 accept a <bond or> liability insurance policy in the proper sum
43-22 which has a deductible clause in an amount of not more than $1,000
43-23 for the total amount of the <bond or> liability insurance policy
43-24 required by this section. If the applicant has not satisfied the
43-25 requirement of the deductible amount in any prior legal claim, the
43-26 department <an agency head> may not accept a <bond or> policy with
43-27 a deductible clause unless the applicant furnishes the department
44-1 <agency> with a surety bond that satisfies the amount of the
44-2 deductible clause as to all claims that may arise as a result of
44-3 the applicant's operation.
44-4 (h) <(i) The department shall exempt a commercial applicator
44-5 from the requirements of showing proof of financial responsibility
44-6 under this section if the applicator agrees:>
44-7 <(1) to a license for use of ground application
44-8 equipment only; and>
44-9 <(2) to a license that limits the application to only
44-10 those herbicides determined by the department not to create a
44-11 substantial risk of drift because of volatility.>
44-12 <(j)> Should the insurance policy <surety> furnished under
44-13 this section become insufficient or otherwise unsatisfactory, a
44-14 licensee shall, on notice of the insufficiency or other defect,
44-15 immediately file a new <bond> liability insurance policy <or any
44-16 other proof of financial responsibility> as authorized by rule of
44-17 the department, except as provided under Subsection (i) <regulatory
44-18 agency>. A licensee may not operate as a commercial applicator
44-19 during an uncovered period. Failure to file or maintain a
44-20 liability insurance policy with the proper insurance coverage while
44-21 applying restricted-use or state-limited-use pesticides as a
44-22 commercial applicator <a bond, or other proof of authorized
44-23 financial responsibility or failure to maintain the surety in the
44-24 required amount> is a ground for suspension or revocation of a
44-25 commercial applicator license, an assessment of an administrative
44-26 penalty, or both.
44-27 (i) A licensed commercial applicator does not need to
45-1 maintain insurance coverage as required by this section if the
45-2 applicator provides written notice to the department that the
45-3 applicator will not operate as a commercial applicator, applying or
45-4 supervising restricted-use or state-limited-use pesticides or
45-5 regulated herbicides during an uncovered period. Such written
45-6 notice must be received by the department prior to cancellation of
45-7 the insurance policy required by this section.
45-8 <(k) The regulatory agency by rule may prescribe acceptable
45-9 proof of financial responsibility and appropriate procedures to
45-10 carry out the purposes of this section. The regulatory agency may
45-11 adopt rules governing the conditions and handling of certificates
45-12 of deposit and letters of credit, but may not disburse funds or
45-13 release a certificate or letter except by consent of the commercial
45-14 applicator or pursuant to court order.>
45-15 Sec. 76.112. Private Applicator. (a) A person is a private
45-16 applicator if the person uses or supervises the use of a
45-17 restricted-use or state-limited-use pesticide for the purpose of
45-18 producing an agricultural commodity:
45-19 (1) on property owned or rented by the person or the
45-20 person's employer or under the person's general control; or
45-21 (2) on the property of another person if applied
45-22 without compensation other than the trading of personal services,
45-23 or services related to agricultural production including the use of
45-24 equipment, between producers of agricultural commodities.
45-25 (b) A private applicator is required to be either licensed
45-26 or certified to use restricted-use or state-limited-use pesticides.
45-27 (c) An employee qualifies as a private applicator under
46-1 <Subdivision (1) of> Subsection (a)(1) of this section only if he
46-2 is employed to perform other duties related to agricultural
46-3 production and provide labor for the pesticide application but does
46-4 not provide the necessary equipment or pesticide.
46-5 (d) A private applicator who is required to be licensed by
46-6 Section 76.105 of this code shall apply to the department
46-7 <appropriate regulatory agency> for a private applicator license.
46-8 (e) A person shall apply for an original or renewal private
46-9 applicator license on forms prescribed by the department
46-10 <regulatory agency>. The application shall include information as
46-11 required by agency rule and must be accompanied by a nonrefundable
46-12 fee of $50.
46-13 (f) The department <head of a regulatory agency> may not
46-14 issue an original private applicator license before the applicant
46-15 has attended a training course conducted or approved by the Texas
46-16 Agricultural Extension Service. The Texas Agricultural Extension
46-17 Service shall approve appropriate training courses to be conducted
46-18 by other governmental agencies or nongovernmental entities. The
46-19 training course shall cover the use, effects, and risks of
46-20 restricted-use and state-limited-use pesticides.
46-21 (g) The department <head of a regulatory agency> may not
46-22 issue a private applicator license if the applicant has had a
46-23 license issued under this subchapter revoked within the last two
46-24 years.
46-25 (h) An individual to whom a private applicator license is
46-26 issued is authorized to purchase, use, and supervise the use of
46-27 restricted-use and state-limited-use pesticides in all license use
47-1 categories and subcategories for the purpose of producing an
47-2 agricultural commodity on property described by Subsection (a)(1)
47-3 or (a)(2) of this section.
47-4 (i) As a condition to issuance of a private applicator
47-5 license, an applicant located outside this state shall file with
47-6 the department <regulatory agency> a written instrument designating
47-7 a resident agent for service of process in actions taken in
47-8 administration and enforcement of this chapter. Instead of
47-9 designating a resident agent, the applicant may designate in
47-10 writing the secretary of state as the recipient of service of
47-11 process for the applicant in this state.
47-12 (j) For purposes of this chapter, a certified private
47-13 applicator is a private applicator who has been previously
47-14 certified under the department's voluntary certification program
47-15 and who holds a private applicator certificate dated prior to
47-16 January 10, 1989. A certified private applicator is authorized to
47-17 use restricted-use and state-limited-use pesticides in all license
47-18 use categories and subcategories for the purpose of producing an
47-19 agricultural commodity on property described by Subsection (a)(1)
47-20 or (a)(2) of this section. A certified private applicator may not
47-21 supervise the use of restricted-use and state-limited-use
47-22 pesticides.
47-23 Sec. 76.113. Expiration and Renewal of Licenses. (a) Each
47-24 commercial applicator or noncommercial applicator license expires
47-25 on the last day of February of the year following the year in which
47-26 it was issued.
47-27 (b) Each private applicator license expires on the last day
48-1 of February of the fifth year following the year in which it was
48-2 issued.
48-3 (c) Except as provided by Subsection (d) of this section, a
48-4 person having a valid license issued under this subchapter may
48-5 renew the license for another term without retesting by paying to
48-6 the department <regulatory agency> the license fee required by this
48-7 subchapter. A person who fails to apply for renewal of a license
48-8 on or before the expiration date must pay, in addition to the
48-9 annual license fee, the late fee provided by Section 12.024 of this
48-10 code.
48-11 (d) A licensee must undertake training, submit to retesting,
48-12 or both, before renewal of a license if the department <head of the
48-13 agency> determines that additional knowledge is required for
48-14 renewal.
48-15 Sec. 76.114. Records. (a) The department <A regulatory
48-16 agency> shall require each commercial, <applicator and>
48-17 noncommercial, and private applicator licensee or certificate
48-18 holder to maintain records of pesticide use. All commercial and
48-19 noncommercial applicators will maintain records of all pesticide
48-20 use. All private applicators shall maintain records of
48-21 restricted-use and state-limited-use pesticides <the licensee's use
48-22 of pesticides>. The department <regulatory agency> by rule shall
48-23 prescribe the information to be entered into <included in> the
48-24 records.
48-25 (b) The department <A regulatory agency> may require a
48-26 commercial, <applicator and> noncommercial, and private applicator
48-27 licensee or certificate holder to keep records of the licensee's or
49-1 certificate holder's application of a specific restricted-use or
49-2 state-limited-use pesticide or regulated herbicide and may require
49-3 those records to be kept separate from other business records.
49-4 (c) A licensee or certificate holder shall keep records
49-5 required under this section for a period of two years from the date
49-6 of the pesticide application. The licensee or certificate holder
49-7 shall keep these records accessible and available for copying and
49-8 shall store them in a location suitable to preserve their physical
49-9 integrity.
49-10 (d) On written request of the department <regulatory
49-11 agency>, a licensee or certificate holder shall furnish the
49-12 department <agency> a copy of any requested record pertaining to
49-13 the application of pesticides. The department may require all
49-14 persons who apply a regulated herbicide to submit periodically to
49-15 the department a copy of the records required by this section.
49-16 (e) Except as otherwise provided by this section, all
49-17 private applicators shall, on request, show any records required by
49-18 this section to an employee, an employee's designated
49-19 representative, treating medical personnel, or a member of the
49-20 community as defined by rule of the department. The designated
49-21 representative or treating medical personnel are not required to
49-22 identify the employee represented or treated.
49-23 (f) A private applicator may not refuse to provide a record
49-24 subject to this subsection to an employee, treating medical
49-25 personnel, designated representative, or member of the community.
49-26 If an employee, treating medical personnel, designated
49-27 representative, or member of the community requests a copy of a
50-1 record and the private applicator or other entity refuses to
50-2 provide a copy, that person shall notify the department in writing
50-3 of the request and the private applicator's or other entity's
50-4 refusal. The department shall obtain copies of the record in
50-5 accordance with rules adopted by the department.
50-6 Sec. 76.115. <Registration and> Inspection of Equipment.
50-7 (a) The department may inspect <Each regulatory agency shall
50-8 provide for the registration and inspection of> equipment used in
50-9 the <commercial> application of a restricted-use or
50-10 state-limited-use pesticide.
50-11 (b) The department <A regulatory agency> may require repairs
50-12 or alterations of equipment before further use.
50-13 (c) The department by rule may:
50-14 (1) provide requirements for equipment used to apply
50-15 regulated herbicides; and
50-16 (2) regulate or prohibit the use of certain equipment
50-17 in the application of regulated herbicides if that use would be
50-18 hazardous in an area of the state. <The head of a regulatory
50-19 agency shall adopt standards that must be met before equipment may
50-20 be registered.>
50-21 <(d) Each piece of registered equipment shall be identified
50-22 by a license plate or decal furnished by a regulatory agency at no
50-23 cost to the licensee. The license plate or decal must be attached
50-24 to the equipment in a manner and location prescribed by the
50-25 regulatory agency.>
50-26 Sec. 76.116. Suspension, Modification, or Revocation of
50-27 License. (a) The department may refuse to renew, <head of the
51-1 regulatory agency that licensed or certified an applicator may>
51-2 suspend, modify, or revoke a <any provision in the> license or
51-3 certificate, assess an administrative penalty, place on probation a
51-4 person whose license or certificate has been suspended, <or>
51-5 reprimand a licensee or certificate holder, or take a combination
51-6 of those actions if the department <head of the agency> finds that
51-7 the licensee or certificate holder has:
51-8 (1) made a pesticide recommendation or application
51-9 inconsistent with the pesticide's labeling or with the restrictions
51-10 on the use of the pesticide imposed by the state or the
51-11 Environmental Protection Agency;
51-12 (2) operated in a faulty, careless, or negligent
51-13 manner;
51-14 (3) refused, or after notice, failed to comply with an
51-15 applicable provision of this chapter, a rule adopted under this
51-16 chapter, or a lawful order of the Commissioner <of the department
51-17 by which the licensee is licensed>;
51-18 (4) refused or neglected to keep and maintain the
51-19 records required by this chapter or to make reports when and as
51-20 required by this chapter;
51-21 (5) failed to maintain a <bond or> policy of insurance
51-22 as required by this chapter;
51-23 (6) made false or fraudulent records, invoices, or
51-24 reports;
51-25 (7) used fraud or misrepresentation in making an
51-26 application for a license or renewal of a license; or
51-27 (8) aided or abetted a certified, licensed, or an
52-1 unlicensed person to evade the provisions of this chapter,
52-2 conspired with a certified, licensed, or an unlicensed person to
52-3 evade the provisions of this chapter, or allowed the licensee's
52-4 license or the certificate holder's certificate to be used by
52-5 another person.
52-6 (b) The department may temporarily suspend a license or
52-7 certificate under this section for not more than 10 days after
52-8 giving the licensee or certificate holder written notice of
52-9 noncompliance.
52-10 (c) If a license or certificate suspension is probated, the
52-11 department may require the person to:
52-12 (1) report regularly to the department on matters that
52-13 are the basis of the probation;
52-14 (2) limit practice to the areas prescribed by the
52-15 department; or
52-16 (3) continue or renew professional education until the
52-17 person attains a degree of skill satisfactory to the department in
52-18 those areas that are the basis of the probation.
52-19 (d) Except for a temporary suspension under Subsection (b)
52-20 of this section, if the department proposes to not renew, suspend,
52-21 modify, or revoke a person's license or certificate, the person is
52-22 entitled to a hearing before a hearings officer designated by the
52-23 agency. The department shall prescribe procedures by which all
52-24 decisions to not renew, suspend, modify, or revoke are appealable
52-25 to the Commissioner <governing officer or board of the agency>.
52-26 (e) Any applicator whose license or certificate is under
52-27 suspension or revocation by the department may not apply
53-1 restricted-use or state-limited-use pesticides under the direct
53-2 supervision of another licensed applicator during that period of
53-3 suspension or revocation.
53-4 Sec. 76.117. Property Owner Use. This chapter does not
53-5 prohibit a property owner from using in the property owner's house,
53-6 lawn, or garden a pesticide that is labeled for that use, other
53-7 than a pesticide that may be registered or <and> classified for use
53-8 only by certified applicators.
53-9 Sec. 76.118. REGULATED HERBICIDES. (a) After a public
53-10 hearing on the issue, and in accordance with Subsection (b), the
53-11 department by rule may adopt a list of regulated herbicides for the
53-12 state or for one or more designated areas in the state.
53-13 (b) The department may include a herbicide on the list of
53-14 regulated herbicides if the department determines that, if used as
53-15 directed or in accordance with widespread and commonly recognized
53-16 practice, the herbicide requires additional restrictions to prevent
53-17 a hazard to desirable vegetation through drift or other
53-18 uncontrolled application.
53-19 (c) A person may not distribute a regulated herbicide unless
53-20 the person has a dealer's license from the department.
53-21 Sec. 76.119. APPLICATION OF REGULATED HERBICIDE. (a) If a
53-22 person applies a regulated herbicide, the person shall act in
53-23 accordance with rules adopted by the department, including rules
53-24 adopted under this subchapter.
53-25 (b) If a regulated herbicide is applied by a commercial
53-26 applicator, the person in control of the crop or land to which the
53-27 regulated herbicide is applied and the commercial applicator
54-1 jointly are responsible for ensuring that the application is in
54-2 compliance with this chapter and the rules adopted by the
54-3 department.
54-4 (c) If the department finds that an application of a
54-5 regulated herbicide is hazardous to crops or valuable plants in an
54-6 area, the department may prohibit the application of a regulated
54-7 herbicide in that area for the period during which the hazard
54-8 exists.
54-9 Sec. 76.120. RULES. As soon as practicable after receiving
54-10 a written request for a revision of a rule, an exemption from a
54-11 requirement of this chapter, or a prohibition of the spraying of a
54-12 regulated herbicide in an area, the department may hold a public
54-13 hearing to consider the request.
54-14 Sec. 76.121. COUNTY HERBICIDE REGULATIONS. (a) If the
54-15 commissioners court of a county determines that a valuable crop or
54-16 vegetation susceptible to being adversely affected by the
54-17 application of a regulated herbicide exists in an area of the
54-18 county and that a departmental rule adopted or prohibition
54-19 prescribed under Section 76.118 or 76.119 not currently applicable
54-20 to the area should apply to the area, the commissioners court may
54-21 enter an order in the minutes of the court under which the
54-22 department's rule or prohibition under Section 76.118 or 76.119
54-23 becomes effective in the specified area of the county beginning
54-24 January 1 of the following year.
54-25 (b) If the commissioners court of a county determines that
54-26 there is no longer a valuable crop or vegetation susceptible to
54-27 being adversely affected by the application of a regulated
55-1 herbicide in the specified area of the county, the court may
55-2 rescind its order under Subsection (a) effective January 1 of the
55-3 following year.
55-4 (c) The department shall adopt rules concerning the use of a
55-5 regulated herbicide in a county in which a commissioners court has
55-6 entered an order under Subsection (a) of this section.
55-7 (d) On request by a commissioners court of a county that has
55-8 entered an order under Subsection (a) and a determination by the
55-9 department that an emergency exists, the department may suspend
55-10 regulations under the commissioners court order concerning
55-11 application dates of regulated herbicides. Only an imminent threat
55-12 to agricultural interests in a county that, if not immediately
55-13 addressed, would create a significant economic loss to producers
55-14 and ranchers in the county is an emergency for purposes of this
55-15 subsection.
55-16 (e) Before a commissioners court may enter an order under
55-17 this section, the commissioners court shall hold a hearing to
55-18 determine whether the order should be issued. Before the 10th day
55-19 before the date on which the hearing is to be held, the
55-20 commissioners court shall publish notice of the hearing in at least
55-21 one newspaper in the county.
55-22 (f) The commissioners court shall transcribe the hearing,
55-23 and make findings of fact based on the hearing and conclusions of
55-24 law to support its order in the manner prescribed for a final order
55-25 or decision in a contested case under Chapter 2001, Government
55-26 Code.
55-27 (g) Before the 21st day after the date on which an order
56-1 under Subsection (a) is entered, an interested person may appeal
56-2 the order to a district court in the county to test the
56-3 reasonableness of the basis for the commissioners court order. The
56-4 provisions of Subchapter G, Chapter 2001, Government Code, that
56-5 apply to the judicial review of a contested case under the
56-6 substantial evidence rule apply to the appeal, except that the
56-7 appeal is brought in a district court in the county in which the
56-8 appealed order applies. Appeals may be taken from the district
56-9 court as in other civil cases.
56-10 (h) The commissioners court shall notify the department of a
56-11 change in the status of a county or a portion of a county under
56-12 this section.
56-13 SUBCHAPTER F. STORAGE AND DISPOSAL
56-14 Sec. 76.131. Rules. (a) The department may adopt rules
56-15 governing the storage and disposal of pesticides and pesticide
56-16 containers for the purpose of:
56-17 (1) preventing injury from storage or disposal to man,
56-18 vegetation, crops, or animals; and
56-19 (2) preventing any water <waterway> pollution that is
56-20 harmful to man or wildlife provided, however, that such rules be
56-21 consistent with and not less stringent than <Texas Water
56-22 Commission> rules adopted by the Texas Natural Resource
56-23 Conservation Commission under Chapter 26 of the Water Code.
56-24 (b) A person may not store or dispose of a pesticide in
56-25 violation of a rule adopted by the department under this section.
56-26 (c) Applicators and other entities covered by this chapter
56-27 who normally store products listed under FIFRA in an amount that
57-1 exceeds 55 gallons, 500 pounds, or a lesser amount the department
57-2 determines by rule for certain highly toxic or dangerous chemicals
57-3 covered by this chapter, within one-quarter mile of a residential
57-4 area composed of three or more private dwellings for more than 72
57-5 hours shall provide to the fire chief of the fire department having
57-6 jurisdiction over the storage place, in writing, the name and
57-7 telephone number of the applicator or a knowledgeable
57-8 representative of the applicator or other entity storing the
57-9 product who can be contacted for further information or contacted
57-10 in case of emergency.
57-11 (d) On request, each applicator or entity shall provide to
57-12 the fire chief having jurisdiction over the storage place a copy of
57-13 a list of pesticides stored by the applicator or entity. The
57-14 applicator or other entity shall notify the fire chief of any
57-15 significant changes that occur relating to the stored pesticides if
57-16 requested by the fire chief in writing.
57-17 (e) The fire chief having jurisdiction over the storage
57-18 place or his representative, on request, shall be permitted to
57-19 conduct on-site inspections of the pesticides stored for the sole
57-20 purpose of preparing fire department activities in case of an
57-21 emergency.
57-22 (f) On request, the fire chief having jurisdiction over the
57-23 storage place shall make the stored pesticide list available to
57-24 members of the fire department having jurisdiction over the
57-25 workplace and to personnel outside the fire department who are
57-26 responsible for preplanning emergency activities, but may not
57-27 otherwise distribute the information without approval of the
58-1 applicator.
58-2 SUBCHAPTER G. ENFORCEMENT
58-3 Sec. 76.151. Entry Power. (a) For the purpose of
58-4 inspection, examination, or sampling, the department is entitled to
58-5 enter at reasonable hours any building or place owned, controlled,
58-6 or operated by a registrant or dealer if from probable cause it
58-7 appears that the building or place contains a pesticide.
58-8 (b) The department <A regulatory agency> is entitled to
58-9 enter any public or private premises at reasonable times to:
58-10 (1) inspect any equipment authorized or required to be
58-11 inspected under this chapter or to inspect the premises on which
58-12 the equipment is kept or stored;
58-13 (2) inspect or sample land exposed or reported to be
58-14 exposed to a pesticide;
58-15 (3) inspect an area where a pesticide is disposed
58-16 of<,> or stored; or
58-17 (4) observe the use and application of a
58-18 restricted-use or state-limited-use pesticide.
58-19 (c) If the department <a regulatory agency> is denied access
58-20 to any land to which access was sought at a reasonable time for any
58-21 of the purposes listed in Subsection (b) of this section, the
58-22 department <head of the regulatory agency> may apply to a
58-23 magistrate for a warrant authorizing access to the land for any of
58-24 those purposes. On a showing of probable cause to believe that a
58-25 violation of a rule relating to a purpose listed in Subsection (b)
58-26 of this section has occurred, the magistrate shall issue the search
58-27 warrant for the purposes requested.
59-1 Sec. 76.152. Sampling. The department is entitled to take a
59-2 sample for official analysis from any package or lot of pesticides
59-3 found within this state.
59-4 Sec. 76.153. Stop-Sale Order. (a) If the department has
59-5 reason to believe that a pesticide is in violation of any provision
59-6 of this chapter, the department may issue and enforce a written or
59-7 printed order to stop the sale of the pesticide. The department
59-8 shall present the order to the owner or custodian of the pesticide.
59-9 The person who receives the order may not sell, distribute, or use
59-10 the pesticide until the department determines that the pesticide:
59-11 (1) is in compliance with this chapter; or
59-12 (2) does not present a hazard to the public health,
59-13 safety, or welfare.
59-14 (b) This section does not limit the right of the department
59-15 to proceed as authorized by another section of this chapter.
59-16 Sec. 76.154. Injunction. (a) The department may sue in the
59-17 name of the Commissioner to enjoin any violation of a provision of
59-18 this chapter. Venue is in the county in which the alleged
59-19 violation occurred or is occurring.
59-20 (b) The department <A regulatory agency> may request an
59-21 appropriate prosecuting attorney or the attorney general to sue to
59-22 enjoin a violation or threatened violation of a provision of this
59-23 chapter that is within the department's <agency's> responsibility.
59-24 Sec. 76.155. Prosecutions. The department <A regulatory
59-25 agency> may request the appropriate prosecuting attorney to
59-26 prosecute a violation of a provision of this chapter.
59-27 Sec. 76.1555. Administrative Penalty. (a) If a person
60-1 violates a provision of this chapter <Chapter 75 or 76 of this code
60-2 administered by the department> or a rule or order adopted by the
60-3 department under this chapter <either of those chapters>, the
60-4 department may assess an administrative penalty against the person
60-5 using the procedures prescribed <as provided> by Section 12.020
60-6 <this section>.
60-7 (b) The penalty may be in an amount not to exceed $2,000 for
60-8 each violation, provided that the penalty shall not exceed $4,000
60-9 for all violations related to a single incident. The department
60-10 shall establish a schedule stating the types of violations possible
60-11 under this chapter <Chapters 75 and 76 of this code> and the
60-12 maximum fine applicable to each type of violation. The department
60-13 is not required to comply with Subchapter B, Chapter 2001,
60-14 Government Code, <Section 5 Administrative Procedure and Texas
60-15 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes),>
60-16 when establishing or revising the schedule. The department shall
60-17 publish the initial schedule and any subsequent revision in the
60-18 Texas Register before the schedule or revision is implemented.
60-19 (c) <In determining the amount of the penalty, the
60-20 department shall consider:>
60-21 <(1) the seriousness of the violation, including but
60-22 not limited to the nature, circumstances, extent, and gravity of
60-23 the prohibited acts, and the hazard or potential hazard created to
60-24 the health or safety of the public;>
60-25 <(2) the economic damage to property or the
60-26 environment caused by the violation;>
60-27 <(3) the history of previous violations;>
61-1 <(4) the amount necessary to deter future violations;>
61-2 <(5) efforts to correct the violation; and>
61-3 <(6) any other matter that justice may require.>
61-4 <(d) If, after investigation of a possible violation and the
61-5 facts surrounding that possible violation, the department
61-6 determines that a violation has occurred, the department may issue
61-7 a violation report stating the facts on which the conclusion that a
61-8 violation occurred is based and may recommend that an
61-9 administrative penalty under this section be imposed on the person
61-10 charged and recommending the amount of that proposed penalty. The
61-11 department shall base the recommended amount of the proposed
61-12 penalty on the seriousness of the violation determined by
61-13 consideration of the factors set forth in Subsection (c) of this
61-14 section.>
61-15 <(e) Not later than the 14th day after the date on which the
61-16 report is issued, the department shall give written notice of the
61-17 report to the person charged. The notice shall include a brief
61-18 summary of the charges, a statement of the amount of the penalty,
61-19 if any is recommended, and a statement of the right of the person
61-20 charged to a hearing on the occurrence of the violation or the
61-21 amount of the penalty, or both the occurrence of the violation and
61-22 the amount of the penalty.>
61-23 <(f) Not later than the 20th day after the date on which
61-24 notice is received, the person charged either may accept the
61-25 determination of the department made under Subsection (d) of this
61-26 section, including the recommended penalty, or make a written
61-27 request for a hearing on the determination.>
62-1 <(g) If the person charged with the violation accepts the
62-2 determination of the department, the commissioner shall issue an
62-3 order approving the determination and ordering the payment of the
62-4 recommended penalty.>
62-5 <(h) If the person charged requests a hearing or fails to
62-6 timely respond to the notice, the department shall set a hearing
62-7 and give notice of the hearing. The hearing shall be held by a
62-8 hearing examiner designated by the department. The hearing
62-9 examiner shall make findings of fact and conclusions of law and
62-10 promptly issue to the commissioner a proposal for decision as to
62-11 the occurrence of the violation, including a recommendation as to
62-12 the amount of the proposed penalty if a penalty is warranted.
62-13 Based on the findings of fact, conclusions of law, and
62-14 recommendations of the hearing examiner, the commissioner by order
62-15 may find a violation has occurred and may assess a penalty or may
62-16 find that no violation has occurred. All proceedings under this
62-17 subsection are subject to the Administrative Procedure Act (Texas
62-18 Government Code section 2001.001 et seq.).>
62-19 <(i) The department shall give notice of the commissioner's
62-20 order to the person charged. The notice shall include:>
62-21 <(1) the findings of fact and conclusions of law
62-22 separately stated;>
62-23 <(2) the amount of the penalty ordered, if any;>
62-24 <(3) a statement of the right of the person charged to
62-25 judicial review of the commissioner's order, if any; and>
62-26 <(4) other information required by law.>
62-27 <(j) Within the 30-day period immediately following the day
63-1 on which the order becomes final as provided by 2001.144 Subsection
63-2 A, Administrative Procedure Act (Texas Government Code, section
63-3 2001.001 et seq.), the person charged with the penalty shall:>
63-4 <(1) pay the penalty in full; or>
63-5 <(2) if the person files a petition for judicial
63-6 review contesting either the amount of the penalty or the fact of
63-7 the violation or contesting both the fact of the violation and the
63-8 amount of the penalty, post a supersedeas bond in a form approved
63-9 by the department for the amount of the penalty or $1,000,
63-10 whichever is less, the bond to be effective until all judicial
63-11 review of the order or decision is final.>
63-12 <(A) forward the amount to the department for
63-13 placement in an escrow account; or>
63-14 <(B) in lieu of payment into escrow, post with
63-15 the department a supersedeas bond in a form approved by the
63-16 department for the amount of the penalty, the bond to be effective
63-17 until all judicial review of the order or decision is final.>
63-18 <(k) A bond under Subsection (j)(2) of this section must be
63-19 posted with the district clerk. The bond must be filed at the same
63-20 time the petition for judicial review is filed.>
63-21 <(l) If a person charged is financially unable to post a
63-22 supersedeas bond, the person may satisfy the requirements of
63-23 Subsection (j)(2) of this section by filing with the district clerk
63-24 an affidavit sworn by the person charged stating that the person is
63-25 financially unable to post a bond.>
63-26 <(m) Failure to post the bond or file the affidavit within
63-27 the time provided by Subsection (j) of this section results in a
64-1 waiver of all legal rights to judicial review. Also, if the person
64-2 charged fails to pay the penalty in full as provided under
64-3 Subsection (j)(1) of this section or post the bond or file the
64-4 affidavit as provided by Subsection (j) or (l) of this section, the
64-5 department may forward the matter to the attorney general for
64-6 enforcement.>
64-7 <(n) Judicial review of the order or decision of the
64-8 department assessing the penalty shall be under the substantial
64-9 evidence rule and shall be instituted by filing a petition with a
64-10 district court in Travis County, as provided by Section 19,
64-11 Administrative Procedure and Texas Register Act (Article 6252-13a,
64-12 Vernon's Texas Civil Statutes).>
64-13 <(o) On final judgment of the court and payment of any
64-14 penalties and costs assessed by the court, the department shall
64-15 execute a release of any supersedeas bond posted under this
64-16 section.>
64-17 <(p) A penalty collected under this section shall be
64-18 deposited in the state treasury to the credit of the General
64-19 Revenue Fund.>
64-20 <(q)> If the department elects to assess an administrative
64-21 penalty, no action for a civil penalty may be based on the same
64-22 violation or violations.
64-23 Sec. 76.156. Civil Penalty. (a) A person who violates a
64-24 provision of this chapter administered by a regulatory agency other
64-25 than the department or a rule adopted by a regulatory agency other
64-26 than the department under this chapter is liable for a civil
64-27 penalty of not less than $50 nor more than $1,000 for each day on
65-1 which the violation occurs.
65-2 (b) A person who violates a provision of this chapter
65-3 administered by the department or a rule adopted by the department
65-4 under this chapter is liable for a civil penalty of not less than
65-5 $50 nor more than $10,000 for each violation, provided that the
65-6 penalty shall not exceed $25,000 for all violations related to a
65-7 single incident.
65-8 (c) No civil penalty may be collected for any violation that
65-9 constituted the basis for a department proceeding to assess an
65-10 administrative penalty, regardless of whether the department was or
65-11 was not successful in collecting the administrative penalty.
65-12 (d) A county attorney, a district attorney, or the attorney
65-13 general shall sue in the name of the state for the collection of a
65-14 civil penalty provided by this section.
65-15 (e) The appropriate regulatory agency may request an
65-16 appropriate prosecuting attorney or the attorney general to bring
65-17 suit under this section.
65-18 (f) A civil penalty collected under this section shall be
65-19 deposited in the state treasury to the credit of the General
65-20 Revenue Fund. All civil penalties recovered in suits first
65-21 instituted by a local government or governments under this section
65-22 shall be equally divided between the State of Texas and the local
65-23 government or governments with 50 percent of the recovery to be
65-24 paid to the General Revenue Fund and the other 50 percent equally
65-25 to the local government or governments first instituting the suit.
65-26 SUBCHAPTER H. REMEDIES
65-27 Sec. 76.181. Appeal of Denial or Cancellation of Pesticide
66-1 Registration. (a) A person whose application for registration of
66-2 a pesticide has been denied or whose registration for a pesticide
66-3 has been canceled may appeal the action in the manner provided for
66-4 appeal of contested cases under Chapter 2001, Government Code <the
66-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
66-6 Vernon's Texas Civil Statutes)>.
66-7 (b) Appeal under this section is governed by the substantial
66-8 evidence rule.
66-9 Sec. 76.182. Appeal of Permit or License Denial, Suspension,
66-10 Modification, or Revocation. (a) A person whose application for
66-11 an experimental use permit, pesticide dealer license, commercial
66-12 applicator license, noncommercial applicator license, or private
66-13 applicator license has been denied or whose experimental use
66-14 permit, pesticide dealer license, commercial applicator license,
66-15 noncommercial applicator license, private applicator license, or
66-16 private applicator certificate has been suspended for more than 10
66-17 days, revoked, or modified may appeal the action in the manner
66-18 provided for appeal of contested cases under Chapter 2001,
66-19 Government Code <the Administrative Procedure and Texas Register
66-20 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
66-21 (b) Appeal under this section is governed by the substantial
66-22 evidence rule.
66-23 Sec. 76.183. Appeal of Stop-Sale Order. (a) The owner or
66-24 custodian of a pesticide to which a stop-sale order is imposed
66-25 under Section 76.153 <applies> may appeal the order to a court of
66-26 competent jurisdiction in the county where the pesticide is found.
66-27 (b) Appeal under this section is by trial de novo.
67-1 Sec. 76.184. REPORTS OF PESTICIDE ADVERSE EFFECTS <DAMAGE
67-2 CLAIMS>. (a) A person claiming adverse effects from an
67-3 application of a pesticide may file with the department a complaint
67-4 report. The complaint report must contain the name of the person,
67-5 if known, allegedly responsible for the application of the
67-6 pesticide and the name of the owner or lessee of the land on which
67-7 the pesticide was applied. The department shall prepare a form to
67-8 be furnished to persons for use in filing complaint reports. The
67-9 form may contain other information that is within the person's
67-10 knowledge and requested by the commissioner.
67-11 (b) As soon as practicable after receiving a complaint
67-12 report, the department shall notify the licensee, the owner or
67-13 lessee of the land on which the alleged application occurred, and
67-14 any other person who may be charged with responsibility for the
67-15 adverse effects claimed. The department shall furnish copies of
67-16 the complaint to those people on request.
67-17 (c) To assess any adverse effects, the complaining party
67-18 shall permit the department and the licensee to observe, within
67-19 reasonable hours, the land or nontarget organism alleged to have
67-20 been adversely affected.
67-21 (d) Failure to file a complaint does not bar a civil or
67-22 criminal action from being filed and maintained. <(a) A person
67-23 claiming damages from an application of a pesticide may file with
67-24 the regulatory agency that licensed the certified applicator whose
67-25 action allegedly caused the damage a written statement claiming
67-26 that the person has been damaged. To be eligible for consideration
67-27 by the agency, the report must be filed before the 31st day
68-1 following the day of the alleged occurrence or, if a growing crop
68-2 is alleged to have been damaged, before the time that 25 percent of
68-3 the crop has been harvested or before the 31st day, whichever is
68-4 less. The report must contain the name of the person allegedly
68-5 responsible for the application of the pesticide and the name of
68-6 the owner or lessee of the land on which the crop is grown and to
68-7 which damage is alleged to have occurred. The regulatory agency
68-8 shall prepare a form to be furnished to persons for use in filing
68-9 damage reports. The form may contain other information that is
68-10 required by the Commissioner.>
68-11 <(b) On receipt of a report, the regulatory agency shall
68-12 notify the licensee, the owner or lessee of the land on which the
68-13 alleged act occurred, and any other person who may be charged with
68-14 responsibility for the damages claimed. The regulatory agency
68-15 shall furnish copies of the report to those people on request.>
68-16 <(c) The regulatory agency shall inspect damages whenever
68-17 possible and shall report its findings to the person claiming
68-18 damage and to the person alleged to have caused the damage. In
68-19 order that damage may be assessed, the claimant shall permit the
68-20 regulatory agency and the licensee to observe, within reasonable
68-21 hours, the land or nontarget organism alleged to have been damaged.>
68-22 <(d) Failure to file a report does not bar maintenance of a
68-23 civil or criminal action. If a person fails to file a report and
68-24 is the only person claiming injury from the particular use or
68-25 application of a pesticide, the regulatory agency may, if in the
68-26 public interest, refuse to hold a hearing for the denial,
68-27 suspension, or revocation of a license issued under this chapter to
69-1 the person alleged to have caused the damage.>
69-2 SUBCHAPTER I. PENALTIES
69-3 Sec. 76.201. Offenses. (a) A person commits an offense if
69-4 the person distributes within this state or delivers for
69-5 transportation or transports in intrastate commerce or between
69-6 points within this state through a point outside this state, the
69-7 following:
69-8 (1) a pesticide that has not been registered as
69-9 provided by this chapter, except for a pesticide that is not for
69-10 use in this state and is only being manufactured, transported, or
69-11 distributed for use outside of this state;
69-12 (2) a pesticide that has a claim, a direction for its
69-13 use, or labeling that differs from the representations made in
69-14 connection with its registration;
69-15 (3) a pesticide that is not in the registrant's or
69-16 manufacturer's unbroken immediate container and that is not labeled
69-17 with the information and in the manner required by Section 76.021
69-18 of this code;
69-19 (4) a pesticide:
69-20 (A) that is of strength or purity that falls
69-21 below the professed standard or quality expressed on its labeling
69-22 or under which it is sold;
69-23 (B) for which a substance has been substituted
69-24 wholly or in part;
69-25 (C) of which a valuable constituent has been
69-26 wholly or in part abstracted; or
69-27 (D) in which a contaminant is present in an
70-1 amount that is determined by the department to be a hazard;
70-2 (5) a pesticide or device that is misbranded; or
70-3 (6) a pesticide in a container that is unsafe due to
70-4 damage.
70-5 (b) A person commits an offense if the person:
70-6 (1) detaches, alters, defaces, or destroys, wholly or
70-7 in part, any label or labeling provided for by this chapter or a
70-8 rule adopted under this chapter before the container has been
70-9 emptied and rinsed properly;
70-10 (2) adds any substance to or takes any substance from
70-11 a pesticide in a manner that may defeat the purpose of this chapter
70-12 or a rule adopted under this chapter;
70-13 (3) uses or causes to be used a pesticide contrary to
70-14 its labeling or to a rule of the department limiting the use of the
70-15 pesticide;
70-16 (4) handles, transports, stores, displays, or
70-17 distributes a pesticide in a manner that violates a provision of
70-18 this chapter or a rule adopted by the department under this
70-19 chapter; or
70-20 (5) disposes of, discards, or stores a pesticide or
70-21 pesticide container in a manner that the person knows or should
70-22 know is likely to cause injury to man, vegetation, crops,
70-23 livestock, wildlife, or pollinating insects.
70-24 (c) A person other than a person to whom the pesticide is
70-25 registered commits an offense if the person uses for the person's
70-26 advantage or reveals, other than to a properly designated state or
70-27 federal official or employee, a physician, or in emergency to a
71-1 pharmacist or other qualified person for the preparation of an
71-2 antidote, any information relating to pesticide formulas, trade
71-3 secrets, or commercial or financial information acquired under this
71-4 chapter and marked as privileged or confidential by the registrant.
71-5 (d) A person commits an offense if the person:
71-6 (1) commits an act for which a certified applicator's
71-7 license may be suspended, modified, or revoked under Section 76.116
71-8 of this code; or
71-9 (2) violates any <other> provision of this chapter to
71-10 which this section does not expressly apply.
71-11 (e) A person commits an offense if the person:
71-12 (1) knowingly or intentionally uses, causes to be
71-13 used, handles, stores, or disposes of a pesticide in a manner that
71-14 causes injury to man, vegetation, crops, livestock, wildlife, or
71-15 pollinating insects;
71-16 (2) applies a regulated herbicide without a permit in
71-17 violation of Section 76.118;
71-18 (3) acts in violation of Section 76.071(a);
71-19 (4) has a permit to apply a powder or dry-type
71-20 regulated herbicide and applies a herbicide that does not meet the
71-21 requirements of Section 76.121(c);
71-22 (5) violates a rule adopted under this chapter; or
71-23 (6) fails to keep or submit records in violation of
71-24 this chapter.
71-25 Sec. 76.202. Penalty. (a) Except as provided by Subsection
71-26 (b) of this section, an offense under Section 76.201 of this code
71-27 is a Class C misdemeanor, unless the person has been previously
72-1 convicted of an offense under that section, in which event the
72-2 offense is a Class B misdemeanor.
72-3 (b) An offense under Section 76.201(e) of this code is a
72-4 Class A misdemeanor, unless the person has been previously
72-5 convicted of an offense under that subsection, in which event the
72-6 offense is a felony of the third degree.
72-7 Sec. 76.203. Defenses. (a) It is a defense to prosecution
72-8 under this subchapter that the defendant:
72-9 (1) is a carrier who was lawfully engaged in
72-10 transporting a pesticide or device within this state and who, on
72-11 request, permitted the department to copy all records showing the
72-12 transactions in and movement of the pesticide or device;
72-13 (2) is a public official of this state or the federal
72-14 government who was engaged in the performance of an official duty
72-15 in administering state or federal pesticide law or engaged in
72-16 pesticide research;
72-17 (3) is the manufacturer or shipper of a pesticide that
72-18 was for experimental use only by or under the supervision of an
72-19 agency of this state or of the federal government authorized by law
72-20 to conduct research in the field of pesticides and the manufacturer
72-21 or shipper held a valid experimental use permit as provided by this
72-22 chapter; and
72-23 (4) manufactured or formulated a pesticide or device
72-24 solely for export to a foreign country and prepared or packed the
72-25 pesticide or device according to the specifications or directions
72-26 of the purchaser.
72-27 (b) It is a defense to prosecution under Section
73-1 76.201(a)(3) of this code that the defendant is an applicator who,
73-2 after acquiring an unbroken container, opened and transported the
73-3 open container to and from application and storage sites as
73-4 necessary.
73-5 (c) It is an affirmative defense to prosecution under
73-6 Section 76.201(e) of this code that the defendant was using,
73-7 causing to be used, handling, storing, or disposing of the
73-8 pesticide in accordance with a label that complied with this
73-9 chapter and rules adopted under this chapter.
73-10 SECTION 2. Chapters 75 and 125, Agriculture Code, are
73-11 repealed.
73-12 SECTION 3. A license issued under Subchapter E, Chapter 76,
73-13 Agriculture Code, by a state agency other than the Department of
73-14 Agriculture that is of a type that will be issued by the department
73-15 under the changes in law to Subchapter E made by this Act remains
73-16 valid, subject to the terms and conditions under which it was
73-17 issued, for the remainder of the period for which it was issued.
73-18 When the license expires it is subject to renewal under Subchapter
73-19 E, Chapter 76, Agriculture Code, as amended by this Act.
73-20 SECTION 4. The importance of this legislation and the
73-21 crowded condition of the calendars in both houses create an
73-22 emergency and an imperative public necessity that the
73-23 constitutional rule requiring bills to be read on three several
73-24 days in each house be suspended, and this rule is hereby suspended,
73-25 and that this Act take effect and be in force from and after its
73-26 passage, and it is so enacted.