ACG C.S.H.B. 1144 75(R) BILL ANALYSIS
ENVIRONMENTAL REGULATION
C.S.H.B. 1144
By: Turner, Bob
3-25-97
Committee Report (Substituted)
BACKGROUND
The Texas Department of Agriculture (TDA) has the primary responsibility
in Texas for the registration and regulation of pesticides. TDA registers
all pesticides used in Texas, regulates the agricultural application of
pesticides, and enforces worker protection laws. In addition, TDA is
responsible for implementing federal worker protection standards which
have been adopted by the United States Environmental Protection Agency
(EPA).
Currently, TDA's authority to regulate these activities comes from three
sources:
1)Texas Agriculture Code: Chapters 75 (Herbicides), 76 (Pesticides) and
125 (Agricultural Hazard Communications);
2)the Federal Insecticide, Fungicide and Rodenticide Act; and
3) the Federal Worker Protection Standards.
These varying laws and regulations were adopted at different times,
resulting in conflicting and sometimes overlapping requirements. Some of
the provisions in the Texas Code are also outdated or inefficient.
PURPOSE
The purpose of the bill is to consolidate TDA's regulatory authority over
pesticides, eliminate conflicts in regulatory requirements, and repeal
Chapters 75 and 125, Agricultural Code.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill expressly grants rulemaking
authority to the Texas Department of Agriculture (TDA) in SECTION 1 of the
bill (Sections, 76.075(b), 76.104(d), Agriculture Code).
It is the committee's opinion that this bill expressly grants rulemaking
authority to "a regulatory agency" in SECTION 1 of the bill (Sections
76.184(e), Agriculture Code).
It is the committee's opinion that this bill does not expressly grant
rulemaking authority to "a regulatory agency" but such rulemaking
authority is modified or referred to in SECTION 1 of the bill (Sections
76.104(b), 76.114(a), Agriculture Code).
It is the committee's opinion that this bill does not expressly grant
rulemaking authority to the Texas Department of Agriculture, but such
rulemaking authority is modified or refered to in SECTION 1 of the bill
(Sections 76.072, 76.004, 76.105(f), 76.112(e), 76.131(a), Agriculture
Code).
It is the committee's opinion that this bill does not expressly grant
rulemaking authority but modifies existing rulemaking authority given to
the Texas Department of Agriculture by transferring the rulemaking
provisions currently found in Chapter 75, Agriculture Code into SECTION 1
of the bill (Sections 76.115(c), 76.141(a), 76.144(c) Agriculture Code).
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 76, Agriculture Code, as follows:
Section 76.001 The following definitions are added:
(4) "Application of a herbicide" is defined as the spreading of a
herbicide on real property having a continuous boundary line."
(6) "Department" is defined as the Department of Agriculture.
(12) "FIFRA" is defined as the Federal Insecticide, Fungicide, and
Rodenticide Act.
(23)"Registrant" means a person who under this chapter has registered a
pesticide.
(28) "Worker Protection Standard" is defined as the federal worker
protection standard as found in the Code of Federal Regulations, 40
C.F.R. Parts 156 and 170.
Other definitions are renumbered accordingly.
Section 76.002 Authorizes the Texas Department of Agriculture
(department) to include in the list of organisms that constitute pests,
any virus, bacteria, or other microorganism other than a virus, bacteria,
or other microorganism on or in (rather than just in) living man or other
living animals.
Section 76.003(d) States that at the direction of the Texas Natural
Resource Conservation Commission (TNRCC), the department shall consider
any formal request to add any pesticide to the state-limited-use pesticide
list under subsection (b).
Section 76.004 (a) Provisions of Subchapter G are an exception to the
requirement for the Department to conduct five regional hearings before
adopting any rule for carrying out the provisions of this chapter.
Section 76.004 (b) Prohibits any rules adopted by the department for the
purpose of protection or enhancement of water quality from being less
stringent than those adopted by the TNRCC pursuant to recommendations of
the Texas Groundwater Protection Committee.
Section 76.006 (b) Deletes the term "shall" and replacing it with the
term "may", allowing (not requiring) the department to make or provide for
sample tests of a pesticide on request.
Section 76.007 (b) Requires the department to cooperate with the Texas
Groundwater Protection Committee in developing and implementing a
federally mandated state management plan for pesticides in groundwater.
Section 76.007 (d) Inserts the word "a" in the last sentence.
Section 76.009(d) Changes the meetings of the Agricultural Resources
Protection Authority (ARPA) from quarterly to annually.
Section 76.009(i) ARPA shall provide the public with a reasonable
opportunity to appear before it annually (rather than semiannually).
Section 76.009(j)(3) Removes language referring to Chapter 75 and Chapter
125 of the Agriculture Code and clarifying the department's role in
administering rules promulgated by ARPA.
Section 76.021 is amended as follows:
Section 76.021(a) Adds subsections (1) and (2) requiring pesticide labels
to contain label information required by FIFRA, if the pesticide is
subject to registration under that law. If the pesticide is not subject
to that registration, the label must contain the items already delineated
in the statute.
Section 76.021(b) Deletes requirement that labeling shall state the use
classification for which the product is registered.
Section 76.021(c) Is renumbered accordingly, and the reference to
Subsection (a)(2) is corrected to Subsection (a)(2)(B).
Section 76.022 Clarifies that any pesticide or device registered by
the department requires the prominent and conspicuous placement of any
word, statement, or information required by this chapter to appear on a
label of that pesticide or device.
Section 76.023(a) Adds subsections (1) and (2) stipulating that a
pesticide is misbranded if it is subject to registration under FIFRA and
does not fully comply with EPA labeling requirements, or if it is not
subject to registration under FIFRA and it falls into one of the
categories listed in the current statute.
Section 76.041 Amended as follows:
76.041(a) Adds Subsection (e) to list of exceptions.
76.041(c) New language is added to provide that registration is not
required for a pesticide that is not for use in this state and is only
being manufactured, transported, or distributed for use outside of this
state.
76.041(f) Added to prohibit the Texas Feed and Fertilizer Control Service
from registering under Chapter 63 a fertilizer that contains a pesticide
that must be registered with the department under this chapter. Requires
the Texas Feed and Fertilizer Control Service to consult with the
department about the current registration status of a pesticide before
registering any mix containing that pesticide. Requires the department to
notify the Texas Feed and Fertilizer Control Service of any changes to
pesticide registration.
76.041(g) Added to stipulate that a pesticide registered with the
department must continue to be registered as long as the pesticide remains
in the channels of trade in this state. The registrant bears
responsibility to ensure the pesticide maintains a current registration.
76.041(h) Added to state that if the department issues a stop use, stop
distribution or removal order because a pesticide is not currently
registered, the registrant or person required to register is responsible
for taking any necessary action.
Section 76.042 (a)(3) Stipulates that if a pesticide is required to be
registered with the EPA, then a copy of the EPA stamped accepted labeling
and comment pages must be included in the application for registration.
Section 76.045 deletes Department Approval language, and strikes the word
"regulation" replacing it with "registration".
Section 76.046 is renumbered from 76.047 to conform to other changes.
Section 76.047 is renumbered from 76.048, and adds a new Subsection (d)
that allows the department to charge a fee for issuing a permit under this
section in an amount equal to the amount charged for registration under
Section 76.044(a). Other subsections are renumbered to conform to other
changes.
Section 76.071(a) Requires a current pesticide dealer license in order to
distribute regulated herbicides.
Section 76.071(d) is added to prohibit a pesticide dealer from
distributing a restricted-use or state-limited-use pesticide or regulated
herbicide to a person who is not a licensed applicator, under the direct
supervision of an applicator, or a licensed veterinarian. Certain
exceptions are provided.
Section 76.072 Changes the dealer license renewal cycle from one year
to two years of the date of the license being granted or renewed unless
the department by rule adopts a system under which licenses expire on
specified dates during a year.
Section 76.073 Allows registration fees to be prorated by allowing an
application for a pesticide dealer license to be accompanied by a
registration fee (rather than an annual fee). Deletes Subsection (c),
removing language referring to Chapter 75 of the Agriculture Code.
Section 76.075 Deletes all existing language on record keeping and adds
the following:
Section 76.075(a) A person required to obtain a dealer's license by
Section 76.071 is required to keep records of each distribution of
restricted-use or state-limited-use pesticides and regulated herbicides
and maintain copies of those records for at least 2 years after the
distribution date.
Section 76.075(b) Requires the department to adopt rules regarding the
information to be stated in the records.
Section 76.075(c) Authorizes the department to require that a copy of the
records be submitted to the department.
Section 76.075 (d) Authorizes the department to revoke a dealer's license
if the licensee fails to submit a copy of a record or makes false or
fraudulent records.
Section 76.076 Deletes existing language in Subsections (a), (b), and
(c) and adds the following new subsections:
Section 76.076 (a) Authorizes the department to deny an application for
a dealer's license if the applicant fails to comply with this chapter.
The department may also revoke, modify, or suspend a license, assess an
administrative penalty, place on probation a person whose license has been
suspended, or reprimand a licensee for a violation of this chapter.
Section 76.076(b) Authorizes the department, if a license suspension is
probated, to require the person to report regularly to the department, or
to limit business to prescribed areas.
Section 76.076 (c) Subsection (d) is renumbered as Subsection (c).
Section 76.077(b)(1) Adds that this subchapter does not apply to a
licensed pesticide applicator who distributes regulated herbicides.
Section 76.101 Amended as follows:
Section 76.101(b) "experiment station" is changed to "Agricultural
Experiment Station".
Section 76.101(d) (4), which refers to Chapter 75 (Agriculture
Code), is deleted.
Section 76.102 (a) (9) is added to allow the department to have other
license use categories as necessary to comply with federal requirements.
Prohibits the department from adopting license use categories designated
by statutes for regulation by another agency.
Section 76.104(b)(1) adds that rules adopted under this section may
prescribe methods to be used in the application of a regulated herbicide.
Section 76.104(b)(3) adds that rules adopted under this section may
restrict or prohibit use of a regulated herbicide.
Section 76.104 (d) Added to require the department to adopt worker
protection standards if the federal worker protection standard is not in
effect. Allows the department to adopt other rules for the protection of
farm workers and pesticide handlers.
Section 76.105 Amended as follows:
Section 76.105(a) Provides an exception under 76.003(e) on prohibiting
the purchase or use (rather than just use) of a restricted-use or
state-limited-use pesticide, or regulated herbicide unless the person is
licensed and authorized to purchase or use those pesticides or herbicides,
or an individual under the direct supervision of a licensed applicator,
except as provided in Sections 76.003(e) and 76.116(f).
Section 76.105 (a)(4) adds an exemption for a licensed veterinarian
under stipulated conditions.
Section 76.105(b) A licensed applicator may not supervise an applicator
whose license or certificate is under suspension or revocation. A
licensed applicator is required to be physically present at the time and
place of application if the label of the applied pesticide states that the
presence of the licensed applicator is required. The term "noncommercial
or a licensed private"
is deleted.
Section 76.105 (c) language is deleted and (d) is is renumbered to become
the new (c) which allows training as a handler under the federal worker
protection standard to suffice as the training requirement for a person
working under a licensed applicator.
Section 76.105(d) Adds person who uses regulated herbicides to those who
must comply with all applicable rules regarding restricted use pesticides
and regulated herbicides.
Section 76.105(e) Added to state that a person may not purchase
restricted-use and state-limiteduse pesticides or regulated herbicides
unless licensed, certified, or authorized.
Section 76.105(f) adds regulated herbicides.
Section 76.108 (a) Adds regulated herbicides.
Section 76.108 (c)(1) is deleted.
Section 76.108 (d)(3) deletes the "applicant's representative," leaving
only the applicant responsible for fulfilling license requirements.
Section 76.108(e) Adds "purchase" to the list of authorized actions for
licensees, and regulated herbicides on the list of what can be purchased
or used.
Section 76.108(f) which references business commercial applicator
licenses is deleted.
Subsequent section is renumbered.
Section 76.109(b) Removes the exception for governmental applicants from
those who must pay a license fee.
Section 76.109(d) Adds "purchase" to the list of authorized actions for
licensees.
Section 76.110(a)(2) Licensing examination must demonstrate that the
applicant has knowledge of the use and effects of regulated herbicides.
Section 76.111 Changes title from "COMMERCIAL APPLICATOR PROOF OF
FINANCIAL RESPONSIBILITY" to "APPLICATOR BUSINESS; PROOF OF FINANCIAL
RESPONSIBILITY." Other amendments are as follows:
Section 76.111(a) New language defines an applicator business as any
person applying statelimited-use or restricted-use pesticides or regulated
herbicides to the land of another for compensation, and who is a licensed
commercial applicator or employs at least one licensed commercial
applicator. The need for a license applicant to file a bond as principal
is deleted.
Section 76.111 Subsections (b) and (c) are deleted and replaced with:
76.111(b) Exempts employees and agents of an applicator business from
this section. This clarifies that the insurance policy must be carried by
the applicator business.
76.111(c) Requires each applicator business to file with the agency a
liability insurance policy certification of policy or proof of financial
responsibility deemed acceptable by the department which covers the
applicator business, its employees and its agents.
76.111(d) Amended by changing "applicant" to "applicator business, its
employees, or its agents."
76.111(e) Is deleted and replaced with language from (f) requiring that
the amount of proof of financial responsibility may not be less than
$100,000 per occurrence for property damage or $100,000 per occurrence for
bodily injury or an aggregate of $200,000 per occurrence. Changes
reference to "State Board of Insurance" to "Texas Department of
Insurance."
76.111(g) Deleted.
76.111(h) changed to (f) and replaces any reference to an individual
applicant with "applicator business", and prohibits an agency head from
accepting a policy with a deductible clause from an applicator business
who has not satisfied the amount of the deductible in a prior claim.
76.111(g) Added to require an applicator business to cease
state-limited-use and restricted-use pesticide or regulated herbicide
applications if the applicator business is unable to provide proof of
financial responsibility.
76.111(i) Deleted.
76.111(j) Deleted.
76.111(k) Deleted.
76.112 References to "appropriate regulatory agency" are changed to
"department."
76.112(a) In addition to current requirements, a private applicator
may use or supervise the use of a restricted-use or state-limited-use
pesticide or regulated herbicide on the property of another person without
compensation other than the trading of services related to agricultural
production, including the use of equipment.
76.112(b) Adds that a private applicator must be licensed to use
regulated herbicides.
76.112(c) Reference to "Subdivision (1)" is changed to "Subsection
(a)(1)".
76.112(f) The department may not issue an original license before the
applicant has attended a training course conducted by the Texas
Agricultural Extension Service or another training course approved by the
department. The department is required to approve appropriate training
courses developed under the coordination of the Texas Agricultural
Extension Service. Regulated herbicides are required to be covered in the
training course.
76.112(h) Allows a licensed private applicator to purchase pesticides,
and to purchase, use, or supervise the use of regulated herbicides.
76.112(j) Adds that a certified private applicator is authorized to use
regulated herbicides and that a certified private applicator may not
supervise the use of restricted-use and state-limited-use pesticides or
regulated herbicides.
Section 76.114 Amended as follows:
76.114(a) A regulatory agency shall require each commercial and
noncommercial applicator licensee to maintain records of all pesticide
applications . The department has the authority to require commercial and
noncommercial applicators to maintain records of restricted-use and
statelimited-use applications separate from other business records. The
agency by rule shall prescribe the information to be entered into the
records.
76.114 (b) Private applicators must maintain records of regulated
herbicide and state-limited-use pesticides applications and restricted-use
pesticide applications required by federal law.
76.114(c) Requires a licensee to keep required records accessible and
available for copying in addition to storing them in a location suitable
to preserve them.
76.114(d) On written request, a licensee or certificate holder must
furnish the department a copy of any pertinent record. The department may
require all persons who apply a regulated herbicide to periodically submit
a copy of required records.
Section 76.115 Is changed from "REGISTRATION AND INSPECTION OF
EQUIPMENT" to "INSPECTION OF EQUIPMENT."
76.115(a) Allows the regulatory agency to inspect equipment used in the
application of a restricted-use or state-limited-use pesticide.
76.115(b) Allows a regulatory agency to require repairs before further
use in the application of pesticides.
76.115(c) The department by rule may provide requirements for equipment
used to apply regulated herbicides and regulate or prohibit the use of
certain equipment in the application of regulated herbicides.
Section 76.116(a) Authorizes the regulatory agency to suspend, modify, or
revoke a license or certificate. Allows combination of enforcement
actions.
Section 76.116(a)(5) Changes "a bond or policy of insurance" to
"financial responsibility."
Sections 76.116(d) and (e) amended to allow the department to not renew
in addition to suspending, revoking, or modifying a license.
Section 76.116(f) is added to prohibit an applicator whose license or
certificate is under suspension or revocation from applying certain
pesticides and herbicides under the direct supervision of another licensed
applicator during that period of suspension or revocation.
Section 76.117 Clarifies that a property owner is not prohibited from
using a pesticide on the property owner's house, lawn, or garden that is
labeled for that use other than a pesticide that may be registered or
(rather than "and") classified for the state or one or more of its
designated areas.
Section 76.131 (a) Authorizes the department to adopt rules governing the
storage and disposal of pesticides and pesticide containers for the
purpose of preventing any water (rather than waterway) pollution provided
that such rules are not less stringent than rules adopted by the TNRCC.
Section 76.131 (c) Is added to require applicators and entities covered
by this chapter who normally store products listed under FIFRA in certain
amounts and locations to provide to the fire chief the name and telephone
number of the applicator or a knowledgeable representative of the
applicator or other entity storing the product who can be contacted for
information in the case of an emergency.
Section 76.131 (d) Is added to require each applicator or entity to
provide to the fire chief a copy of the list of pesticides stored by the
applicator or entity, and to notify the fire chief of any significant
changes relating to the pesticides if requested by the fire chief.
Section 76.131 (e) Is added to require the fire chief or the fire chief's
representative to be permitted to conduct on-site inspections of the
stored pesticides for the sole purpose of preparing fire department
activities in the case of emergency.
Section 76.131 (f) Requires the fire chief to make the stored pesticide
list available to members of the fire department having jurisdiction over
the workplace and to personnel outside the department who are responsible
for preplanning emergency activities. Prohibits the fire chief from
otherwise distributing the material without the approval of the
applicator.
A new SUBCHAPTER G. "HERBICIDES" is added and following Subchapters are
renumbered.
Section 76.141 This section is added as follows:
Section 76.141 (a) After a public hearing, the department may by rule
adopt a list of regulated herbicides for the state or for one or more
designated areas of the state.
Section 76.141(b) The department may include on the list of regulated
herbicides, a herbicide the department determines requires additional
restrictions to prevent a hazard to desirable vegetation.
Section 76.141(c) A person must have a dealers license to distribute a
regulated herbicide.
Section 76.142 This section is added as follows:
Section 76.142(a) A person applying a regulated herbicide must act in
accordance with the rules.
Section 76.142(b) Stipulates joint responsibility between a commercial
applicator and the person in control of the crop or land to which the
regulated herbicide is applied.
Section 76.142(c) If the department finds that an application of a
regulated herbicide is hazardous to crops or valuable plants, the
department may prohibit the application.
Section 76.143 is added to allow the department to hold a public hearing
to hear a request for a revision of a rule, an exemption from a
requirement of this chapter, or a prohibition of the spraying of a
regulated herbicide.
Section 76.144 This section is added as follows:
Section 76.144(a) Allows a commissioners court to implement restrictions
on herbicide use.
Section 76.144(b) Allows a commissioners court to rescind its
restrictions on herbicide use.
Section 76.144(c) Requires the department to adopt rules pertaining to
76.143(a).
Section 76.144(d) Establishes conditions when the department can suspend
rules regarding the application of herbicides.
Section 76.144(e) Requires a commissioners court to hold a hearing
regarding a pending action on herbicide use.
Section 76.144 (f) Commissioners court shall transcribe any hearings and
make its findings based on the hearing and conclusions of the law.
Section 76.144 (g) Any appeal of the commissioners court order must be
done within 21 days after the date on which an order is entered.
Section 76.144 (h) The commissioners court must notify the department of
a change in the status of a county or a portion of the county.
Section 76.151(b)(4) entitles a regulatory agency to enter any premises
to observe the use and application of regulated herbicides.
Section 76.153 Section title is changed from "STOP-SALE ORDER" to "STOP
USE, STOP DISTRIBUTION, OR REMOVAL ORDER."
Section 76.153(a) Is amended to stipulate that if the department has
reason to believe that a pesticide is in violation of this chapter the
department may issue and enforce an order to stop the use or distribution
of the pesticide or requiring the pesticide to be removed and secured from
distribution. The person who receives the order may not sell, distribute,
or use the pesticide until the department determines that the pesticide is
in compliance with this chapter or does not present a hazard to the public
health, safety, or welfare.
Section 76.155 A reference to "agency" is changed to "department".
Section 76.1555 (a) Authorizes the department to assess an administrative
penalty against a person in violation of this chapter. Deletes a
reference to Chapter 75 and 76, Agriculture Code.
76.1555 (b) Deletes a reference to Chapters 75 and 76, Agriculture
Code. Makes conforming and non-substantive changes.
Section 76.181 (b) is deleted.
Section 76.182 (b) is deleted.
Section 76.183 Title is changed from APPEAL OF STOP SALE ORDER to APPEAL
OF STOP USE, STOP DISTRIBUTION, OR REMOVAL ORDER.
76.183(a) is amended to determine and clarify legal recourse when a
stop use, stop distribution, or removal order is issued.
Section 76.184 Changes heading from "REPORTS OF PESTICIDE DAMAGE CLAIMS"
to "REPORTS OF PESTICIDE ADVERSE EFFECTS." Deletes current language and
adds new subsections as follows:
76.184(a) Authorizes a person claiming adverse effects from an
application of a pesticide to file a complaint report with the appropriate
regulatory agency. Requires the regulatory agency to prepare a form for
the report which must include the name of the person responsible for the
application, if known, and the name of the owner or lessee of the land.
76.184(b) Requires the regulatory agency to notify the licensee, owner,
or lessee of the land on which the alleged violation occurred , and any
person who may be charged with responsibility for the adverse effects
claimed, and to furnish copies of the complaint to those people upon
request.
76.184(c) Requires the complaining party to permit the regulatory agency
and licensee to observe the land or nontarget organism alleged to have
been adversely affected in order to assess any adverse effects.
76.184(d) Failure to file a complaint does not bar a civil or criminal
action from being filed and maintained.
76.184(e) Is added to allow the regulatory agency to prescribe by rule
the procedures to be followed in the investigation of a report claiming
adverse effects from an application of a pesticide.
Section 76.201 is amended as follows:
76.201(a)(1) Provides that a person commits an offense if the person
distributes within this state or delivers for transportation or transports
in intrastate commerce or between points within this state through a point
outside this state a pesticide not registered as provided by this chapter,
adding an exception for a pesticide that is not for use in this state and
is only being manufactured, transported, or distributed for use outside of
this state.
76.201(b) Adds a stipulation that provides that a person commits an
offense if the person detaches, alters, defaces, or destroys any label
under this chapter before the container has been emptied and rinsed
properly.
76.201(d) Stipulates that a person commits an offense if the person
commits an act for which a license may not be renewed or violates any
provision of this chapter to which this section does not expressly apply.
76.201(e) (2-5) are added to clarify and reference offenses under this
chapter.
SECTION 2. Repeals Chapters 75 and 125, Agriculture Code.
SECTION 3. Clarifies that licenses issued prior to this legislation
remain valid, subject to the terms and conditions under which it was
issued. When expired, the license is subject to renewal under Subchapter
E, Chapter 76, Agriculture Code, as amended by this Act.
SECTION 4. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
HB 1144
CSHB 1144
Section 76.001(20) of the original, which defines "Regulatory Agency," is
deleted.
Section 76.001(20) of the substitute, which defines "Regulatory Agency" is
not deleted, but is renumbered to become (24).
Section 76.004 (a) of the original is not amended.
Section 76.004 (a) of the substitute is amended to stipulate that
provisions of Subchapter G are an exception to the requirement for the
Department to conduct five regional hearings before adopting any rule for
carrying out the provisions of this chapter.
Section 76.005 (a) of the original deletes the phrase "or a regulatory
agency" leaving the department responsible for publishing any required
notice.
Section 76.005 (a) of the substitute is not amended.
Section 76.007(g) of the original changes "A regulatory agency" to "The
department".
Section 76.007(g) of the substitute is not amended.
Section 76.009(d) of the original is not amended.
Section 76.009(I) of the original is not amended.
Section 76.009(d) of the substitute changes the meetings of the
Agricultural Resources Protection Authority (ARPA) from quarterly to
annual.
Section 76.009(I) of the substitute requires ARPA to provide the public
with a reasonable opportunity to appear before it annually (rather than
semiannually).
Section 76.071 of the original does not have a subsection (d).
Section 76.071(d) of the substitute is added to prohibit a pesticide
dealer from distributing a restricted-use or state-limited-use pesticide
or regulated herbicide. Certain exceptions are provided.
Section 75.075(c) of the original authorizes the department to require
that a copy of the records be submitted to the department. Copies
submitted are public record
Section 75.075(c) of the substitute authorizes the department to require
that a copy of the records be submitted to the department, but does not
includ that copies submitted are public record.
Section 76.077(b)(1) of the original is not amended.
Section 76.077(b)(1) of the substitute adds that this subchapter does not
apply to a licensed pesticide applicator who distributes regulated
herbicides.
In the original:
Section 76.104 Title is changed from "AGENCY RULES FOR APPLICATION OF A
PESTICIDE" to "DEPARTMENT RULES FOR APPLICATION OF A PESTICIDE."
Section 76.104(a) Is changed to establish that the department, not the
head of a regulatory agency, may adopt rules, after an appropriate
hearing, to carry out the provisions of this subchapter.
Section 76.104(b)(1) is not amended.
Section 76.104(b)(3) is not amended.
Section 76.104(c) Changes "a regulatory agency" to "the department."
In the substitute:
Section 76.104 Title is not amended.
Section 76.104(a) is not amended.
Section 76.104(b)(1) adds that rules adopted under this section may
prescribe methods to be used in the application of a regulated herbicide.
Section 76.104(b)(3) allows restriction or prohibition on the use of a
regulated herbicide.
Section 76.104(c) is not amended.
Section 76.105(a) of the original provides an exception under 76.003(c)
on prohibiting the purchase or use (rather than just use) of a
restricted-use or state-limited-use pesticide unless the person is
licensed and authorized to purchase or use those pesticides or an
individual under the direct supervision of a licensed applicator, except
as provided in Sections 76.105(b), 76.003(c) and 76.116(f).
Section 76.105(a) of the substitute provides an exception under 76.003(c)
on prohibiting the purchase or use (rather than just use) of a
restricted-use or state-limited-use pesticide, or a regulated herbicide
unless the person is licensed and authorized to purchase or use those
pesticides or regulated herbicide, or an individual under the direct
supervision of a licensed applicator, except as provided in Sections
76.105(b), 76.003(c) and 76.116(f).
The substitute also adds an exemption (4) for a licensed veterinarian
under stipulated conditions.
Section 76.105(b) of the original uses the term "licensed non-commercial
or licensed private applicator."
Section 76.105(b) of the substitute changes the term "licensed
non-commercial or licensed private applicator" to "licensed applicator."
Section 76.105 (c) of the original is not amended.
Section 76.105 of the substitute deletes the language of (c) and (d) is is
renumbered to become the new (c).
Section 76.105(d) of the original allows training under the federal worker
protection standard to serve as the training requirement for a person
working under a licensed applicator. This corresponds to Section 76.105
(c) of the substitute.
Section 76.105(c) of the substitute allows training under the federal
worker protection standard to serve as the training requirement for a
person working under a licensed applicator. This corresponds to Section
76.105 (d) of the original.
Section 76.105(e) of the original is not amended, but corresponds to
Section 76.105(d) of the substitute which is amended.
Section 76.105(e) of the substitute corresponds to Section 76.105 of the
original, but is amended to include regulated herbicides.
Section 76.105(f) of the original is added to state that a person may not
purchase restricted-use or state-limited-use pesticides unless licensed,
certified, or authorized.
Section 76.105(e) of the substitute is added to state that a person may
not purchase restricted-use or state-limited-use pesticides or regulated
herbicides unless licensed, certified, or authorized.
Section 76.105(g)(1) of the original is not amended, and corresponds to
Section 76.105(f)(1) of the substitute, which is amended.
Section 76.105(f)(1) of the substitute allows department to adopt rules or
establish programs that the EPA or another federal agency requires as a
condition of approval to authorize the use of regulated herbicides.
Corresponds to Section 76.105(g)(1) of the original, which is not amended.
Section 76.105(h) of the original corresponds to Section 76.105(g) of the
substitute.
Section 76.105(g) of the substitute corresponds to Section 76.105(h) of
the original.
Section 76.106 All references to "agency" or "regulatory agency" are
changed to "department" in the original bill.
Section 76.106 of the substitute is not amended.
In the original:
Section 76.108 All references to "agency" or "regulatory agency" are
changed to "department"; further amendments are as follows:
Section 76.108 (a) has no further amendments.
Section 76.108 (c)(1) is not deleted.
Section 76.108 (d)(3) is not amended.
Section 76.108(e) Adds "purchase" in the list of authorized actions for
licensees.
Section 76.108(f) which references business commercial applicator licenses
is deleted.
Subsequent sections are renumbered.
In the substitute:
Section 76.108 does not amend references to "agency" or "regulatory
agency."
Section 76.108 (a) Adds regulated herbicides.
Section 76.108 (c)(1) is deleted.
Section 76.108 (d)(3) deletes the "applicant's representative," leaving
only the applicant responsible for fulfilling license requirements.
Section 76.108(e) Adds "purchase" to the list of authorized actions for
licensees, and regulated herbicides on the list of what can be purchased
or used.
Section 76.108(f) which references business commercial applicator licenses
is deleted.
Subsequent sections are renumbered.
Section 76.109 All references to "regulatory agency" are changed to
"department" in the original. Additional amendments in the original
follow:
Section 76.109(b) of the original prohibits charging a governmental entity
applicant a license fee.
Section 76.109(d) Adds "purchase" to the list of authorized actions for
licensees.
Section 76.109 of the substitute does not change references to "regulatory
agency."
Amendments in the substitute are as follows:
Section 76.109(b) of the substitute deletes governmental applicants as
exceptions to those who must pay a license fee.
Section 76.109(d) of the substitute adds "purchase" to the list of
authorized actions for licensees, and regulated herbicides to the list of
what can be purchased or used.
Section 76.110 All references to "appropriate regulatory agency" are
changed to "department" in the original.
Section 76.110 of the substitute retains the use of "appropriate
regulatory agency"
Section 76.110(a)(2) of the substitute requires licensing examination
demonstrate that the applicant has knowledge of the use and effects of
regulated herbicides.
Section 76.111 of the original changes title from "COMMERCIAL APPLICATOR
PROOF OF FINANCIAL RESPONSIBILITY" to "APPLICATOR BUSINESS; PROOF OF
FINANCIAL RESPONSIBILITY." All references to "regulatory agency" are
changed to "department"; further amendments in the original are as
follows:
Section 76.111(a) New language defines an applicator business as any
person or entity applying state-limited-use or restricted-use pesticides
to the land of another for compensation, and who is 1) a licensed
commercial applicator, or 2) employs at least one licensed commercial
applicator. The need for a license applicant to file a bond as principal
is deleted.
Section 76.111 Subsections (b) and (c) are deleted and replaced with:
76.111(b) Exempts employees and agents of an applicator business from this
section. This clarifies that the insurance policy must be carried by the
applicator business.
76.111(c) Requires each applicator business to retain, for departmental
inspection, a liability insurance policy certification of policy or proof
of financial responsibility deemed acceptable by the department which
covers the applicator business, its employees and its agents.
76.111(d) This section is amended by changing "applicant" to "applicator
business".
76.111(e) Is deleted and replaced with language from (f) requiring that
the amount of proof of financial responsibility may not be less than an
aggregate of $200,000 for bodily injury to more than one person.
Clarifies that the department may change coverage requirements. Changes
reference to "State Board of Insurance" to "Texas Department of
Insurance."
76.111(g) Added to require an applicator business to cease
state-limited-use and restricted-use
Section 76.111 of the substitute changes title from "COMMERCIAL APPLICATOR
PROOF OF FINANCIAL RESPONSIBILITY" to "APPLICATOR BUSINESS; PROOF OF
FINANCIAL RESPONSIBILITY." References to "regulatory agency" are not
changed. Other amendments in the substitute are as follows:
Section 76.111(a) New language defines an applicator business as any
person or entity applying state-limited-use or restricted-use pesticides
or regulated herbicides to the land of another for compensation, and who
is 1) a licensed commercial applicator, or 2) employs at least one
licensed commercial applicator. The need for a license applicant to file a
bond as principal is deleted.
Section 76.111 Subsections (b) and (c) are deleted and replaced with:
76.111(b) Exempts employees and agents of an applicator business from this
section. This clarifies that the insurance policy must be carried by the
applicator business.
76.111(c) Requires each applicator business to file with the agency a
liability insurance policy certification of policy or proof of financial
responsibility deemed acceptable by the department which covers the
applicator business, its employees and its agents.
76.111(d) Amended by changing "applicant" to "applicator business, its
employees, or its agents."
76.111(e) Is deleted and replaced with language from (f) requiring that
the amount of proof of financial responsibility may not be less than
$100,000 per occurrence for property damage or $100,000 per occurrence for
bodily injury or an aggregate of $200,000 per occurrence. Clarifies that
the department may change coverage requirements. Changes reference to
"State Board of Insurance" to "Texas Department of Insurance."
76.111(g) Added to require an applicator business to cease
state-limited-use and restricted-use pesticide or regulated herbicide
applications if the applicator business is unable to provide proof of
financial responsibility.
In the original:
Section 76.112 All references to "regulatory agency" are changed to
"department". Further amendments are as follows:
76.112(a) In addition to current requirements, a private applicator may
use or supervise the use of a restricted-use or state-limited-use
pesticide on the property of another person without compensation other
than the trading of services related to agricultural production, including
the use of equipment.
76.112(b) is not amended.
76.112(c) Reference to "Subdivision (1)" is changed to "Subsection (a)(1)".
76.112(f) The department may not issue an original license before the
applicant has attended a training course conducted by the Texas
Agricultural Extension Service or another training course approved by the
department. The department is required to approve appropriate training
courses developed under the coordination of the Texas Agricultural
Extension Service.
76.112(h) Allows a licensed private applicator to purchase pesticides.
76.112(j) Adds that a certified private applicator may not supervise the
use of restricted-use and state-limited-use pesticides.
In the substitute:
Section 76.112 References to "regulatory agency" are changed to
"department." Further amendments are as follows:
76.112(a) In addition to current requirements, a private applicator may
use or supervise the use of a restricted-use or state-limited-use
pesticide or regulated herbicide on the property of another person without
compensation other than the trading of services related to agricultural
production, including the use of equipment.
76.112(b) Adds that a private applicator must be licensed to use regulated
herbicides.
76.112(c) Reference to "Subdivision (1)" is changed to "Subsection (a)(1)".
76.112(f) The department may not issue an original license before the
applicant has attended a training course conducted by the Texas
Agricultural Extension Service or another training course approved by the
department. The department is required to approve appropriate training
courses developed under the coordination of the Texas Agricultural
Extension Service. Regulated herbicides are required to be covered in the
training course.
76.112(h) Allows a licensed private applicator to purchase pesticides, and
to purchase, use, or supervise the use of regulated herbicides.
76.112(j) Adds that a certified private applicator is authorized to use
regulated herbicides and that a certified private applicator may not
supervise the use of restricted-use and state-limited-use pesticides or
regulated herbicides.
Section 76.113 of the original changes "regulatory agency" to "department".
Section 76.113 of the substitute is not amended.
In the original:
76.114(a) The department shall require each commercial and noncommercial
applicator licensee to maintain records of all pesticide applications .
The department has the authority to require commercial and noncommercial
applicators to maintain records of restricted-use and state-limited-use
applications separate from other business records. The department by rule
shall prescribe the information to be entered into the records.
76.114 (b) Private applicators must maintain records of restricted-use and
state-limited-use pesticides and regulated herbicides applied in a
regulated county.
76.114(d) On written request of the department, a licensee or certificate
holder must furnish the department a copy of any pertinent record. The
department may require all persons who apply a regulated herbicide to
periodically submit a copy of required records.
In the substitute:
76.114(a) A regulatory agency shall require commercial and noncommercial
applicators to maintain records of all pesticide. applications. The
department has the authority to require commercial and noncommercial
applicators to maintain records of restricted-use and state-limited-use
pesticide applications separate from other business records. The
department by rule shall prescribe the information to be entered into the
records.
76.114 (b) Private applicators must maintain records of regulated
herbicide and statelimited-use pesticide applications and maintain those
records as required by federal law.
76.114(d) On written request of the regulatory agency, a licensee must
furnish the department a copy of any pertinent record. The department may
require all persons who apply a regulated herbicide to periodically submit
a copy of required records.
In the original:
Section 76.115 Is changed from "REGISTRATION AND INSPECTION OF EQUIPMENT"
to "INSPECTION OF EQUIPMENT." (a) and (b) are amended to change
"regulatory agency" to "department", and further amendments are as
follows:
76.115(a) Allows the department to inspect equipment used in the
application of a restricted-use or state-limited-use pesticide.
76.115(b) Allows the department to require repairs or alterations of
equipment before further use.
76.115(c) The department by rule may provide requirements for equipment
used to apply regulated herbicides and regulate or prohibit the use of
certain equipment in the application of regulated herbicides.
76.115(d) Deleted.
In the substitute:
Section 76.115 Is changed from "REGISTRATION AND INSPECTION OF EQUIPMENT"
to "INSPECTION OF
EQUIPMENT." (a) and (b) are not amended to change "regulatory agency".
Further amendments are as follows:
76.115(a) Allows the regulatory agency to inspect equipment used in the
application of a restricted-use or state-limited-use pesticide.
76.115(b) Adds a stipulation that the repairs of equipment may be required
before further use in the application of restricted-
use or state-limited-use pesticides.
76.115(c) The department by rule may provide requirements for equipment
used to apply regulated herbicides and regulate or prohibit the use of
certain equipment in the application of regulated herbicides.
76.115(d) Is not deleted.
In the original:
Section 76.116 References to "regulatory agency" are replaced with
"department". Further amendments are as follows:
76.116(a) Authorizes the department to refuse to renew a license. Allows
combination of enforcement actions.
76.116(a)(3) "Head of a regulatory agency by which the licensee is
licensed" is changed to "commissioner".
76.116(a)(5) Deletes reference to "bond".
76.116(d) changes "governing officer or board of the agency" to the
"commissioner."
76.116(d) and (e) amended to allow the department to not renew in addition
to suspending, revoking, or modifying a license.
In the substitute:
Section 76.116 References to "regulatory agency" are not changed.
Amendments are as follows:
76.116(a) Authorizes the department to suspend, modify, or revoke a
license or certificate. Allows combination of enforcement actions.
76.116(a)(3) is not amended.
76.116(a)(5) Changes "bond or policy of insurance" to "financial
responsibility."
76.116(d) does not change "governing officer or board of the agency."
76.116(d) and (e) amended to allow the department to not renew in addition
to suspending, revoking, or modifying a license.
Section 76.116(f) is added to prohibit an applicator whose license or
certificate is under suspension or revocation from applying certain
pesticides under the direct supervision of another licensed applicator
during that period of suspension or revocation.
Section 76.116(f) is added to prohibit an applicator whose license or
certificate is under suspension or revocation from applying certain
pesticides and herbicides under the direct supervision of another licensed
applicator during that period of suspension or revocation.
Public Hearing: The original bill has no corresponding provision.
Section 76.143 Allows the department to hold a public hearing to hear a
request for an exemption from a requirement in this chapter, or a
prohibition of spraying regulated herbicide, after the request is received
in writing.
Section 76.143 of the original corresponds to Section 76.144 of the
substitute.
Section 76.144 of the substitute corresponds to Section 76.143 of the
original.
Section 76.151 of the original changes "regulatory agency" to "department".
Section 76.151(b)(4) does not refer to regulated herbicides.
Section 76.151 does not change "regulatory agency."
76.151(b)(4) adds "or regulated herbicide."
Section 76.154 of the original changes references of "agency" to
"department".
Section 76.154 of the substitute is not amended.
Section 76.156 (a) of the original is deleted. The subsections are
renumbered accordingly.
Section 76.156 (a) of the substitute is not deleted.
Original HB 1144:
76.184(a) Authorizes a person claiming adverse effects from an application
of a pesticide to file a complaint report with the department. Requires
the department to prepare a form for the report which must include the
name of the person responsible for the application, if known, and the name
of the owner or lessee of the land.
76.184(b) Requires the department to notify the licensee, owner, or lessee
of the land on which the alleged violation occurred , and any person who
may be charged with responsibility for the adverse effects claimed, and to
furnish copies of the complaint to those people upon request.
76.184(c) Requires the complaining party to permit the department and
licensee to observe the land or nontarget organism alleged to have been
adversely affected in order to assess any adverse effects.
76.184(d) Failure to file a complaint does not bar a civil or criminal
action from being filed and maintained.
76.184(e) Is added to allow the department to prescribe by rule the
procedures to be followed in the investigation of a report claiming
adverse effects from an application of a pesticide.
Committee Substitute HB 1144:
76.184(a) Authorizes a person claiming adverse effects from an application
of a pesticide to file a complaint report with the appropriate regulatory
agency. Requires the regulatory agency to prepare a form for the report
which must include the name of the person responsible for the application,
if known, and the name of the owner or lessee of the land.
76.184(b) Requires the regulatory agency to notify the licensee, owner, or
lessee of the land on which the alleged violation occurred , and any
person who may be charged with responsibility for the adverse effects
claimed, and to furnish copies of the complaint to those people upon
request.
76.184(c) Requires the complaining party to permit the regulatory agency
and licensee to observe the land or nontarget organism alleged to have
been adversely affected in order to assess any adverse effects.
76.184(d) Failure to file a complaint does not bar a civil or criminal
action from being filed and maintained.
76.184(e) Is added to allow the regulatory agency to prescribe by rule the
procedures to be followed in the investigation of a report claiming
adverse effects from an application of a pesticide.
Section 76.201(e)(3) of the original makes a reference to Section
76.143(c).
Section 76.201(e)(3) of the original makes a reference to Section
76.144(c).
SECTION 2. Repeals Chapters 75 and 125, Agriculture Code.
SECTION 2. Repeals Chapters 75 and 125, Agriculture Code.
SECTION 3. Clarifies that licenses issued prior to this legislation
remain valid, subject to the terms and conditions under which it was
issued. When expired, the license is subject to renewal under Subchapter
E, Chapter 76, Agriculture Code, as amended by this Act.
SECTION 3. Clarifies that licenses issued prior to this legislation
remain valid, subject to the terms and conditions under which it was
issued. When expired, the license is subject to renewal under Subchapter
E, Chapter 76, Agriculture Code, as amended by this Act.
SECTION 4. Emergency clause.
SECTION 4. Emergency clause.