By Turner of Coleman, et al.                          H.B. No. 1144

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the consolidation of herbicide and pesticide laws under

 1-3     the jurisdiction of the Department of Agriculture.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Chapter 76, Agriculture Code, is amended to read

 1-6     as follows:

 1-7               CHAPTER 76.  PESTICIDE AND HERBICIDE REGULATION

 1-8                      SUBCHAPTER A.  GENERAL PROVISIONS

 1-9           Sec. 76.001.  Definitions.  In this chapter:

1-10                 (1)  "Active ingredient" means:

1-11                       (A)  in the case of a pesticide other than a

1-12     plant regulator, defoliant, or desiccant, an ingredient that

1-13     prevents, destroys, repels, or mitigates a pest;

1-14                       (B)  in the case of a plant regulator, an

1-15     ingredient that through physiological action accelerates or retards

1-16     the rate of growth or rate of maturation or otherwise alters the

1-17     behavior of an ornamental or crop plant or the product of an

1-18     ornamental or crop plant;

1-19                       (C)  in the case of a defoliant, an ingredient

1-20     that causes leaves or foliage to drop from a plant; or

1-21                       (D)  in the case of a desiccant, an ingredient

1-22     that artificially accelerates the drying of plant tissue.

1-23                 (2)  "Animal" means a vertebrate or invertebrate

1-24     species, including man, other mammals, birds, fish, and shellfish.

 2-1                 (3)  "Antidote" means a practical treatment used in

 2-2     preventing or lessening ill effects from poisoning, including first

 2-3     aid.

 2-4                 (4)  "Application of a herbicide" means the spreading

 2-5     of a herbicide on real property having a continuous boundary line.

 2-6                 (5)  "Defoliant" means a substance or mixture of

 2-7     substances intended to cause the leaves or foliage to drop from a

 2-8     plant, with or without causing abscission.

 2-9                 (6)  "Department" means the Department of Agriculture.

2-10                 (7) [(5)]  "Desiccant" means a substance or mixture of

2-11     substances intended to artificially accelerate the drying of plant

2-12     tissue.

2-13                 (8) [(6)]  "Device" means an instrument or contrivance,

2-14     other than a firearm, that is used to trap, destroy, repel, or

2-15     mitigate a pest or other form of plant or animal life, other than

2-16     man or a bacteria, virus, or other microorganism on or in living

2-17     man or other living animals.  The term does not include equipment

2-18     sold separately from a pesticide.

2-19                 (9) [(7)]  "Distribute" means offer for sale, hold for

2-20     sale, sell, barter, or supply.

2-21                 (10) [(8)]  "Environment" includes water, air, land,

2-22     plants, man, and other animals living in or on water, air, or land,

2-23     and the interrelationships that exist among them.

2-24                 (11) [(9)]  "Equipment" means any type of ground,

2-25     water, or aerial equipment or contrivance employing motorized,

2-26     mechanical, or pressurized power and used to apply a pesticide to

2-27     land or to anything that may be inhabiting or growing or stored on

 3-1     or in the land.  The term does not include a pressurized hand-sized

 3-2     household apparatus used to apply a pesticide or any equipment or

 3-3     contrivance for which the person applying the pesticide is the

 3-4     source of power or energy used in making the pesticide application.

 3-5                 (12)  "FIFRA" means the Federal Insecticide, Fungicide,

 3-6     and Rodenticide Act (7 U.S.C. Section 136 et seq.).

 3-7                 (13) [(10)]  "Fungus" means a non-chlorophyll-bearing

 3-8     thallophyte, including rust, smut, mildew, mold, yeast, or

 3-9     bacteria, but not including a non-chlorophyll-bearing thallophyte

3-10     on or in living man or other living animals or on or in a processed

3-11     food, beverage, or pharmaceutical.

3-12                 (14) [(11)]  "Inert ingredient" means an ingredient

3-13     that is not an active ingredient.

3-14                 (15) [(12)]  "Insect" means any of the numerous small

3-15     invertebrate animals generally having a segmented body and for the

3-16     most part belonging to the class Insecta, comprising six-legged,

3-17     usually winged forms such as beetles, bugs, bees, and flies.  The

3-18     term includes allied classes of arthropods, the members of which

3-19     are wingless and usually have more than six legs, such as spiders,

3-20     mites, ticks, centipedes, and wood lice.

3-21                 (16) [(13)]  "Label" means the written, printed, or

3-22     graphic matter on or attached to a pesticide or device or any of

3-23     its containers or wrappers.

3-24                 (17) [(14)]  "Labeling" means a label or any other

3-25     written, printed, or graphic matter prepared by a registrant:

3-26                       (A)  accompanying the pesticide or device at any

3-27     time; or

 4-1                       (B)  to which reference is made on a label or in

 4-2     literature accompanying or referring to a pesticide or device,

 4-3     except accurate, nonmisleading references made to a current

 4-4     official publication of a federal or state institution or agency

 4-5     authorized by law to conduct research in the field of pesticides.

 4-6                 (18) [(15)]  "Land" means any land or water area,

 4-7     including airspace, and any plant, animal, structure, building,

 4-8     contrivance, or machinery, whether fixed or mobile, appurtenant to

 4-9     or situated on a land or water area or airspace, including any used

4-10     for transportation.

4-11                 (19) [(16)]  "License use category" means a

4-12     classification of pesticide use based on the subject, method, or

4-13     place of pesticide application.

4-14                 (20) [(17)]  "Nematode" means an invertebrate animal of

4-15     the phylum Nemathelminthes and class Nematoda (an unsegmented

4-16     roundworm with an elongated, fusiform, or sac-like body covered

4-17     with cuticle) inhabiting soil, water, plants, or plant parts.

4-18                 (21) [(18)]  "Pesticide" means a substance or mixture

4-19     of substances intended to prevent, destroy, repel, or mitigate any

4-20     pest, or any substance or mixture of substances intended for use as

4-21     a plant regulator, defoliant, or desiccant.

4-22                 (22) [(19)]  "Plant regulator" means a substance or

4-23     mixture of substances intended through physiological action to

4-24     accelerate or retard the rate of growth or rate of maturation, or

4-25     otherwise to alter the behavior of an ornamental or crop plant or

4-26     the product of an ornamental or crop plant, but does not include a

4-27     substance to the extent that it is intended as a plant nutrient,

 5-1     trace element, nutritional chemical, plant inoculant, or soil

 5-2     amendment.

 5-3                 (23)  "Registrant" means a person who has registered a

 5-4     pesticide under this chapter.

 5-5                 (24) [(20)]  "Regulatory agency" means a state agency

 5-6     with responsibility for certifying applicators under Subchapter E

 5-7     of this chapter.

 5-8                 (25) [(21)]  "Restricted-use pesticide" means a

 5-9     pesticide classified as a restricted-use pesticide by the

5-10     Environmental Protection Agency.

5-11                 (26) [(22)]  "Thallophyte" means a

5-12     non-chlorophyll-bearing plant of a lower order than mosses and

5-13     liverworts.

5-14                 (27) [(23)]  "Weed" means any plant that grows where

5-15     not wanted.

5-16                 (28)  "Worker protection standard" means the federal

5-17     worker protection standard as found in the Code of Federal

5-18     Regulations, 40 C.F.R.  Parts 156 and 170.

5-19           Sec. 76.002.  Pests.  The department shall determine what

5-20     organisms constitute pests for purposes of this chapter and may

5-21     include in the list of pests:

5-22                 (1)  any insect, snail, slug, rodent, bird, nematode,

5-23     fungus, weed, or other form of terrestrial or aquatic plant or

5-24     animal life; or

5-25                 (2)  any virus, bacteria, or other microorganism, other

5-26     than a virus, bacteria, or other microorganism on or in living man

5-27     or other living animals.

 6-1           Sec. 76.003.  State-Limited-Use Pesticides.  (a) After notice

 6-2     and public hearing, the department may adopt lists of

 6-3     state-limited-use pesticides for the entire state or for a

 6-4     designated area within the state.

 6-5           (b)  A pesticide may be included on a list of

 6-6     state-limited-use pesticides if the department determines that,

 6-7     when used as directed or in accordance with widespread and commonly

 6-8     recognized practice, the pesticide requires additional restrictions

 6-9     to prevent unreasonable risk to man or the environment, taking into

6-10     account the economic, social, and environmental costs and benefits

6-11     of use of the pesticide.  However, the department shall not place a

6-12     pesticide on the state-limited-use list solely on the basis of

6-13     actual damage or risk of damage to water quality without first

6-14     obtaining approval from the Texas Natural Resource Conservation

6-15     Commission based on the impact of the pesticide's use on water

6-16     quality.

6-17           (c)  The department shall formally request an opinion

6-18     regarding impact on water quality from the Texas Natural Resource

6-19     Conservation Commission during department consideration of any

6-20     amendments to the current list of state-limited-use pesticides.

6-21           (d)  At the direction of the Texas Natural Resource

6-22     Conservation Commission in conjunction with its responsibilities

6-23     pursuant to Chapter 26, Water Code, the department shall consider

6-24     any formal request to add any pesticide to the state-limited-use

6-25     list under Subsection (b), and the department shall issue

6-26     regulations regarding the time, place, and conditions of such

6-27     pesticide's use.

 7-1           (e)  The department may regulate the time and conditions of

 7-2     use of a state-limited-use pesticide and may require that it be

 7-3     purchased or used only:

 7-4                 (1)  with permission of the department;

 7-5                 (2)  under direct supervision of the department in

 7-6     certain areas under certain conditions; or

 7-7                 (3)  in specified quantities and concentrations.

 7-8           (f)  The department may require a person authorized to

 7-9     distribute or use a state-limited-use pesticide to maintain records

7-10     of the person's distribution or use and may require that the

7-11     records be kept separate from other business records.

7-12           Sec. 76.004.  Department Rules.  (a)  Except as provided by

7-13     Subchapter G, after [After] notice, the department shall conduct at

7-14     least five regional hearings throughout the state before the

7-15     adoption of any rule for carrying out the provisions of this

7-16     chapter.  Thereafter, the department may adopt rules for carrying

7-17     out the provisions of this chapter, including rules providing for:

7-18                 (1)  the collection, examination, and reporting of

7-19     records, devices, and samples of pesticides;

7-20                 (2)  the safe handling, transportation, storage,

7-21     display, distribution, or disposal of pesticides and pesticide

7-22     containers;

7-23                 (3)  labeling requirements for pesticides and devices

7-24     required to be registered under this chapter; and

7-25                 (4)  compliance with federal pesticide rules and

7-26     regulations.

7-27           (b)  Any rules adopted by the department for the purpose of

 8-1     protection or enhancement of water quality shall not be

 8-2     inconsistent with nor less stringent than rules adopted [developed]

 8-3     for the protection or enhancement of water quality by the Texas

 8-4     Natural Resource Conservation Commission pursuant to

 8-5     recommendations of the Texas Groundwater Protection Committee.

 8-6           Sec. 76.005.  Notice of Hearing.  (a)  Before adopting a rule

 8-7     under this chapter, the department or a regulatory agency shall

 8-8     publish notice of a public hearing in three newspapers of general

 8-9     circulation throughout the state.  The notice must include the

8-10     following information relating to the hearing:

8-11                 (1)  the time;

8-12                 (2)  the place;

8-13                 (3)  the subject matter;

8-14                 (4)  a general statement of the proposed action; and

8-15                 (5)  the class or group of persons to be directly

8-16     affected.

8-17           (b)  Notice must be published under this section before the

8-18     10th day preceding the day of the hearing.

8-19           Sec. 76.006.  Pesticide Examination and Testing.  (a)  The

8-20     department may contract with a state college or university, state

8-21     agency, or commercial laboratory for examination of a pesticide.

8-22     The department shall let contracts with commercial laboratories

8-23     under this subsection on the basis of competitive bidding.

8-24           (b)  The department may [shall] make or provide for sample

8-25     tests of a pesticide on request and may charge and collect a fee

8-26     for the tests in an amount necessary to cover expenses incurred in

8-27     making or providing for the tests.

 9-1           Sec. 76.007.  Interagency Cooperation.  (a) The department

 9-2     shall be the lead agency for pesticide regulation in Texas.  In

 9-3     cooperation with the U.S. Environmental Protection Agency or any

 9-4     federal agency responsible for implementation of federal pesticide

 9-5     law, the department shall:

 9-6                 (1)  register pesticides for use in Texas;

 9-7                 (2)  adopt lists of state-limited-use pesticides;

 9-8                 (3)  provide for training, certification, and licensure

 9-9     of all classes of pesticide applicators;

9-10                 (4)  enforce pesticide laws and regulations governing

9-11     the safe handling, use, storage, distribution, and disposal of

9-12     pesticide products; and

9-13                 (5)  adopt rules to carry out the provisions of this

9-14     chapter.

9-15           (b)  The Texas Natural Resource Conservation Commission shall

9-16     have principal authority to regulate and control water pollution.

9-17     If the United States Environmental Protection Agency adopts a final

9-18     rule requiring states to implement a state management plan for

9-19     pesticides in groundwater, the department shall cooperate with the

9-20     Texas Groundwater Protection Committee in the committee's

9-21     development and implementation of federally mandated state

9-22     management plans for pesticides in groundwater in accordance with

9-23     Section 26.407, Water Code.

9-24           (c)  The department shall seek advice from the Texas Natural

9-25     Resource Conservation Commission, the Parks and Wildlife

9-26     Department, the Texas Department of Health, and the Texas

9-27     Agricultural Extension Service in reviewing applications for

 10-1    special local need or emergency pesticide registrations.  The

 10-2    department shall act expeditiously to review any application for

 10-3    special local need or emergency pesticide registrations.

 10-4          (d)  The department shall give written notice to the Texas

 10-5    Natural Resource Conservation Commission whenever it has probable

 10-6    cause to believe that serious contamination of water has occurred

 10-7    as a result of use, misuse, manufacture, storage, or disposal of

 10-8    pesticides so that the Texas Natural Resource Conservation

 10-9    Commission may proceed with an investigation of a possible

10-10    violation of the Water Code.

10-11                (1)  If the Texas Natural Resource Conservation

10-12    Commission determines that a violation of the Water Code has

10-13    occurred, the commission shall seek the remedies provided by the

10-14    Water Code.

10-15                (2)  If the department determines that a violation of

10-16    the Agriculture Code has occurred regarding the use, manufacture,

10-17    storage, or disposal of pesticides, the department shall seek the

10-18    remedies provided by this code.

10-19                (3)  The foregoing remedies shall not be mutually

10-20    exclusive.

10-21          (e)  The Texas Natural Resource Conservation Commission shall

10-22    give written notice to the department whenever it has probable

10-23    cause to believe that serious contamination of water has occurred

10-24    as a result of the use, misuse, storage, disposal, or manufacture

10-25    of pesticides so that the department may proceed with an

10-26    investigation to determine if a violation of the Agriculture Code

10-27    has occurred.

 11-1                (1)  If the department determines that a violation of

 11-2    the Agriculture Code has occurred, the department shall seek the

 11-3    remedies provided by this code.

 11-4                (2)  If the Texas Natural Resource Conservation

 11-5    Commission determines that a violation of the Water Code has

 11-6    occurred, the Texas Natural Resource Conservation Commission shall

 11-7    seek the remedies provided by the Water Code.

 11-8                (3)  The foregoing remedies shall not be mutually

 11-9    exclusive.

11-10          (f)  The department shall consult with the Texas Department

11-11    of Health before denying or canceling a pesticide registration

11-12    because of a suspected public health threat.  The department shall

11-13    also coordinate enforcement efforts with the department of health

11-14    when a serious public health threat is suspected.

11-15          (g)  A regulatory agency may receive grants-in-aid from any

11-16    federal agency and may enter into cooperative agreements with a

11-17    federal agency, an agency of this state, a subdivision of this

11-18    state, or an agency of another state for the purpose of obtaining

11-19    assistance in the implementation of this chapter.

11-20          Sec. 76.008.  Exemption.  Sections 76.007, 76.104-76.106,

11-21    76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,

11-22    76.182, 76.184, and 76.201(d)(1) do not apply to a person who is

11-23    regulated by the Texas Structural Pest Control Act, as amended

11-24    (Article 135b-6, Vernon's Texas Civil Statutes).

11-25          Sec. 76.009.  AGRICULTURE RESOURCES PROTECTION AUTHORITY.

11-26    (a)  The Agriculture Resources Protection Authority is an agency of

11-27    state government.  The authority is composed of the following

 12-1    members:

 12-2                (1)  the director of the Texas Agricultural Experiment

 12-3    Station;

 12-4                (2)  the dean of the College of Agricultural Sciences

 12-5    of Texas Tech University;

 12-6                (3)  the dean of The University of Texas School of

 12-7    Public Health at Houston;

 12-8                (4)  the director of the environmental epidemiology

 12-9    program of the Texas Department of Health;

12-10                (5)  the chief of the groundwater conservation section

12-11    of the Texas Natural Resource Conservation Commission;

12-12                (6)  the director of the Institute for International

12-13    Agribusiness Studies of Prairie View A&M University;

12-14                (7)  one person appointed by the governor to represent

12-15    the interests of consumers;

12-16                (8)  a producer of agricultural products appointed by

12-17    the governor;

12-18                (9)  the executive director of the Texas Structural

12-19    Pest Control Board;

12-20                (10)  the executive director of the State Soil and

12-21    Water Conservation Board;

12-22                (11)  a person appointed by the governor and licensed

12-23    by the department as a commercial, noncommercial, or private

12-24    applicator;

12-25                (12)  a person appointed by the governor and licensed

12-26    by the department as a pesticide dealer or involved in the

12-27    development or manufacture of agricultural chemicals;

 13-1                (13)  a person appointed by the governor and employed

 13-2    as a farm worker or serving as a representative of farm workers;

 13-3                (14)  a person appointed by the governor and associated

 13-4    with an organization primarily engaged in environmental

 13-5    conservation or protection efforts; and

 13-6                (15)  the commissioner of agriculture.

 13-7          (b)  A person appointed by the governor under Subdivision

 13-8    (7), (8), (11), (12), (13), or (14) of Subsection (a) of this

 13-9    section serves a two-year term ending on February 1 of each

13-10    odd-numbered year.  A vacancy in one of those positions shall be

13-11    filled by appointment by the governor for the unexpired term.  All

13-12    appointments made by the governor under this section must be with

13-13    the advice and consent of the senate.

13-14          (c)  The governor shall designate the presiding officer of

13-15    the authority.

13-16          (d)  The authority shall meet annually [quarterly] and at the

13-17    call of the presiding officer or a majority of the members.

13-18          (e)  A member may not receive compensation for service as a

13-19    member of the authority.  A member is entitled to reimbursement for

13-20    actual and necessary expenses incurred in the performance of the

13-21    functions of the authority, subject to any limitations on

13-22    reimbursement provided by the General Appropriations Act.

13-23          (f)  The delegation of functions under this section is

13-24    designed to avoid overlapping responsibilities, to provide a means

13-25    for all involved agencies to participate in the regulation of

13-26    pesticides, and to clarify various areas of responsibility.

13-27          (g)  The authority is the coordinating body for the policies

 14-1    and programs of management, regulation, and control of pesticides

 14-2    conducted by the department, the State Soil and Water Conservation

 14-3    Board, the Texas Agricultural Extension Service, the Texas

 14-4    Department of Health, the Texas Natural Resource Conservation

 14-5    Commission, and the Texas Structural Pest Control Board.

 14-6    Notwithstanding any other provision of this code or of any other

 14-7    law, the authority may:

 14-8                (1)  adopt any rule relating to any duty of the

 14-9    authority;

14-10                (2)  review and make comments regarding any rule

14-11    relating to pesticides that is proposed by an agency for which the

14-12    authority is the coordinating body;

14-13                (3)  cooperate with and advise the department, the

14-14    State Soil and Water Conservation Board, the Texas Agricultural

14-15    Extension Service, the Texas Department of Health, the Texas

14-16    Natural Resource Conservation Commission, the Texas Structural Pest

14-17    Control Board, and any other state agency that may be concerned

14-18    with the regulation of pesticides and notify those agencies of any

14-19    rule the authority intends to adopt;

14-20                (4)  collect, analyze, and disseminate information

14-21    necessary for the effective operation of all existing or

14-22    contemplated programs regulating pesticides;

14-23                (5)  provide professional advice to private agencies

14-24    and citizens of this state on matters relating to pesticides in

14-25    cooperation with other state agencies, with professional groups,

14-26    and with either state or private educational institutions;

14-27                (6)  accept gifts, devises, and bequests and, with the

 15-1    approval of the governor, comply with the terms and conditions of

 15-2    any grant to accomplish any of the purposes of the authority;

 15-3                (7)  inform and advise the governor on matters

 15-4    involving pesticides and prepare and recommend to the governor and

 15-5    to the legislature any legislation the authority considers proper

 15-6    for the management and control of pesticides; and

 15-7                (8)  make annual reports to the governor and the

 15-8    appropriate legislative oversight committees.

 15-9          (h)  A member of the authority by a written statement may

15-10    designate a person to execute any responsibility of the member

15-11    including voting.

15-12          (i)  The authority shall develop and implement policies that

15-13    provide the public with a reasonable opportunity to appear before

15-14    the authority annually [semiannually] to comment on the status of

15-15    the state's pesticide regulation efforts.

15-16          (j)  The commissioner shall:

15-17                (1)  as necessary, employ personnel as the duties of

15-18    the authority may require and to the extent of legislative

15-19    appropriations to the authority;

15-20                (2)  keep an accurate and complete record of all

15-21    authority meetings and hearings of the authority and maintain legal

15-22    custody of all books, papers, documents, and other records of the

15-23    authority;

15-24                (3)  administer this chapter and the rules adopted by

15-25    the authority [Chapters 75 and 125 of this code]; and

15-26                (4)  assign, reassign, or delegate the administrative

15-27    and enforcement functions assigned to the commissioner by this

 16-1    subsection or by rules or policies established under this

 16-2    subsection to one or more of the divisions or other units within

 16-3    the department or to one or more employees of the department.

 16-4          (k)  The authority shall adopt rules requiring quarterly

 16-5    submission to the authority by the department, State Soil and Water

 16-6    Conservation Board, Texas Agricultural Extension Service, Texas

 16-7    Department of Health, Texas Natural Resource Conservation

 16-8    Commission, and the Texas Structural Pest Control Board of a report

 16-9    regarding each agency's pesticide regulatory enforcement activity.

16-10          (l)  The authority shall review and make comments regarding

16-11    the information received by the authority under Subsection (k).

16-12    The authority shall make its comments available to the public.

16-13          (m)  The department, State Soil and Water Conservation Board,

16-14    Texas Agricultural Extension Service, Texas Department of Health,

16-15    Texas Natural Resource Conservation Commission, and the Texas

16-16    Structural Pest Control Board shall provide the authority with

16-17    sufficient opportunity to review and comment on the strategic plan

16-18    and biennial appropriation request of each agency, and any revision

16-19    of a plan or request, before submission of a plan or request to the

16-20    legislature.

16-21                          SUBCHAPTER B.  LABELING

16-22          Sec. 76.021.  LABELING INFORMATION.  (a)  Each pesticide

16-23    distributed in this state shall bear a label containing the

16-24    following information relating to the pesticide:

16-25                (1)  the label information required by FIFRA, if the

16-26    pesticide is subject to registration under that law; or

16-27                (2)  the following information, if the pesticide is not

 17-1    subject to registration under FIFRA:

 17-2                      (A)  the name, brand, or trademark under which

 17-3    the pesticide is distributed;

 17-4                      (B) [(2)]  the name and percentage of each active

 17-5    ingredient and the total percentage of inert ingredients;

 17-6                      (C) [(3)]  directions for use that are necessary

 17-7    for effecting the purpose for which the product is intended and, if

 17-8    complied with, are adequate for the protection of health and the

 17-9    environment;

17-10                      (D) [(4)]  if the pesticide contains any form of

17-11    arsenic, the percentage of total water-soluble arsenic, calculated

17-12    as elementary arsenic;

17-13                      (E) [(5)]  the name and address of the

17-14    manufacturer, registrant, or person for whom the pesticide was

17-15    manufactured;

17-16                      (F) [(6)]  numbers or other symbols to identify

17-17    the lot or batch of the manufacturer of the contents of the

17-18    package; and

17-19                      (G) [(7)]  a clear display of appropriate

17-20    warnings, symbols, and cautionary statements commensurate with the

17-21    toxicity or use classification of the pesticide.

17-22          (b)  [The labeling of each pesticide distributed in this

17-23    state shall state the use classification for which the product is

17-24    registered.]

17-25          [(c)]  The label bearing the ingredient statement under

17-26    Subsection (a)(2)(B) of this section shall be on or attached to

17-27    that part of the immediate container that is presented or displayed

 18-1    under customary conditions of purchase and, if the ingredient

 18-2    statement cannot be clearly read without removing the outer

 18-3    wrapping, on any outer container or wrapper of a retail package.

 18-4          Sec. 76.022.  CONSPICUOUS LETTERING.  Any word, statement, or

 18-5    information required by this chapter to appear on a label or in

 18-6    labeling of a pesticide or device registered by the department

 18-7    shall be prominently and conspicuously placed so that, if compared

 18-8    with other material on the label or in the labeling, it is likely

 18-9    to be understood by the ordinary individual under customary

18-10    conditions of use.

18-11          Sec. 76.023.  Misbranded Pesticide or Device.  (a)  A

18-12    pesticide or device is misbranded if:

18-13                (1)  it is subject to registration under FIFRA and it

18-14    does not fully comply with the labeling requirements of the United

18-15    States Environmental Protection Agency; or

18-16                (2)  it is not subject to registration under FIFRA and:

18-17                      (A)  its labeling bears a statement, design, or

18-18    graphic representation relating to the pesticide or device, or the

18-19    ingredients of either, that is false or misleading in any

18-20    particular;

18-21                      (B) [(2)]  it is an imitation of or is

18-22    distributed under the name of another pesticide or device; or

18-23                      (C) [(3)]  it is not conspicuously labeled in

18-24    accordance with Section 76.022 of this code.

18-25          (b)  A pesticide is misbranded if:

18-26                (1)  its labeling bears any reference to registration

18-27    under this chapter, unless the reference is required by a rule

 19-1    adopted under this chapter;

 19-2                (2)  it does not bear a label as required by Section

 19-3    76.021 of this code; or

 19-4                (3)  its label does not bear information as required by

 19-5    Section 76.021 of this code or a rule adopted under this chapter.

 19-6                        SUBCHAPTER C.  REGISTRATION

 19-7          Sec. 76.041.  REGISTRATION REQUIRED.  (a)  Except as provided

 19-8    by Subsection (b), (c), [or] (d), or (e) of this section, before a

 19-9    pesticide is distributed in this state or is delivered for

19-10    transportation or is transported in intrastate commerce or between

19-11    points within this state through a point outside the state, it must

19-12    be registered with the department.  The manufacturer or other

19-13    person whose name appears on the label of the pesticide shall

19-14    register the pesticide.

19-15          (b)  Registration is not required for the transportation of a

19-16    pesticide from one plant or warehouse to another plant or warehouse

19-17    operated by the same person if the pesticide is used solely at the

19-18    second plant or warehouse as a constituent of a pesticide that is

19-19    registered under this chapter.

19-20          (c)  Registration is not required for a pesticide that is not

19-21    for use in this state and is being manufactured, transported, or

19-22    distributed for use only outside of this state.

19-23          (d)  Registration is not required for a chemical compound

19-24    being used only to develop plot data as to the possible pesticidal

19-25    action of the chemical.

19-26          (e) [(d)]  Unless otherwise required by department rule,

19-27    registration is not required for a pesticide that is exempt from

 20-1    registration with the United States Environmental Protection Agency

 20-2    under federal law.

 20-3          (f)  The Texas Feed and Fertilizer Control Service may not

 20-4    register under Chapter 63 a fertilizer that contains a pesticide

 20-5    that must be registered with the department under this chapter

 20-6    unless the constituent pesticide is first registered with the

 20-7    department.  The Texas Feed and Fertilizer Control Service shall

 20-8    consult with the department about the current registration status

 20-9    of a pesticide before registering any fertilizer mix containing

20-10    that pesticide under Chapter 63.  The department shall notify the

20-11    Texas Feed and Fertilizer Control Service of any changes to a

20-12    pesticide registration.

20-13          (g)  A pesticide that has been registered with the department

20-14    must continue to be registered as long as the pesticide remains in

20-15    the channels of trade in this state.  The registrant shall ensure

20-16    that the pesticide continues to be registered.

20-17          (h)  If the department issues a stop use, stop distribution,

20-18    or removal order because the pesticide is not registered with the

20-19    department, the registrant shall take any necessary action to

20-20    remedy the situation, including reimbursing a person who is subject

20-21    to the order for the person's costs in complying with the order.

20-22          Sec. 76.042.  CONTENT OF REGISTRATION APPLICATION.  (a)  The

20-23    application for registration of a pesticide shall include:

20-24                (1)  the name and address of the applicant and the name

20-25    and address of the person whose name will appear on the pesticide

20-26    label, if not the applicant's;

20-27                (2)  the name of the pesticide;

 21-1                (3)  a complete copy of all labeling to accompany the

 21-2    pesticide and a statement of all claims to be made for it,

 21-3    including the directions for use and, if the pesticide is required

 21-4    to be registered with the United States Environmental Protection

 21-5    Agency, a copy of the Environmental Protection Agency stamped

 21-6    accepted labeling and any applicable comment pages;

 21-7                (4)  the use classification, whether for restricted or

 21-8    general use, as provided by the federal Insecticide, Fungicide, and

 21-9    Rodenticide Act, as amended, or by a rule adopted under that Act;

21-10                (5)  the use classification proposed by the applicant,

21-11    if the pesticide is not required by federal law to be registered

21-12    under a use classification; and

21-13                (6)  other information required by the department for

21-14    determining the eligibility for registration.

21-15          (b)  The department may require the applicant to submit the

21-16    complete formula for a pesticide, including active and inert

21-17    ingredients, as a prerequisite to registration.

21-18          (c)  The department may require a full description of the

21-19    tests made and the results of the tests on which claims are based

21-20    before approving registration of a pesticide that is not registered

21-21    under federal law or for which federal or state restrictions on use

21-22    are being considered.

21-23          (d)  A person located outside this state, as a condition to

21-24    registration of a pesticide, shall file with the department a

21-25    written instrument designating a resident agent for service of

21-26    process in actions taken in the administration and enforcement of

21-27    this chapter.  Instead of designating a resident agent, the person

 22-1    may designate in writing the secretary of state as the recipient of

 22-2    service of process for the person in this state.

 22-3          Sec. 76.043.  EXPIRATION AND RENEWAL.  (a)  Registration of a

 22-4    pesticide expires on the second anniversary of the date of its

 22-5    approval or renewal except that the department shall by rule adopt

 22-6    a system under which registrations expire on various dates during

 22-7    the year.

 22-8          (b)  A person who applies for renewal of registration shall

 22-9    include in the renewal application only information that is

22-10    different from the information furnished at the time of the most

22-11    recent registration or renewal.

22-12          (c)  A registration in effect on its expiration date for

22-13    which a renewal application has been filed and renewal fee has been

22-14    paid continues in effect until the department notifies the

22-15    applicant that the registration has been renewed or denied renewal.

22-16          Sec. 76.044.  FEES.  (a)  The department shall charge a fee,

22-17    as provided by department rule, for each pesticide to be

22-18    registered.  The fee must be submitted with an application for

22-19    registration or renewal of registration.

22-20          (b)  A person who fails to apply for renewal of registration

22-21    on or before the expiration date of the registration must pay, in

22-22    addition to the renewal fee, the late fee provided by Section

22-23    12.024 of this code for each brand to be renewed.

22-24          Sec. 76.045.  [DEPARTMENT APPROVAL.  The department may not

22-25    approve an application for registration unless the department finds

22-26    that:]

22-27                [(1)  the composition of the pesticide warrants the

 23-1    proposed claims made for it; and]

 23-2                [(2)  the pesticide, its labeling, and other materials

 23-3    required to be submitted under this chapter comply with the

 23-4    requirements of this chapter.]

 23-5          [Sec. 76.046.]  REGISTRATION FOR SPECIAL LOCAL NEED.

 23-6    (a)  The department may register a pesticide for additional uses

 23-7    and methods of application not covered by federal registration

 23-8    [regulation] but not inconsistent with federal law, for the purpose

 23-9    of meeting a special local need.

23-10          (b)  Before approving a registration under this section, the

23-11    department shall determine that the applicant meets the other

23-12    requirements of this subchapter.

23-13          Sec. 76.046 [76.047].  DENIAL OR CANCELLATION OF

23-14    REGISTRATION.  (a)  If the department has reason to believe that

23-15    any use of a registered pesticide is in violation of a provision of

23-16    this chapter or is dangerous or harmful, the department shall

23-17    determine whether a hearing shall be held under Section 12.032 on

23-18    denial or cancellation of registration.

23-19          (b)  The department shall issue written notice of a hearing

23-20    under this section to the registrant of the pesticide.  The notice

23-21    must contain a statement of the time and place of the hearing.  The

23-22    hearing shall be held after the 10th day following the day on which

23-23    the notice is issued.

23-24          (c)  After opportunity at the hearing for presentation of

23-25    evidence by interested parties, the department may deny or cancel

23-26    the registration of the pesticide if the department finds that:

23-27                (1)  use of the pesticide has demonstrated

 24-1    uncontrollable adverse environmental effects;

 24-2                (2)  use of the pesticide is a detriment to the

 24-3    environment that outweighs the benefits derived from its use;

 24-4                (3)  even if properly used, the pesticide is

 24-5    detrimental to vegetation, except weeds, to domestic animals, or to

 24-6    public health and safety;

 24-7                (4)  a false or misleading statement about the

 24-8    pesticide has been made or implied by the registrant or the

 24-9    registrant's agent, in writing, verbally, or through any form of

24-10    advertising literature; or

24-11                (5)  the registrant has not complied or the pesticide

24-12    does not comply with a requirement of this chapter or a rule

24-13    adopted under this chapter.

24-14          Sec. 76.047 [76.048].  EXPERIMENTAL USE PERMIT.  (a)  The

24-15    department may issue an experimental use permit if the department

24-16    determines that the applicant needs the permit in order to

24-17    accumulate data necessary to register a pesticide under this

24-18    chapter.

24-19          (b)  A person may file an application for an experimental use

24-20    permit before or after applying for registration.

24-21          (c)  Use of a pesticide under an experimental use permit is

24-22    under the supervision of the department and is subject to the terms

24-23    and conditions, and valid for a period of time, prescribed by the

24-24    department in the permit.

24-25          (d)  The department may charge a fee for issuing a permit

24-26    under this section in an amount equal to the amount charged for

24-27    registration under Section 76.044(a).

 25-1          (e)  The department may revoke an experimental use permit at

 25-2    any time if the department finds that:

 25-3                (1)  the terms or conditions of the permit are being

 25-4    violated; or

 25-5                (2)  the terms and conditions of the permit are

 25-6    inadequate to avoid any unreasonable risk to man or the

 25-7    environment, taking into account the economic, social, and

 25-8    environmental costs and benefits of use of the pesticide.

 25-9                    SUBCHAPTER D.  LICENSING OF DEALERS

25-10          Sec. 76.071.  License Required.  (a)  A person may not

25-11    distribute in this state a restricted-use or state-limited-use

25-12    pesticide or regulated herbicide without a valid current pesticide

25-13    dealer license issued by the department.

25-14          (b)  Except as otherwise provided by this section, a

25-15    pesticide dealer must obtain a license for each location in the

25-16    state that is used for distribution.  If the person does not have a

25-17    place of business in this state, the person may obtain one license

25-18    for all out-of-state locations, but shall file as a condition to

25-19    licensing a designation of an agent for service of process as

25-20    provided by Section 76.042(d) of this code.

25-21          (c)  A person must apply for a pesticide dealer license on

25-22    forms prescribed by the department.

25-23          (d)  A pesticide dealer may not distribute a restricted-use

25-24    or state-limited-use pesticide or a regulated herbicide except to:

25-25                (1)  a person licensed as a commercial applicator,

25-26    noncommercial applicator, or private applicator;

25-27                (2)  an individual working under the direct supervision

 26-1    of a licensed applicator;

 26-2                (3)  a certified private applicator;

 26-3                (4)  a licensed pesticide dealer; or

 26-4                (5)  a person who is licensed to practice veterinary

 26-5    medicine by the State Board of Veterinary Medical Examiners.

 26-6          Sec. 76.072.  Expiration.  A pesticide dealer license expires

 26-7    on the second anniversary of the date of its granting or renewal

 26-8    unless the department by rule adopts a system under which licenses

 26-9    expire on specified dates during a [December 31 of each] year.

26-10          Sec. 76.073.  Fees.  (a)  An application for a pesticide

26-11    dealer license must be accompanied by a [an annual] registration

26-12    fee, as fixed by the department.

26-13          (b)  A person who fails to apply for renewal of a pesticide

26-14    dealer license on or before the expiration date of the license must

26-15    pay, in addition to the renewal fee, the late fee provided by

26-16    Section 12.024 of this code.

26-17          [(c)  A person licensed as a dealer under Chapter 75 of this

26-18    code may not be required to pay an additional fee for the license

26-19    prescribed in this subchapter.]

26-20          Sec. 76.074.  Display of Dealer License.  (a)  Each dealer

26-21    shall prominently display the pesticide dealer license in the

26-22    dealer's place of business.

26-23          (b)  Failure to display a license as required by this section

26-24    is a ground for revocation of the license.

26-25          Sec. 76.075.  Records.  (a)  A person required to obtain a

26-26    dealer's license by Section 76.071 shall record each distribution

26-27    of a restricted-use or state-limited-use pesticide or regulated

 27-1    herbicide and shall maintain a copy of the record for at least two

 27-2    years after the date of the distribution.

 27-3          (b)  The department shall adopt rules that prescribe the

 27-4    information to be stated in the records required by this section.

 27-5          (c)  The department may require that a copy of the records

 27-6    required by this section be submitted periodically to the

 27-7    department.

 27-8          (d)  The department may revoke a dealer's license if the

 27-9    licensee fails to submit a copy of a record as required under

27-10    Subsection (c) or makes false or fraudulent records, invoices, or

27-11    reports.  [A licensed pesticide dealer shall maintain for a period

27-12    of two years records of each restricted-use and state-limited-use

27-13    pesticide sold.  The department shall prescribe the information to

27-14    be included in the records.]

27-15          [(b)  The department may require a licensed pesticide dealer

27-16    to submit records to the department.  Failure to submit a record

27-17    requested by the department is a ground for revocation of a

27-18    license.]

27-19          Sec. 76.076.  DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION

27-20    OF LICENSE.  (a)  The department may deny an application for a

27-21    dealer's license if the applicant  fails to comply with this

27-22    chapter.  The department may revoke, modify, or suspend a license,

27-23    assess an administrative penalty, place on probation a person whose

27-24    license has been suspended, or reprimand a licensee for a violation

27-25    of this chapter or a rule adopted by the department under this

27-26    chapter.

27-27          (b)  If a license suspension is probated, the department may

 28-1    require the person to:

 28-2                (1)  report regularly to the department on matters that

 28-3    are the basis of the probation; or

 28-4                (2)  limit business to the areas prescribed by the

 28-5    department.

 28-6          (c)  [The department may refuse to issue a pesticide dealer

 28-7    license if the applicant fails to comply with this subchapter.]

 28-8          [(b)  The department shall revoke, modify, or suspend a

 28-9    license, assess an administrative penalty, place on probation a

28-10    person whose license has been suspended, or reprimand a licensee if

28-11    the licensee fails to comply with this subchapter or a rule adopted

28-12    by the department under this subchapter.]

28-13          [(c)  If a license suspension is probated, the department may

28-14    require the person to:]

28-15                [(1)  report regularly to the department on matters

28-16    that are the basis of the probation;]

28-17                [(2)  limit practice to the areas prescribed by the

28-18    department; or]

28-19                [(3)  continue or renew professional education until

28-20    the person attains a degree of skill satisfactory to the department

28-21    in those areas that are the basis of the probation.]

28-22          [(d)]  If the department proposes to deny a person's

28-23    application for a pesticide dealer license or to revoke, modify, or

28-24    suspend a person's license, the person is entitled to a hearing

28-25    conducted under Section 12.032.  The decision of the department is

28-26    appealable in the same manner as provided for contested cases under

28-27    Chapter 2001, Government Code.

 29-1          Sec. 76.077.  Exceptions.  (a)  This subchapter does not

 29-2    apply to a manufacturer or formulator of a pesticide who does not

 29-3    sell directly to the user.

 29-4          (b)  This subchapter does not apply to a licensed pesticide

 29-5    applicator who:

 29-6                (1)  distributes restricted-use or state-limited-use

 29-7    pesticides or regulated herbicides only as an integral part of the

 29-8    pesticide application business; and

 29-9                (2)  dispenses the pesticides only through equipment

29-10    used in the pesticide application business.

29-11          (c)  This subchapter does not apply to a federal, state,

29-12    county, or municipal agency that provides pesticides only for its

29-13    own programs.

29-14                    SUBCHAPTER E.  USE AND APPLICATION

29-15          Sec. 76.101.  Coordination.  (a)  The department is the lead

29-16    agency in the regulation of pesticide use and application and is

29-17    responsible for coordinating activities of state agencies, except

29-18    as provided by Section 76.007(b) of this code and by Chapter 26 of

29-19    the Water Code.  The department shall submit a state plan for the

29-20    licensing of pesticide applicators to the administrator of the

29-21    Environmental Protection Agency.

29-22          (b)  The department shall coordinate, plan, and approve

29-23    training programs and shall use the public and private resources of

29-24    this state, including state universities, colleges, junior

29-25    colleges, community colleges, the Texas Agricultural Extension

29-26    Service, and the Texas Agricultural Experiment Station [experiment

29-27    station].  The department and the Texas Agricultural Extension

 30-1    Service shall adopt a memorandum of understanding to jointly

 30-2    coordinate, plan, and approve the training programs for private

 30-3    applicators.

 30-4          (c)  The department shall make plans under this section on

 30-5    the basis of convenience to applicants, thoroughness of preparation

 30-6    and testing, and maximum economy in expenditures for this purpose.

 30-7    The department shall make full use of grants-in-aid and cooperative

 30-8    agreements in administering this subchapter.

 30-9          (d)(1)  Except as otherwise provided by this subsection, no

30-10    city, town, county, or other political subdivision of this state

30-11    shall adopt any ordinance, rule, or regulation regarding pesticide

30-12    sale or use.

30-13                (2)  Nothing in this subsection shall be construed to

30-14    limit the authority of a city, town, or county to:

30-15                      (A)  encourage locally approved and provided

30-16    educational material concerning a pesticide;

30-17                      (B)  zone for the sale or storage of such

30-18    products;

30-19                      (C)  adopt fire or building regulations as

30-20    preventative measures to protect the public and emergency services

30-21    personnel from an accident or emergency involving such products,

30-22    including regulations governing the storage of such products or

30-23    governing fumigation and thermal insecticidal fogging operations;

30-24                      (D)  provide or designate sites for the disposal

30-25    of such products;

30-26                      (E)  route hazardous materials; or

30-27                      (F)  regulate discharge to sanitary sewer

 31-1    systems.

 31-2                (3)  This subsection shall not prevent a city, town,

 31-3    county, or any political subdivision from complying with any

 31-4    federal or state law or regulation.  This subsection shall not

 31-5    prevent a city, town, county, or any political subdivision from

 31-6    attaining or maintaining compliance with federal or state

 31-7    environmental standards including Texas water quality standards.  A

 31-8    city, town, county, or other political subdivision may take any

 31-9    action otherwise prohibited by this subsection in order to comply

31-10    with any federal requirements, to avoid any federal or state

31-11    penalties or fines, or to attain or maintain federal or state

31-12    environmental standards including Texas water quality standards.

31-13                [(4)  Nothing in this subsection may be construed to

31-14    affect Chapter 75 of this code.]

31-15          Sec. 76.102.  Agencies Responsible for Licensing Pesticide

31-16    Applicators.  (a)  The department shall license pesticide

31-17    applicators involved in the following license use categories:

31-18                (1)  agricultural pest control, including animal pest

31-19    control;

31-20                (2)  forest pest control;

31-21                (3)  ornamental and turf pest control, except as

31-22    provided by the Texas Structural Pest Control Act, as amended

31-23    (Article 135b-6, Vernon's Texas Civil Statutes);

31-24                (4)  seed treatments;

31-25                (5)  right-of-way pest control;

31-26                (6)  regulatory pest control;

31-27                (7)  aquatic pest control; [and]

 32-1                (8)  demonstration pest control; and

 32-2                (9)  other license use categories as necessary to

 32-3    comply with federal requirements.  The department may not adopt

 32-4    license use categories that are designated by statute for

 32-5    regulation by another agency.

 32-6          (b)  The Texas Department of Health shall license pesticide

 32-7    applicators involved in the license use category of health-related

 32-8    pest control.

 32-9          Sec. 76.103.  Program Contingent on Federal Funds.  (a)  The

32-10    licensing of commercial applicators, noncommercial applicators, and

32-11    private applicators is contingent on the availability of federal

32-12    funds to pay part of the costs of administering and enforcing the

32-13    program.

32-14          (b)  If federal funds and other funds made available for this

32-15    program are not sufficient to pay all costs of administering and

32-16    enforcing the program, the department shall certify that fact and

32-17    discontinue the licensing of commercial applicators, noncommercial

32-18    applicators, and private applicators.  The department shall publish

32-19    notice of the discontinuance of the program in the Texas Register.

32-20          (c)  If sufficient funds become available after

32-21    discontinuance, the department shall certify the availability of

32-22    sufficient funds to pay all costs of administration and enforcement

32-23    of the program and shall resume the licensing of commercial

32-24    applicators, noncommercial applicators, and private applicators.

32-25    The department shall publish notice of resumption of the program in

32-26    the Texas Register.

32-27          (d)  The department shall determine the effective date of

 33-1    discontinuance or resumption of the program, but the date may not

 33-2    be before the date of publication of notice in the Texas Register.

 33-3          (e)  During any period in which the program has been

 33-4    discontinued, a person is not required to have a license provided

 33-5    by this subchapter in order to use pesticides, but a person may be

 33-6    prosecuted for acts committed or omitted when the program was in

 33-7    effect.

 33-8          Sec. 76.104.  AGENCY RULES FOR APPLICATION OF A PESTICIDE.

 33-9    (a)  The head of each regulatory agency may, after notice and

33-10    public hearing, adopt rules to carry out the provisions of this

33-11    subchapter for which the agency is responsible.

33-12          (b)  Rules adopted under this section may:

33-13                (1)  prescribe methods to be used in the application of

33-14    a restricted-use or state-limited-use pesticide or regulated

33-15    herbicide;

33-16                (2)  relate to the time, place, manner, method, amount,

33-17    or concentration of pesticide application or to the materials used

33-18    in pesticide application; and

33-19                (3)  restrict or prohibit use of a restricted-use or

33-20    state-limited-use pesticide or regulated herbicide in designated

33-21    areas during specific periods of time.

33-22          (c)  A regulatory agency may adopt a rule under this section

33-23    only after consideration of precautions or restrictions necessary

33-24    to prevent unreasonable risk to man or the environment, taking into

33-25    account the economic, social, and environmental costs and benefits

33-26    of the use of the pesticide.

33-27          (d)  The department shall adopt worker protection standards

 34-1    for pesticides if there is no federal worker protection standard.

 34-2    The department may adopt other rules for the protection of  the

 34-3    health, safety, and welfare of farm workers and pesticide handlers.

 34-4          Sec. 76.105.  License Required.  (a)  Except as provided by

 34-5    Section 76.003(e), a [A] person may not purchase or use a

 34-6    restricted-use or state-limited-use pesticide or regulated

 34-7    herbicide unless the person is:

 34-8                (1)  licensed as a commercial applicator, noncommercial

 34-9    applicator, or private applicator and authorized by the license to

34-10    purchase or use the restricted-use or state-limited-use pesticide

34-11    or regulated herbicide in the license use categories covering the

34-12    proposed pesticide use;

34-13                (2)  an individual acting under the direct supervision

34-14    of a licensed applicator, except as provided by Subsection (b) of

34-15    this section and by Sections 76.003(e) and 76.116(f); or

34-16                (3)  a certified private applicator as defined in

34-17    Section 76.112(j) of this code.

34-18          (b)  An individual is under the direct supervision of a

34-19    licensed [noncommercial or a licensed private] applicator if the

34-20    individual is acting under the instructions and control of a

34-21    licensed [noncommercial or a licensed private] applicator who is

34-22    responsible for the actions of the individual and who is available

34-23    if and when needed.  A  licensed applicator may not supervise an

34-24    applicator whose license or certificate is under suspension or

34-25    revocation.  The licensed [noncommercial or licensed private]

34-26    applicator is not required to be physically present at the time and

34-27    place of the pesticide application unless the label of the applied

 35-1    pesticide states that the presence of the licensed applicator is

 35-2    required.

 35-3          (c)  [An individual is under the direct supervision of a

 35-4    licensed commercial applicator if the individual is acting under

 35-5    the instructions and control of a licensed commercial applicator

 35-6    who is responsible for the actions of the individual and who is

 35-7    continuously physically present at the time and place of the

 35-8    pesticide application.]

 35-9          [(d)]  A licensed applicator is responsible for assuring that

35-10    the person working under the licensee's direct supervision is

35-11    knowledgeable of the label requirements and rules and regulations

35-12    governing the use of [the particular] pesticides [being used by the

35-13    individual].  A licensed applicator satisfies the requirements of

35-14    this subsection if the person working under the licensee's direct

35-15    supervision has been trained as a handler under the federal worker

35-16    protection standard [attends a program conducted by the department

35-17    that is designed to make the person knowledgeable of the label

35-18    requirements and rules and regulations governing the use of

35-19    pesticides].

35-20          (d) [(e)]  A person who is authorized under this chapter to

35-21    use restricted-use or state-limited-use pesticides or regulated

35-22    herbicides shall comply with all applicable federal and state

35-23    rules, regulations, and court orders regarding the use of

35-24    restricted-use or state-limited-use pesticides or regulated

35-25    herbicides.

35-26          (e)  Except as provided by Section 76.003(e), a person may

35-27    not purchase a restricted-use or state-limited-use pesticide or

 36-1    regulated herbicide unless the person is a licensed or a certified

 36-2    applicator or authorized by a licensed or certified applicator to

 36-3    purchase or take delivery for the applicator.

 36-4          (f)  The other provisions of this section notwithstanding,

 36-5    the department may adopt rules or establish programs that the U.S.

 36-6    Environmental Protection Agency or another federal agency requires

 36-7    as a condition for receiving:

 36-8                (1)  approval to authorize use of certain

 36-9    restricted-use or state-limited-use pesticides or regulated

36-10    herbicides;

36-11                (2)  federal funding for licensing or certification of

36-12    pesticide applicators;

36-13                (3)  federal funding for pesticide law enforcement

36-14    efforts; or

36-15                (4)  other federal funding related to pesticide risk

36-16    reduction.

36-17          (g)  The other provisions of this chapter notwithstanding, if

36-18    the U.S.  Environmental Protection Agency or another federal agency

36-19    imposes on the state standards for certification of commercial,

36-20    noncommercial, or private pesticide applicators, the department may

36-21    adopt by rule the federal standards for each classification of

36-22    applicators for which the federal standards are imposed.

36-23          Sec. 76.106.  Classification of Licenses.  (a)  The head of

36-24    each regulatory agency may classify commercial applicator and

36-25    noncommercial applicator licenses under subcategories of license

36-26    use categories according to the subject, method, or place of

36-27    pesticide application.

 37-1          (b)  A regulatory agency head shall establish separate

 37-2    testing requirements for licensing in each license use category for

 37-3    which the agency is responsible and may establish separate testing

 37-4    requirements for licensing in subcategories within a license use

 37-5    category.

 37-6          (c)  Each regulatory agency may charge a testing fee, as

 37-7    fixed by the head of the regulatory agency, for testing in each

 37-8    license use category.

 37-9          Sec. 76.107.  Licensing by More Than One Agency.  (a) A

37-10    person who wants to be licensed as a pesticide applicator under

37-11    license use categories regulated by more than one regulatory agency

37-12    may do so by paying a single license fee to the agency regulating

37-13    the person's primary business and meeting licensing requirements

37-14    for each category for which the person desires licensing.

37-15          (b)  A person licensed under this section must pay testing

37-16    fees required by each regulatory agency.

37-17          Sec. 76.108.  Commercial Applicator License.  (a)  A person

37-18    who operates a business or is an employee of a business that

37-19    applies state-limited-use or restricted-use pesticides or regulated

37-20    herbicides to the land of another person for hire or compensation

37-21    and who is required to be licensed by Section 76.105 of this code

37-22    shall apply to the appropriate regulatory agency for a commercial

37-23    applicator license issued for the license use categories and

37-24    subcategories in which the pesticide application is to be made.

37-25          (b)  A person shall apply for an original or renewal

37-26    commercial applicator license on forms prescribed by the regulatory

37-27    agency.  The application shall include information as required by

 38-1    rule of the head of the agency and must be accompanied by an annual

 38-2    license fee, as fixed by the head of the agency.

 38-3          (c)  The head of a regulatory agency may not issue an

 38-4    original commercial applicator license before the applicant has[:]

 38-5                [(1)  filed with the agency evidence of financial

 38-6    responsibility as required by Section 76.111 of this code; and]

 38-7                [(2)]  passed an examination under Section 76.110 of

 38-8    this code.

 38-9          (d)  The head of a regulatory agency may not issue a

38-10    commercial applicator license if it has been determined that:

38-11                (1)  the applicant has been convicted of a felony

38-12    involving moral turpitude in the last five years;

38-13                (2)  the applicant has had a license issued under this

38-14    subchapter revoked within the last two years;

38-15                (3)  the applicant[, or the applicant's representative

38-16    if the applicant is a business,] has been unable to satisfactorily

38-17    fulfill licensing requirements; or

38-18                (4)  the applicant for any other reason cannot be

38-19    expected to be able to fulfill the provisions of this subchapter

38-20    applicable to the license use category for which application is

38-21    made.

38-22          (e)  An individual to whom a commercial applicator license is

38-23    issued is authorized to purchase, use, and supervise the use of

38-24    restricted-use and state-limited-use pesticides or regulated

38-25    herbicides in the license use categories and subcategories in which

38-26    the individual is licensed.

38-27          (f)  [If a license is issued in the name of a business, the

 39-1    business must have a licensed applicator employed at all times.

 39-2    Failure to have a licensed applicator employed is a ground for

 39-3    revocation of a business commercial applicator license.]

 39-4          [(g)]  As a condition to issuance of a commercial applicator

 39-5    license, an applicant located outside this state shall file with

 39-6    the regulatory agency a written instrument designating a resident

 39-7    agent for service of process in actions taken in the administration

 39-8    and enforcement of this chapter.  Instead of designating a resident

 39-9    agent, the applicant may designate in writing the secretary of

39-10    state as the recipient of service of process for the applicant in

39-11    this state.

39-12          Sec. 76.109.  Noncommercial Applicator License.  (a)  A

39-13    person who is required to be licensed under Section 76.105 of this

39-14    code but who does not qualify as a commercial applicator or a

39-15    private applicator shall apply to the appropriate regulatory agency

39-16    for a noncommercial applicator license issued for the license use

39-17    categories and subcategories in which the pesticide application is

39-18    to be made.

39-19          (b)  A person shall apply for an original or renewal

39-20    noncommercial applicator license on forms prescribed by the

39-21    regulatory agency.  An [A nongovernmental] applicant shall include

39-22    with the application an annual license fee, as fixed by the head of

39-23    the regulatory agency. [A regulatory agency may not charge a

39-24    governmental entity applicant a license fee.]

39-25          (c)  The head of a regulatory agency may not issue an

39-26    original noncommercial applicator license before the applicant has

39-27    passed an examination under Section 76.110 of this code.

 40-1          (d)  An individual to whom a noncommercial applicator license

 40-2    is issued is authorized to purchase, use, and supervise the use of

 40-3    restricted-use and state-limited-use pesticides or regulated

 40-4    herbicides in the license use categories and subcategories in which

 40-5    the individual is licensed.

 40-6          (e)  If a license is issued in the name of a governmental

 40-7    entity, the entity must have a licensed applicator employed at all

 40-8    times.  Failure to have a licensed applicator employed is a ground

 40-9    for revocation of a governmental entity noncommercial applicator

40-10    license.

40-11          (f)  As a condition to issuance of a noncommercial applicator

40-12    license, an applicant located outside this state shall file with

40-13    the regulatory agency a written instrument designating a resident

40-14    agent for service of process in actions taken in the administration

40-15    and enforcement of this chapter.  Instead of designating a resident

40-16    agent, the applicant may designate in writing the secretary of

40-17    state as the recipient of service of process for the applicant in

40-18    this state.

40-19          Sec. 76.110.  Commercial and Noncommercial Applicator

40-20    Examination; Reciprocal Agreements.  (a)  Each person applying for

40-21    a license as a commercial applicator or a noncommercial applicator

40-22    must pass an examination demonstrating that the person:

40-23                (1)  is properly qualified to perform functions

40-24    associated with pesticide application to a degree directly related

40-25    to the nature of the activity and the associated responsibility;

40-26    and

40-27                (2)  has knowledge of the use and effects of

 41-1    restricted-use and state-limited-use pesticides or regulated

 41-2    herbicides in the license use categories and subcategories in which

 41-3    the person is to be licensed.

 41-4          (b)  Not later than the 30th day after the date on which a

 41-5    licensing examination is administered under this section, the

 41-6    appropriate regulatory agency shall notify each examinee of the

 41-7    results of the examination.  However, if an examination is graded

 41-8    or reviewed by a national testing service, the appropriate

 41-9    regulatory agency shall notify examinees of the results of the

41-10    examination not later than the 14th day after the date on which the

41-11    appropriate regulatory agency receives the results from the testing

41-12    service.  If the notice of examination results graded or reviewed

41-13    by a national testing service will be delayed for longer than 90

41-14    days after the examination date, the appropriate regulatory agency

41-15    shall notify the examinee of the reason for the delay before the

41-16    90th day.  The appropriate regulatory agency may require a testing

41-17    service to notify examinees of the results of an examination.

41-18          (c)  If requested in writing by the person who fails a

41-19    licensing examination administered under this section, the

41-20    appropriate regulatory agency shall furnish the person with an

41-21    analysis of the person's performance on the examination.

41-22          (d)  The appropriate regulatory agency may waive any

41-23    prerequisite to obtaining a license for an applicant after

41-24    reviewing the applicant's credentials and determining that the

41-25    applicant holds a valid license from another state that has license

41-26    requirements substantially equivalent to those of this state.

41-27          Sec. 76.111.  [Commercial] Applicator Businesses; Proof of

 42-1    Financial Responsibility.  (a)  In this section "applicator

 42-2    business" means a person who applies a state-limited-use or

 42-3    restricted-use pesticide or regulated herbicide to the land of

 42-4    another for compensation and who:

 42-5                (1)  is a licensed commercial applicator; or

 42-6                (2)  employs at least one licensed commercial

 42-7    applicator.

 42-8          (b)  This section does not apply to an employee or agent of

 42-9    an applicator business.

42-10          (c)  Except as otherwise provided by this section, each

42-11    applicator business [applicant for a commercial applicator license]

42-12    shall file with the regulatory agency issuing the license[:]

42-13                [(1)  a bond executed by the applicant as principal and

42-14    by a corporate surety licensed to do business in Texas as surety;

42-15    or]

42-16                [(2)]  a liability insurance policy, [or] certification

42-17    of a policy, or other proof of financial responsibility considered

42-18    acceptable by the department protecting persons who may suffer

42-19    damages as a result of the operations of the applicator business,

42-20    its employees, and its agents [applicant].

42-21          [(b)  If an applicant cannot reasonably obtain insurance

42-22    coverage or a bond as specified by Subsection (f) of this section,

42-23    the regulatory agency shall accept a certificate of deposit or a

42-24    letter of credit that meets the requirements of Subsection (c)(1)

42-25    and rules adopted under Subsection (e) of this section.]

42-26          [(c)  If the State Board of Insurance determines after giving

42-27    notice to the regulatory agency that the liability insurance policy

 43-1    required by Subsection (a)(2) of this section is not generally and

 43-2    reasonably available to commercial pesticide applicators, then in

 43-3    lieu of the requirements of Subsection (a) of this section, an

 43-4    applicant for a commercial applicator license may:]

 43-5                [(1)  tender from a state or federal financial

 43-6    institution whose deposits are insured by the Federal Deposit

 43-7    Insurance Corporation or by the Federal Savings and Loan Insurance

 43-8    Corporation a certificate of deposit or letter of credit in the

 43-9    amount prescribed by Subsection (f) of this section, made payable

43-10    to the regulatory agency and issued for the purpose of protecting

43-11    persons who may suffer damages as a result of the operations of the

43-12    applicant;]

43-13                [(2)  file property damage and personal injury

43-14    insurance or certification of such insurance that is generally and

43-15    reasonably available as determined by the State Board of Insurance;

43-16    or]

43-17                [(3)  comply with other proof of financial

43-18    responsibility requirements adopted by rule of the regulatory

43-19    agency under this subchapter.]

43-20          (d)  The proof of financial responsibility required by this

43-21    section is not required to apply to damages or injury to

43-22    agricultural crops, plants, or land being worked on by the

43-23    applicator business, its employees, or its agents [applicant].

43-24          (e)  [The proof of financial responsibility required by this

43-25    section must be approved by the regulatory agency and conditioned

43-26    on compliance with the requirements of this chapter and rules

43-27    adopted under this chapter.]

 44-1          [(f)]  Except as otherwise provided by this section, the

 44-2    amount of the proof of financial responsibility may not be less

 44-3    than $100,000 for each occurrence for property damage and may not

 44-4    be less than $100,000 for each occurrence for bodily injury or a

 44-5    general aggregate at a minimum of $200,000 for each occurrence.

 44-6    The head of a regulatory agency by rule may require different

 44-7    amounts of coverage for different classifications of operations

 44-8    under this chapter.  The [At all times during the license period,

 44-9    the] coverage must at all times be maintained at not less than the

44-10    amount set by the agency head or the Texas Department [State Board]

44-11    of Insurance[,  as applicable].

44-12          [(g)  At least 10 days before a reduction requested by a

44-13    licensee or a cancellation of a bond or liability insurance policy,

44-14    the party taking the action shall notify the head of the

44-15    appropriate regulatory agency.  If the party does not give that

44-16    notice, the liability of the surety or insurer is limited to the

44-17    bond or liability insurance policy.]

44-18          (f) [(h)]  The head of a regulatory agency may accept a [bond

44-19    or] liability insurance policy in the proper sum which has a

44-20    deductible clause in an amount of not more than $1,000 for the

44-21    total amount of the [bond or] liability insurance policy required

44-22    by this section.  If the applicator business [applicant] has not

44-23    satisfied the requirement of the deductible amount in any prior

44-24    legal claim, an agency head may not accept a [bond or] policy with

44-25    a deductible clause unless the applicator business [applicant]

44-26    furnishes the agency with a surety bond that satisfies the amount

44-27    of the deductible clause as to all claims that may arise as a

 45-1    result of the [applicant's] operation of the applicator business.

 45-2          (g)  An applicator business shall cease state-limited-use or

 45-3    restricted-use pesticide or regulated herbicide application

 45-4    operations during a period in which the applicator business is

 45-5    unable to provide adequate proof of financial responsibility under

 45-6    Subsection (e).

 45-7          [(i)  The department shall exempt a commercial applicator

 45-8    from the requirements of showing proof of financial responsibility

 45-9    under this section if the applicator agrees:]

45-10                [(1)  to a license for use of ground application

45-11    equipment only; and]

45-12                [(2)  to a license that limits the application to only

45-13    those herbicides determined by the department not to create a

45-14    substantial risk of drift because of volatility.]

45-15          [(j)  Should the surety furnished under this section become

45-16    insufficient or otherwise unsatisfactory, a licensee shall, on

45-17    notice of the insufficiency or other defect, immediately file a new

45-18    bond, liability insurance policy, or any other proof of financial

45-19    responsibility as authorized by rule of the regulatory agency.  A

45-20    licensee may not operate as a commercial applicator during an

45-21    uncovered period.  Failure to file a bond, or liability insurance

45-22    policy, other proof of authorized financial responsibility or

45-23    failure to maintain the surety in the required amount is a ground

45-24    for suspension or revocation of a commercial applicator license.]

45-25          [(k)  The regulatory agency by rule may prescribe acceptable

45-26    proof of financial responsibility and appropriate procedures to

45-27    carry out the purposes of this section.  The regulatory agency may

 46-1    adopt rules governing the conditions and handling of certificates

 46-2    of deposit and letters of credit, but may not disburse funds or

 46-3    release a certificate or letter except by consent of the commercial

 46-4    applicator or pursuant to court order.]

 46-5          Sec. 76.112.  Private Applicator.  (a)  A person is a private

 46-6    applicator if the person uses or supervises the use of a

 46-7    restricted-use or state-limited-use pesticide or regulated

 46-8    herbicide for the purpose of producing an agricultural commodity:

 46-9                (1)  on property owned or rented by the person or the

46-10    person's employer or under the person's general control; or

46-11                (2)  on the property of another person if applied

46-12    without compensation other than the trading of personal services,

46-13    or services related to agricultural production, including the use

46-14    of equipment, between producers of agricultural commodities.

46-15          (b)  A private applicator is required to be either licensed

46-16    or certified to use restricted-use or state-limited-use pesticides

46-17    or regulated herbicides.

46-18          (c)  An employee qualifies as a private applicator under

46-19    [Subdivision (1) of] Subsection (a)(1) of this section only if he

46-20    is employed to perform other duties related to agricultural

46-21    production and provide labor for the pesticide application but does

46-22    not provide the necessary equipment or pesticide.

46-23          (d)  A private applicator who is required to be licensed by

46-24    Section 76.105 of this code shall apply to the department

46-25    [appropriate regulatory agency] for a private applicator license.

46-26          (e)  A person shall apply for an original or renewal private

46-27    applicator license on forms prescribed by the department

 47-1    [regulatory agency].  The application shall include information as

 47-2    required by department [agency] rule and must be accompanied by a

 47-3    fee, as fixed by the department [head of the regulatory agency].

 47-4          (f)  The department [head of a regulatory agency] may not

 47-5    issue an original private applicator license before the applicant

 47-6    has attended a training course conducted by the Texas Agricultural

 47-7    Extension Service or another training course approved by the

 47-8    department.  The department shall approve appropriate training

 47-9    courses developed under the coordination of the Texas Agricultural

47-10    Extension Service and to be conducted by other governmental

47-11    agencies or nongovernmental entities.  The training course shall

47-12    cover the use, effects, and risks of restricted-use and

47-13    state-limited-use pesticides or regulated herbicides.

47-14          (g)  The department [head of a regulatory agency] may not

47-15    issue a private applicator license if the applicant has had a

47-16    license issued under this subchapter revoked within the last two

47-17    years.

47-18          (h)  An individual to whom a private applicator license is

47-19    issued is authorized to purchase, use, and supervise the use of

47-20    restricted-use and state-limited-use pesticides or regulated

47-21    herbicides in all license use categories and subcategories for the

47-22    purpose of producing an agricultural commodity on property

47-23    described by Subsection (a)(1) or (a)(2) of this section.

47-24          (i)  As a condition to issuance of a private applicator

47-25    license, an applicant located outside this state shall file with

47-26    the department [regulatory agency] a written instrument designating

47-27    a resident agent for service of process in actions taken in

 48-1    administration and enforcement of this chapter.  Instead of

 48-2    designating a resident agent, the applicant may designate in

 48-3    writing the secretary of state as the recipient of service of

 48-4    process for the applicant in this state.

 48-5          (j)  For purposes of this chapter, a certified private

 48-6    applicator is a private applicator who has been previously

 48-7    certified under the department's voluntary certification program

 48-8    and who holds a private applicator certificate dated prior to

 48-9    January 10, 1989.  A certified private applicator is authorized to

48-10    use restricted-use and state-limited-use pesticides or regulated

48-11    herbicides in all license use categories and subcategories for the

48-12    purpose of producing an agricultural commodity on property

48-13    described by Subsection (a)(1) or (a)(2) of this section.  A

48-14    certified private applicator may not supervise the use of

48-15    restricted-use and state-limited-use pesticides or regulated

48-16    herbicides.

48-17          Sec. 76.113.  Expiration and Renewal of Licenses.  (a)  Each

48-18    commercial applicator or noncommercial applicator license expires

48-19    on the last day of February of the year following the year in which

48-20    it was issued.

48-21          (b)  Each private applicator license expires on the last day

48-22    of February of the fifth year following the year in which it was

48-23    issued.

48-24          (c)  Except as provided by Subsection (d) of this section, a

48-25    person having a valid license issued under this subchapter may

48-26    renew the license for another term without retesting by paying to

48-27    the regulatory agency the license fee required by this subchapter.

 49-1    A person who fails to apply for renewal of a license on or before

 49-2    the expiration date must pay, in addition to the annual license

 49-3    fee, the late fee provided by Section 12.024 of this code.

 49-4          (d)  A licensee must undertake training, submit to retesting,

 49-5    or both, before renewal of a license if the head of the agency

 49-6    determines that additional knowledge is required for renewal.

 49-7          Sec. 76.114.  Records.  (a)  A regulatory agency shall

 49-8    require each commercial [applicator] and noncommercial applicator

 49-9    licensee  to maintain records of all pesticide applications [the

49-10    licensee's use of pesticides].  The department may require each

49-11    commercial or noncommercial applicator licensee to keep records of

49-12    the licensee's application of a specific restricted-use or

49-13    state-limited-use pesticide or regulated herbicide and may require

49-14    those records to be kept separate from other business records.  The

49-15    regulatory agency by rule shall prescribe the information to be

49-16    entered into [included in] the records.

49-17          (b)  Each private applicator shall maintain records of

49-18    regulated herbicide and state-limited-use pesticide applications

49-19    and shall maintain those records of restricted-use pesticide

49-20    applications required by federal law  [A regulatory agency may

49-21    require a  commercial applicator and noncommercial applicator

49-22    licensee to keep records of the licensee's application of a

49-23    specific restricted-use or state-limited-use pesticide and may

49-24    require those records to be kept separate from other business

49-25    records].

49-26          (c)  A licensee shall keep records required under this

49-27    section for a period of two years from the date of the pesticide

 50-1    application.  The licensee shall keep these records accessible and

 50-2    available for copying and shall store them in a location suitable

 50-3    to preserve their physical integrity.

 50-4          (d)  On written request of the regulatory agency, a licensee

 50-5    shall furnish the department [agency] a copy of any requested

 50-6    record pertaining to the application of pesticides.  The department

 50-7    may require all persons who apply a regulated herbicide to submit

 50-8    periodically to the department a copy of the records required by

 50-9    this section.

50-10          Sec. 76.115.  [Registration and] Inspection of Equipment.

50-11    (a)  Each regulatory agency may inspect [shall provide for the

50-12    registration and inspection of] equipment used in the [commercial]

50-13    application of a restricted-use or state-limited-use pesticide.

50-14          (b)  A regulatory agency may require repairs or alterations

50-15    of equipment before further use in the application of

50-16    restricted-use or state-limited-use pesticides.

50-17          (c)  The department by rule may:

50-18                (1)  provide requirements for and inspect equipment

50-19    used to apply regulated herbicides; and

50-20                (2)  regulate or prohibit the use of certain equipment

50-21    in the application of regulated herbicides if that use would be

50-22    hazardous in an area of the state  [The head of a regulatory agency

50-23    by rule shall adopt standards that must be met before equipment may

50-24    be registered].

50-25          (d)  Each piece of registered equipment shall be identified

50-26    by a license plate or decal furnished by a regulatory agency at no

50-27    cost to the licensee.  The license plate or decal must be attached

 51-1    to the equipment in a manner and location prescribed by the

 51-2    regulatory agency.

 51-3          Sec. 76.116.  Suspension, Modification, or Revocation of

 51-4    License.  (a)  The head of a regulatory agency that licensed or

 51-5    certified an applicator may suspend, modify, or revoke a [any

 51-6    provision in the] license or certificate, assess an administrative

 51-7    penalty, place on probation a person whose license or certificate

 51-8    has been suspended, [or] reprimand a licensee or certificate

 51-9    holder, or take a combination of those actions  if the head of the

51-10    agency finds that the licensee or certificate holder has:

51-11                (1)  made a pesticide recommendation or application

51-12    inconsistent with the pesticide's labeling or with the restrictions

51-13    on the use of the pesticide imposed by the state or the

51-14    Environmental Protection Agency;

51-15                (2)  operated in a faulty, careless, or negligent

51-16    manner;

51-17                (3)  refused, or after notice, failed to comply with an

51-18    applicable provision of this chapter, a rule adopted under this

51-19    chapter, or a lawful order of the head of a regulatory agency by

51-20    which the licensee is licensed;

51-21                (4)  refused or neglected to keep and maintain the

51-22    records required by this chapter or to make reports when and as

51-23    required by this chapter;

51-24                (5)  failed to maintain financial responsibility [a

51-25    bond or policy of insurance] as required by this chapter;

51-26                (6)  made false or fraudulent records, invoices, or

51-27    reports;

 52-1                (7)  used fraud or misrepresentation in making an

 52-2    application for a license or renewal of a license; or

 52-3                (8)  aided or abetted a certified, licensed, or an

 52-4    unlicensed person to evade the provisions of this chapter,

 52-5    conspired with a certified, licensed, or an unlicensed person to

 52-6    evade the provisions of this chapter, or allowed the licensee's

 52-7    license or the certificate holder's certificate to be used by

 52-8    another person.

 52-9          (b)  A regulatory agency may temporarily suspend a license or

52-10    certificate under this section for not more than 10 days after

52-11    giving the licensee or certificate holder written notice of

52-12    noncompliance.

52-13          (c)  If a license or certificate suspension is probated, the

52-14    regulatory agency may require the person to:

52-15                (1)  report regularly to the agency on matters that are

52-16    the basis of the probation;

52-17                (2)  limit practice to the areas prescribed by the

52-18    agency; or

52-19                (3)  continue or renew professional education until the

52-20    person attains a degree of skill satisfactory to the agency in

52-21    those areas that are the basis of the probation.

52-22          (d)  Except for a temporary suspension under Subsection (b)

52-23    of this section, if the regulatory agency, except for the

52-24    department, proposes to not renew, suspend, modify, or revoke a

52-25    person's license or certificate, the person is entitled to a

52-26    hearing before a hearings officer designated by the agency.  The

52-27    agency shall prescribe procedures by which all decisions to not

 53-1    renew, suspend, modify, or revoke are appealable to the governing

 53-2    officer or board of the agency.

 53-3          (e)  Except for a temporary suspension under Subsection (b)

 53-4    of this section, if the department proposes to not renew, suspend,

 53-5    modify, or revoke a person's license or certificate, the person is

 53-6    entitled to a hearing conducted as provided under Section 12.032.

 53-7    The decision of the department is appealable in the same manner as

 53-8    provided for contested cases under Chapter 2001, Government Code.

 53-9          (f)  An applicator whose license or certificate is under

53-10    suspension or revocation by a regulatory agency may not apply

53-11    restricted-use or state-limited-use pesticides or regulated

53-12    herbicides under the direct supervision of another licensed

53-13    applicator during that period of suspension or revocation.

53-14          Sec. 76.117.  Property Owner Use.  This chapter does not

53-15    prohibit a property owner from using in the property owner's house,

53-16    lawn, or garden a pesticide that is labeled for that use, other

53-17    than a pesticide that may be registered or [and] classified for use

53-18    only by certified applicators.

53-19          Sec. 76.118.  EXEMPTION FOR LICENSED VETERINARIANS.  The

53-20    other provisions of this chapter notwithstanding, a person who is

53-21    licensed to practice veterinary medicine by the State Board of

53-22    Veterinary Medical Examiners and who is only using a restricted-use

53-23    or state-limited-use pesticide or a regulated herbicide as a drug

53-24    or medication during the course of the veterinarian's normal

53-25    practice or as a private applicator may not  be required to obtain

53-26    a license under this chapter to purchase or use the restricted-use

53-27    or state-limited-use pesticide or regulated herbicide.

 54-1                    SUBCHAPTER F.  STORAGE AND DISPOSAL

 54-2          Sec. 76.131.  Rules.  (a)  The department may adopt rules

 54-3    governing the storage and disposal of pesticides and pesticide

 54-4    containers for the purpose of:

 54-5                (1)  preventing injury from storage or disposal to man,

 54-6    vegetation, crops, or animals; and

 54-7                (2)  preventing any water [waterway] pollution that is

 54-8    harmful to man or wildlife provided, however, that such rules be

 54-9    consistent with and not less stringent than Texas Natural Resource

54-10    Conservation Commission rules adopted under Chapter 26 of the Water

54-11    Code.

54-12          (b)  A person may not store or dispose of a pesticide in

54-13    violation of a rule adopted by the department under this section.

54-14          (c)  Applicators and other entities covered by this chapter

54-15    who normally store products listed under the FIFRA in an amount

54-16    that exceeds 55 gallons, 500 pounds, or a lesser amount the

54-17    department determines by rule for certain highly toxic or dangerous

54-18    chemicals covered by this chapter, within one-quarter mile of a

54-19    residential area composed of three or more private dwellings for

54-20    more than 72 hours, shall provide to the fire chief of the fire

54-21    department having jurisdiction over the storage place, in writing,

54-22    the name and telephone number of the applicator or a knowledgeable

54-23    representative of the applicator or other entity storing the

54-24    product who can be contacted for further information or contacted

54-25    in case of emergency.

54-26          (d)  On request, each applicator or entity shall provide to

54-27    the fire chief having jurisdiction over the storage place a copy of

 55-1    a list of pesticides stored by the applicator or entity.  The

 55-2    applicator or other entity shall notify the fire chief of any

 55-3    significant changes that occur relating to the stored pesticides if

 55-4    requested by the fire chief in writing.

 55-5          (e)  The fire chief having jurisdiction over the storage

 55-6    place or the fire chief's representative, on request, shall be

 55-7    permitted to conduct on-site inspections of the pesticides stored

 55-8    for the sole purpose of preparing fire department activities in

 55-9    case of an emergency.

55-10          (f)  On request, the fire chief having jurisdiction over the

55-11    storage place shall make the stored pesticide list available to

55-12    members of the fire department having jurisdiction over the

55-13    workplace and to personnel outside the fire department who are

55-14    responsible for preplanning emergency activities, but may not

55-15    otherwise distribute the information without approval of the

55-16    applicator.

55-17                         SUBCHAPTER G.  HERBICIDES

55-18          Sec. 76.141.  REGULATED HERBICIDES.  (a)  After a public

55-19    hearing on the issue, and in accordance with Subsection (b), the

55-20    department by rule may adopt a list of regulated herbicides for the

55-21    state or for one or more designated areas in the state.

55-22          (b)  The department may include a herbicide on the list of

55-23    regulated herbicides if the department determines that, if used as

55-24    directed or in accordance with widespread and commonly recognized

55-25    practice, the herbicide requires additional restrictions to prevent

55-26    a hazard to desirable vegetation caused by drift or an uncontrolled

55-27    application.

 56-1          (c)  A person may not distribute a regulated herbicide unless

 56-2    the person holds a dealer's license issued by the department.

 56-3          Sec. 76.142.  APPLICATION OF REGULATED HERBICIDE.  (a)  If a

 56-4    person applies a regulated herbicide, the person shall act in

 56-5    accordance with each applicable rule adopted by the department,

 56-6    including a rule adopted under this subchapter.

 56-7          (b)  If a regulated herbicide is applied by a commercial

 56-8    applicator, the person in control of the crop or land to which the

 56-9    regulated herbicide is applied and the commercial applicator are

56-10    jointly responsible for ensuring that the application is in

56-11    compliance with this chapter and each applicable rule adopted by

56-12    the department.

56-13          (c)  If the department finds that an application of a

56-14    regulated herbicide is hazardous to crops or valuable plants in an

56-15    area, the department may prohibit the application of a regulated

56-16    herbicide in that area for any period during which the hazard

56-17    exists.

56-18          Sec. 76.143.  PUBLIC HEARING.  As soon as practicable after

56-19    receiving a written request for a revision of a rule, an exemption

56-20    from a requirement of this chapter, or a prohibition of the

56-21    spraying of a regulated herbicide in an area, the department may

56-22    hold a public hearing to hear the request.

56-23          Sec. 76.144.  COUNTY HERBICIDE REGULATIONS.  (a)  If the

56-24    commissioners court of a county determines that a valuable crop or

56-25    vegetation susceptible to being adversely affected by the

56-26    application of a regulated herbicide exists in an area of the

56-27    county and that a departmental rule adopted or prohibition

 57-1    prescribed under Section 76.141 or 76.142 not currently applicable

 57-2    to the area should apply to the area, the commissioners court may

 57-3    enter an order in the minutes of the court under which the

 57-4    department's rule or prohibition under Section 76.141 or 76.142

 57-5    becomes effective in the specified area of the county beginning

 57-6    January 1 of the following year.

 57-7          (b)  If the commissioners court of a county determines that

 57-8    there is no longer a valuable crop or vegetation susceptible to

 57-9    being adversely affected by the application of a regulated

57-10    herbicide in the specified area of the county, the court may

57-11    rescind its order under Subsection (a) effective  January 1 of the

57-12    following year.

57-13          (c)  The department shall adopt rules concerning the use of a

57-14    regulated herbicide in a county in which the commissioners court

57-15    has entered an order under Subsection (a) of this section.

57-16          (d)  The department may immediately suspend a rule of the

57-17    department regarding the application dates of a regulated herbicide

57-18    in an area of a county if:

57-19                (1)  the commissioners court of the county established

57-20    the applicability of the rule by adopting an order as provided by

57-21    Subsection (a);

57-22                (2)  the commissioners court requests that the

57-23    department immediately suspend the rule; and

57-24                (3)  the department determines that an imminent threat

57-25    to agricultural interests exists in the county and if that threat

57-26    is not immediately addressed by a suspension of the department's

57-27    rule a significant economic loss will result.

 58-1          (e)  Before the commissioners court of a county may enter an

 58-2    order under this section, the commissioners court shall hold a

 58-3    hearing to determine whether the order should be issued.  Before

 58-4    the 10th day before the date on which the hearing is to be held,

 58-5    the commissioners court shall publish notice of the hearing in at

 58-6    least one newspaper in the county.

 58-7          (f)  The commissioners court shall transcribe the hearing and

 58-8    make findings of fact based on the hearing and conclusions of law

 58-9    to support its order in the manner prescribed for a final order or

58-10    decision in a contested case under Chapter 2001, Government Code.

58-11          (g)  Before the 21st day after the date on which an order

58-12    under Subsection (a) is entered, an interested person may appeal

58-13    the order to a district court in the county to test the

58-14    reasonableness of the basis for the commissioners court order.  The

58-15    provisions of Subchapter G, Chapter 2001, Government Code, that

58-16    apply to the judicial review of a contested case under the

58-17    substantial evidence rule apply to the appeal, except that the

58-18    appeal is   brought in a district court for the county in which the

58-19    appealed order applies.  An appeal may be taken from the district

58-20    court as in other civil cases.

58-21          (h)  The commissioners court of the county shall notify the

58-22    department of a change in the status of a county or a portion of a

58-23    county under this section.

58-24                      SUBCHAPTER H [G].  ENFORCEMENT

58-25          Sec. 76.151.  Entry Power.  (a)  For the purpose of

58-26    inspection, examination, or sampling, the department is entitled to

58-27    enter at reasonable hours any building or place owned, controlled,

 59-1    or operated by a registrant or dealer if from probable cause it

 59-2    appears that the building or place contains a pesticide.

 59-3          (b)  A regulatory agency is entitled to enter any public or

 59-4    private premises at reasonable times to:

 59-5                (1)  inspect any equipment authorized or required to be

 59-6    inspected under this chapter or to inspect the premises on which

 59-7    the equipment is kept or stored;

 59-8                (2)  inspect or sample land exposed or reported to be

 59-9    exposed to a pesticide;

59-10                (3)  inspect an area where a pesticide is disposed of

59-11    or stored; or

59-12                (4)  observe the use and application of a

59-13    restricted-use or state-limited-use pesticide or regulated

59-14    herbicide.

59-15          (c)  If a regulatory agency is denied access to any land to

59-16    which access was sought at a reasonable time for any of the

59-17    purposes listed in Subsection (b) of this section, the head of the

59-18    regulatory agency may apply to a magistrate for a warrant

59-19    authorizing access to the land for any of those purposes.  On a

59-20    showing of probable cause to believe that a violation of a rule

59-21    relating to a purpose listed in Subsection (b) of this section has

59-22    occurred, the magistrate shall issue the search warrant for the

59-23    purposes requested.

59-24          Sec. 76.152.  Sampling.  The department is entitled to take a

59-25    sample for official analysis from any package or lot of pesticides

59-26    found within this state.

59-27          Sec. 76.153.  Stop Use, Stop Distribution, or Removal

 60-1    [Stop-Sale] Order.  (a)  If the department has reason to believe

 60-2    that a pesticide is in violation of any provision of this chapter,

 60-3    the department may issue and enforce a written or printed order to

 60-4    stop the use or distribution [sale] of the pesticide or requiring

 60-5    the pesticide to be removed and secured from further distribution.

 60-6    The department shall present the order to the owner or custodian of

 60-7    the pesticide.  The person who receives the order may not sell,

 60-8    distribute, or use the pesticide until the department determines

 60-9    that the pesticide:

60-10                (1)  is in compliance with this chapter; or

60-11                (2)  does not present a hazard to the public health,

60-12    safety, or  welfare.

60-13          (b)  This section does not limit the right of the department

60-14    to proceed as authorized by another section of this chapter.

60-15          Sec. 76.154.  Injunction.  (a)  The department may sue in the

60-16    name of the commissioner to enjoin any violation of a provision of

60-17    this chapter.  Venue is in the county in which the alleged

60-18    violation occurred or is occurring.

60-19          (b)  A regulatory agency may request an appropriate

60-20    prosecuting attorney or the attorney general to sue to enjoin a

60-21    violation or threatened violation of a provision of this chapter

60-22    that is within the agency's responsibility.

60-23          Sec. 76.155.  Prosecutions.  The department [A regulatory

60-24    agency] may request the appropriate prosecuting attorney to

60-25    prosecute a violation of a provision of this chapter.

60-26          Sec. 76.1555.  Administrative Penalty.  (a)  If a person

60-27    violates a provision of this chapter [Chapter 75 or 76 of this code

 61-1    administered by the department] or a rule or order adopted by the

 61-2    department under this chapter [either of those chapters], the

 61-3    department may assess an administrative penalty against the person

 61-4    as provided by Section 12.020, except that the penalty shall not

 61-5    exceed $4,000 for all violations related to a single incident.

 61-6          (b)  The department shall establish a schedule stating the

 61-7    types of violations possible under this chapter [Chapters 75 and 76

 61-8    of this code].  The department is not required to comply with

 61-9    Subchapter B, Chapter 2001, Government Code, when establishing or

61-10    revising the schedule.  The department shall publish the initial

61-11    schedule and any subsequent revision in the Texas Register before

61-12    the schedule or revision is implemented.

61-13          (c)  If the department elects to assess an administrative

61-14    penalty, no action for a civil penalty may be based on the same

61-15    violation or violations.

61-16          Sec. 76.156.  Civil Penalty.  (a)  A person who violates a

61-17    provision of this chapter administered by a regulatory agency other

61-18    than the department or a rule adopted by a regulatory agency other

61-19    than the department under this chapter is liable for a civil

61-20    penalty of not less than $50 nor more than $1,000 for each day on

61-21    which the violation occurs.

61-22          (b)  A person who violates a provision of this chapter

61-23    administered by the department or a rule adopted by the department

61-24    under this chapter is liable for a civil penalty of not less than

61-25    $50 nor more than $10,000 for each violation, provided that the

61-26    penalty shall not exceed $25,000 for all violations related to a

61-27    single incident.

 62-1          (c)  No civil penalty may be collected for any violation that

 62-2    constituted the basis for a department proceeding to assess an

 62-3    administrative penalty, regardless of whether the department was or

 62-4    was not successful in collecting the administrative penalty.

 62-5          (d)  A county attorney, a district attorney, or the attorney

 62-6    general shall sue in the name of the state for the collection of a

 62-7    civil penalty provided by this section.

 62-8          (e)  The appropriate regulatory agency may request an

 62-9    appropriate prosecuting attorney or the attorney general to bring

62-10    suit under this section.

62-11          (f)  A civil penalty collected under this section shall be

62-12    deposited in the state treasury to the credit of the General

62-13    Revenue Fund.  All civil penalties recovered in suits first

62-14    instituted by a local government or governments under this section

62-15    shall be equally divided between the State of Texas and the local

62-16    government or governments with 50 percent of the recovery to be

62-17    paid to the General Revenue Fund and the other 50 percent equally

62-18    to the local government or governments first instituting the suit.

62-19                        SUBCHAPTER I [H].  REMEDIES

62-20          Sec. 76.181.  Appeal of Denial or Cancellation of Pesticide

62-21    Registration.  [(a)]  A person whose application for registration

62-22    of a pesticide has been denied or whose registration for a

62-23    pesticide has been canceled may appeal the action in the manner

62-24    provided for appeal of contested cases under Chapter 2001,

62-25    Government Code.

62-26          [(b)  Appeal under this section is governed by the

62-27    substantial evidence rule.]

 63-1          Sec. 76.182.  Appeal of Permit or License Denial, Suspension,

 63-2    Modification, or Revocation.  [(a)]  A person whose application for

 63-3    an experimental use permit, pesticide dealer license, commercial

 63-4    applicator license, noncommercial applicator license, or private

 63-5    applicator license has been denied or whose experimental use

 63-6    permit, pesticide dealer license, commercial applicator license,

 63-7    noncommercial applicator license, private applicator license, or

 63-8    private applicator certificate has been suspended for more than 10

 63-9    days, revoked, or modified may appeal the action in the manner

63-10    provided for appeal of contested cases under Chapter 2001,

63-11    Government Code.

63-12          [(b)  Appeal under this section is governed by the

63-13    substantial evidence rule.]

63-14          Sec. 76.183.  Appeal of Stop Use, Stop Distribution, or

63-15    Removal [Stop-Sale] Order.  (a)  The owner or custodian of a

63-16    pesticide to which a stop use, stop distribution, or removal

63-17    [stop-sale] order is imposed under Section 76.153 [applies] may

63-18    appeal the order to a court of competent jurisdiction in the county

63-19    where the pesticide is found.

63-20          (b)  Appeal under this section is by trial de novo.

63-21          Sec. 76.184.  REPORTS OF PESTICIDE ADVERSE EFFECTS [DAMAGE

63-22    CLAIMS].  (a)  A person claiming adverse effects from an

63-23    application of a pesticide may file with the appropriate regulatory

63-24    agency a complaint report.  The complaint report must contain the

63-25    name of the person, if known, allegedly responsible for the

63-26    application of the pesticide and the name of the owner or lessee of

63-27    the land on which the pesticide was applied.  The regulatory agency

 64-1    shall prepare a form printed in English and Spanish to be furnished

 64-2    to persons for use in filing complaint reports.  The form may

 64-3    contain other information that is within the person's knowledge and

 64-4    requested by the head of the regulatory agency.

 64-5          (b)  As soon as practicable after receiving a complaint

 64-6    report, the regulatory agency shall notify the licensee, the owner

 64-7    or lessee of the land on which the alleged application occurred,

 64-8    and any other person who may be charged with responsibility for the

 64-9    adverse effects claimed.  The regulatory agency shall furnish

64-10    copies of the complaint to those people on request.

64-11          (c)  To assess any adverse effects, the complaining party

64-12    shall permit the regulatory agency and the licensee to observe,

64-13    within reasonable hours, the land or nontarget organism alleged to

64-14    have been adversely affected.

64-15          (d)  Failure to file a complaint does not bar a civil or

64-16    criminal action from being filed and maintained.

64-17          (e)  The regulatory agency by rule may adopt procedures to be

64-18    followed in the investigation of a report claiming adverse effects

64-19    from an application of the pesticide.  [damages from a pesticide

64-20    application may file with the regulatory agency that licensed the

64-21    certified applicator whose action allegedly caused the damage a

64-22    written statement claiming that the person has been damaged.  To be

64-23    eligible for consideration by the agency, the report must be filed

64-24    before the 31st day following the day of the alleged occurrence or,

64-25    if a growing crop is alleged to have been damaged, before the time

64-26    that 25 percent of the crop has been harvested or before the 31st

64-27    day, whichever is less.  The report must contain the name of the

 65-1    person allegedly responsible for the application of the pesticide

 65-2    and the name of the owner or lessee of the land on which the crop

 65-3    is grown and to which damage is alleged to have occurred.  The

 65-4    regulatory agency shall prepare a form to be furnished to persons

 65-5    for use in filing damage reports.  The form may contain other

 65-6    information that is required by the head of the regulatory agency.]

 65-7          [(b)  On receipt of a report, the regulatory agency shall

 65-8    notify the licensee, the owner or lessee of the land on which the

 65-9    alleged act occurred, and any other person who may be charged with

65-10    responsibility for the damages claimed.  The regulatory agency

65-11    shall furnish copies of the report to those people on request.]

65-12          [(c)  The regulatory agency shall inspect damages whenever

65-13    possible and shall report its findings to the person claiming

65-14    damage and to the person alleged to have caused the damage.  In

65-15    order that damage may be assessed, the claimant shall permit the

65-16    regulatory agency and the licensee to observe, within reasonable

65-17    hours, the land or nontarget organism alleged to have been damaged.]

65-18          [(d)  Failure to file a report does not bar maintenance of a

65-19    civil or criminal action.  If a person fails to file a report and

65-20    is the only person claiming injury from the particular use or

65-21    application of a pesticide, the regulatory agency may, if in the

65-22    public interest, refuse to hold a hearing for the denial,

65-23    suspension, or revocation of a license issued under this chapter to

65-24    the person alleged to have caused the damage.]

65-25          Sec. 76.185.  Damages Resulting From Application of Pesticide

65-26    Under Government Program.  Notwithstanding other law, the owner or

65-27    lessee of land on which a pesticide is applied is not responsible

 66-1    for damages resulting from the application of the pesticide or

 66-2    subject to a criminal or civil penalty in connection with the

 66-3    application of the pesticide if:

 66-4                (1)  the pesticide is applied under a local, state, or

 66-5    federal government program that requires the application of the

 66-6    pesticide to the land; and

 66-7                (2)  the owner or lessee of the land on which the

 66-8    pesticide is applied does not control or have a right to control

 66-9    the time and manner of the application of the pesticide to the

66-10    land.

66-11                       SUBCHAPTER J [I].  PENALTIES

66-12          Sec. 76.201.  Offenses.  (a)  A person commits an offense if

66-13    the person distributes within this state or delivers for

66-14    transportation or transports in intrastate commerce or between

66-15    points within this state through a point outside this state,  any

66-16    of the following:

66-17                (1)  a pesticide that has not been registered as

66-18    provided by this  chapter, except for a pesticide that is not for

66-19    use in this state and is only being manufactured, transported, or

66-20    distributed for use outside of this state;

66-21                (2)  a pesticide that has a claim, a direction for its

66-22    use, or labeling that differs from the representations made in

66-23    connection with its registration;

66-24                (3)  a pesticide that is not in the registrant's or

66-25    manufacturer's unbroken immediate container and that is not labeled

66-26    with the information and in the manner required by Section 76.021

66-27    of this code;

 67-1                (4)  a pesticide:

 67-2                      (A)  that is of strength or purity that falls

 67-3    below the professed standard or quality expressed on its labeling

 67-4    or under which it is sold;

 67-5                      (B)  for which a substance has been substituted

 67-6    wholly or in part;

 67-7                      (C)  of which a valuable constituent has been

 67-8    wholly or in part abstracted; or

 67-9                      (D)  in which a contaminant is present in an

67-10    amount that is determined by the department to be a hazard;

67-11                (5)  a pesticide or device that is misbranded; or

67-12                (6)  a pesticide in a container that is unsafe due to

67-13    damage.

67-14          (b)  A person commits an offense if the person:

67-15                (1)  detaches, alters, defaces, or destroys, wholly or

67-16    in part, any label or labeling provided for by this chapter or a

67-17    rule adopted under this chapter before the container has been

67-18    emptied and rinsed properly;

67-19                (2)  adds any substance to or takes any substance from

67-20    a pesticide in a manner that may defeat the purpose of this chapter

67-21    or a rule adopted under this chapter;

67-22                (3)  uses or causes to be used a pesticide contrary to

67-23    its labeling or to a rule of the department limiting the use of the

67-24    pesticide;

67-25                (4)  handles, transports, stores, displays, or

67-26    distributes a pesticide in a manner that violates a provision of

67-27    this chapter or a rule adopted by the department under this

 68-1    chapter; or

 68-2                (5)  disposes of, discards, or stores a pesticide or

 68-3    pesticide container in a manner that the person knows or should

 68-4    know is likely to cause injury to man, vegetation, crops,

 68-5    livestock, wildlife, or pollinating insects.

 68-6          (c)  A person other than a person to whom the pesticide is

 68-7    registered commits an offense if the person uses for the person's

 68-8    advantage or reveals, other than to a properly designated state or

 68-9    federal official or employee, a physician, or in emergency to a

68-10    pharmacist or other qualified person for the preparation of an

68-11    antidote, any information relating to pesticide formulas, trade

68-12    secrets, or commercial or financial information acquired under this

68-13    chapter and marked as privileged or confidential by the registrant.

68-14          (d)  A person commits an offense if the person:

68-15                (1)  commits an act for which a certified applicator's

68-16    license may be suspended, modified, [or] revoked, or not renewed

68-17    under Section 76.116 of this code; or

68-18                (2)  violates any [other] provision of this chapter to

68-19    which this  section does not expressly apply.

68-20          (e)  A person commits an offense if the person:

68-21                (1)  knowingly or intentionally uses, causes to be

68-22    used, handles, stores, or disposes of a pesticide in a manner that

68-23    causes injury to man, vegetation, crops, livestock, wildlife, or

68-24    pollinating insects;

68-25                (2)  violates Section 76.071(a);

68-26                (3)  has a permit to apply a powder or dry-type

68-27    regulated herbicide and applies a herbicide that does not meet the

 69-1    requirements of Section 76.144(c);

 69-2                (4)  violates a rule adopted under this chapter; or

 69-3                (5)  fails to keep or submit records in violation of

 69-4    this chapter.

 69-5          Sec. 76.202.  Penalty.  (a)  Except as provided by Subsection

 69-6    (b) of this section, an offense under Section 76.201 of this code

 69-7    is a Class C misdemeanor, unless the person has been previously

 69-8    convicted of an offense under that section, in which event the

 69-9    offense is a Class B misdemeanor.

69-10          (b)  An offense under Section 76.201(e) of this code is a

69-11    Class A misdemeanor, unless the person has been previously

69-12    convicted of an offense under that subsection, in which event the

69-13    offense is a felony of the third degree.

69-14          Sec. 76.203.  Defenses.  (a)  It is a defense to prosecution

69-15    under this subchapter that the defendant:

69-16                (1)  is a carrier who was lawfully engaged in

69-17    transporting a pesticide or device within this state and who, on

69-18    request, permitted the department to copy all records showing the

69-19    transactions in and movement of the pesticide or device;

69-20                (2)  is a public official of this state or the federal

69-21    government who was engaged in the performance of an official duty

69-22    in administering state or federal pesticide law or engaged in

69-23    pesticide research;

69-24                (3)  is the manufacturer or shipper of a pesticide that

69-25    was for experimental use only by or under the supervision of an

69-26    agency of this state or of the federal government authorized by law

69-27    to conduct research in the field of pesticides and the manufacturer

 70-1    or shipper held a valid experimental use permit as provided by this

 70-2    chapter; and

 70-3                (4)  manufactured or formulated a pesticide or device

 70-4    solely for export to a foreign country and prepared or packed the

 70-5    pesticide or device according to the specifications or directions

 70-6    of the purchaser.

 70-7          (b)  It is a defense to prosecution under Section

 70-8    76.201(a)(3) of this code that the defendant is an applicator who,

 70-9    after acquiring an unbroken container, opened and transported the

70-10    open container to and from application and storage sites as

70-11    necessary.

70-12          (c)  It is an affirmative defense to prosecution under

70-13    Section 76.201(e) of this code that the defendant was using,

70-14    causing to be used, handling, storing, or disposing of the

70-15    pesticide in accordance with a label that complied with this

70-16    chapter and rules adopted under this chapter.

70-17          SECTION 2.  Chapter 75, Agriculture Code, is repealed.

70-18          SECTION 3.  A license issued under Subchapter E, Chapter 76,

70-19    Agriculture Code, by a state agency other than the Department of

70-20    Agriculture that is of a type that will be issued by the department

70-21    under the changes in law to Subchapter E made by this Act remains

70-22    valid, subject to the terms and conditions under which it was

70-23    issued, for the remainder of the period for which it was issued.

70-24    When the license expires it is subject to renewal under Subchapter

70-25    E, Chapter 76, Agriculture Code, as amended by this Act.

70-26          SECTION 4.  The importance of this legislation and the

70-27    crowded condition of the calendars in both houses create an

 71-1    emergency and an imperative public necessity that the

 71-2    constitutional rule requiring bills to be read on three several

 71-3    days in each house be suspended, and this rule is hereby suspended,

 71-4    and that this Act take effect and be in force from and after its

 71-5    passage, and it is so enacted.