75R9471 MWV-D
By Turner of Coleman, et al. H.B. No. 1144
Substitute the following for H.B. No. 1144:
By Jackson C.S.H.B. No. 1144
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the consolidation of herbicide, pesticide, and
1-3 agricultural workplace chemical laws under the jurisdiction of the
1-4 Department of Agriculture.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 76, Agriculture Code, is amended to read
1-7 as follows:
1-8 CHAPTER 76. PESTICIDE REGULATION
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 76.001. Definitions. In this chapter:
1-11 (1) "Active ingredient" means:
1-12 (A) in the case of a pesticide other than a
1-13 plant regulator, defoliant, or desiccant, an ingredient that
1-14 prevents, destroys, repels, or mitigates a pest;
1-15 (B) in the case of a plant regulator, an
1-16 ingredient that through physiological action accelerates or retards
1-17 the rate of growth or rate of maturation or otherwise alters the
1-18 behavior of an ornamental or crop plant or the product of an
1-19 ornamental or crop plant;
1-20 (C) in the case of a defoliant, an ingredient
1-21 that causes leaves or foliage to drop from a plant; or
1-22 (D) in the case of a desiccant, an ingredient
1-23 that artificially accelerates the drying of plant tissue.
1-24 (2) "Animal" means a vertebrate or invertebrate
2-1 species, including man, other mammals, birds, fish, and shellfish.
2-2 (3) "Antidote" means a practical treatment used in
2-3 preventing or lessening ill effects from poisoning, including first
2-4 aid.
2-5 (4) "Application of a herbicide" means the spreading
2-6 of a herbicide on real property having a continuous boundary line.
2-7 (5) "Defoliant" means a substance or mixture of
2-8 substances intended to cause the leaves or foliage to drop from a
2-9 plant, with or without causing abscission.
2-10 (6) "Department" means the Department of Agriculture.
2-11 (7) [(5)] "Desiccant" means a substance or mixture of
2-12 substances intended to artificially accelerate the drying of plant
2-13 tissue.
2-14 (8) [(6)] "Device" means an instrument or contrivance,
2-15 other than a firearm, that is used to trap, destroy, repel, or
2-16 mitigate a pest or other form of plant or animal life, other than
2-17 man or a bacteria, virus, or other microorganism on or in living
2-18 man or other living animals. The term does not include equipment
2-19 sold separately from a pesticide.
2-20 (9) [(7)] "Distribute" means offer for sale, hold for
2-21 sale, sell, barter, or supply.
2-22 (10) [(8)] "Environment" includes water, air, land,
2-23 plants, man, and other animals living in or on water, air, or land,
2-24 and the interrelationships that exist among them.
2-25 (11) [(9)] "Equipment" means any type of ground,
2-26 water, or aerial equipment or contrivance employing motorized,
2-27 mechanical, or pressurized power and used to apply a pesticide to
3-1 land or to anything that may be inhabiting or growing or stored on
3-2 or in the land. The term does not include a pressurized hand-sized
3-3 household apparatus used to apply a pesticide or any equipment or
3-4 contrivance for which the person applying the pesticide is the
3-5 source of power or energy used in making the pesticide application.
3-6 (12) "FIFRA" means the Federal Insecticide, Fungicide,
3-7 and Rodenticide Act (7 U.S.C. Section 136 et seq.).
3-8 (13) [(10)] "Fungus" means a non-chlorophyll-bearing
3-9 thallophyte, including rust, smut, mildew, mold, yeast, or
3-10 bacteria, but not including a non-chlorophyll-bearing thallophyte
3-11 on or in living man or other living animals or on or in a processed
3-12 food, beverage, or pharmaceutical.
3-13 (14) [(11)] "Inert ingredient" means an ingredient
3-14 that is not an active ingredient.
3-15 (15) [(12)] "Insect" means any of the numerous small
3-16 invertebrate animals generally having a segmented body and for the
3-17 most part belonging to the class Insecta, comprising six-legged,
3-18 usually winged forms such as beetles, bugs, bees, and flies. The
3-19 term includes allied classes of arthropods, the members of which
3-20 are wingless and usually have more than six legs, such as spiders,
3-21 mites, ticks, centipedes, and wood lice.
3-22 (16) [(13)] "Label" means the written, printed, or
3-23 graphic matter on or attached to a pesticide or device or any of
3-24 its containers or wrappers.
3-25 (17) [(14)] "Labeling" means a label or any other
3-26 written, printed, or graphic matter prepared by a registrant:
3-27 (A) accompanying the pesticide or device at any
4-1 time; or
4-2 (B) to which reference is made on a label or in
4-3 literature accompanying or referring to a pesticide or device,
4-4 except accurate, nonmisleading references made to a current
4-5 official publication of a federal or state institution or agency
4-6 authorized by law to conduct research in the field of pesticides.
4-7 (18) [(15)] "Land" means any land or water area,
4-8 including airspace, and any plant, animal, structure, building,
4-9 contrivance, or machinery, whether fixed or mobile, appurtenant to
4-10 or situated on a land or water area or airspace, including any used
4-11 for transportation.
4-12 (19) [(16)] "License use category" means a
4-13 classification of pesticide use based on the subject, method, or
4-14 place of pesticide application.
4-15 (20) [(17)] "Nematode" means an invertebrate animal of
4-16 the phylum Nemathelminthes and class Nematoda (an unsegmented
4-17 roundworm with an elongated, fusiform, or sac-like body covered
4-18 with cuticle) inhabiting soil, water, plants, or plant parts.
4-19 (21) [(18)] "Pesticide" means a substance or mixture
4-20 of substances intended to prevent, destroy, repel, or mitigate any
4-21 pest, or any substance or mixture of substances intended for use as
4-22 a plant regulator, defoliant, or desiccant.
4-23 (22) [(19)] "Plant regulator" means a substance or
4-24 mixture of substances intended through physiological action to
4-25 accelerate or retard the rate of growth or rate of maturation, or
4-26 otherwise to alter the behavior of an ornamental or crop plant or
4-27 the product of an ornamental or crop plant, but does not include a
5-1 substance to the extent that it is intended as a plant nutrient,
5-2 trace element, nutritional chemical, plant inoculant, or soil
5-3 amendment.
5-4 (23) "Registrant" means a person who has registered a
5-5 pesticide under this chapter.
5-6 (24) [(20)] "Regulatory agency" means a state agency
5-7 with responsibility for certifying applicators under Subchapter E
5-8 of this chapter.
5-9 (25) [(21)] "Restricted-use pesticide" means a
5-10 pesticide classified as a restricted-use pesticide by the
5-11 Environmental Protection Agency.
5-12 (26) [(22)] "Thallophyte" means a
5-13 non-chlorophyll-bearing plant of a lower order than mosses and
5-14 liverworts.
5-15 (27) [(23)] "Weed" means any plant that grows where
5-16 not wanted.
5-17 (28) "Worker protection standard" means the federal
5-18 worker protection standard as found in the Code of Federal
5-19 Regulations, 40 C.F.R. Parts 156 and 170.
5-20 Sec. 76.002. Pests. The department shall determine what
5-21 organisms constitute pests for purposes of this chapter and may
5-22 include in the list of pests:
5-23 (1) any insect, snail, slug, rodent, bird, nematode,
5-24 fungus, weed, or other form of terrestrial or aquatic plant or
5-25 animal life; or
5-26 (2) any virus, bacteria, or other microorganism, other
5-27 than a virus, bacteria, or other microorganism on or in living man
6-1 or other living animals.
6-2 Sec. 76.003. State-Limited-Use Pesticides. (a) After notice
6-3 and public hearing, the department may adopt lists of
6-4 state-limited-use pesticides for the entire state or for a
6-5 designated area within the state.
6-6 (b) A pesticide may be included on a list of
6-7 state-limited-use pesticides if the department determines that,
6-8 when used as directed or in accordance with widespread and commonly
6-9 recognized practice, the pesticide requires additional restrictions
6-10 to prevent unreasonable risk to man or the environment, taking into
6-11 account the economic, social, and environmental costs and benefits
6-12 of use of the pesticide. However, the department shall not place a
6-13 pesticide on the state-limited-use list solely on the basis of
6-14 actual damage or risk of damage to water quality without first
6-15 obtaining approval from the Texas Natural Resource Conservation
6-16 Commission based on the impact of the pesticide's use on water
6-17 quality.
6-18 (c) The department shall formally request an opinion
6-19 regarding impact on water quality from the Texas Natural Resource
6-20 Conservation Commission during department consideration of any
6-21 amendments to the current list of state-limited-use pesticides.
6-22 (d) At the direction of the Texas Natural Resource
6-23 Conservation Commission in conjunction with its responsibilities
6-24 pursuant to Chapter 26, Water Code, the department shall consider
6-25 any formal request to add any pesticide to the state-limited-use
6-26 list under Subsection (b), and the department shall issue
6-27 regulations regarding the time, place, and conditions of such
7-1 pesticide's use.
7-2 (e) The department may regulate the time and conditions of
7-3 use of a state-limited-use pesticide and may require that it be
7-4 purchased or used only:
7-5 (1) with permission of the department;
7-6 (2) under direct supervision of the department in
7-7 certain areas under certain conditions; or
7-8 (3) in specified quantities and concentrations.
7-9 (f) The department may require a person authorized to
7-10 distribute or use a state-limited-use pesticide to maintain records
7-11 of the person's distribution or use and may require that the
7-12 records be kept separate from other business records.
7-13 Sec. 76.004. Department Rules. (a) Except as provided by
7-14 Subchapter G, after [After] notice, the department shall conduct at
7-15 least five regional hearings throughout the state before the
7-16 adoption of any rule for carrying out the provisions of this
7-17 chapter. Thereafter, the department may adopt rules for carrying
7-18 out the provisions of this chapter, including rules providing for:
7-19 (1) the collection, examination, and reporting of
7-20 records, devices, and samples of pesticides;
7-21 (2) the safe handling, transportation, storage,
7-22 display, distribution, or disposal of pesticides and pesticide
7-23 containers;
7-24 (3) labeling requirements for pesticides and devices
7-25 required to be registered under this chapter; and
7-26 (4) compliance with federal pesticide rules and
7-27 regulations.
8-1 (b) Any rules adopted by the department for the purpose of
8-2 protection or enhancement of water quality shall not be
8-3 inconsistent with nor less stringent than rules adopted [developed]
8-4 for the protection or enhancement of water quality by the Texas
8-5 Natural Resource Conservation Commission pursuant to
8-6 recommendations of the Texas Groundwater Protection Committee.
8-7 Sec. 76.005. Notice of Hearing. (a) Before adopting a rule
8-8 under this chapter, the department or a regulatory agency shall
8-9 publish notice of a public hearing in three newspapers of general
8-10 circulation throughout the state. The notice must include the
8-11 following information relating to the hearing:
8-12 (1) the time;
8-13 (2) the place;
8-14 (3) the subject matter;
8-15 (4) a general statement of the proposed action; and
8-16 (5) the class or group of persons to be directly
8-17 affected.
8-18 (b) Notice must be published under this section before the
8-19 10th day preceding the day of the hearing.
8-20 Sec. 76.006. Pesticide Examination and Testing. (a) The
8-21 department may contract with a state college or university, state
8-22 agency, or commercial laboratory for examination of a pesticide.
8-23 The department shall let contracts with commercial laboratories
8-24 under this subsection on the basis of competitive bidding.
8-25 (b) The department may [shall] make or provide for sample
8-26 tests of a pesticide on request and may charge and collect a fee
8-27 for the tests in an amount necessary to cover expenses incurred in
9-1 making or providing for the tests.
9-2 Sec. 76.007. Interagency Cooperation. (a) The department
9-3 shall be the lead agency for pesticide regulation in Texas. In
9-4 cooperation with the U.S. Environmental Protection Agency or any
9-5 federal agency responsible for implementation of federal pesticide
9-6 law, the department shall:
9-7 (1) register pesticides for use in Texas;
9-8 (2) adopt lists of state-limited-use pesticides;
9-9 (3) provide for training, certification, and licensure
9-10 of all classes of pesticide applicators;
9-11 (4) enforce pesticide laws and regulations governing
9-12 the safe handling, use, storage, distribution, and disposal of
9-13 pesticide products; and
9-14 (5) adopt rules to carry out the provisions of this
9-15 chapter.
9-16 (b) The Texas Natural Resource Conservation Commission shall
9-17 have principal authority to regulate and control water pollution.
9-18 If the United States Environmental Protection Agency adopts a final
9-19 rule requiring states to implement a state management plan for
9-20 pesticides in groundwater, the department shall cooperate with the
9-21 Texas Groundwater Protection Committee in the committee's
9-22 development and implementation of federally mandated state
9-23 management plans for pesticides in groundwater in accordance with
9-24 Section 26.407, Water Code.
9-25 (c) The department shall seek advice from the Texas Natural
9-26 Resource Conservation Commission, the Parks and Wildlife
9-27 Department, the Texas Department of Health, and the Texas
10-1 Agricultural Extension Service in reviewing applications for
10-2 special local need or emergency pesticide registrations. The
10-3 department shall act expeditiously to review any application for
10-4 special local need or emergency pesticide registrations.
10-5 (d) The department shall give written notice to the Texas
10-6 Natural Resource Conservation Commission whenever it has probable
10-7 cause to believe that serious contamination of water has occurred
10-8 as a result of use, misuse, manufacture, storage, or disposal of
10-9 pesticides so that the Texas Natural Resource Conservation
10-10 Commission may proceed with an investigation of a possible
10-11 violation of the Water Code.
10-12 (1) If the Texas Natural Resource Conservation
10-13 Commission determines that a violation of the Water Code has
10-14 occurred, the commission shall seek the remedies provided by the
10-15 Water Code.
10-16 (2) If the department determines that a violation of
10-17 the Agriculture Code has occurred regarding the use, manufacture,
10-18 storage, or disposal of pesticides, the department shall seek the
10-19 remedies provided by this code.
10-20 (3) The foregoing remedies shall not be mutually
10-21 exclusive.
10-22 (e) The Texas Natural Resource Conservation Commission shall
10-23 give written notice to the department whenever it has probable
10-24 cause to believe that serious contamination of water has occurred
10-25 as a result of the use, misuse, storage, disposal, or manufacture
10-26 of pesticides so that the department may proceed with an
10-27 investigation to determine if a violation of the Agriculture Code
11-1 has occurred.
11-2 (1) If the department determines that a violation of
11-3 the Agriculture Code has occurred, the department shall seek the
11-4 remedies provided by this code.
11-5 (2) If the Texas Natural Resource Conservation
11-6 Commission determines that a violation of the Water Code has
11-7 occurred, the Texas Natural Resource Conservation Commission shall
11-8 seek the remedies provided by the Water Code.
11-9 (3) The foregoing remedies shall not be mutually
11-10 exclusive.
11-11 (f) The department shall consult with the Texas Department
11-12 of Health before denying or canceling a pesticide registration
11-13 because of a suspected public health threat. The department shall
11-14 also coordinate enforcement efforts with the department of health
11-15 when a serious public health threat is suspected.
11-16 (g) A regulatory agency may receive grants-in-aid from any
11-17 federal agency and may enter into cooperative agreements with a
11-18 federal agency, an agency of this state, a subdivision of this
11-19 state, or an agency of another state for the purpose of obtaining
11-20 assistance in the implementation of this chapter.
11-21 Sec. 76.008. Exemption. Sections 76.007, 76.104-76.106,
11-22 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,
11-23 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is
11-24 regulated by the Texas Structural Pest Control Act, as amended
11-25 (Article 135b-6, Vernon's Texas Civil Statutes).
11-26 Sec. 76.009. AGRICULTURE RESOURCES PROTECTION AUTHORITY.
11-27 (a) The Agriculture Resources Protection Authority is an agency of
12-1 state government. The authority is composed of the following
12-2 members:
12-3 (1) the director of the Texas Agricultural Experiment
12-4 Station;
12-5 (2) the dean of the College of Agricultural Sciences
12-6 of Texas Tech University;
12-7 (3) the dean of The University of Texas School of
12-8 Public Health at Houston;
12-9 (4) the director of the environmental epidemiology
12-10 program of the Texas Department of Health;
12-11 (5) the chief of the groundwater conservation section
12-12 of the Texas Natural Resource Conservation Commission;
12-13 (6) the director of the Institute for International
12-14 Agribusiness Studies of Prairie View A&M University;
12-15 (7) one person appointed by the governor to represent
12-16 the interests of consumers;
12-17 (8) a producer of agricultural products appointed by
12-18 the governor;
12-19 (9) the executive director of the Texas Structural
12-20 Pest Control Board;
12-21 (10) the executive director of the State Soil and
12-22 Water Conservation Board;
12-23 (11) a person appointed by the governor and licensed
12-24 by the department as a commercial, noncommercial, or private
12-25 applicator;
12-26 (12) a person appointed by the governor and licensed
12-27 by the department as a pesticide dealer or involved in the
13-1 development or manufacture of agricultural chemicals;
13-2 (13) a person appointed by the governor and employed
13-3 as a farm worker or serving as a representative of farm workers;
13-4 (14) a person appointed by the governor and associated
13-5 with an organization primarily engaged in environmental
13-6 conservation or protection efforts; and
13-7 (15) the commissioner of agriculture.
13-8 (b) A person appointed by the governor under Subdivision
13-9 (7), (8), (11), (12), (13), or (14) of Subsection (a) of this
13-10 section serves a two-year term ending on February 1 of each
13-11 odd-numbered year. A vacancy in one of those positions shall be
13-12 filled by appointment by the governor for the unexpired term. All
13-13 appointments made by the governor under this section must be with
13-14 the advice and consent of the senate.
13-15 (c) The governor shall designate the presiding officer of
13-16 the authority.
13-17 (d) The authority shall meet annually [quarterly] and at the
13-18 call of the presiding officer or a majority of the members.
13-19 (e) A member may not receive compensation for service as a
13-20 member of the authority. A member is entitled to reimbursement for
13-21 actual and necessary expenses incurred in the performance of the
13-22 functions of the authority, subject to any limitations on
13-23 reimbursement provided by the General Appropriations Act.
13-24 (f) The delegation of functions under this section is
13-25 designed to avoid overlapping responsibilities, to provide a means
13-26 for all involved agencies to participate in the regulation of
13-27 pesticides, and to clarify various areas of responsibility.
14-1 (g) The authority is the coordinating body for the policies
14-2 and programs of management, regulation, and control of pesticides
14-3 conducted by the department, the State Soil and Water Conservation
14-4 Board, the Texas Agricultural Extension Service, the Texas
14-5 Department of Health, the Texas Natural Resource Conservation
14-6 Commission, and the Texas Structural Pest Control Board.
14-7 Notwithstanding any other provision of this code or of any other
14-8 law, the authority may:
14-9 (1) adopt any rule relating to any duty of the
14-10 authority;
14-11 (2) review and make comments regarding any rule
14-12 relating to pesticides that is proposed by an agency for which the
14-13 authority is the coordinating body;
14-14 (3) cooperate with and advise the department, the
14-15 State Soil and Water Conservation Board, the Texas Agricultural
14-16 Extension Service, the Texas Department of Health, the Texas
14-17 Natural Resource Conservation Commission, the Texas Structural Pest
14-18 Control Board, and any other state agency that may be concerned
14-19 with the regulation of pesticides and notify those agencies of any
14-20 rule the authority intends to adopt;
14-21 (4) collect, analyze, and disseminate information
14-22 necessary for the effective operation of all existing or
14-23 contemplated programs regulating pesticides;
14-24 (5) provide professional advice to private agencies
14-25 and citizens of this state on matters relating to pesticides in
14-26 cooperation with other state agencies, with professional groups,
14-27 and with either state or private educational institutions;
15-1 (6) accept gifts, devises, and bequests and, with the
15-2 approval of the governor, comply with the terms and conditions of
15-3 any grant to accomplish any of the purposes of the authority;
15-4 (7) inform and advise the governor on matters
15-5 involving pesticides and prepare and recommend to the governor and
15-6 to the legislature any legislation the authority considers proper
15-7 for the management and control of pesticides; and
15-8 (8) make annual reports to the governor and the
15-9 appropriate legislative oversight committees.
15-10 (h) A member of the authority by a written statement may
15-11 designate a person to execute any responsibility of the member
15-12 including voting.
15-13 (i) The authority shall develop and implement policies that
15-14 provide the public with a reasonable opportunity to appear before
15-15 the authority annually [semiannually] to comment on the status of
15-16 the state's pesticide regulation efforts.
15-17 (j) The commissioner shall:
15-18 (1) as necessary, employ personnel as the duties of
15-19 the authority may require and to the extent of legislative
15-20 appropriations to the authority;
15-21 (2) keep an accurate and complete record of all
15-22 authority meetings and hearings of the authority and maintain legal
15-23 custody of all books, papers, documents, and other records of the
15-24 authority;
15-25 (3) administer this chapter and the rules adopted by
15-26 the authority [Chapters 75 and 125 of this code]; and
15-27 (4) assign, reassign, or delegate the administrative
16-1 and enforcement functions assigned to the commissioner by this
16-2 subsection or by rules or policies established under this
16-3 subsection to one or more of the divisions or other units within
16-4 the department or to one or more employees of the department.
16-5 (k) The authority shall adopt rules requiring quarterly
16-6 submission to the authority by the department, State Soil and Water
16-7 Conservation Board, Texas Agricultural Extension Service, Texas
16-8 Department of Health, Texas Natural Resource Conservation
16-9 Commission, and the Texas Structural Pest Control Board of a report
16-10 regarding each agency's pesticide regulatory enforcement activity.
16-11 (l) The authority shall review and make comments regarding
16-12 the information received by the authority under Subsection (k).
16-13 The authority shall make its comments available to the public.
16-14 (m) The department, State Soil and Water Conservation Board,
16-15 Texas Agricultural Extension Service, Texas Department of Health,
16-16 Texas Natural Resource Conservation Commission, and the Texas
16-17 Structural Pest Control Board shall provide the authority with
16-18 sufficient opportunity to review and comment on the strategic plan
16-19 and biennial appropriation request of each agency, and any revision
16-20 of a plan or request, before submission of a plan or request to the
16-21 legislature.
16-22 SUBCHAPTER B. LABELING
16-23 Sec. 76.021. LABELING INFORMATION. (a) Each pesticide
16-24 distributed in this state shall bear a label containing the
16-25 following information relating to the pesticide:
16-26 (1) the label information required by FIFRA, if the
16-27 pesticide is subject to registration under that law; or
17-1 (2) the following information, if the pesticide is not
17-2 subject to registration under FIFRA:
17-3 (A) the name, brand, or trademark under which
17-4 the pesticide is distributed;
17-5 (B) [(2)] the name and percentage of each active
17-6 ingredient and the total percentage of inert ingredients;
17-7 (C) [(3)] directions for use that are necessary
17-8 for effecting the purpose for which the product is intended and, if
17-9 complied with, are adequate for the protection of health and the
17-10 environment;
17-11 (D) [(4)] if the pesticide contains any form of
17-12 arsenic, the percentage of total water-soluble arsenic, calculated
17-13 as elementary arsenic;
17-14 (E) [(5)] the name and address of the
17-15 manufacturer, registrant, or person for whom the pesticide was
17-16 manufactured;
17-17 (F) [(6)] numbers or other symbols to identify
17-18 the lot or batch of the manufacturer of the contents of the
17-19 package; and
17-20 (G) [(7)] a clear display of appropriate
17-21 warnings, symbols, and cautionary statements commensurate with the
17-22 toxicity or use classification of the pesticide.
17-23 (b) [The labeling of each pesticide distributed in this
17-24 state shall state the use classification for which the product is
17-25 registered.]
17-26 [(c)] The label bearing the ingredient statement under
17-27 Subsection (a)(2)(B) of this section shall be on or attached to
18-1 that part of the immediate container that is presented or displayed
18-2 under customary conditions of purchase and, if the ingredient
18-3 statement cannot be clearly read without removing the outer
18-4 wrapping, on any outer container or wrapper of a retail package.
18-5 Sec. 76.022. CONSPICUOUS LETTERING. Any word, statement, or
18-6 information required by this chapter to appear on a label or in
18-7 labeling of a pesticide or device registered by the department
18-8 shall be prominently and conspicuously placed so that, if compared
18-9 with other material on the label or in the labeling, it is likely
18-10 to be understood by the ordinary individual under customary
18-11 conditions of use.
18-12 Sec. 76.023. Misbranded Pesticide or Device. (a) A
18-13 pesticide or device is misbranded if:
18-14 (1) it is subject to registration under FIFRA and it
18-15 does not fully comply with the labeling requirements of the United
18-16 States Environmental Protection Agency; or
18-17 (2) it is not subject to registration under FIFRA and:
18-18 (A) its labeling bears a statement, design, or
18-19 graphic representation relating to the pesticide or device, or the
18-20 ingredients of either, that is false or misleading in any
18-21 particular;
18-22 (B) [(2)] it is an imitation of or is
18-23 distributed under the name of another pesticide or device; or
18-24 (C) [(3)] it is not conspicuously labeled in
18-25 accordance with Section 76.022 of this code.
18-26 (b) A pesticide is misbranded if:
18-27 (1) its labeling bears any reference to registration
19-1 under this chapter, unless the reference is required by a rule
19-2 adopted under this chapter;
19-3 (2) it does not bear a label as required by Section
19-4 76.021 of this code; or
19-5 (3) its label does not bear information as required by
19-6 Section 76.021 of this code or a rule adopted under this chapter.
19-7 SUBCHAPTER C. REGISTRATION
19-8 Sec. 76.041. REGISTRATION REQUIRED. (a) Except as provided
19-9 by Subsection (b), (c), [or] (d), or (e) of this section, before a
19-10 pesticide is distributed in this state or is delivered for
19-11 transportation or is transported in intrastate commerce or between
19-12 points within this state through a point outside the state, it must
19-13 be registered with the department. The manufacturer or other
19-14 person whose name appears on the label of the pesticide shall
19-15 register the pesticide.
19-16 (b) Registration is not required for the transportation of a
19-17 pesticide from one plant or warehouse to another plant or warehouse
19-18 operated by the same person if the pesticide is used solely at the
19-19 second plant or warehouse as a constituent of a pesticide that is
19-20 registered under this chapter.
19-21 (c) Registration is not required for a pesticide that is not
19-22 for use in this state and is being manufactured, transported, or
19-23 distributed for use only outside of this state.
19-24 (d) Registration is not required for a chemical compound
19-25 being used only to develop plot data as to the possible pesticidal
19-26 action of the chemical.
19-27 (e) [(d)] Unless otherwise required by department rule,
20-1 registration is not required for a pesticide that is exempt from
20-2 registration with the United States Environmental Protection Agency
20-3 under federal law.
20-4 (f) The Texas Feed and Fertilizer Control Service may not
20-5 register under Chapter 63 a fertilizer that contains a pesticide
20-6 that must be registered with the department under this chapter
20-7 unless the constituent pesticide is first registered with the
20-8 department. The Texas Feed and Fertilizer Control Service shall
20-9 consult with the department about the current registration status
20-10 of a pesticide before registering any fertilizer mix containing
20-11 that pesticide under Chapter 63. The department shall notify the
20-12 Texas Feed and Fertilizer Control Service of any changes to a
20-13 pesticide registration.
20-14 (g) A pesticide that has been registered with the department
20-15 must continue to be registered as long as the pesticide remains in
20-16 the channels of trade in this state. The registrant shall ensure
20-17 that the pesticide continues to be registered.
20-18 (h) If the department issues a stop use, stop distribution,
20-19 or removal order because the pesticide is not registered with the
20-20 department, the registrant shall take any necessary action to
20-21 remedy the situation, including reimbursing a person who is subject
20-22 to the order for the person's costs in complying with the order.
20-23 Sec. 76.042. CONTENT OF REGISTRATION APPLICATION. (a) The
20-24 application for registration of a pesticide shall include:
20-25 (1) the name and address of the applicant and the name
20-26 and address of the person whose name will appear on the pesticide
20-27 label, if not the applicant's;
21-1 (2) the name of the pesticide;
21-2 (3) a complete copy of all labeling to accompany the
21-3 pesticide and a statement of all claims to be made for it,
21-4 including the directions for use and, if the pesticide is required
21-5 to be registered with the United States Environmental Protection
21-6 Agency, a copy of the Environmental Protection Agency stamped
21-7 accepted labeling and any applicable comment pages;
21-8 (4) the use classification, whether for restricted or
21-9 general use, as provided by the Federal Insecticide, Fungicide, and
21-10 Rodenticide Act, as amended, or by a rule adopted under that Act;
21-11 (5) the use classification proposed by the applicant,
21-12 if the pesticide is not required by federal law to be registered
21-13 under a use classification; and
21-14 (6) other information required by the department for
21-15 determining the eligibility for registration.
21-16 (b) The department may require the applicant to submit the
21-17 complete formula for a pesticide, including active and inert
21-18 ingredients, as a prerequisite to registration.
21-19 (c) The department may require a full description of the
21-20 tests made and the results of the tests on which claims are based
21-21 before approving registration of a pesticide that is not registered
21-22 under federal law or for which federal or state restrictions on use
21-23 are being considered.
21-24 (d) A person located outside this state, as a condition to
21-25 registration of a pesticide, shall file with the department a
21-26 written instrument designating a resident agent for service of
21-27 process in actions taken in the administration and enforcement of
22-1 this chapter. Instead of designating a resident agent, the person
22-2 may designate in writing the secretary of state as the recipient of
22-3 service of process for the person in this state.
22-4 Sec. 76.043. EXPIRATION AND RENEWAL. (a) Registration of a
22-5 pesticide expires on the second anniversary of the date of its
22-6 approval or renewal except that the department shall by rule adopt
22-7 a system under which registrations expire on various dates during
22-8 the year.
22-9 (b) A person who applies for renewal of registration shall
22-10 include in the renewal application only information that is
22-11 different from the information furnished at the time of the most
22-12 recent registration or renewal.
22-13 (c) A registration in effect on its expiration date for
22-14 which a renewal application has been filed and renewal fee has been
22-15 paid continues in effect until the department notifies the
22-16 applicant that the registration has been renewed or denied renewal.
22-17 Sec. 76.044. FEES. (a) The department shall charge a fee,
22-18 as provided by department rule, for each pesticide to be
22-19 registered. The fee must be submitted with an application for
22-20 registration or renewal of registration.
22-21 (b) A person who fails to apply for renewal of registration
22-22 on or before the expiration date of the registration must pay, in
22-23 addition to the renewal fee, the late fee provided by Section
22-24 12.024 of this code for each brand to be renewed.
22-25 Sec. 76.045. [DEPARTMENT APPROVAL. The department may not
22-26 approve an application for registration unless the department finds
22-27 that:]
23-1 [(1) the composition of the pesticide warrants the
23-2 proposed claims made for it; and]
23-3 [(2) the pesticide, its labeling, and other materials
23-4 required to be submitted under this chapter comply with the
23-5 requirements of this chapter.]
23-6 [Sec. 76.046.] REGISTRATION FOR SPECIAL LOCAL NEED.
23-7 (a) The department may register a pesticide for additional uses
23-8 and methods of application not covered by federal registration
23-9 [regulation] but not inconsistent with federal law, for the purpose
23-10 of meeting a special local need.
23-11 (b) Before approving a registration under this section, the
23-12 department shall determine that the applicant meets the other
23-13 requirements of this subchapter.
23-14 Sec. 76.046 [76.047]. DENIAL OR CANCELLATION OF
23-15 REGISTRATION. (a) If the department has reason to believe that
23-16 any use of a registered pesticide is in violation of a provision of
23-17 this chapter or is dangerous or harmful, the department shall
23-18 determine whether a hearing shall be held under Section 12.032 on
23-19 denial or cancellation of registration.
23-20 (b) The department shall issue written notice of a hearing
23-21 under this section to the registrant of the pesticide. The notice
23-22 must contain a statement of the time and place of the hearing. The
23-23 hearing shall be held after the 10th day following the day on which
23-24 the notice is issued.
23-25 (c) After opportunity at the hearing for presentation of
23-26 evidence by interested parties, the department may deny or cancel
23-27 the registration of the pesticide if the department finds that:
24-1 (1) use of the pesticide has demonstrated
24-2 uncontrollable adverse environmental effects;
24-3 (2) use of the pesticide is a detriment to the
24-4 environment that outweighs the benefits derived from its use;
24-5 (3) even if properly used, the pesticide is
24-6 detrimental to vegetation, except weeds, to domestic animals, or to
24-7 public health and safety;
24-8 (4) a false or misleading statement about the
24-9 pesticide has been made or implied by the registrant or the
24-10 registrant's agent, in writing, verbally, or through any form of
24-11 advertising literature; or
24-12 (5) the registrant has not complied or the pesticide
24-13 does not comply with a requirement of this chapter or a rule
24-14 adopted under this chapter.
24-15 Sec. 76.047 [76.048]. EXPERIMENTAL USE PERMIT. (a) The
24-16 department may issue an experimental use permit if the department
24-17 determines that the applicant needs the permit in order to
24-18 accumulate data necessary to register a pesticide under this
24-19 chapter.
24-20 (b) A person may file an application for an experimental use
24-21 permit before or after applying for registration.
24-22 (c) Use of a pesticide under an experimental use permit is
24-23 under the supervision of the department and is subject to the terms
24-24 and conditions, and valid for a period of time, prescribed by the
24-25 department in the permit.
24-26 (d) The department may charge a fee for issuing a permit
24-27 under this section in an amount equal to the amount charged for
25-1 registration under Section 76.044(a).
25-2 (e) The department may revoke an experimental use permit at
25-3 any time if the department finds that:
25-4 (1) the terms or conditions of the permit are being
25-5 violated; or
25-6 (2) the terms and conditions of the permit are
25-7 inadequate to avoid any unreasonable risk to man or the
25-8 environment, taking into account the economic, social, and
25-9 environmental costs and benefits of use of the pesticide.
25-10 SUBCHAPTER D. LICENSING OF DEALERS
25-11 Sec. 76.071. License Required. (a) A person may not
25-12 distribute in this state a restricted-use or state-limited-use
25-13 pesticide or regulated herbicide without a valid current pesticide
25-14 dealer license issued by the department.
25-15 (b) Except as otherwise provided by this section, a
25-16 pesticide dealer must obtain a license for each location in the
25-17 state that is used for distribution. If the person does not have a
25-18 place of business in this state, the person may obtain one license
25-19 for all out-of-state locations, but shall file as a condition to
25-20 licensing a designation of an agent for service of process as
25-21 provided by Section 76.042(d) of this code.
25-22 (c) A person must apply for a pesticide dealer license on
25-23 forms prescribed by the department.
25-24 (d) A pesticide dealer may not distribute a restricted-use
25-25 or state-limited-use pesticide or a regulated herbicide except to:
25-26 (1) a person licensed as a commercial applicator,
25-27 noncommercial applicator, or private applicator;
26-1 (2) an individual working under the direct supervision
26-2 of a licensed applicator;
26-3 (3) a certified private applicator;
26-4 (4) a licensed pesticide dealer; or
26-5 (5) a licensed veterinarian, as provided by Section
26-6 76.105(a).
26-7 Sec. 76.072. Expiration. A pesticide dealer license expires
26-8 on the second anniversary of the date of its granting or renewal
26-9 unless the department by rule adopts a system under which licenses
26-10 expire on specified dates during a [December 31 of each] year.
26-11 Sec. 76.073. Fees. (a) An application for a pesticide
26-12 dealer license must be accompanied by a [an annual] registration
26-13 fee, as fixed by the department.
26-14 (b) A person who fails to apply for renewal of a pesticide
26-15 dealer license on or before the expiration date of the license must
26-16 pay, in addition to the renewal fee, the late fee provided by
26-17 Section 12.024 of this code.
26-18 [(c) A person licensed as a dealer under Chapter 75 of this
26-19 code may not be required to pay an additional fee for the license
26-20 prescribed in this subchapter.]
26-21 Sec. 76.074. Display of Dealer License. (a) Each dealer
26-22 shall prominently display the pesticide dealer license in the
26-23 dealer's place of business.
26-24 (b) Failure to display a license as required by this section
26-25 is a ground for revocation of the license.
26-26 Sec. 76.075. Records. (a) A person required to obtain a
26-27 dealer's license by Section 76.071 shall record each distribution
27-1 of a restricted-use or state-limited-use pesticide or regulated
27-2 herbicide and shall maintain a copy of the record for at least two
27-3 years after the date of the distribution.
27-4 (b) The department shall adopt rules that prescribe the
27-5 information to be stated in the records required by this section.
27-6 (c) The department may require that a copy of the records
27-7 required by this section be submitted periodically to the
27-8 department.
27-9 (d) The department may revoke a dealer's license if the
27-10 licensee fails to submit a copy of a record as required under
27-11 Subsection (c) or makes false or fraudulent records, invoices, or
27-12 reports. [A licensed pesticide dealer shall maintain for a period
27-13 of two years records of each restricted-use and state-limited-use
27-14 pesticide sold. The department shall prescribe the information to
27-15 be included in the records.]
27-16 [(b) The department may require a licensed pesticide dealer
27-17 to submit records to the department. Failure to submit a record
27-18 requested by the department is a ground for revocation of a
27-19 license.]
27-20 Sec. 76.076. DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION
27-21 OF LICENSE. (a) The department may deny an application for a
27-22 dealer's license if the applicant fails to comply with this
27-23 chapter. The department may revoke, modify, or suspend a license,
27-24 assess an administrative penalty, place on probation a person whose
27-25 license has been suspended, or reprimand a licensee for a violation
27-26 of this chapter or a rule adopted by the department under this
27-27 chapter.
28-1 (b) If a license suspension is probated, the department may
28-2 require the person to:
28-3 (1) report regularly to the department on matters that
28-4 are the basis of the probation; or
28-5 (2) limit business to the areas prescribed by the
28-6 department.
28-7 (c) [The department may refuse to issue a pesticide dealer
28-8 license if the applicant fails to comply with this subchapter.]
28-9 [(b) The department shall revoke, modify, or suspend a
28-10 license, assess an administrative penalty, place on probation a
28-11 person whose license has been suspended, or reprimand a licensee if
28-12 the licensee fails to comply with this subchapter or a rule adopted
28-13 by the department under this subchapter.]
28-14 [(c) If a license suspension is probated, the department may
28-15 require the person to:]
28-16 [(1) report regularly to the department on matters
28-17 that are the basis of the probation;]
28-18 [(2) limit practice to the areas prescribed by the
28-19 department; or]
28-20 [(3) continue or renew professional education until
28-21 the person attains a degree of skill satisfactory to the department
28-22 in those areas that are the basis of the probation.]
28-23 [(d)] If the department proposes to deny a person's
28-24 application for a pesticide dealer license or to revoke, modify, or
28-25 suspend a person's license, the person is entitled to a hearing
28-26 conducted under Section 12.032. The decision of the department is
28-27 appealable in the same manner as provided for contested cases under
29-1 Chapter 2001, Government Code.
29-2 Sec. 76.077. Exceptions. (a) This subchapter does not
29-3 apply to a manufacturer or formulator of a pesticide who does not
29-4 sell directly to the user.
29-5 (b) This subchapter does not apply to a licensed pesticide
29-6 applicator who:
29-7 (1) distributes restricted-use or state-limited-use
29-8 pesticides or regulated herbicides only as an integral part of the
29-9 pesticide application business; and
29-10 (2) dispenses the pesticides only through equipment
29-11 used in the pesticide application business.
29-12 (c) This subchapter does not apply to a federal, state,
29-13 county, or municipal agency that provides pesticides only for its
29-14 own programs.
29-15 SUBCHAPTER E. USE AND APPLICATION
29-16 Sec. 76.101. Coordination. (a) The department is the lead
29-17 agency in the regulation of pesticide use and application and is
29-18 responsible for coordinating activities of state agencies, except
29-19 as provided by Section 76.007(b) of this code and by Chapter 26 of
29-20 the Water Code. The department shall submit a state plan for the
29-21 licensing of pesticide applicators to the administrator of the
29-22 Environmental Protection Agency.
29-23 (b) The department shall coordinate, plan, and approve
29-24 training programs and shall use the public and private resources of
29-25 this state, including state universities, colleges, junior
29-26 colleges, community colleges, the Texas Agricultural Extension
29-27 Service, and the Texas Agricultural Experiment Station [experiment
30-1 station]. The department and the Texas Agricultural Extension
30-2 Service shall adopt a memorandum of understanding to jointly
30-3 coordinate, plan, and approve the training programs for private
30-4 applicators.
30-5 (c) The department shall make plans under this section on
30-6 the basis of convenience to applicants, thoroughness of preparation
30-7 and testing, and maximum economy in expenditures for this purpose.
30-8 The department shall make full use of grants-in-aid and cooperative
30-9 agreements in administering this subchapter.
30-10 (d)(1) Except as otherwise provided by this subsection, no
30-11 city, town, county, or other political subdivision of this state
30-12 shall adopt any ordinance, rule, or regulation regarding pesticide
30-13 sale or use.
30-14 (2) Nothing in this subsection shall be construed to
30-15 limit the authority of a city, town, or county to:
30-16 (A) encourage locally approved and provided
30-17 educational material concerning a pesticide;
30-18 (B) zone for the sale or storage of such
30-19 products;
30-20 (C) adopt fire or building regulations as
30-21 preventative measures to protect the public and emergency services
30-22 personnel from an accident or emergency involving such products,
30-23 including regulations governing the storage of such products or
30-24 governing fumigation and thermal insecticidal fogging operations;
30-25 (D) provide or designate sites for the disposal
30-26 of such products;
30-27 (E) route hazardous materials; or
31-1 (F) regulate discharge to sanitary sewer
31-2 systems.
31-3 (3) This subsection shall not prevent a city, town,
31-4 county, or any political subdivision from complying with any
31-5 federal or state law or regulation. This subsection shall not
31-6 prevent a city, town, county, or any political subdivision from
31-7 attaining or maintaining compliance with federal or state
31-8 environmental standards including Texas water quality standards. A
31-9 city, town, county, or other political subdivision may take any
31-10 action otherwise prohibited by this subsection in order to comply
31-11 with any federal requirements, to avoid any federal or state
31-12 penalties or fines, or to attain or maintain federal or state
31-13 environmental standards including Texas water quality standards.
31-14 [(4) Nothing in this subsection may be construed to
31-15 affect Chapter 75 of this code.]
31-16 Sec. 76.102. Agencies Responsible for Licensing Pesticide
31-17 Applicators. (a) The department shall license pesticide
31-18 applicators involved in the following license use categories:
31-19 (1) agricultural pest control, including animal pest
31-20 control;
31-21 (2) forest pest control;
31-22 (3) ornamental and turf pest control, except as
31-23 provided by the Texas Structural Pest Control Act, as amended
31-24 (Article 135b-6, Vernon's Texas Civil Statutes);
31-25 (4) seed treatments;
31-26 (5) right-of-way pest control;
31-27 (6) regulatory pest control;
32-1 (7) aquatic pest control; [and]
32-2 (8) demonstration pest control; and
32-3 (9) other license use categories as necessary to
32-4 comply with federal requirements. The department may not adopt
32-5 license use categories that are designated by statute for
32-6 regulation by another agency.
32-7 (b) The Texas Department of Health shall license pesticide
32-8 applicators involved in the license use category of health-related
32-9 pest control.
32-10 Sec. 76.103. Program Contingent on Federal Funds. (a) The
32-11 licensing of commercial applicators, noncommercial applicators, and
32-12 private applicators is contingent on the availability of federal
32-13 funds to pay part of the costs of administering and enforcing the
32-14 program.
32-15 (b) If federal funds and other funds made available for this
32-16 program are not sufficient to pay all costs of administering and
32-17 enforcing the program, the department shall certify that fact and
32-18 discontinue the licensing of commercial applicators, noncommercial
32-19 applicators, and private applicators. The department shall publish
32-20 notice of the discontinuance of the program in the Texas Register.
32-21 (c) If sufficient funds become available after
32-22 discontinuance, the department shall certify the availability of
32-23 sufficient funds to pay all costs of administration and enforcement
32-24 of the program and shall resume the licensing of commercial
32-25 applicators, noncommercial applicators, and private applicators.
32-26 The department shall publish notice of resumption of the program in
32-27 the Texas Register.
33-1 (d) The department shall determine the effective date of
33-2 discontinuance or resumption of the program, but the date may not
33-3 be before the date of publication of notice in the Texas Register.
33-4 (e) During any period in which the program has been
33-5 discontinued, a person is not required to have a license provided
33-6 by this subchapter in order to use pesticides, but a person may be
33-7 prosecuted for acts committed or omitted when the program was in
33-8 effect.
33-9 Sec. 76.104. AGENCY RULES FOR APPLICATION OF A PESTICIDE.
33-10 (a) The head of each regulatory agency may, after notice and
33-11 public hearing, adopt rules to carry out the provisions of this
33-12 subchapter for which the agency is responsible.
33-13 (b) Rules adopted under this section may:
33-14 (1) prescribe methods to be used in the application of
33-15 a restricted-use or state-limited-use pesticide or regulated
33-16 herbicide;
33-17 (2) relate to the time, place, manner, method, amount,
33-18 or concentration of pesticide application or to the materials used
33-19 in pesticide application; and
33-20 (3) restrict or prohibit use of a restricted-use or
33-21 state-limited-use pesticide or regulated herbicide in designated
33-22 areas during specific periods of time.
33-23 (c) A regulatory agency may adopt a rule under this section
33-24 only after consideration of precautions or restrictions necessary
33-25 to prevent unreasonable risk to man or the environment, taking into
33-26 account the economic, social, and environmental costs and benefits
33-27 of the use of the pesticide.
34-1 (d) The department shall adopt worker protection standards
34-2 for pesticides if there is no federal worker protection standard.
34-3 The department may adopt other rules for the protection of the
34-4 health, safety, and welfare of farm workers and pesticide handlers.
34-5 Sec. 76.105. License Required. (a) Except as provided by
34-6 Section 76.003(e), a [A] person may not purchase or use a
34-7 restricted-use or state-limited-use pesticide or regulated
34-8 herbicide unless the person is:
34-9 (1) licensed as a commercial applicator, noncommercial
34-10 applicator, or private applicator and authorized by the license to
34-11 purchase or use the restricted-use or state-limited-use pesticide
34-12 or regulated herbicide in the license use categories covering the
34-13 proposed pesticide use;
34-14 (2) an individual acting under the direct supervision
34-15 of a licensed applicator, except as provided by Subsection (b) of
34-16 this section and by Sections 76.003(e) and 76.116(f); [or]
34-17 (3) a certified private applicator as defined in
34-18 Section 76.112(j) of this code; or
34-19 (4) a licensed veterinarian using the restricted-use
34-20 or state-limited-use pesticide or regulated herbicide as a drug or
34-21 medication in the course of the veterinarian's normal professional
34-22 practice of veterinary medicine.
34-23 (b) An individual is under the direct supervision of a
34-24 licensed [noncommercial or a licensed private] applicator if the
34-25 individual is acting under the instructions and control of a
34-26 licensed [noncommercial or a licensed private] applicator who is
34-27 responsible for the actions of the individual and who is available
35-1 if and when needed. A licensed applicator may not supervise an
35-2 applicator whose license or certificate is under suspension or
35-3 revocation. The licensed [noncommercial or licensed private]
35-4 applicator is not required to be physically present at the time and
35-5 place of the pesticide application unless the label of the applied
35-6 pesticide states that the presence of the licensed applicator is
35-7 required.
35-8 (c) [An individual is under the direct supervision of a
35-9 licensed commercial applicator if the individual is acting under
35-10 the instructions and control of a licensed commercial applicator
35-11 who is responsible for the actions of the individual and who is
35-12 continuously physically present at the time and place of the
35-13 pesticide application.]
35-14 [(d)] A licensed applicator is responsible for assuring that
35-15 the person working under the licensee's direct supervision is
35-16 knowledgeable of the label requirements and rules and regulations
35-17 governing the use of [the particular] pesticides [being used by the
35-18 individual]. A licensed applicator satisfies the requirements of
35-19 this subsection if the person working under the licensee's direct
35-20 supervision has been trained as a handler under the federal worker
35-21 protection standard [attends a program conducted by the department
35-22 that is designed to make the person knowledgeable of the label
35-23 requirements and rules and regulations governing the use of
35-24 pesticides].
35-25 (d) [(e)] A person who is authorized under this chapter to
35-26 use restricted-use or state-limited-use pesticides or regulated
35-27 herbicides shall comply with all applicable federal and state
36-1 rules, regulations, and court orders regarding the use of
36-2 restricted-use or state-limited-use pesticides or regulated
36-3 herbicides.
36-4 (e) Except as provided by Section 76.003(e), a person may
36-5 not purchase a restricted-use or state-limited-use pesticide or
36-6 regulated herbicide unless the person is a licensed or a certified
36-7 applicator or authorized by a licensed or certified applicator to
36-8 purchase or take delivery for the applicator.
36-9 (f) The other provisions of this section notwithstanding,
36-10 the department may adopt rules or establish programs that the U.S.
36-11 Environmental Protection Agency or another federal agency requires
36-12 as a condition for receiving:
36-13 (1) approval to authorize use of certain
36-14 restricted-use or state-limited-use pesticides or regulated
36-15 herbicides;
36-16 (2) federal funding for licensing or certification of
36-17 pesticide applicators;
36-18 (3) federal funding for pesticide law enforcement
36-19 efforts; or
36-20 (4) other federal funding related to pesticide risk
36-21 reduction.
36-22 (g) The other provisions of this chapter notwithstanding, if
36-23 the U.S. Environmental Protection Agency or another federal agency
36-24 imposes on the state standards for certification of commercial,
36-25 noncommercial, or private pesticide applicators, the department may
36-26 adopt by rule the federal standards for each classification of
36-27 applicators for which the federal standards are imposed.
37-1 Sec. 76.106. Classification of Licenses. (a) The head of
37-2 each regulatory agency may classify commercial applicator and
37-3 noncommercial applicator licenses under subcategories of license
37-4 use categories according to the subject, method, or place of
37-5 pesticide application.
37-6 (b) A regulatory agency head shall establish separate
37-7 testing requirements for licensing in each license use category for
37-8 which the agency is responsible and may establish separate testing
37-9 requirements for licensing in subcategories within a license use
37-10 category.
37-11 (c) Each regulatory agency may charge a testing fee, as
37-12 fixed by the head of the regulatory agency, for testing in each
37-13 license use category.
37-14 Sec. 76.107. Licensing by More Than One Agency. (a) A
37-15 person who wants to be licensed as a pesticide applicator under
37-16 license use categories regulated by more than one regulatory agency
37-17 may do so by paying a single license fee to the agency regulating
37-18 the person's primary business and meeting licensing requirements
37-19 for each category for which the person desires licensing.
37-20 (b) A person licensed under this section must pay testing
37-21 fees required by each regulatory agency.
37-22 Sec. 76.108. Commercial Applicator License. (a) A person
37-23 who operates a business or is an employee of a business that
37-24 applies state-limited-use or restricted-use pesticides or regulated
37-25 herbicides to the land of another person for hire or compensation
37-26 and who is required to be licensed by Section 76.105 of this code
37-27 shall apply to the appropriate regulatory agency for a commercial
38-1 applicator license issued for the license use categories and
38-2 subcategories in which the pesticide application is to be made.
38-3 (b) A person shall apply for an original or renewal
38-4 commercial applicator license on forms prescribed by the regulatory
38-5 agency. The application shall include information as required by
38-6 rule of the head of the agency and must be accompanied by an annual
38-7 license fee, as fixed by the head of the agency.
38-8 (c) The head of a regulatory agency may not issue an
38-9 original commercial applicator license before the applicant has[:]
38-10 [(1) filed with the agency evidence of financial
38-11 responsibility as required by Section 76.111 of this code; and]
38-12 [(2)] passed an examination under Section 76.110 of
38-13 this code.
38-14 (d) The head of a regulatory agency may not issue a
38-15 commercial applicator license if it has been determined that:
38-16 (1) the applicant has been convicted of a felony
38-17 involving moral turpitude in the last five years;
38-18 (2) the applicant has had a license issued under this
38-19 subchapter revoked within the last two years;
38-20 (3) the applicant[, or the applicant's representative
38-21 if the applicant is a business,] has been unable to satisfactorily
38-22 fulfill licensing requirements; or
38-23 (4) the applicant for any other reason cannot be
38-24 expected to be able to fulfill the provisions of this subchapter
38-25 applicable to the license use category for which application is
38-26 made.
38-27 (e) An individual to whom a commercial applicator license is
39-1 issued is authorized to purchase, use, and supervise the use of
39-2 restricted-use and state-limited-use pesticides or regulated
39-3 herbicides in the license use categories and subcategories in which
39-4 the individual is licensed.
39-5 (f) [If a license is issued in the name of a business, the
39-6 business must have a licensed applicator employed at all times.
39-7 Failure to have a licensed applicator employed is a ground for
39-8 revocation of a business commercial applicator license.]
39-9 [(g)] As a condition to issuance of a commercial applicator
39-10 license, an applicant located outside this state shall file with
39-11 the regulatory agency a written instrument designating a resident
39-12 agent for service of process in actions taken in the administration
39-13 and enforcement of this chapter. Instead of designating a resident
39-14 agent, the applicant may designate in writing the secretary of
39-15 state as the recipient of service of process for the applicant in
39-16 this state.
39-17 Sec. 76.109. Noncommercial Applicator License. (a) A
39-18 person who is required to be licensed under Section 76.105 of this
39-19 code but who does not qualify as a commercial applicator or a
39-20 private applicator shall apply to the appropriate regulatory agency
39-21 for a noncommercial applicator license issued for the license use
39-22 categories and subcategories in which the pesticide application is
39-23 to be made.
39-24 (b) A person shall apply for an original or renewal
39-25 noncommercial applicator license on forms prescribed by the
39-26 regulatory agency. An [A nongovernmental] applicant shall include
39-27 with the application an annual license fee, as fixed by the head of
40-1 the regulatory agency. [A regulatory agency may not charge a
40-2 governmental entity applicant a license fee.]
40-3 (c) The head of a regulatory agency may not issue an
40-4 original noncommercial applicator license before the applicant has
40-5 passed an examination under Section 76.110 of this code.
40-6 (d) An individual to whom a noncommercial applicator license
40-7 is issued is authorized to purchase, use, and supervise the use of
40-8 restricted-use and state-limited-use pesticides or regulated
40-9 herbicides in the license use categories and subcategories in which
40-10 the individual is licensed.
40-11 (e) If a license is issued in the name of a governmental
40-12 entity, the entity must have a licensed applicator employed at all
40-13 times. Failure to have a licensed applicator employed is a ground
40-14 for revocation of a governmental entity noncommercial applicator
40-15 license.
40-16 (f) As a condition to issuance of a noncommercial applicator
40-17 license, an applicant located outside this state shall file with
40-18 the regulatory agency a written instrument designating a resident
40-19 agent for service of process in actions taken in the administration
40-20 and enforcement of this chapter. Instead of designating a resident
40-21 agent, the applicant may designate in writing the secretary of
40-22 state as the recipient of service of process for the applicant in
40-23 this state.
40-24 Sec. 76.110. Commercial and Noncommercial Applicator
40-25 Examination; Reciprocal Agreements. (a) Each person applying for
40-26 a license as a commercial applicator or a noncommercial applicator
40-27 must pass an examination demonstrating that the person:
41-1 (1) is properly qualified to perform functions
41-2 associated with pesticide application to a degree directly related
41-3 to the nature of the activity and the associated responsibility;
41-4 and
41-5 (2) has knowledge of the use and effects of
41-6 restricted-use and state-limited-use pesticides or regulated
41-7 herbicides in the license use categories and subcategories in which
41-8 the person is to be licensed.
41-9 (b) Not later than the 30th day after the date on which a
41-10 licensing examination is administered under this section, the
41-11 appropriate regulatory agency shall notify each examinee of the
41-12 results of the examination. However, if an examination is graded
41-13 or reviewed by a national testing service, the appropriate
41-14 regulatory agency shall notify examinees of the results of the
41-15 examination not later than the 14th day after the date on which the
41-16 appropriate regulatory agency receives the results from the testing
41-17 service. If the notice of examination results graded or reviewed
41-18 by a national testing service will be delayed for longer than 90
41-19 days after the examination date, the appropriate regulatory agency
41-20 shall notify the examinee of the reason for the delay before the
41-21 90th day. The appropriate regulatory agency may require a testing
41-22 service to notify examinees of the results of an examination.
41-23 (c) If requested in writing by the person who fails a
41-24 licensing examination administered under this section, the
41-25 appropriate regulatory agency shall furnish the person with an
41-26 analysis of the person's performance on the examination.
41-27 (d) The appropriate regulatory agency may waive any
42-1 prerequisite to obtaining a license for an applicant after
42-2 reviewing the applicant's credentials and determining that the
42-3 applicant holds a valid license from another state that has license
42-4 requirements substantially equivalent to those of this state.
42-5 Sec. 76.111. [Commercial] Applicator Businesses; Proof of
42-6 Financial Responsibility. (a) In this section "applicator
42-7 business" means a person who applies a state-limited-use or
42-8 restricted-use pesticide or regulated herbicide to the land of
42-9 another for compensation and who:
42-10 (1) is a licensed commercial applicator; or
42-11 (2) employs at least one licensed commercial
42-12 applicator.
42-13 (b) This section does not apply to an employee or agent of
42-14 an applicator business.
42-15 (c) Except as otherwise provided by this section, each
42-16 applicator business [applicant for a commercial applicator license]
42-17 shall file with the regulatory agency issuing the license[:]
42-18 [(1) a bond executed by the applicant as principal and
42-19 by a corporate surety licensed to do business in Texas as surety;
42-20 or]
42-21 [(2)] a liability insurance policy, [or] certification
42-22 of a policy, or other proof of financial responsibility considered
42-23 acceptable by the department protecting persons who may suffer
42-24 damages as a result of the operations of the applicator business,
42-25 its employees, and its agents [applicant].
42-26 [(b) If an applicant cannot reasonably obtain insurance
42-27 coverage or a bond as specified by Subsection (f) of this section,
43-1 the regulatory agency shall accept a certificate of deposit or a
43-2 letter of credit that meets the requirements of Subsection (c)(1)
43-3 and rules adopted under Subsection (e) of this section.]
43-4 [(c) If the State Board of Insurance determines after giving
43-5 notice to the regulatory agency that the liability insurance policy
43-6 required by Subsection (a)(2) of this section is not generally and
43-7 reasonably available to commercial pesticide applicators, then in
43-8 lieu of the requirements of Subsection (a) of this section, an
43-9 applicant for a commercial applicator license may:]
43-10 [(1) tender from a state or federal financial
43-11 institution whose deposits are insured by the Federal Deposit
43-12 Insurance Corporation or by the Federal Savings and Loan Insurance
43-13 Corporation a certificate of deposit or letter of credit in the
43-14 amount prescribed by Subsection (f) of this section, made payable
43-15 to the regulatory agency and issued for the purpose of protecting
43-16 persons who may suffer damages as a result of the operations of the
43-17 applicant;]
43-18 [(2) file property damage and personal injury
43-19 insurance or certification of such insurance that is generally and
43-20 reasonably available as determined by the State Board of Insurance;
43-21 or]
43-22 [(3) comply with other proof of financial
43-23 responsibility requirements adopted by rule of the regulatory
43-24 agency under this subchapter.]
43-25 (d) The proof of financial responsibility required by this
43-26 section is not required to apply to damages or injury to
43-27 agricultural crops, plants, or land being worked on by the
44-1 applicator business, its employees, or its agents [applicant].
44-2 (e) [The proof of financial responsibility required by this
44-3 section must be approved by the regulatory agency and conditioned
44-4 on compliance with the requirements of this chapter and rules
44-5 adopted under this chapter.]
44-6 [(f)] Except as otherwise provided by this section, the
44-7 amount of the proof of financial responsibility may not be less
44-8 than $100,000 for each occurrence for property damage and may not
44-9 be less than $100,000 for each occurrence for bodily injury or a
44-10 general aggregate at a minimum of $200,000 for each occurrence.
44-11 The head of a regulatory agency by rule may require different
44-12 amounts of coverage for different classifications of operations
44-13 under this chapter. The [At all times during the license period,
44-14 the] coverage must at all times be maintained at not less than the
44-15 amount set by the agency head or the Texas Department [State Board]
44-16 of Insurance[, as applicable].
44-17 [(g) At least 10 days before a reduction requested by a
44-18 licensee or a cancellation of a bond or liability insurance policy,
44-19 the party taking the action shall notify the head of the
44-20 appropriate regulatory agency. If the party does not give that
44-21 notice, the liability of the surety or insurer is limited to the
44-22 bond or liability insurance policy.]
44-23 (f) [(h)] The head of a regulatory agency may accept a [bond
44-24 or] liability insurance policy in the proper sum which has a
44-25 deductible clause in an amount of not more than $1,000 for the
44-26 total amount of the [bond or] liability insurance policy required
44-27 by this section. If the applicator business [applicant] has not
45-1 satisfied the requirement of the deductible amount in any prior
45-2 legal claim, an agency head may not accept a [bond or] policy with
45-3 a deductible clause unless the applicator business [applicant]
45-4 furnishes the agency with a surety bond that satisfies the amount
45-5 of the deductible clause as to all claims that may arise as a
45-6 result of the [applicant's] operation of the applicator business.
45-7 (g) An applicator business shall cease state-limited-use or
45-8 restricted-use pesticide or regulated herbicide application
45-9 operations during a period in which the applicator business is
45-10 unable to provide adequate proof of financial responsibility under
45-11 Subsection (e).
45-12 [(i) The department shall exempt a commercial applicator
45-13 from the requirements of showing proof of financial responsibility
45-14 under this section if the applicator agrees:]
45-15 [(1) to a license for use of ground application
45-16 equipment only; and]
45-17 [(2) to a license that limits the application to only
45-18 those herbicides determined by the department not to create a
45-19 substantial risk of drift because of volatility.]
45-20 [(j) Should the surety furnished under this section become
45-21 insufficient or otherwise unsatisfactory, a licensee shall, on
45-22 notice of the insufficiency or other defect, immediately file a new
45-23 bond, liability insurance policy, or any other proof of financial
45-24 responsibility as authorized by rule of the regulatory agency. A
45-25 licensee may not operate as a commercial applicator during an
45-26 uncovered period. Failure to file a bond, or liability insurance
45-27 policy, other proof of authorized financial responsibility or
46-1 failure to maintain the surety in the required amount is a ground
46-2 for suspension or revocation of a commercial applicator license.]
46-3 [(k) The regulatory agency by rule may prescribe acceptable
46-4 proof of financial responsibility and appropriate procedures to
46-5 carry out the purposes of this section. The regulatory agency may
46-6 adopt rules governing the conditions and handling of certificates
46-7 of deposit and letters of credit, but may not disburse funds or
46-8 release a certificate or letter except by consent of the commercial
46-9 applicator or pursuant to court order.]
46-10 Sec. 76.112. Private Applicator. (a) A person is a private
46-11 applicator if the person uses or supervises the use of a
46-12 restricted-use or state-limited-use pesticide or regulated
46-13 herbicide for the purpose of producing an agricultural commodity:
46-14 (1) on property owned or rented by the person or the
46-15 person's employer or under the person's general control; or
46-16 (2) on the property of another person if applied
46-17 without compensation other than the trading of personal services,
46-18 or services related to agricultural production, including the use
46-19 of equipment, between producers of agricultural commodities.
46-20 (b) A private applicator is required to be either licensed
46-21 or certified to use restricted-use or state-limited-use pesticides
46-22 or regulated herbicides.
46-23 (c) An employee qualifies as a private applicator under
46-24 [Subdivision (1) of] Subsection (a)(1) of this section only if he
46-25 is employed to perform other duties related to agricultural
46-26 production and provide labor for the pesticide application but does
46-27 not provide the necessary equipment or pesticide.
47-1 (d) A private applicator who is required to be licensed by
47-2 Section 76.105 of this code shall apply to the department
47-3 [appropriate regulatory agency] for a private applicator license.
47-4 (e) A person shall apply for an original or renewal private
47-5 applicator license on forms prescribed by the department
47-6 [regulatory agency]. The application shall include information as
47-7 required by department [agency] rule and must be accompanied by a
47-8 fee, as fixed by the department [head of the regulatory agency].
47-9 (f) The department [head of a regulatory agency] may not
47-10 issue an original private applicator license before the applicant
47-11 has attended a training course conducted by the Texas Agricultural
47-12 Extension Service or another training course approved by the
47-13 department. The department shall approve appropriate training
47-14 courses developed under the coordination of the Texas Agricultural
47-15 Extension Service and to be conducted by other governmental
47-16 agencies or nongovernmental entities. The training course shall
47-17 cover the use, effects, and risks of restricted-use and
47-18 state-limited-use pesticides or regulated herbicides.
47-19 (g) The department [head of a regulatory agency] may not
47-20 issue a private applicator license if the applicant has had a
47-21 license issued under this subchapter revoked within the last two
47-22 years.
47-23 (h) An individual to whom a private applicator license is
47-24 issued is authorized to purchase, use, and supervise the use of
47-25 restricted-use and state-limited-use pesticides or regulated
47-26 herbicides in all license use categories and subcategories for the
47-27 purpose of producing an agricultural commodity on property
48-1 described by Subsection (a)(1) or (a)(2) of this section.
48-2 (i) As a condition to issuance of a private applicator
48-3 license, an applicant located outside this state shall file with
48-4 the department [regulatory agency] a written instrument designating
48-5 a resident agent for service of process in actions taken in
48-6 administration and enforcement of this chapter. Instead of
48-7 designating a resident agent, the applicant may designate in
48-8 writing the secretary of state as the recipient of service of
48-9 process for the applicant in this state.
48-10 (j) For purposes of this chapter, a certified private
48-11 applicator is a private applicator who has been previously
48-12 certified under the department's voluntary certification program
48-13 and who holds a private applicator certificate dated prior to
48-14 January 10, 1989. A certified private applicator is authorized to
48-15 use restricted-use and state-limited-use pesticides or regulated
48-16 herbicides in all license use categories and subcategories for the
48-17 purpose of producing an agricultural commodity on property
48-18 described by Subsection (a)(1) or (a)(2) of this section. A
48-19 certified private applicator may not supervise the use of
48-20 restricted-use and state-limited-use pesticides or regulated
48-21 herbicides.
48-22 Sec. 76.113. Expiration and Renewal of Licenses. (a) Each
48-23 commercial applicator or noncommercial applicator license expires
48-24 on the last day of February of the year following the year in which
48-25 it was issued.
48-26 (b) Each private applicator license expires on the last day
48-27 of February of the fifth year following the year in which it was
49-1 issued.
49-2 (c) Except as provided by Subsection (d) of this section, a
49-3 person having a valid license issued under this subchapter may
49-4 renew the license for another term without retesting by paying to
49-5 the regulatory agency the license fee required by this subchapter.
49-6 A person who fails to apply for renewal of a license on or before
49-7 the expiration date must pay, in addition to the annual license
49-8 fee, the late fee provided by Section 12.024 of this code.
49-9 (d) A licensee must undertake training, submit to retesting,
49-10 or both, before renewal of a license if the head of the agency
49-11 determines that additional knowledge is required for renewal.
49-12 Sec. 76.114. Records. (a) A regulatory agency shall
49-13 require each commercial [applicator] and noncommercial applicator
49-14 licensee to maintain records of all pesticide applications [the
49-15 licensee's use of pesticides]. The department may require each
49-16 commercial or noncommercial applicator licensee to keep records of
49-17 the licensee's application of a specific restricted-use or
49-18 state-limited-use pesticide or regulated herbicide and may require
49-19 those records to be kept separate from other business records. The
49-20 regulatory agency by rule shall prescribe the information to be
49-21 entered into [included in] the records.
49-22 (b) Each private applicator shall maintain records of
49-23 regulated herbicide and state-limited-use pesticide applications
49-24 and shall maintain those records of restricted-use pesticide
49-25 applications required by federal law [A regulatory agency may
49-26 require a commercial applicator and noncommercial applicator
49-27 licensee to keep records of the licensee's application of a
50-1 specific restricted-use or state-limited-use pesticide and may
50-2 require those records to be kept separate from other business
50-3 records].
50-4 (c) A licensee shall keep records required under this
50-5 section for a period of two years from the date of the pesticide
50-6 application. The licensee shall keep these records accessible and
50-7 available for copying and shall store them in a location suitable
50-8 to preserve their physical integrity.
50-9 (d) On written request of the regulatory agency, a licensee
50-10 shall furnish the department [agency] a copy of any requested
50-11 record pertaining to the application of pesticides. The department
50-12 may require all persons who apply a regulated herbicide to submit
50-13 periodically to the department a copy of the records required by
50-14 this section.
50-15 Sec. 76.115. [Registration and] Inspection of Equipment.
50-16 (a) Each regulatory agency may inspect [shall provide for the
50-17 registration and inspection of] equipment used in the [commercial]
50-18 application of a restricted-use or state-limited-use pesticide.
50-19 (b) A regulatory agency may require repairs or alterations
50-20 of equipment before further use in the application of
50-21 restricted-use or state-limited-use pesticides.
50-22 (c) The department by rule may:
50-23 (1) provide requirements for and inspect equipment
50-24 used to apply regulated herbicides; and
50-25 (2) regulate or prohibit the use of certain equipment
50-26 in the application of regulated herbicides if that use would be
50-27 hazardous in an area of the state [The head of a regulatory agency
51-1 by rule shall adopt standards that must be met before equipment may
51-2 be registered].
51-3 (d) Each piece of registered equipment shall be identified
51-4 by a license plate or decal furnished by a regulatory agency at no
51-5 cost to the licensee. The license plate or decal must be attached
51-6 to the equipment in a manner and location prescribed by the
51-7 regulatory agency.
51-8 Sec. 76.116. Suspension, Modification, or Revocation of
51-9 License. (a) The head of the regulatory agency that licensed or
51-10 certified an applicator may suspend, modify, or revoke a [any
51-11 provision in the] license or certificate, assess an administrative
51-12 penalty, place on probation a person whose license or certificate
51-13 has been suspended, [or] reprimand a licensee or certificate
51-14 holder, or take a combination of those actions if the head of the
51-15 agency finds that the licensee or certificate holder has:
51-16 (1) made a pesticide recommendation or application
51-17 inconsistent with the pesticide's labeling or with the restrictions
51-18 on the use of the pesticide imposed by the state or the
51-19 Environmental Protection Agency;
51-20 (2) operated in a faulty, careless, or negligent
51-21 manner;
51-22 (3) refused, or after notice, failed to comply with an
51-23 applicable provision of this chapter, a rule adopted under this
51-24 chapter, or a lawful order of the head of a regulatory agency by
51-25 which the licensee is licensed;
51-26 (4) refused or neglected to keep and maintain the
51-27 records required by this chapter or to make reports when and as
52-1 required by this chapter;
52-2 (5) failed to maintain financial responsibility [a
52-3 bond or policy of insurance] as required by this chapter;
52-4 (6) made false or fraudulent records, invoices, or
52-5 reports;
52-6 (7) used fraud or misrepresentation in making an
52-7 application for a license or renewal of a license; or
52-8 (8) aided or abetted a certified, licensed, or an
52-9 unlicensed person to evade the provisions of this chapter,
52-10 conspired with a certified, licensed, or an unlicensed person to
52-11 evade the provisions of this chapter, or allowed the licensee's
52-12 license or the certificate holder's certificate to be used by
52-13 another person.
52-14 (b) A regulatory agency may temporarily suspend a license or
52-15 certificate under this section for not more than 10 days after
52-16 giving the licensee or certificate holder written notice of
52-17 noncompliance.
52-18 (c) If a license or certificate suspension is probated, the
52-19 regulatory agency may require the person to:
52-20 (1) report regularly to the agency on matters that are
52-21 the basis of the probation;
52-22 (2) limit practice to the areas prescribed by the
52-23 agency; or
52-24 (3) continue or renew professional education until the
52-25 person attains a degree of skill satisfactory to the agency in
52-26 those areas that are the basis of the probation.
52-27 (d) Except for a temporary suspension under Subsection (b)
53-1 of this section, if the regulatory agency, except for the
53-2 department, proposes to not renew, suspend, modify, or revoke a
53-3 person's license or certificate, the person is entitled to a
53-4 hearing before a hearings officer designated by the agency. The
53-5 agency shall prescribe procedures by which all decisions to not
53-6 renew, suspend, modify, or revoke are appealable to the governing
53-7 officer or board of the agency.
53-8 (e) Except for a temporary suspension under Subsection (b)
53-9 of this section, if the department proposes to not renew, suspend,
53-10 modify, or revoke a person's license or certificate, the person is
53-11 entitled to a hearing conducted as provided under Section 12.032.
53-12 The decision of the department is appealable in the same manner as
53-13 provided for contested cases under Chapter 2001, Government Code.
53-14 (f) An applicator whose license or certificate is under
53-15 suspension or revocation by a regulatory agency may not apply
53-16 restricted-use or state-limited-use pesticides or regulated
53-17 herbicides under the direct supervision of another licensed
53-18 applicator during that period of suspension or revocation.
53-19 Sec. 76.117. Property Owner Use. This chapter does not
53-20 prohibit a property owner from using in the property owner's house,
53-21 lawn, or garden a pesticide that is labeled for that use, other
53-22 than a pesticide that may be registered or [and] classified for use
53-23 only by certified applicators.
53-24 SUBCHAPTER F. STORAGE AND DISPOSAL
53-25 Sec. 76.131. Rules. (a) The department may adopt rules
53-26 governing the storage and disposal of pesticides and pesticide
53-27 containers for the purpose of:
54-1 (1) preventing injury from storage or disposal to man,
54-2 vegetation, crops, or animals; and
54-3 (2) preventing any water [waterway] pollution that is
54-4 harmful to man or wildlife provided, however, that such rules be
54-5 consistent with and not less stringent than Texas Natural Resource
54-6 Conservation Commission rules adopted under Chapter 26 of the Water
54-7 Code.
54-8 (b) A person may not store or dispose of a pesticide in
54-9 violation of a rule adopted by the department under this section.
54-10 (c) Applicators and other entities covered by this chapter
54-11 who normally store products listed under the FIFRA in an amount
54-12 that exceeds 55 gallons, 500 pounds, or a lesser amount the
54-13 department determines by rule for certain highly toxic or dangerous
54-14 chemicals covered by this chapter, within one-quarter mile of a
54-15 residential area composed of three or more private dwellings for
54-16 more than 72 hours, shall provide to the fire chief of the fire
54-17 department having jurisdiction over the storage place, in writing,
54-18 the name and telephone number of the applicator or a knowledgeable
54-19 representative of the applicator or other entity storing the
54-20 product who can be contacted for further information or contacted
54-21 in case of emergency.
54-22 (d) On request, each applicator or entity shall provide to
54-23 the fire chief having jurisdiction over the storage place a copy of
54-24 a list of pesticides stored by the applicator or entity. The
54-25 applicator or other entity shall notify the fire chief of any
54-26 significant changes that occur relating to the stored pesticides if
54-27 requested by the fire chief in writing.
55-1 (e) The fire chief having jurisdiction over the storage
55-2 place or the fire chief's representative, on request, shall be
55-3 permitted to conduct on-site inspections of the pesticides stored
55-4 for the sole purpose of preparing fire department activities in
55-5 case of an emergency.
55-6 (f) On request, the fire chief having jurisdiction over the
55-7 storage place shall make the stored pesticide list available to
55-8 members of the fire department having jurisdiction over the
55-9 workplace and to personnel outside the fire department who are
55-10 responsible for preplanning emergency activities, but may not
55-11 otherwise distribute the information without approval of the
55-12 applicator.
55-13 SUBCHAPTER G. HERBICIDES
55-14 Sec. 76.141. REGULATED HERBICIDES. (a) After a public
55-15 hearing on the issue, and in accordance with Subsection (b), the
55-16 department by rule may adopt a list of regulated herbicides for the
55-17 state or for one or more designated areas in the state.
55-18 (b) The department may include a herbicide on the list of
55-19 regulated herbicides if the department determines that, if used as
55-20 directed or in accordance with widespread and commonly recognized
55-21 practice, the herbicide requires additional restrictions to prevent
55-22 a hazard to desirable vegetation caused by drift or an uncontrolled
55-23 application.
55-24 (c) A person may not distribute a regulated herbicide unless
55-25 the person holds a dealer's license issued by the department.
55-26 Sec. 76.142. APPLICATION OF REGULATED HERBICIDE. (a) If a
55-27 person applies a regulated herbicide, the person shall act in
56-1 accordance with each applicable rule adopted by the department,
56-2 including a rule adopted under this subchapter.
56-3 (b) If a regulated herbicide is applied by a commercial
56-4 applicator, the person in control of the crop or land to which the
56-5 regulated herbicide is applied and the commercial applicator are
56-6 jointly responsible for ensuring that the application is in
56-7 compliance with this chapter and each applicable rule adopted by
56-8 the department.
56-9 (c) If the department finds that an application of a
56-10 regulated herbicide is hazardous to crops or valuable plants in an
56-11 area, the department may prohibit the application of a regulated
56-12 herbicide in that area for any period during which the hazard
56-13 exists.
56-14 Sec. 76.143. PUBLIC HEARING. As soon as practicable after
56-15 receiving a written request for a revision of a rule, an exemption
56-16 from a requirement of this chapter, or a prohibition of the
56-17 spraying of a regulated herbicide in an area, the department may
56-18 hold a public hearing to hear the request.
56-19 Sec. 76.144. COUNTY HERBICIDE REGULATIONS. (a) If the
56-20 commissioners court of a county determines that a valuable crop or
56-21 vegetation susceptible to being adversely affected by the
56-22 application of a regulated herbicide exists in an area of the
56-23 county and that a departmental rule adopted or prohibition
56-24 prescribed under Section 76.141 or 76.142 not currently applicable
56-25 to the area should apply to the area, the commissioners court may
56-26 enter an order in the minutes of the court under which the
56-27 department's rule or prohibition under Section 76.141 or 76.142
57-1 becomes effective in the specified area of the county beginning
57-2 January 1 of the following year.
57-3 (b) If the commissioners court of a county determines that
57-4 there is no longer a valuable crop or vegetation susceptible to
57-5 being adversely affected by the application of a regulated
57-6 herbicide in the specified area of the county, the court may
57-7 rescind its order under Subsection (a) effective January 1 of the
57-8 following year.
57-9 (c) The department shall adopt rules concerning the use of a
57-10 regulated herbicide in a county in which the commissioners court
57-11 has entered an order under Subsection (a) of this section.
57-12 (d) The department may immediately suspend a rule of the
57-13 department regarding the application dates of a regulated herbicide
57-14 in an area of a county if:
57-15 (1) the commissioners court of the county established
57-16 the applicability of the rule by adopting an order as provided by
57-17 Subsection (a);
57-18 (2) the commissioners court requests that the
57-19 department immediately suspend the rule; and
57-20 (3) the department determines that an imminent threat
57-21 to agricultural interests exists in the county and if that threat
57-22 is not immediately addressed by a suspension of the department's
57-23 rule a significant economic loss will result.
57-24 (e) Before the commissioners court of a county may enter an
57-25 order under this section, the commissioners court shall hold a
57-26 hearing to determine whether the order should be issued. Before
57-27 the 10th day before the date on which the hearing is to be held,
58-1 the commissioners court shall publish notice of the hearing in at
58-2 least one newspaper in the county.
58-3 (f) The commissioners court shall transcribe the hearing and
58-4 make findings of fact based on the hearing and conclusions of law
58-5 to support its order in the manner prescribed for a final order or
58-6 decision in a contested case under Chapter 2001, Government Code.
58-7 (g) Before the 21st day after the date on which an order
58-8 under Subsection (a) is entered, an interested person may appeal
58-9 the order to a district court in the county to test the
58-10 reasonableness of the basis for the commissioners court order. The
58-11 provisions of Subchapter G, Chapter 2001, Government Code, that
58-12 apply to the judicial review of a contested case under the
58-13 substantial evidence rule apply to the appeal, except that the
58-14 appeal is brought in a district court for the county in which the
58-15 appealed order applies. An appeal may be taken from the district
58-16 court as in other civil cases.
58-17 (h) The commissioners court of the county shall notify the
58-18 department of a change in the status of a county or a portion of a
58-19 county under this section.
58-20 SUBCHAPTER H [G]. ENFORCEMENT
58-21 Sec. 76.151. Entry Power. (a) For the purpose of
58-22 inspection, examination, or sampling, the department is entitled to
58-23 enter at reasonable hours any building or place owned, controlled,
58-24 or operated by a registrant or dealer if from probable cause it
58-25 appears that the building or place contains a pesticide.
58-26 (b) A regulatory agency is entitled to enter any public or
58-27 private premises at reasonable times to:
59-1 (1) inspect any equipment authorized or required to be
59-2 inspected under this chapter or to inspect the premises on which
59-3 the equipment is kept or stored;
59-4 (2) inspect or sample land exposed or reported to be
59-5 exposed to a pesticide;
59-6 (3) inspect an area where a pesticide is disposed of
59-7 or stored; or
59-8 (4) observe the use and application of a
59-9 restricted-use or state-limited-use pesticide or regulated
59-10 herbicide.
59-11 (c) If a regulatory agency is denied access to any land to
59-12 which access was sought at a reasonable time for any of the
59-13 purposes listed in Subsection (b) of this section, the head of the
59-14 regulatory agency may apply to a magistrate for a warrant
59-15 authorizing access to the land for any of those purposes. On a
59-16 showing of probable cause to believe that a violation of a rule
59-17 relating to a purpose listed in Subsection (b) of this section has
59-18 occurred, the magistrate shall issue the search warrant for the
59-19 purposes requested.
59-20 Sec. 76.152. Sampling. The department is entitled to take a
59-21 sample for official analysis from any package or lot of pesticides
59-22 found within this state.
59-23 Sec. 76.153. Stop Use, Stop Distribution, or Removal
59-24 [Stop-Sale] Order. (a) If the department has reason to believe
59-25 that a pesticide is in violation of any provision of this chapter,
59-26 the department may issue and enforce a written or printed order to
59-27 stop the use or distribution [sale] of the pesticide or requiring
60-1 the pesticide to be removed and secured from further distribution.
60-2 The department shall present the order to the owner or custodian of
60-3 the pesticide. The person who receives the order may not sell,
60-4 distribute, or use the pesticide until the department determines
60-5 that the pesticide:
60-6 (1) is in compliance with this chapter; or
60-7 (2) does not present a hazard to the public health,
60-8 safety, or welfare.
60-9 (b) This section does not limit the right of the department
60-10 to proceed as authorized by another section of this chapter.
60-11 Sec. 76.154. Injunction. (a) The department may sue in the
60-12 name of the commissioner to enjoin any violation of a provision of
60-13 this chapter. Venue is in the county in which the alleged
60-14 violation occurred or is occurring.
60-15 (b) A regulatory agency may request an appropriate
60-16 prosecuting attorney or the attorney general to sue to enjoin a
60-17 violation or threatened violation of a provision of this chapter
60-18 that is within the agency's responsibility.
60-19 Sec. 76.155. Prosecutions. The department [A regulatory
60-20 agency] may request the appropriate prosecuting attorney to
60-21 prosecute a violation of a provision of this chapter.
60-22 Sec. 76.1555. Administrative Penalty. (a) If a person
60-23 violates a provision of this chapter [Chapter 75 or 76 of this code
60-24 administered by the department] or a rule or order adopted by the
60-25 department under this chapter [either of those chapters], the
60-26 department may assess an administrative penalty against the person
60-27 as provided by Section 12.020, except that the penalty shall not
61-1 exceed $4,000 for all violations related to a single incident.
61-2 (b) The department shall establish a schedule stating the
61-3 types of violations possible under this chapter [Chapters 75 and 76
61-4 of this code]. The department is not required to comply with
61-5 Subchapter B, Chapter 2001, Government Code, when establishing or
61-6 revising the schedule. The department shall publish the initial
61-7 schedule and any subsequent revision in the Texas Register before
61-8 the schedule or revision is implemented.
61-9 (c) If the department elects to assess an administrative
61-10 penalty, no action for a civil penalty may be based on the same
61-11 violation or violations.
61-12 Sec. 76.156. Civil Penalty. (a) A person who violates a
61-13 provision of this chapter administered by a regulatory agency other
61-14 than the department or a rule adopted by a regulatory agency other
61-15 than the department under this chapter is liable for a civil
61-16 penalty of not less than $50 nor more than $1,000 for each day on
61-17 which the violation occurs.
61-18 (b) A person who violates a provision of this chapter
61-19 administered by the department or a rule adopted by the department
61-20 under this chapter is liable for a civil penalty of not less than
61-21 $50 nor more than $10,000 for each violation, provided that the
61-22 penalty shall not exceed $25,000 for all violations related to a
61-23 single incident.
61-24 (c) No civil penalty may be collected for any violation that
61-25 constituted the basis for a department proceeding to assess an
61-26 administrative penalty, regardless of whether the department was or
61-27 was not successful in collecting the administrative penalty.
62-1 (d) A county attorney, a district attorney, or the attorney
62-2 general shall sue in the name of the state for the collection of a
62-3 civil penalty provided by this section.
62-4 (e) The appropriate regulatory agency may request an
62-5 appropriate prosecuting attorney or the attorney general to bring
62-6 suit under this section.
62-7 (f) A civil penalty collected under this section shall be
62-8 deposited in the state treasury to the credit of the General
62-9 Revenue Fund. All civil penalties recovered in suits first
62-10 instituted by a local government or governments under this section
62-11 shall be equally divided between the State of Texas and the local
62-12 government or governments with 50 percent of the recovery to be
62-13 paid to the General Revenue Fund and the other 50 percent equally
62-14 to the local government or governments first instituting the suit.
62-15 SUBCHAPTER I [H]. REMEDIES
62-16 Sec. 76.181. Appeal of Denial or Cancellation of Pesticide
62-17 Registration. [(a)] A person whose application for registration
62-18 of a pesticide has been denied or whose registration for a
62-19 pesticide has been canceled may appeal the action in the manner
62-20 provided for appeal of contested cases under Chapter 2001,
62-21 Government Code.
62-22 [(b) Appeal under this section is governed by the
62-23 substantial evidence rule.]
62-24 Sec. 76.182. Appeal of Permit or License Denial, Suspension,
62-25 Modification, or Revocation. [(a)] A person whose application for
62-26 an experimental use permit, pesticide dealer license, commercial
62-27 applicator license, noncommercial applicator license, or private
63-1 applicator license has been denied or whose experimental use
63-2 permit, pesticide dealer license, commercial applicator license,
63-3 noncommercial applicator license, private applicator license, or
63-4 private applicator certificate has been suspended for more than 10
63-5 days, revoked, or modified may appeal the action in the manner
63-6 provided for appeal of contested cases under Chapter 2001,
63-7 Government Code.
63-8 [(b) Appeal under this section is governed by the
63-9 substantial evidence rule.]
63-10 Sec. 76.183. Appeal of Stop Use, Stop Distribution, or
63-11 Removal [Stop-Sale] Order. (a) The owner or custodian of a
63-12 pesticide to which a stop use, stop distribution, or removal
63-13 [stop-sale] order is imposed under Section 76.153 [applies] may
63-14 appeal the order to a court of competent jurisdiction in the county
63-15 where the pesticide is found.
63-16 (b) Appeal under this section is by trial de novo.
63-17 Sec. 76.184. REPORTS OF PESTICIDE ADVERSE EFFECTS [DAMAGE
63-18 CLAIMS]. (a) A person claiming adverse effects from an
63-19 application of a pesticide may file with the appropriate regulatory
63-20 agency a complaint report. The complaint report must contain the
63-21 name of the person, if known, allegedly responsible for the
63-22 application of the pesticide and the name of the owner or lessee of
63-23 the land on which the pesticide was applied. The regulatory agency
63-24 shall prepare a form to be furnished to persons for use in filing
63-25 complaint reports. The form may contain other information that is
63-26 within the person's knowledge and requested by the head of the
63-27 regulatory agency.
64-1 (b) As soon as practicable after receiving a complaint
64-2 report, the regulatory agency shall notify the licensee, the owner
64-3 or lessee of the land on which the alleged application occurred,
64-4 and any other person who may be charged with responsibility for the
64-5 adverse effects claimed. The regulatory agency shall furnish
64-6 copies of the complaint to those people on request.
64-7 (c) To assess any adverse effects, the complaining party
64-8 shall permit the regulatory agency and the licensee to observe,
64-9 within reasonable hours, the land or nontarget organism alleged to
64-10 have been adversely affected.
64-11 (d) Failure to file a complaint does not bar a civil or
64-12 criminal action from being filed and maintained.
64-13 (e) The regulatory agency by rule may adopt procedures to be
64-14 followed in the investigation of a report claiming adverse effects
64-15 from an application of the pesticide. [damages from a pesticide
64-16 application may file with the regulatory agency that licensed the
64-17 certified applicator whose action allegedly caused the damage a
64-18 written statement claiming that the person has been damaged. To be
64-19 eligible for consideration by the agency, the report must be filed
64-20 before the 31st day following the day of the alleged occurrence or,
64-21 if a growing crop is alleged to have been damaged, before the time
64-22 that 25 percent of the crop has been harvested or before the 31st
64-23 day, whichever is less. The report must contain the name of the
64-24 person allegedly responsible for the application of the pesticide
64-25 and the name of the owner or lessee of the land on which the crop
64-26 is grown and to which damage is alleged to have occurred. The
64-27 regulatory agency shall prepare a form to be furnished to persons
65-1 for use in filing damage reports. The form may contain other
65-2 information that is required by the head of the regulatory agency.]
65-3 [(b) On receipt of a report, the regulatory agency shall
65-4 notify the licensee, the owner or lessee of the land on which the
65-5 alleged act occurred, and any other person who may be charged with
65-6 responsibility for the damages claimed. The regulatory agency
65-7 shall furnish copies of the report to those people on request.]
65-8 [(c) The regulatory agency shall inspect damages whenever
65-9 possible and shall report its findings to the person claiming
65-10 damage and to the person alleged to have caused the damage. In
65-11 order that damage may be assessed, the claimant shall permit the
65-12 regulatory agency and the licensee to observe, within reasonable
65-13 hours, the land or nontarget organism alleged to have been damaged.]
65-14 [(d) Failure to file a report does not bar maintenance of a
65-15 civil or criminal action. If a person fails to file a report and
65-16 is the only person claiming injury from the particular use or
65-17 application of a pesticide, the regulatory agency may, if in the
65-18 public interest, refuse to hold a hearing for the denial,
65-19 suspension, or revocation of a license issued under this chapter to
65-20 the person alleged to have caused the damage.]
65-21 Sec. 76.185. Damages Resulting From Application of Pesticide
65-22 Under Government Program. Notwithstanding other law, the owner or
65-23 lessee of land on which a pesticide is applied is not responsible
65-24 for damages resulting from the application of the pesticide or
65-25 subject to a criminal or civil penalty in connection with the
65-26 application of the pesticide if:
65-27 (1) the pesticide is applied under a local, state, or
66-1 federal government program that requires the application of the
66-2 pesticide to the land; and
66-3 (2) the owner or lessee of the land on which the
66-4 pesticide is applied does not control or have a right to control
66-5 the time and manner of the application of the pesticide to the
66-6 land.
66-7 SUBCHAPTER J [I]. PENALTIES
66-8 Sec. 76.201. Offenses. (a) A person commits an offense if
66-9 the person distributes within this state or delivers for
66-10 transportation or transports in intrastate commerce or between
66-11 points within this state through a point outside this state, any
66-12 of the following:
66-13 (1) a pesticide that has not been registered as
66-14 provided by this chapter, except for a pesticide that is not for
66-15 use in this state and is only being manufactured, transported, or
66-16 distributed for use outside of this state;
66-17 (2) a pesticide that has a claim, a direction for its
66-18 use, or labeling that differs from the representations made in
66-19 connection with its registration;
66-20 (3) a pesticide that is not in the registrant's or
66-21 manufacturer's unbroken immediate container and that is not labeled
66-22 with the information and in the manner required by Section 76.021
66-23 of this code;
66-24 (4) a pesticide:
66-25 (A) that is of strength or purity that falls
66-26 below the professed standard or quality expressed on its labeling
66-27 or under which it is sold;
67-1 (B) for which a substance has been substituted
67-2 wholly or in part;
67-3 (C) of which a valuable constituent has been
67-4 wholly or in part abstracted; or
67-5 (D) in which a contaminant is present in an
67-6 amount that is determined by the department to be a hazard;
67-7 (5) a pesticide or device that is misbranded; or
67-8 (6) a pesticide in a container that is unsafe due to
67-9 damage.
67-10 (b) A person commits an offense if the person:
67-11 (1) detaches, alters, defaces, or destroys, wholly or
67-12 in part, any label or labeling provided for by this chapter or a
67-13 rule adopted under this chapter before the container has been
67-14 emptied and rinsed properly;
67-15 (2) adds any substance to or takes any substance from
67-16 a pesticide in a manner that may defeat the purpose of this chapter
67-17 or a rule adopted under this chapter;
67-18 (3) uses or causes to be used a pesticide contrary to
67-19 its labeling or to a rule of the department limiting the use of the
67-20 pesticide;
67-21 (4) handles, transports, stores, displays, or
67-22 distributes a pesticide in a manner that violates a provision of
67-23 this chapter or a rule adopted by the department under this
67-24 chapter; or
67-25 (5) disposes of, discards, or stores a pesticide or
67-26 pesticide container in a manner that the person knows or should
67-27 know is likely to cause injury to man, vegetation, crops,
68-1 livestock, wildlife, or pollinating insects.
68-2 (c) A person other than a person to whom the pesticide is
68-3 registered commits an offense if the person uses for the person's
68-4 advantage or reveals, other than to a properly designated state or
68-5 federal official or employee, a physician, or in emergency to a
68-6 pharmacist or other qualified person for the preparation of an
68-7 antidote, any information relating to pesticide formulas, trade
68-8 secrets, or commercial or financial information acquired under this
68-9 chapter and marked as privileged or confidential by the registrant.
68-10 (d) A person commits an offense if the person:
68-11 (1) commits an act for which a certified applicator's
68-12 license may be suspended, modified, [or] revoked, or not renewed
68-13 under Section 76.116 of this code; or
68-14 (2) violates any [other] provision of this chapter to
68-15 which this section does not expressly apply.
68-16 (e) A person commits an offense if the person:
68-17 (1) knowingly or intentionally uses, causes to be
68-18 used, handles, stores, or disposes of a pesticide in a manner that
68-19 causes injury to man, vegetation, crops, livestock, wildlife, or
68-20 pollinating insects;
68-21 (2) violates Section 76.071(a);
68-22 (3) has a permit to apply a powder or dry-type
68-23 regulated herbicide and applies a herbicide that does not meet the
68-24 requirements of Section 76.144(c);
68-25 (4) violates a rule adopted under this chapter; or
68-26 (5) fails to keep or submit records in violation of
68-27 this chapter.
69-1 Sec. 76.202. Penalty. (a) Except as provided by Subsection
69-2 (b) of this section, an offense under Section 76.201 of this code
69-3 is a Class C misdemeanor, unless the person has been previously
69-4 convicted of an offense under that section, in which event the
69-5 offense is a Class B misdemeanor.
69-6 (b) An offense under Section 76.201(e) of this code is a
69-7 Class A misdemeanor, unless the person has been previously
69-8 convicted of an offense under that subsection, in which event the
69-9 offense is a felony of the third degree.
69-10 Sec. 76.203. Defenses. (a) It is a defense to prosecution
69-11 under this subchapter that the defendant:
69-12 (1) is a carrier who was lawfully engaged in
69-13 transporting a pesticide or device within this state and who, on
69-14 request, permitted the department to copy all records showing the
69-15 transactions in and movement of the pesticide or device;
69-16 (2) is a public official of this state or the federal
69-17 government who was engaged in the performance of an official duty
69-18 in administering state or federal pesticide law or engaged in
69-19 pesticide research;
69-20 (3) is the manufacturer or shipper of a pesticide that
69-21 was for experimental use only by or under the supervision of an
69-22 agency of this state or of the federal government authorized by law
69-23 to conduct research in the field of pesticides and the manufacturer
69-24 or shipper held a valid experimental use permit as provided by this
69-25 chapter; and
69-26 (4) manufactured or formulated a pesticide or device
69-27 solely for export to a foreign country and prepared or packed the
70-1 pesticide or device according to the specifications or directions
70-2 of the purchaser.
70-3 (b) It is a defense to prosecution under Section
70-4 76.201(a)(3) of this code that the defendant is an applicator who,
70-5 after acquiring an unbroken container, opened and transported the
70-6 open container to and from application and storage sites as
70-7 necessary.
70-8 (c) It is an affirmative defense to prosecution under
70-9 Section 76.201(e) of this code that the defendant was using,
70-10 causing to be used, handling, storing, or disposing of the
70-11 pesticide in accordance with a label that complied with this
70-12 chapter and rules adopted under this chapter.
70-13 SECTION 2. Chapters 75 and 125, Agriculture Code, are
70-14 repealed.
70-15 SECTION 3. A license issued under Subchapter E, Chapter 76,
70-16 Agriculture Code, by a state agency other than the Department of
70-17 Agriculture that is of a type that will be issued by the department
70-18 under the changes in law to Subchapter E made by this Act remains
70-19 valid, subject to the terms and conditions under which it was
70-20 issued, for the remainder of the period for which it was issued.
70-21 When the license expires it is subject to renewal under Subchapter
70-22 E, Chapter 76, Agriculture Code, as amended by this Act.
70-23 SECTION 4. The importance of this legislation and the
70-24 crowded condition of the calendars in both houses create an
70-25 emergency and an imperative public necessity that the
70-26 constitutional rule requiring bills to be read on three several
70-27 days in each house be suspended, and this rule is hereby suspended,
71-1 and that this Act take effect and be in force from and after its
71-2 passage, and it is so enacted.