By Turner of Coleman H.B. No. 1144
75R2746 MWV-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the consolidation of herbicide, pesticide, and
1-3 agricultural workplace chemical laws under the jurisdiction of the
1-4 Department of Agriculture.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 76, Agriculture Code, is amended to read
1-7 as follows:
1-8 CHAPTER 76. PESTICIDE REGULATION
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 76.001. Definitions. In this chapter:
1-11 (1) "Active ingredient" means:
1-12 (A) in the case of a pesticide other than a
1-13 plant regulator, defoliant, or desiccant, an ingredient that
1-14 prevents, destroys, repels, or mitigates a pest;
1-15 (B) in the case of a plant regulator, an
1-16 ingredient that through physiological action accelerates or retards
1-17 the rate of growth or rate of maturation or otherwise alters the
1-18 behavior of an ornamental or crop plant or the product of an
1-19 ornamental or crop plant;
1-20 (C) in the case of a defoliant, an ingredient
1-21 that causes leaves or foliage to drop from a plant; or
1-22 (D) in the case of a desiccant, an ingredient
1-23 that artificially accelerates the drying of plant tissue.
1-24 (2) "Animal" means a vertebrate or invertebrate
2-1 species, including man, other mammals, birds, fish, and shellfish.
2-2 (3) "Antidote" means a practical treatment used in
2-3 preventing or lessening ill effects from poisoning, including first
2-4 aid.
2-5 (4) "Application of a herbicide" means the spreading
2-6 of a herbicide on real property having a continuous boundary line.
2-7 (5) "Defoliant" means a substance or mixture of
2-8 substances intended to cause the leaves or foliage to drop from a
2-9 plant, with or without causing abscission.
2-10 (6) "Department" means the Department of Agriculture.
2-11 (7) [(5)] "Desiccant" means a substance or mixture of
2-12 substances intended to artificially accelerate the drying of plant
2-13 tissue.
2-14 (8) [(6)] "Device" means an instrument or contrivance,
2-15 other than a firearm, that is used to trap, destroy, repel, or
2-16 mitigate a pest or other form of plant or animal life, other than
2-17 man or a 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 [(20) "Regulatory agency" means a state agency with
5-7 responsibility for certifying applicators under Subchapter E of
5-8 this chapter.]
5-9 (24) [(21)] "Restricted-use pesticide" means a
5-10 pesticide classified as a restricted-use pesticide by the
5-11 Environmental Protection Agency.
5-12 (25) [(22)] "Thallophyte" means a
5-13 non-chlorophyll-bearing plant of a lower order than mosses and
5-14 liverworts.
5-15 (26) [(23)] "Weed" means any plant that grows where
5-16 not wanted.
5-17 (27) "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) After notice, the
7-14 department shall conduct at least five regional hearings throughout
7-15 the state before the adoption of any rule for carrying out the
7-16 provisions of this chapter. Thereafter, the department may adopt
7-17 rules for carrying out the provisions of this chapter, including
7-18 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) The department [A regulatory agency] may receive
11-17 grants-in-aid from any federal agency and may enter into
11-18 cooperative agreements with a federal agency, an agency of this
11-19 state, a subdivision of this state, or an agency of another state
11-20 for the purpose of obtaining assistance in the implementation of
11-21 this chapter.
11-22 Sec. 76.008. Exemption. Sections 76.007, 76.104-76.106,
11-23 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,
11-24 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is
11-25 regulated by the Texas Structural Pest Control Act, as amended
11-26 (Article 135b-6, Vernon's Texas Civil Statutes).
11-27 Sec. 76.009. AGRICULTURE RESOURCES PROTECTION AUTHORITY.
12-1 (a) The Agriculture Resources Protection Authority is an agency of
12-2 state government. The authority is composed of the following
12-3 members:
12-4 (1) the director of the Texas Agricultural Experiment
12-5 Station;
12-6 (2) the dean of the College of Agricultural Sciences
12-7 of Texas Tech University;
12-8 (3) the dean of The University of Texas School of
12-9 Public Health at Houston;
12-10 (4) the director of the environmental epidemiology
12-11 program of the Texas Department of Health;
12-12 (5) the chief of the groundwater conservation section
12-13 of the Texas Natural Resource Conservation Commission;
12-14 (6) the director of the Institute for International
12-15 Agribusiness Studies of Prairie View A&M University;
12-16 (7) one person appointed by the governor to represent
12-17 the interests of consumers;
12-18 (8) a producer of agricultural products appointed by
12-19 the governor;
12-20 (9) the executive director of the Texas Structural
12-21 Pest Control Board;
12-22 (10) the executive director of the State Soil and
12-23 Water Conservation Board;
12-24 (11) a person appointed by the governor and licensed
12-25 by the department as a commercial, noncommercial, or private
12-26 applicator;
12-27 (12) a person appointed by the governor and licensed
13-1 by the department as a pesticide dealer or involved in the
13-2 development or manufacture of agricultural chemicals;
13-3 (13) a person appointed by the governor and employed
13-4 as a farm worker or serving as a representative of farm workers;
13-5 (14) a person appointed by the governor and associated
13-6 with an organization primarily engaged in environmental
13-7 conservation or protection efforts; and
13-8 (15) the commissioner of agriculture.
13-9 (b) A person appointed by the governor under Subdivision
13-10 (7), (8), (11), (12), (13), or (14) of Subsection (a) of this
13-11 section serves a two-year term ending on February 1 of each
13-12 odd-numbered year. A vacancy in one of those positions shall be
13-13 filled by appointment by the governor for the unexpired term. All
13-14 appointments made by the governor under this section must be with
13-15 the advice and consent of the senate.
13-16 (c) The governor shall designate the presiding officer of
13-17 the authority.
13-18 (d) The authority shall meet quarterly and at the call of
13-19 the presiding officer or a majority of the members.
13-20 (e) A member may not receive compensation for service as a
13-21 member of the authority. A member is entitled to reimbursement for
13-22 actual and necessary expenses incurred in the performance of the
13-23 functions of the authority, subject to any limitations on
13-24 reimbursement provided by the General Appropriations Act.
13-25 (f) The delegation of functions under this section is
13-26 designed to avoid overlapping responsibilities, to provide a means
13-27 for all involved agencies to participate in the regulation of
14-1 pesticides, and to clarify various areas of responsibility.
14-2 (g) The authority is the coordinating body for the policies
14-3 and programs of management, regulation, and control of pesticides
14-4 conducted by the department, the State Soil and Water Conservation
14-5 Board, the Texas Agricultural Extension Service, the Texas
14-6 Department of Health, the Texas Natural Resource Conservation
14-7 Commission, and the Texas Structural Pest Control Board.
14-8 Notwithstanding any other provision of this code or of any other
14-9 law, the authority may:
14-10 (1) adopt any rule relating to any duty of the
14-11 authority;
14-12 (2) review and make comments regarding any rule
14-13 relating to pesticides that is proposed by an agency for which the
14-14 authority is the coordinating body;
14-15 (3) cooperate with and advise the department, the
14-16 State Soil and Water Conservation Board, the Texas Agricultural
14-17 Extension Service, the Texas Department of Health, the Texas
14-18 Natural Resource Conservation Commission, the Texas Structural Pest
14-19 Control Board, and any other state agency that may be concerned
14-20 with the regulation of pesticides and notify those agencies of any
14-21 rule the authority intends to adopt;
14-22 (4) collect, analyze, and disseminate information
14-23 necessary for the effective operation of all existing or
14-24 contemplated programs regulating pesticides;
14-25 (5) provide professional advice to private agencies
14-26 and citizens of this state on matters relating to pesticides in
14-27 cooperation with other state agencies, with professional groups,
15-1 and with either state or private educational institutions;
15-2 (6) accept gifts, devises, and bequests and, with the
15-3 approval of the governor, comply with the terms and conditions of
15-4 any grant to accomplish any of the purposes of the authority;
15-5 (7) inform and advise the governor on matters
15-6 involving pesticides and prepare and recommend to the governor and
15-7 to the legislature any legislation the authority considers proper
15-8 for the management and control of pesticides; and
15-9 (8) make annual reports to the governor and the
15-10 appropriate legislative oversight committees.
15-11 (h) A member of the authority by a written statement may
15-12 designate a person to execute any responsibility of the member
15-13 including voting.
15-14 (i) The authority shall develop and implement policies that
15-15 provide the public with a reasonable opportunity to appear before
15-16 the authority semiannually to comment on the status of the state's
15-17 pesticide regulation efforts.
15-18 (j) The commissioner shall:
15-19 (1) as necessary, employ personnel as the duties of
15-20 the authority may require and to the extent of legislative
15-21 appropriations to the authority;
15-22 (2) keep an accurate and complete record of all
15-23 authority meetings and hearings of the authority and maintain legal
15-24 custody of all books, papers, documents, and other records of the
15-25 authority;
15-26 (3) administer this chapter and the rules adopted by
15-27 the authority [Chapters 75 and 125 of this code]; and
16-1 (4) assign, reassign, or delegate the administrative
16-2 and enforcement functions assigned to the commissioner by this
16-3 subsection or by rules or policies established under this
16-4 subsection to one or more of the divisions or other units within
16-5 the department or to one or more employees of the department.
16-6 (k) The authority shall adopt rules requiring quarterly
16-7 submission to the authority by the department, State Soil and Water
16-8 Conservation Board, Texas Agricultural Extension Service, Texas
16-9 Department of Health, Texas Natural Resource Conservation
16-10 Commission, and the Texas Structural Pest Control Board of a report
16-11 regarding each agency's pesticide regulatory enforcement activity.
16-12 (l) The authority shall review and make comments regarding
16-13 the information received by the authority under Subsection (k).
16-14 The authority shall make its comments available to the public.
16-15 (m) The department, State Soil and Water Conservation Board,
16-16 Texas Agricultural Extension Service, Texas Department of Health,
16-17 Texas Natural Resource Conservation Commission, and the Texas
16-18 Structural Pest Control Board shall provide the authority with
16-19 sufficient opportunity to review and comment on the strategic plan
16-20 and biennial appropriation request of each agency, and any revision
16-21 of a plan or request, before submission of a plan or request to the
16-22 legislature.
16-23 SUBCHAPTER B. LABELING
16-24 Sec. 76.021. LABELING INFORMATION. (a) Each pesticide
16-25 distributed in this state shall bear a label containing the
16-26 following information relating to the pesticide:
16-27 (1) the label information required by FIFRA, if the
17-1 pesticide is subject to registration under that law; or
17-2 (2) the following information, if the pesticide is not
17-3 subject to registration under FIFRA:
17-4 (A) [(1)] the name, brand, or trademark under
17-5 which the pesticide is distributed;
17-6 (B) [(2)] the name and percentage of each active
17-7 ingredient and the total percentage of inert ingredients;
17-8 (C) [(3)] directions for use that are necessary
17-9 for effecting the purpose for which the product is intended and, if
17-10 complied with, are adequate for the protection of health and the
17-11 environment;
17-12 (D) [(4)] if the pesticide contains any form of
17-13 arsenic, the percentage of total water-soluble arsenic, calculated
17-14 as elementary arsenic;
17-15 (E) [(5)] the name and address of the
17-16 manufacturer, registrant, or person for whom the pesticide was
17-17 manufactured;
17-18 (F) [(6)] numbers or other symbols to identify
17-19 the lot or batch of the manufacturer of the contents of the
17-20 package; and
17-21 (G) [(7)] a clear display of appropriate
17-22 warnings, symbols, and cautionary statements commensurate with the
17-23 toxicity or use classification of the pesticide.
17-24 (b) [The labeling of each pesticide distributed in this
17-25 state shall state the use classification for which the product is
17-26 registered.]
17-27 [(c)] The label bearing the ingredient statement under
18-1 Subsection (a)(2)(B) of this section shall be on or attached to
18-2 that part of the immediate container that is presented or displayed
18-3 under customary conditions of purchase and, if the ingredient
18-4 statement cannot be clearly read without removing the outer
18-5 wrapping, on any outer container or wrapper of a retail package.
18-6 Sec. 76.022. CONSPICUOUS LETTERING. Any word, statement, or
18-7 information required by this chapter to appear on a label or in
18-8 labeling of a pesticide or device registered by the department
18-9 shall be prominently and conspicuously placed so that, if compared
18-10 with other material on the label or in the labeling, it is likely
18-11 to be understood by the ordinary individual under customary
18-12 conditions of use.
18-13 Sec. 76.023. Misbranded Pesticide or Device. (a) A
18-14 pesticide or device is misbranded if:
18-15 (1) it is subject to registration under FIFRA and it
18-16 does not fully comply with the labeling requirements of the United
18-17 States Environmental Protection Agency; or
18-18 (2) it is not subject to registration under FIFRA and:
18-19 (A) [(1)] its labeling bears a statement,
18-20 design, or graphic representation relating to the pesticide or
18-21 device, or the ingredients of either, that is false or misleading
18-22 in any particular;
18-23 (B) [(2)] it is an imitation of or is
18-24 distributed under the name of another pesticide or device; or
18-25 (C) [(3)] it is not conspicuously labeled in
18-26 accordance with Section 76.022 of this code.
18-27 (b) A pesticide is misbranded if:
19-1 (1) its labeling bears any reference to registration
19-2 under this chapter, unless the reference is required by a rule
19-3 adopted under this chapter;
19-4 (2) it does not bear a label as required by Section
19-5 76.021 of this code; or
19-6 (3) its label does not bear information as required by
19-7 Section 76.021 of this code or a rule adopted under this chapter.
19-8 SUBCHAPTER C. REGISTRATION
19-9 Sec. 76.041. REGISTRATION REQUIRED. (a) Except as provided
19-10 by Subsection (b), (c), [or] (d), or (e) of this section, before a
19-11 pesticide is distributed in this state or is delivered for
19-12 transportation or is transported in intrastate commerce or between
19-13 points within this state through a point outside the state, it must
19-14 be registered with the department. The manufacturer or other
19-15 person whose name appears on the label of the pesticide shall
19-16 register the pesticide.
19-17 (b) Registration is not required for the transportation of a
19-18 pesticide from one plant or warehouse to another plant or warehouse
19-19 operated by the same person if the pesticide is used solely at the
19-20 second plant or warehouse as a constituent of a pesticide that is
19-21 registered under this chapter.
19-22 (c) Registration is not required for a pesticide that is not
19-23 for use in this state and is only being manufactured, transported,
19-24 or distributed for use outside of this state.
19-25 (d) Registration is not required for a chemical compound
19-26 being used only to develop plot data as to the possible pesticidal
19-27 action of the chemical.
20-1 (e) [(d)] Unless otherwise required by department rule,
20-2 registration is not required for a pesticide that is exempt from
20-3 registration with the United States Environmental Protection Agency
20-4 under federal law.
20-5 (f) The Texas Feed and Fertilizer Control Service may not
20-6 register under Chapter 63 a fertilizer that contains a pesticide
20-7 that must be registered with the department under this chapter
20-8 unless the constituent pesticide is first registered with the
20-9 department. The Texas Feed and Fertilizer Control Service shall
20-10 consult with the department about the current registration status
20-11 of a pesticide before registering any fertilizer mix containing
20-12 that pesticide under Chapter 63. The department shall notify the
20-13 Texas Feed and Fertilizer Control Service of any changes to a
20-14 pesticide registration.
20-15 (g) A pesticide that has been registered with the department
20-16 must continue to be registered as long as the pesticide remains in
20-17 the channels of trade in this state. The registrant shall ensure
20-18 that the pesticide continues to be registered.
20-19 (h) If the department issues a stop use, stop distribution,
20-20 or removal order because the pesticide is not registered with the
20-21 department, the registrant shall take any necessary action to
20-22 remedy the situation, including reimbursing a person who is subject
20-23 to the order for the person's costs in complying with the order.
20-24 Sec. 76.042. CONTENT OF REGISTRATION APPLICATION. (a) The
20-25 application for registration of a pesticide shall include:
20-26 (1) the name and address of the applicant and the name
20-27 and address of the person whose name will appear on the pesticide
21-1 label, if not the applicant's;
21-2 (2) the name of the pesticide;
21-3 (3) a complete copy of all labeling to accompany the
21-4 pesticide and a statement of all claims to be made for it,
21-5 including the directions for use and, if the pesticide is required
21-6 to be registered with the United States Environmental Protection
21-7 Agency, a copy of the Environmental Protection Agency stamped
21-8 accepted labeling and any applicable comment pages;
21-9 (4) the use classification, whether for restricted or
21-10 general use, as provided by the Federal Insecticide, Fungicide, and
21-11 Rodenticide Act, as amended, or by a rule adopted under that Act;
21-12 (5) the use classification proposed by the applicant,
21-13 if the pesticide is not required by federal law to be registered
21-14 under a use classification; and
21-15 (6) other information required by the department for
21-16 determining the eligibility for registration.
21-17 (b) The department may require the applicant to submit the
21-18 complete formula for a pesticide, including active and inert
21-19 ingredients, as a prerequisite to registration.
21-20 (c) The department may require a full description of the
21-21 tests made and the results of the tests on which claims are based
21-22 before approving registration of a pesticide that is not registered
21-23 under federal law or for which federal or state restrictions on use
21-24 are being considered.
21-25 (d) A person located outside this state, as a condition to
21-26 registration of a pesticide, shall file with the department a
21-27 written instrument designating a resident agent for service of
22-1 process in actions taken in the administration and enforcement of
22-2 this chapter. Instead of designating a resident agent, the person
22-3 may designate in writing the secretary of state as the recipient of
22-4 service of process for the person in this state.
22-5 Sec. 76.043. EXPIRATION AND RENEWAL. (a) Registration of a
22-6 pesticide expires on the second anniversary of the date of its
22-7 approval or renewal except that the department shall by rule adopt
22-8 a system under which registrations expire on various dates during
22-9 the year.
22-10 (b) A person who applies for renewal of registration shall
22-11 include in the renewal application only information that is
22-12 different from the information furnished at the time of the most
22-13 recent registration or renewal.
22-14 (c) A registration in effect on its expiration date for
22-15 which a renewal application has been filed and renewal fee has been
22-16 paid continues in effect until the department notifies the
22-17 applicant that the registration has been renewed or denied renewal.
22-18 Sec. 76.044. FEES. (a) The department shall charge a fee,
22-19 as provided by department rule, for each pesticide to be
22-20 registered. The fee must be submitted with an application for
22-21 registration or renewal of registration.
22-22 (b) A person who fails to apply for renewal of registration
22-23 on or before the expiration date of the registration must pay, in
22-24 addition to the renewal fee, the late fee provided by Section
22-25 12.024 of this code for each brand to be renewed.
22-26 Sec. 76.045. [DEPARTMENT APPROVAL. The department may not
22-27 approve an application for registration unless the department finds
23-1 that:]
23-2 [(1) the composition of the pesticide warrants the
23-3 proposed claims made for it; and]
23-4 [(2) the pesticide, its labeling, and other materials
23-5 required to be submitted under this chapter comply with the
23-6 requirements of this chapter.]
23-7 [Sec. 76.046.] REGISTRATION FOR SPECIAL LOCAL NEED.
23-8 (a) The department may register a pesticide for additional uses
23-9 and methods of application not covered by federal registration
23-10 [regulation] but not inconsistent with federal law, for the purpose
23-11 of meeting a special local need.
23-12 (b) Before approving a registration under this section, the
23-13 department shall determine that the applicant meets the other
23-14 requirements of this subchapter.
23-15 Sec. 76.046 [76.047]. DENIAL OR CANCELLATION OF
23-16 REGISTRATION. (a) If the department has reason to believe that
23-17 any use of a registered pesticide is in violation of a provision of
23-18 this chapter or is dangerous or harmful, the department shall
23-19 determine whether a hearing shall be held under Section 12.032 on
23-20 denial or cancellation of registration.
23-21 (b) The department shall issue written notice of a hearing
23-22 under this section to the registrant of the pesticide. The notice
23-23 must contain a statement of the time and place of the hearing. The
23-24 hearing shall be held after the 10th day following the day on which
23-25 the notice is issued.
23-26 (c) After opportunity at the hearing for presentation of
23-27 evidence by interested parties, the department may deny or cancel
24-1 the registration of the pesticide if the department finds that:
24-2 (1) use of the pesticide has demonstrated
24-3 uncontrollable adverse environmental effects;
24-4 (2) use of the pesticide is a detriment to the
24-5 environment that outweighs the benefits derived from its use;
24-6 (3) even if properly used, the pesticide is
24-7 detrimental to vegetation, except weeds, to domestic animals, or to
24-8 public health and safety;
24-9 (4) a false or misleading statement about the
24-10 pesticide has been made or implied by the registrant or the
24-11 registrant's agent, in writing, verbally, or through any form of
24-12 advertising literature; or
24-13 (5) the registrant has not complied or the pesticide
24-14 does not comply with a requirement of this chapter or a rule
24-15 adopted under this chapter.
24-16 Sec. 76.047 [76.048]. EXPERIMENTAL USE PERMIT. (a) The
24-17 department may issue an experimental use permit if the department
24-18 determines that the applicant needs the permit in order to
24-19 accumulate data necessary to register a pesticide under this
24-20 chapter.
24-21 (b) A person may file an application for an experimental use
24-22 permit before or after applying for registration.
24-23 (c) Use of a pesticide under an experimental use permit is
24-24 under the supervision of the department and is subject to the terms
24-25 and conditions, and valid for a period of time, prescribed by the
24-26 department in the permit.
24-27 (d) The department may charge a fee for issuing a permit
25-1 under this section in an amount equal to the amount charged for
25-2 registration under Section 76.044(a).
25-3 (e) The department may revoke an experimental use permit at
25-4 any time if the department finds that:
25-5 (1) the terms or conditions of the permit are being
25-6 violated; or
25-7 (2) the terms and conditions of the permit are
25-8 inadequate to avoid any unreasonable risk to man or the
25-9 environment, taking into account the economic, social, and
25-10 environmental costs and benefits of use of the pesticide.
25-11 SUBCHAPTER D. LICENSING OF DEALERS
25-12 Sec. 76.071. License Required. (a) A person may not
25-13 distribute in this state a restricted-use or state-limited-use
25-14 pesticide or regulated herbicide without a valid current pesticide
25-15 dealer license issued by the department.
25-16 (b) Except as otherwise provided by this section, a
25-17 pesticide dealer must obtain a license for each location in the
25-18 state that is used for distribution. If the person does not have a
25-19 place of business in this state, the person may obtain one license
25-20 for all out-of-state locations, but shall file as a condition to
25-21 licensing a designation of an agent for service of process as
25-22 provided by Section 76.042(d) of this code.
25-23 (c) A person must apply for a pesticide dealer license on
25-24 forms prescribed by the department.
25-25 Sec. 76.072. Expiration. A pesticide dealer license expires
25-26 on the second anniversary of the date of its granting or renewal
25-27 unless the department by rule adopts a system under which licenses
26-1 expire on specified dates during a [December 31 of each] year.
26-2 Sec. 76.073. Fees. (a) An application for a pesticide
26-3 dealer license must be accompanied by a [an annual] registration
26-4 fee, as fixed by the department.
26-5 (b) A person who fails to apply for renewal of a pesticide
26-6 dealer license on or before the expiration date of the license must
26-7 pay, in addition to the renewal fee, the late fee provided by
26-8 Section 12.024 of this code.
26-9 [(c) A person licensed as a dealer under Chapter 75 of this
26-10 code may not be required to pay an additional fee for the license
26-11 prescribed in this subchapter.]
26-12 Sec. 76.074. Display of Dealer License. (a) Each dealer
26-13 shall prominently display the pesticide dealer license in the
26-14 dealer's place of business.
26-15 (b) Failure to display a license as required by this section
26-16 is a ground for revocation of the license.
26-17 Sec. 76.075. Records. (a) A person required to obtain a
26-18 dealer's license by Section 76.071 shall record each distribution
26-19 of a restricted-use or state-limited-use pesticide and shall
26-20 maintain a copy of the record for at least two years after the date
26-21 of the distribution.
26-22 (b) The department shall adopt rules that prescribe the
26-23 information to be stated in the records required by this section.
26-24 (c) The department may require that a copy of the records
26-25 required by this section be submitted periodically to the
26-26 department. The copies submitted to the department are public
26-27 information.
27-1 (d) The department may revoke a dealer's license if the
27-2 licensee fails to submit a copy of a record as required under
27-3 Subsection (c) or makes false or fraudulent records, invoices, or
27-4 reports. [(a) A licensed pesticide dealer shall maintain for a
27-5 period of two years records of each restricted-use and
27-6 state-limited-use pesticide sold. The department shall prescribe
27-7 the information to be included in the records.]
27-8 [(b) The department may require a licensed pesticide dealer
27-9 to submit records to the department. Failure to submit a record
27-10 requested by the department is a ground for revocation of a
27-11 license.]
27-12 Sec. 76.076. DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION
27-13 OF LICENSE. (a) The department may deny an application for a
27-14 dealer's license if the applicant fails to comply with this
27-15 chapter. The department may revoke, modify, or suspend a license,
27-16 assess an administrative penalty, place on probation a person whose
27-17 license has been suspended, or reprimand a licensee for a violation
27-18 of this chapter or a rule adopted by the department under this
27-19 chapter.
27-20 (b) If a license suspension is probated, the department may
27-21 require the person to:
27-22 (1) report regularly to the department on matters that
27-23 are the basis of the probation; or
27-24 (2) limit business to the areas prescribed by the
27-25 department.
27-26 (c) [(a) The department may refuse to issue a pesticide
27-27 dealer license if the applicant fails to comply with this
28-1 subchapter.]
28-2 [(b) The department shall revoke, modify, or suspend a
28-3 license, assess an administrative penalty, place on probation a
28-4 person whose license has been suspended, or reprimand a licensee if
28-5 the licensee fails to comply with this subchapter or a rule adopted
28-6 by the department under this subchapter.]
28-7 [(c) If a license suspension is probated, the department may
28-8 require the person to:]
28-9 [(1) report regularly to the department on matters
28-10 that are the basis of the probation;]
28-11 [(2) limit practice to the areas prescribed by the
28-12 department; or]
28-13 [(3) continue or renew professional education until
28-14 the person attains a degree of skill satisfactory to the department
28-15 in those areas that are the basis of the probation.]
28-16 [(d)] If the department proposes to deny a person's
28-17 application for a pesticide dealer license or to revoke, modify, or
28-18 suspend a person's license, the person is entitled to a hearing
28-19 conducted under Section 12.032. The decision of the department is
28-20 appealable in the same manner as provided for contested cases under
28-21 Chapter 2001, Government Code.
28-22 Sec. 76.077. Exceptions. (a) This subchapter does not
28-23 apply to a manufacturer or formulator of a pesticide who does not
28-24 sell directly to the user.
28-25 (b) This subchapter does not apply to a licensed pesticide
28-26 applicator who:
28-27 (1) distributes restricted-use or state-limited-use
29-1 pesticides only as an integral part of the pesticide application
29-2 business; and
29-3 (2) dispenses the pesticides only through equipment
29-4 used in the pesticide application business.
29-5 (c) This subchapter does not apply to a federal, state,
29-6 county, or municipal agency that provides pesticides only for its
29-7 own programs.
29-8 SUBCHAPTER E. USE AND APPLICATION
29-9 Sec. 76.101. Coordination. (a) The department is the lead
29-10 agency in the regulation of pesticide use and application and is
29-11 responsible for coordinating activities of state agencies, except
29-12 as provided by Section 76.007(b) of this code and by Chapter 26 of
29-13 the Water Code. The department shall submit a state plan for the
29-14 licensing of pesticide applicators to the administrator of the
29-15 Environmental Protection Agency.
29-16 (b) The department shall coordinate, plan, and approve
29-17 training programs and shall use the public and private resources of
29-18 this state, including state universities, colleges, junior
29-19 colleges, community colleges, the Texas Agricultural Extension
29-20 Service, and the Texas Agricultural Experiment Station [experiment
29-21 station]. The department and the Texas Agricultural Extension
29-22 Service shall adopt a memorandum of understanding to jointly
29-23 coordinate, plan, and approve the training programs for private
29-24 applicators.
29-25 (c) The department shall make plans under this section on
29-26 the basis of convenience to applicants, thoroughness of preparation
29-27 and testing, and maximum economy in expenditures for this purpose.
30-1 The department shall make full use of grants-in-aid and cooperative
30-2 agreements in administering this subchapter.
30-3 (d)(1) Except as otherwise provided by this subsection, no
30-4 city, town, county, or other political subdivision of this state
30-5 shall adopt any ordinance, rule, or regulation regarding pesticide
30-6 sale or use.
30-7 (2) Nothing in this subsection shall be construed to
30-8 limit the authority of a city, town, or county to:
30-9 (A) encourage locally approved and provided
30-10 educational material concerning a pesticide;
30-11 (B) zone for the sale or storage of such
30-12 products;
30-13 (C) adopt fire or building regulations as
30-14 preventative measures to protect the public and emergency services
30-15 personnel from an accident or emergency involving such products,
30-16 including regulations governing the storage of such products or
30-17 governing fumigation and thermal insecticidal fogging operations;
30-18 (D) provide or designate sites for the disposal
30-19 of such products;
30-20 (E) route hazardous materials; or
30-21 (F) regulate discharge to sanitary sewer
30-22 systems.
30-23 (3) This subsection shall not prevent a city, town,
30-24 county, or any political subdivision from complying with any
30-25 federal or state law or regulation. This subsection shall not
30-26 prevent a city, town, county, or any political subdivision from
30-27 attaining or maintaining compliance with federal or state
31-1 environmental standards including Texas water quality standards. A
31-2 city, town, county, or other political subdivision may take any
31-3 action otherwise prohibited by this subsection in order to comply
31-4 with any federal requirements, to avoid any federal or state
31-5 penalties or fines, or to attain or maintain federal or state
31-6 environmental standards including Texas water quality standards.
31-7 [(4) Nothing in this subsection may be construed to
31-8 affect Chapter 75 of this code.]
31-9 Sec. 76.102. Agencies Responsible for Licensing Pesticide
31-10 Applicators. (a) The department shall license pesticide
31-11 applicators involved in the following license use categories:
31-12 (1) agricultural pest control, including animal pest
31-13 control;
31-14 (2) forest pest control;
31-15 (3) ornamental and turf pest control, except as
31-16 provided by the Texas Structural Pest Control Act, as amended
31-17 (Article 135b-6, Vernon's Texas Civil Statutes);
31-18 (4) seed treatments;
31-19 (5) right-of-way pest control;
31-20 (6) regulatory pest control;
31-21 (7) aquatic pest control; [and]
31-22 (8) demonstration pest control; and
31-23 (9) other license use categories as necessary to
31-24 comply with federal requirements. The department may not adopt
31-25 license use categories that are designated by statutes for
31-26 regulation by another agency.
31-27 (b) The Texas Department of Health shall license pesticide
32-1 applicators involved in the license use category of health-related
32-2 pest control.
32-3 Sec. 76.103. Program Contingent on Federal Funds. (a) The
32-4 licensing of commercial applicators, noncommercial applicators, and
32-5 private applicators is contingent on the availability of federal
32-6 funds to pay part of the costs of administering and enforcing the
32-7 program.
32-8 (b) If federal funds and other funds made available for this
32-9 program are not sufficient to pay all costs of administering and
32-10 enforcing the program, the department shall certify that fact and
32-11 discontinue the licensing of commercial applicators, noncommercial
32-12 applicators, and private applicators. The department shall publish
32-13 notice of the discontinuance of the program in the Texas Register.
32-14 (c) If sufficient funds become available after
32-15 discontinuance, the department shall certify the availability of
32-16 sufficient funds to pay all costs of administration and enforcement
32-17 of the program and shall resume the licensing of commercial
32-18 applicators, noncommercial applicators, and private applicators.
32-19 The department shall publish notice of resumption of the program in
32-20 the Texas Register.
32-21 (d) The department shall determine the effective date of
32-22 discontinuance or resumption of the program, but the date may not
32-23 be before the date of publication of notice in the Texas Register.
32-24 (e) During any period in which the program has been
32-25 discontinued, a person is not required to have a license provided
32-26 by this subchapter in order to use pesticides, but a person may be
32-27 prosecuted for acts committed or omitted when the program was in
33-1 effect.
33-2 Sec. 76.104. Department [AGENCY] RULES FOR APPLICATION OF A
33-3 PESTICIDE. (a) The department [head of each regulatory agency]
33-4 may, after notice and public hearing, adopt rules to carry out the
33-5 provisions of this subchapter [for which the agency is
33-6 responsible].
33-7 (b) Rules adopted under this section may:
33-8 (1) prescribe methods to be used in the application of
33-9 a restricted-use or state-limited-use pesticide;
33-10 (2) relate to the time, place, manner, method, amount,
33-11 or concentration of pesticide application or to the materials used
33-12 in pesticide application; and
33-13 (3) restrict or prohibit use of a restricted-use or
33-14 state-limited-use pesticide in designated areas during specific
33-15 periods of time.
33-16 (c) The department [A regulatory agency] may adopt a rule
33-17 under this section only after consideration of precautions or
33-18 restrictions necessary to prevent unreasonable risk to man or the
33-19 environment, taking into account the economic, social, and
33-20 environmental costs and benefits of the use of the pesticide.
33-21 (d) The department shall adopt worker protection standards
33-22 for pesticides if there is no federal worker protection standard.
33-23 The department may adopt other rules for the protection of the
33-24 health, safety, and welfare of farm workers and pesticide handlers.
33-25 Sec. 76.105. License Required. (a) Except as provided by
33-26 Section 76.003(e), a [A] person may not purchase or use a
33-27 restricted-use or state-limited-use pesticide unless the person is:
34-1 (1) licensed as a commercial applicator, noncommercial
34-2 applicator, or private applicator and authorized by the license to
34-3 purchase or use the restricted-use or state-limited-use pesticide
34-4 in the license use categories covering the proposed pesticide use;
34-5 (2) an individual acting under the direct supervision
34-6 of a licensed applicator, except as provided in Subsection (b) of
34-7 this section and in Sections 76.003(e) and 76.116(f); or
34-8 (3) a certified private applicator as defined in
34-9 Section 76.112(j) of this code.
34-10 (b) An individual is under the direct supervision of a
34-11 licensed noncommercial or a licensed private applicator if the
34-12 individual is acting under the instructions and control of a
34-13 licensed noncommercial or a licensed private applicator who is
34-14 responsible for the actions of the individual and who is available
34-15 if and when needed. A licensed applicator may not supervise an
34-16 applicator whose license or certificate is under suspension or
34-17 revocation. The licensed noncommercial or licensed private
34-18 applicator is not required to be physically present at the time and
34-19 place of the pesticide application unless the label of the applied
34-20 pesticide states that the presence of the licensed applicator is
34-21 required.
34-22 (c) An individual is under the direct supervision of a
34-23 licensed commercial applicator if the individual is acting under
34-24 the instructions and control of a licensed commercial applicator
34-25 who is responsible for the actions of the individual and who is
34-26 continuously physically present at the time and place of the
34-27 pesticide application.
35-1 (d) A licensed applicator is responsible for assuring that
35-2 the person working under the licensee's direct supervision is
35-3 knowledgeable of the label requirements and rules and regulations
35-4 governing the use of [the particular] pesticides [being used by the
35-5 individual]. A licensed applicator satisfies the requirements of
35-6 this subsection if the person working under the licensee's direct
35-7 supervision has been trained as a handler under the federal worker
35-8 protection standard [attends a program conducted by the department
35-9 that is designed to make the person knowledgeable of the label
35-10 requirements and rules and regulations governing the use of
35-11 pesticides].
35-12 (e) A person who is authorized under this chapter to use
35-13 restricted-use or state-limited-use pesticides shall comply with
35-14 all applicable federal and state rules, regulations, and court
35-15 orders regarding the use of restricted-use or state-limited-use
35-16 pesticides.
35-17 (f) Except as provided by Section 76.003(e), a person may
35-18 not purchase a restricted-use or state-limited-use pesticide unless
35-19 the person is a licensed or a certified applicator or authorized by
35-20 a licensed or certified applicator to purchase or take delivery for
35-21 the applicator.
35-22 (g) [(f)] The other provisions of this section
35-23 notwithstanding, the department may adopt rules or establish
35-24 programs that the U.S. Environmental Protection Agency or another
35-25 federal agency requires as a condition for receiving:
35-26 (1) approval to authorize use of certain
35-27 restricted-use or state-limited-use pesticides;
36-1 (2) federal funding for licensing or certification of
36-2 pesticide applicators;
36-3 (3) federal funding for pesticide law enforcement
36-4 efforts; or
36-5 (4) other federal funding related to pesticide risk
36-6 reduction.
36-7 (h) [(g)] The other provisions of this chapter
36-8 notwithstanding, if the U.S. Environmental Protection Agency or
36-9 another federal agency imposes on the state standards for
36-10 certification of commercial, noncommercial, or private pesticide
36-11 applicators, the department may adopt by rule the federal standards
36-12 for each classification of applicators for which the federal
36-13 standards are imposed.
36-14 Sec. 76.106. Classification of Licenses. (a) The
36-15 department [head of each regulatory agency] may classify commercial
36-16 applicator and noncommercial applicator licenses under
36-17 subcategories of license use categories according to the subject,
36-18 method, or place of pesticide application.
36-19 (b) The department [A regulatory agency head] shall
36-20 establish separate testing requirements for licensing in each
36-21 license use category for which the department [agency] is
36-22 responsible and may establish separate testing requirements for
36-23 licensing in subcategories within a license use category.
36-24 (c) The department [Each regulatory agency] may charge a
36-25 testing fee, as fixed by the department [head of the regulatory
36-26 agency], for testing in each license use category.
36-27 Sec. 76.107. Licensing by More Than One Agency. (a) A
37-1 person who wants to be licensed as a pesticide applicator under
37-2 license use categories regulated by more than one regulatory agency
37-3 may do so by paying a single license fee to the agency regulating
37-4 the person's primary business and meeting licensing requirements
37-5 for each category for which the person desires licensing.
37-6 (b) A person licensed under this section must pay testing
37-7 fees required by each regulatory agency.
37-8 Sec. 76.108. Commercial Applicator License. (a) A person
37-9 who operates a business or is an employee of a business that
37-10 applies state-limited-use or restricted-use pesticides to the land
37-11 of another person for hire or compensation and who is required to
37-12 be licensed by Section 76.105 of this code shall apply to the
37-13 department [appropriate regulatory agency] for a commercial
37-14 applicator license issued for the license use categories and
37-15 subcategories in which the pesticide application is to be made.
37-16 (b) A person shall apply for an original or renewal
37-17 commercial applicator license on forms prescribed by the department
37-18 [regulatory agency]. The application shall include information as
37-19 required by rule of the department [head of the agency] and must be
37-20 accompanied by an annual license fee, as fixed by the department
37-21 [head of the agency].
37-22 (c) The department [head of a regulatory agency] may not
37-23 issue an original commercial applicator license before the
37-24 applicant has:
37-25 (1) filed with the department [agency] evidence of
37-26 financial responsibility as required by Section 76.111 of this
37-27 code; and
38-1 (2) passed an examination under Section 76.110 of this
38-2 code.
38-3 (d) The department [head of a regulatory agency] may not
38-4 issue a commercial applicator license if it has been determined
38-5 that:
38-6 (1) the applicant has been convicted of a felony
38-7 involving moral turpitude in the last five years;
38-8 (2) the applicant has had a license issued under this
38-9 subchapter revoked within the last two years;
38-10 (3) the applicant, or the applicant's representative
38-11 if the applicant is a business, has been unable to satisfactorily
38-12 fulfill licensing requirements; or
38-13 (4) the applicant for any other reason cannot be
38-14 expected to be able to fulfill the provisions of this subchapter
38-15 applicable to the license use category for which application is
38-16 made.
38-17 (e) An individual to whom a commercial applicator license is
38-18 issued is authorized to purchase, use, and supervise the use of
38-19 restricted-use and state-limited-use pesticides in the license use
38-20 categories and subcategories in which the individual is licensed.
38-21 (f) [If a license is issued in the name of a business, the
38-22 business must have a licensed applicator employed at all times.
38-23 Failure to have a licensed applicator employed is a ground for
38-24 revocation of a business commercial applicator license.]
38-25 [(g)] As a condition to issuance of a commercial applicator
38-26 license, an applicant located outside this state shall file with
38-27 the department [regulatory agency] a written instrument designating
39-1 a resident agent for service of process in actions taken in the
39-2 administration and enforcement of this chapter. Instead of
39-3 designating a resident agent, the applicant may designate in
39-4 writing the secretary of state as the recipient of service of
39-5 process for the applicant in this state.
39-6 Sec. 76.109. Noncommercial Applicator License. (a) A
39-7 person who is required to be licensed under Section 76.105 of this
39-8 code but who does not qualify as a commercial applicator or a
39-9 private applicator shall apply to the department [appropriate
39-10 regulatory agency] for a noncommercial applicator license issued
39-11 for the license use categories and subcategories in which the
39-12 pesticide application is to be made.
39-13 (b) A person shall apply for an original or renewal
39-14 noncommercial applicator license on forms prescribed by the
39-15 department [regulatory agency]. A nongovernmental applicant shall
39-16 include with the application an annual license fee, as fixed by the
39-17 department [head of the regulatory agency]. The department [A
39-18 regulatory agency] may not charge a governmental entity applicant a
39-19 license fee.
39-20 (c) The department [head of a regulatory agency] may not
39-21 issue an original noncommercial applicator license before the
39-22 applicant has passed an examination under Section 76.110 of this
39-23 code.
39-24 (d) An individual to whom a noncommercial applicator license
39-25 is issued is authorized to purchase, use, and supervise the use of
39-26 restricted-use and state-limited-use pesticides in the license use
39-27 categories and subcategories in which the individual is licensed.
40-1 (e) If a license is issued in the name of a governmental
40-2 entity, the entity must have a licensed applicator employed at all
40-3 times. Failure to have a licensed applicator employed is a ground
40-4 for revocation of a governmental entity noncommercial applicator
40-5 license.
40-6 (f) As a condition to issuance of a noncommercial applicator
40-7 license, an applicant located outside this state shall file with
40-8 the department [regulatory agency] a written instrument designating
40-9 a resident agent for service of process in actions taken in the
40-10 administration and enforcement of this chapter. Instead of
40-11 designating a resident agent, the applicant may designate in
40-12 writing the secretary of state as the recipient of service of
40-13 process for the applicant in this state.
40-14 Sec. 76.110. Commercial and Noncommercial Applicator
40-15 Examination; Reciprocal Agreements. (a) Each person applying for
40-16 a license as a commercial applicator or a noncommercial applicator
40-17 must pass an examination demonstrating that the person:
40-18 (1) is properly qualified to perform functions
40-19 associated with pesticide application to a degree directly related
40-20 to the nature of the activity and the associated responsibility;
40-21 and
40-22 (2) has knowledge of the use and effects of
40-23 restricted-use and state-limited-use pesticides in the license use
40-24 categories and subcategories in which the person is to be licensed.
40-25 (b) Not later than the 30th day after the date on which a
40-26 licensing examination is administered under this section, the
40-27 department [appropriate regulatory agency] shall notify each
41-1 examinee of the results of the examination. However, if an
41-2 examination is graded or reviewed by a national testing service,
41-3 the department [appropriate regulatory agency] shall notify
41-4 examinees of the results of the examination not later than the 14th
41-5 day after the date on which the department [appropriate regulatory
41-6 agency] receives the results from the testing service. If the
41-7 notice of examination results graded or reviewed by a national
41-8 testing service will be delayed for longer than 90 days after the
41-9 examination date, the department [appropriate regulatory agency]
41-10 shall notify the examinee of the reason for the delay before the
41-11 90th day. The department [appropriate regulatory agency] may
41-12 require a testing service to notify examinees of the results of an
41-13 examination.
41-14 (c) If requested in writing by the person who fails a
41-15 licensing examination administered under this section, the
41-16 department [appropriate regulatory agency] shall furnish the person
41-17 with an analysis of the person's performance on the examination.
41-18 (d) The department [appropriate regulatory agency] may waive
41-19 any prerequisite to obtaining a license for an applicant after
41-20 reviewing the applicant's credentials and determining that the
41-21 applicant holds a valid license from another state that has license
41-22 requirements substantially equivalent to those of this state.
41-23 Sec. 76.111. [Commercial] Applicator Businesses; Proof of
41-24 Financial Responsibility. (a) In this section "applicator
41-25 business" means a person who applies a state-limited-use or
41-26 restricted-use pesticide to the land of another for compensation
41-27 and who:
42-1 (1) is a licensed commercial applicator; or
42-2 (2) employs at least one licensed commercial
42-3 applicator.
42-4 (b) This section does not apply to an employee or agent of
42-5 an applicator business.
42-6 (c) Except as otherwise provided by this section, each
42-7 applicator business [applicant for a commercial applicator license]
42-8 shall retain for the department's inspection [file with the
42-9 regulatory agency issuing the license:]
42-10 [(1) a bond executed by the applicant as principal and
42-11 by a corporate surety licensed to do business in Texas as surety;
42-12 or]
42-13 [(2)] a liability insurance policy, [or] certification
42-14 of a policy, or other proof of financial responsibility considered
42-15 acceptable by the department protecting persons who may suffer
42-16 damages as a result of the operations of the applicator business,
42-17 its employees, and its agents [applicant].
42-18 [(b) If an applicant cannot reasonably obtain insurance
42-19 coverage or a bond as specified by Subsection (f) of this section,
42-20 the regulatory agency shall accept a certificate of deposit or a
42-21 letter of credit that meets the requirements of Subsection (c)(1)
42-22 and rules adopted under Subsection (e) of this section.]
42-23 [(c) If the State Board of Insurance determines after giving
42-24 notice to the regulatory agency that the liability insurance policy
42-25 required by Subsection (a)(2) of this section is not generally and
42-26 reasonably available to commercial pesticide applicators, then in
42-27 lieu of the requirements of Subsection (a) of this section, an
43-1 applicant for a commercial applicator license may:]
43-2 [(1) tender from a state or federal financial
43-3 institution whose deposits are insured by the Federal Deposit
43-4 Insurance Corporation or by the Federal Savings and Loan Insurance
43-5 Corporation a certificate of deposit or letter of credit in the
43-6 amount prescribed by Subsection (f) of this section, made payable
43-7 to the regulatory agency and issued for the purpose of protecting
43-8 persons who may suffer damages as a result of the operations of the
43-9 applicant;]
43-10 [(2) file property damage and personal injury
43-11 insurance or certification of such insurance that is generally and
43-12 reasonably available as determined by the State Board of Insurance;
43-13 or]
43-14 [(3) comply with other proof of financial
43-15 responsibility requirements adopted by rule of the regulatory
43-16 agency under this subchapter.]
43-17 (d) The proof of financial responsibility required by this
43-18 section is not required to apply to damages or injury to
43-19 agricultural crops, plants, or land being worked on by the
43-20 applicator business [applicant].
43-21 (e) [The proof of financial responsibility required by this
43-22 section must be approved by the regulatory agency and conditioned
43-23 on compliance with the requirements of this chapter and rules
43-24 adopted under this chapter.]
43-25 [(f)] Except as otherwise provided by this section, the
43-26 amount of the proof of financial responsibility may not be less
43-27 than $100,000 for property damage and may not be less than $100,000
44-1 for bodily injury to one person and an aggregate of $200,000 for
44-2 bodily injury to more than one person. The department [head of a
44-3 regulatory agency] by rule may require different amounts of
44-4 coverage for different classifications of operations under this
44-5 chapter. The [At all times during the license period, the]
44-6 coverage must at all times be maintained at not less than the
44-7 amount set by the department [agency head] or the Texas Department
44-8 [State Board] of Insurance[, as applicable].
44-9 [(g) At least 10 days before a reduction requested by a
44-10 licensee or a cancellation of a bond or liability insurance policy,
44-11 the party taking the action shall notify the head of the
44-12 appropriate regulatory agency. If the party does not give that
44-13 notice, the liability of the surety or insurer is limited to the
44-14 bond or liability insurance policy.]
44-15 (f) [(h)] The department [head of a regulatory agency] may
44-16 accept a [bond or] liability insurance policy in the proper sum
44-17 which has a deductible clause in an amount of not more than $1,000
44-18 for the total amount of the [bond or] liability insurance policy
44-19 required by this section. If the applicator business [applicant]
44-20 has not satisfied the requirement of the deductible amount in any
44-21 prior legal claim, the department [an agency head] may not accept a
44-22 [bond or] policy with a deductible clause unless the applicator
44-23 business [applicant] furnishes the department [agency] with a
44-24 surety bond that satisfies the amount of the deductible clause as
44-25 to all claims that may arise as a result of the [applicant's]
44-26 operation of the applicator business.
44-27 (g) An applicator business shall cease state-limited-use or
45-1 restricted-use pesticide application operations during a period in
45-2 which the applicator business is unable to provide adequate proof
45-3 of financial responsibility under Subsection (e).
45-4 [(i) The department shall exempt a commercial applicator
45-5 from the requirements of showing proof of financial responsibility
45-6 under this section if the applicator agrees:]
45-7 [(1) to a license for use of ground application
45-8 equipment only; and]
45-9 [(2) to a license that limits the application to only
45-10 those herbicides determined by the department not to create a
45-11 substantial risk of drift because of volatility.]
45-12 [(j) Should the surety furnished under this section become
45-13 insufficient or otherwise unsatisfactory, a licensee shall, on
45-14 notice of the insufficiency or other defect, immediately file a new
45-15 bond, liability insurance policy, or any other proof of financial
45-16 responsibility as authorized by rule of the regulatory agency. A
45-17 licensee may not operate as a commercial applicator during an
45-18 uncovered period. Failure to file a bond, or liability insurance
45-19 policy, other proof of authorized financial responsibility or
45-20 failure to maintain the surety in the required amount is a ground
45-21 for suspension or revocation of a commercial applicator license.]
45-22 [(k) The regulatory agency by rule may prescribe acceptable
45-23 proof of financial responsibility and appropriate procedures to
45-24 carry out the purposes of this section. The regulatory agency may
45-25 adopt rules governing the conditions and handling of certificates
45-26 of deposit and letters of credit, but may not disburse funds or
45-27 release a certificate or letter except by consent of the commercial
46-1 applicator or pursuant to court order.]
46-2 Sec. 76.112. Private Applicator. (a) A person is a private
46-3 applicator if the person uses or supervises the use of a
46-4 restricted-use or state-limited-use pesticide for the purpose of
46-5 producing an agricultural commodity:
46-6 (1) on property owned or rented by the person or the
46-7 person's employer or under the person's general control; or
46-8 (2) on the property of another person if applied
46-9 without compensation other than the trading of personal services,
46-10 or services related to agricultural production including the use of
46-11 equipment, between producers of agricultural commodities.
46-12 (b) A private applicator is required to be either licensed
46-13 or certified to use restricted-use or state-limited-use pesticides.
46-14 (c) An employee qualifies as a private applicator under
46-15 [Subdivision (1) of] Subsection (a)(1) of this section only if he
46-16 is employed to perform other duties related to agricultural
46-17 production and provide labor for the pesticide application but does
46-18 not provide the necessary equipment or pesticide.
46-19 (d) A private applicator who is required to be licensed by
46-20 Section 76.105 of this code shall apply to the department
46-21 [appropriate regulatory agency] for a private applicator license.
46-22 (e) A person shall apply for an original or renewal private
46-23 applicator license on forms prescribed by the department
46-24 [regulatory agency]. The application shall include information as
46-25 required by department [agency] rule and must be accompanied by a
46-26 fee, as fixed by the department [head of the regulatory agency].
46-27 (f) The department [head of a regulatory agency] may not
47-1 issue an original private applicator license before the applicant
47-2 has attended a training course conducted by the Texas Agricultural
47-3 Extension Service or another training course approved by the
47-4 department. The department shall approve appropriate training
47-5 courses developed under the coordination of the Texas Agricultural
47-6 Extension Service and to be conducted by other governmental
47-7 agencies or nongovernmental entities. The training course shall
47-8 cover the use, effects, and risks of restricted-use and
47-9 state-limited-use pesticides.
47-10 (g) The department [head of a regulatory agency] may not
47-11 issue a private applicator license if the applicant has had a
47-12 license issued under this subchapter revoked within the last two
47-13 years.
47-14 (h) An individual to whom a private applicator license is
47-15 issued is authorized to purchase, use, and supervise the use of
47-16 restricted-use and state-limited-use pesticides in all license use
47-17 categories and subcategories for the purpose of producing an
47-18 agricultural commodity on property described by Subsection (a)(1)
47-19 or (a)(2) of this section.
47-20 (i) As a condition to issuance of a private applicator
47-21 license, an applicant located outside this state shall file with
47-22 the department [regulatory agency] a written instrument designating
47-23 a resident agent for service of process in actions taken in
47-24 administration and enforcement of this chapter. Instead of
47-25 designating a resident agent, the applicant may designate in
47-26 writing the secretary of state as the recipient of service of
47-27 process for the applicant in this state.
48-1 (j) For purposes of this chapter, a certified private
48-2 applicator is a private applicator who has been previously
48-3 certified under the department's voluntary certification program
48-4 and who holds a private applicator certificate dated prior to
48-5 January 10, 1989. A certified private applicator is authorized to
48-6 use restricted-use and state-limited-use pesticides in all license
48-7 use categories and subcategories for the purpose of producing an
48-8 agricultural commodity on property described by Subsection (a)(1)
48-9 or (a)(2) of this section. A certified private applicator may not
48-10 supervise the use of restricted-use and state-limited-use
48-11 pesticides.
48-12 Sec. 76.113. Expiration and Renewal of Licenses. (a) Each
48-13 commercial applicator or noncommercial applicator license expires
48-14 on the last day of February of the year following the year in which
48-15 it was issued.
48-16 (b) Each private applicator license expires on the last day
48-17 of February of the fifth year following the year in which it was
48-18 issued.
48-19 (c) Except as provided by Subsection (d) of this section, a
48-20 person having a valid license issued under this subchapter may
48-21 renew the license for another term without retesting by paying to
48-22 the department [regulatory agency] the license fee required by this
48-23 subchapter. A person who fails to apply for renewal of a license
48-24 on or before the expiration date must pay, in addition to the
48-25 annual license fee, the late fee provided by Section 12.024 of this
48-26 code.
48-27 (d) A licensee must undertake training, submit to retesting,
49-1 or both, before renewal of a license if the department [head of the
49-2 agency] determines that additional knowledge is required for
49-3 renewal.
49-4 Sec. 76.114. Records. (a) The department [A regulatory
49-5 agency] shall require each commercial [applicator] and
49-6 noncommercial applicator licensee to maintain records of all
49-7 pesticide applications [the licensee's use of pesticides]. The
49-8 department may require each commercial or noncommercial applicator
49-9 licensee to keep records of the licensee's application of a
49-10 specific restricted-use or state-limited-use pesticide and may
49-11 require those records to be kept separate from other business
49-12 records. The department [regulatory agency] by rule shall
49-13 prescribe the information to be entered into [included in] the
49-14 records.
49-15 (b) Each private applicator shall maintain records of
49-16 regulated herbicides applied in a regulated county [A regulatory
49-17 agency may require a commercial applicator and noncommercial
49-18 applicator licensee to keep records of the licensee's application
49-19 of a specific restricted-use or state-limited-use pesticide and may
49-20 require those records to be kept separate from other business
49-21 records].
49-22 (c) A licensee shall keep records required under this
49-23 section for a period of two years from the date of the pesticide
49-24 application. The licensee shall keep these records accessible and
49-25 available for copying and shall store them in a location suitable
49-26 to preserve their physical integrity.
49-27 (d) On written request of the department [regulatory
50-1 agency], a licensee shall furnish the department [agency] a copy of
50-2 any requested record pertaining to the application of pesticides.
50-3 The department may require all persons who apply a regulated
50-4 herbicide to submit periodically to the department a copy of the
50-5 records required by this section.
50-6 Sec. 76.115. [Registration and] Inspection of Equipment.
50-7 (a) The department may inspect [Each regulatory agency shall
50-8 provide for the registration and inspection of] equipment used in
50-9 the [commercial] application of a restricted-use or
50-10 state-limited-use pesticide.
50-11 (b) The department [A regulatory agency] may require repairs
50-12 or alterations of equipment before further use.
50-13 (c) The department by rule may:
50-14 (1) provide requirements for equipment used to apply
50-15 regulated herbicides; and
50-16 (2) regulate or prohibit the use of certain equipment
50-17 in the application of regulated herbicides if that use would be
50-18 hazardous in an area of the state. [The head of a regulatory
50-19 agency by rule shall adopt standards that must be met before
50-20 equipment may be registered.]
50-21 [(d) Each piece of registered equipment shall be identified
50-22 by a license plate or decal furnished by a regulatory agency at no
50-23 cost to the licensee. The license plate or decal must be attached
50-24 to the equipment in a manner and location prescribed by the
50-25 regulatory agency.]
50-26 Sec. 76.116. Suspension, Modification, or Revocation of
50-27 License. (a) The department may refuse to renew, [head of the
51-1 regulatory agency that licensed or certified an applicator may]
51-2 suspend, modify, or revoke a [any provision in the] license or
51-3 certificate, assess an administrative penalty, place on probation a
51-4 person whose license or certificate has been suspended, [or]
51-5 reprimand a licensee or certificate holder, or take a combination
51-6 of those actions if the department [head of the agency] finds that
51-7 the licensee or certificate holder has:
51-8 (1) made a pesticide recommendation or application
51-9 inconsistent with the pesticide's labeling or with the restrictions
51-10 on the use of the pesticide imposed by the state or the
51-11 Environmental Protection Agency;
51-12 (2) operated in a faulty, careless, or negligent
51-13 manner;
51-14 (3) refused, or after notice, failed to comply with an
51-15 applicable provision of this chapter, a rule adopted under this
51-16 chapter, or a lawful order of the commissioner [head of a
51-17 regulatory agency by which the licensee is licensed];
51-18 (4) refused or neglected to keep and maintain the
51-19 records required by this chapter or to make reports when and as
51-20 required by this chapter;
51-21 (5) failed to maintain a [bond or] policy of insurance
51-22 as required by this chapter;
51-23 (6) made false or fraudulent records, invoices, or
51-24 reports;
51-25 (7) used fraud or misrepresentation in making an
51-26 application for a license or renewal of a license; or
51-27 (8) aided or abetted a certified, licensed, or an
52-1 unlicensed person to evade the provisions of this chapter,
52-2 conspired with a certified, licensed, or an unlicensed person to
52-3 evade the provisions of this chapter, or allowed the licensee's
52-4 license or the certificate holder's certificate to be used by
52-5 another person.
52-6 (b) The department [A regulatory agency] may temporarily
52-7 suspend a license or certificate under this section for not more
52-8 than 10 days after giving the licensee or certificate holder
52-9 written notice of noncompliance.
52-10 (c) If a license or certificate suspension is probated, the
52-11 department [regulatory agency] may require the person to:
52-12 (1) report regularly to the department [agency] on
52-13 matters that are the basis of the probation;
52-14 (2) limit practice to the areas prescribed by the
52-15 department [agency]; or
52-16 (3) continue or renew professional education until the
52-17 person attains a degree of skill satisfactory to the department
52-18 [agency] in those areas that are the basis of the probation.
52-19 (d) Except for a temporary suspension under Subsection (b)
52-20 of this section, if the [regulatory agency, except for the]
52-21 department [,] proposes to not renew, suspend, modify, or revoke a
52-22 person's license or certificate, the person is entitled to a
52-23 hearing before a hearings officer designated by the department
52-24 [agency]. The department [agency] shall prescribe procedures by
52-25 which all decisions to not renew, suspend, modify, or revoke are
52-26 appealable to the commissioner [governing officer or board of the
52-27 agency].
53-1 (e) Except for a temporary suspension under Subsection (b)
53-2 of this section, if the department proposes to not renew, suspend,
53-3 modify, or revoke a person's license or certificate, the person is
53-4 entitled to a hearing conducted as provided under Section 12.032.
53-5 The decision of the department is appealable in the same manner as
53-6 provided for contested cases under Chapter 2001, Government Code.
53-7 (f) An applicator whose license or certificate is under
53-8 suspension or revocation by the department may not apply
53-9 restricted-use or state-limited-use pesticides under the direct
53-10 supervision of another licensed applicator during that period of
53-11 suspension or revocation.
53-12 Sec. 76.117. Property Owner Use. This chapter does not
53-13 prohibit a property owner from using in the property owner's house,
53-14 lawn, or garden a pesticide that is labeled for that use, other
53-15 than a pesticide that may be registered or [and] classified for use
53-16 only by certified applicators.
53-17 SUBCHAPTER F. STORAGE AND DISPOSAL
53-18 Sec. 76.131. Rules. (a) The department may adopt rules
53-19 governing the storage and disposal of pesticides and pesticide
53-20 containers for the purpose of:
53-21 (1) preventing injury from storage or disposal to man,
53-22 vegetation, crops, or animals; and
53-23 (2) preventing any water [waterway] pollution that is
53-24 harmful to man or wildlife provided, however, that such rules be
53-25 consistent with and not less stringent than Texas Natural Resource
53-26 Conservation Commission rules adopted under Chapter 26 of the Water
53-27 Code.
54-1 (b) A person may not store or dispose of a pesticide in
54-2 violation of a rule adopted by the department under this section.
54-3 (c) Applicators and other entities covered by this chapter
54-4 who normally store products listed under FIFRA in an amount that
54-5 exceeds 55 gallons, 500 pounds, or a lesser amount the department
54-6 determines by rule for certain highly toxic or dangerous chemicals
54-7 covered by this chapter, within one-quarter mile of a residential
54-8 area composed of three or more private dwellings for more than 72
54-9 hours shall provide to the fire chief of the fire department having
54-10 jurisdiction over the storage place, in writing, the name and
54-11 telephone number of the applicator or a knowledgeable
54-12 representative of the applicator or other entity storing the
54-13 product who can be contacted for further information or contacted
54-14 in case of emergency.
54-15 (d) On request, each applicator or entity shall provide to
54-16 the fire chief having jurisdiction over the storage place a copy of
54-17 a list of pesticides stored by the applicator or entity. The
54-18 applicator or other entity shall notify the fire chief of any
54-19 significant changes that occur relating to the stored pesticides if
54-20 requested by the fire chief in writing.
54-21 (e) The fire chief having jurisdiction over the storage
54-22 place or the fire chief's representative, on request, shall be
54-23 permitted to conduct on-site inspections of the pesticides stored
54-24 for the sole purpose of preparing fire department activities in
54-25 case of an emergency.
54-26 (f) On request, the fire chief having jurisdiction over the
54-27 storage place shall make the stored pesticide list available to
55-1 members of the fire department having jurisdiction over the
55-2 workplace and to personnel outside the fire department who are
55-3 responsible for preplanning emergency activities, but may not
55-4 otherwise distribute the information without approval of the
55-5 applicator.
55-6 SUBCHAPTER G. HERBICIDES
55-7 Sec. 76.141. REGULATED HERBICIDES. (a) After a public
55-8 hearing on the issue, and in accordance with Subsection (b), the
55-9 department by rule may adopt a list of regulated herbicides for the
55-10 state or for one or more designated areas in the state.
55-11 (b) The department may include a herbicide on the list of
55-12 regulated herbicides if the department determines that, if used as
55-13 directed or in accordance with widespread and commonly recognized
55-14 practice, the herbicide requires additional restrictions to prevent
55-15 a hazard to desirable vegetation caused by drift or an uncontrolled
55-16 application.
55-17 (c) A person may not distribute a regulated herbicide unless
55-18 the person holds a dealer's license issued by the department.
55-19 Sec. 76.142. APPLICATION OF REGULATED HERBICIDE. (a) If a
55-20 person applies a regulated herbicide, the person shall act in
55-21 accordance with each applicable rule adopted by the department,
55-22 including a rule adopted under this subchapter.
55-23 (b) If a regulated herbicide is applied by a commercial
55-24 applicator, the person in control of the crop or land to which the
55-25 regulated herbicide is applied and the commercial applicator are
55-26 jointly responsible for ensuring that the application is in
55-27 compliance with this chapter and each applicable rule adopted by
56-1 the department.
56-2 (c) If the department finds that an application of a
56-3 regulated herbicide is hazardous to crops or valuable plants in an
56-4 area, the department may prohibit the application of a regulated
56-5 herbicide in that area for any period during which the hazard
56-6 exists.
56-7 Sec. 76.143. COUNTY HERBICIDE REGULATIONS. (a) If the
56-8 commissioners court of a county determines that a valuable crop or
56-9 vegetation susceptible to being adversely affected by the
56-10 application of a regulated herbicide exists in an area of the
56-11 county and that a departmental rule adopted or prohibition
56-12 prescribed under Section 76.141 or 76.142 not currently applicable
56-13 to the area should apply to the area, the commissioners court may
56-14 enter an order in the minutes of the court under which the
56-15 department's rule or prohibition under Section 76.141 or 76.142
56-16 becomes effective in the specified area of the county beginning
56-17 January 1 of the following year.
56-18 (b) If the commissioners court of a county determines that
56-19 there is no longer a valuable crop or vegetation susceptible to
56-20 being adversely affected by the application of a regulated
56-21 herbicide in the specified area of the county, the court may
56-22 rescind its order under Subsection (a) effective January 1 of the
56-23 following year.
56-24 (c) The department shall adopt rules concerning the use of a
56-25 regulated herbicide in a county in which the commissioners court
56-26 has entered an order under Subsection (a) of this section.
56-27 (d) The department may immediately suspend a rule of the
57-1 department regarding the application dates of a regulated herbicide
57-2 in an area of a county if:
57-3 (1) the commissioners court of the county established
57-4 the applicability of the rule by adopting an order as provided by
57-5 Subsection (a);
57-6 (2) the commissioners court requests that the
57-7 department immediately suspend the rule; and
57-8 (3) the department determines that an imminent threat
57-9 to agricultural interests exists in the county and if that threat
57-10 is not immediately addressed by a suspension of the department's
57-11 rule a significant economic loss will result.
57-12 (e) Before the commissioners court of a county may enter an
57-13 order under this section, the commissioners court shall hold a
57-14 hearing to determine whether the order should be issued. Before
57-15 the 10th day before the date on which the hearing is to be held,
57-16 the commissioners court shall publish notice of the hearing in at
57-17 least one newspaper in the county.
57-18 (f) The commissioners court shall transcribe the hearing,
57-19 and make findings of fact based on the hearing and conclusions of
57-20 law to support its order in the manner prescribed for a final order
57-21 or decision in a contested case under Chapter 2001, Government
57-22 Code.
57-23 (g) Before the 21st day after the date on which an order
57-24 under Subsection (a) is entered, an interested person may appeal
57-25 the order to a district court in the county to test the
57-26 reasonableness of the basis for the commissioners court order. The
57-27 provisions of Subchapter G, Chapter 2001, Government Code, that
58-1 apply to the judicial review of a contested case under the
58-2 substantial evidence rule apply to the appeal, except that the
58-3 appeal is brought in a district court for the county in which the
58-4 appealed order applies. An appeal may be taken from the district
58-5 court as in other civil cases.
58-6 (h) The commissioners court of the county shall notify the
58-7 department of a change in the status of a county or a portion of a
58-8 county under this section.
58-9 SUBCHAPTER H [G]. ENFORCEMENT
58-10 Sec. 76.151. Entry Power. (a) For the purpose of
58-11 inspection, examination, or sampling, the department is entitled to
58-12 enter at reasonable hours any building or place owned, controlled,
58-13 or operated by a registrant or dealer if from probable cause it
58-14 appears that the building or place contains a pesticide.
58-15 (b) The department [A regulatory agency] is entitled to
58-16 enter any public or private premises at reasonable times to:
58-17 (1) inspect any equipment authorized or required to be
58-18 inspected under this chapter or to inspect the premises on which
58-19 the equipment is kept or stored;
58-20 (2) inspect or sample land exposed or reported to be
58-21 exposed to a pesticide;
58-22 (3) inspect an area where a pesticide is disposed of
58-23 or stored; or
58-24 (4) observe the use and application of a
58-25 restricted-use or state-limited-use pesticide.
58-26 (c) If the department [a regulatory agency] is denied access
58-27 to any land to which access was sought at a reasonable time for any
59-1 of the purposes listed in Subsection (b) of this section, the
59-2 department [head of the regulatory agency] may apply to a
59-3 magistrate for a warrant authorizing access to the land for any of
59-4 those purposes. On a showing of probable cause to believe that a
59-5 violation of a rule relating to a purpose listed in Subsection (b)
59-6 of this section has occurred, the magistrate shall issue the search
59-7 warrant for the purposes requested.
59-8 Sec. 76.152. Sampling. The department is entitled to take a
59-9 sample for official analysis from any package or lot of pesticides
59-10 found within this state.
59-11 Sec. 76.153. Stop Use, Stop Distribution, or Removal
59-12 [Stop-Sale] Order. (a) If the department has reason to believe
59-13 that a pesticide is in violation of any provision of this chapter,
59-14 the department may issue and enforce a written or printed order to
59-15 stop the use or distribution [sale] of the pesticide or requiring
59-16 the pesticide to be removed and secured from further distribution.
59-17 The department shall present the order to the owner or custodian of
59-18 the pesticide. The person who receives the order may not sell,
59-19 distribute, or use the pesticide until the department determines
59-20 that the pesticide:
59-21 (1) is in compliance with this chapter; or
59-22 (2) does not present a hazard to the public health,
59-23 safety, or welfare.
59-24 (b) This section does not limit the right of the department
59-25 to proceed as authorized by another section of this chapter.
59-26 Sec. 76.154. Injunction. (a) The department may sue in the
59-27 name of the commissioner to enjoin any violation of a provision of
60-1 this chapter. Venue is in the county in which the alleged
60-2 violation occurred or is occurring.
60-3 (b) The department [A regulatory agency] may request an
60-4 appropriate prosecuting attorney or the attorney general to sue to
60-5 enjoin a violation or threatened violation of a provision of this
60-6 chapter that is within the department's [agency's] responsibility.
60-7 Sec. 76.155. Prosecutions. The department [A regulatory
60-8 agency] may request the appropriate prosecuting attorney to
60-9 prosecute a violation of a provision of this chapter.
60-10 Sec. 76.1555. Administrative Penalty. (a) If a person
60-11 violates a provision of this chapter [Chapter 75 or 76 of this code
60-12 administered by the department] or a rule or order adopted by the
60-13 department under this chapter [either of those chapters], the
60-14 department may assess an administrative penalty against the person
60-15 as provided by Section 12.020, except that the penalty shall not
60-16 exceed $4,000 for all violations related to a single incident.
60-17 (b) The department shall establish a schedule stating the
60-18 types of violations possible under this chapter [Chapters 75 and 76
60-19 of this code]. The department is not required to comply with
60-20 Subchapter B, Chapter 2001, Government Code, when establishing or
60-21 revising the schedule. The department shall publish the initial
60-22 schedule and any subsequent revision in the Texas Register before
60-23 the schedule or revision is implemented.
60-24 (c) If the department elects to assess an administrative
60-25 penalty, no action for a civil penalty may be based on the same
60-26 violation or violations.
60-27 Sec. 76.156. Civil Penalty. (a) [A person who violates a
61-1 provision of this chapter administered by a regulatory agency other
61-2 than the department or a rule adopted by a regulatory agency other
61-3 than the department under this chapter is liable for a civil
61-4 penalty of not less than $50 nor more than $1,000 for each day on
61-5 which the violation occurs.]
61-6 [(b)] A person who violates a provision of this chapter
61-7 administered by the department or a rule adopted by the department
61-8 under this chapter is liable for a civil penalty of not less than
61-9 $50 nor more than $10,000 for each violation, provided that the
61-10 penalty shall not exceed $25,000 for all violations related to a
61-11 single incident.
61-12 (b) [(c)] No civil penalty may be collected for any
61-13 violation that constituted the basis for a department proceeding to
61-14 assess an administrative penalty, regardless of whether the
61-15 department was or was not successful in collecting the
61-16 administrative penalty.
61-17 (c) [(d)] A county attorney, a district attorney, or the
61-18 attorney general shall sue in the name of the state for the
61-19 collection of a civil penalty provided by this section.
61-20 (d) [(e)] The department [appropriate regulatory agency] may
61-21 request an appropriate prosecuting attorney or the attorney general
61-22 to bring suit under this section.
61-23 (e) [(f)] A civil penalty collected under this section shall
61-24 be deposited in the state treasury to the credit of the General
61-25 Revenue Fund. All civil penalties recovered in suits first
61-26 instituted by a local government or governments under this section
61-27 shall be equally divided between the State of Texas and the local
62-1 government or governments with 50 percent of the recovery to be
62-2 paid to the General Revenue Fund and the other 50 percent equally
62-3 to the local government or governments first instituting the suit.
62-4 SUBCHAPTER I [H]. REMEDIES
62-5 Sec. 76.181. Appeal of Denial or Cancellation of Pesticide
62-6 Registration. [(a)] A person whose application for registration
62-7 of a pesticide has been denied or whose registration for a
62-8 pesticide has been canceled may appeal the action in the manner
62-9 provided for appeal of contested cases under Chapter 2001,
62-10 Government Code.
62-11 [(b) Appeal under this section is governed by the
62-12 substantial evidence rule.]
62-13 Sec. 76.182. Appeal of Permit or License Denial, Suspension,
62-14 Modification, or Revocation. [(a)] A person whose application for
62-15 an experimental use permit, pesticide dealer license, commercial
62-16 applicator license, noncommercial applicator license, or private
62-17 applicator license has been denied or whose experimental use
62-18 permit, pesticide dealer license, commercial applicator license,
62-19 noncommercial applicator license, private applicator license, or
62-20 private applicator certificate has been suspended for more than 10
62-21 days, revoked, or modified may appeal the action in the manner
62-22 provided for appeal of contested cases under Chapter 2001,
62-23 Government Code.
62-24 [(b) Appeal under this section is governed by the
62-25 substantial evidence rule.]
62-26 Sec. 76.183. Appeal of Stop Use, Stop Distribution, or
62-27 Removal [Stop-Sale] Order. (a) The owner or custodian of a
63-1 pesticide to which a stop use, stop distribution, or removal
63-2 [stop-sale] order is imposed under Section 76.153 [applies] may
63-3 appeal the order to a court of competent jurisdiction in the county
63-4 where the pesticide is found.
63-5 (b) Appeal under this section is by trial de novo.
63-6 Sec. 76.184. REPORTS OF PESTICIDE ADVERSE EFFECTS [DAMAGE
63-7 CLAIMS]. (a) A person claiming adverse effects from an
63-8 application of a pesticide may file with the department a complaint
63-9 report. The complaint report must contain the name of the person,
63-10 if known, allegedly responsible for the application of the
63-11 pesticide and the name of the owner or lessee of the land on which
63-12 the pesticide was applied. The department shall prepare a form to
63-13 be furnished to persons for use in filing complaint reports. The
63-14 form may contain other information that is within the person's
63-15 knowledge and requested by the commissioner.
63-16 (b) As soon as practicable after receiving a complaint
63-17 report, the department shall notify the licensee, the owner or
63-18 lessee of the land on which the alleged application occurred, and
63-19 any other person who may be charged with responsibility for the
63-20 adverse effects claimed. The department shall furnish copies of
63-21 the complaint to those people on request.
63-22 (c) To assess any adverse effects, the complaining party
63-23 shall permit the department and the licensee to observe, within
63-24 reasonable hours, the land or nontarget organism alleged to have
63-25 been adversely affected.
63-26 (d) Failure to file a complaint does not bar a civil or
63-27 criminal action from being filed and maintained.
64-1 (e) The department by rule may adopt procedures to be
64-2 followed in the investigation of a report claiming adverse effects
64-3 from an application of the pesticide. [(a) A person claiming
64-4 damages from a pesticide application may file with the regulatory
64-5 agency that licensed the certified applicator whose action
64-6 allegedly caused the damage a written statement claiming that the
64-7 person has been damaged. To be eligible for consideration by the
64-8 agency, the report must be filed before the 31st day following the
64-9 day of the alleged occurrence or, if a growing crop is alleged to
64-10 have been damaged, before the time that 25 percent of the crop has
64-11 been harvested or before the 31st day, whichever is less. The
64-12 report must contain the name of the person allegedly responsible
64-13 for the application of the pesticide and the name of the owner or
64-14 lessee of the land on which the crop is grown and to which damage
64-15 is alleged to have occurred. The regulatory agency shall prepare a
64-16 form to be furnished to persons for use in filing damage reports.
64-17 The form may contain other information that is required by the head
64-18 of the regulatory agency.]
64-19 [(b) On receipt of a report, the regulatory agency shall
64-20 notify the licensee, the owner or lessee of the land on which the
64-21 alleged act occurred, and any other person who may be charged with
64-22 responsibility for the damages claimed. The regulatory agency
64-23 shall furnish copies of the report to those people on request.]
64-24 [(c) The regulatory agency shall inspect damages whenever
64-25 possible and shall report its findings to the person claiming
64-26 damage and to the person alleged to have caused the damage. In
64-27 order that damage may be assessed, the claimant shall permit the
65-1 regulatory agency and the licensee to observe, within reasonable
65-2 hours, the land or nontarget organism alleged to have been damaged.]
65-3 [(d) Failure to file a report does not bar maintenance of a
65-4 civil or criminal action. If a person fails to file a report and
65-5 is the only person claiming injury from the particular use or
65-6 application of a pesticide, the regulatory agency may, if in the
65-7 public interest, refuse to hold a hearing for the denial,
65-8 suspension, or revocation of a license issued under this chapter to
65-9 the person alleged to have caused the damage.]
65-10 Sec. 76.185. Damages Resulting From Application of Pesticide
65-11 Under Government Program. Notwithstanding other law, the owner or
65-12 lessee of land on which a pesticide is applied is not responsible
65-13 for damages resulting from the application of the pesticide or
65-14 subject to a criminal or civil penalty in connection with the
65-15 application of the pesticide if:
65-16 (1) the pesticide is applied under a local, state, or
65-17 federal government program that requires the application of the
65-18 pesticide to the land; and
65-19 (2) the owner or lessee of the land on which the
65-20 pesticide is applied does not control or have a right to control
65-21 the time and manner of the application of the pesticide to the
65-22 land.
65-23 SUBCHAPTER J [I]. PENALTIES
65-24 Sec. 76.201. Offenses. (a) A person commits an offense if
65-25 the person distributes within this state or delivers for
65-26 transportation or transports in intrastate commerce or between
65-27 points within this state through a point outside this state, any
66-1 of the following:
66-2 (1) a pesticide that has not been registered as
66-3 provided by this chapter, except for a pesticide that is not for
66-4 use in this state and is only being manufactured, transported, or
66-5 distributed for use outside of this state;
66-6 (2) a pesticide that has a claim, a direction for its
66-7 use, or labeling that differs from the representations made in
66-8 connection with its registration;
66-9 (3) a pesticide that is not in the registrant's or
66-10 manufacturer's unbroken immediate container and that is not labeled
66-11 with the information and in the manner required by Section 76.021
66-12 of this code;
66-13 (4) a pesticide:
66-14 (A) that is of strength or purity that falls
66-15 below the professed standard or quality expressed on its labeling
66-16 or under which it is sold;
66-17 (B) for which a substance has been substituted
66-18 wholly or in part;
66-19 (C) of which a valuable constituent has been
66-20 wholly or in part abstracted; or
66-21 (D) in which a contaminant is present in an
66-22 amount that is determined by the department to be a hazard;
66-23 (5) a pesticide or device that is misbranded; or
66-24 (6) a pesticide in a container that is unsafe due to
66-25 damage.[;]
66-26 (b) A person commits an offense if the person:
66-27 (1) detaches, alters, defaces, or destroys, wholly or
67-1 in part, any label or labeling provided for by this chapter or a
67-2 rule adopted under this chapter before the container has been
67-3 emptied and rinsed properly;
67-4 (2) adds any substance to or takes any substance from
67-5 a pesticide in a manner that may defeat the purpose of this chapter
67-6 or a rule adopted under this chapter;
67-7 (3) uses or causes to be used a pesticide contrary to
67-8 its labeling or to a rule of the department limiting the use of the
67-9 pesticide;
67-10 (4) handles, transports, stores, displays, or
67-11 distributes a pesticide in a manner that violates a provision of
67-12 this chapter or a rule adopted by the department under this
67-13 chapter; or
67-14 (5) disposes of, discards, or stores a pesticide or
67-15 pesticide container in a manner that the person knows or should
67-16 know is likely to cause injury to man, vegetation, crops,
67-17 livestock, wildlife, or pollinating insects.
67-18 (c) A person other than a person to whom the pesticide is
67-19 registered commits an offense if the person uses for the person's
67-20 advantage or reveals, other than to a properly designated state or
67-21 federal official or employee, a physician, or in emergency to a
67-22 pharmacist or other qualified person for the preparation of an
67-23 antidote, any information relating to pesticide formulas, trade
67-24 secrets, or commercial or financial information acquired under this
67-25 chapter and marked as privileged or confidential by the registrant.
67-26 (d) A person commits an offense if the person:
67-27 (1) commits an act for which a certified applicator's
68-1 license may be suspended, modified, [or] revoked, or not renewed
68-2 under Section 76.116 of this code; or
68-3 (2) violates any [other] provision of this chapter to
68-4 which this section does not expressly apply.
68-5 (e) A person commits an offense if the person:
68-6 (1) knowingly or intentionally uses, causes to be
68-7 used, handles, stores, or disposes of a pesticide in a manner that
68-8 causes injury to man, vegetation, crops, livestock, wildlife, or
68-9 pollinating insects;
68-10 (2) violates Section 76.071(a);
68-11 (3) has a permit to apply a powder or dry-type
68-12 regulated herbicide and applies a herbicide that does not meet the
68-13 requirements of Section 76.143(c);
68-14 (4) violates a rule adopted under this chapter; or
68-15 (5) fails to keep or submit records in violation of
68-16 this chapter.
68-17 Sec. 76.202. Penalty. (a) Except as provided by Subsection
68-18 (b) of this section, an offense under Section 76.201 of this code
68-19 is a Class C misdemeanor, unless the person has been previously
68-20 convicted of an offense under that section, in which event the
68-21 offense is a Class B misdemeanor.
68-22 (b) An offense under Section 76.201(e) of this code is a
68-23 Class A misdemeanor, unless the person has been previously
68-24 convicted of an offense under that subsection, in which event the
68-25 offense is a felony of the third degree.
68-26 Sec. 76.203. Defenses. (a) It is a defense to prosecution
68-27 under this subchapter that the defendant:
69-1 (1) is a carrier who was lawfully engaged in
69-2 transporting a pesticide or device within this state and who, on
69-3 request, permitted the department to copy all records showing the
69-4 transactions in and movement of the pesticide or device;
69-5 (2) is a public official of this state or the federal
69-6 government who was engaged in the performance of an official duty
69-7 in administering state or federal pesticide law or engaged in
69-8 pesticide research;
69-9 (3) is the manufacturer or shipper of a pesticide that
69-10 was for experimental use only by or under the supervision of an
69-11 agency of this state or of the federal government authorized by law
69-12 to conduct research in the field of pesticides and the manufacturer
69-13 or shipper held a valid experimental use permit as provided by this
69-14 chapter; and
69-15 (4) manufactured or formulated a pesticide or device
69-16 solely for export to a foreign country and prepared or packed the
69-17 pesticide or device according to the specifications or directions
69-18 of the purchaser.
69-19 (b) It is a defense to prosecution under Section
69-20 76.201(a)(3) of this code that the defendant is an applicator who,
69-21 after acquiring an unbroken container, opened and transported the
69-22 open container to and from application and storage sites as
69-23 necessary.
69-24 (c) It is an affirmative defense to prosecution under
69-25 Section 76.201(e) of this code that the defendant was using,
69-26 causing to be used, handling, storing, or disposing of the
69-27 pesticide in accordance with a label that complied with this
70-1 chapter and rules adopted under this chapter.
70-2 SECTION 2. Chapters 75 and 125, Agriculture Code, are
70-3 repealed.
70-4 SECTION 3. A license issued under Subchapter E, Chapter 76,
70-5 Agriculture Code, by a state agency other than the Department of
70-6 Agriculture that is of a type that will be issued by the department
70-7 under the changes in law to Subchapter E made by this Act remains
70-8 valid, subject to the terms and conditions under which it was
70-9 issued, for the remainder of the period for which it was issued.
70-10 When the license expires it is subject to renewal under Subchapter
70-11 E, Chapter 76, Agriculture Code, as amended by this Act.
70-12 SECTION 4. The importance of this legislation and the
70-13 crowded condition of the calendars in both houses create an
70-14 emergency and an imperative public necessity that the
70-15 constitutional rule requiring bills to be read on three several
70-16 days in each house be suspended, and this rule is hereby suspended,
70-17 and that this Act take effect and be in force from and after its
70-18 passage, and it is so enacted.