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.