1-1 By: Turner of Coleman, et al. H.B. No. 1144
1-2 (Senate Sponsor - Brown)
1-3 (In the Senate - Received from the House May 9, 1997;
1-4 May 12, 1997, read first time and referred to Committee on Natural
1-5 Resources; May 16, 1997, reported favorably by the following vote:
1-6 Yeas 11, Nays 0; May 16, 1997, sent to printer.)
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to the consolidation of herbicide and pesticide laws under
1-10 the jurisdiction of the Department of Agriculture.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Chapter 76, Agriculture Code, is amended to read
1-13 as follows:
1-14 CHAPTER 76. PESTICIDE AND HERBICIDE REGULATION
1-15 SUBCHAPTER A. GENERAL PROVISIONS
1-16 Sec. 76.001. Definitions. In this chapter:
1-17 (1) "Active ingredient" means:
1-18 (A) in the case of a pesticide other than a
1-19 plant regulator, defoliant, or desiccant, an ingredient that
1-20 prevents, destroys, repels, or mitigates a pest;
1-21 (B) in the case of a plant regulator, an
1-22 ingredient that through physiological action accelerates or retards
1-23 the rate of growth or rate of maturation or otherwise alters the
1-24 behavior of an ornamental or crop plant or the product of an
1-25 ornamental or crop plant;
1-26 (C) in the case of a defoliant, an ingredient
1-27 that causes leaves or foliage to drop from a plant; or
1-28 (D) in the case of a desiccant, an ingredient
1-29 that artificially accelerates the drying of plant tissue.
1-30 (2) "Animal" means a vertebrate or invertebrate
1-31 species, including man, other mammals, birds, fish, and shellfish.
1-32 (3) "Antidote" means a practical treatment used in
1-33 preventing or lessening ill effects from poisoning, including first
1-34 aid.
1-35 (4) "Application of a herbicide" means the spreading
1-36 of a herbicide on real property having a continuous boundary line.
1-37 (5) "Defoliant" means a substance or mixture of
1-38 substances intended to cause the leaves or foliage to drop from a
1-39 plant, with or without causing abscission.
1-40 (6) "Department" means the Department of Agriculture.
1-41 (7) [(5)] "Desiccant" means a substance or mixture of
1-42 substances intended to artificially accelerate the drying of plant
1-43 tissue.
1-44 (8) [(6)] "Device" means an instrument or contrivance,
1-45 other than a firearm, that is used to trap, destroy, repel, or
1-46 mitigate a pest or other form of plant or animal life, other than
1-47 man or a bacteria, virus, or other microorganism on or in living
1-48 man or other living animals. The term does not include equipment
1-49 sold separately from a pesticide.
1-50 (9) [(7)] "Distribute" means offer for sale, hold for
1-51 sale, sell, barter, or supply.
1-52 (10) [(8)] "Environment" includes water, air, land,
1-53 plants, man, and other animals living in or on water, air, or land,
1-54 and the interrelationships that exist among them.
1-55 (11) [(9)] "Equipment" means any type of ground,
1-56 water, or aerial equipment or contrivance employing motorized,
1-57 mechanical, or pressurized power and used to apply a pesticide to
1-58 land or to anything that may be inhabiting or growing or stored on
1-59 or in the land. The term does not include a pressurized hand-sized
1-60 household apparatus used to apply a pesticide or any equipment or
1-61 contrivance for which the person applying the pesticide is the
1-62 source of power or energy used in making the pesticide application.
1-63 (12) "FIFRA" means the Federal Insecticide, Fungicide,
1-64 and Rodenticide Act (7 U.S.C. Section 136 et seq.).
2-1 (13) [(10)] "Fungus" means a non-chlorophyll-bearing
2-2 thallophyte, including rust, smut, mildew, mold, yeast, or
2-3 bacteria, but not including a non-chlorophyll-bearing thallophyte
2-4 on or in living man or other living animals or on or in a processed
2-5 food, beverage, or pharmaceutical.
2-6 (14) [(11)] "Inert ingredient" means an ingredient
2-7 that is not an active ingredient.
2-8 (15) [(12)] "Insect" means any of the numerous small
2-9 invertebrate animals generally having a segmented body and for the
2-10 most part belonging to the class Insecta, comprising six-legged,
2-11 usually winged forms such as beetles, bugs, bees, and flies. The
2-12 term includes allied classes of arthropods, the members of which
2-13 are wingless and usually have more than six legs, such as spiders,
2-14 mites, ticks, centipedes, and wood lice.
2-15 (16) [(13)] "Label" means the written, printed, or
2-16 graphic matter on or attached to a pesticide or device or any of
2-17 its containers or wrappers.
2-18 (17) [(14)] "Labeling" means a label or any other
2-19 written, printed, or graphic matter prepared by a registrant:
2-20 (A) accompanying the pesticide or device at any
2-21 time; or
2-22 (B) to which reference is made on a label or in
2-23 literature accompanying or referring to a pesticide or device,
2-24 except accurate, nonmisleading references made to a current
2-25 official publication of a federal or state institution or agency
2-26 authorized by law to conduct research in the field of pesticides.
2-27 (18) [(15)] "Land" means any land or water area,
2-28 including airspace, and any plant, animal, structure, building,
2-29 contrivance, or machinery, whether fixed or mobile, appurtenant to
2-30 or situated on a land or water area or airspace, including any used
2-31 for transportation.
2-32 (19) [(16)] "License use category" means a
2-33 classification of pesticide use based on the subject, method, or
2-34 place of pesticide application.
2-35 (20) [(17)] "Nematode" means an invertebrate animal of
2-36 the phylum Nemathelminthes and class Nematoda (an unsegmented
2-37 roundworm with an elongated, fusiform, or sac-like body covered
2-38 with cuticle) inhabiting soil, water, plants, or plant parts.
2-39 (21) [(18)] "Pesticide" means a substance or mixture
2-40 of substances intended to prevent, destroy, repel, or mitigate any
2-41 pest, or any substance or mixture of substances intended for use as
2-42 a plant regulator, defoliant, or desiccant.
2-43 (22) [(19)] "Plant regulator" means a substance or
2-44 mixture of substances intended through physiological action to
2-45 accelerate or retard the rate of growth or rate of maturation, or
2-46 otherwise to alter the behavior of an ornamental or crop plant or
2-47 the product of an ornamental or crop plant, but does not include a
2-48 substance to the extent that it is intended as a plant nutrient,
2-49 trace element, nutritional chemical, plant inoculant, or soil
2-50 amendment.
2-51 (23) "Registrant" means a person who has registered a
2-52 pesticide under this chapter.
2-53 (24) [(20)] "Regulatory agency" means a state agency
2-54 with responsibility for certifying applicators under Subchapter E
2-55 of this chapter.
2-56 (25) [(21)] "Restricted-use pesticide" means a
2-57 pesticide classified as a restricted-use pesticide by the
2-58 Environmental Protection Agency.
2-59 (26) [(22)] "Thallophyte" means a
2-60 non-chlorophyll-bearing plant of a lower order than mosses and
2-61 liverworts.
2-62 (27) [(23)] "Weed" means any plant that grows where
2-63 not wanted.
2-64 (28) "Worker protection standard" means the federal
2-65 worker protection standard as found in the Code of Federal
2-66 Regulations, 40 C.F.R. Parts 156 and 170.
2-67 Sec. 76.002. Pests. The department shall determine what
2-68 organisms constitute pests for purposes of this chapter and may
2-69 include in the list of pests:
3-1 (1) any insect, snail, slug, rodent, bird, nematode,
3-2 fungus, weed, or other form of terrestrial or aquatic plant or
3-3 animal life; or
3-4 (2) any virus, bacteria, or other microorganism, other
3-5 than a virus, bacteria, or other microorganism on or in living man
3-6 or other living animals.
3-7 Sec. 76.003. State-Limited-Use Pesticides. (a) After notice
3-8 and public hearing, the department may adopt lists of
3-9 state-limited-use pesticides for the entire state or for a
3-10 designated area within the state.
3-11 (b) A pesticide may be included on a list of
3-12 state-limited-use pesticides if the department determines that,
3-13 when used as directed or in accordance with widespread and commonly
3-14 recognized practice, the pesticide requires additional restrictions
3-15 to prevent unreasonable risk to man or the environment, taking into
3-16 account the economic, social, and environmental costs and benefits
3-17 of use of the pesticide. However, the department shall not place a
3-18 pesticide on the state-limited-use list solely on the basis of
3-19 actual damage or risk of damage to water quality without first
3-20 obtaining approval from the Texas Natural Resource Conservation
3-21 Commission based on the impact of the pesticide's use on water
3-22 quality.
3-23 (c) The department shall formally request an opinion
3-24 regarding impact on water quality from the Texas Natural Resource
3-25 Conservation Commission during department consideration of any
3-26 amendments to the current list of state-limited-use pesticides.
3-27 (d) At the direction of the Texas Natural Resource
3-28 Conservation Commission in conjunction with its responsibilities
3-29 pursuant to Chapter 26, Water Code, the department shall consider
3-30 any formal request to add any pesticide to the state-limited-use
3-31 list under Subsection (b), and the department shall issue
3-32 regulations regarding the time, place, and conditions of such
3-33 pesticide's use.
3-34 (e) The department may regulate the time and conditions of
3-35 use of a state-limited-use pesticide and may require that it be
3-36 purchased or used only:
3-37 (1) with permission of the department;
3-38 (2) under direct supervision of the department in
3-39 certain areas under certain conditions; or
3-40 (3) in specified quantities and concentrations.
3-41 (f) The department may require a person authorized to
3-42 distribute or use a state-limited-use pesticide to maintain records
3-43 of the person's distribution or use and may require that the
3-44 records be kept separate from other business records.
3-45 Sec. 76.004. Department Rules. (a) Except as provided by
3-46 Subchapter G, after [After] notice, the department shall conduct at
3-47 least five regional hearings throughout the state before the
3-48 adoption of any rule for carrying out the provisions of this
3-49 chapter. Thereafter, the department may adopt rules for carrying
3-50 out the provisions of this chapter, including rules providing for:
3-51 (1) the collection, examination, and reporting of
3-52 records, devices, and samples of pesticides;
3-53 (2) the safe handling, transportation, storage,
3-54 display, distribution, or disposal of pesticides and pesticide
3-55 containers;
3-56 (3) labeling requirements for pesticides and devices
3-57 required to be registered under this chapter; and
3-58 (4) compliance with federal pesticide rules and
3-59 regulations.
3-60 (b) Any rules adopted by the department for the purpose of
3-61 protection or enhancement of water quality shall not be
3-62 inconsistent with nor less stringent than rules adopted [developed]
3-63 for the protection or enhancement of water quality by the Texas
3-64 Natural Resource Conservation Commission pursuant to
3-65 recommendations of the Texas Groundwater Protection Committee.
3-66 Sec. 76.005. Notice of Hearing. (a) Before adopting a rule
3-67 under this chapter, the department or a regulatory agency shall
3-68 publish notice of a public hearing in three newspapers of general
3-69 circulation throughout the state. The notice must include the
4-1 following information relating to the hearing:
4-2 (1) the time;
4-3 (2) the place;
4-4 (3) the subject matter;
4-5 (4) a general statement of the proposed action; and
4-6 (5) the class or group of persons to be directly
4-7 affected.
4-8 (b) Notice must be published under this section before the
4-9 10th day preceding the day of the hearing.
4-10 Sec. 76.006. Pesticide Examination and Testing. (a) The
4-11 department may contract with a state college or university, state
4-12 agency, or commercial laboratory for examination of a pesticide.
4-13 The department shall let contracts with commercial laboratories
4-14 under this subsection on the basis of competitive bidding.
4-15 (b) The department may [shall] make or provide for sample
4-16 tests of a pesticide on request and may charge and collect a fee
4-17 for the tests in an amount necessary to cover expenses incurred in
4-18 making or providing for the tests.
4-19 Sec. 76.007. Interagency Cooperation. (a) The department
4-20 shall be the lead agency for pesticide regulation in Texas. In
4-21 cooperation with the U.S. Environmental Protection Agency or any
4-22 federal agency responsible for implementation of federal pesticide
4-23 law, the department shall:
4-24 (1) register pesticides for use in Texas;
4-25 (2) adopt lists of state-limited-use pesticides;
4-26 (3) provide for training, certification, and licensure
4-27 of all classes of pesticide applicators;
4-28 (4) enforce pesticide laws and regulations governing
4-29 the safe handling, use, storage, distribution, and disposal of
4-30 pesticide products; and
4-31 (5) adopt rules to carry out the provisions of this
4-32 chapter.
4-33 (b) The Texas Natural Resource Conservation Commission shall
4-34 have principal authority to regulate and control water pollution.
4-35 If the United States Environmental Protection Agency adopts a final
4-36 rule requiring states to implement a state management plan for
4-37 pesticides in groundwater, the department shall cooperate with the
4-38 Texas Groundwater Protection Committee in the committee's
4-39 development and implementation of federally mandated state
4-40 management plans for pesticides in groundwater in accordance with
4-41 Section 26.407, Water Code.
4-42 (c) The department shall seek advice from the Texas Natural
4-43 Resource Conservation Commission, the Parks and Wildlife
4-44 Department, the Texas Department of Health, and the Texas
4-45 Agricultural Extension Service in reviewing applications for
4-46 special local need or emergency pesticide registrations. The
4-47 department shall act expeditiously to review any application for
4-48 special local need or emergency pesticide registrations.
4-49 (d) The department shall give written notice to the Texas
4-50 Natural Resource Conservation Commission whenever it has probable
4-51 cause to believe that serious contamination of water has occurred
4-52 as a result of use, misuse, manufacture, storage, or disposal of
4-53 pesticides so that the Texas Natural Resource Conservation
4-54 Commission may proceed with an investigation of a possible
4-55 violation of the Water Code.
4-56 (1) If the Texas Natural Resource Conservation
4-57 Commission determines that a violation of the Water Code has
4-58 occurred, the commission shall seek the remedies provided by the
4-59 Water Code.
4-60 (2) If the department determines that a violation of
4-61 the Agriculture Code has occurred regarding the use, manufacture,
4-62 storage, or disposal of pesticides, the department shall seek the
4-63 remedies provided by this code.
4-64 (3) The foregoing remedies shall not be mutually
4-65 exclusive.
4-66 (e) The Texas Natural Resource Conservation Commission shall
4-67 give written notice to the department whenever it has probable
4-68 cause to believe that serious contamination of water has occurred
4-69 as a result of the use, misuse, storage, disposal, or manufacture
5-1 of pesticides so that the department may proceed with an
5-2 investigation to determine if a violation of the Agriculture Code
5-3 has occurred.
5-4 (1) If the department determines that a violation of
5-5 the Agriculture Code has occurred, the department shall seek the
5-6 remedies provided by this code.
5-7 (2) If the Texas Natural Resource Conservation
5-8 Commission determines that a violation of the Water Code has
5-9 occurred, the Texas Natural Resource Conservation Commission shall
5-10 seek the remedies provided by the Water Code.
5-11 (3) The foregoing remedies shall not be mutually
5-12 exclusive.
5-13 (f) The department shall consult with the Texas Department
5-14 of Health before denying or canceling a pesticide registration
5-15 because of a suspected public health threat. The department shall
5-16 also coordinate enforcement efforts with the department of health
5-17 when a serious public health threat is suspected.
5-18 (g) A regulatory agency may receive grants-in-aid from any
5-19 federal agency and may enter into cooperative agreements with a
5-20 federal agency, an agency of this state, a subdivision of this
5-21 state, or an agency of another state for the purpose of obtaining
5-22 assistance in the implementation of this chapter.
5-23 Sec. 76.008. Exemption. Sections 76.007, 76.104-76.106,
5-24 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181,
5-25 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is
5-26 regulated by the Texas Structural Pest Control Act, as amended
5-27 (Article 135b-6, Vernon's Texas Civil Statutes).
5-28 Sec. 76.009. AGRICULTURE RESOURCES PROTECTION AUTHORITY.
5-29 (a) The Agriculture Resources Protection Authority is an agency of
5-30 state government. The authority is composed of the following
5-31 members:
5-32 (1) the director of the Texas Agricultural Experiment
5-33 Station;
5-34 (2) the dean of the College of Agricultural Sciences
5-35 of Texas Tech University;
5-36 (3) the dean of The University of Texas School of
5-37 Public Health at Houston;
5-38 (4) the director of the environmental epidemiology
5-39 program of the Texas Department of Health;
5-40 (5) the chief of the groundwater conservation section
5-41 of the Texas Natural Resource Conservation Commission;
5-42 (6) the director of the Institute for International
5-43 Agribusiness Studies of Prairie View A&M University;
5-44 (7) one person appointed by the governor to represent
5-45 the interests of consumers;
5-46 (8) a producer of agricultural products appointed by
5-47 the governor;
5-48 (9) the executive director of the Texas Structural
5-49 Pest Control Board;
5-50 (10) the executive director of the State Soil and
5-51 Water Conservation Board;
5-52 (11) a person appointed by the governor and licensed
5-53 by the department as a commercial, noncommercial, or private
5-54 applicator;
5-55 (12) a person appointed by the governor and licensed
5-56 by the department as a pesticide dealer or involved in the
5-57 development or manufacture of agricultural chemicals;
5-58 (13) a person appointed by the governor and employed
5-59 as a farm worker or serving as a representative of farm workers;
5-60 (14) a person appointed by the governor and associated
5-61 with an organization primarily engaged in environmental
5-62 conservation or protection efforts; and
5-63 (15) the commissioner of agriculture.
5-64 (b) A person appointed by the governor under Subdivision
5-65 (7), (8), (11), (12), (13), or (14) of Subsection (a) of this
5-66 section serves a two-year term ending on February 1 of each
5-67 odd-numbered year. A vacancy in one of those positions shall be
5-68 filled by appointment by the governor for the unexpired term. All
5-69 appointments made by the governor under this section must be with
6-1 the advice and consent of the senate.
6-2 (c) The governor shall designate the presiding officer of
6-3 the authority.
6-4 (d) The authority shall meet annually [quarterly] and at the
6-5 call of the presiding officer or a majority of the members.
6-6 (e) A member may not receive compensation for service as a
6-7 member of the authority. A member is entitled to reimbursement for
6-8 actual and necessary expenses incurred in the performance of the
6-9 functions of the authority, subject to any limitations on
6-10 reimbursement provided by the General Appropriations Act.
6-11 (f) The delegation of functions under this section is
6-12 designed to avoid overlapping responsibilities, to provide a means
6-13 for all involved agencies to participate in the regulation of
6-14 pesticides, and to clarify various areas of responsibility.
6-15 (g) The authority is the coordinating body for the policies
6-16 and programs of management, regulation, and control of pesticides
6-17 conducted by the department, the State Soil and Water Conservation
6-18 Board, the Texas Agricultural Extension Service, the Texas
6-19 Department of Health, the Texas Natural Resource Conservation
6-20 Commission, and the Texas Structural Pest Control Board.
6-21 Notwithstanding any other provision of this code or of any other
6-22 law, the authority may:
6-23 (1) adopt any rule relating to any duty of the
6-24 authority;
6-25 (2) review and make comments regarding any rule
6-26 relating to pesticides that is proposed by an agency for which the
6-27 authority is the coordinating body;
6-28 (3) cooperate with and advise the department, the
6-29 State Soil and Water Conservation Board, the Texas Agricultural
6-30 Extension Service, the Texas Department of Health, the Texas
6-31 Natural Resource Conservation Commission, the Texas Structural Pest
6-32 Control Board, and any other state agency that may be concerned
6-33 with the regulation of pesticides and notify those agencies of any
6-34 rule the authority intends to adopt;
6-35 (4) collect, analyze, and disseminate information
6-36 necessary for the effective operation of all existing or
6-37 contemplated programs regulating pesticides;
6-38 (5) provide professional advice to private agencies
6-39 and citizens of this state on matters relating to pesticides in
6-40 cooperation with other state agencies, with professional groups,
6-41 and with either state or private educational institutions;
6-42 (6) accept gifts, devises, and bequests and, with the
6-43 approval of the governor, comply with the terms and conditions of
6-44 any grant to accomplish any of the purposes of the authority;
6-45 (7) inform and advise the governor on matters
6-46 involving pesticides and prepare and recommend to the governor and
6-47 to the legislature any legislation the authority considers proper
6-48 for the management and control of pesticides; and
6-49 (8) make annual reports to the governor and the
6-50 appropriate legislative oversight committees.
6-51 (h) A member of the authority by a written statement may
6-52 designate a person to execute any responsibility of the member
6-53 including voting.
6-54 (i) The authority shall develop and implement policies that
6-55 provide the public with a reasonable opportunity to appear before
6-56 the authority annually [semiannually] to comment on the status of
6-57 the state's pesticide regulation efforts.
6-58 (j) The commissioner shall:
6-59 (1) as necessary, employ personnel as the duties of
6-60 the authority may require and to the extent of legislative
6-61 appropriations to the authority;
6-62 (2) keep an accurate and complete record of all
6-63 authority meetings and hearings of the authority and maintain legal
6-64 custody of all books, papers, documents, and other records of the
6-65 authority;
6-66 (3) administer this chapter and the rules adopted by
6-67 the authority [Chapters 75 and 125 of this code]; and
6-68 (4) assign, reassign, or delegate the administrative
6-69 and enforcement functions assigned to the commissioner by this
7-1 subsection or by rules or policies established under this
7-2 subsection to one or more of the divisions or other units within
7-3 the department or to one or more employees of the department.
7-4 (k) The authority shall adopt rules requiring quarterly
7-5 submission to the authority by the department, State Soil and Water
7-6 Conservation Board, Texas Agricultural Extension Service, Texas
7-7 Department of Health, Texas Natural Resource Conservation
7-8 Commission, and the Texas Structural Pest Control Board of a report
7-9 regarding each agency's pesticide regulatory enforcement activity.
7-10 (l) The authority shall review and make comments regarding
7-11 the information received by the authority under Subsection (k).
7-12 The authority shall make its comments available to the public.
7-13 (m) The department, State Soil and Water Conservation Board,
7-14 Texas Agricultural Extension Service, Texas Department of Health,
7-15 Texas Natural Resource Conservation Commission, and the Texas
7-16 Structural Pest Control Board shall provide the authority with
7-17 sufficient opportunity to review and comment on the strategic plan
7-18 and biennial appropriation request of each agency, and any revision
7-19 of a plan or request, before submission of a plan or request to the
7-20 legislature.
7-21 SUBCHAPTER B. LABELING
7-22 Sec. 76.021. LABELING INFORMATION. (a) Each pesticide
7-23 distributed in this state shall bear a label containing the
7-24 following information relating to the pesticide:
7-25 (1) the label information required by FIFRA, if the
7-26 pesticide is subject to registration under that law; or
7-27 (2) the following information, if the pesticide is not
7-28 subject to registration under FIFRA:
7-29 (A) the name, brand, or trademark under which
7-30 the pesticide is distributed;
7-31 (B) [(2)] the name and percentage of each active
7-32 ingredient and the total percentage of inert ingredients;
7-33 (C) [(3)] directions for use that are necessary
7-34 for effecting the purpose for which the product is intended and, if
7-35 complied with, are adequate for the protection of health and the
7-36 environment;
7-37 (D) [(4)] if the pesticide contains any form of
7-38 arsenic, the percentage of total water-soluble arsenic, calculated
7-39 as elementary arsenic;
7-40 (E) [(5)] the name and address of the
7-41 manufacturer, registrant, or person for whom the pesticide was
7-42 manufactured;
7-43 (F) [(6)] numbers or other symbols to identify
7-44 the lot or batch of the manufacturer of the contents of the
7-45 package; and
7-46 (G) [(7)] a clear display of appropriate
7-47 warnings, symbols, and cautionary statements commensurate with the
7-48 toxicity or use classification of the pesticide.
7-49 (b) [The labeling of each pesticide distributed in this
7-50 state shall state the use classification for which the product is
7-51 registered.]
7-52 [(c)] The label bearing the ingredient statement under
7-53 Subsection (a)(2)(B) of this section shall be on or attached to
7-54 that part of the immediate container that is presented or displayed
7-55 under customary conditions of purchase and, if the ingredient
7-56 statement cannot be clearly read without removing the outer
7-57 wrapping, on any outer container or wrapper of a retail package.
7-58 Sec. 76.022. CONSPICUOUS LETTERING. Any word, statement, or
7-59 information required by this chapter to appear on a label or in
7-60 labeling of a pesticide or device registered by the department
7-61 shall be prominently and conspicuously placed so that, if compared
7-62 with other material on the label or in the labeling, it is likely
7-63 to be understood by the ordinary individual under customary
7-64 conditions of use.
7-65 Sec. 76.023. Misbranded Pesticide or Device. (a) A
7-66 pesticide or device is misbranded if:
7-67 (1) it is subject to registration under FIFRA and it
7-68 does not fully comply with the labeling requirements of the United
7-69 States Environmental Protection Agency; or
8-1 (2) it is not subject to registration under FIFRA and:
8-2 (A) its labeling bears a statement, design, or
8-3 graphic representation relating to the pesticide or device, or the
8-4 ingredients of either, that is false or misleading in any
8-5 particular;
8-6 (B) [(2)] it is an imitation of or is
8-7 distributed under the name of another pesticide or device; or
8-8 (C) [(3)] it is not conspicuously labeled in
8-9 accordance with Section 76.022 of this code.
8-10 (b) A pesticide is misbranded if:
8-11 (1) its labeling bears any reference to registration
8-12 under this chapter, unless the reference is required by a rule
8-13 adopted under this chapter;
8-14 (2) it does not bear a label as required by Section
8-15 76.021 of this code; or
8-16 (3) its label does not bear information as required by
8-17 Section 76.021 of this code or a rule adopted under this chapter.
8-18 SUBCHAPTER C. REGISTRATION
8-19 Sec. 76.041. REGISTRATION REQUIRED. (a) Except as provided
8-20 by Subsection (b), (c), [or] (d), or (e) of this section, before a
8-21 pesticide is distributed in this state or is delivered for
8-22 transportation or is transported in intrastate commerce or between
8-23 points within this state through a point outside the state, it must
8-24 be registered with the department. The manufacturer or other
8-25 person whose name appears on the label of the pesticide shall
8-26 register the pesticide.
8-27 (b) Registration is not required for the transportation of a
8-28 pesticide from one plant or warehouse to another plant or warehouse
8-29 operated by the same person if the pesticide is used solely at the
8-30 second plant or warehouse as a constituent of a pesticide that is
8-31 registered under this chapter.
8-32 (c) Registration is not required for a pesticide that is not
8-33 for use in this state and is being manufactured, transported, or
8-34 distributed for use only outside of this state.
8-35 (d) Registration is not required for a chemical compound
8-36 being used only to develop plot data as to the possible pesticidal
8-37 action of the chemical.
8-38 (e) [(d)] Unless otherwise required by department rule,
8-39 registration is not required for a pesticide that is exempt from
8-40 registration with the United States Environmental Protection Agency
8-41 under federal law.
8-42 (f) The Texas Feed and Fertilizer Control Service may not
8-43 register under Chapter 63 a fertilizer that contains a pesticide
8-44 that must be registered with the department under this chapter
8-45 unless the constituent pesticide is first registered with the
8-46 department. The Texas Feed and Fertilizer Control Service shall
8-47 consult with the department about the current registration status
8-48 of a pesticide before registering any fertilizer mix containing
8-49 that pesticide under Chapter 63. The department shall notify the
8-50 Texas Feed and Fertilizer Control Service of any changes to a
8-51 pesticide registration.
8-52 (g) A pesticide that has been registered with the department
8-53 must continue to be registered as long as the pesticide remains in
8-54 the channels of trade in this state. The registrant shall ensure
8-55 that the pesticide continues to be registered.
8-56 (h) If the department issues a stop use, stop distribution,
8-57 or removal order because the pesticide is not registered with the
8-58 department, the registrant shall take any necessary action to
8-59 remedy the situation, including reimbursing a person who is subject
8-60 to the order for the person's costs in complying with the order.
8-61 Sec. 76.042. CONTENT OF REGISTRATION APPLICATION. (a) The
8-62 application for registration of a pesticide shall include:
8-63 (1) the name and address of the applicant and the name
8-64 and address of the person whose name will appear on the pesticide
8-65 label, if not the applicant's;
8-66 (2) the name of the pesticide;
8-67 (3) a complete copy of all labeling to accompany the
8-68 pesticide and a statement of all claims to be made for it,
8-69 including the directions for use and, if the pesticide is required
9-1 to be registered with the United States Environmental Protection
9-2 Agency, a copy of the Environmental Protection Agency stamped
9-3 accepted labeling and any applicable comment pages;
9-4 (4) the use classification, whether for restricted or
9-5 general use, as provided by the federal Insecticide, Fungicide, and
9-6 Rodenticide Act, as amended, or by a rule adopted under that Act;
9-7 (5) the use classification proposed by the applicant,
9-8 if the pesticide is not required by federal law to be registered
9-9 under a use classification; and
9-10 (6) other information required by the department for
9-11 determining the eligibility for registration.
9-12 (b) The department may require the applicant to submit the
9-13 complete formula for a pesticide, including active and inert
9-14 ingredients, as a prerequisite to registration.
9-15 (c) The department may require a full description of the
9-16 tests made and the results of the tests on which claims are based
9-17 before approving registration of a pesticide that is not registered
9-18 under federal law or for which federal or state restrictions on use
9-19 are being considered.
9-20 (d) A person located outside this state, as a condition to
9-21 registration of a pesticide, shall file with the department a
9-22 written instrument designating a resident agent for service of
9-23 process in actions taken in the administration and enforcement of
9-24 this chapter. Instead of designating a resident agent, the person
9-25 may designate in writing the secretary of state as the recipient of
9-26 service of process for the person in this state.
9-27 Sec. 76.043. EXPIRATION AND RENEWAL. (a) Registration of a
9-28 pesticide expires on the second anniversary of the date of its
9-29 approval or renewal except that the department shall by rule adopt
9-30 a system under which registrations expire on various dates during
9-31 the year.
9-32 (b) A person who applies for renewal of registration shall
9-33 include in the renewal application only information that is
9-34 different from the information furnished at the time of the most
9-35 recent registration or renewal.
9-36 (c) A registration in effect on its expiration date for
9-37 which a renewal application has been filed and renewal fee has been
9-38 paid continues in effect until the department notifies the
9-39 applicant that the registration has been renewed or denied renewal.
9-40 Sec. 76.044. FEES. (a) The department shall charge a fee,
9-41 as provided by department rule, for each pesticide to be
9-42 registered. The fee must be submitted with an application for
9-43 registration or renewal of registration.
9-44 (b) A person who fails to apply for renewal of registration
9-45 on or before the expiration date of the registration must pay, in
9-46 addition to the renewal fee, the late fee provided by Section
9-47 12.024 of this code for each brand to be renewed.
9-48 Sec. 76.045. [DEPARTMENT APPROVAL. The department may not
9-49 approve an application for registration unless the department finds
9-50 that:]
9-51 [(1) the composition of the pesticide warrants the
9-52 proposed claims made for it; and]
9-53 [(2) the pesticide, its labeling, and other materials
9-54 required to be submitted under this chapter comply with the
9-55 requirements of this chapter.]
9-56 [Sec. 76.046.] REGISTRATION FOR SPECIAL LOCAL NEED.
9-57 (a) The department may register a pesticide for additional uses
9-58 and methods of application not covered by federal registration
9-59 [regulation] but not inconsistent with federal law, for the purpose
9-60 of meeting a special local need.
9-61 (b) Before approving a registration under this section, the
9-62 department shall determine that the applicant meets the other
9-63 requirements of this subchapter.
9-64 Sec. 76.046 [76.047]. DENIAL OR CANCELLATION OF
9-65 REGISTRATION. (a) If the department has reason to believe that
9-66 any use of a registered pesticide is in violation of a provision of
9-67 this chapter or is dangerous or harmful, the department shall
9-68 determine whether a hearing shall be held under Section 12.032 on
9-69 denial or cancellation of registration.
10-1 (b) The department shall issue written notice of a hearing
10-2 under this section to the registrant of the pesticide. The notice
10-3 must contain a statement of the time and place of the hearing. The
10-4 hearing shall be held after the 10th day following the day on which
10-5 the notice is issued.
10-6 (c) After opportunity at the hearing for presentation of
10-7 evidence by interested parties, the department may deny or cancel
10-8 the registration of the pesticide if the department finds that:
10-9 (1) use of the pesticide has demonstrated
10-10 uncontrollable adverse environmental effects;
10-11 (2) use of the pesticide is a detriment to the
10-12 environment that outweighs the benefits derived from its use;
10-13 (3) even if properly used, the pesticide is
10-14 detrimental to vegetation, except weeds, to domestic animals, or to
10-15 public health and safety;
10-16 (4) a false or misleading statement about the
10-17 pesticide has been made or implied by the registrant or the
10-18 registrant's agent, in writing, verbally, or through any form of
10-19 advertising literature; or
10-20 (5) the registrant has not complied or the pesticide
10-21 does not comply with a requirement of this chapter or a rule
10-22 adopted under this chapter.
10-23 Sec. 76.047 [76.048]. EXPERIMENTAL USE PERMIT. (a) The
10-24 department may issue an experimental use permit if the department
10-25 determines that the applicant needs the permit in order to
10-26 accumulate data necessary to register a pesticide under this
10-27 chapter.
10-28 (b) A person may file an application for an experimental use
10-29 permit before or after applying for registration.
10-30 (c) Use of a pesticide under an experimental use permit is
10-31 under the supervision of the department and is subject to the terms
10-32 and conditions, and valid for a period of time, prescribed by the
10-33 department in the permit.
10-34 (d) The department may charge a fee for issuing a permit
10-35 under this section in an amount equal to the amount charged for
10-36 registration under Section 76.044(a).
10-37 (e) The department may revoke an experimental use permit at
10-38 any time if the department finds that:
10-39 (1) the terms or conditions of the permit are being
10-40 violated; or
10-41 (2) the terms and conditions of the permit are
10-42 inadequate to avoid any unreasonable risk to man or the
10-43 environment, taking into account the economic, social, and
10-44 environmental costs and benefits of use of the pesticide.
10-45 SUBCHAPTER D. LICENSING OF DEALERS
10-46 Sec. 76.071. License Required. (a) A person may not
10-47 distribute in this state a restricted-use or state-limited-use
10-48 pesticide or regulated herbicide without a valid current pesticide
10-49 dealer license issued by the department.
10-50 (b) Except as otherwise provided by this section, a
10-51 pesticide dealer must obtain a license for each location in the
10-52 state that is used for distribution. If the person does not have a
10-53 place of business in this state, the person may obtain one license
10-54 for all out-of-state locations, but shall file as a condition to
10-55 licensing a designation of an agent for service of process as
10-56 provided by Section 76.042(d) of this code.
10-57 (c) A person must apply for a pesticide dealer license on
10-58 forms prescribed by the department.
10-59 (d) A pesticide dealer may not distribute a restricted-use
10-60 or state-limited-use pesticide or a regulated herbicide except to:
10-61 (1) a person licensed as a commercial applicator,
10-62 noncommercial applicator, or private applicator;
10-63 (2) an individual working under the direct supervision
10-64 of a licensed applicator;
10-65 (3) a certified private applicator;
10-66 (4) a licensed pesticide dealer; or
10-67 (5) a person who is licensed to practice veterinary
10-68 medicine by the State Board of Veterinary Medical Examiners.
10-69 Sec. 76.072. Expiration. A pesticide dealer license expires
11-1 on the second anniversary of the date of its granting or renewal
11-2 unless the department by rule adopts a system under which licenses
11-3 expire on specified dates during a [December 31 of each] year.
11-4 Sec. 76.073. Fees. (a) An application for a pesticide
11-5 dealer license must be accompanied by a [an annual] registration
11-6 fee, as fixed by the department.
11-7 (b) A person who fails to apply for renewal of a pesticide
11-8 dealer license on or before the expiration date of the license must
11-9 pay, in addition to the renewal fee, the late fee provided by
11-10 Section 12.024 of this code.
11-11 [(c) A person licensed as a dealer under Chapter 75 of this
11-12 code may not be required to pay an additional fee for the license
11-13 prescribed in this subchapter.]
11-14 Sec. 76.074. Display of Dealer License. (a) Each dealer
11-15 shall prominently display the pesticide dealer license in the
11-16 dealer's place of business.
11-17 (b) Failure to display a license as required by this section
11-18 is a ground for revocation of the license.
11-19 Sec. 76.075. Records. (a) A person required to obtain a
11-20 dealer's license by Section 76.071 shall record each distribution
11-21 of a restricted-use or state-limited-use pesticide or regulated
11-22 herbicide and shall maintain a copy of the record for at least two
11-23 years after the date of the distribution.
11-24 (b) The department shall adopt rules that prescribe the
11-25 information to be stated in the records required by this section.
11-26 (c) The department may require that a copy of the records
11-27 required by this section be submitted periodically to the
11-28 department.
11-29 (d) The department may revoke a dealer's license if the
11-30 licensee fails to submit a copy of a record as required under
11-31 Subsection (c) or makes false or fraudulent records, invoices, or
11-32 reports. [A licensed pesticide dealer shall maintain for a period
11-33 of two years records of each restricted-use and state-limited-use
11-34 pesticide sold. The department shall prescribe the information to
11-35 be included in the records.]
11-36 [(b) The department may require a licensed pesticide dealer
11-37 to submit records to the department. Failure to submit a record
11-38 requested by the department is a ground for revocation of a
11-39 license.]
11-40 Sec. 76.076. DENIAL, REVOCATION, MODIFICATION, OR SUSPENSION
11-41 OF LICENSE. (a) The department may deny an application for a
11-42 dealer's license if the applicant fails to comply with this
11-43 chapter. The department may revoke, modify, or suspend a license,
11-44 assess an administrative penalty, place on probation a person whose
11-45 license has been suspended, or reprimand a licensee for a violation
11-46 of this chapter or a rule adopted by the department under this
11-47 chapter.
11-48 (b) If a license suspension is probated, the department may
11-49 require the person to:
11-50 (1) report regularly to the department on matters that
11-51 are the basis of the probation; or
11-52 (2) limit business to the areas prescribed by the
11-53 department.
11-54 (c) [The department may refuse to issue a pesticide dealer
11-55 license if the applicant fails to comply with this subchapter.]
11-56 [(b) The department shall revoke, modify, or suspend a
11-57 license, assess an administrative penalty, place on probation a
11-58 person whose license has been suspended, or reprimand a licensee if
11-59 the licensee fails to comply with this subchapter or a rule adopted
11-60 by the department under this subchapter.]
11-61 [(c) If a license suspension is probated, the department may
11-62 require the person to:]
11-63 [(1) report regularly to the department on matters
11-64 that are the basis of the probation;]
11-65 [(2) limit practice to the areas prescribed by the
11-66 department; or]
11-67 [(3) continue or renew professional education until
11-68 the person attains a degree of skill satisfactory to the department
11-69 in those areas that are the basis of the probation.]
12-1 [(d)] If the department proposes to deny a person's
12-2 application for a pesticide dealer license or to revoke, modify, or
12-3 suspend a person's license, the person is entitled to a hearing
12-4 conducted under Section 12.032. The decision of the department is
12-5 appealable in the same manner as provided for contested cases under
12-6 Chapter 2001, Government Code.
12-7 Sec. 76.077. Exceptions. (a) This subchapter does not
12-8 apply to a manufacturer or formulator of a pesticide who does not
12-9 sell directly to the user.
12-10 (b) This subchapter does not apply to a licensed pesticide
12-11 applicator who:
12-12 (1) distributes restricted-use or state-limited-use
12-13 pesticides or regulated herbicides only as an integral part of the
12-14 pesticide application business; and
12-15 (2) dispenses the pesticides only through equipment
12-16 used in the pesticide application business.
12-17 (c) This subchapter does not apply to a federal, state,
12-18 county, or municipal agency that provides pesticides only for its
12-19 own programs.
12-20 SUBCHAPTER E. USE AND APPLICATION
12-21 Sec. 76.101. Coordination. (a) The department is the lead
12-22 agency in the regulation of pesticide use and application and is
12-23 responsible for coordinating activities of state agencies, except
12-24 as provided by Section 76.007(b) of this code and by Chapter 26 of
12-25 the Water Code. The department shall submit a state plan for the
12-26 licensing of pesticide applicators to the administrator of the
12-27 Environmental Protection Agency.
12-28 (b) The department shall coordinate, plan, and approve
12-29 training programs and shall use the public and private resources of
12-30 this state, including state universities, colleges, junior
12-31 colleges, community colleges, the Texas Agricultural Extension
12-32 Service, and the Texas Agricultural Experiment Station [experiment
12-33 station]. The department and the Texas Agricultural Extension
12-34 Service shall adopt a memorandum of understanding to jointly
12-35 coordinate, plan, and approve the training programs for private
12-36 applicators.
12-37 (c) The department shall make plans under this section on
12-38 the basis of convenience to applicants, thoroughness of preparation
12-39 and testing, and maximum economy in expenditures for this purpose.
12-40 The department shall make full use of grants-in-aid and cooperative
12-41 agreements in administering this subchapter.
12-42 (d)(1) Except as otherwise provided by this subsection, no
12-43 city, town, county, or other political subdivision of this state
12-44 shall adopt any ordinance, rule, or regulation regarding pesticide
12-45 sale or use.
12-46 (2) Nothing in this subsection shall be construed to
12-47 limit the authority of a city, town, or county to:
12-48 (A) encourage locally approved and provided
12-49 educational material concerning a pesticide;
12-50 (B) zone for the sale or storage of such
12-51 products;
12-52 (C) adopt fire or building regulations as
12-53 preventative measures to protect the public and emergency services
12-54 personnel from an accident or emergency involving such products,
12-55 including regulations governing the storage of such products or
12-56 governing fumigation and thermal insecticidal fogging operations;
12-57 (D) provide or designate sites for the disposal
12-58 of such products;
12-59 (E) route hazardous materials; or
12-60 (F) regulate discharge to sanitary sewer
12-61 systems.
12-62 (3) This subsection shall not prevent a city, town,
12-63 county, or any political subdivision from complying with any
12-64 federal or state law or regulation. This subsection shall not
12-65 prevent a city, town, county, or any political subdivision from
12-66 attaining or maintaining compliance with federal or state
12-67 environmental standards including Texas water quality standards. A
12-68 city, town, county, or other political subdivision may take any
12-69 action otherwise prohibited by this subsection in order to comply
13-1 with any federal requirements, to avoid any federal or state
13-2 penalties or fines, or to attain or maintain federal or state
13-3 environmental standards including Texas water quality standards.
13-4 [(4) Nothing in this subsection may be construed to
13-5 affect Chapter 75 of this code.]
13-6 Sec. 76.102. Agencies Responsible for Licensing Pesticide
13-7 Applicators. (a) The department shall license pesticide
13-8 applicators involved in the following license use categories:
13-9 (1) agricultural pest control, including animal pest
13-10 control;
13-11 (2) forest pest control;
13-12 (3) ornamental and turf pest control, except as
13-13 provided by the Texas Structural Pest Control Act, as amended
13-14 (Article 135b-6, Vernon's Texas Civil Statutes);
13-15 (4) seed treatments;
13-16 (5) right-of-way pest control;
13-17 (6) regulatory pest control;
13-18 (7) aquatic pest control; [and]
13-19 (8) demonstration pest control; and
13-20 (9) other license use categories as necessary to
13-21 comply with federal requirements. The department may not adopt
13-22 license use categories that are designated by statute for
13-23 regulation by another agency.
13-24 (b) The Texas Department of Health shall license pesticide
13-25 applicators involved in the license use category of health-related
13-26 pest control.
13-27 Sec. 76.103. Program Contingent on Federal Funds. (a) The
13-28 licensing of commercial applicators, noncommercial applicators, and
13-29 private applicators is contingent on the availability of federal
13-30 funds to pay part of the costs of administering and enforcing the
13-31 program.
13-32 (b) If federal funds and other funds made available for this
13-33 program are not sufficient to pay all costs of administering and
13-34 enforcing the program, the department shall certify that fact and
13-35 discontinue the licensing of commercial applicators, noncommercial
13-36 applicators, and private applicators. The department shall publish
13-37 notice of the discontinuance of the program in the Texas Register.
13-38 (c) If sufficient funds become available after
13-39 discontinuance, the department shall certify the availability of
13-40 sufficient funds to pay all costs of administration and enforcement
13-41 of the program and shall resume the licensing of commercial
13-42 applicators, noncommercial applicators, and private applicators.
13-43 The department shall publish notice of resumption of the program in
13-44 the Texas Register.
13-45 (d) The department shall determine the effective date of
13-46 discontinuance or resumption of the program, but the date may not
13-47 be before the date of publication of notice in the Texas Register.
13-48 (e) During any period in which the program has been
13-49 discontinued, a person is not required to have a license provided
13-50 by this subchapter in order to use pesticides, but a person may be
13-51 prosecuted for acts committed or omitted when the program was in
13-52 effect.
13-53 Sec. 76.104. AGENCY RULES FOR APPLICATION OF A PESTICIDE.
13-54 (a) The head of each regulatory agency may, after notice and
13-55 public hearing, adopt rules to carry out the provisions of this
13-56 subchapter for which the agency is responsible.
13-57 (b) Rules adopted under this section may:
13-58 (1) prescribe methods to be used in the application of
13-59 a restricted-use or state-limited-use pesticide or regulated
13-60 herbicide;
13-61 (2) relate to the time, place, manner, method, amount,
13-62 or concentration of pesticide application or to the materials used
13-63 in pesticide application; and
13-64 (3) restrict or prohibit use of a restricted-use or
13-65 state-limited-use pesticide or regulated herbicide in designated
13-66 areas during specific periods of time.
13-67 (c) A regulatory agency may adopt a rule under this section
13-68 only after consideration of precautions or restrictions necessary
13-69 to prevent unreasonable risk to man or the environment, taking into
14-1 account the economic, social, and environmental costs and benefits
14-2 of the use of the pesticide.
14-3 (d) The department shall adopt worker protection standards
14-4 for pesticides if there is no federal worker protection standard.
14-5 The department may adopt other rules for the protection of the
14-6 health, safety, and welfare of farm workers and pesticide handlers.
14-7 Sec. 76.105. License Required. (a) Except as provided by
14-8 Section 76.003(e), a [A] person may not purchase or use a
14-9 restricted-use or state-limited-use pesticide or regulated
14-10 herbicide unless the person is:
14-11 (1) licensed as a commercial applicator, noncommercial
14-12 applicator, or private applicator and authorized by the license to
14-13 purchase or use the restricted-use or state-limited-use pesticide
14-14 or regulated herbicide in the license use categories covering the
14-15 proposed pesticide use;
14-16 (2) an individual acting under the direct supervision
14-17 of a licensed applicator, except as provided by Subsection (b) of
14-18 this section and by Sections 76.003(e) and 76.116(f); or
14-19 (3) a certified private applicator as defined in
14-20 Section 76.112(j) of this code.
14-21 (b) An individual is under the direct supervision of a
14-22 licensed [noncommercial or a licensed private] applicator if the
14-23 individual is acting under the instructions and control of a
14-24 licensed [noncommercial or a licensed private] applicator who is
14-25 responsible for the actions of the individual and who is available
14-26 if and when needed. A licensed applicator may not supervise an
14-27 applicator whose license or certificate is under suspension or
14-28 revocation. The licensed [noncommercial or licensed private]
14-29 applicator is not required to be physically present at the time and
14-30 place of the pesticide application unless the label of the applied
14-31 pesticide states that the presence of the licensed applicator is
14-32 required.
14-33 (c) [An individual is under the direct supervision of a
14-34 licensed commercial applicator if the individual is acting under
14-35 the instructions and control of a licensed commercial applicator
14-36 who is responsible for the actions of the individual and who is
14-37 continuously physically present at the time and place of the
14-38 pesticide application.]
14-39 [(d)] A licensed applicator is responsible for assuring that
14-40 the person working under the licensee's direct supervision is
14-41 knowledgeable of the label requirements and rules and regulations
14-42 governing the use of [the particular] pesticides [being used by the
14-43 individual]. A licensed applicator satisfies the requirements of
14-44 this subsection if the person working under the licensee's direct
14-45 supervision has been trained as a handler under the federal worker
14-46 protection standard [attends a program conducted by the department
14-47 that is designed to make the person knowledgeable of the label
14-48 requirements and rules and regulations governing the use of
14-49 pesticides].
14-50 (d) [(e)] A person who is authorized under this chapter to
14-51 use restricted-use or state-limited-use pesticides or regulated
14-52 herbicides shall comply with all applicable federal and state
14-53 rules, regulations, and court orders regarding the use of
14-54 restricted-use or state-limited-use pesticides or regulated
14-55 herbicides.
14-56 (e) Except as provided by Section 76.003(e), a person may
14-57 not purchase a restricted-use or state-limited-use pesticide or
14-58 regulated herbicide unless the person is a licensed or a certified
14-59 applicator or authorized by a licensed or certified applicator to
14-60 purchase or take delivery for the applicator.
14-61 (f) The other provisions of this section notwithstanding,
14-62 the department may adopt rules or establish programs that the U.S.
14-63 Environmental Protection Agency or another federal agency requires
14-64 as a condition for receiving:
14-65 (1) approval to authorize use of certain
14-66 restricted-use or state-limited-use pesticides or regulated
14-67 herbicides;
14-68 (2) federal funding for licensing or certification of
14-69 pesticide applicators;
15-1 (3) federal funding for pesticide law enforcement
15-2 efforts; or
15-3 (4) other federal funding related to pesticide risk
15-4 reduction.
15-5 (g) The other provisions of this chapter notwithstanding, if
15-6 the U.S. Environmental Protection Agency or another federal agency
15-7 imposes on the state standards for certification of commercial,
15-8 noncommercial, or private pesticide applicators, the department may
15-9 adopt by rule the federal standards for each classification of
15-10 applicators for which the federal standards are imposed.
15-11 Sec. 76.106. Classification of Licenses. (a) The head of
15-12 each regulatory agency may classify commercial applicator and
15-13 noncommercial applicator licenses under subcategories of license
15-14 use categories according to the subject, method, or place of
15-15 pesticide application.
15-16 (b) A regulatory agency head shall establish separate
15-17 testing requirements for licensing in each license use category for
15-18 which the agency is responsible and may establish separate testing
15-19 requirements for licensing in subcategories within a license use
15-20 category.
15-21 (c) Each regulatory agency may charge a testing fee, as
15-22 fixed by the head of the regulatory agency, for testing in each
15-23 license use category.
15-24 Sec. 76.107. Licensing by More Than One Agency. (a) A
15-25 person who wants to be licensed as a pesticide applicator under
15-26 license use categories regulated by more than one regulatory agency
15-27 may do so by paying a single license fee to the agency regulating
15-28 the person's primary business and meeting licensing requirements
15-29 for each category for which the person desires licensing.
15-30 (b) A person licensed under this section must pay testing
15-31 fees required by each regulatory agency.
15-32 Sec. 76.108. Commercial Applicator License. (a) A person
15-33 who operates a business or is an employee of a business that
15-34 applies state-limited-use or restricted-use pesticides or regulated
15-35 herbicides to the land of another person for hire or compensation
15-36 and who is required to be licensed by Section 76.105 of this code
15-37 shall apply to the appropriate regulatory agency for a commercial
15-38 applicator license issued for the license use categories and
15-39 subcategories in which the pesticide application is to be made.
15-40 (b) A person shall apply for an original or renewal
15-41 commercial applicator license on forms prescribed by the regulatory
15-42 agency. The application shall include information as required by
15-43 rule of the head of the agency and must be accompanied by an annual
15-44 license fee, as fixed by the head of the agency.
15-45 (c) The head of a regulatory agency may not issue an
15-46 original commercial applicator license before the applicant has[:]
15-47 [(1) filed with the agency evidence of financial
15-48 responsibility as required by Section 76.111 of this code; and]
15-49 [(2)] passed an examination under Section 76.110 of
15-50 this code.
15-51 (d) The head of a regulatory agency may not issue a
15-52 commercial applicator license if it has been determined that:
15-53 (1) the applicant has been convicted of a felony
15-54 involving moral turpitude in the last five years;
15-55 (2) the applicant has had a license issued under this
15-56 subchapter revoked within the last two years;
15-57 (3) the applicant[, or the applicant's representative
15-58 if the applicant is a business,] has been unable to satisfactorily
15-59 fulfill licensing requirements; or
15-60 (4) the applicant for any other reason cannot be
15-61 expected to be able to fulfill the provisions of this subchapter
15-62 applicable to the license use category for which application is
15-63 made.
15-64 (e) An individual to whom a commercial applicator license is
15-65 issued is authorized to purchase, use, and supervise the use of
15-66 restricted-use and state-limited-use pesticides or regulated
15-67 herbicides in the license use categories and subcategories in which
15-68 the individual is licensed.
15-69 (f) [If a license is issued in the name of a business, the
16-1 business must have a licensed applicator employed at all times.
16-2 Failure to have a licensed applicator employed is a ground for
16-3 revocation of a business commercial applicator license.]
16-4 [(g)] As a condition to issuance of a commercial applicator
16-5 license, an applicant located outside this state shall file with
16-6 the regulatory agency a written instrument designating a resident
16-7 agent for service of process in actions taken in the administration
16-8 and enforcement of this chapter. Instead of designating a resident
16-9 agent, the applicant may designate in writing the secretary of
16-10 state as the recipient of service of process for the applicant in
16-11 this state.
16-12 Sec. 76.109. Noncommercial Applicator License. (a) A
16-13 person who is required to be licensed under Section 76.105 of this
16-14 code but who does not qualify as a commercial applicator or a
16-15 private applicator shall apply to the appropriate regulatory agency
16-16 for a noncommercial applicator license issued for the license use
16-17 categories and subcategories in which the pesticide application is
16-18 to be made.
16-19 (b) A person shall apply for an original or renewal
16-20 noncommercial applicator license on forms prescribed by the
16-21 regulatory agency. An [A nongovernmental] applicant shall include
16-22 with the application an annual license fee, as fixed by the head of
16-23 the regulatory agency. [A regulatory agency may not charge a
16-24 governmental entity applicant a license fee.]
16-25 (c) The head of a regulatory agency may not issue an
16-26 original noncommercial applicator license before the applicant has
16-27 passed an examination under Section 76.110 of this code.
16-28 (d) An individual to whom a noncommercial applicator license
16-29 is issued is authorized to purchase, use, and supervise the use of
16-30 restricted-use and state-limited-use pesticides or regulated
16-31 herbicides in the license use categories and subcategories in which
16-32 the individual is licensed.
16-33 (e) If a license is issued in the name of a governmental
16-34 entity, the entity must have a licensed applicator employed at all
16-35 times. Failure to have a licensed applicator employed is a ground
16-36 for revocation of a governmental entity noncommercial applicator
16-37 license.
16-38 (f) As a condition to issuance of a noncommercial applicator
16-39 license, an applicant located outside this state shall file with
16-40 the regulatory agency a written instrument designating a resident
16-41 agent for service of process in actions taken in the administration
16-42 and enforcement of this chapter. Instead of designating a resident
16-43 agent, the applicant may designate in writing the secretary of
16-44 state as the recipient of service of process for the applicant in
16-45 this state.
16-46 Sec. 76.110. Commercial and Noncommercial Applicator
16-47 Examination; Reciprocal Agreements. (a) Each person applying for
16-48 a license as a commercial applicator or a noncommercial applicator
16-49 must pass an examination demonstrating that the person:
16-50 (1) is properly qualified to perform functions
16-51 associated with pesticide application to a degree directly related
16-52 to the nature of the activity and the associated responsibility;
16-53 and
16-54 (2) has knowledge of the use and effects of
16-55 restricted-use and state-limited-use pesticides or regulated
16-56 herbicides in the license use categories and subcategories in which
16-57 the person is to be licensed.
16-58 (b) Not later than the 30th day after the date on which a
16-59 licensing examination is administered under this section, the
16-60 appropriate regulatory agency shall notify each examinee of the
16-61 results of the examination. However, if an examination is graded
16-62 or reviewed by a national testing service, the appropriate
16-63 regulatory agency shall notify examinees of the results of the
16-64 examination not later than the 14th day after the date on which the
16-65 appropriate regulatory agency receives the results from the testing
16-66 service. If the notice of examination results graded or reviewed
16-67 by a national testing service will be delayed for longer than 90
16-68 days after the examination date, the appropriate regulatory agency
16-69 shall notify the examinee of the reason for the delay before the
17-1 90th day. The appropriate regulatory agency may require a testing
17-2 service to notify examinees of the results of an examination.
17-3 (c) If requested in writing by the person who fails a
17-4 licensing examination administered under this section, the
17-5 appropriate regulatory agency shall furnish the person with an
17-6 analysis of the person's performance on the examination.
17-7 (d) The appropriate regulatory agency may waive any
17-8 prerequisite to obtaining a license for an applicant after
17-9 reviewing the applicant's credentials and determining that the
17-10 applicant holds a valid license from another state that has license
17-11 requirements substantially equivalent to those of this state.
17-12 Sec. 76.111. [Commercial] Applicator Businesses; Proof of
17-13 Financial Responsibility. (a) In this section "applicator
17-14 business" means a person who applies a state-limited-use or
17-15 restricted-use pesticide or regulated herbicide to the land of
17-16 another for compensation and who:
17-17 (1) is a licensed commercial applicator; or
17-18 (2) employs at least one licensed commercial
17-19 applicator.
17-20 (b) This section does not apply to an employee or agent of
17-21 an applicator business.
17-22 (c) Except as otherwise provided by this section, each
17-23 applicator business [applicant for a commercial applicator license]
17-24 shall file with the regulatory agency issuing the license[:]
17-25 [(1) a bond executed by the applicant as principal and
17-26 by a corporate surety licensed to do business in Texas as surety;
17-27 or]
17-28 [(2)] a liability insurance policy, [or] certification
17-29 of a policy, or other proof of financial responsibility considered
17-30 acceptable by the department protecting persons who may suffer
17-31 damages as a result of the operations of the applicator business,
17-32 its employees, and its agents [applicant].
17-33 [(b) If an applicant cannot reasonably obtain insurance
17-34 coverage or a bond as specified by Subsection (f) of this section,
17-35 the regulatory agency shall accept a certificate of deposit or a
17-36 letter of credit that meets the requirements of Subsection (c)(1)
17-37 and rules adopted under Subsection (e) of this section.]
17-38 [(c) If the State Board of Insurance determines after giving
17-39 notice to the regulatory agency that the liability insurance policy
17-40 required by Subsection (a)(2) of this section is not generally and
17-41 reasonably available to commercial pesticide applicators, then in
17-42 lieu of the requirements of Subsection (a) of this section, an
17-43 applicant for a commercial applicator license may:]
17-44 [(1) tender from a state or federal financial
17-45 institution whose deposits are insured by the Federal Deposit
17-46 Insurance Corporation or by the Federal Savings and Loan Insurance
17-47 Corporation a certificate of deposit or letter of credit in the
17-48 amount prescribed by Subsection (f) of this section, made payable
17-49 to the regulatory agency and issued for the purpose of protecting
17-50 persons who may suffer damages as a result of the operations of the
17-51 applicant;]
17-52 [(2) file property damage and personal injury
17-53 insurance or certification of such insurance that is generally and
17-54 reasonably available as determined by the State Board of Insurance;
17-55 or]
17-56 [(3) comply with other proof of financial
17-57 responsibility requirements adopted by rule of the regulatory
17-58 agency under this subchapter.]
17-59 (d) The proof of financial responsibility required by this
17-60 section is not required to apply to damages or injury to
17-61 agricultural crops, plants, or land being worked on by the
17-62 applicator business, its employees, or its agents [applicant].
17-63 (e) [The proof of financial responsibility required by this
17-64 section must be approved by the regulatory agency and conditioned
17-65 on compliance with the requirements of this chapter and rules
17-66 adopted under this chapter.]
17-67 [(f)] Except as otherwise provided by this section, the
17-68 amount of the proof of financial responsibility may not be less
17-69 than $100,000 for each occurrence for property damage and may not
18-1 be less than $100,000 for each occurrence for bodily injury or a
18-2 general aggregate at a minimum of $200,000 for each occurrence.
18-3 The head of a regulatory agency by rule may require different
18-4 amounts of coverage for different classifications of operations
18-5 under this chapter. The [At all times during the license period,
18-6 the] coverage must at all times be maintained at not less than the
18-7 amount set by the agency head or the Texas Department [State Board]
18-8 of Insurance[, as applicable].
18-9 [(g) At least 10 days before a reduction requested by a
18-10 licensee or a cancellation of a bond or liability insurance policy,
18-11 the party taking the action shall notify the head of the
18-12 appropriate regulatory agency. If the party does not give that
18-13 notice, the liability of the surety or insurer is limited to the
18-14 bond or liability insurance policy.]
18-15 (f) [(h)] The head of a regulatory agency may accept a [bond
18-16 or] liability insurance policy in the proper sum which has a
18-17 deductible clause in an amount of not more than $1,000 for the
18-18 total amount of the [bond or] liability insurance policy required
18-19 by this section. If the applicator business [applicant] has not
18-20 satisfied the requirement of the deductible amount in any prior
18-21 legal claim, an agency head may not accept a [bond or] policy with
18-22 a deductible clause unless the applicator business [applicant]
18-23 furnishes the agency with a surety bond that satisfies the amount
18-24 of the deductible clause as to all claims that may arise as a
18-25 result of the [applicant's] operation of the applicator business.
18-26 (g) An applicator business shall cease state-limited-use or
18-27 restricted-use pesticide or regulated herbicide application
18-28 operations during a period in which the applicator business is
18-29 unable to provide adequate proof of financial responsibility under
18-30 Subsection (e).
18-31 [(i) The department shall exempt a commercial applicator
18-32 from the requirements of showing proof of financial responsibility
18-33 under this section if the applicator agrees:]
18-34 [(1) to a license for use of ground application
18-35 equipment only; and]
18-36 [(2) to a license that limits the application to only
18-37 those herbicides determined by the department not to create a
18-38 substantial risk of drift because of volatility.]
18-39 [(j) Should the surety furnished under this section become
18-40 insufficient or otherwise unsatisfactory, a licensee shall, on
18-41 notice of the insufficiency or other defect, immediately file a new
18-42 bond, liability insurance policy, or any other proof of financial
18-43 responsibility as authorized by rule of the regulatory agency. A
18-44 licensee may not operate as a commercial applicator during an
18-45 uncovered period. Failure to file a bond, or liability insurance
18-46 policy, other proof of authorized financial responsibility or
18-47 failure to maintain the surety in the required amount is a ground
18-48 for suspension or revocation of a commercial applicator license.]
18-49 [(k) The regulatory agency by rule may prescribe acceptable
18-50 proof of financial responsibility and appropriate procedures to
18-51 carry out the purposes of this section. The regulatory agency may
18-52 adopt rules governing the conditions and handling of certificates
18-53 of deposit and letters of credit, but may not disburse funds or
18-54 release a certificate or letter except by consent of the commercial
18-55 applicator or pursuant to court order.]
18-56 Sec. 76.112. Private Applicator. (a) A person is a private
18-57 applicator if the person uses or supervises the use of a
18-58 restricted-use or state-limited-use pesticide or regulated
18-59 herbicide for the purpose of producing an agricultural commodity:
18-60 (1) on property owned or rented by the person or the
18-61 person's employer or under the person's general control; or
18-62 (2) on the property of another person if applied
18-63 without compensation other than the trading of personal services,
18-64 or services related to agricultural production, including the use
18-65 of equipment, between producers of agricultural commodities.
18-66 (b) A private applicator is required to be either licensed
18-67 or certified to use restricted-use or state-limited-use pesticides
18-68 or regulated herbicides.
18-69 (c) An employee qualifies as a private applicator under
19-1 [Subdivision (1) of] Subsection (a)(1) of this section only if he
19-2 is employed to perform other duties related to agricultural
19-3 production and provide labor for the pesticide application but does
19-4 not provide the necessary equipment or pesticide.
19-5 (d) A private applicator who is required to be licensed by
19-6 Section 76.105 of this code shall apply to the department
19-7 [appropriate regulatory agency] for a private applicator license.
19-8 (e) A person shall apply for an original or renewal private
19-9 applicator license on forms prescribed by the department
19-10 [regulatory agency]. The application shall include information as
19-11 required by department [agency] rule and must be accompanied by a
19-12 fee, as fixed by the department [head of the regulatory agency].
19-13 (f) The department [head of a regulatory agency] may not
19-14 issue an original private applicator license before the applicant
19-15 has attended a training course conducted by the Texas Agricultural
19-16 Extension Service or another training course approved by the
19-17 department. The department shall approve appropriate training
19-18 courses developed under the coordination of the Texas Agricultural
19-19 Extension Service and to be conducted by other governmental
19-20 agencies or nongovernmental entities. The training course shall
19-21 cover the use, effects, and risks of restricted-use and
19-22 state-limited-use pesticides or regulated herbicides.
19-23 (g) The department [head of a regulatory agency] may not
19-24 issue a private applicator license if the applicant has had a
19-25 license issued under this subchapter revoked within the last two
19-26 years.
19-27 (h) An individual to whom a private applicator license is
19-28 issued is authorized to purchase, use, and supervise the use of
19-29 restricted-use and state-limited-use pesticides or regulated
19-30 herbicides in all license use categories and subcategories for the
19-31 purpose of producing an agricultural commodity on property
19-32 described by Subsection (a)(1) or (a)(2) of this section.
19-33 (i) As a condition to issuance of a private applicator
19-34 license, an applicant located outside this state shall file with
19-35 the department [regulatory agency] a written instrument designating
19-36 a resident agent for service of process in actions taken in
19-37 administration and enforcement of this chapter. Instead of
19-38 designating a resident agent, the applicant may designate in
19-39 writing the secretary of state as the recipient of service of
19-40 process for the applicant in this state.
19-41 (j) For purposes of this chapter, a certified private
19-42 applicator is a private applicator who has been previously
19-43 certified under the department's voluntary certification program
19-44 and who holds a private applicator certificate dated prior to
19-45 January 10, 1989. A certified private applicator is authorized to
19-46 use restricted-use and state-limited-use pesticides or regulated
19-47 herbicides in all license use categories and subcategories for the
19-48 purpose of producing an agricultural commodity on property
19-49 described by Subsection (a)(1) or (a)(2) of this section. A
19-50 certified private applicator may not supervise the use of
19-51 restricted-use and state-limited-use pesticides or regulated
19-52 herbicides.
19-53 Sec. 76.113. Expiration and Renewal of Licenses. (a) Each
19-54 commercial applicator or noncommercial applicator license expires
19-55 on the last day of February of the year following the year in which
19-56 it was issued.
19-57 (b) Each private applicator license expires on the last day
19-58 of February of the fifth year following the year in which it was
19-59 issued.
19-60 (c) Except as provided by Subsection (d) of this section, a
19-61 person having a valid license issued under this subchapter may
19-62 renew the license for another term without retesting by paying to
19-63 the regulatory agency the license fee required by this subchapter.
19-64 A person who fails to apply for renewal of a license on or before
19-65 the expiration date must pay, in addition to the annual license
19-66 fee, the late fee provided by Section 12.024 of this code.
19-67 (d) A licensee must undertake training, submit to retesting,
19-68 or both, before renewal of a license if the head of the agency
19-69 determines that additional knowledge is required for renewal.
20-1 Sec. 76.114. Records. (a) A regulatory agency shall
20-2 require each commercial [applicator] and noncommercial applicator
20-3 licensee to maintain records of all pesticide applications [the
20-4 licensee's use of pesticides]. The department may require each
20-5 commercial or noncommercial applicator licensee to keep records of
20-6 the licensee's application of a specific restricted-use or
20-7 state-limited-use pesticide or regulated herbicide and may require
20-8 those records to be kept separate from other business records. The
20-9 regulatory agency by rule shall prescribe the information to be
20-10 entered into [included in] the records.
20-11 (b) Each private applicator shall maintain records of
20-12 regulated herbicide and state-limited-use pesticide applications
20-13 and shall maintain those records of restricted-use pesticide
20-14 applications required by federal law [A regulatory agency may
20-15 require a commercial applicator and noncommercial applicator
20-16 licensee to keep records of the licensee's application of a
20-17 specific restricted-use or state-limited-use pesticide and may
20-18 require those records to be kept separate from other business
20-19 records].
20-20 (c) A licensee shall keep records required under this
20-21 section for a period of two years from the date of the pesticide
20-22 application. The licensee shall keep these records accessible and
20-23 available for copying and shall store them in a location suitable
20-24 to preserve their physical integrity.
20-25 (d) On written request of the regulatory agency, a licensee
20-26 shall furnish the department [agency] a copy of any requested
20-27 record pertaining to the application of pesticides. The department
20-28 may require all persons who apply a regulated herbicide to submit
20-29 periodically to the department a copy of the records required by
20-30 this section.
20-31 Sec. 76.115. [Registration and] Inspection of Equipment.
20-32 (a) Each regulatory agency may inspect [shall provide for the
20-33 registration and inspection of] equipment used in the [commercial]
20-34 application of a restricted-use or state-limited-use pesticide.
20-35 (b) A regulatory agency may require repairs or alterations
20-36 of equipment before further use in the application of
20-37 restricted-use or state-limited-use pesticides.
20-38 (c) The department by rule may:
20-39 (1) provide requirements for and inspect equipment
20-40 used to apply regulated herbicides; and
20-41 (2) regulate or prohibit the use of certain equipment
20-42 in the application of regulated herbicides if that use would be
20-43 hazardous in an area of the state [The head of a regulatory agency
20-44 by rule shall adopt standards that must be met before equipment may
20-45 be registered].
20-46 (d) Each piece of registered equipment shall be identified
20-47 by a license plate or decal furnished by a regulatory agency at no
20-48 cost to the licensee. The license plate or decal must be attached
20-49 to the equipment in a manner and location prescribed by the
20-50 regulatory agency.
20-51 Sec. 76.116. Suspension, Modification, or Revocation of
20-52 License. (a) The head of a regulatory agency that licensed or
20-53 certified an applicator may suspend, modify, or revoke a [any
20-54 provision in the] license or certificate, assess an administrative
20-55 penalty, place on probation a person whose license or certificate
20-56 has been suspended, [or] reprimand a licensee or certificate
20-57 holder, or take a combination of those actions if the head of the
20-58 agency finds that the licensee or certificate holder has:
20-59 (1) made a pesticide recommendation or application
20-60 inconsistent with the pesticide's labeling or with the restrictions
20-61 on the use of the pesticide imposed by the state or the
20-62 Environmental Protection Agency;
20-63 (2) operated in a faulty, careless, or negligent
20-64 manner;
20-65 (3) refused, or after notice, failed to comply with an
20-66 applicable provision of this chapter, a rule adopted under this
20-67 chapter, or a lawful order of the head of a regulatory agency by
20-68 which the licensee is licensed;
20-69 (4) refused or neglected to keep and maintain the
21-1 records required by this chapter or to make reports when and as
21-2 required by this chapter;
21-3 (5) failed to maintain financial responsibility [a
21-4 bond or policy of insurance] as required by this chapter;
21-5 (6) made false or fraudulent records, invoices, or
21-6 reports;
21-7 (7) used fraud or misrepresentation in making an
21-8 application for a license or renewal of a license; or
21-9 (8) aided or abetted a certified, licensed, or an
21-10 unlicensed person to evade the provisions of this chapter,
21-11 conspired with a certified, licensed, or an unlicensed person to
21-12 evade the provisions of this chapter, or allowed the licensee's
21-13 license or the certificate holder's certificate to be used by
21-14 another person.
21-15 (b) A regulatory agency may temporarily suspend a license or
21-16 certificate under this section for not more than 10 days after
21-17 giving the licensee or certificate holder written notice of
21-18 noncompliance.
21-19 (c) If a license or certificate suspension is probated, the
21-20 regulatory agency may require the person to:
21-21 (1) report regularly to the agency on matters that are
21-22 the basis of the probation;
21-23 (2) limit practice to the areas prescribed by the
21-24 agency; or
21-25 (3) continue or renew professional education until the
21-26 person attains a degree of skill satisfactory to the agency in
21-27 those areas that are the basis of the probation.
21-28 (d) Except for a temporary suspension under Subsection (b)
21-29 of this section, if the regulatory agency, except for the
21-30 department, proposes to not renew, suspend, modify, or revoke a
21-31 person's license or certificate, the person is entitled to a
21-32 hearing before a hearings officer designated by the agency. The
21-33 agency shall prescribe procedures by which all decisions to not
21-34 renew, suspend, modify, or revoke are appealable to the governing
21-35 officer or board of the agency.
21-36 (e) Except for a temporary suspension under Subsection (b)
21-37 of this section, if the department proposes to not renew, suspend,
21-38 modify, or revoke a person's license or certificate, the person is
21-39 entitled to a hearing conducted as provided under Section 12.032.
21-40 The decision of the department is appealable in the same manner as
21-41 provided for contested cases under Chapter 2001, Government Code.
21-42 (f) An applicator whose license or certificate is under
21-43 suspension or revocation by a regulatory agency may not apply
21-44 restricted-use or state-limited-use pesticides or regulated
21-45 herbicides under the direct supervision of another licensed
21-46 applicator during that period of suspension or revocation.
21-47 Sec. 76.117. Property Owner Use. This chapter does not
21-48 prohibit a property owner from using in the property owner's house,
21-49 lawn, or garden a pesticide that is labeled for that use, other
21-50 than a pesticide that may be registered or [and] classified for use
21-51 only by certified applicators.
21-52 Sec. 76.118. EXEMPTION FOR LICENSED VETERINARIANS. The
21-53 other provisions of this chapter notwithstanding, a person who is
21-54 licensed to practice veterinary medicine by the State Board of
21-55 Veterinary Medical Examiners and who is only using a restricted-use
21-56 or state-limited-use pesticide or a regulated herbicide as a drug
21-57 or medication during the course of the veterinarian's normal
21-58 practice or as a private applicator may not be required to obtain
21-59 a license under this chapter to purchase or use the restricted-use
21-60 or state-limited-use pesticide or regulated herbicide.
21-61 SUBCHAPTER F. STORAGE AND DISPOSAL
21-62 Sec. 76.131. Rules. (a) The department may adopt rules
21-63 governing the storage and disposal of pesticides and pesticide
21-64 containers for the purpose of:
21-65 (1) preventing injury from storage or disposal to man,
21-66 vegetation, crops, or animals; and
21-67 (2) preventing any water [waterway] pollution that is
21-68 harmful to man or wildlife provided, however, that such rules be
21-69 consistent with and not less stringent than Texas Natural Resource
22-1 Conservation Commission rules adopted under Chapter 26 of the Water
22-2 Code.
22-3 (b) A person may not store or dispose of a pesticide in
22-4 violation of a rule adopted by the department under this section.
22-5 (c) Applicators and other entities covered by this chapter
22-6 who normally store products listed under the FIFRA in an amount
22-7 that exceeds 55 gallons, 500 pounds, or a lesser amount the
22-8 department determines by rule for certain highly toxic or dangerous
22-9 chemicals covered by this chapter, within one-quarter mile of a
22-10 residential area composed of three or more private dwellings for
22-11 more than 72 hours, shall provide to the fire chief of the fire
22-12 department having jurisdiction over the storage place, in writing,
22-13 the name and telephone number of the applicator or a knowledgeable
22-14 representative of the applicator or other entity storing the
22-15 product who can be contacted for further information or contacted
22-16 in case of emergency.
22-17 (d) On request, each applicator or entity shall provide to
22-18 the fire chief having jurisdiction over the storage place a copy of
22-19 a list of pesticides stored by the applicator or entity. The
22-20 applicator or other entity shall notify the fire chief of any
22-21 significant changes that occur relating to the stored pesticides if
22-22 requested by the fire chief in writing.
22-23 (e) The fire chief having jurisdiction over the storage
22-24 place or the fire chief's representative, on request, shall be
22-25 permitted to conduct on-site inspections of the pesticides stored
22-26 for the sole purpose of preparing fire department activities in
22-27 case of an emergency.
22-28 (f) On request, the fire chief having jurisdiction over the
22-29 storage place shall make the stored pesticide list available to
22-30 members of the fire department having jurisdiction over the
22-31 workplace and to personnel outside the fire department who are
22-32 responsible for preplanning emergency activities, but may not
22-33 otherwise distribute the information without approval of the
22-34 applicator.
22-35 SUBCHAPTER G. HERBICIDES
22-36 Sec. 76.141. REGULATED HERBICIDES. (a) After a public
22-37 hearing on the issue, and in accordance with Subsection (b), the
22-38 department by rule may adopt a list of regulated herbicides for the
22-39 state or for one or more designated areas in the state.
22-40 (b) The department may include a herbicide on the list of
22-41 regulated herbicides if the department determines that, if used as
22-42 directed or in accordance with widespread and commonly recognized
22-43 practice, the herbicide requires additional restrictions to prevent
22-44 a hazard to desirable vegetation caused by drift or an uncontrolled
22-45 application.
22-46 (c) A person may not distribute a regulated herbicide unless
22-47 the person holds a dealer's license issued by the department.
22-48 Sec. 76.142. APPLICATION OF REGULATED HERBICIDE. (a) If a
22-49 person applies a regulated herbicide, the person shall act in
22-50 accordance with each applicable rule adopted by the department,
22-51 including a rule adopted under this subchapter.
22-52 (b) If a regulated herbicide is applied by a commercial
22-53 applicator, the person in control of the crop or land to which the
22-54 regulated herbicide is applied and the commercial applicator are
22-55 jointly responsible for ensuring that the application is in
22-56 compliance with this chapter and each applicable rule adopted by
22-57 the department.
22-58 (c) If the department finds that an application of a
22-59 regulated herbicide is hazardous to crops or valuable plants in an
22-60 area, the department may prohibit the application of a regulated
22-61 herbicide in that area for any period during which the hazard
22-62 exists.
22-63 Sec. 76.143. PUBLIC HEARING. As soon as practicable after
22-64 receiving a written request for a revision of a rule, an exemption
22-65 from a requirement of this chapter, or a prohibition of the
22-66 spraying of a regulated herbicide in an area, the department may
22-67 hold a public hearing to hear the request.
22-68 Sec. 76.144. COUNTY HERBICIDE REGULATIONS. (a) If the
22-69 commissioners court of a county determines that a valuable crop or
23-1 vegetation susceptible to being adversely affected by the
23-2 application of a regulated herbicide exists in an area of the
23-3 county and that a departmental rule adopted or prohibition
23-4 prescribed under Section 76.141 or 76.142 not currently applicable
23-5 to the area should apply to the area, the commissioners court may
23-6 enter an order in the minutes of the court under which the
23-7 department's rule or prohibition under Section 76.141 or 76.142
23-8 becomes effective in the specified area of the county beginning
23-9 January 1 of the following year.
23-10 (b) If the commissioners court of a county determines that
23-11 there is no longer a valuable crop or vegetation susceptible to
23-12 being adversely affected by the application of a regulated
23-13 herbicide in the specified area of the county, the court may
23-14 rescind its order under Subsection (a) effective January 1 of the
23-15 following year.
23-16 (c) The department shall adopt rules concerning the use of a
23-17 regulated herbicide in a county in which the commissioners court
23-18 has entered an order under Subsection (a) of this section.
23-19 (d) The department may immediately suspend a rule of the
23-20 department regarding the application dates of a regulated herbicide
23-21 in an area of a county if:
23-22 (1) the commissioners court of the county established
23-23 the applicability of the rule by adopting an order as provided by
23-24 Subsection (a);
23-25 (2) the commissioners court requests that the
23-26 department immediately suspend the rule; and
23-27 (3) the department determines that an imminent threat
23-28 to agricultural interests exists in the county and if that threat
23-29 is not immediately addressed by a suspension of the department's
23-30 rule a significant economic loss will result.
23-31 (e) Before the commissioners court of a county may enter an
23-32 order under this section, the commissioners court shall hold a
23-33 hearing to determine whether the order should be issued. Before
23-34 the 10th day before the date on which the hearing is to be held,
23-35 the commissioners court shall publish notice of the hearing in at
23-36 least one newspaper in the county.
23-37 (f) The commissioners court shall transcribe the hearing and
23-38 make findings of fact based on the hearing and conclusions of law
23-39 to support its order in the manner prescribed for a final order or
23-40 decision in a contested case under Chapter 2001, Government Code.
23-41 (g) Before the 21st day after the date on which an order
23-42 under Subsection (a) is entered, an interested person may appeal
23-43 the order to a district court in the county to test the
23-44 reasonableness of the basis for the commissioners court order. The
23-45 provisions of Subchapter G, Chapter 2001, Government Code, that
23-46 apply to the judicial review of a contested case under the
23-47 substantial evidence rule apply to the appeal, except that the
23-48 appeal is brought in a district court for the county in which the
23-49 appealed order applies. An appeal may be taken from the district
23-50 court as in other civil cases.
23-51 (h) The commissioners court of the county shall notify the
23-52 department of a change in the status of a county or a portion of a
23-53 county under this section.
23-54 SUBCHAPTER H [G]. ENFORCEMENT
23-55 Sec. 76.151. Entry Power. (a) For the purpose of
23-56 inspection, examination, or sampling, the department is entitled to
23-57 enter at reasonable hours any building or place owned, controlled,
23-58 or operated by a registrant or dealer if from probable cause it
23-59 appears that the building or place contains a pesticide.
23-60 (b) A regulatory agency is entitled to enter any public or
23-61 private premises at reasonable times to:
23-62 (1) inspect any equipment authorized or required to be
23-63 inspected under this chapter or to inspect the premises on which
23-64 the equipment is kept or stored;
23-65 (2) inspect or sample land exposed or reported to be
23-66 exposed to a pesticide;
23-67 (3) inspect an area where a pesticide is disposed of
23-68 or stored; or
23-69 (4) observe the use and application of a
24-1 restricted-use or state-limited-use pesticide or regulated
24-2 herbicide.
24-3 (c) If a regulatory agency is denied access to any land to
24-4 which access was sought at a reasonable time for any of the
24-5 purposes listed in Subsection (b) of this section, the head of the
24-6 regulatory agency may apply to a magistrate for a warrant
24-7 authorizing access to the land for any of those purposes. On a
24-8 showing of probable cause to believe that a violation of a rule
24-9 relating to a purpose listed in Subsection (b) of this section has
24-10 occurred, the magistrate shall issue the search warrant for the
24-11 purposes requested.
24-12 Sec. 76.152. Sampling. The department is entitled to take a
24-13 sample for official analysis from any package or lot of pesticides
24-14 found within this state.
24-15 Sec. 76.153. Stop Use, Stop Distribution, or Removal
24-16 [Stop-Sale] Order. (a) If the department has reason to believe
24-17 that a pesticide is in violation of any provision of this chapter,
24-18 the department may issue and enforce a written or printed order to
24-19 stop the use or distribution [sale] of the pesticide or requiring
24-20 the pesticide to be removed and secured from further distribution.
24-21 The department shall present the order to the owner or custodian of
24-22 the pesticide. The person who receives the order may not sell,
24-23 distribute, or use the pesticide until the department determines
24-24 that the pesticide:
24-25 (1) is in compliance with this chapter; or
24-26 (2) does not present a hazard to the public health,
24-27 safety, or welfare.
24-28 (b) This section does not limit the right of the department
24-29 to proceed as authorized by another section of this chapter.
24-30 Sec. 76.154. Injunction. (a) The department may sue in the
24-31 name of the commissioner to enjoin any violation of a provision of
24-32 this chapter. Venue is in the county in which the alleged
24-33 violation occurred or is occurring.
24-34 (b) A regulatory agency may request an appropriate
24-35 prosecuting attorney or the attorney general to sue to enjoin a
24-36 violation or threatened violation of a provision of this chapter
24-37 that is within the agency's responsibility.
24-38 Sec. 76.155. Prosecutions. The department [A regulatory
24-39 agency] may request the appropriate prosecuting attorney to
24-40 prosecute a violation of a provision of this chapter.
24-41 Sec. 76.1555. Administrative Penalty. (a) If a person
24-42 violates a provision of this chapter [Chapter 75 or 76 of this code
24-43 administered by the department] or a rule or order adopted by the
24-44 department under this chapter [either of those chapters], the
24-45 department may assess an administrative penalty against the person
24-46 as provided by Section 12.020, except that the penalty shall not
24-47 exceed $4,000 for all violations related to a single incident.
24-48 (b) The department shall establish a schedule stating the
24-49 types of violations possible under this chapter [Chapters 75 and 76
24-50 of this code]. The department is not required to comply with
24-51 Subchapter B, Chapter 2001, Government Code, when establishing or
24-52 revising the schedule. The department shall publish the initial
24-53 schedule and any subsequent revision in the Texas Register before
24-54 the schedule or revision is implemented.
24-55 (c) If the department elects to assess an administrative
24-56 penalty, no action for a civil penalty may be based on the same
24-57 violation or violations.
24-58 Sec. 76.156. Civil Penalty. (a) A person who violates a
24-59 provision of this chapter administered by a regulatory agency other
24-60 than the department or a rule adopted by a regulatory agency other
24-61 than the department under this chapter is liable for a civil
24-62 penalty of not less than $50 nor more than $1,000 for each day on
24-63 which the violation occurs.
24-64 (b) A person who violates a provision of this chapter
24-65 administered by the department or a rule adopted by the department
24-66 under this chapter is liable for a civil penalty of not less than
24-67 $50 nor more than $10,000 for each violation, provided that the
24-68 penalty shall not exceed $25,000 for all violations related to a
24-69 single incident.
25-1 (c) No civil penalty may be collected for any violation that
25-2 constituted the basis for a department proceeding to assess an
25-3 administrative penalty, regardless of whether the department was or
25-4 was not successful in collecting the administrative penalty.
25-5 (d) A county attorney, a district attorney, or the attorney
25-6 general shall sue in the name of the state for the collection of a
25-7 civil penalty provided by this section.
25-8 (e) The appropriate regulatory agency may request an
25-9 appropriate prosecuting attorney or the attorney general to bring
25-10 suit under this section.
25-11 (f) A civil penalty collected under this section shall be
25-12 deposited in the state treasury to the credit of the General
25-13 Revenue Fund. All civil penalties recovered in suits first
25-14 instituted by a local government or governments under this section
25-15 shall be equally divided between the State of Texas and the local
25-16 government or governments with 50 percent of the recovery to be
25-17 paid to the General Revenue Fund and the other 50 percent equally
25-18 to the local government or governments first instituting the suit.
25-19 SUBCHAPTER I [H]. REMEDIES
25-20 Sec. 76.181. Appeal of Denial or Cancellation of Pesticide
25-21 Registration. [(a)] A person whose application for registration
25-22 of a pesticide has been denied or whose registration for a
25-23 pesticide has been canceled may appeal the action in the manner
25-24 provided for appeal of contested cases under Chapter 2001,
25-25 Government Code.
25-26 [(b) Appeal under this section is governed by the
25-27 substantial evidence rule.]
25-28 Sec. 76.182. Appeal of Permit or License Denial, Suspension,
25-29 Modification, or Revocation. [(a)] A person whose application for
25-30 an experimental use permit, pesticide dealer license, commercial
25-31 applicator license, noncommercial applicator license, or private
25-32 applicator license has been denied or whose experimental use
25-33 permit, pesticide dealer license, commercial applicator license,
25-34 noncommercial applicator license, private applicator license, or
25-35 private applicator certificate has been suspended for more than 10
25-36 days, revoked, or modified may appeal the action in the manner
25-37 provided for appeal of contested cases under Chapter 2001,
25-38 Government Code.
25-39 [(b) Appeal under this section is governed by the
25-40 substantial evidence rule.]
25-41 Sec. 76.183. Appeal of Stop Use, Stop Distribution, or
25-42 Removal [Stop-Sale] Order. (a) The owner or custodian of a
25-43 pesticide to which a stop use, stop distribution, or removal
25-44 [stop-sale] order is imposed under Section 76.153 [applies] may
25-45 appeal the order to a court of competent jurisdiction in the county
25-46 where the pesticide is found.
25-47 (b) Appeal under this section is by trial de novo.
25-48 Sec. 76.184. REPORTS OF PESTICIDE ADVERSE EFFECTS [DAMAGE
25-49 CLAIMS]. (a) A person claiming adverse effects from an
25-50 application of a pesticide may file with the appropriate regulatory
25-51 agency a complaint report. The complaint report must contain the
25-52 name of the person, if known, allegedly responsible for the
25-53 application of the pesticide and the name of the owner or lessee of
25-54 the land on which the pesticide was applied. The regulatory agency
25-55 shall prepare a form printed in English and Spanish to be furnished
25-56 to persons for use in filing complaint reports. The form may
25-57 contain other information that is within the person's knowledge and
25-58 requested by the head of the regulatory agency.
25-59 (b) As soon as practicable after receiving a complaint
25-60 report, the regulatory agency shall notify the licensee, the owner
25-61 or lessee of the land on which the alleged application occurred,
25-62 and any other person who may be charged with responsibility for the
25-63 adverse effects claimed. The regulatory agency shall furnish
25-64 copies of the complaint to those people on request.
25-65 (c) To assess any adverse effects, the complaining party
25-66 shall permit the regulatory agency and the licensee to observe,
25-67 within reasonable hours, the land or nontarget organism alleged to
25-68 have been adversely affected.
25-69 (d) Failure to file a complaint does not bar a civil or
26-1 criminal action from being filed and maintained.
26-2 (e) The regulatory agency by rule may adopt procedures to be
26-3 followed in the investigation of a report claiming adverse effects
26-4 from an application of the pesticide. [damages from a pesticide
26-5 application may file with the regulatory agency that licensed the
26-6 certified applicator whose action allegedly caused the damage a
26-7 written statement claiming that the person has been damaged. To be
26-8 eligible for consideration by the agency, the report must be filed
26-9 before the 31st day following the day of the alleged occurrence or,
26-10 if a growing crop is alleged to have been damaged, before the time
26-11 that 25 percent of the crop has been harvested or before the 31st
26-12 day, whichever is less. The report must contain the name of the
26-13 person allegedly responsible for the application of the pesticide
26-14 and the name of the owner or lessee of the land on which the crop
26-15 is grown and to which damage is alleged to have occurred. The
26-16 regulatory agency shall prepare a form to be furnished to persons
26-17 for use in filing damage reports. The form may contain other
26-18 information that is required by the head of the regulatory agency.]
26-19 [(b) On receipt of a report, the regulatory agency shall
26-20 notify the licensee, the owner or lessee of the land on which the
26-21 alleged act occurred, and any other person who may be charged with
26-22 responsibility for the damages claimed. The regulatory agency
26-23 shall furnish copies of the report to those people on request.]
26-24 [(c) The regulatory agency shall inspect damages whenever
26-25 possible and shall report its findings to the person claiming
26-26 damage and to the person alleged to have caused the damage. In
26-27 order that damage may be assessed, the claimant shall permit the
26-28 regulatory agency and the licensee to observe, within reasonable
26-29 hours, the land or nontarget organism alleged to have been damaged.]
26-30 [(d) Failure to file a report does not bar maintenance of a
26-31 civil or criminal action. If a person fails to file a report and
26-32 is the only person claiming injury from the particular use or
26-33 application of a pesticide, the regulatory agency may, if in the
26-34 public interest, refuse to hold a hearing for the denial,
26-35 suspension, or revocation of a license issued under this chapter to
26-36 the person alleged to have caused the damage.]
26-37 Sec. 76.185. Damages Resulting From Application of Pesticide
26-38 Under Government Program. Notwithstanding other law, the owner or
26-39 lessee of land on which a pesticide is applied is not responsible
26-40 for damages resulting from the application of the pesticide or
26-41 subject to a criminal or civil penalty in connection with the
26-42 application of the pesticide if:
26-43 (1) the pesticide is applied under a local, state, or
26-44 federal government program that requires the application of the
26-45 pesticide to the land; and
26-46 (2) the owner or lessee of the land on which the
26-47 pesticide is applied does not control or have a right to control
26-48 the time and manner of the application of the pesticide to the
26-49 land.
26-50 SUBCHAPTER J [I]. PENALTIES
26-51 Sec. 76.201. Offenses. (a) A person commits an offense if
26-52 the person distributes within this state or delivers for
26-53 transportation or transports in intrastate commerce or between
26-54 points within this state through a point outside this state, any
26-55 of the following:
26-56 (1) a pesticide that has not been registered as
26-57 provided by this chapter, except for a pesticide that is not for
26-58 use in this state and is only being manufactured, transported, or
26-59 distributed for use outside of this state;
26-60 (2) a pesticide that has a claim, a direction for its
26-61 use, or labeling that differs from the representations made in
26-62 connection with its registration;
26-63 (3) a pesticide that is not in the registrant's or
26-64 manufacturer's unbroken immediate container and that is not labeled
26-65 with the information and in the manner required by Section 76.021
26-66 of this code;
26-67 (4) a pesticide:
26-68 (A) that is of strength or purity that falls
26-69 below the professed standard or quality expressed on its labeling
27-1 or under which it is sold;
27-2 (B) for which a substance has been substituted
27-3 wholly or in part;
27-4 (C) of which a valuable constituent has been
27-5 wholly or in part abstracted; or
27-6 (D) in which a contaminant is present in an
27-7 amount that is determined by the department to be a hazard;
27-8 (5) a pesticide or device that is misbranded; or
27-9 (6) a pesticide in a container that is unsafe due to
27-10 damage.
27-11 (b) A person commits an offense if the person:
27-12 (1) detaches, alters, defaces, or destroys, wholly or
27-13 in part, any label or labeling provided for by this chapter or a
27-14 rule adopted under this chapter before the container has been
27-15 emptied and rinsed properly;
27-16 (2) adds any substance to or takes any substance from
27-17 a pesticide in a manner that may defeat the purpose of this chapter
27-18 or a rule adopted under this chapter;
27-19 (3) uses or causes to be used a pesticide contrary to
27-20 its labeling or to a rule of the department limiting the use of the
27-21 pesticide;
27-22 (4) handles, transports, stores, displays, or
27-23 distributes a pesticide in a manner that violates a provision of
27-24 this chapter or a rule adopted by the department under this
27-25 chapter; or
27-26 (5) disposes of, discards, or stores a pesticide or
27-27 pesticide container in a manner that the person knows or should
27-28 know is likely to cause injury to man, vegetation, crops,
27-29 livestock, wildlife, or pollinating insects.
27-30 (c) A person other than a person to whom the pesticide is
27-31 registered commits an offense if the person uses for the person's
27-32 advantage or reveals, other than to a properly designated state or
27-33 federal official or employee, a physician, or in emergency to a
27-34 pharmacist or other qualified person for the preparation of an
27-35 antidote, any information relating to pesticide formulas, trade
27-36 secrets, or commercial or financial information acquired under this
27-37 chapter and marked as privileged or confidential by the registrant.
27-38 (d) A person commits an offense if the person:
27-39 (1) commits an act for which a certified applicator's
27-40 license may be suspended, modified, [or] revoked, or not renewed
27-41 under Section 76.116 of this code; or
27-42 (2) violates any [other] provision of this chapter to
27-43 which this section does not expressly apply.
27-44 (e) A person commits an offense if the person:
27-45 (1) knowingly or intentionally uses, causes to be
27-46 used, handles, stores, or disposes of a pesticide in a manner that
27-47 causes injury to man, vegetation, crops, livestock, wildlife, or
27-48 pollinating insects;
27-49 (2) violates Section 76.071(a);
27-50 (3) has a permit to apply a powder or dry-type
27-51 regulated herbicide and applies a herbicide that does not meet the
27-52 requirements of Section 76.144(c);
27-53 (4) violates a rule adopted under this chapter; or
27-54 (5) fails to keep or submit records in violation of
27-55 this chapter.
27-56 Sec. 76.202. Penalty. (a) Except as provided by Subsection
27-57 (b) of this section, an offense under Section 76.201 of this code
27-58 is a Class C misdemeanor, unless the person has been previously
27-59 convicted of an offense under that section, in which event the
27-60 offense is a Class B misdemeanor.
27-61 (b) An offense under Section 76.201(e) of this code is a
27-62 Class A misdemeanor, unless the person has been previously
27-63 convicted of an offense under that subsection, in which event the
27-64 offense is a felony of the third degree.
27-65 Sec. 76.203. Defenses. (a) It is a defense to prosecution
27-66 under this subchapter that the defendant:
27-67 (1) is a carrier who was lawfully engaged in
27-68 transporting a pesticide or device within this state and who, on
27-69 request, permitted the department to copy all records showing the
28-1 transactions in and movement of the pesticide or device;
28-2 (2) is a public official of this state or the federal
28-3 government who was engaged in the performance of an official duty
28-4 in administering state or federal pesticide law or engaged in
28-5 pesticide research;
28-6 (3) is the manufacturer or shipper of a pesticide that
28-7 was for experimental use only by or under the supervision of an
28-8 agency of this state or of the federal government authorized by law
28-9 to conduct research in the field of pesticides and the manufacturer
28-10 or shipper held a valid experimental use permit as provided by this
28-11 chapter; and
28-12 (4) manufactured or formulated a pesticide or device
28-13 solely for export to a foreign country and prepared or packed the
28-14 pesticide or device according to the specifications or directions
28-15 of the purchaser.
28-16 (b) It is a defense to prosecution under Section
28-17 76.201(a)(3) of this code that the defendant is an applicator who,
28-18 after acquiring an unbroken container, opened and transported the
28-19 open container to and from application and storage sites as
28-20 necessary.
28-21 (c) It is an affirmative defense to prosecution under
28-22 Section 76.201(e) of this code that the defendant was using,
28-23 causing to be used, handling, storing, or disposing of the
28-24 pesticide in accordance with a label that complied with this
28-25 chapter and rules adopted under this chapter.
28-26 SECTION 2. Chapter 75, Agriculture Code, is repealed.
28-27 SECTION 3. A license issued under Subchapter E, Chapter 76,
28-28 Agriculture Code, by a state agency other than the Department of
28-29 Agriculture that is of a type that will be issued by the department
28-30 under the changes in law to Subchapter E made by this Act remains
28-31 valid, subject to the terms and conditions under which it was
28-32 issued, for the remainder of the period for which it was issued.
28-33 When the license expires it is subject to renewal under Subchapter
28-34 E, Chapter 76, Agriculture Code, as amended by this Act.
28-35 SECTION 4. The importance of this legislation and the
28-36 crowded condition of the calendars in both houses create an
28-37 emergency and an imperative public necessity that the
28-38 constitutional rule requiring bills to be read on three several
28-39 days in each house be suspended, and this rule is hereby suspended,
28-40 and that this Act take effect and be in force from and after its
28-41 passage, and it is so enacted.
28-42 * * * * *