Agriculture code

AGRICULTURE CODE

TITLE 5. PRODUCTION, PROCESSING, AND SALE OF HORTICULTURAL PRODUCTS

SUBTITLE B. HORTICULTURAL DISEASES AND PESTS

CHAPTER 76. PESTICIDE AND HERBICIDE REGULATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 76.001.  DEFINITIONS. In this chapter:

(1)  "Active ingredient" means:

(A)  in the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient that prevents, destroys, repels, or mitigates a pest;

(B)  in the case of a plant regulator, an ingredient that through physiological action accelerates or retards the rate of growth or rate of maturation or otherwise alters the behavior of an ornamental or crop plant or the product of an ornamental or crop plant;

(C)  in the case of a defoliant, an ingredient that causes leaves or foliage to drop from a plant; or

(D)  in the case of a desiccant, an ingredient that artificially accelerates the drying of plant tissue.

(2)  "Animal" means a vertebrate or invertebrate species, including man, other mammals, birds, fish, and shellfish.

(3)  "Antidote" means a practical treatment used in preventing or lessening ill effects from poisoning, including first aid.

(4)  "Application of a herbicide" means the spreading of a herbicide on real property having a continuous boundary line.

(5)  "Defoliant" means a substance or mixture of substances intended to cause the leaves or foliage to drop from a plant, with or without causing abscission.

(6)  "Department" means the Department of Agriculture.

(7)  "Desiccant" means a substance or mixture of substances intended to artificially accelerate the drying of plant tissue.

(8)  "Device" means an instrument or contrivance, other than a firearm, that is used to trap, destroy, repel, or mitigate a pest or other form of plant or animal life, other than man or a bacteria, virus, or other microorganism on or in living man or other living animals. The term does not include equipment sold separately from a pesticide.

(9)  "Distribute" means offer for sale, hold for sale, sell, barter, or supply.

(10)  "Environment" includes water, air, land, plants, man, and other animals living in or on water, air, or land, and the interrelationships that exist among them.

(11)  "Equipment" means any type of ground, water, or aerial equipment or contrivance employing motorized, mechanical, or pressurized power and used to apply a pesticide to land or to anything that may be inhabiting or growing or stored on or in the land. The term does not include a pressurized hand-sized household apparatus used to apply a pesticide or any equipment or contrivance for which the person applying the pesticide is the source of power or energy used in making the pesticide application.

(12)  "FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.).

(13)  "Fungus" means a non-chlorophyll-bearing thallophyte, including rust, smut, mildew, mold, yeast, or bacteria, but not including a non-chlorophyll-bearing thallophyte on or in living man or other living animals or on or in a processed food, beverage, or pharmaceutical.

(14)  "Inert ingredient" means an ingredient that is not an active ingredient.

(15)  "Insect" means any of the numerous small invertebrate animals generally having a segmented body and for the most part belonging to the class Insecta, comprising six-legged, usually winged forms such as beetles, bugs, bees, and flies. The term includes allied classes of arthropods, the members of which are wingless and usually have more than six legs, such as spiders, mites, ticks, centipedes, and wood lice.

(16)  "Label" means the written, printed, or graphic matter on or attached to a pesticide or device or any of its containers or wrappers.

(17)  "Labeling" means a label or any other written, printed, or graphic matter prepared by a registrant:

(A)  accompanying the pesticide or device at any time; or

(B)  to which reference is made on a label or in literature accompanying or referring to a pesticide or device, except accurate, nonmisleading references made to a current official publication of a federal or state institution or agency authorized by law to conduct research in the field of pesticides.

(18)  "Land" means any land or water area, including airspace, and any plant, animal, structure, building, contrivance, or machinery, whether fixed or mobile, appurtenant to or situated on a land or water area or airspace, including any used for transportation.

(19)  "License use category" means a classification of pesticide use based on the subject, method, or place of pesticide application.

(20)  "Nematode" means an invertebrate animal of the phylum Nemathelminthes and class Nematoda (an unsegmented roundworm with an elongated, fusiform, or sac-like body covered with cuticle) inhabiting soil, water, plants, or plant parts.

(21)  "Pesticide" means a substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.

(22)  "Plant regulator" means a substance or mixture of substances intended through physiological action to accelerate or retard the rate of growth or rate of maturation, or otherwise to alter the behavior of an ornamental or crop plant or the product of an ornamental or crop plant, but does not include a substance to the extent that it is intended as a plant nutrient, trace element, nutritional chemical, plant inoculant, or soil amendment.

(23)  "Registrant" means a person who has registered a pesticide under this chapter.

(24)  "Regulatory agency" means a state agency with responsibility for certifying applicators under Subchapter E of this chapter.

(25)  "Restricted-use pesticide" means a pesticide classified as a restricted-use pesticide by the Environmental Protection Agency.

(26)  "Thallophyte" means a non-chlorophyll-bearing plant of a lower order than mosses and liverworts.

(27)  "Weed" means any plant that grows where not wanted.

(28)  "Worker protection standard" means the federal worker protection standard as found in the Code of Federal Regulations, 40 C.F.R. Parts 156 and 170.

Acts 1981, 67th Leg., p. 1188, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.002.  PESTS. The department shall determine what organisms constitute pests for purposes of this chapter and may include in the list of pests:

(1)  any insect, snail, slug, rodent, bird, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life; or

(2)  any virus, bacteria, or other microorganism, other than a virus, bacteria, or other microorganism on or in living man or other living animals.

Acts 1981, 67th Leg., p. 1190, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.003.  STATE-LIMITED-USE PESTICIDES. (a) After notice and public hearing, the department may adopt lists of state-limited-use pesticides for the entire state or for a designated area within the state.

(b)  A pesticide may be included on a list of state-limited-use pesticides if the department determines that, when used as directed or in accordance with widespread and commonly recognized practice, the pesticide requires additional restrictions to prevent unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of use of the pesticide. However, the department shall not place a pesticide on the state-limited-use list solely on the basis of actual damage or risk of damage to water quality without first obtaining approval from the Texas Natural Resource Conservation Commission based on the impact of the pesticide's use on water quality.

(c)  The department shall formally request an opinion regarding impact on water quality from the Texas Natural Resource Conservation Commission during department consideration of any amendments to the current list of state-limited-use pesticides.

(d)  At the direction of the Texas Natural Resource Conservation Commission in conjunction with its responsibilities pursuant to Chapter 26, Water Code, the department shall consider any formal request to add any pesticide to the state-limited-use list under Subsection (b), and the department shall issue regulations regarding the time, place, and conditions of such pesticide's use.

(e)  The department may regulate the time and conditions of use of a state-limited-use pesticide and may require that it be purchased or used only:

(1)  with permission of the department;

(2)  under direct supervision of the department in certain areas under certain conditions; or

(3)  in specified quantities and concentrations.

(f)  The department may require a person authorized to distribute or use a state-limited-use pesticide to maintain records of the person's distribution or use and may require that the records be kept separate from other business records.

Acts 1981, 67th Leg., p. 1190, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 80, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 11.03, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.004.  DEPARTMENT RULES. (a) The department may adopt rules for carrying out the provisions of this chapter, including rules providing for:

(1)  the collection, examination, and reporting of records, devices, and samples of pesticides;

(2)  the safe handling, transportation, storage, display, distribution, or disposal of pesticides and pesticide containers;

(3)  labeling requirements for pesticides and devices required to be registered under this chapter; and

(4)  compliance with federal pesticide rules and regulations.

(b)  Any rules adopted by the department for the purpose of protection or enhancement of water quality shall not be inconsistent with nor less stringent than rules adopted for the protection or enhancement of water quality by the Texas Natural Resource Conservation Commission pursuant to recommendations of the Texas Groundwater Protection Committee.

Acts 1981, 67th Leg., p. 1190, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 81, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 11.04, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 506 (S.B. 1016), Sec. 9.20, eff. September 1, 2009.

Sec. 76.006.  PESTICIDE EXAMINATION AND TESTING. (a) The department may contract with a state college or university, state agency, or commercial laboratory for examination of a pesticide. The department shall let contracts with commercial laboratories under this subsection on the basis of competitive bidding.

(b)  The department may make or provide for sample tests of a pesticide on request and may charge and collect a fee for the tests in an amount necessary to cover expenses incurred in making or providing for the tests.

Acts 1981, 67th Leg., p. 1191, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.007.  INTERAGENCY COOPERATION. (a) The department shall be the lead agency for pesticide regulation in Texas. In cooperation with the U.S. Environmental Protection Agency or any federal agency responsible for implementation of federal pesticide law, the department shall:

(1)  register pesticides for use in Texas;

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

(3)  provide for training, certification, and licensure of all classes of pesticide applicators;

(4)  enforce pesticide laws and regulations governing the safe handling, use, storage, distribution, and disposal of pesticide products; and

(5)  adopt rules to carry out the provisions of this chapter.

(b)  The Texas Natural Resource Conservation Commission shall have principal authority to regulate and control water pollution. If the United States Environmental Protection Agency adopts a final rule requiring states to implement a state management plan for pesticides in groundwater, the department shall cooperate with the Texas Groundwater Protection Committee in the committee's development and implementation of federally mandated state management plans for pesticides in groundwater in accordance with Section 26.407, Water Code.

(c)  The department shall seek advice from the Texas Natural Resource Conservation Commission, the Parks and Wildlife Department, the Texas Department of Health, and the Texas Agricultural Extension Service in reviewing applications for special local need or emergency pesticide registrations. The department shall act expeditiously to review any application for special local need or emergency pesticide registrations.

(d)  The department shall give written notice to the Texas Natural Resource Conservation Commission whenever it has probable cause to believe that serious contamination of water has occurred as a result of use, misuse, manufacture, storage, or disposal of pesticides so that the Texas Natural Resource Conservation Commission may proceed with an investigation of a possible violation of the Water Code.

(1)  If the Texas Natural Resource Conservation Commission determines that a violation of the Water Code has occurred, the commission shall seek the remedies provided by the Water Code.

(2)  If the department determines that a violation of the Agriculture Code has occurred regarding the use, manufacture, storage, or disposal of pesticides, the department shall seek the remedies provided by this code.

(3)  The foregoing remedies shall not be mutually exclusive.

(e)  The Texas Natural Resource Conservation Commission shall give written notice to the department whenever it has probable cause to believe that serious contamination of water has occurred as a result of the use, misuse, storage, disposal, or manufacture of pesticides so that the department may proceed with an investigation to determine if a violation of the Agriculture Code has occurred.

(1)  If the department determines that a violation of the Agriculture Code has occurred, the department shall seek the remedies provided by this code.

(2)  If the Texas Natural Resource Conservation Commission determines that a violation of the Water Code has occurred, the Texas Natural Resource Conservation Commission shall seek the remedies provided by the Water Code.

(3)  The foregoing remedies shall not be mutually exclusive.

(f)  The department shall consult with the Texas Department of Health before denying or canceling a pesticide registration because of a suspected public health threat. The department shall also coordinate enforcement efforts with the department of health when a serious public health threat is suspected.

(g)  A regulatory agency may receive grants-in-aid from any federal agency and may enter into cooperative agreements with a federal agency, an agency of this state, a subdivision of this state, or an agency of another state for the purpose of obtaining assistance in the implementation of this chapter.

Acts 1981, 67th Leg., p. 1191, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 79, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 11.05, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.008.  EXEMPTION. Sections 76.007, 76.104-76.106, 76.108-76.117, 76.151(b), 76.151(c), 76.154(b), 76.155, 76.181, 76.182, 76.184, and 76.201(d)(1) do not apply to a person who is regulated by Chapter 1951, Occupations Code.

Acts 1981, 67th Leg., p. 1191, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.751, eff. Sept. 1, 2003.

SUBCHAPTER B. LABELING

Sec. 76.021.  LABELING INFORMATION. (a) Each pesticide distributed in this state shall bear a label containing the following information relating to the pesticide:

(1)  the label information required by FIFRA, if the pesticide is subject to registration under that law; or

(2)  the following information, if the pesticide is not subject to registration under FIFRA:

(A)  the name, brand, or trademark under which the pesticide is distributed;

(B)  the name and percentage of each active ingredient and the total percentage of inert ingredients;

(C)  directions for use that are necessary for effecting the purpose for which the product is intended and, if complied with, are adequate for the protection of health and the environment;

(D)  if the pesticide contains any form of arsenic, the percentage of total water-soluble arsenic, calculated as elementary arsenic;

(E)  the name and address of the manufacturer, registrant, or person for whom the pesticide was manufactured;

(F)  numbers or other symbols to identify the lot or batch of the manufacturer of the contents of the package; and

(G)  a clear display of appropriate warnings, symbols, and cautionary statements commensurate with the toxicity or use classification of the pesticide.

(b)  The label bearing the ingredient statement under Subsection (a)(2)(B) of this section shall be on or attached to that part of the immediate container that is presented or displayed under customary conditions of purchase and, if the ingredient statement cannot be clearly read without removing the outer wrapping, on any outer container or wrapper of a retail package.

Acts 1981, 67th Leg., p. 1191, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.022.  CONSPICUOUS LETTERING. Any word, statement, or information required by this chapter to appear on a label or in labeling of a pesticide or device registered by the department shall be prominently and conspicuously placed so that, if compared with other material on the label or in the labeling, it is likely to be understood by the ordinary individual under customary conditions of use.

Acts 1981, 67th Leg., p. 1192, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.023.  MISBRANDED PESTICIDE OR DEVICE. (a) A pesticide or device is misbranded if:

(1)  it is subject to registration under FIFRA and it does not fully comply with the labeling requirements of the United States Environmental Protection Agency; or

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

(A)  its labeling bears a statement, design, or graphic representation relating to the pesticide or device, or the ingredients of either, that is false or misleading in any particular;

(B)  it is an imitation of or is distributed under the name of another pesticide or device; or

(C)  it is not conspicuously labeled in accordance with Section 76.022 of this code.

(b)  A pesticide is misbranded if:

(1)  its labeling bears any reference to registration under this chapter, unless the reference is required by a rule adopted under this chapter;

(2)  it does not bear a label as required by Section 76.021 of this code; or

(3)  its label does not bear information as required by Section 76.021 of this code or a rule adopted under this chapter.

Acts 1981, 67th Leg., p. 1192, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER C. REGISTRATION

Sec. 76.041.  REGISTRATION REQUIRED. (a) Except as provided by Subsection (b), (c), (d), or (e) of this section, before a pesticide is distributed in this state or is delivered for transportation or is transported in intrastate commerce or between points within this state through a point outside the state, it must be registered with the department. The manufacturer or other person whose name appears on the label of the pesticide shall register the pesticide.

(b)  Registration is not required for the transportation of a pesticide from one plant or warehouse to another plant or warehouse operated by the same person if the pesticide is used solely at the second plant or warehouse as a constituent of a pesticide that is registered under this chapter.

(c)  Registration is not required for a pesticide that is not for use in this state and is being manufactured, transported, or distributed for use only outside of this state.

(d)  Registration is not required for a chemical compound being used only to develop plot data as to the possible pesticidal action of the chemical.

(e)  Unless otherwise required by department rule, registration is not required for a pesticide that is exempt from registration with the United States Environmental Protection Agency under federal law.

(f)  The Texas Feed and Fertilizer Control Service may not register under Chapter 63 a fertilizer that contains a pesticide that must be registered with the department under this chapter unless the constituent pesticide is first registered with the department. The Texas Feed and Fertilizer Control Service shall consult with the department about the current registration status of a pesticide before registering any fertilizer mix containing that pesticide under Chapter 63. The department shall notify the Texas Feed and Fertilizer Control Service of any changes to a pesticide registration.

(g)  A pesticide that has been registered with the department must continue to be registered as long as the pesticide remains in the channels of trade in this state. The registrant shall ensure that the pesticide continues to be registered.

(h)  If the department issues a stop use, stop distribution, or removal order because the pesticide is not registered with the department, the registrant shall take any necessary action to remedy the situation, including reimbursing a person who is subject to the order for the person's costs in complying with the order.

Acts 1981, 67th Leg., p. 1192, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1995, 74th Leg., ch. 419, Sec. 6.02, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.042.  CONTENT OF REGISTRATION APPLICATION. (a) The application for registration of a pesticide shall include:

(1)  the name and address of the applicant and the name and address of the person whose name will appear on the pesticide label, if not the applicant's;

(2)  the name of the pesticide;

(3)  a complete copy of all labeling to accompany the pesticide and a statement of all claims to be made for it, including the directions for use and, if the pesticide is required to be registered with the United States Environmental Protection Agency, a copy of the Environmental Protection Agency stamped accepted labeling and any applicable comment pages;

(4)  the use classification, whether for restricted or general use, as provided by the federal Insecticide, Fungicide, and Rodenticide Act, as amended, or by a rule adopted under that Act;

(5)  the use classification proposed by the applicant, if the pesticide is not required by federal law to be registered under a use classification; and

(6)  other information required by the department for determining the eligibility for registration.

(b)  The department may require the applicant to submit the complete formula for a pesticide, including active and inert ingredients, as a prerequisite to registration.