The Texas Department of Agriculture (the department) adopts amendments to §§7.1, 7.21, 7.22, 7.24, 7.30-7.32, 7.39, 7.40, 7.52 and 7.53, and the repeal of §7.3, concerning pesticide regulations, with changes to the proposal published in the April 27, 2001 issue of the Texas Register (26 TexReg 3096). Section 7.24 is adopted with a minor change at subsection (t) which replaces "TDA" with "department" to be consistent with the reference to the department in other sections. Sections 7.1, 7.21, 7.22, 7.30-7.32, 7.39, 7.40, 7.52 and 7.53, and the repeal of §7.3 are adopted without changes and will not be republished.

The amendments are adopted to update citations, terminology and clarify the department's existing pesticide regulations. In addition, the amendments result in pesticide regulations that are more understandable and consistent with state and federal law, and that provide more protection to the public, those working in or otherwise affected by the regulated industry, and to the environment. The repeal of §7.3 is adopted because the establishment of an expiration date for Chapter 7 is no longer necessary due to the enactment of legislation establishing a timeframe for review of agency rules.

The amendment to §7.1 adds the definition of "purchase" for clarification. For purposes of these regulations, the term purchase is defined to not prohibit a transaction in which the unlicensed person merely provides payment for the pesticide, but actual delivery or physical possession of the pesticide is made to and remains with a properly licensed person or a person operating under the direct supervision of a properly licensed applicator. The repeal of §7.3 eliminates the expiration date for Chapter 7. The amendment to §7.21(a) adds a license use category for chlorine gas and a subcategory for M-44 (sodium cyanide). The amendment to §7.21(c) deletes paragraph (2), as it no longer applies. The amendment to §7.22(e) adds language prohibiting employees of state agencies and state universities who obtained their pesticide applicator's license through specialized training and a Memorandum of Agreement with the department from converting a license. New language is adopted in §7.24(f) providing that the department may consider for approval correspondence activities, such as videos, interactive Internet and/or other activities approved by the department, to satisfy recertification requirements. However, new language under §7.24(t) will prohibit commercial and noncommercial applicators from recertifying through correspondence activities for two consecutive years, while new §7.24(v)(5) will allow private applicators to obtain a maximum of 10 CEUs through correspondence in a five-year period. New language is also adopted as new subsection (g) to allow, commercial and noncommercial applicators only, an intensive specialized training equivalent to a maximum for a three year recertification credit and specify what the sponsor must do to have a three year applicator recertification activity approved. The existing §7.24(f) is renumbered as §7.24(h) and is amended to include proposed language to exclude correspondence activities from this provision. The existing §7.24(g), (h), (i), (j), (k) and (l) are renumbered as §7.24(i), (j), (k), (l), (m) and (n), respectively. The existing §7.24(m) is renumbered as §7.24(o) and is amended to include proposed language to require the date, course number and location of the training. New subsection (p) is added to clarify the requirements of sponsors of approved correspondence activities. The existing §7.24(n) and §7.24(o) are renumbered as §7.24(q) to §7.24(r), respectively. The existing §7.24(p) is renumbered as §7.24(s) and is amended to prohibit hours obtained at a single course from being split or divided between two licensing cycles. The amendment also includes language allowing applicators that have met their CEU requirements prior to December 31 to carry over CEUs obtained in January and/or February of their recertification year to the next recertification cycle. Existing §7.24(q) is renumbered as §7.24(t) and is amended to explain how commercial and noncommercial applicators may fulfill recertification requirements. Additionally, a portion of this section is separated out and renumbered as §7.24 (u). Existing §7.24(r) is renumbered as §7.24(v) and amended for clarification purposes and to prohibit a private applicator from obtaining more than 10 CEUs through correspondence in any five- year recertification cycle. Existing §7.24(s), (t) and (u) are renumbered as §7.24(w), (x) and (y), respectively. Existing language in §7.24(v) is deleted. Existing §7.24(w) is renumbered as §7.24(z).

Adopted new language under §7.30 (a)(1)(A) and (2)(D) adds 3,7-Dichloro-8-quinolinecarboxlic acid (quinclorac) to the state- limited-use pesticide list and to the regulated herbicide list. This herbicide warrants listing because of its potential to cause adverse effects to nontarget vegetation. Section 7.30(b)(1) is amended to clarify the criteria that exempt formulations from being classified as state-limited-use or regulated herbicides. New subsection (c) is added to provide restrictions on the use and possession of chlordane or products containing chlordane and direct their disposal consistent with state and federal law. This new subsection is needed because although chlordane has been banned for distribution in the United States since 1988, the department believes that there are still unused supplies of this hazardous product in existence which require that some restrictions be in place in order to protect the public health and environment. A similar provision was adopted by the Agricultural Resource Protection Authority (ARPA), but has been repealed because ARPA no longer has the statutory authority to adopt substantive rules regarding pesticide regulation.

The amendments to §7.31(d) clarify existing language. New language is added under §7.31(g) requiring both the supervising licensed commercial or noncommercial applicator and the person under the direct supervision of the licensed commercial or noncommercial applicator to perform applications from the same local office unless the supervising licensed commercial or noncommercial applicator is physically present during the application. New language is adopted as §7.31(h) to allow private applicators to supervise the use of restricted-use or state-limited-use pesticides or a regulated herbicide by a nonlicensed person on the property of the nonlicensed person. New language is adopted under §7.31(i) to allow veterinarians licensed by the State Board of Veterinary Medical Examiners to supervise a nonlicensed person's use of a restricted use or state- limited-use pesticide or regulated herbicide in the course of the veterinarian's normal practice, provided the veterinarian affords the nonlicensed person training in accordance with subsection (e) of this section. The intent of the new language is to allow a veterinarian to supervise veterinary staff applying restricted- use pesticides in the course of the veterinarian's normal practice. The adopted amendment to §7.32(b) adds new language as paragraph (6) to clarify recordkeeping requirements for dealers distributing state-limited-use pesticides and regulated herbicides to persons residing out of state. If the person is not licensed and does not intend to use the pesticide in the state, then the dealer must record the person's name and out of state address. If the person is licensed by another state or federal agency the dealer must also record that license number and the state or federal agency that issued the license.

The amendments to §7.39 clarify the criteria that must be met in order to be certified as a Sodium Fluoroacetate (Compound 1080) Livestock Protection Collar (LPC) applicator. To become licensed as a Sodium Fluoroacetate (Compound 1080) Livestock Protection Collar (LPC) applicator a person must complete the Sodium Fluoroacetate (Compound 1080) Livestock Protection Collar (LPC) training, pass a test prescribed by the department and fulfill the licensing requirements of the desired license type.

The amendments to §7.40 clarify the criteria that must be met in order to be certified as an M-44 sodium cyanide applicator. To become licensed as an M-44 sodium cyanide applicator a person must complete the M-44 sodium cyanide training, pass a test prescribed by the department and fulfill the licensing requirements of the desired license type. The amendment requires the applicator to demonstrate competency by attending the training program and passing a closed book examination. It also provides instructions to noncertified applicators working under the direct supervision of licensed M-44 sodium cyanide applicators and prohibit certified private applicators from supervising any M-44 application.

Sections 7.52 and 7.53 regarding counties regulated and county special provisions, respectively, are updated as necessary to reflect the current status of counties whose regulated status or special provisions have been changed due to action by county commissioners courts.

No public comments were received on the proposal.

Subchapter A. GENERAL