Part 1. TEXAS DEPARTMENT OF AGRICULTURE
Subchapter C. LICENSING
The Texas Department of Agriculture (the department) proposes amendments to §7.23 and §7.24, concerning licensing and regulation of pesticide applicators. The proposed amendment to §7.23, relating to applicator business proof of financial responsibility, is made to add language to clarify that a liability insurance policy is the only acceptable form of proof of financial responsibility for applicator businesses, which is the department's current practice. The proposed amendment to §7.24, relating to applicator recertification, is made to add language that requires that commercial or noncommercial applicators that are certified in the aerial application category must obtain three of the required five continuing education units (CEUs) in laws and regulations, drift minimization, and pesticide safety activities addressing human factors.
The proposed amendment to §7.23 is made to comply with §76.111 of the Texas Agriculture Code, which requires that each applicator business shall file with the department a liability insurance policy, certification of a policy or other proof of financial responsibility considered acceptable to the department protecting persons who may suffer damages as a result of the operations of the applicator business, its employees, and its agents. The department periodically receives requests from applicator businesses to accept other forms of financial responsibility, such as bonds or letters of credit, to satisfy the requirements of the Texas Agriculture Code. The department has determined that liability insurance is reasonably available and affordable and that no other form of financial responsibility will be accepted as proof of financial responsibility. The department is proposing this amendment to clarify its existing practice.
The proposed amendment to §7.24 is made in response to a request from the Texas Agricultural Aviation Association (TAAA) to strengthen the CEU requirements for commercial and noncommercial applicators certified in the aerial application category who operate aerial aircraft to apply pesticides. The TAAA has requested that the department require that these applicators acquire CEUs in specific categories to ensure the safety of pilots and enhance the protection of the public by having applicators attend CEU courses that are specific to the nature of their industry. The required number of CEUs will not be increased by this proposal. The amendments to §7.24 will be effective January 1, 2009, in order to allow applicators to use the CEUs that they may have already obtained in order to renew their license and to allow course sponsors time to develop appropriate course materials.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections, as amended.
Mr. Bush also has determined that, for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amended sections will be increased efficiency and effectiveness in the use and application of pesticides and regulated herbicides. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the amended sections as proposed. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed amendments in the Texas Register.
The amendments are proposed under the Texas Agriculture Code, §76.004, which provides the Texas Department of Agriculture with the authority to adopt rules to carry out the provisions of Chapter 76 of the Texas Agriculture Code.
The Texas Agriculture Code, Chapter 76, is affected by the proposal.
§7.23.Applicator Business Proof of Financial Responsibility.
Each applicator business, as defined in the Act, §76.111, shall register with the department on a prescribed form and file proof of financial responsibility prior to making any applications of restricted-use or state-limited-use pesticides or regulated herbicides. This requirement shall be satisfied in the following manner.
(1) - (4) (No change.)
(5) For purposes of this rule, financial responsibility means a liability insurance policy in the name of the applicator business meeting the requirements of §76.111 of the Act pertaining to such insurance policies. The department has determined that no other form of financial responsibility is acceptable.
§7.24.Applicator Recertification.
(a) - (s) (No change.)
(t)
Except as provided in paragraph (1) of this subsection, each
[
Each
] commercial or noncommercial
applicator must obtain at least five CEUs prior to the expiration
of the license. A minimum of one hour each must be obtained from two
of the following categories: integrated pest management, laws and
regulations or drift minimization.
(1) For commercial or noncommercial applicators certified in the aerial application category, three of the required five CEUs must be associated with aerial application operations to include one hour each in laws and regulations, drift minimization and pesticide safety activities addressing human factors.
(2) A commercial or noncommercial applicator may not recertify their license using department-approved correspondence activities for two consecutive years.
(3) Paragraph (2) of this subsection is effective beginning January 1, 2009.
(u) - (z) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 14, 2008.
TRD-200800919
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: March 30, 2008
For further information, please call: (512) 463-4075