ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART V. General Services Commission CHAPTER 111. Executive Administration Division Cost of Copies of Open Records 1 TAC sec.sec.111.61-111.70 The General Services Commission adopts the repeal of sec.sec.111.61-111.70, concerning cost of copies of open records without changes to the proposed text as published in the July 11, 1996, issue of the Texas Register (21 TexReg 5215). The repeal is necessary to allow the General Services Commission to adopt new sec.sec.111.61-111.70, in accordance with H.B. 1718, 74th Leg. R.S. (1995), which amended the Government Code, Chapter 552 (the "Public Information Act"). The repeal of sec.sec.111.61-111.70 allows the General Services Commission to adopt new rules to implement pertinent provisions of the Government Code, Chapter 552 (the "Public Information Act") that were amended by H.B. 1718, 74th Leg. R.S. (1995); and deletes obsolete language. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, Chapter 552, Subchapter F, sec.552.262 (the "Public Information Act") which provides the General Services Commission with the authority to promulgate rules necessary to implement the sections. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Issued in Austin, Texas on August 28, 1996. TRD-9612573 Judy Ponder General Counsel General Services Commission Effective date: September 18, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 463-3960 Cost of Copies of Public Information sec.sec.111.61-111.70 The General Services Commission (the "GSC") adopts new sec.sec.111.61-111.70 concerning charges for public records. Sections 111.63 and 111.66 are adopted with changes to the proposed text as published in the June 11, 1996, issue of the Texas Register (21 TexReg 5215). Sections 111.61, 111.62, 111.64, 111.65, 111.67, 111.68, 111.69 and 111.70 are adopted without changes and will not be republished. The new sections establish guidelines to be used by governmental bodies to recover up to the full cost of providing copies of, or access to public records. Section 111.63, the text of subsections (c) and (d) as published have been reversed in order and changes have been made to both subsections. Subsections (c) and (d) were reversed in order to eliminate confusion regarding charges for personnel costs. Subsection (c)(1) has been amended to read "Programming personnel. If a particular request requires the services of a programmer in order to execute an existing program or to create a new program so that requested information may be accessed and copied, the governmental body may charge for the programmer's time. (1) The hourly charge for a programmer is $26.00 an hour, including fringe benefits. Only programming services shall be charged at this hourly rate." The language was amended to more accurately reflect that the services of a programmer exceed entry of data and, therefore, justify the hourly charge for the programmer services. Subsection(d)(1)(2)(3) has been changed to read "Other personnel charge. (1) The charge for other personnel costs incurred in processing a request for public information is $15.00 an hour, including fringe benefits. Where applicable, the other personnel charge may include the actual time to locate, compile, and reproduce the requested information. (2) An other personnel charge shall not be billed in connection with complying with requests that are for 50 pages or fewer pages of paper records, unless the documents to be copied are located in: (A) more than one building; or (B) a remote storage facility. (3) Other personnel time shall not be recovered for any time spent by an attorney, legal assistant, or any other person who reviews the requested information: (A) to determine whether the governmental body will raise any exceptions to disclosure of the requested information under Subchapter C of the Public Information Act; or (B) to research or prepare a request for a ruling by the attorney general's office pursuant to the sec.552.301 of the Public Information Act. " The language was amended to add the word "other" before the word "personnel" to distinguish personnel referred to in these subsections from programming personnel. Subsection(e)(1)(3) has been changed to read "Overhead charge. (1) whenever any personnel charge is applicable to a request, a governmental body may include in the charges direct and indirect costs, in addition to the specific personnel charge. This overhead charge would cover such costs as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead. If a governmental body chooses to recover such costs, a charge shall be made in accordance with the methodology described in paragraph (3) of this subsection. Although an exact calculation of costs will vary, the use of a standard charge will avoid complication in calculating such costs and will provide uniformity for charges made statewide. (3) The overhead charge shall be computed at 20% of the charge made to cover any personnel costs associated with a particular request. " The language was amended to clarify that an overhead charge may be included in any personnel charge. Subsection (f)(1)(2) has been changed to read "Microfiche and microfilm charge. (1) If a governmental body already has information that exists on microfiche and microfilm and has copies available for sale or distribution the charge for a copy must not exceed the cost of its reproduction. If no copies of the requested microfiche or microfilm are available and the information on the microfiche or microfilm can be released in its entirety, the governmental body should make a copy of the microfiche or microfilm. The charge for a copy shall not exceed the cost of its reproduction. The Texas State Library and Archives Commission has the capacity to reproduce microfiche and microfilm for state agencies. Governmental bodies that do not have in-house capability to reproduce microfiche or microfilm, may charge the actual costs of having the reproduction made commercially. (2) If only a master copy of information in microform is maintained, the charge is $.10 per page for standard size paper copies, plus any applicable personnel and overhead charge for more than 50 copies." The language was amended for clarity and conformity of terms. Subsection (g)(1)(2) have been amended to read "Remote document retrieval charge. (1) Due to limited on-site capacity of storage of documents, it is frequently necessary to store information that is not in current use in remote storage locations. Every effort should be made by governmental bodies to store current records on-site. State agencies are encouraged to store inactive or non- current records with the Texas State Library and Archives Commission, which is equipped to provide such a service to state agencies free of charge. To the extent that the retrieval of documents results in a charge to comply with a request, it is permissible to recover costs of such services. (2) If a governmental body has a contract with a commercial records storage company, whereby the private company charges a fee to locate, retrieve, deliver, and return to storage the needed record(s), no additional personnel charge shall be factored in for time spent locating documents at the storage location by the private company's personnel. If after delivery to the governmental body, the boxes must still be searched for records that are responsive to the request, a personnel charge is allowed in accordance with sec.111.61(d)(1) of this rule." Language was added to clearly delineate what personnel charges are applicable in responding to a request when a governmental body has a contract with a commercial records storage company. Section 111.66(e)(f) have been amended to read " (e) If the governmental body does not have the required technological capabilities to comply with the request in the format preferred by the requestor, the governmental body shall proceed in accordance with sec.552.228(c) of the Public Information Act. (f) If a governmental body receives a request requiring programming or manipulation of data, the governmental body should proceed in accordance with sec.552.231 of the Public Information Act. Manipulation of data under sec.552.231 applies only to information stored in electronic format." Reference to sec.552.231 of the Public Information Act was removed from subsection (e) to be addressed in subsection (f). Additional language was added to subsection (f) to clarify that the governmental body proceed in accordance with sec.552.231 regarding programming or manipulation of data. The new sections implement H.B. 1718, 74th Leg., R.S. (1995) which amended Texas Government Code, Chapter 552, Subchapter F (Vernon 1996), referred to as the Public Information Act (the "Act") by establishing updated rates for providing public information, as well as procedures to obtain exemptions from all or part of the General Services Commission rules, and procedures for handling complaints of overcharges for copies of public information. Seven letters were received from governmental bodies containing various comments. One comment concerned the definition of Client/Server. Five comments concerned programming personnel and other personnel charges. One comment questioned applicability of overhead to the personnel charges. Three comments pertained to personnel charges involving remote document retrieval. One comment each was received regarding recovery of costs for production of information on mylar, 9 track and 8mm tapes. One comment each was received regarding the ability to recover additional charges for postage, fax transmissions and costs specific to agencies. One comment each was received requesting consideration to what the usage costs represented, changes to language regarding violation of copyright due to reproduction of information, rewording to clarify references to microfiche and governmental bodies' authority to charge 25% more than the charges established by rule. For - None Against - City of Levelland, Bexar County Appraisal District, Texas Department of Human Services, Texas Department of Banking, City of Houston, Texas Department of Mental Health and Mental Retardation, and Texas Department of Transportation The Bexar County Appraisal District stated that the definition of Client/Server System in sec.111.62 is incorrect because it includes X-Window environments using Unix Systems as an example. The comment goes on to state "An X-Terminal is a smart graphics terminal; the actual application executes on the Unix System just as if the application was being executed by a dump terminal. The server is actually the X-Terminal and the client is the Unix System; the X- Terminal is the server providing Graphic Terminal Services to the application executing on the Unix System." It was suggested that the definition be changed to categorize computer systems into two groups, central processing and client/server and then to create sub-categories based on processor size. The GSC disagrees because the definition of Client/Server does not mention X-Terminals. It uses the "X-Window environment" merely as an example of a client/server system. If a governmental body finds that its actual costs for producing information using computer technology, either for personnel or type of medium, is higher than what is reflected in the rules, an exemption can be requested under sec.111.64. The Texas Department of Mental Health and Mental Retardation ("MHMR") suggested rewording of sec.111.63(e)(1) regarding the applicability of overhead charge to personnel charge. The GSC agreed and reversed the order of subsections (c) and (d) and provided pertinent changes in the text of all three subsections for clarification. MHMR also stated that the language in sec.111.63(f)(1) regarding microfiche and microfilm charge was confusing. GSC agreed and changes were made in the text to eliminate confusion. MHMR requested that fax charges be included in the rules. The GSC disagreed. In reality, assessing a fax charge would defeat the obvious purpose of providing information immediately upon request because payment cannot be remitted by fax. It is within an agency's discretion to determine the manner in which requestors are provided information. Nonetheless, an exemption can be requested for this charge. The Texas Department of Banking (the "Department") suggested a change to sec.111.63(c)(2)(A) (currently (d)(2)(A)) to substitute the word "building" for the word "location". The GSC disagreed. This subsection paraphrases sec.552.261 of the Act which can only be amended by the legislature. Comment was made regarding the inability to charge for time spent by agency personnel to search for documents at a privately owned remote storage company or after documents have been delivered to the agency. Additional language has been provided in sec.111.63(g)(2) for clarification that agency personnel charges are allowable under sec.552.261 of the Act. The Department suggested charges for proposed estimate of postage to include cost of envelopes rather than actual costs and the fact that it would be helpful for agencies to establish fixed costs for production of information which is unique to the agency. The GSC disagreed. Under sec.552.221(2) of the Act, if a person requests information to be provided by mail and agrees to pay postage, an agency may charge for the envelope as a miscellaneous charge. If an agency produces information in a manner that is unique to the agency, an exemption may be requested in accordance with sec.111.64. The City of Houston ("Houston") questioned the ability to recover personnel costs in sec.111.63(g)(2). This has been addressed by the language as amended to allow the ability to recoup personnel charges under sec.111.63(d)(1)(2). Houston states that disallowing charges other than copying charges in sec.111.65(a) is in direct contravention of Open Records Decisions Nos. 488 (1988) and 633(1995), the GSC disagreed. sec.111.65(a) mirrors sec.552.271 of the Act which was effective September 1, 1995. The Open Records Decisions referred to by Houston were written prior to the effective date of the sec.552.271 and are, therefore, not applicable. However, costs for personnel time can be recovered under sec.sec.111.63(d)(4) and 111.65(b). The Texas Department of Human Services ("DHS") requested language for clarification of sec.111.63(h)(3) as to whether the usage costs are examples or costs that an agency must use in calculating the charges. The GSC disagreed. sec.111.63(h)(3) is based on responses to a computer survey to which state agencies and governmental entities, including DHS, responded. The charges reflected in this section are high end averages. If the charges do not provide for recovery of costs, an exemption can be requested per sec.111.64. DHS suggested rewording of sec.111.64(c) to clarify distinction between state agencies and other governmental bodies. The GSC disagreed. The language is unambiguous as written. DHS then suggested revising sec.111.66(d). The GSC disagreed as it is the same language found in sec.552.228(b)(3) of the Act. DHS also suggested rewriting of sec.111.66(e) to eliminate confusion regarding manipulation of data. The GSC agreed and the language has been changed to clarify the section. The City of Levelland ("Levelland") requested the deletion of proposed sec.111.63(c)(2)(3)(A)(B) (currently 111.63(d)(2)(3)(A)(B)) and 111.63(e)(2) regarding recovery of costs for personnel time and applicability of overhead charges. Levelland suggested language to allow for recovery of personnel time for attorney, legal assistant or any other person who reviews requested information to determine an exception to disclosure or to prepare an open records decision request. The GSC disagreed. Language has been amended to provide clarification of 111.63(e)(2). As to 111.63(d)(2)(3)(A)(B) the GSC disagreed because Levelland suggested language that is not only in conflict with the Act but also violates its spirit. The Act only provides cost recovery for the reproduction of records not for the withholding of such. The Texas Department of Transportation ("TxDot") requested changes to sec.111.63.(b)(2)(H)(I) regarding "thickness" and "width" of mylar. The GSC disagreed. The costs reflected are based on an average of the different thickness and the same width of the mylar. TxDot 's exemption allows for actual recovery for its costs in this medium. The new sections are adopted under the Texas Government Code, Chapter 552, Subchapter F, sec.552.262 ("the Public Information Act") which provides the General Services Commission with the authority to promulgate rules necessary to implement the sections. sec.111.63. Charges for Providing Copies of Public Information. (a) The charges in this section to recover costs associated with providing copies of public information are based on estimated average costs to governmental bodies across the state. When actual costs are 25 percent higher than those used in these rules, governmental bodies other than agencies of the state, may request an exemption in accordance with sec.111.64 of this title (relating to Requesting an Exemption). (b) Copy charge. (1) Standard paper copy. The charge for standard paper copies reproduced by means of an office machine copier or a computer printer is $.10 per page or part of a page. Each side that has a printed image is considered a page. (2) Nonstandard copy. The charges for nonstandard copies are: (A) diskette--$1.00; (B) magnetic tape--$11.00 - $13.50 (depending on width - see sec.111.70 of this title (relating to the General Services Commission Charge Schedule)); (C) data cartridge--$17.50 - $35.00 (depending on series - see sec.111.70) (D) tape cartridge--$38.00 - 45.00 (depending on memory) - see sec.111.70) (E) VHS video cassette--$2.50; (F) audio cassette--$1.00; (G) oversize paper copy (i.e.: 11" x 17", greenbar, bluebar)--$.50; (H) Mylar--$.85 - $1.35/linear ft. (depending on thickness - see sec.111.70); (I) Blueprint/Blueline paper--$.20/linear ft. (all widths). (3) The charges in this subsection are to cover the cost of materials onto which information is copied and do not reflect any additional charges that may be associated with a particular request. (c) Programming personnel. If a particular request requires the services of a programmer in order to execute an existing program or to create a new program so that requested information may be accessed and copied, the governmental body may charge for the programmer's time. (1) The hourly charge for a programmer is $26.00 an hour, including fringe benefits. Only programming services shall be charged at this hourly rate. (2) Governmental bodies that do not have in-house programming capabilities shall comply with requests in accordance with sec.552.231 of the Public Information Act. (d) Other Personnel charge. (1) The charge for other personnel costs, incurred in processing a request for public information is $15.00 an hour, including fringe benefits. Where applicable, the other personnel charge may include the actual time to locate, compile, and reproduce the requested information. (2) An other personnel charge shall not be billed in connection with complying with requests that are for 50 or fewer pages of paper records, unless the documents to be copied are located in: (A) more than one building; or (B) a remote storage facility. (3) Other personnel time shall not be recovered for any time spent by an attorney, legal assistant, or any other person who reviews the requested information: (A) to determine whether the governmental body will raise any exceptions to disclosure of the requested information under Subchapter C of the Public Information Act; or (B) to research or prepare a request for a ruling by the attorney general's office pursuant to sec.552.301 of the Public Information Act. (4) When confidential information is mixed with public information in the same page, personnel time may be recovered for time spent to obliterate, blackout, or otherwise obscure confidential information in order to release the public information. (e) Overhead charge. (1) Whenever any personnel charge is applicable to a request, a governmental body may include in the charges direct and indirect costs, in addition to the specific personnel charge. This overhead charge would cover such costs as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead. If a governmental body chooses to recover such costs, a charge shall be made in accordance with the methodology described in paragraph (3) of this subsection. Although an exact calculation of costs will vary, the use of a standard charge will avoid complication in calculating such costs and will provide uniformity for charges made statewide. (2) An overhead charge shall not be made for requests for copies of 50 pages or fewer of standard paper records. (3) The overhead charge shall be computed at 20% of the charge made to cover any personnel costs associated with a particular request. Example: if one hour of personnel (programming, other personnel or a combination of both) is used for a particular request, the formula would be as follows: $15.00 x .20 = $3.00; or $26.00 x .20 = $5.20; or $41.00 x .20 = $8.20 (f) Microfiche and microfilm charge. (1) If a governmental body already has information that exists on microfiche or microfilm and has copies available for sale or distribution, the charge for a copy must not exceed the cost of its reproduction. If no copies of the requested microfiche or microfilm are available and the information on the microfiche or microfilm can be released in its entirety, the governmental body should make a copy of the microfiche or microfilm. The charge for a copy shall not exceed the cost of its reproduction. The Texas State Library and Archives Commission has the capacity to reproduce microfiche and microfilm for state agencies. Governmental bodies that do not have in-house capability to reproduce microfiche or microfilm, may charge the actual costs of having the reproduction made commercially. (2) If only a master copy of information in microform is maintained, the charge is $.10 per page for standard size paper copies, plus any applicable personnel and overhead charge for more than 50 copies. (g) Remote document retrieval charge. (1) Due to limited on-site capacity of storage of documents, it is frequently necessary to store information that is not in current use in remote storage locations. Every effort should be made by governmental bodies to store current records on-site. State agencies are encouraged to store inactive or non-current records with the Texas State Library and Archives Commission, which is equipped to provide such a service to state agencies free of charge. To the extent that the retrieval of documents results in a charge to comply with a request, it is permissible to recover costs of such services. (2) If a governmental body has a contract with a commercial records storage company, whereby the private company charges a fee to locate, retrieve, deliver, and return to storage the needed record(s), no additional personnel charge shall be factored in for time spent locating documents at the storage location by the private company's personnel. If after delivery to the governmental body, the boxes must still be searched for records that are responsive to the request, a personnel charge is allowed in accordance with sec.111.61(d)(1) of this title (relating to General). (h) Computer resource charge. (1) The computer resource charge is a utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources, which might include, but is not limited to, some or all of the following: central processing units (CPUs), servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral devices, communications devices, software, and system utilities. (2) These computer resource charges are not intended to substitute for cost recovery methodologies or charges, made for purposes other than responding to public information requests. (3) The charges in this subsection are averages based on a survey of governmental bodies with a broad range of computer capabilities. Each governmental body using this cost recovery charge, shall determine which category(ies) of computer system(s) used to fulfill the public information request most closely fits its existing system(s), and set its charge accordingly. Type of System -- Rate: Mainframe -- $10.00 per minute; Midsize -- $1.50 per minute; Client/Server -- $2.20 per hour; PC or LAN -- $1.00 per hour. (4) The charge made to recover the computer utilization cost is the actual time the computer takes to execute a particular program times the applicable rate. The CPU charge is not meant to apply to programming or printing time; rather, it is solely to recover costs associated with the actual time required by the computer to execute a program. This time, called CPU time, can be read directly from the CPU clock, and most frequently will be a matter of seconds. If programming is required to comply with a particular request, the appropriate charge that may be recovered for programming time is set forth in subsection (d) of this section. No charge should be made for computer print-out time. Example: If a mainframe computer is used, and the processing time is 20 seconds, the charges would be as follows: $10.00 / 3 = $3.33; or $10.00/60 x 20 = $3.33. (5) A governmental body that does not have in-house computer capabilities shall comply with requests in accordance with the Government Code, Public Information Act, chapter 552, sec.552.231. (i) Miscellaneous supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and other supplies used to produce the requested information, may be added to the total charge for public information. (j) Postal and shipping charges. Governmental bodies may add any related postal or shipping expenses which are necessary to transmit the reproduced information to the requesting party. (k) Sales tax. Sales tax shall not be added on charges for public information. (l) The commission shall reevaluate and update these charges as necessary. sec.111.66. Format for Copies of Public Information. (a) If a requesting party asks that information be provided on a diskette or other computer-compatible media, and the requested information is electronically stored, the governmental body shall provide the information on computer- compatible media. (b) The extent to which a requestor can be accommodated will depend largely on the technological capability of the governmental body to which the request is made. (c) A governmental body is not required to purchase any hardware, software or programming capabilities that it does not already possess to accommodate a particular kind of request. (d) Provision of a copy of public information in the requested medium shall not violate the terms of any copyright agreement between the governmental body and a third party. (e) If the governmental body does not have the required technological capabilities to comply with the request in the format preferred by the requestor, the governmental body shall proceed in accordance with sec.552.228(c) of the Public Information Act. (f) If a governmental body receives a request requiring programming or manipulation of data, the governmental body should proceed in accordance with sec.552.231 of the Public Information Act. Manipulation of data under sec.552.231 applies only to information stored in electronic format. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Issued in Austin, Texas on August 28, 1996. TRD-9612572 Judy Ponder General Counsel General Services Commission Effective date: September 18, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 936-0178 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 7.Pesticides 4 TAC sec.sec.7.1, 7.3, 7.8, 7.10-7.20, 7.22-7.30, 7.31 The Texas Department of Agriculture (the department) adopts amendments to sec.sec.7.1, 7.3, 7.8, 7.17-7.20, 7.22-7.26, and 7.31 and new 7.10-7.16 and 7.27-7.30, concerning pesticide regulations. Sections 7.1, 7.16, 7.25, 7.26 and 7.29 are adopted with changes to the proposed text as published in the July 12, 1996, issue of the Texas Register (21 TexReg 6314). Sections 7.3, 7.8, 7.10- 7.15, 7.17-7.20, 7.22-7.24, 7.27-7.28 and 7.30-7.31 are adopted without changes and will not be republished. The amendments and new sections are adopted to make the department's pesticide regulations consistent with changes made by the 74th Texas Legislature during the Sunset process of the department, to update citations, including citations of newly renumbered sections, update terminology and clarify existing regulations. Section 7.1 has been changed to add the definition of "adjoining" back into the regulations. Section 7.16(m)(1) has been changed to reflect the minimum information that the department will require of sponsors when preparing a roster of applicators attending an accredited activity. Section 7.16(s)(3) has been changed to clarify that certified private applicators who choose not to license but wish to maintain certification under a certificate issued prior to January 10, 1989, will be required to recertify as specified for licensed private applicators according to this subsection. Section 7.25(c) has been changed as requested by comments received so that nursery and greenhouse operations may meet the minimum posting requirements for pesticide applications approved by EPA with a warning flag or sign. Section 7.26(c)(3) has been changed so that any person with chemical hypersensitivities, allergies, or other medical conditions which may be aggravated by pesticide exposure and whose residence or place of employment is within 1/4 mile of the field on which pesticides are to be applied may continue to request prior notification. Comments were received from various organizations in opposition to the proposed change that would have eliminated the provision for persons with a medical condition who reside within 1/4 mile of a field to request prior notification. The proposal also deleted language that originally required that the land of the person requesting prior notification be adjoining to the land to which an application will be made. Based on comments received, the "adjoining" requirement was put back into subsection (c)(1) to apply to everyone except for persons requesting notification based on chemical hypersensitivities, allergies, or other medical conditions aggravated by pesticide exposure. Section 7.26(d)(6) has been changed to continue the requirement that a request based on a medical condition include a statement from a licensed physician. Section 7.26(n)(7)(A)(1) has been changed to correct a reference to old (h)(1)(A), which has been renumbered as new (g)(1)(A). Section 7.29(d) is adopted with changes made to correct a grammatical error. The amendment to sec.7.1 adds definitions deleted from sec.7.25 and updates the definition of Extension Service. The amendment to sec.7.3(a)(3) increases the registration fee for pesticides distributed in the state. The fee change is made pursuant to a legislative mandate requiring state agencies to set fees at levels adequate to recover costs incurred in administering regulatory programs. The amendments to sec.7.8(b) delete the fee for one additional herbicide outlet to reflect the current herbicide law which no longer allows for two outlets at a single outlet fee and clarifies how a dealer must record distribution of a restricted use or state-limited-use pesticide to a nonlicensed person. Language already on forms that are required by the department is deleted. New sec.7.10 provides certification requirements for applicators. New sec.7.11 provides licensing requirements for commercial and noncommercial applicators. New sec.7.12 provides specific license requirements for commercial applicators. New sec.7.13 provides requirements for commercial applicators to provide proof of financial responsibility. New sec.7.14 provides specific license requirements for noncommercial applicators. New sec.7.15 provides specific license requirements for private applicators. New sec.7.16 provides requirements for applicator recertification. The amendments to sec.7.17 change the license expiration date and clarify language regarding failure to file a timely and complete application. Amendments to sec.7.19 clarify that a business or individual who may not be licensed as a commercial applicator may register equipment owned by the company or individual as equipment to be used in commercial applications. Amendments to sec.7.24 delete 2,4,5-Trichlorophenoxyacetic acid (2,4,5-T), 2-(2,4,5- trichlorophenoxy)propionic acid (silvex), and orthoarsenic acid (arsenic acid) from the list of state-limited-use pesticides because those pesticides have been banned by the Environmental Protection Agency and are no longer distributed for use. Amendments to sec.7.25(a) delete language that is no longer applicable due to the more stringent federal worker protection standard (WPS) rule and adds new language that makes it very clear that agricultural establishments must follow all label directions for reentry, personal protective equipment, employee notification of applications where appropriate, and other WPS requirements. Old subsection (b) is deleted and replaced with WPS card verification requirements from sec.7.35. Subsection (c) is deleted as it addresses sec.7.27 and sec.7.30, which have been repealed. This subsection is replaced with language dealing with the flag/sign to be used in providing prior notification under sec.7.26 and posting under the WPS rule. All definitions are deleted from sec.7.25, and those that are still applicable have been moved to sec.7.1. The amendments to sec.7.26 at (c)(3) delete language relating to the filing of a physician's verification to support a request based on a medical condition. That language has been moved to subsection (d). Subsection (d) has also been changed to add that the person requesting prior notification must notify the farmer that they are requesting prior notification due to medical condition in order to receive notification pursuant to subsection (g)(2). Subsection (f) has been deleted to no longer require the department to approve a request based on a medical condition. Subsection (g)(2) is changed to continue the same system of notification for persons requesting prior notification due to a medical condition. Subsection (i) is changed to provide that notice must be given on the day before a scheduled pesticide application but emergency provisions still remain in place. New sec.7.27 provides forbidden pesticide practices. New sec. 7.28 provides requirements for the use of the Sodium Flouroacetate (Compound 1080) Livestock Protection Collar. New sec.7.29 provides requirements for the use of M-44 Sodium Cyanide devices. New sec.7.30 provides requirements for supervision of unlicensed applicators. The amendments to sec.7.36 change the expiration date for Chapter 7 from August 31, 1996 to August 31, 2000. This will set a date in the future by which the department shall review and amend, repeal or reactivate sections in Chapter 7. Sections 7.2, 7.4-7.7 and 7.21 have not been amended or repealed by the department and the department hereby reactivates those sections. Comments generally in favor of the proposal were received from the Texas Ag Industries Association and the Texas Farm Bureau. The Texas Association of Nurserymen also submitted comments regarding the size of the sign to be posted in nursery and greenhouse operations. Changes to sec.7.25(d) were made based on this comment. Comments received other than those previously addressed relate to the increase in the fee for registration of a pesticide. The commenter questioned whether or not fees collected for pesticide programs are being used to cover costs of those programs and whether the department examined fees of other programs to determine if they should be raised to cover activities associated with those programs. The department was required by the legislature to review its fees and determine what increases were necessary in all regulatory programs to recover costs. That review resulted in the conclusion that the registration fee should be increased to cover costs associated with the registration program. The amendments and new sections are adopted under the Act, sec.76.004, which provides the Texas Department of Agriculture with the authority to regulate the use of pesticides and provides the department with the authority to adopt rules for carrying out the provisions of Chapter 76; the Act, sec.76.044, which provides the department with the authority to set and charge a fee for each pesticide registered with it; the Act, sec.76.073, which provides the department with the authority to fix and charge a fee for a dealer license; the Act, sec.sec.76.106, 76.108, and 76.112, which provide the department with the authority to fix and collect a fee for applicator testing and licensing of commercial and private applicators. sec.7.1.Definitions. In addition to the definitions set out in the Act, sec.76.001, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: Act-Texas Pesticide Control Act, codified at Texas Agriculture Code, Chapter 76. Adjoining -Directly contiguous to a field on which pesticides may be applied or which is separated from a field only by a road, railway, or utility right-of- way, or by a government-owned land corridor or waterway having a width of not more than 100 feet. Farm labor camp-Housing used by one or more seasonal, temporary, permanent, or migrant workers and accompanying dependents which are owned, operated, or managed by the farm operator or licensed by the State of Texas. Farm operator-The person responsible for the overall control and management of the crop. Responsibility for the overall control and management of the crop may be transferred by contract to a second party. However, if the effective date of the transfer of responsibility is unclear, both the farm operator and the second party may be held liable for any violation of these regulations. Person-Includes any individual, partnership, association, corporation, and any organized group of persons, whether incorporated or not. Extension-Texas Agricultural Extension Service. sec.7.16Applicator Recertification. (a) All applicators must meet recertification requirements through continuing education activities. (b) Continuing education activities may include lectures, panel discussions, organized video or film with live instruction, field demonstrations, or other activities approved by the department. (c) Each activity must be accredited by the department. No activity may claim to be approved, accredited, or accepted by the department or use any other such term that would lead an applicator to believe that it has been approved by the department for recertification unless it is so accredited. (d) The department shall assign no more than one continuing education credit unit for each hour of net actual instruction time for an accredited activity. (e) To be eligible for accreditation, the department will require: (1) that the activity have significant educational or practical content to maintain appropriate levels of competency; (2) that the activity be conducted by a university, a governmental agency, an association with membership of 25 or more persons, or a private independent nonapplicator business; (3) that each activity has a recordkeeping procedure for verifying applicator attendance using department forms or approved formats; (4) that each activity be at least one hour of net instruction time; (5) that activities cover one or more of the following topics pertaining to pesticides: (A) label and labeling comprehension; (B) safety factors; (C) environmental consequences; (D) pest features; (E) integrated pest management strategies/pest management practices; (F) pesticide factors; (G) equipment characteristics; (H) application techniques/drift minimization; (I) laws and regulations; or (J) business ethics; and (6) the activity is able to comply with any applicable federal and state laws, including the Americans With Disabilities Act (ADA) requirements for access to activities. (f) Prior accreditation shall not be required for applicator recertification courses of up to three continuing education credit units conducted by Extension faculty, department pesticide program staff and pesticide inspectors for any pesticide applicator, provided that all other requirements for course content and records are met. The department may enter into a memorandum of agreement with Extension regarding the specific requirements for applicator recertification. (g) Department personnel may monitor all accredited activities, and all fees charged by the sponsor shall be waived for department personnel who monitor the recertification activity. (h) The department may deny, revoke, or refuse to renew accreditation for any or all courses of a sponsor if the sponsor fails to file a timely activity report, fails to provide the quality of activity approved by the department, or fails to comply with any other requirements that are a basis for accreditation or that are a part of these rules. (i) The department may enter into a memorandum of agreement with another state or non-profit professional society or association to recognize the state's pesticide applicator recertification or the society's professional recertification for satisfaction of the requirements of this section for commercial, noncommercial and private applicator recertification only if: (1) the standards for recertification meet or exceed the standards for the one- year or five-year recertification periods as set out in this section; and (2) the agreement reduces duplication of effort and does not increase the recordkeeping burden of the department. (j) Each continuing education activity shall be accredited for one calendar year only. (k) In order for a recertification activity to be accredited by the department, the sponsor must: (1) submit a completed department-prepared application form; (2) provide any additional material relevant to the activity which is requested by the department; and (3) submit the application and information required by the department at least 30 days in advance of the first date of the activity. The department may waive the 30-day provision providing all other requirements are met. The department will respond to the sponsor within ten days of receipt of the application and approve, reject, or request additional information. (l) Sponsors who wish to continue accreditation must file for renewal annually on a form prepared by the department. (m) Sponsors of accredited activities shall: (1) prepare a roster of applicators that attend the activity which contains, at a minimum, the pesticide applicator's name and current license or certificate number. (2) distribute a completion certificate at the time of the activity to applicators who successfully complete an activity, which shall indicate the name of the sponsor, the date, county and name of the activity, the amount and type of credit earned, and the assigned course number; (3) send the activity rosters to the department within 14 days after the end of an activity. The rosters must be on department forms or approved formats; and (4) ensure that each continuing education unit accredited be at least one hour of net instruction time. (n) Governmental agencies may enter into an agreement with the department for annual submission of recertification records of agency employees attending a recertification program approved for the agency by the department. (o) No credit will be given for time used to promote the sponsor or other activities of the sponsor or for time used for organizations, political, procedural, or other nonrelevant activities. (p) Applicators will recertify through a self-certification program. Each applicator will be required to maintain the number of credits necessary to renew a license or certificate. Certificates of completion received from accredited activities must be maintained for a period of 12 months after the most recent renewal of their license or certificate. (q) Each licensed commercial or noncommercial applicator must obtain five hours of CEUs annually. A minimum of one hour must be obtained from two of the following categories: integrated pest management, laws and regulations or drift minimization. (r) Each commercial or noncommercial applicator must obtain at least five credits during the 12 months preceeding December 31 in order to recertify and renew a license for the following year. An applicator who becomes unlicensed in any licensing year may not be relicensed for 12 months unless all recertification credits required for the last year of licensing are completed. Until the 12 month period has elapsed, applicators are prohibited from retesting under sec.7.11 of this title (relating to Classification of Commercial and Noncommercial Licenses). (s) Private applicators must recertify as follows. (1) Each licensed private applicator must obtain 15 continuing education credits within a five year period including at least two credits in laws and regulations and two credits in integrated pest management, except that any private applicator with a recertification date that began prior to January 1, 1996, must obtain two credits in laws and regulations and one credit in integrated pest management. (2) Each licensed private applicator must obtain 15 credits prior to February 28 of the year their license expires. (3) Private applicators issued a certificate prior to January 10, 1989, may fulfill their recertification requirement on a one-time only basis by completing the Extension private applicator training program, attaining a passing score on the private applicator test, and obtaining a private applicator license. Certified private applicators who choose not to license but wish to maintain certification under a certificate issued prior to January 10, 1989, will be required to recertify as specified for licensed private applicators in this subsection (4) Private applicators may have the option of foregoing continuing education requirements for a recertification period by following these procedures: (A) Take and pass a comprehensive examination administered by the department which will contain questions relevant to those topics which would be covered at various continuing education activities. A certificate of completion worth 15 continuing education units will be issued by the department upon a passing score being attained by the applicator. (B) If the applicator fails the examination, subsequent attempts will be allowed until a passing score is attained. If a passing score is not attained, the applicator must obtain the required continuing education units pursuant to this subsection. (C) A fee of $50 is required prior to each examination. (t) Failure to comply with the continuing education requirement for commercial, noncommercial and private applicators will: (1) result in nonrenewal of an applicator's license or certification until the necessary credits for continuing education are attained; (2) require the applicator to take and pass comprehensive department examinations for general knowledge and for each category in which the applicator seeks to be licensed if the applicator does not recertify and renew in one year following the expiration of the license; (3) require retraining of commercial, noncommercial and private applicators for categories or subcategories requiring special training if the applicator does not recertify and renew in one year following the expiration of the license; and (4) subject a noncompliant applicator to administrative, civil or criminal penalties and/or license or certificate revocation, suspension, modification or probation for failure to comply with continuing education requirements or if the applicator operates under a license that has not been renewed. (u) An applicator may seek credit for a continuing education activity that has not been submitted by the sponsor to the department, and the department will assign the number of credits for the activity when the activity is held by an out-of-state sponsor and the following applies: (1) the activity contains course content of the highest standards; (2) the activity is sponsored by an institution of higher education, a regional association, a national association, or the state or federal government; (3) the applicator provides the department with sufficient information describing activity content including the time allotted to each aspect of the activity, identification of sponsor, instructor's name and address, proof of attendance, date, time, and place of the activity; and (4) this information is submitted within 60 days after completion of the activity; or (5) the activity is a course approved by a university, college, or other institution of higher education for credit towards a bachelors degree, and is an area directly related to the activities of commercial or noncommercial applicators, and the following applies: (A) the applicator provides the department with sufficient information describing activity content including the time allotted to each aspect of the activity, identification of sponsor, instructor's name and address, proof of attendance, date, time, and place of activity; and (B) this information is submitted within 60 days after completion of the activity. (v) An applicator may file a written request for an extension of time for compliance with any deadline in these rules. Such request for extension shall be granted by the department if the applicator files appropriate documentation to show good cause for failure to comply timely with the requirements of this subsection. Good cause means extended illness, extended medical disability, or other extraordinary hardship which is beyond the control of the person seeking the extension. (w) Any person who is issued an initial license on or after September 1 in any year and has not been licensed at any time during the preceeding nine months, shall begin annual recertification requirements the following year and need not obtain any credits between September 1 and December 31 of that year. If credits are obtained during that period, they may be applied to the following year's requirement. (x) Applicators licensed as both private and commercial or noncommercial may satisfy requirements for private applicator recertification by meeting the recertification requirements for commercial and noncommercial applicators. sec.7.25.Scope of Pesticide Application Standards. (a) Purpose. The purpose of sec.sec.7.25-7.27 of this title (relating to Pesticides) is to establish pesticide application standards designed to prevent unreasonable risk to human health and protect workers and others during the production of agricultural field crops. (b) Worker Protection Standard Training Verification Requirements. All certified and licensed applicators or trained trainers who conduct pesticide safety training must: (1) maintain records of each trainee for five years. These records must include a copy of each dated class roster signed by the trainer and each trainee, with the verification card number issued to the trainee, and the city or county and state where the training occurred; (2) issue EPA training verification cards only to trainees who have been trained in accordance with the requirements of the WPS, including the correct use of training materials developed or approved by EPA; (3) record trainee information on the verification cards, in ink or other indelible form; (4) issue EPA training verification cards that match EPA specifications or that comply with state variations from such specifications that have prior approval from EPA; and (5) promptly respond to requests from EPA, state, or tribal agencies or agricultural employers for information concerning issued EPA training verification cards. (c) The EPA WPS warning flag/sign. EPA WPS warning flag/sign referred to in WPS and sec.7.26 of this title (relating to Notification Requirements) must look like the one pictured as follows. Additional information may be included on the warning sign, such as the name of the pesticide or the date of application, if it does not lessen the impact of the flag/sign or change the meaning of the required information. If the required information is added in other languages, the words must be translated correctly. The flag/sign must be at least 14 inches by 16 inches, and the letters must be at least one inch high. For nursery and green house operations, the warning sign/flag may meet the minimum requirements as approved by the EPA. Figure 1: 4 TAC sec.7.25(c) sec.7.26.Notification Requirements. (a) Responsibility. Except as provided in subsection (n) of this section, the farm operator shall be responsible for meeting prior notification requirements. (b) (No change.) (c) Who may request. The following persons may request prior notification of a pesticide application: (1) any person who works or resides in a building, house, or other structure located on land adjoining and within 1/4 mile of a field on which pesticides may be applied; (2) persons in charge of licensed day-care centers, primary and secondary schools, hospitals, inpatient clinics or nursing homes within 1/4 mile of the field on which pesticides are to be applied. The parent of a primary or secondary school student may for good cause request notification from the department if the person in charge of the school has refused to request notification. If the department determines that notification should be given, the department shall notify the farm operator to give notification to the person in charge of the school; and, (3) any person with chemical hypersensitivities, allergies, or other medical conditions which may be aggravated by pesticide exposure and whose residence or place of employment is within 1/4 mile of the field on which pesticides are to be applied. (d) Content of request. Except as provided in subsection (n) of this section, requests for prior notification under this section shall be made in writing to the farm operator, and should include: (1)-(4) (No change.) (5) a request to be notified prior to the application of any pesticides to the area described in paragraph (4) of this subsection or the trade name and/or common chemical name of specific pesticides for which prior notification is requested and; (6) a request to be notified because of a medical condition that may be aggravated by pesticide exposure. Such requests must contain a licensed physician's signed confirmation of the medical condition. (e) (No change.) (f) Length of effectiveness and commencement of notification. A request for prior notification shall be effective through December 31 of the year that the request is received. A farm operator shall commence notifying a requesting party of scheduled pesticide applications within ten days of receipt of a request for notification. The department may extend the time to begin notifying a requesting party upon a showing of sufficient cause by the farm operator. The department shall notify the requesting party of any such extension. (g) Notification. The following methods may be used for giving notification of a scheduled pesticide application. (1) General requests. Except as provided by subsection (n) of this section if the request for notification is made pursuant to this section, the notification may be made by: (A) raising a flag/sign. (i) the EPA WPS posted warning flag/sign shall be raised to a height of at least approximately five feet, with the bottom of such flag/sign always at least two feet above the top of the crop, in or about the field to which pesticides are scheduled to be applied so that the flag/sign is located no farther than 650 yards from the nearest property line of any person requesting notification. (ii) in the event of unusually tall crops, such as citrus, corn, or sugar cane, or limited access fields, the farm operator may raise a flag/sign at a distance greater than 650 yards from the nearest property line of the party requesting notification on a permanent pole to a height visible from the property line of the requesting party. (iii) (No change.) (B)-(C) (No change.) (2) Medical condition. If the request for notification is made pursuant to a medical condition, notification must be given in person or by telephone in English or, when appropriate, Spanish. (A) If the farm operator is unable to reach a person entitled to notification under this paragraph after making reasonable efforts, the farm operator may immediately notify the department by telephone of the following information: (i)-(v) (No change.) (B) (No change.) (C) If the farm operator telephones the department between 8:00 a.m. and 5:00 p.m., Monday through Friday, the department shall immediately attempt to telephone the requesting party and give notification of the scheduled application. A record showing the date and time of all such attempts shall be maintained by the department. (3)-(5) (No change.) (h) Content of notice. Notice given in writing, in person, or by telephone shall include: (1)-(3) (No change.) (i) Time and receipt of notice. Notice shall be given not later than on the day prior to a scheduled pesticide application. (1) Notice shall be deemed given pursuant to subsection (g) (1) and (3) of this section: (A-(B) (No change.) (C) as mutually agreed upon pursuant to an agreement authorized by subsection (g) (1)(C). (2) Notice shall be deemed given pursuant to subsection (g) (4) of this section at the time of delivery of notification in person, by telephone, or by posting the required notice: (A) (No change.) (B) after the farm operator has made reasonable efforts to notify the requesting party by telephoning the requesting party at the number(s) provided during the time(s) specified in the written request. (j) Emergency. Advance notice need not be given on the day before when an immediate application is required and time does not reasonably allow the giving of notice on the day before a pesticide application. Notice of an emergency application shall be given: (1) by the method selected pursuant to subsections (g) (1), (3) and (4) of this section as soon as reasonably possible before the application; or (2) (No change.) (k) Removal of flags/signs. Flags/signs raised under this section should be removed or lowered within 24 hours after the reentry interval expires. However, in no event shall such flags/signs be left posted for more than 72 hours after the reentry interval has expired. In the event that a pesticide application is not made when scheduled, the flag/sign may be left posted until after the reentry interval has expired. (l) Duty to notify of address change. A person who has requested notice of a pesticide application under this section shall notify the farm operator promptly and in writing of any change of address or telephone number. Notice need not be given at any vacant structure or premises, or at any structure or premises which is not the place of residence or business of a person entitled to notice under this section. (m) All complaints filed under this section shall be reviewed and investigated by the department in the same manner as any other complaints filed under the Texas Administrative Procedure Act. (n) Applications by the Texas Boll Weevil Eradication Foundation or other areawide pest control program sponsored by a governmental entity. (1) Responsibility. For applications made by the foundation as part of its boll weevil eradication program or other areawide pest control program sponsored by a governmental entity, the entity making the application or causing the application to be made is responsible for meeting prior notification requirements of this subsection. The farm operator is responsible for accepting requests for and providing prior notification in accordance with this section for applications made by the farm operator. (2) Who may request. A request for notification of an application made by an entity covered by this subsection may be made by all of those persons listed in subsection (c) of this section. No request is necessary for prior notification of farm labor camps owned, managed or controlled by a farm operator and located on or within 1/4 mile of a field on which pesticides are to be applied by the foundation or other entity; provided that the farm operator is responsible for notifying the foundation or other entity of the presence of such labor camps. (3) Filing and content of request. Requests made under this section shall be made in writing to the foundation or other entity or the farm operator and shall include all of the information required by subsection (d) of this section. (4) Notification by farm operator. The farm operator is responsible for notifying the foundation or other entity covered by this subsection of any requests for prior notification received by the farm operator relating to an application that will be made or caused to be made by the foundation or other entity. The information must be provided to the foundation or other entity within 24 hours of its receipt by the farm operator. The information may be provided: (A) by telephone at a telephone number obtained from the department; (B) by forwarding the written request to the foundation or other entity in the U. S. mail at a mailing address obtained from the department; or (C) by any other reasonable means, as long as the information is forwarded within 24 hours of its receipt. (5) Request for notification by the foundation or other entity. Prior to the making of the first application in each calendar year, the foundation or other entity shall request that the farm operator notify it of any requests for prior notification already in effect for property on which the foundation or other entity will be making applications and of any future requests for prior notification on that property. (6) Effective date and length of effectiveness of request. A request for prior notification under this subsection shall be in effect through December 31 of the year that the request is received. The foundation or other entity shall begin notifying the requesting party of scheduled pesticide applications within 10 days of receipt of a request for notification. (7) Methods of notification and content of notice. (A) Notification shall be provided as follows. (i) Notification may be given in writing, by raising a flag/sign in the manner provided at (g)(1)(A) of this section, in person, by telephone in English or, when appropriate, Spanish, or by other means mutually agreed upon by the requesting party and the foundation or other entity. This agreement must be in writing and a copy filed with the department. For purposes of providing notice to medically affected persons or to licensed day care centers, primary and secondary schools, hospitals, inpatient clinics and nursing homes, "notification in writing" means other than by mail such as by posting a written notice on the requester's front door or at the requester's place of business. (ii) If the foundation or other entity is unable to reach a person entitled to notification under this section after making reasonable efforts, the foundation or other entity may immediately notify the department by telephone of the following information: (I) the name and telephone number(s) of the foundation or other entity; (II) the name and telephone number(s) of the requesting party; (III) the location of the field scheduled to be treated; (IV) the intended date and approximate time of the pesticide application; and (V) the trade and common chemical name of the pesticide. (iii) The department shall maintain a record of the information provided by the foundation or other entity. (iv) If the foundation or other entity telephones the department between 8:00 a.m. and 5:00 p.m., Monday-Friday, the department shall immediately attempt to telephone the requesting party and give notification of the scheduled application. A record showing the date and time of all such attempt shall be maintained by the department. (v) In addition to the methods of notification provided at this subparagraph, notification to farm labor camps may be provided in writing by placing a written notice on an on-site bulletin board or other central, on-site posting place which is readily accessible to labor camp residents. (B) The notice shall include: (i) the location of the field on which the application is to be made; (ii) the intended date and approximate time of application; (iii) the trade and common chemical name of the pesticide to be applied; and (iv) who to contact for additional information. (C) Notice shall be given no later than the day prior to a scheduled pesticide application. (8) Emergency provision. Advance notice need not be given on the day before an application when an immediate application is required and time does not reasonably allow the giving of notice on the day before the pesticide application. Notice of an emergency application shall be given: (A) by the method selected in accordance with paragraph (7)(A) of this subsection as soon as reasonably possible before the application; or (B) by telephone or in person to a medically-affected person as soon as reasonably possible, but not less than one hour before the application. However, an emergency application need not be postponed if after reasonable efforts by the foundation or other entity actual notice cannot be given. (9) Duty to notify of address change. A person who has requested notice of a pesticide application under this section shall notify the foundation or other entity promptly and in writing of any change of address or telephone number. sec.7.29.M-44 Sodium Cyanide-State-Limited-Use Requirements. (a) Purpose. Any and all pesticides and devices using sodium cyanide as the active ingredient, including the M-44 device for livestock predation control, shall be classified as state-limited- use pesticides, pursuant to the Act, sec.76.003. However, this section shall not apply to the use of M-44 sodium cyanide by employees of the Texas Animal Damage Control Service when performing official duties and using M-44 cyanide capsules under the federal government registration. (b) Definitions. In addition to the definitions set out in the Act, sec.76.001 and sec.7.1 of this title (relating to Definitions), the following words and terms, when used in this section shall have the following meanings unless the context clearly indicates otherwise. (1) Authorized dealer - A dealer licensed under the Act, sec.76.071, and specifically approved by the department to distribute M-44 sodium cyanide. (2) M-44 applicator - A person who has obtained authorization from the department for the use of M-44 sodium cyanide. (3) M-44 sodium cyanide - Includes the active ingredient sodium cyanide, sodium cyanide capsules, and any device loaded with sodium cyanide for use in livestock predation control. (c) Distribution requirements. Dealers distributing M-44 sodium cyanide must meet the following requirements. (1) All dealers who wish to distribute M-44 sodium cyanide must obtain written approval by the department. In order to obtain approval to handle M-44 sodium cyanide from the department, dealers must obtain from the department a pesticide dealer's license to handle restricted pesticides and complete special agreement forms to become an authorized dealer for the purpose of distributing M-44 sodium cyanide. All dealers must meet the dealer requirements of the Act, sec.sec.76.071-76.077, the requirements of sec.7.8 of this title (relating to Authorized Pesticide Users and Pesticide Dealers), and any additional federal requirements of the use restriction bulletin (label) for M-44 sodium cyanide under EPA Registration Number 33858-2. (2) An authorized dealer may distribute M-44 sodium cyanide only to M-44 applicators or registrants of M-44 sodium cyanide. M-44 sodium cyanide may not be distributed or transferred by a dealer to any person for the purpose of resale or transfer with the exception of registrants. (3) The department will keep a list of approved dealers and make it available to all certified applicators. Only dealers whose names appear on the list are authorized to receive or distribute M-44 sodium cyanide. (4) Each authorized dealer must be or employ a person certified under this section. (5) Each dealer must maintain for a period of two years complete records on forms prescribed by the department of all transactions involving M-44 sodium cyanide, including: (A) the amount of materials purchased by dealer and date of purchase; (B) the following information for each distribution: (i) the date of distribution; (ii) the name, address, applicator number, county, and telephone number of any M-44 applicator to whom M-44 sodium cyanide was distributed; and (iii) the amount distributed to the approved applicator. (6) Dealers must make sure that any distribution of M-44 sodium cyanide is accompanied by a complete label. Authorized dealers must also provide to M-44 applicators the recordkeeping forms prescribed by the department. Authorized dealers may distribute sodium cyanide capsules only in boxes of ten each, in boxes of 25 each, or in boxes of 50 each. (7) Authorized dealers must obtain the department's approval prior to purchasing any M-44 sodium cyanide. (8) Each authorized dealer must report to the department any incident or complaint of misuse involving M-44 sodium cyanide. (d) M-44 applicators. Any person seeking to qualify as an M-44 applicator must possess a current private applicator certification or license, or a noncommercial applicator license with certification in the predatory animal control subcategory, regulatory pest control category or demonstration and research category, or a commercial applicator license with certification in the predatory animal control subcategory. All applicators must undertake training prescribed by the department and obtain certification for M-44 use. (1) Training for M-44 applicators will include the following: (A) the proper use and treatment of the M-44 sodium cyanide; (B) the proper method of disposing of M-44 sodium cyanide and related contaminated materials; (C) safe handling techniques designed to reduce health and injury risks; (D) recordkeeping requirements; (E) proper methods of identifying causes of predation; and (F) approved methods of predator control. (2) All M-44 applicators must comply with the label including the use restrictions bulletin on M-44 sodium cyanide issued by the department (EPA Registration Number 33858-2) when using M-44 sodium cyanide. Copies of the use restrictions must be obtained with the purchase of each box of M-44 sodium cyanide. Additional copies of the bulletin and recordkeeping forms may be obtained from the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. (e) Recordkeeping. Each applicator shall maintain records on forms prescribed by the department dealing with the placement of the device and the results of each placement. Such records shall include, but may not be limited to: (1) the number of M-44 sodium cyanide devices in place; (2) the location of each M-44 sodium cyanide device; (3) the dates of each placement, inspection, and removal; (4) the number and location of M-44 sodium cyanide devices which have been discharged and the apparent reason; (5) species of animals taken; and (6) all accidents or injuries involving humans, domestic animals, wildlife, or bodies of water. Issued in Austin, Texas, on August 27, 1996. TRD-9612529 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: September 17, 1996 Proposal publication date: July 12, 1996 For further information, please call: (512) 463-7583 4 TAC sec.sec.7.10-7.16, 7.27-7.35 The Texas Department of Agriculture (the department) adopts the repeal of sec.sec.7.10-7.16 and 7.27-7.35, concerning pesticide regulation, without changes to the proposed text as published in the July 12, 1996, issue of the Texas Register (21TexReg 6331). The repeal is adopted to allow the department to revise and reorganize Chapter 7 to make the chapter consistent with federal law and changes made by the 74th Texas Legislature (1995), update citations, update terminology and clarify the regulations.. The repeal of sec.sec.7.10-7.16 deletes sections relating to applicator certification and recertification, classification of applicator licenses, requirements for applicator licenses, prohibited pesticide practices, livestock protection collar requirements, M- 44 sodium cyanide requirements, and supervision requirements to allow for those sections to be relocated elsewhere in Chapter 7 and replaced with new sections. The repeal of sec.sec.7.27, 7.28, and 7.30 make the department's regulations consistent with current federal law and regulations Comments generally in support of the repeal were submitted by the Texas Ag Industries Association and the Texas Farm Bureau. The repeal is adopted under the Texas Agriculture Code, sec.76.004, which provides the Texas Department of Agriculture with the authority to regulate the use of pesticides and provides the department with the authority to adopt rules for carrying out the provisions of Chapter 76. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 27, 1996. TRD-9612530 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: September 17, 1996 Proposal publication date: July 12, 1996 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT PART V. Texas Department of Commerce CHAPTER 198. Advertising Rules 10 TAC sec.sec.198.1-198.12 The Texas Department of Commerce (Commerce) adopts new sec.sec.198.1-198.12, concerning advertising rules relating to the sale of advertising space by Commerce in travel promotions of any media. The new rules are adopted without changes to the proposed text as published in the May 21, 1996, issue of the Texas Register (21 TexReg 4385). The new rules include provisions governing the cost of advertising space, the size of advertisements, acceptable and unacceptable products and services for advertisement, advertising placement and sales procedures, approval of advertising copy, liability policy, payment policy, tearsheet policy and policy on refusal to do business with certain individuals and entities. No comments requesting changes to the proposed rules were received. The new rules are adopted under the authority of Government Code, sec.481.174 and sec.481.005(d). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Issued in Austin, Texas on August 28, 1996. TRD-9612552 W. Lane Lanford Chief Administrative Officer Texas Department of Commerce Effective date: September 18, 1996 Proposal publication date: May 21, 1996 For further information, please call: (512) 936-0178 TITLE 22. EXAMINING BOARDS PART XII. Board of Vocational Nurse Examiners CHAPTER 231.Administration General Provisions 22 TAC sec.231.1 The Board of Vocational Nurse Examiners adopts an amendment to sec.231.1, relative to the definition of Direct Supervision without changes to the proposed text published in the April 12, 1996, issue of the Texas Register (21 TexReg 3113). The rule is amended to promote client safety by providing an unequivocal definition of the supervision needed by a vocational nurse with a temporary permit. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 27, 1996. TRD-9612522 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 17, 1996 Proposal publication date: April 12, 1996 For further information, please call: (512) 305-8100 CHAPTER 235.Licensing Application for Licensure 22 TAC sec.235.17 The Board of Vocational Nurse Examiners adopts an amendment to sec.235.17, relative to Temporary Permits without changes to the proposed text as published in the April 26, 1996, issue of the Texas Register (21 TexReg 3594). The rule is amended to clarify the differences between the conditions of issuance of temporary permits to individuals who meet licensure requirements from the conditions of issuance of temporary permits to individuals who do not meet licensure requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 27, 1996. TRD-9612521 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 17, 1996 Proposal publication date: April 26, 1996 For further information, please call: (512) 305-8100