TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 7. PESTICIDES

SUBCHAPTER D. USE AND APPLICATION

4 TAC §7.30

The Texas Department of Agriculture (Department) proposes amendments to Title 4, Part 1, Chapter 7, Subchapter D, §7.30, relating to "Classification of Pesticides." The proposed amendments add regulations regarding "State-limited-use pesticides Defined by Active Ingredient and Use," specifically licensure requirements. The amendments are proposed to require licensure of applicators and distributors of warfarin, only when used as a feral hog toxicant, to ensure proper sales, use and compliance by trained individuals, and to address the risk of potential misapplication or distribution resulting in possible secondary exposure to humans or non-target animals.

The Department adopted amendments to §7.30 on an emergency basis on February 6, 2017. The rules were published in the February 24, 2017, issue of the Texas Register (42 TexReg 735), and are effective until June 5, 2017. As noted in the emergency rulemaking adoption, the Department is now proposing amendments to §7.30 on a permanent basis.

The Texas Agriculture Code, Chapter 76, Subchapter C, designates the Department as the state agency responsible for registering pesticides in Texas. Prior to distribution or use in Texas, a product must be registered with the Department. Section 7.10 of this Title, relating to Registration of Pesticides, provides that a registration application must include proof of federal registration by the Environmental Protection Agency (EPA), among other requirements.

The Department received a pesticide registration application for a product containing the active ingredient warfarin used only as a feral hog (Sus scrofa) toxicant. The application included EPA approval of the product with classification as "general use," without restrictions on the sale or purchase of the product by members of the public. The Department approved the registration in compliance with §7.10 of this Title, and Chapter 76 of the Agriculture Code. In order to avoid distribution to unqualified users which may result in product misapplication and the possible secondary exposure to humans or non-target animals, §7.30 imposes stricter regulations than those approved by the EPA by designating the product as a "State-Limited-Use" product.

Section 7.30(d) requires the licensure of applicators or distributors of warfarin, only when used as a feral hog toxicant, subject to the requirements set forth in Chapter 76 of the Agriculture Code and Chapter 1951 of the Occupations Code. In order to distribute a "State-Limited-Use" pesticide, a dealer is required to hold a pesticide dealer's license, issued by the Department. A person may not purchase or use a "State-Limited-Use" pesticide, unless licensed as a pesticide applicator, or under the direct supervision of a licensed applicator. Licensees must meet criteria adopted in rule by the Department under the Texas Administrative Code, including compliance with mandatory recordkeeping requirements. In addition, continuing education and training help to ensure safe and proper use, and understanding and compliance with all product labeling requirements. As with all pesticides, warfarin, when used as a feral hog toxicant, must be used in strict accordance with product labeling, as required by state and federal law.

Philip Wright, Administrator for Agriculture and Consumer Protection, has determined there will be no fiscal implications for state or local government as a result of the proposed rule changes.

Mr. Wright has determined that for each year of the first five years these amendments are in effect, there will be minimal economic effect on micro-businesses, small businesses or individuals who are required to secure licensure to comply with the proposal. However, the cost of licensure, which is a normal cost of doing business required for all pesticide dealers and applicators, provides a significant public benefit by ensuring that the product is only used and distributed by qualified individuals and businesses in accordance with strict labeling requirements, mandatory rules and laws.

Written comments on the proposal may be submitted to Philip Wright, Administrator for Agriculture and Consumer Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to TDATopics@TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The Department shall conduct a hearing to take public comment during the 30-day comment period and shall post notice of the date, time and location in accordance with the Open Meetings Act, Texas Government Code.

The proposal is made pursuant to Chapter 76 of the Texas Agriculture Code, which provides the Department with the authority to adopt rules related to provisions necessary for compliance with pesticide and herbicide regulations.

The code affected by the proposal is Texas Agriculture Code, Chapter 76.

§7.30.Classification of Pesticides.

(a) - (c) (No change.)

(d) State-Limited-Use Pesticides Defined by Active Ingredient and Use.

(1) Due to the potential for adverse effects to humans and non-target animals, a pesticide product containing the active ingredient warfarin when used only as a feral hog (Sus scrofa) toxicant is classified as a state-limited-use pesticide and subject to the restrictions listed in paragraph (2) of this subsection, as well as all other provisions of law generally applicable to state-limited-use pesticides.

(2) Restrictions.

(A) A person may not purchase a pesticide classified as state-limited-use under this subsection unless the person is licensed as a pesticide applicator under either Chapter 76 of the Agriculture Code or Chapter 1951 of the Occupations Code or working under the direct supervision of a person so licensed.

(B) A person may not use a pesticide classified as state-limited-use under this subsection unless the person is licensed as a pesticide applicator under either Chapter 76 of the Agriculture Code or Chapter 1951 of the Occupations Code or working under the direct supervision of a person so licensed.

(C) A person may not distribute a pesticide classified as state-limited-use under this subsection to a person not authorized by this section to purchase state-limited-use pesticide.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 3, 2017.

TRD-201701374

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: May 14, 2017

For further information, please call: (512) 463-4075