PART 1. TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 7. PESTICIDES
SUBCHAPTER D. USE AND APPLICATION
The Texas Department of Agriculture (Department) proposes amendments to Texas Administrative Code (TAC), Title 4, Part 1, Chapter 7, Subchapter D, §7.30 relating to "Classification of Pesticides." The proposed amendments add a new subsection (d) to classify pesticide products containing the active ingredient warfarin as "state-limited-use" pesticides when used as a feral hog toxicant and to establish related licensure requirements. The amendments are proposed 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.
In addition, the proposed amendments align with the findings and results of the Final Report for the experimental use program conducted by Texas A&M University Agrilife Extension Service (Texas A&M Agrilife) to evaluate the pesticide's efficacy in the State of Texas as directed by the Texas Legislature through its enactment of Senate Bill 1, General Appropriations Act (2022-2023 Biennium), 87th Leg., R.S., art. IV, Rider 28(b), pp. IV-10 to IV-11 ("GAA Rider 28"). Moreover, the proposed amendments are consistent with the legislative restrictions on the Department's authority during the course of the experimental use program; GAA Rider 28 expressly authorized the Department "to register a pesticide product containing warfarin for use in this state to control feral hogs only if that registration is limited to use by pesticide applicators licensed by the department who are participating in an experimental use program conducted by the Texas A&M AgriLife Extension Service to evaluate the product's efficacy in this state and the product is registered by the United States Environmental Protection Agency for use to control feral hogs." (Emphasis added.) Texas A&M Agrilife issued its final report for the experimental use program (Final Report) on August 28, 2023. Based on the Final Report, including available data from the Texas A&M Agrilife experimental use program, the Department has determined that use of a pesticide product containing warfarin is safe and effective in assisting landholders to mitigate economic harm and damage caused by feral hogs. The Department is proposing amendments to §7.30 on a permanent basis.
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 4 TAC Part 1, Chapter 7, 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 and Chapter 76 of the Texas 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, new §7.30(d) imposes stricter regulations than those approved by the EPA by designating the product as a "state-limited-use" product.
New §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 Texas Agriculture Code and Chapter 1951 of the Texas 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 4 TAC Part 1, Chapter 7, including compliance with mandatory recordkeeping requirements. In addition, continuing education and training help to ensure safe and proper use, as well as 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.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT: 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.
PUBLIC BENEFITS AND PROBABLE ECONOMIC COSTS: 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 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.
LOCAL EMPLOYMENT IMPACT STATEMENT: Mr. Wright has determined that the proposed amendments will not affect a local economy, so the Department is not required to prepare a local employment impact statement under Texas Government Code, §2001.022.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES: The Department has determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed amendments, therefore preparation of an economic impact statement and a regulatory flexibility analysis, as detailed under Texas Government Code, §2006.002 is not required.
GOVERNMENT GROWTH IMPACT STATEMENT: Pursuant to Texas Government Code, §2001.0221, Mr. Wright provides the following Government Growth Impact Statement for the proposed amendments. For each year of the first five years these rules will be in effect:
(1) the proposed amendments will not create or eliminate a government program;
(2) implementation of the proposed amendments will not require the creation or elimination of existing employee positions;
(3) implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to the Department;
(4) the proposed amendments will not require an increase or decrease in fees paid to the Department;
(5) the proposed amendments do not create a new regulation;
(6) the proposed amendments will not expand, limit, or repeal an existing regulation;
(7) the proposed amendments will not increase or decrease the number of individuals subject to the rules; and
(8) the proposed amendments will not affect this state's economy.
In accordance with Texas Agriculture Code, Section 76.003(a) and Section 76.104, the Department shall conduct a public hearing to receive comments on the proposed amendments in person during the 30-day public comment period for this rulemaking and shall post notice of the date, time, and location on the Department website, as well as through publication of a Miscellaneous Notice in the Texas Register.
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 Philip.Wright@TexasAgriculture.gov with a subject line reading "Public Comment - State-Limited-Use Pesticide; Warfarin." Comments must be submitted no later than 30 days from the date of publication of this rule proposal in the Texas Register.
The amendments are proposed pursuant to Section 76.003 of the Texas Agriculture Code, which allows the Department to adopt a list of state-limited-use pesticides and to regulate their terms and conditions of use; Section 76.004 of the Code, which allows the Department to adopt rules for carrying out the provisions of Chapter 76 of the Code, to include rules providing for the distribution of pesticides; and Section 76.104 of the Code, which allows the Department to adopt rules related to the use and application of pesticides to include rules related to restricted-use and state-limited-use pesticides and regulated herbicides.
The code affected by the proposed amendments 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) 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 Texas Agriculture Code or Chapter 1951 of the Texas 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 Texas Agriculture Code or Chapter 1951 of the Texas 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 November 16, 2023.
TRD-202304304
Susan Maldonado
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: December 31, 2023
For further information, please call: (512) 463-6591