PCG EMAIL SERVICES: Texas Capitol Reports - Issue 12

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Texas Capitol Reports
Austin, Texas

By David Oefinger

Issue 12
April 7, 2017

This Week at the Capitol

The House embarked late this week on a serious budget debate that lasted hours.  It has become crunch time for House members who must decide the top budget priorities for the next spending biennium.  Whatever the outcome, you can expect little agreement between the House and Senate where the budget is concerned.

Bills are popping fast and furious on the Senate side of the Capitol as they regard a proposed high-speed rail line between Dallas and Houston.  Supporters of the rail project fear that the legislature will take action that will make construction of the high-speed rail line an “uphill battle.”

The Temporary Restrain Order (TRO) against the TDA for in its regulatory efforts to allow use of warfarin for the control of feral hogs.  Discussions continue in the legislature as to whether lawmakers should require additional testing and evaluation of the product before it can be used in Texas for feral hog control.

House Passes Budget – 132 to 16

As reported last week, the House substituted its version of the budget for the proposed Senate version.  House members began lengthy budget deliberations on Thursday.

Over 400 amendments had been logged into the legislative hopper before the House took up its discussions.  The Senate passed its version of the budget without amendment.  But that did not happen in the House where floor amendments were offered and passed or rejected.

The House is proposing to tap the state’s Rainy Day Fund … to the tune of $2.5 bil … to help support portions of the budget.
After 15 hours of sometimes spirited debate that rolled into the early morning hours Friday, the House approved its version of a two-year budget totaling $218.2 bil.  The House and Senate versions of the budget will  now be sent to a House-Senate conference committee to work out differences between the two spending plans.  The conference will then offer a bill that will be sent to the House and Senate for final approval.

Senate Passes Bills to Stall or Stop High-Speed Rail

The Texas Senate Transportation Committee on Wednesday passed 5 bills that would either stall or stop the Texas high-speed rail project.  Two of the bills prohibit the use of eminent domain to secure land for the project.

Other bills would require that the rail line be compatible with other existing rail lines, could use more than one type of technology, and would prohibit the use of state money to support or subsidize the rail line if it were not profitable.

Because of the structure of high-speed rail lines, they are inherently incompatible with exiting trains.  Project engineers say high-speed rail cars are wider than conventional rail cars, and that it would be cost prohibitive to make altercations.
Supporters of the project are wanting to contract with a Japanese company for construction of the rail line.  However, that company’s design is not compatible with any other existing technology…which would guarantee the Japanese firm a virtual monopoly over the Texas venture.

Temporary Restraining Order Lifted

The temporary restraining order (TRO) against the TDA halt the implementation of regulations which would allow the use of warfarin laced bait feral hog control has been removed.  The proposed TDA regulations were more restrictive than the EPA guides.  The bait, under
TDA regulations, can only be used by licensed pesticide holders. The proposed TDA regulations will be posted in the Texas Register, and public comment will be allowed for 30 days.
Meanwhile, at the Capitol, lawmakers continue to consider House and Senate companion bills that would require additional testing and evaluation before the product could be used in the state for feral hog control.

TDA Proposed Rule for Warfarin

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 at 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

School Pesticide Bill Remains in Committee

HB 3590 by Frank that relates to reducing regulations on the application of pesticides by school district employees remains in the House Agriculture and Livestock Committee.  A hearing date has not been announced.

House Ag Committee Convenes
Wednesday, April 5, 2017

Members: Tracy O. King (Chair), Mary E. Gonzalez (Vice-Chair), Charles “Doc” Anderson, Dustin Burrows, John Cyrier, Matt Rinaldi, Lynn Stucky.

Agriculture Commissioner Sid Miller gave a summary of the progress the Texas Department of Agriculture has made since his arrival. 

Rep. Gonzalez asked about fee increases. Miller said the fees helped eradicate departmental debt.  Gonzalez also noted the agency needed to work on regaining trust. 

Rep. Burrows asked what the Commissioner was doing in rural parts of Texas. 

Rep. Gonzalez asked if the agency is addressing how sanctuary cities are affecting the labor supply of agriculture.  Miller said he is open to discussion on the matter and has no hardline approach. 

Rep. King said Miller should have his tools restored to help better run the department. 

HB 3013 By Martinez, Armando.  Relating to incentives to encourage landowners to destroy, remove, or treat citrus trees located in a pest management zone. - Left pending 

Rep. Martinez said H.B. 3013 is designed to protect the Texas citrus industry. He said citrus greening is a major issue he hopes to eradicate. The bill would allow any owner with a citrus tree using the land exemption to have 5 years to remove the diseased trees and replace them. 

Dale Murden of Texas Citrus Mutual United testified for the bill. 

HB 2567 By Bailes, Ernest.  Relating to forest pest control. - Left pending 

Rep. Bailes said the substitute to H.B. 2567 would ensure maximum transparency and adds noxious and invasive plants to the list. 

HB 2817 By Gonzalez, Mary.  Relating to the punishment for the offense of criminal mischief involving the death of a head of cattle or a horse. - Left pending 

The substitute to H.B. 2817 amends the penal code of criminal mischief to ensure killing a head of cattle or horse would be punishable by a 3rd degree felony, up to 10 years in prison, and up to $10,000 in prison.  Exemptions exist for veterinarians. 

Marvin Wells with the Texas Southwest Cattle Raisers Association testified for the bill. He said the punishment to steal a cow/horse should be equivalent to killing the cow/horse. 

Rep. Anderson said it would make sense to include bison in the bill. 

Rep. Gonzalez said the penal code requires intent to kill the animal, so if an accident happens the bill does not apply.  She decided not to add bison to the bill just so it is clear and specific. 

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