Which Texas agency licensed noncommercial applicators using restricted termiticides for structural pest control?

The Structural Pest Control Board controlled nonagricultural termiticide licensing

Plain-English summary

The Texas Department of Agriculture and the Structural Pest Control Board asked the Attorney General to resolve a dispute over which agency regulated people using restricted-use or state-limited-use termiticides outside agricultural settings.

The Attorney General concluded that the Structural Pest Control Board held the licensing, certification, and regulatory authority for structural-pest applicators, including people who did not work for commercial pest-control businesses. The Structural Pest Control Act made the Board the sole licensing authority for people engaged in structural pest control and allowed it to license certified applicators and technicians. The opinion also read the state pesticide plan as assigning commercial and noncommercial structural applicators to the Board.

A Department of Agriculture rule certifying noncommercial termiticide applicators did not exempt those applicators from the Board's licensing requirements. Under the opinion's reading of the statutes, any restricted-use or state-limited-use pesticide application involving industrial, institutional, or structural pest control required a Board license.

The Department retained authority over pesticide registration and dealers. Its rules requiring registrants and licensed dealers to record termiticide distribution and report misuse or adverse impacts were valid because Agriculture Code section 76.004 covered pesticides generally, not only restricted-use or state-limited-use products.

The Department could not directly impose consumer-information and posting duties on applicators licensed by the Board. Agriculture Code section 76.008 exempted people regulated by the Structural Pest Control Act from the Department provisions governing applicator regulation, and the challenged rule targeted only structural-pest licensees.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion said for affected groups in 1989

Structural pest-control applicators

People using restricted-use or state-limited-use pesticides for industrial, institutional, or structural pest control needed authority from the Structural Pest Control Board. A Department of Agriculture noncommercial certification did not replace the Board's license.

Structural Pest Control Board

The Board held licensing and certification authority over commercial and noncommercial structural-pest applicators. Its own statute also required its pesticide-use rules to comply with applicable federal standards and standards of the commissioner of agriculture.

Department of Agriculture

The Department could certify applicators only in the use categories listed in Agriculture Code section 76.102. It could regulate pesticide registration, dealers, distribution records, and misuse reports, but could not directly regulate applicators assigned to the Board.

Pesticide registrants and dealers

The opinion upheld the Department's temporary recordkeeping and reporting rules for termiticides. Those rules applied to registrants and Department-licensed dealers rather than to Board licensees.

Common questions

Did a Department noncommercial applicator certificate authorize structural termiticide work?

No. The opinion concluded that the Department's section 7.11 certification had little or no effect for applications that required a Structural Pest Control Board license.

Did the owner or employee exemption allow restricted termiticides without a Board license?

No. Section 5(b) allowed certain unlicensed work on one's own or an employer's premises, but the exemption did not apply when the substance was a restricted-use or state-limited-use pesticide.

Could the Department require sales and misuse reports for termiticides that were not restricted-use products?

Yes. Agriculture Code section 76.004 authorized rules concerning pesticide records, handling, distribution, disposal, and labeling without limiting that authority to restricted-use or state-limited-use pesticides.

Why was the Department's consumer-notice rule invalid?

The rule directly targeted licensed or certified applicators treating occupied structures. The opinion read Agriculture Code section 76.008 as exempting people regulated by the Structural Pest Control Act from the Department's applicator-regulation provisions.

Did the 1987 Helle decision support the Department's authority here?

No. Helle concerned applicators whom the Department could certify under sections 76.102 and 76.104. The opinion said Structural Pest Control Board licensees were expressly outside that general regulatory power.

Background and legal framework

The Structural Pest Control Act, article 135b-6, V.T.C.S., established licensing standards for structural pest-control businesses, certified applicators, and technicians. Section 11A made the Board the sole licensing authority for people engaged in the structural pest-control business, while section 5(b) addressed limited unlicensed work on an owner's or employer's premises.

Chapter 76 of the Agriculture Code recodified the Texas Pesticide Control Act. The opinion traced that law to federal requirements under the Federal Insecticide, Fungicide and Rodenticide Act. Federal law required a state certification plan to name a lead agency and identify every other agency performing parts of the program.

Agriculture Code section 76.101 made the Department the lead agency for coordinating pesticide-use regulation. The state plan nevertheless assigned commercial and noncommercial applicators in the industrial, institutional, structural, and health-related category to the Structural Pest Control Board. Section 76.102 listed the applicator categories the Department could certify and omitted that structural category.

The opinion treated the two Texas acts as laws on the same subject that had to be read together. That reading preserved the Department's broad pesticide-registration and dealer authority while respecting the Board's separate licensing jurisdiction.

Key citations

• Agriculture Code ch. 76, especially §§ 76.004, 76.008, 76.041, 76.071, 76.101, 76.102, 76.104, and 76.114
• V.T.C.S. art. 135b-6, especially §§ 2, 4, 5, 11, and 11A
• 7 U.S.C.A. §§ 136-136y
• 40 C.F.R. part 171
• Gerst v. Oak Cliff Savings and Loan Ass'n, 432 S.W.2d 702 (Tex. 1968)
• State Bd. of Ins. v. Deffebach, 631 S.W.2d 794 (Tex. App. - Austin 1982, writ ref'd n.r.e.)
• Helle v. Hightower, 735 S.W.2d 650 (Tex. App. - Austin 1987, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1078
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1078.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected where verified against the scan and the embedded text; minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

August 1, 1989

JIM MATTOX
ATTORNEY GENERAL

Mr. Jim Hightower Opinion No. JM-1078
Commissioner
The Department of Agriculture Re: Authorization to lic-
P. O. Box 12847 ense non-commercial appli-
Austin, Texas 78711 cators who wish to use
certain termiticides in
Mr. David A. Ivie non-agricultural pest con-
Executive Director trol activities, and re-
Structural Pest Control lated matters (RQ-1189)
Board

1300 East Anderson Lane
Austin, Texas 78752

Gentlemen:

Each of you has requested an opinion of this office to
resolve a jurisdictional dispute between the Department of
Agriculture (the department) and the Structural Pest Control
Board (the board). The department has promulgated and
published rules pursuant to the Texas Pesticide Control Act
(chapter 76 of the Texas Agriculture Code) which the board
asserts are (1) beyond the statutory authority of the
department and (2) invade an area of regulation assigned to
the board by the Structural Pest Control Act (article
135b-6, V.T.C.S.).

The Structural Pest Control Board raises five ques-
tions, but one has been mooted by subsequent rules revision
by the department. The four to be addressed are:

1. Does the Department [of Agriculture]
   have the authority under Chapter 76 of
   the Agriculture Code to certify pesticide
   applicators in the category of termite
   control, as the Department has attempted to
   do under section 7.11 of the newly-adopted
   rules, published in final form in 12 Tex.
   Reg. 2378 (1987)?

2. Are persons who use restricted-use or

state-limited-use pesticides on their own
property or on the property of their employer

p. 5618

Mr. Jim Hightower
Mr. David A. Ivie
Page 2 (JM-1078)

exempt from the licensing requirements of the
Structural Pest Control Act and regulations,
as a result of the adoption of Section 7.11?

3. Does the Department have the authority
   to require record-keeping and sales reports
   for pesticides not classified for restricted-
   use or state-limited-use, as the Department
   has attempted to do under Section 7.41 (a)
   and (b) of the newly-adopted rules, published
   in final form in 12 Tex. Reg. 2379 (1987)?

4. Does the Department have the authority
   under Chapter 76 of the Agriculture Code to
   establish and enforce requirements relating
   to the application of pesticides upon per-
   sons who are not licensed or certified by the

Department, as proposed under Section
7.41(c), as republished in 12 Tex. Reg. 2369
(1987)?

The Department of Agriculture has, for its part, asked:

Which state agency has authority to provide
for certification of applicators (1) who
do not work for commercial pest control
businesses, (2) who wish to use restricted-
use or state-limited-use pesticides and
(3) who apply those pesticides in non-agri-
cultural settings?

The Structural Pest Control Act was enacted in 1971 by
the Sixty-second Legislature and has been amended by each
legislature convening since that time except the Sixty-sev-
enth Legislature. The board is required to

develop standards and criteria for licensing
individuals engaged in the business of
structural pest control. The board may re-
quire individuals to pass an examination
demonstrating their competence in the field
in order to qualify for a Certified Appli-
cator’s License.

V.T.C.S. art. 135b-6, § 4(a). It is also charged with
developing standards and criteria for issuing Structural
Pest Control Business Licenses to persons engaged in the
business of structural pest control, but the statute stipu-
lates that each structural pest control business licensee
shall at all times employ a certified applicator. Id.

p. 5619

Mr. Jim Hightower
Mr. David A. Ivie
Page 3 (JM-1078)

§ 4(b). Non-licensed, non-exempt persons who "engage" in
the business of structural pest control are subject to
criminal penalty. Id. §§ 5(a), 10A.

Terms used in the statute are defined by section 2. A
person (including a corporation) is deemed to be "engaged in
the business of structural pest control" if the person
engages in or performs specified acts "for compensation," or
offers or advertises to do so. Among those specified acts
are the identification (or the making of inspections to
identify) infestations of: (1) insects and related pests,
wood-infesting organisms, rodents, weeds, nuisance birds
"and any other obnoxious or undesirable animals" which might
infest "households, railroad cars, ships, docks, trucks,
airplanes, or other structures, or the contents thereof"; or
(2) pests or diseases of "trees, shrubs, or other plantings"
that are located "in a park or adjacent to a residence,
business establishment, industrial plant, institutional
building, or street." V.T.C.S. art. 135b-6, § 2(a)(1). See
Attorney General Opinion H-800 (1976). The board is ex-
pressly made "the sole authority in this state for licensing
persons engaged in the business of structural pest control"
by section 11A of the statute. Of course, the sole licens-
ing authority is not necessarily the sole regulating author-
ity. Cf. Agric. Code § 76.003.

The rules (to which the board objects) were promulgated
by the department pursuant to a nonsubstantive
recodification of the Texas Pesticide Control Act, as
amended in 1981. That statute was formerly codified as
article 135b-5a, V.T.C.S., but now is found in chapter 76 of
the Agriculture Code. See Acts 1981, 67th Leg., ch. 693, at
2589; id. ch. 388, at 1012, 1488; id. ch. 127, at 318; Acts
1975, 64th Leg., ch. 383, at 995.1

Chapter 76 of the Agriculture Code is divided into nine
subchapters, some of which deal with the labeling and
registration of pesticides and the licensing of dealers who
distribute “restricted-use" or "state-limited-use" pesti-
cides. Others deal with storage and disposal of pesticides,

1. Inasmuch as the 1981 provisions now found in
   chapter 76 of the Agriculture Code were not intended to
   work changes in the law, we can look to former article
   135b-5a for clarification. See Gov’t Code § 311.023 (Code
   Construction Act, formerly article 5429b-2, V.T.C.S.; see
   Acts 1985, 69th Leg., ch. 479, at 1652, 1719).

p. 5620

Mr. Jim Hightower
Mr. David A. Ivie
Page 4 (JM-1078)

with enforcement powers of the department and other regula-
tory agencies, with remedies available, and with penalties.
The two subchapters with which we are most concerned are

subchapters A, setting out general provisions, and

B,

concerning regulation of the use and application of pesti-

cides.2

An appreciation of the historical background against
which the legislature acted is helpful. At the time the
Structural Pest Control Act was enacted in 1971, there was
in effect a federal law regulating the registration, dis-
tribution, and labeling of "economic poisons," including

pesticides. See 7 U.S.C.A. § 135-135K (now superseded).

In

1972, that federal legislation was extensively revised. The
result was the Federal Insecticide, Fungicide and
Rodenticide Act now found at 7 U.S.C.A., sections 136-136y.
Added was a scheme for classifying pesticides as either
"restricted use" or "general use." Those in the general use
category were not regulated so stringently. Persons wishing
to apply "restricted use" pesticides, however, were required
to undergo federal testing and certification in states which
had not, by the fall of 1976, established adequate testing
and certification programs of their own. See Attorney
General Opinion H-800 (1976). That federal pressure was the
impetus for the 1975 enactment of the Texas Pesticide

Control Act now found in the Agriculture Code.

To avoid federal regulation of applicators, the gover-

nor of a state was required by the federal law, to submit
“state plan"

(A) [designating] a State agency as the
agency responsible for administering the
plan throughout the State;

(B) [containing] satisfactory assurances
that such agency has or will have the legal

2. The Structural Pest Control Act and the provisions
   same

of the Texas Pesticide Control Act concern the
general subject, have the same general purpose, and,
some extent, relate to the same classes of persons

j.e., they are to be read and construed together,
though they were parts of the same law, to determine

§ 186, at 280.

p- 5621

a

and
things. Such laws are to be considered in pari materia,

the
intent of the legislature. See 53 Tex. Jur. 2d, Statutes

Mr. Jim Hightower
Mr. David A. Ivie
Page 5 (JM-1078)

authority and qualified personnel necessary
to carry out the plan;

(C) [giving] satisfactory assurances
that the State will devote adequate funds to
the administration of the plan;

(D) [providing] that the State agency
will make such reports to the Administrator
in such form and [contain] such information
as the Administrator may from time to time
require; and

(E) [containing] satisfactory assurances
that State standards for the certification
of applicators of pesticides conform with
those standards prescribed by the Adminis-
trator. ...

7 U.S.C.A. § 136b(a) (2).

The federal act authorized the administrator of the
federal Environmental Protection Agency to prescribe regula-
tions to carry out the provisions of the law, including
those concerning a. state plan. See 7 U.S.C.A. § 136w(a).
cf. National Cattlemen’s Ass’n v. United States Environmen-
tal Protection Agency, 773 F.2d 268 (10th Cir. 1985). The
act also declared it unlawful to make restricted-use pesti-
cides available except in accordance with federal statutory
provisions "and any regulations thereunder." 7 U.S.C.A.
§ 1363 (a) (2) (F) .3

3. Regulations of the Environmental Protection Agency
   regarding the certification of pesticide application
   are found in the Code of Federal Regulations, 40 C.F.R.
4. Section 171.7 of the regulations amplified the
   requisites of an acceptable state plan. It specified, and
   continues to specify, that the administrator will approve

a plan if, among other things, it

(a) [D]esignates a State agency as the agency
responsible for administering the plan throughout
the State. Since several other agencies or organi-
zations may also be involved in administering
portions of the State plan, all of these shall be
identified in the State plan, particularly any other

(Footnote Continued)

p. 5622

Mr. Jim Hightower
Mr. David A. Ivie
Page 6 (JM-1078)

Section 171.3 of the federal regulations establishes
ten categories of applicators, other than private appli-
cators, and says state systems "shall adopt" them as needed.
Section 171.4 sets out the specific standards of competency
appropriate to each category of commercial applicators. The
categories include agricultural pest control; forest pest
control; aquatic pest control; right of way pest control;
industrial, institutional, structural and health related
pest control; and public health pest control.

With that history in mind, we examine the disputed
Texas Department of Agriculture rules. The department rule
to which the first question of the board relates amends
subsection (a) of section 7.11, part I, title 4, of the
Texas Administrative Code. As adopted by the department, it
reads:

§ 7.11. Applicator Certification.

(a) The Texas Department of Agriculture
will certify only noncommercial applicators
for use of state-limited-use pesticides for
treatment of subterranean termites regulated
under §7.40 of this title (relating to
State-Limited-Use Pesticides for Control of
Subterranean Termites). A person licensed
as a noncommercial applicator for termite

(Footnote Continued)

agencies or organizations responsible for certifying
applicators and suspending or revoking certifica-
tion. In the extent that more than one governmental
agency will be responsible for performing certain
functions under the State plan, the plan shall
identify which functions are to be performed by
which agency and indicate how the program will be
coordinated by the lead agency to ensure consistency
of programs within the State. The lead agency will
serve as the central contact point for the Environ-
mental Protection Agency in carrying out the certi-
fication program[;]

and
(e) [C]ontains satisfactory assurances that the
State standards for the certification of applicators

of pesticides conform to those standards prescribed
by the Administrator under §§ 171.1 through 171.6.

p. 5623

Mr.
Mr.

Jim Hightower
David A. Ivie

Page 7 (JM-1078)

control under this subsection may use a
pesticide with an active ingredient listed
in §7.40(a) of this title (relating to
State-Limited-Use Pesticides for Control of
Subterranean Termites) on property owned or
operated by that applicator or by another
person for whom that applicator is employed,

provided that a person who is certified as a
noncommercial applicator under this section

may not make any application for which a
license is required pursuant to the Texas

Structural Pest Control Act Texas Civil
Statues, Article 135b-6.4 (Emphasis added.)

Se Se SS

We are of the opinion that it is the Structural Pest

Control Board and not the Texas Department of Agriculture

4. Subterranean termites are social insects that
   live in nests or colonies in the soil. In nature, they
   scavenge wood, breaking down the large amounts of dead
   trees and other wood which accumulate in forests. Problems
   begin when termites invade human structures. See Texas
   Agricultural Extension Service "House.and Landscape Pests"
   Bulletin L-1781, Hamman and Owens, Subterranean Termites
   (1982). In its official explanation for the adoption of
   this rule, the department stated:

Section 7.11 is changed to allow certain non-
commercial applicators to qualify for purchase
and use of state-limited-use termiticides. Such
applicators will include maintenance personnel,
employees of local governments, and other non-
commercial applicators. One change from the
proposed text is made by adding the phrase ‘for
termite control’ to the second sentence to make it
clear that those noncommercial applicators who are
not certified for termite control may not purchase
state-limited-use termiticides. A second change is
made at the request of the executive director of the
Structural Pest Control Board (SPCB) to clarify the
proviso in the second sentence. That clause is
intended to make it clear that a noncommercial
applicator who is certified by TDA is not authorized
to make any application for which a license is
required from the SPCB.

12 Tex. Reg. 2376.

p- 5624

Mr. Jim Hightower
Mr. David A. Ivie
Page 8 (JM-1078)

that has the power to license, certify and regulate applica-
tors of termiticides for the eradication of subterranean
termites in non-agricultural settings, i.e., as permitted by
the Structural Pest Control Act, article 135b-6, section
2(a)(1). The board is authorized by its act not only to
license persons "engaged in the business of structural pest
control"; it may also license "certified applicators" and
"technicians." V.T.C.S. art. 135b-6, § 4. See Attorney
General Opinion H-800 (1976). Cf. Attorney General Opinion
H-504 (1975). That act defines "certified applicator" as
"an individual who has been licensed and determined by the
board to be competent to use or supervise the use of any
restricted-use and state-limited-use pesticide covered by
his currently valid certified applicator license." V.T.C.S.
art. 135b-6, § 2(b)(4).5

Section 11A of article 135b-6 makes the board the sole
authority in Texas for licensing persons engaged in the
business of structural pest control, i.e., for establishing
who is entitled to engage in that business. The act does
not contemplate a different licensing standard for those who
wish to be licensed to apply dangerous termiticides for
structural pest control but who do not intend at present,
for whatever reason, to engage for compensation in acts
prohibited to non-licensees. It holds non-commercial. ...
structural pest control licensees to the standards set for
commercial licensees, and, for that reason, entitles then,
if they meet those standards, to engage in the structural
pest control business should they choose to do so.6 In
Attorney General Opinion M-1115 (1972), it was said that the
legislature, by excluding certain persons from the

5. Although section 5(a) of the Structural Pest
   Control Act deems anyone performing certain acts "for
   compensation" to be “engaged in the business of structural
   pest control" in violation of the act unless the person
   possesses a valid structural pest control business license
   issued by the board, it is not necessary that a person
   issued such a license be in business or perform those acts
   only for compensation. A "Structural Pest Control Business
   License" means "that license issued to a person entitling
   that person and his employees to engage in the business of
   structural pest control under the direct supervision of a
   certified applicator." (Emphasis added.) V.T.C.S. art.
   135b-6, § 2(a)(7).-

6. Ibid. note 5.

p. 5625

Mr. Jim Hightower
Mr. David A. Ivie
Page 9 (JM-1078)

provisions of the Structural Pest Control Act, by implica-
tion included all others.

Section 5(b) of the Structural Pest Control Act speci-
fies the situations in which persons not licensed by the
board may use insecticides, rodenticides, pesticides and
fumigants for structural pest control without violating the
act:

(b) An individual without a license may,
on his own premises or on premises in which
he owns a partnership or joint venture
interest, or on the premises of an employer
by whom he was hired primarily to perform
other services, use insecticides, pesticides,
rodenticides, fumigants, or allied chemicals
or substances or mechanical devices designed
to prevent, control, or eliminate pest

infestations unless that use is prohibited by
rule of the United States Environmental

Protection Agency or unless the substance

used is labeled as a restricted-use pesticide
or a state-limited-use pesticide. (Emphasis
added.)

7. Section 11 of the act states that the act does not
   apply to the following persons, nor are they to be deemed
   to be engaging in the business of structural pest control:

(1) an officer or employee of a governmental or
educational agency who performs pest control ser-
vices as part of his duties of employment;

(2) a person who performs pest control work upon
property which he owns, leases, or rents as his
dwelling;

(3) a nurseryman, holding a certificate from the
commissioner of agriculture pursuant to Articles 126
and 126a, Revised Civil Statutes of Texas, 1925, as
amended, when doing pest control work on growing
plants, trees, shrubs, grass, or other horticultural
plants; and

(4) a person or his employee who is engaged in

the business of agriculture or aerial application or
(Footnote Continued)

p. 5626

Mr. Jim Hightower
Mr. David A. Ivie
Page 10 (JM-1078)

V.T.C.S. art. 135b-6, § 5(b).

The board has the authority to provide for the certi-~
fication of termiticide applicators who do not work for
commercial pest control businesses but who wish to apply
restricted-use or state-limited-use pesticides in - non-
agricultural settings. Our conclusion is supported by the
Texas Pesticide Control Act itself and by the "state plan"
submitted to the federal Environmental Protection Agency.

Although the Department of Agriculture is given power
by the Texas Pesticide Control Act to establish standards
regarding the identification, conditions of use, record-
keeping, handling, transportation, storage, display, dis-
tribution, disposal and labeling of pesticides, pesticide
containers, and pesticide devices (see sections 76.002,
76.003, and 76.004 of the act), it is not given general
regulatory power over the licensees of other agencies. Cf.
Agric. Code § 76.104.

Section 76.102 of the Agriculture Code provides
(a) The department shall certify pesti-

cide applicators involved in the following
license use categories:

(Footnote Continued)
custom application of pesticides to agricultural
lands.

V.T.C.S. art. 135b-6, § 11. But section 11 merely supple-
ments section 5(b). It does not authorize anyone to use
restricted-use or state-limited-use pesticides in any
situation. Cf. Attorney General Opinion MW-525 (1982)
(inspections). It merely exempts certain persons, who
would otherwise be considered engaged in structural pest
control, from the need to possess a license when, for
themselves or for someone else, they perform those general
acts defined by the statute as pest control services.
Federal and state restrictions on the use of particular
pesticides remain applicable (but see section 76.203(a) (2)
of the Agriculture Code), and if people in those exempt
categories wish to use those pesticides in connection with
structural pest control, they must obtain a license from
the board notwithstanding that their activities would
otherwise be free from board regulation. See Agric. Code
§ 76.071(b). See Attorney General Opinion M-1115 (1972).

p. 5627

Mr. Jim Hightower
Mr. David A. Ivie
Page 11 (JM-1078)

(1) agricultural pest control, in-
cluding animal pest control;

(2) forest pest control;

(3) ornamental and turf pest control,
except as provided by the Texas Struc-
tural Pest Control Act, as amended
(Article 135b-6, Vernon’s Texas Civil
Statutes) ;

(4) seed treatments;

(5) right-of-way pest control;
(6) regulatory pest control;
(7) aquatic pest control; and
(8) demonstration pest control.

(b) The Texas Department of Health shall
certify pesticide applicators involved in
the license use category of health-related
pest control. (Emphasis added.)

Not mentioned by section 76.102 or any other section of
the Agriculture Code are applicators (except those for
health-related pest control) involved in the “industrial,
institutional, structural and health related pest control"
category of the Federal Insecticide, Fungicide and
Rodenticide Act -- the only federal category omitted from
section 76.102. The Texas Pesticide Control Act does not
expressly authorize the department or any other agency to
certify such applicators, and its failure to do so implies
that agencies which derive their applicator certification
powers from its provisions do not possess that authority.8

8. Previously, the Texas Animal Health Commission was
   the agency authorized by the Texas Pesticide Control Act
   to certify pesticide applicators involved in animal pest
   control, and the Texas Water Quality Board certified
   pesticide applicators involved in aquatic pest control.
   The Texas Pesticide Control Act was amended in 1981 to
   authorize the department to certify them instead. See
   Acts 1981, 67th lLeg., ch. 693, at 2589. The clear

(Footnote Continued)

p-. 5628

Mr. Jim Hightower
Mr. David A. Ivie
Page 12 (JM-1078)

That conclusion is bolstered by the current "state
plan" submitted to the federal government. See Agric. Code
§ 76.101. The department is made the "lead agency" by
section 76.101 of the Agriculture Code in the regulation of
pesticide use and application and it is responsible for
coordinating activities of state agencies. In that capaci-
ty, following the 1981 amendments to the Texas Pesticide
Control Act, the department submitted to the administrator
of the federal Environmental Protection Agency a plan to
which was attached a letter from the department’s general
counsel detailing the legal authority of the cooperating
agencies to enforce the state plan.

On page two of the plan, it is stated:

The Texas Structural Pest Control Board
will certify commercial and noncommercial
applicators involved in industrial, institu-
tional, structural, and health-related pest
control.

Each agency will be responsible for develop-
ing and enforcing its own certification
program.

Other provisions of the state plan are consistent. On
page three, the plan states:

Applicators of restricted-use pesticides,
used to control or eradicate structural
pest, have been placed under the jurisdic-
tion of the Structural Pest Control Board by
the 64th Texas Legislature which amended the
Structural Pest Control Act to include re-
gulation of applicators of restricted-use
pesticides. The amended Act also provides a

(Footnote Continued)

implication of this legislative selectivity is that
the department does not possess authority to certify
applicators involved in “industrial, institutional,
structural and health related pest control," one of the
use categories established pursuant to the Federal
Insecticide, Fungicide and Rodenticide Act that was the
genesis of the Texas Pesticide Control Act. Otherwise,

the legislature would have so specified.

p. 5629

Mr. Jim Hightower
Mr. David A. Ivie
Page 13 (JM-1078)

means of certifying such applicator’s com-
petency to use said pesticides.

On page five, it is said:

Section 5(a) of the Structural Pest Control
Act and Section 76.105 of the Texas Pesti-
cide Control Act make it unlawful for
persons other than certified applicators or
person under the direct supervision of a
certified applicator to use restricted-use
pesticides.

And on pages nine and ten this is found:

The Texas Structural Pest Control Board
(SPCB) will certify commercial and non-
commercial applicators involved in indus-
trial, institutional, structural, and
health-related pest control.

SPCB Regulation
Category No.

1. Pest Control. 7 (a)
2. Termite Control 7 (b)
3. Lawn and Ornamental 7(c)
4. Fumigation 7(d)
5. Weed 7(e)
6. Wood Preservation 7(€)

The new regulation adopted by the department as section
7.11 provides that a person certified as a noncommercial
applicator to use state-limited-use pesticides under the
section “may not make any application for which a license is
required pursuant to the Texas Structural Pest Control Act."
Under the Structural Pest Control Act as we construe it, any
application of restricted-use or state-limited-use pesti-
cides involving industrial, institutional and structural
pest control requires a license from the board. V.T.C.S.
art. 135b-6, § 5(b). As a consequence, the certification by
the department of a person under section 7.11 would have
little effect, if any. In our opinion, the department has
authority to make application certifications only with

p. 5630

Mr. Jim Hightower
Mr. David A. Ivie
Page 14 (JM-1078)

respect to the use categories specified in section 76.102 of
the Agriculture Code.9

The foregoing discussion answers the more general
question of the department and the first and second specific
questions of the board. Persons are not exempted by section
7.11 of the department’s regulations from the licensing
requirements of the board with respect to the use of
restricted-use or state-limited--use pesticides on their own
property or on the property of their employer.

The final two questions submitted by the board
deal with record-keeping for pesticides which are not
restricted-use or state-limited-use, and with departmental
regulation of board licensees.

The department revised sections 7.41(a) and 7.41(b) to
read:

(a) From November 1, 1987 - October 31,
1989, any registrant of a pesticide which is
registered for use on subterranean termites
in Texas and any dealer licensed pursuant to
[section] 7.8 of this title (relating to
Pesticide Dealers) shall record information
on the distribution of any pesticide regis-
tered for use on subterranean termites. on
forms prepared by the Texas Department of
Agriculture and submit copies of those forms
quarterly to TDA. The information shall
include the quantities of the pesticide dis-
tributed and the name and county of resi-
dence of the person to whom the pesticide
was distributed. Such records will be
treated as confidential business records if
so marked and to the extent authorized by
Texas Civil Statutes, Article 6252-17(a).

(b) From November 1, 1987 - October 31,
1989, any registrant of a pesticide which is
registered for use on subterranean termites
in Texas and any dealer licensed pursuant to

9. The licensing of certified applicators by the
   department is made contingent, by section 76.103 of the
   code, on the availability of federal funds. That is not
   the case with certifications by the board.

p. 5631

Mr. Jim Hightower
Mr. David A. Ivie
Page 15 (JM-1078)

[section] 7.8 of this title (relating to
Pesticide Dealers) shall report to TDA in
writing within 15 days of receiving any
report of a misuse or potential misuse of
any pesticide in Texas and any report of an
adverse human or environmental impact
relating to a use of the pesticide in Texas
if the pesticide was distributed by the
registrant or dealer for use in the treat-
ment of subterranean termites. Reports
shall be made on forms provided by the Texas
Department of Agriculture.

These regulations do not attempt to regulate board
licensees; they impose duties only upon registrants of
pesticides and pesticide dealers. All pesticides dis-
tributed in Texas, including those not defined as
restricted-use or state-limited-use, must be registered with
the department. Agric. Code § 76.041. And a person may not
distribute restricted-use or state-limited-use pesticides
without a dealer’s license issued by the department. Id.
§ 76.071.

Section 76.004 of the Agriculture Code reads:

After notice and hearing, the department
may adopt rules for carrying out the pro-
visions of this chapter, including rules
providing for:

(1) the collection, examination, and
reporting of records, devices, and
samples of pesticides;

(2) the safe handling, transportation,
storage, display, distribution, or dis-
posal of pesticides and pesticide con-
tainers; and

(3) labeling requirements for pesti-~-
cides and devices required to be regis-
tered under this chapter.

The authority conferred by section 76.004 is not con-
fined to restricted-use or state-limited-use pesticides.
Cf. id. § 76.003(d). It is the duty of the department to
adopt lists of state-limited-use pesticides, and a pesticide
may be included on such a list if the department determines
that it requires additional restrictions to prevent unrea-
sonable risk to man or the environment. The rules contained

p. 5632

Mr. Jim Hightower
Mr. David A. Ivie
Page 16 (JM-1078)

in departmental regulations section 7.41(a) and (b) are
designed to aid in the discharge of that duty and we do not
believe they exceed the authority of the department. Gerst
v. Oak Cliff Savings and Loan Ass’n, 432 S.W.2d 702 (Tex.
1968). See State Bd. of Ins. v. Deffebach, 631 S.W.2d 794
(Tex. App. - Austin 1982, writ ref’d n.r.e.).

The final board question to be addressed concerns
recently adopted subsection (c) of section 7.41 of
the departmental regulations. See 12 Tex. Reg. 4137.
Subsection (c) reads:

(c) Any licensed _or certified applicator
who is responsible for the treatment for
subterranean termites must take the follow-
ing actions in conjunction with the treat-
ment of an existing house, apartment, hotel,
restaurant, office, or other building in
which people reside or work.

(1) Prior to treatment or the execu-
tion of a contract for treatment, the
applicator must assure that the owner or
manager of the building has received a
. . « consumer information sheet [which
has been prepared by a registrant and
approved by the Texas Department of
Agriculture to a registrant of the pesti-
cide for distribution pursuant to]
subsection (d) of this section.

(2) Following the application, the
applicator must post a durable sign
adjacent to the hot water heater or
electric meter or beneath the kitchen
sink giving the name and address of the
applicator, the date of the treatment,
the name of the active ingredient used,
and a statement that the notice should
not be removed. (Emphasis added.)

Unlike the new provisions cf sections 7.41 (a) and (b),
which regulate only registrants and dealers who are under
the jurisdiction of the department, subsection (c) clearly
attempts to directly regulate licensees of the Structural
Pest Control Board by legislative rule. The provisions of
subsection (c) are beyond the authority of the department to
promulgate or enforce as direct regulatory restraints upon

board licensees. Cf. First Federal Savings and Loan Ass'n

p-. 5633

Mr. Jim Hightower
Mr. David A. Ivie
Page 17 (JM-1078)

v. Vandygriff, 639 S.W.2d 492 (Tex. App. - Austin 1982, writ
dism’d w.o.j.).

The provisions of the Texas Pesticide Control Act which
authorize the department to regulate pesticide applicators
are found in subchapter E of chapter 76 of the Agriculture
Code. Section 76.004 of the Agriculture Code empowers the
department to "adopt rules for carrying out the provisions
of this chapter." Section 76.104 allows the department to
regulate the applicators it certifies, and section 76.114
deals with records the department may require of applicators
it licenses, but section 76.008 expressly exempts from those
and other -related sections of the code "a person who is
regulated by the Texas Structural Pest Control Act."

Subsection (c) of section 7.41, as revised, is aimed
solely at licensed or certified applicators treating "an
existing house, apartment, hotel, restaurant, office, or
other building in which people reside or work," i.e., aimed
solely at licensees of the Structural Pest Control Board,
which has its own regulations regarding notices, warnings
and information to be supplied the recipient of its
licensees’ services. See V.T.C.S. art. 135b-6, §§ 4(d), 7B.
As a consequence, subsection (c) of section 7.41 of the
department’s regulations is invalid and of no effect as a
direct regulation of Structural Pest Control Board
licensees.

However, the Structural Pest Control Act itself speci-
fies in section 4(d) that the rules and regulations of the
Structural Pest Control Board relating to the use of econom-
ic poisons "shall comply with applicable standards of the
federal government and_ the state commissioner of agriculture
governing the use of such substances." (Emphasis added.)
If subsection (c) could be regarded as intended to set
standards that apply generally to the use of certain
termiticides by whomever they are used (which the Structural
Pest Control Board is required by its own act to recognize),
the provisions of subsection (c) might be considered to have
vitality. We do not think, however, that the subsection can
be so construed.

Subsection (c) does not operate only if restricted-use

or state-limited-use pesticides are to be applied. It
embraces all treatments of certain structures by certified

p. 5634

Mr. Jim Hightower
Mr. David A. Ivie
Page 18 (JM-1078)

applicators using any termiticide.1° It embraces pesticides
used to treat subterranean termites that unlicensed persons
may use and that do not require supervision by a certified
applicator. Yet, only licensed or certified applicators are
affected by its terms.

The danger sought to be reduced by the regulation is
greater when persons not under the supervision of a_ board
certified applicator undertake treatment of an existing
house, apartment, hotel, restaurant, office or other build-
ing in which people reside or work. It is greater because
licensees must comply with board restrictions not applicable
to those who need no license. The board imposes its own
requirements regarding the distribution of consumer informa-
tion -- requirements it is without authority to impose on
persons who need not be licensed. See Structural Pest
Control Board Regulation 599.4.

The department has obviously not sought to establish a
general standard or condition of use for termiticides by the
promulgation of subsection (c). Rather, it has sought to
directly regulate the licensees of the Structural Pest
Control Board in a way it cannot do.

Our attention has been directed by the department to
the recent case of Helle v. Hightower, 735 S.W.2d 650 (Tex.
App. - Austin 1987, writ denied). That case was one in
which Helle challenged rules of the department promulgated
pursuant to section 76.104 of the Agriculture Code, and pur-
suant to its authority, under section 76.102, to certify
applicators involving agricultural pest control. As pointed
out above, persons regulated by the Structural Pest Control
Board are exempted from section 76.104 and, thus, from the
department’s general regulatory power. The Helle case does
not affect the questions before us.

Recapitulating our conclusions, we advise that (1) the
Structural Pest Control Board, not the Department of Agri-
culture, has authority to license, certify and regulate

10. Some provisions of the Texas Pesticide Control Act
    are expressly made inapplicable to persons regulated by
    the Texas Structural Pest Control Act, but section 76.003
    is not among them. That section authorizes the department
    to regulate the time and conditions of use of a_ state-
    limited-use pesticide. However, the department has not

limited its rule to such termiticides.

p. 5635

Mr. Jim Hightower
Mr. David A. Ivie
Page 19 (JM-1078)

applicators of termiticides who do not work for commercial
pest control businesses but who wish to apply restricted-use
or state-limited-use pesticides in non-agricultural set-
tings; (2) the department’s challenged certification regula-
tion is ineffective to regulate those whom the Structural
Pest Control Board regulates and it does not exempt anyone
from the licensing requirements of the Structural Pest
Control Board with respect to restricted-use or
state-limited-use pesticides; (3) regulations of the Depart-
ment of Agriculture requiring registrants of pesticides and
licensed pesticide dealers to maintain records concerning
the distribution and use of termiticides are valid; and
(4) regulations of the Department of Agriculture which
attempt to directly regulate the licensees of the Structural
Pest Control Board are ineffective.

SUMMARY

The Structural Pest Control Board, not
the Department of Agriculture, has authority
to license, certify and regulate applicators
of termiticides who do not work for commer-
cial pest control businesses but who wish to
apply restricted-use or state-limited-use
pesticides in non-agricultural settings.
Challenged rules of the Department of Agri-
culture are ineffective to directly regulate
persons whom the Structural Pest Control
Board is authorized to regulate, but those
requiring registrants of pesticides and
pesticide dealers to supply information
about the distribution and use of termiti-
cides are valid.

Very truly yours,
JIM MATTOX

Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

p. 5636

Mr. Jim Hightower
Mr. David A. Ivie
Page 20 (JM-1078)

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General

p. 5637