               THE   ATTORXEY        GESERXL
                         OF TEXAS


                          August 1, 1989




Mr. Jim Hightower                    Opinion No. ~~-1078
Commissioner
The Department of Agriculture        Re: Authorization to lic-
P. 0. 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 bane
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
13513-6, 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, 5 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)

        .

5 4(b). Non-licensed,  non-exempt persons     who l'engage" in
the business  of structural pest control      are subject to
criminal penalty. Id. 55 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 controll' 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. 13533-6, 5 2(a)(l). &
Attorney General Opinion H-800      (1976). The board is ex-
pressly made "the sole authoritv in this state for licensing
persons encased in the business of structural nest control"
by section 11A of the statute. Of course, the sole licens-
ins authority is not necessarily the sole resulatinq 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. &g Acts 1981, 67th Leg., ch. 693, at
2589; ia. 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 5 311.023 (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 l@economic poisons,*1 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    136-136~.
    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 a
    "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
        of the Texas Pesticide     Control Act concern    the same
        general subject, have the same general purpose, and, to
        some extent, relate to the same classes     of persons  and
        things.   Such laws are to be considered in pari materia,
        i.e., they are to be read and construed       together,  as
        though they were parts of the same law, to determine    the
        intent of the legislature.   See 53 Tex. Jur. 2d, Statutes
        § 186,  at 280.




                                  P. 5621
Mr. Jim Hightower
Mr. David A. Ivie
Page 5 (JM-1078)




           authority and qualified personnel   necessary
           to carry out the plan:

               (cl [giving1   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. 5 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.      5 136w(a).
Cf. National Cattlemen's Ass'n v. United States Environmen-
tal Protection Aoencv   773 F.2d 268 (10th Cir. 1985).    The
act also declared it Anlawful to make restricted-use   pesti-
cides available except in accordance with federal statutory
provisions "and any regulations thereunder."      7 U.S.C.A.
§ 136j(a) (2) (F).3



       3. Regulations of the Environmental Protection    Agency
    regarding  the certification   of pesticide     application
    are found the in Code of Federal Regulations, 40 C.F.R.
    171. 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) [Dlesignates 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 subterr n an t r-mites regulated
             under   s7.40 of thyse tit;e     (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 plans, the plans      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) [Clontains satisfactory assurances that the
          State standards for the certification of applicators
          of pesticides conform to those standards  prescribed
          by the Administrator under 55 171.1 through 171.6.




                                 p. 5623
Mr. Jim Hightower
Mr. David A. Ivie
Page 7 (JM-1078)




           control under this subsection     may use a
           pesticide with an active ingredient    listed
           in 57.40(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 nerson who is certified as a
           noncommercial aonlicator under this section
           mav not make anv avvlication for which a
           license is recuired vursuant   to the Texas
           Structural Pest Control Act, Texas Civil
           Statues, Article 13533-6.4 (Emphasis added.)

     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 l@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
       ;Ep;i;ztor who is certified by TDA is not authorized
                 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    13533-6, 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
'Yechnicians.tl V.T.C.S.    art. 135b-6, § 4.     &    Attorney
General Opinion H-800 (1976). Cf. Attorney General      Opinion
H-504 (1975). That act defines       "certified applicator" was
"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, 5 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    them,
if they meet those standards, to engage in the structural
pest control business should they choose to do so.6
Attorney General Opinion M-1115 (1972), it was said that tig
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 Fitructural 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 (JR-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 orohibited by
           rule of the United States        Environmental
           Protection Aaencv or unless the substance
           used is labeled as a restricted-use vesticide
            r a state-limited-use vesticide.7    (Emphasis
           zdded.)



       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   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    devicesit(y    sections   76.002,
76.003, and 76.004 of the act),            not given   general
regulatory power over the licensees of other agencies.     Cf.
Agric. Code 5 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.    &= Agric.   Code
    5 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,
              exceot as nrovided bv the Texas Struc-
              tural Pest Control    Act, as    amended
              (Article 13533-6, Vernon's  Texas Civil
              Statutes);

                 (4)    seed treatments;

                 (5)    right-of-way pest control;

                 (‘5)   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 Leg., 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
5 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 Leqislature 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 Ciepartment aoes 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
                                        Cateoorv 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(f)

     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 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.g

     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   riot
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 Statues, 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 (JR-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 5 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. 5 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
M,r. 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 Savinss  and Loan Ass'n   432 S.W.2d 702   (Tex.
1968). See State Bd. of Ins. v. Deifebach, 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    (Cl    of  section  7.41    of
the departmental  regulations.    &g     12 Tex. Reg.     4187.
Subsection (c) reads:

               (c) Any licensed or certified avnlicator
           who is resvonsible   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 buildinq 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    to1
              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
              a~icator,    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 of 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 Savinss and Loan Ass'*,




                              p. 5633
    Mr. Jim Hightower
    Mr. David A. Ivie
,   Page 17 (JM-1078)




    v. Vandvcriff, 639 S.W.2d 492 (Tex. App. - Austin 1982, writ
    dism'd w.0.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 *Iaperson 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, 55 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
    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 BQ treatments of certain structures by certified




                                   P. 5634
Mr. Jim Hightower
Mr. David A. Ivie
Page 18 (JM-1078)




applicators using any termiticide.10  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
aeneral standard or condition of use for termiticides by the
promulgation of subsection   (cl * 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. Hishtower, 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 Belle 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 (JR-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
state-limited-use pesticides: (3) regulations of the Deparz:
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-
           tides are valid.




                                   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 BNCe  Youngblood
Assistant Attorney General




                               P. 5637
