1. (a) Any and all pesticides and devices using sodium cyanide as the active ingredient, including the M-44 device for livestock predation control, shall be classified as state-limited-use pesticides, pursuant to the Act, §76.003. However, this section shall not apply to the use of M-44 sodium cyanide by employees of the Texas Animal Damage Control Service when performing official duties and using M-44 cyanide capsules under the federal government registration.

2. (b) In addition to the definitions set out in the Act, §76.001 and §7.1 of this title (relating to Definitions), the following words and terms, when used in this section shall have the following meanings unless the context clearly indicates otherwise:

   1. (1) Authorized dealer--A dealer licensed under the Act, §76.071, and specifically approved by the department to distribute M-44 sodium cyanide.
   2. (2) M-44 applicator--A person who has obtained authorization from the department for the use of M-44 sodium cyanide.
   3. (3) M-44 sodium cyanide--Includes the active ingredient sodium cyanide, sodium cyanide capsules, and any device loaded with sodium cyanide for use in livestock predation control.

3. (c) Dealers distributing M-44 sodium cyanide must meet the following requirements:

   1. (1) All dealers who wish to distribute M-44 sodium cyanide must obtain written approval by the department. In order to obtain approval to handle M-44 sodium cyanide from the department, a person must obtain from the department a pesticide dealer's license to handle restricted-use and state-limited-use pesticides and regulated herbicides and complete special agreement forms to become an authorized dealer for the purpose of distributing M-44 sodium cyanide. An authorized dealer must meet the dealer requirements of the Act, §§76.071-76.077, the requirements of §7.20 of this title (relating to Application), and any additional federal requirements of the use restriction bulletin (label) for M-44 sodium cyanide under EPA Registration Number 33858-2.
   2. (2) An authorized dealer may distribute M-44 sodium cyanide only to M-44 applicators or registrants of M-44 sodium cyanide. M-44 sodium cyanide may not be distributed or transferred by an authorized dealer to any person for the purpose of resale or transfer with the exception of registrants.
   3. (3) The department will keep a list of authorized dealers and make it available to all certified applicators. Only dealers whose names appear on the list are authorized to receive or distribute M-44 sodium cyanide.
   4. (4) Each authorized dealer must be or employ a person certified under this section.

   5. (5) Each authorized dealer must maintain for a period of two years complete records of all transactions involving M-44 sodium cyanide, including:

      1. (A) the amount of materials purchased by the authorized dealer and the date of purchase;

      2. (B) the following information for each distribution:

         1. (i) the date of distribution;
         2. (ii) the name, address, applicator number, county, and telephone number of any M-44 applicator to whom M-44 sodium cyanide was distributed; and
         3. (iii) the amount distributed to the approved applicator.
   6. (6) Authorized dealers must ensure that any distribution of M-44 sodium cyanide is accompanied by a complete label. Authorized dealers must also provide to M-44 applicators the recordkeeping forms prescribed by the department. Authorized dealers may distribute sodium cyanide capsules only in boxes of ten each, in boxes of 25 each, or in boxes of 50 each.
   7. (7) Authorized dealers must obtain the department's approval prior to purchasing any M-44 sodium cyanide.
   8. (8) An authorized dealer must report to the department any incident or complaint of misuse involving M-44 sodium cyanide.

4. (d) Any person not previously certified as an M-44 sodium cyanide applicator may become certified by meeting the following criteria:

   1. (1) A person seeking certification as a licensed commercial M-44 sodium cyanide applicator shall comply with the licensing requirements of §7.22(d) and §7.23 of this section (relating to Licensing of Applicators and Applicator Business Proof of Financial Responsibility), complete M-44 sodium cyanide training and pass a test prescribed by the department and pay the license fee prescribed by §7.20 of this section (relating to Application).
   2. (2) A person seeking certification as a licensed noncommercial M-44 sodium cyanide applicator shall comply with the licensing requirements of §7.22(d) of this title (relating to Licensing of Applicators), complete M-44 sodium cyanide training, pass a test prescribed by the department and pay the license fee prescribed by §7.20 of this title (relating to Application).
   3. (3) A person seeking certification as a private M-44 sodium cyanide applicator must possess a valid private applicator certificate or a private applicator license in accordance with §7.22(f) of this title (relating to Licensing of Applicators), complete M-44 sodium cyanide training and pass a test prescribed by the department. No testing fee will be collected from private applicators.
   4. (4) All M-44 sodium cyanide applicators must recertify as required by §7.24 of this title (relating to Applicator Recertification). Each M-44 sodium cyanide applicator is responsible for giving written notice to the department of any change of address. The department may require retraining and retesting of any M-44 sodium cyanide applicator who fails to comply with the use, recordkeeping or other requirements of the department.
   5. (5) The licensing requirements of §7.25 (relating to Expiration and Renewal of Licenses) apply to all M-44 sodium cyanide applicators.
5. (e) Instructions to noncertified applicators working under the supervision of licensed M-44 sodium cyanide applicators. The licensed M-44 sodium cyanide applicator shall give appropriate verifiable instructions on the use of M-44 sodium cyanide to a noncertified person as required by §7.31 of this title (relating to Supervision) before the noncertified person may handle M-44 sodium cyanide. Licensed commercial M-44 sodium cyanide applicators must be physically present to supervise the use of M-44 sodium cyanide by noncertified applicators. Certified private applicators authorized to apply M-44 sodium cyanide may not supervise any person using M-44 sodium cyanide.

6. (f) Training for M-44 applicators shall include the following:

   1. (1) the proper use and treatment of M-44 sodium cyanide;
   2. (2) the proper method of disposing of M-44 sodium cyanide and related contaminated materials;
   3. (3) safe handling techniques designed to reduce health and injury risks;
   4. (4) recordkeeping requirements;
   5. (5) proper methods of identifying causes of predation; and,
   6. (6) approved methods of predator control.
7. (g) All M-44 applicators must comply with the label including the use restriction bulletin on M-44 sodium cyanide issued by the department (EPA Registration Number 33858-2) when using M-44 sodium cyanide. Copies of the use restrictions must be obtained with the purchase of each box of M-44 sodium cyanide. Additional copies of the bulletin and recordkeeping forms may be obtained from the department.

8. (h) Each applicator shall maintain records on forms prescribed by the department dealing with the placement of the device and the results of each placement. Such records shall include, but may not be limited to:

   1. (1) the number of M-44 sodium cyanide devices in place;
   2. (2) the location of each M-44 sodium cyanide device;
   3. (3) the dates of each placement, inspection, and removal;
   4. (4) the number and location of M-44 sodium cyanide devices which have been discharged and the apparent reason;
   5. (5) species of animals taken; and
   6. (6) all accidents or injuries involving humans, domestic animals, wildlife, or bodies of water.

Source Note:The provisions of this §7.40 adopted to be effective December 4, 1997, 22 TexReg 11652; amended to be effective July 4, 2001, 26 TexReg 4866.