22 TAC §599.11
The Structural Pest Control Board adopts amendments of 22
TAC §599.11 with changes to the proposed text published in the issue
of the
Texas Register
(28 TexReg 5046).
Justification for the rule is the strengthening of the educational requirements
for those who perform structural fumigations. And in turn that will offer
a more assured protection to the public at large as well as for the betterment
of the pest control industry as a whole.
The rule will function in that all those who perform structural fumigations
will be required to fulfill educational requirements as well as on going educational
requirements in order to continue to do fumigation work.
Comments received all expressed concern with the automatic $3000 penalty
for failure to notify the Board of a structural fumigation and an industry
member spoke against changes in licensing for fumigation. One commenter felt
that failure to make capital expenditures did not reduce one's liability.
One industry member spoke in favor of §599.11 as raising the standard
of the industry.
The group or association making comments for or against the rule were from
the industry and the Texas Pest Control Association.
The Board disagrees with the comments made by an industry member regarding
the capital expenditures reducing liability. The Board feels that due to the
inherent danger of performing structural fumigations, that more practical
experience will make for safer fumigations. The Board agrees with the comment
on the automatic penalty and has changed the language to reflect calculation
of up to $3000 penalty.
The amendment is adopted under the Structural Pest Control Act,
Chapter 1951 of the Occupations Code, Texas Revised Civil Statutes Annotated,
which provides the Structural Pest Control Board with the authority to license
and regulate the structural pest control industry.
§599.11.Structural Fumigation Requirements.
(a)
Fumigation of structures to control wood destroying organisms
shall be performed only under the direct on-site supervision of a certified
applicator licensed by the Board in the category of fumigation. Direct on-site
supervision shall mean that the certified applicator exercising such supervision
shall be present at the site of the fumigation during the entire time the
fumigants are being released and at the time property is released for occupancy.
(b)
Fumigation shall be performed in compliance with all label
requirements applicable to state, county, and city laws and ordinances and
all applicable laws and regulations of the United States.
(c)
Prior to the commencement of fumigation, warning signs
shall be posted in plainly visible locations on or in the immediate vicinity
of all entrances to the space under fumigation and shall not be moved until
fumigation and ventilation have been completed, and the premises determined
safe for reocccupancy. Ventilation shall be conducted with due regard for
the public safety.
(d)
Local fire authorities or, when not available, local police
authorities, shall be notified prior to introduction of the fumigant and
at the time the structure is released for occupancy.
(e)
The space to be fumigated shall be vacated by all occupants
prior to the commencement of fumigation. The space to be fumigated shall
be sealed in such manner to assure concentration of the fumigant released
has been retained in compliance with the manufacturer's recommendations.
(f)
Warning signs shall be printed in red on white backgrounds
and shall contain the following statement in letters not less than two inches
in height; "Danger-Fumigation." They shall also depict a skull and crossbones,
not less than one inch in height, the name of the fumigant, the date and time
fumigant was introduced, and the name, address, and telephone number where
the certified applicator performing the fumigation may be reached twenty
four (24) hours a day.
(g)
On any structure that has been fumigated, the certified
applicator who performed the fumigation shall, immediately upon completion,
post a durable sign on the wall adjacent to the electric breaker box, water
heater, beneath the kitchen sink or in the interior bath trap access. This
shall be a durable sign not less than one inch by two inches in size. It
shall have the name of the certified applicator, date of fumigation, fumigant
used, and the purpose for which it was fumigated (target pest).
(h)
A certified applicator performing fumigation shall use
adequate warning agents with all fumigants which lack such properties. When
conditions involving abnormal hazards exist, the person exercising direct
on-site supervision shall take such safety precautions in addition to those
prescribed to protect the public health and safety. The certified applicator
shall visibly inspect the structures to assure vacancy prior to introduction
of fumigant.
(i)
The certified applicator shall also post a person or persons
at the location from the time the fumigant is introduced until all tarpaulins
and seals are removed and the label concentration for aeration is reached.
The certified applicator shall then secure all entrances to the structure
in such a manner as to prevent entry by anyone other than the certified applicator
or an agent of the certified applicator. The structure shall remain secured
until the concentration indicated by the fumigant label for release for occupancy
is reached.
(j)
For the purpose of maintaining proper safety and establishing
responsibility in handling the fumigants, the business license holder shall
compile and retain for a period of at least two (2) years a report for each
fumigation job and/or treatment. The person posted at the location shall deter
entry into the structure by routinely inspecting the structure under fumigation
at least once each hour. The person posted at the location shall be alert
and on duty to prevent entry into the structure while the structure while
the fumigant is present. The report for each fumigation job or treatment shall
contain the following information:
(1)
name and address of pest control company;
(2)
name and address of property and owner;
(3)
type of roof;
(4)
cubic feet fumigated;
(5)
target pest or pest controlled;
(6)
fumigant or fumigants used and amount;
(7)
name of warning agent and amount used;
(8)
type of sealing method;
(9)
temperature and wind conditions;
(10)
time gas introduced and aerated (date and hour);
(11)
name of licensee (certified applicator);
(12)
list of any extraordinary safety precautions taken;
(13)
time released for occupancy (signed by certified applicator;
(14)
the date and hour fire or police authorities were notified;
and
(15)
verification of clearing procedures and identification
of devices used.
(k)
Fumigations for the purpose of controlling wood destroying
insects are subject to the provisions of §599.4 of this title (relating
to Disclosure).
(l)
Every business license holder engaged in application of
a fumigant is required to use an approved clearance device as prescribed
on the fumigant label.
(1)
This approved calibrated clearance device must be used
as required by the label. As appropriate, this device must be calibrated
in accordance with manufacturer's recommendations.
(2)
An independent facility or person must perform calibration
of the clearance device annually. Calibration shall be in compliance with
the manufacturer's requirements.
(3)
Proof of calibration must be kept on file for a period
of two (2) years and available for review by Board personnel and by placing
a yearly validation on the clearance device.
(m)
The certified applicator responsible for the fumigation
site shall be responsible for following all the label prescribed procedures
for aeration and clearing the structure that is being fumigated.
(n)
The word "trained" is defined as a person having the same
qualifications as an apprentice unless the label states more stringent requirements
in the application of the fumigant.
(o)
Notice of all structural fumigations with contracts requiring
treatment of a structure must be called, emailed, or faxed to the Structural
Pest Control Board between the hours of 6:00 a.m. and 9:00 p.m. using the
specified telephone number, email address or fax number at least four (4),
and no more than twenty four (24) hours prior to the structural fumigation
application. The licensee must provide address and site location, chemical
to be used, date and time of treatment, approximate square footage under
contract and the name and physical address of the business licensee. If the
structural fumigation is cancelled, notice of the cancellation must be sent
using the Board specified telephone number, email address or fax number within
one to six hours of the time the licensee learns of the cancellation. Any
violation of 22 TAC §599.11(o) will result in a fine of up to $3000
based on a penalty matrix and is considered a base penalty 3.
(p)
Before an individual may apply for an initial certified
applicator's license in the structural fumigation category (with the exception
listed in §599.11(r )), the following experience requirements must be
met.
(1)
Attend a forty (40) hour structural fumigation school that
has at least sixteen (16) hours of hands on training, and has been approved
by the Executive Director; Or
(2)
Obtain forty (40) hours of on-the-job training with at
least sixteen (16) hours of hands on training that is approved by the Executive
Director.
(3)
A minimum of one CEU per year in structural fumigation
is required to maintain the certification following initial testing.
(q)
Current certified applicators must conduct/perform at least
three structural fumigation jobs per year or sixteen (16) hours of training
per year to maintain their certification.
(1)
A verifiable performance/training records form will be
made available to the Board upon request. These performance/training records
forms shall be kept on a format prescribed by the Board in the business file
for at least two (2) years after termination of employment. The verifiable
performance/training records form will be made available to the certified
applicator or technician upon written request.
(2)
A minimum of one CEU per year in structural fumigation
is required to maintain the certification following initial testing.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on August 7, 2003.
TRD-200304811
Dale Burnett
Executive Director
Structural Pest Control Board
Effective date: August 27, 2003
Proposal publication date: July 4, 2003
For further information, please call: (512) 305-8270