4 TAC §7.27
The Texas Department of Agriculture (the department) adopts
new §7.27, concerning pesticide applicator business registration and
vehicle identification for certain pesticide applicator businesses, with changes
to the proposal published in the October 22, 2004, issue of the
Texas Register
(29 TexReg 9756).
The new section is adopted to prevent wasted manpower by making it possible
to determine if an applicator is licensed by visual inspection of the applicator's
vehicle. Some pesticide applicators that perform pest control in the plant
pest and weed control license category are licensed with the Structural Pest
Control Board (SPCB) and others are licensed with the department. Those applicators
licensed with the SPCB are required to display license information on their
vehicles, while those licensed with the department currently are not. This
causes confusion and many times applicators licensed with the department are
mistakenly reported to SPCB for operating without a license. New §7.27
will make identification of applicators licensed by the department in the
plant pest and weed control license category easier and will eliminate unnecessary
confusion for both the SPCB and the public and the resulting waste of investigation
and inspection resources. Additionally, the adopted section, at subsection
(a), clarifies that pesticide applicator businesses must register with the
department. The section is adopted with changes to the proposal that eliminate,
at subsections (b) and (f), the right-of-way pest control license category,
from coverage under the section and clarify, by the deletion of proposed subsection
(b)(1), that the section is only intended to cover persons making applications
under the plant pest and weed control category, and not those performing other
duties.
New §7.27 provides registration requirements for pesticide applicator
businesses registered with the department in the plant pest and weed control
license category. In addition, the new section provides for the issuance of
a decal to registrants by the department and provides requirements for the
placement of decals on certain applicator vehicles.
Comments on the proposal were received from the Texas Ag Industries Association
(TAIA), the Texas Vegetation Management Association (TVMA), the Texas Pest
Control Association (TPCA), CTN Educational Service, Chemical Weed Control
of Brownfield and Quilla, and McCoy Tree Surgery.
The TAIA commented that the rule is not needed and would place a burden
on TDA and applicators covered by the rule. The department believes the rule
is needed to help distinguish licensed applicators from unlicensed applicators
and will not place a burden on covered applicators since there is no cost
to the applicator for the decal.
Several commenters, including the TVMA, McCoy Tree Surgery and Chemical
Weed Control, requested that the department remove the right-of-way applicators
from the requirements. The primary reasons given are that most right-of-way
applications are made in non-urban areas of the state; that commercial right-of-way
applicators have a high vehicle replacement rate and vehicles sold to non-licensees
will continue to have the decal on them; that commercial right-of-way applicators
work in multiple states and vehicles based in other states might work temporarily
in Texas; that it would be very difficult for the department to monitor the
number of decals being used on vehicles actually used for applications; and,
that many commercial right-of-way applicators perform minimal pesticide applications
while they provide other services. The department agrees with this recommendation
for the reasons stated, and has excluded applications in the right-of-way
pest control category from the requirements in the final rule.
Another request was to include the non-commercial applicators that are
licensed with the department and apply general use pesticides. The commenter
argues that non-commercial applicators should be included because they also
do applications that are covered by the proposal. The department disagrees
with this request. The department has authority to license applicators to
apply restricted-use pesticides, state-limited-use pesticides, and regulated
herbicides. These non-commercial applicators that are licensed with the department
have done so under an exemption in the SPCB law. The department has excluded
these non-commercial applicators from the requirements of this rule because
there is no requirement for them to be licensed under any other existing department
rules.
TPCA requested that the department make the size of the lettering on the
decals at least 2 inches. TPCA argues that making the lettering larger would
make vehicles more easily identifiable or readable and that 2-inch letters
and numbers have been successfully used by the SPCB and other state agencies.
While the department does not disagree that larger letters would be more easily
read, the cost of producing a decal with 2-inch letters is cost prohibitive
if, as planned, the department will be furnishing the decals at no cost to
covered licensees.
New §7.27 is adopted under the Texas Agriculture Code §12.016,
which provides that the Texas Department of Agriculture with the authority
to adopt rules necessary to administer its duties under the Code; and the
Code, §76.004 and §76.104, which provide the Texas Department of
Agriculture with the authority, after notice and hearing, to adopt rules for
carrying out Chapter 76 of the Code, relating to pesticide and herbicide regulation.
§7.27.Applicator Business Registration and Vehicle Identification for Applicator Businesses.
(a)
Each applicator business shall register with, and obtain
a registration number from the department.
(b)
Each applicator business registered with the department
and which employs any commercial pesticide applicators certified in, and making
for-hire applications in, the plant pest and weed control license use category
(category 3(A)) listed in §7.21 of this title (relating to Applicator
Certification) shall prominently affix an applicator business vehicle identification
decal issued and provided by the department on each motor vehicle used by
an employee of the applicator business to access, for the purpose of making
an application, the customer's property that has been, is, or will be treated
with pesticides by the licensed applicator or a person supervised by the licensed
applicator.
(c)
The term "prominently affix" as used in this section means
permanently affixed to the rear window, front fender, or front door panel
of the vehicle in a location readily accessible to and viewable by members
of the public and department personnel.
(d)
The term "motor vehicle" as used in this section means
any wheeled or tracked vehicle, machine, tractor, trailer, or semitrailer,
but not aircraft, propelled or drawn by mechanical power and used to transport
a person or thing.
(e)
A motor vehicle is not required to have the decal specified
by subsection (b) of this section affixed to it if the vehicle is attached
to, pulled by, or transported by another motor vehicle with a required decal
affixed.
(f)
A motor vehicle is required to have the decal specified
by subsection (b) of this section affixed to it only when the activities in
subsection (b) of this section are related to a category 3A application.
(g)
The decal required by subsection (b) of this section may
be obtained by submitting a request to the department on a form prescribed
by the department.
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 January 20, 2005.
TRD-200500268
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: February 9, 2005
Proposal publication date: October 22, 2004
For further information, please call: (512) 463-4075