PART 1. TEXAS DEPARTMENT OF AGRICULTURE
SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE
DIVISION 1. GENERAL PROVISIONS
The Texas Department of Agriculture (the department) proposes the repeal of §§7.101 - 7.113, and §7.115, amendments to Chapter 7, Subchapter H, Division 1, §7.114, and new §7.112 and §7.113, all concerning regulation of structural pest control. The amendments, repeals and new section are proposed to eliminate unnecessary sections and to make revisions to the structural pest control service regulations to conform to new requirements established under House Bill (HB) 2458, 80th Legislative Session, 2007, which transferred the responsibilities for the licensing and regulation of structural pest control to the department and established the Structural Pest Control Service within the department, abolished the Structural Pest Control Board, and made other changes to Occupations Code, Chapter 1951. Section 7.114 is amended to add definitions for "Commissioner", "Committee", "Department", "Service" and "Suspend". Existing definitions were amended for clarification and to make those consistent with the transfer of the regulation of structural pest control to the department. The definition for "Board" is deleted. New §7.112 is to provide the department's policy and procedures for settlements of contested cases. New §7.113, Settlement of Consumer Complaints, sets forth the department's policy in encouraging the resolution of consumer complaints against structural pest control businesses through informal settlements. Sections 7.101 - 7.113 and 7.115 are no longer needed due to the transfer of structural pest control regulation to the department and the abolishment of the Structural Pest Control Board. In addition, §§7.110 - 7.113 and 7.115 are no longer needed because the subjects of these sections are covered by other department rule or policy.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed amendments, new section and repeals are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections, as amended or repealed.
Mr. Bush also has determined that for each year of the first five years the proposed amendments, new section and repeals are in effect, the public benefit anticipated as a result of enforcing the sections will be the deletion of unnecessary rules, updating of existing definitions, providing of public information on how the department will approach settling contested cases and consumer complaints, and the establishment of a standard process for the settling of contested cases and consumer complaints. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the amended and new sections as proposed or with the proposed repeals. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed amendments in the Texas Register.
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §§7.101 - 7.113 and §7.115 is proposed under Occupations Code, §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
Occupations Code, Chapter 1951, is affected by the proposal.
§7.101.Purpose of the Board.
§7.102.Rule Making.
§7.103.Suspension of Rules.
§7.104.Board Office.
§7.105.Board Meetings.
§7.106.Board Seal.
§7.107.Board Records.
§7.108.Board Acceptance of Documents.
§7.109.Board Administrative Hearings.
§7.110.Administrative Penalties.
§7.111.Determination of Administrative Penalties.
§7.112.Settlements.
§7.113.Public Comment.
§7.115.Historically Underutilized Businesses.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803254
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
The amendments to §7.114 and new §7.112 and §7.113 are proposed under Occupations Code, §1951.504, which provides that the department by rule shall establish guidelines for the settlement of a contested cases, and shall establish guidelines for the informal settlement of consumer complaints.
Occupations Code, Chapter 1951, is affected by the proposal.
§7.112.Settlement of Contested Cases.
(a) It is department policy to resolve contested cases without litigation.
(b) A "contested case settlement" is an agreement between the department and the respondent in a contested case which provides for a resolution different from the administrative penalty or license sanction, or both, originally proposed in the department's notice of violation.
(c) Contested case settlement negotiations may be in person, by phone, or through written communication, at the department's discretion, as necessary to resolve issues related to a particular contested case.
(d) Contested case settlement may incorporate any combination of authorized sanctions, additional training, or remedial actions as an alternative to the originally proposed penalty or sanction or combination of penalty and sanction.
(e) All contested case settlements are subject to approval by the commissioner. The commissioner shall state in writing the reasons for rejecting a proposed settlement.
(f) A contested case settlement is final and binding upon a respondent at the time the respondent or respondent's authorized agent signs the settlement agreement, and upon the department when approved by the commissioner through a signed order.
(g) If a contested case settlement is rejected by the commissioner, the contested case will be resolved through additional settlement negotiations consistent with the reasons for the commissioner's rejection, by stipulation to the department's originally proposed penalty or sanction or combination of penalty and sanction, or through a contested case hearing.
§7.113.Settlement of Consumer Complaints.
(a) It is department policy to encourage consumers and structural pest control businesses to resolve consumer complaints without litigation through informal settlements.
(b) As provided by Occupations Code §1951.504, the commissioner authorizes the department to engage in informal settlement negotiations with structural pest control businesses on behalf of structural pest control consumers.
(c) A consumer complaint settlement may require refund of money to the consumer in an amount no greater than the amount provided under the original contract for services or the proper and adequate performance of services that the business agreed to perform in the original contract, including any necessary retreatments of a kind no different than as agreed in the original contract, or both.
(d) The consumer or consumers filing the complaint shall be consulted regarding any proposed consumer complaint settlement prior to final approval of the agreement.
(e) All consumer complaint settlements shall be approved and signed by the Deputy General Counsel for Enforcement. The Deputy General Counsel for Enforcement shall state in writing the reasons for rejecting a proposed settlement.
(f) A settlement is final and binding upon a respondent at the time the respondent or respondent's authorized agent signs the consumer complaint settlement agreement.
(g) If a settlement is rejected by the Deputy General Counsel for Enforcement, the complaint may be resolved through additional settlement negotiations consistent with the reasons for rejection or left for the consumer and structural pest control business to resolve through private negotiation or litigation.
(h) Resolution of a consumer complaint through a consumer complaint settlement may relieve the structural pest control business from license sanction or administrative penalty liability, in any related contested case, for those violations of the structural pest control laws that promote economic consumer protection. Entering into a consumer complaint settlement agreement, however, does not relieve the structural pest control business or any of its agents from liability for violations involving the misapplication of a pesticide or for violations uncovered during the complaint investigation that are not directly related to the economic consumer protection aspects of the underlying consumer complaint.
(i) Failure to comply with an agreed consumer complaint settlement is a violation of the structural pest control laws which may subject the structural pest control business or any of its agents to additional penalties or sanctions or a combination of penalties and sanctions. It is an affirmative defense to a violation under this subsection that an affected consumer refused to accept a refund or service required under a consumer complaint settlement agreement or failed to agree to a reasonable time for performing any service, including retreatment, required under a consumer complaint settlement agreement.
(j) Nothing in this section shall be construed as resolving any civil legal dispute between a consumer and a structural pest control business and nothing herein shall be construed as relieving the consumer or the structural pest control business from any civil remedies or liabilities in connection with the consumer's complaint or any other matter.
§7.114.Definition of Terms.
In addition to the definitions set out in the Structural Pest Control Act the following words, names, and terms shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2) Apprentice--A sales or service employee who has
been registered with the department [
Structural Pest Control Board
], but has not yet passed a technician examination. [
An apprentice card is valid for a maximum of twelve (12) months.]
(3) - (4) (No change.)
[ (5) Board--The Structural Pest Control Board]
(5) [(6)] Category--The type
of service or services a person or business entity is authorized to perform.
(6) [(7)] Chairman--An individual
elected by members of the committee [
appointed by the Governor], who presides
over [at] the Structural
Pest Control Advisory Committee [Board] meetings.
(7) Commissioner--The Commissioner of the Texas Department of Agriculture, or his designee.
(8) Committee--The Structural Pest Control Advisory Committee. A nine member committee appointed by the commissioner, whose responsibility is to gather information and advise the commissioner and staff on the business of structural pest control.
(9) [(8)] Contract--A binding
agreement between two or more persons or parties that spell out in
writing, the terms and conditions or such agreement, and will include,
but not limited to, warranties or guarantees for
structural pest control work.
(10) Department--the Texas Department of Agriculture.
(11) Director--The person employed by the department who serves as administrator of the Structural Pest Control Service.
(12) [(9)] Document--any original
or official application for technician exam, application for technician
license, application for exam and certified applicator license, contract,
electronic forms, drawing, guarantee, invoice, map, notice of pre-
construction treatment, report, service agreement, termination notice,
termite pre-treatment disclosure document, training records, Wood
Destroying Insect report, warranty
, contract, purchase invoice, or other
business paperwork required by the department. [
Board. Relevant sections of the document must be filled out in its
entirety when provided or presented by a licensee to either the customer
or the Board. Documents required to be maintained by a licensee must
be made available to the Board upon request.]
[(10) Executive Director--The person
employed by the Board who administers the provisions of this of this
Act and the rules and regulations promulgated by the Board]
(13) [(11)] Inactive license--license
that maintains [reflects] certification, but
which prohibits the technician or certified applicator from doing
any pest control services for compensation.
(14) [(12)] Infest--the presence
of one or more obnoxious or unwanted animal(s) or plant(s) in, on
or around a structure, trees, shrubs, or other plantings adjacent
to or in a residence, business establishment, industrial plant, institutional
building, or street.
(15) [(13)] Inspector [
Investigator]--A structural pest control
inspector [investigator] employed by the
department [Board].
(16) [(14)] License--A document
issued by the department [Board] to a person
authorizing the practicing and/or supervising of the professional
service or services indicated thereon.
(17) [(15)] Licensee--The holder of a valid license.
(18) [(16)] Obnoxious and unwanted
animals or plant--animals or weeds as defined in §1951.003
of the Occupations Code [plants] that limit the use
or enjoyment or cause harm or damage of any type to people, pets,
structures, landscapes, or the environment. Animals excluded from
this definition are members of the Order Primates, hoofed mammals,
members of the Family Ursidea, members of the Genus Felis, members
of the Genus Canis, domestic livestock, ratites, gallinaceous birds,
and alligators.
(19) [(17)] Personal Contact--Physical
presence at a work location.
(20) [(18)] Revoke--To cancel
a license issued under authority of the Structural Pest Control Act.
When a business license is revoked, the holder of said license must
acquire a new license by completing a new application, and paying
the required fee. In the case of the certified applicator, the holder
of such certified applicator's license must acquire a new license
by completing a new application, paying a required fee, and being
re-examined in each category desired by said person.
(21) Service--The Structural Pest Control Service.
(22) [(19)] Suspend--To cease
operations for a period of time as specified by the
department [Board].
(23) [(20)] Unit--One hour of time.
(24) [(21)] Vice-Chairman--An
individual Advisory Committee [appointed Board]
member elected by the committee [Board] who
presides at the committee [Board] meeting in
the absence of the Chairman.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803255
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) proposes amendments to Chapter 7, Subchapter H, Division 2, §§7.121 - 7.123, 7.125 - 7.129 and 7.133 - 7.135, and the repeal of §§7.130, 7.132 and 7.136, all concerning regulation of structural pest control. The amendments and repeals are proposed to eliminate unnecessary sections and to make revisions to the structural pest control service regulations to conform to new requirements established under House Bill (HB) 2458, 80th Legislative Session, 2007, which transferred the responsibilities for the licensing and regulation of structural pest control to the department and established the Structural Pest Control Service within the department, abolished the Structural Pest Control Board, and made other changes to Occupations Code, Chapter 1951. Changes are made throughout the sections for purposes of clarification and to make the sections consistent with the transfer of the regulation of structural pest control to the department. Section 7.121 is amended to provide the department requirements for licenses to conduct structural pest control. This section has also been amended to eliminate the requirement that certified applicators obtain a license for each branch location. Section 7.122 is amended to change the term "board" to "department" and to clarify that both licensees and registrants are covered by this section. Section 7.123 is amended to require that the department be notified within 10 days instead of the current 30 days if the insurance coverage drops below the required coverage. Section 7.125 is amended to conform to new statutory requirements of HB 2458: to specify that an applicant must submit, not later than 30 days prior to the scheduled examination date, an application for the examination and pay the required fee; to specify that passing the appropriate category exam is a requirement of obtaining a license in addition to experience criteria; to provide exam standards and requirements allowing the department to schedule more frequent examination sessions and clarify what actions the department will take when an applicant for examination is discovered receiving or giving additional assistance during the examination; and to establish the framework for the development of an examination policy. Section 7.126 is amended to clarify that each certified commercial and noncommercial applicator and technician may not be renewed if the licensee has not met the continuing education unit requirement in the prior calendar year. Subsection (c) is deleted, as a licensee's failure to maintain adequate insurance will be addressed in the department's administrative penalty matrix. Section 7.127 is amended to make this section consistent with changes made to Occupations Code, Chapter 1951 by HB 2458. The amendments provide that a late renewal fee will be charged equal to 1-1/2 times of the renewal fee for renewal applications received between 1 and 30 days of the expiration date, and that a late renewal fee will be charged equal to two times the renewal fee for renewal applications received between 31 and 60 days of the expiration date. Language is also added to specify that licenses that have been expired 61 days or longer are not eligible for renewal. Section 7.128 is amended to clarify the actions that may be taken upon the loss of a responsible certified applicator or business license holder. Section 7.129 is amended to add new language providing that any person submitting a request to take an examination or to receive a license may be delayed or may not receive a license if the applicant has been arrested or charged with a crime that if convicted may disqualify the person from receiving a license. Section 7.133 is amended to clarify the requirements for apprentices and technicians to include strengthening the requirement of the oversight of the responsible certified applicator in training of apprentices and technicians and to require that verifiable training records be maintained for 5 years instead of the current two years to accommodate the change in the inspection frequency for businesses from a two year cycle to a four year cycle. Section 7.134 is amended to specify that the business licensee and responsible certified commercial applicator is responsible for the proper certification and training of employees. Section 7.135 is amended to modify the criteria for the approval of self-study or electronic courses for continuing education, and remove from this section the penalty designations for sponsors and speakers that will be addressed in the department's administrative penalty matrix. Sections 7.130, relating to licensing of persons with delinquent student loans, and 7.132, relating to right-of-way certification are repealed because they are unnecessary. Requirements addressing delinquent student loans are addressed in the Education Code, and right-of-way certification requirements are addressed in the Agriculture Code. Section 7.136 is repealed because provisional licenses for Louisiana and Mississippi Certified Pest Control Applicators affected by Hurricane Katrina are no longer needed and dates that pertain to this emergency provision have expired.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed amendments and repeals are in effect, there will be fiscal implications for state government as a result of enforcing or administering the sections, as amended. There will be an estimated increase in state revenue of $6,415 per year due to the increase in late fees provided for in the amendments to §7.127. This is based on the number of late fees processed in fiscal year 2007 and the average increase in the license renewal fee for three categories of licensure. There will be a decrease in state revenue due to the elimination of the requirement that certified applicators obtain a license for each branch location, as proposed in §7.121. It is not possible to determine an estimate of the decrease in state revenue at this time. There will be no fiscal implications for local government.
Mr. Bush also has determined that, for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of enforcing the amended sections and repeals will be the deletion of unnecesary rules, the updating of current rules to make them consistent with current law and practice, tightening of the timeline for notice to be provided of a licensee's insurance coverage dropping below the required coverage, clarification of the responsibilities of the responsible certified applicator in regard to oversight and training of technicians and apprentices under their watch, establishment of standard examination procedures for persons testing to obtain structural pest control licenses, and making the licensing of certified applicators less burdensome by eliminating the need to obtain a separate license for each branch location. There will be an effect on microbusinesses and small businesses licensees and licensed individuals who are required to comply with the amendments to §7.127, relating to the payment of late fees, as proposed. The amount of late fee will depend on the type of license held and the lateness of the renewal. For licensed technicians, who pay a license renewal fee of $60, the late license renewal fee will be $90, a decrease of $7.50 if up to 30 days late, and $120, a decrease of $15 if 31-60 days late. For licensed certified applicators, who pay a license renewal fee of $80, the late license renewal fee will be $120, an increase of $2.50 if up to 30 days late, and $160, an increase of $5 if 31-60 days late. For entities licensed in the business category, who pay a license renewal fee of $180, the late license renewal fee will be $270, an increase of $52.50 if up to 30 days late and $360, an increase of $105, if 31-60 days late. No regulatory flexibility analysis is required because the amendments made to increase the amount of late renewal fees paid are made to comply with a new statutory requirement, and the department has no flexibility in setting these fee rates.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed amendments in the Texas Register.
4 TAC §§7.121 - 7.123, 7.125 - 7.129, 7.133 - 7.135
The amendments to §§7.121 - 7.123, 7.125 - 7.129 and 7.133 - 7.135 are proposed under Occupations Code, §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; §1951.310, which establishes fees for late renewal of structural pest control licenses and provides that a person must be reexamined by the department to obtain a license if the person applies for a renewal license after the 60th day after the date the person's license expires; §1951.312, which provides that the department by rule may adopt insurance requirements for structural pest control licensees; §1951.315, which provides the department to establish by rule continuing education requirements for licensees; §1951.406, which provides that the department shall develop a written policy governing licensing examinations for persons licensed under Chapter 1951, including procedures for administering the examinations; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
Occupations Code, Chapter 1951, is affected by the proposal.
§7.121.Persons Required to Secure License.
(a) Business License--Any person engaged in structural
pest control for compensation must secure a business license
from the department [Board] for each business
location, including branch offices, in accordance with the Texas Structural
Pest Control Act and the regulations of the department [Board
]. Each business license holder must designate a responsible
certified commercial applicator for each business location who is
not also serving as a responsible certified commercial applicator
for any other business licensee or any other business location. No
person shall engage in, offer to engage in, advertise for, solicit,
or perform any of the services identified in §1951.003 [
Section 1951.002] of the Texas Structural Pest Control Act,
for compensation, without first obtaining a business license and having
a certified commercial applicator certified in each license category
in which business is conducted. The business license may reflect
only those categories in which at least one certified applicator is
actively licensed.
(b) Responsible Certified Commercial Applicator--
A [The person licensed as a
] certified commercial applicator[,]
who has been designated by the business license holder to be [
the responsible certified commercial applicator for a business
license location, shall be] responsible for [to
provide] training and [direct] supervision
of all pest control operations of the business [
for pest inspections,
identifications, and control measures of a licensed business].
The person may be employed by other business [license]
location(s) [and licensed by each location
] as a certified commercial applicator, but may [must
] only be the responsible certified commercial applicator for one
business license location.
(c) Certified Commercial Applicator--A [The
] person licensed in category as a certified commercial
applicator who can perform pest control services, identifications
and control measures without direct supervision but under supervision
of the responsible certified commercial applicator. A certified
commercial applicator must hold a separate license [be
licensed] for every business [location] for which
the certified commercial applicator is employed but is not required
to hold a separate license for branch offices of an employer.
(d) Certified Noncommercial Applicator--[The person,
who as an] An employee[,] of [
is responsible for providing pest control services to] a governmental
entity, apartment building, day-care center, hospital, nursing home,
hotel, motel, lodge, warehouse, food-processing establishment, school
or educational institution and other noncommercial entity [
entities]. The person licensed in category as a noncommercial
certified applicator
who can perform pest control services, identifications
and control measures without direct supervision [shall
be responsible to ensure training and supervision for pest inspections,
identifications, and control measures of a noncommercial entity].
A certified noncommercial applicator must be licensed for every business
entity for which the certified noncommercial applicator is employed
but is not required to hold a separate license for branch offices
of an employer.
(e) Technician--A [The] person licensed in category
who performs pest control services under the direct supervision of a
commercial or noncommercial certified applicator [
must obtain a technician license by meeting the standards
prescribed by the Board in §593.21 of this title (relating to
Technician License Standards)]. A technician must be licensed
for every business or noncommercial entity for which the technician
is employed but is not required to hold a separate license for
branch offices of an employer.
(f) Apprentice--A [The] person, who
is registered by a business or noncommercial entity to train [
has made their initial application] for a technician license,
has not passed the technician examination and who performs
pest control services under the direct supervision of a
licensed technician or a certified applicator. An apprentice
may work only for the business or noncommercial entity for which they
are registered.
§7.122.License Application.
(a) The application for a business license, a certified
applicator license, and technician license and registration for apprentice
must be submitted on forms [a form] provided
by the department [Board].
(b) An application for license or registration must contain a physical address where the licensee or registrant may be located. The address of an answering service or post office box will not meet the requirements of this section.
(c) An individual may be refused [will
not be issued] a license or registration from the
department [Texas Structural Pest Control Board
] if the individual
possessed a license permitting the application of general or restricted
use pesticides issued by another state agency, Indian Tribe, or federal
agency in the preceding twelve month period and [that if
] the individual's license has been revoked, suspended, probated
or refused or had [has] been subject to enforcement
action for any reason that could [would]
result in the department [Texas Structural Pest Control
Board] denying licensure or registration.
§7.123.Insurance Requirement.
(a) Each business license applicant and certified noncommercial
applicator license applicant must submit a certificate of insurance
with proof of coverage on the form provided by the
department [Board
] in the amount of not less than $200,000 for bodily injury
and property damage coverage with a minimum total annual aggregate
of $300,000 for all occurrences. The insurance policy must insure
applicant for damage to persons or property occurring as a result
of operations performed in the course of the business of structural
pest control to premises or any other property under applicant's care,
custody, or control. No new business license or certified noncommercial
applicator license will be issued until insurance requirements are
met. Policies must contain a cancellation provision for notification
to the department [Board] not less than thirty
(30) days prior to cancellation. Certified noncommercial applicators
employed by governmental entities are exempt from this provision.
Inactive certified applicators and technicians that do not perform
structural pest control work for compensation or as a part of the
duties of their employment are exempt from this provision.
(b) A licensee who operates as a wood treater who treats
wood on commercial property owned by the licensee must submit with
their application a general liability insurance policy or certificate
of coverage in the amount of not less than $200,000 for bodily injury
and property damage coverage with a minimum total annual aggregate
of $300,000 for all occurrences. No license will be issued until this
insurance requirement is met. Policies must contain a cancellation
provision for notification to the department [Board]
not less than thirty (30) days prior to cancellation.
(c) If payment of claims results in reducing the total
aggregate of coverage below $300,000, the insurance carrier must notify
the department [Board] and the licensee within
ten (10) business [thirty (30)] days. The licensee
must obtain additional coverage to meet the minimum requirements.
(d) The department [Board] will
consider as sufficient only those policies issued by insurers authorized
by or registered with the Texas Department of Insurance.
§7.125.Examinations.
(a) To take an appropriate examination administered
by the department, an applicant must submit to the department not
later than thirty (30) days prior to the scheduled examination session
the appropriate form specifying the examination category desired and
pay the fee for each exam requested. An individual who has previously
qualified by written examination in a category shall receive a certified
applicators license for the qualified category without reexamination
upon renewal of a certified applicator license and meeting all requirements
of these [the] regulations. Each individual
not previously qualified by written examination in the category or
categories for which the license is requested must secure a certified
applicator license by passing an appropriate examination administered
by the department [Board].
(b) In addition to passing the appropriate category [
To qualify to take the Board] examination, and in order
to be eligible to obtain [for obtaining] a certified
commercial applicator license, the applicant must meet one of the
following requirements:
(1) - (2) (No change.)
(3) Complete a department approved minimum six
(6) hour certified noncommercial technician training course; [
Have a degree or certificate in an area of the biological sciences,
related to pest control, from an accredited two (2) or four (4) year
college or university;]
(4) (No change.)
(5) Qualifies under the hardship clause outlined in
§7.128 [§593.8
] of this title (relating to Loss of Responsible
Certified Applicator or Business License Holder).
(6)
Each applicant testing for a certified applicator
license must pass the general standards examination administered by
the department [Board] to be eligible to be
licensed in any of the categories in subsection (d)(12) of this section,
Categories of Examinations.
(c) In addition to passing the appropriate category
examination, and in order to be eligible to obtain [
qualify to take the Board examination for obtaining] a certified
noncommercial applicators license, the applicant must meet one of
the following requirements:
(1) - (4) (No change.)
(d) Examination standards and requirements. [
The examination procedure will be as follows:]
(1) Examinations will be given at [the discretion
of the Board at] least once each quarter based on the calendar year.
The department may schedule more frequent examinations
as resources permit.
(2) A fee shall be charged for each examination administered
by the department [Board].
(3) All examination fees are to be paid by the method
determined by the department [Board] and payment
must [should
] be submitted with the completed application.
(4) (No change.)
(5) All examinations shall be maintained and administered
by the department [
Board or at a Board approved site].
(6) The applicant must take an examination, which
may [must
] be in written or electronic form and in general,
cover the subject of the categories designated on the application.
(7) (No change.)
(8) Examinations [The applicant for
the certified applicator examination must be able to read and write]
shall only be administered in [the] English [
language].
(9) Examinations are closed book. [An
applicant who gives or receives unauthorized assistance during an
examination shall be dismissed from the examination and results of
that applicant's examination shall be voided. The applicant will not
be allowed to take an examination again for the next twelve (12) months.]
(10) Cheating is prohibited. Cheating consists of giving or receiving unauthorized assistance in answering examination questions, bringing unauthorized materials into the exam room or using unauthorized materials to answer examination questions, copying answers or using answers from another examinee, copying questions or answers to examination questions to take from the examination room, removing an examination booklet, answer sheet, or scratch paper from the examination room, or any other action which undermines the integrity of the examination process or that has the intent or effect of providing answers to examination questions that do not reflect each examinee's own work or knowledge.
(11) "Unauthorized assistance" means the use of any written or electronic information or communication during the examination, unless expressly permitted by written instruction or rule, or the receipt or provision of any verbal or written communication, that has the intent or effect of providing answers to examination questions that do not reflect the examinee's own work or knowledge.
(12) No written materials, scratch paper, or electronic devices may be brought into the examination room or used during the examination.
(13) Scratch paper will be provided by the department as necessary and must be returned to the examination proctor at the end of each examination.
(14) The hands, arms, other body parts, or clothing or other possessions of the examinee may not contain any notes, formulas, or other markings, except for permanent tattoos which do not reproduce any information necessary for answering examination questions.
(15) If an examinee is caught cheating, the examination proctor will confiscate or require the removal of any prohibited materials or information and will mark all answer sheets of the examinee to identify the examination as potentially tainted. The examinee will be asked to leave the examination room and will not be allowed to continue with the examination.
(16) The examination proctor will file a report with the Structural Pest Control Service, along with all potentially tainted examination answer sheets, and a final determination will be made regarding the alleged cheating. The Service's determination will be communicated to the examinee in writing. If the Service determines that cheating occurred, the examinee will have 30 days to file a written appeal on the decision. If the appeal is denied, the examinee will not be allowed to take an examination again during the 12-month period immediately following the date of the exam in question and all examination fees will be forfeited. If the appeal is upheld or if the Service determines that no cheating occurred, the examinee will be allowed to retake any tests scheduled for the date of the alleged cheating at no additional cost.
(17) Upon a final determination that an examinee has cheated, any existing license of any type currently held by the licensee is subject to suspension or revocation.
(18) [(10)] Applicants who do
not take a scheduled examination may not receive a refund of their
examination fee unless they notify the
department [Board]
in writing at least ten (10) business days in advance of the examination
date. Exceptions may be granted if there is an emergency such as a
death or serious illness in the family.
(19) [(11)] Persons who make
a passing grade and qualify for a certified applicator license must
obtain a license within (12) twelve months of the grade notification
date or be retested.
(20) [(12)] Examinations will
be administered, maintained, and evaluated on a routine basis as determined
by department examination policy in the following categories
[will be offered by the Board].
(A) Pest Control--This category includes persons engaged in the inspection or control of pests in and around structures or pest animals which may invade homes, restaurants, stores, and other buildings, attacking their contents or furnishings or being a general nuisance, but do not normally attack the building itself. Examples of such pests are cockroaches, silverfish, ants, fleas, ticks, flies, mosquitoes, rats, mice, skunks, raccoons, opossums, etc.
(B) Termite and Wood Destroying Insect Control--This category includes persons engaged in the inspection or control of termites, beetles, or other wood destroying insects and wood preservation by means other than fumigation in buildings, including homes, warehouses, stores, docks, or any other structures. This category includes the treatment of termites in trees in and around structures.
(C) Lawn and ornamental--This category includes persons engaged in the inspection or control of pests or diseases of trees, shrubs, or other plantings in a park or in and around structures, business establishments, industrial parks, institutional buildings or streets.
(D) Weed Control--This category includes persons engaged in the inspection or control of weeds around homes and industrial environs.
(E) Structural Fumigation--This category includes persons engaged in pest inspection or control through fumigation of structures not primarily intended to contain food, feed or grains.
(F) Commodity Fumigation--This category includes persons engaged in pest inspection or control through fumigation of commodities or structures normally used to contain commodities. This category does not include raw agricultural commodities.
(G) Wood Preservation--This category includes persons engaged in that phase of pest control that involves the addition of preservatives to wood products to extend the life of the wood products by protecting them from damage caused by insects, fungi, and marine borers. Examples of wood products may include, crossties, poles, and posts. This includes the retreatment of power-line poles with wood preservative pesticide including fumigants.
(21) [(13)] Each applicant testing
for a certified applicator license must pass the general standards
examination administered by the department [Board]
to be eligible to be licensed in any of the categories in this section.
§7.126.License Expiration and Renewal.
(a) Each license(s) shall [may]
expire [in] twelve (12) months from the date issued or
immediately upon the date that the business liability insurance expires,
whichever comes first. The insurance expiration date will be determined
by the date on the certificate provided to the department [
Board] by the business licensee, and any policy amendments or
cancellation notices issued after the effective date.
(b) Businesses and certified noncommercial applicators
that change insurance coverage during a licensed period may have the
license expiration extended to the new policy date, if there has not
been a lapse in coverage, by paying additional [license]
fees for each license to the new expiration date. [Certified
applicators and technicians who change employers may also pay additional
license fees to the new expiration date of the business or other entity
under which they are operating. Refer to §593.7 (Fees) for additional
license fees.]
[(c) Businesses and certified noncommercial
applicators that allow insurance coverage to lapse or who fail to
provide continuous proof of coverage to the Board as a result of insurance
changes will no longer have a valid license(s). Reinstatement of licenses
will be made upon payment of a new business license fee and any other
additional fees that may be required without receiving credit for
any license period between the date of the lapse in coverage and the
original license expiration date.]
(c) [(d)] Licenses must be renewed
by submitting a [license
] renewal application to the department [Board
], paying the required fee, and meeting any
additional requirements of the department [Board]
under §7.123 of this title [Section 593.3]
(Insurance Requirements) and subsection (g) [(h)]
of this section, 30 days prior to the license expiration date. Submitting
a renewal application after the license expiration date makes the
license renewal application subject to late fees [prescribed
in the Texas Structural Pest Control Act, Section 1951.310]. A [
license] renewal application is not considered to be
submitted unless it is entirely completed and correct, submitted with
the correct fees, and satisfying any additional requirements determined
by department [Board] rules. Applicants who
apply for a renewal license more than 60 days after the license expiration
date will be required to be reexamined [by the Board] to
obtain a license.
(d) [(e)] Licenses issued by
the department may [Board must] not be transferred,
borrowed, rented, leased or loaned.
(e) [(f)] Whenever a licensee
changes the mailing address, business location address or telephone
number, the licensee must notify the department [Board]
in a written or electronic manner within ten (10) business days of
the effective date of the change. A license [License]
may be reprinted upon payment of afee.
(f) [(g)] The department [Board
], in determining whether additional testing or training
must be required of current licensees before renewal of their license,
may consider changes in technology, pesticide related problems, the
performance of individual licensees or competency of individual licensees.
If general retraining or retesting is required for all applicators
in a category or subcategory, the department [Board]
will publish notice at least six months in advance of the license
renewal date. If individual retraining or testing is required as a
result of the applicator's performance or inability to perform, the
department [Board] may give notification and set
a time and place of retraining.
(g) [(h)] All certified applicators
are required to certify to the department on the renewal application
[Board] the number of [category(ies) of]
continuing education credits they have accumulated
in each category during the prior calendar [previous] year , running from January 1 to December 31, pursuant to
§7.134 [§593.23
] of this title (relating to Continuing Education
Requirements for Certified Applicators). Failure to do so will
prevent the license from being renewed.
(h) [(i)] Certified noncommercial
applicators who have been licensed for a minimum of
two years [one year
] may become certified commercial applicators by requesting
an additional license or change of license and paying the required
license fee. Certified commercial applicators may become certified
noncommercial applicators by requesting an additional license or change
of license and paying the required license fee.
§7.127.Fees.
(a) Applicants, licensees and continuing education providers will be charged the following fees:
(1) - (9) (No change.)
(10) a [$37.50 for late] renewal
fee for applications received 1 day to 30 days after expiration date
equal to 1-1/2 times the normally required renewal fee;
(11) a [$75 for late] renewal
fee for applications received 31 to 60 days after expiration date
equal to 2 times the normally required renewal fee; and
(12) (No change.)
(b) (No change.)
§7.128.Loss of Responsible Certified Applicator or Business License Holder.
(a) In the event of disability, incapacity, or death
of the business license holder [or certified applicator, if they
are the same person], and upon application of heir [
or license holder] electing to continue the business or
noncommercial operation, the Director [Board]
may allow the operation to continue [issue a temporary
hardship license to be valid] for a period not to exceed six
(6) months. The department must be notified [heir
or license holder must notify the Board
] in writing within twenty
(20) business days of the disability, incapacity or death of the business
license holder [or certified applicator].
(b) Upon the disability, incapacity, death or
loss of a responsible certified applicator, or certified applicator
for a noncommercial operation, the business license holder or the
noncommercial operation, may request that the Director allow the operation
to continue until the next examination date or a reasonable time period
as determined by the Director. The department must be notified in
writing within twenty (20) business days of the date of the disability,
incapacity, loss or death of the certified applicator. [Upon
the loss, disability or incapacity of a certified applicator, the
business license holder or noncommercial operation may request the
Board allow the operation to continue operating until the next state
examination date. The licensee must notify the Board in writing within
twenty (20) business days of the date of the loss, disability or incapacity
of the certified applicator.]
(c) In the event the Director grants the request for a business or facility to operate for a period of time without the presence of a responsible certified applicator or certified applicator, the operation may only apply general use pesticides during the granted period or until a responsible certified applicator or certified applicator, as appropriate, is employed and /or designated.
§7.129.Licensing of Persons with Criminal Backgrounds.
(a) The department performs criminal background checks on each applicant for examination or a license. Applications to examine for or receive a license, including a renewal, may be delayed as the result of evaluating any criminal activity revealed by this criminal background check.
(b) No currently incarcerated person is eligible to obtain or renew a pest control license.
(c) [(a)] The department [Board
] may revoke, suspend, annul, or amend an existing [valid
] license, disqualify a person from receiving or renewing a
license, or deny to a person the opportunity to be examined for a
license because of a person's conviction of a felony or a misdemeanor,
if the crime directly relates to the performance of the occupation
or activity for which the license is issued and the prior criminal
conviction directly affects such person's present fitness to perform
such occupation or activity. [No currently incarcerated person
will be eligible to obtain or renew a pest control license.]
(d) [(b)] In determining whether
a criminal conviction directly relates to the performance of a licensed
occupation or activity, the department [Executive
Director] shall consider:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;
(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and
(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.
(e) [(c)] In making a determination
in a particular case, the crimes which the department [
Board] considers as likely to be directly related to the performance
of the licensed occupation or activity include, but are not limited to:
(1) any felony or misdemeanor of which fraud, dishonesty, or deceit is an essential element;
(2) any criminal violation of Texas Structural Pest Control Act (Occ. Code Chpt. 1951);
(3) any criminal violation of statutes regulating the particular occupation or activity for which licensing is sought;
(4) any crime involving moral turpitude;
(5) murder;
(6) burglary;
(7) robbery;
(8) sexual assault;
(9) theft;
(10) sexual assault of a child;
(11) possession of controlled substances;
(12) assault;
(13) larceny;
(14) multiple convictions for the same crime; and
(15) falsification of a government document.
(f) [(d)] In determining whether
a criminal conviction directly affects a person's present fitness
to hold a license under the Texas Structural Pest Control Act, the
department [Board
] shall consider the following factors:
(1) the extent and nature of the person's past criminal activity;
(2) the age of the person at the time of the commission of the crime;
(3) the amount of time that has elapsed since the person's last criminal activity, or release from a penal institution or court supervision;
(4) the conduct and work activity of the person prior to and following the criminal activity;
(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release;
(6) other evidence of the person's present fitness, including letters or recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the convicted person.
(g) [(e)] It is the responsibility
of the applicant to the extent possible to secure and provide to the
department [Board
] the recommendations of the prosecution,
law enforcement, and correctional authorities. The applicant must
also furnish proof in such form as may be required by the
department [Board] that the
applicant has maintained
a record of steady employment, supported dependents, maintained a
record of good conduct, and paid all outstanding court costs, supervision
fees, fines, and restitution as may have been ordered in all criminal
cases in which convicted.
§7.133.Technician License Requirements.
(a) [Definition.] An apprentice [in
any of the categories administered by the Texas Structural Pest Control
Board] is a beginning employee, whose training program
is the responsibility of the responsible certified applicator and who
may be trained by and work [works] under the
direct supervision of licensed applicators and technicians
[trained and licensed personnel].
(b) An apprentice must [Must]
be at least 16 years of age.
(c) An apprentice must [Must]
be able to demonstrate proficiency in reading U.S. Environmental Protection
Agency approved pesticide labels and warnings.
(d) An apprentice must [Must]
submit an application for technician license within ten (10) days
of beginning employment.
(e) The application must include the following information:
(1) - (4) (No change.)
(5) driver's license number; and
(6) date of birth. [; and]
[(7) disclosure of criminal background.]
(f) (No change.)
(g) An apprentice card will be issued by the department [
Texas Structural Pest Control Board] for one (1)
year from the date employment began when all of the above requirements
are met and processed.
(h) Apprentices must not perform any pest control work
without the physical presence of a licensed technician or a certified
applicator. Upon completion of and documentation of the required
study and on-the-job training and demonstrating competency in each
area, [Documentation of training given must be entered
on the verifiable training form within five (5) days. Upon completion
of the following study and on-the-job training,] the apprentice
may work alone so long as a certified applicator is physically present
for personal instruction three (3) days a week. The studies and job
training required for an apprentice are as follows:
(1) complete at least two hours of classroom training in each of the following subjects:
(A) - (I) (No change.)
(J) non-chemical pest control techniques, including
biological, mechanical and integrated pest management [
prevention] techniques.
(2) complete forty (40) hours of verifiable on-the-job
training and eight (8) hours of classroom training in each category
in which the apprentice is to provide pest control services. The
responsible
certified commercial applicator or certified noncommercial applicator
[
business license holder, certified commercial applicator or the certified
noncommercial applicator] must certify in the training records
of each apprentice [employee] that the apprentice
has completed the required training and has demonstrated competency
in each category in which the apprentice is to provide service.
(3) (No change.)
(4) an apprentice may [must]
maintain an apprentice card for a maximum of twelve (12) months. If
an apprentice has not passed the requirements to become a licensed
technician in the twelve (12) month period, the individual may
be re-registered [re-apply] as an apprentice
and complete all training requirements for an apprentice.
Previous training credit may not be applied to this requirement.
(i) Apprentice Records.
(1) The responsible certified commercial applicator [
business licensee] or certified noncommercial applicator must
maintain the verifiable training records and certification for each
apprentice in the business files. These are to be kept at least
five (5) [two (2)] years
from the training or certification date [
after termination of employment].
(2) The above records are to be kept on a form prescribed
by the department [Board] and must include,
but are not limited to the following:
(A) - (C) (No change.)
(D) printed name, signature and license number
of trainer [and license number];
(E) designation of on-the-job training or classroom
training; [and]
(F) competency evaluation by the certified applicator
; and [.]
(G) printed name, signature and license number of evaluator.
(j) When an apprentice changes employers, the employer
who maintains [provided
] the verifiable training records
must make the verifiable training records available
to the apprentice or the new employer within twenty (20) days of written
request.
(k) (No change.)
(l) An apprentice becomes a licensed technician by;
(1) completing a department [Board]
approved technician training course in general training at least one
time prior to taking the examination.
(2) making a passing grade on the technician examination.
(A) (No change.)
(B) There shall be a fee charged per
examination [category].
(C) The Technician Training Manual may be obtained
from the Texas AgriLife Extension Service [
Texas Cooperative Extension].
(D) An individual must pass each category [
of the] examination in which the apprentice
applies [has trained
] to become licensed. Re-examination is not necessary
if the license is renewed annually.
[(E) Examination dates and locations
are at the discretion of the Board.]
(3) (No change.)
(m) All testing procedures shall be governed by
§7.125 [§593.5(c)(3) - (11)
] of this title (relating to Examinations).
(n) The department [Board] shall
require as a condition to the renewal of each commercial or non-commercial
technician's license granted pursuant to the provisions of this section,
the responsible certified applicator of record to [will]
certify on the verifiable training records form that the technician
has completed eight (8) hours of verifiable training for the preceding
calendar year running from January 1 to December 31 preceding the
renewal date except that no additional training will be required in
the first calendar year in which a technician is first licensed. This
certification must be verified upon each annual renewal of the technician
license. Failure to do so will prevent the license from being issued.
Licensees must obtain the appropriate number of verifiable training
hours in the preceding 12-month calendar year period. Changing employers
or moving to an inactive status does not alleviate this responsibility
or add time to the continuing education requirements.
(1) The eight (8) hours of verifiable training
must be selected from [will be covered in
] the following subject areas:
(A) - (I) (No change.)
(J) Non-chemical pest control techniques including
biological, mechanical and
integrated pest management [prevention
] techniques.
(2) - (3) (No change.)
(4) A technician will receive an hour for hour credit
if a department [Board] approved continuing
education unit course is completed.
(5) (No change.)
(o) Upon written request, the [Executive]
Director may grant a hardship extension to a technician due to extenuating
circumstances.
(p) All verifiable training records must be made available
to the department [Board] upon request. These
verifiable training records must be kept on a format provided by the
department [Board
] in the business file for at least
five (5) [two (2)] years after
completion of training [termination of employment].
(q) (No change.)
§7.134.Continuing Education Requirements for Certified Applicators.
(a) Except as provided in subsections (e) and (f) of
this section, the department [Board] shall require
as a condition to the renewal of each certified applicator license
granted pursuant to the provisions of this section, that the holder
thereof certify to the department [Board] that
the licensee has completed courses of continuing education approved
by the department [Board] that cover the applicator's
category(ies) of certification for the preceding calendar year running
from January 1 to December 31. This certification must be completed
each calendar year for renewal of the certified applicator's license
in the following calendar year . [Failure to do so will
prevent the license from being renewed.] Certified applicators
who do not meet the recertification requirements will not be eligible
to renew their licenses until all deficiencies are corrected, and
they re-take and pass the appropriate category examination. Licensees
must obtain the appropriate number of continuing education units in
each 12-month calendar year period as specified in this section.
Changing employers or moving to an inactive status does not alleviate
this responsibility or add time to the continuing education unit requirement.
(b) - (d) (No change.)
(e) Applicators will not be required to obtain units during the first calendar year in which their license is issued. Applicators who become certified in additional categories during any calendar year period will not be required to obtain units in those categories for that period.
(f) Upon written request, the [Executive]
Director may grant a hardship extension to a certified applicator
due to extenuating circumstances. The length of the hardship is at
the discretion of the [Executive] Director.
(g) Each certified applicator must keep a certificate
of completion for each course attended for a period of
five (5) [two] years, and submit such records to the
department [Board
] on request. These records are subject to inspection by
department [Board
] personnel at any time. Continuing
education certificates will be made available to the licensee within
twenty (20) days of the written request
to a training provider.
A copy of employee training records shall be made available to a licensee
within twenty (20) days upon written request to the employer.
(h) The business licensee, responsible certified commercial applicator and certified noncommercial applicator shall be responsible for the proper certification and maintenance of employee training records in accordance with this subchapter.
[(h) The penalty for falsifying continuing
education records is a fine of $2500 to $5000, a revocation of a license
for a minimum of one (1) year and re-testing by the certified applicator.
]
(i) Certified applicators found not able to certify
their required training on the renewal application [in
compliance
] will have twenty (20) days to produce the required
certificates of completion for courses previously attended prior to
the initiation of enforcement proceedings. Certified applicators who
do not meet the recertification requirements will have their licenses
suspended in all deficient categories for one (1) year or until all
deficiencies are corrected, and they must then re-qualify by taking
the certification examination.
§7.135.Criteria and Evaluation of Continuing Education.
(a) The department [staff] shall
evaluate continuing education programs, and assign the number of category
units for each one. No more than one unit will be assigned for any
fifty (50) minutes [hour
] of net actual instruction time.
A course may be approved for a maximum of two (2) consecutive years.
After a maximum of two (2) years, any previously approved course must
have substantial changes in order to qualify for continuing education
credit. The department [staff] will consider
the learning objectives, technical information given, the accuracy
of the information, the relevance of the information to structural
pest control, the qualifications of the instructor, and the amount
of actual training or self-study time devoted to each program in the
process of evaluation. Each continuing education program, including
self-study and electronic courses submitted for approval must contain
the following:
(1) - (6) (No change.)
(b) If the speaker, self-study course provider or electronic provider has not been previously approved, the minimum requirements to qualify as a speaker, course presenter, self-study or electronic course provider are:
(1) (No change.)
(2) five (5) years experience as an applicator certified
by the department [
Texas Structural Pest Control Board]
with a current license in the category to be taught; or
(3) (No change.)
(4) a combination of education, work related training,
and teaching experience which, in the opinion of the
department [Board
], would be equivalent to two of the three requirements
as previously stated.
(c) Any person seeking approval of a training course
must submit the information required at least thirty (30) days prior
to the first day of presentation or first offering of an electronic
or self-study course. The department [Executive Director]
may waive this requirement due to special circumstances. The department
[staff] must evaluate and recommend credits within
thirty (30) days from the date submitted.
(d) Parts of courses, which focus on promotion of products,
policies, or procedures of a company, cannot be included for units.
Courses and instructors may be re-evaluated at the [
Board's] discretion of the department
. Any changes to courses must be submitted to the department [
Board] thirty
(30) days prior to the date of presentation.
(e) The department [Executive Director]
may [direct the staff to
] re-evaluate its approval of a
course or speaker under the provisions of subsection (a) and (b) of
this section.
(f) The department [Board] may
enter into a memorandum of agreement with a state or professional
society or association to recognize the state's pesticide applicator
recertification of the society's professional applicator recertification
or satisfaction of the requirements of this section for commercial
and noncommercial applicator recertification only if:
(1) (No change.)
(2) the agreement reduces duplication of effort and
does not increase the recordkeeping burden of the
department [Board].
(g) A certified applicator may submit the information
required in §7.135(a), (2), (4) and (5) [
§593.24(a), (2), (4) and (5)
] the names of instructors and verification
of attendance for any course attended by the certified applicator
which was not previously approved within thirty (30) days of attendance
of the course. The department [Board staff]
will notify the certified applicator of any units awarded.
(h) - (k) (No change.)
(l) The sponsor must maintain course completion records
for five (5) [two (2)] years and a list of participants
must be forwarded to the department [Board]
within twenty-one (21) days of completion of the training course.
The list [List] must contain name of sponsor, course
title and course number(s), number of units awarded, speaker name
and number(s), name of attendee and license number, if applicable.
(m) A non-refundable annual fee is due for each course taken into consideration for approval. Courses may be considered on a two-year basis if the course presenter submits a fee of $40.00 for each year at the time of submission. Course will be approved for a maximum of two (2) consecutive years. Governmental agencies are exempt from this fee if the course is presented as a part of the legally mandated function of the agency or the main purpose is education.
(n) (No change.)
(o) "Sponsor" means the person, company or organization
that compiles, organizes, writes and/or produces category specific
training courses to be given at a training seminar submitted to the
department [Texas Structural Pest Control Board]
for approval as continuing education program for recertification units.
The sponsor is responsible for establishing procedures for verification
of completion and comprehension of its courses, and for awarding course
completion certificates. The sponsor is [must be]
responsible for the qualifications, competence and performance of
the authors, speakers, presenters, or instructors who produce or present
its courses, and for performance of self-study course examination.
(p) Videotapes, slides or other media presentations
shall not be approved by the department [Board]
unless accompanied by a qualified speaker and course outline, as required
by subsection (a) and (c) of this section or unless approved as a
self-study course under subsection (h) of this section.
(q) Personnel of the department [Texas
Structural Pest Control Board
] are exempt from any fee charged
for a continuing education program if they are monitoring the program
as a part of the duties of their employment.
(r) A course may be approved as a self-study or electronic course if it meets the following additional criteria:
(1) attendees must take an examination designed to
verify their knowledge of the material provided in the course. The
course sponsors must grade the examination and keep records for a
minimum of five (5) [two (2)] years.
(2) (No change.)
(3) the examination for a self-study course must be
proctored by the course provider or person responsible to the course
provider. The examination location must be made available and accessible
to department [Board] staff.
(4) a self-study course examination proctor must be
a certified applicator licensed by the department [Texas
Structural Pest Control Board
]. Anyone serving as an examination
proctor may not take a verification exam for credit while serving
as a monitor. The department [Board] must be
notified to time, physical address, and city two weeks prior to each
self-study course examination. The department [Executive
Director] may waive this requirement upon written request by
the applicant taking the self-study course.
(s) - (t) (No change.)
(u) The department [Executive Director]
may re-evaluate or cancel a currently approved continuing education
course during the calendar year for failure to comply with the elements
of the course as outlined in this section.
[(v) The penalty for a sponsor or speaker
falsifying an application for recertification record can be as much
as $5000. A penalty of $5000 per incident may be imposed to a sponsor
of a continuing education course for the following:]
[(1) Failure to notify the Board of
course presentation as required in subsection (a)(3) of this section.]
[(2) Failure to submit a list of participants
to the Board as required in subsection (l) of this section.]
[(3) Failure to issue a certificate
of completion to each applicator after course completion as required
in subsection (k) of this section.]
[(4) Providing a certificate of attendance
to a certified applicator licensee who did not attend and/or complete
the course requirements.]
[(5) Falsely claiming to have conducted
a continuing education course.]
[(6) Failure to conduct a continuing
education course for the required unit of time.]
[(7) Making a sales promotion during
the instructional period of the continuing education course.]
[(w) Any continuing education provider
who violates this section can have the provider privileges revoked
or suspended.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803257
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4076
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §§7.130, 7.132 and 7.136 is proposed under Occupations Code, §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
Occupations Code, Chapter 1951, is affected by the proposal.
§7.130.Licensing of Persons with Delinquent Student Loans.
§7.132.Right-of-way Certification.
§7.136.Provisional License for Louisiana and Mississippi Certified Structural Pest Control Applicators Affected by Hurricane Katrina.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803256
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4076
The Texas Department of Agriculture (the department) proposes amendments to Chapter 7, Subchapter H, Division 3, §§7.141 - 7.149, 7.153, 7.154 - 7.156; new §7.150; and the repeal of §§7.150, 7.151, 7.157, and 7.158, all concerning regulation of structural pest control. The amendments, repeals and new section are proposed to eliminate unnecessary sections and to make revisions to the structural pest control service regulations to conform to new requirements established under House Bill 2458, 80th Legislative Session, 2007, which transferred the responsibilities of the licensing and regulation of structural pest control to the department and established the Structural Pest Control Service within the department, abolished the Structural Pest Control Board, and made other changes to Occupations Code, Chapter 1951. Changes are made throughout the sections for purposes of clarification and to make the sections consistent with the transfer of the regulation of structural pest control to the department. Section 7.141 is amended to require that a structural pest control license must only be presented for visual inspection to a customer or to the department or Department of State Health Services staff upon request and to allow a license to be laminated as long as the required content is not obscured or modified. Section 7.142 is amended to clarify that a business must inform the department of all licensees and apprentices employed or terminated and where employee training records will be maintained. Section 7.143 is amended to clarify the employee supervision requirements for the responsible certified applicator and to clarify the conditions under which a technician and apprentice may perform pest control services without physical supervision. Section 7.144 is amended to require that the responsible certified applicator is responsible for maintaining pest control records and adds that the license number of the person applying the pesticide be maintained in the use records. The section is also amended to require that use records be maintained for a period of five years due to the change in the inspection frequency from two to four years by HB 2458.
Section 7.145 is amended to incorporate the reference of the contact information for the department. Section 7.146 is amended to provide requirements for the content of and posting of a pest control sign. Section 7.147 is amended to add that the posting sign for residential rental property in excess of 5 rental units be posted in areas of common access for residents, to add that indoor treatment information at an institutional facility extends to residents and that parents, guardians or managing conservators of schools or day care centers may receive prior notice of indoor and outdoor application information upon request. Section 7.148 is amended to clarify the term "adjacent" and to add that the Consumer Information Sheet at an institutional facility extends to residents, and that parents, guardians or managing conservators of schools or day care centers may receive prior notice of indoor and outdoor application information upon request. Section 7.149 is amended to specify the frequency of inspection change from 2 to 4 years for business licensees, except that new business licensees shall be inspected within the first year of operation. The section is also amended to add new language that allows the department to conduct more frequent inspections using a risk-based set of criteria as provided by HB 2458. Section 7.153 is amended to repeal language relating to the designation as a Reduced Impact Pest Control Service. New language allows entities who have previously qualified to be designated as a Reduced Impact Pest Control Service to continue to do so under the provisions in effect prior to the effective date of these rules, for a period not to exceed three calendar years. Section 7.154 is amended to correct the name and address of the regulating agency. Section 7.155 is amended to correct the name and address of the regulating agency and to coordinate requirements for school districts to those in 7.150. Section 7.156 is amended to add new language that provides for disciplinary action for licensees that interfere with the entry or access to property, equipment or records by department personnel in conducting its responsibilities under this chapter. Section 7.150 is repealed in its entirety and a new 7.150 is adopted to specify requirements for school districts to follow in implementing an Integrated Pest Management Program as provided by HB 2458. This section includes new continuing education requirements and training requirements for newly appointed integrated pest management coordinators employed by school districts. Section 7.151, relating to Misapplications, §7.157, relating to Investigation of Complaints, and §7.158, relating to Investigation Reports, are no longer needed because the subjects are covered by other department rule or policy.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed amendments and repeals are in effect, there will be no fiscal implications for state government as a result of enforcing or administering the amended, repealed and new sections, as proposed. There will be a cost to local government as a result of new training requirements proposed in §7.150 for Integrated Pest Management (IPM) Coordinators employed by local school districts. The estimated cost per year for the 156 school districts participating in the program will be: for newly appointed IPM Coordinators, an average cost of $261 for initial training and an average cost of $87 per year for the following four years; and an average continuing education cost of $87 per year for all existing IPM Coordinators.
Mr. Bush also has determined that, for each year of the first five years the proposed amendments and new sections are in effect, the public benefit anticipated as a result of enforcing the amended sections will be updated regulations in regard to keeping of records, posting requirements for areas treated that extend to residents, and establislhment of a risk-based inspection schedule to allow the department to identify and concentrate on higher risk licensees. In regard to proposed new §7.150, relating to Schools, the public benefit will be better trained Integrated Pest Management Coordinators working in school districts, more clearly defined categories of pesticides and application restrictions for each, and an immediate benefit to school districts and students from more clearly defined IPM Guidelines. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the amended sections as proposed. The cost of training and continuing education for newly appointed Integrated Pest Management Coordinators imposed by new §7.150 will be paid by local independent school districts who employ these individuals, and do not affect microbusinesses or small businesses. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed amendments in the Texas Register.
4 TAC §§7.141 - 7.150, 7.153 - 7.156
The amendments to §§7.141 - 7.149 and 7.153 - 7.156 and new §7.150 are proposed under Occupations Code, §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; §1951.207, which authorizes the department to adopt a policy by rule that requires a business holding a structural pest control business license to be inspected by a field inspector at least once in the business's first year of operation and every four years after the first year of operation and provides for additional inspections based on a schedule of risk-based inspections; §1951.212, which authorizes the department to establish standards for an integrated pest management program for the use of pesticides, herbicides, and other chemical agents to control pests, rodents, insects, and weeds at the school buildings and other facilities of school districts and by rule shall establish categories of pesticides that a school district is allowed to apply; §1951.452, which provides that department may require each license holder to make records, as prescribed by the department, of the license holder's use of pesticides; §§1951.153 - 1951.155, which provide for posting of notice of treatments and distribution of consumer information related to structural pest control treatments; §1951.156, which provides that the department shall develop a policy to implement and enforce §§1951.453 - 1951.455; and Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.141.License Display.
(a) [All structural pest control licenses must
be displayed in a conspicuous place at the business of the license
holder. In the case of a nonresident license holder, the license must
be displayed in a conspicuous place at the residence or at the place
of business of the license holder's resident agent.] All structural
pest control licenses must be presented for visual inspection to a
customer or to the department [Board, Texas Department
of Agriculture,] or Department of State Health Services staff
upon request. A licensee must also carry a license card while engaged
in structural pest control work. The license card may be laminated
as long as the content is readable and is not modified in the process
of lamination.
(b) The business license number and branch suffix
letter must be prominently displayed on all vehicles used in the company
business. The business license number and branch suffix
letter shall not be required on unmarked management vehicles.
A management vehicle is defined as a vehicle not used to perform sales,
or provide service to customers. Company vehicles may have more
than one license number and branch suffix letter if a written
request is made to the Director [Board] and
the] Director [Board] approves the request.
The numbers and letters must be permanently affixed to the vehicle
in a prominent place on each front fender and/or front door panel
in no less than two-inch letters in a color which would
contrast to the background color of the truck or vehicle and shall
be designated as: Texas Pest Control License (number). This may be
abbreviated to TPCL (number). Any numbers, letters or symbols that
adhere to vehicle by way of a magnetic device are not considered
to be permanently affixed. [Management vehicle is defined as
a vehicle not used to perform sales, or provide service to customers.]
§7.142.Employee Registration.
(a) It shall be the duty of the business licensee or
certified noncommercial applicator to inform the
department [Board
] in writing of the employment and termination of all licensees
and apprentices.
(b) Notice of employment must be furnished within ten
(10) days of the date of employment and must include the full name
and license number, if applicable, of the employee [home
address of the certified applicator, technician or apprentice],
the date of employment, and the location where the employee
training records will be maintained [, if applicable, the
branch office where the licensee or apprentice will be employed],
and other information as may be required. This notice must be provided
on a form as prescribed by the department [Texas Structural
Pest Control Board].
[(c) When employing a certified
applicator or technician, the business licensee or certified noncommercial
applicator must obtain from the Board a license for such certified
applicator or technician. Any registration of license fees paid for
technicians and apprentices will not be refundable or transferable.]
(c) [(d)] Notice of termination
must include the employee name, license number and date of termination,
and be provided to the department [Texas Structural
Pest Control Board] within ten (10) days of the date of termination.
§7.143.Employee Supervision.
(a) The responsible certified applicator is responsible
for the supervision and training of all licensed or registered personnel
and the handling, storage and [to supervise the]
use of pesticides and devices by all employees of a pest
control business.
(b) In order to provide adequate supervision,
the responsible certified applicator or a designated certified
applicator must be physically present to give personal instructions
to a technician or apprentice at least three (3) days a week [with
the technician or apprentices being supervised]. The technician
or apprentice must [reside within the normally accepted commuting
area of the licensed business office or work location and must]
personally report to a certified applicator at least three (3) days
a week to receive instructions.
[(c) Employees may not
schedule and perform pest control work unless instructions for the
type of work to be done are obtained from a certified applicator.]
(c) [(d)] Apprentices must not
perform pest control services without physical supervision until they
have completed all classroom training, required on-the-job training
, have demonstrated proficiency [required] and
verification has been entered [verified such completion
] in their records by a licensed applicator.
(d) [(e)] The business license
holder , and the responsible certified commercial applicator or
certified noncommercial applicator shall be [is]
responsible for actions of employees when they are performing pest
control operations [services].
§7.144.Pest Control Use Records.
(a) The responsible certified applicator [
business licensee] or, in the case of the certified noncommercial
applicator, the certified applicator shall ensure that [
must keep and maintain a] correct and accurate
records [record
] of all uses of pesticides and pest
control devices registered with the United States Environmental Protection
Agency and the department are maintained [Texas Department
of Agriculture or approved by the Board under §599.1 of this
title] for a period of five (5) [two (2)]
years. Said records must be kept on the premise of the business licensee
or, in the case of a certified noncommercial applicator, the employer's
premises. The records must include, but are not limited to:
(1) - (2) (No change.)
(3) total amounts of each pre-formulated pesticide
applied where the percentage of active ingredient was not changed [
as formulated by the manufacturer or devices used];
(4) device used and total number of each device;
(5) [(4)] for manufacturer's
formulations that are mixed with water or other material, the mixing
rate and total amount of material applied or the percent of active
ingredient(s) and total amount of material applied;
(6) [(5)] purpose for which the
pesticides or devices were used or target pest;
(7) [(6)] date the pesticides or devices were used;
(8) [(7)] service address where
the pesticides and devices were used, except that for utility pole
re-treatments, records shall be kept for the location of each pole
treated; and
(9) [(8)] [and] the name,
and license number of the person(s) applying pesticides
or using devices or name of the technician or apprentice and
license number of the supervising certified applicator if the technician
or apprentice have not been assigned a license or registration number.
(b) If a physical device [approved by the Board]
is used, the appropriate unit of measurement (square foot, cubic foot,
or linear foot) of the physical device must be recorded and a diagram
describing the installation will be provided.
(c) These records shall be made available to the
department [Board] or its authorized agents
upon written or verbal request [
in accordance with the Texas Structural Pest Control Act].
§7.145.Contracts.
(a) Each written contract, warranty, service agreement,
termite disclosure document or guarantee of a business regulated by
the department [Texas Structural Pest Control Board]
must contain [
the name, address and telephone number of the Board]
on the face of the document[. It must also include] the
business name, business license number and letter, location address
or mailing address, telephone number in 12 point type or larger and
the statement "Licensed and regulated by: Texas Department of
Agriculture, P.O. Box 12847, Austin, TX 78711-2847, Phone (866) 918-4481,
(FAX) 888-232-2567" in 10 point type or larger. [under
the Texas Structural Pest Control Act.]
(b) (No change.)
(c) The requirement in subsection (a) and (b) of this
section must be legible [
and printing shall be in at least eight-point type].
§7.146.Pest Control Sign.
(a) (No change.)
(b) A pest control sign must be provided by the licensee to the employer or building manager at least 48 hours prior to a planned indoor treatment at a workplace. A workplace is defined as any nonresidence structure with three or more full-time paid employees which is treated by a licensed business or a certified noncommercial applicator.
(c) A pest control sign must be provided by the licensee to the chief administrator , IPM Coordinator or building manager at least 48 hours prior to a planned indoor treatment at a hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, school or educational institution, or day-care center , other than a restaurant, retail food, or food service establishment. This requirement does not apply for new construction on school campuses where students have not yet been introduced.
(d) (No change.)
(e) A person may not be considered in violation of
this section if the space to be treated is vacant, unused and unoccupied
at the time of treatment, or if extenuating circumstances require
an emergency [unplanned] treatment.
(f) Each pest control sign must be at least 8 1/2 inches
by 11 inches in size and [must] contain the
required [following
] information with the first line in a minimum of 24-point
type (one-fourth inch) and all remaining lines in a minimum of 12-point
type (one-eighth inch). The addition of advertising and logos to the
sign [Notice of Pest Control Treatment
] is permissible
to the extent that such advertising does not interfere with the purpose
of public notification of a pest control treatment. A standard sign
in Spanish is available from the department [Board]
upon request. The sign shall [should] appear
in a [the following] format approved by
the department. The text and format of the sign is available on the
Structural Pest Control Service website at: http://www.tda.state.tx.us/spcs/,
or by contacting the Texas Department of Agriculture at P.O. Box 12847,
Austin, TX 78711-2847, Phone (866) 918-4481.
[Figure: 22 TAC §595.6(f)]
(g) In the space marked "For more information call or contact," the telephone number where information on the pesticide(s) used may be obtained must be listed, such as the apartment manager, building manager, IPM Coordinator or pest control operator.
(h) In the space marked "phone number of hotline for pesticide information," the following wording must be used: National Pesticide Information Center 1-800-858-7378.
(i) If a workplace has its own pesticide information center, the workplace center telephone number may be listed rather than the information in subsection (h) of this section.
(j) The pest control sign shall show one of the following:
(1) the intended date of application or a range of dates of intended treatment not to exceed three (3) days; or
(2) the schedule for a regularly scheduled application. Example: the 3rd Thursday of each month.
(k) Any application scheduled or made outside of the posted dates shown in subsection (j)(1) or (j) (2) of this section shall be reposted and notifications shall be made at least 48 hours prior to the intended treatment unless the application is declared an emergency treatment as specified in §7.147 of this title (relating to Consumer Information Sheet).
§7.147.Consumer Information Sheet.
(a) For an indoor treatment at a private residence
that is not a rental property the certified applicator or technician
must give the consumer [pest control] information
sheet to the owner of the residence before each treatment begins,
or, if the owner is not available at the time treatment begins, leave
the sheet in a conspicuous place in the residence.
(b) For indoor treatment at a residential rental property
with less than five (5) rental units, [
including a single family,
duplex, triplex or four-plex rental property,] the certified
applicator or technician must leave the consumer [pest control
] information sheet in the residence at the time of each treatment.
(c) For an indoor treatment at a residential rental
property with five (5) or more rental units, the certified applicator
or technician must supply the consumer [pest control]
information sheet to the owner or manager of the complex. The certified
applicator or technician must also supply the owner or manager with
a pest control sign. The owner or manager or an employee or agent
of the owner or manager, other than the certified applicator or technician,
must notify residents who live in [the] direct or adjacent
areas of the treatment by:
(1) posting the sign specified in §7.146 of this title (relating to Pest Control Sign) in an area of common access of residents at least 48 hours before each planned treatment; or
(2) (No change.)
(d) For an indoor treatment at a workplace, the certified
applicator or technician must supply the
consumer [pest control
] information sheet and a pest control sign to the employer
or the building manager. The employer or the building manager or an
employee or agent of the owner or manager, other than the certified
applicator or technician, must notify [the] individuals
[who work] at the workplace of the date of the planned
treatment by:
(1) posting the sign in an area of common access that
the employees [individuals] are most likely
to see [check on a regular basis] at least 48
hours before each planned treatment; and
(2) providing the consumer information sheet to any individual working in the building on request of the individual if the request is made during normal business hours.
(e) For an indoor treatment at a building that is a
hospital, nursing home, hotel, motel, lodge, warehouse, food-processing
establishment, school or educational institution, or a day-care center,
the certified applicator or technician must supply the
consumer [pest control
] information sheet and a pest control sign to the
chief administrator , IPM Coordinator or building manager.
The chief administrator , IPM Coordinator or building manager
must notify the individuals who work , reside in the building
of the treatment by:
(1) posting the sign in an area of common access that
the individuals are likely to check [on a regular basis]
at least 48 hours before each planned treatment; and
(2) providing the information sheet to any individual working , residing in the building on request of the individual.
(f) Personnel at a school or educational institution
or a day-care center are required to inform the parents, guardians,
or managing conservators of the children attending the school or day-care
center, at the time the child is registered, that: [;]
(1) the school, institution, or center periodically applies pesticides indoors and outdoors; and
(2) prior notice and information on the application of the pesticides is available from the school, institution, or center at the written request of the parents, guardians, or managing conservators.
(g) For the purpose of this section, if the primary
purpose of a perimeter treatment of a premises is to augment or supplement
an indoor treatment, or is performed in lieu of an indoor treatment
for a particular pest or pests by preventing the entry or re-entry
of pests into the interior of the premises, then the perimeter treatment
shall be considered an indoor treatment. [For the purpose
of this section, treatment is an indoor treatment even though the
treatment may include a perimeter treatment of the building if the
primary purpose of the treatment is to treat the inside of the building.]
(h) The department's [official Texas
Structural Pest Control Board] Consumer Information Sheet must
be used. Copies of the Consumer Information Sheet are available from
the department [Board] in English and Spanish
and are available on the Structural Pest Control Service website at:
http://www.tda.state.tx.us/spcs/, or by contacting the Texas Department
of Agriculture at P.O. Box 12847, Austin, TX 78711-2847, Phone 866-918-4481.
The department's Consumer Information Sheet may be copied and used
in accordance with this section. [and must read as follows:]
[Figure: 22 TAC §595.7(h)]
(i) The pre-notification requirements of subsections
(c), [and] (d) and (e) of this section are
waived if the customer and certified applicator sign a statement attesting
to the fact that an emergency exists which requires immediate treatment.
If such an emergency exists, the Consumer Information Sheet must be
provided by the licensee at the time of treatment. The statement must
be kept on file with the pest control use records [at the business
license location. Certified noncommercial applicators may attest to
an emergency by signing a statement attesting to the emergency and
must keep the statement on file with the pest control use records
at their place of employment]. If the customer is not available
to sign a statement at the time of treatment, that shall be recorded
in the use records along with the customer's name and telephone
number [must be noted in the pest control use records].
An emergency is defined as an imminent hazard to health
or property or an imminent infestation . An [and]
emergency treatment is limited to the localized area of the emergency.
(j) Licensees holding the lawn and ornamental or weed
categories may use [the following] text provided by
the department in place of that required in subsection (h) of
this section. [:] This text is available
on the Structural Pest Control Service website at: http://www.tda.state.tx.us/spcs,
or by contacting the Texas Department of Agriculture at P.O. Box 12847,
Austin, TX 78711-2847, Phone (866) 918-4481.
[Figure: 22 TAC §595.7(j)]
(k) Any consumer may waive receipt of the Consumer
Information Sheet for multiple treatments by signing or initialing
below the following statement: "I have received one copy of the Consumer
Information Sheet for all treatments to be provided as a part of this
pest control service agreement. I may receive additional copies at
any time upon request to the service provider, and will receive any
updates to the Consumer Information Sheet which may occur." A
licensee [pest control operator] must keep a copy of this
statement in the pest control use records for each customer covered
by the agreement.
§7.148.Responsibilities of Unlicensed Persons for Posting and Notification.
(a) Owners or managers of residential rental properties with five (5)or more units must either:
(1) post a pest control sign at least 48 hours before the planned treatment in an area of common access to residents; or
(2) distribute the consumer information sheet to each unit planned to be treated and each unit adjacent to those planned to be treated at least 48 hours before the planned time of treatment. Adjacent means having a common wall, ceiling, or floor and any area sharing a common ventilation system . Area of common access means a common area that an individual is likely to check on a regular basis, such as building entranceway, mailboxes, laundry rooms, beverage machines, building bulletin boards, etc.
(b) Employers, building managers, IPM Coordinators and
chief administrators of workplaces, hospitals, nursing homes, hotels,
motels, lodges, warehouses, food-processing establishments, school
or educational institutions, and day-care centers must post a pest
control sign in an area of common access at least 48 hours prior to
each planned treatment and provide a Consumer Information Sheet to
any individual working or residing in the building at the
request of that individual. Area of common access means a common area
that an individual is likely to observe [check]
on a regular basis, such as building entranceway, mailboxes, laundry
rooms, beverage machines, building bulletin boards, etc.
This requirement does not apply to new construction on school campuses
where students have not yet been introduced.
(c) Chief administrators or the IPM Coordinator of schools
[school] or educational institutions and
day-care centers must notify the parents or guardians of children
attending the facility in writing that pesticides are periodically
applied indoors and outdoors, and that information on the
times and types of applications and prior notification is
available upon request. Such notification must be made at the time
of the child's registration.
(d) The 48 hour pre-notification requirements of subsections
(a) and (b) of this section may be waived if an emergency
exists and the customer and certified applicator sign a statement
attesting to the fact that an emergency exists that requires immediate
treatment. The statement must be kept on file with the pest control
use records at the business license location. [If the customer
is not available to sign a statement at the time of treatment, the
customer's name and telephone number must be noted in the pest control
use records.] Certified noncommercial applicators may attest
to an emergency by signing a statement attesting to the emergency
and must keep the statement on file with the pest control use records
[at their place of employment]. An emergency is defined
as an imminent hazard to health or property or an imminent infestation
and emergency treatment is limited to the localized area of the emergency.
(e) A person may not be considered in violation of this section if a pest control sign is removed by an unauthorized person or if the space to be treated is vacant, unused and unoccupied at the time of treatment.
[(f) A person found in
violation of this section is subject to the administrative penalty
provisions of the Texas Structural Pest Control Act.]
§7.149.Inspections.
(a) Each licensed pest control business shall
be inspected at least once in the business's first year of receiving
a license and at least every four years thereafter. School districts
will be inspected at least once every five (5) years. The department
may waive these requirements due to staff availability, budgetary
constraints, or inspection trends or operational efficiencies. Businesses
and school districts demonstrating a lack of compliance with department
rules may be inspected more frequently than every four years for businesses
and every five years for districts based on risk using the following
elements of consideration: [Each licensed pest control
business shall be inspected at least one time every two years. Businesses
showing a lack of compliance with Board law or rules may be inspected
more frequently. The Executive Director may waive this requirement
due to emergency. An emergency in this section is defined as a shortage
of staff availability due to complaint investigations, personnel shortages,
or budgetary constraints.]
(1) prior violations;
(2) prior inspection results;
(3) type and nature of business;
(4) size and location of a school district;
(5) prior complaints.
(b) Risk-based inspections will be scheduled based on the following criteria:
(1) High Risk. Inspection schedule: not later than 180 days. This includes businesses or districts with a history of engaging in pest control operations or practices that could be injurious to public health, safety or the environment.
(2) Moderate Risk. Inspection schedule: not later than one (1) year. This includes businesses or districts with a substantiated complaint history and a history of significant lapses in licensing, record keeping and insurance.
(3) Concerned Risk. Inspection schedule: not later than three (3) years. This includes businesses or districts with a history of complaints whether substantiated or not and repeat non-compliance of an administrative nature.
>[(b) If the Board or the
Executive Director determines that a misapplication of pesticides
has occurred on the premises of a consumer, the consumer and the business
license holder or applicator must be notified within 20 calendar days
of the making of this determination. Records of any health injuries
diagnosed by a licensed physician and property damage caused by any
misapplication by a licensee which is found by the Board shall be
kept in a form reportable to the Department of State Health Services
or any institution of higher education upon their request.]
[(c) Procedures for the
conduct of an investigation shall be contained in the Texas Structural
Pest Control Board Investigations Manual, which shall contain all
requirements of the Texas Structural Pest Control Act.]
§7.150.Schools.
(a) School Districts. Each school district shall establish, implement and maintain an Integrated Pest Management (IPM) Program that provides for high-quality pest control using the least hazardous methods necessary to protect district students, faculty, visitors, facilities and grounds with the least cost and environmental impact. IPM is an ecological approach to pest management in which all available and compatible techniques are used to manage pest populations at levels sufficient to maintain a safe and healthy learning environment. The school district is responsible for the IPM Coordinator(s) compliance with these regulations. The IPM program shall meet the essential elements described in these rules.
(1) The IPM program must be established by policy adopted by the school board and a copy maintained in both central districts files and files of the IPM Coordinator(s). The policy must be based on the generally accepted best management practices of IPM, which include, but are not limited to:
(A) effective strategies that rely on the best combination of pest management tactics that are compatible with human health and environmental protection;
(B) proper identification of pest problems;
(C) monitoring programs to determine when pests are present or when pest problems are severe enough to justify corrective action;
(D) setting threshold pest levels to define unacceptable levels of pest presence;
(E) the use of non-chemical management strategies, methods and techniques such as pest-proofing and building maintenance, as first option whenever practical and feasible; and
(F) preferential use of the least-toxic chemical controls when pesticides are necessary.
(2) Each school district shall appoint an IPM Coordinator(s) to implement the school district's IPM policy. No later than 90 days after the district designates or replaces an IPM Coordinator(s), the district must report to the department the newly appointed coordinator's name, address, telephone number and e-mail address and the effective date of the appointment. A district that appoints more than one IPM Coordinator shall designate a Responsible IPM Coordinator who will have overall responsibility for the IPM program and provide oversight of subordinate IPM Coordinators regarding IPM policy and decisions.
(3) Each school district must employ or contract with a licensed applicator, who may, if an employee, also serve as the IPM Coordinator(s).
(4) Each school district shall ensure a procedure is in place to provide prior notification of pesticide applications in accordance with this chapter, to individuals who request in writing to be notified of such applications. Telephonic, written or electronic notification will meet this requirement.
(b) IPM Coordinator(s). The IPM Coordinator(s) shall be responsible for the proper and full implementation of the District IPM Program and compliance with these regulations, and;
(1) the IPM Coordinator(s) must successfully complete a department approved IPM Coordinator training course within six months of appointment.
(2) the IPM Coordinator(s) must obtain at least six hours of department approved IPM continuing education units credit every three years, beginning the effective date of this rule or the date of designation, whichever is later.
(3) ensure that all IPM Program records including policy changes, work orders, inspection reports, complaints, use of non-chemical management strategies, and records of pesticide applications are maintained for a period of five (5) years and presented to a department inspector upon request.
(4) the IPM Coordinator(s) shall oversee and be responsible for:
(A) coordination of pest management personnel, ensuring that all school employees who perform pest control, including those employees authorized to perform incidental use applications, have the necessary training, are equipped with the appropriate personal protective equipment, and have the necessary licenses for their pest management responsibilities;
(B) maintaining facility inspection reports and a prioritized list of structural and landscape improvements to ensure that exclusion areas are addressed when resources are available.
(C) working with district administrators to ensure that pest control contract proposal specifications are compatible with IPM principles and that pest control contractors work under the guidelines of the district IPM policies;
(D) ensuring that all pesticides used on district property have current pesticide labels except as provided for in these rules, that copies of Material Safety Data Sheets and pesticide labels are maintained in the IPM files and are made available for public viewing upon request;
(E) authorizing and ensuring least toxic, emergency treatments in consultation with the certified applicator as provided for under these rules;
(F) handling requests and inquiries relating to pest problems, and maintain records of any pesticide related complaints;
(G) informing school district administrators and other personnel about IPM requirements (e.g., training requirements, pre-notification and posting requirements, sanitation, re-entry intervals, and pesticide storage); and
(H) approving all pesticide applications, including the approval of emergency applications at buildings and on district grounds in accordance with these rules.
(I) Maintaining a copy of pesticide use records in the IPM files when pesticide applications are made by contracted pest control services and not by district personnel.
(c) The certified applicator or licensed technician shall:
(1) use non-chemical management strategies, methods and techniques as first consideration;
(2) apply only properly labeled pesticides, specific for the target pest, except as provided in these rules;
(3) recommend or oversee structural pest management technical needs of the district by following the district's IPM policy and department regulations;
(4) obtain written approval from IPM Coordinator(s) for the use of any pesticides in the yellow or red categories;
(5) document and forward complaints relating to pest problems, IPM activities or pesticides to the IPM Coordinator(s);
(6) consult with the IPM Coordinator(s) concerning the use of control measures in buildings and grounds;
(7) ensure that all pest control activities are consistent with school district's written pest management policy.
(d) Pesticide Use In School Districts:
(1) Pesticide applications may be made on district property only after the use of non-chemical pest management strategies have been considered.
(2) Pest control signs shall be posted at least 48 hours prior to a pesticide application in building and at least 12 hours prior to application on district grounds and will remain posted during the application and until the end of any required re-entry time limit.
(3) Pesticides used on school property shall be mixed outside of student occupied areas of building and grounds.
(4) Students and personnel non essential to the application shall not be allowed in area(s) where pesticides are applied at the time of application or during the re-entry time limits in a building or school grounds except as otherwise stated in this section.
(e) Pesticide category and application restrictions:
(1) Green Category Pesticides.
(A) Definition: general use pesticides which may have a Caution signal word or no signal word (EPA toxicity categories III and IV) that's active ingredients are derived from borates; silica gels; diatomaceous earth; nonvolatile insect and rodent baits in tamper resistant containers; pesticidal soaps; gels, paste or baits for crack and crevice treatment only; microbe-based pesticides; pesticides made with essential oils but without synthetic pyrethroids, with 5% synergists or less.
(B) Approval for Use: Green category pesticides do not require prior written approval unless such approval is required in the district's IPM policy and may be applied at the licensee's discretion.
(C) Restrictions: Green category pesticides may not be applied if students are present in the room or if outdoors, within 50 feet at the time of treatment. Re-entry into the area is permitted as soon as the application is complete, or after the specified re-entry time on the pesticide label, whichever interval is longer.
(2) Yellow Category Pesticides.
(A) Definition: all other general-use pesticides bearing a CAUTION signal word not described in paragraph (1) of this subsection.
(B) Approval for Use: certified applicators or licensed technicians must receive and file in application records, prior written approval from the IPM Coordinator for the application of yellow category pesticides.
(C) Restrictions:
(i) yellow category pesticides that are formulated as liquids, dusts or aerosols or that pose risk of volatizing, splashing, or drifting from the application site, may be applied in school buildings if students are not present and are not expected to be present in the same room for the next 6 hours. Re-entry of the treated area may be granted after 6 hours or after the spray has dried or after the specified re-entry time on the pesticide label, whichever interval is longer.
(ii) yellow category pesticides may be applied to outdoor school grounds if students are not present within 50 feet of application site and the area is secured from re-entry for no less than 6 hours and the spray has dried or the specified re-entry time on the pesticide label, whichever interval is longer.
(iii) treated areas must be clearly marked and secured using a locking device, a fence or other practical barrier or monitored to keep individuals out of the secured area until the allowed re-entry time.
(3) Red Category Pesticides.
(A) Definition: Any EPA labeled pesticide bearing a Warning or Danger signal word.
(B) Approval for Use: The use of red category pesticides on district properties requires written approval from the responsible IPM Coordinator. The responsible IPM Coordinator must receive and approve written justification from the certified applicator or licensed technician prior to granting approval for the use of red category pesticides.
(C) Restrictions:
(i) Red category pesticides may be applied in school buildings only if students are not present and are not expected to be present in the room or treated area within the next 12 hours following the application, or the specified re-entry time on the pesticide label, whichever interval is longer.
(ii) Red category pesticides may be applied to outdoor school grounds if students are not present within 100 feet of application site and the area is secured from re-entry in accordance with these rules for no less than 12 hours, or the specified re-entry time on the pesticide label, whichever interval is longer.
(iii) Treated areas must be clearly marked and secured using a locking device, a fence or other practical barrier or monitored to keep individuals out of the secured area until the allowed reentry time.
§7.153.Reduced Impact Pest Control Service.
Business licensees who have received and are using the Reduced Impact Pest Control Service designation may continue to do so under the provisions in effect prior to the adoption of this section for a period not to exceed three (3) calendar years from the date of the effective date of this section.
[(a) A business may qualify
to use the Reduced Impact Pest Control Services designation by having
all certified applicators who will be supervising the service attend
a continuing education course approved for Reduced Impact Service.
All licensed employees will have verifiable training from a certified
applicator who has attended the course and is approved to provide
such training.]
[(b) The goal of Reduced
Impact Pest Control Services is to effectively control pests and to
provide customer satisfaction while seeking to minimize individual's
exposure to chemical pesticides through the application of Integrated
Pest Management principles.]
[(c) A business using the
Reduced Impact Pest Control Service designation must meet the following
requirements;]
[(1) The Board approved Consumer Information Sheet must be used and it must be provided at the time of inspection.]
[(2) An inspection must be performed prior to any pest control treatment. The inspection report must include:]
[(A) A description of all areas inspected.]
[(B) A description of conditions conducive to infestation and/or evidence of active infestation with recommendations for non-chemical solutions to those problems.]
[(C) A description of any treatment performed and the reason for the treatment recommendations and reasons for chemical application must be consistent with the goal of Reduced Impact Pest Control Services. Customer request is an appropriate reason, provided the inspection report informs the customer of practical and feasible alternatives which would result in less exposure to chemical pesticides. For each application recommended, specify whether a target pest is actually present or the application is a preventative one.]
[(3) The customer must provide, in writing in the contract, authorization for treatment and the names of any specific pesticides which are not to be used or if no pesticides are to be used in providing service. This must be done prior to the initiation of service. This information must be kept in the pest control use records.]
[(4) A copy of the written inspection report must be provided at the time of each service and a copy must be kept in the pest control use records.]
[(d) Notwithstanding §595.13
of this title (relating to Advertising), the following words may be
used in a advertisement for services by a business authorized to provide
Reduced Impact Service; Reduced Impact Service; Reduced Impact Methods;
Reduced Impact Techniques; Reduced Risk Methods; Reduced Hazards;
Reduced Exposure; Reduced Impact Specialist; Environmentally Sensitive
Services; Environmentally Sensitive Programs; Environmentally Friendly;
Environmentally Sound; Environmentally Aware; Environmentally Responsible
or any other words descriptive of the service which are not specifically
listed as prohibited in §595.13 and which can be substituted
by the business's adherence to the goals of Reduced Impact Service.]
[(e) A business licensee
and employees of a business licensee who are found to be in violation
of any provisions of this section may, in addition to all other applicable
sanctions, lose the Reduced Impact authorization held by the business
licensee.]
[(f) Licensees holding
the Reduced Impact authorization and licensed in the lawn and ornamental
or weed categories may use the following text in place of that required
in §595.7.]
[Figure: 22 TAC §595.14(f)]
§7.154.Incidental Use Situation Fact Sheet.
(a) The [Texas Structural Pest Control Board]
Incidental Use Fact Sheet must contain the following text: "This fact
sheet must be distributed to all city, county, and state employees
who apply general use pesticides and are not licensed by the Texas
Department of Agriculture [and do not have a Texas Structural
Pest Control Board noncommercial applicator's or technician license].
The fact sheet and instruction must be provided upon initial employment
and thereafter must be available as needed. These general use pesticides
include insecticides, herbicides, fungicides and rodenticides and
involve applications made both inside and outside of structures. Incidental
Use is not intended for long term [terms] or
extensive pest control measures. Where long term pest control is required,
a trained, licensed person is to make the applications. Incidental
Use is defined as "A pesticide application on an occasional, isolated,
site-specific basis that is incidental to the primary duties of an
employee and involves the use of general use pesticides after instruction
as provided by rules adopted by the department [Texas
Structural Pest Control Board]". Examples of Incidental Use
Situations are treating fire ants in a transformer box, or treating
of ants by a janitor or clerical employee in a break area. Incidental
is defined as site-specific and incidental to the employee's primary
duties. If it is a part of the employee's primary duty to make applications
of pesticides, that employee is required, by law, to obtain [
either] a [Texas Structural Pest Control Board license or Texas Department
of Agriculture] license, depending on the location and type
of application. In all cases of incidental use, the employee should
use the least hazardous, effective method of controlling pests. If
chemicals are to be utilized, they must be applied in strict accordance
with manufacturer labels of "General Use" products being used. Applications
made inconsistent with the label requirements of the general use product
may result in penalties being assessed against the individual and/or
the certified noncommercial applicator or technician responsible.
"Incidental Use Situation" applications of pesticides are regulated
by the department [Texas Structural Pest Control Board].
If you have any questions or comments, contact the department [
Board] at (512) 305-8250; written inquiries may be addressed
to the Texas Department of Agriculture [Structural
Pest Control Board] , P.O. Box 12847 [1927],
Austin, Texas 78711-2847 [78767-1927]." [
Copies are available from the Texas Structural Pest Control Board.]
(b) - (d) (No change.)
§7.155.Incidental Use For Schools.
(a) The [Texas Structural Pest Control Board]
Incidental Use Situation For Schools Fact Sheet must contain the following
text: "This fact sheet must be distributed to all employees of school
districts who apply general use Green Category [List]
products [(or Yellow List products specific to bee and wasp applications)
] and are not licensed by the Texas Department of Agriculture
[
and do not have a Texas Structural Pest Control Board noncommercial
applicator's or technician license]. The fact sheet, instruction
and training must be provided upon initial employment by the school
district's IPM Coordinator, and thereafter must be available as needed.
These [general use] Green Category [List
] pesticides include insecticides only and involve applications made
both inside and outside of structures. Incidental Use is not intended
for long term or extensive pest control measures, rather emergency
situations where safety of students or workers is at risk and there
is insufficient time to contact a licensed applicator. Where long
term pest control is required, a trained, licensed person is to make
the applications. Examples of Incidental Use situations are treating
fire ants in a transformer box or treatments for bees or wasps as
a non-routine application to protect children or personnel. Incidental
Use is defined as site-specific and incidental to the employee's primary
duties. If it is part of the employee's primary duty to make applications
of pesticides, that employee is required, by law to obtain [
either] a [Texas Structural Pest Control Board license or
] Texas
Department of Agriculture license, depending on the location and type
of application. In all cases of Incidental Use, the employee should
use the least hazardous, effective method of controlling pests. All
applications to schools or school grounds must be in compliance with
school district IPM policies. If chemicals are utilized, they must
be applied in strict accordance with manufacturer labels of "General
Use" products [on the Green or Yellow List products
] being used. Applications made inconsistent with the
department [Texas Structural Pest Control Board
] Law and Regulations, or
applications made inconsistent with the label requirements of the
[general use] product may result in
an enforcement action [penalties] being
taken [assessed
] against the individual and/or the certified applicator or
technician responsible. "Incidental Use Situation" applications of
pesticides are regulated by the Texas Department of Agriculture
[Structural Pest Control Board
]. If you have any questions or comments, contact the
Department of Agriculture, phone number 1-866-918-4481 or [
Board at (512) 305-8250 inquiries may
be addressed to the Texas Structural Pest Control Board] P.O.
Box 12847 [1927], Austin, Texas
78711-2847 [78764-1927]. " [
Copies are available from the
Texas Structural Pest Control Board.]
(b) - (c) (No change.)
(d) Pest control use records must be kept by IPM Coordinator(s)
for all Incidental Use applications including reason for application
and justification for emergency for five (5) [two (2)
] years.
(e) Incidental Use in school districts is limited to
insecticides and rodenticides that are Green Category [
and Yellow list] products.
§7.156.Entry and Access.
(a) Authorized employees of the department [Board
] may conduct investigations and inspections of
structural pest control activities involving any person in this state
to determine compliance with the Act and department [
Board] rules.
(b) In conducting [these] investigations,
the employees may[, with proper permission]:
(1) enter the premise of a licensee, business or facility during normal business hours to examine records, question witnesses, inspect pesticides and equipment use for pest control, and collect samples;
(2) enter premises where individuals [licensees
] are performing or are suspected of performing pest
control operations to inspect the use of pesticides and devices, check
employee credentials, collect samples, identify pests, and inspect
equipment; and
(3) on public property, inspect pesticides and equipment and question employees of persons conducting or suspected of conducting structural pest control activities.
(c) Any licensee who interferes with an employee of the department attempting to enter or access property, equipment or records for purposes of this chapter shall be subject to disciplinary action up to and including revocation of licenses and/or registrations.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803258
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
4 TAC §§7.150, 7.151, 7.157, 7.158
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §§7.150, 7.151, 7.157, and 7.158, is proposed on under Occupations Code, §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators, and certified noncommercial applicator's conducting structural pest control activities; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.150.Schools.
§7.151.Misapplications.
§7.157.Investigation of Complaints.
§7.158.Investigation Reports.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803259
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) proposes amendments to Chapter 7, Subchapter H, Division 4, §§7.161 - 7.163, relating to structural pest control. The amendments are proposed to make revisions to the structural pest control service regulations to conform to new requirements established under House Bill 2458, 80th Legislative Session, 2007, which transferred the responsibilities of the licensing and regulation of structural pest control to the department and established the Structural Pest Control Service within the department, abolished the Structural Pest Control Board, and made other changes to Occupations Code, Chapter 1951. Sections 7.161 - 7.163 are amended to change the name and address of the oversight agency from the Board to the department, to correct citations to rules and laws and to clarify procedures for granting and setting of hearings on appeals of a revoked or suspended license is the Commissioner of Agriculture.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections, as amended.
Mr. Bush also has determined that, for each year of the first five years the proposed amendments are in effect the public benefit anticipated as a result of administering and enforcing the amended sections will be providing updated references and citations. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the amended sections as proposed. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed amendments in the Texas Register.
The amendments to §§7.161 - 7.163 are proposed under Occupations Code, §1951.501, which establishes disciplinary powers of commissioner relating to structural pest control; §1951.502, which provides that the department shall establish procedures under which a person may appeal the agency's notice of suspension and request a hearing; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.161.Grounds for Revocation, Suspension, Penalties, Reprimanding, Refusal to Examine, Refusal to Issue or Renew Licenses.
Any such action may be accomplished by the department [
a vote of the Board,] after notice and hearings, as provided
for by Occupations Code, Chapter 1951 [Texas Civil Statutes
] and the Administrative Procedures [Procedure
and Texas Register] Act Texas Government Code, Chapter 2001
. No revocation, suspension, annulment, or withdrawal of
any license is effective unless prior to the institution of
department [agency] proceedings, the
department [agency
] gave notice by personal service or by [
registered or]
certified mail to the licensee of facts or conduct alleged to warrant
the intended action, and the licensee was given the opportunity to
show compliance with all requirements of law for the retention of
the license. The following are grounds for revocation, suspension,
penalties, reprimanding, refusal to examine, and refusal
to issue or renew licenses:
(1) - (2) (No change.)
(3) engaging in an advertising practice prohibited
in §7.152 [Section 595.13 ] of this title
(relating to Advertising); advertising services which the licensee
is not authorized to provide; engaging in false, misleading or deceptive
acts or practices; or advertising in an unauthorized category;
(4) has been convicted or has pleaded guilty to a violation of
the [this] Act as amended, or any regulation
adopted hereunder, or any of the laws or regulations of this state,
another state, or the United States, relating to the licensing of
pest control operators and pesticide use;
(5) has been convicted of or has pled guilty to a felony
or misdemeanor involving moral turpitude, under the law of this state
and other states of the United States within seven years prior to
the date of application, provided that when the applicant is a defendant
in any action in which the defendant is charged with a felony or a
misdemeanor involving moral turpitude, the department [
Board] may delay processing of the application until final disposition
of any such criminal proceedings;
(6) has a criminal background as explained in
§7.129 [§593.9
] of this title (relating to Licensing
of Persons with Criminal Backgrounds);
(7) failure of the licensee to supply the
department [board
] or its authorized representative, upon request, with
true and accurate information concerning methods and materials used,
or work performed, or other information essential to the public health
and welfare and to the administration and enforcement of
the [this] Act;
(8) - (12) (No change.)
(13) failure to make records of pesticide use and keep
them available as required by the Act, as amended, and
§7.144 [§595.4
] of this title (relating to Pest Control Use Records);
(14) failure of business licensee to notify the
department [board
] when a certified applicator or apprentice leaves
their employment;
(15) (No change.)
(16) failure to print in proper size type the address
and telephone number of the department [Board]
and the statement that the business is licensed and regulated
by the Texas Department of Agriculture [board has jurisdiction
over individuals licensed by the board and the Act];
(17) failure of business licensee or certified noncommercial
applicator to notify the department [Board]
of a change of address of their company or organization;
(18) failure of a business licensee or certified noncommercial
applicator to give the department [Board] an
address where licensee may be located;
(19) (No change.)
(20) failure of certified applicator licensee, technician
or apprentice to notify the
department [Board]
when he or she moves or changes employers;
(21) - (25) (No change.)
(26) failure to comply with a final order of the
Commissioner [Texas Structural Pest Control Board];
(27) Permitting, aiding, abetting or conspiring with
a person to intentionally violate or circumvent a law or regulation
enforced by the department [Texas Structural Pest
Control Board];
(28) (No change.)
(29) Any violation of the regulations promulgated under
this subchapter [Section 599
] relating to treatment standards;
(30) (No change.)
(31) failure to comply with §7.135 of this
title (relating to [§593.24,] Criteria for
Evaluation of Continuing Education);
(32) failure to comply with §7.150 of this title (relating to
[§595.11,] Schools); [and]
(33) failure to comply with any section of the Act or
these regulations [Regulations]; and
(34) failure to provide a disclosure document prior
to, or accompanying, or at the same time, with a written estimate
as described in §7.174 [§599.4] of
this title (relating to Termite Treatment Disclosure Documents).
§7.162.Suspension or Revocation.
(a) Suspension or revocation of any license under the
provisions of §7.161 [Section 597.1] of
this title (relating to Grounds for Revocation, Suspension, Penalties,
Reprimanding, Refusal to Examine, Refusal to Issue or Renew Licenses)
shall not be for less than ten (10) days nor more than two years at
the discretion of the department [board]. If
a license is suspended or revoked under the provisions thereof, the
licensee shall, within five days of such suspension or revocation,
surrender all licenses and identification cards issued there under
to the director or his authorized representative.
(b) [A person possessing a license issued by the
Board may have that license suspended or revoked without a hearing.]
A licensee who is notified that the department [Board]
intends to suspend or revoke the licensee's license must ask for a
hearing by filing a petition with the Commissioner [Executive
Director] or his designee within twenty (20) days
of the date of the letter sent to the licensee. The petition shall
set out legal basis and supporting facts for challenging the
department's [Board
] decision and the relief sought by the petitioner
including a request for hearing. Upon receipt of the petition, if
the Commissioner [Executive Director] or
his designee
determines that the petition is within the jurisdiction of the
department [Board], the Commissioner [
Executive Director] or his designee shall request a hearing
before the State Office of Administrative Hearings [(SOAH)].
§7.163.Unlawful Acts.
In addition to the offenses listed in the Texas Structural
Pest Control Act (the Act), Occupations Code Chapter 1951,
§7.161 [§597.1(1)-(3) and (7)-(26)
] of this title
(relating to Grounds for Revocation, Suspension, Penalties, Reprimanding,
Refusal to Examine, Refusal to Issue or Renew Licenses) are unlawful
acts. Any person who commits an unlawful act is subject to the criminal,
civil, and administrative penalties provided by the Act as well as
the remedies provided in this section.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803260
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
The Texas Department of Agriculture (the department) proposes amendments to Chapter 7, Subchapter H, Division 5, §§7.172 - 7.178, and the repeal of §7.171, all concerning regulation of structural pest control. The amendments and repeal are proposed to eliminate an unnecessary section and to make revisions to the structural pest control service regulations to conform to new requirements established under House Bill (HB) 2458, 80th Legislative Session, 2007, which transferred the responsibilities of the licensing and regulation of structural pest control to the department and established the Structural Pest Control Service within the department, abolished the Structural Pest Control Board, and made other changes to Occupations Code, Chapter 1951. Section 7.172 is amended to clarify the information required to appear on a durable sticker upon completion of a termite treatment or installation of a baiting system to include the size of the sticker, the telephone number of the business licensee, name and license number of the applicator and the date of the treatment or installation of the baiting system. The section is also amended to require that a copy of the Termite Treatment Disclosure Document be maintained for a period of five years instead of the existing two year requirement. Section 7.173 is amended to delete references to a U.S. Environmental Protection Agency (EPA) registered wood treatment termiticide and to delete language specifying product specific research for registered wood treatment termiticide products. This amendment is made to make this section consistent with existing federal requirements pertaining to the registration requirements for termiticides. The requirement to maintain a copy of the pre-construction treatment record is changed from two years to five years to be consistent with the maintenance of other records required under this chapter as necessitated by the change in the inspection frequency of business licensees by HB 2458. The language specifying the administrative penalty amount and process used for violations of this section are deleted to allow the department to incorporate the enforcement process used for its other regulatory programs to also include structural pest control. Section 7.174 is amended to clarify the requirements for the information to be included in termite treatment disclosure documents. Section 7.175 is amended to delete the requirement that a certified applicator approve a Wood Destroying Insect Report conducted by a technician licensed in the termite category. Section 7.178 is amended to clarify the requirements for structural fumigation and add language to require when the certified applicator must be present at the site during fumigation; clarifies that local authorities may be notified by telephone if a record is made containing the name of the person informed and the date and time of the notification; add language that the certified applicator shall post a person or persons to guard the location from the time the fumigant is introduced until the ventilation level is reached and that all entrances are secured until the structure is released for occupancy; modify the information that must be contained in the fumigation report to include the business license number, delete the type of roof, delete the type of sealing method, add the license number of the certified applicator, and add the date released for occupancy; and clarify calibration information requirements and change the proof of calibration to be maintained for five years instead of the current two year requirement. Section 7.171 is repealed because other current laws, procedures, processes, and policies allow the department to fully and adequately address any issues arising in this regulatory area.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposal is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections, as proposed.
Mr. Bush also has determined that, for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal will be updated and clear regulations, and better protection to the public when licensees are performing structural fumigation operations. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §1.171 is proposed under Occupations Code §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; §1951.205, which provides that the department, shall adopt rules governing the methods and practices of structural pest control that the department determines are necessary to protect the public's health and welfare and prevent adverse effects on human life and the environment; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.171.Termite Control.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803261
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
The amendments to §§7.172 - 7.178 are proposed under Occupations Code §1951.201, which provides that the department is the sole authority in this state for licensing persons engaged in the business of structural pest control; the Code §1951.203, which provides that the department shall develop standards and criteria for issuing licenses to individual technicians, businesses, certified commercial applicators and certified noncommercial applicator's conducting structural pest control activities; §1951.205, which provides that the department shall adopt rules governing the methods and practices of structural pest control that the department determines are necessary to protect the public's health and welfare and prevent adverse effects on human life and the environment; and the Texas Government Code, §2001.004, which provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal procedures.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.172.Subterranean Termite Post Construction Treatments.
(a) - (b) (No change.)
(c) All treatments must strictly adhere to the procedures
outlined in the disclosure statement required in
§7.174 [§599.4
] of this title (relating to Termite Treatment Disclosure
Documents). A deviation will be permitted when unexpected circumstances
occur necessitating a change in the treatment and the certified applicator
responsible for the treatment provides the customer with a written
addendum to the contract or disclosure documents at the completion
of the treatment.
(d) Upon completion of a termite treatment,
or installation of a baiting system [
other than a bait treatment],
the company responsible for providing the treatment must leave a durable
sticker of not less than one (1) inch by two (2) inches in size on
the wall adjacent to the water heater, electric breaker box, beneath
the kitchen sink or in the interior bath trap access giving the name
, [and] address and telephone number of
the business licensee, name and license number of the applicator,
product used, method or device used, the [final
] date of the treatment or installation of the baiting system
, and a statement that the notice should not be removed.
[(e) For a termite treatment
using a bait product, the requirement to place a durable sticker applies
at the time of the first placement of bait systems that include a
pesticide.]
(e) [(f)] The business license
holder or, in the case of the certified noncommercial applicator,
the applicator must keep and maintain a correct and accurate copy
of the Termite Treatment Disclosure Documents for a period of
five (5) [two (2)] years.
§7.173.Subterranean Termite Pre-Construction Treatments.
(a) Subsections (b) - (f) do [does]
not apply to baits or baiting systems and subsections (c) - (d) do
not apply to wood applied termiticide products.
(b) (No change.)
(c) For a full treatment, the entire structure must
be treated to provide a continuous horizontal and vertical barrier
. The [as described on the pesticide label including the
posting of a treatment sticker and the] final treatment
shall [to
] be performed within thirty (30) days of notification of
completion of landscaping or one year from the date of completion
of construction, whichever comes first. However, when construction
has proceeded to the point that all areas cannot be treated before
the company providing the treatment is called to perform the application,
a partial treatment is [will be] permitted if
the owner of the structure or the person in charge of the construction
and the licensee [certified applicator] for
the pest control company sign a statement attesting to the construction
conditions, and attach it to the contract with an amended diagram
or blueprint or building plat showing the exact areas to be treated
and send copies to the owner of the property within seven (7) days
of the application. A copy of the contract with an amended diagram
or blueprint or building plat showing the exact areas to be treated
must be made available to the department [Board]
upon [the Board's
] request. A partial treatment will also
be permitted if allowed by label directions and if the licensee proposing
the treatment issues a Termite Treatment Disclosure Document prior
to the treatment.
(d) (No change.)
(e) A primary treatment of the wood framing following
full label application instructions for barrier treatment protection
must be performed with a [U.S. Environmental Protection Agency
registered wood treatment] termiticide that has specific label
instructions to be used as a primary treatment to offer protection
for prevention of subterranean termites in new construction. This
treatment may be used in lieu of a full, partial, or bait treatment
and must include providing a barrier application to exposed surfaces
of wood framing with exterior sheathing in place but before any walls
are enclosed to a height of not less than two (2) feet above a contact
with a slab foundation or a (2) foot horizontal and vertical treatment
of wood above contact with a concrete crawlspace or basement foundation.
Label instructions must provide a barrier application for the prevention
of subterranean termite intrusion and tubing onto non-cellulose areas
around bath-traps, plumbing penetrations and concrete foundation areas.
[The registered wood treatment termiticide must be supported
by a minimum of five years of product specific research for the prevention
of subterranean termites that has been conducted by the USDA Forest
Service or an accredited university study. U.S. Environmental Protection
Agency registered wood treatment termiticide products that do not
meet these requirements may only be used in conjunction with a full,
partial, or bait treatment if allowed by the product label.]
(f) Notice of all pre-construction treatments with
contracts requiring treatment of a structure other than a single family
dwelling must be called, e-mailed or faxed in to the
department [Texas Structural Pest Control Board
] between the hours of 6:00
a.m. and 9:00 p.m. using the specified e-mail address, telephone
number or fax number at least four (4), and no more than twenty
four (24) hours prior to a termiticide application. The
licensee must provide address and site location, type of treatment
(partial or full), date and time of treatment, approximate and appropriate
unit of measurement used under contract and the name and
the license number and physical address of the pest control
company [business licensee]. If the treatment is
cancelled, notice of cancellation must be sent using the specified
telephone number, e-mail address or fax number within one
hour of the time the pest control company [licensee]
learns of the cancellation.
(g) For all commercial pre-construction treatments,
the licensee must maintain records of the appropriate unit of measurement
treated per application site, amount of termiticide used per application
site, rate at which termiticide is mixed for each application site,
number of application tanks which were in use for the treatment, the
capacity, in gallons, of each application tank, and the start and
stop time for the treatment. The business license holder or, in the
case of the certified noncommercial applicator, the applicator must
keep and maintain a correct and accurate copy of the pre-construction
treatment records for a period of five (5) [two (2)]
years. A baiting system may be used in lieu of a pre-construction
treatment if installed [applied] within thirty
(30) days of notification of completion of landscaping. If a physical
device is used, the appropriate unit of measurement of the physical
device must be recorded and a diagram describing the installation
must be provided.
[(h) Any violation of this
section may result in an administrative penalty of up to $3000 per
violation and is considered a base penalty 3.]
§7.174.Termite Treatment Disclosure Documents.
(a) (No change.)
(b) Each termite treatment disclosure document must include, but is not limited to:
(1) a diagram or blueprint or building plat and description of the structure or structures to be treated to include the following:
(A) (No change.)
(B) [approximate] perimeter measurements
of the structure as accurately as practical;
(C) - (D) (No change.)
(2) - (4) (No change.)
(5) the concentration of [any liquid] termiticide
[application to be] used [
on the treatment] or minimum number of
bait stations [baiting systems]
to be installed.
(6) for subterranean termite post construction treatments
the following statements and definitions in at least
12-point [8-point
] type: A termite treatment may be a partial treatment
or spot treatment using termiticide, [chemical or]
approved physical barriers or a baiting system. These types of treatments
are defined as follows:
(A) - (C) (No change.)
(D) Spot Treatments. Any treatment which concerns a limited, defined area less than ten (10) linear or square feet that is intended to protect a specific location or "spot". Often there are adjacent areas that are susceptible to termite infestation which are not treated.
(E) Baiting Systems. This type of treatment may include
interior and/or perimeter placement of monitoring
or [of]
baiting systems along with routine inspection intervals. The baiting
technique may include one or more locations as prescribed by the product
label and instructions.
(F) (No change.)
(7) For all termite treatments the following statement
in at least 12-point [8-point] type: For all
treatments there will be a diagram showing exactly what will be treated.
Treatment specifications and warranties for those treatments may vary
widely. Review the pesticide label provided to you for minimum treatment
specification. If you have any questions, contact the pest control
company or the Texas Department of Agriculture [
Structural Pest Control Board], P.O. Box
12847, Austin, Texas 78711-2847.
Telephone number (866) 918-4481 [
1927, Austin, Texas 78767-1927.
Telephone number (512) 305-8270].
(8) For any pre-construction treatment [treatments
], the Proper Pre-construction Subterranean Termite
Treatments - A Guide for Builders and Consumers, [
Board-approved Termite Pretreatment Disclosure Document (SPCB/D-4)
must be
provided to, and signed by, the contractor or purchaser of the pretreatment
service prior to the beginning of the treatment. A signed copy must
be kept in the pest control use records of the licensee. [Failure
to provide this document prior to treatment will result in an administrative
penalty of up to $3000 per violation.] The text and format of
the termite pre-treatment disclosure document is available on
the Structural Pest Control Service website at: http://www.tda.state.tx.us/spcs/,
or by contacting the Texas Department of Agriculture at the address
provided in subsection (b)(7) of this section. [shall be
as follows:]
[Figure: 22 TAC §599.4(b)(8)]
(9) For drywood termite and related insect treatments
the following statements and definitions in at least
twelve (12) [eight (8)
] point type: A drywood termite or related insect treatment
may be a full treatment or spot [limited] treatment.
These types of treatments are defined as follows:
(A) Full Treatment: Generally defined as a treatment to control 100% of the insect infestation by tarpaulin fumigation or appropriate sealing method. A full treatment by fumigation is designed to eliminate every insect colony. It should include the infested structure and all attached structures.
(B) Spot Treatment: Any treatment less than a
full treatment by tarpaulin fumigation. This treatment should be considered
only when a drywood termite or related insect infestation has a limited
and defined area of infestation. Adjacent areas susceptible to dry
wood termite or related insect infestations are not treated. Because
of the nature of wood destroying insects, these untreated areas may
continue to harbor dry wood termites and unrelated insects throughout
the structure without detection. [Limited Treatment: Any
treatment less than full treatment. A treatment which has a limited
and defined area that is intended to protect a specific location.
Often there are adjacent areas susceptible to dry wood termite or
related insect infestations which are not treated. Because of the
nature of wood destroying insects, these untreated areas may continue
to harbor dry wood termites and unrelated insects throughout the structure
without detection.]
(10) A consumer information sheet as required by
§7.147 [§595.7
] of this title (relating to Consumer Information Sheet).
(c) Before conducting an initial termite treatment
[for the customer], the pest control company proposing
the treatment must present the [prospective] customer or
designees with a diagram or blueprint or building plat and description
of the structure(s) to be treated including the following:
(1) - (4) (No change.)
(d) For a [any] retreatment of
a property for an existing customer, the pest control company must
provide the following before conducting the retreatment:
(1) the label; [if different than that used in
the preceding treatment(s);]
(2) - (3) (No change.)
(4) a consumer information sheet as required by
§7.147 [§595.7] of this title.
§7.175. Wood Destroying Insect Report Inspection Procedures.
(a) Inspections for the purpose of issuing a
Wood Destroying Insect Report [wood destroying insect report
]
must be conducted in a manner consistent with the procedures described
in this section. Inspections for the purpose of issuing a
Wood Destroying Insect Report [wood destroying insect report
] must be conducted by a licensed certified applicator or technician
in the termite category [and must be approved by a certified
applicator upon completion]. The purpose of the inspection is
to provide a report regarding the absence or presence of wood destroying
insects and conditions conducive to wood destroying insect infestation
. The inspection should provide the basis for recommendations
of preventive or remedial actions, if necessary, to minimize economic
losses. For purposes of a Real Estate Transaction Inspection Report
(§7.176 [§599.6]) only, there must
be visible evidence of active infestation in the structure or visible
evidence of a previous infestation in the structure with no evidence
of prior treatment to recommend a corrective treatment. The inspection
must be conducted so as to ensure examination of all visible accessible
areas in or on a structure in accordance with accepted procedures.
While such an examination may reveal wood destroying insects, there
are instances when concealed infestations and/or damage may not be
discovered. Examinations of inaccessible or obstructed areas are not
required.
(b) Inaccessible or obstructed areas recognized by
the department [Board] include, but are not
limited to:
(1) - (4) (No change.)
(5) areas where [the] storage conditions
or locks make inspection impracticable.
(c) The inspector must describe the structure(s) inspected and include the following:
(1) (No change.)
(2) a diagram (does not have to be to scale) showing:[;]
(A) - (B) (No change.)
(C) areas of current [present]
wood destroying insect activity;
(D) - (E) (No change.)
(3) (No change.)
(d) - (e) (No change.)
§7.176.Real Estate Transaction Inspection Reports.
(a) All inspection reports issued regarding the visible
presence or absence of termites, [and] other
wood destroying insects and conditions conducive to infestation
of wood destroying insects in connection with a real estate
transaction must be made on a form prescribed [and officially
adopted] by the department [Board].
Inspection results may be recorded additionally on a form required by a real
estate lending provider such as the Veterans Administration as long
as the form required by this section is maintained in the inspection files.
(b) The report form will include a space to report
conditions consistent with §7.175 [§599.5]
of this title (relating to Inspection Procedures).
(c) The Texas Official Wood Destroying Insect
Report is available from the Texas Department of Agriculture, may
be obtained from the department at P.O. Box 12847 Austin, Texas 78711-2847,
and may be downloaded from the department's web page at: http://www.tda.state.tx.us/spcs/. [
The Texas Official Wood Destroying Insect Report Form
SPCB/T-4 is adopted. The form may be examined in the office of the
Texas Register and the Texas Structural Pest Control Board. Forms
for reproduction may be obtained from the Texas Structural Pest Control
Board office, P.O. Box 1927, Austin, Texas 78767-1927.]
(d) (No change.)
(e) The licensee issuing the report must retain records
of inspection reports for a minimum of five (5) [two (2)
] years.
§7.177.Posting Notice of Inspection.
(a) Upon completion of an inspection for the purposes
of completing the Texas Official Wood Destroying Insect Inspection
Report [SPCB/T-4 Form], the inspector must post a
durable sticker on the wall adjacent to the water heater, interior
of bath trap access, electric breaker box or beneath the kitchen sink
giving the name and license number [address]
of the licensee or license number of the supervising certified
applicator if the technician or apprentice have not been assigned
a license or registration number other than the social security number
, the date of the inspection [or treatment
], a statement that the sticker should not be removed and
statement of the product used.
(b) It will be a violation of this section for any
licensee [of the Board
] to remove or deface a posted inspection sticker.
§7.178.Structural Fumigation Requirements.
(a) Fumigation of structures to control wood destroying
insects shall [must] be performed only under
the direct on-site supervision of a certified applicator licensed
[by the Board] in the category of structural fumigation.
Direct on-site supervision means that the certified applicator exercising
such supervision must be present at the site of the fumigation during
any [the entire] time the fumigants are being released
and at the time property is inspected, ventilated and released
for occupancy.
(b) Fumigation shall [must] be
performed in compliance with all label requirements applicable to
state and federal laws and regulations.
(c) Prior to the release of the fumigant [
commencement of fumigation], warning signs
shall [must
] be posted in plainly visible locations on or in the immediate
vicinity of all entrances to the space under fumigation and
shall [must] not be removed [
moved] until [fumigation
and ventilation have been completed, and
] the premises is determined safe for reoccupancy. Ventilation
shall [must]
be conducted with due regard for [the] public safety.
(d) When directed by the label, local fire authorities
or, when not available, local police authorities,
shall [must] be notified in writing
, by telephone if a record is made of the name of the person that was informed and the date and
time, or by e-mail prior to introduction of the fumigant.
The same agency shall be informed that [and at the time]
the structure is released for occupancy.
(e) The space to be fumigated shall [must]
be vacated by all occupants prior to the commencement of fumigation.
The space to be fumigated shall [must] be sealed
in such manner to ensure that the [assure] concentration
of the fumigant released is [has been] retained
in compliance with the manufacturer's recommendations.
(f) Warning signs shall [must]
be printed in red on white backgrounds and
shall [must]
contain the following statement in letters not less than two inches
in height:[;] "Danger-Fumigation."
Signs [They
] must 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, license number [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 responsible for the fumigation
shall [must],
immediately upon completion, post a durable sticker on the wall adjacent
to the electric breaker box, water heater, beneath the kitchen sink
or in the interior bath trap access. This must be a durable sticker
not less than one inch by two inches in size. It must have the name
and license number
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 [must
] use adequate warning agents with all fumigants
that [which
] lack such properties. When conditions
involving abnormal hazards exist, the person exercising direct on-site
supervision shall [must] take such safety precautions
in addition to those prescribed to protect the public health and safety.
The certified applicator responsible for the fumigation
shall [must
] visibly inspect the structures to assure vacancy prior
to introduction of fumigant.
(i) The certified applicator responsible for the fumigation
shall [must
] also post a person or persons to guard
the location whenever a licensed applicator is not present from
the time the fumigant is introduced until [
all tarpaulins and seals are removed and
] the label concentration for aeration is reached.
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 remain
alert and on duty as directed by the certified applicator. The
certified applicator responsible for the fumigation
shall [must then
] secure all entrances to the structure in such a manner
as to prevent entry by anyone other than the certified applicator
[or licensed individual] responsible for the fumigation.
The structure must remain secured until the
structure is released [
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 [must] compile and retain
for a period of at least five (5) [two (2)]
years a report for each fumigation job and/or treatment. [The
person posted at the location must deter entry into the structure
by routinely inspecting the structure under fumigation at least once
each hour. The person posted at the location must 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 must [shall] contain the following
information:
(1) name , [and] address
and business license number of the pest control company;
(2) (No change.)
[(3) type of roof;]
(3) [(4)] cubic feet fumigated;
(4) [(5)] target pest or pest controlled;
(5) [(6)] fumigant or fumigants used and amount;
(6) [(7)] name of warning agent and amount used;
(7) temperature and wind conditions;
[(8) type of sealing method;]
[(9) temperature and wind conditions;]
(8) [(10)] time gas introduced
and aerated (date and hour);
(9) [(11)] name and license
number of certified applicator [of licensee (certified
applicator)];
(10) [(12)] list of any extraordinary
safety precautions taken;
(11) [(13)] date and time
released for occupancy (signed by certified applicator);
(12) [(14)] the dates [date
] and time [hour] fire or police authorities
were notified; and
(13) [(15)] [verification
of clearing procedures and] identification of
clearing devices used.
(k) Fumigations for the purpose of controlling wood
destroying insects are subject to the provisions of
§7.174 [§599.4
] of this title (relating to Termite Treatment Disclosure
Documents).
(l) Every licensee [business license holder
] engaged in application of a fumigant is required to
use an approved and calibrated clearance device as prescribed
on the fumigant label.
(1) This approved and 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 and qualified facility
or person must perform calibration of the clearance device
not less than annually and anytime it is suspected to be inaccurate
. Calibration must [shall] be in compliance
with the manufacturer's requirements.
(3) Proof of calibration must be kept on file for a
period of five (5) [two (2)
] years and available for review by department [Board
] personnel and by placing an annual [a yearly
] validation on the clearance device.
(m) The certified applicator responsible for the fumigation
shall [must
] be responsible for following label requirements
for aeration and clearing of 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.]
(n) [(o)] Notice of all [
structural] fumigations [
with contracts requiring treatment]
of a structure must be called, emailed, or faxed to the
department [Texas Structural Pest Control Board
] between the hours of 6:00 a.m. and 9:00 p.m.
, Monday through Friday, 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 license number [and
physical address] of the business licensee. If the structural
fumigation is cancelled, notice of the cancellation must be sent using
the department [Board] specified telephone number,
email address or fax number within three [one to six]
hours of the time the pest control company [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.]
(o) [(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 department [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 department [Executive Director].
[(3) A minimum of one CEU
per year in structural fumigation is required to maintain the certification
following initial testing.]
(p) [(q)] Current certified applicators
must conduct/perform four (4) hours of training per year to maintain
their certification.
(1) A verifiable performance/training records form
will be made available to the department [Board]
upon request. These performance/training records forms shall be kept
on a format prescribed by the department [Board]
in the business file for at least five (5) [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) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803262
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Agriculture or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Agriculture (the department) proposes the repeal of Chapter 7, Subchapter H, Division 6, §7.190, concerning regulation of structural pest control. The repeal is proposed to move definitions in this section to Division 1 of this Subchapter, General Provisions, where all other defined terms are located.
Jimmy Bush, Assistant Commissioner for Pesticides, has determined that, for the first five-year period the proposed repeal is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal of §7.190.
Mr. Bush also has determined that, for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of enforcing the repeal will be the elimination of an unnecessary regulation. There will be no effect on small or large businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Therefore, no regulatory flexibility analysis is required.
Written comments on the proposal may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Written comments must be received no later than 30 days from the date of publication of the proposed repeal in the Texas Register.
The repeal of §7.190 is proposed under Occupations Code, §1951.105, which provides the department with the authority to adopt rules for the operation of the Structural Pest Control Advisory Committee.
The code affected by the proposal is Occupations Code, Chapter 1951.
§7.190.Definitions.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 23, 2008.
TRD-200803263
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: August 3, 2008
For further information, please call: (512) 463-4075