Monday, December 21, 2015

Changes in the rules of the game for Texas PMPs

New rules start as laws passed by the Legislature under
the Texas Capitol dome.  Laws become enforceable only
after rules are drafted and published for public comment by
the lead agency, like Texas Department of Agriculture.
New rules governing the pest control industry in Texas were published last week and are now in effect.  While none of the changes in the "rules of the game" are major, there may be a few things that affect your business or school district.

The rules governing pesticide use in Texas can be complicated, and are passed down to us through two sets of documents.  First, the Texas Occupations Code (TOC) contains  the official list of laws as passed by the legislature pertaining to different occupations, including structural pest control. If you go to this code online, the chapter having to do with pest control is Chapter 1951. Chapter 1951 lists all the state law as passed over the decades that relate to the business of structural pest control.
The second, and probably most relevant set of rules to our industry is the Texas Administrative Code (TAC).  The TAC records how the various state agencies choose to interpret and administer the laws. For example, Section 1951.212 of the TOC directs the Texas Department of Agriculture to establish standards for an IPM program for public school districts.  The TAC Sections 7.201-7.205 spell out what the standards are, including requirements for IPM coordinators, pesticide categories, posting requirements, etc.

But wait a minute. How can non-elected bureaucrats in a state agency write rules outside the legislative process?  The answer is that legislators don't have the time or the expertise to write detailed regulations, so they pass their rule-making authority on to Executive branch agencies like the Department of Agriculture.  Of course the rules have to fairly interpret the law, and they must be published ahead of time in the Texas Register so that all of us can review and comment.

Publication of several new or revised sections of Subchapter H of the TAC (Texas Department of Agriculture) marks the end of this process for pest control rules this year.  On December 18 the Texas Register published the results of public comment and listed the final versions of proposed rules originally published on September 18. With this final version, the rules are now considered to be in effect.

Most of the changes were made simply to clarify wording of the old rules.  There was also some reorganization of section numbering, so that old rule citations may no longer apply.  Here are the essential changes:

  • Sec. 7.122 Changes in wording that include giving power to the Department to deny a license to anyone who holds a similar license that has been revoked, suspended, probated or denied within the last five years by another state or by the federal government.
  • Sec. 17.127 There are no more fees for providing a continuing education course.
  • Sec. 7.141  Rewording of rules pertaining to ID that must be carried at all times by license holders.  Basically, if you have a license you must carry it on your person at all times and show it to any customer or relevant government employee who asks. If it's not legible, then its not a legal ID.  Also, language on vehicle signage has slightly changed to require all marked or unmarked vehicles being used for customer contact or service must have the business license number prominently displayed (magnetic signs are not OK).
  • New Sec. 7.150 requires all pesticides be used consistent with the pesticide labeling, and prohibits use of any pesticide missing a complete label when the identity of that pesticide is unknown.
  • New Sec. 7.151 prohibits anyone from hurting people or the environment, and making the pesticide owner, the applicator and/or the mixer equally responsible for proper storage and disposal of pesticide containers and contents. It also requires all pesticide containers to be labeled with the name of the pesticide.  And it specifies that hard copies of all pesticides being stored shall be available for inspectors visiting the storage site.
  • Sec. 7.152 states that no one may advertise to perform structural pest control services without a license, and that all advertising must include the same business name as is on the license.  This rule was rewritten to ensure that companies not use multiple business names under the same business license, and to clarify that pest control advertising includes online ads such as might appear on sites like Facebook, Craigslist and Angie's List.  
  • Sec. 7.193 is a new section number which clarifies who may qualify as a member of the Structural Pest Control Advisory Committee from an institution of higher learning (the position I formerly held, and now is being held by Dr. Robert Puckett).  
  • Sections rules for the IPM program for public school districts have been moved to a new Division (7) and renumbered from Sec. 7.150-7.154 to 7.201-7.205.  The biggest changes in this section relate to CEU requirements for IPM Coordinators.  
  • Sec. 7.202  School IPM coordinators no longer are specifically required by rule to personally conduct periodic inspections of their school district.  While this remains desirable, taking away this rule frees the coordinator to rely on other trained inspectors to provide inspection reports.
  • Sec. 7.204 includes slight wording changes to clarify that outdoor areas treated with a pesticide may be posted at all entry points with a sign in lieu of a lock, fence or barrier tape until the reentry time is over.  This section also allows IPM Coordinators, or their supervised employees, to use non-pesticide containing monitoring devices like sticky traps, to monitor pests without a license.
Perhaps the most significant change heralded by these rules is that expanded CEU requirements for school IPM Coordinators (IPMCs) are now officially in place.  Over four years ago, as a result of Sunset Commission recommendations, the legislature decided that ongoing CEUs would be required for school IPMCs.  Until now, the only CEU requirement was that IPMCs have six hours of department-approved training at the beginning of their appointment.  Under the new rule IPMCs must have six hours of verified, approved training every three years.  While most of these CEU requirements can come from any approved, relevant pesticide CEU class, at least one of the hours must be related to school IPM rules and regulations.  The countdown for existing IPMC's three years will start this January, or for new IPMCs at the date whenever their initial training is completed. Pesticide CEUs obtained in support of a pesticide applicator's license can be double-counted toward the CEU requirements for IPMCs.

After seeing how long it can take the TDA to publish its rules, I don't feel nearly as bad about the stacks on my desk.  

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