Advisory Committee Gets Updates, Homework

The Texas Department of Agriculture's Structural Pest Control Advisory Committee met in Austin last week. I have served on the committee for two plus years, and have written about the advisory committee in the past (search this site for the term "advisory committee").  The committee represents the public and the pest control industry, and meets quarterly to get updates, and offer suggestions and feedback to TDA, on rules and regulations pertaining to pest control in Texas.

Budget Update & Department news

This quarter's meeting included an update on TDA's budget status in the legislature.  House Bill 1(HB 1) (in this session the House takes the lead in drafting the state budget, next session the Senate takes the lead) proposes a 45% cut in the TDA budget.  This seemed incredibly high to me for an agency budget cut, but I wasn't detecting any feeling of panic among Assistant Commissioner Jimmy Bush or other TDA staffers at the meeting.  According to Bush, while such cuts will likely mean a major restructuring of the Agency, TDA does not see any major impacts on the operation of the Structural Pest Control Service (the division of TDA that oversees and regulates the pest control industry in the state).  Much of the cuts being proposed would come from programs at TDA that do not bring in revenue through licenses or fees, namely marketing and the rural economic development divisions of the agency.

The committee was introduced to two TDA attorneys that have recently been assigned to the Structural Pest Control Service.  Mary Luedeker and Lisa Hoyt will take over all new structural pest control cases, working with the agency and with industry to interpret and enforce laws and rules relating to pest control in Texas.   

Legislative Updates

Deputy Assistant Commissioner Dr. Ambrose Charles reported that the Texas Council on Environmental Quality has drafted a discharge permit plan for pesticide applications near water which has been accepted by the U.S. EPA.  He noted that the deadline for implementing this program was recently delayed until October 31, but that there is some question whether this new permitting program will ever go into effect.  He reported that H.R. 872 was recently passed out of the U.S. House of Representatives by a wide margin.  This bill would exempt pesticides labeled under FIFRA from being subject to the Clean Water Act permit system. A companion bill, S. 718, was also introduced into the Senate.  If that passes and both houses agree on a joint version of the bill (there are differences), Congress could effectively bypass the recent court decision that would require permits for pesticide applications for aquatic weed control, forest pest control, mosquito control and other pest control around water. The paperwork and manpower requirements, supporters say, will be expensive to communities and agencies, and will not result in improved water quality.  Environmental groups oppose HR 872, saying it would be a vote for dirty water.  If you have question about how the Texas water permit system works, Dr. Charles is familiar with the provisions of the Texas permitting system.

Katherine Wright-Steele gave a legislative update on four bills relating to the pest control industry that are currently in the Texas state legislative process.  Senate Bill 3, containing language that would repeal all school IPM regulations in the state, has been previously discussed here.  HB 2741, HB 2742, and HB 2743 were introduced by Representative Tim Kleinschmidt, R-Lexington.  All appear to have been introduced with the support of the Texas Pest Control Association.  House bills 2741 and 2742 serve to give TDA more leverage in regulating advertising, restoring some of the authority lost in the last legislative session.  The house bill 2743 seeks to restructure the Advisory committee, eliminating the university (yo!) and department of State Health Services representatives and making six of the nine positions filled by pest control professionals (three would be public members). Status of these bills is still uncertain and there are currently no companion Senate bills.

Wood Destroying Insect Reports

The committee received some homework from Jimmy Bush. Members were asked to review and provide input into the Wood Destroying Insect (WDI) Report (Form No. SPCS/T-4), WDI report inspection procedures (Rule 7.175), and the chapter on WDI inspections in the AgriLife Extension Study manual (B-5075).  This follows discussion from other meetings on ways to reduce the numbers of complaints received each year from the public about WDI reports and inspections.  In 2010 the TDA received 20 complaints related to WDI inspections, approximately 10% of all complaints received.  While some felt that this number of complaints is very low compared to the number of inspections conducted each year, there does seem to be room for improvement.  Improvements to the form itself, as well as the need for improved training and certification for WDI inspectors was discussed. 

A group of industry members (Eric Melass, Mike Dickens and Debbie Aguirre) appointed by the committee late last year  recommended that enforcement of existing rules rather than new regulations was what was most needed. They also suggested that all WDI inspectors be required to carry a certified applicator's license and that CA tests have a section devoted to WDI issues.  If this change did not result in fewer problems, only then should TDA consider creating a special license subcategory for WDI inspectors.

CEU courses

The committee was also charged with reviewing staff recommendations on restructuring CEU course offerings.  A group of SPCS staff reviewed the two existing rules (Section 7.134 and Section 7.135) and offered a draft version of the rules with suggestions for improvement.  One of the most significant concessions in the new version is to allow the use of an online course to meet someone's entire annual recertification requirement.  The only limitation under this proposal would be that online courses could not be used in any two consecutive years to meet CEU requirements.  This is because there is concern that, despite recent improvements in technology, the department is still unconvinced that online courses can fully substitute for face to face training. 

Other changes in Section 7.135 would include eliminating speaker qualification forms, and doing away with a requirement that online course takers pass an exam with at least a 70% to get their CEU credit and be proctored by a certified applicator.  It's not clear under the draft rule how sponsors will guard against abuse of online courses without the proctor requirement.  In public testimony time, Don Ward, Executive Director of the Texas Pest Control Association, expressed the association's general support of online courses if abuse issues can be addressed.  He also expressed a preference for certifying speakers over courses, seemingly the opposite of the new rules.

If you have suggestions for improvements to the CEU or WDI report process, you should contact one of the Advisory Committee members before July 28, or plan to attend the next committee meeting on that date.

What is the Structural Pest Control Advisory Committee?

The Structural Pest Control Advisory committee meets this Thursday, the 29th at the Texas Department of Agriculture headquarters in Austin.  So what is this committee and what does it do?

The SPCAC met for the first time in March, 2008 following the dissolution of the Texas Structural Pest Control Board.  Members of the committee serve at the invitation of the Commissioner of Agriculture, Todd Staples.  Committee composition is required by law to consist of two members who are experts in structural pest control application; three members who represent the public; one member from an institution of higher education who is knowledgeable in the science of pests and pest control; one member who represents the interests of structural pest control operators and who is appointed based on recommendations provided by a trade association of operators; one member who represents the interests of consumers; and the commissioner of state health services or the commissioner's designee. Experts in structural pest control on the committee include Tommy Kezar (CTN Educational Services) and Greg Orr (Terminix, Houston).  Public representatives include Peggy Caruso (Katy ISD), Johnny Hibbs (Carrollton/Farmers' Branch ISD) and Judge William Roberts (Attorney from Plano). Bill Stepan (Orkin Pest Control, Houston) was selected to represent the pest control industry and Dr. Thandi Ziqubu-Page represents the Commissioner of the Department of State Health Services.  I represent an institution of higher education and a consumer representative has yet to be appointed.

In one sense the Advisory Committee does nothing.  Unlike the previous Structural Pest Control Board, it has no statutory or rule-making authority.  But we do advise, and I believe the Department of Agriculture does listen.  So in essence all of us on the committee are your representatives, to ensure that your interests and the interests of all in Texas with an investment in pest control are represented in the halls of the TDA.

Of interest to schools this week the committee will be revisiting the CEU requirements for school IPM coordinators--a sticky issue for some committee members (including myself).  A draft proposal circulated this week shows that TDA has attempted to mollify different points of view by allowing IPM Coordinators to get their CEUs by either attending an approved, dedicated class designed on school IPM, or by earning CEUs through various conventional CEU forums.  Also to be discussed is a plan to allow use of sticky cards and glue traps by school IPM Coordinators if the traps are being used principally for monitoring and not pest control.  Clarification of this grey area should be welcomed by all parties involved in school IPM.

Other agenda items include updating members on the transition into a new licensing and inspection system, status of evaluations being made of the current Wood Destroying Insect(WDI)Reports, development of a Consumer Information Sheet for Exempted Activities, and discussion of possible modifications of how to obtain a structural fumigation license. Heady stuff, I know.

As always, the meeting will have a time for public comment and input.

If you have an issue of interest with regard to the way the Department administers laws and regulations affecting the pest control industry, here's your invitation. I invite you to drop an email to any of the committee members expressing your concern or input on a subject. I am not suggesting you shouldn't call us, but a clearly expressed email is much more likely to be carried by one of us to the meeting and discussed before the whole group.  The committee meets every three months, so you have plenty of time to compose your thoughts.

Structural Pest Control Service Winter Update

Whether companies who provide canine bed bug and termite
sniffing services should be licensed or require certification
was a topic of discussion at the January Advisory Committee
meeting.

The Structural Pest Control Advisory Committee met today after a (literally) stormy day in Austin--and I don't mean politics.  Yesterday brought some wet relief to parched central and north Texas, as well as rare winter tornadoes in several communities.

Today's committee meeting was mostly uneventful in terms of actions; however some interesting topics were introduced that should lead to follow-up discussions in later meetings.  The meeting started off with a moment of silence for Bill Stepan, our committee member who passed away in November. David Kostroun then led the committee through responses to the Self-Assessment Questionnaire that we were asked to fill at the end of the year.

Priorities for the Committee
One of the priorities for the coming year that some respondents mentioned was better communication with the public about pest control issues and how to help the public find answers to questions about pest control, the reliability of pest control businesses, and pesticides.  Tommy Kezar noted that the TDA website formerly allowed visitors to view regulatory actions to see what companies had been recently cited or fined for violations.  This page is no longer view-able on the agency's new home page. In fact, apart from information on how to file a structural pest control complaint, there is relatively little useful pest control-related information for consumers on the new consumer protection site.  Given that the site is new, I trust that this will change.  One feature I always found useful was the ability to check a company's license information to assure myself that it was operating with a valid license.  I hope this feature is restored.

Kezar also noted a couple of cases that he has seen where license renewals have been held up because of problems with background checks. Department staff were, allegedly, not very helpful in responding to efforts by licensees to discover the particulars about why a background check failed.  Chief Administrator Kostroun promised to look into procedures for responding to such requests for information.

Performance Data for SPCS
Stephen Pahl, Administrator for the Consumer Protection Division of TDA (the new division that houses structural pest control) gave a brief presentation on data that the agency is required to report to the LBB (Legislative Budget Board). The data includes statistics on numbers of new business and individual licenses issued, complaints resolved and inspections conducted each quarter.  Some of the more interesting numbers for the Sep-Dec Quarter included:

• 275 SPC business inspections were conducted in the fall of 2011 (slightly exceeded target goals).
• 45 complaints were resolved that resulted in a formal enforcement action (more than double the target goal).
• The 43 non-commercial establishment inspections (hotels, restaurants, local governments, etc.) was about a third of the target for the quarter; however staff attribute this to the priority they have placed on conducting school IPM inspections and some difficulties with new schedule-optimization software. 
• 139 schools were inspected, representing nearly 70% of the schools scheduled for inspection in the year.  I understood that the rate of quarterly school inspections will likely taper off this year as software improvements are made to rebalance the scheduling of commercial and non-commercial establishments over the next few months.
• Although quarterly data on school compliance rates for FY 2012 were not available, last year 52.4% of Texas schools were found to be in (complete) compliance during inspections. This metric, however, gives little insight in to the type or significance of non-compliance issues found by inspectors.
• Complaint case sufficiency rate is the percent of cases sent to Austin from local SPCS inspectors that ultimately are approved for enforcement action.  A high sufficiency rate indicates that inspectors are not submitting many frivolous or unenforceable cases.  This year's sufficiency rate was 92%.

School IPM Coordinator CEUs

Michael Kelly noted that the Department will be prioritizing the effort to publish formal rules for the new school IPM Coordinator CEU requirement imposed by Sunset committee action two years ago. To refresh your memory, as of January 1, 2011 School IPM Coordinators are required to obtain 6 CEU hours on pest control, pesticide and IPM-related topics every three years.  We are now 13 months into the three year period, and rules for how this system will work have not yet been published.  Kelly handed out the draft rule which specifies that only one of the six hours must be in laws and regulations specific to IPM programs in schools (I have stated in the past that I think this is inadequate, but won't go into that today).  What is still missing from the rules, however, is a mechanism for approval of the school IPM laws and regs CEU, and specific instructions for when CEUs will be due.  It was suggested that there may need to be a new CEU category for School IPM rules and regulations. The committee agreed that coordinators who were certified prior to Jan 2011 should be required to complete their six hours by Dec 2013.  Newer coordinators should be required to get their 6 hours within three years of taking their initial 6 hour orientation course (which they must take within six months of appointment as IPMC). Presumably the Department will be publishing new rules for public review within the next quarter.

Should Bed Bug Dogs be Licensed?

One of the most interesting discussions was a review of some information collected by Leslie Smith on bed bug dog certification, and discussion about whether dog handlers should be licensed.  While no one is actually proposing that dogs be licensed, handlers and companies who provide dog-sniffing services appear to be another matter.  The committee asked if Kelly would come up with some proposals on possible licensing options so that the issue could be discussed more rigorously, and recommendations formalized by the committee at the next advisory committee meeting.

Agency Legal Staff

Deputy General Counsel for Enforcement, David Gipson, reported that the SPCS has been without an official attorney for several months. It has been difficult, he said, to find qualified lawyers willing to work for the salary offered by TDA. As a result, legal work for SPCS has been divided among three TDA legal staff. According to Gipson, this has the added advantage of minimizing the impact on SPCS programs when an attorney leaves for any reason.

The next committee meeting is tentatively scheduled for April 26. The SPCS is receiving applications for positions on the advisory committee, especially the two open seats for industry and a consumer position. If interested, you should contact Michael Kelly.

Advisory Committee Spells out IPM for Texas Schools

Two weeks ago, on January 29th, I had the privilege of serving on the Structural Pest Control Advisory Committee meeting to discuss changes to Texas pesticide regulations. This was our third meeting since the committee formed last year, and school IPM was the principal topic on the agenda.

For those of you unfamiliar with this committee, think of it as the lite version of the former Structural Pest Control Board in Texas. The former Board consisted of industry, public and university members and was authorized to oversee the creation of regulations, and impose penalties on pest control companies who chose not to play by the rules. The advisory committee has none of the former Board's authority, but simply serves as a sounding board for the Structural Pest Control Service (SPCS) as it considers changes and improvements to pesticide regulations for licensed pest control companies.

That said, last month's meeting was a great example of how the advisory committee process can and should work. The principal chore put before us was to provide input on the new rules on IPM for Texas public schools. The TDA staff at the meeting were respectful of the committee's input and seemed eager to get these new rules written quickly and out to the industry and public for review. For the committee's part, everyone seemed to do their homework, came with good ideas, and were eager to reach consensus on all aspects of the rules.

No one has yet seen the newest draft regulations, but based on my notes, I think I can give a pretty good idea of the probable new structure and wording. That's my way of saying, "don't quote me on this". Everything is tentative until SPCS administrators Jimmy Bush and Jim Muse release the draft regulations--probably later this month.

While some of the changes were minor, there are some significant revisions that will affect the way we do IPM in schools in Texas (and maybe other states) for many years. One problem with the old rules was that there was a lot of confusion about what was meant by "IPM policies" and "IPM programs", both of which were required for all schools by state law. The new rules should be more clear, and spell out more explicitly what is meant by an IPM program.

Although the new rules still eschew an actual definition of IPM (there are almost as many definitions as there are people who try to define IPM), they do spell out what an IPM program should include. The rules will require a school IPM program to contain the following elements:

• a monitoring program to determine when pests are present or when pest problems are severe enough to justify corrective action;
• the use of the least-toxic effective methods available to control pests, rodents, insects and weeds;
• use of non-chemical management strategies where practical;
• a system for keeping records of facility inspection reports, pest-related work orders, pest control service reportes, pesticide application documentation, and pesticide complaints;
• a plan for educating and informing school district employees about their roles in the IPM program;
• and written guidelines (thresholds) for when pest control actions are justified.

In my opinion, if we can bring schools into compliance with this rough definition of IPM (and I think we've come a long way already), Texas schools can become a model of good institutional pest management for all school districts and even for PMPs around the country. I especially like the fact that Texas recognizes the importance of good recordkeeping and education as part of an effective IPM program.

They say there are two things you never want to watch being made: sausage and laws. Although we're not lawmakers, I believe the same rule of thumb applies to regulations. In our case there was a lot of discussion over what a monitoring program should look like, whether it should be "regular" or at predefined intervals, etc. We discussed the best wording for least-toxic, vs. least-risk, vs. low risk. Some discussions are inevitably tedious, but the committee's interest and attitude helped make it a lot less painful than other committees I've served on.

Besides defining the essential components of IPM, a few of the other key improvements were retaining most of the Green Category pesticide uses, requiring record retention for two years to make it compatible with other pesticide use rules (originally retention was proposed for five years, but industry objections made an impact here), and reducing the reentry periods from 12 hours to 4 and 8 hours for yellow and red category products, respectively. This last change is important. I am unaware of any scientific evidence to suggest that longer reentry times are needed for student safety, and shorter reentry requirements should make the job of controlling pests much easier for PMPs.

If you have an interest in school IPM regulations, keep alert for the new regulations. I will let you know when they come out. Whatever Texas comes up with will be a good example of a battle-tested model that other states interested in encouraging IPM and reducing pesticide exposure to students can learn from. And that sausage is worth tasting.

TDA considers wide range of pest control issues

Texas Department of Agriculture officials met yesterday with the Structural Pest Control Advisory Committee (SPCAC) to discuss school IPM rules and other areas of improvement for pesticide regulation. The SPCAC was created last year as an advisory body/sounding board for the Structural Pest Control Service (SPCS)--the regulatory agency that oversees all structural pest control activities in the state.

I have discussed the committee's activities in previous blogs, but wanted to give you an update on this most recent meeting. The first order of business was reviewing proposed legislation that could probably affect pest control in Texas. Catherine Wright-Steele, legislation director for TDA reported on five bills related to TDA/SPCS.

The SB 1016, the TDA Sunset Bill passed the Senate 4/16/2009 and has been referred to the House Ag & Livestock Committee. This year the TDA has been subjected to the same sunset review that the old Structural Pest Control Board faced during the last legislative session two years ago, before it was shut down and responsibilities transferred to TDA. The sunset process looks at state agencies and determines whether the agency is doing it's job and needs to be continued or shut down. Sunset review frequently also results in the legislature making changes to the way an agency's rules and regulations. According to Ms. Wright-Steele, the sunset process is going well for TDA and consists of mainly of ensuring that provisions of the Agriculture Code that apply to TDA programs also apply to the Occupations Code. No major changes to TDA operations are expected from the sunset process.

Other bills are generating some interest, comments and concerns by some in the pest control industry. Senate Bill 768 and HB 2038 make modifications in who might be exempt from regulation by the SPCS. Examples include those who use raptors (e.g., hawks) to control nuisance birds, anyone who uses live catch traps, chimney sweeps, and other non-pesticide (low risk) methods of controlling pests.

These bills illustrate the debate in the industry between those who want to require a license for nearly every kind of pest control action, and others who call for more freedom from regulation (especially for non-pesticide-related activities). The Texas Pest Control Association, for example, is concerned about exempting all activities that involve minimal risk to the public, as in SB 768. These are significant issues at stake here and it would be good for all readers to look these bills over and comment to their legislators very quickly. According to Catherine Wright-Steele, SB 768 appears poised to move forward quickly for full vote.

The committee also reviewed comments received in response to the proposed new rules for school IPM. In contrast to the first draft of the rules, when over 200 comments were received by TDA, less than two dozen comments were made. It appears that schools and PMPs appeared to be relatively satisfied with the new rules, though there were in fact few explicitly favorable comments received. Another difference with this round of comments was that most of those received appeared to come from community activists concerned with minimizing or eliminating pesticide use in schools. The committee went through all of the comments, and for the most part declined to recommend any significant changes in the proposed school IPM rules.

Finally, the committee considered three new areas of concern identified by Jimmy Bush and TDA. The areas of concern included unethical and illegal termite pre-treatments, inadequate insurance coverage by many Texas PMPs, and wood destroying insect reports. These issues were discussed at some length. Both pre-treatments and WDI reports have been dealt with at length in recent years by the Structural Pest Control Board. Three committee members volunteered to form the core of a committee to look into those three issues and make recommendations to the whole advisory committee and TDA. The problem with ensuring that termite pre-treatments are done properly is one that is repeated in states throughout the country. One of the public participants at the meeting, Mitch Wassom, recommended that TDA focus on improving the quality of residential pre-treatments instead of focusing on commercial pre-treatments. The termite risk is generally higher for residential homes, consequently the economic impact of poor or incomplete treatments is greater for new home buyers. This will be an extremely difficult problem to solve.

Background checks on all certified pesticide applicators in the state are nearly completed. Only a handful of licenses were revoked after consideration by a committee of five TDA employees. This has been a very time-consuming and ambitious undertaking but should serve to make professional pest control a safer and more secure service industry.

Structural Pest Control Advisory Committee Meets

Yesterday I traveled to Austin to meet again with the Advisory Committee for the Texas Structural Pest Control Service (SPCS). As usual, I am posting some of the highlights. This committee was set up as a way to continue to have public and professional input into the SPCS after the dissolution (Sunsetting) of the former Structural Pest Control Board in 2008.

Unlike the former Board, we don't have any authority--our purpose is merely advisory--but the meeting does provide a window into the issues and concerns facing the SPCS.

Maron Finley with SPCS started off the meeting by updating the committee on HB4159 that was introduced last fall into the U.S. House of Representatives. I blogged earlier this month about this bill, which would have the effect of undoing all the work done to date on Texas school IPM laws and regulations. It seems that the TDA, though they can't hold an official stance, is also concerned about the impact of the bill, and their staff is keeping an eye on its progress. The committee decided to draft a letter that would be sent to legislators, offering our take on the probable impact of legislation. A letter will be brought to the next committee meeting in April for committee approval.

Jimmy Bush, Assistant Commissioner for Pesticide Programs at Texas Department of Agriculture (TDA), spoke about the ongoing process of assimilating the SPCS into TDA. He noted that at the beginning they had basically "forklifted" the old agency (the Board) into TDA, knowing that eventually the system and processes of the old board would have to be fitted into the agency's existing system. Although he envisions leaving the old Board business model basically the same, his office is working hard to streamline paperwork for pest control licensees and the agency. Part of this is being accomplished by developing a website where licensees could view and even update their licensing information online. This would save paperwork and manpower for simple administrative changes, such as a technician moving from one company to another. Under the new system each licensed technician will have an account that would show their license information, including their CEU count, etc. The SPCS is seeking ideas on what PMPs would like to see in this system. I'm reminded of the new Windows 7 ads: "Windows 7 was my idea!" Now's your chance to write TDA a letter and make the SPCS site "your idea".

Bush said that fee increases are not currently on the table, but there may be some fee restructuring, especially for apprentice and technician licenses. Many of the operational changes, such as migrating licenses to the TDA database system, will be invisible to license holders. The website is one change that should be immediately apparent. Currently Bush hopes that the new system will be operational in 2-3 months.

One of the other behind the scenes activities at TDA is preparation of a 5% agency cut, due to the Legislative Budget Board by mid-February. Most Texas state agencies, including Texas AgriLife Extension, have been directed by the state to plan a 5% cut. The committee then discussed the fate of license fees collected by TDA. Like most fee-collecting agencies in Texas, all fees and fines collected by the TDA must go into the state General Fund. Traditionally, the SPCS and the former board bring more into state coffers than they spend in enforcement and administration.

The committee spent a considerable amount of time discussing how TDA should administer new rules requiring school IPM coordinators (IPMCs) to get 6 hours of continuing education every three years. This was our second time to discuss the issue. At last month's meeting most of the committee elected to allow IPMCs to obtain any CEUs that might be relevant to school pest control count toward the 6 hour requirement. I was uncomfortable with that decision and requested that the committee consider an alternative proposal. Actually there were two alternative proposals discussed: (1) to create a new CEU category for school IPM and require some or all 6 hours to come from that category; or (2) to require all 6 hours to come from an approved refresher course, similar to the courses now offered for new IPMCs. Disappointingly, the committee could not reach consensus on any of the choices, but I think the sometimes lively discussion did serve a purpose. It brought out all the points of view, with pros and cons for the different options. Now it appears it will be up to TDA to sort out the different views and come up with a plan that can be open to public hearings.

Mike Kelly and Jimmy Bush briefed the committee on the department's concerns about WDI reports. Wood Destroying Insect reports remain a low-level, chronic concern to the department--something the SPCS would like to see improved. Last year, Kelly reported, 139 consumer complaints were received by the SPCS for investigation. Twenty-one of the 139 complaints related to WDI reports. I was interested to learn that no one knows how many WDI reports are done in a year, and therefore what the actual complaint rate is. We learned that copies of WDIs are not required to be submitted to the department or any state agency. Also, the number of complaints may be an underestimate, since many disgruntled consumers do not contact the SPCS, but go directly to litigation.

Allison Cuellar, of the SPCS, provided a review of six other state WDI systems. Many states (e.g., Florida, Georgia, New Mexico and Louisiana) have separate license categories for WDI inspectors--Texas only requires WDI inspectors to have a termite license. Arkansas and Florida require the companies who conduct an inspection to provide some form of warranty for their work. Mike Kelly pointed out the need for making more PMPs aware of the existence of the instruction sheet for the Texas official WDI inspection forms. The need for more and better training in WDI inspections was discussed, but no specific recommendations were made. This poses a challenge for agencies like mine to make WDI training available--especially hands-on training. But without a mandate to attend I wonder how many inspectors would voluntarily take it?

Insurance for WDI inspectors also provoked some lively discussion. As I understand it, insurance companies are increasingly requiring their insured to carry both "general liability" policies and something called an "errors and omissions" policy. General liability is insurance coverage for damage a PMP might directly cause to a premise. It is sometimes unclear as to whether GL insurance covers damage that might result from something a PMP misdiagnosed or missed during an inspection. If not, then this sort of loss would be covered by an E&O policy. We were told by home inspector Bob Smith that E&O insurance typically costs a company $600 to $1000 more each year.

Some inspectors blame ambiguous rules, and the SPCS in particular, for not providing more clarity in stating exactly what kind of insurance is required. Personally I can't decide whether this is more of an insurance industry (free market) issue, a problem with the statutory language, or simply a lack of clear communication about what PMPs need by the SPCS. The TDA/SPCS appears to be leaning toward requiring termite companies (and home inspectors) to carry E&O insurance to meet the requirement of the law. The reasoning is that the Texas Occupations Code (part of state law) requires pest control businesses to have insurance that covers "liability for damage to persons or property occurring as a result of operations performed in the course of the business of structural pest control..." (Section 1951.312). If someone misses a pest infestation and damage or loss of value occurs to the home as a result (something that could happen in the course of doing business) many insurance companies require E&O insurance to cover such losses.

I'm a simple entomologist and have trouble keeping track of my home and auto insurance policies. But it seems to me that all PMPs with businesses should have a good heart-to-heart with their insurance agents. Make sure your business is adequately covered.

As the late Ken Myers pointed out in testimony to the committee last year, many PMPs appear to be confused right now as to what sort of coverage they really need. I agree that we need more clarity on this issue.

What's going on with pest control in Texas?

Who wants to go to a committee meeting?  Especially if you're not on the committee? So if visitor counts are any indication, either things are pretty slow in Austin these days or the Structural Pest Control Advisory Committee is a hot ticket right now. Most visitor chairs around the room were full at last month's meeting in the Texas Department of Agriculture (TDA) headquarters building.  

Bad picture, I know.  But here's proof that
the SPCAC was hard at work last month
at the Texas Department of Agriculture
offices in Austin.

October 30 was the first followup meeting to last spring's lively session focused mostly on TDA Structural Pest Control Service's (SPCS) enforcement activity.  It's no secret that many in the industry feel that "the bad guys" (shady pest control companies operating under the radar and outside the rules in Texas) are not being sufficiently policed by regulators since the former Structural Pest Control Board merged with the Texas Department of Agriculture and formed the new SPCS division.  Based on what I heard at this meeting, I think the TDA has heard those complaints, and is responding, especially when it comes to fumigations.

Several inspection issues were brought up and solutions suggested at the meeting.  Pretreatment notifications have historically been a slow and cumbersome process with inspectors often not receiving word of a planned termite pretreatment until it was starting or already completed. According to official Mike Kelly, the department wants to bring this process online for increased speed and efficiency. This will allow pest control companies to go online to report a pretreatment appointment, and will allow inspectors to get electronic notifications of all planned pretreatments twice a day.  Current rules require operators to call, email or FAX notifications to the department. Last year there were 6,275 notices of termite pretreatment and 1,076 fumigation notices received...a lot of office time.  This change in procedures could save significant staff time handling notifications. Lots of smiles around the table!

Most of us were especially interested in a followup report from last spring's discussion of a May 2013  apparent violation by a fumigator that occurred in Boerne, TX and was detailed at that time by committee member Warren Remmey.  Mike Kelly of TDA explained some of the circumstances around the event including lack of evidence to verify that the fumigator was actually carrying gas cylinders when delivering tarps to a home in an unmarked truck (a violation of SPCS rules). After the meeting the inspector on the site, Kelly reported, the fumigator claimed that the reason no notification was filed was because a truck carrying gas was delayed with mechanical problems, and he didn't know when it would arrive--skeptical looks around the table. Nevertheless the tarps that were installed on the day of the incident remained in place over the house more than a week before the gas arrived and the SPCS was finally notified, and attended the fumigation. 

No citations were issued in the case (no smiles around the table), but Kelly reported that steps have been taken to improve training and enforcement of fumigators by their inspector staff.  For one thing, Larry Riggs of Ensystex, a former regulator, has agreed to help provide fumigation training for inspectors.  Dr. Rudy Scheffran at the University of Florida will also host four inspectors at his fumigation training school in Florida this year. TDA has also formed a task force to advise the agency on fumigation-related issues. Debbie Aguirre of Elite Exterminating, Corpus Christi, has been leading the group. Since the April 11 meeting, TDA has conducted 11 fumigation inspections.  The committee thanked Kelly and the staff for responding to concerns from the last meeting, especially the training initiatives for inspectors. The committee was smiling again.

After this Debbie Aguirre presented suggestions from the task force for changes to the structural fumigation requirements.  One of the major problems her team has identified is that companies often subcontract or sub-sub-contract fumigation jobs, and its not always clear who is the responsible party is when communicating instructions to the customer and when planning the job. TDA staff have agreed to review the fumigation committee suggestions and bring back legally suitable language for a second review by the SPCAC.  

Kelly also announced that TDA is planning to eliminate fees for CEU course sponsors.  Currently anyone organizing a CEU class must pay TDA a $48 fee for each CEU provided.  Kelly says the department has determined these fees were not necessary and will be eliminated.  I sensed CEU providers all over the state smiling at this one.

Also bringing smiles to all the PMPs on the committee was a proposal to change the long problematic rule on advertising.  A problem with this rule has been that the rule was written to require licensed companies to not use false or deceptive advertising. The current wording makes it difficult for the department to penalize unlicensed operators from making false or deceptive claims online or in newspaper.  The advertiser would have to be actually observed making a pest control treatment to be penalized under the existing rule.  Two new paragraphs will be added to the section expanding the rule to apply to anyone offering to perform pest control services. In addition all advertisements must include the official business name as listed on the business license. The committee objected to an additional requirement to include the business license number on all advertisements, and it was removed.  

Also in response to requests to provide more information about enforcement actions, Stephen Pahl introduced new staff members including new chief counsel Martina Berrera, a former prosecuting attorney and judge.  She has been with the department for two months and is eager to get to know the industry and work to address concerns. She replaces outgoing counsel David Gibson.   

The SPCS includes both "Program staff", including inspectors, and "Enforcement staff". Program staff are required by law to conduct 480 inspections of non-commercial applicators, 200 use observations of structural licensees, 950 commercial business inspections.  In addition they must inspect approximately 250 school districts each year.  Also program staff must respond to complaints (46 so far in FY2014). Not all violation cases investigated by program staff get turned over to enforcement.  In 2014, we learned, program staff forwarded 40 cases involving unlicensed activity to Enforcement. For schools with unlicensed activity a non-compliance advisory letter is usually sent without a fine.  For violations at commercial businesses and non-commercial locations, Enforcement may issue a Notice of Violation (NOV), a warning, or take no action (e.g., when a business has shut down or the complainant may not be willing to pursue the case).  

Numbers of consumer complaints (46) have decreased significantly this year from prior years (ave. 181 per year 2011-13).  Although the agency reports that the number of consumer complaints have been decreasing for the past 12 years, this year's large drop appears due largely due to the department no longer accepting consumer complaints about poor service or failure of a company to control pests. Now the only complaints accepted for investigations are those involving possible infractions of the rules or law. As I see it, this amounts to a significant change in policy, redirecting the agency away from  consumer advocacy, to being a law enforcement agency only.  These changes appear to be necessary given tighter budgets over the past several years.  Mostly blank faces on the committee.

Visitors who attend these committee meetings do get an opportunity to comment if they wish.  Don Ward left a comment from the Texas Pest Control Association suggesting that SPCS host a class for pest control office staffers to appraise them of what they can and can't say and do.  He also indicated TPCA support for the advertising changes. Bryan Springer with Bevis Pest Control, Houston, commented that with all the regulations and safety requirements in place, the safety record of professional fumigation is good.  Harvey West of Coastal Fumigators, Houston, encouraged SPCS to provide and train inspectors to carry fumigant gas measurement devices to ensure accurate dosing of commercial fumigations.  He also urged the department to do something to discourage the practice of allowing spot treatments for drywood termites to suffice for passing real estate transactions.  Spot treatments are notoriously unreliable for eliminating drywood termite infestations in homes.

The committee adjourned after approximately a three hour meeting.  Smiles all around. 

Winter Structural Pest Control Advisory Committee

I just returned from the Texas Department of Agriculture's quarterly Structural Pest Control Advisory Committee meeting.  The purpose of the committee is to advise the TDA and its commissioner on education and curricula for PMPs, examinations, proposed rules and standards on technical issues related to pest control, fees and other issues affecting the practice of pest control in Texas.

Today's meeting was relatively brief, but informative. We met two TDA staffers that work actively behind the scenes on pesticide-related issues.  Rafael Paonessa is in charge of reviewing and approving the structural pest control CEU courses that all license holders must attend each year.  Rafael is the person I deal with to get approval for CEU classes that we offer.  He is always efficient and easy to work with.  He reported on recent overhauls of forms and procedures used in the re-certification program.

The biggest changes in the recertification process are in how course providers handle class attendance records, a subject I wrote about in detail last November.   The most common issue in getting courses approved, he said, is when providers do not provide enough detail about the planned course(s).  It's important to provide enough information for his office to determine whether the course meets department guidelines. It's also important that class content relates directly to pesticide use or pest management. General horticultural topics, or workplace safety topics (unrelated to pesticide safety), for example, will not be approved. The department does conduct spot checks of CEU classes to make sure the content is being covered and does not consist of advertising for a particular product or company.  Detailed information on putting together a course for CEUs is available in the just revised Pesticide Recertification Course Accreditation Guide, which is available online.

A new EPA-mandated Pollinator Protection Icon
will appear on many new pesticide labels.

The other employee we met today was Dale Scott. Dale handles the pesticide product evaluation and registration system at TDA. Many people believe that EPA is THE agency that approves pesticide labels, but in fact all pesticides must also be registered by each state in which they will be sold. This is why not all pesticides are registered, or legal for use, in all states.  Approximately 16,000 pesticide labels are registered in the state at any time, and his office processes about 3,500 new pesticide registration requests every year.

Dale reviewed information about new pollinator protection guidelines that are beginning to appear on pesticide labels. Four neonicotinoid insecticides will be the first insecticides to come under the new pollinator protection label guidelines. Changes to look for include pollinator protection information under all Directions for Use statements, a new bee icon to draw attention to pollinator protection information, and consistent warning label language about applying insecticides when bees are actively foraging.  This is a topic that all pest management companies and technicians should be aware of. Dale promised to make his PowerPoint on the topic available to the committee.

Also, Maron Finley, IPM in Schools specialist in the department reported on the top ten violations found in school IPM program inspections this past year. Most, he noted, related to inadequate record keeping. In order, they included:

1. No written guidelines that identify pest thresholds.  (155 violations, 39% of schools)
2. Not maintaining records showing approvals of Yellow Category pesticides (93 violations, 23% of schools)
3. IPM program records not maintained for the required time period (64 violations, 16% of schools)
4. IPM Coordinator not conducting periodic facility inspections (63 violations, 16% of schools)
5. No system for keeping records of facility inspection reports, pest control service reports, or pesticide applications (57 violations, 14% of schools)
6. No plan for educating and informing school district employees about their roles in the IPM program (54 violations, 13% of schools)
7. No monitoring program to determine when pests are present (48 violations, 12% of schools)
8. No reference [in the IPM policy] to Texas laws and rules governing pesticide use and IPM in schools (40 violations, 10% of schools)
9. IPM Coordinator training not completed within six months of appointment (32 violations, 8% of schools)
10. Name and license numbers of persons applying pesticides not on file (31 schools, 8% of schools)

A more serious violation, which occurred only 10 times, and did not make the Top Ten list, was applications made by non-licensed applicators.  Maron noted that 9 of these violators were small, class 1A to 3A, schools, and that all were in rural communities.  

Several on the committee commented that the overall violation rates seem low, and that compared to when the school IPM program first started, the state has made very good progress.  Nevertheless, everyone agrees that there is more work to be done to increase compliance.  Stephen Pahl expressed the desire for TDA to do more outreach to school administrators.  TASB, TASBO, and TASA are three school-oriented organizations that have ongoing meetings where school IPM talks can be presented.  George Scherer, of Texas Association of School Boards, was present and commented during public testimony that it is possible to get the names and contact information for school board members if needed during the compliance assistance phase of helping a school district.

Arnold Anderson, from Katy ISD, provided testimony on the subject of violations during the public comment portion of the meeting.  He suggested that schools with little experience in IPM should be encouraged to seek out a mentor school district rather than being fined. A suggestion was made that perhaps the TDA could facilitate mentoring by maintaining a current list of districts willing to mentor other districts in their IPM program development.  This might be another way TDA could reduce the number of school IPM violations without having to resort to administrative fines or penalties.

Finally, we were advised today that there is still an opening on the Advisory Committee.  If you know of someone who is not connected directly or indirectly with the pest control industry, and is interested in serving as a public member of the committee (with no pay or travel reimbursement), Leslie Smith is accepting applicants.

Advisory committee puts in a full day

State law requires that the Texas Department of Agriculture's Structural Pest Control Service be advised by a special public advisory committee.  Last week the SPCAC met for its quarterly meeting with a full agenda.  Present were Peggy Caruso (Katy ISD) and Johnny Hibbs (Carrollton Farmer's Branch ISD), public members; Dauphin Ewart (Bug Master Pest Control, Austin) representing the pest control industry; Dr. Thandi Ziqubu Page (Texas Department of State Health Services); and me, representing an institute of higher education.  Three other members (two pest control and one public member) were unable to attend, and one position on the committee (a consumer group representative) has been unfilled for three years.

This month's agenda was packed with topics about significant changes in pest control regulation in Texas.  I apologize for the long post today, but it was a long session with a lot of interesting discussion.

Penalty Matrix
As I discussed in my last report, one industry complaint heard around the state, especially during the tenure of the former Structural Pest Control Board, concerned the consistency of penalties for various infractions.  Two different companies with the same infraction might have substantially different fines.  To bring more transparency to the penalty process the SPCS has proposed a new penalty matrix, taking into account comments and recommendations made at our last advisory meeting.

The new version of the penalty matrix consists of a list of all possible infractions, each of which is assigned to one of three tables of penalties. The three penalty tables include: S1 (low hazard potential fines), S2 (moderate hazard potential fines) and S3 (high hazard potential fines).  As you might guess, fines go up from tables S1 to S3.  In the new matrix, a given violation type is merely classified as an S1, S2, or S3 infraction, with final assignment of low, moderate or high hazard to be determined by SPCS staff in consultation with counsel.  This will still allow some flexibility and discretion in assigning fines, but is more transparent than the previous system.  Discussion centered around whether it was better to have a very rigid or flexible system.  The committee preferred keeping some flexibility in the system, with the idea that the new matrix is less subjective and should be more consistent than the current matrix with its wide ranges of penalties.  This particular internal system does not have to be publicly reviewed, but can always be commented on once it is implemented.  A copy of the new penalty matrix should be available upon request to the SPCS.

Testing 
The new system for taking technician and license exams is now up and running. The TDA has contracted with a test service provider, PSI Exams Online, to take over the examination role for structural pesticide applicators.  The new web page describing changes to the process of getting your exam is accessed here.  The new system is not only $11 cheaper, there are more testing centers than before, making it more convenient for most people.  Testing will no longer be offered at TDA offices, only at the PSI test centers.  To find a center near you go to the PSI website. To learn about the whole process, there is a detailed information booklet for test takers.

Changes to TDA Rules
As part of a routine four year review by the legislature, TDA staffers have been reviewing and updating the regulations pertaining to structural pest control. The committee was shown these proposed changes and provided feedback on each of them. Twenty-nine rules were reviewed, with some of them deferred for later action.  Some of the more interesting and important changes and clarification included:

• Rule 7.134. Every other year licensees will be able to get all continuing education credits for the year via online or self study courses. The reason for the every other year limitation is that the TDA wants to continue to encourage face-to-face contact with instructors, and is still concerned about a certain loss of accountability of course attendees who do not physically appear at a CEU course.  This is a change from the current rule which only allows one CEU per year to be obtained using self-study or electronic courses. 
• Rule 7.134. The rules will be clarified to ensure that certificates of completion for CEU courses must be kept for two calendar years after the calendar year in which the CEUs were obtained.  Apparently some folks were discarding their CEU proof of attendance exactly two years after the date of the class, which is earlier than was intended by TDA.
• Rule 7.141. Every licensee and apprentice must carry their license or registration card with them at all times when doing pest control, and must show the card when requested by a customer, a TDA employee, a State Health Services employee, an EPA employee or a state or federal law enforcement officer.
• Rule 7.146 (d. to be deleted) Indoor posting for schools, and other sites that require it, will no longer be required if the only pesticide application to be made to the structure is an outside perimeter treatment. 
• Rule 7.147 clarifies that the applicator or technician does not have to physically hand or deliver the Consumer Information Sheet to a customer, only make it available to them (e.g., via website).  This wording is being changed to reflect changes made to the statute two years ago.
• Rule 7.150 (a)(1)(D). Schools will no longer be required to conduct or produce records of annual facility inspection reports. While everyone agrees that facility inspections are important to do, there was a feeling that the requirement was burdensome on even the most diligent schools. The school members of the committee had no objection to this change.
• Rule 7.150 (b)(2,3) The rules for CEU requirements for school IPM coordinators (SIPMCs) have been developed and, according to TDA staffers, will not go into effect until final posting of the rules. This means that, despite some understanding to the contrary over the past few years, SIPMCs are at this time still  not required to complete any CEUs. So if you're an SIPMC and you've been sweating getting your six CEUs before the end of the year--and wondering what classes you need to get, you can relax--at least for the moment.
  
  This rules clarifies specifically what the new CEU requirements will look like.  While SIPMCs do not have to carry a pesticide applicator's license, they do have to take a 6-hour class to teach them how to be a SIPMC. Four years ago the legislature passed an additional statute that requires all SIPMCs to have continuing education.  The proposed rule says that all IPM coordinators must obtain 6 hours of CEUs every three years, starting whenever the rules become effective (later this year), or at the date of completion of mandatory school IPM coordinator 6-hour training.  One of the six CEUs, according to the rules, must be in laws and regulations specific to school IPM in Texas.  The other five CEUs may be in pest, lawn and ornamental, weed control or general IPM categories, approved for a structural pest control licenses. According to what we were told, 3A (agriculture) credits would not be acceptable for re-certification.  Any SIPMC who does hold a structural non-commercial applicator's license, can also count any structural CEUs for SIPMC re-certification, and vice versa.
• Rule 7.150 (d)(4). This rule now allows use of monitoring devices that do not use pesticides by unlicensed school district personnel for purposes of monitoring.  The committee asked that the rule clearly specify such devices are only to be used for monitoring, and that any applications of monitoring devices be under the supervision of the IPM coordinator. This rule attempts to balance schools' desires to be able to use sticky traps to know what's going on in their buildings with concerns about untrained and unlicensed individuals doing pest control. 
• New Rule 7.151. This new rule is proposed to improve safety of stored pesticides by requiring that all pesticide containers in storage have a physical label and that any containers without a label, and of unknown identity, be disposed of, and not used for pest control.
• Rule 7.176.  A new paragraph to this rule would prohibit pest control companies who provide WDIRs from providing termite estimates or conducting termite service on the same property as covered by the WDIR.  As a result of our discussion SPCS staff agreed to reexamine better ways to deal with concerns about fraudulent WDIR reports.

Lastly, there was some discussion of a House bill, HB3567, that would mandate a change in the composition of this advisory committee.  The bill, sponsored by Rep. Tim Kleinschmidt, would eliminate the Texas A&M (higher ed) representative and the representative of the Department of State Health Services, replacing them with industry representatives.  The existence of the bill in its current form puts at least a couple of us on the committee in limbo between now and the next scheduled meeting in July. If you have thoughts about this bill you can contact Representative Kleinschmidt or the Texas Pest Control Association.

Advising Austin

The Stephen F. Austin State Office Building in Austin is
home to the Texas Department of Agriculture.

Last Thursday, 21 November, was the first meeting of the new Structural Pest Control Advisory Committe (SPCAC), which provides input to the Texas Department of Agriculture's Structural Pest Control Service.  I say "new committee" because the size and composition of the committee has been significantly revamped since it last met in April. Only four of last year's committee members remain, and seven members are new.

By way of review, the SPCAC has an advisory role only and does not make or enforce rules governing pest control in the state.  The committee meetings are, however, one of the few venues where PMPs (and consumers) can formally offer input into the way the their industry is regulated (it is common, for example, for visitors to the SPCAC to sign up to present public testimony on subjects related to pest control).  The SPCAC is also a way for anyone who is interested in the sometimes mundane details of pest control in Texas to learn what is going on inside the halls of the Stephen F. Austin Building, home to the Texas Department of Agriculture.

The changes to the committee this year are the result of a bill passed during the 2013 Legislative session that expanded the committee to 11 from the original 9 set by the 2007 Legislature. The committee seemed even larger this time, however, since one position (a consumer advocate position) had remained unfilled since the original committee was founded.

I found the expanded committee excited and ready to assume its new tasks.  Much of the meeting was devoted to learning the requirements for Open Meetings, and how to handle Public Information Requests; however I thought it would be good to introduce the new committee and share a couple of the more significant new business items discussed.  

New Membership List

• Peggy Caruso, IPM Coordinator from Katy ISD, is an original committee member and represents the seat for a school district employee associated with school IPM.
• Dauphin Ewart, of the Austin company "The Bug Master" remains from last year's committee and is one of three members representing the interests of structural pest control operators.
• Warren Remmey, Jr. also represents the interests of structural pest control operators and is owner of Spider Man Pest Control in San Antonio.
• Scott Dickens is the third structural pest control operator member, Past President of TPCA, and owner of Champions Pest Control in Spring, TX.
• Some of you may remember Roger Borgelt as a former attorney for the Structural Pest Control Board. Roger was appointed as one of three members representing the public interest, and was elected to be the new committee chair at this meeting.
• Dr. Nancy Crider is a faculty member for the University of Texas Southwest Medical School and a registered nurse.  She represents the public interest.
• Nancy Zaiontz, of GSM Insurors of San Antonio, is the new member representing interests of consumers.
• Jay Jorns, of JNJ Pest Control in Katy represents pest management professionals with experience in natural, organic or holistic pest control.
• Dr. Thandi Ziqubu-Page is an original committee member and represents the Commissioner of the Department of State Health Services.
• I also serve on the committee representing an institution of higher education with experience in the science of pests and pest control.
• There remains one vacant, public member position on the committee.

I was impressed with the credentials and enthusiasm of the reformed committee, and I think it will work well together. I think the expanded size will also benefit all parties as more points of view are expressed.  Any of us who serve are always willing to answer questions and discuss issues with you.  For a current listing of the committee and its meeting dates, click here.

Revamped Web Search Tool

The new license search tool on the TDA website
provides a more user-friendly way to find
pest control licensees or businesses in Texas.

Mike Kelly, SPCS Coordinator, and Leslie Smith, Director for Consumer Service Protection at TDA, demonstrated and answered questions about the new web search tool for Texas Pest Control businesses.  Currently the TDA website allows consumers, or any interested party, to search for any license holder or business online.  Up until now the only way to search was to go to the SPCS page and click on Current Licenses.  There you see a set of files in CSV format (which can be opened in MicroSoft Excel).  One has to save the file and open it in a spreadsheet and search for the information. Not extremely user friendly.

The new search tool allows you to search by zip code and refine your search while looking on a zoom-able map. Choose by license category or search directly by a business name or license number.  This tool should be useful for anyone wishing to confirm a legal license holder, or to search for an official address and phone number.  Since its launch October 8th, 1245 people have accessed the map view feature. 

Compliant Advertising

A big issue for many pest control businesses is making sure that their advertising is compliant with state law governing deceptive advertising.  Texas Department of Agriculture staffer Michael Kelly asked the committee for input on some new wording for Rule 7.152, governing pest control ads.  The changes would mainly require all ads to include the business name as indicated on the business license, and the business license number.  It's interesting how many different issues must be addressed, even with such a simple improvement to the rules. For example, the committee pointed out that font size requirements (critical in Yellow Page or newspaper ads) might not apply to a website.  And the proposed wording didn't define clearly what constitutes advertising.  Would a Facebook page for a company, or a Craigslist or Angie's List ad, be subject to these new requirements? Keep your eyes open for a more refined version of the draft rules to come out soon for public comment.

New Testing System

In April the TDA rolled out its new examination system, implemented to allow anyone who has applied and pre-qualified to take their applicators' or technicians' or category exams.  Now applicants can test on any day of the week, and at any of 22 PSI Online testing sites throughout the state.  By all accounts the roll out has been successful with the new sites administering 582 certified applicator exams, 1 fumigator exam and 683 technician exams between 15 April and 13 November.  Statistics show that 44% of certified applicator candidates for pest control passed on their first try and 60% passed on their second try.  Pest control technicians passed 88% of the time on their first try.  

In addition to these topics, the committee discussed ways to better educate consumers on how to recognize and deal with unlicensed applicators, regulatory review of rules regarding license applicants with criminal backgrounds or arrests, and rules being written (in response to SB 162, recently passed) allowing military personnel to count relevant military experience in pest control toward their certified applicator and technician licensing requirements.  We also learned that the extensive rule clarifications, including CEU requirements for school IPM Coordinators, discussed in April have not yet been published in the Texas Register due to an unexpected staff shortage due to illness.  

Future Meetings

If you have any interest in attending future meetings of the SPCAC, they are normally held the third Thursday of the months of January, April, July and October.  Next year's scheduled meetings are on 23 January, 24 April, 24 July, and 23 October.  The meetings are always held at 9 am at the Stephen F. Austin Building at 1700 North Congress, in Austin, TX  78701. Because schedules do change, should a quorum not be available, it's a good idea to check with the agency or one of the committee members before showing up at the door.

Winter Structural Pest Control Advisory Committee meeting

It was a cold, wet day in Austin this week as the Structural Pest Control Advisory Committee met to discuss the business of pest control regulation in Texas. Much of the meeting was going over rules drafted by the SPCS staff that will impact just about anyone who does structural fumigation, provides termite estimates, or who want to get continuing education units online.

Mike Kelly, staff member for the Structural Pest Control Service (SPCS), presented a rough draft of new document requirements for termite treatment disclosures, or as they are now called: "Subterranean Termite, Drywood Termite and Related Wood Destroying Insect Treatment Disclosure Documents" (The new name may be good for clarity, but sometimes I think government rules eat as much wood--in the form of paper--as termites).  Most of the changes are minor, designed to make the regs easier to read; however one positive significant change is that written estimates using these documents will now have to be made by a licensed technician or Certified Applicator--not an unlicensed sales person or office staffer.

Following up on industry recommendations from last meeting, Kelly also presented proposed changes for Structural Fumigation Requirements.  To anyone who is not a fumigator, fumigation requirements are about as exciting as a wait at the DMV.  But to fumigators, any change in rules can be grounds for fightin'.  Acting on our last meeting's discussion, the biggest changes to the rules included an attempt to clarify the responsibilities of fumigation contractors and subcontractors.

Danielle Dean (right) and Betty Thornton explained the new
CEU course they have developed for pest control office
managers and staff. 

Now if it were up to me, I'm not sure I would let anyone subcontract fumigation jobs. Fumigation is risky and technically complicated, and way too many things can go wrong (communications wise) between the customer and the subcontractor(s) who actually does the work.  But that's not the law, so these new rules attempt to reduce the risk of misunderstanding between fumigator and customer. As you might guess, there will be more paperwork.

One proposed rule change specified that only a registered apprentice, licensed technician or certified applicator (CA) can assist the supervising CA with introducing fumigants, or performing reentry and aeration activities. Also Kelly proposed to clarify wording on the required condition of tarps used in sealing in fumigant gases, and what the official time for a start of fumigation should be based on.  Both Brian Springer, Bevis Pest Control, and Debbie Aguirre, Elite Exterminating, commented passionately on the requirements--Springer noting the stellar human safety record of structural fumigation in Texas in recent years.  If you have anything to do with fumigation in Texas, you'll want to review these new regs carefully when they come out this spring. None of the rules are official until you get a chance to review them, and if you're a fumigator I'm sure you'll have an opinion.

We also discussed online CEU courses as supplements or replacements for face-to-face training. There have been numerous proposals over the years to allow applicators to get training remotely; but concerns about accountability, quality of courses, and security have slowed approval of this option.  The committee heard from AgriLife Communications specialist Holly Jarvis and representatives from online training provider, eStrategy Solutions.  According to Jarvis, there are now multiple ways to make these courses interactive, and accountability can be even better than live courses. Committee members felt that it was time to make electronic courses a routine way for license holders to get the CEUs they need.  In addition to the convenience of getting training on any day you need it, online CEU courses allow the applicator a choice of training topics, including difficult-to-find CEUs, like fumigation.  We recommended eliminating the proposed restriction that online CEUs be allowed only every other year.  Such changes won't mean that CEU workshops with face-to-face training are going away anytime soon, but do they mean you'll have more choices when it comes to getting your CEUs.

The highlight of this month's meeting was a presentation by Betty Thornton, Alvin Pest Control, and Danielle Dean, bwi Companies.  Thornton and Dean met earlier in the year with staff at the SPCS to educate themselves about regulations that might affect office staffers at pest control companies. It turns out that a number of laws and rules limit what advice an unlicensed staffer can say to customers over the phone. An unlicensed person, for example, cannot diagnose a pest problem or offer price quotes to someone over the phone or via email. They took lessons-learned and developed a course for office staff and technicians that includes what you can and can't say over the phone, going paperless in a pest control office, role playing, how to get a new technician registered to take their license exam, how to survive a 14-point inspection, and avoiding the top 10 non-compliance issues.  Both Thorton and Dean were engaging and enthusiastic.  They have given their (approved CEU) course several times and are willing to go on the road for groups that want to sponsor them.

Office staff are a critical, and often neglected, segment of the pest control industry.  I commend the SPCS for their train-the-trainer efforts, and hope that all these efforts result in better trained office staff throughout the state. I think bringing office managers and staff into the training picture could turn out to be one of the single most significant things we can do to improve compliance with our pest control laws in Texas.

Perhaps not many of you make it to the end of these long reports.  But the last thing I want to say is that this meeting was very significant to me in that it marks the end of my appointment to the SPCS committee.  By completing the end of my second term I am required by another one of those dern rules to step down and let someone else get to drive to Austin four times a year.  I anticipate that my replacement will be Dr. Robert Puckett, our newly hired extension urban entomologist in College Station.  I know he is excited about the chance to serve and will do a great job representing Texas A&M AgriLife.  My thanks to all the faithful committee members who have served this committee on their own dime over the years, and to the TDA/SPCS staff who take the time to listen.  It's been a pleasure.

Advisory Committee gets briefing on TDA issues

Yesterday the Structural Pest Control Service Advisory Committee (SPCSAC) held its summer meeting with Texas Department of Agriculture (TDA) to hear updates and offer input on current activities of the agency that regulates commercial pest control in Texas.

Much of the meeting was devoted to a review of changes resulting from the recently ended legislative session in Austin. Two bills that passed this session will limit the activities that can be regulated by TDA. Falconers with permits, who use raptors to control or scare away pestiferous wildlife, are now clearly exempt from needing a pest control license (H.B. 693, sponsored by Vicki Truitt, House District 98, Keller). A more expansive bill, (S.B. 768, sponsored by Glen Hegar, Senate District 18, Katy) added falconry (repetitive with H.B.693), chimney sweeps, use of live traps, mechanical weed removal, and installation of "non-pesticidal barriers" to the list of people and activities that are exempt from requiring a pest control license.

The most significant legislative event for TDA this year was passage of the Sunset Bill (S.B. 1016). In Texas every state agency is required to go through Sunset Review every 12 years. A Sunset committee exaustively reviews all agencies up for review to ensure that the agencies are still needed, are performing their jobs properly, and that laws and regulations governing the agencies are up-to-date and operating efficiently. The result of this year's sunset review is that TDA has been reauthorized. Also, a number of sections of the Agriculture and Occupations Codes have been revised to make sure that the regulations governing the agricultural and occupational (pest control) parts of TDA's regulatory authority work efficiently together.

Some of the key changes resulting from the 2009 Sunset Bill include:

• An increase in the maximum fines the Agency can impose for violations of the Agriculture or Occupational Codes. Previously the agency could fine violators $2000 per infraction per day for a maximum of $4000. Now the Agency can impose fines of $5000 per infraction per day with no limit to how many days the fines can accumulate.
• Clarifying language that allows the agency to modify license renewal dates for ag and pest control licenses, harmonize testing procedures for both ag and pest control areas, and adjust length of terms for various licenses.
  
• Agency is now required to conduct regular analysis of its records of complaints and pesticide violations for analysis and planning purposes.
• Agency may conduct unannounced inspections during regular business hours (Assistant Commissioner Bush assured the committee that unless there is a good reason, the agency plans to continue its policy of providing notices of inspection ahead of time).
• Clerical employees and manual laborers who are not directly involved in pesticide applications for a pest control business are no longer required to have a pesticide applicator's license.
• The need for pesticide applicators who perform pest control on growing plants, trees, shrubs and grass to obtain a nursery-floral certificate to qualify for agricultural licensing is now eliminated. Such applicators can be licensed through either the agricultural code licensing or the occupational code licensing programs.
• Allows the TDA to appoint a consumer representative to the SPCSAC without the specific recommendation of a consumer's group (TDA could get no recommendations from a Texas consumer's group when approached last year. So this provision will allow them to quickly fill the remaining slot on the SPCSAC).
• Authorized TDA to enter into reciprocal licensing agreements with other states (for CEUs, certain testing requirements, etc.)
• Changed multiple rules that required applicators to for "give" or "provide" or "leave" pest control information sheets with workplaces, schools, apartments and other customers. Now the applicator is required only to "make available" the consumer information sheets to such customers. The significance of this change was discussed at some length, with some of us expressing concern that this change would encourage applicators to neglect informing their customers of the availability of these sheets, and result in fewer consumers knowing about their rights and who to contact in the case of complaints. Assistant Commissioner Jimmy Bush said that it is their hope that there is little change people receiving the information. The intent of the change was to reduce the need to provide repetitive paperwork everytime a service visit is conducted and encourage electronic notifications. The essence of the discussion seemed to be that TDA is going to take a more relaxed attitude towards applicators providing consumer information sheets at every service visit.

In addition to updates from the legislative session, the committee discussed the new plans for CEU requirements for school IPM coordinators (SIPMC). Under the recently updated regulations that went into effect July 7, SIPMCs are required to obtain six hours of department-approved CEUs every three years. General discussion points included the question of whether a certain number of CEUs would have to be on laws and regulations, whether each CEU could be obtained separately, what criteria TDA should use in determining whether a course would qualify for a SIPMC CEU, and how the CEUs would be enforced.

The committee agreed that some of the CEUs should include laws and regulations, most of us thought that at least 2 CEUs should come from this category. The committee seemed to agree that CEUs should be available to be obtained individually, and that obtaining them electronically would be a cost-effective and environmentally sound alternative to face-to-face meetings--especially for small, isolated school districts. Some of us, however, felt that at least some CEUs should be obtained through face-to-face training--something that Jimmy Bush said could be worked into the rules. One suggestion was that the CEU requirements might be vetted through the new SIPMC association that will be organizing in November in San Marcos.

The topic of use of pesticides as part of school curricula was brought up briefly, with Jimmy Bush stating that TDA would have no objections to exemptions to the school IPM rules for pesticides used as part of school lessons or laboratory experiments. Pesticides in such cases would be handled by schools in a manner similar to any other hazardous material in a lab.

Insurance remains a hot topic between the industry and TDA. At issue is whether the current requirements do enough to protect the consumer from errors and omissions that might be made by a licensed applicator. Although some insurance policies include provisions for errors and omissions made by an applicator (e.g., not noticing a termite infestation during a wood-destroying insect (WDI) inspection), many do not. The TPCA objects to making E&O insurance a requirement due to increased costs. Apparently the only other occupation regulated by the state that is required to have E&O insurance is home inspection, a profession that has many similarities to pest control, especially WDI inspectors. Mike Kelly of TDA noted that inspectors have been instructed not to review insurance policies during this time, until the department can determine its position on the kinds of liability insurance it will require for licensed businesses.

Poor or illegal termite pre-treatments is a chronic problem that numerous committees and regulators have struggled with over the years. A subcommittee of the SPCSAC began meeting after this session to start discussions on how to improve regulations of termite pre-treatments without overly burdening honest operators. If you have thoughts on this subject, you should contact me or (even better) one of the members of this subcommittee (Bill Stepan, Greg Orr, or Tommy Kezar).

These meetings are long, but very informative in knowing what is going on in the state with respect to regulations. The meetings are always open to the public. The next meeting will take place October 29 in Austin at TDA headquarters.

New TDA leadership learning pest control

Yesterday was the first Structural Pest Control Service Advisory Committee (SPCS-AC) meeting since the retirement of Jimmy Bush, and the new leadership showed up eager to listen and learn. Leading the meeting was David Kostroun, new Chief Administrator for Agriculture and Consumer Protection.  Also in attendance was Stephen Pahl (Administrator for Consumer Protection) and Leslie Smith (Director for Consumer Service Protection), who directly supervises Michael Kelly the Coordinator for SPCS.

David Kostroun is one of the good guys.  By that I mean that he's an entomologist and former Extension specialist (:-)).  He has has worked for TDA for 16 years, has little background in structural pest control, but is eager to be better acquainted with the industry.  Leslie Smith has 23 years in pesticide programs, but is also new to structural pest control, as is Stephen Pahl is a former TDA ag inspector. Over the next year or so it's important for all of us to get to know these new leaders, so if you run into any of them at industry functions I know they would like to meet you and learn about your interests and concerns.

Impact of Legislative Session on TDA

Last summer the agency that regulates pest control and oversees the state's agricultural programs was hit by the state legislature with a 40-45% budget cut.  This meant reducing TDA staff by 140 full-time equivalents (FTEs) and forcing the agency to rely even more on "cost recovery".  Fortunately the cuts did not affect inspector ranks, but it did require the agency to raise fees by 57%.  House bill 2742 also reinstated the agency's powers to regulate advertising and soliciting pest control business.

The budget cuts and layoffs spurred the agency to reorganize.  This fall the agency has gone from ten divisions to three: food and nutrition, Trade and Business Development, and Agriculture and Consumer Protection (home of the SPCS, our regulating agency). Jimmy Bush, former agency head who steered the SPCS for the past three years or so, retired at the end of August.  His successor, David Kostroun, has a big job in front of him as he tries to balance a smaller budget against the need to maintain public safety.  His mantra for the agency is "quality, consistency, and efficiency."

Clean Water Permit program for pest control

In earlier blog posts I wrote about the clean water permitting system slated for implementation this year. According to TCEQ staffer Joy Tegbe, the permitting system is scheduled to go into effect on November 2; although a recent article by the Delta Farm Press reports that a possible two-year moratorium is still being debated by Congress.  If the NPDES rules do go into effect, cities and agencies who meet the thresholds in the law will have 90 days to apply for permits to use pesticides that might be applied to, or drift into, waterways.  This will affect pesticide applications made for mosquito control, aquatic weed or animal control, area-wide pest control and forest canopy pest control.

Since my original post, several clarifications have been made about who is required to get a permit.  For one, the thresholds for groups requiring permits have been liberalized.  For example, a permit is only required for entities that apply pesticides for mosquito control, forest canopy pests or area-wide pest control to more than 6,400 acres of land.  A permit for pesticides to control of aquatic animal or plant pests will only be required when treating more than 100 acres of water or 200 miles of stream bank each year. Contrary to early reports, re-treatments of the same land or water are not counted toward the annual acreage count.  In other words, if you treat the same 640 acres ten times, you've still only treated 640 acres--not 6,400 acres as we were originally told.

Now that the cards are all on the table, I believe the new NPDES rules will not greatly affect us in the pest control industry, although some of you may be asked to help explain these rules to large customers, such as municipalities.  The requirement that will affect most people are those for Level II entities.  These are public or private entities that annually treat more than one acre and less than 6,400 areas of land with General or Restricted Use pesticides.  These folks will have to keep on hand a letter of self certification, stating their intention to comply with the state's general use permit.  Failure to have such a letter would put these folks out of compliance with the law.  Golf courses, cities, park systems, and school districts are likely Level II entities and will probably need letters.  Most homeowners and smaller scale pesticide users will be classified as Level III entities and will not self-certify, rather they will only be required to follow label directions and precautions.  More about self certification letters in another blog.

To read the whole permit: http://www.tceq.texas.gov/permitting/stormwater/pesticidegp_stakeholder_group.html
WARNING: this permit is long and dense reading.  If you have questions, I suggest calling a real human such as Joy Tegbe or James Moore at 512-239-4671.

Need for New Members
The SPCS-AC was formed two legislative sessions ago to serve as a sounding board for TDA on structural pest control issues. The committee gets its mandate from Chapter 1951.101 of the Texas Occupations Code, and consists of nine members (two experts in structural pest control application, three public members, one member from an institution of higher education knowledgeable in pest control, one member recommended by the pest control industry, a consumer member, and a designee of the commissioner of state health services).

Almost all of the advisory committee terms have either expired or will expire in February, meaning that the SPCS is accepting applications for most seats on the committee.  If you are interested, call Michael Kelly of the SPCS for an application.  The consumer seat on the committee has never been filled, so if you are a consumer with interest in the pest control industry, this is your chance to get involved.