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.