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 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.

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.