Most common inspection failures

Inspections are never fun, but are mandated for every school
district, non-commercial applicator and commercial business
in Texas.

If you own or work for a pest control business, you know that it's no fun getting inspected. So many things can go wrong!  To make things worse, if you mess up, chances are that you'll see an inspector again soon, much sooner than if you pass with flying colors.

Fortunately, you don't need to have a bad inspection. At last month's Structural Pest Control Advisory Committee meeting, the good folks at TDA provided a list of the most common mistakes being found by regulatory inspectors during routine business and school inspections.  As you'll see, most of these mistakes relate to paperwork and record keeping--stuff that's relatively simple to correct.  So as the end of the year approaches, it might be a good time to use these  non-compliance lists as checklists to see where your team stands. Take the test and see if you pass:

Most Common Mistakes for Commercial Pest Control Businesses in 2014

• Are the name and license of the person(s) applying pesticides or using devices, recorded on use records stored at your business location? (21% failure rate)
• Do your service report forms have a jurisdiction statement? (18% failure rate)
• If you present a termite bid, do your forms include the required definitions for partial, pier and beam, slab construction, spot treatments, baiting systems and barriers?  (16% failure rate)
• Are all your employees getting the necessary continuing education units (CEUs)? (15% failure rate)
• When providing a termite bid are you providing your termite customers with a diagram, blueprint or building plat with a description of the structures to be treated? (8% failure rate)
• When conducting WDI inspections for real estate transactions, does your paperwork record the name and affiliation of the person purchasing the inspection, as well as the owner/seller of the property? (7% failure rate).
• For WDI reports, are you providing all customers with a properly labeled diagram of the structure inspected?  (6% failure rate)
• Do you provide all termite customers with the required termite treatment statement?
• I'm surprised this failure rate isn't higher: Do your service report forms record the purpose for which pesticides or devices were used (e.g., the target pest)?
• Can you document on a verifiable training records (paragraph n) form that your technicians have received the required training?

Most Common IPM Rule Mistakes for School Districts in 2014

• Are you creating and maintaining records showing approval of use of Yellow Category pesticides? (d)(6)(B)(ii)  (30% failure rate)
• Do you maintain written guidelines defining action thresholds (a)(1)(f), at least for your key pest problems?  (24% failure rate)
• Are you maintaining your IPM records for two years (b)(3)(B)(do you even have all your records?)? (16% failure rate)
• Do you have a system for storing and retrieving all records (b)(3)(B) of facility inspection reports, pest-related service reports, pesticide applications and pesticide complaints?  (14% failure rate)
• Do you keep training records for all employees approved for incidental use of pesticides?  (10% failure rate)
• Would you be ready to provide all your IPM program records on the spot to an inspector if they were to request them? (b)(3)(B) (9% failure rate)
• Are you creating and maintaining records showing approval of use of Red Category pesticides?  (d)(6)(C)(ii) (8% failure rate) 
• Have you the IPM Coordinator provided the required training for any employee on the District making incidental use applications of pesticides?  (e.g., electricians carrying wasp spray for when they open electrical panels with a wasp nest inside) (8% failure rate)
• Do you have a plan for educating your employees about their role in an IPM program? (a)(1)(E)  Note, this includes teachers, administrators and staff outside your pest control staff.  (8% failure rate)
• Do you have a pest monitoring program in place? (a)(1)(B) Word to the wise: if you don't have properly-maintained sticky cards in your school kitchens you definitely do not have a monitoring program! (8% failure rate, and I'm surprised this isn't higher)
• If you're a new IPM Coordinator, have you got proof of taking your 6 hour mandatory IPM Coordinator training?  BTW, we can help with that. (8% failure rate)
• When any pesticides are applied outdoors, is your staff in the habit of posting pest control signs  (d)(2) at the time of application until the minimal reentry time?  (8% failure rate)

TDA told more enforcement needed

Structural Pest Control Advisory Committee meets in
conference room with a great view of the State capitol.

The spring meeting of the Structural Pest Control Advisory Committee took place last Thursday at the Austin offices of the Texas Department of Agriculture.  If you've never been to the hub of regulatory activity for pest control in the state, it's a massive square building with a great view, from upstairs, of the "sunset red" granite of the state capitol building.  This quarter's lively meeting focused on enforcement actions--or what some in the industry feel is not enough enforcement action.

The discussion started with a report from Assistant General counsel AJ Wilson and her staff. They reported that the percent of cases referred to the enforcement team that resulted in enforcement action has seen a slight increase.  Last year 54.4% of complaints resulted in some sort of enforcement action, such as a fine.  This was up from 43% and 44% in 2010 and 2011.  Warren Remmey, industry member from  San Antonio, expressed concerns about a need for more investigators, especially for checking up on illegal fumigations. He shared an example of a case from 2013, concerning an unmarked vehicle allegedly carrying fumigation equipment that has still not resulted in any enforcement action.

Later in the meeting, during the public comment period, Debbie Aguirre, of Elite Exterminating in Corpus Christi, expressed concern about what she termed "lax oversight" of illegal operators. "And no place is enforcement more important than fumigations," she said. Harvey West with Coastal Fumigators in Houston, echoed her concerns, expressing his belief that there was benefit to the whole industry and regulators in making examples of people who were blatantly in violation of the law with respect to fumigations. Dale Burnett, former regulator, spoke on behalf of Worldwide Pest Control in San Antonio, noted that administrative penalties during the latter years of the Structural Pest Control Board averaged $100,000 to $200,000 annually. According to a recent Open Records Act request, last year the TDA collected only $20,087 in penalties, though penalties have been increasing, with a more than 230% increase since 2011.

If it seems unusual for industry members to ask a regulatory agency for more fines and enforcement actions, it probably is. But the pest control industry in Texas is not just any industry.  It is sensitive to its reputation, and leading business owners are often split on the need for more, or less, enforcement. Only a few years ago, industry voices were heard in Austin about perceived overly-zealous enforcement, which ultimately led  to the closing of the Structural Pest Control Board and its blending into the Department of Agriculture. Most industry leaders are especially sensitive to the issue of unlicensed operators, however, and few reputable pest control operators seem to begrudge quick and decisive action against businesses that threaten public health and the reputation of the industry. For it's part, the TDA team listened respectfully. Policy dictates that they not comment on ongoing investigations, so there was no opportunity for them to respond to critical comments, only listen.

In other business, Randy Rivera reported on upcoming changes to regulations affecting pesticide applicators holding Agriculture (3A) licenses. Most of the proposed changes will be administrative updates, and designed to harmonize TDA and Structural pest control regulations.  Definitions for Lawn and Ornamental (formerly Plant and Turf), Nursery Plant Production (formerly Greenhouse Plant Production) and Landscape Maintenance (formerly Plant Pest and Weed Control) categories have been added to the rules.  There will also be a new proposed rule requiring TDA decals (not numbers) on vehicles being used by non-commercial applicators, including those who use non-restricted use insecticides.  If you carry a TDA applicator's license, you should expect to see publication of these proposed regulation changes in the Texas Register by mid-May.

The status of continuing education regulations for school IPM coordinators was requested, and the committee was informed that the proposed rules outlining CEU requirements should come out as a package in May with the other proposed (3A) regulation changes.  State law mandates that school IPM coordinators begin obtaining 6 CEUs every three years, but enforcement of the law cannot take place until actual rules are in place.  Janet Hurley, my colleague at Texas AgriLife Extension who works with school IPM programs, also offered a comment on the need to waive the 48 hour posting requirement for insecticide baits and gels. This would take the regulations back to an earlier standard, under the rationale that baits and gels, unlike sprays, pose little or no drift hazard to passersby.

The next meeting will be held July 24 at TDA headquarters in Austin. Anybody with an interest in pest control is welcome to attend.

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.

TDA announces new penalty guidelines

It would be nice if we all would be motivated to do the right thing solely by the promises of good things (carrots!).  But in reality most of us need painful consequences (the proverbial stick!) to keep us consistently honest.  That's the reason for the new Texas Department of Agriculture (TDA) penalty matrix.

On June 14 the TDA and the Structural Pest Control Service published new penalty guidelines and a penalty matrix (table) for companies in violation of pest control rules and regulations.  The TDA has always worked from a table of penalties, though the industry rarely saw it.  The new penalty guidelines and tables are an attempt to make the process more transparent to your business and the public.

Because these are not new rules or regulations, the penalty matrix does not require public input, though the TDA has indicated that it will accept and consider comments and recommendations. Draft versions of the matrix were previously shown to the Texas Pest Control Association and the Structural Pest Control Advisory Committee, and comments were incorporated into the final draft published last week. The matrix will go into effect July 1.

As a member of the Advisory Committee I hear comment from many of you concerning enforcement of rules.  I know one of the major concerns by conscientious applicators around the state is that penalties be significant, yet fair and consistently enforced.  The new matrix does involve increases in some fines, and is designed to encourage more consistency in penalty assessment over the previous matrix.

The table allows the TDA some freedom in determining the exact fine, and a fine may be higher that indicated on the table depending on intent of the violator and consequences of the violation.  I encourage everyone with a structural pest control business to become familiar with the matrix, and review it with employees this summer as a reminder that the carrot is always better than the stick.

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.

TDA meets with its advisory committtee

While the bright lights and news cameras focused on Austin politicians introducing their latest bills at the 83rd Regular Legislative Session, the Structural Pest Control Advisory Committee met quietly this week with leaders of the Texas Department of Agriculture's Structural Pest Control Service.  The focus of the meeting, as always, was to provide TDA administrators with feedback on new ideas for how to streamline operations and minimize pest and pesticide risk to the public.

The flu season may have explained the low turnout at this quarter's meeting (the first time I recall no public comments), but committee members still found stuff to discuss, especially with regard to the first draft of TDA's proposed penalty matrix.

So what's a penalty matrix? It sounds boring.

I guess a penalty matrix is pretty boring unless you're the one being penalized. The SPCS has always used some form of matrix, or chart, to assign penalties to different possible violations of the Structural Pest Control Act and its regulations.  Under the law, the TDA Administrator is given leeway in assigning penalties to violators, up to a maximum fine of $5,000/violation/day and/or license suspension, revocation or denial. The matrix provides a transparent and objective means of pre-assigning penalties for different violations.  While not constraining the Department from giving a higher or lower fine, it sets guidelines for fair penalties if you, say, fail to provide an inspector with a valid applicator's license.

The draft guidelines list approximately 70 possible violations and puts each into a table of low (S1), medium (S2) or high (penalty) violations.  Within each of these three tables an offense can be categorized as minor, moderate, or major. Penalties increase in each of these columns from the first to third instances of violations over a five year period.  So there are three tables, each with three rows and three columns of penalties.

For example, failing to have your company's TPCL number on any vehicle in which you do pest control business is considered (in this draft) to be an S1-Moderate violation. You would expect to receive a $150 fine for a first violation.  That fine would increase to $300 and $450 fines for the second and third violations.

Moving up the scale, failure to provide an accurate or complete WDI Report is an S2 Moderate violation, worth $750 for a first offense.  Operating out of category (say doing weed control without a weed license) is considered an S3-Moderate offense, and will cost you $1000 for a first offense.

While assigning penalties to a long list of crimes may sound a little like a job for Les Miserables Inspector Javert (Russell Crow in the latest movie musical version), having the matrix is to everyone's benefit. It makes the TDA's job easier and more objective, and it adds transparency to the process. Anyone can look up the matrix online and know exactly what to expect for a given violation.

The committee's job in all of this? Review all the assignments and penalties and give our input. It's not as fun as it sounds.

Perhaps the most upbeat news to come out of this quarter's meeting was the announcement that TDA has decided to contract out its examinations to a private firm.  PMPs should see some immediate benefits such as lowering of fees from $75 to $64 per exam. In addition, the number of locations will increase from 13 to 23 offices around the state.  Exam locations will no longer be associated with TDA or other government offices.  And sites will be open five days per week, with registration open 24/7.  This should speed up the process of getting new licensees on the street considerably.  The only down side to the announcement is if you are computer-phobic.  All exams will be online and you will receive score feedback immediately.

The committee also discussed ways that TDA could better reach the public with a simple message that when hiring someone to control pests, make sure they are licensed and qualified. One of the ideas proposed was to make that official message available through the many pest control company websites around the state.  Look for TDA to come up with creative ways to get the word out to the public about the value of your pest control license and your training over the next year.  They may be contacting you for your company's help.

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.

Certification Year One winds down for school IPM coordinators

One of the big changes to school IPM rules during the last legislative session was to expand education requirements for IPM Coordinators (the individual in each Texas school district responsible for overseeing pest control and ensuring the district complies with state regs).  Beginning last January, every IPMC is responsible to obtain six hours of CEUs every three years (See the Administrative Code Rule 7.150 (b)(2)).

The problem is that after a year of the rule we still don't know precisely what qualifies for continuing education units.  Let's review what we do know:

• Anyone who began duties as an IPM Coordinator for a public school district on or before January 1, 2011 will have until December 31, 2013 to obtain six (6) hours of CEUs.

What we don't know for sure is what exactly qualifies as those appropriate CEUs.  The Structural Pest Control Advisory Committee argued quite strenuously about this topic about a year ago, and some general guidance from that discussion will be used as the basis of whatever rules are drafted in the next few months.  The committee suggestions were: 

• One of the six CEUs must be in laws and regulations specific to IPM Programs in Schools.  The remaining five credits can be obtained by doing one of the following:
• Attending one of the TDA-approved training courses for IPM Coordinators (this would be the same 6-hour course taken within the first six months of appointment)
• Attending any five hours of TDA-approved pesticide CEU training in areas relevant to a school IPM coordinator's duties (e.g., Pest, L&O, Weed control, or General IPM). These CEU classes are pretty commonly available around the state.
• Attend classes not approved by TDA as long as you send information into the agency and get the class approved within 30 days (see Section 7.135(g) of the Administrative Code for details)

The committee wanted the CEU requirement to be as easy to obtain as possible, but I'm not convinced that we didn't make it too easy.  Specifically, I think coordinators need more than one hour of school IPM rules-specific training every three years. Of course training in herbicide selection, or termite identification or  cockroach biology is valuable for someone in charge of a school pest control program; but ultimately a coordinator's job is administrative, and much or most of it has to do with knowing the laws and regulations inside and out. For schools who contract out pest control, the coordinator may be the only person in the district keeping outside applicators square with the law. 

And these laws and regulations are not especially simple to learn. I find myself learning new things every year when I teach the class; so I'm skeptical that one hour every three years is going to do much to keep coordinators at the top of their game.

I know many of you know this. My proof is the number of repeat attenders we see in the introductory school IPM coordinator training classes I teach each year with Janet Hurley. And my sole consolation is that I know many of you will go the extra mile and get those extra school IPM dedicated classes, regardless of whether you have to.  I'm more worried about the folks who haven't had a refresher course in 5-10 years, and don't see a reason to do so.  

The trouble is that the clock is ticking on these CEU requirements.  One year is passed and we still don't absolutely know what criteria will be used to fulfill the six CEU requirement.  So if you're a Texas IPM coordinator, keep alert for the proposed new regulations. If you have an opinion about the CEU requirements, please let them be known at that time.  And if you think I'm crazy to want tougher requirements, that's OK. But let's think these things through and have a good debate.

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.

Austin report

Travel in Texas is beautiful this time of year.  Bluebonnets, Indian paintbrush, and greenthread line the Texas highways, making my trip from Dallas to Austin this week more enjoyable than usual.  The meeting with the Structural Pest Control Advisory Committee was enlightening and relatively productive.  Here's a brief recap:

• The committee voted to recommend to the Department of Agriculture to accept a proposal drafted by Jimmy Bush that sets up the structure for school district IPM coordinators (IPMC) to obtain their mandatory CEU credits every three years.  The draft rules will allow IPMC to meet five of their six required CEUs by attending pesticide applicator training classes approved in the Pest, Lawn & ornamental, Weed control, or General IPM categories.  Alternatively, an IPMC can attend a class that has been approved by the Department to meet all six hours of continuing education.  All IPMCs should be relieved to finally see a decision made about this, as this is an important part of the law change that has been in limbo for the past year or so.  The committee further recommended that the CEU change take effect January 1, 2011.  As with all other CEU requirements on the books for TDA, it will be the responsibility of the IPMC to keep personal records of all classes attended, and to present these to an inspector on request.  
• Also regarding school IPM, the committee voted to recommend to TDA a proposal to allow IPMCs  put out and check sticky cards and glue boards for the purpose of assessing and monitoring pest problems in a school.  Under this clarification, non-licensed IPMCs will be able to replace damaged monitors and keep track of the progress of pest control efforts between service visits.
• Mike Kelly of TDA presented a summary of the new PIER (Pesticide Inspection and Enforcement Report) system that all structural pest control inspectors will use in their site inspections of pest control businesses, non-commercial applicators, schools, lawn care companies, etc.  We have been hearing rumors from schools that inspectors are coming with a "100 question inspection".  I counted the questions in the school inspection template and it's more like 60-70 questions, but the idea is correct.  All business and school inspections are being standardized and should become much more consistent and thorough.  The questions in the laptop spreadsheet carried by inspectors have been taken directly from the law and regulations to ensure a more complete and objective assessment of a business's degree of compliance with all legal requirements.  At the end of each inspection the program prints out a summary of the inspection results, showing any deficiencies that have been discovered.  Depending on the significance of the deficiencies, the business or school may be issued a notice of correction, have a follow-up visit scheduled, or a penalty may be assessed.  This is one change that will impact nearly everyone in the pest management industry in Texas. 
• Review of WDI reports was on the agenda, but discussion was delayed until the July meeting while an industry committee assembled by TPCA President Eric Melass (Killum Pest Control, Lake Jackson, TX) prepares a report.
• Another interesting agenda item was discussion about possible modifications to requirements needed to obtain and maintain a fumigation license in Texas.  Debbie Aguirre (Elite Exterminating, Corpus Christi) and Harvey West (Coastal Fumigation, Houston) both argued that, if anything, current standards should be strengthened.  The committee had a discussion about the need to tighten requirements on commodity fumigation.  Commodity fumigation jobs in Texas, for example, are not required to have guards and non-certified applicators are allowed to break seals on fumigation tarps.  This seems like a prudent next step for TDA to take, both for agricultural and structural fumigators to reduce the risk of accidents like those that were reported recently in Utah and Texas.

Just an encouragement to get out this weekend and enjoy springtime roads and wildflower displays.  My wife Heather and I will be riding bicycles this weekend in support of research to find a cure for multiple sclerosis.  If anyone is interested in helping sponsor my ride, check out my participant page.  It's never too late to donate for MS.

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.

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.

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.

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.

Concerns about the new school IPM rules

Austin, TX. Today the Texas Department of Agriculture meets to hold public hearings concerning the new rules that will guide the Structural Pest Control Service's regulatory activities for the future. The biggest proposed changes deal with rules governing the way pesticides are regulated in public schools.

Texas has one of the longest-standing and most comprehensive set of laws and regulations governing pesticides and integrated pest management (IPM) in schools in the nation. In the course of the past 13 years that the rules have been in effect, schools in Texas have significantly changed the way they do pest control. A study our office completed in 2007 details some of the shifts. For example, in 1994 the two most common insecticides used by nearly all school districts were diazinon and chlorpyrifos (Dursban®). Today, the most commonly used pesticides include a variety of baits, insect growth regulators and lower toxicity insecticides. Granted, diazinon and Dursban® are no longer registered for use in buildings, but their replacements--the commonly used pyrethroid insecticides--are used frequently by only 13% of school districts. This represents an enormous shift for an industry that has often been slow to change.

Certainly, part of the success of the school IPM rules is due to the way the rules gently encourage the use of less toxic pesticides. Under the system, pesticides are categorized into Green, Yellow, or Red based on a variety of criteria that include signal words, acute toxicity and the likelihood of hazardous exposure. For schools, any green category pesticide can be used at the discretion of the pest control technician. Yellow and Red category pesticides require written justification and approval by either the certified applicator or the school district's IPM coordinator.

By making it a little more difficult to use the more toxic products, while keeping all potential pesticides that might be useful to schools still available, Texas has managed over the past thirteen years to successfully balance opposing interests. Those who were most concerned about children's exposure to hazardous substances have been satisfied, while maintenance and pest management professionals have been left with the freedom to use any pesticide product they determine is necessary to control pests in schools.

As evidence of the success of this system, today one can find virtually no environmental group criticizing pesticide use in Texas schools. Fifteen years ago anti-pesticide lobbyists were a common site in public sessions of the Texas Structural Pest Control Board, protesting the use of a variety of pesticides in schools. Today it is hard to interest community activists (in Texas anyway) in school pest management issues, because there have been so few problems in our schools. By this and other measures, the rules have been a success.

Unfortunately, the new rules threaten to upset this balance in several important ways. Specifically, the TDA is proposing to tighten certain requirements and eliminate some pesticides from the green category. For example, pyrethrins and insect growth regulators will no longer be included in the green category.

Pyrethrins are organically derived compounds that are very commonly used during inspections as a tool to flush insect pests out of hidden harborages. They are also used to provide fast knockdown of a variety of pests including cockroaches, ants, bees, wasps, flies and stored product pests. Their toxicity is in the low range for humans (LD50 values above 1500 mg/KG) and they break down very quickly, making them widely used in restaurants and food manufacturing plants.

Similarly, insect growth regulators are low toxicity (commonly used IGRs have LD50 values greater than 2000 mg/kg) products with a variety of useful applications. They are among the few low-toxicity sprays for long-term population reduction of cockroaches in kitchens, and they provide some of the lowest toxicity control options for fleas, fire ants and mosquitoes. Over 21% of all schools in our study used IGRs on a regular basis.

In addition to restricting the use of these former green category pesticides, the TDA proposes to restrict entry of all non-pesticide applicators into all treated areas for 6 hours after an application is made. What's new here is not that students are required to stay out of treated areas, but also employees of the school. To keep non-authorized personnel out of treated areas, the areas will need to be monitored or secured by fence or lock and posted for six hours.
This requirement goes far beyond EPA standards for re-entry into treated areas (usually until sprays have dried), and will make it significantly more difficult and expensive for schools to treat sports fields, grounds, kitchens and hallways for pest problems.

There ought to be a reason for adding regulations to an already-heavily regulated industry. In this case there appears to be no smoking gun, no pattern of complaints, no illness reports, just a regulatory agency that wants to add rules that no one in the community is asking for.

Before TDA can formally establish and begin enforcing these rules, the state requires the agency to publish them for public comment for 30 days, ending August 3. If you have an opinion on these matters, you will never have as much opportunity to influence the shape of these rules as you do right now. For more information about the rule changes and how to respond, see my July 16th post.

News about rule changes at Texas Department of Agriculture

Last year the pest control regulatory establishment in Texas, the Texas Structural Pest Control Board, was abolished by the legislature. The event brought a mixture of horror and glee to the pest control industry in Texas as it contemplated what life might be like under a new regulatory agency, the Texas Department of Agriculture, or TDA.

This month provided the first glimpse of what this new life might be like. The TDA just published the amended rules governing structural pest control in Texas. They can be found online at the following link:

http://tiny.cc/Jul4rules

People interested in commenting on these new rules have until August 3, 2008 to get their letters in. There will also be a public hearing on Monday July 21, 2008 at 2:00 p.m. at the William B. Travis Bldg., 1701 North Congress - Room 1-100, in Austin. The Public Hearing Notice can be viewed at the following link:

http://tiny.cc/Jul21hearing

If this all seems a bit hasty, it is. The TDA is anxious to get the new rules in place by September, and will have to hurry to make this self-imposed deadline.

Meanwhile, if you have interest in life under this new agency, now is the time to let your voice be heard. Written comments sent to the department via USPS (snail mail) will probably have the greatest impact. Emails, and even testimony at the public hearings, will probably carry less weight in the final analysis than a thoughtfully written letter.