Changes in the rules of the game for Texas PMPs

New rules start as laws passed by the Legislature under
the Texas Capitol dome.  Laws become enforceable only
after rules are drafted and published for public comment by
the lead agency, like Texas Department of Agriculture.

New rules governing the pest control industry in Texas were published last week and are now in effect.  While none of the changes in the "rules of the game" are major, there may be a few things that affect your business or school district.

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

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

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

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

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

Perhaps the most significant change heralded by these rules is that expanded CEU requirements for school IPM Coordinators (IPMCs) are now officially in place.  Over four years ago, as a result of Sunset Commission recommendations, the legislature decided that ongoing CEUs would be required for school IPMCs.  Until now, the only CEU requirement was that IPMCs have six hours of department-approved training at the beginning of their appointment.  Under the new rule IPMCs must have six hours of verified, approved training every three years.  While most of these CEU requirements can come from any approved, relevant pesticide CEU class, at least one of the hours must be related to school IPM rules and regulations.  The countdown for existing IPMC's three years will start this January, or for new IPMCs at the date whenever their initial training is completed. Pesticide CEUs obtained in support of a pesticide applicator's license can be double-counted toward the CEU requirements for IPMCs.

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

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.