TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 7. PESTICIDES

SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE

The Texas Department of Agriculture (Department or TDA) adopts the repeal of the following Divisions of Subchapter H, Chapter 7: Division 1, §§7.112 - 7.114; Division 2, §§7.121 - 7.129, §7.131, §§7.133 - 7.135; Division 3, §§7.142 - 7.149, §7.153, and §7.156; Division 5, §§7.172 - 7.178; Division 6, §7.192 and §7.194, without changes to the proposal in the November 10, 2017 issue of the Texas Register (42 TexReg 6268). Further, the Department adopts new Division 1, §7.114, without changes; Division 2, §§7.121 - 7.136, without changes; Division 3, §§7.142 - 7.149, and §7.156, with changes; Division 5, §§7.172 - 7.178, with changes; and Division 6, §7.192, without changes to the proposal made in the November 10, 2017 issue as published in the Texas Register. The adoption is made in order to clarify current requirements related to structural pest control licensing, compliance and enforcement by the Department, and the Structural Pest Control Advisory Committee.

Throughout the rule making process, the Department consulted the Structural Pest Control Advisory Committee (Committee) as required by the Texas Occupations Code, §1951.104. During open Committee meetings, members and industry stakeholders were updated on the rules and the Committee's input was taken into consideration and incorporated into the rule proposal prior to publication. No written comments were received from Committee members after the proposal was published.

The Department received public comments from Mr. Jake Plevelich, on behalf of the National Pest Management Association (NPMA). The Department also received comments from Todd Kercheval, on behalf of the Texas Pest Control Association (TPCA). In addition, the Department also received comments from Grover Campbell, on behalf of the Texas Association of School Boards.

The Department recognizes NPMA and TPCA's concerns that the rule proposal process was burdensome, as the rules were repealed in whole and proposed as new. However, amendments and changes to some sections resulted in the reorganization and renumbering of the rules, which would have resulted in confusion to a reader of the proposal because of extensive bracketing and underlining. Additionally, since rules were added and deleted in Division 2, it was necessary to repeal the rules in their entirety in order to properly number and the new rules in the proposal.

The NPMA and TPCA have requested delayed implementation of the rules in order to ensure affected industry members have time to understand and comply with required changes. The Department provides extensive compliance assistance following any rule change, and will do so here. TDA will provide technical assistance to industry, applicants and licensees as long as necessary, upon request. TDA is confident that, with the assistance of stakeholders and TDA, applicants and licensees will develop a good understanding of the new rules. Accordingly, TDA declines to delay the implementation of the rules, and has filed this adoption so that the rules will become effective 20 days from the date of filing.

TPCA members commented that the new requirement to maintain all records for two calendar years following the calendar year in which the record was created ("two calendar year requirement") will increase costs by requiring new and/or additional recordkeeping and storage. In consideration of industry's comments, the Department has decided to narrow and revise the proposed rules so that the two calendar year requirement applies only to sections regarding verifiable training records for apprentices and technicians, and continuing education for certified applicators. Division 3, §7.144, Division 5, §7.173 and §7.174, along with §7.176 and §7.178, have been revised to mirror the previous requirement that records be maintained for two years total.

DIVISION 1. GENERAL PROVISIONS

4 TAC §§7.112 - 7.114

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705281

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 2. LICENSES

4 TAC §§7.121 - 7.129, 7.131, 7.133 - 7.135

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705282

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 3. COMPLIANCE AND ENFORCEMENT

4 TAC §§7.142 - 7.149, 7.153, 7.156

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705283

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 5. TREATMENT STANDARDS

4 TAC §§7.172 - 1.178

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705284

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 6. STRUCTURAL PEST CONTROL ADVISORY COMMITTEE

4 TAC §7.192, §7.194

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705285

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE

DIVISION 1. GENERAL PROVISIONS

4 TAC §7.114

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705286

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 2. LICENSES

4 TAC §§7.121 - 7.136

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705287

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 3. COMPLIANCE AND ENFORCEMENT

4 TAC §§7.142 - 7.149, 7.156

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

§7.142.Notice of Employment or Termination.

(a) It shall be the duty of the business licensee or certified noncommercial applicator to inform the Department in writing of its employment and/or termination of all licensees and apprentices.

(b) Notice of employment of all licensees and apprentice registrations must be received by the Department within ten (10) days of the date of employment and must include the full name and license number of the employee, if applicable, the date of employment, and the facility location where the employee training records will be maintained, and other information as may be required.

(c) Notice of termination must include the former employee's name, license number and date of termination, and must be received by the Department within ten (10) days of the date of termination.

§7.143.Employee Supervision.

(a) The responsible certified applicator is responsible for the supervision and training of all licensed or registered personnel and the handling, storage and use of pesticides and devices by all employees of a pest control business.

(b) In order to provide adequate supervision, the responsible certified applicator or designated certified applicator must be physically present to give verbal instructions to an apprentice at least three (3) days a week and to a technician at least one (1) day a week. The responsible certified applicator employed by the business must also be available during business operating hours for questions and instructions, as needed.

(c) Apprentices shall not perform pest control services without physical supervision until they have completed all classroom training, required on-the-job training, have demonstrated proficiency, and verification has been entered in their training records by a licensed applicator.

(d) The business license holder, and the responsible certified commercial applicator or certified noncommercial applicator shall be responsible for actions of employees when they are performing pest control operations.

§7.144.Pest Control Use Records.

(a) The responsible certified applicator or certified noncommercial applicator shall ensure that correct and accurate records of all uses of pesticides and pest control devices registered with the EPA and the Department, including those pesticides that have been exempted from registration by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, Section 25b), are maintained for a period of two (2) years. Pest records must be kept on the premises of the business facility location or, in the case of a certified noncommercial applicator, the employer's premises. The records must include, but are not limited to:

(1) the billing name and address of the customer, or the employer for whom a noncommercial applicator is working;

(2) service address where the pesticides and/or devices were used, except that for utility pole re-treatments, records shall be kept for the location of each pole treated;

(3) name of pesticides or pest control devices used or EPA registration number;

(4) total amounts of each pesticide applied where the percentage of active ingredient was not changed (ready to use pesticides);

(5) pest control devices used and total number of each device;

(6) the mixing rate and total amount of material applied or the percentage of active ingredient(s) and total amount of material applied for manufacturer's formulations that are mixed with water or other material, if applicable;

(7) the target pest or purpose for which the pesticides or devices were used;

(8) date the pesticides or pest control devices were used; and

(9) the name, and license number of the person(s) receiving training, supervising, and applying pesticides or using pest control devices and the TPCL number (and letter if applicable) of the commercial business for which they are performing structural pest control services.

(b) For termite treatments, records must include:

(1) the appropriate unit of measurement of the area treated per application site, i.e. square feet;

(2) if a physical barrier is used, the appropriate unit of measurement (square foot or linear foot) of the physical barrier must be recorded and a diagram describing the installation will be provided; and

(3) for commercial preconstruction treatments other than baits, baiting systems, wood applied termiticide products, or physical barriers, the number of application tanks which were in use for the treatment, the capacity, in gallons, of each application tank, and the start and stop time for the treatment.

(c) These records shall be made available to the Department upon written or verbal request.

§7.145.Contracts and Invoices.

(a) Each written contract, warranty, service agreement, termite disclosure document, or guarantee of a business regulated by the Department must contain on the face of the document the business name, business license number (and letter if applicable), physical address or mailing address, telephone number, and the jurisdiction statement: "Licensed and regulated by: Texas Department of Agriculture, P.O. Box 12847, Austin, TX 78711-2847, Phone (866) 918-4481, Fax (888) 232-2567."

(b) The business name, business license number (and letter if applicable), telephone number, and physical address or mailing address must be on the face of any invoice.

(c) The requirements in subsections (a) and (b) of this section must be legible and print shall be in at least 8-point type.

§7.146.Pest Control Sign.

(a) A pest control sign must be provided by the licensee to a residential rental property owner or manager at least 48 hours prior to a planned indoor treatment at a residential rental property with five (5) or more rental units.

(b) A pest control sign must be provided by the licensee to the employer or building manager at least 48 hours prior to a planned indoor treatment at a workplace.

(c) A pest control sign must be provided by the licensee to the chief administrator, IPM Coordinator, or building manager at least 48 hours prior to a planned indoor treatment at a hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, school or educational institution, or day care center.

(d) A person may not be considered in violation of this section if the space to be treated is vacant, unused, and unoccupied, or if extenuating circumstances require an emergency treatment.

(e) Each pest control sign must be at least 8 1/2 inches by 11 inches in size and contain the required information with the first line in a minimum of 24-point type (one-fourth inch) and all remaining lines in a minimum of 12-point type (one-eighth inch). The addition of advertising and logos to the sign is permissible to the extent that such advertising does not interfere with the purpose of public notification of a pest control treatment. A standard sign in Spanish is available from the Department upon request. The sign shall appear in a format approved by the Department. The text and format of the sign is available on the Structural Pest Control Service website at: http://www.TexasAgriculture.gov/spcs, or by contacting the Texas Department of Agriculture, P.O. Box 12847, Austin, TX 78711-2847, (866) 918-4481.

(f) In the space marked "For more information call or contact," the telephone number to obtain information on the pesticide(s) used must be listed, such as the contact number for the apartment manager, building manager, IPM Coordinator, or pest control operator.

(g) In the space marked "phone number of hotline for pesticide information," the following wording must be used: National Pesticide Information Center 1-800-858-7378.

(h) If a workplace has its own pesticide information center, the workplace center telephone number may be listed rather than the information in subsection (g) of this section.

§7.147.Consumer Information Sheet.

(a) For an indoor treatment at a private residence that is not a rental property, the certified applicator or technician must make the consumer information sheet available to the owner of the residence.

(b) For an indoor treatment at a residential rental property with less than five (5) rental units, the certified applicator or technician must make the consumer information sheet available to each resident, upon request, at the time of each treatment.

(c) For an indoor treatment at a residential rental property with five (5) or more rental units, the certified applicator or technician must make the consumer information sheet available to the owner or manager of the complex. The certified applicator or technician must also supply the owner or manager with a pest control sign. The owner or manager or an employee or agent of the owner or manager, other than the certified applicator or technician, must notify residents who live in direct or adjacent areas of the treatment by:

(1) posting the sign in an area of common access to residents at least 48 hours before each planned treatment; or

(2) distributing application information consistent with §7.146 of this title, relating to Pest Control Sign, at least 48 hours before each planned treatment by leaving the sign on the front door of each unit or in a conspicuous place inside each unit.

(d) For an indoor treatment at a workplace, the certified applicator or technician must make the consumer information sheet available and supply a pest control sign to the employer or the building manager. The employer or the building manager or an employee or agent of the owner or manager, other than the certified applicator or technician, must notify individuals at the workplace of the date of the planned treatment by:

(1) posting the sign in an area of common access that the employees are most likely to see at least 48 hours before each planned treatment; and

(2) making available the consumer information sheet to any individual working in the building on request of the individual if the request is made during normal business hours.

(e) For an indoor treatment at a building that is a hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, school or educational institution, or a day care center, the certified applicator or technician must make available the consumer information sheet and a pest control sign to the chief administrator, IPM Coordinator, or building manager. The chief administrator, IPM Coordinator, or building manager must notify the individuals who work or reside in the building of the treatment by:

(1) posting the sign in an area of common access that the individuals are likely to check at least 48 hours before each planned treatment; and

(2) making available the consumer information sheet to any individual working or residing in the building on request of the individual.

(f) The Department's consumer information sheet must be used. Copies of the consumer information sheet are available from the Department in English and Spanish on the Structural Pest Control Service website at: http://www.TexasAgriculture.gov/spcs/, or by contacting the Texas Department of Agriculture, P.O. Box 12847, Austin, TX 78711-2847, (866) 918-4481. The Department's consumer information sheet may be copied and used in accordance with this section.

(g) The pre-notification requirements of §§7.146-7.148 of this title are waived if the customer and certified applicator sign a statement attesting to the fact that an emergency exists which requires immediate treatment. If such an emergency exists, the consumer information sheet must be made available by the licensee. The statement must be kept on file with the pest control use records. If the customer is not available to sign a statement at the time of treatment, that shall be recorded in the use records along with the customer's name and telephone number. An emergency is defined as an imminent hazard to health. An emergency treatment is limited to the localized area of the emergency.

§7.148.Responsibilities of Unlicensed Persons for Posting and Notification.

(a) Owners or managers of residential rental properties with five (5) or more units must:

(1) post a pest control sign at least 48 hours before the planned indoor treatment in an area of common access to residents; or

(2) distribute the application information consistent with §7.146(e) of this title, relating to Pest Control Sign, to each unit planned to be treated and each unit adjacent to those planned to be treated or in an adjacent or area of common access at least 48 hours before the planned time of treatment; and

(3) make the consumer information sheet available upon request.

(b) Employers, building managers, IPM Coordinators, and chief administrators of workplaces, hospitals, nursing homes, hotels, motels, lodges, warehouses, food-processing establishments, school or educational institutions, and day care centers must post a pest control sign in an area of common access at least 48 hours prior to each planned indoor treatment and make a consumer information sheet available to any individual working or residing in the building upon the request of that individual.

(c) Chief administrators or the IPM Coordinators of schools or educational institutions and day care centers must notify the parents or guardians of children attending the facility in writing that pesticides are periodically applied indoors and outdoors, and that information on the times and types of applications and prior notification is available upon request. Such notification must be made at the time of the students' registration. Telephonic, written, or electronic notification of planned applications will meet the notification requirements.

(d) The 48 hour pre-notification requirements of subsections (a) and (b) of this section may be waived if an emergency exists and the customer and certified applicator sign a statement attesting to the fact that an emergency exists that requires immediate treatment. The statement must be kept on file with the pest control use records at the business license location. Certified noncommercial applicators may attest to an emergency by signing a statement attesting to the emergency and must keep the statement on file with the pest control use records. An emergency is defined as an imminent hazard to health and emergency treatment is limited to the localized area of the emergency.

(e) A person may not be considered in violation of this section if a pest control sign is removed by an unauthorized person or if the space to be treated is vacant, unused and unoccupied at the time of treatment.

§7.149.Inspections.

Each licensed pest control business shall be inspected at least once in the business's first year of receiving a license and at least every four (4) years thereafter. School districts will be inspected at least once every five (5) years. The Department may waive these requirements due to Department staff availability, budgetary constraints, inspection trends, or operational efficiencies. Businesses and school districts demonstrating a lack of compliance with Department rules may be inspected more frequently than every four (4) years for businesses and every five (5) years for school districts based on risk using the following elements of consideration:

(1) prior violations;

(2) prior inspection results; and

(3) prior complaints.

§7.156.Entry and Access.

(a) The Department may conduct investigations and inspections of structural pest control activities involving any person in this state to determine compliance with the SPCA, and Department rules.

(b) In conducting investigations, the Department may:

(1) enter the premises of a licensee, business, or facility during normal business hours to examine records, question witnesses, inspect pesticides and equipment used for pest control, and collect samples;

(2) enter premises where individuals are performing or are suspected of performing pest control operations to inspect the use of pesticides and devices, check employee credentials, collect samples, identify pests, and inspect equipment; and

(3) on public property, inspect pesticides and equipment, and question employees of persons conducting or suspected of conducting structural pest control activities.

(c) Any licensee who interferes with an employee of the Department attempting to enter or access property, equipment, or records for purposes of this chapter, shall be subject to disciplinary action up to and including revocation of licenses and/or registrations.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705288

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 5. TREATMENT STANDARDS

4 TAC §§7.172 - 7.178

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

§7.172.Subterranean Termite Post Construction Treatments.

(a) All pesticides used for post construction termite treatments must be registered with the EPA and the Department. All pesticide liquid applications must be made by using the application rates and methods and by following the precautionary statements on the labeling of the pesticide being used. All termite baiting system applications must be made using the methods and following the precautionary statements on the product label.

(b) A treatment of less than the entire structure will be permitted to accommodate the customer's requests to allow the treating company to perform the job in a manner prescribed by their professional evaluation and label requirements.

(c) All treatments must strictly adhere to the procedures outlined in the disclosure statement required in §7.174 of this title, relating to Subterranean Termite, Drywood Termite and Related Wood Destroying Insect Treatment Disclosure Documents. A deviation will be permitted when unexpected circumstances occur necessitating a change in the treatment and the applicator responsible for the treatment provides the customer with a written addendum to the contract or disclosure documents at the completion of the treatment.

(d) Upon completion of a termite treatment, or installation of a baiting system, the company responsible for providing the treatment must leave a durable sticker of not less than one (1) inch by two (2) inches in size on the wall adjacent to the water heater, electric breaker box, or beneath the kitchen sink giving the name, address, and telephone number of the business licensee, name and license number of the applicator, product used, the date of the treatment or installation of the baiting system, and a statement that the notice should not be removed.

(e) The business license holder or certified noncommercial applicator must keep and maintain a correct and accurate copy of the Termite Treatment Disclosure Documents for a period of two (2) years.

§7.173.Subterranean Termite Pre-Construction Treatments.

(a) Subsections (b) - (f) of this section do not apply to baits or baiting systems and subsections (c) - (d) of this section do not apply to wood applied termiticide products.

(b) All pesticides used for pre-construction termite treatments must be registered with the EPA and the Department. All pesticide liquid applications must be made by using the application rates and methods and by following the precautionary statements on the labeling of the pesticide being used.

(c) For a full treatment, the entire structure must be treated to provide a continuous horizontal and vertical pesticide barrier. The final treatment shall be performed within thirty (30) days of notification of completion of landscaping or one (1) year from the date of completion of construction, whichever comes first. However, when construction has proceeded to the point that all areas cannot be treated before the company providing the treatment is called to perform the application, a partial treatment is permitted if the owner of the structure or the person in charge of the construction and the licensee for the pest control company sign a statement attesting to the construction conditions, and attach it to the contract with an amended diagram or blueprint or building plat showing the exact areas to be treated and send copies to the owner of the property within seven (7) days of the application. A copy of the disclosure with an amended diagram or blueprint or building plat showing the exact areas to be treated must be made available to the Department upon request. A partial treatment will also be permitted if allowed by label directions and if the licensee proposing the treatment issues a Termite Treatment Disclosure Document prior to the treatment.

(d) In order to comply with subsection (c) of this section, it will be necessary to return to the pretreatment site after the slab has been poured and/or piers and support beams have been placed to complete the treatment for the vertical barrier.

(e) A primary treatment of the wood framing (such as a borate treatment) must follow full label application instructions and must be performed with a termiticide that has specific label instructions to be used as a primary treatment to offer protection for prevention of subterranean termites in new construction. This treatment may be used in lieu of a full, partial, or bait treatment and must include application instructions to exposed surfaces of wood framing with exterior sheathing in place but before any walls are enclosed to a height of not less than two (2) feet above a contact with a slab foundation or a (2) foot horizontal and vertical treatment of wood above contact with a concrete crawlspace or basement foundation. Label instructions must provide application instructions for the prevention of subterranean termite intrusion and tubing onto non-cellulose areas around bath-traps, plumbing penetrations and concrete foundation areas.

(f) Notice of all pre-construction treatments with contracts requiring treatment of a structure other than a single family dwelling must be submitted between the hours of 6:00 a.m. and 9:00 p.m. using the Department's designated notification system at least four (4), and no more than twenty-four (24), hours prior to a termiticide application. The licensee must provide address and site location, type of treatment (partial or full), date and time of treatment, approximate and appropriate unit of measurement used under contract, and the name, license number, and physical address of the pest control business. If the treatment is cancelled, notice of cancellation must be sent using the Department's designated notification system within one (1) hour of the time the pest control business learns of the cancellation.

(g) For all commercial pre-construction treatments other than baits, baiting systems, wood applied termiticide products or physical barriers, the licensee must maintain records of the appropriate unit of measurement treated per application site, amount of termiticide used per application site, rate at which termiticide is mixed for each application site, number of application tanks which were in use for the treatment, the capacity, in gallons, of each application tank, and the start and stop time for the treatment. The business license holder or, in the case of the certified noncommercial applicator, the applicator must keep and maintain a correct and accurate copy of the pre-construction treatment and disclosure records for a period of two (2) years. A baiting system may be used in lieu of a pre-construction treatment if installed within thirty (30) days of notification of completion of landscaping. All termite baiting system applications must be made using the methods and following the precautionary statements on the product label. If a physical barrier is used, the appropriate unit of measurement of the physical barrier must be recorded and a diagram describing the installation must be provided.

§7.174.Subterranean Termite, Drywood Termite and Related Wood Destroying Insect Treatment Disclosure Documents.

(a) As part of each written estimate submitted for a subterranean termite, drywood termite, powder post beetle, wood boring beetle or related wood destroying insect (excluding carpenter ants) treatment to a customer, the pest control business proposing the treatment must present the prospective customer or designee with disclosure documents. Verbal estimates may be provided to customers to advise of a general range of treatment costs, but a written estimate must be provided before beginning a treatment. Written estimates for termite and related wood destroying insect treatments and treatment disclosure documents shall only be made by licensed technicians or certified applicators licensed in the termite category.

(b) Each subterranean termite, drywood termite, powder post beetle, wood boring beetle or related wood destroying insect (excluding carpenter ants) treatment disclosure document must include, but is not limited to:

(1) the business name, address, phone number, TPCL number, and the date the written estimate was submitted;

(2) the address or physical location of the structure to be treated;

(3) a diagram or blueprint or building plat and description of the structure or structures to be treated to include the following:

(A) numerical perimeter measurements of the entire structure as accurately as practical;

(B) areas of active or previous termite activity;

(C) areas to be treated;

(D) known wood destroying insect activity;

(E) areas of conditions conducive to infestation by wood destroying insects; and

(F) construction details and other information about construction relevant to the treatment proposal;

(4) a label for any pesticide recommended or used. If a physical barrier is used, the appropriate unit of measurement of the physical barrier must be recorded and a diagram describing the installation must be provided;

(5) the complete details of the warranty provided, if any;

(6) the signature of approval on the disclosure documents by a certified applicator or licensed technician in the termite category employed by the company making the proposal;

(7) the concentration of termiticide used or minimum number of bait stations to be installed;

(8) for subterranean termite post construction treatments, the following statements and definitions in at least 8-point type:

(A) A termite treatment may be a partial treatment or spot treatment using termiticide, approved physical barriers, or a baiting system. These types of treatments are defined as follows:

(i) Partial Treatments. This technique allows a wide variety of treatment strategies but is more involved than a spot treatment (see definition below). Ex.: treatment of some or all of the perimeter, bath traps, expansion joints, stress cracks, portions of framing, walls and bait locations.

(ii) Spot Treatments. Any treatment which concerns a limited, defined area less than ten (10) linear or square feet that is intended to protect a specific location or "spot." Often there are adjacent areas that are susceptible to termite infestation which are not treated.

(iii) Baiting Systems. This type of treatment may include interior and/or perimeter placement of monitoring or baiting systems along with routine inspection intervals. The baiting technique may include one (1) or more locations as prescribed by the product label and instructions.

(iv) Barriers. If a physical barrier is used, the square footage of the physical barrier must be recorded and a diagram describing the installation will be provided.

(B) The types of treatment defined may apply to construction types as follows:

(i) Pier and Beam. Treatment of the outer perimeter including porches, patios and treatment of the attached garage. In the crawl space, treatment would include any soil to structure contacts (piers and/or pipes).

(ii) Slab Construction. Treatment of the perimeter and all known slab penetrations as well as any known expansion joints or stress cracks.

(9) for all termite treatments the following statement in at least 8-point type: For all treatments there will be a diagram showing exactly what will be treated. Treatment specifications and warranties for those treatments may vary widely. Review the pesticide label provided to you for minimum treatment specification. If you have any questions, contact the pest control company or the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711-2847. Phone (866) 918-4481;

(10) for any pre-construction treatment, the "Proper Pre-Construction Subterranean Termite Treatments - A Guide for Builders and Consumers" guide, must be provided to the contractor or purchaser of the pre-treatment service prior to the beginning of the treatment. The text and format of the termite pre-treatment disclosure document is available on the Structural Pest Control Service website at: http://www.TexasAgriculture.gov/spcs, or by contacting the Texas Department of Agriculture at the address provided in paragraph (9) of this subsection;

(11) for drywood termite, powder post beetle, wood boring beetle, and other related wood destroying insect treatments the following statements and definitions in at least 8-point type: A drywood termite, powder post beetle, wood boring beetle, or other related wood destroying insect treatment may be a full treatment or spot treatment. These types of treatments are defined as follows:

(A) Full Treatment: A treatment to control 100% of the insect infestation by tarpaulin fumigation or appropriate sealing method. A full treatment by fumigation is designed to eliminate every insect colony. It should include the infested structure and all attached structures; or

(B) Spot Treatment: Any treatment less than a full treatment by tarpaulin fumigation. This treatment should be considered only when a drywood termite, powder post beetle, wood boring beetle or related insect infestation has a limited and defined area of infestation. Adjacent areas susceptible to dry wood termite, powder post beetle, wood boring beetle or related insect infestations are not treated. Because of the nature of wood destroying insects, these untreated areas may continue to harbor drywood termites, powder post beetle, wood boring beetle, and related insects throughout the structure without detection;

(12) a consumer information sheet described in §7.147 of this title, relating to Consumer Information Sheet; and

(13) The jurisdiction statement, "Licensed and regulated by: Texas Department of Agriculture, P.O. Box 12847, Austin, TX 78711-2847, Phone (866) 918-4481, Fax (888) 232-2567."

(c) For a re-treatment of a property for an existing customer, the pest control business must provide the following before conducting the re-treatment:

(1) the label of the pesticide to be used;

(2) a diagram or updated diagram of the structure showing areas to be treated; and

(3) a consumer information sheet described in §7.147, of this title.

(d) The business license holder or, in the case of the certified noncommercial applicator, the applicator must keep and maintain correct and accurate copies of the Disclosure Documents for a period of two (2) years.

§7.175.Official Wood Destroying Insect Report Inspection Procedures.

(a) Inspections for the purpose of issuing a WDIR must be conducted in a manner consistent with the procedures described in this section by a licensed certified applicator or technician in the termite category. The printed name and registration number or license number of any employees receiving training that are present for the inspection must be listed on the report. The purpose of the inspection is to provide a WDIR regarding the absence or presence of wood destroying insects and conditions conducive to wood destroying insect infestation. The inspection should provide the basis for recommendations for preventive or remedial actions, if necessary, to minimize economic losses. Only for purposes of a Real Estate Transaction Inspection Report, as described in §7.176 of this title, relating to Real Estate Transaction Inspection Reports, there must be visible evidence of active infestation in the structure or visible evidence of a previous infestation in the structure with no evidence of prior treatment to recommend a corrective treatment. The inspection must be conducted so as to ensure examination of all visible accessible areas in or on a structure in accordance with accepted procedures. While such an examination may reveal wood destroying insects, there are instances when concealed infestations and/or damage may not be discovered. Examinations of inaccessible or obstructed areas are not required.

(b) Inaccessible or obstructed areas recognized by the Department include, but are not limited to:

(1) inaccessible attics or portion thereof;

(2) the interior of hollow walls, spaces between a floor or porch deck and the ceiling or soffit below;

(3) such structural segments as porte cocheres, enclosed bay windows, buttresses, and similar areas to which there is no access without defacing or tearing out lumber, masonry, or finished work;

(4) areas behind or beneath stoves, refrigerators, furniture, built-in cabinets, insulation, floor coverings; and

(5) areas where storage conditions or locks make inspection impracticable.

(c) The inspector must describe the structure(s) inspected and include the following:

(1) the address or location;

(2) a diagram showing:

(A) approximate numerical perimeter measurements of the structure as accurately as practical (does not have to be to scale);

(B) construction details needed for clarity of the report;

(C) areas of current wood destroying insect activity;

(D) areas of previous wood destroying insect activity; and

(E) areas of conditions conducive to infestation by wood destroying insects;

(3) inaccessible or obstructed areas, including, but not limited to the areas listed in subsection (b) of this section.

(d) The inspection must include, but is not limited to, the following areas if accessible and unobstructed:

(1) plumbing, which includes:

(A) bathroom;

(B) kitchen;

(C) laundry; or

(D) other specified area, i.e., hot tub, etc.;

(2) window and door frames and sills;

(3) baseboards, flooring, walls, and ceilings;

(4) entrance steps and porches;

(5) exterior of slab or foundation wall;

(6) crawl spaces, which include:

(A) support piers (include stiff legs);

(B) floor joist;

(C) sub floors;

(D) sill plates; and

(E) foundation wall.

(7) fireplace; and

(8) weep holes.

(e) Visible evidence of the following conditions must be reported:

(1) wood destroying insects or signs of current active infestation;

(2) termite tubes or frass;

(3) exit holes or frass from other wood destroying insects;

(4) evidence of previous treatment or infestation;

(5) conditions conducive to wood destroying insect infestation, including but not limited to:

(A) a structure with wood to ground contact;

(B) formboards left in place;

(C) excessive moisture;

(D) wood debris under or around structure;

(E) footing too low or soil line too high;

(F) insufficient clearance in crawl space;

(G) expansion joints or cracks in slab;

(H) decks; or

(6) infestation of other wood destroying insects.

§7.176.Real Estate Transaction Inspection Reports.

(a) All inspection reports issued regarding the visible presence or absence of termites, other wood destroying insects and conditions conducive to infestation of wood destroying insects in connection with a real estate transaction must be made on a form prescribed by the Department. Forms must be maintained in the inspection file.

(b) Lending providers such as the Veterans Administration may require the inspection results on another form. That form is supplemental to the required Department form and must be maintained in the inspection file.

(c) The Department report form includes a space to report conditions consistent with §7.175 of this title, relating to the Official Wood Destroying Insect Report Inspection Procedures, which is available at: http://www.TexasAgriculture.gov/spcs/, or by contacting the Texas Department of Agriculture, P.O. Box 12847, Austin, TX 78711-2847, (866) 918-4481.

(d) For each inspection, copies of the completed form must be prepared for:

(1) the person who ordered the inspection; and

(2) business files of the business license holder issuing the report.

(e) The licensee issuing the report must retain records of inspection reports for a minimum of two (2) years.

§7.177.Posting Notice of Inspection.

(a) Upon completion of an inspection for the purposes of completing a WDIR, the inspector must post a durable sticker on the wall adjacent to the water heater, electric breaker box, or beneath the kitchen sink giving the name and license number of the licensee, the date of the inspection, and a statement that the sticker should not be removed.

(b) It is a violation of this section for any licensee to remove or deface a posted inspection sticker.

§7.178.Structural Fumigation Requirements.

(a) Fumigation of structures to control wood destroying insects or other pests shall be performed only under the direct on-site supervision of a certified applicator licensed in the category of structural fumigation. Direct on-site supervision means that the certified applicator exercising such supervision must be present at the site of the fumigation during the introduction of the fumigant, any reentry prior to aeration, during the initial aeration process and when the structure is released for occupancy.

(b) All motor vehicles used by a licensee or licensee's employees in conducting structural fumigation services, to include the transportation of tarps and fumigants, shall display the TPCL number of the business. The transportation of all fumigants shall be done consistent with label directions.

(c) A licensee licensed in the structural fumigation category may subcontract the performance of a structural fumigation to another licensee licensed in the structural fumigation category. The primary contractor shall notify the customer that the performance of the structural fumigation service will be performed by another properly licensed business other than the primary contractor. This written notification shall be a part of the disclosure documents as a separate statement itself or attached to the disclosure documents, and must be signed and dated by the customer. Both the primary contractor and the subcontractor shall maintain a copy of the disclosure documents issued to and signed and dated by the customer, and the report as described in subsection (l) of this section for a period of two (2) years.

(d) Structural fumigation shall be performed in compliance with all label requirements applicable to state and federal laws and regulations.

(1) During a fumigation, whenever the presence of two (2) persons trained in the use of fumigant is required by the fumigant label, at least one (1) of these persons must be the certified applicator providing direct on-site supervision as described in subsection (a) of this section and the second person must be trained in the necessary safety precautions.

(2) Two (2) trained persons shall be present at each fumigation site during the introduction of the fumigant, any reentry prior to aeration, during the initial aeration process, and if the label requires, until the active aeration period with all operable doors and windows open is completed and the structure is secured for the remaining aeration period.

(3) During these periods of time, two (2) operational Self-Contained Breathing Apparatuses (SCBA) must be present at the fumigation site. Fumigators must have in their possession any keys necessary to unlock secondary locking devices and/or an access device that would allow for immediate access to the structure the entire time the structure is under fumigation.

(4) A trained person in structural fumigation may be a registered apprentice, licensed technician, or certified applicator in the structural fumigation category having been trained in the proper use of a SCBA and clearing devices.

(e) Prior to the release of the fumigant, warning signs shall be posted in plainly visible locations on or in the immediate vicinity of all entrances to the structure under fumigation and shall not be removed until the premises is determined safe for occupancy. Ventilation shall be conducted with due regard for public safety.

(f) Local fire, police, or emergency authorities shall be notified of the structural fumigation prior to introduction of the fumigant. Notification shall be made in writing, by email or by telephone as long as a record is made of the name of the person that was informed and the date and time. The same agency shall be informed that the structure is released for occupancy.

(g) The space to be fumigated shall be vacated by all occupants prior to the commencement of fumigation. The space to be fumigated shall be sealed in such manner to ensure that the concentration of the fumigant released is retained in compliance with the manufacturer's recommendations. Fumigation tarps with puncture holes, tears, rips, or splitting seams must be taped or repaired in such a manner to ensure that the concentration of the fumigant released is retained in compliance with the manufacturer's recommendations.

(h) Warning signs shall be printed in red on white backgrounds and shall contain the following statement in letters not less than two (2) inches in height: "Danger-Fumigation." Signs must also depict a skull and crossbones, not less than one (1) inch in height, the name of the fumigant, the date and time fumigant was introduced, and the name, license number, and telephone number where the certified applicator performing the fumigation may be reached twenty-four (24) hours a day.

(i) On any structure that has been fumigated, the certified applicator responsible for the fumigation shall, immediately upon completion, post a durable sticker on the wall adjacent to the electric breaker box, water heater, or beneath the kitchen sink. This must be a durable sticker not less than one (1) inch by two (2) inches in size. It must have the name and license number of the certified applicator, date of fumigation, fumigant used, and the purpose for which it was fumigated (target pest).

(j) A certified applicator performing the fumigation shall use adequate warning agents with all fumigants that lack such properties. When conditions involving abnormal hazards exist, the person exercising direct on-site supervision shall take such safety precautions in addition to those prescribed to protect the public health and safety. The certified applicator responsible for the fumigation shall visibly inspect the structures to assure vacancy prior to introduction of fumigant.

(k) The certified applicator responsible for the fumigation shall also post a person or persons to guard the location whenever a licensed applicator is not present from the time the fumigant is introduced until the label concentration for aeration is reached. The person posted at the location shall deter entry into the structure by routinely inspecting the structure under fumigation at least once each hour. The person posted at the location shall remain alert and on duty as directed by the certified applicator. The certified applicator responsible for the fumigation shall secure all entrances to the structure in such a manner as to prevent entry by anyone other than the certified applicator responsible for the fumigation. The structure must remain secured by secondary locking devices until the structure is released for occupancy.

(l) For the purpose of maintaining proper safety, establishing responsibility in handling the fumigants, and to ensure a successful fumigation the business performing the structural fumigation shall compile and retain a report for each fumigation job and/or treatment for a period of at least two (2) years. The certified applicator responsible for the fumigation must have a copy of the report at the time of the fumigation. The report for each fumigation job or treatment must contain the following information to be recorded as the fumigation progresses:

(1) name, address and business license number of the pest control business;

(2) name and address of property and owner;

(3) measured cubic feet fumigated;

(4) target pest or pest controlled;

(5) fumigant or fumigants used, EPA registration number and amount;

(6) name of warning agent and amount used;

(7) temperature and wind conditions;

(8) time gas introduced and aerated (date and hour);

(9) name and license number of the certified applicator responsible for the fumigation and providing direct on-site supervision;

(10) list of any extraordinary safety precautions taken;

(11) date and time released for occupancy (signed by certified applicator);

(12) the dates and times local fire, police or emergency authorities were notified;

(13) the identification of clearing devices used; and

(14) proof that the Department was notified of the structural fumigation with the date and time of the notification.

(m) Fumigations for the purpose of controlling wood destroying insects are subject to the provisions of §7.174 of this title, relating to Subterranean Termite, Drywood Termite and Related Wood Destroying Insect Treatment Disclosure Documents.

(n) Every licensee engaged in application of a fumigant is required to use an approved and calibrated clearance device consistent with the fumigant label.

(1) The approved and calibrated clearance device must be used consistently with the label.

(2) An independent and qualified facility or person must perform calibration of the clearance device not less than annually and anytime it is suspected to be inaccurate. Calibration must be in compliance with the manufacturer's requirements.

(3) Proof of calibration must be kept on file for a period of two (2) years and available for review by the Department. The record of proof for each clearing device shall contain the date of calibration and the name of the independent and qualified facility or person who performed the calibration.

(o) The certified applicator responsible for the fumigation shall be responsible for following label requirements for aeration and clearing of the structure that is being fumigated.

(p) Notice of all fumigations of a structure must be submitted using the Department's designated notification system between the hours of 6:00 a.m. and 9:00 p.m., at least four (4), and no more than twenty-four (24) hours prior to the structural fumigation application. If the structural fumigation is cancelled, notice of the cancellation must be sent using the Department's designated notification system within three hours of the time the pest control company learns of the cancellation. The licensee must provide:

(1) address and site location;

(2) fumigant to be used;

(3) date and time of treatment (for the purposes of this section the time of treatment is when the business conducting the fumigation is scheduled to arrive at the fumigation site);

(4) measured cubic feet under contract;

(5) the name and license number of the business licensee; and

(6) the name and license number of the certified applicator responsible for overseeing the fumigation.

(q) Before an individual may apply for an initial certified applicator's license in the structural fumigation category the following experience requirements must be met:

(1) Attend a forty (40) hour structural fumigation school that has at least sixteen (16) hours of hands on training, and has been approved by the Department; or

(2) Obtain forty (40) hours of on-the-job training with at least sixteen (16) hours of hands on training that is approved by the Department. Department approved hands-on-training includes the following:

(A) Inspect structure and identify pest(s) prior to fumigation;

(B) Prepare disclosure documents pursuant to the provisions of §7.174, of this title;

(C) Measure structure and calculate volume;

(D) Calculate dosage of fumigant;

(E) Notify local fire, police or emergency authority as appropriate;

(F) Secure materials left inside structure, check pilot lights & appliances;

(G) Tarp, place snakes, or otherwise seal structure for fumigation;

(H) Post the structure and secure entrances to the structure;

(I) Instruct the person (guard) on duty at the site on responsibilities and safety precautions;

(J) Set up equipment including splash pan and fans;

(K) Introduce fumigant and warning agent (if required) to the structure;

(L) Aerate structure;

(M) Take down tarps, remove snakes, remove locks, or otherwise remove sealing material;

(N) Clear the structure;

(O) Store and/or dispose of fumigant containers;

(P) Prepare the report of fumigation required by subsection (l) of this section; and

(Q) Securing the fumigant for transportation consistent with label directions.

(r) Current certified applicators with the structural fumigation category must receive four (4) hours of training per year to maintain their structural fumigation certification. The four (4) hours of training may be classroom or on the job training. Department approved hands-on-training includes the following:

(1) Inspect structure and identify pest(s) prior to fumigation;

(2) Prepare disclosure documents pursuant to the provisions of §7.174 of this title;

(3) Measure structure and calculate volume;

(4) Calculate dosage of fumigant;

(5) Notify local fire, police or emergency authority as appropriate;

(6) Secure materials left inside structure, check pilot lights & appliances;

(7) Tarp, place snakes, or otherwise seal structure for fumigation;

(8) Post the structure and secure entrances to the structure;

(9) Instruct the person (guard) on duty at the site on responsibilities and safety precautions;

(10) Provide onsite supervision during application (only one applicator per company may claim provision of onsite supervision);

(11) Set up equipment including splash pan and fans;

(12) Introduce fumigant and warning agent (if required) to the structure;

(13) Aerate structure;

(14) Take down tarps, remove snakes, remove locks, or otherwise remove sealing material;

(15) Clear the structure;

(16) Provide onsite supervision during aeration and clearing (only one applicator per company may claim provision of onsite supervision);

(17) Store and/or dispose of fumigant containers;

(18) Prepare the report of fumigation required by subsection (l) of this section; and

(19) Securing the fumigant for transportation consistent with label directions.

(s) In addition to the four (4) hours of training per year, certified applicators must acquire one (1) CEU per year in structural fumigation to maintain the certification following initial testing.

(t) A verifiable performance/training records form will be made available to the Department upon request. These performance/training records forms shall be kept on a format prescribed by the department in the business file for at least two (2) years. The responsible certified applicator for the company that performed the training must certify in the training records of each certified applicator that the certified applicator has completed the required training and has demonstrated competency. The verifiable performance/training records form will be made available to the certified applicator or technician upon written request.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705289

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075


DIVISION 6. STRUCTURAL PEST CONTROL ADVISORY COMMITTEE

4 TAC §7.192

The adoption is made pursuant to the Texas Occupations Code, Chapter 1951, which designates the Department as the sole authority for licensing persons engaged in the business of structural pest control, and provides the Department with the authority to adopt rules to implement and enforce related laws and regulations.

The code affected by the adoption is Occupations Code, Chapter 1951.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705290

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 9, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 463-4075