TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 5. FUEL QUALITY

The Texas Department of Agriculture (Department) proposes the repeal of Title 4, Part 1, §5.1 and §5.5; new §5.1, related to Definitions, and §5.5, related to Inspections; and amendments to §5.4, related to Records for the Fuel Quality Program. These new and amended rules are necessary to comply with House Bill 2174, enacted during the 85th Regular, Texas Legislative Session, which amends §§17.072 - 17.073 of the Texas Agriculture Code related to motor fuel quality and testing. The proposed rules define procedures for fuel quality inspections and complaints. Sections proposed for repeal and proposed as new to permit the reader to more easily read and understand the new requirements in a clear and concise manner.

New §5.1 adds definitions which delineate the roles of the Department and Licensed Service Companies (LSC) to align the rules with the new statutory requirements for administering the fuel quality program. Section 5.4 is amended to clarify the Department's role to collect and inspect fuel quality records along with new additional record requirements to be maintained by the facility for complaint and routine inspection samples drawn by an LSC.

New §5.5 is repealed and proposed to require LSCs to draw all fuel quality samples in accordance with Department procedures. Additionally, refusing inspection by failing to submit a sample and/or improperly shipping a sample as prescribed by Department procedures constitutes an enforcement violation. Facilities are identified as being responsible for using a third party LSC to perform complaint testing and that facilities must maintain the fuel in the storage tanks at time of complaint notification without amending the fuel prior to sampling and enough fuel must be maintained in storage for a sample collection by a LSC.

Stuart Strnad, Director for Consumer Product Protection, has determined that for the first five years the proposal is in effect, there will be no anticipated fiscal impact to local government. There will be minimal fiscal impact to state government as the Department currently conducts routine processing in response to fuel quality complaints.

Mr. Strnad has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of administering the proposed rule will be increased consumer protection to the public through efficiencies of administering the consumer protection program, industry compliance and regulation of the affected industry. At this time, the Department cannot estimate the fiscal impact on businesses in the fuel retail industry because samples required to be submitted, other than routine samples, are dependent on complaint volume.

Comments on the proposal may be submitted to Stuart Strnad, Director for Consumer Product Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to rulecomments@texasagriculture.gov. Comments must be received no later than 30 days from the date of publication on the proposal in the Texas Register.

4 TAC §5.1, §5.5

The repeals are proposed under Agriculture Code, §17.071, which authorizes the Department to adopt rules fuel quality and testing standards for motor fuel that is sold or offered for sale in this state.

The code affected by the proposal is Chapter 17 of the Texas Agriculture Code.

§5.1.Definitions.

§5.5.Inspections.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704384

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


4 TAC §§5.1, 5.4, 5.5

The amendments and new rules are proposed under Agriculture Code, §17.071, which authorizes the Department to adopt rules fuel quality and testing standards for motor fuel that is sold or offered for sale in this state.

The code affected by the proposal is Chapter 17 of the Texas Agriculture Code.

§5.1.Definitions.

In addition to the definitions set out in Texas Agriculture Code, Chapter 17, and the standards set by the American Society for Testing and Materials (ASTM), the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

(1) ASTM--The American Society for Testing and Materials; the national voluntary consensus standards organization formed for the development of standards on characteristics and performance of materials, products, systems and services and the promotion of related knowledge.

(2) Audit--An official TDA administrative review completed by a Representative of the Commissioner of fuel quality samples and device inspections, tests and calibrations records and/or related documentation.

(3) Department--Texas Department of Agriculture.

(4) Gasoline--That term as defined in Texas Tax Code, Chapter 162.

(5) NIST--The National Institute of Standards and Technology.

(6) Representative of the Commissioner--An individual employed by the Department, authorized to perform one or more of the following: audits, reviews, inspections, and/or service observations under specified chapters of the Texas Agriculture Code.

(7) Representative of the Department--A licensed service company and/or licensed technician acting on behalf of the Department to complete fuel quality sample collections, inspections, tests, and calibrations, on motor fuel metering devices as per Texas Agriculture Code, Chapter 13, Subchapter I.

§5.4.Records.

(a) Records or other documents specified in this section must be maintained in accordance with Texas Agriculture Code, Chapter 17, and shall be submitted to the Department [department] in the manner and time period as specified in a notice provided by a Representative of the Commissioner [the department].

(b) Motor fuel dealers, distributors, suppliers, wholesalers, and jobbers shall maintain the following records and documents for a period of four years:

(1) - (2) (No change.)

(3) any record or other document related to the sampling and testing of motor fuel purchased, sold, delivered, or distributed by the dealer, distributor, supplier, wholesaler, or jobber must be maintained.

(c) Complaint inspection and sampling. All documentation related to complaint inspections and all samples drawn by a Licensed Service Company must be maintained for a period of four years and submitted to the Department upon request.

(d) Routine inspection and sampling. All documentation related to routine inspections and all samples drawn by a Licensed Service Company must be maintained for a period of four years and submitted to the Department upon request.

§5.5.Inspections.

(a) Fuel sample collection shall be performed by a current license holder that holds a service company license or a service technician license issued by the Department under Chapter 13, Subchapter I of the Texas Agriculture Code.

(1) Routine fuel sample collection: Beginning the day after notification by the Department that a routine fuel quality sample is required, within ten (10) calendar days, a facility must have a sample drawn by a LSC and shipped to a Department approved contracted laboratory.

(2) Complaint fuel sample collection: Beginning the day after notification by the Department that a fuel quality sample must be drawn due to a complaint, within five (5) calendar days a facility must have a LSC draw and ship the sample to a Department approved contracted laboratory.

(3) It is a violation to fail or refuse to allow fuel quality testing as prescribed by the Department.

(4) It is a violation to fail to or improperly ship a fuel quality sample as prescribed by the Department.

(b) A Representative of the Commissioner shall conduct labeling inspections to ensure compliance with posting requirements set forth in §17.051 of the Texas Agriculture Code, and 16 CFR Part 306, in accordance with procedures adopted by the Department.

(c) Routine fuel sampling inspections, labeling inspections, and complaint inspections shall occur upon a schedule determined by the Department.

(d) All complaints received by the Department will result in an inspection of the facility and/or fuel blend inspection sampling of the motor fuel(s) identified in the complaint.

(1) Facilities are prohibited from utilizing a LSC with which it shares ownership interests, operations, or an affiliation having power to control the other, to conduct a fuel quality complaint inspection and/or draw fuel quality complaint inspection sample(s) for the facility.

(2) After a facility receives notice from the Department of a fuel quality complaint, the facility is prohibited from adding fuel to the fuel tank(s) holding the fuel blend(s) which is the subject of the complaint(s) prior to collection of the fuel quality sample.

(3) After notification of a fuel quality complaint, and prior to the fuel sample collection, the facility is required to retain an adequate amount of fuel in the fuel tank(s) holding the fuel blend(s) which are the subject of the complaint(s) to assure that the LSC can draw a sufficient fuel quality inspection sample(s).

(4) It is a violation by the facility and the LSC to hinder, fail, or refuse to conduct fuel quality complaint testing and sample shipping as prescribed by the Department.

(e) The fill pipe box cover for any automotive fuel storage tank or vessel supplying gasoline or diesel fuel shall be permanently, plainly, and visibly marked in such a manner as to identify what type of gasoline or diesel fuel each storage tank delivers to a particular motor fuel dispenser. For example, the markings may include the words, or abbreviation of the words, regular unleaded, unleaded plus, super unleaded, or a related color code scheme, such as white, blue and red. If the fill pipe box covers are marked by means of a color code scheme, a color code legend shall be conspicuously displayed at the place of business.

(f) Failure to comply with the requirements of this section may result in the imposition of an administrative penalty, license sanction and/or civil or criminal penalties in accordance with Texas Agriculture Code, Chapters 12 and 17.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704385

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


CHAPTER 7. PESTICIDES

SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE

The Texas Department of Agriculture (Department) proposes 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. Further, the Department proposes new Division 1, §7.114; Division 2, §§7.121 - 7.136; Division 3, §§7.142 - 7.149, and §7.156; Division 5, §§7.172 - 7.178; and Division 6, §7.192. The proposal 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. The repeal of the current rules and proposal of the rules as new permits the reader to review the revised regulations in a more clear and concise manner which is easier to understand.

Sections 7.112 and 7.113, related to the settlement of structural pest cases and complaints, are repealed. Section 7.114, related to definitions, is repealed, and new §7.114 adds definitions applicable to Chapter 7, Subchapter H, Structural Pest Control Service.

Division 2 is repealed in its entirety, and all sections are proposed as new rules. New §7.121 clarifies the types of and requirements of licensing under the structural pest category. New §7.122 clarifies the structural pest application process. New §7.123 adds clarification that licensees meet insurance requirements at all times during licensure. New §7.124 defines types of pest control licenses. New §7.125 defines examination procedures and adds a provision which permits the expediting of examination application forms for military members, military veterans and military spouses. New §7.126 clarifies the licensing qualification requirements. New §7.127 prescribes license expiration and renewal requirements. New §7.128 adds a provision that no refunds will be made for license applications submitted to the Department. New §7.129 clarifies the requirements for making a hardship request in the event of the loss of the responsible certified applicator or business license holder. Current §7.129, regarding licensing of persons with criminal backgrounds has been renumbered to §7.130, and is proposed without changes. New §7.131 clarifies restrictions on certified noncommercial applicators. New §7.132 provides clarification on apprentice registration and training requirements. New §7.133 relates to technician license requirements. New §7.134 provides clarification on continuing education requirements for certified applicators and includes options for online continuing education courses. New §§7.135-7.136 extend the maximum approval period for technician/noncommercial certified applicator training and continuing education training courses to two (2) years.

New §7.142 provides clarification on deadlines for notifying the Department of employee registration and termination. New §7.143 changes the number of days a week a technician must receive personal instruction from the responsible certified applicator. New §7.144 clarifies which pest control use records are required to be kept. New §7.145 clarifies the requirements for customer contracts and invoices. New §7.146 provides requirements for pest control signs and when they must be used. New §7.147 provides requirements for consumer information sheets and when they must be provided. New §7.148 clarifies the responsibilities of unlicensed persons to post and provide notification of pest control applications. New §7.149 clarifies the Department's processes for inspections of commercial businesses and school districts and eliminates specific scheduling criteria. New §7.156 grants the Department entry and access authority to conduct inspections.

Subchapter H, Division 5 has been repealed in its entirety and is proposed as new. New §7.172 sets additional standards for subterranean termite post construction treatments. New §7.173 adds standards for subterranean termite pre-construction treatments. New §7.174 describes the requirements for subterranean termite, drywood termite and related wood destroying insect treatment disclosure documents. New §7.175 provides clarification for Official Wood Destroying Insect Report procedures. New §7.176 clarifies the real estate transaction inspection report requirements. New §7.177 revises the posting requirements for notices of inspection. New §7.178 clarifies and expands requirements for structural fumigation.

New §7.192 adds requirements regarding the Structural Pest Control Advisory Committee to align the rules with §1951.105 of the Occupations Code, as amended by House Bill 3243 during the 85th Regular Legislative Session.

The proposed rules have been presented to the Structural Pest Control Advisory Committee (Committee) for review and feedback as required by Texas Occupations Code, §1951.104. The Committee's input has been taken into consideration and included in the proposal.

Leslie Smith, Director for Consumer Service Protection, has determined for the first five years the proposal is in effect, there will be nominal fiscal implications for state government as a result of administering the proposed changes. There will be no fiscal impact on local government.

Ms. Smith has also determined that for each year of the first five years the proposal is in effect, the public will benefit as affected and potential licensees gain a better awareness of the Department's structural pest control program and related rules. Ensuring applicants' and licensees' understanding of and compliance with the program requirements will result in increased compliance and regulatory protection for residents of Texas. There will be no adverse fiscal impact on individuals, small or micro businesses as a result of the proposed rule changes, as no fees have been increased.

Written comments on the proposal may be submitted to Leslie Smith, Director for Consumer Service Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711 or by email to Leslie.Smith@TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

DIVISION 1. GENERAL PROVISIONS

4 TAC §§7.112 - 7.114

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.112.Settlement of Contested Cases.

§7.113.Settlement of Consumer Complaints.

§7.114.Definition of Terms.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704368

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 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

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.121.Persons Required to Secure License.

§7.122.Application for Licensing, Registration, Certification, and Approval.

§7.123.Insurance Requirement.

§7.124.Resident Agent.

§7.125.Examinations.

§7.126.License Expiration and Renewal.

§7.127.Fees.

§7.128.Loss of Responsible Certified Applicator or Business License Holder.

§7.129.Licensing of Persons with Criminal Backgrounds.

§7.131.Certified Noncommercial Applicator Restrictions.

§7.133.Technician License Requirements.

§7.134.Continuing Education Requirements for Certified Applicators.

§7.135.Criteria and Evaluation of Continuing Education.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704369

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 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

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.142.Employee Registration.

§7.143.Employee Supervision.

§7.144.Pest Control Use Records.

§7.145.Contracts.

§7.146.Pest Control Sign.

§7.147.Consumer Information Sheet.

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

§7.149.Inspections.

§7.153.Reduced Impact Pest Control Service.

§7.156.Entry and Access.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704370

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 5. TREATMENT STANDARDS

4 TAC §§7.172 - 7.178

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.172.Subterranean Termite Post Construction Treatments.

§7.173.Subterranean Termite Pre-Construction Treatment.

§7.174.Termite Treatment Disclosure Documents.

§7.175.Wood Destroying Insect Report Inspection Procedures.

§7.176.Real Estate Transaction Inspection Reports.

§7.177.Posting Notice of Inspection.

§7.178.Structural Fumigation Requirement.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704371

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 6. STRUCTURAL PEST CONTROL ADVISORY COMMITTEE

4 TAC §7.192, §7.194

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.192.Rules Governing Operation of the Committee.

§7.194.Additional Qualifications for Committee Members.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704372

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 1. GENERAL PROVISIONS

4 TAC §7.114

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.114.Definition of Terms.

In addition to the definitions set out in the Structural Pest Control Act, Chapter 1951, Texas Occupations Code, the following words, names, and terms shall have the below meanings for this subchapter, unless the context clearly indicates otherwise.

(1) Adjacent--An area having a common wall, ceiling, or floor.

(2) Apprentice registration--A registration by a commercial or noncommercial business entity of an individual who is training and/or performing structural pest control services for the business.

(3) Area of common access--An area that an individual is likely to be present in or at on a regular basis, such as a building entranceway, mailboxes, laundry rooms, beverage machines, building bulletin boards, hallways, etc.

(4) Calendar year--January 1 to December 31.

(5) Category--A type of structural pest control that an individual licensee or business licensee is authorized to perform.

(6) Chairman--An individual elected by members of the Structural Pest Control Advisory Committee to preside over meetings.

(7) Committee--The Structural Pest Control Advisory Committee. An eleven-member committee appointed by the Commissioner, whose responsibility is to gather information and advise the Commissioner and the Department on the business of structural pest control.

(8) Course provider--The person, company, or organization that compiles, organizes, writes and/or produces category specific training or continuing education courses.

(9) Department--The Texas Department of Agriculture.

(10) Household--Residential structure occupied or intended for occupancy by a single individual, cohabitating individuals, or a family.

(11) Inactive license--A license for which certification requirements have been maintained, but technicians and certified applicators are prohibited from legally engaging in structural pest control services, advertising, or solicitation.

(12) Infest--To exist in, on, around or invade a structure in a manner that may limit the use or enjoyment of, or cause harm or damage to: households, railroad cars, ships, docks, trucks, airplanes, or other structures, or its contents, or its inhabitants, including any humans or pets; pests, unwanted plants, or diseases of trees, shrubs, or other plantings in a park or adjacent to a residence, business establishment, industrial plant, institutional building or street.

(13) Integrated Pest Management (IPM)--A pest management strategy that relies on multiple pest control tactics, including the judicious use of pesticides, informed by accurate identification and scientific knowledge of pests, reliable monitoring methods to assess pest presence, preventative measures to avoid pest infestations, and thresholds to determine when corrective control measures are needed.

(14) Obnoxious and undesirable animals or plants--Animals or weeds as defined in §1951.003 of the Occupations Code, that limit the use or enjoyment or cause harm or damage of any type to people, pets, structures, landscapes, or the environment. Animals excluded from this definition are members of the Order Primates, hoofed mammals, members of Family Ursidae, members of the Genus Felis, members of the Genus Canis, domestic livestock, ratites, gallinaceous birds and alligators.

(15) Occupations Code--Unless otherwise specified, all references shall be to the Texas Occupations Code, Chapter 1951.

(16) Other noncommercial entity--Any workplace with three (3) or more full-time employees.

(17) Physically present--Face-to-face contact at a work location.

(18) Self-study course--A self-study, online or electronic course taken for the purpose of continuing education or training.

(19) SPCA--Structural Pest Control Act, Texas Occupations Code, Chapter 1951.

(20) TPCL--Texas Pest Control License.

(21) Vice-Chairman--An individual elected by members of the Structural Pest Control Advisory Committee to preside over meetings in the absence of the Chairman.

(22) WDIR--Texas Official Wood Destroying Insect Report.

(23) Work location--Anywhere structural pest control services are performed or where a meeting is being held for the purpose of supervision or training (job site/classroom).

(24) Workplace--Any non-residence structure with three or more full-time paid employees that is treated by a licensed business or a certified noncommercial applicator.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704373

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 2. LICENSES

4 TAC §§7.121 - 7.136

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.121.Types and Requirements of Licenses.

(a) Business Licensee--Any person engaged in structural pest control for compensation must secure a business license in the business's operating name from the Department for each business location, including branch offices. Each business license holder must designate a responsible certified commercial applicator for each business location who is not also serving as a responsible certified commercial applicator for any other business licensee or any other business location. The business license may reflect only those categories in which at least one (1) certified applicator is actively licensed. A business licensee may not operate at any time without a responsible certified applicator designated or current general pest liability insurance.

(b) Responsible Certified Commercial Applicator--A certified commercial applicator who has been designated and notified by the business license holder to be responsible for training and supervision of all pest control operations of the business. The person may be employed by other business location(s) as a certified commercial applicator, but may only be the designated responsible certified commercial applicator for (1) one business license location.

(c) Certified Commercial Applicator--A person licensed in at least one (1) category as a certified commercial applicator who can perform pest control services, identifications, and control measures without direct supervision but under general supervision of the responsible certified commercial applicator. A certified commercial applicator must hold a separate license for every business for which the certified commercial applicator is employed but is not required to hold a separate license for branch offices of an employer.

(d) Certified Noncommercial Applicator--An employee of a governmental entity, apartment building, day care center, hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, school or educational institution, and other noncommercial entity. A person licensed in at least one (1) category as a noncommercial certified applicator may perform pest control services, identifications, and control measures without direct supervision. A certified noncommercial applicator must be licensed for every business entity for which the certified noncommercial applicator is employed but is not required to hold a separate license for branch offices of an employer.

(e) Responsible Certified Noncommercial Applicator--A certified noncommercial applicator who has been designated and notified by the noncommercial entity to be responsible for training, supervision, and records of all noncommercial apprentices and technicians of the noncommercial entity.

(f) Technician--A person licensed in at least one (1) category who performs pest control services under the direct supervision of a commercial or noncommercial certified applicator. A technician must be licensed for every business or noncommercial entity for which the technician is employed, but is not required to hold a separate license for branch offices of their employer.

(g) Apprentice--A sales or service employee who is registered by a structural pest control business or noncommercial entity to complete the required training for a technician license and has not yet passed a technician exam. An apprentice may work only for the business or noncommercial entity for which they are registered.

§7.122.Applications for Licensing, Registration, Certification, and Approval.

(a) The application for a business license, a certified applicator license, technician license, or for registration as an apprentice under this Chapter must be complete and submitted on a form prescribed by the Department.

(b) A license application may be denied if a same or similar license issued to the applicant by this or another state or federal government has been revoked, suspended, probated or denied during the preceding five-year period for any reason. For the purpose of this section, a license is similar if the license was issued for the practice of an occupation in which professional services are normally provided in-person.

(c) Licensees and applicants residing outside of Texas must designate in writing a resident agent for service of process in actions taken in the administration and enforcement of the SPCA. Each resident agent must be a citizen of Texas and maintain a permanent address within the state.

§7.123.Insurance Requirements.

(a) Each business license applicant and certified noncommercial applicator license applicant must submit a certificate of insurance with proof of coverage on the form provided by the Department in an amount not less than $200,000 for bodily injury and property damage coverage, with a minimum total annual aggregate of $300,000 for all occurrences. The insurance policy must insure applicant for damage to persons and/or property occurring as a result of operations performed in the course of the business of structural pest control to premises or any other property under applicant's care, custody, or control. No new business license or certified noncommercial applicator license will be issued until insurance requirements are met. Policies must contain a cancellation provision for notification to the Department not less than thirty (30) days prior to cancellation.

(b) A licensee who operates as a wood treater who treats wood on commercial property owned by the licensee must submit a general liability insurance policy or certificate of coverage in an amount not less than $200,000 for bodily injury and property damage coverage, with a minimum total annual aggregate of $300,000 for all occurrences. No license will be issued until this insurance requirement is met. Policies must contain a cancellation provision for notification to the Department not less than thirty (30) days prior to cancellation.

(c) If payment of claims results in reducing the total aggregate of coverage below $300,000, the insurance carrier must notify the Department and the licensee within ten (10) business days. The licensee must obtain additional coverage to meet the minimum requirements.

(d) Inactive certified applicators and technicians that do not perform structural pest control work for compensation or as a part of the duties of their employment are exempt from insurance requirements.

(e) Certified noncommercial applicators employed by governmental entities are exempt from insurance requirements.

(f) Only those insurance policies issued by insurers authorized by or registered with the Texas Department of Insurance will be considered to meet the requirements of this section.

(g) A structural pest control commercial business or noncommercial certified applicator must maintain general liability insurance with the required minimum coverage during the duration of the licensure period.

§7.124.Structural License Categories.

Pest control licenses may be issued in one or more of the following categories.

(1) Pest Control--The inspection or control of pests in and around structures or pest animals which may invade homes, restaurants, stores, and other buildings, attacking their contents or furnishings or being a general nuisance, but do not normally attack the building itself. Examples of such pests are cockroaches, silverfish, ants, fleas, ticks, flies, mosquitoes, rats, mice, skunks, raccoons, opossums, etc.

(2) Termite and Wood Destroying Insect Control--The inspection or control of termites, beetles, or other wood destroying insects and wood preservation by means other than fumigation in buildings, including homes, warehouses, stores, docks, or any other structures. This category includes the treatment of termites in trees in and around structures.

(3) Lawn and Ornamental--The inspection or control of pests or diseases of trees, shrubs, or other plantings in a park or in and around structures, business establishments, industrial parks, institutional buildings or streets.

(4) Weed Control--The inspection or control of weeds in right-of-ways, around homes, in a park or in and around structures, business establishments, industrial parks, institutional buildings, streets, and industrial environs.

(5) Structural Fumigation--The inspection or control of pests through fumigation of structures not primarily intended to contain food, feed, or grains.

(6) Commodity Fumigation--The inspection or control of pests through fumigation of processed commodities or structures normally used to contain commodities. This category does not include raw agricultural commodities.

(7) Wood Preservation--Pest control that involves the addition of preservatives to wood products to extend the life of the wood products by protecting them from damage caused by insects, fungi, and marine borers. Examples of wood products may include crossties, poles, and posts. This includes the re-treatment of power-line poles with wood preservative pesticide including fumigants.

§7.125.Examinations.

(a) Examination required. Each individual not previously qualified by examination in the category or categories for which the license is requested must pass an appropriate examination. An application must be submitted to the Department specifying the examination category desired and pay the fee for each exam requested prior to the scheduled examination session.

(b) Examination categories. Examinations will be administered, maintained, and evaluated on a routine basis as determined by Department examination policy in the following categories:

(1) Pest control;

(2) Termite and Wood Destroying Insect Control;

(3) Lawn and Ornamental;

(4) Weed Control;

(5) Structural Fumigation;

(6) Commodity Fumigation; and

(7) Wood Preservation.

(c) Military requests to expedite examinations. Military members, military veterans, and military spouses, as defined in Occupations Code, Chapter 55, may request their application for examination to be expedited by noting on their application to the Department. To qualify, all other licensing requirements must also be met.

(d) Examination standards and requirements.

(1) A fee shall be charged for each examination.

(2) All examination fees are to be paid as prescribed by the Department.

(3) Applicants must present photo identification issued by the Texas Department of Public Safety, or an equivalent from another state prior to taking an examination.

(4) All examinations shall be maintained and administered by the Department or its designee.

(5) The examination will be administered in written or electronic form and in general, cover the subject of the categories designated on the application.

(6) Examinations shall only be administered in English.

(7) No written materials, scratch paper, or electronic devices, other than calculators, may be brought into the examination room or used during the examination.

(8) Scratch paper will be provided, as necessary, and must be returned to the examination proctor at the end of each examination.

(9) Applicants who do not take a scheduled examination shall not receive a refund of the examination fee.

(10) Persons who make a minimum grade of 70% shall be issued a certified applicator license upon issuance of the grades.

(e) Cheating is prohibited.

(1) Cheating consists of giving or receiving unauthorized assistance to answer examination questions; bringing unauthorized materials into the exam room or using unauthorized materials to answer examination questions; using answers from another examinee; copying questions or answers to examination questions to take from the examination room; removing an examination booklet, answer sheet, or scratch paper from the examination room; or any other action which may undermine the integrity of the examination process.

(2) "Unauthorized assistance" means any verbal, written or electronic communication during the examination made for the purpose of receiving or providing answers to examination questions.

(3) Upon a final determination that an examinee has cheated, any current license issued by the Department is subject to suspension or revocation.

§7.126.Licensing Qualification Requirements.

(a) Certified commercial applicator. In addition to passing the appropriate category examination, in order to be eligible to obtain a certified commercial applicator license, each applicant must pass the general standards examination administered by the Department. To be eligible to be licensed in any of the categories in §7.125(b) of this title, related to examinations, the applicant must also meet one of the following requirements:

(1) Have verifiable employment in the pest control industry under the supervision of a licensed certified applicator for at least twelve (12) months out of the past twenty-four (24) months and must have possessed a technician's license for at least six (6) months during that time period;

(2) Furnish proof of previous verifiable employment experience in the pest control industry, including out-of-state experience in pest control of at least twelve (12) months out of the past twenty-four (24) months. The proof of experience must be provided by the applicant in the form of a letter from the appropriate licensing entity stating the type of license held and how long the applicant has held the license;

(3) Have a degree or certificate in an area of the biological sciences related to pest control from an accredited two (2) or four (4) year college or university;

(4) Have previously held a certified applicator license issued by the Structural Pest Control Board or the Department that can be verified by the Department; or

(5) Qualify under the hardship clause outlined in §7.129 of this title, relating to Loss of Responsible Certified Applicator or Business License Holder.

(b) Certified non-commercial applicator. In addition to passing the appropriate category examination and the general standards examination, in order to be eligible to obtain a certified noncommercial applicator's license, the applicant must meet one of the following requirements:

(1) Have verifiable employment in the pest control industry under the supervision of a licensed certified applicator for at least twelve (12) months out of the past twenty-four (24) months and must have possessed a technician license for at least six (6) months during that time period;

(2) Furnish proof of previous verifiable employment experience in the pest control industry, including out-of-state experience in pest control of at least twelve (12) months out of the past twenty-four (24) months. The proof of experience must be provided by the applicant in the form of a letter from the appropriate licensing entity stating the type of license held and how long the applicant has held the license;

(3) Have a degree or certificate in an area of the biological sciences, related to pest control, from an accredited two (2) or four (4) year college or university;

(4) Complete a Department approved minimum six (6) hour certified noncommercial/technician training course; or

(5) Have previously held a certified applicator license issued by the Structural Pest Control Board or the Department that can be verified by the Department.

(c) Commercial or noncommercial technician. In addition to passing the appropriate category examination, in order to be eligible to obtain a commercial or noncommercial technician license, the applicant must be registered with the Department, complete all required apprentice training specified in §7.132 of this title, relating to Requirements for Apprentice Registration, and attend a technician training course at least one (1) time prior to taking the examination. The examination may be taken as many times as necessary in the twelve (12) month period the employee holds a current apprentice registration card.

§7.127.License Expiration and Renewal.

(a) Each commercial business license expires on the last day of the month, twelve (12) months from the date issued.

(b) Commercial technician and certified applicator licenses registered with a commercial business, expire annually on the same date the commercial business license expires.

(c) Commercial and noncommercial apprentice licenses expire on the last day of the month, twelve (12) months from the date issued.

(d) Noncommercial technician and certified applicator licenses registered with a noncommercial entity expire annually on the same date the noncommercial business license expires.

(e) Inactive licenses, regardless of classification, expire annually on December 31.

(f) Certified applicators and technicians who change employers may pay additional license fees to adjust the expiration date to that of the business or other entity under which they are operating.

(g) Licenses must be renewed by submitting a renewal application to the Department, paying the required fee, and meeting any additional requirements under §7.123 of this title, relating to Insurance Requirements, and subsection (k) of this section, prior to the license expiration date.

(h) Military members, military veterans, and military spouses, as defined in Occupations Code, Chapter 55, may request their application for renewal to be expedited by noting on their application to the Department. To qualify, all other licensing requirements must also be met.

(i) A renewal application submitted after the license expiration date is subject to late fees. A renewal application is not considered to be submitted unless it is complete and correct, submitted with the correct fees, and satisfies all additional requirements determined by the Department. Applicants who apply for a renewal license more than 365 days after the license expiration date will be required to be re-examined to obtain a license.

(j) Licenses issued by the Department may not be transferred, borrowed, rented, leased or loaned.

(k) Whenever a licensee changes their mailing address, business location address, or telephone number, the licensee must notify the Department in a written or electronic manner within ten (10) business days of the effective date of the change. A license may be reprinted upon request and shall be issued to the licensee only.

(l) In determining whether additional testing or training must be required of a current licensee before renewal of their license, the Department may consider changes in regulations, technology, pesticide related issues, and the performance or competency of individual licensees. If general re-training or re-testing is required for all applicators in a category or subcategory, the Department will publish notice at least six (6) months in advance of the license renewal date. If individual re-training or re-testing is required as a result of the licensee's performance or inability to perform, the Department shall give notification and set a time and place of re-training.

(m) All certified applicators must meet their continuing education requirements in each category for which they hold a license during the prior calendar year, pursuant to §7.134 of this title, relating to Continuing Education Requirements for Certified Applicators. Failure to do so shall prevent the renewal of the license.

(n) All technicians must meet their verifiable training requirements during the prior calendar year, pursuant to §7.133 of this title, relating to Technician License Requirements. Failure to do so shall prevent the renewal of the license.

§7.128.Fees.

Applicants and licensees will be charged the following fees:

(1) $300 for a business license;

(2) $125 for a certified applicators license;

(3) $125 for a technician license;

(4) $64 per exam in each category;

(5) a renewal fee equal to 1-1/2 times the normally required renewal fee for applications received 90 days or less after expiration date; and

(6) a renewal fee equal to 2 times the normally required renewal fee for applications received greater than 90 days but less than one year after expiration date.

(7) No refunds will be provided for applications submitted to the Department.

§7.129.Loss of Responsible Certified Applicator or Business License Holder.

(a) In the event of disability, incapacity, or death of the owner of a licensed business, and upon application of an heir electing to continue the business or noncommercial operation, the Commissioner may allow the operation to continue for a period not to exceed six (6) months. The Department must be notified in writing within twenty (20) business days of the disability, incapacity, or death of the business license holder.

(b) Upon the disability, incapacity, death, or loss of a responsible certified applicator, or certified applicator for a noncommercial operation, the business license holder or the noncommercial operation may request that the Commissioner allow the operation to continue until the next examination date or a reasonable time period as determined by the Commissioner. The Department must be notified in writing within twenty (20) business days of the date of the disability, incapacity, loss or death of the certified applicator.

(c) Upon written request, the Commissioner may grant a hardship extension due to extenuating circumstances. The length of the extension is at the discretion of the Commissioner. All requests are subject to review and may require additional documentation.

(d) In the event the Commissioner grants the request for a business or facility to operate for a period of time without the presence of a responsible certified applicator or noncommercial certified applicator, the operation may only apply general use pesticides and may not add any other employees other than a certified applicator during the granted period or until a responsible certified applicator or noncommercial certified applicator, as appropriate, is employed and designated.

§7.130.Licensing of Persons with Criminal Backgrounds.

(a) The Department performs criminal background checks on each applicant for examination or a license. Applications to examine for or receive a license, including a renewal, may be delayed as the result of evaluating any criminal activity revealed by this criminal background check.

(b) No currently incarcerated person is eligible to obtain or renew a pest control license.

(c) The Department may revoke, suspend, annul, or amend an existing license, disqualify a person from receiving or renewing a license, or deny to a person the opportunity to be examined for a license because of a person's conviction of a felony or a misdemeanor, if the crime directly relates to the performance of the occupation or activity for which the license is issued and the prior criminal conviction directly affects such person's present fitness to perform such occupation or activity.

(d) In determining whether a criminal conviction directly relates to the performance of a licensed occupation or activity, the department shall consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

(e) In making a determination in a particular case, the crimes which the department considers as likely to be directly related to the performance of the licensed occupation or activity include, but are not limited to:

(1) any felony or misdemeanor of which fraud, dishonesty, or deceit is an essential element;

(2) any criminal violation of the SPCA;

(3) any criminal violation of statutes regulating the particular occupation or activity for which licensing is sought;

(4) any crime involving moral turpitude;

(5) murder;

(6) burglary;

(7) robbery;

(8) sexual assault;

(9) theft;

(10) sexual assault of a child;

(11) possession of controlled substances;

(12) assault;

(13) larceny;

(14) multiple convictions for the same crime; and

(15) falsification of a government document.

(f) In determining whether a criminal conviction directly affects a person's present fitness to hold a license under the SPCA, the Department shall consider the following factors:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person at the time of the commission of the crime;

(3) the amount of time that has elapsed since the person's last criminal activity, or release from a penal institution or court supervision;

(4) the conduct and work activity of the person prior to and following the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release;

(6) other evidence of the person's present fitness, including letters or recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other persons in contact with the convicted person.

(g) It is the responsibility of the applicant to the extent possible to secure and provide to the Department the recommendations of the prosecution, law enforcement, and correctional authorities. The applicant must also furnish proof in such form as may be required by the Department that the applicant has maintained a record of steady employment, supported dependents, maintained a record of good conduct, and paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which convicted.

§7.131.Certified Noncommercial Applicator Restrictions.

(a) A certified noncommercial applicator may not perform commercial pest control services or perform any structural pest control services for a person other than the employer for whom the applicator is certified. A certified noncommercial applicator must not be associated with a licensed structural pest control business unless the applicator is also a certified commercial applicator or technician.

(b) Certified noncommercial applicators that have been licensed for a minimum of two (2) years may become certified commercial applicators by requesting an additional license or change of license and paying the required license fee.

(c) Certified commercial applicators may become certified noncommercial applicators by requesting an additional license or change of license and paying the required license fee.

§7.132.Requirements for Apprentice Registration.

(a) An apprentice is a beginning employee, whose training program is the responsibility of the responsible certified applicator or noncommercial certified applicator and who may be trained by and work under the direct supervision of licensed certified applicators and technicians.

(b) An apprentice must be at least 16 years of age.

(c) An apprentice must be able to demonstrate proficiency in reading EPA approved pesticide labels and warnings.

(d) An apprentice must submit an apprentice registration application for technician license within ten (10) days of beginning employment and training.

(e) The application must be submitted on the form prescribed by the Department.

(f) A fee shall be charged for each application.

(g) An apprentice card will be issued by the Department and valid until the end of the month one (1) year from the month the date employment began when all of the above requirements are met and processed. Failure to provide complete and accurate information may result in a change of the effective date of employment.

(h) Apprentices must not perform any pest control work without the physical presence of a licensed technician or a certified applicator. Upon completion of and documentation of the required study and on-the-job training and demonstrating competency in each area, the apprentice may work alone so long as a certified applicator is physically present for personal instruction three (3) days a week and the apprentice carries their registration card at all times.

(i) The studies and job training required for an apprentice are as follows:

(1) complete at least two (2) hours of classroom training in each of the following general standards training subjects:

(A) federal and state laws regulating structural pest control and pesticide application;

(B) recognition of pests and pest damage;

(C) pesticide labels and label comprehension;

(D) pesticide safety;

(E) environmental protection;

(F) application equipment and techniques;

(G) pesticide formulations and actions;

(H) emergency procedures, pesticide cleanup, and procedures for immediate reporting of spills and misapplication;

(I) basic principles of mathematics, chemistry, toxicology, and entomology; and

(J) non-chemical pest control techniques, including biological, mechanical and integrated pest management techniques.

(2) Complete forty (40) hours of verifiable on-the-job training and eight (8) hours of classroom training in each category in which the apprentice is to provide pest control services. The responsible certified commercial applicator or certified noncommercial applicator must certify in the training records of each apprentice that the apprentice has completed the required training and has demonstrated competency in each category in which the apprentice is to provide service.

(3) The twenty (20) classroom hours of general standards training, forty (40) hours of verifiable on-the-job training, and eight (8) hours of classroom training in each category must be completed and documented on the verifiable training record prior to the apprentice taking the category exam and a license being issued.

(4) A student currently enrolled in or who has attended or graduated within the past twelve (12) months from an accredited school or university studying relevant materials may be credited with those courses toward classroom training hours for apprenticeship, if those hours have been provided by the school or university and documentation is provided which shows the student passed the class(es) submitted.

(5) An apprentice may maintain an apprentice card for a maximum of twelve (12) months. If an apprentice has not met the requirements to become a licensed technician in the twelve (12) month period, the apprentice must be re-registered as an apprentice and must repeat all training requirements for an apprentice. Previous training credit from previous apprentice registrations may not be applied to this requirement.

(j) A responsible certified commercial applicator or certified noncommercial applicator must maintain the verifiable training records and certification for each apprentice in the business files for two (2) calendar years after the calendar year in which the training or certification was completed. The verifiable training records form shall be prescribed by the Department and must include, but is not limited to, the following:

(1) date training received;

(2) number of hours of training;

(3) subject of training;

(4) printed name, signature, and license number of trainer;

(5) designation of on-the-job training or classroom training;

(6) competency evaluation by the responsible certified applicator;

(7) printed name, signature, and license number of the trainer if the training was provided by a registered licensee of the business; and

(8) printed name, signature, and license number of the responsible certified applicator.

(k) When an apprentice changes employers due to a business acquisition or sale, or a change in the current employer's tax identification number, the employer who maintains the verifiable training records must make the verifiable training records available to the apprentice or the new employer within twenty (20) days of written request.

(l) It is a violation of this section for a business licensee or certified noncommercial applicator to allow an apprentice to perform work in a category in which the apprentice has not been properly trained. A certified applicator registered with the business must be physically present to give verbal instructions to an apprentice at least three (3) days a week and available during operating hours for questions and instructions as needed.

(m) An apprentice becomes a licensed technician by:

(1) completing a minimum six (6) hour technician training course approved by the Department in general training at least one (1) time prior to taking the examination;

(2) completing all training listed under subsection (i) of this section; and

(3) making a minimum passing grade of at least 70% on the technician examination.

(A) The examination may be taken as many times as necessary in the twelve (12) month period the employee holds an apprentice registration card.

(B) There shall be a fee charged per examination.

(C) The Technician Training Manual may be obtained from the Texas A&M AgriLife Extension Service.

(D) An individual must pass each category examination in which the apprentice applies to become licensed. Re-examination is not necessary if the license is renewed annually.

(E) Persons making a passing grade and who qualify for a technician license will be issued a license upon issuance of the grades.

(n) All testing procedures shall be governed by §7.125 of this title, relating to Examinations.

§7.133.Technician License Requirements.

(a) A technician is a person who has qualified for and been issued a technician's license pursuant to the provisions of §7.132 of this title, relating to Requirements for Apprentice Registration, whose training and supervision is the responsibility of the responsible certified applicator, and who works under the direct supervision of licensed certified applicators.

(b) A certified applicator registered with the business must be physically present to give verbal instructions to a technician at least one (1) day a week and available during operating hours for questions and instructions as needed.

(c) The Department shall require as a condition of the renewal of each commercial or noncommercial technician's license that the responsible certified applicator must certify on the verifiable training records form that the technician has completed eight (8) hours of verifiable training in the calendar year preceding the calendar year in which the renewal is to take place. No additional training will be required in the first calendar year in which a technician is first licensed. Changing employers or moving to an inactive status does not eliminate, defer or extend the CEU requirement.

(1) The eight (8) hours of verifiable training must be selected from the following general standard subject areas:

(A) Federal and state laws regulating structural pest control and pesticide application;

(B) Recognition of pest and pest damage;

(C) Pesticide labels and label comprehension;

(D) Pesticide safety;

(E) Environmental protection;

(F) Application equipment and techniques;

(G) Pesticide formulations and actions;

(H) Emergency procedures and pesticide cleanup, and procedures for the immediate reporting of spills and misapplications;

(I) Basic principles of mathematics, chemistry, toxicology, and entomology; or

(J) Non-chemical pest control techniques including biological, mechanical, and integrated pest management techniques.

(2) Two (2) hours of the eight (8) hours of training may be on-the-job training or hands-on-training verified by the responsible certified applicator.

(3) Self-study training may be used if the responsible certified applicator certifies that the training is the appropriate training. Inactive technicians may only use self-study training every other year to satisfy their annual training requirement.

(4) A technician will receive one (1) hour of credit for each Department approved CEU course completed.

(5) No courses may be repeated for credit within the same re-certification year.

(d) All verifiable training records and certification for each apprentice must be maintained in the business files for two (2) calendar years after the calendar year in which the training or certification was completed.

(e) The verifiable training records forms must be made available to the licensee within twenty (20) days of written request to a current or former employer.

(f) The business licensee, responsible certified commercial applicator, or certified noncommercial applicator shall be responsible for the proper certification and maintenance of employee training records in accordance with Chapter 7, Subchapter H of this title.

(g) Technicians unable to certify their required training at renewal or during inspection will have twenty (20) days to submit the verifiable training records for training previously obtained prior to the initiation of enforcement proceedings.

(h) Upon written request, the Commissioner may grant a hardship extension for completion of training requirements due to extenuating circumstances. The length of the extension is at the discretion of the Commissioner. All requests are subject to review and may require additional documentation.

§7.134.Continuing Education Requirements for Certified Applicators.

(a) Except as provided in subsections (e) and (i) of this section, as a requirement of annual license renewal, the Department shall require each certified applicator to certify that they have completed Department approved CEUs that cover the applicator's category(ies) of certification for the preceding calendar year. This certification must be completed each calendar year for renewal of the certified applicator's license. Certified applicators who do not meet the re-certification requirements shall not be eligible to renew their licenses and will be subject to enforcement action. Licensees must obtain the appropriate number of CEUs in each calendar year as specified in this section. Changing employers or moving to an inactive status does not eliminate, defer or extend the CEU requirement.

(b) Each certified applicator is required to obtain two (2) CEUs in general training and one (1) unit in each category in which the applicator is certified. General training is defined to include the topics in §1951.351(c) of the Occupations Code. At least one (1) of the two (2) general training units required for recertification, must be in either federal and state laws, pesticide safety, environmental protection, or integrated pest management. The other may be in any general topic.

(c) No approved course may be repeated for credit within the same calendar year.

(d) CEUs may only be obtained through an approved self-study course every other year. Self-study courses will not be accepted two (2) years in a row and will result in deficiency upon review.

(e) Applicators will not be required to obtain CEUs during the first calendar year in which their license is issued. Applicators that become certified in additional categories during any calendar year will not be required to obtain units in those categories for that period.

(f) Each certified applicator must keep a certificate of completion for each course attended for a period of two (2) calendar years after the calendar year in which it was obtained, and submit such records to the Department upon request. These records are subject to inspection by the Department at any time. Continuing education certificates must be made available to the licensee within twenty (20) days of the written request to a training provider. A copy of a current or former employee's continuing education certificates shall be made available to a licensee within twenty (20) days upon written request to the employer.

(g) The business licensee, responsible certified commercial applicator, and certified noncommercial applicator shall be responsible for the proper certification and maintenance of employee continuing education records in accordance with this subchapter.

(h) Certified applicators unable to certify their required continuing education requirements at renewal or during inspection will have twenty (20) days to submit the verifiable training records for training previously obtained prior to the initiation of enforcement proceedings. Certified applicators that do not meet the recertification requirements may have their licenses suspended in all deficient categories.

(i) Upon written request, the Commissioner may grant a hardship extension for completion of training requirements due to extenuating circumstances. The length of the extension is at the discretion of the Commissioner. All requests are subject to review and may require additional documentation.

§7.135.Criteria and Evaluation of Continuing Education Training.

(a) The Department shall evaluate continuing education programs and assign the number of qualified category units. No more than one (1) unit will be assigned for any fifty (50) minutes of actual instruction time. A course may be approved for a maximum of two (2) years. After two years, any previously approved course must be updated to reflect changes in current laws, data and/or scientific research in order to requalify for approval for continuing education credit. The Department will consider the learning objectives, technical information given, the accuracy of the information, the relevance of the information to structural pest control, the qualifications of the instructor as determined by the provider, and the amount of actual training or self-study time devoted to each program in the process of evaluation. Each continuing education program, including self-study courses submitted for approval must contain the following:

(1) a copy of handout materials, if any, which will be available to participants;

(2) inclusive length of time of the course stated in hours and minutes;

(3) date, time, physical address, and city of presentation; or if unknown, agreement to provide two (2) weeks' notice of each date of presentation;

(4) the number of CEUs to be awarded;

(5) the category(ies) of CEU eligibility;

(6) a detailed course outline which will indicate the scope of the course and learning objectives;

(7) videotapes, slides, compact discs, DVDs, download links, or other media presentations, if applicable;

(8) examination for electronic, online or self-study courses, if applicable;

(9) the course provider's name, physical address, telephone number, e-mail (if available), and company, organization or institution of higher learning affiliation; and

(10) additional information, as requested.

(b) Parts of courses which focus on promotion of products and/or policies or procedures of a company will not be considered as part of approved instruction time.

(c) A self-study course is limited to one (1) CEU in the general training or a specific category. A course may be approved as a self-study if it meets the following additional criteria:

(1) the course taker must take an examination designed to verify their knowledge of the material provided in the course. The course provider must grade the examination and keep records for a minimum of two (2) calendar years after the calendar year in which the course was given; and

(2) the course taker's grade on the examination must be at least 70% correct to obtain credit for the course.

(d) The minimum requirements to qualify as a speaker, course presenter, self-study course provider (collectively referred to as "speaker") are:

(1) a degree from a recognized institution of higher learning which pertains to the course being taught;

(2) five (5) years' experience as an applicator certified by the Department with a current license in the category to be taught;

(3) verifiable proof of training and teaching experience within the preceding three (3) years; or

(4) a combination of education, work related training, and teaching experience which would be equivalent to two (2) of the three (3) speaker qualification requirements, as determined by the Department.

(e) Any person seeking approval of a continuing education course must submit the required information at least thirty (30) days prior to the first day of presentation or first offering of a self-study course. Any changes to approved courses must be submitted to the Department thirty (30) days prior to the date of presentation. The Department may waive this requirement due to extenuating circumstances.

(f) The Department shall evaluate and recommend credits within thirty (30) days from the date received.

(g) At its discretion, the Department may re-evaluate its approval of a course or speaker under the provisions this section.

(h) A certified applicator may request CEU credit by submitting the information required in subsections (a)(2), (a)(4)-(6), and (a)(9) of this section, and verification of attendance for any course attended by the certified applicator which was not previously approved by the Department. The Department will evaluate the request and notify the certified applicator of any CEUs awarded.

(i) The course provider is responsible for establishing procedures for:

(1) verification of completion, including accurately recording participant attendance throughout the stated class length;

(2) awarding course completion certificates;

(3) testing to verify a participant's comprehension of the subject matter presented;

(4) the qualifications, competence, and performance of the authors, speakers, presenters, or instructors who produce or present its courses; and

(5) preparation and administration of a self-study course examination.

(j) The course provider must issue a certificate of completion within twenty-one (21) days of the course to each applicator completing the course. This document must include at a minimum the following information:

(1) participant's name and license number;

(2) name of course provider or sponsoring agency, company or organization;

(3) course number;

(4) number of CEUs awarded;

(5) CEU category; and

(6) date and location of training or date of completion for self-study course.

(k) The course provider must maintain course completion records for two (2) calendar years after the calendar year in which the course(s) were given and a list of participants must be forwarded to the Department within twenty-one (21) days of completion of the training course on the electronic form prescribed by the Department. The list must include the name of the course provider, course title and course number, number of CEUs awarded, speaker name, name and license number of participants.

(l) For purposes of this section, a continuing education course is defined as specific instruction in a category presented by any one (1) course provider, company, or organization.

(m) The Department may monitor course providers, speakers, or course presentations, and is exempt from any fee charged for attending a CEU if Department employees are monitoring the program as a part of the duties of their employment.

(n) Course providers who falsify information on course certificates provided to participants are subject to penalties, including and up to denial of Department approval for future courses.

§7.136.Criteria and Evaluation of Technician/Noncommercial Certified Applicator Training.

(a) The Department must evaluate and approve Technician/Noncommercial Certified Applicator Training course programs. The course must be a minimum of six (6) hours and separate from other required apprentice or continuing education training. Each Technician/Noncommercial Certified Applicator Training Course submitted for approval must contain the following:

(1) a copy of handout materials, if any, which will be distributed to participants during the course;

(2) inclusive length of time of the course stated in hours and minutes;

(3) date, time, and physical address of presentation; or if unknown, agreement to provide two (2) weeks' notice of each date of presentation;

(4) a detailed course outline which indicating the scope of the course and learning objectives (the course outline should follow the topics covered in the most recent Texas Pesticide Applicator General manual developed by Texas A&M AgriLife Extension);

(5) the course provider's name, physical address, telephone number, email (if available), and company, organization or institution of higher learning affiliation; and

(6) additional information as requested.

(b) Parts of courses which focus on promotion of products, policies, or procedures of a company, will not be considered as part of approved instruction time.

(c) Any person seeking approval of Technician/Noncommercial Certified Applicator Training course must submit the required information at least thirty (30) days prior to the first day of presentation. The Department may waive this requirement due to extenuating circumstances.

(d) The Department shall evaluate and recommend approval or denial within thirty (30) days from the date received.

(e) The course provider is responsible for establishing procedures for:

(1) verification of completion, including accurately recording participant attendance throughout the stated class length;

(2) awarding course completion certificates;

(3) testing to verify a participant's comprehension of the subject matter presented;

(4) the qualifications, competence, and performance of the authors, speakers, presenters, or instructors who produce or present its courses, and

(5) preparation and administration of a self-study course examination.

(f) The minimum requirements to qualify as a speaker, course presenter, self-study course provider are:

(1) a degree from a recognized institution of higher learning which pertains to the course being taught;

(2) five (5) years' experience as an applicator certified by the Department with a current license in the category to be taught;

(3) verifiable proof of training and teaching experience within the preceding three (3) years; or

(4) a combination of education, work related training, and teaching experience which would be equivalent to two (2) of the three (3) speaker qualification requirements, as determined by the Department.

(g) The Technician/Noncommercial Certified Applicator Training course provider must issue a certificate within twenty-one (21) days of the course to each participant completing the course. This document must include at least the following information:

(1) participant's name;

(2) apprentice registration number, if applicable, or driver's license number or state issued ID number;

(3) name of course provider, company, or organization;

(4) course title (Technician Training Course/Noncommercial Certified Applicator Training Course) and number; and

(5) date and location of training.

(h) The course provider must maintain course completion records for two (2) calendar years after the calendar year in which the course was given and a list of participants must be forwarded to the Department within twenty-one (21) days of completion of the training course. The list must include the name of the course provider, the course title, course number, name of participant, and apprentice registration number, if applicable.

(i) The course will be approved for a maximum of two (2) years.

(j) The Department may re-evaluate or cancel a currently approved training course during the calendar year for failure to comply with the elements of the requirements of this section.

(k) Course providers who falsify information on course certificates provided to participants are subject to penalties, including and up to denial of Department approval for future courses.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704374

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 3. COMPLIANCE AND ENFORCEMENT

4 TAC §§7.142 - 7.149, 7.156

This proposal 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 proposal 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) calendar years from the calendar year in which the record was created. 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704375

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 5. TREATMENT STANDARDS

4 TAC §§7.172 - 7.178

This proposal 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 proposal 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) calendar years from the calendar year in which they were created.

§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) calendar years from the calendar year in which they were created. 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) calendar years from the calendar year in which they were created.

§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) calendar years from the calendar year in which the report was created.

§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 calendar years from the calendar year in which the service was provided.

(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) calendar years from the calendar year in which the fumigation was performed. 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) calendar years from the calendar year in which the calibration took place 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) calendar years from the calendar year in which the training was received. 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704376

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


DIVISION 6. STRUCTURAL PEST CONTROL ADVISORY COMMITTEE

4 TAC §7.192

This proposal 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 proposal is Occupations Code, Chapter 1951.

§7.192.Rules Governing Operation of the Committee.

(a) At the first meeting of each year, a Chairman and a Vice Chairman shall be elected by the members of the Committee for a term of one (1) year.

(b) The Chairman of the Committee is responsible for:

(1) setting an agenda for each committee meeting; and

(2) may add an item to an agenda on request by the Department or Commissioner.

(c) The members, other than the Commissioner of State Health Services, shall serve staggered four-year terms. (Initial committee members may serve shorter terms.) The terms of four (4) members of the Committee shall expire on February 1 of each odd-numbered year.

(d) During the first meeting of each calendar year, the Committee will include on its agenda as an item of business, a self-assessment of its actions during the prior year.

(1) The self-assessment will be done using a process and on a form prepared by the Commissioner.

(2) In addition to evaluating its performance during the prior calendar year, the Committee shall establish goals to improve performance during the upcoming year.

(3) The Committee shall forward the self-assessment to the Commissioner for review.

(e) In addition to quarterly meetings, the Committee may meet as needed and upon the request of the Commissioner.

(f) All Committee members must successfully complete, during the first calendar quarter of their term, a course provided by the Department or otherwise approved by the Commissioner that covers the Texas Open Meetings Act, the Texas Open Records Act, the Rulemaking process in Texas, the requirements of the conflict of interest laws or other laws relating to public officials in Texas, and any applicable ethics policies adopted by the Department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2017.

TRD-201704377

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


CHAPTER 12. WEIGHTS AND MEASURES

SUBCHAPTER D. METROLOGY

4 TAC §12.30

The Texas Department of Agriculture (Department) proposes the repeal of Title 4, Part 1, Chapter 12, Subchapter D, §12.30, and new §12.30, concerning metrology services. These changes are necessary to align the Department's rules with international traceability components and standards. By repealing the current rule and proposing as a new rule, when read, the new rule is intended to be more clear, concise and easier to understand to ensure compliance with metrology standards and requirements.

The laboratory traceability component is necessary to document traceability of the Department's metrology lab components and standards to the International System of Units (SI), and to clarify that the metrology lab's recognition by the National Institute of Standards and Technology (NIST) acts as a certification of such traceability. The Department's compliance with NIST Handbook 143, and the weights and measures program handbook applicable to the calibration of devices and standards by state laboratories, afford the requisite international traceability recognition; accordingly, NIST Handbook 143 is proposed for adoption by reference as part of the amended rule.

The Department has not proposed any changes to the amount of fees in the proposed new §12.30. Fees listed in the new rule have been titled to better correspond with the language in the NIST Handbook, and organized to clearly identify fees per weight class.

Stuart Strnad, Director for Consumer Product Protection, has determined that for the first five-year period the proposed amendment is in effect, there will be no fiscal implications for state government because no fees have been increased. There is no estimated change in state revenue for the next 5 years. There is no anticipated fiscal impact for local governments as a result of administering or enforcing the rule amendment, as proposed.

Mr. Strnad has also determined that for each year of the first five years the proposed amendment is in effect, the public benefit anticipated as a result of administering the proposed rule will be increased consumer protection to the public through compliance and regulation of the affected industry. There are no anticipated costs to micro-businesses, small businesses or individuals required to comply with the proposed rule, as they are currently required to comply with requirements set forth in §12.30.

Comments on the proposal may be submitted to Stuart Strnad, Director for Consumer Product Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email at Stuart.Strnad @TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The repeal is proposed under Texas Agriculture Code, §13.002, which designates the Department as the agency responsible for weights and measures and metrology regulation, and §13.115, which requires the Department to charge a fee for each weights and measure device to be registered.

The code affected by the proposal is Texas Agriculture Code, Chapter 13.

§12.30.Metrology Services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 25, 2017.

TRD-201704304

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


4 TAC §12.30

The new rule is proposed under Texas Agriculture Code, §13.002, which designates the Department as the agency responsible for weights and measures and metrology regulation, and §13.115, which requires the Department to charge a fee for each weights and measure device to be registered.

The code affected by the proposal is Texas Agriculture Code, Chapter 13.

§12.30.Metrology Services.

(a) Metrology Services and Laboratory Traceability. The Department's metrology laboratory shall maintain National Institute of Standards and Technology (NIST) recognition and certification of international metrological traceability to the International System of Units (SI), as necessary to provide a service to calibrate standards needing the same international metrological traceability.

(1) The Department adopts by reference NIST Handbook 143-State Weights and Measures Laboratories Program Handbook (available on the NIST State Laboratory Program Resources website and also available upon request from the Superintendent of Documents, United States Government Printing Office, 710 North Capitol Street, Washington, D.C. 20402).

(2) For information on scheduling an appointment for metrology services, see the Department's website or contact the Department's Giddings metrology laboratory.

(b) Calibration Service Parameters and Fees. Metrology calibration services are available according to the following nominal value ranges and fee schedule.

(1) Mass Calibrations and Adjustments.

(A) Precision Calibrations (Echelon II, Fine Accuracy). Includes weight classes of ASTM Class "2,3"; OIML Class "F1,F2":

(i) Up to and including 3 kilograms: $70;

(ii) More than 3 kilograms, up to and including 30 kilograms: $110;

(iii) More than 30 kilograms: $140.

(B) Tolerance Calibrations (Echelon III, Medium Accuracy). Includes the following weight classes--NIST Class "F"; ASTM Class "4,5,6,7"; OIML Class "M1,M2,M3"; and other weights:

(i) Less than 10 pounds: $20;

(ii) 10 pounds or more, but less than 500 pounds: $30;

(iii) 500 pounds or more, but less than 2,500 pounds: $60; or

(iv) 2,500 pounds or more: $110.

(C) Weight Adjustments.

(i) Less than 10 pounds: $10;

(ii) 10 pounds or more, but less than 100 pounds: $10;

(iii) 100 pounds up to and including 1,000 pounds: $20; or

(iv) Greater than 1,000 pounds: $40.

(2) Volume Calibrations and Neck Calibrations. Volume Transfer II.

(A) 5 gallons or less: $55;

(B) More than 5 gallons: $65, plus $1 for each gallon over 5 gallons;

(C) LPG provers holding 25 gallons or less: $150;

(D) LPG provers holding over 25 gallons: $325; or

(E) Prover Neck Calibration (new, first time calibrated or damaged): $50.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 25, 2017.

TRD-201704305

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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


CHAPTER 21. CITRUS

SUBCHAPTER B. CITRUS QUALITY

4 TAC §21.21

The Texas Department of Agriculture (the Department) proposes amendments to Title 4, Part 1, Chapter 21, Subchapter B, §21.21, related to citrus quality standards. The amendments are proposed to update requirements and restrictions for citrus fruit, and are necessary to update standards for marketable citrus.

Proposed amendments to §21.21 establish minimum juice requirements for new pack size 163 oranges at 48.8 cubic centimeters (cc) juice per fruit and for the new pack size 64 grapefruit at 81.0 cc juice per fruit. The proposed amendments also update the size categories for orange and grapefruit to conform to the current USDA categories and clarify requirements. To assure the updated and expanded requirements neither increased nor decreased requirements for cc of juice per fruit significantly, the revised tables were calculated by regressing fruit size on current requirements for juice volume. Linear, quadratic and cubic regressions were compared, with best fit to the published standards, for orange and for grapefruit, coming from the cubic regressions, which explained 99.64% for oranges and 99.56% for grapefruit, with regard to variation in tabular values in minimum cc of juice required per fruit. For orange, y=66.139x3 - 523.51x2 + 1447.1x -1318.6; and for grapefruit, y=19.794x3 - 266.87x2 + 1248.6x -1797.4; where x is the average diameter of a fruit for a given tabular pack size and y is minimum cc of juice required per fruit.

Dr. Awinash Bhatkar, Coordinator for Biosecurity and Agriculture Resource Management, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impact for state or local government.

Dr. Bhatkar has determined that for each year of the first five years the proposed rules are in effect, the public benefits anticipated as a result of enforcing the proposed rules will be marketability of small sizes of oranges and grapefruit and facilitation of marketing of orange and grapefruit as a result of updating of orange and grapefruit grading standards. There will be no additional costs to citrus producers, small and/or micro-businesses, or the public as a result of the proposal.

Written comments on the proposal may be submitted to Dr. Awinash Bhatkar, Coordinator for Biosecurity and Agriculture Resource Management, Texas Department of Agriculture, by mail to Dr. Awinash Bhatkar, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711 or by email to Awinash.Bhatkar@TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The proposal is made pursuant to Chapters 19 and 71 of the Texas Agriculture Code, which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs.

Chapters 19 and 71 of the Texas Agriculture Code are affected by the proposal.

§21.21.Standards.

All citrus fruit handled and/or sold within the state of Texas must be mature and fit for consumption. Fruit are considered mature and fit for consumption if the following conditions are met:

(1) Grapefruit:

(A) (No change.)

(B) minimum juice requirement (in cubic centimeters) as it relates to fruit size:

Figure: 4 TAC §21.21(1)(B) (.pdf)

[Figure: 4 TAC §21.21(1)(B)]

(2) Oranges:

(A) (No change.)

(B) minimum juice requirement (in cubic centimeters) as it relates to fruit size:

Figure: 4 TAC §21.21(2)(B) (.pdf)

[Figure: 4 TAC §21.21(2)(B)]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 26, 2017.

TRD-201704337

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 10, 2017

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