This rulemaking requires registrants of residential fumigants to create and maintain a stewardship policy, conduct initial and annual stewardship training, conduct quality assurance reviews of licensees using its residential fumigant, and issue stop ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NOS.:RULE TITLES:

5E-2.0105Definitions

5E-2.0312Additional Registration Requirements for Registrants of Structural Fumigants Labeled for Application to Residential Structures.

PURPOSE AND EFFECT:  This rulemaking requires registrants of residential fumigants to create and maintain a stewardship policy, conduct initial and annual stewardship training, conduct quality assurance reviews of licensees using its residential fumigant, and issue stop sale notices or cease distribution of its product to users not complying with applicable laws, regulations, or the residential fumigant’s label requirements. This rulemaking also requires registrants to maintain attendance records for stewardship courses and to assist, if requested, the Department with removal of residential fumigant containers from licensees issued a stop-work or stop-use order by the Department. The effect of this rulemaking is improved structural fumigation safety and regulatory oversight.

SUMMARY: Stewardship requirements for registrants of residential fumigants

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS (SERC) AND LEGISLATIVE RATIFICATION: The Agency has determined that this rule will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule.  The Agency has determined that the proposed rule is not expected to require legislative ratification based on this assessment. 

The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes.  As part of this analysis, the Department relied upon an economic analysis, which determined that the regulatory costs of the proposed rule are negligible.  Additionally, no interested party submitted additional information regarding the economic impact.

Any person who wishes to provide information regarding the statement of estimated regulatory costs or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 487.051, 570.07(23), F.S.

LAW IMPLEMENTED: 487.0435, 487.051, F.S.

A HEARING WILL BE HELD AT THE DATE, TIME, AND PLACE SHOWN BELOW.

DATE AND TIME: January 23, 2017, 9:00 a.m.

PLACE: Florida Department of Agriculture and Consumer Services, 14101 U.S. Highway 441 North, Suite 200, Alachua, FL 32615

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dale Dubberly; [phone]; [e-mail]; 3125 Conner Blvd., Tallahassee, FL, 32399-1650

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5E-2.0105 Definitions.

(1) through (12) No change.

(13) “Stewardship Policy” means a written plan that addresses the education and training of all fumigation employees and includes requirements for continued sale and use of the registrant’s residential fumigant, instructions to follow the residential fumigant’s label requirements and submission to quality assurance inspections conducted by the registrant or designated representative such as distributors and contractors.

(14) “Fumigation Employee” means any of the following persons who is an employee of a licensee or a person conducting fumigation at the direction of or under the control of a licensee:

(a) Certified Operators in the fumigation category pursuant to Section 482.111(2)(a), F.S.;

(b) Special Identification Cardholders;

(c) Employee Identification Cardholders with the Fumigation Identification Card endorsement.

(15) “Residential Fumigant” means a registered pesticide labeled for structural fumigation including or encompassing residential areas in the state of Florida.

(16) “Licensee,” as the term is used in this Rule chapter, means a person, partnership, firm, corporation or other business entity having a license issued under the provisions of Chapter 482, F.S., by the department for engaging in the business of structural pest control in the category of fumigation pursuant to Section 482.111(2)(a), F.S.

(17) “Permanent stop-sale” means the action taken by the registrant to stop the sale of a residential fumigant to a licensee on a permanent basis after the department has revoked a licensee’s license to perform residential fumigations.

(18) “Extended stop-sale” means the action taken by the registrant to stop the sale of a residential fumigant to a licensee for a determined period of time.

Rulemaking Authority 487.042, 487.051, 570.07(23) FS. Law Implemented 487.031, 487.041, 487.042, 487.0435, 487.051 FS. History–New 3-23-03, Amended 4-16-15, __________.

 

5E-2.0312 Additional Registration Requirements For Registrants of Structural Fumigants Labeled For Application to Residential Structures.

(1) Stewardship Policy. Each registrant of a residential fumigant shall adopt and maintain a written Stewardship Policy applicable to each residential fumigant registered with the department. Registrants must submit a copy of each Stewardship Policy to the department prior to selling or distributing a residential fumigant in the state of Florida and within 30 days of making any changes to the policy. A registrant shall not sell or distribute a residential fumigant to any licensee who has not agreed, in writing, to the Stewardship Policy for the residential fumigant sold or distributed.

(2) The Stewardship Policy shall include the following:

(a) Training requirements. All stewardship training shall be conducted by the registrant or their designated representative including distributors and contractors, for all fumigation employees that perform fumigation using the registrant’s residential fumigant.

1. There shall be an Initial Stewardship Training and an Annual Stewardship Training. All related courses, sessions, and instruction must be identified accordingly.

2.  The Initial Stewardship Training shall include:

a. Proper use, handling, and storage of the registrant’s residential fumigant;

b. The proper use and calibration requirements for  label-approved clearance detection devices;

c. The proper use of label-required safety equipment including the self contained breathing apparatus;

d. Review of the label, manual, Safety Data Sheets, safety procedures, and Stewardship Policy for the registrant’s residential fumigant; and

e. Dosage calculation for the registrant’s residential fumigant.

3. The Annual Stewardship  Training shall include:

a. Review of the proper use, handling, and care of safety equipment and clearance detection devices;

b. Review of labeling and registrant stewardship requirements for worker protection and public safety;

c. Review of any updates to registrant’s residential fumigant labeling; and

d. Review of any updates to registrant’s residential fumigant Stewardship Policy.

(b) Quality assurance reviews (QAR): QARs must be conducted by the registrant or their designated representative at least once per calendar year for each licensee using the registrant’s residential fumigant. The QAR shall include an on-site observation of the licensee’s fumigation employees conducting a structural fumigation using the registrant’s residential fumigant. The QAR may be conducted at different sites and on different fumigation employees of the licensee in order for the registrant to complete subparagraphs 1. and 2.

1. The QAR shall include observations of:

a. Preparation of structure for fumigation;

b. Introduction of chloropicrin and registrant’s residential fumigant;

c. Initiation of aeration and active aeration; and

d. Final clearance testing.

2. The QAR shall include verification that the following items are at the fumigation site:

a. Two (2) self-contained breathing apparati according to the product label;

b. Secondary locks;

c. Proper signage in accordance with Rule 5E-14.112, F.A.C.;

d. Registrant’s residential fumigant label-approved clearance devices.

e. Registrant’s residential fumigant label-required personal protective equipment.

3. The registrant or designated representative must document the date,  licensee’s name, fumigation employee(s) observed, phase of fumigation process observed, and registrant representative conducting the QAR. These records shall be maintained for a two-year period from the date of the fumigation and are subject to department inspection.

(c) Probation and Stop Sale. The Stewardship Policy shall include procedures for the issuance of probation or stop sale notices to licensees who use the registrant’s residential fumigant. The Stewardship Policy shall also describe options for corrective actions to be completed by a licensee in the event the registrant places a licensee on probation or issue a stop-sale notice and shall describe how corrective actions shall be determined.

1. The registrant shall place a licensee on probation or issue a stop-sale notice to a licensee if the registrant receives verifiable documentation of an observation by the registrant’s employee or designated representative or a report of an inspection conducted by the department that the licensee has failed to follow critical safety procedures including the proper use of the following as determined by the registrant’s residential fumigant label and Rule Chapters 5E -2 and 5E-14, F.A.C.:

a. Chloropicrin;

b. Self-contained breathing apparatus;

c. Approved clearance devices;

d. Secondary locks and barricades; or

e. Any other safety procedure critical to the protection of workers, bystanders, homeowners, or the public as

prescribed by the  residential fumigant’s label and Rule Chapters 5E-2 and 5E-14, F.A.C.

2. The registrant shall notify in writing, the licensee, all Florida distributors of the registrant’s residential fumigant, and the department of a decision to place a licensee on probation or stop the sale and distribution of a residential fumigant to the licensee, within 15 business days of the registrant receiving confirmation that the licensee has failed to follow a critical safety procedure as outlined in subparagraph (c)1. of this rule.

3. Notification to the department shall be made by utilizing the department’s electronic fumigation notification website, http://fumigation.freshfromflorida.com, or by submitting a completed Registrant Notification of Stewardship Compliance Action  (FDACS-13001, 01/17), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX , by email to [e-mail] or by facsimile to [phone].

4. The registrant shall place a licensee on probation for no less than six months if the licensee fails to follow at least one critical safety procedure as outlined in subparagraph (c)1. of this rule while using the registrant’s residential fumigant. Probation may be terminated at any time during the probationary period if the licensee completes all corrective actions recommended by the registrant and submits to a QAR in compliance with paragraph (1)(b).

5. The registrant shall issue an extended stop sale and stop the distribution of its residential fumigant to a licensee if within a six-month period, the licensee fails to follow two or more critical safety procedures as outlined in subparagraph (c)1. while using a residential fumigant, or if the licensee fails to follow at least one critical safety procedure while on probation. The registrant shall lift the extended stop-sale only if the licensee completes all corrective actions recommended by the registrant. Once the extended stop-sale is lifted, the registrant can resume the sale and distribution of the registrant’s residential fumigant to the licensee. Upon resuming the sale and distribution of the residential fumigant to the licensee, the registrant shall place the licensee on probation for no less than six months. If the licensee fails to follow at least one critical safety procedure while on probation after the extended stop-sale, the registrant shall notify the department and recommend suspension or revocation of the licensee’s license to perform residential fumigations. The registrant shall re-issue the extended stop-sale notice to the licensee if the department suspends the licensee’s license to perform residential fumigations. The extended stop-sale shall remain in place until the department lifts the suspension.

6. The registrant shall issue a permanent stop-sale notice when the department revokes a licensee’s license to perform residential fumigations.

7. The registrant shall notify all Florida distributors of the registrant’s residential fumigant in writing when probation or a stop-sale is lifted.

(d) The Stewardship Policy shall require licensees to return any unused residential fumigant and all residential fumigant containers to the registrant upon notification of a permanent or extended stop-sale and shall require all Florida distributors of the registrant’s residential fumigant who are no longer contracted by the registrant for distribution of the registrant’s residential fumigant to return any unused residential fumigant and any and all residential fumigant containers to the registrant. At the request of the registrant, a department representative shall be present at the site of the licensee during the removal of the registrant’s residential fumigant  containers. 

(3) Continuing Educational Approval. Registrants or their designated representatives must apply to the department for Continuing Educational Units (CEU) for all Stewardship Training programs. Registrants are required to use the department’s designated CEU registration program website at  https://ceu.freshfromflorida.com/.

(a) The department shall approve Annual and Initial Stewardship Training programs for the granting of CEUs in fumigation when the Stewardship Training programs meet the criteria set forth in Rule 5E-9.029, F.A.C. Annual Stewardship Training will be allocated one (1) fumigation CEU. Initial Stewardship Training will be allocated two (2) fumigation CEUs. All Stewardship Training programs shall be conducted in-person and must comply with paragraph (2)(a) of this rule.

(b) The department shall be allowed to attend and monitor Stewardship Training courses conducted by the registrant to evaluate whether the training requirements set forth in paragraph (2)(a) of this rule have been met. Department inspectors shall document their observations using the Stewardship Monitoring Report, (FDACS- 13003, 01/17) which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX . Department inspectors will also provide a copy of the report to the course provider.

(c) The registrant or designated representative must conduct the Annual Stewardship Training for all licensees who use the registrant’s residential fumigant. Licensees must complete the Annual Stewardship Training by June 1 of each calendar year. Additional Annual Stewardship Training sessions must be conducted for new fumigation employees hired or first assigned to fumigation activities after June 1 of a calendar year. Registrants, or their designated representatives, shall inform licensees who purchase the registrant’s residential fumigant of Annual Stewardship Training in writing by mail or electronic delivery prior to training at a time interval specified by the department’s CEU requirements set forth in Rule 5E-9.029, F.A.C.

(d) The registrant or designated representative must offer initial stewardship training to licensees without previous initial stewardship training for the registrant’s residential fumigant uness the licensee has purchased the registrant’s residential fumigant within the past three years and completed annual training during that three year period. A licensee or any of its fumigation employees required to complete the Initial Stewardship Training will not be eligible to purchase the registrant’s residential fumigant until completion of the Initial Stewardship Training.

(e) A registrant shall maintain for a period of two years a record of attendance using the “Stewardship Program Attendee Form, (FDACS-13004 01/17) which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX . The registrant shall make information recorded on this form available for inspection by the department or its authorized representative upon request. The registrant may substitute their own form as long as all of the information required by the Stewardship Program Attendee Form, (FDACS 13004 01/17) is incorporated.

(4) Registrants or their designated representatives shall assist the department, at the department’s request, with removing the registrant’s residential fumigant containers from the possession of licensees who are subject to a stop-use or stop-work order issued by the department pursuant to Rule 5E-14.108, F.A.C.

Rulemaking Authority 487.051, FS. Law Implemented 487.051 FS. History–New _______ .

 

NAME OF PERSON ORIGINATING PROPOSED RULE:

Anderson H. Rackley, Director, Division of Agricultural Environmental Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE:

Commissioner of Agriculture Adam H. Putnam,

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 1/10/17

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 7/14/16