The purpose of this rulemaking is to implement new statutory authority to adopt safety procedures for the clearance of residential structures after a fumigation. The effect will be improved structural fumigation safety and regulatory oversight. This ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NOS.:RULE TITLES:

5E-14.102Definitions

5E-14.104Prohibited Acts

5E-14.108Fumigation Requirements - General Fumigation

5E-14.110Fumigation Requirements - Notices

5E-14.142Responsibilities and Duties - Records, Reports, Advertising, Applications

5E-14.1421Identification Card - Training Verification

PURPOSE AND EFFECT: The purpose of this rulemaking is to implement new statutory authority to adopt safety procedures for the clearance of residential structures after a fumigation. The effect will be improved structural fumigation safety and regulatory oversight. This rulemaking will: prohibit the performance of fumigations without proper stewardship training of all employees associated with fumigation; require special endorsement for employee identification cards associated with employees performing structural fumigation; and require stewardship training for all persons involved in fumigation activities. This rulemaking also requires fumigation companies to own and maintain two (2) operational fumigant clearance devices and utilize the department’s electronic website to list/register all clearance devices and document their operational status.

SUMMARY: This rulemaking creates stewardship and continuing education training requirements for licensees purchasing and using residential fumigants. It also revises general fumigation notification requirements and specifies standards for recordkeeping.

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: 482.051, 482.091, 570.07(23), FS.

LAW IMPLEMENTED: 482.021, 482.032, 482.051, 482.071, 482.091, 482.111, 482.151, 482.152, 482.161, 482.163, 482.191, 482.226, 482.2265, 482.241, FS.

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

DATE AND TIME: January 23, 2017, 10:00 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-14.102 Definitions.

In addition to those terms contained in Section 482.021, F.S., the following terms shall mean:

(1) through (12) No change.

(13) “Breathing Zone” is defined as the area of space in each room of a fumigated structure where persons typically stand, sit, or lie down located anywhere between the floor and ceiling.

(14) No change.

(15) “Barricade and Barring” secures the entrances to a structure against unauthorized entry during the fumigation exposure period and must be demonstratively effective in preventing an exterior door or doorway from being opened from the exterior is defined as the use of any material(s) that would physically prevent a person’s access to the structure by way of any entrance or opening by normal means.

(16) “Access device” as used in subsection 5E-14.108(5), F.A.C., is defined as a lockbox or other on-site device that stores the key or controls access, either physically or electronically, to the fumigated structure. This is not a secondary locking device.

(17) “Connected Structure” is defined as any structure physically connected with the structure to be fumigated by construction elements that contain voids (e.g. pipes, conduits, drains, ducts, etc.) which may allow passage transfer of fumigant between the structures.

(18) “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.

(19) “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;

(b) Special Identification Cardholders;

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

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

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 482.051(1) FS. History–New 1-1-77, Amended 6-27-79, 6-22-83, Formerly 10D-55.102, Amended 8-11-93, 6-12-02, 4-17-03, 9-17-08, __________.

 

5E-14.104 Prohibited Acts.

(1) through (6) No change.

(7) Licensees shall not purchase a residential fumigant or perform fumigation using a residential fumigant unless the licensee and their fumigation employees have agreed to and are in compliance with the label requirements and Stewardship Policy requirements for the residential fumigant as defined in Rule 5E-2.0312, F.A.C.

(8) A licensee’s fumigation employee shall not perform or assist in a fumigation unless the employee has completed all training required by the Stewardship Policy for the residential fumigant to be used in the fumigation, as set forth in Rule Chapters 5E-14 and 5E-2, F.A.C.

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 482.021(13), (15), 482.051(1), 482.071, 482.091, 482.111, 482.152, 482.161, 482.191, 482.241 FS., Section 1, Chapter 92-203, Laws of Florida. History–New 1-1-77, Amended 6-27-79, Formerly 10D-55.104, Amended 8-11-93, _________.

 

5E-14.108 Fumigation Requirements – General Fumigation.

(1) No changes.

(2) Whenever During a general fumigation, whenever the presence of two (2) persons trained in the use of the fumigant is required by the fumigant label, at least one of these persons must be either a the certified operator in charge of fumigation or a his designated special fumigation cardholder. , and the The second trained person shall can be a certified fumigation operator, a special identification cardholder, or an identification cardholder with a Fumigation Identification Card endorsement on the employee identification card, which may be obtained as provided in subsection 5E-14.1421(5), F.A.C. Two (2) trained persons shall be present at each fumigation site for the introduction of the fumigant, entry during fumigation, and from the start of aeration (first opening of the seal) until the active aeration period with all operable doors and windows open, if required by the fumigant label, is completed and the structure is secured for the remaining aeration period. The certified operator in charge of fumigation or his designated special identification cardholder shall be present at those times required by the fumigant label or by subsections 5E-14.108(1), 5E-14.111(4), 5E-14.112(1) and 5E-14.113(1), (2), F.A.C.

(3) No change.

(4) The department Department shall issue an immediate stop-use or stop-work order by utilizing the department’s electronic fumigation notification website at  http://fumigation.freshfromflorida.com or issuance of a Fumigation Stop-work or Use Order, (FDACS-13659, (Rev. 01/17) FDACS-13659 (Rev 03/02, which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX , incorporated by reference, for fumigation performed in a manner that presents an immediate serious danger to the health, safety or welfare of the public. Fumigant use or work shall not cannot be resumed until corrections are made, verified, and either the release section of the stop order is completed by Department department personnel or the stop order is removed from the electronic fumigation notification system at http://fumigation.freshfromflorida.com.

(5) through (6)  No change.

(7) Each business licensee location performing fumigation must own possess and maintain at least two, label-approved, clearance devices so that at all times, a licensee has access to a at least one is properly functioning clearance device which must be calibrated at all times in accordance with either the device manufacturer or the fumigant label directions, whichever is more restrictive.

(8) Licensees performing fumigations using a residential fumigant must ensure that all functioning and non-functioning fumigant clearance devices  being used by the licensee are recorded within the department’s electronic fumigation notification website at http://fumigation.freshfromflorida.com. Information recorded must include the name of the manufacture, serial number, last known date of calibration and operational status of each device. The department shall grant access to third parties for the purpose of verifying that the records maintained on the fumigation notification website are accurate. It is solely the licensee’s obligation to ensure that all data submited to the deparment is accurate.

(9) Licensees performing fumigations with a residential fumigant must agree to, in writing, and be in compliance with the Stewardship Policy requirements for the residential fumigant used, including having completed all training and quality assurance review(s) required under the relevant Stewardship Policy. New fumigation employees must receive Initial Stewardship Training on the residential fumigant(s) used by the licensee within 60 days of their first day of employment by the licensee, if the new fumigation employee did not receive that stewardship training earlier in the calendar year. Current employees of the licensee who transition to working as  fumigation employees must receive Annual Stewardship Training on residential fumigant(s) used by the licensee within 60 days of receiving their new identification cards (e.g. as a certified operator for fumigation, a special identification cardholder, or an ID cardholder with a fumigation endorsement) if they did not receive that stewardship training earlier in the calendar year.

(10) A licensee subcontracting a residential fumigation job to another licensee shall inform the subcontracted licensee of the residential fumigant to be used based on the residential fumigant fact sheet provided to the customer. The subcontracted licensee shall use the residential fumigant as designated by the contracting licensee and must provide proof of stewardship training for the residential fumigant designated by the contracting licensee upon request.

Rulemaking Authority 482.051, 570.23(07) FS. Law Implemented 482.021(7), (25), 482.032, 482.051(1), 482.051(6), 482.152, 482.061, 482.163 FS. History–New 1-1-77, Amended 6-22-83, Formerly 10D-55.108, Amended 7-5-95, 6-12-02, 4-17-03, _________.

 

5E-14.110 Fumigation Requirements – Notices.

(1) Each licensee, before performing general fumigation, shall notify the department at least twenty-four (24) hours in advance of the fumigation period. Notification shall be made utilizing the department’s electronic fumigation notification website http://fumigation.freshfromflorida.com http://app1.flaes.org/fumigation or by submitting by facsimile, a completed Notification of Fumigation, (FDACS-13667, Rev. 04/10), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX FDACS-Form 13667, Notification of Fumigation, Rev 04/10 to the fascimile number located on the form. The notice shall state the following:

(a) Company name and business location address.

(b) Accepted common or trade name and active ingredients of fumigant to be used.

(c) Name of certified operator in charge or the designated certified operator(s) or special fumigation identification card holder(s) for the fumigation, together with her or his day and night telephone numbers.

(d) Location (address), county, and type of structure (single family, multi-family, commercial, or other) to be fumigated.

(e) Date of fumigation.

(f) Target pest.

(g) Contractor’s name (if subcontracted).

(2) Any change(s) in information required in notices by this regulation shall be reported via the electronic submission website or in writing via facsimile in advance of the fumigation period.

(3)(a) Exceptions: Notification of less than 24 hours is allowed only for verifiable situations affecting the health, safety, and welfare of the public and severe weather conditions. Notification shall be made immediately before the fumigation period by In authentic and verifiable emergencies only, when twenty-four (24) hours advance notification is not possible, advance electronic submission via http://fumigation.freshfromflorida.com http://app1.flaes.org/fumigation, or electronic mail to [e-mail], or facsimile to [phone] notice shall be given.

(b) This notice shall be immediately followed by written confirmation stating the required information. The written confirmation may be made by electronic mail to [e-mail].

(4)(3) A licensee that performs chamber or vault fumigations on the premises of the licensee’s licensed business location shall notify the department annually in writing. This notice may be submitted using the electronic notification system at http://fumigation.freshfromflorida.com. Information required in the written notification shall include the type (or description) of chamber being used on the property (such as shipping containers, trucks, PODS, tarpaulin areas, etc.) and the days of the week and hours during which these fumigations may be performed during the year of notification. The licensee shall provide the department at least 24 hours notice of any changes in the days of the week and hours during which fumigations may be performed.

(4) All forms and filing specifications contained in this rule are hereby adopted and incorporated by reference and may be obtained from the Florida Department of Agriculture and Consumer Services, Bureau of Inspection Incident Response, 3125 Conner Boulevard, Suite N, MS #C-41, Tallahassee, Florida 32399-1650, [phone] or by visiting the Department’s website at http://www.freshfromflorida.com/onestop/aes/pestcont.html.

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 482.051(4) FS. History–New 1-1-77, Amended 6-27-79, 6-22-83, 10-25-90, Formerly 10D-55.110, Amended 7-5-95, 9-17-08, 9-6-10, __________.

 

5E-14.142 Responsibilities and Duties – Records, Reports, Advertising, Applications.

(1) Records: Pest control records of the licensee pertaining to pest control activities and including contracts shall be kept at the licensed business location or at the exact Florida address specified in the application for business license for inspection by dDepartment inspectors. Records kept electronically must be provided to the department upon request. Additionally, routine operational records shall be available for inspection by appropriate state officials during normal business hours. Routine operational records containing information on pesticides, amounts, uses, dates, and places of application shall be maintained for a period of at least two years. Licensees operating in the category of fumigation shall  record this information along with the individual fumigant cylinder identification number utilized to fumigate a structure.

(2) Pest control business licensees, certified operators, or employees of the licensee must supply any information that support application(s) or form(s) filed with the department and shall permit authorized department representatives to view any such records upon written request.

(3) Licensees performing fumigation with a residential fumigant, their employees, certified operators, special identification cardholders shall comply with the label requirements and Stewardship Policy requirements of the residential fumigant being used.

(a) In addition, the following safety procedures shall be followed to enhance safety in the clearance of structures fumigated with a residential fumigant. Licensees, their employees, certified operators, and special identificatiuon cardholders shall maintain records relating to the fumigation clearance of structures fumigated with a residential fumigant.  Such records shall consist of the following information for each application:

1. Name and license number of the licensee responsible for the fumigant application;

2. Name of the person who applied the fumigant;

3. Date and time of the following: fumigant introduction, start of aeration, completion of aeration, and final testing for clearance;

4. Location of treatment site;

5. Detailed information relating to each label required clearance period including names of employees and personnel involved and start and stop times;

6. Total volume (cubic feet or other appropriate units) of the fumigated space;

7. Brand name or  EPA registration number of the pesticide product applied; and

8. Total amount in pounds or ounces, of fumigant and warning agent applied.

(b) Licensees or applicators operating in the category of fumigation shall use the Fumigation Log, (FDACS-13000, 01/17), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX  while on-site. Licensees or applicators operating in the category of fumigation pursuant to Section 482.111(2)(a), F.S., may use an alternative fumigation log form only if it incorporates all information required to be recorded in the current Fumigation Log, (FDACS-13000, 01/17). All licensees performing fumigation shall retain any records relating to the fumigation required by this rule for a period of two (2) years from the date of the fumigation. Upon request by the department, the licensee or certified operator in charge shall make available the records required to be maintained under this rule and shall permit the authorized representative to copy or photograph any of the records. The original records shall be maintained by the licensee.

(4) The required information shall be recorded no later than two (2) working days after the date of application and may be incorporated into other business transaction records.

(2) through (8) renumbered (5) through (11) No change.

Rulemaking Authority 482.051, 570.07(23) FS. Law Implemented 482.021(21), 482.032, 482.051(1), (5), 482.061, 482.071, 482.091, 482.111(5), (9), 482.161(1)(g), (h), 482.163, 482.226(1), (6), 482.2265,  FS. History–New 1-1-77, Amended 6-27-79, 6-22-83, 1-20-87, 10-25-90, Formerly 10D-55.142, Amended 8-11-93, 5-28-98, 4-29-02, 4-17-03, 6-2-04, 6-1-06, 7-23-08, 9-17-08, 9-17-08, 1-4-09, 5-20-12, Amended__________.

 

5E-14.1421 Identification Card – Training Verification.

(1) through (4) No change.

(5)  Fumigation employees that participate in fumigations using a residential fumigant must complete Initial and Annual Stewardship Training as required by the label and Stewardship Policy for the residential fumigant(s) used as defined in Rule Chapter 5E-2, F.A.C. Certified Educuation Unit forms verifying Stewardship Training (Initial or Annual) for all residential fumigant(s) used by the fumigation employee must be submitted to the department annually through http://ceu.freshfromflorida.com, electronic mail to [e-mail], or facsimile to [phone] by the renewal date of the fumigation employee’s identification card.

(6) The licensee or certified operator in charge of  fumigation must apply for an identification card that identifies that employee as having received the training specified in paragraph 5E-14.108(3)(b), F.A.C., to assist as the second trained person during the use of a residential fumigant as described in subsection 5E-14.108(2), F.A.C. The application for such identification card with a fumigation endorsement must be accompanied by an affidavit, signed by the prospective identification cardholder and by the licensee or certified operator in charge for fumigation, which states that the prospective identification cardholder has received the training required by Rule 5E-14.108(3)(b), F.A.C. Application shall be made online at http://www.FreshFromFlorida.com, or by submitting the Special Training to Perform Fumigation Affidavit (FDACS-13002, 01/17), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX , to the address as instructed on the form in order to receive a Fumigation Identification Card endorsement on the employee’s identification card as required by Section 482.091, F.S. The identification cardholder must complete stewardship training as required by the label and Stewardship Policy for the residential fumigant(s) used within 60 days of receiving an identification card with a fumigation endorsement.

Rulemaking Authority 482.051, 482.091, 570.07(23) FS. Law Implemented 482.091, 482.151 FS. History–New 6-12-02, Amended 2-24-09, __________.

 

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: [DATE FROM TRANSMITTAL MEMO]

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