The purpose of this rulemaking is to provide notice of revision to forms incorporated by reference in the rule and bring the forms into compliance with Section 120.55(1)(a)4., Florida Statutes, to eliminate a reference to rule language that has been ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NOS.:RULE TITLES:

5E-13.022Eligibility for State Approved Program and/or Aid

5E-13.023Source Reduction Prerequisites

5E-13.027Certified Budgets, Filing

5E-13.030State Aid Basis and Availability

5E-13.031District or County Use of Funds

5E-13.0331Use of Pesticides for Arthropod Control, Labels, Limitations, Precautions and Storage.

5E-13.035Intent

5E-13.037Aircraft Application for the Control of Adult Arthropods

5E-13.0371Mosquito Control Aircraft Registration, Inspection, Security, Storage, Transactions, Recordkeeping, Area-of-Application Information and Forms

5E-13.040Criteria for Licensure or Certification of Applicators

5E-13.041Authorization for the Department to Promulgate Rules and Regulations More Stringent Than EPA

PURPOSE AND EFFECT: The purpose of this rulemaking is to provide notice of revision to forms incorporated by reference in the rule and bring the forms into compliance with Section 120.55(1)(a)4., Florida Statutes, to eliminate a reference to rule language that has been repealed, to identify standards for secure pesticide storage, to define pesticide use, precautions and limitations according to registered labeling, to repeal requirements for source reduction projects, to repeal duplicative requirements otherwise found in rule or statute, and to revise distribution of state funds to local mosquito control programs and the date by which mosquito control districts must submit their certified budgets for approval by the department in accordance with Chapter 2013-226, s. 5 and 6, Laws of Florida amending Sections 388.261 and 388.271, Florida Statutes. The effect of this rulemaking will be to provide notice of revisions to forms incorporated by reference in the rule and bring the forms into compliance with Section 120.55(1)(a)4., Florida Statutes, to identify clear standards for secure pesticide storage, to define pesticide use, precautions and limitations according to registered labeling, to remove requirements regarding source reduction projects, to remove references to rule language that has been repealed and to revise distribution of state funds to local mosquito control programs in accordance with Chapter 2013-226, s. 5 and 6, Laws of Florida amending Sections 388.261 and 388.271, Florida Statutes.

SUMMARY: This rulemaking incorporates by reference the forms entitled, Detailed Work Plan Budget-Arthropod Control, (FDACS-Form 13623 Rev. 07/13), Operational Work Plan for Mosquito Control, FDACS-Form 13666 Rev. 07/13), Mosquito Control Monthly Activity Report, (FDACS-13652 Rev. 07/13), Annual Certified Budget for Arthropod Control, (FDACS-13617 Rev. 07/13), Arthropod Control Budget Amendment, (FDACS-13613 Rev. 07/13), Mosquito Control Monthly Report - Local, (FDACS-13663 Rev. 07/13), Mosquito Control Monthly Report – State Funds (FDACS-13650 Rev. 07/13), Application for Aircraft Registration (FDACS-13354 Rev. 10/13), Aircraft Bill of Sale AC Form 8050-2 (01/12), Report of Aircraft Transaction Form (FDACS-13355 Rev. 10/13), Record of Attendance for Continuing Education Units (CEUs), (FDACS-13325 Rev. 10/13), addresses requirements for the use of pesticides for purposes of arthropod control, updates form adoption language, repeals requirements for source reduction projects, repeals duplicative requirements, and revises distribution of state funds to local mosquito control programs and the date by which mosquito control districts must submit their certified budgets for approval by the department in accordance Chapter 2013-226, s. 5 and 6, Laws of Florida amending s. 388.261 and s. 388.271, Florida Statutes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this 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. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact of 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 its experience with adoption of rules of this nature. Additionally, no interested party submitted information regarding the economic impact.

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

RULEMAKING AUTHORITY: 388.261, 388.361, 487.051, 570.07 FS.

LAW IMPLEMENTED: 388.201, 388.231, 388.261, 388.271, 388.281, 388.341, 388.361, 487.051, 570.07 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Michael J. Page, Bureau Chief, Bureau of Entomology and Pest Control, 3125 Conner Boulevard, Suite N, Tallahassee, FL 2399-1650, [phone]; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5E-13.022 Eligibility for State Approved Program and/or Aid.

(1) A district or county will be eligible to receive state aid for control of arthropods when it provides the following: an annual budget for such purpose; a contractual services agreement with the department; a signed acknowledgement of being subject to Section 215.97, F.S.; a detailed work plan budget on the form entitled “Detailed Work Plan Budget-Arthropod Control” (FDACS- Form 13623, (Rev. 07/13 5/03) which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03544 entitled “Detailed Work Plan Budget-Arthropod Control”; an operational work plan on the form entitled “Operational Work Plan for Mosquito Control” (FDACS-Form 13666, (Rev. 07/13 4/04) which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03546; entitled “Operational Work Plan for Mosquito Control” hereby incorporated by reference and the district or county complies with provisions of Section 388.271(1), F.S. Copies of these forms may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

(2) No change.

(3) Participating districts or counties that do not want to receive state aid but want to remain or become a state approved program will be eligible when they provide the following: a memorandum agreement with the department that the district or county will provide monthly chemical reports of accomplishments on form entitled “Mosquito Control Monthly Activity Report” (FDACS-13652, Rev. 07/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03549 and an inventory of chemicals as required by subsection 5E-13.027(5), F.A.C.; a detailed work plan budget on the form entitled “Detailed Work Plan Budget-Arthropod Control” (FDACS- Form 13623, (Rev. 07/13 5/03) entitled “Detailed Work Plan Budget-Arthropod Control”; an operational work plan on the form entitled “Operational Work Plan for Mosquito Control” (FDACS-Form 13666, (Rev. 07/13 4/04) entitled “Operational Work Plan for Mosquito Control”, hereby incorporated by reference, and the district or county complies with provisions of Sections 388.271(1) and 388.341, F.S. Copies of these forms may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

Rulemaking Authority 388.361 FS. Law Implemented 388.361 FS., Section 11, Chapter 91-428, Laws of Florida. History–New 1-1-77, Formerly 10D-54.22, 10D-54.022, Amended 6-10-04, 8-9-06,__________.

 

5E-13.023 Source Reduction Prerequisites.

Rulemaking Authority 388.361 FS. Law Implemented 388.361 FS. History–New 1-1-77, Formerly 10D-54.23, 10D-54.023, Amended 3-14-94, 7-5-95, Repealed__________              .

 

5E-13.027 Certified Budgets, Filing.

(1) Annually, nNot later than September 3015, each district or county shall submit to the department two (2) copies of a certified budget on the form entitled FDACS-13617, “Annual Certified Budget for Arthropod Control,” (FDACS-13617 (Rev. 07/13 9/03), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03547 and hereby incorporated by reference. Differences in amounts shown on the approved detailed budget and certified budget must be explained by accompanying requests for approval of changes to be made in the detailed budget. The certified budget shall show all estimated cash carry-over amounts as a beginning cash balance. When the estimated cash carry-over amount in any fund is found to be less than the actual cash carry-over amount, a budget amendment shall be submitted to budget the additional amount of funds. However, only local fund carry-over re-budgeted by October 30th will be matched. The department shall make an adjustment in funding amounts payable to the district or counties in the last 3 quarters of current fiscal year and provide notification to each district or county of any distribution changes due to the re-budget. Copies of this form may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

(2) Budget amendments on the form FDACS 13613 (Rev. 9/03), entitled “Arthropod Control Budget Amendment,” (FDACS-13613, Rev. 07/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03548, and hereby incorporated by reference shall be prepared and submitted to the department prior to over-expending state funds in any account or expending state funds in non-budgeted accounts. Budget amendments must be explained by accompanying requests for approval of changes to be made in the detailed budget. Department approval of the amendment(s) must be received before such expenditures are made. Copies of this form may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

(3) Not later than thirty (30) days after the end of each month, each district or county shall submit a monthly financial report to the department on the form FDACS Form 13663, (Rev 6/03) entitled “Mosquito Control Monthly Report – Local Funds” (FDACS-13663, Rev. 07/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03550, for Local Funds and the form FDACS Form 13650, (Rev 6/03) entitled “Mosquito Control Monthly Report – State Funds” (FDACS-13650, Rev. 07/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03551, for State Funds, hereby incorporated by reference. Failure to meet the deadlines will result in withholding of state aid until the required reports are submitted, and re-distribution of the state aid to other existing state approved programs if the reports are not received within 90 days of the deadline. Copies of these forms may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

(4) No change.

(5) A district or county shall submit monthly chemical reports of accomplishments by submitting the form and an inventory of chemicals, on prescribed forms FDACS Form 13664, (Rev 5/03) entitled “Mosquito Control Chemical Inventory Report” and FDACS Form 13652, (Rev 6/03) entitled “Mosquito Control Monthly Activity Report” (FDACS-13652, Rev. 07/13), which is incorporated by reference in Rule 5E-13.022, Florida Administrative Code, for pesticide activity, hereby incorporated by reference, to the department not later than thirty (30) days after the end of each month. Copies of this form may be received from the department’s Bureau of Entomology and Pest Control, Conner Boulevard, Suite N, MS C-41, Tallahassee, Florida 32399-1650.

(6) No change.

Rulemaking Authority 388.361 FS. Law Implemented 388.201, 388.271, 388.341 FS., Section 11, Chapter 91-428, Laws of Florida. History–New 1-1-77, Formerly 10D-54.27, 10D-54.027, Amended 7-5-95, 6-10-04,_________.

 

5E-13.030 State Aid Basis and Availability.

(1) through (5) No change.

(6) Twenty percent of the state funds legislatively authorized and released by the Executive Office of the Governor for arthropod control shall be distributed to competitive research programs. Only public state universities and colleges in Florida shall be eligible to receive state funds for arthropod research. After twenty percent of the funds legislatively authorized and released by the Executive Office of the Governor for arthropod control are distributed for research and after distributions are made to the Department as provided by statute, should funds be insufficient to grant each county or district state funds on a dollar-for-dollar matching basis, then seventy percent of the remaining state funds shall be distributed equally to eligible counties and districts with less than one million dollars of local funds budgeted for arthropod control. To be eligible for state funds, counties and districts with less than one million dollars of local funds budgeted for arthropod control must allocate to arthropod control local funds totaling at least twenty five percent of the state distribution. Should a county or district allocate less than the required twenty five percent of the state distribution in local funds, then the state funds shall prorated accordingly.

The remaining thirty percent of state funds shall be allocated equally to counties and districts with between one million dollars and three million dollars of local funds budgeted for arthropod control to support public arthropod education programs and outreach.

Rulemaking Authority 388.261, 388.361 FS. Law Implemented 388.261 FS. History–New 1-1-77, Formerly 10D-54.30, 10D-54.030, Amended 3-14-94, 6-10-04,_________.

 

5E-13.031 District or County Use of Funds.

(1) When purchasing equipment with state funds, the district or county shall jointly determine with the department the type and size of equipment necessary to perform the work planned. The district or county shall submit complete specifications to the department for all equipment to be purchased when the cost will exceed twenty-five thousand ($25,000) dollars per unit and the purchase deviates from the approved detailed work plan.

(2) Districts or counties as authorized by law may, upon department approval, purchase equipment by borrowing funds, time-payment plan or lease-purchase plan. When purchases are made in whole or in part from local funds, amounts paid from local funds in each fiscal year for the purchase price or principal of loan shall be matched with state funds provided interest, carrying charges or other loan costs will not be matched.

(3) State funds shall not be used for payment of any item shown under paragraphs 5E-13.030(8)(a)-(g), F.A.C.

(3)(4) Proceeds from sale or rental of property purchased with state funds shall be deposited and credited to State funds.

(4)(5) Insecticide spray material shall not be sold by districts or counties without approval from the Department.

(5)(6) State funds received shall be deposited in a separate depository account from local funds received. Disbursements shall be made on prenumbered checks or warrants drawn on proper depository accounts.

(6)(7) Local and state funds shall be deposited in banks designated as depositories of public funds in accordance with provisions of Section 658.60, F.S.

Rulemaking Authority 388.361 FS. Law Implemented 388.231, 388.281 FS. History–New 1-1-77, Formerly 10D-54.31, 10D-54.031, Amended 3-14-94, 6-10-04,__________.

 

5E-13.0331 Use of Pesticides for Arthropod Control, Labels, Limitations, Precautions and Storage.

(1) Only those pesticides having state registration shall be used for arthropod control. All registered pesticides used for arthropod control, including adulticides or larvicides, must be used in accordance with the registered label and labeling or be otherwise accepted by the United States Environmental Protection Agency or the Department.

(2) Public Health Pest Control applicators shall maintain specimen copies of current registered labels for all pesticides used in arthropod control operations and such labels shall be available for inspection by the Department upon request.

(3) All pesticide concentrates and pesticides mixed for application stored in containers, other than the original container with the original label or application equipment, shall be accurately identified with a permanent, durable label or tag, providing the following information:

(a) Name, address, and telephone number of the county or district program;

(b) Product name (if diluted, preceded by the word “Diluted”);

(c) EPA registration number from product label (if diluted, preceded by the words “Derived from”);

(d) Name and percentage of active ingredient as concentrate or dilution; and

(e) Signal word from the registered product label.

(4) All pesticides shall be stored and maintained in a manner such that they are not accessible to unauthorized persons. Secured storage shall include: a locked and fenced area where the fence height is at least 6 feet, areas protected by door locks, valve locks, or electronic security systems, or any other reasonable method to prevent or deter theft or unauthorized use. Buildings used to store pesticides must be of rigid construction so unauthorized entry cannot be achieved without the use of heavy machinery or equipment. If a portable building is used for storage of pesticides, the building must be secured in place so it cannot be towed or otherwise removed by unauthorized persons.

(5) Application equipment shall be calibrated either once annually, or as required by label directions or manufacturer directions, whichever requires calibration more frequently, to ensure application of the correct particle size and accurate and uniform dosages in accordance with labeling specifications.

Rulemaking Authority 388.361 FS. Law Implemented 388.361 FS. History–New__________.

 

5E-13.035 Intent.

Rulemaking Authority 388.361 FS. Law Implemented 388.361 FS., U. S. Pub. Law 92-516, Section 11, Chapter 91-428, Laws of Florida. History–New 1-1-77, Formerly 10D-54.35, 10D-54.035, Repealed__________.

 

5E-13.037 Aircraft Application for the Control of Adult Arthropods.

(1) through (2)(a) No change.

(b) Adulticides selected shall be those labeled for aircraft application in accordance with paragraph 5E-13.046(6)(b), F.A.C., to provide adequate control of the problem mosquitoes or other arthropods and when used in accordance with widespread and commonly recognized practice, it will not cause unreasonable adverse effects on the environment. Adulticide labels will be strictly followed.

(c) through (3) No change.

Rulemaking Specific Authority 388.361 FS. Law Implemented 388.361(2)(a) FS., Section 11, Chapter 91-428, Laws of Florida. History–New 2-10-87, Formerly 10D-54.037, Amended__________.

 

5E-13.0371 Mosquito Control Aircraft Registration, Inspection, Security, Storage, Transactions, Recordkeeping, Area-of-Application Information and Forms.

(1) Registration. Each mosquito control aircraft used for aerial pesticide application, must be annually registered with the department. Application for registration shall be on the form entitled “Application for Aircraft Registration” (FDACS-13354, Rev. 10/13) 01/02, as adopted in Rule 5E-9.036, Florida Administrative Code provided by the department. The completed registration form shall be submitted to the Pesticide Certification Office, 3125 Conner Blvd., Bldg. 8, Tallahassee, Florida 32399-1650. The registration shall be submitted to the Department on or before June 30 of each year.

(2) through (3) No change.

(4) Storage. All pesticides on the premises owned or controlled by any mosquito control applicator or mosquito control district shall be stored and maintained in a manner such that they are not accessible to unauthorized persons. Secured storage shall include: fences with a minimum 6 feet height, door locks, valve locks, electronic security systems, disabling of mobile storage units, blocking of access, ingress or egress; or any other reasonable method to prevent or deter theft or unauthorized use. Buildings used to store pesticides must be of rigid construction so unauthorized entry cannot be achieved without the use of heavy machinery or equipment. If a portable building is used for storage of pesticides, the building must be secured in place so it cannot be towed or otherwise removed by unauthorized persons.

(4)(5) Transactions. Any purchase, sale, rental, leasing, or transfer of ownership of a mosquito control aircraft required to be registered with the department pursuant to subsection (1) above shall be transmitted to the department on the form (1) Florida Department of Revenue Form DR-42A Rev-03/02 Ownership Declaration and Sales and Use Tax Report on Aircraft or (2) U.S. Department of Transportation Federal Aviation Administration form entitled “Aircraft Bill of Sale” AC Form 8050-2 (01/12) (09/92), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-03552 or (3) the form entitled “Report of Aircraft Transaction” Form (FDACS-13355, Rev. 10/13) 01/02, as adopted in Rule 5E-9.036, Florida Administrative Code, within 24 hours of the transaction.

(5)(6) Recordkeeping. Aerial mosquito control applicators shall maintain records relating to each application of pesticide during a declared emergency. Such records generated during the emergency shall be retained for a period of two (2) years and shall be maintained in a manner that is accessible by the department upon request. Mosquito control aircraft operating as public aircraft not regulated by the FAA are exempt from the records referencing FAA numbers. The completed forms shall be submitted to the Pesticide Certification Office, 3125 Conner Blvd., Bldg. 8, Tallahassee, Florida 32399-1650.

(a) through (g) No change.

(6)(7) Area-of-Application Information. The information listed in paragraphs 5E-13.0371(5)(6)(a) through (5)(6)(g), F.A.C., is required only when a declaration of an Executive Order pursuant to the emergency powers granted to the Governor or the Commissioner of Agriculture declaring an emergency in the State of Florida. Such information shall be provided and filed with the Department in a manner determined by the department.

(8) Forms. The following forms are hereby incorporated by reference. These forms may be obtained from the Florida Department of Agriculture and Consumer Services, Pesticide Certification Office, 3125 Conner Boulevard, Building 8, Tallahassee, Florida 32399-1650, telephone [phone].

(a) Application for Aircraft Registration (FDACS-13354), Rev 01/02.

(b) Ownership Declaration and Sales and Use Tax Report on Aircraft (DR-42A), Rev. 03/02.

(c) Aircraft Bill of Sale AC Form 8050-2 (09/92).

(d) Report of Aircraft Transaction (FDACS-13355), Rev 01/02.

Rulemaking Authority 487.051(1)(d), (e), 570.07(23), (39), (40) FS. Law Implemented 388.361(2)(b), 487.051(1)(d), (e), 570.07(39), (40) FS. History–New 2-25-03, Amended 8-9-06,__________.

 

5E-13.040 Criteria for Licensure of Applicators.

(1) through (3) No change

(4) All persons licensed in Public Health Pest Control shall provide evidence of continued competency prior to license renewal by accruing a minimum of sixteen (16) continuing education units during their four year licensure period. The licensee shall provide proof of continuing education training on the form entitled “Record of Attendance for Continuing Education Units (CEUs)” (FDACS-13325, Rev. 10/13), as adopted in Rule 5E-9.029, Florida Administrative Code, prior to license renewal. Failure to meet continuing education requirements shall result in the nonrenewal of the license, and applicators shall retake and pass both the Public Health Pest Control and the General Standards (Core) examinations in order to obtain a new license.

(5) through (9) No change.

Rulemaking Authority 388.361 FS. Law Implemented 388.361(4) FS. History–New 2-10-87, Formerly 10D-54.040, Amended 3-14-94, 8-9-06,__________.

 

5E-13.041 Authorization for the Department to Promulgate Rules and Regulations More Stringent Than EPA.

Rulemaking Authority 388.361 FS. Law Implemented 388.361(3) FS., Section 11, Chapter 91-428, Laws of Florida. History–New 2-10-87, Formerly 10D-54.041, Repealed__________.

 

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: December 13, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 31, 2013 and November 20, 2013