Date of Adoption: October 24, 2000.
Purpose: Regulatory rule review to update regulations and clarify wording and requirements.
Citation of Existing Rules Affected by this Order: WAC 16-228-1010, 16-228-1040, 16-228-1150, 16-228-1200, 16-228-1231, 16-228-1270, 16-228-1380 and 16-228-1540; and repealing WAC 16-228-1230, 16-228-1240, and 16-228-1580.
Statutory Authority for Adoption: Chapters 15.58, 17.21 RCW.
Adopted under notice filed as WSR 00-17-137 on August 21, 2000.
Changes Other than Editing from Proposed to Adopted Version: "Hops" was included as an example in the definition of "blossoming plants" in WAC 16-228-1010; and modifications to WAC 16-228-1385 were removed from the language as the section was repealed. Rodenticide uses for these compounds are no longer allowed by the federal government.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 7, Repealed 3.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.
October 26, 2000
The definitions set forth in this section shall apply throughout this chapter, unless the context otherwise requires:
(1) "Agricultural commodity" means any plant, or part of a plant, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by people or animals.
(2) "Agricultural emergency" means a sudden occurrence or set of circumstances which the agricultural employer could not have anticipated and over which the agricultural employer has no control, and which requires entry into a pesticide treated area during a restricted-entry interval, when no alternative practices would prevent or mitigate a substantial economic loss.
(3) "Authorized agent" is any person who is authorized to act on behalf of a certified applicator for the purpose of purchasing pesticides.
(4) "Bait box" for rodenticides is a box constructed of durable metal, wood, plastic, or other treated synthetic material. It shall be designed to hold rodent bait securely, allow rodents to enter and leave, and prevent unauthorized persons and domestic animals from gaining access to the bait. The cover shall be provided with a lock that can be unlocked only by a combination, key, special tool, or forced entry. Fragile materials are unacceptable.
(5) "Bait station" may be any location where baits are placed to allow target pests to gain access to the bait.
(6) "Blossoming plants" means
(a) when there are five or more open blooms per square yard on average in a given field; or
(b) when there are one or more open blooms per tree or vine in an orchard or vineyard; or
(c) when there are five or more open weed blooms per square yard on average for the area being measured for groundcover in orchards or vineyards, fence lines, ditch banks, or field, vineyard or orchard edges: PROVIDED that this definition shall not apply to plants that are not attractive to bees (e.g. lentils, white blossomed peas, second bloom of pears and potatoes and hops). For the purposes of this definition, "bloom" means a flower head, raceme or spike with one or more open flowers.
(6))) (7) "Bulk fertilizer" is a commercial fertilizer,
agricultural mineral, or lime, distributed in nonpackaged form.
(7))) (8) "Certified applicator" means any individual who
is licensed as a commercial pesticide applicator, commercial
pesticide operator, public operator, private-commercial
applicator, demonstration and research applicator, or certified
private applicator, or any other individual who is certified by
the director to use or supervise the use of any pesticide which
is classified by the EPA as a restricted use pesticide or by the
state as restricted to use by certified applicators only.
(9) "Chemigation" means the application of any substance or combination of substances intended as a pesticide, plant or crop protectant or a system maintenance compound applied with irrigation water.
(8))) (10) A "complainant" is defined as a person who has
requested an inspection of an area in which a pesticide violation
is believed to have occurred.
(9))) (11) "Complete wood destroying organism inspection"
means (a) an inspection of a structure for the purpose of
determining (i) evidence of infestation(s), and (ii) damage, and
(iii) conducive conditions; or (b) any wood destroying organism
inspection which is conducted as the result of a telephone
solicitation by an inspection firm or pest control business, even
if the inspection would otherwise fall within the definition of a
limited wood destroying organism inspection.
(10))) (12) "Conducive conditions" means those conditions
which may lead to or enhance an infestation of wood destroying
(11))) (13) "Controlled disposal site" means any place
where solid or liquid waste is disposed: Provided, That the area
has been designated as a disposal site for waste materials by the
appropriate jurisdictional agency: Provided further, That the
site is fenced, barricaded or otherwise enclosed or attended by
some person in charge to facilitate control-access of domestic
animals, pets, and unauthorized persons.
(12))) (14) "Department" means the Washington state
department of agriculture.
(13))) (15) "Diluent" means a material, liquid or solid,
serving to dilute the pesticide product to field strength for
adequate coverage (such as water).
(14))) (16) "Director" means the director of the
department or a duly authorized representative.
(15))) (17) "Dry pesticide" is any granular, pelleted,
dust or wettable powder pesticide.
(16))) (18) "EPA" means the United States Environmental
(17))) (19) "EPA restricted use pesticide" means any
pesticide with restricted uses as classified for restricted use
by the administrator, EPA.
(18))) (20) "Fertilizer" as included in this order means
any liquid or dry mixed fertilizer, fertilizer material,
specialty fertilizer, agricultural mineral, or lime.
(19))) (21) "FIFRA" means the Federal Insecticide,
Fungicide and Rodenticide Act as amended (61 stat. 163, 7 U.S.C.
Sec. 136 et seq.).
(20))) (22) "Floor level" is considered to be the floor
upon which people normally walk -- not shelves, ledges, overhead
beams, tops of stacked materials, surfaces of equipment, or
(21))) (23) "Food service establishment" means any fixed
or mobile restaurant; coffee shop; cafeteria; short order cafe;
luncheonette; grill; tearoom; sandwich shop; soda fountain;
tavern; bar; cocktail lounge; nightclub; roadside stand;
industrial-feeding establishment; retail grocery; retail food
market; retail meat market; retail bakery; private, public, or
nonprofit organization routinely serving food; catering kitchen;
commissary or similar place in which food or drink is prepared
for sale or for service on the premises or elsewhere; and any
other eating or drinking establishment or operation where food is
served or provided for the public with or without charge.
(22))) (24) "Fumigant" means any substance or combination
of substances that produce gas, fumes, vapors, or smoke, and is
used to kill pests in some kind of enclosure.
(23))) (25) "Highly toxic pesticide" for the purpose of
this chapter, means any pesticide that conforms to the criteria
in 40 C.F.R. Sec. 156.10 for toxicity Category I due to oral
inhalation or dermal toxicity.
(24))) (26) "Landscape application" means an application
by a certified applicator of any EPA registered pesticide to any
exterior landscape plants found around residential property,
commercial properties such as apartments or shopping centers,
parks, golf courses, schools including nursery schools and
licensed day cares, or cemeteries or similar areas. This
definition shall not apply to: (a) Applications made by
certified private applicators; (b) mosquito abatement, gypsy moth
eradication, or similar wide-area pest control programs sponsored
by governmental entities; and (c) commercial pesticide
applicators making structural applications.
(25))) (27) "Limited wood destroying organism inspection"
means the inspection of a structure for purposes of identifying
or verifying evidence of an infestation of wood destroying
(26))) (28) "Person" is defined as any individual,
partnership, association, corporation, or organized group of
persons whether or not incorporated.
(27))) (29) A "person aggrieved" by a violation is defined
as a person who has reasonable grounds to believe that he or she
has been subjected to harm or an unreasonable risk by such
(30) "Pollen shedding corn" means that stage of growth when ten percent or more of the corn plants in any one quarter portion of the field are showing spike anthers.
(28))) (31) "Private applicator" means a certified
applicator who uses or is in direct supervision of the use of (a)
any EPA restricted use pesticide; or (b) any state restricted use
pesticide restricted to use only by certified applicators by the
director for the purposes of producing any agricultural commodity
and for any associated noncrop application on land owned or
rented by the private applicator or the applicator's employer or
if applied without compensation other than trading of personal
services between producers of agricultural commodities on the
land of another person.
(29))) (32) "Private-commercial applicator" means a
certified applicator who uses or supervises the use of (a) any
EPA restricted use pesticide; or (b) any restricted use pesticide
restricted to use only by certified applicators for purposes
other than the production of any agricultural commodity on lands
owned or rented by the applicator or the applicator's employer.
(30))) (33) "State restricted use pesticide" means any
pesticide determined to be a restricted use pesticide by the
director under the authority of chapters 17.21 and 15.58 RCW that
are restricted to use only by certified applicators.
(31))) (34) "Substantial economic loss" means a loss in
profitability greater than that which would be expected based on
the experience and fluctuations of crop yields in previous years.
Only losses caused by the agricultural emergency specific to the
affected site and geographic area are considered. The
contribution of mismanagement cannot be considered in determining
(32))) (35) "Unreasonable adverse effects on the
environment" means any unreasonable risk to people or the
environment taking into account the economic, social and
environmental costs and benefits of the use of any pesticide, or
as otherwise determined by the director.
(33))) (36) "Waste pesticide" is any pesticide formulation
which cannot be used according to label directions in Washington
state because of cancellation or suspension of its federal or
state registration, or deterioration of the product or its label,
and any pesticide formulation whose active ingredients are not
clearly identifiable because of label deterioration or because
the pesticide is not stored in its original container.
(34))) (37) "Wood destroying organisms" means those
organisms including, but not limited to, subterranean termites,
dampwood termites, carpenter ants, wood boring beetles of the
family anobiidae (deathwatch beetle), and wood decay fungus
(rot). Wood destroying organisms shall not include such
organisms which occurred prior to the manufacturing or processing
of the lumber, e.g., pocket rot.
(35))) (38) "Wood destroying organism inspection" means
the service of inspecting a building for the presence of wood
destroying organism pests destructive to its structural
components, and/or their damage, and/or conducive conditions. For purposes of these rules a wood destroying organism inspection
shall be either a "complete wood destroying organism inspection"
or a "limited wood destroying organism inspection."
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1010, filed 10/20/99, effective 11/20/99.]
Upon receipt of a verified report of loss as set forth in RCW 17.21.190 or alleged violation of Chapters 17.21 or 15.58 RCW or the accompanying rules, the department shall initiate an investigation. Investigation of a complaint concerning immediate acute pesticide exposure to humans or animals shall be initiated immediately. Other complaint investigations shall be initiated no later than forty-eight hours after receipt of the verified report of loss.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1040, filed 10/20/99, effective 11/20/99.]
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)
Other dispositions of alleged violations.
Nothing herein shall prevent the department from:
(1) Choosing not to pursue a case administratively.
(2) Issuing a warning letter or notice of correction in lieu of pursuing administrative action.
(3) Negotiating settlement(s) of cases on such terms and for such reasons as it deems appropriate. Prior violation(s) covered by a prior settlement agreement may be used by the department for the purpose of determining the appropriate penalty for the current alleged violation(s) if not prohibited by the agreement.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1150, filed 10/20/99, effective 11/20/99.]
(1) No person shall handle, transport, store, display, apply, dispose of or distribute pesticides in such a manner as to endanger humans and their environment or to endanger food, feed, or any other product that may be transported, stored, displayed, or distributed with such pesticides. Toxicities of pesticides shall be considered in distribution, storage, handling, and merchandising practices.
(2) Highly toxic pesticides shall not be transported in the same compartment of the vehicle or other equipment together with clothes, food, feed, or any other material intended for consumption by humans or animals. Any vehicle or other equipment shall be inspected by the owner or authorized agent for contamination before reuse. In instances where leakage or spillage has occurred, the shipper of the pesticides shall be immediately notified for instructions concerning the best method to be employed for the removal of the contamination. Vehicles or other equipment which have been contaminated shall not be returned to service until the contamination has been removed.
(3) Pesticide containers shall be secured during transit by use of side or end racks, bracing, chocks, tiedowns, or other means to prevent their sliding, falling, tipping, rolling, or falling off the vehicle with normal vehicle acceleration, deceleration, or change in direction.
(4) Valves shall be tightly closed and manhole covers shall be secured on cargo or portable tanks used for transporting pesticides, whether tanks are full or empty.
(5) Portable tanks shall be secured to prevent their sliding, falling, tipping, or rolling with normal vehicle acceleration, deceleration, or change in direction. Ends, sidewalls, or doors of van bodies shall not be relied upon for securement.
(6) Pesticides shall not be delivered to a pesticide consignee unless the consignee or authorized agent is present to accept delivery of the pesticides and signs a delivery slip and the pesticides are secured in a proper storage.
(7) Pesticides shall not be stored and/or displayed over or adjacent to meat or vegetable cases, other human foods, animal feeds, or drugs, or in any manner that may result in contamination of food, feed, or clothing. Pesticides intended for sale or distribution shall only be stored and displayed within an enclosed area of a building or fence and shall not be displayed on sidewalks.
(8) Pesticide dealers shall not sell, offer for sale, or hold for sale highly toxic pesticides in the same department where food for human consumption is displayed or sold. The use of the same "checkstand" or food packaging area is prohibited for the distribution of highly toxic pesticides.
(9) All pesticide incidents involving undesirable impacts on
human health shall be reported to the Washington state department
social and)) health (( services)).
(10) Pesticides in leaking, broken, corroded, or otherwise damaged containers shall not be displayed, offered for sale, or transported and shall be handled or disposed of in a manner that would not contaminate the environment or cause injury to humans and/or animals. Pesticides with obscured, illegible or damaged labels shall not be displayed or offered for sale.
(11) No person shall distribute or sell any pesticide unless it is in the registrant's or the manufacturer's unbroken, immediate container and there is affixed to the container its registered pesticide label.
(12) A user of a pesticide may distribute a properly labelled pesticide to another user who is legally entitled to use that pesticide without obtaining a pesticide dealer's license if the exclusive purpose of distributing the pesticide is keeping it from becoming a hazardous waste as defined in chapter 70.105 RCW.
(13) The distribution and use of DDT and DDD shall be prohibited in this state except for uses allowed by the Environmental Protection Agency or the Center for Disease Control of the United States Department of Health and Human Services.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1200, filed 10/20/99, effective 11/20/99.]
(1) Pesticides defined by the following categories or active ingredients are hereby declared state restricted use pesticides and shall be distributed only by licensed pesticide dealers to certified applicators or to their duly authorized agents. The certified applicator must have a valid certification, license or permit to use or purchase the kind and quantity of such pesticide sold or delivered. These pesticides shall be used or applied only by certified applicators or persons under the direct supervision of a certified applicator, and only for those uses covered by the certified applicator's license category.
(a) Any EPA restricted use pesticide.
(b) 2, 4-D - all dry formulations and all liquid amine or salt formulations distributed in quantities larger than one gallon, that are used in counties located east of the crest of the Cascade Mountains.
(c) Strychnine and its salts
(d) Aquatic pesticides. All pesticides formulations labeled for application onto or into water to control pests on or in water.
(e) Pesticides containing the following active ingredients and their isomers are hereby declared state restricted use pesticides for the protection of groundwater.
(2) Pesticides which are no classified as EPA restricted use pesticides and which are labeled and intended only for the following uses shall be exempt from the requirements of this section:
(a) Swimming pools
(b) Wholly impounded ornamental pools or fountains
(d) Closed plumbing and sewage systems
(e) Enclosed food processing systems
(f) Air conditioners, humidifiers, and cooling towers
(g) Industrial heat exchange, air washing and similar industrial systems
(i) Aquatic environments in states other than Washington
(j) Animal pets
(k) Use within wholly enclosed structures (with floors) or fumigation chambers.
Greenhouses are not considered as wholly enclosed structures for the purposes of this section.
(3) Products listed in WAC 16-228-1230(e) and dry formulations of 2, 4-D which are labeled and intended only for Home & Garden use are exempt from the requirements of this section.
(4) Distribution of pesticides bearing combined labeling of uses onto or into water plus non-aquatic general uses, may be made by licensed pesticide dealers to noncertified applicators if the dealer indicates on the sales slip or invoice that the purchaser of the pesticide agrees that it will not be applied into or onto water. If requested by the department, dealers shall furnish record on the sales of pesticides labeled for application onto or into water, whether sold for that use or not. Records shall include the name and address of the purchaser, the complete product name and/or EPA registration number of the pesticide and the amount purchased. Records shall be kept for seven years from the date of distribution.
(5) Licensed pesticide dealers shall keep records of distribution of state restricted use pesticides for a period of seven years from the date of distribution. Records shall be furnished to the director immediately upon request. The records shall contain the following information:
(a) Name and address of certified applicator;
(b) Name of authorized agent (if applicable);
(c) Product name and EPA registration number;
(d) Quantity in pounds or gallons of the pesticide distributed;
(e) Date of distribution;
(f) Certified applicator's license number;
(g) Crop or site to which the pesticide will be applied.
(6) Certified applicators may designate authorized agent(s) for the purpose of purchasing or receiving restricted use pesticides by making previous arrangements with the pesticide dealer, or the authorized agent may provide written authorization by the certified applicator to the dealer at the time of purchase. At the time of purchase by an authorized agent the pesticide dealer shall require the certified applicator's name and license number.
(1) For purposes of pesticide registration, the following crops, when grown to produce seed specifically for crop reproduction purposes, are considered nonfood and nonfeed sites of pesticide use:
|arugula||Mediterranean salad, rucola, roquette, Ghargir|
|broccoli raab||Rapani, Choy Sum, Chinese flowering cabbage|
|Chinese kale||Chinese broccoli|
|Chinese mustard||Pak Choi (Choy), Bok Choi (Choy) Taisai, celery mustard, spoon cabbage|
|radish (other than daikon)|
|swiss chard||spinach beet|
(a) All seed screenings shall be disposed of in such a way that they cannot be distributed or used for food or feed. The seed conditioner shall keep records of screening disposal for three years from the date of disposal and shall furnish the records to the director forthwith upon request. Disposal records shall consist of documentation from a controlled dump site, incinerator, or other equivalent disposal site and shall show the lot numbers, amount of material disposed of, its grower(s), and the date of disposal.
(b) No portion of the seed plant, including but not limited to green chop, hay, pellets, meal, whole seed, cracked seed, roots, bulbs, leaves and seed screenings may be used or distributed for food or feed purposes.
(c) All seed from the crops listed in subsection (1) of this section grown or conditioned in this state shall bear a tag or container label which forbids use of the seed for human consumption or animal feed.
(d) No seed from the crops listed in subsection (1) of this section grown or conditioned in this state may be distributed for human consumption or animal feed.
(3) Violation of any condition listed in subsection (2) of this section is declared to be a violation of chapters 17.21 and 15.58 RCW.
(4) Any seed crop certified under provisions of RCW 15.86.070, the Organic Food Products Act, shall be exempt from the requirements of this section.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1270, filed 10/20/99, effective 11/20/99.]
Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/00 [10/20/99], effective 11/20/99)
Regulation of application of vertebrate control pesticides.
Vertebrate control pesticides shall be used only under the following conditions:
(1) Vertebrate control pesticides shall be placed only in locations that are not readily accessible to nonpest animals, children, and unauthorized persons, and in a manner that shall preclude contamination of food, feed, drugs, and other consumer commodities. Exposure of rodenticides baits within buildings shall not be above floor levels.
(2) Baits shall be colored or otherwise formulated so that they will be identifiable from foods common to the establishment in which the bait is placed.
(3) When the use of bait boxes is necessary to ensure that
baits are not readily accessible to nonpest animals, children,
and unauthorized persons, the bait boxes shall be of sturdy
construction and ((
designed to accomplish that purpose, and))
tamper resistant. Baits placed in industrial, commercial or
other areas that are accessible to the public shall be contained
in tamper resistant bait boxes and such bait boxes shall be
secured in such a way that nonpest animals, children and
unauthorized persons cannot displace or remove the baits out of
such bait boxes. Bait boxes shall be labeled clearly with
letters on contrasting background showing the following
(a) Any information required by the EPA or Washington state registered label for the bait or the concentrate from which it was formulated.
(b) The name of the active ingredient(s).
(c) The name of the firm and/or certified applicator, address, and the telephone number.
(4) Containers used for exposing vertebrate control baits to pests shall be composed of tough, nonabsorbent, corrosion resistant materials and designed so they cannot be readily overturned or carried off by pest animals. Those containers that are used for exposing vertebrate control pesticides outside of bait boxes shall bear a legible warning label with wording not less restrictive than requirements on bait boxes being used as per WAC 16-228-1380(3), (except for the size of lettering). Food containers, such as "meat boats" and "souffle cups" are unacceptable. Containers used for liquid bait exposure shall be water and/or liquid impervious.
(5) All vertebrate control pesticide stocks, when not in use or when unattended, shall be kept in locked storage or locked service vehicles.
(6) All containers used for storing or transporting vertebrate control pesticides shall bear an EPA or department registered label.
(7) Servicemen's kits which contain vertebrate control pesticides shall be handled with extra caution and shall not be left where children or other unauthorized persons or nontarget animals might remove contents.
(8) Upon completion of a baiting operation, all bait boxes, containers, and/or throw bags, if they may become readily accessible to the public, shall be recovered for disposal in an approved manner.
(9) Wherever poisoned carcasses jeopardize public sanitation, or create a health hazard to wildlife, domestic animals, or the public, they shall be recovered and disposed of by burning, burying not less than three feet below the soil surface, or placed in proper waste containers and delivered to an approved disposal site.
(10) Thallium-containing compounds shall not be used for vertebrate control.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1380, filed 10/20/99, effective 11/20/99.]
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)
(1) An examination fee of ten dollars shall be paid prior to administration of any pesticide license examination at other than a regularly scheduled examination session. Scheduled exam sessions occur every Tuesday at the Olympia and Yakima pesticide management division offices and at other offices as scheduled. The department reserves the right to restrict the number of applicants examining at any given time.
(2) Any individual who fails any pesticide licensing examination twice shall be required to wait at least fourteen days before retaking that examination a third time. Subsequent testing shall be at the director's discretion.
[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1540, filed 10/20/99, effective 11/20/99.]
The following sections of the Washington Administrative Code are repealed:
|WAC 16-228-1230||State restricted use pesticides for use by certified applicators only.|
|WAC 16-228-1240||Aquatic pesticides.|
|WAC 16-228-1580||Change of exemptions.|