WSR 03-02-099

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed January 2, 2003, 10:00 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-22-091.

Title of Rule: Rules related to exemptions to pesticide products declared to be restricted use pesticides.

Purpose: The purpose of the proposed rule is to exempt pesticide products labeled ONLY for home and garden use for the control of mosquito larvae from being declared "state restricted use" pesticides.

Other Identifying Information: WAC 16-228-1231 (1)(d) declares pesticides labeled for application onto or into water to control pests on or in water to be "state restricted use" pesticides. WAC 16-228-1231(2) lists pesticides that are exempt from the requirements of WAC 16-228-1231.

Statutory Authority for Adoption: RCW 15.58.040, chapter 34.05 RCW.

Statute Being Implemented: Chapter 15.58 RCW.

Summary: The recent discovery of West Nile Virus (a mosquito-borne disease) in Washington and the expectation that additional discoveries will occur next year, has caused a great deal of concern among Washington citizens. There are a number of mosquito control products available for the homeowner to purchase at local retail outlets, but most of these are adulticides. The preferred method of chemical control of mosquitoes is the use of larvicides. Larvicides, however, must be applied to water and, with limited exceptions, products labeled for use in water are "state restricted use," requiring a license to sell, purchase, and use the product. WAC 16-228-1231(2) lists those limited exceptions. The proposal would add products labeled only for home and garden use for the control of mosquito larvae as one of these exceptions. The number of products labeled only for this use is small, primarily consisting of products containing bacillus thuringiensis (commonly referred to as Bt.). Nevertheless, it will give the homeowner an added tool to control the vector for West Nile Virus.

Reasons Supporting Proposal: See Summary above.

Name of Agency Personnel Responsible for Drafting and Implementation: Ted Maxwell, Program, Olympia, Washington, (360) 902-2026; and Enforcement: Cliff Weed, Program, Olympia, Washington, (360) 902-2036.

Name of Proponent: Department of Agriculture, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The recent discovery of West Nile Virus (a mosquito-borne disease) in Washington and the expectation that additional discoveries will occur next year, has caused a great deal of concern among Washington citizens. There are a number of mosquito control products available for the homeowner to purchase at local retail outlets, but most of these are adulticides. The preferred method of chemical control of mosquitoes is the use of larvicides. Larvicides, however, must be applied to water and, with limited exceptions, products labeled for use in water are "state restricted use," requiring a license to sell, purchase, and use the product. WAC 16-228-1231(2) lists those limited exceptions. The proposal would add products labeled only for home and garden use for the control of mosquito larvae as one of these exceptions. The number of products labeled only for this use is small, primarily consisting of products containing bacillus thuringiensis (commonly referred to as Bt.). Nevertheless, it will give the homeowner an added tool to control the vector for West Nile Virus.

Proposal Changes the Following Existing Rules: There are a number of mosquito control products available for the homeowner to purchase at local retail outlets, but most of these are adulticides. The preferred method of chemical control of mosquitoes is the use of larvicides. Larvicides, however, must be applied to water and, with limited exceptions, products labeled for use in water are "state restricted use," requiring a license to sell, purchase and use the product. WAC 16-228-1231(2) lists those limited exceptions. The proposal would add products labeled only for home and garden use for the control of mosquito larvae as one of these exceptions. The number of products labeled only for this use is small, primarily consisting of products containing bacillus thuringiensis (commonly referred to as Bt.). Nevertheless, it will give the homeowner an added tool to control the vector for West Nile Virus.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires that an agency must prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on businesses in an industry. The proposed rule amendments will not impose a cost on the regulated industry and therefore an SBEIS is not required.

RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in RCW 34.05(a)(i) [34.05.328 (5)(a)(i)].

Hearing Location: WSU Cooperative Extension, Thurston County, 720 Sleater Kinney Road S.E., Suite Y, Lacey, WA, on February 4, 2003, at 6:00 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by January 22, 2003, TDD (360) 902-1996.

Submit Written Comments to: Laurie Mauerman, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, (360) 902-2093, e-mail lmauerman@agr.wa.gov, by 5:00 p.m., February 5, 2003.

Date of Intended Adoption: February 11, 2003.

January 2, 2003

Bob Arrington

Assistant Director

OTS-6130.1


AMENDATORY SECTION(Amending WSR 02-04-041, filed 1/29/02, effective 3/1/02)

WAC 16-228-1231   State restricted use pesticides for distribution by licensed pesticide dealers and for use by certified applicators only.   (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.

atrazine

bromacil

dcpa

disulfoton

diuron

hexazinone

metolachlor

metribuzin

picloram

prometon

simazine

tebuthiuron

(2) Pesticides which are not 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

(c) Aquariums

(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

(h) Disinfectants

(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

(l) Home and garden control of mosquito larvae.

(3) Products listed in subsection (1)(e) of this section 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.

[Statutory Authority: Chapters 15.58 and 34.05 RCW. 02-04-041, 16-228-1231, filed 1/29/02, effective 3/1/02. Statutory Authority: Chapters 15.58, 17.21 RCW. 00-22-073, 16-228-1231, filed 10/30/00, effective 11/30/00.]

Washington State Code Reviser's Office