WSR 14-04-100
PROPOSED RULES
DEPARTMENT OF AGRICULTURE
[Filed February 4, 2014, 9:34 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-22-093 and 14-01-025.
Title of Rule and Other Identifying Information: WAC 16-228-1231 What are state restricted use pesticides for distribution by licensed pesticide dealers and for use by certified applicators only? and 16-230-610 What are use restricted herbicides in Eastern Washington?
Hearing Location(s): Washington State Department of Agriculture, Second Floor Conference Room, Room 238, 21 North 1st Avenue, Yakima, WA 98902, on Wednesday, March 19, 2014, at 1:00 p.m.
Date of Intended Adoption: April 2, 2014.
Submit Written Comments to: Teresa Norman, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by March 19, 2014.
Assistance for Persons with Disabilities: Contact WSDA agency receptionist at (360) 902-1976, TTY (800) 833-6388 or 711 by March 5, 2014.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To exempt liquid formulations of ready-to-use phenoxy hormone-type herbicides from being declared state restricted use pesticides. Currently, salt formulations of phenoxy hormone-type herbicides distributed in quantities of one gallon or less and dry formulations intended only for home and garden use or turf use are exempt from being designated as state restricted use WAC 16-228-1231. The proposed amendment would add ready-to-use liquid formulations to the list of exempted products. The proposed amendments are a result of a petition for rule making submitted by The Scotts Company, LLC.
In addition, the amendment to WAC 16-230-610 will exempt liquid formulations of ready-to-use hormone-type herbicides from being declared use restricted herbicides in eastern Washington.
Reasons Supporting Proposal: Adopting rules exempting ready-to-use liquid formulations in quantities greater than one gallon would benefit human and environmental health. Ready-to-use liquid formulations are generally safer for the applicator since there is no mixing or loading involved and the percentage of active ingredient is generally much less than that found in a concentrate material. The potential for human exposure, and negative impacts from exposure if it should occur, are significantly reduced. It is also safer for the environment since it is less likely that product will be over-applied and less likely that there will be a need for disposal of unused product. Finally, it complies with the intent of the rule by significantly reducing the amount of active ingredient being purchased by an unlicensed person.
Statutory Authority for Adoption: RCW 15.58.040 and 17.21.030 and chapter 34.05 RCW.
Statute Being Implemented: RCW 15.58.040 and 17.21.030.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: The Scotts Company, LLC, private.
Name of Agency Personnel Responsible for Drafting and Implementation: Cliff Weed, Olympia, Washington, (360) 902-2036; and Enforcement: Joel Kangiser, Olympia, Washington, (360) 902-2013.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The pesticide management division has analyzed the proposed rule amendment and the costs of compliance and has determined that the proposed rule amendments impose no new costs on WSDA-regulated businesses.
A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).
January 29, 2014
Ted Maxwell
Assistant Director
AMENDATORY SECTION (Amending WSR 07-11-041A, filed 5/9/07, effective 6/9/07)
WAC 16-228-1231 What are 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) All formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba when distributed in counties located east of the crest of the Cascade Mountains except as listed below:
(i) Salt formulations, including amine and sodium, distributed in quantities of one gallon or less;
(ii) Dry formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba labeled and intended only for home and garden use or for turf;
(iii) Ready to use liquid formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba distributed in quantities of five gallons or less. For purposes of this subsection, ready to use means a pesticide that is applied directly from its original container consistent with label directions.
(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 except as provided in subsection (2) of this section.
(2) Pesticides which are not classified as EPA restricted use pesticides and which are labeled and intended only for the following aquatic 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; and
(l) Home and garden control of mosquito larvae.
(3) Pesticides containing the following active ingredients and their isomers are declared state restricted use pesticides for the protection of groundwater except when labeled and intended only for home and garden use((.)):
Atrazine;
Bromacil;
((dcpa)) DCPA;
Disulfoton;
Diuron;
Hexazinone;
Metolachlor;
Metribuzin;
Picloram;
Prometon;
Simazine; and
Tebuthiuron.
(4) Distribution of pesticides bearing combined labeling of uses onto or into water plus nonaquatic 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 records 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 EPA registration number of the pesticide and the amount purchased. Records shall be kept for seven years from the date of distribution.
(5) 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 and positive identification of the authorized agent.
(6) Pesticide dealers must positively identify unknown purchasers of restricted use pesticides. Positive identification may be annually at the time of verification of the certified applicator's license number or for each individual purchase if the applicator is unknown to the dealer. Dealers must verify the identification of unknown purchasers of restricted use pesticides for telephone or electronic purchases either by fax (photo identification) or at the time of delivery.
AMENDATORY SECTION (Amending WSR 07-11-041A, filed 5/9/07, effective 6/9/07)
WAC 16-230-610 What are use restricted herbicides in Eastern Washington?
All formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba except as listed below are use restricted herbicides.
(1) Salt formulations, including amine and sodium, distributed in quantities of one gallon or less;
(2) Dry formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba labeled and intended only for home and garden use or for turf.
(3) Ready-to-use liquid formulations of phenoxy hormone-type herbicides (e.g., 2,4-D, 2,4-DB, 2,4-DP (dichlorprop), MCPA, MCPB, MCPP (mecoprop)) and dicamba distributed in quantities of five gallons or less. For purposes of this subsection, "ready-to-use" means a pesticide that is applied directly from its original container consistent with label directions.