WSR 16-20-070 PROPOSED RULES DEPARTMENT OF AGRICULTURE [Filed October 3, 2016, 1:53 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-13-143.
Title of Rule and Other Identifying Information: Chapter 16-228 WAC, General pesticide rules, the department is proposing to:
1. Establish a new licensing classification that can address various areas of specialty;
2. Move some of the existing specialized licensing classifications that have few licensees into the new specialty classification;
3. Delete the classification of "soil fumigation" since it is obsolete and has been replaced by "soil fumigation RMM"; and
4. Revise the language to increase clarity and readability and to conform with current industry practices.
Hearing Location(s): Washington State Department of Agriculture (WSDA), 21 North First Avenue, Conference Room 238, Yakima, WA 98902, on November 9, 2016, at 1:00 p.m.; and at WSDA, 1111 Washington Street S.E., Conference Room 259, Olympia, WA 98504, on November 10, 2016, at 9:00 a.m.
Date of Intended Adoption: December 1, 2016.
Submit Written Comments to: Henri Gonzales, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by November 10, 2016.
Assistance for Persons with Disabilities: Contact WSDA receptionist by November 2, 2016, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to establish a "limited-specialty" licensing classification. This new classification will cover multiple areas of endorsements where there is only a small number of licensees. The department is proposing to also move some of the existing classifications that have few licensees under the newly established "limited-specialty" classification. In addition, the proposal repeals the "soil fumigation" classification because it is no longer used, the "soil fumigation RMM" classification will remain.
Reasons Supporting Proposal: Licensing classifications are established to ensure individuals applying or overseeing the application of pesticides have the specific knowledge and training they need to safely apply pesticides. WAC 16-228-1545 requires that individuals be certified, through examination, in all pest control classifications in which they operate, inspect, or consult. Multiple classifications of licensing are established, however some individuals operate in specialized or unique areas of pest control for which there is no classification established in rule. The department is proposing to establish a "limited-specialty" licensing classification for pest control operations that, due to the low number of affected licensees, do not warrant a new classification in rule. Certain pest control operations are sometimes so specialized and unique that only a small number of individuals across the state perform the particular pesticide application. While these individuals need to be competent and become certified in their particular area of specialization, it doesn't make sense to create a new licensing classification in rule. Creating a limited-specialty classification would ensure the individual passes an examination specific to their area of specialization. The limited-specialty classification will encompass multiple areas of specialty, each with an exam tailored to the work performed by the applicant. The department is also proposing to move some of the existing specialized licensing classifications that have few licensees into the new limited-specialty classification and repeal the soil fumigation classification because it is no longer used.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: WSDA, governmental.
Name of Agency Personnel Responsible for Drafting: Joel Kangiser, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-2013; Implementation: Robin Schoen-Nessa, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-1963; and Enforcement: Alberto Isiordia, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-2036.
No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030(1) requires that an agency prepare a small business economic impact statement (SBEIS) if the proposed rules will impose more than minor costs on affected businesses or industry. The department has analyzed the economic impact of the proposed rules and has determined that the proposed amendments do not impose more than minor costs on small businesses in the regulated industry. Therefore, a formal SBEIS is not required. Individuals who are already properly licensed under the current rule will not have to pay additional exam costs because they will be grandfathered into one of the new "limited-specialty" categories specific to the work they conduct. Since licensees will be grandfathered in, there are no additional costs to comply with the proposed amendments. Future applicants will take an exam more specific to the work they will be conducting and not an exam that is potentially not applicable to what they will actually be doing.
A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).
October 3, 2016
Brent Barnes
Assistant Director
AMENDATORY SECTION (Amending WSR 13-02-024, filed 12/20/12, effective 1/20/13)
WAC 16-228-1545 What are the pesticide licensing requirements?
(1) All individuals licensed or required to be licensed as commercial pesticide applicators, commercial pesticide operators, private-commercial applicators, demonstration and research applicators, public operators, structural pest inspectors, pest control consultants and public pest control consultants must be certified, through examination, in all pest control classifications defined in subsection (3)(a) ((through (y))) and (b) of this section in which they operate, inspect or consult. Additionally, commercial pesticide applicators must be licensed in all classifications that the business operates. Licensed applicators may directly supervise unlicensed applicators only in those classifications in which they have a valid certification.
(2) To qualify for any pesticide license listed in subsection (1) of this section, applicants, except the structural pest inspector, must pass a "laws and safety" examination or equivalent, that includes, but is not limited to, the following: The state and federal laws governing pesticide use and the regulating agencies; general pesticide uses and application techniques; safe use of pesticides; general pesticide labeling comprehension; environmental fate of pesticides, and appropriate storage and disposal of pesticides and their containers. Individuals holding valid, passing scores on the private applicator or dealer manager exam are exempt from this examination requirement. Structural pest inspectors conducting complete wood destroying organism inspections must pass a "structural pest inspector laws and standards" examination or equivalent that includes, but is not limited to, the legal requirements governing structural pest inspectors and the standards for conducting complete wood destroying organism inspections.
(3) License classifications.
(((a) Agricultural weed: The control of weeds, except with soil fumigants, in all agricultural crops including forest environments, and in former agricultural lands now in a noncrop status.
(b) Rights of way weed: The control of weeds, including cut stumps, on, but not limited to, terrestrial rights of way locations such as roads and/or highways, railroads, power lines and irrigation ditches and to industrial sites, including, but not limited to, airports, industrial parks, and large parking areas.
(c) Turf and ornamental weed: The control of weeds (and moss), including cut stumps, in ornamental and turf situations, which includes, but is not limited to, golf courses, parks, schools, lawns, yards, gardens, hospitals, vacant lots and open noncrop waste areas.
(d) Structural and turf demossing: The control of moss on structures and turf.
(e) Stump treatment: The use of herbicides on cut stumps to control resprouting.
(f) Soil fumigation: The use of soil-applied fumigants on agricultural crops and noncrop land to control pests including weeds, insects and diseases.
(g) Soil fumigation RMM: The use of soil fumigants to control pests including weeds, insects, and diseases. This category addresses risk mitigation measures on soil fumigant labels as a result of EPA's Reregistration Eligibility Decision process.
(h) Sewer root: Control of roots in sewer lines.
(i) Agricultural insect and disease: The control of insects and diseases, except with soil fumigants, in agricultural crops including forest environments.
(j) Ornamental insect and disease: The control of insects and diseases in ornamental, turf and rights of way situations including, but not limited to, golf courses, parks, schools, lawns, yards, gardens, greenhouses, hospitals and rest homes. This includes, but is not limited to, the use of insecticides, miticides, fungicides, bacteriocides, molluscides and nematocides.
(k) Interior plantscaping: The control of insects and diseases in interior plantscapes.
(l) PCO general: The control of insects, spiders, birds, rodents and animal pests in and around, but not limited to, the following situations: Residences, public buildings and grounds, commercial buildings and grounds, disposal sites, animal feed lots and farmsteads, including buildings and transportation equipment.
(m) PCO structural: The control of structurally destructive pests including, but not limited to, fungus, termites, carpenter ants, carpenter bees and wood-boring beetles. This classification allows a licensee to perform specific wood destroying organism inspections.
(n) Structural pest inspector: Allows for the commercial inspection of buildings for structurally destructive pests, their damage and conditions conducive to their development. This classification is required to perform complete wood destroying organism inspections.
(o) Stored grain: The use of pesticides (including fumigants and rodenticides) in grain storing facilities and railcars.
(p) Fumigant: The use of fumigants only (such as methyl bromide and aluminum phosphide) on stored commodities.
(q) Seed treatment: The application of pesticides to seeds to control destructive insects and diseases.
(r) Sprout inhibitor: Use of a pesticide to control sprouting in stored potatoes.
(s) Livestock pest: The control of external and internal pests of animals, with the exception of viruses including, but not limited to, beef cattle, dairy cattle, swine, sheep, horses, goats and poultry, and also treatment of livestock premises.
(t) Pest animal: The control of pest animals in agricultural situations.
(u) Aquatic: The control of aquatic pests in water areas including, but not limited to, canals, rivers, streams, lakes, ponds, marshes and pipe lines.
(v) Aquatic irrigation: Limited to the control of aquatic pests in irrigation district water delivery systems where the pesticide is applied directly into the water or enters the water due to the application of the pesticide. Pests include, but are not limited to, moss, algae, cattails, pond weeds and other emersed and submersed aquatic weeds.
(w) Public health: Application of pesticides by governmental employees and certain others in public health programs such as, but not limited to, mosquito control, rodent control and insect control in situations having medical and public health importance.
(x) Aquatic antifouling: Use of antifouling paints to control fouling organisms on marine vessels.
(y) Wood treatment: Use of wood preservatives for the control of wood damaging pests.)) (a)(i) Aquatic: The control of aquatic pests in water areas including, but not limited to, canals, rivers, streams, lakes, ponds, marshes and pipe lines.
(ii) Aquatic irrigation: Limited to the control of aquatic pests in irrigation district water delivery systems where the pesticide is applied directly into the water or enters the water due to the application of the pesticide. Pests include, but are not limited to, moss, algae, cattails, pond weeds and other emersed and submersed aquatic weeds.
(iii) Insect and disease - Agricultural: The control of insects and diseases, except with soil fumigants, in agricultural crops including forest environments.
(iv) Insect and disease - Ornamental: The control of insects and diseases in ornamental, turf and rights of way situations including, but not limited to, golf courses, parks, schools, lawns, yards, gardens, greenhouses, hospitals and rest homes. This includes, but is not limited to, the use of insecticides, miticides, fungicides, bacteriocides, molluscides and nematocides.
(v) Pest animal: The control of pest animals in agricultural situations.
(vi) Pest control operator (PCO) - General: The control of in-sects, spiders, birds, rodents and animal pests in and around, but not limited to, the following situations: Residences, public buildings and grounds, commercial buildings and grounds, disposal sites, animal feed lots and farmsteads, including buildings and transportation equipment.
(vii) Pest control operator (PCO) - Structural: The control of structurally destructive pests including, but not limited to, fungus, termites, carpenter ants, carpenter bees and wood-boring beetles. This classification allows a licensee to perform specific wood destroying organism inspections.
(viii) Public health: Application of pesticides by governmental employees and certain others in public health programs such as, but not limited to, mosquito control, rodent control and insect control in situations having medical and public health importance.
(ix) Seed treatment: The application of pesticides to seeds to control destructive insects and diseases.
(x) Soil fumigation - Risk mitigation measures (RMM): The use of soil fumigants to control pests including weeds, insects, and diseases. This category addresses risk mitigation measures on soil fumigant labels as a result of EPA's reregistration eligibility decision process.
(xi) Stored grain: The use of pesticides (including fumigants and rodenticides) in grain storing facilities and railcars.
(xii) Structural pest inspector: Allows for the commercial inspection of buildings for structurally destructive pests, their damage and conditions conducive to their development. This classification is required to perform complete wood destroying organism inspections.
(xiii) Stump treatment: The use of herbicides on cut stumps to control resprouting.
(xiv) Weeds - Agricultural: The control of weeds, except with soil fumigants, in all agricultural crops including forest environments, and in former agricultural lands now in a noncrop status.
(xv) Weeds - Rights of way: The control of weeds, including cut stumps on, but not limited to, terrestrial rights of way locations such as roads and/or highways, railroads, power lines and irrigation ditches and to industrial sites including, but not limited to, airports, industrial parks, and large parking areas.
(xvi) Weeds - Turf and ornamental: The control of weeds (and moss), including cut stumps, in ornamental and turf situations, which includes, but is not limited to, golf courses, parks, schools, lawns, yards, gardens, hospitals, vacant lots and open noncrop waste areas.
(b) Limited-specialty: Pest control classification made available by the department for certain pest control activities not included in one of the defined license classifications specified in (a) of this subsection. The department may maintain a list of currently available limited-specialty subclassifications on the department web site. The department at its discretion may, by rule, recategorize a limited-specialty subclassification under (b) of this subsection as a license classification under (a) of this subsection.
(4) All examinations required under this section shall be written and taken without the aid of any materials that contain information relevant to the exam content. Reading of exams by an individual other than the applicant is not permitted.
(5) A passing score of seventy percent is established for all the examinations required under this section. The department may establish separate passing scores for the examinations if a validated process is used. Passing scores are valid for obtaining a license in the calendar year in which the examination is taken plus the following calendar year.
(6) The department may waive any of the examination requirements contained in this section for any person holding a valid certification with similar classifications from an EPA or Canadian approved federal, state or provincial certification program with comparable examination and recertification standards.
AMENDATORY SECTION (Amending WSR 14-24-031, filed 11/21/14, effective 12/22/14)
WAC 16-228-1546 What are the requirements for a private applicator license?
(1) To qualify for a private applicator license, an individual must pass a private applicator examination. The examination shall be written and taken without the aid of any materials that contain information relevant to the exam content. Reading of exams by an individual other than the applicant is not permitted. Individuals holding valid, passing scores on the laws and safety examination, or equivalent, or the dealer manager exam, and one of the classifications in WAC 16-228-1545 (3)(a) ((or (i))) (iii) or (xiv) or the now retired statewide classification, are exempt from this examination requirement.
(2) Private applicators making aquatic applications to water that moves off their own or their employer's agricultural land must obtain the aquatic classification described in WAC 16-228-1545 (3)(((u))) (a)(i). Private applicators applying soil fumigants may obtain the soil fumigation classification described in WAC 16-228-1545 (3)(((g))) (a)(x) as an option to meet label required active ingredient training.
(3) A passing score of seventy percent is established for the examinations required under this section. The department may establish separate passing scores for the examinations if a validated process is used. Passing scores are valid for obtaining a license in the calendar year in which the examination is taken plus the following calendar year.
(4) The department may waive the examination requirements contained in this section for any person holding a valid certification with similar classifications from an EPA or Canadian approved federal, state or provincial certification program with comparable examination and recertification standards.
AMENDATORY SECTION (Amending WSR 02-24-025, filed 11/27/02, effective 12/28/02)
WAC 16-228-2050 Specific wood destroying organism inspections.
(1) Specific WDO inspections must only be conducted by individuals licensed in the ((category E ()) classification of pest control operator structural(() or PI ()) specified in WAC 16-228-1545 (3)(a)(vii) or structural pest inspector(())) specified in WAC 16-228-1545 (3)(a)(xiii). Such inspections will be conducted in accordance with the rules established by this section.
(2) A specific WDO inspection must be conducted in conjunction with any proposal or estimate for prevention or control of WDOs.
(3) When no evidence of infestation is observed and any proposed treatment is for preventative purposes only, a statement explaining such a situation must stand out by having larger print than the main body of the report, be highlighted, underlined, or be in bold print and be signed by the property owner or their designated representative.
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