WSR 98-19-128
PROPOSED RULES
DEPARTMENT OF AGRICULTURE
[Filed September 28, 1998, 11:02 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 98-12-078.
Title of Rule: Chapter 16-200 WAC, Rules relating to feeds, fertilizers and livestock remedies.
Purpose: To describe requirements for registration for commercial fertilizers; including the methods to use for total metals analysis and specifying the metals information which must be submitted with the registration application; to describe the methods for determining maximum use rates for plant nutrients; to set the Washington application rates; to express the Washington standards for metals in pounds per acre per year; to describe how the department will determine if a commercial fertilizer meets or exceeds the metals standards; and to describe a violation of the rules.
Statutory Authority for Adoption: Chapter 15.54 RCW.
Statute Being Implemented: Chapter 15.54 RCW.
Summary: The proposed rules adopt methods for total metals analysis and reporting which will enable the fertilizer industry to analyze their products for nine metals as required by chapter 15.54 RCW. The proposed rules also set Washington application rates and Washington standards for metals in pounds per acre per year.
Reasons Supporting Proposal: The proposed rules set Washington standards for metals in fertilizer as required by recent amendments to chapter 15.54 RCW. The standards will enable the industry and the department to determine if a commercial fertilizer meets or exceeds the Washington standards.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Ted Maxwell, 1111 Washington Street, Olympia, WA 98504, (360) 902-2026.
Name of Proponent: Washington State Department of Agriculture, governmental.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: These rules are required for the department to implement the new fertilizer law adopted in SSB 6474 by the 1998 legislature.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The 1998 legislature passed SSB 6474 which amends chapter 15.54 RCW, the commercial fertilizer registration law, and adopts standards for maximum acceptable cumulative metals additions to soil. This new law requires persons who register commercial fertilizers in Washington to disclose the levels of nine metals which may be present in a commercial fertilizer. These rules adopt the methods for total metals analysis and reporting which will guide the fertilizer industry on total metals analysis for their fertilizer products. The rules also set the Washington application rates and express the Washington standards for metals in pounds per acre per year to enable the industry and the department to determine if a commercial fertilizer meets or exceeds the Washington standards for metals.
Proposal Changes the Following Existing Rules: The proposed rule amendment adds definitions, describes the analysis methods which must be used, sets the Washington application rates, provides a reference to the Washington standards for metals, describes requirements for registration of commercial fertilizers including information which must be submitted as part of the registration application, and describes acts which are unlawful under this chapter.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
Executive Summary
Overview of Analysis: This study analyzes the compliance costs associated with a proposed permanent rule that would require additional registration procedures for commercial fertilizer products, and estimates whether the revised rule would place a disproportionate economic burden on Washington small businesses. The purpose of this analysis is to comply with state legislative requirements that each prospective rule be evaluated in order to minimize potential differential impacts on small business, and that economic aspects of all agency rules be evaluated prior to promulgation.
Analysis Results: As shown in Table 3 of the report, the compliance cost for a representative small business over the analysis period is estimated to be approximately $800 per employee. The compliance cost for a large business over the same time period is estimated to be $960 per employee. Therefore, the compliance cost burden, from rule revisions, is greater for a large business than for a small business, and no disproportionate compliance burden exists for small businesses. These results arise primarily from small versus large business variations in the number of products registered, hourly labor rates, and testing frequency.
Mitigation: As indicated above, the proposed rule revisions are not anticipated to result in a disproportionate compliance cost burden for small Washington businesses required to register fertilizer products with WSDA. As a result, mitigating measures are not required to reduce impacts on small businesses affected by the rule revisions. Despite this finding, a number of mitigation measures have already been included in the proposed rule revisions.
One way that the proposed rule revisions mitigate compliance cost impacts is by allowing for multiple methods to test for metals compliance. The proposed rule revisions contain three different, commonly used, types of analysis methods.1 In addition to these measures, the revised rule also allows for other testing methods, with prior WSDA approval (WAC 16-200-7062).
1The proposed rule revisions provide a total of eighteen possible tests, within three broad categories of analysis methods.
A second mitigation measure is that a registrant, in his/her original application under the proposed rule revisions, may submit a single analysis to register each product. Requiring only a single analysis result per registered product, rather than requiring several or multiple analyses, reduces the compliance cost burden by at least half for both small and large businesses affected by the proposed rule revisions.
As the final mitigation measure, WSDA is not requiring a regular retesting schedule for future product registration renewals. Allowing businesses to determine their own retesting frequency, permits smaller businesses to retest less frequently (e.g., only when reformulating a product). This mitigation contributes substantially to the overall lack of disproportionate compliance burden on small businesses.
I. Proposed Rule Revisions
This study analyzes the compliance costs associated with a proposed permanent rule that would require additional registration procedures for commercial fertilizer products, and estimates whether the revised rule would place a disproportionate economic burden on Washington small businesses. The purpose of this analysis is to comply with state legislative requirements that each prospective rule be evaluated in order to minimize potential differential impacts on small business, and that economic aspects of all agency rules be evaluated prior to promulgation. The analysis also identifies mitigation measures that have been embodied in the revised rule to lessen the financial burden of the rule revisions on affected parties.
A. Regulatory Context
Regulatory Fairness Act: The purpose of this study, requested by the Washington State Department of Agriculture (WSDA), is to ensure that the proposed revisions to chapter 16-200 WAC comply with the Regulatory Fairness Act (chapter 19.85 RCW). The Regulatory Fairness Act (RFA) requires that rules promulgated by state agencies under the Administrative Procedure Act be examined for their impact on small businesses (fifty or fewer employees). The purpose of the RFA is to ensure that proposed rules do not place a disproportionate burden on small businesses relative to the burden they place on large businesses. RFA compliance analysis must be documented in a small business economic impact statement (SBEIS). This SBEIS documents the analysis and results for proposed revisions to chapter 16-200 WAC. Appendix A contains additional discussion of RFA requirements.
Economic Policy Act: The Economic Policy Act (chapter 43.21H RCW) requires all state agencies and local government entities to ensure economic values are given "appropriate consideration" in development of rules. Under the Economic Policy Act, "economic values" can be interpreted to include impacts associated with employment, income, production, growth, development, and similar attributes. While the Economic Policy Act does not require that proposed rules be modified to lessen economic effects, the effects must be considered during the rule-making process. To the extent that economic impacts of the rule revisions are the focus of this analysis, and to the extent that WSDA has conducted extensive interaction with affected industries through a variety of forums (see Appendix A for a summary of industry interaction), economic values have been given appropriate consideration in the rule-making process for chapter 16-200 WAC.
B. Summary of Rule Revisions
Chapter 15.54 RCW grants the Washington State Department of Agriculture (WSDA) authority to regulate the distribution and sale of fertilizers in Washington. During the 1998 legislative session, Substitute Senate Bill 6474 was introduced to amend this statute, and was subsequently passed by the legislature. A portion of the amended statute now establishes maximum allowable levels of nonnutritive substances in commercial fertilizers (RCW 15.54.800 (3)(a)). These standards focus on regulating nine heavy metals2 and are based upon Canadian maximum cumulative metals additions to soil established under Trade Memorandum T-4-93 (August, 1996).
2These metals are: Arsenic, cadmium, cobalt, mercury, molybdenum, lead, nickel, selenium, and zinc.
The WSDA has proposed rule revisions to implement the new
requirements of RCW 15.54.800 (3)(a). Rule revisions were
adopted on an emergency basis in June of this year; permanent
rule adoption is now being pursued. Table 1 shows major changes
between the previously enacted version of the rule (prior to
emergency rule adoptions) and the revised rule that is evaluated
in this analysis.
Major Proposed Revisions to chapter 16-200 WAC C. Potentially Affected Industries Compliance costs could be incurred by a variety of
industries as a result of the proposed rule revisions. Primary
impacts would be borne by companies that register fertilizer
products - generally producers and wholesalers of commercial
fertilizers. These businesses are engaged in the production of
fertilizers and/or fertilizer components, mix fertilizer
components to produce fertilizer blends, or wholesale fertilizer
products to retailers. Fertilizer producers and wholesalers are generally
categorized in Standard Industrial Classification (SICs) codes
2873, 2874, 2875, and 5191. Potentially affected businesses
account for the majority of establishments in the 2800-series SIC
industries, and a smaller subset of businesses in SIC 5191.
According to Washington State Employment Security Department
data, there are approximately 360 business establishments in
these SIC classifications within Washington.3 3Consistent with other employment-related information provided by Employment Security, these businesses include those with employment
covered by unemployment compensation programs. Consistent with intent of the RFA, only Washington businesses are reported and analyzed in
this study. Of these 360 business establishments, approximately 272 are
registered with the WSDA as producers and wholesalers of
commercial fertilizer products within Washington. For these
businesses, potential compliance cost burdens created by rule
revisions could include additional administrative time,
laboratory testing, supplies, etc. (compliance costs are
discussed in detail in section III. of this SBEIS). Other
industry characteristics are shown below in Table 2. Select Industry Characteristics In addition to industries that may bear primary impacts of
rule revisions, a number of related industries may also be
indirectly affected (see Appendix B for full industry list).
These businesses include companies that mine and process raw
materials for fertilizers (e.g., potash mining and milling,
phosphate rock mining), that sell fertilizer products to
consumers (e.g., lawn and garden stores, hardware stores), that
use commercial fertilizers in the provision of their services
(e.g., soil preparation services, tree services), or that are
indirectly related to some other aspect of commercial fertilizer
production. It should be noted that "industry" within the context of the
Regulatory Fairness Act denotes businesses within a four-digit
SIC code (or three digit SIC code if confidentiality laws would
be violated with release of data). However, to meet the intent
of the Regulatory Fairness Act and to be consistent with past
guidance received from CTED's (Washington Department of
Community, Trade and Economic Development) Business Assistance
Center on prior SBEISs, a subset of these four-digit industries
was evaluated through surveying. Therefore, the combination of
four-digit Employment Security data and sub-four-digit SIC survey
data used in this analysis goes beyond the strict requirements of
the Regulatory Fairness Act and includes a greater degree of
industry specificity than required in the statute.4 For
discussion purposes, these greater-than-four-digit SIC groups are
still referred to as affected "industries" in this analysis. 4A subset of a four-digit SIC is effectively an SIC classification greater than four-digit. To illustrate, wholesale fertilizer distributors are
classified in SIC 5191 - Farm Supplies. While this four-digit industry classification includes wholesale fertilizer distributors, it also includes
wholesalers of alfalfa, flower bulbs, pesticides, and hay. In this case, wholesale fertilizer distributors were chosen as the relevant industry
subgroup to analyze. Similar industries subgroups were identified for other potentially affected industries. II. Approach to Estimating Differential Economic Impacts on
Small Versus Large Businesses The WSDA determined that an analysis of compliance costs
should be conducted for the proposed rule revisions and
documented in an SBEIS, consistent with chapter 19.85 RCW. An
SBEIS analysis was performed for the rule revisions and is
described below. A. Likely Industry Response to Proposed Rule The first step was to anticipate how affected industries
would respond to the rule revisions. Figure 1 illustrates
anticipated business responses to the rule revisions. This
compliance scenario was identified based upon information
provided by the WSDA and surveyed businesses potentially affected
by the rule revisions. As this figure shows, the first action
undertaken by a business will likely be to learn more about the
rule revisions, such as whether the rule revisions apply to its
products and what actions would need to be taken to comply.
Assuming that a business needs to comply with the rule revisions,
the next step in the compliance process requires locating a
laboratory to test product samples, followed by collecting
samples, and sending them out for testing. The final step is to
complete the certification form and submit the completed form to
WSDA. B. Data from Small and Large Businesses in Affected
Industries Once affected industries were identified and their
anticipated responses to the rule revisions were estimated, data
were gathered to estimate impacts. Data were provided through
three primary sources: WSDA, Washington State Employment
Security Department, and affected businesses that were surveyed.
WSDA provided a variety of information, including the number of
registered products by regulated business. Employment Security
provided employment information by business within the designated
SIC codes. In addition to these data sources, potentially affected
businesses were surveyed. A total of thirty-seven industry firms
were contacted for information; nineteen of these businesses
provided information that could be used to estimate compliance
costs. This sampling of businesses included small and large
businesses, located throughout Washington, likely to be affected
by the proposed rule revisions. It is noteworthy that industry
participants often provided relatively similar information in
response to survey questions. The relative uniformity in certain
responses may suggest that a degree of confidence could be
inferred from the responses that would normally be reserved for
much larger sample sizes. However, given the relatively small
number of surveyed businesses, survey data were combined with
data from WSDA and Employment Security to estimate impacts.
Combining data yielded a total of forty-three discrete "data
points" in the database used for compliance cost evaluation. C. Differential Regulatory Compliance Cost for Small Versus
Large Businesses To differentiate between impacts on small versus large
businesses, regulatory compliance costs were evaluated for
"typical" small firms and the largest firms within each of the
affected industries. These costs were then divided by the number
of employees that a typical large and small firm would employ.
Comparison of regulatory compliance cost per employee for small
and large businesses was then used to determine whether a
disproportionate economic burden would exist for small businesses
and to estimate the magnitude of any disproportionate burden.
Table 1
Requires submitting additional fertilizer registration
information associated with laboratory analysis for
the nine regulated metals (WAC 16-200-7061).
Specifies acceptable laboratory methods for
analyzing total metals content in fertilizers, and
allows for other analysis methods with prior WSDA
approval (WAC 16-200-7062).
Establishes Washington application rates for
commercial fertilizers, to be used in the absence of
specific application directions provided on fertilizer
labeling (WAC 16-200-7063).
Expresses the maximum acceptable annual metals
additions to soils for the nine regulated metals in a
more easily readable format than the underlying
statute. It also allows for higher levels of cobalt,
molybdenum, and zinc if they are guaranteed as
plant nutrients (WAC 16-200-7064).
Table 2
Most firms hire full-time employees (i.e., total
number of employment positions is similar to
number of full-time-equivalent employees).
The size of businesses varies from sole proprietors
with one employee, to large firms with hundreds of
employees located in Washington.
Many businesses regularly test their products for
quality control purposes, particularly larger fertilizer
manufacturers, although few tested for the nine
metals prior to the emergency rule.
III. Analysis ResultsPlace illustration here.
A. Overview
Over the analysis period, the proposed rule revisions are not anticipated to have a disproportionate economic impact on small businesses in affected industries.5 As Table 3 shows, cost impacts of proposed rule revisions are estimated to vary for small and large firms depending upon year of analysis. However, when evaluated over a representative analysis period, disproportionate compliance cost impacts are not anticipated to occur for small businesses. Results for small and large businesses are discussed in more detail below, and a discussion of analysis methodology and assumptions is contained in Appendix A.
5The analysis period for the study was chosen to be ten years. This timeframe was used because compliance costs would be borne by regulated businesses on an ongoing, long-term basis.
As Table 3 shows, a variety of compliance costs will be borne by affected businesses. The greatest compliance costs are generally associated with completing new metals certification paperwork. The other substantial compliance cost for most businesses would be related to the cost of laboratory testing (see Table 3). Surveyed businesses indicated that professional services of legal counsel/consultants and laboratories could be required to comply with the rule revisions (these costs are included in Table 3 calculations). Compliance with these rule revisions are not likely to cause a substantive loss of sales revenues for large or small businesses.
B. Disproportionate Economic Burden Evaluation
As shown in Table 3, the compliance cost for a representative small business over the analysis period is estimated to be approximately $800 per employee. The compliance cost for a large business over the same time period is estimated to be $960 per employee. Therefore, the compliance cost burden is greater for a large business than for a small business from rule revisions, and no disproportionate compliance burden exists for small businesses.
A number of compliance costs vary for small and large businesses and lead to the aforementioned result of no disproportionate compliance cost burden for small businesses. These variations are primarily related to differences in three factors: The number of products registered, hourly labor rates, and testing frequency for small versus large businesses. Data analysis showed that it was generally true that larger businesses registered more fertilizer products with WSDA than smaller businesses. This relationship was approximated by identifying the average number of registered products and employees for each size business.6 A representative small business was determined to have approximately sixteen employees and seven registered fertilizer products, and a representative large business7 was determined to have three hundred thirty-seven employees and approximately thirty-three registered fertilizer products. These representative small and large business profiles were used to estimate impacts shown in Table 3.
6Linear and polynomial regression analysis was conducted to identify the relationship between employment and number of registered products, but did not produce statistically significant results.
7Top ten percent largest affected businesses, consistent with the RFA requirements.
| Place illustration here. |
Hourly labor rates also varied for small versus large businesses potentially affected by the rule revisions. The average hourly labor rate for a small business was found to be approximately $32 per hour; the comparable labor rate for a large business was found to be approximately $80 per hour.8 One reason for this labor cost differential could be attributed to greater overhead costs for larger companies, or it could arise from differences in employee compensation.
8Hourly labor rates generally included wages, benefits, and other labor-related costs.
The final difference that contributed to compliance cost differentials was associated with laboratory testing frequency. Discussions with industry businesses indicated that smaller business would generally retest9 for metals when a fertilizer product would change inputs. However, large firms were found to already test products on a relatively frequent basis (e.g., monthly, quarterly) and indicated that the required metals testing would simply be added to the testing procedures already established. For these reasons, small businesses were assumed to retest each product an average of every two years, and large businesses were assumed to test products quarterly after the initial compliance test.
9"Retesting" denotes testing after the first metals compliance test conducted in 1998.
As Table 3 illustrates, the compliance cost per employee would be greater in 1998 for small businesses than for large businesses. This would be primarily due to the aforementioned relationship between the size of affected businesses and the number of registered products. However, in latter years the compliance burdens would be reversed as a result of the more frequent testing undertaken by larger firms. Given these year-by-year compliance cost variations and the long-term nature of the rule revisions, compliance costs were evaluated over a ten-year period to provide an appropriate basis for comparison. Table 3 shows that when compliance costs are evaluated over the ten-year analysis period, compliance costs are greater for large businesses than for small businesses, and no disproportionate compliance burden is expected to exist for small businesses from proposed rule revisions.
IV. Mitigation
As the above analysis demonstrates, the proposed rule revisions are not anticipated to result in a disproportionate compliance cost burden for small Washington businesses required to register fertilizer products with WSDA. As a result, mitigating measures are not required to reduce impacts on small businesses affected by the rule revisions. Despite this finding, a number of mitigation measures have already been included in the proposed rule revisions.
One way that the proposed rule revisions mitigate compliance cost impacts is by allowing for multiple methods to test for metals compliance. The proposed rule revisions contain three different, commonly used, types of analysis methods.10 In addition to these measures, the revised rule also allows for other testing methods, with prior WSDA approval (WAC 16-200-7062).
10The proposed rule revisions provide a total of 18 possible tests, within three broad categories of analysis methods.
A second mitigation measure is that a registrant, in his/her original application under the proposed rule revisions, may submit a single analysis to register each product. Requiring only a single analysis result per registered product, rather than requiring several or multiple analyses, reduces the compliance cost burden by at least half for both small and large businesses affected by the proposed rule revisions.
As the final mitigation measure, WSDA is not requiring a regular retesting schedule for future product registration renewals. Allowing businesses to determine their own retesting frequency, permits smaller businesses to retest less frequently (e.g., only when reformulating a product). This mitigation contributes substantially to the overall lack of disproportionate compliance burden on small businesses.
Appendix A: Background Information and Assumptions
Regulatory Fairness Act: The Regulatory Fairness Act (RFA) (chapter 19.85 RCW) requires that rules promulgated by state agencies under the Administrative Procedure Act be examined for their impact on small businesses. The purpose of the Regulatory Fairness Act is to ensure that proposed rules do not place a disproportionally high burden on small businesses, relative to the burden they place on large businesses.a A small business is defined by the RFA as an independent, for-profit Washington business entity with fifty or fewer employees.b
aNote that the purpose of the Regulatory Fairness Act is not to ensure that a proposed rule does not place any burden on industry, but rather, focuses on whether the burden is disproportionate with regard to its magnitude.
bRCW 19.85.020(1).
The RFA requires all rules that impose "more than minor costs" on industry businesses to be evaluated and, if necessary, altered to minimize their impact on small business. An analysis of compliance costs must be completed and documented in a small business economic impact statement (SBEIS) if: (1) A proposed rule meets or exceeds this "more than minor" criterion, or if (2) the Joint Administrative Rules Review Committee (JARRC) requests an SBEIS for a proposed rule. A state agency may independently decide to complete an SBEIS. This SBEIS was independently requested by the Washington State Department of Agriculture, although it is possible that the "more than minor" criterion may also be applicable for certain industries analyzed in this SBEIS.
The RFA establishes specific analyses and necessary elements for inclusion in an SBEIS. Among other requirements, the SBEIS must include a brief description of the compliance requirements of the rule, a description of the professional services needed by small businesses to comply with the rule, an analysis of the compliance cost for small business, and a comparison of the compliance cost for small and large businesses. A basis of comparison must be chosen from: Cost per employee, cost per hour of labor, cost per $100 of sales, or any combination of these three measures.
Based upon the extent any disproportionate impact is anticipated to occur for small businesses from the proposed rule, the agency must reduce the costs on small businesses (where legal and feasible in meeting the stated objective of the statutes upon which the rule is based). Mitigation can be accomplished in a number of ways, such as establishing differing compliance or reporting requirements for small businesses, clarifying or simplifying the compliance requirements for small businesses, delaying compliance timetables, exempting small businesses from any or all of the rule requirements, or similar measures.
Conservative Approach: The analysis undertaken to estimate compliance cost impacts was generally "conservative" in its approach. Assumptions were typically chosen that would result in showing greater compliance cost impacts for affected industries. Using this approach provided an additional degree of certainty that estimated compliance costs would generally be no greater than estimated in the analysis. Specific assumptions implementing this conservative approach included (but were not limited to):
Using average laboratory testing cost estimates, as opposed to using the lowest cost laboratory testing estimates (affected businesses would likely choose the lowest cost testing approach allowable by the proposed rule revisions).
Including "between year" testing costs for small businesses, even though testing was anticipated to only take place every other year (i.e., counting half of testing costs each year, as opposed to counting only full testing costs every other year).
Timing: Affected industries will initially need to test and certify to WSDA that their products meet the new metals application standards. This initial compliance cycle is occurring under the emergency rule during the summer of 1998. Thereafter, no specific timetable is required for retesting, but would presumably be driven by the frequency of product reformulation, switching of suppliers that provide raw fertilizer materials (assuming they have not already registered their inputs with WSDA), related types of product testing, and other changes to product composition. The analysis estimated costs separately for small and large businesses for both the initial compliance year (1998) and for nine subsequent "retesting" years.
Public and Industry Involvement: Potentially affected businesses, including small businesses, were involved throughout the rule-making process. Small businesses were involved through participating in and providing input on the Governor's Fertilizer Advisory Workgroup, serving as members of or sitting in on Fertilizer Advisory Board Meetings, and by providing survey input for this SBEIS. In addition to these efforts to actively involve small businesses, a number of other forums provided opportunities for businesses of all sizes to provide input, as described below.
Affected businesses had the opportunity to testify at all legislative hearings.
Businesses were given the opportunity to attend a meeting for the affected fertilizer industry, where WSDA explained the new laws and proposed rules (May 18, 1998 at Sea-Tac approximately 100 people attended, at least 50% were Washington businesses).
All registrants and licensees (affected businesses) received a mailing containing the emergency rules and a memo requesting their comments.
A number of businesses continued to have significant ongoing input by being members of the Fertilizer Advisory Board.
Industry representatives helped develop the Washington Application Rates portion of the proposed rule revisions at two separate meetings with WSDA's Program Manager, Ted Maxwell.
Laboratory representatives supplied WSDA with information to identify appropriate metals testing methodologies.
WSDA sent additional mailings asking specifically for comment on the methodology and Washington Application Rates portion of the proposed rules to: The Governor's Fertilizer Workgroup; the Advisory Board; Organic Growers; other laboratories; and university researchers.
All registrants will be notified of the proposed final rule and will have the opportunity to comment on the rule in writing and/or at the public hearing.
In addition to the above opportunities for industry input, potentially affected industries were also directly surveyed to assess the likelihood and magnitude of compliance cost impacts. Survey participants were selected from two sources: Fertilizer Advisory Board membership, and a random sampling of businesses taken from WSDA's database of registrants and licensees. A total of 37 potentially affected industry firms (including fertilizer producers, wholesalers, retailers, etc.) were originally contacted for information, and 19 of these firms provided usable information. This sampling of businesses included small and large businesses likely to be affected by the proposed rule revisions, and covered businesses geographically dispersed throughout Washington.
Data Characteristics: As noted in the body of the SBEIS, data used to estimate compliance costs for affected businesses came from three primary sources: WSDA, Washington State Employment Security Department (ESD), and affected businesses that were surveyed. Together, these sources provided 43 observations for individual businesses. Relevant data characteristics are listed below. SICs and their frequency of occurrence in the 43 observations were: 0711(1); 2875(3); 2879(2); 3274(1); 5191(26); 5193(3); 5261(3), and 4 observations with unspecified SICs. The SIC emphasis in the sample data approximated the expected degree of impact as shown in Appendix B (i.e., greater representation for industries more directly affected).
When data were identified both through surveying and ESD/WSDA data sets, they were cross-checked for consistency. Review of cross-checked observations confirmed that the base data were very similar and were likely to be relatively reliable.
Survey data were generally provided by businesses after complying with the emergency rule requiring testing and submission of metals analysis with their fertilizer registration application to meet the proposed metal standards. As a result, most costs were actually incurred, as opposed to estimated without actual experience complying with rule requirements.
Appendix B: SIC Codes for Fertilizer-Related Industries
List of Potentially Affected Industries
.*Levels refer to degree of likely indirect impact from proposed
rule revisions (1 .= greatest impact). Direct impacts would be
expected to be greater than any level of indirect impacts. Appendix C: Glossary of Abbreviations
A copy of the statement may be obtained by writing to Laurie
Mauerman, Washington State Department of Agriculture, P.O. Box
42560, Olympia, WA 98504-2560, phone (360) 902-2012, fax (360)
902-2093. Section 201, chapter 403, Laws of 1995, does not apply to
this rule adoption. Hearing Location: On November 10, 1998, at 7:00 p.m., at
the Washington Interactive Technologies, 710 Sleater-Kinney Road
S.E., Suite Q, Lacey, WA 98503; at the Washington Interactive
Technologies, 1500 Harvard, Seattle, WA 98122; and at the
Educational Service District, 2500 N.E. 65th Avenue, Vancouver,
WA 98661-6812. On November 12, 1998, at 7:00 p.m., at the Washington
Interactive Technologies, 8551 West Gage Boulevard, Suite H,
Kennewick, WA 99336; at the Washington Interactive Technologies,
North 1101 Argonne, Suite 109, Spokane, WA 99201; and at the
Washington Interactive Technologies, Yesterday's Village, 15 West
Yakima Avenue, Suite 220, Yakima, WA 98902. Assistance for Persons with Disabilities: Contact Cathy
Jensen by November 6, 1998, TDD (360) 902-1996. Submit Written Comments to: Laurie Mauerman, Washington
Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2093, by November 13, 1998. Date of Intended Adoption: December 10, 1998. September 23, 1998 Bob Arrington Assistant Director AMENDATORY SECTION (Amending Order 2066, filed 12/7/90, effective
1/7/91) WAC 16-200-695 Definitions. The definitions set forth in
this section shall apply throughout this chapter unless context
otherwise requires: (1) "Organic" means a material containing carbon and one or
more elements (other than hydrogen and oxygen) essential for
plant growth. When the term "organic" is utilized in the label
or labeling of any commercial fertilizer, it shall be qualified
as either "synthetic organic" or "natural organic," with the
percentage of each specified. (2) "Natural organic" means a material derived from either
plant or animal products containing carbon and one or more
elements (other than hydrogen and oxygen) essential for plant
growth. (3) "Synthetic organic" means a material that is
manufactured chemically (by synthesis) from its elements and
other chemicals, containing carbon and one or more elements
(other than hydrogen and oxygen) essential for plant growth. (4) "Unit" means one percent (by weight) of a ton. (5) "AOAC" means the association of official analytical
chemists. (6) "Commercial fertilizer" means (( (7) "Fertigation" means a method of applying commercial
fertilizers with irrigation water to fertilize land or plants. (8) "Fertilizer component" means a commercial fertilizer
ingredient containing one or more recognized plant nutrients
which is incorporated in the commercial fertilizer for its plant
nutrient value. (9) "Maximum acceptable cumulative metals additions to soil"
means the amount of total metals that can be added to soil over a
forty-five-year period of time without exceeding the Canadian
standards which have been adopted in RCW 15.54.800(3) as
Washington standards for metals. [Statutory Authority: RCW 15.54.800. 91-01-015 (Order 2066), §
16-200-695, filed 12/7/90, effective 1/7/91. Statutory
Authority: Chapter 15.54 RCW. 87-19-097 (Order 1952), § 16-200-695, filed 9/17/87.] AMENDATORY SECTION (Amending Order 2066, filed 12/7/90, effective
1/7/91) WAC 16-200-705 Purpose. The following sections concerning
the protection of ground water, labeling requirements and
examination of fertilizer minerals and limes (WAC 16-200-708
through 16-200-742) are established in this chapter under the
authority of the Commercial Fertilizer Act, chapter 15.54 RCW. This chapter also describes the requirements for
registration of commercial fertilizers, including the information
which must be submitted as part of the registration application,
the analysis methods which must be used, the maximum use rates
the department will use to determine whether a commercial
fertilizer may be registered, the Washington standards for metals
(in pounds per acre per year), and the acts which are unlawful
under this chapter. [Statutory Authority: RCW 15.54.800. 91-01-015 (Order 2066), §
16-200-705, filed 12/7/90, effective 1/7/91. Statutory
Authority: Chapter 15.54 RCW. 87-19-097 (Order 1952), § 16-200-705, filed 9/17/87.] NEW SECTION WAC 16-200-7061 What information must I include with my
registration application concerning total metals? (1) You are
required to submit the following metals information with your
registration application: (a) Total concentration of each metal in each commercial
fertilizer reported in parts per million (PPM) which is
equivalent to milligrams of metal per kilogram of fertilizer
(mg/kg), or micrograms per gram; (b) Copy of the laboratory report on total metals analysis; (c) Method of analysis; (d) Method of sample preparation; and (e) Minimum detection limits for each method used. (2) The department may request quality assurance and quality
control documentation for analytical procedures and/or for the
laboratory which performed the analyses. (3) The analytical data and maximum application rate will be
used to determine if a commercial fertilizer meets or exceeds the
Washington standards for metals. [] NEW SECTION WAC 16-200-7062 What method must I use to analyze the total
metals contained in my commercial fertilizer? (1) You must
prepare and analyze your commercial fertilizer for the total
concentration of each of the following nine metals in each
commercial fertilizer using one or more of the EPA methods listed
in Table 1. All methods are described in the U.S. Environmental
Protection Agency's SW-846, Third Edition. Table 1. Acceptable Analysis Methods for Metals Contained in
SW-846, Third Edition.
SIC
Industry/SIC Category
Potentially Affected Industry Component
Industry Level Direct Impacts 2873
Nitrogenous Fertilizers
Mixed ferts. made in nitr. fert. mfg. plants;
organic fert. - mfg.
Production 2874
Phosphatic Fertilizers
Mixed ferts. made in phos. fert. mfg. plants
- mfg.
Production 2875
Fertilizers, mixing only
Mixed ferts. not made in fert. mfg. plant
Wholesale 5191
Farm Supplies - wholesale
Fert. and fert. materials - wholesale
Wholesale Indirect Impacts
Level 1.* 1474
Potash, Soda, and Borate
Minerals
Mining and milling of fert. compounds
Production 1475
Phosphate Rock
Phosphate rock mining
Production 1479
Chemical and Fertilizer Minerals
Mining NEC
Same as SIC category
Production 2810
Industrial Inorganic Chemicals -
mfg.
Same as SIC category
Production 2819
Industrial Inorganic Chemicals
NEC
Muriate and sulfate of potash - mfg.
Production 3274
Lime
Lime - mfg.
Production
Level 2 0711
Soil Preparation Services
Fert. application for crops
Retail/Service 0721
Crop Planting, Cultivating, and
Protecting
Fert. application
Retail/Service 0782
Lawn and Garden Services
Lawn fertilizing services
Retail/Service 5169
Chemical and Allied Products
NEC
Organic chemicals - wholesale
Wholesale
Level 3 5193
Flowers, Nursery Stock, and
Florist Supplies
Florist Supplies - wholesale
Wholesale 5211
Lumber and Building Materials
Fert. Sales
Retail/Service 5251
Hardware Stores
Fert. Sales
Retail/Service 5261
Nurseries, Lawn and Garden
Supply Stores
Fert. Sales
Retail/Service 5331
Variety Stores
Fert. Sales
Retail/Service 5399
Misc. General Merchandise
Stores
Fert. Sales
Retail/Service
Level 4 0783
Ornamental Shrub and Tree
Services
Shrub and tree care - retail
Retail/Service 3523
Farm Machinery and Equipment
Fert. machinery - mfg.
Production 5992
Florists
Fert. use/sales
Retail/Service
Abbreviation
Abbreviated Term CTED
Washington Department of
Community, Trade and Economic
Development JARRC
Joint Administrative Rules Review
Committee RCW
Revised Code of Washington RFA
Regulatory Fairness Act SBEIS
Small Business Economic Impact
Statement SIC
Standard Industrial Classification WSDA
Washington State Department of
Agriculture WAC
Washington Administrative Code ESD
Employment Security Department
any)) a substance
containing one or more recognized plant nutrients and ((which))
that is used for its plant nutrient content ((and/))or ((which))
that is designated for use or claimed to have value in promoting
plant growth, and shall include limes, gypsum, and manipulated
animal and vegetable manures. It ((shall)) does not include
unmanipulated animal and vegetable manures, organic waste-derived
material, and other products exempted by the department by
rule((s)).
The sample preparation method for the analyses listed in Table 1
shall be one of the appropriate total recoverable metals
determinations methods listed in SW-846, Third Edition, Final
Update III, Chapter 3, 3.2 Sample Preparation Methods, December
1996.Metal
Inductively Coupled
Plasma (ICP)
Atomic Absorption
Inductively Coupled Plasma
Mass Spectroscopy (ICP/MS) Arsenic (As)
6010, 6010A, 6010B
7060A, 7061A
6020 Cadmium (Cd)
6010, 6010A, 6010B
7131A
6020 Cobalt (Co)
6010, 6010A, 6010B
7201
6020 Lead (Pb)
6010, 6010A, 6010B
7420, 7421
6020 Molybdenum
(Mo)
6010, 6010A, 6010B
7480
6020 Nickel (Ni)
6010, 6010A, 6010B
7520, 7521
6020 Selenium (Se)
6010, 6010A, 6010B
7740, 7741A
6020 Zinc (Zn)
6010, 6010A, 6010B
7951
6020 Mercury (Hg)
7470A, 7471A
Copies of SW-846, Third Edition and all associated updates are available from: The Government Printing Office, Superintendent of Documents, Washington, DC 20402, (202) 512-1800, and from the Department of Commerce, National Technical Information Center, 5285 Port Royal Road, Springfield, VA 22161, (703) 487-4650 or 800-553-NTIS.
(2) Other analysis methods for total concentration of each metal in each commercial fertilizer may be used only under the following conditions:
(a) You must submit a request to the department, in writing, detailing the sample preparation and analysis methods, minimum detection limits and quality assurance, quality control documentation and a side-by-side comparison of the analysis results from the alternative method to one of the approved methods' analysis results of the same material; and
(b) The department, after reviewing the request, may approve the analysis method only if the capability of the method meets or exceeds the sensitivity and accuracy of the applicable method listed in the Table 1.
[]
NEW SECTION
WAC 16-200-7063 How will the department determine whether a commercial fertilizer meets Washington standards for metals? (1) To determine whether a commercial fertilizer meets Washington standards for metals, the department will use the following formula:
Pounds of product applied per acre per year X metal content of product (ppm)
1,000,000
The number used for pounds of product applied per acre per year will be the maximum application rate allowed by the commercial fertilizer label. If specific label directions for use are not available, the department will use the Washington application rates listed in subsection (2) of this section, divided by four.
(2) Using normal agronomic rates that are representative of soil, crop rotation, and climatic conditions in Washington state, the department developed the following Washington application rates:
| Nutrient | 4 Yr. Cumulative Total (lbs./acre) |
| Nitrogen (N) | 1600 |
| Phosphorous (as P2O5) | 700 |
| Potassium (as K2O) | 1600 |
| Boron (B) | 12 |
| Calcium (Ca) | 800 |
| Chlorine (Cl) | 300 |
| Copper (Cu) | 10 |
| Iron (Fe) | 80 |
| Magnesium (Mg) | 400 |
| Manganese (Mn) | 40 |
| Molybdenum (Mo) | 4 |
| Sulfur (S) | 400 |
| Zinc (Zn) | 30 |
| Lime (CaCO3 equivalent) | 20,000 |
| Gypsum (CaSO4) | 16,000 |
(3) To ensure that the maximum acceptable cumulative metals additions to soil are not exceeded, the department will assume the commercial fertilizer will be applied at the maximum rate as stated on the label or established in this rule.
[]
NEW SECTION
WAC 16-200-7064 What are the Washington standards for metals? (1) The standards for metals in Washington are the maximum acceptable annual metals additions to soils adopted in RCW 15.54.800 and are presented in Table 2. Because the Canadian standards contained in the Canadian Trade Memorandum T-4-93 dated August 1996 are based on long-term (forty-five-year) cumulative metals additions to soils, the maximum acceptable annual metals additions to soils are determined by dividing the Canadian standards by forty-five. The Washington standards are expressed as pounds per acre per year.
Table 2. Washington Standards For Metals
| Metals | Lbs./acre/yr. |
| Arsenic (As) | .297 |
| Cadmium (Cd) | .079 |
| Cobalt (Co) | .594 |
| Mercury (Hg) | .019 |
| Molybdenum (Mo) | .079 |
| Nickel (Ni) | .713 |
| Lead (Pb) | 1.981 |
| Selenium (Se) | .055 |
| Zinc (Zn) | 7.329 |
(2) To be registered with the department and distributed in Washington, a commercial fertilizer must not exceed the above standards. Because cobalt (Co), molybdenum (Mo), and zinc (Zn) are also plant nutrients, higher concentrations than those presented in the table may be permitted. Commercial fertilizers which contain cobalt (Co), molybdenum (Mo), and/or zinc (Zn) concentrations may be registered and distributed in Washington if those metals are used as plant nutrients and those metals meet all applicable minimum guarantees and labeling requirements of chapter 15.54 RCW and the rules adopted thereunder.
(3) If a commercial fertilizer contains cobalt (Co), molybdenum (Mo), or zinc (Zn) and any one or more of those metals are not intended to be used as a plant nutrient, then the nonplant nutrient metals must meet the Standards shown in Table 2.
[]
AMENDATORY SECTION (Amending Order 2066, filed 12/7/90, effective 1/7/91)
WAC 16-200-708 Unlawful acts. (1) It shall be unlawful for any person to refuse or neglect to comply with the provisions of the applicable sections of chapter 15.54 RCW, the rules adopted thereunder, or any lawful order of the department.
(2) It is unlawful to distribute a commercial fertilizer in Washington that exceeds the standards for nonnutritive substances established in RCW 15.54.800(3). The department will determine if a commercial fertilizer exceeds the standards by using the maximum application rates and by either:
(a) Comparing data submitted by the registrant to the standards established in WAC 16-200-7064; or
(b) Comparing the results of the analysis of an official sample to the standards established in WAC 16-200-7064. Official samples will be analyzed by the methods set forth in these rules.
[Statutory Authority: RCW 15.54.800. 91-01-015 (Order 2066), § 16-200-708, filed 12/7/90, effective 1/7/91.]