WSR 02-14-092

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed July 1, 2002, 2:38 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-06-021.

Title of Rule: Rules related to wood destroying organisms (WDO), WAC 16-228-2005 through 16-228-2060.

Purpose: The current rules are somewhat vague and difficult for structural pest inspectors, real estate agents, and consumers to comprehend. Clarification of existing rules will help inspectors to better understand what is required of them during a structural pest inspection. Additionally, consumers will have a greater understanding of the service to which they are entitled during an inspection. If these WDO rules are not revised, it will remain difficult for the Washington State Department of Agriculture compliance investigators to provide technical assistance or, in some situations, enforcement actions. Consumers will not be afforded adequate protection from false or fraudulent structural pest inspections.

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

Statute Being Implemented: RCW 15.58.040 (2)(k).

Summary: These proposed rules clarify existing rules. The rules will define terms associated with WDO inspections, identify the types of and specify the uses for WDO inspections and reports, and establish minimum rules under which WDO inspections must be conducted and reports written in the state of Washington.

Reasons Supporting Proposal: All individuals and businesses that conduct structural pest inspections in Washington state will be positively impacted by the new rules. By using these rules as enforceable guidelines, structural pest inspectors will be less likely to overlook or fail to report WDOs, damage, or conducive conditions resulting in an increased level of consumer protection.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cliff Weed, (360) 902-2036 and Dan Suomi, (360) 902-2044, 1111 Washington Street, Olympia, WA 98504.

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 proposed rules will define terms associated with WDO inspections, identify the types of and specify the uses for WDO inspections and reports, and establish minimum rules under which WDO inspections must be conducted and reports written in the state of Washington. The current rules are somewhat vague and difficult for structural pest inspectors, real estate agents, and consumers to comprehend. Clarification of the current rules will help inspectors to better understand what is required of them during a structural pest inspection. Additionally, consumers will have a greater understanding of the service to which they are entitled during an inspection. Unless the current rules are revised, consumers will not be afforded adequate protection from false or fraudulent structural pest inspections.

All individuals and businesses that conduct structural pest inspections in Washington state will be positively impacted by the new rules. By using these rules as enforceable guidelines, structural pest inspectors will be less likely to overlook or fail to report WDOs, damage, or conducive conditions resulting in an increased level of consumer protection.

Proposal Changes the Following Existing Rules: A clarified and expanded definition section. Examples of new definitions include wood, frass and structure.

Clarified wood destroying organisms reporting and determination of their presence. Examples include carpenter ants, dampwood termites and wood decay fungi.

Clarified information on what constitutes a conducive condition. Situation dependent language was added to clarify when a conducive condition is present. Examples include earth to wood contact, standing water, moisture from plumbing leaks.

Clarify exactly when a WDO inspection must be conducted and the limits of an inspection.

Clarified what information is required for a complete wood destroying inspection. Examples of information which must be included as part of the report are a diagram, inspection control number, inspector name and license number, damage and/or infestations of WDO.

Clarify the situation and reporting requirements for specific WDO inspections.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The only new requirement in the proposed rules that may impose a new cost on those individuals and businesses who conduct structural pest inspections in Washington state is the requirement that a copy of the inspection diagram is a part of the inspection report and must be given to the customer along with the report. The department believes that the cost of providing a customer with a copy of an inspection diagram, which an inspector is already required to prepare under current rules, does not constitute a "more than minor cost" under RCW 19.85.030 (1)(a), therefore a small business economic impact statement 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 34.05.328 (5)(a)(i).

Hearing Location: Five DIS Interactive Technology sites simultaneously via videoconference: 710 Sleater Kinney Road S.E., Suite Q, Lacey, WA; 1107 S.W. Grady Way, Suite 112, Renton, WA; 1101 North Argonne, Suite 109, Spokane, WA; 2500 N.E. 65th Avenue, Vancouver, WA; and 15 West Yakima Avenue, Suite 220, Yakima, WA, on August 6, 2002, at 6:00 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by July 30, 2002, TDD (360) 902-1996.

Submit Written Comments to: Laurie Mauerman, Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2093, e-mail lmauerman@agr.wa.gov, by August 7, 2002.

Date of Intended Adoption: August 23, 2002.

June 27, 2002

Bob Arrington

Assistant Director

OTS-5705.1


NEW SECTION
WAC 16-228-2005   Wood destroying organism inspections and reporting criteria.   All persons required to be licensed to conduct wood destroying organism (WDO) inspections as provided for in the Revised Code of Washington (RCW) 15.58.210 must comply with the rules set forth in this section.

(1) Purpose: This section will define terms associated with WDO inspections, identify the types of and specify the uses for WDO inspections and reports, and establish minimum rules under which WDO inspections must be conducted and reports written in the state of Washington.

(2) Definitions: The definitions set forth in this section must apply throughout unless the context otherwise requires. Definitions contained in this section are nonexclusive to other uses in expanded or contracted form found elsewhere in the RCW or the Washington Administrative Code (WAC).

(a) Accessible areas: Areas typically and routinely visible by normal access.

(b) Conducive debris: Cellulose or noncellulose material that provides no structural support but can be a source of food or provide a habitat for WDOs. This definition includes, but is not limited to, tree roots, stumps, formboards, scrap wood, paper, wood product, paper product, or other natural or manufactured product.

(c) Complete wood destroying organism inspection: Inspection for the purpose of determining evidence of infestation, damage, or conducive conditions as part of the transfer, exchange, or refinancing of any structure in Washington state. Complete WDO inspections must also include any WDO inspection that is conducted as the result of telephone solicitation by an inspection, pest control, or other business, even if the inspection would fall within the definition of a specific WDO inspection.

(d) Conducive conditions: Conditions that may lead to or enhance an infestation of WDOs.

(e) Detached structure: Separate structure that is not physically connected to the subject structure by a foundation or roof system.

(f) Earth: Includes, but is not limited to, soil, decorative bark, gravel, rock, or other landscape materials.

(g) Excluded area: Area not inspected and therefore, not included in a WDO inspection.

(h) Frass: Specifically, solid larval insect excrement, but can include by-products of insect feeding or tunneling activity in wood or insulation materials.

(i) Inaccessible areas: Parts of a structure that cannot be inspected without excavation or the physical removal of objects are inaccessible and may be subject to infestation by WDOs. Such areas include, but are not limited to, wall voids, spaces between floors, areas concealed by insulation, substructures with clearances less than eighteen inches between unimproved ground and wood joists or the bottom of wood structural floors without joists or, less than twelve inches between unimproved ground and wood girders, substructures with insufficient clearance between structural members and/or ducts and piping and the finished grade to permit passage by an inspector for the purposes of a WDO inspection, floors beneath coverings, sleeper floors, areas concealed by furniture, appliances, and/or personal possessions, exterior wood decks with less than a five-foot clearance, locked rooms, or areas that imperil the health or safety of the inspector. These rules will not require inspectors to make extraordinary efforts to gain access to areas deemed inaccessible by the inspector. Inaccessible areas are, by their nature, excluded from the inspection.

(j) Inadequate ventilation: Condition promoting the retention of excessive moisture in substructures or other confined spaces and identified by, but not limited to, the presence of metal rust, condensation, mold, mildew, or fungal growth.

(k) Specific wood destroying organism inspection: Inspection of a structure for purposes of identifying or verifying evidence of an infestation of WDOs prior to pest management activities.

(l) Person is defined as any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.

(m) Structure: A single building that includes any exterior attached decks, walks, stairways, or porches. For the purposes of this definition, entry and exit decks to manufactured homes are considered to be a part of the structure.

(n) Wood: Any material used in a structure that can be damaged by WDOs.

(o) Wood destroying organism: Insects or fungi that will consume, excavate, develop in, or otherwise modify the integrity of wood or wood products. For the purposes of this section, WDOs include, but are not limited to, carpenter ants, moisture ants, subterranean termites, dampwood termites, beetles in the family Anobiidae, and wood decay fungi (wood rot).

(p) Wood destroying organism inspection: The service of inspecting a building for the presence of WDOs, their damage, or conducive conditions leading to their development. For purposes of these rules, a WDO inspection must be defined as either a "complete WDO inspection" or a "specific WDO inspection."

(q) Wood destroying organism inspection report: The written opinion of an inspector licensed by the WSDA and based upon what was visible and evident at the time of an inspection.

(r) WSDA: Washington state department of agriculture.

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NEW SECTION
WAC 16-228-2015   Wood destroying organisms.   (1) Evidence of WDOs found during an inspection must be described in all complete and specific WDO inspection reports. Report terminology must include, but is not limited to, the following:

(a) Carpenter ants: Carpenter ants must be reported as carpenter ants or carpenter ant activity when one or more of the following are found on or in any accessible area of the inspected structure. The report must identify approximate location and type of evidence found. Evidence indicating the presence of carpenter ants includes, but is not limited to:

(i) Live carpenter ants or carpenter ant carcasses.

(ii) An accumulation of frass unique to carpenter ants.

(iii) Excavation or tunneling unique to carpenter ants.

(b) Moisture ants: Moisture ants must be reported as moisture ants or moisture ant activity when one or more of the following are found on or in any accessible area of the inspected structure. The report must identify approximate location and type of evidence found. Evidence indicating the presence of moisture ants includes, but is not limited to:

(i) Live moisture ants or moisture ant carcasses.

(ii) An accumulation of frass unique to moisture ants.

(iii) Excavation or tunneling unique to moisture ants.

(c) Subterranean termites: Subterranean termites must be reported as subterranean termites or subterranean termite activity when one or more of the following are found on or in any accessible area of the inspected structure or, within three feet of the structure. The report must identify approximate location and type of evidence found. Evidence indicating the presence of subterranean termites includes, but is not limited to:

(i) Live subterranean termites, including winged reproductive forms.

(ii) Galleries or fecal material, unique to subterranean termites, in structural members.

(iii) Mud tubes, unique to subterranean termites, on or in the structure.

(iv) Evidence of subterranean termite activity found on or in form wood, other nonstructural materials, or wood products in landscape materials.

(d) Dampwood termites: Dampwood termites must be reported as dampwood termites or dampwood termite activity when one or more of the following are found on or in any accessible area of the inspected structure. The report must identify approximate location and type of evidence found. Evidence indicating the presence of dampwood termites includes, but is not limited to:

(i) Live dampwood termites, including winged reproductive forms.

(ii) Galleries or fecal material unique to dampwood termites.

(iii) Evidence of dampwood termite activity found on or in form wood, cellulose debris, other nonstructural materials, or wood products.

(e) Anobiid beetles: Anobiid beetles must be reported as anobiid beetles or anobiid beetle activity when one or more of the following are found on or in any accessible area of the inspected structure. The report must identify approximate location and type of evidence found. Evidence indicating the presence of anobiid beetles includes, but is not limited to:

(i) Circular, 1/16th to 1/8th inch (1.5 to 3 mm) emergence holes made by adult beetles in structural timbers.

(ii) An accumulation of frass, unique to anobiid beetles, in and around adult beetle emergence holes or beneath the wood where emergence holes are present.

(iii) Wood displaying the characteristic tunnels formed by anobiid beetle larvae.

(f) Wood decay fungi: Wood decay fungi must be reported as wood decay fungi or wood rot. The report must identify approximate location and type of evidence found. Conditions indicating that wood decay fungi, or damage attributable to these fungi, must be reported when one or more of the following are found on or in any accessible area of the structure subject to inspection. Evidence indicating the presence of wood decay fungi includes, but is not limited to:

(i) Wood or wood products containing visible damage unique to wood decay fungi.

(ii) Wood or wood products in which fungal bodies are developing.

(2) Adult beetle emergence holes, unique to wood infesting species in the families Buprestidae, Cerambycidae, and Lyctidae, may be reported for clarification purposes at the discretion of the inspector.

(3) Signs of wood decay fungi, such as brown pocket rot, and the marine mollusk (Teredo, shipworm) that may have occurred prior to the manufacturing or processing of lumber must, when observed, be reported as a nonreinfesting species or condition.

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NEW SECTION
WAC 16-228-2025   Conducive conditions.   (1) Conducive conditions found during a complete WDO inspection must be noted in the complete WDO inspection report.

(2) Conducive conditions include, but are not limited to, the following:

(a) Earth in direct contact with wood or inadequate clearance between earth and any wood or material subject to damage from moisture.

(b) Vegetation, in direct contact with the exterior of a structure, which may contribute to moisture or damage by WDOs.

(c) Restricted or nonfunctioning gutter systems.

(d) Conducive debris in substructures.

(e) Bare or unimproved ground in substructures.

(f) Standing water or evidence of seasonal standing water in a substructure.

(g) Failed or missing caulk or grout at water splash areas.

(h) Moisture from plumbing leaks, lack of ventilation, or other sources that may contribute to damage by WDOs.

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NEW SECTION
WAC 16-228-2035   Complete wood destroying organism inspections.   (1) Any WDO inspection conducted by any person pursuant to the sale, exchange, or refinancing of real property or, as a result of telephone solicitation by an inspection, pest control, or other business, must be a complete WDO inspection. Complete WDO inspections must be performed by individuals required to be licensed in accordance with the provisions of RCW 15.58.210. Such inspections will be conducted in accordance with the rules established by this section.

(2) Inspectors must make a thorough inspection of accessible areas that are not specifically excluded in the report. Inspectors will not be required to place themselves into a position or gain access to any portion of a structure that may cause physical injury or otherwise imperil their health and safety. Access to structures should be restricted to the use of accepted methods and practices.

(3) Substructure crawl areas must be inspected when accessible. Inaccessibility of substructure crawl areas due to inadequate clearance, the presence of ducting or piping, foundation walls, partitions or other such conditions that block access must be explained in the inspection report and annotated on the report diagram. The report findings must state that inaccessible substructure crawl areas may be vulnerable to infestation by WDOs and should be made accessible for inspection.

(4) Limits of inspections: Complete WDO inspections will identify conditions present at a subject property at the time of an inspection. Inspectors are not required to report on any WDO infestation or other condition that might be subject to seasonal constraints or environmental conditions if evidence of those constraints or conditions is not visible at the time of the inspection.

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NEW SECTION
WAC 16-228-2045   Complete wood destroying organism inspection reports.   (1) Any report that identifies damage or infestation by WDOs or, conditions conducive to damage or infestation by WDOs pursuant to the sale, exchange, or refinancing of any structure or, as a result of telephone solicitation by an inspection, pest control, or other business, must be a complete WDO inspection report and must comply with this section. The terms "Report" or "report" as used in this section will mean a complete WDO inspection report.

(2) Report form: A written report may take any form in presentation, provided that all elements of this section are included and identifiable.

(3) A complete WDO inspection report must be issued to the person paying for and/or otherwise requesting the inspection.

(4) Report contents: Reports must contain the information identified in this section, when and where applicable.

(a) Washington state department of agriculture inspection control number (WSDA ICN): A WSDA ICN must be obtained in accordance with the provisions of RCW 15.58.450 and be prominently displayed in the upper third of the front page of each report. This number must be unique to the structure(s) subject to the report. The assigned WSDA ICN must follow the original report and supplemental reports (if any) pertaining to the sale, exchange, or refinancing activity on a property for a specific client. A new WSDA ICN must be issued for any subsequent sale, exchange, or refinancing activity.

(b) Date: The date the inspection was conducted must be provided on the first page of the report.

(c) Parties involved in the real estate transaction: The name of the property owner, their designated representative, or purchaser of the inspection report must be identified on the first page of the report.

(d) Address of structure inspected: The complete address will include, but is not limited to, building number, street name, city, and state and must be identified on the first page of the report. Where multiple structures at a property may have the same basic address, a building letter, unit number, or other recognizable method must be used to identify the specific building inspected.

(e) Inspector: The name of the inspector and WSDA license number must be provided on the first page of the report.

(5) Report of findings: A complete WDO inspection report must detail the findings of the inspector. The following minimum conditions, where applicable, must be in the body of the report.

(a) Damage and/or infestation by WDOs: The report must identify any damage or infestation by WDOs on or in the structure.

(b) Conditions conducive to damage and/or infestation by WDOs must be explained in narrative form in accordance with the provisions of WAC 16-228-2025. When evidence of moisture ants, dampwood termites, wood infesting anobiids, or wood decay fungi is detected during a complete WDO inspection, the inspector must identify and report the condition(s) conducive to such infestations. It must be stated in the report that such infestations may be eliminated by removal of all infested wood and correction of any contributing conducive conditions.

(c) When reporting conducive conditions, the inspector must describe the condition and annotate the diagram with an approximate location of that condition. Provided that; if conducive conditions within the interior of the structure can be clearly described in the report findings, diagramed representation of such conditions is not required.

(d) Inaccessible areas will be fully identified in narrative form where such areas are annotated on the report diagram.

(e) Excluded areas: The report must list all excluded areas not already defined in WAC 16-228-2005 (2)(i) as inaccessible.

(6) Diagrams: A diagram must be prepared for each inspection report and must accompany the report.

(a) A diagram is not required when there are no findings as described in WAC 16-228-2015 and 16-228-2025.

(b) Scaled diagrams are not required; however, diagrams must reasonably resemble the perimeter or footprint of the building being inspected and legibly convey any information that is a required part of the diagram.

(c) Diagrams must identify the approximate location of inaccessible areas.

(d) Diagrams must identify the approximate location of WDOs, damage, and/or conducive conditions leading to an infestation of WDOs.

(e) Where abbreviations are used on a diagram, a legend must be provided to explain the abbreviations.

(7) Excluded areas must be annotated on the diagram.

(8) A record of all complete WDO inspection reports prepared for real estate transactions or resulting from telephone solicitation must be maintained on file by the inspecting firm for a period of four years. Upon written request, these records must be made available to the WSDA.

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NEW SECTION
WAC 16-228-2050   Specific wood destroying organism inspections.   (1) Specific WDO inspections must only be conducted by individuals in the category E (pest control operator structural) or PI (structural pest inspector). 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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NEW SECTION
WAC 16-228-2060   Specific wood destroying organism inspection reports.   (1) A specific WDO inspection report must be completed in conjunction with any proposal or estimate for prevention or control of WDOs. Pest management activities performed under an existing warranty will not require the preparation of a specific WDO inspection report.

(2) A specific WDO inspection report must not be construed as a complete WDO inspection report or, in any case, be used in lieu of a complete WDO inspection report for the sale, exchange, or refinancing of real property. A statement explaining the restriction against use in real estate transactions must stand out by having larger print than the main body of the report, be highlighted, underlined, or be in bold print on all specific WDO inspection reports.

(3) Report form: A specific WDO inspection report may take any written form in presentation, provided that all elements of this section are identifiable.

(4) A specific WDO inspection report must be issued to the person requesting the inspection.

(5) Report contents: Specific WDO inspection reports will contain the information identified in this section, when and where applicable.

(a) The name of the owner (or their representative) requesting the inspection or estimate for pest management of WDOs must be provided on the first page of the report.

(b) Date: The date the inspection was conducted must be provided on the first page of the report.

(c) Address of structure inspected: The complete address will include, but is not limited to, building number, street name, city, and state and must be identified on the first page of the report. Where multiple buildings at a property may have the same basic address, a building letter, unit number, or other recognizable method must be used to identify the specific building inspected.

(d) Inspector: The name of the inspector and WSDA license number must be provided on the first page of the report.

(6) Report of findings: A specific WDO inspection report must detail the findings of the inspector. The following minimum conditions, where applicable, must be in the body of the report.

(a) The report must include a statement describing the presence of, or signs of, infestation by WDOs that were identified and resulted in the proposal or estimate. Approximate location(s) of the WDOs or signs of infestation(s) reported on or in the structure must be clearly identified on a diagram. If the proposed treatment is for preventative purposes only, the report must so state. All WDOs must be identified by their proper name as described in WAC 16-228-2010.

(b) When a proposal or estimate is prepared for the treatment of moisture ants, dampwood termites, wood infesting beetles, or wood decay fungi the inspector must, where possible, identify and report the condition(s) conducive to such infestations. It must be stated in the report that infestations of such WDOs may be eliminated by removal of all infested wood and correction of any contributing conducive conditions.

(7) Diagrams: A diagram must be prepared for each inspection report and must accompany that report.

(a) A diagram is not required when there are no findings as described in WAC 16-228-2015 and 16-228-2025.

(b) Scaled diagrams are not required however, diagrams must reasonably resemble the perimeter or footprint of the building being inspected and legibly convey any information that is a required part of the diagram.

(c) A diagram must identify the approximate location of WDOs and/or signs of infestation(s) by WDOs.

(d) Where abbreviations are used on a diagram, a legend must be provided to explain the abbreviations.

(8) A record of all specific WDO inspection reports must be maintained on file by the inspecting firm for a period of one year. Upon request, these records must be made available to the WSDA.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 16-228-2000 Inspection and reporting criteria for complete wood destroying organism inspections.
WAC 16-228-2020 Inspection and report prerequisite to wood destroying organism treatment.
WAC 16-228-2030 Limited wood destroying organism inspections.
WAC 16-228-2040 Reporting criteria for limited wood destroying organism inspections.

Washington State Code Reviser's Office