Z-1128.1  _______________________________________________

                          HOUSE BILL 2378

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By Representatives Linville, G. Chandler and Haigh; by request of Department of Agriculture

Read first time 01/12/2000.  Referred to Committee on Agriculture & Ecology.

Regulating structural pest inspections.

    AN ACT Relating to structural pest inspections; amending RCW 15.58.030, 15.58.150, 15.58.233, 15.58.040, and 15.58.210; adding new sections to chapter 15.58 RCW; prescribing penalties; providing an effective date; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

    Sec. 1.  RCW 15.58.030 and 1992 c 170 s 1 are each amended to read as follows:

    As used in this chapter the words and phrases defined in this section shall have the meanings indicated unless the context clearly requires otherwise.

    (1) "Active ingredient" means any ingredient which will prevent, destroy, repel, control, or mitigate pests, or which will act as a plant regulator, defoliant, desiccant, or spray adjuvant.

    (2) "Antidote" means the most practical immediate treatment in case of poisoning and includes first aid treatment.

    (3) "Arthropod" means any invertebrate animal that belongs to the phylum arthropoda, which in addition to insects, includes allied classes whose members are wingless and usually have more than six legs; for example, spiders, mites, ticks, centipedes, and isopod crustaceans.

    (4) "Defoliant" means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission.

    (5) "Department" means the Washington state department of agriculture.

    (6) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues.

    (7) "Device" means any instrument or contrivance intended to trap, destroy, control, repel, or mitigate pests, or to destroy, control, repel or mitigate fungi, nematodes, or such other pests, as may be designated by the director, but not including equipment used for the application of pesticides when sold separately from the pesticides.

    (8) "Director" means the director of the department or a duly authorized representative.

    (9) "Distribute" means to offer for sale, hold for sale, sell, barter, or supply pesticides in this state.

    (10) "EPA" means the United States environmental protection agency.

    (11) "EPA restricted use pesticide" means any pesticide with restricted uses as classified for restricted use by the administrator, EPA.

    (12) "FIFRA" means the federal insecticide, fungicide, and rodenticide act as amended (61 Stat. 163, 7 U.S.C. Sec. 136 et seq.).

    (13) "Fungi" means all nonchlorophyll‑bearing thallophytes (all nonchlorophyll‑bearing plants of a lower order than mosses and liverworts); for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living persons or other animals.

    (14) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi.

    (15) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any weed.

    (16) "Inert ingredient" means an ingredient which is not an active ingredient.

    (17) "Ingredient statement" means a statement of the name and percentage of each active ingredient together with the total percentage of the inert ingredients in the pesticide, and when the pesticide contains arsenic in any form, the ingredient statement shall also include percentages of total and water soluble arsenic, each calculated as elemental arsenic.  In the case of a spray adjuvant the ingredient statement need contain only the names of the principal functioning agents and the total percentage of the constituents ineffective as spray adjuvants.  If more than three functioning agents are present, only the three principal ones need by named.

    (18) "Insect" means any of the numerous small invertebrate animals whose bodies are more or less obviously segmented, and which for the most part belong to the class insecta, comprising six‑legged, usually winged forms, for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, for example, spiders, mites, ticks, centipedes, and isopod crustaceans.

    (19) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insects which may be present in any environment whatsoever.

    (20) "Inspection control number" means a number obtained from the department that is recorded on wood destroying organism inspection reports issued by a structural pest inspector in conjunction with the transfer, exchange, or refinancing of any structure.

(21) "Label" means the written, printed, or graphic matter on, or attached to, the pesticide, device, or immediate container, and the outside container or wrapper of the retail package.

    (((21))) (22) "Labeling" means all labels and other written, printed, or graphic matter:

    (a) Upon the pesticide, device, or any of its containers or wrappers;

    (b) Accompanying the pesticide, or referring to it in any other media used to disseminate information to the public; and

    (c) To which reference is made on the label or in literature accompanying or referring to the pesticide or device except when accurate nonmisleading reference is made to current official publications of the department, United States departments of agriculture; interior; education; health and human services; state agricultural colleges; and other similar federal or state institutions or agencies authorized by law to conduct research in the field of pesticides.

    (((22))) (23) "Land" means all land and water areas, including airspace and all plants, animals, structures, buildings, devices and contrivances, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.

    (((23))) (24) "Master license system" means the mechanism established by chapter 19.02 RCW by which master licenses, endorsed for individual state‑issued licenses, are issued and renewed using a master application and a master license expiration date common to each renewable license endorsement.

    (((24))) (25) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes.

    (((25))) (26) "Nematode" means any invertebrate animal of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts, may also be called nemas or eelworms.

    (((26))) (27) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.

    (((27))) (28) "Pest" means, but is not limited to, any insect, rodent, nematode, snail, slug, weed and any form of plant or animal life or virus, except virus on or in a living person or other animal, which is normally considered to be a pest or which the director may declare to be a pest.

    (((28))) (29) "Pest control consultant" means any individual who acts as a structural pest ((control)) inspector, who sells or offers for sale at other than a licensed pesticide dealer outlet or location where they are employed, or who offers or supplies technical advice, supervision, or aid, or makes recommendations to the user of:

    (a) Highly toxic pesticides, as determined under RCW 15.58.040;

    (b) EPA restricted use pesticides or restricted use pesticides which are restricted by rule to distribution by licensed pesticide dealers only; or

    (c) Any other pesticide except those pesticides which are labeled and intended for home and garden use only.

    (((29))) (30) "Pesticide" means, but is not limited to:

    (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living person or other animal which is normally considered to be a pest or which the director may declare to be a pest;

    (b)  Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and

    (c) Any spray adjuvant.

    (((30))) (31) "Pesticide advisory board" means the pesticide advisory board as provided for in the Washington pesticide application act.

    (((31))) (32) "Pesticide dealer" means any person who distributes any of the following pesticides:

    (a) Highly toxic pesticides, as determined under RCW 15.58.040;

    (b) EPA restricted use pesticides or restricted use pesticides which are restricted by rule to distribution by licensed pesticide dealers only; or

    (c) Any other pesticide except those pesticides which are labeled and intended for home and garden use only.

    (((32))) (33) "Pesticide dealer manager" means the owner or other individual supervising pesticide distribution at one outlet holding a pesticide dealer license.

    (((33))) (34) "Plant regulator" means any substance or mixture of substances intended through physiological action, to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of ornamental or crop plants or their produce, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments.

    (((34))) (35) "Registrant" means the person registering any pesticide under the provisions of this chapter.

    (((35))) (36) "Restricted use pesticide" means any pesticide or device which, when used as directed or in accordance with a widespread and commonly recognized practice, the director determines, subsequent to a hearing, requires additional restrictions for that use to prevent unreasonable adverse effects on the environment including people, lands, beneficial insects, animals, crops, and wildlife, other than pests.

    (((36))) (37) "Rodenticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate rodents, or any other vertebrate animal which the director may declare by rule to be a pest.

    (((37))) (38) "Spray adjuvant" means any wetting agent, spreading agent, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent with or without toxic properties of its own, intended to be used with any other pesticide as an aid to the application or to the effect of the pesticide, and which is in a package or container separate from that of the pesticide with which it is to be used.

    (((38))) (39) "Special local needs registration" means a registration issued by the director pursuant to provisions of section 24(c) of FIFRA.

    (((39))) (40) "Structural pest ((control)) inspector" means any individual who performs the service of inspecting a building for wood destroying organisms, their damage, or conditions conducive to their infestation.

    (((40))) (41) "Unreasonable adverse effects on the environment" means any unreasonable risk to people or the environment taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or as otherwise determined by the director.

    (((41))) (42) "Weed" means any plant which grows where not wanted.

(43) Wood destroying organism inspection report" means any written document that reports or comments on the presence or absence of wood destroying organisms, their damage, and/or conducive conditions leading to the establishment of such organisms.

NEW SECTION. Sec. 2.  A new section is added to chapter 15.58 RCW to read as follows:

    It is unlawful for any person to issue a wood destroying organism inspection report, prepared in conjunction with the transfer, exchange, or refinancing of any structure, without recording a unique inspection control number on all reports associated with the transaction.

NEW SECTION. Sec. 3.  A new section is added to chapter 15.58 RCW to read as follows:

    (1) The director shall not issue a license to any person who intends to act as a structural pest inspector until the person has furnished evidence of financial responsibility.

    (2) Evidence of financial responsibility shall consist of either  a surety bond or an errors and omissions insurance policy or certification thereof, protecting persons who may suffer legal damages as a result of actions by the structural pest inspector.  The director shall not accept a surety bond or insurance policy except from authorized insurers in this state.

    (3) Evidence of financial responsibility shall be supplied to the department on a financial responsibility insurance certificate or surety bond form.

NEW SECTION. Sec. 4.  A new section is added to chapter 15.58 RCW to read as follows:

    (1) The following requirements apply to the amount of surety bond or insurance required for structural pest inspectors.

    (a) The amount of the surety bond or errors and omissions insurance, as provided for in section 3 of this act, shall be not less than twenty-five thousand dollars and fifty thousand dollars respectively.  The surety bond or insurance policy shall be maintained at not less than the required sum at all times during the licensed period.

    (b) The director shall be notified ten days before any reduction of insurance coverage at the request of the applicant or cancellation of the surety bond or insurance by the surety or insurer and by the insured.

    (c) The total and aggregate of the surety and insurer for all claims is limited to the face of the surety bond or insurance policy.  The director may accept a surety bond or insurance policy in the proper sum that has a deductible clause in an amount not exceeding five thousand dollars for the total amount of surety bond or insurance required by this section.  If the applicant has not satisfied the requirement of the deductible amount in any prior legal claim the deductible clause shall not be accepted by the director unless the applicant furnishes the director with a surety bond or insurance policy which shall satisfy the amount of the deductible as to all claims that may arise.

    (2) Insurance policies must be written on an occurrence basis.

    (3) Insurance policies shall have a minimum three-year occurrence clause.

NEW SECTION. Sec. 5.  A new section is added to chapter 15.58 RCW to read as follows:

    Whenever a structural pest inspector's surety bond or insurance policy is reduced below the requirements of section 4 of this act, or whenever the person has failed to provide evidence of financial responsibility as required by section 3 of this act by the expiration date of the previous surety bond or insurance policy, the director shall immediately suspend the person's structural pest inspector license until the person's surety bond or insurance policy again meets the requirements of section 4 of this act.

    Sec. 6.  RCW 15.58.150 and 1991 c 264 s 3 are each amended to read as follows:

    (1) It is unlawful for any person to distribute within the state or deliver for transportation or transport in intrastate commerce or between points within this state through any point outside this state any of the following:

    (a) Any pesticide which has not been registered pursuant to the provisions of this chapter;

    (b) Any pesticide if any of the claims made for it or any of the directions for its use or other labeling differs from the representations made in connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration:  PROVIDED, That at the discretion of the director, a change in the labeling or formula of a pesticide may be made within a registration period without requiring reregistration of the product;

    (c) Any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container and there is affixed to such container, and to the outside container or wrapper of the retail package, if there is one through which the required information on the immediate container cannot be clearly read, a label bearing the information required in this chapter and the rules adopted under this chapter;

    (d) Any pesticide including arsenicals, fluorides, fluosilicates, and/or any other white powdered pesticides unless they have been distinctly denatured as to color, taste, odor, or form if so required by rule;

    (e) Any pesticide which is adulterated or misbranded, or any device which is misbranded;

    (f) Any pesticide in containers, violating rules adopted pursuant to RCW 15.58.040(2)(f) or pesticides found in containers which are unsafe due to damage.

    (2) It shall be unlawful:

    (a) To sell or deliver any pesticide to any person who is required by law or rules promulgated under such law to be certified, licensed, or have a permit to use or purchase the pesticide unless such person or the person's agent, to whom sale or delivery is made, has a valid certification, license, or permit to use or purchase the kind and quantity of such pesticide sold or delivered:  PROVIDED, That, subject to conditions established by the director, such permit may be obtained immediately prior to sale or delivery from any person designated by the director;

    (b) For any person to detach, alter, deface or destroy, wholly or in part, any label or labeling provided for in this chapter or rules adopted under this chapter, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this chapter or the rules adopted thereunder;

    (c) For any person to use or cause to be used any pesticide contrary to label directions or to regulations of the director if those regulations differ from or further restrict the label directions:  PROVIDED, The compliance to the term "contrary to label directions" is enforced by the director consistent with the intent of this chapter;

    (d) For any person to use for his or her own advantage or to reveal, other than to the director or proper officials or employees of the state, or to the courts of the state in response to a subpoena, or to physicians, or in emergencies to pharmacists and other qualified persons for use in the preparation of antidotes, any information relative to formulas of products acquired by authority of RCW 15.58.060;

    (e) For any person to make false, misleading, or erroneous statements or reports concerning any pest during or after a pest inspection or to fail to comply with criteria established by rule for structural pest ((control)) inspections;

    (f) For any person to make false, misleading, or erroneous statements or reports in connection with any pesticide complaint or investigation;

(g) For any person to advertise as a licensed structural pest inspector without having a valid pest control consultant license in the category of structural pest inspector.

    Sec. 7.  RCW 15.58.233 and 1997 c 242 s 10 are each amended to read as follows:

    (1) The director may renew any license issued under this chapter subject to the recertification standards identified in subsection (2) of this section or an examination requiring new knowledge that may be required to apply pesticides.

    (2) Except as provided in subsection (3) of this section, all individuals licensed under this chapter shall meet the recertification standards identified in (a) or (b) of this subsection, every five years, in order to qualify for continuing licensure.

    (a) ((Licensed pesticide applicators)) Individuals licensed under this chapter may qualify for continued licensure through accumulation of recertification credits.  Individuals licensed under this chapter shall accumulate a minimum of forty department-approved credits every five years with no more than fifteen credits allowed per year.

    (b) ((Licensed pesticide applicators)) Individuals licensed under this chapter may qualify for continued licensure through meeting the examination requirements necessary to become licensed in those areas in which the licensee operates.

    (3) At the termination of a licensee's five-year recertification period, the director may waive the recertification requirements if the licensee can demonstrate that he or she is meeting comparable recertification standards through another state or jurisdiction or through a federal environmental protection agency-approved government agency plan.

    Sec. 8.  RCW 15.58.040 and 1997 c 242 s 1 are each amended to read as follows:

    (1) The director shall administer and enforce the provisions of this chapter and rules adopted under this chapter.  All the authority and requirements provided for in chapter 34.05 RCW (Administrative Procedure Act) and chapter 42.30 RCW shall apply to this chapter in the adoption of rules including those requiring due notice and a hearing for the adoption of permanent rules.

    (2) The director is authorized to adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for:

    (a) Declaring as a pest any form of plant or animal life or virus which is injurious to plants, people, animals (domestic or otherwise), land, articles, or substances;

    (b) Determining that certain pesticides are highly toxic to people.  For the purpose of this chapter, highly toxic pesticide means any pesticide that conforms to the criteria in 40 C.F.R. Sec. 156.10 for toxicity category I due to oral inhalation or dermal toxicity.  The director shall publish a list of all pesticides, determined to be highly toxic, by their common or generic name and their trade or brand name if practical.  Such list shall be kept current and shall, upon request, be made available to any interested party;

    (c) Determining standards for denaturing pesticides by color, taste, odor, or form;

    (d) The collection and examination of samples of pesticides or devices;

    (e) The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers;

    (f) Restricting or prohibiting the use of certain types of containers or packages for specific pesticides.  These restrictions may apply to type of construction, strength, and/or size to alleviate danger of spillage, breakage, misuse, or any other hazard to the public.  The director shall be guided by federal regulations concerning pesticide containers;

    (g) Procedures in making of pesticide recommendations;

    (h) Adopting a list of restricted use pesticides for the state or for designated areas within the state if the director determines that such pesticides may require rules restricting or prohibiting their distribution or use.  The director may include in the rule the time and conditions of distribution or use of such restricted use pesticides and may, if it is found necessary to carry out the purpose and provisions of this chapter, require that any or all restricted use pesticides shall be purchased, possessed, or used only under permit of the director and under the director's direct supervision in certain areas and/or under certain conditions or in certain quantities or concentrations.  The director may require all persons issued such permits to maintain records as to the use of all the restricted use pesticides;

    (i) Label requirements of all pesticides required to be registered under provisions of this chapter;

    (j) Regulating the labeling of devices;

    (k) The establishment of criteria governing the conduct of a structural pest ((control)) inspection; and

    (l) Declaring crops, when grown to produce seed specifically for crop reproduction purposes, to be nonfood and/or nonfeed sites of pesticide application.  The director may include in the rule any restrictions or conditions regarding:  (i) The application of pesticides to the designated crops; and (ii) the disposition of any portion of the treated crop.

    (3) For the purpose of uniformity and to avoid confusion endangering the public health and welfare the director may adopt rules in conformity with the primary pesticide standards, particularly as to labeling, established by the United States environmental protection agency or any other federal agency.

    Sec. 9.  RCW 15.58.210 and 1997 c 242 s 6 are each amended to read as follows:

    (1) Except as provided in subsection (2) of this section, no individual may perform services as a pest control consultant without obtaining a license from the director.  The license shall expire annually on a date set by rule by the director.  Except as provided in subsection (3) of this section, no individual may act as a structural pest ((control)) inspector without first obtaining from the director a pest control consultant license in the special category of structural pest ((control)) inspector.  Application for a license shall be on a form prescribed by the director and shall be accompanied by a fee of forty-five dollars.

    (2) The following are exempt from the licensing requirements of subsection (1) of this section when acting within the authorities of their existing licenses issued under chapter 17.21 RCW:  Licensed commercial pesticide applicators and operators; licensed private‑commercial applicators; and licensed demonstration and research applicators.  The following are also exempt from the licensing requirements of subsection (1) of this section:  Employees of federal, state, county, or municipal agencies when acting in their official governmental capacities; and pesticide dealer managers and employees working under the direct supervision of the pesticide dealer manager and only at a licensed pesticide dealer's outlet.

    (3) The following are exempt from the structural pest ((control)) inspector licensing requirement:  Individuals inspecting for damage caused by wood destroying organisms if such inspections are solely for the purpose of:  (a) Repairing or making specific recommendations for the repair of such damage, or (b) assessing a monetary value for the structure inspected.  Individuals performing wood destroying organism inspections that incorporate but are not limited to the activities described in (a) or (b) of this subsection are not exempt from the structural pest ((control)) inspector licensing requirement.

NEW SECTION. Sec. 10.  This act takes effect July 1, 2000.

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