Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-17-140.

     Title of Rule and Other Identifying Information: The department is proposing to revise WAC 16-228-1545 and 16-228-1546 to establish the soil fumigation category for private applicators (PA) seeking a certification option to label-mandated training on soil fumigants.

     Hearing Location(s): Washington State Department of Agriculture (WSDA), Natural Resources Building (NRB), 1111 Washington Street S.E., Second Floor, Room 259, Olympia, WA 98504, on Wednesday, December 12, 2012, at 2:00 p.m.

     Date of Intended Adoption: December 20, 2012.

     Submit Written Comments to: Margaret Tucker, Program Manager, P.O. Box 42560, Olympia, WA 98504-2560, e-mail mtucker@agr.wa.gov, fax (360) 902-2093, by December 12, 2012.

     Assistance for Persons with Disabilities: Contact agency receptionist at (360) 902-1976, by December 5, 2012, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal would revise WAC 16-228-1546 to provide a certification option for PAs to label-mandated training prior to soil fumigant use. This training is a risk mitigation measure required by the Environmental Protection Agency (EPA) following a re-registration review. However, in lieu of training, EPA is allowing states to provide a certification option. PAs that add a new soil fumigation license category after passing an exam that addresses the new mitigation measures will be exempt from the label-mandated training. This certification option will remain valid as long as the licensee is in an active recertification cycle. WSDA is interested in providing this option to applicators that are unable to attend registrant-provided training or that prefer a certification option.

     Reasons Supporting Proposal: Exam requirements, including categories necessary for Washington state pesticide licenses, are defined in the general pesticide rules (WAC 16-228-1545(3)). Except for the aquatic category, which is required when a farmer or their employee applies to water moving off the PA's property, PAs are not required to add categories to their license. While the soil fumigation category for PAs will be voluntary in lieu of the label-mandated training, it would be useful to amend the rule addressing PA licensing (WAC 16-228-1546) to provide this certification option. This would provide EPA with confirmation of the licensing option and provide a regulatory basis for PAs wishing to use a certification option to meet the new label requirements.

     Statutory Authority for Adoption: RCW 17.21.030, 15.58.040, and chapter 34.05 RCW. Also 3ESBH [3ESHB] 2127.

     Statute Being Implemented: RCW 17.21.030, 15.58.040.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: WSDA, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Margaret Tucker, 1111 Washington Street S.E., 2nd Floor, (360) 902-2015.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This provides a certification option for PAs to label-mandated training that will be required on soil fumigation labels beginning in December 2012. PAs are not required to add the soil fumigation category to their pesticide license but may do so if they choose in order to avoid the label-mandated training.

     A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

October 31, 2012

Ted Maxwell

Acting Assistant Director

Pesticide Management Division

OTS-4998.2

AMENDATORY SECTION(Amending WSR 03-22-029, filed 10/28/03, effective 11/28/03)

WAC 16-228-1545   What are the pesticide licensing requirements?   (1) All individuals licensed or required to be licensed as commercial pesticide applicators, commercial pesticide operators, private-commercial applicators, demonstration and research applicators, public operators, structural pest inspectors, pest control consultants and public pest control consultants must be certified, through examination, in all pest control classifications defined in subsection (3)(a) through (((x))) (y) of this section in which they operate, inspect or consult. Additionally, commercial pesticide applicators must be licensed in all classifications that the business operates. Licensed applicators may directly supervise unlicensed applicators only in those classifications in which they have a valid certification.

     (2) To qualify for any pesticide license listed in subsection (1) of this section, applicants, except the structural pest inspector, must pass a "laws and safety" examination or equivalent, that includes, but is not limited to, the following: The state and federal laws governing pesticide use and the regulating agencies; general pesticide uses and application techniques; safe use of pesticides; general pesticide labeling comprehension; environmental fate of pesticides, and appropriate storage and disposal of pesticides and their containers. Individuals holding valid, passing scores on the private applicator or dealer manager exam are exempt from this examination requirement. Structural pest inspectors conducting complete wood destroying organism inspections must pass a "structural pest inspector laws and standards" examination or equivalent that includes, but is not limited to, the legal requirements governing structural pest inspectors and the standards for conducting complete wood destroying organism inspections.

     (3) License classifications.

     (a) Agricultural weed: The control of weeds, except with soil fumigants, in all agricultural crops including forest environments, and in former agricultural lands now in a noncrop status.

     (b) Rights of way weed: The control of weeds, including cut stumps, on, but not limited to, terrestrial rights of way locations such as roads and/or highways, railroads, power lines and irrigation ditches and to industrial sites, including, but not limited to, airports, industrial parks, and large parking areas.

     (c) Turf and ornamental weed: The control of weeds (and moss), including cut stumps, in ornamental and turf situations, which includes, but is not limited to, golf courses, parks, schools, lawns, yards, gardens, hospitals, vacant lots and open noncrop waste areas.

     (d) Structural and turf demossing: The control of moss on structures and turf.

     (e) Stump treatment: The use of herbicides on cut stumps to control resprouting.

     (f) Soil fumigation: The use of soil-applied fumigants on agricultural crops and noncrop land to control pests including weeds, insects and diseases.

     (g) Soil fumigation RMM: The use of soil fumigants to control pests including weeds, insects, and diseases. This category addresses risk mitigation measures on soil fumigant labels as a result of EPA's Reregistration Eligibility Decision process.

     (h) Sewer root: Control of roots in sewer lines.

     (((h))) (i) Agricultural insect and disease: The control of insects and diseases, except with soil fumigants, in agricultural crops including forest environments.

     (((i))) (j) Ornamental insect and disease: The control of insects and diseases in ornamental, turf and rights of way situations including, but not limited to, golf courses, parks, schools, lawns, yards, gardens, greenhouses, hospitals and rest homes. This includes, but is not limited to, the use of insecticides, miticides, fungicides, bacteriocides, molluscides and nematocides.

     (((j))) (k) Interior plantscaping: The control of insects and diseases in interior plantscapes.

     (((k))) (l) PCO general: The control of insects, spiders, birds, rodents and animal pests in and around, but not limited to, the following situations: Residences, public buildings and grounds, commercial buildings and grounds, disposal sites, animal feed lots and farmsteads, including buildings and transportation equipment.

     (((l))) (m) PCO structural: The control of structurally destructive pests including, but not limited to, fungus, termites, carpenter ants, carpenter bees and wood-boring beetles. This classification allows a licensee to perform specific wood destroying organism inspections.

     (((m))) (n) Structural pest inspector: Allows for the commercial inspection of buildings for structurally destructive pests, their damage and conditions conducive to their development. This classification is required to perform complete wood destroying organism inspections.

     (((n))) (o) Stored grain: The use of pesticides (including fumigants and rodenticides) in grain storing facilities and railcars.

     (((o))) (p) Fumigant: The use of fumigants only (such as methyl bromide and aluminum phosphide) on stored commodities.

     (((p))) (q) Seed treatment: The application of pesticides to seeds to control destructive insects and diseases.

     (((q))) (r) Sprout inhibitor: Use of a pesticide to control sprouting in stored potatoes.

     (((r))) (s) Livestock pest: The control of external and internal pests of animals, with the exception of viruses((,)) including, but not limited to, beef cattle, dairy cattle, swine, sheep, horses, goats and poultry, and also treatment of livestock premises.

     (((s))) (t) Pest animal: The control of pest animals in agricultural situations.

     (((t))) (u) Aquatic: The control of aquatic pests in water areas including, but not limited to, canals, rivers, streams, lakes, ponds, marshes and pipe lines.

     (((u))) (v) Aquatic irrigation: Limited to the control of aquatic pests in irrigation district water delivery systems where the pesticide is applied directly into the water or enters the water due to the application of the pesticide. Pests include, but are not limited to, moss, algae, cattails, pond weeds and other emersed and submersed aquatic weeds.

     (((v))) (w) Public health: Application of pesticides by governmental employees and certain others in public health programs such as, but not limited to, mosquito control, rodent control and insect control in situations having medical and public health importance.

     (((w))) (x) Aquatic antifouling: Use of antifouling paints to control fouling organisms on marine vessels.

     (((x))) (y) Wood treatment: Use of wood preservatives for the control of wood damaging pests.

     (4) All examinations required under this section shall be written and taken without the aid of any materials that contain information relevant to the exam content. Reading of exams by an individual other than the applicant is not permitted.

     (5) A passing score of seventy percent is established for all the examinations required under this section. The department may establish separate passing scores for the examinations if a validated process is used. Passing scores are valid for obtaining a license in the calendar year in which the examination is taken plus the following calendar year.

     (6) The department may waive any of the examination requirements contained in this section for any person holding a valid certification with similar classifications from an EPA or Canadian approved federal, state or provincial certification program with comparable examination and recertification standards.

[Statutory Authority: Chapters 17.21, 15.58, 34.05 RCW. 03-22-029, § 16-228-1545, filed 10/28/03, effective 11/28/03. Statutory Authority: Chapters 15.58 and 17.21 RCW. 00-24-013, § 16-228-1545, filed 11/27/00, effective 12/28/00.]

     (2) Private applicators making aquatic applications to water that moves off their own or their employer's agricultural land must obtain the aquatic classification described in WAC 16-228-1545 (3)(t). Private applicators applying soil fumigants may obtain the soil fumigation classification described in WAC 16-228-1545 (3)(g) as an option to meet label required active ingredient training.

     (3) A passing score of seventy percent is established for the examinations required under this section. The department may establish separate passing scores for the examinations if a validated process is used. Passing scores are valid for obtaining a license in the calendar year in which the examination is taken plus the following calendar year.

     (4) The department may waive the examination requirements contained in this section for any person holding a valid certification with similar classifications from an EPA or Canadian approved federal, state or provincial certification program with comparable examination and recertification standards.

[Statutory Authority: Chapters 17.21, 15.58, 34.05 RCW. 03-22-029, § 16-228-1546, filed 10/28/03, effective 11/28/03. Statutory Authority: Chapters 15.58 and 17.21 RCW. 00-24-013, § 16-228-1546, filed 11/27/00, effective 12/28/00.]