WSR 00-19-088

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed September 20, 2000, 10:15 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-03-079.

Title of Rule: Rules relating to pesticide licensing requirements, chapter 16-228 WAC.

Purpose: The rule formalizes pesticide licensing examination requirements that have been required for several years. It details which examinations are required for pesticide licenses, provides a description of each of the separate classifications which are obtained through written examination, allows for examination substitutions and exemptions, and establishes passing scores. It also makes it a violation of the law to disregard examination session testing requirements.

Statutory Authority for Adoption: Chapters 15.58 and 17.21 RCW.

Statute Being Implemented: Chapters 15.58 and 17.21 RCW.

Summary: State and federal pesticide law requires Washington to ensure the competency of individuals using restricted use pesticides in those classification in which they operate. Washington extends this requirement to many users of general use pesticides as well. For several years, the Washington State Department of Agriculture (WSDA) has accomplished this through classification specific examination. These examination requirements have been detailed through printed materials and, more recently, through the Internet. This rule places this information formally into rule. All of the examinations used by WSDA to ensure competency are detailed in the rule. Because the integrity of the testing process is critical to ensuring confidence in the examination process, the rule makes it a violation of the law to act contrary to established testing procedures.

Reasons Supporting Proposal: To formalize requirements of state and federal pesticide law that have been required for several years.

Name of Agency Personnel Responsible for Drafting and Implementation: Margaret Tucker, 1111 Washington Street, Olympia, WA 98504-2589, (360) 902-2015; and Enforcement: Cliff Weed, 1111 Washington Street, Olympia, WA 98504-2589, (360) 902-2036.

Name of Proponent: Department of Agriculture, governmental.

Rule is necessary because of federal law, 40 C.F.R. Part 171.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule formally defines pesticide license examination requirements that have been in place for several years. This will allow for clarity and greater enforceability thus giving greater credibility to Washington's ability to ensure competent use of pesticides.

Proposal Changes the Following Existing Rules: Amends WAC 16-228-1500 to make it a violation to not comply with testing policies set forth at the beginning of exam sessions. This section is also amended to not only make it a violation to remove examinations from a testing session but also contents of the exam.

The remaining proposals would constitute new sections.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The examination requirements required under this rule have been in place for several years and so no additional burden would be expected.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. WSDA is not a listed agency in section 201.

Hearing Location: Washington State Department of Agriculture, Room 205, 1111 Washington Street, Olympia, WA 98504, on November 9, 2000, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by October 30, 2000, TDD (360) 902-1996.

Submit Written Comments to: Margaret Tucker, P.O. Box 42589, Olympia, WA 98504-2589, fax (360) 902-2093, by November 10, 2000.

Date of Intended Adoption: November 24, 2000.

September 20, 2000

Bob Arrington

Assistant Director

OTS-4352.1


AMENDATORY SECTION(Amending WSR 99-22-002, filed 10/20/99, effective 11/20/99)

WAC 16-228-1500
License denied, revoked or suspended.

(1) The director may deny, suspend, or revoke any provision of a license, registration, permit or certification issued under chapters 17.21 and 15.58 RCW if he finds that the applicant or the holder of the license, permit, or certification has committed any of the following acts each of which is declared to be a violation:

(a) Made false or fraudulent claims through any media misrepresenting the effect of materials or methods to be utilized;

(b) Made a pesticide recommendation or gave advice or used a pesticide inconsistent with the labeling, the EPA or Washington state registration for that pesticide, an EPA or Washington state experimental use permit for that pesticide, an exemption from registration under provisions of section 18 of FIFRA, or in violation of the EPA or Washington state restrictions on the use of that pesticide;

(c) Applied known ineffective or improper pesticides or materials;

(d) Operated a faulty or unsafe apparatus;

(e) Operated in a faulty, careless or negligent manner;

(f) Refused or neglected to comply with the provisions of the applicable sections of chapters 15.58 and 17.21 RCW, the rules adopted thereunder, or of any lawful order of the director;

(g) Refused or neglected to keep and maintain records required by chapters 15.58, 17.21 RCW, and rules adopted thereunder, or to make reports when and as required;

(h) Made false or fraudulent records, invoices, reports, and/or recommendations;

(i) Caused the application of a pesticide without having a licensed or certified applicator or operator in direct supervision;

(j) Operated an unlicensed apparatus or an apparatus without a license plate issued for that particular apparatus as provided for in chapter 17.21 RCW or failed to locate the apparatus license plate on the apparatus in a manner required by the department;

(k) Failed to properly display, when required, a department issued certified commercial ground applicator vehicle sticker;

(l) Used, or supervised the use of a pesticide which is restricted to use by certified applicators without having qualified as a certified applicator;

(m) Used fraud or misrepresentation in making an application for a license, permit, or certification or renewal of a license, permit or certification;

(n) Refused or neglected to comply with any limitations or restrictions on or in a duly issued license, permit or certification;

(o) Aided or abetted a certified applicator, or licensed person or an uncertified or unlicensed person to evade the provisions of chapters 17.21 and 15.58 RCW, conspired with such a certified applicator or licensed person or an uncertified or unlicensed person to evade the provisions of chapters 17.21 and 15.58 RCW or allowed one's license, permit, or certification to be used by another person;

(p) Made false, misleading or erroneous statements or reports during or after an inspection concerning any infestation or infection of pests found on land or in connection with any pesticide complaint or department investigation;

(q) Impersonated any state, county, or city inspector or official;

(r) Is not qualified to perform as a pest control consultant or pesticide dealer manager or certified applicator in the classifications in which he/she is licensed to operate or has operated, regardless of whether or not he/she has previously passed an examination provided for in chapter 15.58 RCW;

(s) To have in his/her possession a department pesticide ((applicator, operator, dealer manager or pest control consultant)) licensing examination or to remove or cause to remove any said examination or its contents from the department without expressed consent from the department; ((or))

(t) To violate the testing policies set forth by department representatives prior to the start of an examination session; or

(u) Made or failed to make an inspection, statement, or report in violation of WAC 16-228-2000 through 16-228-2040.

(2) A penalty fee assessed as a result of a late license or registration renewal does not prevent the department from taking additional regulatory action against the violator.

(3) No pesticide dealer or dealer manager license shall be denied, suspended, or revoked, simply because a pesticide purchased from that dealer was applied in violation of chapters 15.58, 17.21 RCW or rules adopted thereunder, unless the department finds the dealer or dealer manager in violation of chapters 15.58, 17.21 RCW or rules adopted thereunder.

[Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, 16-228-1500, filed 10/20/99, effective 11/20/99.]


NEW SECTION
WAC 16-228-1545
Pesticide examination 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, 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) of this section in which they operate 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 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.

(3) License classifications.

(a) Agricultural weed: The control of weeds, except with soil fumigants, in all agricultural crops including forest environments.

(b) Rights of way weed: The control of weeds, including cut stumps, on, but not limited to, the following terrestrial rights of way locations: City, county, state and federal roads and/or highways, railroads, power lines and irrigation ditches.

(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, and hospitals.

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

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

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

(k) 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) PCO structural: The control of structurally destructive pests including, but not limited to, fungus, termites, carpenter ants, carpenter bees and wood-boring beetles.

(m) Structural pest inspector: Allows for the commercial inspection of buildings for structurally destructive pests, their damage and conditions conducive to their development.

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

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

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

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

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

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

(u) Aquatic irrigation: Limited to the control of aquatic pests of 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) Public health: This 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) Aquatic antifouling: Use of antifouling paints to control fouling organisms on marine vessels.

(x) 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 approved state or federal certification program with comparable examination and recertification standards.

[]


NEW SECTION
WAC 16-228-1546
Private applicator examination requirement.

(1) To qualify for a private applicator license, an individual must pass a private applicator examination. The examination shall be written and taken without the aid of any materials that contain information relevant to the exam content. Reading of exams by an individual other than the applicant is not permitted. Individuals holding valid, passing scores on the laws and safety examination, or equivalent, or the dealer manager exam, and one of the classifications in WAC 16-228-1545 (3)(a) or (h) or the now retired state-wide classification, are exempt from this examination requirement.

(2) Private applicators making aquatic applications to water that moves off their own or their employer's agricultural land must obtain the aquatic classification described in WAC 16-228-1545 (3)(t).

(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 approved state or federal certification program with comparable examination and recertification standards.

[]


NEW SECTION
WAC 16-228-1547
Dealer manager examination requirement.

(1) To qualify for a dealer manager license, an individual must pass a dealer manager examination. The examination shall be written and taken without the aid of any materials that contain information relevant to the exam content. Reading of exams by an individual other than the applicant is not permitted.

(2) A passing score of seventy percent is established for the examination required under this section. The department may establish a separate passing score for the examination 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.

[]

Washington State Code Reviser's Office