WSR 02-19-107

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed September 18, 2002, 10:24 a.m. ]

Supplemental Notice to WSR 02-14-092.

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

Title of Rule: Rules related to wood destroying organism (WDO) inspections, WAC 16-228-2005, 16-228-2035, and 16-228-2045.

Purpose: Current WDO inspection rules are vague and somewhat difficult for inspectors and their customers to understand. Clarification is needed as to which licensees must comply with the revised WDO inspection rules. Further clarification is necessary regarding when a diagram must be produced in a WDO inspection and to whom the diagram must be provided. Information included in a diagram can be helpful to home sellers and buyers when making decisions regarding repairs or chemical treatments for WDOs.

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 those currently in existence and new rules recently proposed. The proposed rules (WAC 16-228-2005 and 16-228-2035) inadvertently included only structural pest inspectors falling under the licensing authority of chapter 15.58 RCW and excluded those who fall under chapter 17.21 RCW, such as pest control operators who conduct WDO inspections. Clarification of when a diagram must be produced and the ultimate recipient of that diagram (WAC 16-228-2045) will aid all involved in the home sale and purchase process.

Reasons Supporting Proposal: Structural pest inspectors will be positively impacted by new, clarified 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, thereby resulting in an increased level of consumer protection.

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

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: Current WDO inspection rules are often difficult for inspectors, real estate agents, and their customers to understand. Clarification is needed as to which licensees must comply with the revised WDO inspection rules. The proposed rules inadvertently included only structural pest inspectors falling under the licensing authority of chapter 15.58 RCW and excluded those who fall under the licensing authority of chapter 17.21 RCW, such as pest control operators who conduct WDO inspections.

Further clarification is necessary regarding when a diagram must be produced in a WDO inspection and to whom the diagram must be provided. Some inspectors produce narrative reports that may adequately describe WDO problems for their customers. Other inspectors prefer to provide a diagram of problem areas along with a narrative report. Information included on a diagram can be helpful to home sellers and buyers when making decisions regarding repairs or chemical treatments for WDOs. Consumers should be allowed to make an informed decision as to whether a diagram is needed or not. Clarification of when a diagram must be produced and the ultimate recipient of that diagram will aid all involved in the home sale and purchase process.

Structural pest inspectors will be positively impacted by new, clarified 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, thereby resulting in an increased level of consumer protection.

Proposal Changes the Following Existing Rules: This supplemental filing is the department's response to testimony taken at the August 6, 2002, public hearing on the original notice. The department has made these changes to the proposed rules to address concerns related to the need and cost of providing a diagram for WDO inspection reports. The department believes that the proposed revisions to WAC 16-228-2045 attached to this supplemental filing effectively address the public concerns raised at the August 6, 2002, public hearing.

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 that 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 when requested by the customer. 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. Scaled diagrams are not required. Computer generated diagrams are not required. The proposed rule only requires that the "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." The impact of the proposed rule is further mitigated by the fact that the diagram must be given to the customer only when the customer requests it. The department received a great deal of testimony at the August 6, 2002, public hearing that a diagram is rarely requested by customers, therefore, it believes that a cost that it initially concluded was not "more than minor" is even less so.

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 8551 West Gage Boulevard, Suite H, Kennewick, WA; on October 29, 2002, at 6:00 p.m.

Assistance for Persons with Disabilities: Contact Laurie Mauerman by October 15, 2002, TDD (360) 902-1996.

Submit Written Comments to: Laurie Mauerman, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, e-mail lmauerman@agr.wa.gov, fax (360) 902-2093, by October 30, 2002.

Date of Intended Adoption: November 20, 2002.

September 18, 2002

Bob Arrington

Assistant Director

OTS-5939.1


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 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 16-228-2035   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 and must be performed by individuals required to be licensed. 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. Upon request, a copy must be provided to the person paying for and/or otherwise requesting the inspection.

(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.

(f) When a diagram is not provided as part of the report, the following statement must appear in a prominent location. "WAC 16-228-2045 requires that a diagram be prepared for WDO inspection reports. A copy is available upon request."

(g) Locations for this statement include, but are not limited to, the following:

(i) Above or beneath the WSDA ICN;

(ii) On written documents such as preinspection agreements or attachments to the report.

(h) This statement must stand out by having larger print than the main body of the report, be highlighted, or be in bold print.

(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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Washington State Code Reviser's Office