PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 07-03-21 [07-03-022] and 09-16-068.
Title of Rule and Other Identifying Information: WAC 16-228-1010 General pesticide rules definitions, 16-228-1380 Rules relating to vertebrate control pesticides, and chapters 16-230, 16-231 and 16-232 WAC, amend the definition of a commercial vineyard in the pesticide rules.
Hearing Location(s): Natural Resources Building, Room 205, 1111 Washington Street, Olympia, WA 98504-2560, on May 24, 2010, at 2:00 p.m.; and at the WSDA Yakima Office, Conference Room 238, 21 North First Avenue, Suite 226, Yakima, WA 98902, on May 26, 2010, at 11:00 a.m.
Date of Intended Adoption: June 30, 2010.
Submit Written Comments to: Teresa Norman, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by 5:00 p.m., May 28, 2010.
Assistance for Persons with Disabilities: Contact Maryann Connell by May 20, 2010, TTY (800) 833-6388 or (360) 902-2012.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Areas proposed for modification include:
| • | The entire WAC 16-228-1380, rules relating to vertebrate control pesticides, was revised to match current rule writing language standards. The title of the rule now reads "rules regulating the use of rodenticides." |
| • | Three new definitions were added to WAC 16-228-1010 to clarify the meaning of "properly secured," "loose bait," and "aboveground," all in relation to specific rodent control rules. These definitions were necessary to better define how to safely and legally use rodenticides. |
| • | The industry requested a revision to the rules to clarify current industry practices of indoor above floor treatments with rodenticides. |
| • | The language was revised to match EPA bait box requirements for outdoor above ground treatment and directed towards commercial use only. Homeowner use is covered by EPA. |
| • | Lastly, a new permit requirement was added for rodenticide tracking powder use. Rodenticide tracking powder is a very old and rarely used practice. It can be a very dangerous material to handle, and the potential harm if miss-applied is great. Greater control of the distribution and use of these materials was supported by the department and industry. |
| • | Amend the definition of a commercial vineyard to align with policy. |
The rules that would use this definition specify the restrictions on aerial application of pesticides in Eastern Washington.
Reasons Supporting Proposal: A request was made to the department of agriculture's attorney general to determine if the definition as it currently exists would allow the department to apply the county order restrictions to areas around vineyards that grew their own grapes for processing into wine. The department was informed that the current definition would not apply in those circumstances.
Statutory Authority for Adoption: Chapters 15.58, 17.21 RCW.
Statute Being Implemented: Chapters 15.58, 17.21 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed change would eliminate a possible area lacking regulations that were being enforced by policy.
Name of Proponent: Washington state department of agriculture, industry, private and governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Robin Schoen-Nessa, (360) 902-2038, and Ann Wick, (360) 902-2051, 1111 Washington Street S.E., Olympia, WA; and Enforcement: Cliff Weed, 1111 Washington Street S.E., Olympia, WA, (360) 902-2040.
No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires the department to prepare a small business economic impact statement for proposed rules that impose a more than minor cost on businesses and industry. The department has analyzed the economic impact of the proposed amendments and concluded that the cost imposed by the proposed changes are "not more than minor" and do not have a disproportionate impact on small businesses.
A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).
April 7, 2010
Bob Arrington
Assistant Director
OTS-2596.2
AMENDATORY SECTION(Amending WSR 07-11-041A, filed 5/9/07,
effective 6/9/07)
WAC 16-228-1010
What are the definitions that apply to
this chapter?
The definitions in this section apply
throughout this chapter, unless the context requires
otherwise:
(1) "Above ground" means situated on the surface of the ground, not to include treatment of below ground tunnels, burrows and/or nests.
(2) "Agricultural commodity" means any plant, or part of a plant, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by people or animals.
(((2))) (3) "Authorized agent" is any individual who is
authorized to act on behalf of a certified applicator for the
purpose of purchasing pesticides.
(((3))) (4) "Bait box" for rodenticides is a box
constructed of durable metal, wood, plastic, or other treated
material. It shall be designed to hold rodent bait securely,
allow rodents to enter and leave, and prevent unauthorized
individuals and nonpest domestic animals from gaining access
to the bait. Baits placed in industrial, commercial or other
areas that are accessible to the public shall be contained in
tamper resistant bait boxes. Fragile materials are
unacceptable.
(((4))) (5) "Bait station" may be any location where
baits are placed to allow target pests to gain access to the
bait.
(((5))) (6) "Blossoming plants" means:
(a) When there are five or more open blooms per square yard on average in a given field; or
(b) When there are one or more open blooms per tree or vine in an orchard or vineyard; or
(c) When there are five or more open weed blooms per square yard on average for the area being measured for groundcover in orchards or vineyards, fence lines, ditch banks, or field, vineyard or orchard edges. This definition shall not apply to plants that are not attractive to bees (e.g., lentils, hops, peas (Pisum sp.), pears (second bloom) and potatoes). For the purposes of this definition, "bloom" means a flower head, raceme or spike with one or more open flowers.
(((6))) (7) "Bulk fertilizer" is a commercial fertilizer,
agricultural mineral, or lime, distributed in nonpackaged
form.
(((7))) (8) "Certified applicator" means any individual
who is licensed as a commercial pesticide applicator,
commercial pesticide operator, public operator,
private-commercial applicator, demonstration and research
applicator, or certified private applicator, or any other
individual who is certified by the director to use or
supervise the use of any pesticide which is classified by the
EPA as a restricted use pesticide or by the state as
restricted to use by certified applicators only.
(((8))) (9) "Chemigation" means the application of any
substance or combination of substances intended as a
pesticide, plant or crop protectant or a system maintenance
compound applied with irrigation water.
(((9))) (10) "Commercial vineyard" means a parcel of land
from which the grape crop is intended to be sold to a
processor, or intended to be used for commercial wine making,
or intended for the commercial fresh market.
(((10))) (11) A "complainant" is defined as a person who
has requested an inspection of an area in which a pesticide
violation is believed to have occurred.
(((11))) (12) "Complete wood destroying organism
inspection" means 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 wood destroying
organism inspections must also include any wood destroying
organism inspection that is conducted as the result of
telephone solicitation by an inspector, pest control, or other
business, even if the inspection would fall within the
definition of a specific wood destroying organism inspection.
(((12))) (13) "Controlled disposal site" means any place
where solid or liquid waste is disposed of: Provided that the
area has been designated as a disposal site for waste
materials by the appropriate jurisdictional agency. The site
must be fenced, barricaded or otherwise enclosed or attended
by some person in charge to control the access of domestic
animals, pets, and unauthorized persons.
(((13))) (14) "Department" means the Washington state
department of agriculture.
(((14))) (15) "Diluent" means a material, liquid or
solid, serving to dilute the pesticide product to the
application rate for adequate coverage (such as water).
(((15))) (16) "Director" means the director of the
department or a duly authorized representative.
(((16))) (17) "Dry pesticide" is any granular, pelleted,
dust or wettable powder pesticide.
(((17))) (18) "EPA" means the United States Environmental
Protection Agency.
(((18))) (19) "EPA restricted use pesticide" means any
pesticide classified for restricted use by the administrator,
EPA.
(((19))) (20) "Fertilizer" as included in this chapter
means any liquid or dry mixed fertilizer, fertilizer material,
specialty fertilizer, agricultural mineral, or lime.
(((20))) (21) "FIFRA" means the Federal Insecticide,
Fungicide and Rodenticide Act as amended (61 stat. 163, 7
U.S.C. Sec. 136 net seq.).
(((21))) (22) "Floor level" means the floor upon which
people normally walk -- not shelves, ledges, overhead beams,
tops of stacked materials, surfaces of equipment, or similar
places.
(((22))) (23) "Food service establishment" means any
fixed or mobile restaurant; coffee shop; cafeteria; short
order cafe; luncheonette; grill; tearoom; sandwich shop; soda
fountain; tavern; bar; cocktail lounge; nightclub; roadside
stand; industrial-feeding establishment; retail grocery;
retail food market; retail meat market; retail bakery;
private, public, or nonprofit organization routinely serving
food; catering kitchen; commissary or similar place in which
food or drink is prepared for sale or for service on the
premises or elsewhere; and any other eating or drinking
establishment or operation where food is served or provided
for the public with or without charge.
(((23))) (24) "Fumigant" means any substance or
combination of substances that produce gas, fumes, vapors, or
smoke, and is used to kill pests in some kind of enclosure.
(((24))) (25) "High volatile esters" are phenoxy
hormone-type herbicides with five or less carbon atoms in the
ester group, such as, but not limited to, methyl, ethyl,
isopropyl, n-butyl, isobutyl and n-pentyl.
(((25))) (26) "Highly toxic pesticide" for the purpose of
this chapter, 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.
(((26))) (27) "Landscape application" means an
application by a certified applicator of any EPA registered
pesticide to any exterior landscape plants found around
residential property, commercial properties such as apartments
or shopping centers, parks, golf courses, schools including
nursery schools and licensed day cares, or cemeteries or
similar areas. This definition shall not apply to: (a)
Applications made by certified private applicators; (b)
mosquito abatement, gypsy moth eradication, or similar
wide-area pest control programs sponsored by governmental
entities; and (c) commercial pesticide applicators making
structural applications.
(((27))) (28) "Loose bait" means pellet, grain, seed,
meal, liquid or any other form of bait that can be spilled or
scattered, including bait packaged in a place pack. Loose
bait does not include single-block, paste or other
single-piece types of bait.
(29) "Low volatile esters" are phenoxy hormone-type herbicides with more than five carbon atoms in the ester group.
(((28))) (30) "Person" is defined as any individual,
partnership, association, corporation, or organized group of
persons whether or not incorporated.
(((29))) (31) A "person aggrieved" by a violation is
defined as a person who has reasonable grounds to believe that
he or she has been subjected to harm or an unreasonable risk
by such a violation.
(((30))) (32) "Pollen shedding corn" means that stage of
growth when ten percent or more of the corn plants in any one
quarter portion of the field are showing spike anthers.
(((31))) (33) "Positive identification" means a photo
identification document issued by a U.S. government agency or
affiliated jurisdiction (states, tribes, territories).
Acceptable photo identification documents are: A driver's
license, a passport, a military ID card or an immigration
green card. Exception: Nonphoto identification documents may
be allowed for religious groups that prohibit members from
having their picture taken. In this case, two forms of
identification are required, one of which must be a government
issued document with a signature (e.g., Social Security card).
Other nonphoto identification must identify the holder by name
and address (e.g., utility bill).
(((32))) (34) "Private applicator" means a certified
applicator who uses or is in direct supervision of the use of
any pesticide classified by the EPA or the director as a
restricted use pesticide for the purposes of producing any
agricultural commodity and for any associated noncrop
application on land owned or rented by the private applicator
or the applicator's employer or if applied without
compensation other than trading of personal services between
producers of agricultural commodities on the land of another
person.
(((33))) (35) "Private-commercial applicator" means a
certified applicator who uses or supervises the use of any
pesticide classified by the EPA or the director as a
restricted use pesticide for purposes other than the
production of any agricultural commodity on lands owned or
rented by the applicator or the applicator's employer.
(((34))) (36) "Properly secured" means firmly attached
and fixed to a floor or other surface so that animals and
children cannot overturn the bait box or displace the bait.
In the case of liquid baits, the bait container must be firmly
attached and fixed to a floor surface only.
(37) "Specific wood destroying organism inspection" means an inspection of a structure for purposes of identifying or verifying evidence of an infestation of wood destroying organisms prior to pest management activities.
(((35))) (38) "State restricted use pesticide" means any
pesticide determined to be a restricted use pesticide by the
director under the authority of chapters 17.21 and 15.58 RCW.
(((36))) (39) "Structural pest inspector" means any
individual who performs the service of conducting a complete
wood destroying organism inspection or a specific wood
destroying organism inspection.
(((37))) (40) "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.
(((38))) (41) "Use restricted pesticide" means any
pesticide determined by the director to need further state
restrictions on use under the authority of chapters 17.21 and
15.58 RCW. This designation does not change federal or state
restricted use classifications.
(((39))) (42) "Waste pesticide" is any pesticide
formulation which cannot be used according to label directions
in Washington state because of cancellation or suspension of
its federal or state registration, or deterioration of the
product or its label, and any pesticide formulation whose
active ingredients are not clearly identifiable because of
label deterioration or because the pesticide is not stored in
its original container.
[Statutory Authority: Chapters 17.21, 15.58, and 34.05 RCW. 07-11-041A, § 16-228-1010, filed 5/9/07, effective 6/9/07; 03-22-029, § 16-228-1010, filed 10/28/03, effective 11/28/03. Statutory Authority: Chapters 15.58, 17.21 RCW. 00-22-073, § 16-228-1010, filed 10/30/00, effective 11/30/00. Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1010, filed 10/20/99, effective 11/20/99.]
OTS-3045.2
AMENDATORY SECTION(Amending WSR 03-22-029, filed 10/28/03,
effective 11/28/03)
WAC 16-228-1380
What are the ((regulations))
requirements for application of ((vertebrate)) rodent control
pesticides?
((Vertebrate)) Rodent control pesticides shall be
used in and around structures only under the following
conditions, provided that the use of rodent control baits
registered for home and garden use only, is exempt from this
section:
(1) ((Vertebrate control pesticides)) Bait shall only be
placed ((only)) in locations ((that are)) not readily
accessible to ((nonpest animals,)) children, ((and
unauthorized persons, and in a manner that shall preclude
contamination of food, feed, drugs, and other consumer
commodities. Exposure of rodenticides baits within buildings
shall not be above floor levels)) pets and nontarget wildlife,
provided that when properly secured, a locked and/or sealed
tamper-resistant bait box may be used in accessible locations.
(2) ((Baits shall be colored or otherwise formulated so
that they will be identifiable from foods common to the
establishment in which the bait is placed.)) Locked bait boxes
are required for all outdoor, aboveground bait placement.
(3) ((When the use of bait boxes is necessary to ensure
that baits are not readily accessible to nonpest animals,
children, and unauthorized persons, the bait boxes shall be of
sturdy construction and tamper resistant. Baits placed in
industrial, commercial or other areas that are accessible to
the public shall be contained in tamper resistant bait boxes
and such bait boxes shall be secured in such a way that
nonpest animals, children and unauthorized persons cannot
displace or remove the baits out of such bait boxes. Bait
boxes shall be labeled clearly with letters on contrasting
background showing the following information:
(a) Any information required by the EPA or Washington state registered label for the bait or the concentrate from which it was formulated.
(b) The name of the active ingredient(s).
(c) The name of the firm and/or certified applicator, address, and the telephone number.)) Bait shall not be placed in a manner that can contaminate, or be easily translocated to food, feed, drugs, or other consumer commodities. Spilled bait must be cleaned up immediately.
(4) ((Containers used for exposing vertebrate control
baits to pests shall be composed of tough, nonabsorbent,
corrosion resistant materials and designed so they cannot be
readily overturned or carried off by pest animals. Those
containers that are used for exposing vertebrate control
pesticides outside of bait boxes shall bear a legible warning
label with wording not less restrictive than requirements on
bait boxes being used as per WAC 16-228-1380(3), (except for
the size of lettering). Food containers, such as "meat boats"
and "souffle cups" are unacceptable. Containers used for
liquid bait exposure shall be water and/or liquid
impervious.)) Loose bait, whether contained in a bait box or
not, shall not be placed above floor levels, including but not
limited to suspended ceilings, shelves, ledges, cupboards and
counters. Except that, loose bait may be placed on the floor
of an attic, including unfinished walking surfaces, or bottom
surfaces in conformance with all other requirements of this
section.
(5) All ((vertebrate control pesticide stocks, when not
in use or when unattended, shall be kept in locked storage or
locked service vehicles)) bait boxes and containers used for
bait placement shall be of sturdy construction, composed of
durable, nonabsorbent, corrosion resistant material and
designed to prevent overturning. All bait containers holding
liquid bait shall be liquid impervious and shall be properly
secured.
(6) All bait boxes and containers used for ((storing or
transporting vertebrate control pesticides shall bear an EPA
or department registered label)) bait placement shall be
labeled with letters on contrasting background and maintained
with the following information clearly legible on the outside
of the bait box or container:
(a) The name, physical address, and telephone number of the company and/or certified applicator.
(b) The name, Environmental Protection Agency (EPA) registration number, and active ingredient(s) of the rodent control pesticide product.
(7) When detection baits without pesticides are placed in bait containers, the container must clearly identify that the contents are not a pesticide.
(((7) Applicator's kits which contain vertebrate control
pesticides)) (8) Rodenticide bait, when in use to fill bait
containers shall be handled with ((extra)) caution ((and))
according to the label, shall not be left unattended where
children ((or other unauthorized persons)) or nontarget
animals might ((remove)) be exposed to the contents and be in
a container that bears an EPA registered label.
(((8))) (9) Upon completion of a baiting operation, all
bait ((boxes, containers, and/or throw bags)), if ((they)) it
may become readily accessible to the public, shall be
recovered ((for disposal in an approved manner)) and disposed
of according to the product label.
(((9) Wherever poisoned carcasses jeopardize public
sanitation, or create a health hazard to wildlife, domestic
animals, or the public, they shall be recovered and disposed
of by burning, burying not less than three feet below the soil
surface, or placed in proper waste containers and delivered to
an approved disposal site.)) (10) Rodenticide tracking powders
shall not be used in any manner that will expose people,
nontarget animals, food, feed, drugs, or other consumer
commodities to the powder. The use of rodenticide tracking
powders is prohibited in or on residential structures, except
by written permission of the Washington state department of
agriculture. Applicators who wish to use a rodenticide
tracking powder in or on a residential structure must submit a
request in writing to be received by the department at least
seven days prior to the intended application date. The
written request must include:
(a) The name, address, and telephone number of the occupants of the structure.
(b) The date and time of the intended application.
(c) The specific locations in or on a structure and the means by which the rodenticide tracking powder will be applied.
(d) A justification for the need to use the rodenticide tracking powder.
(e) What steps will be taken to ensure the rodenticide tracking powder does not contaminate any living area or otherwise result in an exposure to people or nontarget animals.
(11) Rodenticide tracking powder that contaminates an unintended location must be immediately and thoroughly cleaned up according to label instructions, or in the absence of label instructions, according to instructions obtained from the manufacturer.
[Statutory Authority: Chapters 17.21, 15.58, 34.05 RCW. 03-22-029, § 16-228-1380, filed 10/28/03, effective 11/28/03. Statutory Authority: Chapters 15.58, 17.21 RCW. 00-22-073, § 16-228-1380, filed 10/30/00, effective 11/30/00. Statutory Authority: Chapters 15.54, 15.58 and 17.21 RCW. 99-22-002, § 16-228-1380, filed 10/20/99, effective 11/20/99.]
OTS-2597.1
AMENDATORY SECTION(Amending WSR 07-11-041A, filed 5/9/07,
effective 6/9/07)
WAC 16-230-665
What are the restrictions on aerial
applications near vineyards?
(1) Aerial application of use
restricted herbicides is prohibited within one mile of any
commercial vineyard: Provided, That the Washington state
department of agriculture may approve written requests and
issue permit for aerial application of use restricted
herbicides that may be applied to lands located one-half to
one mile from commercial vineyards: Provided further, That no
distance restrictions shall apply to aerial applications of
use restricted herbicides near vineyards during the grape
dormant season if written permission of the vineyard
owner/manager is obtained. EXCEPTIONS are found in Franklin and
Grant County restrictions.
(2) Commercial vineyard means a parcel of land from which the grape crop is intended to be sold to a processor, or intended to be used for commercial wine making, or intended for the commercial fresh market.
[Statutory Authority: Chapters 17.21, 15.58, and 34.05 RCW. 07-11-041A, § 16-230-665, filed 5/9/07, effective 6/9/07. Statutory Authority: Chapters 17.21 and 15.58 RCW. 87-18-060 (Order 1950), § 16-230-665, filed 9/1/87; 80-03-041 (Order 1680), § 16-230-665, filed 2/20/80.]
OTS-2598.1
AMENDATORY SECTION(Amending WSR 07-11-041A, filed 5/9/07,
effective 6/9/07)
WAC 16-231-335
What are the restrictions on applications
near vineyards?
(1) Aerial applications of use restricted
herbicides are prohibited within one mile of any commercial
vineyard in the area under order: Provided, That aerial
application of use restricted herbicides to lands located
within one-half mile to one mile from commercial vineyards
shall be considered through written request to the Washington
state department of agriculture.
(2) Commercial vineyard means a parcel of land from which the grape crop is intended to be sold to a processor, or intended to be used for commercial wine making, or intended for the commercial fresh market.
[Statutory Authority: Chapters 17.21, 15.58, and 34.05 RCW. 07-11-041A, § 16-231-335, filed 5/9/07, effective 6/9/07. Statutory Authority: Chapters 15.58 and 17.21 RCW. 80-03-035 (Order 1674), § 16-231-335, filed 2/20/80.]
(2) Commercial vineyard means a parcel of land from which the grape crop is intended to be sold to a processor, or intended to be used for commercial wine making, or intended for the commercial fresh market.
[Statutory Authority: Chapters 17.21, 15.58, and 34.05 RCW. 07-11-041A, § 16-231-835, filed 5/9/07, effective 6/9/07. Statutory Authority: Chapters 15.58 and 17.21 RCW. 80-03-028 (Order 1667), § 16-231-835, filed 2/20/80.]
OTS-2599.1
AMENDATORY SECTION(Amending WSR 07-11-041A, filed 5/9/07,
effective 6/9/07)
WAC 16-232-030
What are the restrictions on aerial
applications near vineyards?
(1) Aerial applications of use
restricted herbicides are prohibited within one mile of any
commercial vineyard: Provided, That aerial application of use
restricted herbicides to lands located within one-half to one
mile from commercial vineyards will be considered through
written request of the Washington state department of
agriculture.
(2) Commercial vineyard means a parcel of land from which the grape crop is intended to be sold to a processor, or intended to be used for commercial wine making, or intended for the commercial fresh market.
[Statutory Authority: Chapters 17.21, 15.58, and 34.05 RCW. 07-11-041A, § 16-232-030, filed 5/9/07, effective 6/9/07. Statutory Authority: Chapters 15.58 and 17.21 RCW. 80-03-026 (Order 1665), § 16-232-030, filed 2/20/80.]