Chapter 16-228 WAC

The department is proposing amendments to multiple sections of this chapter to comply with the 2017 federal certified pesticide applicator rule update and subsequent Washington state certification plan approved by the United States Environmental Protection Agency (EPA) in December 2022.

The amendments include:

• Updating requirements for pesticide dealer/distributors. (WAC 16-228-1231; 16-228-1300). Updates include clarifying language to allow pesticide dealers to distribute/sell pesticides to other distributors and increase parameters for pesticide dealers to record during a sale/distribution of a restricted use pesticides, including pesticide license expiration date, category applicable to the product being purchased/distributed, and, if applicable, Section 18 or Special Local Need registration number.
• Updating pilot and aircraft requirements for pesticide applicators (WAC 16-228-1330), including updating language so requirements apply to all aerial applicators of pesticides, not just commercial applicators.
• Updating and clarifying pesticide license examination standards to articulate a waiting period between failures in rule rather than just in policy and to specify that exam proctors may not take pesticide license exams during an exam session they are proctoring. (WAC 16-228-1540).
• Updating pesticide licensing requirements to remove allowance for substitutions to meet the core pesticide requirements; add, merge, and remove licensing classifications (categories); and add language to increase and establish competency standards for all licensees. (WAC 16-228-1545, 16-228-15451 (new), 16-228-1546, 16-228-15461(new), and 16-228-1547).
• Adding a new section outlining the requirements for the direct supervision of non-certified applicators, including specifying responsibilities of both the supervising certified (licensed) applicator and the non-certified applicator and establishing a minimum age of non-certified applicators. (WAC 16-228-1548).
• Updating language in various sections for cleanup and consistency. (WAC 16-228-1010, 16-228-1320, 16-228-1530).

The Washington State Department of Agriculture (WSDA) oversees the initial and continued certification and licensing of pesticide applicators, dealer managers, consultants, and structural pest inspectors, enforcing federal and state requirements through a cooperative agreement with and delegated authority from the EPA in 40 CFR 171.
 
In 2017, the EPA published updates to the federal Certification of Pesticide Applicators Rules (C&T rule), 40 CFR 171, to strengthen certified applicator requirements to ensure safe and responsible use of restricted use pesticides. Prior to this, EPA had not updated federal requirements since the initial publication of this rule in 1974.

The updated federal C&T rule requires state lead agencies like the WSDA to establish and maintain state plans on the certification of pesticide applicators. State plans must, at a minimum, establish and meet the same criteria as the updated federal rule.

WSDA submitted the Washington-specific state plan to EPA in March 2020, and it was subsequently approved in December 2022. Chapter 17.21 RCW was updated during the 2023 legislative session in SB 5330 (Chapter 186, Laws of 2023) to comply with this federal law. This rule making amends chapter 16-228 WAC to implement the EPA-approved Washington State Plan, as required.
 
Conformity with 40 CFR § 171.303
The proposed rule is structured to achieve full conformity with the federal requirements outlined in 40 CFR § 171.303. Conformity, in this context, refers to the alignment of state regulatory language, categories, and standards with those established at the federal level by the Environmental Protection Agency (EPA) for the certification of restricted use pesticide (RUP) applicators.
 
40 CFR § 171.303 mandates that state certification plans must, at a minimum, incorporate specific federal standards relating to applicator competency, examination protocols, recertification intervals, supervision of noncertified applicators, and proper documentation. The proposed rule demonstrates conformity through several mechanisms:
 
Certification Categories: The rule language updates and, where necessary, expands or eliminates certification categories to reflect those listed in the federal regulation. This ensures that Washington’s categories are compatible with the federal framework and approved by the EPA, facilitating both intrastate and interstate recognition of credentials.
 
Competency Standards: The proposed rule adopts the federal definitions and standards for applicator competency, including the knowledge and skills required for safe and effective use of RUPs. This alignment guarantees that Washington-certified applicators meet or exceed the baseline expectations set by EPA.
 
Recertification and Examination: The amendments revise state certification intervals and examination requirements to match federal minimums, thereby ensuring consistency and preventing conflicts that might result from differing standards.

Supervision and Documentation: New sections are added to mirror the federal requirements for direct supervision of noncertified applicators and for the issuance and maintenance of certification documentation.
 
By mirroring the structure and content of 40 CFR § 171.303, these regulatory amendments ensure that WSDA’s Licensing and Recertification Program is not only consistent with federal law but also positioned for continued EPA approval.
 
Compliance with 40 CFR § 171.303
Compliance, in this context, must extend beyond mere alignment and fulfill the legal obligation to adopt and implement federal standards as a condition of maintaining state authority over the certification of RUP applicators. Under the Federal Insecticide, Fungicide, and Rodenticide (FIFRA), states are permitted to administer their own certification programs only if those programs are approved by the EPA and remain in compliance with federal requirements.

The proposed rule language was expressly written to bring Washington State’s certification program into full compliance with 40 CFR § 171.303 by:

Incorporating Federally Mandated Standards: The amendments integrate all elements required by the EPA, leaving no substantive gaps between state and federal expectations. This includes detailed requirements for training, testing, supervision, and documentation.

Demonstration of Accountability: By codifying federal standards in state regulation, Washington demonstrates to the EPA and the regulated community that it is fully accountable for upholding the integrity and effectiveness of its certification process.

Providing Legal Certainty: Adoption of the federal requirements into state law provides legal clarity and certainty for regulated entities, ensuring that they are subject to a single, harmonized set of standards.

In summary, the amendments to Chapter 16-228 WAC were strategically drafted to both conform and comply with federal mandates. Through harmonizing state and federal standards, Washington State not only secures EPA approval but also reaffirms its commitment to a pesticide certification program that is robust and equitable.

The department will hold public hearings to receive information and comments regarding the proposed amendments on:

Send written comments using one of the following:

Written submissions about the proposed rule may be inspected at:

Please contact Tina Zimmerman to discuss implementation and enforcement of the amended rule.

By mail:
Christina (Tina) Zimmerman, Licensing and Recertification Program Manager
Agricultural Environmental Services Division
Washington State Dept. of Agriculture
PO Box 42560
Olympia, WA 98504-2560