Oregon Bulletin
August 1, 2009
Rule
Caption: Implements department
authority to supervise price negotiations between blackberry growers and
buyers/packers.
Adm. Order No.: DOA 7-2009(Temp)
Filed with Sec. of
State: 6-23-2009
Certified to be
Effective: 6-30-09 thru 12-20-09
Notice Publication
Date:
Rules Adopted: 603-076-0100, 603-076-0105
Subject: SB 409 provides authority for the Department to
conduct active supervision of price negotiations between blackberry growers and
packers/dealers with antitrust immunity. This rule sets out a basic framework
to conduct negotiations for the 2009 crop. The rule also sets fees for
conducting the regulatory programs as required in this legislation.
Rules Coordinator: Sue Gooch—(503) 986-4552
603-076-0100
Definitions
As used in these regulations, unless the context
requires otherwise:
(1) “Blackberry dealer” and “blackberry packer” means
dealer as defined in ORS 646.515(3)(a), or a licensed food processor that is a
cooperative.
(2) “Grower Bargaining Association” refers to any
growers association legally organized in accordance with Federal Capper-Volstead
Laws (7 U.S.C. 291-292) and state law (ORS 646.515 to 646.545) for
incorporation as a grower cooperative or bargaining unit for blackberries.
(3) “Mediate” or “mediation” has the same meaning as
ORS 36.110(5).
(4) “Price negotiation,” “negotiate,” or “bargain”
means to discuss the terms of a contract price and related issues, and attempt
to come to agreement.
(5) “Director” means the Director of Agriculture or a
designee of the Director of Agriculture.
(6) “Department” means the Oregon Department of
Agriculture.
(7) “Active supervision,” “active state supervision,”
and “actively supervise” means the Department’s regulatory oversight of the
price discussions among dealers, and price negotiations between dealers and
grower representatives of a grower bargaining association for the purpose of
arriving at a negotiated price for the sale of blackberries under production
contracts or other arrangements that meet standards established by the
Blackberry Bargaining Council.
(8) “Negotiated price” means the proposed price for
blackberries agreed upon by representatives of a grower bargaining association
and blackberry dealers.
(9) “Established price” means the price set and
approved by the Director as the price at which blackberries produced by grower
members of the bargaining association shall be sold to dealers.
(10) “State action immunity” means immunity liability
under the federal antitrust laws and the Oregon Antitrust Act for conduct that
is carried out pursuant to a regulatory program in which competition in certain
areas of the blackberry industry in Oregon is displaced by regulations and
active state supervision in accordance with ORS 62.845, 62.848, 646.535 and
646.740.
(11) “Parties” or “party” means blackberry producers,
blackberry grower associations, blackberry processing or marketing
cooperatives, or blackberry dealers who are participants in the state
regulatory program for establishing prices on blackberries produced in Oregon.
(12) “Blackberry Bargaining Council” means the
collective group of blackberry dealers and blackberry growers from the
bargaining association, who voluntarily meet under the auspices of the
department for the purposes of price negotiations.
(13) “Regulatory program” means the state regulatory
program described in ORS 62.015, 62.845, 62.848, 646.535 and 646.740 that is
actively supervised by the Director of Agriculture, and that authorizes parties
to engage in bargaining and negotiations to establish the price and terms of
blackberry products produced under contract or other terms and sold to
blackberry dealers.
[Publications referenced are
available from the agency.]
Stat. Auth.: SB 409 (2009); ORS
62.015, 62.848, 646.535 & 646.740
Stats. Implemented: ORS 62.015,
62.845, 62.848, 646.535, 646.740
Hist.: DOA 7-2009(Temp), f.
6-23-09, cert. ef. 6-30-09 thru 12-20-09
603-076-0105
Active State Supervision of
Blackberry Price Negotiations
Where more than one blackberry dealer is agreeable to
meet with a grower bargaining association, it is the intent of the department
that the process of state supervised price negotiations for blackberries will
assist in good faith negotiations by all parties, the generation of credible
data on which to make pricing decisions, and the efficiency and efficacy of
price discovery.
To ensure that the Director is actively supervising the
conduct of the grower representatives and the blackberry dealers under the
regulatory program in accordance with the requirements of the federal antitrust
laws and the Oregon Antitrust Act (ORS 646.740):
(1) The Director or the director’s designee shall
attend all meetings between the grower association and blackberry dealer
representatives pursuant to the regulatory program and shall monitor, and if
necessary, mediate the price negotiations between the representatives at these
meetings.
(2) The Director or the director’s designee may compel
the parties to take whatever action the Director considers necessary to ensure
that all parties involved in supervised negotiations:
(a) Negotiate in good faith, arm’s length transactions,
considering all relevant data presented;
(b) Develop, share, document, and evaluate all
information requested by the department for consideration and deliberation by
the Blackberry Bargaining Council, to include, but not limited to: by variety
or other appropriate categories — acres under contract, inventory,
yields, import/export data, and market information (the department shall
aggregate all data and not reveal any proprietary data to any other party);
(c) Actively participate and contribute toward common
interests and reasonable pricing agreements; and,
(d) Comply with applicable state laws pertaining to
non-discrimination in pricing based on membership in a grower bargaining
association (ORS 646.535), payment term requirements (ORS 585.213, unless
otherwise negotiated), and other considerations of Oregon’s contract laws (ORS
72.3050).
(e) Pay the fees described in these rules.
(3) The parties to the 2009 supervised blackberry
pricing negotiations shall, to the extent practical, aggregate blackberry
varieties into three categories: early varieties, late varieties, and
Boysenberries.
(4) The Blackberry Bargaining Council may, under the
direct supervision of the Department, conduct individual negotiations each year
for categories of blackberries as described in Section (3), or may otherwise
aggregate blackberries in such manner as recognizes pricing differentials
reflective of harvest dates, yields, input costs, end uses, or packing
processes.
(5) The department shall establish permanent rules for
the 2010 crop by December 2009. In adopting permanent rules, the Department may
consider the 2009 negotiations in addition to any input from public hearings.
(6) Minutes of all meetings between representatives of
the growers association and the blackberry dealers will be created and
maintained by the Department and are subject to the provisions of ORS 192.
(7) Within two (2) days after the final meeting of the Blackberry
Bargaining Council, the Council shall either:
(a) Submit to the Director, for review and approval, a
negotiated price effective for the upcoming crop year; or,
(b) Notify the Director that the bargaining
representatives cannot arrive at a negotiated price, and suggest to the
Director a specified price range for consideration, from which the Director
shall approve a price that represents the interests of the state and the
industry based on the information and facts available; or,
(c) Terminate the negotiations.
(8) Within two (2) days after the Blackberry Bargaining
Council’s submission under section (7), the Director shall approve an
established price, or reject the parties’ negotiated price and direct the
parties to continue their negotiations. The Director may request any
information deemed necessary from the parties to understand, review and approve
the established price. The Director may notify the parties of the decision
under this section in writing.
(9) In approving the established price, the Director
shall consider the negotiated price reached by the representatives of the
growers’ association and the blackberry dealers. The Director shall ensure the
parties have considered, to the extent practical, blackberry inventories for
the respective type of berry under consideration; acres contracted; production
factors; competitive factors; local, national and world market prices; the
influence of imported product on prices; and any other factors the Director
deems necessary to approve the established price.
(10) The Director must approve the established price
and any adjustments to established prices previously approved by the Director
before the established prices shall be implemented by the parties.
(11) The Director shall collect fees from the parties
who are participants in the blackberry regulatory program as follows:
(a) Fees may include reimbursement of costs for
Department consultation with the Attorney General as this consultation directly
relates to the Department’s supervision of the regulatory program. Such fees
shall be divided evenly between the parties and reimbursed to the Department
(b) The Department shall assess a flat rate fee of
$1,000 for each negotiation meeting supervised by the Department. This fee
shall be assessed evenly across all parties or otherwise fairly divided between
the parties, such that the dealers pay half of the fee and the growers
association pays half of the fee. Other equitable arrangements may be allowed
as approved by the Director. The Department may assess additional fees to
reimburse to the Department any cost or expense that exceeds the flat rate fee
will be documented by the Department, evenly divided between the parties, and
collected from the parties. Payment of all fees is to the Department.
Stat. Auth.: SB 409 (2009); ORS
62.846(2)(3)(4)
Stats. Implemented: ORS 62.015,
62.845, 646.535 & 646.740
Hist.: DOA 7-2009(Temp), f.
6-23-09, cert. ef. 6-30-09 thru 12-20-09
Rule
Caption: Establishes process for
experimental or research pesticide use. Amends application of Demonstration and
Research category.
Adm. Order No.: DOA 8-2009
Filed with Sec. of
State: 7-15-2009
Certified to be
Effective: 7-15-09
Notice Publication
Date: 6-1-2009
Rules Adopted: 603-057-0160
Rules Amended: 603-057-0110, 603-057-0145
Subject: OAR 603-057-0160
Addresses pesticide use
for experimental or research purposes with two distinct experimental use permit
processes. Clarifies licensing and recordkeeping requirements to conduct
experimental use of pesticides.
OAR 603-057-0110
Amends Pesticide
operator, applicator, and trainee categories to allow the ability of adding the
category of Demonstration and Research to a pesticide trainee license.
Identifies when the category of Demonstration and Research is to be used.
OAR 603-057-0145
Amends pesticide
consultant standards of competence to include the ability to add the category
of Demonstration and Research to a Pesticide Consultant license. Clarifies when
a Pesticide Consultant with the category of Demonstration and Research may qualify
for an applicator license.
Rules Coordinator: Sue Gooch—(503) 986-4583
603-057-0110
Pesticide Operator, Applicator,
and Trainee Categories
In accordance with subsection (2) of ORS 634.306, the
following categories of pesticide operators, pesticide applicators, pesticide
trainees, public applicators, and public trainees are established with licenses
(or certificates) to be issued for such categories, or any specific
subcategories established by OAR 603-057-0115:
(1) Agricultural Pest Control: This shall include
pesticide operators, pesticide applicators, pesticide trainees, public
applicators, and public trainees who use or supervise the use of pesticides in
the production of agricultural crops and livestock (including Christmas tree
plantations and commercial nurseries), or on agricultural lands, grasslands, or
non-crop agricultural lands.
(2) Aquatic Pest Control: This shall include pesticide
operators, pesticide applicators, pesticide trainees, public applicators, and
public trainees who use or supervise the use of pesticides in treating standing
or running water.
(3) Demonstration and Research: This shall include
pesticide operators, pesticide applicators, pesticide trainees, public
applicators and public trainees who use or supervise the use of pesticides, or
of any substance or mixture of substances that is being evaluated for use as a
pesticide, for experiments or research such as for gathering data to satisfy
registration requirements of the United States Environmental Protection Agency
or of the department. The exemption provided manufacturers under subsection (1)
of ORS 634.106 only applies to laboratory research. The uses included in this
category must be:
(a) Authorized by an experimental use permit issued by
the United States Environmental Protection Agency;
(b) Authorized by an experimental use permit issued by
the department as provided in OAR 603-057-0160; or
(c) By a federal or state agency that is exempt from
obtaining an experimental use permit as provided in OAR 603-057-0160(2)(b).
(4) Forest Pest Control: This shall include pesticide
operators, pesticide applicators, pesticide trainees, public applicators, and
public trainees who use or supervise the use of pesticides in the production of
forest crops, or on forestry lands (not including Christmas tree plantations or
commercial nurseries).
(5) Industrial, Institutional, Health, and Structural
Pest Control: This shall include pesticide operators, pesticide applicators,
pesticide trainees, public applicators, and public trainees who use or supervise
the use of pesticides in, on, or around food handling establishments, human
dwellings, institutions (i.e., schools, hospitals, etc.), industrial
establishments (including warehouses and grain elevators), and any other
structures or areas utilized for the storing, processing, or manufacturing of
products.
(6) Marine Fouling Organism Control: This shall include
pesticide operators, pesticide applicators, pesticide trainees, public
applicators, and public trainees who use or supervise the use of marine
antifouling paint or coating on boat or ship hulls or other parts of boats or
ships.
(7) Ornamental and Turf Pest Control: This shall
include pesticide operators, pesticide applicators, pesticide trainees, public
applicators, and public trainees who use or supervise the use of pesticides in
the establishment and maintenance of ornamental plantings and turf (not
including Christmas tree plantations, commercial nurseries or forest crops).
The exemption provided persons under subsection (5) of ORS 634.106 only applies
to persons principally engaged in home lawn and garden care.
(8) Public Health Pest Control: This shall include
pesticide operators, pesticide applicators, pesticide trainees, public
applicators, and public trainees who use or supervise the use of pesticides for
the control of any pest which may be deleterious to the public health,
including mosquito and other vector control.
(9) Regulatory Pest Control: This shall include public
applicators and public trainees who use or supervise the use of pesticides upon
regulated pests not otherwise specified in this section.
(10) Right-of-Way Pest Control: This shall include
pesticide operators, pesticide applicators, pesticide trainees, public
applicators, and public trainees who use or supervise the use of pesticides in
right-of-way areas.
(11) Seed Treatment: This shall include pesticide
operators, pesticide applicators, pesticide trainees, public applicators, and
public trainees who use or supervise the use of pesticides on seed, as it is
defined in subsection (1) of ORS 633.511. Treatment of a person’s own seed on
his own premises is exempt under subsections (9) and (13) of ORS 634.006.
Stat. Auth.: ORS 561 & 634
Stats. Implemented: ORS 634.306
Hist.: AD 1066(12-75), f. 8-11-75,
ef. 10-15-75; AD 7-1977, f. & ef. 4-5-77; AD 12-1985, f. & ef.
11-27-85; AD 1-1990(Temp), f. & cert. ef. 3-1-90; AD 17-1990, f. &
cert. ef. 10-2-90; DOA 8-2009, f. & cert. ef. 7-15-09
603-057-0145
Pesticide Consultant Standards of
Competence
(1) As provided in ORS 634.132, competence of a
pesticide consultant to advise or make recommendations concerning the use,
handling, or selection of restricted-use pesticides shall be determined on the
basis of a written examination. As a supplement to the subject matters set forth
in subsection (2) of ORS 634.132, the examination shall also include the
subject matters set forth in OAR 603-057-0120(1) relating to the General
Standards of Pesticide Applicator Competence.
(2) A pesticide consultant licensed pursuant to this
section may not advise or make recommendations in subcategories (a) or (b) of
603-057-0115(4), Regulatory Pest Control, regarding the use, handling, or
selection of the M-44 Device containing sodium cyanide or the livestock
protection collar containing sodium fluoroacetate (Compound 1080).
(3) A pesticide consultant licensed pursuant to this
section may add the category Demonstration and Research, as defined in OAR
603-057-0110 (3), to his/her license following successful completion of the
written examination for the Demonstration and Research category.
(4) A pesticide consultant licensed pursuant to this
section in the category Demonstration and Research is eligible to be licensed
as a pesticide applicator in the category of Demonstration and Research without
further examination. An application for such applicator’s license, or for the
addition of the category to an existing license, and the appropriate fee
payment must be made separately from the application for, or the addition to, a
pesticide consultant’s license.
(5) If an applicant for a pesticide consultant’s
license has passed a current written examination accredited by another state
with which the Department has a reciprocal agreement on certification or
licensing, and submits evidence of the same to the department at the time of
submitting his license application with applicable fee, the license examination
may be waived.
(6) An applicant for a pesticide consultant’s license
renewal shall be required to take and successfully complete a reexamination
each fifth year after taking the original examination, and be subject to the
provisions of this section in regard thereto. However, if the Department’s
records indicate the applicant for license renewal has complied with the
provisions of OAR 603-057-0150, the written reexamination shall be waived.
(7) In the event an applicant for a pesticide
consultant’s license fails the written examination or reexamination, the
applicant shall be qualified to take the examination again upon submitting a
new application for the same.
(8) A pesticide consultant licensed pursuant to this
section shall also be eligible to be licensed as a private applicator for the
purpose of purchasing, using or supervising the use of any restricted use or
highly toxic pesticides for the purpose of producing agricultural commodities
or forest crops on land owned or leased by the person. An application and fee
payment for a private applicator’s license must be made separately from the
application and fee payment for the pesticide consultant license. The
certification date of the Private Applicator license will be consistent with
that of the consultant license.
Stat. Auth.: ORS 561& 634
Stats. Implemented: ORS 634.306(5)
Hist.: AD 7-1977, f. & ef.
4-5-77; AD 15-1978, f. & ef. 9-15-78; AD 6-1997, f. & cert. ef.
6-11-97; DOA 8-2009, f. & cert. ef. 7-15-09
603-057-0160
Pesticide Use for Experimental or
Research Purposes
(1) Use of any substance or combination of substances
as a pesticide with the intent of gathering data needed to satisfy pesticide
registration requirements of the United States Environmental Protection Agency
(EPA) or of the department shall be considered pesticide use for experimental
or research purposes.
(a) An experimental use permit that is issued by the
department constitutes the approval required by ORS 634.022(2).
(b) The permit requirement in this section is in
addition to pesticide licensing requirements.
(2) The requirement to obtain an experimental use
permit is not applicable to:
(a) Experiments or research conducted by federal or
state agencies; or
(b) Experiments or research conducted entirely in one
or more greenhouses; or
(c) Experiments or research that only:
(A) Use pesticides that are registered by EPA and the
department; and
(B) Use pesticides in the manner consistent with the
product label.
(3) To obtain an experimental use permit, a person must
submit a complete application to the department and be in compliance with
subsection (11) of this section. The pesticide use described in the application
may not begin until the department issues the experimental use permit.
(a) The applicant must use a form approved by the
department; and
(b) The application must be submitted to the department
at least 30 days prior to intended use.
(4) There are two types of experimental use permits:
site-specific and collective.
(5) A site-specific experimental use permit authorizes
pesticide use for experimental or research purposes that are at sites specified
in the permit and are not covered by a collective experimental use permit.
(a) Approvable sites include, but are not limited to,
aquatic, residential, recreational and structural sites, areas with public
access, commodity storage facilities, and areas exceeding a total of one acre.
(b) Each application for a site-specific experimental
use permit will include the following:
(A) The name, address, and telephone numbers of the
applicant and of the person responsible for carrying out the provisions of the
experimental use permit;
(B) Identification of each pesticide to be used,
including;
(i) The name of the pesticide active ingredient;
(ii) The name of the pesticide product, if any; and
(iii) The EPA registration number of the pesticide
product, if any.
(C) The name, address, and telephone numbers of the
person responsible for carrying out the provisions of the experimental use
permit at each specific site, and the number of the pesticide-related license
issued to the person by the department, and the means of locating the person in
case of an emergency;
(D) The purpose of the experiment or research,
including a list of the intended target pest(s), if any;
(E) The approximate date(s) of pesticide use;
(F) Specific description and location of each site
where pesticide use may occur, including the size (for example, acres, or
square feet) of each site;
(G) Disposition of any food or feed item from the crop
or site on which the pesticide will be used;
(H) Application rate(s) of the pesticide, and number of
applications;
(I) Method of application;
(J) Timing and duration of the proposed experiment or
research;
(K) Total amount of pesticide to be used, diluent, and
dilution rate;
(L) Copy of any experimental use permit issued by EPA,
if applicable;
(M) A copy of the labeling that will accompany the
pesticide in the field; and
(N) Any other information pertinent to the experiment
or research specifically requested by the department.
(6) A site-specific experimental use permit may be
issued for up to twelve months from the date of approval by the department.
(7) A collective experimental use permit authorizes
pesticide use for experiments or research without identifying any specific
site. Approvable sites include agricultural and forestry sites.
(a) The applicant may use one or more sites in any
location in Oregon provided that the total size of all of the sites used for a
particular pesticide does not exceed one acre.
(b) Each application for a collective experimental use
permit will include the following:
(A) The name, address, and telephone numbers of the applicant
and of the person responsible for carrying out the provisions of the
experimental use permit, the number of the pesticide-related license issued to
the person by the department, and the means of locating the person in case of
an emergency;
(B) A signed statement that all pesticide use will
comply with all of the provisions of the collective experimental use permit and
of this section; and
(C) Any other information pertinent to the application
specifically requested by the department.
(8) A collective experimental use permit will be issued
for as long as one calendar year, ending December 31st.
(9) Any person conducting pesticide use for
experimental or research purposes must be appropriately licensed by the
department and include the category Demonstration and Research, as specified in
OAR 603-057-0110(3), on that license. This licensing requirement applies to all
persons making pesticide applications for experimental or research purposes and
is not limited to persons conducting pesticide research authorized by an
experimental use permit.
(10) Any crop or site on which a pesticide is used for
experimental or research purposes shall be under the control of the person
authorized to conduct that pesticide use. Said control may include:
(a) Ownership, rental or lease of the land on which the
crop or site is located by the person;
(b) Ownership, rental or lease of the land on which the
crop or site is located by the immediate employer of the person;
(c) Documented permission for the pesticide use from
the owner, renter or leaseholder of the land on which the crop or site is
located;
(d) Documented permission for the pesticide use from
the public entity in possession or control of the land on which the crop or
site is located.
(11) The experimental use permit requires that the
permit holder prepare, maintain, and provide records in the same manner as in ORS
634.146.
(12) As provided by ORS 634.322(6), the department may
deny an application for an experimental use permit or, amend, suspend or revoke
any experimental use permit issued by the department.
(13) The department may establish conditions in an experimental
use permit approval that the department determines necessary to be consistent
with ORS Chapter 634 and this section.
(14) The holder of an experimental use permit shall
provide the department a summary report of the experiments and research conducted
under the permit no later than 30 days after the expiration date of the permit.
(a) Each summary report must include, at a minimum, the
identification number of the experimental use permit, the records required by
subsection (11) of this section, any adverse environmental, human, or animal
health effects resulting from the pesticides used, and, if any pesticide use
occurred on a food or feed item, documentation of the measures taken to prevent
the food or feed item from being used.
(b) If the required summary report is not provided to
the department, the department will not issue any future experimental use
permit to the applicant.
(15) If information is provided in an experimental use
permit application, summary report, or other form that is identified by the
applicant as confidential, the department will hold the information
confidential to the extent allowed under ORS Chapter 192.
(16) Any food or feed item to which a pesticide used
for experimental or research purposes has been applied must be rendered
unusable for food or feed unless a tolerance greater than the residues
resulting from the use has been established or, if allowed by law, conditions
implemented to prevent any use of the treated crop/site for food or feed for a
period no less than 365 days. Such food or feed item may include, but is not
limited to crop, forage (including grazing rangeland or pasture), green chop,
hay, seed screenings, silage, and straw. The department requires documentation
of food or feed item destruction or crop/site isolation as a condition of the
experimental use permit.
(17) The department may monitor any pesticide used for
experimental or research purposes. Monitoring may include, but is not limited
to:
(a) Observing, inspecting, and documenting mixing,
loading, transportation, and application activities;
(b) Inspecting and documenting application equipment;
(c) Collecting and analyzing samples;
(d) Interviewing any person that may have knowledge
regarding the pesticide use; and
(e) Reviewing any records.
(18) The permit holder or the person that conducted the
pesticide use must immediately report to the department any adverse
environmental, human, or animal health effects resulting from pesticides used
for experimental or research purposes.
(19) In addition to any other liability or penalty
provided by law, any failure by any person to comply with the provisions of
this section, as determined by the department, may be used as a basis for one
or more of the following actions, if applicable:
(a) To revoke, suspend or refuse to issue an
experimental use permit, in accordance with ORS 634.022 or 634.322(6);
(b) To revoke, suspend or refuse to issue any license
of a permit holder or of a person that conducted a pesticide use for
experimental or research purposes, in accordance with ORS 634.322(4);
(c) To impose a civil penalty, in accordance with
634.900.
Stat. Auth.: ORS 634
Stats. Implemented: ORS 634
Hist: DOA 8-2009, f. & cert.
ef. 7-15-09
Rule
Caption: Allows licensing equivalency
between pesticide applicators or public pesticide applicators and private
applicators.
Adm. Order No.: DOA 9-2009
Filed with Sec. of State: 7-15-2009
Certified to be Effective: 7-15-09
Notice Publication Date: 6-1-2009
Rules Adopted: 603-057-0180
Subject: The new rule establishes a process to allow a person
currently licensed as a Commercial or Public Pesticide Applicator to qualify
for a Private Pesticide Applicator license without taking an additional
examination. Without this proposed rule, persons who are currently licensed as
a Commercial or Public Pesticide Applicator must take, and pass, an additional
certification examination to qualify for a Private Pesticide Applicator’s
license to apply restricted use pesticides on agricultural or forest crops
owned by the licensee of the licensee’s immediate employer. This rule also
clarifies that the certification period for the Private Applicator license will
be the same as that identified on the Commercial or Public Applicator license.
Rules Coordinator: Sue Gooch—(503) 986-4583
603-057-0180
Pesticide License Equivalency
Provision
A pesticide applicator or public pesticide applicator
licensed pursuant to ORS 633.122 in the subcategory Agriculture-Herbicide, or
in the subcategory Agriculture-Insecticide/Fungicide, or in the category Forest
Pest Control, shall be eligible to be licensed as a Private applicator to
purchase, use, and/or supervise the use of any pesticide, classified by the
department as a restricted-use or highly toxic pesticide, for the purpose of
producing agricultural commodities or forest crops on land owned or leased by
the licensee or licensee’s immediate employer. An application and fee payment
for such Private applicator license must be made separately from the application
and fee payment for the pesticide applicator or public pesticide applicator
license. The certification date of the Private Applicator license will be
consistent with that of the pesticide applicator or public pesticide applicator
license.
Stat. Auth.: ORS 634
Stats. Implemented: ORS 634
Hist.: DOA 9-2009, f. & cert.
ef. 7-15-09
Rule
Caption: Changing administrative rules
to reflect new ORS relating to field burning.
Adm. Order No.: DOA 10-2009(Temp)
Filed with Sec. of
State: 7-15-2009
Certified to be
Effective: 7-15-09 thru 12-1-09
Notice Publication
Date:
Rules Amended: 603-077-0101, 603-077-0105, 603-077-0110,
603-077-0112, 603-077-0113, 603-077-0115, 603-077-0137, 603-077-0140
Subject: The temporary rules fully implement ORS 468A.560
through 468A.620 as mandated by the passage of Senate Bill 528, by the Oregon
Legislature, 2009 session.
Rules Coordinator: Sue Gooch—(503) 986-4583
603-077-0101
Introduction
(1) This Division applies to the open field burning,
propane flaming, and stack and pile burning of all perennial and annual grass
seed and cereal grain crops, and associated residue within the counties listed
in ORS 468A.560 as amended by SB 528. It also includes rules pertaining only to
fees for open field burning of perennial and annual grass seed crops in the
counties outside the counties listed in ORS 468A.560 as amended by SB 528. The
open burning of all other agricultural waste material (referred to as “fourth
priority agricultural burning”) is governed by OAR Chapter 340, Division 264,
Rules for Open Burning.
(2) Organization of rules:
(a) OAR 603-077-0103 is the policy statement of the
Oregon Department of Agriculture setting forth the goals of this Division;
(b) OAR 603-077-0105 contains definitions of terms
which have specialized meanings within the context of this Division;
(c) OAR 603-077-0110 lists general provisions and
requirements pertaining to all open field burning, propane flaming, and stack
and pile burning with particular emphasis on the duties and responsibilities of
the grower registrant;
(d) OAR 603-077-0112 lists procedures and requirements
for registration of acreage, issuance of permits, collection of fees, and
keeping of records, with particular emphasis on the duties and responsibilities
of the local permit issuing agencies;
(e) OAR 603-077-0113 establishes acreage limits and
methods of determining acreage allocations;
(f) OAR 603-077-0115 establishes criteria for
authorization of open field burning, propane flaming, and stack and pile
burning pursuant to the administration of a daily smoke management control
program;
(g) OAR 603-077-0125 contains order of priority for
open field burning according to crop type;
(h) OAR 603-077-0131 establishes special provisions
pertaining to field burning by public agencies for official purposes, such as
“training fires”;
(i) OAR 603-077-0133 establishes special provisions
pertaining to “preparatory burning”;
(j) OAR 603-077-0135 establishes special provisions
pertaining to open field burning for experimental purposes;
(k) OAR 603-077-0137 establishes special provisions
pertaining to burning fees outside the counties listed in ORS 468A.560 as
amended by SB 528;
(k) OAR 603-077-0140 establishes special provisions and
procedures pertaining to emergency cessation of burning;
(l) OAR 603-077-0145 establishes provisions pertaining
to propane flaming;
(m) OAR 603-077-0155 establishes provisions pertaining
to “stack burning.”
(n) OAR 603-077-0165 thru 603-077-0195 establish
provisions pertaining to enforcement procedures and civil penalties.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 18-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0105
Definitions
As used in this Division:
(1) “Actively Extinguish” means the direct application
of water or other fire retardant to an open field fire.
(2) “Approved Alternative Method(s)” means any method
approved by the Department to be a satisfactory alternative field sanitation
method to open field burning.
(3) “Approved Alternative Facilities” means any land,
structure, building, installation, excavation, machinery, equipment, or device
approved by the Department for use in conjunction with an approved alternative
method.
(4) “Permit or “Burn Permit” or “Burning Permit” means
a permit issued by the Department pursuant to ORS 468A.575.
(5) “Candidate Fields” means all grass seed or cereal
grain fields being considered for open field burning or propane flaming.
(6) “Commission” means the Environmental Quality
Commission.
(7) “Critical Nonburn Area” means the area of a grass
seed or cereal grain field within the counties listed in ORS 468A.560 as
amended by SB 528 that is underneath a power transmission line of 230kV rating
or greater which includes 75 feet on either side of the center line of the
power transmission line.
(8) “Crop” means cultivated agricultural plants such as
grain.
(9) “Cumulative Hours of Smoke Intrusion in the
Eugene-Springfield Area” means the average of the totals of cumulative hours of
smoke intrusion recorded for the Eugene site and the Springfield site. Provided
the Department determines that field burning was a significant contributor to
the smoke intrusion:
(a) The Department shall record one hour of intrusion
for each hour the nephelometer hourly reading exceeds a background level by 1.8
x 10-4 b-scat units or more but less than the applicable value in subsection (b)
or (c) of this section;
(b) Between June 16 and September 14 of each year, two
hours of smoke intrusion shall be recorded for each hour the nephelometer
hourly reading exceeds a background level by 5.0 x 10-4 b-scat units;
(c) Between September 15 and June 15 of each year, two
hours of intrusion shall be recorded for each hour the nephelometer hourly
reading exceeds a background level by 4.0 x 10-4 b-scat units;
(d) The background level shall be the average of the
three hourly readings immediately prior to the intrusion.
(10) “Department” means the Oregon Department of
Agriculture.
(11) “Director” means the Director of the Department or
delegated employee representative.
(12) “District Allocation” means the total amount of
acreage sub-allocated annually to the fire district, based on the district’s
pro rata share of the maximum annual acreage limitation, representing the
maximum amount for which burning permits may be issued within the district,
subject to daily authorization. District allocation is defined by the following
identity:
District Allocation = (maximum
annual acreage limit) x ((total acreage registered in district) / (total
acreage registered in the valley)).
(13) “Drying Day” means a 24-hour period during which
the relative humidity reached a minimum less than 50 percent and no rainfall
was recorded at the nearest reliable measuring site.
(14) “Effective Mixing Height” means either the actual
height of plume rise as determined by ODA field staff or the calculated or
estimated mixing height as determined by the Department.
(15) “Field-by-Field Burning” means burning on a
limited or restricted basis in which the amount, rate, and area authorized for
burning is closely controlled and monitored. Included under this definition are
“training fires” and experimental open field burning.
(16) “Field Reference Code” means a unique four-part
code which identifies a particular registered field for mapping purposes. The
first part of the code shall indicate the grower registration (form) number,
the second part the line number of the field as listed on the registration
form, the third part the crop type, and the fourth part the size (acreage) of
the field (e.g., a 35 acre perennial (bluegrass) field registered on Line 2 of
registration form number 1953 would be 1953-2-P-BL-35).
(17) “Fire District” or “District” or “Fire Protection
District” means a fire permit issuing agency.
(18) “Fire Permit” means a permit issued by a local
fire permit issuing agency pursuant to ORS 477.515, 476.380, or 478.960.
(19) “Fires-Out Time” means the time announced by the
Department when all flames and major smoke sources associated with open field
burning should be out and prohibition conditions are scheduled to be imposed.
(20) “Fire Safety Buffer Zone” shall have the same
meaning as defined in the State Fire Marshal rules.
(21) “Fluffing” means an approved mechanical method of
stirring or tedding crop residues for enhanced aeration and drying of the full
fuel load, thereby improving the field’s combustion characteristics.
(22) “Grower” means a person that cultivates perennial
or annual grass seed or cereal grain.
(23) “Grower Allocation” means the amount of acreage
sub-allocated annually to the grower registrant, based on the grower
registrant’s pro rata share of the maximum annual acreage limitation,
representing the maximum amount for which burning permits may be issued,
subject to daily authorization. Grower allocation is defined by the following
identity:
Grower Allocation = (Maximum
annual acreage limit) x ((Total acreage registered by the grower registrant) /
(Total acreage registered in the valley)).
(24) “Grower Registrant” means any person who registers
acreage with the Department for purposes of open field burning, propane
flaming, or receives a permit to stack or pile burn.
(25) “Marginal Conditions” means atmospheric conditions
such that smoke and particulate matter escape into the upper atmosphere with
some difficulty but not such that limited additional smoke and particulate
matter would constitute a danger to the public health and safety.
(26) “Marginal Day” means a day on which marginal
conditions exist.
(27) “Nephelometer” means an instrument for measuring
ambient smoke concentrations.
(28) “Northerly Winds” means winds coming from
directions between 270° to 90° in the north part of the compass, averaged
through the effective mixing height.
(29) “Open Field Burning” means burning of any
perennial or annual grass seed or cereal grain crop, or associated residue, in
such manner that combustion air and combustion products are not effectively
controlled.
(30) “Open Field Burning Permit” means a permit issued
by the Department pursuant to ORS 468A.575.
(31) “Permit Agent” means the person under contract or
otherwise authorized by the department to administer registration of acreage,
issue burn permits, collect fees, and keep records for open field burning,
propane flaming, or stack burning within their permit jurisdictions pursuant to
ORS 468A.550 et seq.
(32) “Permit Issuing Agency” means the county court or
board of county commissioners, or fire chief or a rural fire protection
district or other person authorized to issue fire permits pursuant to ORS
477.515, 476.380, or 478.960.
(33) “Person” means, but is not limited to,
individuals, corporations, associations, firms, partnerships, joint stock
companies, public and municipal corporations, political subdivisions, states
and their agencies, and the Federal Government and its agencies.
(34) “Preparatory Burning” means controlled burning of
portions of selected problem fields for the specific purpose of reducing the
fire hazard potential or other conditions which would otherwise inhibit rapid
ignition burning when the field is subsequently open burned.
(35) “Priority Acreage” means acreage located within a
priority area.
(36) “Priority Areas” means the following areas of the
counties listed in ORS 468A.560 as amended by SB 528:
(a) Areas in or within three miles of the city limits
of incorporated cities having populations of 10,000 or greater;
(b) Areas within one mile of airports servicing
regularly scheduled airline flights;
(c) Areas in Lane County south of the line formed by
U.S. Highway 126 and Oregon Highway 126;
(d) Areas in or within three miles of the city limits
of the City of Lebanon;
(e) Areas on the west and east side of and within 1/4
mile of these highways: 99, 99E, and 99W. Areas on the south and north side of
and within 1/4 mile of U.S. Highway 20 between Albany and Lebanon, Oregon
Highway 34 between Lebanon and Corvallis, Oregon Highway 228 from its junction
south of Brownsville to its rail crossing at the community of Tulsa.
(37) “Problem Field” means a field that cannot be
burned under the usual conditions because of a fire hazard or nearby school,
hospital, airport, or other sensitive area.
(38) “Prohibition Conditions” means conditions under
which open field burning is not allowed except for individual burns
specifically authorized by the Department pursuant to OAR 603-077-0115(2).
(39) “Propane Flaming” means a mobile flamer device
which meets the following design specifications and utilizes an auxiliary fuel
such that combustion is nearly complete and emissions are significantly
reduced:
(a) Flamer nozzles shall not be more than 15 inches apart;
(b) A heat deflecting hood is required and shall extend
a minimum of three feet beyond the last row of nozzles.
(40) “Propane Flaming Permit” means a permit issued by
the Department pursuant to ORS 468A.575 and consisting of a validation number
and specifying the conditions and acreage specifically registered and allocated
for propane flaming.
(41) “Quota” means an amount of acreage established by
the Department for each fire district for use in authorizing daily burning
limits in a manner to provide, as reasonably as practicable, an equitable
opportunity for burning in each area.
(42) “Rapid Ignition Techniques” means a method of
burning in which all sides of the field are ignited as rapidly as practicable
to maximize plume rise. When using this method, little or no preparatory
backfire burning shall be done.
(43) “Released Allocation” means that part of a
grower’s allocation, by registration form, that is unused and voluntarily
released to the Department for first come-first serve dispersal to other grower
registrants.
(44) “Residue” means straw, stubble, screenings and
associated crop material generated in the production of grass seed and cereal
grain crops.
(45) “Responsible Person” means each person who is in
ownership, control, or custody of the real property on which open field burning
occurs, including any tenant thereof, or who is in ownership, control or
custody of the material which is burned, or the grower registrant. Each person
who causes or allows open field burning, propane flaming, or stack or pile
burning to be maintained shall also be considered a responsible person.
(46) “Screenings” means organic waste materials
resulting from the seed cleaning process of grass seed and cereal grain.
(47) “Small-Seeded Seed Crops Requiring Flame
Sanitation” means small-seeded grass, legume, and vegetable crops, or other
types approved by the Department, which are planted in early autumn, are grown
specifically for seed production, and which require flame sanitation for proper
cultivation. For purposes of this Division, clover and sugar beets are
specifically included. Cereal grains, hairy vetch, or field peas are
specifically not included.
(48) “Smoke Management” means a system for the daily or
hourly control of open field burning, propane flaming, or stack or pile burning
through authorization of the times, locations, amounts and other restrictions
on burning, so as to provide for suitable atmospheric dispersion of smoke
particulate and to minimize impact on the public.
(49) “Southerly Winds” means winds coming from
directions between 90° to 270° in the south part of the compass, averaged
through the effective mixing height.
(50) “Stack Burning” means the open burning of bound,
baled, collected, gathered, accumulated, piled or stacked straw residue from
perennial or annual grass seed or cereal grain crops.
(51) “Stack Burning Permit” means a permit issued by
the Department pursuant to ORS 468A.575 that identifies the responsible person,
date of permit issuance, and specifies the acreage and location authorized for
stack burning.
(52) “Test Fires” means individual field burns
specifically authorized by the Department for the purpose of determining or
monitoring atmospheric dispersion conditions.
(53) “Training Fires” means individual field burns set
by or for a public agency for the official purpose of training personnel in
fire-fighting techniques.
(54) “Unusually High Evaporative Weather Conditions”
means a combination of meteorological conditions following periods of rain that
result in sufficiently high rates of evaporation, as determined by the
Department, where fuel (residue) moisture content would be expected to approach
about 12 percent or less.
(55) “Validation Number” is used interchangeably with
“Burn Permit” and means:
(a) For open field burning a unique five-part number
issued by the Department or its delegate identifying a specific field and
acreage allowed to be open field burned and the date and time the permit was
issued (e.g., a validation number issued August 26 at 2:30 p.m. for a 70-acre
burn for a field registered on Line 2 of registration form number 1953 would be
1953-2-0826-1430-070);
(b) For propane flaming and stack burning a unique five
part alphanumerical, issued by the Department or its delegate, identifying a specific
field and acreage allowed to be propane flamed or stack burned, the date and
time the permit was issued, and the burn type (e.g., a validation number issued
on July 15 for a 100 acre field to be propane flamed registered on Line 4 of
registration form 9999 would be 9999-4-0715-P-100).
(56) “Ventilation Index (VI)” means a calculated value
used as a criterion of atmospheric ventilation capabilities. The Ventilation
Index as used in this Division is defined by the following identity:
VI = (Effective mixing height
(feet))/1,000 x (Average wind speed through the effective mixing height
(knots)).
(57) “Wildfire” means an uncontrollable fire that is
not intentionally started, caused by man, machine, nature, or an other cause,
usually but not necessarily traveling and spreading rapidly.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 18-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0110
General Requirements
(1) No person shall cause or allow open field burning
or propane flaming on any acreage unless said acreage has first been registered
and mapped pursuant to OAR 603-077-0112(1), the registration fee has been paid,
and the registration (permit application) has been approved by the Department.
(2) No person shall cause or allow open field burning,
propane flaming, or stack burning without first obtaining and being able to
readily demonstrate a valid burning permit and fire permit from the appropriate
permit issuing agent pursuant to OAR 603-077-0112(2). On the specific day of
and prior to open field burning, propane flaming, or stack burning of any grass
seed or cereal grain crop or associated residue the grower registrant shall
obtain, in person or by telephone, a valid burning permit and fire permit from
the appropriate permit issuing agent pursuant to 603-077-0112.
(3) The Department may prohibit any person from
registering acreage for open field burning or propane flaming and may deny burn
permits for open field burning, propane flaming, and stack burning until all
delinquent registration fees, late fees, burn permit fees, and adjudicated
penalties from previous seasons are paid. The Department may also institute
appropriate legal action to collect the delinquent fees.
(4) No person shall open field burn cereal grain
acreage unless that person first issues to the Department a signed statement,
and then acts to ensure, that said acreage will be planted in the following growing
season to a small-seeded seed crop requiring flame sanitation for proper
cultivation, as defined in OAR 603-077-0105(46).
(5) No person shall cause or allow open field burning,
propane flaming, or stack burning which is contrary to the Department’s announced
burning schedule specifying the times, locations and amounts of burning
permitted, or to any other provision announced or set forth by the Department
or this Division.
(6) Each responsible person open field burning or
propane flaming shall have an operating radio receiver and shall directly
monitor the Department’s burn schedule announcements at all times while open
field burning or propane flaming.
(7) Each responsible person open field burning or
propane flaming shall actively extinguish all flames and major smoke sources
when prohibition conditions are imposed by the Department or when instructed to
do so by an agent or employee of the Department.
(8) No person shall cause or allow open field burning
or stack burning within 1/4 mile of either side of any Interstate freeway
within the counties listed in ORS 468A.560 as amended by SB 528 or within 1/8
mile of either side of the designated roadways listed in OAR
837-110-0080(2)(c). In addition, no person shall cause or allow open field
burning in any of the remaining area within a fire safety buffer zone unless a
noncombustible ground surface has been provided between the field to be burned
and the nearest edge of the roadway right-of-way as required by 837-110-0080.
(9) No person shall cause or allow open field burning,
propane flaming or stack burning inside Critical Nonburn Areas as defined in
OAR 603-077-0105(7). In addition each responsible person open field burning,
propane flaming, or stack burning adjacent to a Critical Nonburn Area shall
take appropriate precautions to ensure that the Critical Nonburn Area remains
unburned. These precautions may include, but are not limited to, plowing or
disking the Critical Nonburn Area prior to burning adjacent to the Critical
Nonburn Area, or providing a noncombustible barrier of sufficient width
adjacent to the Critical Nonburn Area.
(10) Each responsible person open field burning,
propane flaming, or stack burning within a priority area or fire safety buffer
zone around a designated city, airport or highway shall refrain from burning
and promptly extinguish any burning if it is likely that the resulting smoke
would noticeably affect the designated city, airport or highway.
(11) Each responsible person open field burning shall
make every reasonable effort to expedite and promote efficient burning and
prevent excessive emissions of smoke by:
(a) Meeting all of the State Fire Marshal requirements
specified in OAR 837-110-0040 through 837-110-0080;
(b) Ensuring field residues are evenly distributed,
dry, and in good burning condition;
(c) Employing rapid ignition techniques on all acreage
where there are no imminent fire hazards or public safety concerns.
(12) In the event of a “wildfire” and a grower is
unable to comply with all of the requirements of this Division because of a
breakdown of equipment, an accident caused by human error or negligence, or any
other cause, the grower shall:
(a) Immediately take action to stop, contain, and
correct the problem.
(b) As soon as practicable notify the designated permit
agent. If the permit agent is unavailable, the grower must contact the
department.
(A) Notification must be by phone, fax, email, or in
person.
(B) If a grower is unable to contact his/her designated
permit agent or the department, then a detailed message must be left with the
department and the permit agent explaining the problem, the solution, the field
information, and grower information.
(13) Open field burning, propane flaming, or stack
burning in compliance with this Division does not exempt any person from any
civil or criminal liability for consequences or damages resulting from such
burning, nor does it exempt any person from complying with any other applicable
law, ordinance, regulation, rule, permit, order or decree of the Department,
Commission or any other government entity having jurisdiction.
(14) 1st, 2nd, 3rd, and 4th priority open field burning
shall be regulated in a manner consistent with the requirements of the Oregon
Visibility Protection Plan for Class I Areas (Section 5.2 of the State of
Oregon Clean Air Act Implementation Plan adopted under OAR 340-200-0040).
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 18-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0112
Registration, Permits, Fees,
Records
In administering a field burning smoke management
program, the Department may contract with counties or fire districts or any
other responsible individual to administer registration of acreage, issuance of
permits, collection of fees, and keeping of records for open field burning,
propane flaming, or stack burning within their permit jurisdictions. The
Department shall pay said authority for these services in accordance with the
payment schedule provided for in ORS 468A.615. Three-quarters of said payment
shall be made prior to July 1 of each year and the remainder shall be paid
within ten days after completion of the end of season reconciliation:
(1) Registration of acreage:
(a) On or before April 1 of each year, each grower
intending to open burn or propane flame under this Division shall register the
total acreage to be open burned or propane flamed. Said acreage shall be
registered with the Department or its authorized permit agent on the
registration forms provided. Candidate fields for open field burning or propane
flaming shall be listed on the registration form and shall also be delineated
on specially provided registration map materials and identified using a unique
field reference code. Each candidate field listing shall state if the field is
located in a priority area, contains Critical Nonburn Areas, and/or is a
problem field. Registration, listing of fields, and mapping shall be completed
according to the established procedures of the Department. At the time of
registration, a non-refundable registration fee of $4 shall be paid for each
acre registered for open field burning and $2 shall be paid for each acre
registered for propane flaming. A complete registration (permit application)
shall consist of a fully executed registration form, map and fee. Acreage
registered by April 1 may be issued a burn permit if:
(A) Allocation is available; and
(B) The initial registration fee account has a
sufficient balance.
(b) Registration of open field burning and propane
flaming acreage after April 1 of each year shall require the prior approval of
the Department and an additional $2 per acre late registration fee. The late
registration fee shall not be charged if the late registration is not due to
the fault of the registrant or one under the registrant’s control;
(c) Copies of all registration forms and fees shall be
forwarded to the Department promptly by the permit agent. Registration map
materials shall be made available to the Department at all times for inspection
and reproduction;
(d) The Department shall act on any registration
application within 60 days of receipt of a completed application. The
Department may deny or revoke any registration application which is incomplete,
false or contrary to state law or this Division;
(e) The grower registrant shall insure the information
presented on the registration form and map is complete and accurate.
(2) Permits:
(a) Permits for open field burning, propane flaming, or
stack burning shall be issued by the Department, or its authorized permit
agent, to the grower registrant in accordance with the established procedures
of the Department, and the times, locations, amounts and other restrictions set
forth by the Department or this Division;
(b) A fire permit from the local fire permit issuing
agency is also required for all open field burning pursuant to ORS 477.515,
476.380, 478.960;
(c) A valid open field burning permit shall consist of:
(A) An open field burning permit issued by the
Department which specifies the permit conditions in effect at all times while
burning and which identifies the acreage specifically registered and annually
allocated for burning;
(B) A validation number issued by the designated permit
agent on the day of the burn identifying the specific acreage allowed for
burning and the date and time the permit was issued.
(d) A valid propane flaming permit shall consist of:
(A) A propane flaming registration form issued by the
Department which specifies the permit conditions in effect at all times while
flaming and which identifies the acreage specifically registered and annually
allocated for propane flaming;
(B) A validation number issued by the designated permit
agent identifying the specific acreage allowed for propane flaming and the date
and time the permit was issued.
(e) A valid stack burning permit shall consist of the
name of the responsible person and date the permit was issued, and shall specify
the acreage and location authorized;
(f) Each responsible person open field burning, propane
flaming, or stack burning shall pay a per acre burn fee within ten days of the
date the permit was issued. The fee shall be:
(A) $16 per acre sanitized by open field burning;
(B) $4 per acre sanitized by propane flaming;
(C) $10 per acre burned in stacks.
(D) For grass seed and cereal grain residue from
previous seasons, broken bales, or fields where a portion of straw was removed
using usual or standard baling methods, the acreage actually burned shall be
estimated and the same per acre fee as imposed in paragraph (C) of this
subsection shall be charged. The estimated acreage shall be rounded to the
nearest whole acre.
(g) Burning permits shall at all times be limited by
and subject to the burn schedule and other requirements or conditions announced
or set forth by the Department;
(h) No person shall issue burning permits for open
field burning, propane flaming, or stack burning of:
(A) More acreage than the amount sub-allocated annually
to the District by the Department pursuant to OAR 603-077-0113(2);
(B)(i) Priority or fire safety buffer zone acreage
located on the upwind side of any city, airport, Interstate freeway or highway
within the same priority area or buffer zone.
(ii) It is the responsibility of each designated permit
agent to establish and implement a system for distributing open field burning,
propane flaming, or stack burning permits to individual grower registrants when
burning is authorized, provided that such system is fair, orderly and
consistent with state law, this Division and any other provisions set forth by
the Department.
(3) Fees:
(a) Permit agents shall collect, properly document, and
promptly forward all required registration fees, late registration fees, and
burn fees to the Department;
(b) All fees shall be deposited in the State Treasury
to the credit of the Department of Agriculture Service Fund.
(4) Records:
(a) Permit agents shall at all times keep proper and
accurate records of all transactions pertaining to registrations, permits,
fees, allocations, and other matters specified by the Department. Such records
shall be kept by the permit agent for a period of at least five years and made
available for inspection by the appropriate authorities;
(b) Permit agents shall submit to the Department on
specially provided forms weekly reports of all acreage burned in their permit
jurisdictions. These reports shall cover the weekly period of Monday through
Sunday, and shall be mailed and post-marked no later than the first working day
of the following week.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 18-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0113
Acreage Limitations, Allocations
(1) Limitation of Acreage:
(a) Except for acreage and residue open field burned
pursuant to OAR 603-077-0135, 603-077-0140, 603-077-0145, and 603-077-0155, the
maximum acreage to be open field burned annually in the counties listed in ORS
468A.560 as amended by SB 528 under this Division shall not exceed 20,000 acres
for the year 2009. For the year 2010 and thereafter no acres shall be allowed
to be open field burned in the counties listed in ORS 468A.560 as amended by SB
528.
(b) Notwithstanding the annual limitation, up to 15,000
acres may be open field burned annually in the counties listed in ORS 468A.560
as amended by SB 528 and shall be considered outside the limitation:
(A) Consideration for these acres shall be given to
creeping red fescue, chewings fescue and highland bentgrass as grass species
identified by the Director of Agriculture as well as to terrain defined by
Revised Universal Soil Loss Equation (RUSLE) and percent slope criteria as
steep terrain identified by the Director of Agriculture.
(B) Steep terrain and species identified by the
Director of Agriculture may not be open burned under the provisions of this
subsection in Benton and Lane Counties and in Linn County, except for portions
of northeast Linn County that are east of Stayton-Scio Road and north of
Highway 226, and portions of northeast Linn County that are east of Richardson
Gap Road and north of Fish Hatchery Drive.
(c) Other limitations on acreage allowed to be open
field burned are specified in OAR 603-077-0115(7), 603-077-0131(2),
603-077-0133(1) and 603-077-0135(1);
(d) The maximum acreage to be propane flamed annually
in the counties listed in ORS 468A.560 as amended by SB 528 under this Division
shall not exceed 500 acres for the years 2009, 2010, 2011 and 2012. For the
year 2013 and thereafter no propane flaming acreage will be allowed to be
burned in the counties listed in ORS 468A.560 as amended by SB 528;
(e) Other limitations on acreage allowed to be propane
flamed are specified in OAR 603-077-0145.
(f) The maximum acreage to be stack or pile burned
annually in the counties listed in ORS 468A.560 as amended by SB 528 under this
Division shall not exceed 1000 acres for the years 2009, 2010, 2011 and 2012.
For the year 2013 and thereafter no stack or pile burning acreage will be
allowed to be burned in the counties listed in ORS 468A.560 as amended by SB
528;
(2) Allocation of Acreage:
(a) In the event that total registration as of April 1
is less than or equal to the maximum acreage allowed to be open field burned or
propane flamed annually, pursuant to subsection (1)(a), (b) and (d) of this
rule, the Department shall sub-allocate to each grower registrant and each
district (subject to daily burn authorization) 100 percent of their respective
registered acreage;
(b) In the event that total registration as of April 1
exceeds the maximum acreage allowed to be open field burned or propane flamed
annually, pursuant to subsection (1)(a), (b) and (d) of this rule, the
Department may sub-allocate to growers on a pro rata share basis not more than
100 percent of the maximum acreage limit, referred to as “grower allocation.”
In addition, the Department shall sub-allocate to each respective fire
district, its pro rata share of the maximum acreage limit based on acreage
registered within the district, referred to as “district allocation”;
(c) To ensure optimum permit utilization, the
Department may adjust fire district allocations;
(d) Transfer of allocations for farm management
purposes may be made within and between fire districts and between grower
registrants on a one-in/one-out basis under the supervision of the Department.
The Department may assist grower registrants by administering a reserve of
released allocation for first come-first served utilization.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0115
Daily Burning Authorization
Criteria
As part of the Smoke Management Program provided for in
ORS 468A.590, the Department shall set forth the types and extent of open field
burning, propane flaming, and stack burning to be allowed each day according to
the provisions established in this section and this Division:
(1) During the active burning season and on an as
needed basis, the Department shall announce the burning schedule over the
burning radio network operated specifically for this purpose or by other
appropriate means. The schedule shall specify the times, locations, amounts and
other restrictions in effect for open field burning, propane flaming, and stack
burning. The Department shall notify Oregon Emergency Management of the burning
schedule for dissemination to appropriate Willamette Valley agencies.
(2) Prohibition conditions:
(a) Prohibition conditions shall be in effect at all
times unless specifically determined and announced otherwise by the Department;
(b) Under prohibition conditions, no permits shall be
issued and no open field burning shall be conducted in any area except for
individual burns specifically authorized by the Department on a limited extent
basis. Such limited burning may include field-by-field burning, preparatory
burning, or burning of test fires, except that:
(A) No open field burning shall be allowed:
(i) In any area subject to a ventilation index of less
than 10.0;
(ii) In any area upwind, or in the immediate vicinity,
of any area in which, based upon real-time monitoring, a violation of federal
or state air quality standards is projected to occur.
(B) Only test-fire burning may be allowed:
(i) In any area subject to a ventilation index of
between 10.0 and 15.0, inclusive, except for experimental burning specifically
authorized by the Department pursuant to OAR 603-077-0135;
(ii) When relative humidity at the nearest reliable
measuring station exceeds 50 percent under forecast northerly winds or 65
percent under forecast southerly winds.
(3) Marginal conditions:
(a) The Department shall announce that marginal
conditions are in effect and open field burning is allowed when, in its best
judgment and within the established limits of this Division, the prevailing
atmospheric dispersion and burning conditions are suitable for satisfactory
smoke dispersal with minimal impact on the public, provided that the minimum
conditions set forth in paragraphs (2)(b)(A) and (B) of this rule are
satisfied;
(b) Under marginal conditions, permits may be issued
and open field burning may be conducted in accordance with the times,
locations, amounts, and other restrictions set forth by the Department and this
Division.
(4) Hours of burning:
(a) Burning hours shall be limited to those
specifically authorized by the Department each day and may be changed at any
time when necessary to attain and maintain air quality;
(b) Burning hours may be reduced by the fire chief or his
deputy, and burning may be prohibited by the State Fire Marshal, when necessary
to prevent danger to life or property from fire, pursuant to ORS 478.960.
(5) Locations of burning:
(a) Locations of burning shall at all times be limited
to those areas specifically authorized by the Department; except that:
(b) No priority or fire safety buffer zone acreage
shall be burned upwind of any city, airport, Interstate freeway or highway
within the same priority area or buffer zone;
(c) No Lane, Linn or Benton county priority acreage
shall be burned upwind of the Eugene-Springfield non-attainment area.
(6) Amounts of burning:
(a) To provide for an efficient and equitable
distribution of burning, daily authorizations of acreages shall be issued by
the Department in terms of single or multiple fire district quotas. The
Department shall establish quotas for each fire district and may adjust the
quotas of any district when conditions in its judgment warrant such action;
(b) Unless otherwise specifically announced by the
Department, a one quota limit shall be considered in effect for each district
authorized for burning;
(c) The Department may issue more restrictive
limitations on the amount, density or frequency of burning in any area or on
the basis of crop type, when conditions in its judgment warrant such action.
(7) Limitations on burning based on air quality:
(a) The Department shall establish the minimum
allowable effective mixing height required for burning based upon cumulative
hours of smoke intrusion in the Eugene-Springfield area as follows;
(b) Except as provided in paragraph (c) of this
subsection, burning shall only be permitted whenever the following conditions
are met:
(A) West Eugene area; defined as south of Eugene
Airport, north of highway 126, for open burning of perennial grass crops;
Mixing Height is equal to or
greater than 4500’
Transport wind direction = 50 -120
degrees
Transport wind speed minimum = 12
mph
Surface wind speed = calm to 7 mph
(B) Creswell area for open burning of perennial grass crops:
Mixing Height is equal to or
greater than 4000’
Transport wind direction = 30
– 90 degrees
Transport wind speed minimum = 12
mph
Surface wind speed = calm to 7 mph
(c) Notwithstanding the effective mixing height
restrictions of paragraph (b) of this subsection, the Department may authorize
burning of up to 1,000 acres total per day for the counties listed in ORS
468A.560 as amended by SB 528, consistent with smoke management considerations
and this Division.
(8) Limitations on burning based on rainfall:
(a) Open field burning and propane flaming shall be
prohibited in any area for one drying day (up to a maximum of four consecutive
drying days) for each 0.10 inch increment of rainfall received per day at the
nearest reliable measuring station;
(b) The Department may waive the restrictions of
subsection (a) of this section when dry fields are available as a result of
special field preparation or condition, irregular rainfall patterns, or
unusually high evaporative weather condition.
(9) Other discretionary provisions and restrictions:
(a) The Department may require special field
preparations before burning, such as, but not limited to, mechanical fluffing
of residues, when conditions in its judgment warrant such action;
(b) The Department may designate specified periods
following permit issuance within which time active field ignition must be
initiated and/or all flames must be actively extinguished before said permit is
automatically rendered invalid;
(c) The Department may designate additional areas as
priority areas when conditions in its judgment warrant such action.
[ED. NOTE: Tables referenced are
available from the agency.]
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 17-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0137
Burning Fees Outside Willamette
Valley
Notwithstanding OAR 603-077-0135(3), each person
sanitizing perennial or annual grass seed crops by open field burning, in
counties outside the counties listed in ORS 468A.560 as amended by SB 528,
shall pay the Department 8.00 for each acre burned.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 18-2003, f. & cert. ef. 5-15-03; DOA 22-2004, f. &
cert. ef. 8-10-04; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
603-077-0140
Emergency Burning Cessation
Pursuant to ORS 468A.610 and upon finding of danger to
public health or safety, the Commission or the Department may order temporary
emergency cessation of all open field burning in any area of the counties
listed in 468A.560 as amended by SB 528.
Stat. Auth.: ORS 561.190
Stats. Implemented: ORS 468A.585
Hist.: DOA 2-1998, f. & cert.
ef. 3-3-98; DOA 10-2009(Temp), f. & cert. ef. 7-15-09 thru 12-1-09
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 14, 2008.
2.) Copyright 2009 Oregon Secretary of State: Terms and Conditions of Use
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