Original Notice.

Preproposal statement of inquiry was filed as WSR 00-21-021.

Title of Rule: Rules relating to quarantines for agricultural pests and to apple maggot quarantine in chapter 16-470 WAC.

Purpose: To amend existing rules to align with international plant protection definitions, to address changes in the distribution of quarantine pest, and to comply with legislative mandates such as regulatory reform and use of clear and readable format.

Statutory Authority for Adoption: Chapter 17.24 RCW.

Statute Being Implemented: Chapter 17.24 RCW.

Summary: The existing rule excludes, and minimizes the possibility of establishment of, the insect pests apple maggot and plum curculio. The proposed changes add a new county to the existing quarantine area, allow fruit grown in quarantine counties free movement throughout western Washington and infested areas of Oregon, and make other necessary updates.

Reasons Supporting Proposal: Biological survey data has demonstrated establishment within the last two years of the apple maggot fly in Whatcom County and therefore a need for quarantine action. Industry stakeholders have requested the adoption of updated international quarantine methodology and standards. Simplification of the regulatory requirements allows more efficient agency operation. In addition, the text was converted to clear and readable format.

Name of Agency Personnel Responsible for Drafting: Mary A. Martin Toohey, 1111 Washington Street, Olympia, WA 98504, (360) 902-1907; Implementation and Enforcement: Clinton L. Campbell, 1111 Washington Street, Olympia, WA 98504, (360) 902-2071.

Name of Proponent: Washington State Department of Agriculture and the Washington State Apple Maggot Working Group, public and government.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The existing rule excludes from uninfested areas through quarantine measures two serious insect pests of apple and other tree fruits. Apple maggot is not established in the commercial apple growing areas of eastern Washington and plum curculio is not found in any part of Washington at this time, due at least in part to the long term quarantine effort. If either pest was allowed to establish in commercial production sites, tree fruit crops would become more difficult to grow profitably. In addition, interstate and international export markets for various tree fruit crops would be inhibited or closed for Washington growers as uninfested jurisdictions move to protect themselves against introductions.

Proposal Changes the Following Existing Rules: Many of the changes convert the rule into clear and readable format and align the rule with international quarantine methodology. Quarantine definitions for "pest free area" and "plant protection organization" were added to WAC 16-470-010. New sections - using a question and answer format - were crafted to replace existing sections, WAC 16-470-100, 16-470-110 and 16-470-120, with clear and readable text. Permit requirements for shipping fruit within western Washington and Oregon were significantly reduced. Whatcom County was added to the list of counties under quarantine for apple maggot. The plum curculio quarantine language was placed in separate sections from the apple maggot quarantine language. WAC 16-470-130 Special permits, was amended to address transportation or distribution of regulated commodities.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed revision of chapter 16-470 WAC will add Whatcom County to the existing list of counties under quarantine for apple maggot. Examination of SIC entries for deciduous tree-fruit orchards in Whatcom County yields no tree fruit production orchards. (The businesses listed include numerous berry producers and growers of other corps.) Through other sources, the Washington State Department of Agriculture is aware of several (approximately eight) commercial apple growers in Whatcom County, all of whom are small businesses. These growers constitute fewer than 1% of the apple growers in the state. The proposed rules will have no disproportionate effect on small businesses.

The effect of the overall rule is protection of the state's commercial apple industry from international/interstate pest regulatory actions and trade barriers through declaration and maintenance of pest free areas for apple maggot and plum curculio. The rule constitutes a net benefit to the apple industry of the state, as it protects the apple industry's access to markets.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Washington State University Cooperative Extension Office, 1000 North Forrest Street, #201, Bellingham, WA, (360) 676-6736, on June 26, 2001, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Lou Jones by June 19, 2001, TDD (360) 902-1996, or (360) 902-1806.

Submit Written Comments to: Mary Toohey, Assistant Director, Washington State Department of Agriculture, Lab Services Division, P.O. Box 42560, Olympia, WA 98504-2560, e-mail mtoohey@agr.wa.gov, fax (360) 902-2094, by June 27, 2001.

Date of Intended Adoption: July 3, 2001.

May 23, 2001

Mary A. Martin Toohey

Assistant Director

OTS-3963.2

AMENDATORY SECTION(Amending WSR 00-23-098, filed 11/21/00, effective 12/22/00)

WAC 16-470-010   Definitions.   The definitions set forth in this section shall apply throughout this chapter, unless the context otherwise requires:

(1) "Director" means the director of agriculture of this state, or a duly authorized representative.

(2) "Department" means the Washington state department of agriculture.

(3) "Interior quarantine" means a quarantine within the state of Washington established against the movement of designated plant pests, life stages, their hosts, and possible carriers from areas identified by the Washington state department of agriculture.

(4) "Exterior quarantine" means a quarantine established against the movement into Washington state of designated plant pests, life stages, their hosts, and possible carriers from areas identified by the Washington state department of agriculture.

(5) "Commercial orchard" means an orchard in which fruit is grown for commercial purposes and with the use of approved and accepted integrated pest management programs pursuant to statutes, guidelines or rules approved by the agricultural extension service or regulatory officials of the state of origin.

(6) "Commercial fruit" means fruit that is:

(a) Grown in a commercial orchard and commercially packed and labeled;

(b) Fruit grown in a commercial orchard and destined to a commercial processing plant or packing plant.

(7) "Phytosanitary certificate" means a certificate issued by a government agency under authority of state or federal statute, which declares or establishes the pest status of a shipment of plants or plant parts under accepted inspection or sampling procedures. Phytosanitary certificates are patterned after model certificates of the International Pest Protection Convention.

(8) "Pest free area" means an officially identified area in which a target pest is not established and which is maintained in such a manner as to prevent establishment of the target pest.

(9) "Plant protection organization" means an agency established by a government to discharge functions such as inspection of plants and plant products for pests, issuing phytosanitary certificates, and other actions specified in this rule.

[Statutory Authority: Chapter 17.24 RCW. 00-23-098, 16-470-010, filed 11/21/00, effective 12/22/00. Statutory Authority: Chapters 15.60 and 17.24 RCW. 88-16-016 (Order 1978), 16-470-010, filed 7/25/88. Statutory Authority: Chapter 17.24 RCW. 86-07-020 (Order 1881), 16-470-010, filed 3/12/86; 85-15-006 (Order 1861), 16-470-010, filed 7/8/85; 84-10-039 (Order 1822), 16-470-010, filed 5/1/84, effective 7/1/84.]

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(1) "Established" means present in a country, state, county or other area, multiplying and expected to continue.

(2) "Threatened with infestation" means that any life stage of apple maggot or plum curculio has been found within one-half mile of an orchard or other production site, including any portion of an orchard outside or beyond the one-half mile area. Orchards or production sites in a quarantined area, which are not surveyed by a plant protection organization, are considered to be threatened with infestation. An orchard or other production site will be removed from threatened with infestation status, if control measures are performed at the detection site, and survey by the department shows no further detection(s) within the one-half mile area around the orchard or other production site throughout the subsequent full growing season. Once an orchard or other production site meets the criteria for threatened with infestation status, it must remain in that status through at least two harvest seasons.

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(2) A quarantine for apple maggot is declared for the following counties of Washington state: Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Klickitat, Lewis, Mason, Pacific, Pierce, Snohomish, Spokane, Skagit, Skamania, Thurston, Wahkiakum, and Whatcom.

(3) A quarantine for apple maggot is declared for all states or foreign countries where apple maggot is established. The area under quarantine includes, but is not limited to, the states of Idaho, Oregon, Utah, and California, and, in the eastern United States, all states and districts east of and including North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas, and any other areas where apple maggot is established.

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(1) The shipment is accompanied by an official certificate issued by the plant protection organization of the state of origin evidencing at least one of the following:

(a) The shipment is composed of apples, which have undergone cold treatment for a continuous period of at least ninety days. During this ninety days, the temperature within the storage room must be maintained at thirty-seven and nine-tenths (37.9) degrees Fahrenheit or less.

(b) The shipment is composed of regulated commodities, which have undergone cold treatment for a continuous period of forty days or more. During this forty days, the temperature within the storage room must be maintained at thirty-two (32) degrees Fahrenheit or less.

(c) The shipment is composed of regulated commodities from Oregon, Idaho, or Utah, certified by the state of origin in compliance with WAC 16-470-122.

(d) Each lot or shipment consists of repacked fruit, which was grown outside the area under quarantine and has been identity maintained while within the area under quarantine. For repacked fruit, the certificate must show the following information:

(i) State in which the fruit was grown;

(ii) Point of repacking and reshipment;

(iii) Amount and kind of commodities comprising the lot or shipment; and

(iv) Names and addresses of the shipper and consignee.

(2) The fruit originated outside the area under quarantine for apple maggot and is a reshipment in original, unopened containers. The containers must each bear labels or other identifying marks evidencing origin outside the area under quarantine.

(3) The fruit is frozen solid.

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(1) The shipment is accompanied by a permit for movement of fruit issued by the department verifying one of the following:

(a) The fruit came from orchards and production sites that are not threatened with infestation; or

(b) The fruit has completed treatment as specified in WAC 16-470-118(3). If records of treatment vertifying compliance with conditions specified in WAC 16-470-118(3) are made available to the department, no reinspection is required by the department.

(2) The shipment is accompanied by a permit issued by the department in fulfillment of WAC 16-470-118 (2) and (3), which specifies conditions for shipment from orchards and production sites that are infested or threatened with infestation.

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Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 16-470-118   Within Washington state, what is required to ship fruit into, within, or through the pest free area for apple maggot from an orchard or production site that is infested or threatened with infestation?   All regulated commodities, as described in WAC 16-470-111, from an orchard or production site that is infested or threatened with infestation by apple maggot must be sampled and inspected (except graded culls - see subsection (4) of this section) by the department following accepted agency standards.

(1) If regulated commodities are inspected and found free of apple maggot, the shipment must be accompanied by a permit for movement of fruit issued by the department.

(2) If regulated commodities are found to be infested with apple maggot, a permit from the department, which specifies conditions for handling and shipment, is required to transport the fruit within or through the pest free area. No permit may be issued under this subsection for transportation of regulated commodities found to be infested with apple maggot into the pest free area for apple maggot.

(3) If regulated commodities are found to be infested with apple maggot, one or more of the following treatments must be performed and verified by the department as specified in WAC 16-470-115 (1)(b) before the commodity is moved from area(s) designated or quarantined by the department:

(a) Apples (including crab apples) cold treated as specified in WAC 16-470-113 (1)(a).

(b) Regulated commodities cold treated as specified in WAC 16-470-113 (1)(b).

(c) Other methods as prescribed in writing by the department.

(4) If the shipment contains graded culls, it must comply with the conditions specified in WAC 16-470-113 (1)(a) and (b).

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(1) A permit has been agreed to by the plant protection organization of the state of origin and the department. The permits must specify that the plant protection organization of the state of origin has conducted an adequate apple maggot detection program, which includes immediate written notification to the department of detections in counties where apple maggot has not previously been detected.

(2) The plant protection organization of the state of origin certifies that the fruit originated in areas in which apple maggot is not established, was grown in a commercial orchard, and has not been placed under quarantine.

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(2) The following commodities are regulated under this quarantine as possible hosts or carriers of plum curculio: All fresh fruit of apple (including crab apple), apricot, blueberry, cherry, currant, grape, hawthorn (haw), huckleberry, nectarine, peach, pear, persimmon, plum, prune, and quince.

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(1) The shipment is accompanied by an official certificate issued by the plant protection organization of the state of origin evidencing at least one of the following:

(a) The shipment consists of apples, which have undergone cold treatment for a continuous period of at least ninety days. During this ninety days, the temperature within the storage room must be maintained at thirty-seven and nine-tenths (37.9) degrees Fahrenheit or less.

(b) The shipment consists of regulated commodities, which have undergone cold treatment for a continuous period of forty days or more. During this forty days, the temperature within the storage room must be maintained at thirty-two (32) degrees Fahrenheit or less.

(c) Each lot or shipment consists of repacked fruit, which was grown outside the area under quarantine and has been identity maintained while within the area under quarantine. For repacked fruit, the certificate must show the following information:

(i) State in which the fruit was grown;

(ii) Point of repacking and reshipment;

(iii) Amount and kind of commodities comprising the lot or shipment; and

(iv) Names and addresses of the shipper and consignee.

(2) The fruit originated outside the area under quarantine for plum curculio and is a reshipment in original, unopened containers. The containers must each bear labels or other identifying marks evidencing origin outside the area under quarantine.

(3) The shipment consists of fresh fruit from Utah counties where plum curculio is established and is made in compliance with terms of a permit agreed upon by both the Utah and Washington plant protection organizations.

(4) The shipment consists of fresh fruit from Utah counties where plum curculio is not established, and all of the following conditions are complied with:

(a) The Utah plant protection organization has conducted an adequate plum curculio detection program, which includes immediate written notification to the department of detections in counties where plum curculio has not previously been detected; and

(b) The Utah plant protection organization certifies that the fruit originated in areas in which plum curculio is not established, was grown in a commercial orchard, and has not been placed under quarantine.

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[Statutory Authority: Chapter 17.24 RCW. 84-10-039 (Order 1822), 16-470-130, filed 5/1/84, effective 7/1/84.]

     The following sections of the Washington Administrative Code are repealed:

WAC 16-470-100	Quarantine -- Apple maggot and plum curculio -- Area under order.
WAC 16-470-110	Commodities under quarantine -- Apple maggot hosts and carriers.
WAC 16-470-120	Apple maggot and plum curculio quarantine restrictions -- Interior/exterior.

Washington State Code Reviser's Office