WSR 19-13-104

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed June 19, 2019, 10:17 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 18-01-145.

Title of Rule and Other Identifying Information: WAC 16-228-1270 What are the restrictions on the use of pesticides on small seeded vegetable seed crops, seed alfalfa and seed clover?, the department is proposing to add garlic grown for seed to the list of seed crops in WAC 16-228-1270 as a result of a petition for rule making. In addition, the department is proposing to include several changes to improve clarity, organization, or readability of WAC 16-228-1270. Revisions include:

1. Modifying the title of the section to improve clarity;

2. Modifying the list of allowed seed crops to include the common name and scientific name, and expanding the list of seed crop names, to more accurately describe the specific seed crops that are subject to the rule;

3. Adding, in rule, the process currently used by the department to evaluate petitions for new seed crops; and

4. Expanding the conditions under which the rule would not apply to listed seed crops grown in Washington.

Hearing Location(s): On July 24, 2019, at 10:00 a.m., at the Washington State Department of Agriculture, 21 North 1st Avenue, Conference Room 238, Yakima, WA 98902.

Date of Intended Adoption: July 31, 2019.

Submit Written Comments to: Gloriann Robinson, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, email wsdarulescomments@agr.wa.gov, fax 360-902-2092, by July 24, 2019, 5:00 p.m.

Assistance for Persons with Disabilities: Contact Maryann Connell, phone 360-902-2012, fax 360-902-2093, TTY 800-833-6388 or 711, email mconnell@agr.wa.gov, by July 17, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The major change to this rule is the addition of garlic grown for seed to the list of seed crops in WAC 16-228-1270. This will allow the department to issue special local need (SLN) registrations for garlic grown for seed without pesticide residue data if all applicable requirements are met by the garlic seed industry.

Section 24(c) of the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) and Title 40 of the Code of Federal Regulations Section 162.152 authorizes state lead agencies responsible for registering pesticides to register a new end-use product or an additional use of a federally registered pesticide product to address an existing or imminent pest situation (i.e., the "special local need"). Generally, states can only issue SLN registrations for food crops, such as garlic, if pesticide residue data demonstrate that the pesticide residue will not exceed the tolerance established by the United States Environmental Protection Agency (USEPA). States can also issue SLN registrations for food crops for pesticides having an appropriate exemption from tolerance. Adding garlic grown for seed to WAC 16-228-1270 specifically designates it as a nonfood and nonfeed site of pesticide use. It will allow the department to issue SLN registrations for garlic grown for seed without pesticide residue data if all applicable requirements for the prevention of treated garlic seed (bulbs) from being diverted into food or feed items are met by the garlic seed producers, processors and distributors. The rule specifies the conditions that must be met by the garlic seed industry, similar to conditions previously established in rule for other seed crops.

Other revisions will clarify which seed crops are subject to the rule, explain the process used by the department to consider adding seed crops to the list, and expand the conditions under which the rule does not apply. These revisions will improve the clarity and readability of the rule, and limit the scope of the rule to listed seed crops that are produced using pesticides without an established tolerance or tolerance exemption.

Reasons Supporting Proposal: Most garlic seed grown in Washington is sold to garlic growers in California for planting, and is not being sold or processed as a food crop. The development of pesticide residue data is expensive and time consuming, and it is very unlikely that registrants would be willing to conduct pesticide residue studies for crops grown on limited acreage (such as garlic grown for seed). Allowing the garlic seed industry to obtain pesticide registrations without the need of pesticide residue data is consistent with the process that has been successfully used for many years by other listed seed crops and will potentially provide access to additional pesticide tools to produce and manage their crop without submitting expensive pesticide residue research data. The department has consulted with USEPA regarding this issue. USEPA has no objection to adding garlic seed to the seed crop rule, providing the department has appropriate rules to prevent diversion of treated garlic seed into food or feed items. 

Clearly limiting the scope of the rule will be a significant benefit to small scale garlic growers that are growing garlic as a food crop, as well as garlic seed for their own use (i.e., for planting). It will also be a benefit to growers of other listed seed crops, since the rule will only apply to listed seed crops produced using pesticides without an established tolerance or tolerance exemption that would allow use on the listed seed crop.

Clarifying the section title and the seed crops listed in the rule will help all seed crop growers better understand whether or not they are subject to the rule. The existing list of seed crops that are subject to the rule is confusing and inaccurate. For example, the current rule lists garden beet and sugar beet as synonyms when they are actually two separate crops.

Adding the evaluation process used by the department improves clarity and transparency for all interested parties, including seed crop growers.

Statutory Authority for Adoption: RCW 15.58.040, 17.21.030, and chapter 34.05 RCW.

Statute Being Implemented: Chapters 15.58 and 17.21 RCW.

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

Name of Proponent: Todd Crosby, private.

Name of Agency Personnel Responsible for Drafting and Implementation: Kelle Davis, 1111 Washington Street S.E., Olympia, 360-902-1851; Enforcement: Joel Kangiser, 1111 Washington Street S.E., Olympia, 360-902-2013.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

Is exempt under RCW 34.05.310 (4)(b) and (d).

Explanation of exemptions: RCW 34.05.310 (4)(b): The proposed rule describes the internal process used by the department to evaluate petitions for the addition of new seed crops considered nonfood and nonfeed sites of pesticide use in order to be transparent. Interested parties will have a better understanding of the evaluation process used by the department, and the type of information required to support the designation of a seed crop as a nonfood and nonfeed site.

RCW 34.05.310 (4)(d): The proposed rule clarifies the section title and the list of seed crops that are subject to the rule, consistent with USEPA crop terminology and previous revisions to the rule. Currently there are thirty-four seed crops that are listed in the rule, whereas the department has determined that there are actually forty-one seed crops that should be listed in the rule.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The proposed rule does not impose any additional costs on businesses. In addition to the proposed amendments that fall under exemptions specified above, the department is proposing to add garlic grown for seed to the list of allowed crops that can be considered nonfood and nonfeed sites of pesticide use. Currently, garlic seed growers cannot obtain an SLN registration without submitting expensive pesticide residue research data. Adding garlic grown for seed to the list of nonfood and nonfeed sites of pesticide use allows the department to issue SLN registrations without the applicant submitting expensive pesticide residue research data as long as all applicable requirements for the prevention of treated garlic seed (bulbs) from entering or contaminating food or feed supply channels are met by the garlic seed producer, processor, and distributor. Receiving an SLN benefits the garlic seed industry by potentially providing access to additional pesticide tools to produce and manage their crop. There is no fee to the applicant for a standard SLN registration.

The rule proposal also expands the conditions under which seed growers are exempt from the rule. This benefits all seed growers by clearly specifying when a seed grower does not need to comply with the rule. Currently, the rule exempts any seed crop certified under the Organic Products Act (chapter 15.86 RCW). The department is proposing to expand the exemptions to include conditions: (1) When no pesticides were applied to the seed crop, and (2) when using only pesticides registered and labeled for application to the seed crop, and having established tolerances or tolerance exemptions for residues of pesticides on the seed crop and its byproducts. Expanding the rule exemptions doesn't impose additional fees on the growers and the department does not anticipate significant additional compliance costs on growers.

June 19, 2019

Robin Schoen-Nessa

Assistant Director