WSR 04-11-111

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed May 19, 2004, 10:41 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-07-045.

Title of Rule: Chapter 16-402 WAC, Plant pest infestations and plant labeling, nursery shipment reporting, record-keeping, and holding period.

Purpose: This proposal establishes reporting and record keeping requirements for licensed nurseries for shipments of plants from outside the state. The proposal also establishes mandatory holding periods before plants from outside the state may be sold, distributed, or transported or delivered to another location, to allow for their inspection.

Statutory Authority for Adoption: Chapters 15.13, 17.24, and 34.05 RCW.

Statute Being Implemented: Chapters 15.13 and 17.24 RCW.

Summary: Washington state has experienced several instances of entry into or presence in this state of nursery stock infested with Phytophthera ramorum, the causative organism of the invasive, exotic plant disease sudden oak death. Although evidence indicates the disease is not at this time established outside regulated nurseries, it is a serious economic and environmental threat that necessitates the department having the ability to inspect nursery stock entering the state in order to locate and eradicate populations of this organism and of other nonnative, invasive pest species before they can become established.

Reasons Supporting Proposal: Sudden oak death has a wide host range, including native species such as rhododendrons, Douglas fir and bigleaf maples and other common ornamental species such as camellia and pieris. Once the pathogen is detected, the only current control method is destruction of the infested plant. The risk of introduction of this and other nonnative, invasive plant pest species appears to be increasing dramatically, making inspection of incoming nursery stock necessary.

Name of Agency Personnel Responsible for Drafting: Mary Toohey, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1907; Implementation and Enforcement: Tom Wessels, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1984.

Name of Proponent: Washington State Department of Agriculture, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: This proposal would place in rule the provisions of a current emergency rule. It would establish reporting and record-keeping requirements for licensed nurseries for shipments of plants from outside the state. The proposal also establishes mandatory holding periods before plants from outside the state may be sold, distributed, or transported or delivered to another location, to allow for their inspection. Washington state has experienced several instances of entry into or presence in this state of nursery stock infested with Phytophthera ramorum, the causative organism of the invasive, exotic plant disease sudden oak death. Although evidence indicates the disease is not at this time established outside regulated nurseries, it is a serious economic and environmental threat that necessitates the department having the ability to inspect nursery stock entering the state in order to locate and eradicate populations of the organism before they can become established. Sudden oak death has a wide host range, including native species such as rhododendrons, Douglas fir and bigleaf maples and other common ornamental species such as camellia and pieris. Once the pathogen is detected, the only current control method is destruction of the infested plant. The risk of introduction of this and other nonnative, invasive plant pest species appears to be increasing dramatically.

Proposal Changes the Following Existing Rules: This proposal adds WAC 16-402-100, 16-402-110, 16-402-120, and 16-402-130 to chapter 16-402 WAC. These sections establish reporting and record-keeping requirements for licensed nurseries for shipments of plants from outside the state. They also establish mandatory holding periods before plants from outside the state may be sold, distributed, or transported or delivered to another location, to allow for their inspection.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires that an agency must prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on businesses in an industry. Analysis of the economic effects of the proposed rule amendments demonstrate that the changes will not be more than a minor cost to the regulated industry and, therefore, an SBEIS is not required. However, failure to adopt these changes may have a large impact on the regulated industry.

RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).

Hearing Location: Washington State Department of Agriculture, 1111 Washington Street S.E., Natural Resource Building, 2nd Floor, Conference Room 2005, Olympia, WA 98504-2560, on June 22, 2004, at 2:00 p.m.

Assistance for Persons with Disabilities: Contact Henri Gonzales by June 8, 2004, TDD (360) 902-1996.

Submit Written Comments to: Henri Gonzales, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2094, e-mail hgonzales@agr.wa.gov, by June 22, 2004.

Date of Intended Adoption: July 6, 2004.

May 19, 2004

Mary A. Martin Toohey

Assistant Director

OTS-7032.1

REPORTING AND HOLDING OF TREE AND SHRUB NURSERY STOCK
NEW SECTION
WAC 16-402-100   Purpose.   The intrusion of nonnative, invasive plant pest species into Washington state is a significant public concern. Plant pest species include insects, nematodes, snails, plant diseases, weeds and other species which harm plants or plant products. If established, such plant pests have potential to cause harm to the state's forest, agricultural, horticultural, floricultural and apiary industries, to damage natural resources and the property of private landowners, to reduce environmental quality, and to threaten the diversity and abundance of native species. In recent years, many of these invasive plant pests have entered the state, in some cases causing significant private and public expense for monitoring, control or eradication. This rule is intended to aid in the exclusion, tracking, identification, control and/or eradication of invasive plant pests which may enter the state on or in association with horticultural plants, in order to protect public health, safety, welfare, and the environment.

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NEW SECTION
WAC 16-402-110   Definitions.   The following definitions apply to WAC 16-402-100 through 16-402-130:

(1) "Tree and shrub nursery stock" means woody forest and ornamental trees, shrubs and vines grown or kept for propagation, distribution or sale, including bareroot, balled and burlaped, and containerized plants, liners, budwood, seedlings and cuttings. Fruit, seeds and tissue culture plantlets are not considered tree and shrub nursery stock.

(2) "Business day" means Monday through Friday, excluding state holidays.

(3) "Receiving nursery" means any nursery dealer within Washington state, including landscape firms and greenhouses required to be licensed as nursery dealers, that acquires tree and shrub nursery stock via interstate or international shipment.

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NEW SECTION
WAC 16-402-120   Notification requirement.   (1) Receiving nurseries for tree and shrub nursery stock imported into Washington state from any out-of-state source are required to notify the Washington state department of agriculture (WSDA). Notification methods may include U.S. mail, telefacsimile, delivery service or e-mail to: Nursery Inspection Program Supervisor, Plant Protection Division, Washington State Department of Agriculture, 1111 Washington St. S.E., P.O. Box 42560, Olympia, WA 98504-2560; fax 360-902-2094; e-mail: nursery@agr.wa.gov.

(2) Notification must include the species of plant(s), quantities of each species, source of each shipment and the receiving nursery's contact information including telephone numbers and e-mail address (if available). Copies of regular shipping documents, such as load lists, with this information are encouraged.

(3) Notification must arrive at WSDA no later than two business days after arrival of the shipment at the receiving nursery. Notification in advance of the shipment is encouraged.

(4) WSDA may approve alternative notification systems, if the alternative systems allow the provisions of WAC 16-401-130 to be carried out.

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NEW SECTION
WAC 16-402-130   Hold requirement.   (1) Tree and shrub nursery stock shipments from outside the state must be held separate from other nursery stock for a minimum of one full business day after notification is received by WSDA.

(2) WSDA will contact the nursery before or during the hold period specified in subsection (1) of this section, if the tree and shrub nursery stock must be held for inspection. WSDA will conduct the inspection as soon as practicable.

(3) Unless the receiving nursery has been instructed by WSDA to hold the shipment under subsection (2) of this section, the receiving nursery may distribute the stock before the expiration of the hold period specified in subsection (1) of this section, if the disposition of the stock is fully traceable. Retail sale to cash customers is not permitted during the hold period.

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