WSR 10-05-117

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed February 17, 2010, 11:04 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-01-005 and 10-01-004.

Title of Rule and Other Identifying Information: WAC 16-302-080 What will cause a seed field to be ineligible for seed certification?, 16-302-170 Other considerations in applying the standards for certification, 16-302-560 Miscellaneous field and seed inspection standards for buckwheat, chickpea, field pea, lentil, millet, soybean, sorghum, small grain seed certification, and 16-302-685 Small grains standards for seed certification.

Hearing Location(s): Red Lion Hotel Conference Room, 2525 North 20th Avenue, Pasco, WA 99301, on March 24, 2010, at 1:00 p.m.

Date of Intended Adoption: March 31, 2010.

Submit Written Comments to: Teresa Norman, P.O. Box 42560, Olympia, WA 98504-2560, e-mail tnorman@agr.wa.gov, fax (360) 902-2043, by 5 p.m. on March 26, 2010.

Assistance for Persons with Disabilities: Contact the agency receptionist by calling TTY (360) 902-1996 or (360) 902-1976.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal will amend current seed certification standards to allow for trait verification as criteria for seed certification for varieties that contain a GMO or other novel trait. This will allow for seed lot to only be certified if the seed is proven to contain the trait as described in the variety description.

This proposal will amend current seed certification rules to provide clarity in regards to prohibited noxious weeds present in a seed field. This proposal will allow for the rejection of seed certification if prohibited noxious weeds are not controlled to prevent seed formation should they be present in a seed field.

Reasons Supporting Proposal: At the request of the Washington Crop Improvement Association this rule proposal will allow for trait verification as part of seed certification criteria. In specific, all CLEARFILED [CLEARFIELD] small grain varieties will require verification that the field was sprayed with Beyond herbicide and that each seed lot will be required to be tested to ensure that it contains the CLEARFIELD trait. The current certification rules do not address trait verification. This could result in a seed lot being tested and found to not contain a sufficient level of a trait yet it would still be eligible for certification. This situation would create a false representation of this seed lot in the market place. This proposal will create a level of consumer protection.

At the request of the Washington Crop Improvement Association this rule proposal will standardize language in the seed certification standards to make it clear that prohibited noxious weeds must be controlled to prevent seed formation. Currently, the small grain standards only refer to a sublist of prohibited noxious weeds and the language is ambiguous as to when a seed field must be rejected for the presence of prohibited noxious weeds. This allows for multiple interpretations of the rule. This proposal will clearly communicate to industry that prohibited noxious weeds must be controlled to prevent seed formation and will allow for uniform application of the rule by seed field inspectors.

Statutory Authority for Adoption: Chapters 15.49 and 34.05 RCW.

Statute Being Implemented: Chapter 15.49 RCW.

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

Name of Proponent: Washington State Crop Improvement Association, private.

Name of Agency Personnel Responsible for Drafting and Implementation: Victor Shaul, Operations Manager, Yakima, (509) 225-2630; and Enforcement: Fawad Shah, Program Manager, Yakima, (509) 225-2636.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule amendment proposal does not impose any additional costs upon the seed industry. In regards to trait verification, each seed lot is already being laboratory tested. This is an existing cost to industry. In regards to the clarification of prohibited noxious weeds, no new inspection or reporting procedures are associated with this rule making. The Washington state department of agriculture concludes that this fee rule making does not impose any new costs upon the seed industry, therefore a small business economic impact statement is not required according to RCW 19.85.030 (1)(a).

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

February 17, 2010

Kennith R. Harden

Assistant Director

OTS-3041.2


AMENDATORY SECTION(Amending WSR 00-24-077, filed 12/4/00, effective 1/4/01)

WAC 16-302-080   What will cause a seed field to be ineligible for seed certification?   (1) A seed field is not eligible for certification unless a field inspection is made prior to defoliation or harvesting.

(2) ((The presence of prohibited noxious weeds or)) Prohibited noxious weeds must be controlled to prevent seed formation. Follow-up inspections may be conducted to ensure weed control was sufficiently carried out to prevent prohibited noxious weed seeds from being harvested with the seed crop. Excessive objectionable weeds may be cause for rejection of a seed field. Excessive weeds, poor stands, lack of vigor, or other conditions which make inspection inaccurate may be cause for rejection. A field producing foundation or registered seed that warrants a rejection because of noxious weeds may be reclassified to certified blue tag class if upon reinspection the field meets certified blue tag standards.

(3) If a seed field is rejected for certification, the grower may reapply to the certifying agency and pay a fee for reinspection after the cause for rejection is corrected, unless otherwise specified in chapter 16-302 WAC. No more than two reinspections are permitted for each field per year.

[Statutory Authority: RCW 15.49.005, 15.49.081, 15.49.310, 15.49.370(3) and chapter 17.24 RCW. 00-24-077, 16-302-080, filed 12/4/00, effective 1/4/01.]


AMENDATORY SECTION(Amending WSR 00-24-077, filed 12/4/00, effective 1/4/01)

WAC 16-302-170   Other considerations in applying the standards for certification.   (1) Any crop certification standard, with the exception of germination that is expressed as a percent will be derived from a test based on the minimum weight for purity analysis as specified in the 2000 AOSA rules for that crop unless otherwise specified in rule.

(2) Any crop certification standard that is based on a number per pound will be derived from a test based on the minimum weight for noxious weed seed examination as specified in the 2000 AOSA rules for that crop unless otherwise specified in rule.

(3) For species that have a high rate of inherent dormancy, it will be acceptable to use the percent of total viability instead of germination percentage for certification only. State and federal seed laws require seed be labeled on a germination test.

(4) For species or varieties that contain GMO (genetically modified organism) traits, herbicide resistant traits, or other novel traits, each seed lot may be required to meet minimum trait standards as defined by the breeder or trait owner. The variety description must define the trait. To determine the level of trait present, a test such as PCR (polymerase chain reaction) or specified bioassay test may be required.

[Statutory Authority: RCW 15.49.005, 15.49.081, 15.49.310, 15.49.370(3) and chapter 17.24 RCW. 00-24-077, 16-302-170, filed 12/4/00, effective 1/4/01.]


AMENDATORY SECTION(Amending WSR 00-24-077, filed 12/4/00, effective 1/4/01)

WAC 16-302-560   Miscellaneous field and seed inspection standards for buckwheat, chickpea, field pea, lentil, millet, soybean, sorghum, small grain seed certification.   (1) Field inspection standards for buckwheat, chickpea, field pea, lentil, millet, soybean, sorghum, small grain seed entered in the certification program are:

(a) For field pea and chickpea (garbanzo bean) - when seed crop is in full bloom and at maturity;

(b) For lentil - when seed crop is in full bloom and at maturity;

(c) For soybean - when seed crop is in full bloom and/or of mature color;

(d) For open pollinated sorghum - when seed crop is in full bloom, and optionally again when seed crop begins to show mature color;

(e) For hybrid sorghum - two inspections during bloom and one inspection after seed begins to show mature color;

(f) For small grains - when seed crop is fully headed and of mature color;

(g) For millet - one inspection during bloom and one inspection after seed begins to show mature color; and

(h) For buckwheat - one inspection when seed crop is in full bloom.

(2) Any condition or practice which permits or causes contamination of the seed crop, such as failure to prevent seed formation ((in bindweeds, Canada thistle or jointed goatgrass)) of prohibited noxious weeds, or excess weeds including excessive objectionable or restricted noxious weeds, or mechanical field mixing, is cause for rejection upon inspection ((except for formation of bindweed or Canada thistle in fields of chickpea, lentil, and field pea seed)). Fields rejected for jointed goatgrass at first inspection are not eligible for reinspection and must remain ineligible for any production of certified classes of small grain seed until a reclamation procedure, as specified in subsection (3) of this section has been completed. Fields rejected for other causes will remain eligible for reinspection.

(3) The jointed goatgrass reclamation procedure includes the following:

(a) Each grower must develop a reclamation plan for his/her affected fields. The plan must be based on the most current recommendations of Pacific Northwest scientists and Washington State University cooperative extension as well as good management practices. The plan may include use of certified seed, spring cropping practices, and late tilling and planting. No particular program is specified or endorsed and compliance with a program does not assure eligibility for the production of certified classes of small grain seed. Eligibility is based solely upon results of field inspections as provided in (b) through (e) of this subsection.

(b) The rehabilitation and inspection program duration is three years for irrigated land and five years for dryland without production of certified small grain seed and the first year of certified seed production thereafter.

(c) Annual inspections of the affected fields are conducted by the certifying agency during the prescribed rehabilitation period at such time that the jointed goatgrass would be most visible.

(d) Following the prescribed period of rehabilitation and during the first certified seed production year, a minimum of three field inspections are conducted by the certifying agency.

(e) If jointed goatgrass is found during any inspection as provided in (c) and (d) of this subsection, the rehabilitation program is determined unsuccessful or the field is declared ineligible and the rehabilitation and inspection program for that field must begin again at year one of the procedure.

(4) Field run lots of seed of the same variety may be commingled to facilitate storage and conditioning.

(5) No prohibited noxious weed seeds are permitted upon inspection for seed standards.

(6) Germination minimum refers to germination when sampled.

(7) If chemically controllable seed-borne diseases are noted upon inspection for field standards and seed standards for small grains, treatment of seed is required.

(8) Wild oat, isolated patches and borders must be removed or clearly marked so as to avoid harvesting with the rest of the field. If rejected, a reinspection is necessary to assure clean-up efforts are satisfactory. Spot checks are conducted on fields where heavy patches or contaminated borders were noted. Harvesting these areas with the rest of the field is cause for rejection of the entire field.

(9) The official laboratory providing seed analysis for the purpose of certification is the department.

(10) For all fields planted with varieties that contain the CLEARFIELD trait as defined in the variety description, documentation will be required to be submitted with the certification application verifying that the production field meets all production guidelines and was sprayed with the appropriate herbicide. CLEARFIELD is a trait that makes a plant resistant to the Beyond herbicide.

[Statutory Authority: RCW 15.49.005, 15.49.081, 15.49.310, 15.49.370(3) and chapter 17.24 RCW. 00-24-077, 16-302-560, filed 12/4/00, effective 1/4/01.]


AMENDATORY SECTION(Amending WSR 04-06-018, filed 2/23/04, effective 3/25/04)

WAC 16-302-685   Small grains standards for seed certification.   (1) Land, isolation, and field standards for small grains (barley, oat, rye, triticale, and wheat) seed certification are:



CLASS LAND STANDARDS MINIMUM YEARS ISOLATION

STANDARDS

MINIMUM FEET

OFF-TYPE

MAXIMUM HEAD

RATIO

FIELD STANDARDS

OTHER CROP

MAXIMUM HEAD

RATIO

WILD OAT

MAXIMUM

PLANTS/ACRE

Foundation 2* 90 same genus**

3 different genus

None found None found*** None found
Registered 1* 10 same genus

3 different genus**

1/148,000 1/148,000*** 5
Certified 1* 10 same genus

3 different genus**

1/49,000 1/49,000*** 5

* Waived if the previous crop is grown from an equal or higher certified class of seed of the same variety.
** Each rye field for certification must be isolated by three feet from fields producing a certified class of the same variety, and by six hundred sixty feet from other rye fields. Each triticale field for certification must be isolated by three feet from fields producing a certified class of the same variety, and by three hundred feet from other triticale, rye and wheat fields for foundation and registered class, and ten feet for certified class, unless otherwise stated by the plant breeder.
*** Refers to other small grains, except that no rye or triticale is permitted in barley, oat, or wheat; and no vetch is permitted in barley, oat, rye, triticale, or wheat.

(2) Small grains - seed standards:

For CLEARFIELD varieties: For all classes - each lot must pass the CLEARFIELD Confirm test by bioassay or PCR as defined by the trait owner. The CLEARFIELD Confirm test verifies that the seed is resistant to the Beyond herbicide.


Class Foundation Registered Certified
Pure seed (min.) 98% 98% 98%
Inert (max.) 2% 2% 2%
off-type(*) (max.) None found 2/lb 4/lb
Other small

grain(*) (max.)

None found

1/lb

2/lb

Other crop(**) (max.) None found 0.03% 0.05%
Weed seed (max.) 0.01% 0.01% 0.03%
Objectionable

weed seed(***) (max.)

None found

None found

1/lb

Wild oat (max.) None found None found None found

(****)

Viability(*****) (min.) 85% 85% 85%

(*) The combination of other small grain and off-type must not exceed 2/lb for registered class, and 4/lb for certified class. The tolerance for rye or triticale, is none found in barley, oat, or wheat. The tolerance for rye is none found in triticale. The tolerance for triticale is none found in rye.
(**) Excluding off-type and other small grain. No vetch is allowed in small grain seed
(***) Excluding wild oat.
(****) 1/lb for certified class oat.
(*****) A certification certificate is issued upon receipt of either an official AOSA tetrazolium or germination test which meets minimum Washington viability standards. NOTE: State and federal seed laws require seed be labeled based on a germination test.

Note: For all classes the purity analysis is based on 100 grams examined. For registered and certified classes, noxious weed, vetch, off-type, and other small grain determinations are based on 500 grams examined. For foundation class, noxious weed, vetch, off-type, and other small grain determinations are based on 1000 grams examined.

[Statutory Authority: RCW 15.49.370(3), 15.49.310 and chapter 34.05 RCW. 04-06-018, 16-302-685, filed 2/23/04, effective 3/25/04. Statutory Authority: Chapters 15.49 and 34.05 RCW. 02-12-060, 16-302-685, filed 5/30/02, effective 6/30/02. Statutory Authority: RCW 15.49.005, 15.49.081, 15.49.310, 15.49.370(3) and chapter 17.24 RCW. 00-24-077, 16-302-685, filed 12/4/00, effective 1/4/01.]

Washington State Code Reviser's Office