WSR 20-23-118

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed November 18, 2020, 9:58 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 20-19-141.

Title of Rule and Other Identifying Information: Chapter 16-483 WAC, Grape pest quarantine, as a result of a three year stakeholder driven federally funded grant project and a petition from the Washington winegrowers association, the department is proposing the following amendments:

1. Adding glassy winged sharpshooter, European grapevine moth, Xiphinema index, and grapevine red blotch virus to the list of pests under quarantine (WAC 16-483-001).

2. Clarifying that only one strain of Xylella fastidiosa - Pierce's Disease - is under quarantine (WAC 16-483-001).

3. Adding an updated scientific name for the grape pest phylloxera - Viteus vitifoliae (Fitch) - to the list of pests under quarantine (WAC 16-483-001).

4. Adding new and clarifying existing definitions (WAC 16-483-005).

5. Clarifying that the quarantine applies to infected grape plantings within Washington, as well as outside of the state (WAC 16-483-010).

6. Adding cultivation and harvesting equipment to the list of items regulated under the quarantine (WAC 16-483-020).

7. Within Washington, restricting the movement of grape planting stock from a site found infested with a quarantine pest until it meets the requirements of a pest management plan (PMP) approved by the director (WAC 16-483-030).

8. Reorganizing and clarifying the requirements for grape planting stock being shipped into the state (WAC 16-483-030).

9. Removing the exemption allowing small shipments of softwood cuttings to be visually inspected for insect pests in lieu of treatment (WAC 16-483-030).

10. Allowing tissue culture plantlets in vitro from infested states in lieu of treatment for insect pests (WAC 16-483-030).

11. Revising the acceptable treatments for insect pests to reflect current research (WAC 16-483-030).

12. Requiring all equipment used for cultivation or harvesting of grapes and vines within Washington be thoroughly washed or steam cleaned prior to movement out of an infested site, in accordance with an approved pest management plan (WAC 16-483-033).

13. Requiring phytosanitary certificates and laboratory reports (if applicable) accompany advance notice of shipments of grape planting stock imported from outside of the state (WAC 16-483-037).

14. Requiring any grapevines shipped from an infested site within the state in violation of the quarantine be returned or destroyed at the expense of the owner (WAC 16-483-040).

15. Specifying that the Clean Plant Center Northwest is not required to obtain written permission from the department when exchanging G1 material between foundation sources (WAC 16-483-050).

16. Allowing the department to issue a compliance agreement (with conditions or restrictions) to allow the movement of regulated articles not otherwise eligible for movement (WAC 16-483-050).

Hearing Location(s): On January 5, 2021, at 10:00 a.m., Skype conference line. Join by link https://lync.wa.gov/agr.wa.gov/meet/grobinson/77GFSGDC?sl=1. Join by phone 1-360-407-3816, Conference ID: 86838. Due to the mandated social distancing requirements in place during the current COVID-19 pandemic, the public hearing will be held solely over video and teleconference.

Date of Intended Adoption: January 12, 2021.

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 5:00 p.m., January 5, 2021.

Assistance for Persons with Disabilities: Contact Deanna Painter, phone 360-902-2061, TTY 800-833-6388 or 711, email dpainter@agr.wa.gov, by December 29, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In May 2015, the United States Department of Agriculture (USDA), Animal and Plant Health Inspection Service (USDA APHIS) funded a grant, managed by the Washington Wine Industry Foundation, called "Harmonizing Protocols in the Northwest - A Pilot Project Driven by Stakeholders." The grant project utilized grape industry stakeholders to drive development of a harmonized approach to grapevine virus certification, quarantines, and regulatory programs across multiple states. After a harmonized pest list was agreed upon by the Pacific Northwest states, the Washington Winegrowers Association petitioned the department to modify the rules to adopt these standards. The proposed rule amendment will create a regionally harmonized quarantine for regulatory programs in Idaho, Oregon, and Washington.

There are multiple anticipated effects from the proposed changes. One of which is that other states will be required to certify on a phytosanitary certificate, that vines are free of any of the newly added quarantine pests. This must be done either through a certification program (for virus and bacterial pests), area freedom (for insect and nematode pests), or by treatment prior to shipping (for insect pests). Another anticipated effect is that a pest management plan must be implemented prior to moving any equipment or grape planting stock from a growing site within Washington, if a quarantine pest has been detected at the site. Additionally, all equipment used for cultivation or harvesting of grapes and vines within Washington must be thoroughly washed or steam cleaned prior to movement out of an infested site.

Reasons Supporting Proposal: The thriving Washington grape industry has earned a reputation for producing high quality grapes that make premier wines and juices. Much of this success is due to superior growing conditions and the absence of some of the major grape pests that plague other grape growing regions. Surveys have shown Washington is free of European grapevine moth, glassy winged sharpshooter, and vine mealybug. Of particular concern to Washington grape growers are the leaf roll-associated viruses and red blotch virus, which delay ripening and reduce quality as well as yields. Although these viruses are found in some Washington vineyards, it is important to limit any further spread.

Since Washington's industry is built on own-rooted vines, grape growers are also concerned about the increase in finds of root infesting phylloxera, which kills own-rooted vinifera grapevines. If phylloxera becomes widespread in Washington, growers will need to shift entire vineyards to grafted vines over time, changing the state's growing practices significantly.

The Washington department of agriculture (WSDA) has maintained the grape pest quarantine since 1970, to safeguard the grape industries of Washington from establishment of harmful pests that could endanger production, quality, and yield. The proposed changes serve to strengthen that protection for the sustainability of Washington nurseries, vineyards, and wineries.

The proposed amendments are intended to strengthen Washington's wine and juice industry by: (1) Reducing the chances a quarantine pest will be imported into the state on infested grape planting stock; (2) reducing the spread of quarantine pests from infested grape planting sites to noninfested sites within the state; and (3) harmonizing Washington's rules with Oregon and Idaho to make it easier for Washington planting stock growers to ship their stock out of state.

Statutory Authority for Adoption: RCW 17.24.011 and 17.24.041.

Statute Being Implemented: Chapters 15.08 and 17.24 RCW.

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

Name of Proponent: Washington Winegrowers Association, private.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Cindy Cooper, 1111 Washington Street, Olympia, WA 98504, 360-870-5069.

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. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

The proposed rule does impose more-than-minor costs on businesses.

Chapter 16-483 WAC

Grape Pest Quarantine

November 11, 2020

Overview and Background: Chapter 17.24 RCW mandates "a strong system" to protect the forest, agricultural, horticultural, floricultural, and apiary industries of the state from the impact of insect pests, plant pathogens, noxious weeds, and bee pests and infestations. WSDA is charged with implementing that mandate by excluding plant and bee pests and diseases from the pest free areas of the state through regulation of agricultural commodity movement and quarantine of infested areas. RCW 17.24.041 authorizes the director of WSDA to adopt quarantine areas by rule and to prohibit the movement of all regulated commodities from quarantined areas.

Washington is the second largest producer of grapes in the United States, contributing over $7 billion annually to the state's economy. There are over seventy-nine thousand acres of grapevines in Washington, fifty-eight thousand of which are wine grapes (Vitis vinifera). The remaining twenty-one thousand acres are juice grapes. Wine grape acreage has more than doubled during the last ten years while the acreage of juice grapes has remained relatively stable.

The thriving Washington grape industry has earned a reputation for producing high quality grapes that make premier wines and juices. Much of this success is due to superior growing conditions and the absence of some of the major grape pests that plague other grape growing regions. Surveys have shown Washington is free of European grapevine moth, glassy winged sharpshooter, and vine mealybug. Of particular concern to Washington grape growers are the leaf roll-associated viruses and red blotch virus, which delay ripening and reduce quality as well as yields. Although these viruses are found in some Washington vineyards, it is important to limit any further spread.

Since Washington's wine grape industry is built on own-rooted vines, grape growers are also concerned about the increase in finds of root infesting phylloxera, which kills own-rooted vinifera grapevines. Own-rooted vines are vines that have not been grafted to a root stock. In areas where phylloxera occurs, wine grapes must be grafted on tolerant rootstocks, significantly increasing planting costs. After severe winter freezes (a common occurrence in the major production acreage of eastern Washington) grafted grapevines can be killed to the ground. Once this occurs, the vine must be replanted instead of simply growing a new shoot from the roots as own-rooted grapevines do. If phylloxera becomes widespread in Washington, growers will need to shift entire vineyards to grafted vines over time, changing the state's growing practices significantly.

To support and strengthen Washington's grape industry, WSDA has maintained two important tools to limit pest introductions and their spread:

WSDA periodically updates the provisions of the quarantine and certification rules, based on the most updated information available regarding the spread of grapevine pests that have the potential to threaten Washington grapevine growers. This ensures a strong system is in place to protect the grape and wine industry. These rules impact both commercial grape growers and grape planting stock producers.

In May 2015, USDA APHIS acknowledged the benefit of and the industry's desire to standardize the requirements between the three Pacific Northwest states and funded a grant, managed by the Washington Wine Industry Foundation, called "Harmonizing Protocols in the Northwest - A Pilot Project Driven by Stakeholders." The project was intended to create a regional approach for grapevine virus certification, as well as harmonize quarantines and regulatory programs for grapevine nursery stock certification in Idaho, Oregon, and Washington. California later joined the project. The project utilized grape industry stakeholders across multiple states to develop the harmonized rule and aligned quarantine, by conducting outreach to industry stakeholders which ensured a high level of participation.

By engaging stakeholders and agencies, the project was able to develop a common pest list, compare existing grapevine pest quarantines, and identify universally acceptable cultural mitigations for common pests. The proposed rule changes are being made as a result of a petition for rule making from the Washington Winegrowers Association. These changes will standardize requirements for the movement of certified grapevines between Pacific Northwest states and strengthen protection of Washington's regional grape and wine industries.

The Northwest Foundation Block Advisory Group (NFBAG) was utilized throughout the process to advise regulators, as well as sound out deliverables and their feasibility. NFBAG represents industry interests by advising the Washington State University (WSU) Clean Plant Center Northwest on the Foundation Block including management, direction, selection of plant material, distribution, and phytosanitary issues (testing and retesting). They also assist on all policies and procedures, funding needs, quarantine issues, program reviews, and industry reports. Members include wine, juice and table grape growers, wineries, nurseries, universities, and the departments of agriculture from Idaho, Oregon, and Washington.

Proposed Rule Amendments: As a culmination of the tri-state harmonization efforts, WSDA received an industry petition in November 2018, requesting a revision of the agency's grape pest quarantine (chapter 16-483 WAC). As a result of the petition for rule making, the department is proposing the following amendments:

17. Adding glassy winged sharpshooter, European grapevine moth, Xiphinema index, and grapevine red blotch virus to the list of pests under quarantine (WAC 16-483-001).

18. Clarifying that only one strain of Xylella fastidiosa - Pierce's Disease - is under quarantine (WAC 16-483-001).

19. Adding an updated scientific name for the grape pest phylloxera - Viteus vitifoliae (Fitch) - to the list of pests under quarantine (WAC 16-483-001).

20. Adding new and clarifying existing definitions (WAC 16-483-005).

21. Clarifying that the quarantine applies to infected grape plantings within Washington, as well as outside of the state (WAC 16-483-010).

22. Adding cultivation and harvesting equipment to the list of items regulated under the quarantine (WAC 16-483-020).

23. Within Washington, restricting the movement of grape planting stock from a site found infested with a quarantine pest until it meets the requirements of a pest management plan (PMP) approved by the director (WAC 16-483-030).

24. Reorganizing and clarifying the requirements for grape planting stock being shipped into the state (WAC 16-483-030).

25. Removing the exemption allowing small shipments of softwood cuttings to be visually inspected for insect pests in lieu of treatment (WAC 16-483-030).

26. Allowing tissue culture plantlets in vitro from infested states in lieu of treatment for insects (WAC 16-483-030).

27. Revising the acceptable treatments for insect pests to reflect current research (WAC 16-483-030).

28. Requiring all equipment used for cultivation or harvesting of grapes and vines within Washington be thoroughly washed or steam cleaned prior to movement out of an infested site, in accordance with an approved PMP (WAC 16-483-033).

29. Requiring phytosanitary certificates and laboratory reports (if applicable) accompany advance notice of shipments of grape planting stock imported from out of state (WAC 16-483-037).

30. Requiring any grapevines shipped from an infested site within the state in violation of the quarantine be returned or destroyed at the expense of the owner (WAC 16-483-040).

31. Specifying that the Clean Plant Center Northwest is not required to obtain written permission from the department when exchanging G1 material between foundation sources (WAC 16-483-050).

32. Allowing the department to issue a compliance agreement (with conditions or restrictions) to allow the movement of regulated articles not otherwise eligible for movement (WAC 16-483-050).

Required Professional Services: The proposed rule amendment would not require professional services. A business may choose to hire professional services to develop a PMP, however it will not be mandatory.

SECTION 2:Identify which businesses are required to comply with the proposed rule using the North American Industry Classification System (NAICS) codes and what the minor cost thresholds are. NAICS codes are self-reported by each business and therefore may not accurately reflect the actual number of nurseries and grape producers operating in Washington state.

SECTION 3:Analyze the probable cost of compliance. Identify the probable costs to comply with the proposed rule, including: Cost of equipment, supplies, labor, professional services and increased administrative costs; and whether compliance with the proposed rule will cause businesses to lose sales or revenue. WSDA worked with the Washington Winegrowers Association to email a survey to around seven hundred wine grape growers across the state. The agency also worked with WSU to email the same survey to juice grape growers. This was done in an effort to better understand what impact the proposed amendment may have on businesses. The survey asked the following questions:

A total of forty-four businesses responded to the anonymous survey; of those businesses, thirty-three were small and eleven were large. Under the proposed rule amendment, if a quarantine pest is detected at a growing site within the state, that business must implement a PMP approved by WSDA, before equipment or grape planting stock may be moved from the site. A PMP is only required if a quarantine pest is detected at a growing site and the business wants to transport equipment or grape planting stock from that site.

Table 3.1 shows a breakdown of some of the survey data collected. Of the businesses surveyed, eighty percent (thirty-five businesses) reported they have a PMP in place or follow BMPs. Of the small businesses, eight do not have a PMP or practice BMPs. However, three of those eight businesses also reported they do not move equipment, supplies, or labor between growing sites within the state. Of the large businesses, one does not have a PMP or practice BMPs and they reported moving equipment, supplies, or labor between two growing sites within the state. Therefore, only five small businesses and one large business that participated in the survey could see a cost increase associated with the proposed amendment if a quarantine pest were detected at their growing site. It's important to note, many businesses have BMPs already in place. BMPs typically outline mitigation steps to lower the risk of spreading pests. Businesses following BMPs will likely already have a lot of the equipment and procedures in place that would be needed in a PMP.

Table 3.1: Breakdown of survey answers by business size:

Under the proposed rule amendment, the primary costs businesses would incur are related to equipment, labor, or supplies needed to develop and implement a PMP. It's difficult to predict these costs, as they are highly variable and situationally specific. Costs will depend on a number of factors including the type of pest detected, if multiple types of pests are detected, size of the infested area, if a business already practices BMPs or has a PMP in place, and what equipment is already available to the business.

There will be no increased costs associated with licensing, inspection, or other fees. If a quarantine pest is found, a business will not pay for any related inspections. WSDA is required to conduct quarantine enforcement without charge. All fee schedules associated with the WSDA program authorized to enforce chapter 16-483 WAC revolve around requested services, rather than quarantine enforcement. Additionally, there will be no cost to businesses for the review and approval of a PMP by WSDA.

Loss of sales or revenue: The proposed amendments will not result in a decrease in sales or revenue for businesses selling fruit. This is because the quarantine does not apply to fruit grown in an infested field; it only applies to the grapevine. Therefore, if a field was found to be infested, the fruit grown in the field could still be sold, but the vine could not be moved from the field unless a WSDA approved PMP was in place. However, nurseries selling grape planting stock could see a decrease in sales or revenue if quarantined pests were detected at a growing site. The nurseries would not be able to ship vines from that site unless a PMP was implemented. In addition, it is unlikely commercial grape growers would want to purchase planting stock that is infested with quarantined pests. If a business implements a PMP to mitigate the possible spread of a quarantine pest, the department does not expect businesses to lose sales or revenue.

Expanding and modifying the list of pests under quarantine: Proposed amendments to WAC 16-483-001 expand the list of pests under quarantine to include grapevine red blotch virus, glassy winged sharpshooter, European grapevine moth, and Xiphinema index. The current quarantine already includes Xylella fastidiosa. However, the proposed amendment clarifies that it is only a strain of Xylella fastidiosa - Pierce's Disease - that is under quarantine, as the only strain that infects grapevines. The proposed amendment also adds an updated scientific name for the pest grape phylloxera - Viteus vitifoliae (Fitch). These changes were requested by the Washington Winegrowers Association and recommended by NFBAG, in an effort to strengthen protection of Washington's regional grape and wine industry from harmful pests. Washington is currently free of European grapevine moth, glassy winged sharpshooter, and Xiphinema index, according to official survey findings. By adding these economically harmful pests to the state's quarantine list, WSDA may more effectively regulate grape planting stock entering Washington from states with infested areas, thus reducing the chances of introduction into the state. Although grapevine red blotch virus has been found in Washington, it is not widespread. Adding it to the quarantine list will help reduce further spread of the virus into vineyards by preventing new introductions from other states.

For Washington vineyards and grapevine nurseries, adding these pests to the quarantine may have an indirect impact on where they can source imported grape planting stock. The grape pest quarantine only allows entry of planting stock produced as part of an official state virus-tested certification program. Currently, only Oregon and California have such a program, approved by WSDA. Washington businesses which source grape planting stock from these states, may be required to find a new source nursery, if the current certified nursery is within an area known to be infested with a quarantine pest and cannot meet new mitigations added to the quarantine requirements. For instance, there are known infested areas in California that may have difficulty meeting quarantine requirements for glassy winged sharpshooter or Pierce's Disease (Xylella fastidiosa). If nurseries in these areas are not willing or able to meet the proposed quarantine requirements, they will no longer be able to ship to Washington growers. Additionally, as other states develop new certification programs for grape planting stock, those programs must be approved by WSDA before the planting stock from those states can be imported into Washington under this quarantine.

Standardizing the pest list for the movement of certified grapevines between Pacific Northwest states will make regional trade easier for businesses in Washington. It will allow nurseries in Washington to meet one consistent set of interstate shipping requirements found in the harmonized quarantines of Oregon, Idaho, and California. By harmonizing the list of quarantine pests, WSDA is also standardizing the pest treatments required for interstate movement. This is evident from the requirement to use a hot water dip as a treatment for root pests prior to shipping. The quarantine language was reviewed and is standardized with the treatment time and temperature required by Oregon, Idaho, and California's rules. This means Washington nurseries do not have to track three different required treatments to ship regionally.

There are no probable costs of compliance associated with proposed amendments to WAC 16-483-001, the quarantine pest list.

Adding new and clarifying existing definitions: Proposed amendments to WAC 16-483-005 include adding a definition for "G1 foundation sources" and modifying the definition for "phytosanitary certificate." These changes harmonize WSDA quarantine definitions with those found in the North American Plant Protection Organization (NAPPO) glossary of phytosanitary terms, and in the National Clean Plant Network glossary. They also improve the readability of the rule language. There are no probable costs of compliance associated with proposed amendments to WAC 16-483-005.

Clarifying that the quarantine applies to infected grape plantings within Washington, as well as outside of the state: Proposed amendments to WAC 16-483-010 clarify that the quarantine applies to infected grape plantings within Washington state, as well as to grapevines imported from outside of the state. This clarification is being proposed in order to reduce the spread of quarantine pests from infested grape planting sites, to noninfested sites within the state. Three pests on the quarantine pest list are occasionally found in Washington vineyards (grape phylloxera, grapevine red blotch virus, and grapevine leaf roll-associated viruses). By regulating Washington vineyards for these quarantine pests, the clarified rule encourages growers to assess the pest status of their vines, prior to moving them from that site. Moving only noninfested planting stock will minimize the spread of quarantine pests within Washington. Clarifying this language allows WSDA to take action on quarantine pest finds and protect the industry to a higher degree. Grape virologists at WSU estimate that grapevine red blotch virus can be eliminated from Washington entirely within five years, once this rule goes into effect.

As a result of the proposed amendments, there will be additional restrictions on the movement of grape planting stock from infested sites within the state. These restrictions are outlined in WAC 16-483-030. The restriction on movement will reduce the spread of quarantined pests within the state, thus saving businesses on the costs associated with fighting these pests long-term, and replacement of low yield, low vigor or dead vines. A recent WSU study on economic impacts of grapevine leaf roll disease, for example, indicated that a grower can lose up to $20,000 per acre over a twenty year period depending on the quantity of yield reduction and the scale of decline in fruit quality.

The cost of compliance associated with proposed amendments to WAC 16-483-010 would be the same as those identified under WAC 16-483-030. More details on the associated costs can be found in the subsection titled "Pest management plan estimated costs."

Adding cultivation and harvesting equipment to the list of items regulated under the quarantine: Proposed amendments to WAC 16-483-020 add equipment used for cultivation or harvesting grapes or grapevines to the list of articles regulated under the quarantine. WAC 16-483-033 already regulates this equipment by requiring it to be thoroughly washed or steam cleaned prior to entry into the state. Adding equipment used for cultivation or harvesting to the list of regulated articles simply links the provisions in the two sections of rule, and recognizes they are regulated within the state as well. More details on the associated costs can be found in the subsection titled "Pest management plan estimated costs."

Restricting the movement of grape planting stock found infested with a quarantine pest unless it meets the requirements of a PMP approved by the director: Proposed amendments to WAC 16-483-030 require that within the state of Washington, grape planting stock produced at a site found infested with a quarantine pest may only be moved from that site if it meets the requirements of a PMP approved by WSDA. It also clarifies and adds some requirements for grape planting stock being shipped into the state. Growing sites which have a PMP in place will have a lower risk of spreading a quarantine pest to other sites in Washington. In turn, this will help keep the state's vineyards producing higher yields and result in longer lived vines.

Under the proposed amendments, a business will only be required to have a PMP approved by the department if their growing site is found to be infested with a quarantine pest and they wish to move grapevines or equipment off the infested site within the state. Businesses are not required to have an approved PMP if the growing site is considered free of quarantined pests or the business does not move grapevines or equipment between sites. More information on costs associated with the PMP can be found under the subsection "Pest management plan estimated costs."

Reorganizing and clarifying the requirements for grape planting stock being shipped into the state: WAC 16-483-030 specifies the requirements for businesses outside of Washington to ship grape planting stock into Washington state. The proposed amendment updates the language required on phytosanitary certificates and updates acceptable treatments for grapevine insect pests. These amendments reflect currently acceptable treatment protocols and ensure the paperwork accompanying the shipment of imported planting stock reflects quarantine requirements. There are no direct costs to Washington businesses associated with revised phytosanitary and treatment requirements under WAC 16-483-030, as costs will be borne by the shipper.

Removing the exemption allowing small shipments of softwood cuttings to be visually inspected for insect pests in lieu of treatment: Proposed amendments to WAC 16-483-030 would remove an exemption related to softwood cuttings shipped into Washington state. This exemption allowed shipments of softwood cuttings under five hundred articles, to be shipped into Washington if the shipment had been inspected by a state, district, or territory plant regulatory official and was visually found to be free from insect pests such as grape phylloxera and vine mealybug. Removal of this exemption means that every shipment of grape propagative material, no matter how small will require a phytosanitary certificate to enter Washington. There are no direct costs to Washington businesses associated with the removal of this exemption, as costs will be borne by the shipper.

Allowing tissue culture plantlets in vitro from infested states in lieu of treatment for insects: Proposed amendments to WAC 16-483-030 would add the option for businesses from states infested with quarantine insect species, to ship grape tissue cultures in vitro or grape plantlets ex vitro. Since they are grown under sterile conditions, plants in tissue culture have never been exposed to contamination by quarantined insect pests and do not require treatment to eliminate these pests. It is easy to verify tissue cultures are free of pests by visual inspection. There's no direct costs to Washington businesses as a result of the proposed amendments, as costs are borne by the shipper.

Revising the acceptable treatments for insect pests to reflect current research: A thorough review of proposed amendments to WAC 16-483-030 confirms that the hot water treatment currently in rule aligns with similar quarantine treatments required in California and Oregon rules. The acceptable hot water treatment has not been changed. The second option for treating vines for insect pests was revised to allow any labeled fumigant to be used, rather than specifying Methyl Bromide treatment only. This better reflects current practice and research. This may provide businesses with more options when treating for insect pests. There's no direct costs to Washington businesses as a result of the proposed amendments, as costs are borne by the shipper.

Requiring all equipment used for cultivation or harvesting of grapes and vines within Washington be thoroughly washed or steam cleaned prior to movement out of an infested site in accordance with an approved PMP: Proposed amendments to WAC 16-483-033 would require that all equipment used for cultivation or harvesting of grapes and vines in Washington be thoroughly washed or steam cleaned to remove all soil and plant material prior to movement out of an infested site within the state. This must be done in accordance with a WSDA approved PMP. Cleaning equipment prior to moving it out of an infested site will reduce the risk of spreading a pest to a noninfested site. This same requirement has always been mandatory for all grape cultivation or harvesting equipment entering Washington from another state. The proposed amendment simply clarifies that the requirement applies to the movement of equipment within the state if it comes from a site infested with a quarantine pest.

There may be increased costs associated with this requirement, depending on what cleaning or sanitizing equipment a business already has available on-site and what procedures they plan to utilize. Some businesses may need to purchase a hose, sprayer, or portable cleaning station. Costs associated with this requirement are expected to be minimal and are analyzed further in the subsection titled "Pest management plan estimated costs."

Requiring phytosanitary certificates and laboratory reports (if applicable) accompany advance notice of shipments of grape planting stock imported from out of state: Proposed amendments to WAC 16-483-037 require anyone importing grape planting stock into the state to include a phytosanitary certificate and laboratory reports (if applicable), when notifying the department in advance of receiving the shipment. The current rule already requires anyone importing grape planting stock to notify the department in advance. The proposed amendment simply specifies that the notification must be accompanied by a phytosanitary certificate and laboratory reports (if applicable). Shipments of grape planting stock are already required to be accompanied by an official certificate. The proposed amendment requires that this certificate be a phytosanitary certificate, with specified additional declarations. There are minimal costs associated with complying with the proposed amendments since businesses are already required to notify the department when importing planting stock. Costs to include a phytosanitary certificate and possibly laboratory reports with the advance notice are expected to take less than one hour for a business to complete. This should equate to less than $50 per year. Costs for obtaining a phytosanitary certificate are borne by the shipper in the origin state.

Requiring any grapevines shipped from an infested site within the state in violation of the quarantine be returned or destroyed at the expense of the owner: Currently, grapevines shipped into the state in violation of the quarantine will be destroyed or returned to the point of origin at the expense of the owner. The proposed amendment to WAC 16-483-040 expands this provision to include shipments of grapevines moved from an infested site within the state. Under RCW 19.85.040, agencies are required to analyze the costs of compliance for businesses required to comply with the proposed rule. The proposed amendment specifies the actions the department may take if a business does not comply with quarantine requirements. There are no probable costs associated with this amendment for businesses that comply with the quarantine. Only violators will bear the cost of noncompliance.

Specifying that the Clean Plant Center Northwest is not required to obtain written permission from the department when exchanging G1 material between foundation sources: Currently, the quarantine exempts grape planting stock imported for experimental or trial purposes by USDA or WSU as long as they obtain written permission from the department. The proposed amendments to WAC 16-483-050 further exempts the Clean Plant Center Northwest from obtaining written permission from the department when exchanging G1 material between foundation sources, for any reason. Since the Clean Plant Center Northwest is under the umbrella of WSU, an analysis of the impact is not required. However, there are no increased costs associated with adding an exemption for WSU.

Proposed changes to WAC 16-483-050 add exemptions to the quarantine requirements. The exemption section of the quarantine language is being expanded to allow an exemption specifically for the Clean Plant Center Northwest to exchange G1 foundation material with other clean plant centers, without obtaining the director's permission. As G1 material has been fully tested and found to be free of grape virus pathogens, it is in the best interest of the state to allow exchange of foundational material held at clean plant centers under controlled conditions that pose no risk of introducing quarantine pests. There is no cost to businesses to add this exemption.

Allowing the department to issue a compliance agreement (with conditions or restrictions) to allow the movement of regulated articles not otherwise eligible for movement: Proposed amendments to WAC 16-483-050 allow the department to issue a compliance agreement (with conditions or restrictions) to other entities to allow the movement of regulated articles not otherwise eligible for movement. There may be a rare instance when it is of benefit to the industry to allow such movement. If agreed to by the director, these articles would move under a compliance agreement listing specific conditions eliminating the risk of moving grape quarantine pests into the state. The cost of an agreement would be $50 per year for licensed Washington nurseries and $62.50 per year for vineyards, regardless of business size.

Pest management plan estimated costs: Proposed amendments to WAC 16-483-030 and 16-483-033 require that grape planting stock and equipment may not be moved from an infested site unless the requirements of a WSDA approved PMP have been met. WSDA will work with businesses individually to develop a PMP. Plan requirements will be determined on a case-by-case basis based on which quarantine pest has been detected, what BMPs are already put in place by the business, and what equipment is readily available. This will help keep costs to a minimum, as businesses may be able to utilize equipment and supplies they already have, and preference will be given to lowest cost options that mitigate the risk of spread.

A PMP will only be required for businesses which have a growing site where a quarantine pest has been found and they wish to transport equipment or grape planting stock out of that site. In 2019, there was only one business where WSDA officially detected a quarantine pest at a growing site. Since the grape pest quarantine does not regulate fresh fruit of grapes, most vineyards within the state are not inspected or tested by WSDA. Though there are vineyard plantings that show visual symptoms of grapevine leaf roll virus and grapevine red blotch virus, most vineyard managers voluntarily implement BMPs and do not move infected stock or propagate from vines showing symptoms, replacing them over time with virus-tested certified stock. Therefore, many of the likely requirements of a PMP are already voluntarily adopted by businesses within the industry as BMPs for preventing the spread of pests. In fact, all but one of the businesses surveyed reported that they used some sort of outside resource (university publications, private crop consultants, or grape/wine associations) to determine BMPs and components of a PMP.

There is insufficient data to analyze the exact costs associated with establishing a PMP. Costs vary greatly depending on which pest is detected and what resources are already available to the business. Resources needed to manage each pest may vary. Some proposed and current quarantine pests such as glassy winged sharpshooter, European grapevine moth, vine mealybug, Pierce's Disease, and Xiphinema index are not known to occur in Washington, so it is unlikely a business will need to develop a PMP to mitigate them. These pests have been included in the quarantine as a preventative measure. WSDA will audit incoming vines for these pests to ensure they are not introduced into the state. Additionally, quarantine pests such as grapevine virus A, grapevine virus B, and grape fanleaf virus do not occur often and are not readily spread within a growing site, due to the absence of vectors (organisms that transmit a disease from one plant to another). The only likely requirement for mitigation of these viruses under a PMP would be either replacement of infected vines with virus-tested certified stock, or simply avoiding taking cuttings from infected vines for further propagation. The least costly requirements will likely be implemented to mitigate the risk of spread. However, multiple quarantine pests may be found at one growing site, which could increase overall costs.

Phylloxera is a pest that cannot be eradicated. It progressively weakens grapevines and eventually kills the vine. A continuous PMP will need to be followed in fields found to be infested. At this time, only wingless, root-feeding forms of phylloxera have been found in Washington state. Removal of infested vines simply spreads the phylloxera more widely. WSU recommends leaving infested vines undisturbed. Root phylloxera do not move readily in the well-drained soils found in Washington's major grape production areas.

Costs for equipment and supplies needed to implement a PMP will vary depending on what a business already has access to and the pest they are managing. The following four cost scenarios outline what equipment and resources may be needed to implement a PMP for a small business with approximately five acres. Since equipment and resources vary depending on the type of pest detected, the scenarios estimate PMP costs for infestations of phylloxera, leaf roll virus, Xiphinema index, and a quarantine insect pest. The cost range for a larger business was not estimated, as the survey results showed that all but one large business had a PMP already in place. Therefore, it's assumed that costs to large businesses would be minimal as they would already have much of the necessary equipment for a PMP.

Cost Scenarios: All scenarios are estimating costs for a smaller business with approximately five acres.

Most PMPs will likely require some form of the equipment listed in each scenario. Aside from the PMP and training, many businesses will already have some, if not all, of this equipment available. The exact equipment required for a PMP will vary depending on the pest or pests detected. In some cases, once treatment has occurred, there would no longer be costs associated with the PMP. But, pests such as grapevine leaf roll-associated viruses, grapevine red blotch virus, and grape phylloxera cannot be eradicated through treatment, so mitigation under a PMP would be ongoing. WSDA will work with businesses to develop the PMP, as well as assist with training staff, free of charge. If a five acre business did not have any of the necessary equipment available, then the estimated cost range would be $1,396 - $1,733 for phylloxera, $1,425 - $1,475 for leaf roll virus, $1,396 - $1,733 for Xiphinema index, and $1,065 - $1,175 for a quarantine insect pest.

Aside from any initial training, staff hours are not expected to increase as a result of the proposed amendments. There may be costs associated with recordkeeping for businesses required to establish a PMP. Some plans may require testing results and other records be made available to WSDA upon request. Recordkeeping costs associated with the proposed amendments are expected to require approximately two hours each month during the growing season. At a cost of $50 per hour for staff time, this would equal approximately $350 per year.

Considering the costs associated with developing and implementing a PMP for each of the cost scenarios, combined with the associated recordkeeping costs ($350), the estimated cost range of compliance is $1,415 to $2,083. Depending on the pest detected, this could be an annual or one-time cost. However, a PMP is only needed if a business has a site that is infested with a quarantine pest and the business wants to move plants or equipment from the infested site.

SECTION 4:Analyze whether the proposed rule may impose more-than-minor costs on businesses in the industry. As stated previously, there is insufficient data to determine the exact costs businesses may incur as a result of the proposed rule amendments. This is because each situation in which a PMP is required will be different and the equipment already available to businesses will vary.

The estimated cost range to comply with the proposed amendments are $1,415 to $2,083 either annually or as a one-time cost. Most of these costs are associated with drafting and implementing a PMP. However, a PMP is only needed if a business has a site that is infested with a quarantine pest and the business wants to move plants or equipment from the infested site. In some cases, a business may never have to draft or implement a PMP. Table 4.1 shows estimated costs under four possible scenarios, compared to the minor cost thresholds for impacted industries.

The minor cost thresholds identified in Table 4.1 are the higher thresholds listed in Section 2. Costs are not expected to exceed the minor cost thresholds for businesses in industries identified in Section 2.

SECTION 5:Determine whether the proposed rule may have a disproportionate impact on small businesses as compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule. RCW 19.85.040(1) requires the department to compare the cost of compliance for small businesses with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules using one or more of the following as a basis for comparing costs: (a) Cost per employee; (b) cost per hour of labor; or (c) cost per one hundred dollars of sales.

Although some businesses were willing to answer survey questions related to the proposed amendments, none were willing to provide details on current PMPs or associated costs. Due to this and the specialization of each PMP, there is not sufficient data to calculate this comparison using the criteria from RCW 19.85.040(1).

Of the businesses which participated in the survey, eleven were large and thirty-three were small. All but one of the large businesses reported that they already have a PMP in place. The majority of small businesses reported they also have a plan in place, however eight do not. Of those eight, three stated that they do not move equipment between growing sites. Therefore, of the survey participants only five small businesses and one large business would be impacted by the proposed amendments if a quarantine pest was detected at their growing site and the business wants to move plants or equipment from the infested site. From the survey data collected, it may be assumed that the majority of large businesses will likely have a PMP in place. Small businesses could be less likely to have a plan already established and may have less equipment on hand. Although it's difficult to determine exact costs from the survey data collected, it can be assumed that small businesses will likely be disproportionately impacted by the proposed rule amendment by having to develop a PMP and obtain any equipment necessary to implement a PMP if they don't already have it available.

SECTION 6:If the proposed rule has a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses. If the costs cannot be reduced, provide a clear explanation of why. It is concluded that the proposed rule amendment will have a disproportionate impact on small businesses. The following information is provided for further explanation and clarification.

RCW 19.85.030(2) requires consideration of the following methods of reducing the impact of the proposed amendment on small businesses:

(a) Reducing, modifying, or eliminating substantive regulatory requirements: Any reduction, modification, or elimination of the regulatory requirements of the proposed rule amendment could increase the risk of grape pests and viruses infesting Washington grapevines and undermine the purpose of the quarantine. Additionally, the proposed amendments harmonize the quarantine requirements in Washington with those of Idaho and Oregon. If the amendments are not adopted, then these quarantined pests may become established in Washington state. WSDA periodically updates the provisions of the quarantine and grape planting stock certification rules, based on the most updated information available regarding the spread of grapevine pests that have the potential to threaten Washington growers. This ensures a strong system is in place to protect the grape and wine industry. Not amending the rule to harmonize with Oregon and Idaho will also make it more difficult for Washington planting stock growers to ship their stock out of state.

(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements: Reporting requirements: Under the current rule, anyone importing grape planting stock into the state must notify the department in advance of receiving the shipment. The notification must include an official certificate. The only change to this reporting requirement is to specify that the "official certificate" has to be a phytosanitary certificate and may need to include laboratory reports (if applicable). Without a phytosanitary certificate that attests the planting stock is in compliance with state regulations, the department would have a limited ability to enforce the provisions of the quarantine and protect Washington grape growers. Once the planting stock is received and the department determines it does not comply with provisions of the quarantine, the business may have to destroy or ship the planting stock back to the state of origin at their expense.

Recordkeeping requirements: Some businesses may be required to draft and implement a PMP. An effective PMP includes recordkeeping to demonstrate effective pest management efforts to eliminate the risk of spread of quarantine pests. Without recordkeeping, the department would be unable to assess if appropriate measures were taken to prevent the spread of pests of concern. Any reduction in recordkeeping would make it more difficult for WSDA to monitor the effectiveness of a PMP. Therefore, it is not possible to simplify, reduce, or eliminate this requirement.

(c) Reducing the frequency of inspections: This rule does not specify a requirement for inspections.

(d) Delaying compliance timetables: Delaying compliance timetables is not a viable mitigation measure. Any delay will result in maintaining a higher risk of spread for grape pests. Although delaying compliance timetables is not an option, WSDA expects to work with businesses and the materials already available to them, to develop an effective PMP. Both Oregon and Idaho are also in the process of modifying their rules to harmonize with recommendations of the "Harmonizing Protocols in the Northwest - A Pilot Project Driven by Stakeholders" project.

(e) Reducing or modifying fine schedules for noncompliance: This rule does not contain any fines for noncompliance.

(f) Any other mitigation techniques including those suggested by small businesses or small business advocates: WSDA will work closely with each business to develop a PMP. Each PMP will be customized to the business that implements it. In an effort to reduce costs for businesses, WSDA will assist in developing a plan that utilizes equipment and resources that are already available to the business. This flexibility will help keep costs low for businesses. No other mitigation techniques were suggested by small businesses or small business advocates.

SECTION 7:Describe how small businesses were involved in the development of the proposed rule. Industry groups representing small businesses were involved throughout the development of the proposed rule, which included the "Harmonizing Protocols in the Northwest - A Pilot Project Driven by Stakeholders." This project engaged stakeholders and regulatory agencies in comparing existing grapevine pest quarantines and certification programs, developing a common pest list, and identifying universally acceptable testing methods and cultural mitigations for common pests.

Representatives of all segments of the wine and grape industry were invited to attend meetings and discussions regarding changes to the rule. These stakeholders represented both small and large businesses within the industry. They were also invited to attend focus groups where the language was developed. Further outreach was done through industry associations and presentations at WSU viticulture industry events.

SECTION 8: Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule. No jobs are estimated to be created or lost as a result of compliance with the proposed rule. However, failure to adopt the proposed amendments to the quarantine could result in the spread of quarantine pests. This could affect the ability of Washington grapevine producers to export their stock to other states. It could also affect grape quality and yields. Tools such as the grape pest quarantine rule, protect growers by preventing the introduction and spread of pests. Without these tools in place, some growers may experience difficulty exporting their planting stock, which may in turn, negatively affect jobs.

A copy of the statement may be obtained by contacting Gloriann Robinson, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, phone 360-902-1802, fax 360-902-2092, TTY 800-833-6388, email wsdarulescomments@agr.wa.gov.

November 12, 2020

Brad White

Assistant Director