WSR 00-16-110

EXPEDITED ADOPTION

DEPARTMENT OF AGRICULTURE


[ Filed August 2, 2000, 9:15 a.m. ]

Title of Rule: Chapter 16-472 WAC, Barberry and black stem rust quarantine.

Purpose: To amend the existing rule to reflect changes in federal quarantine regulations/practices and to comply with legislative mandates such as regulatory reform and use of clear and readable format.

Statutory Authority for Adoption: Chapters 17.24, 15.13, and 15.08 RCW.

Statute Being Implemented: Chapters 17.24, 15.13, and 15.08 RCW.

Summary: Black stem rust is a historically serious disease of wheat in eastern Washington. In order to complete its life cycle, it must spend the growing season in wheat or similar grasses and the winter months in European varieties of barberry or closely allied species. Rust-susceptible varieties of barberry are native to Europe and were brought to the east coast of north America and then west with European settlers, where they naturalized. Elimination of rust-susceptible barberries greatly reduces black stem rust incidence. The proposed changes update the existing rule to comply with current federal quarantine regulations and state regulatory practices. The changes also incorporate clear and readable format and bring the rule into compliance with legislative mandates such as regulatory reform.

Reasons Supporting Proposal: The existing rule was last modified in 1949. At that time, the rule was crafted to complement a USDA quarantine on certain types of nursery stock and a federal program to remove feral barberry bushes descended from European barberries brought west by settlers. The federal regulation has changed along with nursery industry practices, and the federal eradication program has ceased. Updating is necessary.

Name of Agency Personnel Responsible for Drafting: Mary Toohey, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1907; Implementation and Enforcement: Linda Polzin, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-2071.

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: The existing rule was created in 1949 to complement on a state level a federal quarantine regulation and control program. The proposed changes in the rule would bring it into compliance with the current federal regulation. The purpose of both the state and the federal rules is the elimination of the obligatory alternate host for black stem rust, a disease of wheat and other grasses. If populations of rust-susceptible barberries and related species are maintained at the current minimal level, incidence of the disease of wheat is maintained at its current minimal level. This benefits the state's wheat industry. It should be noted that barberry varieties originating in Asia, which closely resemble European varieties, are commonly available from commercial nurseries. The Asian varieties are not rust-susceptible and are not regulated by this quarantine. For this reason, this rule does not have a discernable impact on the ornamental plant and nursery industry.

WSDA consulted with the major stakeholders through the Washington Wheat Commission and the Washington State Nursery and Landscape Association. In addition, a number of knowledgeable research personnel and staff of the Washington State University Cooperative Agricultural Extension Service were consulted. The proposal represents a consensus of these interests. No negative effects from the proposed changes have been identified.

Proposal Changes the Following Existing Rules: The proposal does not increase existing regulatory requirements. Most requirements remain the same, just more clearly stated, and one existing requirement (the area in which feral or ornamental rust-susceptible varieties of barberry and closely allied species must be destroyed) is significantly reduced. The proposal changes from state-wide to eastern Washington counties only, the area in which designated plants growing on land must be destroyed. The reason for this change is the lack, due to climatic conditions and scarcity of wheat acreage, of black stem rust in western Washington.

The proposal converts the text to clear and readable format and eliminates obsolete references.

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Mary A. Martin Toohey, Washington State Department of Agriculture, Laboratory Services, P.O. Box 42560, Olympia, WA 98504 , AND RECEIVED BY October 2, 2000.


August 2, 2000

Mary A. Martin Toohey

Assistant Director

OTS-4200.2


AMENDATORY SECTION(Amending Order 556, effective 9/1/49)

WAC 16-472-010
Establishing quarantine -- Promulgation.

(((1) Whereas, the fact has been determined and notice is hereby given that)) The common barberry, (Berberis vulgaris) and many of its horticultural varieties as well as certain other species of Berberis, Mahonia, and Mahoberberis are the alternate host plants of the disease ((known as)) black stem rust, caused by ((an)) the organism Puccinia graminis((, which)). Black stem rust attacks wheat, oats, barley ((and)), rye, and many other cultivated and wild grasses, often resulting in material financial loss to growers of these crops in Washington((, and whereas, the spread of this plant disease throughout the state of Washington would entail great loss to the agricultural interests of this state,

(2) Now, therefore, I, Sverre N. Omdahl,)). Without access to alternate host plants, Puccinia graminis cannot reproduce, and black stem rust is eliminated or greatly decreased. The director of agriculture ((of the state of Washington)), under authority ((vested in me by RCW 17.24.030, in order to prevent the spread of black stem rust caused by an organism Puccinia graminis, do hereby proclaim and establish a quarantine effective throughout the state of Washington prohibiting the maintenance, propagation, sale or movement throughout the state of Washington, of species and varieties of Berberis, Mahonia, and Mahoberberis determined to be alternate hosts of this disease, including any plants, cuttings, stalks, scions, buds, fruits, seeds or parts of these plants capable of propagation)) granted by chapters 17.24, 15.13 and 15.08 RCW, has determined that the regulation and exclusion of rust susceptible varieties of barberry and related Berberis, Mahonia, and Mahoberberis species is necessary to protect agricultural crops of the state of Washington.

[Order 556, effective 9/1/49.]


AMENDATORY SECTION(Amending Order 556, effective 9/1/49)

WAC 16-472-020
Duty to destroy rust susceptible barberry bushes.

((It shall be the duty of all firms, corporations, private individuals, and other persons)) (1) Persons owning or controlling ((lands, or places in this state, and all public authorities having jurisdiction over streets, highways, parks, public lands, irrigation canals, diking districts, and other public places, to forthwith)) public or private lands in Adams, Asotin, Benton, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Walla Walla, Whitman, or Yakima counties are required to destroy all rust-susceptible barberry bushes ((from said premises)) and to keep the ((same)) land free from such plants.

(2) No person who is or should be licensed as a nursery dealer under provisions of chapter 15.13 RCW may sell, offer for sale, ship or grow any rust susceptible variety of barberry or related Berberis, Mahonia, and Mahoberberis species, as defined in 7 C.F.R. 301.38-2.

[Order 556, effective 9/1/49.]


AMENDATORY SECTION(Amending Order 556, effective 9/1/49)

WAC 16-472-030
((No restrictions placed on the growing or intrastate movement of)) This rule does not apply to rust-resistant ((barberry)) Berberis, Mahonia, and Mahoberberis plants or seeds.

No restrictions are placed by ((these regulations)) this rule on the growing or intrastate movement of rust-resistant ((Barberry)) Berberis, Mahonia, and Mahoberberis plants, plant parts or seeds((; however, these shall consist only of those species and horticultural varieties designated as rust-resistant by the chief of the Bureau of Entomology and Plant Quarantine of the United States Department of Agriculture in section 301.38-5 of Federal Quarantine No. 38)), as defined in United States Department of Agriculture Animal and Plant Health Inspection Service regulations in 7 C.F.R. 301.38-2.

This rule does not apply to cuttings (without roots) of Mahonia shipped for decorative purposes and not for propagation ((do not come under these restrictions)).

[Order 556, effective 9/1/49.]


AMENDATORY SECTION(Amending Order 556, effective 9/1/49)

WAC 16-472-040
All packages to be plainly labelled or stamped.

(1) All intrastate and interstate shipments and/or individual packages of Berberis, Mahonia or Mahoberberis plants, seeds, or parts ((thereof)) capable of propagation must be plainly labelled or stamped on the outside of the package ((as to)) with botanical species or horticultural variety and ((must be plainly marked with)) the name and address of the consignee and consignor. In addition, when required by federal ((quarantine No. 38, revised)) regulations in 7 C.F.R. 301.38, each shipment and/or individual package containing Berberis, Mahonia or Mahoberberis plants or seeds ((shall)) must have securely attached to the outside ((thereof)), a valid shipping permit issued by the United States Department of Agriculture authorizing ((the)) its interstate movement ((of regulated products)).

(2) Any ((and all employees and designated agents of the horticultural division of the state department of agriculture, are hereby empowered and instructed to intercept, condemn, and destroy, or return to shipper at his expense,)) Berberis, Mahonia and Mahoberberis plants, plant parts or seeds ((moved)) that are in violation of ((and not marked in accordance with the above regulations. All authorized persons mentioned above also are empowered and instructed to enforce all other provisions of this order.

(3) Articles subject to destruction in these regulations may be moved interstate and intrastate by the United States Department of Agriculture for experimental or scientific purposes, on such conditions and under such safeguards as may be prescribed by the Bureau of Entomology and Plant Quarantine. The container of articles so moved shall have securely attached to the outside thereof an identifying tag from the Bureau of Entomology and Plant Quarantine, showing compliance with such conditions)) this barberry and black stem rust quarantine are subject to destruction, shipment out-of-state or other disposition in a manner prescribed by the department. Any such action will be at the expense of the owner or owner's agent and without compensation.

[Order 556, effective 9/1/49.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 16-472-050 Recisions of previous conflicting regulations.

Washington State Code Reviser's Office