Original Notice.

Preproposal statement of inquiry was filed as WSR 00-16-047.

Title of Rule: Rules relating to European corn borer quarantine in chapter 16-478 WAC.

Purpose: To amend existing rules to reflect changes in industry and program practices, to comply with legislative mandates such as regulatory reform and use of clear and readable format, and for greater consistency with federal regulations.

Statutory Authority for Adoption: Chapter 17.24 RCW.

Statute Being Implemented: Chapter 17.24 RCW.

Summary: The existing rule excludes and minimizes the possibility of establishment of the insect pest European corn borer, which does not occur in Washington at this time. The proposed changes, which concern text structure and other necessary updates, are highly unlikely to change rule application or to affect agricultural industries or the public.

Reasons Supporting Proposal: The current rule text was mostly adopted in 1951. Stakeholders have informed the department that the rule serves a useful purpose and should be continued. Updating to bring it into compliance with current scientific knowledge and industry and regulatory standards is necessary to maintain the usefulness of the rule. In addition, the text was converted to clear and readable format.

Name of Agency Personnel Responsible for Drafting: Mary Toohey, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1907; Implementation and Enforcement: Clinton Campbell, 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 excludes through quarantine measures a serious insect pest of corn and floricultural crops over most of the United States. European corn borer does not occur in Washington (or other west coast states) at this time, due at least in part to the long-term quarantine effort. If the pest were to become established, some floricultural and food crops would become more difficult to grow profitably. In addition, interstate and international export markets for several crops would be inhibited or closed for Washington growers as uninfested jurisdictions move to protect themselves against introductions.

     The proposed changes to the rule are updates and modernizations unlikely to have any effects noticeable to the affected industries or the general public.

Proposal Changes the Following Existing Rules: Almost all of the changes convert the rule, which was adopted in 1951 and little altered since then, into clear and readable format, make the rule consistent with generally accepted program practices and eliminate obsolete provisions. An explanation of why European corn borer should be excluded from the state was added. The definitions section was augmented to clarify existing terminology. The structure of the rule text was simplified. The infested area designation was expanded to include all or parts of Montana, Wyoming, Texas, and Florida, for consistency with the current range of the insect as published in federal regulations. A special permits section was added. Several sections that are redundant or inconsistent with current statute are proposed for repeal.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The existing rule serves to exclude a nonnative, highly invasive insect pest which is potentially extremely costly to the environmental quality and agricultural industry of the state. Establishment of European corn borer would be particularly significant to corn production and the floricultural/nursery industries, as it would not only cause losses and increased costs of production, but it would also serve to inhibit or close market opportunities in uninfested states and nations. The economic benefits of maintaining the quarantine are significant.

     The proposed rule changes will have a net neutral or beneficial effect on affected parties in this state, as few of the changes are substantive. Updating of the scientific information and clarifying program practices to reflect current knowledge will maintain the usefulness of the rule and its benefits. Conversion to clear and readable format (most of the changes fall into this category) makes compliance easier.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Washington State Department of Agriculture, 1111 Washington Street, 2nd Floor, Room 271, Olympia, WA 98504-2560, on November 14, 2000, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Lou Jones by November 7, 2000, TDD (360) 902-1996, or (360) 902-1806.

Submit Written Comments to: Mary Toohey, Assistant Director, Laboratory Services Division, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504, e-mail mtoohey@agr.wa.gov, fax (360) 902-2094, by November 14, 2000.

Date of Intended Adoption: November 21, 2000.

October 3, 2000

Mary A. Martin Toohey

Assistant Director

OTS-4427.1

AMENDATORY SECTION(Amending Order 607, effective 7/23/51)

WAC 16-478-010
((Pest.)) Establishing quarantine for European corn borer.

European corn borer((, pyrausta)) (Ostrinia nubilalis (((hubn.))) is a nonnative, invasive insect which has infested most of North America since its introduction in the early 1900's. Its host range constitutes a wide range of plants, including important food and nursery crops grown in this state. The director of agriculture, pursuant to authorities in chapter 17.24 RCW, has determined that the exclusion of European corn borer at all stages of its life cycle is necessary to protect the environmental quality and agricultural crops of the state of Washington.

[Order 607, effective 7/23/51.]

(1) "European corn borer inspection certificate" means a certificate issued by an authorized agent of the agricultural regulatory agency of the state of origin, which includes all of the following information:

     (a) Kind and quantity of the commodity in the shipment lot.

     (b) Railway car number or vehicle identification of the carrier.

     (c) Names and addresses of both the shipper and the consignee.

     (d) Date issued.

     (e) Identity of issuing agent.

     (f) Any other information required in WAC 16-478-050. If the certificate includes information regarding fumigation as a treatment method, the certificate must include the material(s) used, the dosage schedule, temperature, period of exposure, and date of treatment.

     (2) "Infested area" means any area located within the following:

     (a) Entire states of Alabama, Arkansas, Connecticut, Colorado, Delaware, Georgia, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, ((and)) Wyoming, or the District of Columbia; or

     (b) Portions of the state of Texas in Bailey, Carson, Castro, Dallam, Deaf Smith, Floyd, Gray, Hale, Hansford, Hartley, Hutchinson, Lamb, Lipscomb, Moore, Ochiltree, Oldham, Parmer, Potter, Randall, Robers, Sherman and Swisher counties; or

     (c) Portions of the state of Florida in Escambia and Santa Rosa counties.

     (3) "Noninfested area" means all locations in the area under quarantine as designated in WAC 16-478-020 that are not listed as infested in WAC 16-478-030(2).

     (4) "Phytosanitary certificate" means a certificate issued by a government agency under authority of state or federal statute, which declares or establishes the pest status of a shipment of plants or plant parts under accepted inspection or sampling procedures. Phytosanitary certificates are patterned after model certificates of the International Pest Protection Convention.

[Order 607, effective 7/23/51.]

(((Restricted products).)) The following products and commodities are regulated under this quarantine as hosts or possible carriers of European corn borer:

     (1)      Corn, broomcorn, sorghums, and Sudan grass plants and ((all)) plant parts ((thereof)) (including, but not limited to, seed and shelled grain, and stalks, ears, cobs, and all other parts, fragments, or debris ((of said plants)))((,)).

     (2) Beans in the pod, beets, celery, bell pepper fruits, endive, Swiss chard, and rhubarb (cut or plants with roots)((,)).

     (3) Cut flowers ((and)) or entire plants of aster, chrysanthemum, calendula, cosmos, hollyhock, marigold, zinnia, Japanese hop, dahlia (except tubers without stems) and gladiolus (except corms without stems) ((are hereby declared to be hosts or possible carriers of the pest herein quarantined against)).

[Order 607, effective 7/23/51.]

(1) ((Certification required on shelled grain and seed.      Except as provided in (2) below, and effective immediately, all)) For shelled grain, seed, and stalks, ears, cobs and other parts, fragments, or debris from an infested area, unless the shipment is addressed in subsection (3) of this section. Shelled grain ((and)), seed, and stalks, ears, cobs, and other parts, fragments, or debris of corn, broomcorn, sorghums, and Sudan grass, grown in or shipped from the infested area described in WAC 16-478-030 ((above, arriving in the state of Washington from the area under quarantine as described in WAC 16-478-020 above)), will be admitted into the state of Washington only ((provided)) when each lot or shipment is accompanied by ((an official)) a European corn borer inspection certificate (((see (6) below) of the state or district from which shipped, affirming either that said)) stating that the conveyance (such as a railcar or truck) was inspected and found free of regulated articles and that at least one of the following conditions has been complied with:

     (a) The grain or seed has been passed through a 1/2 inch or less mesh screen ((or less)) or otherwise cleaned prior to loading and is believed to be free from stalks, cobs, stems or other ((portions of)) plant((s or fragments)) parts capable of harboring ((larva)) larvae of the European corn borer ((and further, that the car or truck was free from such plants or fragments at the time of loading, or affirming that said grain or seed has been fumigated with methyl bromide at the rate of 4 pounds per 1000 cubic feet for 16 hours at 60 degrees temperature, except that shelled grain and seed of corn, broomcorn, sorghums, and Sudan grass grown in and shipped from the states under quarantine and not excepted in WAC 16-478-020 above,));

     (b) The grain, seed, or stalks, ears, cobs or other parts, fragments, or debris has been treated, sterilized, or disinfected in a manner approved by the director as adequate to control European corn borer.

     (2) For shelled grain, seed, or stalks, ears, cobs, or other parts, fragments, or debris from a noninfested area, unless the shipment is addressed in subsection (3) of this section. Shelled grain, seed, and stalks, ears, cobs, or other parts, fragments or debris of corn, broomcorn, sorghums, and Sudan grass, grown in or shipped from the noninfested area described in WAC 16-478-030(3) will be admitted into the state of Washington ((provided)) only when each ((such)) shipment or lot is accompanied by ((an official)) a European corn borer inspection certificate (((see (6) below) of the state where produced affirming)) stating both of the following:

     (a) That all grain ((or)), seed ((covered by said certificate is a product of said state wherein no)), or stalks, ears, cobs, or other parts, fragments or debris in the shipment was produced in an area where European corn borer is not known to exist ((and)) based on negative survey data; and

     (b) That ((its)) the continued identity of the shipment has been maintained to assure ((no blending or mixing)) the shipment was not blended or mixed with grain, seed, plants, ((or portions thereof)) plant parts, fragments, or debris produced in or shipped from an infested area((s herein described)).

     (((2) Small lots, and packages of seed admitted without certificate.)) (3) For small lots and packages of seed. Individual shipments or lots of one hundred pounds or less of clean shelled grain ((and)) or seed ((covered by this regulation, or)) and shipments comprised of packages of less than ten pounds, are ((hereby)) exempted from the ((certification)) requirement((s of)) for a European corn borer inspection certificate stated in subsections (1) ((above and will be)) and (2) of this section. These small lots are admitted into this state subject to inspection and freedom from other plant parts, fragments, and debris capable of harboring European corn borer.

     (((3) Stalks, ears, cobs, or other parts, fragments, or debris of corn, broomcorn, sorghums, and Sudan grass admitted under disinfection or treatment certificate.      Stalks, ears, cobs, or other parts, fragments or debris of corn, broomcorn, sorghums, and Sudan grass grown in or shipped from the area under quarantine imported as such or as packing or otherwise, will be admitted into the state of Washington only provided each lot or shipment is accompanied by an official certificate (see (6) below) of the state from which shipped affirming that all stalks, ears, cobs, or other parts, fragments, or debris of such plants accompanied thereby have been fumigated with methyl bromide at the rate of 3 pounds per 1000 cubic feet for 4 hours at 60 degrees, or have been sterilized or disinfected by a method and in a manner prescribed by the director of agriculture of the state of Washington, except that stalks, ears, cobs, or other parts, fragments, or debris of said plants grown in and shipped from states not listed in the infested area described in WAC 16-478-030 above will be admitted into the state of Washington provided each shipment or lot is accompanied by an official certificate (see (6) below) of the state where produced affirming that such product is a product of said state wherein no European corn borer is known to exist and that continued identity has been maintained to assure no handling or storage in association with stalks, ears, cobs, or other parts, fragments, or debris of such plants grown in or shipped from infested areas herein described.))

     (4) ((Certification required on certain vegetable and ornamental plants and plant products produced in or shipped from infested area.)) For vegetable and ornamental plants and plant products.      Beans in the pod, beets, celery, bell pepper fruits, endive, Swiss chard, and rhubarb (cut or plants with roots), cut flowers and entire plants of aster, chrysanthemum, calendula, cosmos, hollyhock, marigold, zinnia, Japanese hop, dahlia, (except tubers without stems) and gladiolus (except corms without stems), produced in or shipped from the infested area described in WAC 16-478-030 above will be admitted into the state of Washington only ((provided)) when each lot or shipment is accompanied by ((an official)) a phytosanitary certificate (((see (6) below) signed by an inspector of the Bureau of Entomology and Plant Quarantine of the United States Department of Agriculture or by the duly authorized official of the state where produced, affirming either)) stating that all ((such)) plants, products or cut flowers in the ((accompanying)) shipment or lot have been inspected and that one of the following is true:

     (a) The shipment was found free from infestation by the European corn borer; or ((have been))

     (b) The plants, products, or cut flowers were grown in a greenhouse in which all host plants have been regularly inspected during the growing season and no evidence of European corn borer was found((, or that such)); or

     (c) The plants, products or cut flowers have been ((fumigated with methyl bromide at a rate of 3 pounds per 1000 cubic feet at 60 degrees temperature for 4 hours.      No restrictions are placed by this regulation on the entry into this state of such vegetable and ornamental plants and plant products produced in and shipped from any state not listed in WAC 16-478-030 above)) treated, sterilized or disinfected in a manner approved by the director as adequate to control European corn borer.

     (5) Exemptions.

     (a) ((Certification requirements above are)) The requirement for a phytosanitary certificate is waived ((on individual)) for shipments or lots of ((certain restricted vegetables, ornamental plants and plant products under and subject to the following conditions:

     (i) In lots or shipments of)) 10 pounds or less((,)) of beans in the pod, beets, bell peppers, endive, Swiss chard ((and)) or rhubarb (cut or plants with roots).(()

     (ii))) (b) During the period November 30 to May 1, the requirement for a phytosanitary certificate is waived for divisions without stems of the previous year's growth, rooted cuttings, seedling plants and cut flowers of ((the)) aster, chrysanthemum, calendula, cosmos, hollyhock, marigold, zinnia and Japanese hop.

     (((5) Manufactured or processed products exempt from restrictions.)) (c) No restrictions are placed by this ((quarantine upon the)) chapter on movement of ((the restricted products herein defined)) regulated articles listed in WAC 16-478-040 which are processed or manufactured in such a manner as to eliminate all danger of carrying ((the pest herein quarantined against.

     (6) Official certificates.      Official certificates must be issued by the duly authorized official, or his agent, of the federal agency, state, or district, as designated, and must be signed or countersigned by him.      Each certificate shall set forth, in addition to the specific facts required in (1) to (4) above, the kind and quantity of the commodity constituting the shipment or lot, method of shipment, the railway car number or license number in the case of trucks, and the names and addresses of the shipper and consignee.      Fumigation certificates shall also set forth the materials used, the dosage schedule, temperature, and the period of exposure, and date of treatment)) European corn borer.

[Order 1476, § 16-478-050, filed 7/2/76; Order 607, effective 7/23/51.]

The director may issue special permits to allow regulated articles grown in or shipped from a quarantine area to enter the state. A special permit may be issued if the director determines that the conditions of the permit are sufficient to protect the environmental quality and agricultural crops of the state of Washington.

[]

     The following sections of the Washington Administrative Code are repealed:

WAC 16-478-001	Promulgation.
WAC 16-478-00101	Promulgation.
WAC 16-478-060	Enforcing powers.
WAC 16-478-070	Federal shipments exempt.
WAC 16-478-080	Commodities covered subject to other rules and regulations.
WAC 16-478-090	Disposition of violations and penalties.
WAC 16-478-100	Common carrier agents must hold shipments.

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