Preproposal statement of inquiry was filed as WSR 98-05-105.

Title of Rule: Freedom from infestation by plant pests.

Purpose: To define freedom from infestation by plant pests and updating existing rules implementing chapter 15.13 RCW.

Statutory Authority for Adoption: Chapter 15.13 RCW.

Statute Being Implemented: Chapter 15.13 RCW.

Summary: RCW 15.13.390 requires "freedom from infestation by plant pests" to be defined in rule.

Reasons Supporting Proposal: Existing rules implementing chapter 15.13 RCW are no longer entirely responsive to stakeholder and program needs and should be updated.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: RCW 15.13.390 requires that "freedom from infestation by plant pests" to be defined in rule.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. As required in statute this rule sets a minimum standard for the sale and transport of horticultural plants. It confirms and codifies longstanding practice for this state's nursery activities and achieves consistency with relevant federal standards. This rule would provide an economic benefit to the nursery industry by reducing the population of plant pests, controlling the spread of pest and diseases, raising the quality of nursery products produced and sold in the state, and enhancing the reputation for the nursery industry in general. Most competing states have a freedom from infestation rule for horticultural plants. This rule would also benefit the consumer by preventing the sale of diseased or infested plants which could require extensive treatment with pesticides.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Washington State Department of Agriculture, 1111 Washington Street, 2nd Floor, Conference Room 259, Olympia, Washington, on August 3, 1998, at 2 p.m.

Assistance for Persons with Disabilities: Contact Cathy Jensen by July 27, 1998, TDD (360) 902-1996, or (360) 902-1976.

Submit Written Comments to: Mary Toohey, Assistant Director, Washington State Department of Agriculture, Lab Services Division, P.O. Box 42560, Olympia, WA 98504-2560, FAX (360) 902-2094, by August 3, 1998.

Date of Intended Adoption: August 17, 1998.

June 17, 1998

Mary A. Martin Toohey

Assistant Director

FREEDOM FROM INFESTATION BY

PLANT PESTS

NEW SECTION

WAC 16-402-005  Freedom from infestation--General. Issuance of any document stating that horticultural plants are apparently free from plant pests means only that the plants were inspected and found to meet the standards for freedom from infestation by plant pests described in this chapter. The department disclaims all expressed or implied warranties, including without limitations implied warranties of merchantibility and fitness for particular purpose, regarding all plants, plant parts, and plant material under this chapter. The department is not responsible for disease, genetic disorders, failure of performance or otherwise in connection with this chapter. No grower, nursery dealer, government official or other person is authorized to give any expressed or implied warranties on behalf of the department regarding this chapter.

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NEW SECTION

WAC 16-402-010  Definitions. The definitions in this section shall apply throughout this chapter.

(1) "Department" means the Washington State Department of Agriculture.

(2) "Director" means the director of the Washington State Department of Agriculture or the director's duly authorized representative.

(3) "Established" means a reproducing population of a pest that is expected to have a permanent presence.

(4) "Harmful" means injurious or potentially injurious to horticultural plants.

(5) "Quarantine pest" means any pest listed in current Washington State quarantines as promulgated in chapter 17.24 RCW.

(6) "Practically free" means horticultural plants which do not exceed:

(a) a 2% infestation level; or

(b) an infestation in an amount expected to result from and be consistent with good culturing and handling practices employed in the production and marketing of the horticultural plants.

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NEW SECTION

WAC 16-402-015  Standards for freedom from infestation by plant pests. Horticultural plants sold, held for sale, shipped or transported into the state must be:

(1) free of quarantine pests;

(2) free of pests that would be harmful if allowed to become established within the state or county; and

(3) practically free of plant pests.

Determination of this standard shall be based on visual inspection by the department.

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NEW SECTION

WAC 16-402-020  Compliance with standards required. (1) Horticultural plants sold, held for sale, shipped or transported in the state must comply with the standards described in this chapter.

(2) The director may deny, suspend or revoke the license of any person selling, holding for sale, shipping or transporting horticultural plants in violation of this chapter, pursuant to RCW 15.13.350. The director may also issue civil penalties in accordance with RCW 15.13.490 for violations of this chapter.

(3) Any horticultural plant sold, held for sale, shipped or transported in violation of this chapter shall be subject to a hold order, issued pursuant to RCW 15.13.430, or an order of condemnation, issued pursuant to RCW 15.13.440. Upon issuance of a hold order or an order of condemnation, the seller or holder of the plant material is entitled to request a hearing under chapter 34.05 RCW.

(4) The department shall issue a Nursery Inspection Record or other official document(s) certifying compliance to this chapter.

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