WSR 12-04-094

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed February 1, 2012, 9:47 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-24-100.

Title of Rule and Other Identifying Information: Chapter 16-326 WAC, Brassica production districts.

Hearing Location(s): Grant County Public Works Department, 124 Enterprise Street, Ephrata, WA 98823, on March 9, 2012, at 11:00 a.m.

Date of Intended Adoption: March 23, 2012.

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 9, 2012.

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 Brassica production district rules by prohibiting the production of Brassica napus var. biennis - Winter type canola or rapeseed in Brassica production district 2. This proposal also modifies the question format of some section headings.

Reasons Supporting Proposal: At the request of representatives of three major spring canola production companies, the Washington state department of agriculture (WSDA) was petitioned to prohibit the production of winter type canola or rapeseed in Brassica production district 2. These companies represent all of the canola production in production district 2. Production district 2 has developed into a premier spring canola production area. Winter type canola or rapeseed, when grown in close proximity to spring canola, can cross pollinate with the spring canola, causing an off-type that renders the resulting crop useless for seed. Currently there is no winter canola production in Brassica production district 2. By prohibiting winter type canola or rapeseed production in production district 2, there will be a level of protection afforded to the valuable spring canola seed crop. This proposal will also set the stage for expansion of spring canola production which will increase business opportunities for growers and provide economic benefits to the agricultural community.

Statutory Authority for Adoption: Chapters 15.51, 34.05 RCW.

Statute Being Implemented: Chapter 15.51 RCW.

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

Name of Proponent: Bill Wirth - Precision Seed Company, Dave Bateman - Monsanto Inc., and Sheldon Zdan - HyTech Seed Company; private.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Victor Shaul, Program Manager, Yakima, (509) 249-6950.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule amendment proposal does not impose any additional costs or regulatory requirements upon the seed industry. This rule will preserve and enhance production opportunities for spring canola seed producers and will serve to provide increased income to these companies and their affiliated growers. WSDA concludes that this 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. WSDA is not a listed agency in RCW 34.05.328 (5)(a)(i).

January 31, 2012

Brad J. Avy

Assistant Director

OTS-4580.1


AMENDATORY SECTION(Amending WSR 08-04-005, filed 1/24/08, effective 2/24/08)

WAC 16-326-010   ((What are the)) Boundaries of the ((regulated areas, also called the)) Brassica seed production districts((?)).   (1) For purposes of descriptions of boundaries, any highway designation is measured from the center line of the highway, as determined by Washington department of transportation maps.

(2) Brassica seed production district 1 includes areas of five counties as follows:

(a) In Whatcom County, the area is bounded as follows: From two miles west of the Interstate 5 intersection with the Canadian border, a southward line extends parallel to, and two miles west of, Interstate 5 to its intersection with State Highway 542. The line then extends generally northeastward along State Highway 542 to the city limits of Kendall. At Kendall, the line continues due north to the Canadian border. The line then extends westward along the Canadian border to its point of origin.

(b) All of mainland Skagit County is included. On Fidalgo Island, the area on its eastern side is bounded by a line three miles west of and parallel to the Swinomish Channel, extending from Padilla Bay to Smilk Bay, is included. All of Samish Island is included. The remaining portion of Fidalgo Island and all other islands in Skagit County are excluded from Brassica seed production district 1.

(c) In Snohomish County, the area is bounded as follows: From Puget Sound east along State Highway 531 (also known as Lakewood Rd.), the line extends through Interstate 5 Exit #206 (the Smokey Point exit) to the intersection of State Highway 531 and State Highway 9 in Arlington. From there the line extends generally northward along State Highway 9 to the county line, and then west along the county line to Puget Sound.

(d) In Island County, all of Camano Island and the portion of Whidbey Island north of an east-west line extending through Greenbank.

(e) In Clallam County, the area is bounded as follows: From the westernmost city limit of Port Angeles, a line extends due south to a location five miles south of State Highway 101. From there, the boundary continues east along a line parallel to, and five miles south of, State Highway 101 to the Clallam/Jefferson County line. The boundary turns north along the Clallam/Jefferson County line until it reaches the Straits of Juan de Fuca and then continues along the Straits to its point of origin.

(3) Brassica seed production district 2 is divided into two subdistricts, designated district 2A and district 2B. For purposes of descriptions of boundaries relating to Brassica seed production district 2, all references to canals pertain to Columbia Basin Irrigation Project structures. Brassica seed production district 2 includes portions of Grant and Adams counties and is bounded as follows:

(a) Beginning at the Grant/Douglas County boundary, the line proceeds continuously due east along existing portions of Road 13NW to its intersection with the West Canal. The line follows the West Canal in a northeasterly direction through portions of the city of Ephrata, then around the northern end of Soap Lake and easterly to the intersection of the West Canal and the East Low Canal. The line follows the East Low Canal in a southerly, then easterly direction to its intersection with State Highway 26. Then it turns west and follows State Highway 26 to the Columbia River. The line continues due west until it intersects the county boundary in the Columbia River. The line then turns north and follows the county boundary to the point of origin.

(b) Brassica seed production district 2A is the northwestern portion of Brassica seed production district 2. It is bounded on the north and west by the boundaries of Brassica seed production district 2. Its eastern boundary line commences at the intersection of Rd. 13 NW and K NW. The line extends south along K NW to its intersection with the I-90 North Frontage Rd. The line extends west along North Frontage Rd. to State Highway 281N, and along State Highway 281N to Q SW. It extends north along Q SW to 5 NW and west along 5 NW to the western boundary of Brassica seed production district 2.

(c) Brassica seed production district 2B consists of the portion of Brassica seed production district 2 that is not encompassed in Brassica seed production district 2A.

[Statutory Authority: Chapters 15.51 and 34.05 RCW. 08-04-005, 16-326-010, filed 1/24/08, effective 2/24/08.]

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 08-04-005, filed 1/24/08, effective 2/24/08)

WAC 16-326-020   ((What are the)) General requirements for growing, transporting or processing Brassica seed within any Brassica seed production district((?)).   (1) Growing, transportation or processing of Brassica seed is regulated under provisions of this section only within the borders of a Brassica seed production district, as described in WAC 16-326-010.

(2) No Brassica seed crop grown for any purpose is regulated as part of a Brassica seed production district, if it is harvested or mowed before flowering or otherwise handled so that pollen production is prevented. Note that other regulatory requirements, such as the provisions of the crucifer seed quarantine rule found in WAC 16-301-490 through 16-301-580, are applicable.

(3) Brassica seed crops, including seed grown for planting and seed grown for crushing or extraction for fuel or oil, may only be grown in locations that have been identified in a timely manner through the pinning process.

(a) Pinning for Brassica seed production in Brassica seed production district 1 will be held at least once a year at the WSU Northwestern Washington Research and Extension Center, 16650 State Route 536, Mt. Vernon, Washington 98237. Contact the WSU Mount Vernon Skagit County Extension office at 360-428-4270 for information about pinning events for district 1.

(b) Pinning for Brassica seed production district 2 will be held at least once a year at the WSU Grant/Adams County Extension office, 35 C St. N.W., Ephrata, Washington 98823. Contact the WSU Grant County Extension office at 509-754-2011, ext. 413 for information about pinning events for district 2.

(c) Dates, times, locations and other information about pinning events will vary.

(d) Pinning for Brassica seed crops produced for planting must be performed by an authorized representative of the contractor for the crop. If the seed produced for planting is not being produced for a contractor, or if the contractor waives the pinning privilege, then the grower is responsible for pinning the location of the crop.

(e) Pinning for Brassica seed crops produced for fuel or oil must be performed by an authorized representative of the grower.

(4) Transportation and handling of Brassica seed within any Brassica seed production district must be performed in a way to prevent inadvertent spread of seed or production of volunteer plants. All shipments of viable seed must be in covered containers from which the seed cannot leak.

(5) Volunteer Brassica plants must be controlled as soon as feasible, but always prior to pollen production or blossoming.

[Statutory Authority: Chapters 15.51 and 34.05 RCW. 08-04-005, 16-326-020, filed 1/24/08, effective 2/24/08.]


AMENDATORY SECTION(Amending WSR 08-04-005, filed 1/24/08, effective 2/24/08)

WAC 16-326-030   ((What are the)) Requirements to grow Brassica seed in Brassica seed production district 1((?)).   (1) Brassica seed crops intended for oil or fuel production and/or associated by-products, forage, or cover crops may only be planted or grown in compliance with a Brassica production agreement, as described in RCW 15.51.040.

(2) Brassica seed crops of species generally known as rapeseed or canola((,)) that are intended for producing seed for planting, may only be planted or grown under conditions of a Brassica production agreement, as described in RCW 15.51.040.

[Statutory Authority: Chapters 15.51 and 34.05 RCW. 08-04-005, 16-326-030, filed 1/24/08, effective 2/24/08.]


AMENDATORY SECTION(Amending WSR 08-04-005, filed 1/24/08, effective 2/24/08)

WAC 16-326-040   ((What are the)) Requirements for growing Brassica seed in all of Brassica seed production district 2((, which is composed of two subdistricts designated districts 2A and 2B?)).   (1) Brassica napus var. biennis, winter type canola or rapeseed, may not be planted in Brassica seed production district 2.

(2) A minimum isolation distance of two miles must be preserved from the nearest edge of any Brassica seed crop to any other Brassica seed crop. The location pinned first has priority and establishes a basis for the isolation distance for other Brassica seed crops. Any person subsequently pinning any other location for a Brassica seed crop is responsible for maintaining the two-mile minimum isolation distance. Exceptions to this two-mile minimum distance can occur only in the following three situations:

(a) An exception that allows an isolation distance of less than two miles will occur when a written agreement between two or more contractors and/or growers complies with the conditions specified in subsection (((2))) (3) of this section. All locations to be planted under such a written agreement between the parties must be pinned.

(b) An exception to the minimum isolation distance may be allowed under conditions of a Brassica production agreement, as described in RCW 15.51.040. All locations to be planted under such a Brassica production agreement must be pinned.

(c) Brassica seed crops grown for forage or cover crops may be planted or grown within the two-mile minimum isolation distance, if the forage or cover crop is not allowed to bloom or to produce pollen from April 1 through August 15 of any year. Forage or cover crops that comply with requirements of this subsection are not required to be pinned.

(((2))) (3) Written agreements between parties to voluntarily allow planting of locations, any portion of which are within the minimum isolation distance of two miles (as referenced in subsection (((1))) (2)(a) of this section), must comply with all of the following conditions:

(a) The agreement must be signed by authorized representatives of the contractors for the Brassica seed crops grown for planting, and by the growers of Brassica seed crops grown for fuel or oil. If one or more of the affected Brassica seed crops for planting is not being produced under contract, or if the contractor waives signature authority for this agreement, the grower of the crop must enter into the agreement instead.

(b) The agreement must, at a minimum, specify:

The date of the agreement;

The approximate dates during which the affected crops will be in the field;

The name, business name (if applicable), telephone number and address of each affected grower;

The location and acreage of each planting affected by the agreement;

The contractor (if applicable) for each location; and

Brassica seed crop species and variety for each location.

(c) These written agreements cannot extend beyond one harvest per agreement.

(d) Copies of the written agreement must be retained by each person who signs it for a minimum of three years.

(((3))) (4) Pinning for Brassica seed crops intended to produce seed for planting starts each year on the first business day after January 31 for summer annual species or varieties (such as mizuna and Chinese cabbage) and on the first business day after May 31 for overwintered species or varieties (such as cabbage, broccoli, and turnip). Pinning for Brassica seed crops to produce seed intended for oil or fuel starts the first business day after June 30.

[Statutory Authority: Chapters 15.51 and 34.05 RCW. 08-04-005, 16-326-040, filed 1/24/08, effective 2/24/08.]


AMENDATORY SECTION(Amending WSR 08-04-005, filed 1/24/08, effective 2/24/08)

WAC 16-326-050   ((What are the)) Differences between restrictions on Brassica seed production in Brassica seed production districts 2A and 2B((?)).   WAC 16-326-040 establishes restrictions that apply throughout all of Brassica seed production district 2 (including the two subdistricts designated districts 2A and 2B in WAC 16-326-010(3)), regarding the production of Brassica seed crops. Additional specific restrictions apply to district 2A. The differences between the subdistricts are:

(1) Brassica seed production in Brassica seed production district 2A is limited primarily to production of any species of Brassica seed for planting, except for Brassica napus var. biennis, winter type canola or rapeseed, as disallowed in WAC 16-326-040(1). Within Brassica seed production district 2A, Brassica seed crops intended for oil or fuel production may only be planted or grown under conditions of a Brassica production agreement, as described in RCW 15.51.040.

(2) Brassica seed production in Brassica seed production district 2B includes production of any species of Brassica seed for planting, oil or fuel production, except for Brassica napus var. biennis, winter type canola or rapeseed, as disallowed in WAC 16-326-040(1).

[Statutory Authority: Chapters 15.51 and 34.05 RCW. 08-04-005, 16-326-050, filed 1/24/08, effective 2/24/08.]

Washington State Code Reviser's Office