WSR 16-20-062
PROPOSED RULES
DEPARTMENT OF AGRICULTURE
[Filed September 30, 2016, 3:46 p.m.]
Continuance of WSR 16-08-116.
Preproposal statement of inquiry was filed as WSR 16-01-201.
Title of Rule and Other Identifying Information: Chapter 16-470 WAC, Quarantine-Agricultural pests, the agency is proposing to amend the apple maggot quarantine by adding the southeast portion of Lincoln County to the area under quarantine.
Hearing Location(s): Lincoln County Public Works, 27234 SR 25 North, Main Conference Room, Davenport, WA 99122, on November 8, 2016, at 1:30 p.m.; at the Washington Department of Agriculture, 21 North First Avenue, Conference Room 238, Yakima, WA 98902, on November 9, 2016, at 9:00 a.m.; and at the Washington Department of Agriculture, 1111 Washington Street S.E., Conference Room 259, Olympia, WA 98504, on November 10, 2016, at 10:00 a.m.
Date of Intended Adoption: November 30, 2016.
Submit Written Comments to: Henri Gonzales, P.O. Box 42560, Olympia, WA 98504-2560, e-mail wsdarulescomments@agr.wa.gov, fax (360) 902-2092, by November 10, 2015 [2016].
Assistance for Persons with Disabilities: Contact Washington state department of agriculture (WSDA) receptionist by November 1, 2016, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency is proposing to add the southeast portion of Lincoln County to the area under quarantine for apple maggot. Changes to the existing rule may better prevent or minimize possible movement of apple maggot from infested areas into uninfested areas, secure access to international and interstate markets, and protect the commercial tree fruit industry from an economically significant pest by quarantine modification.
Reasons Supporting Proposal: The apple maggot is an invasive insect pest native to eastern North America. Its hosts include apples, crabapple, and native hawthorn. In its larval development stage it can cause extensive damage to fruit. It is economically significant to the Washington apple crop not only due to its ability to cause physical crop damage, but also because fruit from demonstrated apple maggot free areas or locations has greater market access for international shipments. The exclusion of apple maggot from the pest-free areas of the state is a priority pursuant to chapter
17.24 RCW. Chapter
17.24 RCW directs the agency to protect the agricultural and horticultural industries of the state by regulating the movement and quarantining infested areas to prevent the public and private costs that result when an infestation becomes established. As a result, a quarantine was established in 1984 to limit the distribution of this harmful pest. Data collected from the 2015 apple maggot survey provides evidence that the state's apple maggot population has altered its range. Modification of the existing quarantine is necessary in order to respond to this change.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: WSDA, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: James Marra, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-2071.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
SUMMARY OF PROPOSED RULES: 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. The Washington state department of agriculture (department) 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 movement and quarantine of infested areas. RCW
17.24.041 authorizes the director of the department to adopt quarantine areas by rule and to prohibit the movement of all regulated commodities from the quarantined areas.
Currently, chapter 16-470 WAC establishes quarantine areas and pest-free areas for apple maggot. The apple maggot is an invasive insect pest native to eastern North America. Its hosts include apples, crabapple, and native hawthorn. In its larval development stage it can cause extensive damage to fruit. The potential for damage is economically significant to the Washington apple crop because the apple maggot can cause extensive physical crop damage and because fruit from demonstrated apple maggot-free areas has greater market access for international shipments.
The movement of noncommercial (for example, backyard trees) fruit from apple maggot infested areas to the pest-free areas of apple production poses an unacceptable risk to the tree fruit industry. Additionally, municipal solid waste, yard debris, organic feedstock, organic materials, and agricultural wastes are host mediums for apple maggot because they may contain apples, crabapple, and native hawthorn and pose an unacceptable risk if allowed to move from infested to pest-free areas as documented in the Pest Risk Analysis (PRA) for Apple Maggot (Rhagoletis pomonella) Moving on Municipal Green Waste into the Pest-Free Area (PFA) of the State of Washington, USA, Dr. C. E. Sansford, Mr. V. Mastro, Mr. J. R. Reynolds, April, 2016.*
The department is proposing to amend the apple maggot quarantine in chapter 16-470 WAC to protect the tree fruit industry in the state. The proposed rule adds the southeast portion of Lincoln County to the area under quarantine for apple maggot. Changes to the existing rule may better prevent or minimize possible movement of apple maggot from infested areas into uninfested areas, secure access to international and interstate markets, and protect the commercial tree fruit industry from an economically significant pest by quarantine modification.
SMALL BUSINESS ECONOMIC IMPACT STATEMENT (SBEIS): The following SBEIS was prepared in compliance with the Regulatory Fairness Act, chapter
19.85 RCW.
The purpose of chapter
17.24 RCW includes providing a "strong system" to protect the tree fruit industry from insect pests. The proposed rule expands the quarantine area into the southeast quadrant of Lincoln County based on detections of apple maggot flies during the department's surveillance project.
No commercial apple orchards are present in the proposed quarantine area, therefore no apple growers will be impacted and the proposed rule imposes no new regulatory requirements and no new costs on any tree fruit producer.
Entities impacted by the proposed rule include local government and businesses involved in waste management. Currently, unsorted municipal waste containing apple maggot host material is transported from the proposed quarantine area to transfer stations located in the pest-free area. Under an expanded quarantine, municipal waste could no longer leave the quarantine boundaries without a special permit issued by the department.
Any new regulatory requirements or costs imposed on the waste industry are necessary to protect the tree fruit industry from introduction of apple maggot through transport and disposition of waste from the quarantine area into the pest-free area. The department will determine the special permit conditions on a case-by-case basis. Costs associated with meeting requirements in a special permit will be different for each category of waste situation and may be minimal in some situations.
The department has identified Lincoln County and Adams County as the primary entities that will be impacted by the rule change and the subcontractors that transport waste on the behalf of these counties. One subcontractor is a small business and the business could incur some additional costs in order to comply with any mitigations required for a special permit.
Individual households and other "self-haulers" would also be prohibited from moving household waste from the proposed quarantine area to transfer stations in the pest-free area. These are not small businesses and are not considered in this assessment.
Industry and Stakeholder Participation: On August 8, 2016, the department convened the apple maggot working group (AMWG) to consider the proposed quarantine boundary. The AMWG includes members from the tree fruit industry, researchers, federal regulators, county extension, and the department. At that meeting the tree fruit industry supported the proposed, partial quarantine and rejected the idea of quarantining the entire county.
Economic Impact on Apple Growers: During discussions concerning the expansion of the quarantine, representatives of the apple industry repeatedly expressed concerns that the transport of apple maggot host material from an infested area into the pest-free area could have adverse economic impacts to the apple industry. The expansion of the apple maggot through unregulated human movement of infested materials could have severe economic impacts on the state's apple growers. Apple maggot is a regulated pest by many of the state's international trading partners. Expansion of the infestation area will likely result in the imposition of costly restrictions on the export of apples, therefore limiting the spread of the pest by quarantine is a necessary regulation. In addition, production costs would increase due to increased demands on the apple maggot certification program, increases in inspection fees, and the increased use of control measures.
Based on the 2013 crop year data, the apple industry contributed an estimated $2.19 billion a year to the state's economy and any threat to that industry by large or small businesses is unacceptable to the department under its mandate to protect agriculture.
Jobs Created or Lost: Under RCW
19.85.040, agencies must provide an estimate of the number of jobs that will be created or lost as the result of compliance with the proposed rule. The exact costs of compliance for any impacted county facilities known to transport municipal waste from the apple maggot quarantine area to the pest-free area cannot be determined until the conditions of the permit are determined for individual facilities. Therefore, an estimate of the number of jobs that will be created or lost, if any, cannot be determined at this time.
Disproportionate Impact to Small Businesses: RCW
19.85.040 directs agencies to determine whether the proposed rule will have a disproportionate cost impact on small businesses by comparing the cost of compliance for small business with the cost of compliance for the ten percent of the largest businesses required to comply with the proposed rules.
The solid waste facilities likely impacted by the proposed rules are operated by governmental entities and their subcontractors. One subcontractor is defined as a small business under RCW
19.85.020(3), however all county subcontractors would need to meet permitting requirements to move waste from the quarantined area into the pest-free area. Therefore, there is no disproportionate impact on small businesses. Those municipalities or counties from which green waste or solid waste originates may incur increased costs passed down from the landfill which in turn have the potential to be passed on to residential or commercial customers.
CONCLUSION: The intent of chapter
17.24 RCW is 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. The proposed rule amendments protect the state's apple industry from apple maggot infestation and impose reasonable and necessary requirements on small businesses wanting to transport organic waste from the apple maggot quarantine area to the pest-free area. The proposed rule was drafted with input from stakeholders from the apple industry and the impacted county.
A copy of the statement may be obtained by contacting Henri Gonzales, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-1802, fax (360) 902-2092, e-mail wsdarulescomments@agr.wa.gov.
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).
September 30, 2016
Brad White
Assistant Director
AMENDATORY SECTION (Amending WSR 12-13-053, filed 6/15/12, effective 7/16/12)
WAC 16-470-105 Area under order for apple maggot-Pest free area-Quarantine areas.
(1) A pest free area for apple maggot is declared for the following portions of Washington state:
(a) Counties of Adams, Asotin, Benton, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, ((Lincoln,)) Okanogan, Pend Oreille, Stevens, Walla Walla, and Whitman.
(b) The portion of Kittitas County designated as follows: Beginning at the point where Interstate Highway No. 90 crosses longitude 120°31' W; thence southerly to the Kittitas-Yakima County line; thence easterly along the county line to the Columbia River; thence northerly along the Columbia River to Interstate Highway No. 90; thence westerly along Interstate Highway No. 90 to the point of beginning.
(c) Yakima County, except for the area designated in subsection (2)(c) of this section.
(d) Chelan County, except for the area designated in subsection (2)(d) of this section.
(e) Lincoln County, except for the area designated in subsection (2)(e) of this section.
(2) A quarantine for apple maggot is declared for the following portions of Washington state:
(a) Counties of Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Klickitat, Lewis, Mason, Pacific, Pierce, Snohomish, Spokane, Skagit, Skamania, Thurston, Wahkiakum, and Whatcom.
(b) Kittitas County, except for the area designated in subsection (1)(b) of this section.
(c) The portion of Yakima County designated as follows: Beginning at the northeastern corner of Yakima County on the west bank of the Columbia River; thence southerly along the Columbia River to the Yakima-Benton County line; thence southerly along the county line to latitude N46°30'; thence west to longitude W120°20'; thence north to latitude N46°30.48'; thence west to longitude W120°25'; thence north to latitude N46°31.47'; thence west to longitude W120°28'; thence north to latitude N46°32'; thence west to longitude W120°36'; thence south to latitude N46°30'; thence west to longitude W120°48'; thence southerly to the Klickitat-Yakima County line; thence westerly along the county line to the Yakima-Skamania County line; thence northerly along the county line to the Lewis-Yakima County line; thence easterly and northerly along the county line to the Pierce-Yakima County line; thence northerly and easterly along the county line to the Kittitas-Yakima County line; thence easterly and southerly along the county line to the west bank of the Columbia River and the point of beginning.
(d) The portion of Chelan County designated as follows: Beginning at the point where the northern boundary of the county crosses longitude W120°43.02' following the longitudinal line due south to the fork of Highway 207 and Chiwawa Loop Road; thence south following the eastern edge of Highway 207 which becomes Beaver Valley Road and then Chumstick Highway; thence southeast along the eastern edge of Highway 2 to the point where the northern ridgeline of Boundary Butte drops to meet Highway 2; thence southerly, following the ridgeline of Boundary Butte gaining in elevation into the Stuart Range to the highest point of McClellan Peak; thence due south from McClellan Peak to the southern boundary of the county; thence following the county line west, then north, and then east to the beginning point.
(e) The portion of Lincoln County designated as follows: Beginning at longitude W118°20'0" on the Lincoln-Adams County line; thence northerly to State Highway Route 28 (SR 28); thence northerly and easterly along SR 28 to latitude N47°37'38.6"; thence easterly to the Lincoln-Spokane County line; thence south to the Lincoln-Whitman County line; thence west along the Lincoln County line to longitude W118°20'0" and the point of beginning.
(3) A quarantine for apple maggot is declared for all states or foreign countries where apple maggot is established. The area under quarantine includes, but is not limited to, the states of Idaho, Oregon, Utah, and California, and, in the eastern United States, all states and districts east of and including North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas, and any other areas where apple maggot is established.
