HOUSE BILL REPORT

                  SB 6251

             As Reported By House Committee On:

                    Agriculture & Ecology

Title:  An act relating to horticultural plants and facilities.

Brief Description:  Regulating horticultural plants and facilities.

Sponsors:  Senators Rasmussen, Morton, Swecker and Stevens; by request of Department of Agriculture.

Brief History:

  Committee Activity:

Agriculture & Ecology:  2/22/00, 2/25/00 [DP].

                 Brief Summary of Bill

$Specifies the inspection authority of the Department of Agriculture under the nursery laws and broadens the types of  "infestations" for which plants may be regulated.

$Alters where the department may file actions to enjoin violations and may conduct investigatory hearings under the nursery laws.

$Alters the types of plants regulated under the nursery laws, broadens the services-for-fees that may be afforded by the department upon request,  and authorizes compliance agreements.

$Authorizes counties to establish a new assessment on lands for supporting horticultural pest and disease boards.

HOUSE COMMITTEE ON AGRICULTURE & ECOLOGY

Majority Report:  Do pass.  Signed by 12 members:  Representatives G. Chandler, Republican Co-Chair; Linville, Democratic Co-Chair; Koster, Republican Vice Chair; Anderson; B. Chandler; Delvin; Fortunato; Grant; Schoesler; Stensen; Sump and Wood.

Minority Report:  Do not pass.  Signed by 2 members:  Representatives Cooper, Democratic Vice Chair and Reardon.

Staff:  Kenneth Hirst (786-7105).

Background:

NURSERY LAWS.  Retail and wholesale nursery dealers must be licensed under the state's horticultural plants and facilities laws, often called the nursery laws.  Horticultural plants, other than vegetables and certain plant parts used for propagation purposes, are regulated under the nursery laws.  These laws are administered by the Department of Agriculture.

No person may sell or transport a horticultural plant in the state unless it meets standards for freedom from infestation by plant pests and other requirements set under the nursery laws.  Horticultural plants shipped into the state must be accompanied by an inspection certificate stating that the plants meet these standards and requirements.  Inspections for enforcing the nursery laws are authorized, as are inspection and certification services conducted by the department upon request on a fee-for-service basis.

Under the nursery laws, an assessment is levied on the wholesale sales of fruit trees and related ornamental trees and rootstock produced in the state.

Revenues from the assessments are deposited in the Northwest Nursery Fund.  All other monies collected under the nursery laws, including nursery licensing fees, are deposited in an account in the Agricultural Local Fund and may be used to carry out the nursery laws.

The nursery laws create two advisory committees:  one for advising the director of Agriculture regarding the administration of the nursery laws generally, and one for advising the director regarding a fruit tree and related ornamental tree certification and nursery improvement programs.

HORTICULTURAL PEST AND DISEASE BOARDS.  State law allows counties to create horticultural pest and disease boards to prevent and control the spread of pests and diseases.  Operating monies for such a pest and disease board may be provided through a "horticulture tax" that may be levied by the county for this purpose.

I-695.  Initiative No. 695 requires that any tax increase imposed by the state receive voter approval.  The "taxes" governed by this requirement include, with certain express exemptions, any monetary charge by government.  The state is defined to include, among others, counties.

Summary of Bill:

I.  NURSERY LAWS. General Provisions.  The horticultural plants and facilities laws are amended.  Vegetables are no longer excluded as a group from the plants regulated under these laws; however, potatoes, garlic, and onion planting stock are specifically excluded.  Turf is now more uniformly regulated in the same manner as other horticultural plants.  Viroids and phytoplasma are expressly added to the list of things that may be considered to be plant pests under these laws.  Added to the criteria used in considering whether something is a plant pest is whether it threatens the diversity or abundance of native species.  The infestations for which the director may condemn horticultural plants are no longer limited to infestations of insects.

Inspections and Actions.  The inspections that may be conducted under these laws now expressly include taking samples, destructive testing, conducting interviews, taking photographs, and examining records.  A place where the records that are required under the nursery laws are kept is now regulated as a horticultural facility.  The director is expressly authorized to enter and inspect any horticultural facility, including such a place for records and vehicles and equipment used to transport horticultural plants.

Warrants may be issued on probable cause.  It is sufficient probable cause to show  that: the inspection is pursuant to a general administrative practice to determine compliance with the nursery laws or rules; or the director has reason to believe that a violation of these laws has occurred, is occurring, or may occur.

The director may bring an action enjoin a violation of the nursery laws or rules in Thurston County Superior Court, not just the superior court in which the violation occurs.  A hearing for which subpoenas may be issued by the director compelling the attendance of witnesses or production of documents must no longer be held in the county in which the licensee resides and is no longer limited to matters regarding just a licensee, but may be for investigating compliance with any aspect of the nursery laws or rules.  Certain witnesses are no longer entitled to receiving witness fees.  No state court may allow the recovery of damages from an administrative action, hold order, or condemnation order if there was probable cause for the action.

Any shipment found not to be in compliance with the nursery laws may be returned to the consignor at the consignor's expense.  Subsequently, the consignor may request a hearing. 

Services and Agreements.  Upon request, the director may provide special inspection or certifications for any agricultural commodity and prescribe a fee for the service.  The director is expressly authorized to enter compliance agreements with the person growing, handling, or moving articles regulated under certain agricultural laws to the extent that the agreement carries out the nursery laws.  Such an agreement is one in which the person agrees to comply with stipulated requirements.

The director may now refuse to perform an inspection or certification service under the nursery laws for a person who fails to pay the assessments required by an agricultural commodity commission.

Labeling.  The director is now required (not simply authorized) to adopt rules for labeling or tagging horticultural plants.  The specific plants that must be marked or tagged for retail sales or shipments in the state are no longer listed.  Each unit of sale of plants on display for sale (other than floricultural plants) is no longer required by statute to be tagged.  Examples of unlawful misrepresentations in the sale of horticultural plants are no longer listed.  It is no longer unlawful to sell a horticultural plant that is dead, in a dying condition, seriously broken, frozen, or damaged or that is potbound.  It is now unlawful to substitute any agricultural commodity for a commodity or plant that is covered by an inspection certificate. 

Fiscal.  Monies from civil penalties levied under the nursery laws must be deposited in the Nursery Research Account in the Agricultural Local Fund.  The amount of the annual assessment currently set by the director on sales of fruit trees and related ornamentals and rootstock must now expressly be set to carry out programs conducted under the planting stock laws, not just the nursery laws. 

Other.  In appointing members to an advisory committee regarding fruit tree certification and nursery improvement, the director must now consider names submitted by the Washington State Nursery and Landscape Association, rather than having to appoint the members from the names submitted by the association.  In addition to those currently authorized with governmental agencies, the director is expressly authorized to enter into agreements with other organizations to carry out the purposes of the nursery laws.

II.  HORTICULTURE PEST AND DISEASE BOARDS. New Horticultural Assessment.  A horticultural pest and disease board may now be funded through a new assessment.  Before the assessment is levied, the board must hold a hearing to gather information to serve as a basis for classifying lands and then must classify the lands including classes for: orchard lands, range lands, dry lands, non-use lands, forest lands, or federal lands.  The board must forward to its county legislative authority a proposed level of assessment for each class.  The assessment rate may be uniform per acre in its respective class, a flat rate per parcel, or a flat rate per parcel rate plus a uniform rate per acre.  If no benefits are found to accrue to a class of land, a zero assessment may be levied.  After a hearing, the county legislative authority must accept or modify the proposal or refer it or a part of it back to the board for its reconsideration.  The amount of the assessment constitutes a lien against property.  Assessments are to be collected by the county treasurer. 

Other.  The boards are expressly authorized to enter into agreements with other entities to carry out certain duties regarding pests and diseases.

Appropriation:  None.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.

Testimony For:  1)  The bill was developed as part of the department's regulatory reform efforts and was developed in consultation with representatives of the nursery industry.  2)  The bill allows a county to levy a new assessment to fund horticultural pest and disease boards.

Testimony Against:  None.

Testified:  Senator Rasmussen, prime sponsor; and Mary Beth Lang, Department of Agriculture.