BILL REQ. #:  H-1169.1 

Read first time 01/27/11.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to investing in the economy of the state of Washington by creating a mechanism to enhance the production of Pacific salmon; amending RCW 77.12.459 and 42.56.380; and adding a new chapter to Title 15 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Assessment-qualifying catch" means all salmon caught in Puget Sound under a commercial license issued by the department of fish and wildlife.
     (2) "Commission" means the Puget Sound commercial salmon commission.
     (3) "Department" means the department of agriculture.
     (4) "Director" means the director of the department or the director's duly authorized representative.
     (5) "Fiscal year" means the twelve-month period beginning with January 1st of any year and ending December 31st.
     (6) "Harvester" means any person or other entity licensed under Title 77 RCW to commercially harvest or receive salmon that is harvested in Puget Sound.
     (7) "Puget Sound" has the same meaning as defined in RCW 90.71.010.
     (8) "Referendum" means a vote by affected producers that is conducted by secret ballot.
     (9) "Salmon" means all species of Pacific salmon, other than steelhead, from both wild stock or hatchery origins.

NEW SECTION.  Sec. 2   (1) Subject to the referendum conducted under section 3 of this act, there is created a commodity commission, to be known as the Puget Sound commercial salmon commission. The commission is comprised of seven voting members; five members must be commercial harvesters, one member must be a processor, and one voting member must be the director.
     (2) Five voting members of the commission constitute a quorum for the transaction of any commission business.
     (3) Each harvester member and the processor member must be a citizen and resident of this state and over the age of twenty-one. Harvester members must have a license issued under Title 77 RCW to commercially harvest salmon in Puget Sound. Of the five commercial harvesters, two must be licensed to fish with a gill net, two must be licensed to fish with a purse seine, and one must be licensed to use a gear type other than a gill net or a purse seine.
     (4) The harvester members serve three-year terms. Of the initial voting members, two members must be appointed for a one-year term, two members must be appointed for a two-year term, and two members must be appointed for a three-year term.

NEW SECTION.  Sec. 3   (1) Upon receipt of a petition containing the signatures of fifteen commercial Puget Sound salmon harvesters asking the director to implement this chapter and to determine producer participation in the commission and assessment under this chapter, the director shall:
     (a) Conduct a referendum of Puget Sound commercial salmon harvesters and processors. The requirements of assent or approval of the referendum are met if:
     (i) At least fifty-one percent by numbers of affected harvesters and processors participating in the referendum vote affirmatively; and
     (ii) Thirty percent of the affected harvesters and processors and thirty percent of the production have been represented in the referendum to determine assent or approval of participation and assessment. The referendum must be conducted within sixty days of receipt of the petition; and
     (b) Establish a list of harvesters and processors from information provided by the department of fish and wildlife. In establishing a current list of harvesters and processors and their individual production, the director shall use the name, mailing address, and production recorded by the department of fish and wildlife in the preceding fiscal year. Information on each producer must be mailed to each harvester and processor on record with the director for verification. All corrections must be filed with the director within twenty days from the date of mailing. The list of affected harvesters and processors must be kept in a file by the director. The list must be certified as a true representation of the referendum mailing list. Inadvertent failure to notify an affected harvester or processor does not invalidate a proceeding conducted under this chapter. The director shall provide the commission the list of affected harvesters and processors after assent in a referendum as provided in this section.
     (2) If the director determines that the requisite assent has been given in the referendum conducted under subsection (1) of this section, the director shall:
     (a) Within sixty days after assent of the referendum held, appoint the members of the commission; and
     (b) Direct the commission to put into force the assessment as provided for in section 10 of this act.
     (3) If the director determines that the requisite assent has not been given in the referendum conducted under subsection (1) of this section, the director shall take no further action to implement or enforce this chapter.
     (4) Upon completion of the referendum conducted under subsection (1) of this section, the department shall tally the results of the vote and provide the results to affected harvesters and processors. If an affected harvester or processor disputes the results of a vote, that producer within sixty days from the announced results, shall provide in writing a statement of why the vote is disputed and request a recount. Once the vote is tallied and distributed, all disputes are resolved, and all matters in a vote are finalized, the individual ballots may be destroyed.
     (5) Before conducting the referendum provided for in subsection (1) of this section, the director may require the petitioners to deposit with the department an amount of money as the director deems necessary to defray the expenses of conducting the referendum. The director shall provide the petitioners an estimate of expenses that may be incurred to conduct a referendum before any service takes place. Petitioners shall deposit funds with the director to pay for expenses incurred by the department. The commission shall reimburse petitioners the amount paid to the department when funds become available. However, if for any reason the referendum process is discontinued, the petitioners shall reimburse the department for expenses incurred by the department up until the time the process is discontinued.
     (6) The director is not required to hold a referendum under subsection (1) of this section more than once in any twelve-month period.

NEW SECTION.  Sec. 4   (1) The director shall appoint the harvester and processor members of the commission. In making appointments, no later than ninety days before an expiration of a commission member's term, the director shall call for recommendations for commission member positions, and the director shall take into consideration recommendations made by a trade association representing all Puget Sound commercial fishing interests. In appointing persons to the commission, the director shall seek a balanced representation on the commission that reflects the composition of the commercial salmon industry throughout the Puget Sound region.
     (2) If a position on the commission becomes vacant due to resignation, disqualification, death, or for any other reason, the commission shall notify the director and the unexpired term must immediately be filled by appointment by the director.
     (3) Each member or employee of the commission must be reimbursed for actual travel expenses incurred in carrying out this chapter as defined by the commission by rule. If not otherwise defined by rule, reimbursement for travel expenses must be at the rates allowed by RCW 43.03.050 and 43.03.060.

NEW SECTION.  Sec. 5   Obligations incurred by the commission and any other liabilities or claims against the commission may be enforced only against the assets of the commission and, except to the extent of such assets, no liability for the debts or actions of the commission exists against either the state of Washington or any subdivision or instrumentality thereof or against any member, employee, or agent of the commission or the state of Washington in his or her individual capacity. Except as otherwise provided in this chapter, neither the commission members, nor its employees, may be held individually responsible for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No person or employee may be held individually responsible for any act or omission of any other commission members. The liability of the commission members shall be several and not joint, and no member is liable for the default of any other member. This provision confirms that commission members have been and continue to be, state officers or volunteers for purposes of RCW 4.92.075 and are entitled to the defenses, indemnifications, limitations of liability, and other protections and benefits of chapter 4.92 RCW.

NEW SECTION.  Sec. 6   The commission shall:
     (1) Elect a chair and officers. The officers must include a treasurer who is responsible for all receipts and disbursements by the commission and the faithful discharge of whose duties must be guaranteed by a bond at the sole expense of the commission. The commission must adopt rules for its own governance that provide for the holding of an annual meeting for the election of officers and the transaction of other business and for other meetings the commission may direct;
     (2) Do all things reasonably necessary to effect the purposes of this chapter. However, the commission has no rule-making power except as provided in this chapter;
     (3) Employ and discharge managers, secretaries, agents, attorneys, and employees and engage the services of independent contractors;
     (4) Retain, as necessary, the services of private legal counsel to conduct legal actions on behalf of the commission. The retention of a private attorney is subject to review by the office of the attorney general;
     (5) Implement the salmon enhancement strategy directed in section 10 of this act;
     (6) Acquire and transfer personal and real property, establish offices, incur expenses, and enter into contracts, including contracts for the creation and printing of promotional literature. The contracts are not subject to chapter 43.78 RCW, and are cancelable by the commission unless performed under conditions of employment that substantially conform to the laws of this state and the rules of the department of labor and industries. The commission may create debt and other liabilities that are reasonable for proper discharge of its duties under this chapter;
     (7) Maintain accounts with one or more qualified public depositories as the commission may direct, for the deposit of money, and expend money for purposes authorized by this chapter by drafts made by the commission upon such institutions or by other means;
     (8) Cause to be kept and annually closed, in accordance with generally accepted accounting principles, accurate records of all receipts, disbursements, and other financial transactions, available for audit by the state auditor;
     (9) Create and maintain a list of harvesters and processors and disseminate information among and solicit the opinions of producers with respect to the discharge of the duties of the commission, directly or by arrangement with trade associations or other instrumentalities;
     (10) Sue and be sued as a commission, without individual liability for acts of the commission within the scope of the powers conferred upon it by this chapter; and
     (11) Receive such gifts, grants, and endowments from public or private sources as may be made from time to time, in trust or otherwise, for the use and benefit of the purposes of the commission and expend the same or any income therefrom according to the terms of the gifts, grants, or endowments.

NEW SECTION.  Sec. 7   (1) The commission shall develop and submit to the director for approval any plans, programs, and projects concerning the establishment, issuance, effectuation, and administration programs appropriate for the commission related to salmon enhancement.
     (2) The commission, before the beginning of its fiscal year, shall prepare and submit to the director for approval any plans and its budget on a fiscal period basis.
     (3) The director shall strive to review and make a determination of all submissions described in this section in a timely manner.

NEW SECTION.  Sec. 8   The commission exists primarily for the benefit of the people of the state of Washington and its economy. The legislature charges the commission, with oversight by the director, to engage in the activities outlined in this chapter.

NEW SECTION.  Sec. 9   (1) The commission shall prepare a list of all affected harvesters and processors from information available from the department of fish and wildlife. This list must contain the names and addresses of affected harvesters and processors and the amount of salmon harvested or processed during the period designated by the commission. A qualified person may, at any time, have his or her name placed upon the list by delivering or mailing the information to the commission. This list must be corrected and brought up-to-date in accordance with evidence and information available to the commission by December 31st of each year. For the purposes of giving notice and holding referendums, the list updated before the date for issuing notices or ballots is the list of all harvesters and processors entitled to notice, to assent or dissent, or to vote. Inadvertent failure to notify a harvester or processor does not invalidate a proceeding conducted under this chapter.
     (2) It is the responsibility of affected harvesters and processors to ensure that their correct address is filed with the commission. It is also the responsibility of affected harvesters and processors to submit production data to the commission as prescribed by this chapter.
     (3) The commission shall develop a reporting system to document that the affected harvesters and processors in this state are reporting quantities of salmon harvested or processed and are paying the assessment as provided in section 10 of this act.

NEW SECTION.  Sec. 10   (1) Pursuant to referendum in accordance with section 3 of this act, there is levied, and the commission shall collect, upon the harvest or processing of an assessment-qualifying catch, a Puget Sound salmon enhancement assessment.
     (2) Except as otherwise provided in this section, the Puget Sound salmon enhancement assessment must be at least five percent of the value of the salmon at the point of landing.
     (3)(a) In instances when the harvester sells an assessment-qualifying catch to a fish buyer licensed under RCW 77.65.280, the fish buyer is responsible for collecting the entire assessment. However, of the value collected, one-half must be contributed by the harvester of the salmon and one-half must be contributed by the fish buyer. The portion of the assessment contributed by the harvester must be separately accounted for by the fish buyer as a line item on the associated forms and may not be simply deducted from the price paid to the harvester.
     (b) In instances when a harvester exports the harvester's assessment-qualifying catch outside of Washington, or otherwise sells his or her catch to a party that is not a licensed fish buyer under RCW 77.65.280, the harvester is responsible for the entire Puget Sound salmon enhancement assessment.
     (4) The commission shall adopt rules prescribing the time, place, and method for payment and collection of this assessment.

NEW SECTION.  Sec. 11   (1)(a) The commission shall deposit money collected under section 10 of this act in a separate account in the name of the commission in any bank that is a state depositary. All expenditures and disbursements made from this account under this chapter may be made without the necessity of a specific legislative appropriation. RCW 43.01.050 does not apply to this account or to the money received, collected, or expended as provided in this chapter. All money in the account must be used for either the operation of the commission or for salmon enhancement projects.
     (b) In addition to receipts from the Puget Sound salmon enhancement assessment collected under section 10 of this act, the commission may solicit voluntary assessments donated by tribal fishers or other donations made for the purposes of salmon enhancement.
     (2)(a) Salmon enhancement projects undertaken by the commission may include the operation of hatcheries and other projects designed to increase the production of Pacific salmon. Unless otherwise specifically authorized by the commission, all salmon enhancement projects funded through grants under this section must be located within Puget Sound.
     (b) The authority to use commission money for the operation of hatcheries is to be interpreted broadly to include all activities that support the operation of Pacific salmon hatcheries. This includes the harvest of broodstock, the incubation of eggs, the rearing of smolts, the release of fry, and associated research and educational activities. All hatchery operation enhancement projects must be carried out by the commission consistent with all state laws relating to hatchery salmon production and release.

NEW SECTION.  Sec. 12   An assessment levied in an amount determined by the commission under section 10 of this act constitutes a personal debt of every person assessed or who otherwise owes the assessment, and the assessment is due and payable to the commission when payment is called for by the commission. If a harvester or processor fails to pay the commission the full amount of the assessment by the date due, the commission may add to the unpaid assessment an amount not exceeding ten percent of the assessment to defray the cost of enforcing its collection. If the person fails to pay an assessment, the commission may bring a civil action for collection against the person or persons in a court of competent jurisdiction. The action shall be tried and judgment rendered as in any other cause of action for a debt due and payable.

NEW SECTION.  Sec. 13   (1) Under RCW 42.56.380, certain business records, commission records, and department records relating to the commission and producers of commodities are exempt from public disclosure.
     (2) Financial and commercial information and records submitted to either the department or the commission for the purpose of administering this chapter may be shared between the department and the commission. They may also be used, if required, in any suit or administrative hearing involving this chapter.
     (3) This section does not prohibit:
     (a) The issuance of general statements based upon the reports of persons subject to this chapter as long as the statements do not identify the information furnished by any person; or
     (b) The publication by the director or the commission of the name of any person violating this chapter and a statement of the manner of the violation by that person.

NEW SECTION.  Sec. 14   All costs incurred by the department, including the adoption of rules and other actions necessary to carry out this chapter, must be reimbursed by the commission. The commission shall provide funds to the department according to the rules adopted by the director.

NEW SECTION.  Sec. 15   (1) Any prosecution brought under this chapter may be instituted in any county in which the defendant or any defendant resides, or in which the violation was committed, or in which the defendant or any defendant has his or her principal place of business.
     (2) The superior courts may enforce this chapter and the rules and regulations of the commission issued hereunder, and may prevent and restrain violations thereof.

NEW SECTION.  Sec. 16   This chapter shall be liberally construed to effectuate its purposes.

NEW SECTION.  Sec. 17   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 18   Sections 1 through 17 of this act constitute a new chapter in Title 15 RCW.

Sec. 19   RCW 77.12.459 and 1998 c 190 s 74 are each amended to read as follows:
     (1) Except as otherwise provided in this section, a person other than the United States, an Indian tribe recognized as such by the federal government, the state, a subdivision of the state, or a municipal corporation or an agency of such a unit of government shall not release salmon or steelhead trout into the public waters of the state and subsequently to recapture and commercially harvest such salmon or trout.
     (2) This section shall not prevent:
     (a) Any person from rearing salmon or steelhead trout in pens or in a confined area under circumstances where the salmon or steelhead trout are confined and never permitted to swim freely in open water; or
     (b) Any qualifying organization partnering with the department for salmon enhancement under section 9 of this act from operating a salmon hatchery and releasing salmon for subsequent recapture and commercial harvest under the authority of the department.

Sec. 20   RCW 42.56.380 and 2010 c 128 s 2 are each amended to read as follows:
     The following information relating to agriculture and livestock is exempt from disclosure under this chapter:
     (1) Business-related information under RCW 15.86.110;
     (2) Information provided under RCW 15.54.362;
     (3) Production or sales records required to determine assessment levels and actual assessment payments to commodity boards and commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.115, 15.100, 15.89, 15.--- (the new chapter created in section 18 of this act), and 16.67 RCW or required by the department of agriculture to administer these chapters or the department's programs;
     (4) Consignment information contained on phytosanitary certificates issued by the department of agriculture under chapters 15.13, 15.49, and 15.17 RCW or federal phytosanitary certificates issued under 7 C.F.R. 353 through cooperative agreements with the animal and plant health inspection service, United States department of agriculture, or on applications for phytosanitary certification required by the department of agriculture;
     (5) Financial and commercial information and records supplied by persons (a) to the department of agriculture for the purpose of conducting a referendum for the potential establishment of a commodity board or commission; or (b) to the department of agriculture or commodity boards or commissions formed under chapter 15.24, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.115, 15.100, 15.89, or 16.67 RCW with respect to domestic or export marketing activities or individual producer's production information;
     (6) Information obtained regarding the purchases, sales, or production of an individual American ginseng grower or dealer, except for providing reports to the United States fish and wildlife service under RCW 15.19.080;
     (7) Information collected regarding packers and shippers of fruits and vegetables for the issuance of certificates of compliance under RCW 15.17.140(2) and 15.17.143;
     (8) Financial statements obtained under RCW 16.65.030(1)(d) for the purposes of determining whether or not the applicant meets the minimum net worth requirements to construct or operate a public livestock market;
     (9) Information submitted by an individual or business for the purpose of participating in a state or national animal identification system. Disclosure to local, state, and federal officials is not public disclosure. This exemption does not affect the disclosure of information used in reportable animal health investigations under chapter 16.36 RCW once they are complete; and
     (10) Results of testing for animal diseases not required to be reported under chapter 16.36 RCW that is done at the request of the animal owner or his or her designee that can be identified to a particular business or individual.