Original Notice.

     Preproposal statement of inquiry was filed as WSR 01-04-092.

     Title of Rule: Chapter 16-238 WAC, WSDA grain inspection program -- Fee schedule.

     The Washington State Department of Agriculture (WSDA) proposes repealing the current chapter 16-238 WAC, WSDA grain inspection program -- Fee schedule, and replacing it with new chapter 16-239 WAC, WSDA grain inspection program -- Definitions, standards, fees and charges, which is rewritten in a clear and readable style and reorganized and reformatted so the rule is easier to understand and use.

     Purpose: The purpose of the proposed rule is twofold:

     (1) Increase current grain inspection fees by the Office of Financial Management (OFM) fiscal growth rate factors for fiscal year 2003 (3.29%) and for fiscal year 2004 (3.2%). These proposed increases help cover the program's increased cost of doing business due to inflation and increased service requests. They are necessary if the program is going to continue to provide the level of services that the industry expects from it and continue to comply with RCW 22.09.790, which requires that the department must recover the costs it incurs for inspecting, weighing and grading grain.

     (2) Rewrite current chapter 16-238 WAC in clear and readable language so it is easier to understand. In addition, the chapter was reorganized and reformatted so it is easier to understand and use. Since the proposed changes in language and format are quite extensive, the program decided to repeal chapter 16-238 WAC and replace it with chapter 16-239 WAC. With the exception of the fee increases, no new requirements are contained in chapter 16-239 WAC. The requirements in chapter 16-239 WAC are the same as those in chapter 16-238 WAC; they have simply been rewritten and reformatted to improve the rule's clarity.

     Statutory Authority for Adoption: RCW 22.09.790 and chapter 34.05 RCW.

     Statute Being Implemented: Chapter 22.09 RCW.

     Summary: See Purpose above.

     Reasons Supporting Proposal: (1) The fee increases are necessary to comply with RCW 22.09.790. They help offset increased costs incurred in providing program services and help maintain operating reserves appropriate for a program supported entirely by user fees.

     (2) The rewriting of the rule in clear and readable language within the context of a "user friendly" format is the result of the department's on-going rule review mandated by Executive Order 97-02. Changes in language and format have been made to comply with the executive order's "clarity" criteria. In addition, rewriting the rule was undertaken to comply with RCW 34.05.220(5), which states: "To the extent practicable, any rule proposed or adopted by an agency should be clearly and simply stated, so that it can be understood by those required to comply."

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Randall R. Deike, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1921.

     Name of Proponent: Grain Inspection Advisory Committee, governmental.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed fee increases are within the allowable fiscal growth factors established by the OFM for fiscal years 2003 and 2004.

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

     Explanation of Rule, its Purpose, and Anticipated Effects: (1) Chapter 16-239 WAC is a rewrite of the current chapter 16-238 WAC in plain English wherever possible. With the exception of the increase in fees, no requirement in the current chapter 16-238 WAC has been changed. Except for the fee increases, the requirements in chapters 16-238 and 16-239 WAC are identical. It is anticipated that the new, clearly written rule will result in:

•     Better understanding of grain inspection rule requirements by industry;

•     Increased compliance with those requirements by industry; and

•     Better enforcement of those requirements by program staff.

     (2) In the new chapter, the rule sections contained in chapter 16-238 WAC have been rearranged into a more logical sequence, retitled to reflect section content and rewritten into shorter, more focused sections so they are easier to read and understand. Although this approach results in an increased number of rule sections when compared with the current rule, it is anticipated that the user will find the shorter, focused and accurately titled rule sections much easier to use than the long, cumbersome sections in the current rule.

     (3) Chapter 16-239 WAC reflects user fees increased by the OFM fiscal growth rate factors for fiscal year 2003 (3.29%), effective June 30, 2003, and for fiscal year 2004 (3.20%), effective July 1, 2003. It is anticipated that these increases in hourly and unit fees will provide the program with sufficient revenue to comply with RCW 22.09.790 and be able to continue [to] provide industry with the level of service that it deserves and expects.

     (4) Fees and rates in chapter 16-239 WAC is presented using a tabular format. It is anticipated that both industry and program staff will find this format easier to use and understand.

     Proposal Changes the Following Existing Rules: The following table summarizes the differences and similarities between the current chapter 16-238 WAC and proposed chapter 16-239 WAC.

Chapter 16-238 WAC	Chapter 16-239 WAC	Summary Comments
WSDA GRAIN INSPECTION PROGRAM -- FEE SCHEDULE	WSDA GRAIN INSPECTION PROGRAM -- DEFINITIONS, STANDARDS, FEES AND CHARGES	Changed chapter title to more accurately reflect chapter content.
CURRENT WAC SECTIONS	PROPOSED WAC SECTIONS
16-238-010 Definitions.	16-239-010 Definitions.	•     Definitions are listed in alphabetical order for ease of use. •     Where needed, definitions are rewritten and reformatted for clarity. •     A new definition, "Official commercial inspection services," was added because the term is used in the rule without definition. •     One current definition, "Occasional work stoppage," was deleted because it is an unnecessary carryover from previous versions of the fee schedule.
16-238-020 Grain and commodity inspection points.	16-239-020 Washington state grain and commodity inspection points.	Reformatted for easier reading.
16-238-030 General provisions for assessment of fees.	16-239-060 Guarantee of expenses.	Current WAC 16-238-030 is extremely long and difficult to use. The proposed rule: •     Breaks the current long section down into smaller sections dealing with specific topics to increase the rule's usefulness. •     Each short section has a title that clearly identifies the section's content. •     Each short section is rewritten and reformatted to make its content easier to understand. •     Requirements in chapter 16-239 WAC sections are identical to the requirements in WAC 16-238-030.
	16-239-061 Guaranteed staffing levels.
	16-239-062 Additional fees to cover insufficient revenue at export locations.
	16-239-063 Official commercial inspection services.
	16-239-064 Calculating travel time, mileage and per diem.
	16-239-065 Payment of fees and charges.
	16-239-070 Basic WSDA grain program fees for service.
	16-239-071 Straight time rate.
	16-239-072 GIPSA/FGIS scale authorization fee.
	16-239-073 Overtime and night shift rates.
	16-239-074 Late notice fee.
	16-239-075 Callback fee.
	16-239-076 Shift request fee.
	16-239-077 Shift cancellation fee.
	16-239-078 Four-hour minimum standby fee.
	16-239-079 Service cancellation fee.
16-238-060 Fees for official sampling, inspection, and/or weighing services under the United States Grain Standards Act.	16-239-080 Fees for official sampling, inspecting, and/or weighing services under the United States Grain Standards Act.	Current WAC 16-238-060 is extremely long and difficult to use. The proposed rule: •     Breaks the current long section down into smaller sections dealing with specific topics to increase the rule's usefulness. •     Each short section has a title that clearly identifies the section's content. •     Each short section is rewritten and reformatted to make its content easier to understand. •     Requirements, except for the increased fees, are identical to the requirements in WAC 16-238-060. •     Fee rates, effective June 30, 2003, are the result of increasing current rates by the OFM fiscal growth rate factor for FY 2003 (3.29%). •     Fee rates, effective July 1, 2003, are the result of increasing the June 30, 2003, rates by the OFM fiscal growth rate factor for FY 2004 (3.2%). •     Presents fee information and rates in a tabular format for clarity and ease of use.
	16-239-0801 Fees for combination inspection and weighing services.
	16-239-0802 Fees for official sampling and inspecting without weighing and fees for official sampling only.
	16-239-0803 Fees for official Class X weighing services without an inspection.
	16-239-0804 Fees for other official weighing services.
	16-239-0805 Fees for inspecting submitted samples.
	16-239-0806 Fees for factor analysis.
	16-239-0807 Fees for official constituent analysis using near-infrared transmittance (NIRT) technology.
	16-239-0808 Fees for qualitative or quantitative testing for the presence of Mycotoxins using USDA approved "ELISA" or "Fluorometric" methods.
	16-239-0809 Fees for stowage examination services on vessels or ocean-going barges.
	16-239-0810 Fees for other stowage examination services.
	16-239-0811 Fees for phytosanitary certification.
	16-239-0812 Fees for miscellaneous services.
	16-239-0813 Fees for other services under the United States Grain Standards Act.
16-238-070 Fees for official services under the Agricultural Marketing Act of 1946.	16-239-090 Fees for performing official Agricultural Marketing Act of 1946 services.	Current WAC 16-238-070 is extremely long and difficult to use. The proposed rule: •     Breaks the current long section down into smaller sections dealing with specific topics to increase the rule's usefulness. •     Each short section has a title that clearly identifies the section's content. •     Each short section is rewritten and reformatted to make its content easier to understand. •     Requirements, except for the increased fees, are identical to the requirements in WAC 16-238-070. •     Fee rates, effective June 30, 2003, are the result of increasing current rates by the OFM fiscal growth rate factor for FY 2003 (3.29%). •     Fee rates, effective July 1, 2003, are the result of increasing the June 30, 2003, rates by the OFM fiscal growth rate factor for FY 2004 (3.2%). •     Presents fee information and rates in a tabular format for clarity and ease of use.
	16-239-0901 Fees for combination inspection and weighing services.
	16-239-0902 Fees for official sampling and inspecting without weighing and fees for official sampling only.
	16-239-0903 Fees for official weighing services without inspections.
	16-239-0904 Fees for other official weighing services.
	16-239-0905 Fees for inspection of submitted samples.
	16-239-0906 Fees for factor analysis.
	16-239-0907 Fees for qualitative or quantitative testing for the presence of Mycotoxins using USDA approved "ELISA" or "Fluorometric" methods.
	16-239-0908 Fees for stowage examination services on vessels or ocean-going barges.
	16-239-0909 Fees for other stowage examination services.
	16-239-0910 Fees for phytosanitary certification.
	16-239-0911 Fees for miscellaneous services.
	16-239-0912 Fees for other services under the Agricultural Marketing Act of 1946.
16-238-082 Fees for services performed under state regulation or standards or "as specified" by the applicant for service when no official standards exist.	16-239-100 Fees for services performed under state regulation or standards and for services "as specified" by the applicant when no official standards exist.	The proposed rule: •     Breaks the current WAC 16-238-082 down into smaller sections dealing with specific topics to increase the rule's usefulness. •     Each short section has a title that clearly identifies the section's content. •     Each short section is rewritten and reformatted to make its content easier to understand. •     Requirements, except for the increased fees, are identical to the requirements in WAC 16-238-082. •     Fee rates, effective June 30, 2003, are the result of increasing current rates by the OFM fiscal growth rate factor for FY 2003 (3.29%). •     Fee rates, effective July 1, 2003, are the result of increasing the June 30, 2003, rates by the OFM fiscal growth rate factor for FY 2004 (3.2%). •     Presents fee information and rates in a tabular format for clarity and ease of use.
	16-239-1010 Fees for inspecting miscellaneous agricultural commodities under chapter 16-213 WAC.
	16-239-1020 Fees for miscellaneous services.
	16-239-1030 Fees for services not specifically identified in WAC 16-239-1010 and 16-239-1020.
16-238-090 Covered commodities.	16-239-030 Commodities covered by chapter 22.09 RCW.	•     Title rewritten for clarity. •     Rewritten and reformatted for clarity. •     Moved to beginning of chapter where it more logically belongs.
16-238-100 Grades and standards.	16-239-040 Grades and standards adopted by Washington state.	•     Title rewritten for clarity. •     Rewritten and reformatted for clarity. •     Moved to beginning of chapter where it more logically belongs.
16-238-110 Scales.	16-239-050 Scale testing.	•     Title rewritten for clarity. •     Rewritten and reformatted for clarity. •     Moved to beginning of chapter where it more logically belongs.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires that an agency must prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on businesses in an industry. The department has concluded that the proposed fee increases, which are based upon the OFM fiscal growth rate factors for fiscal years 2003 and 2004, do not impose a more than minor cost on the regulated industry and, therefore, an SBEIS is not required.

     RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a named agency in RCW 34.05.328.

     Hearing Location: Washington State Department of Agriculture, Natural Resources Building, Conference Room 205, 1111 Washington Street, Olympia, WA 98504-2560, on April 24, 2003, at 1:30 p.m.

     Assistance for Persons with Disabilities: Contact Laurie Crose by April 23, 2003, TDD (360) 902-1976 or (360) 902-1996.

     Submit Written Comments to: George Huffman, Hearing Officer, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2085, by April 24, 2003, 5:00 p.m.

     Date of Intended Adoption: May 25, 2001 [2003].

March 18, 2003

Robert W. Gore

Assistant Director

OTS-6168.3

     "Fee" means any charge made by the department for:

     (1) Inspecting and handling any commodity; or

     (2) Any service related to weighing or storing grains or commodities.

     "GIPSA/FGIS" means the Grain Inspection, Packers and Stockyards Administration, Federal Grain Inspection Service.

     "Official commercial inspection services" means a contractual agreement between the applicant and the department that includes, but is not limited to, the following:

     (1) An applicant developed list or narrative that includes the specific inspection services and service scope they are requesting;

     (2) An applicant developed timeline showing when specific inspection services must be performed by the department; and

     (3) The specific inspection space and equipment that the applicant will provide at their expense.

     "Overtime" means:

     (1) Any time worked on Saturdays, Sundays, or holidays; and

     (2) All time worked before or after regularly scheduled working hours on Monday through Friday.

     "Ton" means two thousand pounds avoirdupois.

     "USDA" means the United States Department of Agriculture.

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     • Colfax

     • Kalama

     • Olympia

     • Pasco

     • Seattle

     • Spokane

     • Tacoma

     • Vancouver.

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     (1) Grains with standards or inspection criteria established under the United States Grain Standards Act;

     (2) Commodities with standards or inspection criteria established under the Agricultural Marketing Act;

     (3) Commodities with standards or inspection criteria established under Washington state standards; and

     (4) By-products resulting from conditioning or processing the grains and commodities listed in this section.

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     (1) The grades and standards established by the United States Department of Agriculture from August 1, 1984, to the present that apply to all grains and commodities regulated by this chapter.

     (2) The procedures to sample, grade, test and weigh grains and commodities, established by the regulations and instructions under the United States Grain Standards Act and the Agricultural Marketing Act of 1946.

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     (1) Scales must be tested and certified for accuracy at least twice each year by an authorized Washington state department of agriculture scale expert or a USDA, GIPSA/FGIS scale specialist.

     (2) When tested by the department or by USDA, GIPSA/FGIS, a seal must be placed on the scales. This seal must be dated and must indicate approval or rejection.

     (3) When scales are tested, copies of the test report must be:

     (a) Forwarded to the USDA, GIPSA/FGIS;

     (b) Maintained by the department; and

     (c) Maintained at the facility where the scale is located.

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     (2) The purpose of the additional fee is to insure that the total revenue generated on a daily basis is equal to the per hour straight time fee per employee.

     (3) Upon the applicant's written request, the additional fee may be established using the average hourly revenue generated at the worksite over the Monday through Sunday workweek (weekly averaging).

     (4) Without a written request, the additional fee must be assessed on a daily basis.

Note:

The weekly averaging computation uses the prior week's invoices for ship lots completed before the start of business on Monday. It does not include fees assessed for GIPSA/FGIS scale authorization, overtime, late notice, call-back, standby, shift request, or shift cancellation.`

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     (1) Appropriate space, equipment and security must be provided by the applicant.

     (2) The applicant must provide a written document fully describing the services requested.

     (3) The department must be able to provide appropriate licensed personnel to accomplish the service requested.

     (4) A guarantee of expenses is negotiated.

Note:

The applicant must fully describe the requested services in writing so the department can determine appropriate staffing levels and develop a guarantee of expenses proposal.

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     (1) Travel time for each department employee from the established inspection point to the service location and return at the rates in effect at the time the service is performed.

     (2) Mileage from the established inspection point to the service location and return for each vehicle involved. The mileage rate is assessed according to the state of Washington's general administration private vehicle mileage reimbursement rate in effect at the time the service is performed.

     (3) If applicable, a per diem rate will be assessed for each department employee equal to the established state of Washington travel status per diem rates in effect at the time the service is performed.

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     (2) If the department does not receive payment within thirty days:

     (a) Services may be withheld until the delinquent account is paid; or

     (b) Cash payment for subsequent services may be required.

     (3) The department assesses a penalty of twelve percent per annum on all delinquent account balances.

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	Rate Per Hour
Effective June 30, 2003	$28.75
Effective July 1, 2003	$29.50

     (2) The straight time rate is assessed when:

     (a) No other fee, guarantee of expenses or contractual agreement exists; or

     (b) It is specified in the schedule of fees; or

     (c) The fees generated through the service provided are not equivalent to the straight time rate, per hour, per employee (including applicable supervisory and clerical employee hours).

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	Rate Per Hour
Effective June 30, 2003	$38.08
Effective July 1, 2003	$39.00

     (2) The GIPSA/FGIS scale authorization fee, per hour, per employee is assessed when GIPSA/FGIS scale authorization services are requested or required.

     (3) In addition to the hourly GIPSA/FGIS scale authorization fee; the department may assess travel time, mileage, per diem, overtime, late notice, call-back, standby and service cancellation fees.

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	Rate Per Hour
Effective June 30, 2003	$7.48
Effective July 1, 2003	$7.70

     (2) In addition to regular inspection and weighing fees, the department will charge overtime and night shift rates per hour, per employee, including applicable supervisory and clerical employee hours, when a service is requested:

     (a) Before or after regularly scheduled working hours, Monday through Friday; or

     (b) During established meal periods on any shift; or

     (c) Anytime on Saturdays, Sundays or holidays.

     (3) When an applicant contracts for a permanent night shift, the overtime and night shift rates for the night shift will be waived after the initial seven-day notice period expires.

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	Rate Per Hour
Effective June 30, 2003	$4.98
Effective July 1, 2003	$5.12

     (2)(a) Requests for service on Saturdays, Sundays, or holidays, or for work before or after regularly scheduled working hours, Monday through Friday, must be received by the inspection office no later than 2:00 p.m. of the last regularly scheduled working day before the date of the requested service. For example, the inspection office must receive a request for Saturday service by 2:00 p.m. of the preceding Friday.

     (b) When the service request is not received by 2:00 p.m., the department will provide services if qualified employees are available.

     (3)(a) Service requests beyond the normal scope or volume requested at an inspection site must be received by the inspection office no later than 2:00 p.m. of the last regularly scheduled working day before the requested date of service.

     (b) The department will provide the service if adequate numbers of qualified employees are available.

     (4) The late notice fee will be assessed only for those hours of the service that the department is able to staff.

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	Fee Per Employee
Effective June 30, 2003	$25.01
Effective July 1, 2003	$25.80

     (2) When the department receives requests for services after the close of business on a regular scheduled working day and sufficient numbers of qualified staff are available to provide the requested service, the department will assess a call-back fee for each employee scheduled for that shift or service request.

     (3) The department will assess one call-back fee for each employee scheduled for a shift on a Saturday, Sunday, or holiday.

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	Rate Per Hour
Effective June 30, 2003	$7.48
Effective July 1, 2003	$7.70

     (2) Requests for establishing a night or graveyard shift must be given to the department in writing. The requested shift will begin seven days after the department receives the applicant's written request.

     (3) If the night or graveyard shift begins before the seven-day notice period has expired, the department will assess a shift request fee for every hour an employee is assigned to the new shift(s) beginning with the day the employee is assigned until the seven-day notice expires.

     (4) In addition to paying shift request fees for night or graveyard shifts, those locations where the department cannot maintain full-time staffing due to inadequate workloads or inconsistent work schedules are assessed shift request fees for day shifts.

     (5)(a) At locations where department staffing has been reduced below the full-time permanent day shift numbers due to a lack of work, an applicant requesting a day shift that begins before the seven-day notice period has expired must pay a shift request fee for every hour that a department employee is assigned to the location.

     (b) The assessment begins when the department employee is assigned and ends when the seven-day notice for the assigned employee expires.

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	Rate Per Hour
Effective June 30, 2003	$7.48
Effective July 1, 2003	$7.70

     (2)(a) All requests to cancel a previously requested night or graveyard shift must be given to the department, in writing, at least twenty-one days before the cancellation date.

     (b) If the applicant does not give the department the full twenty-one day notice, a shift cancellation fee will be assessed for all hours between the time the assigned staff would have worked and the time when the twenty-one day notice expires.

     (3) Locations that are not routinely staffed due to inconsistent schedules or are inadequately staffed due to a lack of work, will be assessed the shift cancellation fee for all shifts where the full twenty-one day cancellation notice is not given.

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	Rate Per Employee Per Hour
Effective June 30, 2003	$28.75
Effective July 1, 2003	$29.50

     (2) When a service is requested before or after the inspection office's established standard Monday through Friday workday or anytime on Saturdays, Sundays, or holidays and the service cannot be performed through no fault of the department, the per employee four-hour minimum standby fee will be assessed.

     (3) The per employee four-hour minimum standby fee is assessed when service is requested at a location not routinely staffed on a Monday through Friday basis if the department is able to adequately staff qualified personnel to perform the service and, through no fault of the department, the service cannot be performed.

     (4) When a requested service begins or ends within two hours of the regular starting or ending time of a shift and the service cannot be performed through no fault of the department, the per employee standby fee is assessed on a per hour basis.

     (5) The per employee standby fee is assessed for all hours staffed at the request of the applicant over the four-hour minimum.

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	Rate Per Employee Per Hour
Effective June 30, 2003	$28.75
Effective July 1, 2003	$29.50

     (2) The department will assess a per employee service cancellation fee when service is requested:

     (a) Before or after working hours, Monday through Friday, or anytime on a Saturday, Sunday or holiday, and a cancellation of the request is not received by 2:00 p.m. of the last regularly scheduled working day before the service is scheduled to begin; or

     (b) At locations that are not routinely staffed on a Monday through Friday basis because of inconsistent schedules or are inadequately staffed due to a lack of work and a service cancellation request is not received at the inspection office by 2:00 p.m. of the last regularly scheduled working day before the requested service is scheduled to begin.

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     (2) An applicant may be required to provide the necessary supplies and/or equipment when requesting a new or special type of analysis.

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     (2) An applicant may have to provide the necessary supplies and/or equipment when requesting a new or special type of analysis.

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     (2) An applicant may have to provide the necessary supplies and/or equipment when requesting a new or special type of analysis.

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© Washington State Code Reviser's Office