WSR 03-14-145

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed July 2, 2003, 10:55 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: WAC 246-282-990 Sanitary control of shellfish -- Fees.

Purpose: The proposed rule restructures the fee schedule implemented August 16, 2002, pursuant to the 2002 supplemental operating budget, section 220, chapter 371, Laws of 2002, that is assessed to commercial shellfish operations to pay for PSP testing of commercially harvested geoduck. The proposed rule realigns fee assessment in relationship to the number of geoduck PSP tests performed for each entity in 2002. Although the restructure will result in revenue neutral fees, the new schedule will increase some fees over I-601 limits while reducing others. Authority to exceed I-601 limits was approved by the legislature in the 2003 biennial budget.

Statutory Authority for Adoption: RCW 43.70.250.

Summary: Commercial shellfish PSP testing is an integral part of the shellfish operations licensing program. The proposed rule is necessary to implement a revised fee schedule that is based on the amount of geoduck PSP testing done and the number of companies harvesting geoduck in 2002. The proposed revised fee will be used to fund commercial geoduck PSP testing, and is revenue neutral.

Reasons Supporting Proposal: The proposed revision incorporates changes requested by the affected industry, and makes fee assessment more equitable by spreading the cost of the service across all companies using the service. It is calculated using the cost of service, the number of geoduck PSP tests performed, and the number of geoduck PSP tests performed for each entity in 2002. The proposed revision is necessary because of annual fluctuations in numbers of tests performed and numbers of companies harvesting geoducks.

Name of Agency Personnel Responsible for Drafting: Jan Jacobs, New Market Center, Building 4, Tumwater, (360) 235-3316; Implementation and Enforcement: Jennifer Tebaldi, New Market Center, Building 4, Tumwater, (360) 235-3325.

Name of Proponent: Washington State Department of Health, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Last year when subtidal (geoduck) PSP fees were implemented, geoduck harvesters included tribes and nontribal companies that lease geoduck tracts from the Department of Natural Resources. The Department of Natural Resources (DNR) agreed to pay for PSP testing done on tracts it leases to nontribal companies, so the fee structure was designed to split fees between DNR and participating tribes. Fees were assessed based on the average number of tests performed for each entity over the previous two years.

Some of the criteria upon which the subtidal geoduck fee structure was based have change in the past year. Several tribes have recently begun harvesting geoduck, but have been doing so for less than the two years specified in the assessment criteria. Also, nontribal companies have begun geoduck harvest on both subtidal and intertidal private tidelands, and testing required for these sites is not addressed in the current fee schedule. The proposed revision allows the inclusion of nontribal companies harvesting geoduck, as well as Tribes that have been harvesting for less than two years, into the fee structure; it assesses fees based on the number of tests performed for each entity in the past year, rather than the average number of tests over the previous two years; and it changes the fee definition from "subtidal harvest" to "geoduck harvest" which allows companies harvesting intertidal geoduck to be included in the fee schedule and share the cost of geoduck PSP testing. The proposed fee restructure is revenue neutral. However, while reducing some fees, the restructure will increase others over I-601 limits. Authority to exceed I-601 limits was approved by the legislature in 2003 biennial budget.

Proposal Changes the Following Existing Rules: The proposed rule restructures the fees assessed to commercial shellfish operations to pay for PSP testing of commercially harvested geoduck. It allows for the inclusion of all companies harvesting geoduck to share the cost of service. The restructure is revenue neutral.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025, a small business economic impact statement is not required for rules that set or adjust fees pursuant to legislative standards. This rule proposes to revise a fee necessary to defray the costs of administering the commercial shellfish license program. The department is directed under RCW 43.27.250 to set fees so that the cost of a business license program is fully borne by members of that business. In addition, the 2002 supplemental operating budget changed the funding source for this activity from the general fund-state to general fund-local account.

RCW 34.05.328 does not apply to this rule adoption. RCW 34.05.328 "significant rule analysis" does not apply to rules that set or adjust fees pursuant to legislative standards, as this proposal does. See above.

Hearing Location: Department of Health, New Market Industrial Campus, 7171 Cleanwater Lane, Building 6, Tumwater, WA 98504, on August 19, 2003, at 1:30 p.m.

Assistance for Persons with Disabilities: Contact Jan Jacobs by August 12, 2003, TDD (800) 833-6388.

Submit Written Comments to: Jan Jacobs, Food Safety and Shellfish Programs, P.O. Box 47824, Olympia, WA 98504-7824, fax (360) 236-3316, by August 19, 2003.

Date of Intended Adoption: August 20, 2003.

July 2, 2003

Mary C. Selecky

Secretary

OTS-6485.3


AMENDATORY SECTION(Amending WSR 02-15-094, filed 7/16/02, effective 8/16/02)

WAC 246-282-990   Fees.   (1) Annual shellfish operation license fees are:


Type of Operation Annual Fee
Harvester $250.
Shellstock Shipper
0 - 49 Acres $282.
50 or greater Acres $452.
Scallop Shellstock Shipper $282
Shucker-Packer
Plants with floor space < 2000 sq. ft. $514.

Plants with floor space 2000 sq. ft. to 5000 sq. ft.

$622.

Plants with floor space > 5000 sq. ft.

$1,147.


(2) The fee for each export certificate is $10.

(3) Annual PSP testing fees for companies harvesting species other than geoduck intertidally (between the extremes of high and low tide) are as follows:

Fee Category
Type of Operation Number of Harvest Sites Fee
Harvester ≤ 2 $173
Harvester 3 or more $259
Shellstock Shipper ≤ 2 $195
0 - 49 acres
Shellstock Shipper 3 or more $292
0 - 49 acres
Shellstock Shipper N/A $468
50 or greater acres
Shucker-Packer ≤ 2 $354
(plants < 2000 ft2)
Shucker-Packer 3 or more $533
(plants < 2000 ft2)
Shucker-Packer ≤ 2 $429
(plants 2000-5000 ft2)
Shucker-Packer 3 or more $644
(plants 2000-5000 ft2)
Shucker-Packer N/A $1,189
(plants > 5000 ft2)

(a) The number of harvest sites will be the total number of harvest sites on the licensed company's harvest site certificate:

(i) At the time of first licensure; or

(ii) January 1 of each year for companies licensed as harvesters; or

(iii) July 1 of each year for companies licensed as shellstock shippers and shucker packers.

(b) Two or more contiguous parcels with a total acreage of one acre or less is considered one harvest site.

(4) Annual PSP testing fees for companies harvesting ((subtidal)) geoduck (((below extreme low tide))) are as follows:


Harvester Fee
Department of natural resources (((leased)) quota tracts harvested by ((nontribal licensees)) DNR contract holders) $((17,178)) 9,987
Jamestown S'Klallam Tribe $((3,135))

10,442

Lower Elwah Klallam Tribe $((3,423))

1,249

Lummi Nation $454
Nisqually Indian Tribe $((4,316))

2,497

Port Gamble S'Klallam Tribe $((5,312))

5,675

Puyallup Tribe of Indians $((3,862))

3,859

((Skagit System Cooperative $555))
Skokomish Indian Tribe $((2,490))

908

Squaxin Island Tribe $((5,153))

4,994

Suquamish Tribe $((11,595)) 7,832
Swinomish Tribe $568
Tulalip Tribe $((981))

2,724

Chelsea Farms LLC DBA Duc's, Inc. $227
Seattle Shellfish $454
Taylor Shellfish Company, Inc. (Shelton) $795
Washington Shell Fish, Inc. $5,335

(5) PSP fees must be paid in full to department of health before a commercial shellfish license is issued or renewed.

(6) Refunds for PSP fees will be given only if the applicant withdraws a new or renewal license application prior to the effective date of the new or renewed license.

[Statutory Authority: RCW 43.70.250 and the 2002 supplemental operating budget. 02-15-094, 246-282-990, filed 7/16/02, effective 8/16/02. Statutory Authority: RCW 43.70.250, 70.90.150, and 43.20B.250. 01-14-047, 246-282-990, filed 6/29/01, effective 7/30/01. Statutory Authority: RCW 69.30.030 and 43.20.030. 01-04-054, 246-282-990, filed 2/5/01, effective 3/8/01. Statutory Authority: RCW 43.70.250. 00-02-016, 246-282-990, filed 12/27/99, effective 1/27/00; 99-12-022, 246-282-990, filed 5/24/99, effective 6/24/99. Statutory Authority: RCW 43.20B.020 and 69.30.030. 98-12-068, 246-282-990, filed 6/1/98, effective 7/2/98. Statutory Authority: RCW 43.203.020 [43.20B.020]. 97-12-031, 246-282-990, filed 5/30/97, effective 6/30/97. Statutory Authority: RCW 43.20B.020 and 69.30.030. 96-16-073, 246-282-990, filed 8/6/96, effective 10/1/96. Statutory Authority: RCW 43.70.040. 93-17-096 (Order 389), 246-282-990, filed 8/17/93, effective 9/17/93; 91-02-049 (Order 121), recodified as 246-282-990, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 43.20A.055. 85-12-029 (Order 2236), 440-44-065, filed 5/31/85; 84-13-006 (Order 2109), 440-44-065, filed 6/7/84; 83-15-021 (Order 1991), 440-44-065, filed 7/14/83. Statutory Authority: 1982 c 201. 82-13-011 (Order 1825), 440-44-065, filed 6/4/82.]

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