WSR 04-08-128

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed April 7, 2004, 9:40 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-10-102 and 03-24-104.

Title of Rule: The department is proposing to repeal chapter 16-400 WAC, Fruit and vegetable inspection fees and chapter 16-458 WAC, Fruit and vegetable inspection district boundaries, and replacing them with a new clearly [written] chapter 16-390 WAC, WSDA fruit and vegetable inspection districts, inspection fees and other charges, that contains increased hourly inspection rates, increased minimum inspection fees, increased phyto-sanitary inspection fees and adopts the hourly rates for audit time, administration time and applicable travel time related to good agricultural practices (GAP) and good handling practices (GHP) audit verification certificates established by USDA/AMS/FPB/FVP in the Terminal Market Inspection Services Schedules of Fees for Fresh Fruit and Vegetable, 7 C.F.R. Part 51 Subpart 38, which became effective on January 15, 2004.

Purpose: The purpose of this rule proposal is to increase the fruit and vegetable inspection program hourly inspection rates, minimum inspection fees and phyto-sanitary inspection fees so the fees charged more accurately reflect the actual costs of performing the necessary inspections. In addition, the department will adopt federal rates for GAP and GHP audits. Finally, the department is combining two current rule chapters into one clearly written chapter. NOTE: Current per unit (CWT) fees are not affected by this proposal.

Statutory Authority for Adoption: Chapter 15.17 RCW, chapter 25, Laws of 2003 1st sp.s. (ESSB 5404), and chapter 34.05 RCW.

Statute Being Implemented: Chapter 15.17 RCW and chapter 25, Laws of 2003 1st sp.s. (ESSB 5404).

Summary: See Purpose above.

Reasons Supporting Proposal: Despite implementing several cost cutting measures and working to expand participation in the customer assisted inspection program (CAIP), the fruit and vegetable inspection program finds that current inspection rates are well below the current costs incurred to conduct inspections. Consequently, the program, under the authority granted by chapter 25, Laws of 2003 1st sp.s. (ESSB 5404), is increasing the above described inspection rates and fees to a level that more accurately reflect the actual costs of performing hourly rate inspections. Without such increases, the program will be forced to curtail its services to the Washington state fresh fruit and vegetable industry because RCW 15.17.150 states: "The director shall adopt rules establishing the necessary fees to recover the costs of providing inspection and/or certification or other requested services."

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Quigley, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-1833.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: See Title of Rule and Reasons Supporting Proposal above.

Proposal Changes the Following Existing Rules: See Title of Rule and Reasons Supporting Proposal above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department conducted an economic impact survey to assess the potential cost impact of the proposed increase in hourly inspection rates. Three hundred and nineteen growers and/or shipper/packers were mailed an explanation of the proposal and a copy of an economic impact survey. Fifty-three of those surveyed responded (16.6%). Based upon the survey results, the department has concluded that the average new cost of twelve cents per hundred dollars of sales imposed by the department's rule proposal is not a "more than minor costs." Therefore, a small business economic impact statement, as discussed in chapter 19.85 RCW, is not required.

RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in RCW 34.05.328 (5)(a)(i).

Hearing Location: WSU Tree Fruit Research and Extension Center, 1100 North Western Avenue, Wenatchee, WA, on May 11, 2004, at 1:00 p.m.; and at the WSDA Yakima Office, Second Floor Conference Room, 21 North First Avenue, Yakima, WA, on May 12, 2004, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Virginia Walsh by May 3, 2004, TDD (360) 902-1996.

Submit Written Comments to: George Huffman, Rules Coordinator, Department of Agriculture, P.O. Box 42560, Olympia, WA, e-mail ghuffman@agr.wa.gov, fax (360) 902-2092, by close of business on May 12, 2004.

Date of Intended Adoption: May 18, 2004.

April 7, 2004

Robert W. Gore

Assistant Director

OTS-6838.2

Chapter 16-390 WAC

WSDA FRUIT AND VEGETABLE INSPECTION DISTRICTS, INSPECTION FEES AND OTHER CHARGES


NEW SECTION
WAC 16-390-005   What definitions are important to this chapter?   "Certification" means the issuance of an official document confirming the inspection results for grade, classification, condition, and the absence or presence of plant pests or diseases and/or other defects.

"Customer assisted inspection program (CAIP)" means a quality and/or condition inspection performed by industry with verification and oversight by WSDA.

"Department" means the Washington state department of agriculture (WSDA).

"Director" means the director of the department or the director's designated representative.

"Grade and condition certificate" means a document issued by the director of a certification confirming the results of an inspection.

"Inspection" means a review or examination of fruits and vegetables in order to determine quality, condition, and/or presence or absence of pests or diseases and/or other defects.

"Platform inspection" means any inspection and/or certification performed on a lot that has no defined per unit charges for the service.

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NEW SECTION
WAC 16-390-010   How many WSDA fruit and vegetable inspection districts are there?   The department has two fruit and vegetable inspection districts, which are:

(1) Fruit and vegetable inspection district two, which consists of Kittitas, Klickitat, Skamania, Yakima, Pacific, Lewis, Wahkiakum, Cowlitz, Clark, Benton, Franklin, Walla Walla, Columbia, Asotin, Whitman and Garfield counties; and

(2) Fruit and vegetable inspection district four, which consists of Grays Harbor, Jefferson, Clallam, Island, Mason, Kitsap, Pierce, Thurston, King, Snohomish, Skagit, Grant, Adams, Ferry, Pend Oreille, Stevens, Spokane, Lincoln, San Juan, Whatcom, Chelan, Douglas and Okanogan counties.

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NEW SECTION
WAC 16-390-020   What are the fees for grade and condition certificates for fruit?   WSDA fees for grade and condition certificates for all fruits are:

(1) A minimum charge of sixteen dollars.

(2) The fees for federal-state grade and condition certificates of all fresh market apples, pears, and soft fruits in containers (wrapped, place pack, face and fill), bags, master containers, consumer packages, or loose in bulk cartons, boxes, crates, bins, or bags are listed in the following table:


Type of Fruit Fees per CWT or Fraction Thereof
Apples $0.155
Apricots, cherries, nectarines and peaches $0.21
Pears $0.12
Plums, prunes, other soft fruits, grapes and berries

$0.16

(3) The fees for state grade and condition certification of all fresh market apples, and pears that are in containers (wrapped, place pack, face and fill), bags, master containers, consumer packages, or loose in bulk cartons, boxes, crates, bins, or bags are listed in the following table:


Type of Fruit Fees per CWT or Fraction Thereof
Apples $0.145
Pears $0.11

(4) The department charges a fee of two dollars and fifty cents per ton net weight (or fraction thereof) for all apples, pears, stone fruits, berries, and grapes in bulk or in containers that are inspected for processing.

(5) The department charges a fee of thirty-two dollars per hour, with a minimum certificate charge of sixteen dollars, when an inspection is requested only to verify the product, conveyance, markings, or other factors not related to quality.

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NEW SECTION
WAC 16-390-030   What are the fees for grade and condition certificates for vegetables?   WSDA fees for grade and condition certificates for all vegetables are:

(1) A minimum charge of sixteen dollars.

(2) The fees for federal-state grade and condition certificates for all fresh market vegetables in containers (wrapped, place pack, face and fill), bags, master containers, consumer packages, or loose in bulk cartons, boxes, crates, bins, or bags are listed in the following table:


Type of Vegetables Fees per CWT or Fraction Thereof
Asparagus $0.21
Cantaloupes and corn $0.125
Onions $0.08
Potatoes $0.06
In-state processing potatoes $0.06
Complete inspection Rate shall be reduced for the level of service required
Tomatoes $0.19

(3) The fee for state grade and condition certification of all fresh market asparagus in containers (wrapped, place pack, face and fill), bags, master containers, consumer packages, or loose in bulk cartons, boxes, crates, bins, or bags is listed in the following table:


Type of Vegetable Fee per CWT or Fraction Thereof
Asparagus $0.19

(4) For the inspection of vegetables not listed, the department charges a fee of thirty-two dollars per hour.

(5) The department charges a fee of two dollars fifty cents per ton net weight (or fraction thereof) for the inspection of vegetables to be processed, whether in bulk or in containers.

(6) When an inspection is requested only to verify the product, conveyance, markings, or other factors not related to quality, the department charges the rate of thirty-two dollars per hour, with a minimum certificate charge of sixteen dollars.

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NEW SECTION
WAC 16-390-040   What are the fees for grade and condition certificates for fruits and vegetables inspected under the customer assisted inspection program (CAIP)?   WSDA fees for grade and condition certificates for all fruits and vegetables issued under the customer assisted inspection program (CAIP) are:

(1) A minimum charge of sixteen dollars.

(2) The fees for federal-state grade and condition certificates for all fresh market fruits and vegetables in containers (wrapped, place pack, face and fill), bags, master containers, consumer packages, or loose in bulk cartons, boxes, crates, bins, or bags are:


Type of Fruit or Vegetable Fees per CWT or Fraction Thereof
Fresh potatoes Three and one-half cents per cwt., with a minimum charge of thirty-two dollars per hour for each staff hour worked.
All other fresh market fruits and vegetables Three-fourths of the cwt. rates specified in WAC 16-390-020(2) and 16-390-030(2) but not less than the equivalent rate of thirty-two dollars per staff hour worked. If the cwt. rate results in an inspection fee that is less than the equivalent of thirty-two dollars per staff hour worked, the department will assess additional certification charges. For example, if an inspection takes three staff hours ($96.00) to complete and the cwt. rate results in a fee of $85.00, the department will assess additional certification charges of $11.00.

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NEW SECTION
WAC 16-390-060   What are the fees for inspecting beans, peas, lentils, hay and straw?   Inspection fees for beans, peas, lentils, hay, and straw are found in the following rule sections:

WAC Section Title
WAC 16-239-071 Straight time rate.
WAC 16-239-0902 Fees for official sampling and inspecting without weighing and fees for official sampling only.
WAC 16-239-0904 Fees for other official weighing services.
WAC 16-239-0905 Fees for inspection of submitted samples.
WAC 16-239-0906 Fees for factor analysis.
WAC 16-239-0909 Fees for other stowage examination services.
WAC 16-401-023 Schedule of fees and charges -- Establishing hourly rates.

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NEW SECTION
WAC 16-390-100   What are the fees for fruit and vegetable certificates?   As shown in the following table, WSDA certificate fees vary with the type of certificate requested:


Type of Certificate Requested Fee
Consolidation certificates Fees are specified in WAC 16-390-020 and 16-390-030 with an added charge of three dollars for each additional lot.
Condition certificates for previously inspected lots Fee is two-thirds of the fee charged for grade and condition certificates, with a minimum charge of sixteen dollars.
Condition certificates for lots not previously inspected for quality or grade with a request that the certificate carry out-bound car, truck, or state lot number Fees are based upon the applicable grade and condition certificate schedules.
Out-of-state products reported on state certificates Fees are based either upon the applicable grade and condition certificate schedule or a charge of thirty-two dollars per hour whichever is greater.
A state condition certificate or quality control inspection for previously certified controlled atmosphere storage apple lots A state condition certificate or quality control inspection may be issued without additional charge.
Sanitary and quarantine certificates for fruits and vegetables Sixteen dollars for issuing a certificate, plus the hourly rates specified in WAC 16-390-200(1) when the shipment is not covered by federal-state or state certificates.
Container weight, or check loading certificates Fee is charged at the rates specified in WAC 16-390-200(1).

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NEW SECTION
WAC 16-390-150   What requirements apply to shipping permits and certificates of compliance for fruits and vegetables?   (1) Each shipment of apples, apricots, Italian prunes, peaches, pears, dark sweet cherries, Rainier cherries and asparagus must be covered by a shipping permit. All other sweet cherries, whether certified or not, must have a shipping permit indicating freedom from cherry fruit fly larvae.

(2) Shipments of apricots, cherries, peaches, prunes, and asparagus to processors do not require a shipping permit.

(3) A permit or certificate of compliance may be issued without additional charge if the lot is certified.

(4) If the lot has not been certified, a permit or certificate of compliance may be issued based upon the following charges:

(a) The minimum charge for a permit or certificate of compliance is two dollars fifty cents.

(b) Two-thirds of the rate for federal-state or state grade and condition certificates applies.

(c) A permit to ship apples and/or pears to a by-product plant outside the state is three dollars.

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NEW SECTION
WAC 16-390-200   What are the fees for platform inspection services?   (1) Fees for platform inspections, taking samples, extra time, phytosanitary and/or quarantine inspection, and all other platform services are charged at the rate of thirty-two dollars per hour.

(2) When a platform inspector is working full time at one house and is also doing certification inspections, the inspector must allow credit, according to the limits outlined in the schedule for such inspections, for the time spent on the inspection at the rate of thirty-two dollars per hour.

(a) Platform fees will not be assessed if the certificate cwt. fee divided by the respective hourly rates is equal to or exceeds the number of hours worked.

(b) Platform fees will be assessed if the certificate cwt. fee divided by the respective hourly rates is less than the number of hours worked. The amount assessed will be sufficient to make the total fee equal to the number of hours worked multiplied by the thirty-two dollars per hour rate.

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NEW SECTION
WAC 16-390-210   What is the fee for supervising fumigations?   (1) The minimum fee for supervising fumigation shall be equivalent to one and one-half hours specified in WAC 16-390-200(1) for the master fumigation certificate. Additional certificates issued from this master certificate will cost sixteen dollars each.

(2) The department will charge for any additional stand-by time at the rate specified in WAC 16-390-200(1).

(3) In facilities that are either temporary or without adequate devices for maintaining acceptable treatment temperatures, fumigations must not start after:

(a) 3:00 p.m. from October 1 to May 31; or

(b) 10:00 p.m. from June 1 to September 30.

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NEW SECTION
WAC 16-390-220   What is the fee for a field or orchard inspection?   The fee for field or orchard inspections made at the applicant's request to determine the presence or absence of disease or insect infestation, or for some other reason is:

(1) Two dollars and fifty cents per acre or fraction thereof; or

(2) At the platform inspection rate specified in WAC 16-390-200(1).

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NEW SECTION
WAC 16-390-230   What is the fee for an apple pest certification?   The fee for apple pest certification, using the survey method, on all fresh apples produced in Washington state or marketed under Washington state grades and standards, is $.0075 per cwt. or fraction thereof.

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NEW SECTION
WAC 16-390-240   What is the fresh produce audit verification program?   A Federal-state inspection service program that reviews and verifies a participating company's facility and agronomic practices, along with its documented procedures, to help determine if "good agricultural practices" and "good handling practices" are maintained.

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NEW SECTION
WAC 16-390-242   What charges does the department assess for fruit and vegetable audit verification certificates issued under the fresh produce audit verification program?   Charges assessed by the department for good agricultural practices (GAP) and good handling practices (GHP) audit verification certificates issued under the fresh produce audit verification program are as follows:

(1) Audit time, administration time and applicable travel time is charged at the hourly rate established by USDA/AMS/FPB/FVP the Schedule of Fees for Fresh Fruit and Vegetable Terminal Market Inspection Services, 7 CFR Part 51 Subpart 38, which became effective on January 15, 2004.

(2) Mileage related to GAP and GHP audit services is charged at the rate established by the office of financial management (OFM) at the time the service was performed.

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NEW SECTION
WAC 16-390-245   What requirements apply to certifications using USDA positive lot identification?   (1) Certification fees using USDA positive lot identification are based upon the rates specified in WAC 16-390-020, 16-390-030, 16-390-040, 16-390-100, 16-390-200, 16-390-210, 16-390-250 and 16-390-260.

(2) The department may add an additional charge of ten percent if an inspector is required to be on-site when no other inspections are requested.

(3) The department responds to requests for positive lot identification services in the following order:

(a) First priority is given to those situations where positive lot identification is a mandatory condition of a sales transaction.

(b) All other requests will be honored based upon adequate notice to the inspection service and the availability of inspectors.

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NEW SECTION
WAC 16-390-250   What miscellaneous inspection and certification fees does WSDA charge?   (1) Department services provided to other agencies, commissions, and organizations are charged at the rate of thirty-two dollars per hour.

(2) The charge for mileage related to inspection and certification services is at the rate established by the office of financial management (OFM) at the time the service was performed.

(3) The department may charge for telegrams, facsimile, or electronic transmission of inspection documents at the rate of four dollars per transmission in addition to any Western Union charges made directly to the applicant.

(4) The cost of extra copies of original documents is four dollars per set.

(5) The department may charge twenty-five cents per copy for Xerox copies of inspectors' notes, certificates or related documents.

(6) When, through no fault of the inspection service, it is necessary to retype or reissue a document, the cost of retyping or reissuing the document is four dollars per set.

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NEW SECTION
WAC 16-390-260   Does the department assess extra charges for the inspection and certification services it provides?   The department does assess extra charges on services provided according to the following:

(1) The minimum inspection charge for each commodity and requested document is sixteen dollars.

(2) If, through no fault of the inspection service, excess time is required over the maximum time allowed (as supported by unit rates for each commodity and requested document) the excess time is charged at the rate of thirty-two dollars per hour.

(3)(a) For all inspection services performed beyond a regularly scheduled eight-hour week day shift or on Saturdays, or Sundays, or state legal holidays, a rate equivalent to forty-two dollars will be charged for actual hours spent in performance of duties. Such charges include unit charges, plus, if necessary, overtime charges to equal the respective overtime hourly rates.

(b) The following are state legal holidays:


Holiday Date
New Year's Day January 1
Martin Luther King, Jr. Day Third Monday in January
Presidents' Day Third Monday in February
Memorial Day Last Monday of May
Independence Day July 4
Labor Day First Monday in September
Veteran's Day November 11
Thanksgiving Day Fourth Thursday in November
Day following Thanksgiving Day Fourth Friday in November
Christmas Day December 25

(4) Additional hourly or overtime charges will not be assessed when the per unit inspection charge in any one day equals or exceeds the basic hourly and/or overtime charge.

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NEW SECTION
WAC 16-390-270   Can the department waive fruit and vegetable inspection fees?   The department may waive inspection fees for fruits and vegetables donated to bona fide nonprofit organizations if the shipping containers are conspicuously labeled or marked "not for resale."

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NEW SECTION
WAC 16-390-280   What requirements apply to the payment and collection of fruit and vegetable fees and charges?   (1) All fees and charges for services rendered are due within thirty days after the date of the billing statement you receive from the department.

(2) If your payment is not received within thirty days, service may be withheld until your delinquent account is paid.

(3) If your account is delinquent, the department may require that you pay cash for subsequent services.

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

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OTS-6839.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 16-400-007 Definition.
WAC 16-400-008 Reduction of inspection fees levied under this chapter.
WAC 16-400-010 Grade and condition certificates -- Fruits.
WAC 16-400-040 Grade and condition certificates -- Vegetables.
WAC 16-400-045 Grade and condition certificates -- Customer assisted inspection program (CAIP) certification charges -- Fruits and vegetables.
WAC 16-400-060 Certificate charges -- Other agricultural commodities.
WAC 16-400-100 Certificates.
WAC 16-400-150 Shipping permits and certificates of compliance -- Fruits and vegetables.
WAC 16-400-210 Other charges.
WAC 16-400-270 Copies.

OTS-6840.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 16-458-075 Fruit and vegetable district two.
WAC 16-458-085 Fruit and vegetable district four.

Legislature Code Reviser 

Register

Washington State Code Reviser's Office