WSR 04-11-098

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed May 19, 2004, 8:36 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 a 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 paralytic shellfish poisoning (PSP) testing of commercially harvested shellfish. The proposed rule has two elements: The annual realignment of geoduck PSP fees, and refunding $28,800 in unspent fiscal year 2003 fees in the form of a reduction in both the geoduck and intertidal fees. This results in lower fees for most, but raises fees for some geoduck harvesters over 601 limits. Authority to exceed 601 limits was approved by the legislature in the 2003-2005 budget cycle.

Statutory Authority for Adoption: RCW 43.70.250.

Statute Being Implemented: RCW 43.70.250.

Summary: This proposed revision realigns the geoduck PSP fee using 2003 data; it also refunds 2003 unspent funds to shellfish companies in the form of reduced fees.

Reasons Supporting Proposal: The proposed fees provide the revenue necessary for DOH to conduct testing for PSP in commercial shellfish. This testing is essential to public health as it is the only means available to determine if dangerous levels of PSP exist in commercial shellfish and ensures toxic shellfish do not reach consumers.

Name of Agency Personnel Responsible for Drafting: Jan Jacobs, New Market Center, Building 4, Tumwater, (360) 236-3316; Implementation and Enforcement: Jennifer Tebaldi, New Market Center, Building 4, Tumwater, (360) 236-3325.

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: The proposed rule has two distinct elements:

Realigning Geoduck PSP Fees: The method of calculating the geoduck PSP fees was developed in cooperation with the geoduck industry and the Washington treaty tribes.

Geoduck PSP fees are based on the total cost of service. The specific fees are calculated by dividing the number of tests done for each entity by the total number of geoduck PSP tests performed in the prior year. The resulting percentage is then multiplied by the total cost of service, which provides the fee for the current license year.

The current geoduck PSP fees listed in WAC are based on 2002 data, i.e., the entities that submitted geoduck tests in 2002 and the total number of tests performed. This proposed revision seeks to update the geoduck PSP fees based on 2003 data, and allows the inclusion of companies, not on the current fee schedule, that began harvesting geoduck and submitting samples for PSP testing in 2003.

This redistribution is revenue neutral. However, while reducing some fees, the redistribution will increase others over I-601 limits. Authority to exceed I-601 limits was approved by the legislature in the 2003 biennial budget.

Refunding FY03 Unspent Fees: Both the geoduck PSP fees and intertidal PSP fees are based on recovering 100% of the cost of the PSP testing at the public health lab in Seattle. At the onset of PSP fee assessment, DOH promised the shellfish industry that any unspent PSP fees would be refunded to them in the form of lowered fees in a subsequent year. The lab requires $126,000 per year to cover the costs of commercial PSP testing. In fiscal year 2003, however, the lab's expenditures were down due to staff vacancies and associated costs, which resulted in an under expenditure of $28,800 of the total PSP fees collected. This proposed revision will result in the refund of those unspent funds to shellfish companies in the form of reduced fees.

Proposal Changes the Following Existing Rules: The proposed rule restructures fees assessed to shellfish operations to pay for PSP testing of commercially harvested shellfish. It allows for the inclusion of all entities submitting geoduck PSP samples to share the cost of that service, and refunds unspent fees collected the previous year in the form of reduced fees for both geoduck and intertidal harvesters.

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, Point Plaza East, Room 153, 310 Israel Road S.E., Tumwater, WA 98501, on June 24, 2004, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Jan Jacobs by 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 June 24, 2004.

Date of Intended Adoption: June 26, 2004.

May 17, 2004

M. C. Selecky

Secretary

OTS-7170.2


AMENDATORY SECTION(Amending WSR 03-18-093, filed 9/2/03, effective 10/3/03)

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 $10.30.

(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)) 133
Harvester 3 or more $((259)) 199
Shellstock Shipper ≤ 2 $((195)) 150
0 - 49 acres
Shellstock Shipper 3 or more $((292)) 225
0 - 49 acres
Shellstock Shipper N/A $((468)) 360
50 or greater acres
Shucker-Packer ≤ 2 $((354)) 273
(plants < 2000 ft2)
Shucker-Packer 3 or more $((533)) 410
(plants < 2000 ft2)
Shucker-Packer ≤ 2 $((429)) 330
(plants 2000-5000 ft2)
Shucker-Packer 3 or more $((644)) 496
(plants 2000-5000 ft2)
Shucker-Packer N/A $((1,189)) 916
(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 geoduck are as follows:


Harvester Fee
Department of natural resources (quota tracts harvested by DNR contract holders) $((9,987)) 6,393
Jamestown S'Klallam Tribe $((10,442)) 3,324
Lower Elwah Klallam Tribe $((1,249)) 1,449
Lummi Nation $((454)) 341
Nisqually Indian Tribe $((2,497)) 2,216
Port Gamble S'Klallam Tribe $((5,675)) 3,324
Puyallup Tribe of Indians $((3,859)) 3,239
Skokomish Indian Tribe $((908)) 171
Squaxin Island Tribe $((4,994)) 2,898
Suquamish Tribe $((7,832)) 8,610
Swinomish Tribe $((568)) 256
Tulalip Tribe $((2,724)) 1,449
((Chelsea Farms LLC DBA Duc's, Inc. $227))
Discovery Bay Shellfish $171
Seattle Shellfish $((454)) 5,285
Taylor Shellfish Company, Inc. (Shelton) $((795)) 2,728
Washington Shell Fish, Inc. $((5,335)) 2,898

(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. 03-18-093, 246-282-990, filed 9/2/03, effective 10/3/03. Statutory Authority: RCW 43.70.250 and 34.70.250 [43.70.250]. 03-14-037, 246-282-990, filed 6/23/03, effective 7/24/03. 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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