Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-15-092.

     Title of Rule and Other Identifying Information: The department proposes to make amendments to chapter 16-461 WAC, Inspection requirements for fruits and vegetables. The proposed change will remove WAC 16-461-010 (2)(b), which is the exemption for issuing a certificate of compliance between horticulture facilities other than those which sell at wholesale or retail. Minor changes are also proposed for WAC 16-461-010 to update the WAC references and increase its clarity.

     Hearing Location(s): Tree Fruit Research Center, Large Conference Room, 1100 North Western Avenue, Wenatchee, WA 98801, on Tuesday, October 23, 2007, at 1:00 p.m. (park on Western); and at the WSDA Yakima Office, Conference Room 238 (Primary Conference Room), Suite 226, 21 North First Avenue, Yakima, WA 98902, on Wednesday, October 24, 2007, at 1:00 p.m.

     Date of Intended Adoption: November 20, 2007.

     Submit Written Comments to: Maryann Connell, Division Coordinator, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, e-mail mconnell@agr.wa.gov, fax (360) 902-2085, by 5:00 p.m. on October 24, 2007.

     Assistance for Persons with Disabilities: Contact Virginia Walsh by October 3, 2007, (360) 902-1976, TTY 800-833-6388.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Currently, the rule allows for an exemption of the issuance of certificates of compliance when lots are transferred between warehouses. The current rule allows for the potential for duplicate reporting and duplicate inspection fees and assessments. Removing the exemption at WAC 16-461-010 (2)(b) will require a certificate of compliance be issued for each individual load, even when shipped from one individual warehouse to another. The new process would mitigate the potential for duplicate reporting and duplicate inspection fees and assessments. Minor changes are also proposed for WAC 16-461-010 to update the WAC references and increase its clarity.

     Reasons Supporting Proposal: The new process would mitigate the potential for duplicate reporting and duplicate inspection fees and assessments.

     Statutory Authority for Adoption: Chapter 15.17 RCW, Standards of grades and packs and chapter 34.05 RCW, Administrative Procedure Act.

     Statute Being Implemented: Chapter 15.17 RCW, Standards of grades and packs.

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

     Name of Proponent: Washington state department of agriculture, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Quigley, Program Manager, P.O. Box 42560, Olympia, WA 98504-2560, (360) 902-1833.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires an agency to prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on the business in an industry. The proposed change would not impose "more than minor impact" upon the regulated industry.

     RCW 19.85.040(1) requires that an agency determine whether the proposed rule will have a disproportionate impact on small businesses by comparing the cost of compliance for small business with the cost of compliance for the 10% of businesses that are the largest businesses required to comply. The proposed change would not impose "more than minor impact" upon the regulated industry.

     A cost-benefit analysis is not required under RCW 34.05.328. Washington state department of agriculture is not a named agency in RCW 34.05.328.

September 17, 2007

Dennis Hannapel

Assistant Director

OTS-1044.1

AMENDATORY SECTION(Amending WSR 06-12-116, filed 6/7/06, effective 7/8/06)

WAC 16-461-010   Inspection certificate and/or permit required.   (1) No person shall ship, transport, accept for shipment, or accept delivery of, any commercial lot of the following agricultural products without an inspection and the issuance of a certificate and/or a permit by the ((plant services)) commodity inspection division of the department of agriculture allowing such shipment, movement or delivery:

     (a) Apricots(( - )) in closed or open containers for fresh market.

     (b) Italian prunes(( - )) in closed or open containers for fresh market.

     (c) Peaches(( - )) in closed or open containers for fresh market.

     (d) Cherries(( - )) in closed or open containers for fresh market((: Provided, That no)). No permit ((shall)) will be issued on cherries infested with live cherry fruit fly larvae.

     (e) Apples(( - )) in closed or open containers for fresh market((: Provided, That)).

     (i) Apples may be shipped or transported if accompanied by a certificate of compliance issued by the shipper or packer of apples having the approval of the director to issue the certificates of compliance.

     (ii) Apples of the Red Delicious and Delicious varieties must be certified as to quality and condition and must meet all the requirements of chapter 16-403 WAC, Standards for apples marketed within the state of Washington. Apples of the Red Delicious and Delicious varieties not allowed to enter channels of commerce within twenty-one days following the original date of inspection as indicated by a state lot stamp, will require recertification for meeting the minimum firmness requirement as stated in WAC 16-403-142.

     (f) Pears(( - )) in closed or open containers for fresh market((: Provided, That)). Pears may be shipped or transported if accompanied by a certificate of compliance issued by the shipper or packer of pears having the approval of the director to issue the certificates of compliance.

     (g) Asparagus(( - )) in closed or open containers for fresh market((: Provided, That)). Asparagus may be shipped or transported if accompanied by a certificate((s)) of compliance issued by the shipper or packer of the asparagus((,)) having the approval of the director to issue the certificates of compliance.

     (h) Apples in containers or bulk, for processing((: Provided, That)).

     (i) Apples for processing may be shipped or transported if accompanied by a certificate of compliance issued by the shipper of apples having the approval of the director to issue the certificates of compliance((: Provided further, That)).

     (ii) Apples for processing entering ((intrastate)) in-state commerce ((shall)) do not require a permit.

     (i) Pears in containers or bulk, for processing((: Provided, That)).

     (i) Pears for processing may be shipped or transported if accompanied by a certificate of compliance issued by the shipper of pears having the approval of the director to issue the certificates of compliance((: Provided further, That)).

     (ii) Pears for processing entering ((intrastate)) in-state commerce ((shall)) do not require a permit.

     (2) ((Exemptions - )) Fruits and vegetables listed in WAC 16-461-010 ((shall be)) are exempted from requirements for inspection and issuance of a certificate or permit:

     (a) When the product is being transported from the premises where grown or produced to a horticultural facility other than wholesale or retail for the purpose of storing, grading, packing, packaging, ((labelling)) labeling, or processing((;)) prior to entering commercial channels for resale((;)).

     (b) ((When transportation is between horticultural facilities other than those facilities which sell at wholesale or retail level, for the purposes set forth in (a) of this subsection;

     (c))) When sold or transported to a fruit/produce stand within the zone of production, not to exceed daily quantities of two thousand pounds net weight of a single commodity nor six thousand pounds net weight of any combination of commodities other than cherries, listed in subsection (1) of this section, when on a single conveyance((, provided that such)). Exempt sales by the producer within a farmer's market shall not be restricted to the zone of production((;)).

     (((d))) (c) When daily quantities do not exceed one hundred pounds net weight of dark or light sweet varieties of sweet cherries ((which are)) sold for home use and not for resale, and the containers are marked "not for resale" in letters at least one-half inch in height.

     (3)(a) Any shipper or packer of apples, apricots, cherries, pears, peaches, prunes, or asparagus may petition the director for authority to issue certificates of compliance for each season. The director may issue certificate of compliance agreements, granting ((such)) authority, on ((such)) terms and conditions ((as he may)) that the director deems appropriate. The authority shall be limited to the issuance of certificates of compliance for apples, apricots, cherries, pears, peaches, prunes, and asparagus under the applicant's direct control or being handled at the shipper's or packer's facilities.

     (b) The certificate of compliance shall be issued at time of shipment by the shipper or packer authorized to do so((: Provided, That the)).

     (i) Apples, pears, cherries, and asparagus about to be shipped or transported ((are)) must be in full compliance with the requirements of chapter 15.17 RCW, ((regulations adopted thereunder)) Standards of grades and packs, rules adopted under chapter 15.17 RCW, and administrative directives of the director((: Provided further, That)).

     (ii) Apricots, cherries, peaches, prunes, or pears about to be shipped or transported ((are)) must be in full compliance with an existing federal marketing order requiring quality and condition certification and Washington state lot identification or federal-state lot identification((;)).

     (iii) Cherries of the dark sweet varieties ((shall)) must be certified as to quality, condition, and size and shall meet all of the requirements of chapter 16-414 WAC, Washington standards for cherries. Cherries of the Rainier variety or other varieties of "light colored sweet cherries" ((shall)) must meet only the requirements of WAC 16-414-005 "mature" and WAC 16-414-011(3) size requirement.

     (c) The director's approval to issue certificates of compliance may be suspended, revoked, or denied for cause, subject to RCW 34.05.422(3) ((and that)). Cause shall be the shipper's or packer's failure to comply with the requirements of subsection (3)(b) of this section, or for the shipper's or packer's actions which impede the department's abilities to ascertain full compliance with requirements of chapter 15.17 RCW, Standards of grades and packs, or rules adopted ((thereunder)) under chapter 15.17 RCW, or for violation of the terms of the certificate of compliance agreement. The period of any suspension ((shall)) will be determined by the director and ((shall)) will be commensurate with the seriousness of the violation.

     (d) Any shipper or packer whose authority to issue certificates of compliance has been suspended, revoked, or denied by the director ((shall)) will be subject to those provisions of chapter 15.17 RCW and the regulations requiring the issuance of a shipping permit by the director before apples, apricots, cherries, pears, peaches, prunes, and asparagus may be shipped or transported.

     (e) Certificates of compliance ((shall)) must be on forms approved and issued by the director of agriculture.

     (f) Any shipper or packer authorized to issue certificates of compliance shall deposit with the director of agriculture ((at)) the regular base fee equivalent to that charged by the director for a shipping permit((,)) for each certificate of compliance issued by the authorized shipper or packer. The base fees shall be deposited with the director of agriculture in the same manner as fees for shipping permits.

[Statutory Authority: Chapters 15.17 and 34.05 RCW. 06-12-116, § 16-461-010, filed 6/7/06, effective 7/8/06. Statutory Authority: Chapter 15.17 RCW. 99-14-036, § 16-461-010, filed 6/29/99, effective 7/30/99; 95-13-038, § 16-461-010, filed 6/14/95, effective 7/15/95; 92-18-103, § 16-461-010, filed 9/2/92, effective 10/3/92; 92-06-085, § 16-461-010, filed 3/4/92, effective 4/4/92; 83-06-050 (Order 1788), § 16-461-010, filed 3/1/83; Order 1523, § 16-461-010, filed 4/20/77; Order 1324, § 16-461-010, filed 8/3/73; Order 1122, § 16-461-010, filed 5/5/72, effective 6/5/72; Order 1122, § 16-461-010, filed 8/23/71; Order 1122, § 16-461-010, filed 5/29/70, effective 7/1/70; Order 1122, § 16-461-010, filed 8/14/69, effective 9/14/69; Order 1098, § 16-461-010, filed 8/30/68, effective 9/30/68; Order 968, filed 3/26/65.]

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