WSR 09-09-107

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed April 21, 2009, 7:40 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: Fryers, broilers and roasters, chapter 16-512 WAC.

Hearing Location(s): Washington State Department of Agriculture, Natural Resources Building, 1111 Washington Street S.E., Conference Room 205, Olympia, WA 98504-2560, on May 26, 2009, at 1:30 p.m.

Date of Intended Adoption: July 27, 2009.

Submit Written Comments to: Kelly Frost, P.O. Box 42560, Olympia, WA 98504-2560, e-mail kfrost@agr.wa.gov, fax (360) 902-2092, by 5:00 p.m., May 27, 2009.

Assistance for Persons with Disabilities: Contact WSDA receptionist by May 15, 2008 [2009], TTY 1-800-833-6388 or (360) 902-1976.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 16-512-040 Assessments and assessment funds, decrease the assessment rate from .35 of one cent per pound live weight to .10 of one cent per pound live weight on all fryers, roasters and broilers under the age of six months. Growers will have the opportunity to approve or reject the proposed decrease through referendum.

Reasons Supporting Proposal: The need for the Washington fryer commission to maintain its current assessment rate has decreased over the years. In the 1990's, Washington State University cut the poultry program which negated the opportunity for research unique to the poultry industry in Washington. A few years ago, the two remaining processors of Washington-grown chicken opted to combine the state of origin information with Oregon's which eliminated the "Grown in Washington" brand. Prior to that change the marketing and promotional efforts were the primary expenditure for the commission. Instead, the commission will now mainly focus on assisting growers with maintaining their business, consumer outreach, regulatory services and legislative activities. These changes will implement the petition received from the fryer commission in accordance with RCW 15.66.050.

Statutory Authority for Adoption: RCW 15.66.055 and chapter 34.05 RCW.

Statute Being Implemented: Chapter 15.66 RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Any rule proposal that results from this rule-making process will not be adopted unless the proposed rules are also approved in a referendum of affected fryer producers pursuant to chapter 15.66 RCW.

Name of Proponent: Washington state fryer commission, governmental.

Name of Agency Personnel Responsible for Drafting: Kelly Frost, P.O. Box 42560, Olympia, WA 98504, (360) 902-1802; Implementation and Enforcement: Sue Broderick, 2003 Maple Valley Highway, #212, Renton, WA 98055, (425) 226-6125.

No small business economic impact statement has been prepared under chapter 19.85 RCW. In accordance with RCW 15.66.053, the adoption of the final amendments to chapter 16-512 WAC will be determined by a referendum vote of affected parties.

A cost-benefit analysis is not required under RCW 34.05.328. The department of agriculture and the Washington fryer commission are not named agencies in RCW 34.05.328 (5)(a)(i).

Kelly Frost

Commodity Commission

Coordinator

OTS-2321.1


AMENDATORY SECTION(Amending WSR 04-07-128, filed 3/22/04, effective 4/22/04)

WAC 16-512-040   Assessments and assessment funds.   (1) Assessments levied. On and after the effective date of this amendment, there is hereby levied and there shall be collected by the commission as provided in the act, upon all fryers, roasters and broilers under the age of 6 months, an assessment of ((.35)) .10 of one cent per lb. live weight. Such assessment shall be paid by the producer thereof upon each and every pound of fryers, roasters, or broilers sold, delivered for sale or processed by him or her: Provided, That no assessment shall be collected on the following:

(a) Sales on a producer's premises by a producer direct to a consumer of thirty pounds or less of fryers from a producer's own production;

(b) Fryers of a producer's own production used by him for personal consumption; or

(c) Fryers donated or shipped for relief or charitable purposes.

No assessment levied or made collectable by the act under this order shall exceed three percent of the total market value of all such fryers sold, processed or delivered for sale or processing by all producers of fryers for the fiscal year to which the assessment applies.

(2) Collection of assessment.

(a) All assessments made and levied pursuant to the provisions of the act under this marketing order shall apply to the respective producer who shall be primarily liable therefor. To collect assessments, the commission may require:

(i) Stamps to be known as "Washington fryer commission stamps" to be purchased from the commission and fixed or attached to the containers, invoices, shipping documents, inspection certificates, releases or receiving receipts or tickets. Any stamps shall be canceled immediately upon being attached or fixed and the date of the cancellation shall be placed thereon;

(ii) Payment of producer assessments before the fryers are shipped off the farm or payment of assessments at different or later times and in that event, any person subject to the assessments shall give adequate assurance or security for its payment as the commission shall require.

(iii) Every producer subject to the assessment under this order to deposit with the commission in advance an amount based on the estimated number of affected units upon which the person will be subject to assessments in any one year during which this marketing order is in force, but in no event shall a deposit exceed twenty-five percent of the estimated total annual assessment payable by the person. At the close of the marketing season the sums so deposited shall be adjusted to the total of assessments payable by the person.

(iv) Handlers receiving fryers from the producer, including warehousemen and processors, to collect producer assessments from producers whose production they handle and all moneys so collected shall be paid to the commission on or before the twentieth day of the succeeding month for the previous month's collections. Each handler shall at times required by rule, file with the commission a return under oath on forms to be furnished by the commission, stating the quantity of fryers handled, processed, delivered and/or shipped during the period prescribed by the commission.

(b) The commission is authorized to adopt rules in accordance and conformity with the act and with this section to effectuate the collection of assessments. On or before the beginning of each marketing season, the commission shall give reasonable notice to all producers, handlers and other affected persons of the method or methods of collection to be used for that marketing season.

(c) No affected units of fryers shall be transported, carried, shipped, sold, stored or otherwise handled or disposed of until every due and payable assessment herein provided for has been paid and the receipt issued or stamp canceled, but no liability hereunder shall attach to common carriers in the regular course of their business. When any fryers for which exemption as provided in subsection (1) of this section is claimed are shipped either by railroad or truck, there shall be plainly noted on the bill of lading, shipping document, container or invoice, the reasons for the exemptions.

(d) Any producer or handler who fails to comply with the provisions of this section as herein provided shall be guilty of a violation of this order.

(3) Funds.

(a) Moneys collected by the fryer commission pursuant to the act and this marketing order as assessments shall be used by the commission only for the purposes of paying for the costs or expenses arising in connection with carrying out the purposes and provisions of the act and this marketing order.

(b) At the end of each fiscal year the commission shall credit each producer with any amount paid by such producer in excess of three percent of the total market value of all fryers sold, processed, delivered for sale or processing during that period. Refund may be made only upon satisfactory proof given by the producer, which may include bills of lading, bills of sale, or receipts.

[Statutory Authority: RCW 15.66.030, 15.66.053, 15.66.055. 04-07-128, 16-512-040, filed 3/22/04, effective 4/22/04. Statutory Authority: Chapter 15.66 RCW. 80-14-020 (Order 1714), 16-512-040, filed 9/24/80, effective 11/1/80; Marketing Order, Article IV, effective 4/15/57.]

Washington State Code Reviser's Office