Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-07-104.

     Title of Rule and Other Identifying Information: Chapter 314-64 WAC, amending WAC 314-64-020, 314-64-040, 314-64-050, and 314-64-08001.

     Hearing Location(s): Washington State Liquor Control Board, Board Room, 3000 Pacific Avenue S.E., Lacey, WA 98504, on June 10, 2009, at 10:00 a.m.

     Date of Intended Adoption: June 17, 2009.

     Submit Written Comments to: Karen McCall, P.O. Box 43080, Olympia, WA 98504-3080, e-mail rules@liq.wa.gov, fax (360) 664-9689, by June 10, 2009.

     Assistance for Persons with Disabilities: Contact Karen McCall by June 10, 2009, (360) 664-1631.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: As part of the liquor control board's on-going rules review process, chapter 314-64 WAC is being reviewed for relevance, clarity, and accuracy. The proposed rules reflect current agency practices and more clearly provide direction to individuals who submit samples to the board or to licensees to negotiate a sale.

     Reasons Supporting Proposal: The existing rules included language that is no longer relevant and needs to be eliminated. Clarification of existing rules will benefit those individuals requiring current practices.

     Statutory Authority for Adoption: RCW 66.08.030.

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

     Name of Proponent: [Liquor control board], governmental.

     Name of Agency Personnel Responsible for Drafting: Karen McCall, 3000 Pacific Avenue S.E., Lacey, WA 98504, (360) 664-1631; Implementation: Debi Besser, Director of Purchasing, 3000 Pacific Avenue S.E., Lacey, WA 98504, (360) 664-1668; and Enforcement: Pat Parmer, Chief of Enforcement, 3000 Pacific Avenue S.E., Lacey, WA 98504, (360) 664-1726.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal imposes only minor impact on businesses or individuals that may submit samples to the board or licensees to negotiate a sale.

     A cost-benefit analysis is not required under RCW 34.05.328.

May 6, 2009

Lorraine Lee

Chairman

OTS-2366.1

AMENDATORY SECTION(Amending Order 40, filed 8/21/75)

WAC 314-64-020   Definitions.   Samples shall mean:

     (((1) Beer and/or containers submitted to the board for chemical analysis of the beer, as required by WAC 314-20-020 (2)(b).

     (2) Wine and/or containers submitted to the board for chemical analysis of the wine, as required by WAC 314-24-040 (1)(b).

     (3) Malt liquor)) Beer, wine, spirits and/or containers submitted to the board for the purpose of negotiating the sale of liquor to the state liquor control board as provided in RCW 66.28.040.

[Order 40, § 314-64-020, Rule 130, filed 8/21/75.]

     (1) Quantity. Samples shall not exceed in quantity that authorized by the ((U.S. Bureau of Alcohol, Tobacco and Firearms)) Tobacco Tax and Trade Bureau.

     (2) Identification. Suppliers shall identify the items on the cartons and shipping documents as "samples for the board."

     (3) Shipping instructions. Suppliers shall deliver or ship samples prepaid to the Washington State Liquor Control Board, Attention ((Liquor Purchasing Agent)) Director of Purchasing, ((1025 East Union Avenue)) 3000 Pacific Ave. S.E., Olympia, Washington 98504.

     (4) In those instances where it becomes necessary for the board to incur some costs in receiving the samples, such costs shall be recovered from the supplier.

     (5) Use and disposition of samples. Samples furnished for the purpose of negotiating the sale of liquor to the board shall be examined and tested by members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, for appearance, aroma and taste, and to determine their probable customer acceptability. ((After such examination and testing, any remaining portion of said samples shall be disposed of by members of the board, or their designees who examined and tested said samples, or by the purchasing agent, or his designee who examined and tested said samples.))

     (6) Reports. Members of the board, or their designees, and/or the ((liquor purchasing agent, or his)) director of purchasing or their designee, shall report their findings and recommendations on ((appropriate forms)) sample surveys to the ((liquor purchasing agent for consolidation and report to the board)) director of purchasing or their designee. The board shall consider such findings and recommendations, along with other documents furnished by the supplier, in determining whether the items represented by the samples shall be purchased by the board for resale through state liquor stores.

     (7) Excess. Samples received in excess of the quantity authorized in ((WAC 314-64-040)) this section for the purpose of negotiating the sale of liquor to the board will be held by the ((liquor board purchasing agent)) director of purchasing until the supplier has been notified of the overshipment and given fifteen days in which to respond as to whether he wants the excess returned to him at his expense. Failure of the supplier to respond within the time limitation, or notification from the supplier that he does not want the excess returned to him, will result in the excess item or items being destroyed by a liquor control board auditor in the presence of the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, after which a destruction notice will be prepared by the auditor and be certified by the ((liquor board purchasing agent)) director of purchasing or ((his)) their designee who witnessed the destruction. Copies of such destruct notices shall be ((distributed to members of the board, the liquor purchasing agent, and the liquor control board controller)) kept in the purchasing division of the liquor control board.

     (8) Containers. Containers submitted without alcohol to the board for the purpose of negotiating the sale of liquor shall, after examination by the board and/or the ((liquor purchasing agent)) director of purchasing, be disposed of as follows:

     (a) Figurines, decanters, or other decorative containers may be retained for public display in the board offices in Olympia. After such display, the containers shall be disposed of as provided in (b) of this subsection.

     (b) Figurines, decanters, or other decorative containers will be held by the ((liquor purchasing agent)) director of purchasing until the supplier has been notified that the containers have been examined by the board, and the supplier will be given fifteen days in which to respond as to whether he wants the containers returned to him at his expense. Failure of the supplier to respond within the time limitation, or notification from the supplier that he does not want the containers returned to him, will result in the containers being disposed of as surplus property, pursuant to RCW 43.19.1919, if the anticipated revenue to be derived from the sale of the containers as surplus property is deemed to exceed the anticipated costs attributable to the sale.

     (((c) Containers whose anticipated revenue to be derived from their sale as surplus property is deemed not to exceed the anticipated costs attributable to the sale shall be disposed of by members of the board, or their designees who examined and tested said samples, or by the liquor purchasing agent, or his designee who examined and tested said samples.))

[Statutory Authority: RCW 66.28.045. 86-21-117 (Order 200, Resolution No. 209), § 314-64-040, filed 10/21/86. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), § 314-64-040, filed 1/28/82; Order 40, § 314-64-040, filed 8/21/75.]

     (((1) Malt liquor, wine or spirits submitted to the board for the purpose of negotiating the sale of liquor to the board.

     (a))) (1) Upon receipt of the samples by the ((liquor purchasing agent)) director of purchasing in Olympia, the ((liquor purchasing agent)) director of purchasing, or his designee, shall ((prepare a multiple-copy receiving and disposition report)) record the receipt for said samples((, clearly identifying them as "samples for the purpose of negotiating the sale of liquor to the board."

     (b))).

     (2) If more than the amount authorized in WAC 314-64-040 is received, the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, ((shall prepare a separate receiving report for the)) will record them as excess samples and dispose of them as provided in WAC 314-64-040(7).

     (((c))) (3) The ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall sign the ((multiple-copy receiving and disposition report in the applicable section,)) record of receipt indicating ((his)) receipt of the samples.

     (((d))) (4) The ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall ((distribute)) retain the signed ((multiple-copies of the receiving and disposition reports as follows: The original to be retained by the liquor purchasing agent, one copy to each member of the board, and one copy to the liquor control board controller)) record of receipt.

     (((e))) (5) The ((purchasing agent)) director of purchasing, or ((his)) their designee, shall provide ((an analysis report form, as required in WAC 314-64-040(6))) a sample survey for each sample. ((The receiving and disposition reports and analysis report forms shall be numbered consecutively, and shall correspond one with the other.

     (f))) (6) The ((liquor purchasing agent)) director of purchasing shall deliver a copy of the ((receiving and disposition report and the analysis report forms)) sample survey with the samples, to members of the board, or their designees, and/or to the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, for examination, testing and reporting as provided in WAC 314-64-040 (4)((,)) and (5) ((and (6))).

     (((g))) (7) Members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall sign the ((receiving and disposition report)) copy of the record of receipt in the applicable section, indicating receipt of the samples.

     (((h) The purchasing agent shall distribute the signed receiving and disposition report as follows: The original to the member of the board, or his designee, or the liquor purchasing agent, or his designee, to whom the sample was delivered; one copy to the liquor control board controller, and one copy to be retained by the liquor purchasing agent.

     (i))) (8) Members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall examine, test and report on the sample, as provided in WAC 314-64-040 (((4), (5), and (6),)) complete the ((analysis report form,)) sample survey, sign, and ((distribute the form as follows: The original)) return to the ((liquor purchasing agent, one copy to the liquor control board controller, and one copy to be retained by the member of the board, or his designee, and/or the liquor purchasing agent, or his designee who examined and tested the sample.

     (j))) director of purchasing, or their designee.

     (9) The ((liquor control board controller)) purchasing division shall maintain the official copies of the ((receiving and disposition reports)) records of receipt, together with the ((matching analysis report forms)) sample surveys, and, where applicable, the destruction notices.

[Statutory Authority: RCW 66.08.030. 91-19-070, § 314-64-050, filed 9/16/91, effective 10/17/91; 88-14-001 (Order 252, Resolution No. 261), § 314-64-050, filed 6/23/88. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), § 314-64-050, filed 1/28/82; Order 40, § 314-64-050, filed 8/21/75.]

     (1) Quantity. Except as provided in (d) of this subsection, samples may be furnished only in their original packages or containers as produced by the manufacturer or bottler, as follows:

     (a) Wholesaler or importer. A brewer, winery or importer may furnish a sample of beer or wine to a wholesaler or importer who has not previously purchased the brand and type or vintage year from the supplier furnishing the sample. For each wholesaler or importer, the brewer, winery or importer may give not more than seventy-two ounces of any brand and type of beer, and not more than one liter of any brand and type of wine.

     (b) Retailer. A brewer, winery, importer or wholesaler may, except as hereinafter provided, furnish a sample of beer or wine to a retail licensee who has not previously purchased the brand and type or vintage year from the supplier furnishing the sample. For each retail licensee, the brewer, winery, importer or wholesaler may give not more than seventy-two ounces of any brand and type of beer, and not more than one liter of any brand and type of wine. If a particular product is not available in a size within the quantity limitations of this section, a brewer, winery, importer or wholesaler may furnish the next largest size.

     (c) Out-of-state brewers and wineries who hold a certificate of approval to ship their products into this state who provide samples to retailers as outlined in (b) of this subsection shall be responsible for reporting monthly to the board any shipments of samples to retailers in Washington state and shall also be responsible for paying the taxes due on such beer and wine samples provided to retailers as provided for in WAC 314-20-010 and 314-24-110 as if they were a domestic brewer or a domestic winery.

     (d) Samples in other than the original packages or containers may, subject to the conditions and limitations stated in (a), (b), and (c) of this subsection, be furnished as follows:

     (i) A brewery, winery, importer, or wholesaler, either directly or through their licensed agents, may furnish to authorized licensees at their licensed premises or business office samples of beer and wine from an opened container carried by a licensed agent, provided such samples are furnished only in single-serving samples not to exceed two ounces of wine or twelve ounces of beer.

     (ii) A brewery, winery, importer, or wholesaler, either directly or through their licensed agents, may furnish samples of beer or wine to authorized licensees at the premises of a retail licensee.

     (iii) A licensed importer or licensed wholesaler may furnish samples to authorized licensees on the licensed premises of the importer or wholesaler.

     (2) Identification. Brewers, wineries, importers or wholesalers shall identify the samples on the containers, cartons and shipping documents as "Samples for licensees."

     (3) Shipping instructions. Brewers, wineries, importers or wholesalers shall, except as provided in subsection (1)(d) of this section, deliver or ship samples to licensees at their licensed premises or business office.

     (4) Use and disposition of samples. Samples may be furnished for the purpose of negotiating a sale of beer or wine to a wholesaler, importer, or retail licensee.

[Statutory Authority: RCW 66.08.030. 94-14-022, § 314-64-080, filed 6/27/94, effective 7/28/94; 86-11-015 (Order 185, Resolution No. 194), § 314-64-080, filed 5/13/86. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), § 314-64-080, filed 1/28/82. Statutory Authority: RCW 66.08.030, 66.08.060 and 66.98.070. 81-23-038 (Order 84, Resolution No. 93), § 314-64-080, filed 11/18/81.]

     1. Samples are limited to 1.7 ounces (50 ml) and no more than one sample of each product may be provided to any one licensed business.

     2. All spirit samples must be purchased at retail from the board from existing stocks or by special order.

     3. Only products not previously purchased or existing products with a change in alcohol proof or formula may be sampled.

     4. Both the retailer and distiller must retain records of sampling for a period of two years. The records shall include the brand and type of sample and the date of sampling.

[Statutory Authority: RCW 66.08.030. 98-08-041, § 314-64-08001, filed 3/25/98, effective 4/25/98.]

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