WSR 10-14-106

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed July 6, 2010, 3:40 p.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: Washington seed potatoes, chapter 16-520 WAC, the Washington state seed potato commission marketing order.

Hearing Location(s): Washington State Department of Agriculture, Natural Resources Building, 1111 Washington Street S.E., Conference Room 205, Olympia, WA 98504-2560, on August 12, 2010, at 10:30 a.m.

Date of Intended Adoption: October 21, 2010.

Submit Written Comments to: Kelly Frost, Commodity Commission Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, e-mail kfrost@agr.wa.gov, fax (360) 902-2092, by 5:00 p.m., August 13, 2010.

Assistance for Persons with Disabilities: Contact WSDA receptionist by August 2, 2010, TTY 1-800-833-6488 or (360) 902-1976.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: During past legislative sessions, significant amendments were made to the Washington state seed potato commission's enabling statute, chapter 15.66 RCW. These statutory changes prompted amendments to its marketing order, chapter 16-520 WAC. Proposed amendments expand the commission's policy and purpose statements, update definitions, add additional power and duties to benefit the industry, and update meeting and administrative procedures as well as improve the readability and clarity of the marketing order. In addition, proposed amendments change the method by which seed potato commission board members are chosen with the director of agriculture appointing a majority of board members. The number of affected producers required to sign a nominating petition is reduced from five to three. The definition of "commercial quantities" is also revised to increase the amount of seed potatoes a grower must produce in order to be subject to the marketing order.

The marketing order sections affected by the proposed amendments are:

1. Repealing WAC 16-520-002 Director's findings and final decision approving a marketing order.

2. Amending WAC 16-520-005 Marketing order -- Policy and purpose.

3. New section WAC 16-520-006 Marketing order purposes.

4. Amending WAC 16-520-010 Definitions.

5. Amending WAC 16-520-020 Seed potato commission -- Structure, powers, duties, and procedure.

6. New section WAC 16-520-025 Powers and duties of commission.

7. New section WAC 16-520-027 Procedures for commission.

8. Repealing WAC 16-520-030 Marketing order purposes.

9. Amending WAC 16-520-040 Assessments and assessment funds.

10. Amending WAC 16-520-050 Information reports.

11. Repealing WAC 16-520-070 Effective time.

Reasons Supporting Proposal: The proposed amendments are intended to make the marketing order consistent with the commodity commission enabling statute, chapter 15.66 RCW, and to implement the petition received from the Washington state seed potato commission in accordance with RCW 15.66.050.

Statutory Authority for Adoption: RCW 15.66.030, 15.66.053, 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 seed potato producers pursuant to chapter 15.66 RCW.

Name of Proponent: Washington state seed potato commission, governmental.

Name of Agency Personnel Responsible for Drafting: Kelly Frost, WSDA, Olympia, (360) 902-1802; Implementation and Enforcement: Washington State Seed Potato Commission, Lynden, (360) 354-8767.

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 16-520 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 seed potato commission are not named agencies in RCW 34.05.328 (5)(a)(i).

July 6, 2010

Dan Newhouse

Director

OTS-3386.2


AMENDATORY SECTION(Amending Marketing Order for Washington Seed Potatoes, effective 10/1/56)

WAC 16-520-005   Marketing order -- Policy ((and purpose)) statement.   ((The marketing of agricultural products within this state is affected with a public interest. It is declared to be the policy and purpose of the "act" and of this "Washington seed potato marketing order" to promote the general welfare of the state by enabling seed potato producers to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing and standardizing of the seed potatoes they produce, and in promoting and increasing the sale of such seed potatoes.)) (1) The marketing of seed potatoes within this state is in the public interest. It is vital to the continued economic well-being of the citizens of this state and their general welfare that its seed potatoes be properly promoted by:

(a) Enabling producers of seed potatoes to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing, grading, and standardizing of the seed potatoes they produce; and

(b) Working towards stabilizing the agricultural industry by increasing consumption of seed potatoes within the state, the nation, and internationally.

(2) That it is in the overriding public interest that support for the seed potato industry be clearly expressed, that adequate protection be given to the industry and its activities and operations, and that the seed potatoes be promoted individually, and as part of a comprehensive agriculture industry to:

(a) Enhance the reputation and image of Washington state's seed potatoes.

(b) Increase the sale and use of Washington state's seed potatoes in local, domestic, and foreign markets.

(c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state's seed potatoes.

(d) Increase the public's knowledge of the qualities and value of Washington state's seed potatoes.

(e) Support and engage in programs or activities that benefit the planting, production, harvesting, handling, processing, marketing, and uses of seed potatoes produced in Washington state.

(3) The director is authorized to implement, administer, and enforce chapter 15.66 RCW through this marketing order.

(4) The Washington state seed potato commission exists primarily for the benefit of the people of the state of Washington and its economy, and with oversight by the director, the commission is authorized to speak on behalf of Washington state government with regard to seed potatoes under the provisions of this marketing order.

[Marketing Order for Washington Seed Potatoes, effective 10/1/56.]


NEW SECTION
WAC 16-520-006   Marketing order purposes.   This marketing order is to promote the general welfare of the state and for the purpose of maintaining existing markets or creating new or larger local, domestic, and foreign markets; ensuring a fair regulatory environment; and increasing production efficiency of seed potatoes in Washington state. The Washington state seed potato commission is designated by the director to conduct the following programs in accordance with chapter 15.66 RCW:

(1) Research. The commission may research or enter into contracts or agreements for research in the production, irrigation, processing, transportation, marketing, use, or distribution of seed potatoes.

(2) Marketing and sales promotion plans.

(a) Subject to the provisions of the act, the commission is hereby authorized to prepare plans, administer and conduct programs and expend moneys for marketing and sales promotion for promoting the sale of seed potatoes including, but not necessarily limited to, the following:

(i) Increasing the sales of Washington produced seed potatoes through the use of the press, radio, television and all other marketing media.

(ii) Trade promotion, publicity, market development and expansion activities.

(iii) Presentation of facts to and negotiations with state, federal, or foreign governmental agencies on matters which affect the marketing of seed potatoes produced in this state, and such other activities and programs which are consistent with the objectives of this marketing order and the act.

(b) In carrying out any marketing and sales promotion plans or programs, the commission may engage or hire such marketing medias as may be necessary to accomplish the purposes of the act and this order, arrange for marketing space, display material and other advertising material, or may use any other methods consistent with the act and this marketing order which the commission considers appropriate in promoting or creating new and larger domestic or foreign markets for seed potatoes, or in maintaining existing markets. The commission may also engage in cooperative efforts in the domestic or foreign marketing of seed potato food products.

(c) Programs and plans adopted by the commission under this marketing order shall be directed towards promoting the sale of seed potatoes without reference to any particular private brand or trade name. Sales promotion and marketing programs shall not disparage the value, quality, sale or use of any other agricultural commodity or make use of any unwarranted or false claims regarding seed potatoes.

(d) Marketing plans, programs and projects developed by the commission shall be submitted for director review and approval as required under RCW 15.66.141.

(3) Labeling.

(a) Under chapter 15.66 RCW, the commission may adopt rules, subject to the provisions of chapter 34.05 RCW, to define, establish and provide labeling requirements for improving standards and grades of seed potatoes, and may expend money for such purposes. Such requirements shall not be inconsistent with the horticultural laws of this state with respect to seed potatoes.

(b) The commission shall be authorized to cooperate with state and federal agencies or departments responsible for revising and modernizing grades and standards and labeling of seed potatoes.

(c) Nothing in this section shall be construed as authorizing the commission to set minimum grades, sizes or maturity of seed potatoes which a producer may sell, offer for sale or ship.

(4) Unfair trade practices. The commission may investigate and take necessary action to prevent unfair trade practices and to correct, where possible, trade practices which hinder marketing of Washington produced seed potatoes. To the extent permitted under the Public Records Act, chapter 42.56 RCW, information acquired in an investigation shall be confidential and shall be released only to the extent necessary to effectuate the purposes of the act.

(5) Standards, grades, labels, trade practices. The provisions covering standards, grades, labels and trade practices shall apply with respect to seed potatoes produced in Washington state.

(6) The commission is authorized to provide information and communicate on matters pertaining to the production, irrigation, processing, transportation, marketing, or uses of seed potatoes produced in Washington state to any elected official or officer or employee of any agency.

(7) Information and education. The commission may conduct programs for the purpose of providing information and education including:

(a) Marketing information and services for producers of seed potatoes.

(b) Information and services enabling producers to meet their resource conservation objectives.

(c) Seed potato-related education and training.

(8) The director shall approve any plans, programs, and projects concerning:

(a) The establishment, issuance, effectuation, and administration of programs authorized under this section for advertising and promotion of seed potatoes.

(b) The establishment and effectuation of market research projects, market development projects, or both to the end that marketing and utilization of seed potatoes may be encouraged, expanded, improved or made more efficient.

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AMENDATORY SECTION(Amending Marketing Order, Article I, effective 10/1/56)

WAC 16-520-010   Definitions.   ((As used in this marketing order, the following terms shall have the following meanings)) Definitions for terms used in this chapter are also found in chapter 15.66 RCW, Washington State Agricultural Commodity Commissions Act. For the purposes of the seed potato marketing order, the following definitions shall apply:

(1) "Director" means the director of agriculture of the state of Washington or ((his duly appointed representative)) any qualified person or persons designated by the director of agriculture to act for him or her concerning some matter under this marketing order or chapter 15.66 RCW;

(2) "Act" means the Washington ((Agricultural Enabling)) State Agricultural Commodity Commissions Act, ((being)) chapter 15.66 RCW;

(3) "Person" includes any individual, firm, corporation, limited liability company, trust, association, partnership, society or any other organization of individuals or any unit or agency of local or state or federal government;

(4) "Producer" means any person ((who is)) engaged in the business of producing or causing to be produced for market in the state of Washington seed potatoes in commercial quantities ((seed potatoes as herein defined grown in the state of Washington)). "To produce" means to act as a producer;

(5) "Commercial quantities" ((shall)) means ((and include)) five thousand hundred weight or more;

(6) "Hundredweight" or "affected unit" are synonymous and mean and include each one hundred pound unit or any combination of packages making a one hundred pound unit of seed potatoes;

(7) "Seed potatoes" means and include all kinds and varieties of Irish seed potatoes grown in the state of Washington and marketed, sold or intended for use for seed purposes;

(8) "Seed potato commission" or "commission" are synonymous and mean the commission established ((pursuant to the provisions of)) under WAC 16-520-020 consistent with chapter 15.66 RCW;

(9) "Marketing season" or "fiscal year" are synonymous and mean the twelve month period beginning July 1 of any year and ending upon the last day of June, both dates inclusive;

(10) "Handler" means any person ((engaged in the business of handling, selling, processing, storing, shipping, or distributing seed potatoes which he has purchased or acquired from a producer, or which he is shipping for or on behalf of a producer, and shall include any lending agencies for commodity credit corporation loan to producers, but shall not include a producer engaged in transporting seed potatoes produced by him for grading, washing, sorting, sacking, or otherwise preparing for marketing or market)) who acts, either as principal, agent, or otherwise, in the processing, selling, marketing, or distributing of seed potatoes that are not produced by the handler. "Handler" does not include a common carrier used to transport an agricultural commodity. "To handle" means to act as a handler;

(11) "Sale" means a transaction wherein the property in or to seed potatoes ((in)) is transferred from the producer to a purchaser for consideration. "Sale" shall also include an agreement to acquire such property for a consideration;

(12) "Affected area" ((or "area of production" are synonymous and)) means and includes all of the state of Washington.

(13) "Affected producer" means any producer who is subject to this marketing order.

[Marketing Order, Article I, effective 10/1/56.]


AMENDATORY SECTION(Amending Order 1808, filed 10/25/83, effective 12/1/83)

WAC 16-520-020   Seed potato commission -- Structure, powers, duties, and procedure.   (1) Establishment and membership. A seed potato commission is hereby established to administer this marketing order ((which)). The commission shall be composed of ((five)) three members who shall be affected producers elected by the producers as provided in the act, and ((two)) four members who shall be appointed by the ((elected producer members)) director. In addition, the director shall be ((an ex officio)) a voting member of the commission.

(a) Elected producer positions on the board shall be designated as positions 2, 3, and 4.

(b) Director-appointed positions on the board shall be designated as positions 1, 5, 6, and 7.

(c) The position representing the director shall be designated as position 8.

(2) Membership qualifications. Commission members shall be citizens and residents of this state, over the age of ((twenty-five)) eighteen years and producer members of the commission shall be producers of seed potatoes in the state of Washington. The qualifications of producer members of the commission as herein set forth must continue during their term of office. Members appointed by the ((elected producers)) director shall be either ((seed potato)) producers((,)) or others active in matters relating to seed potatoes ((or persons not so related)).

(3) Term of office((; initial commission)).

(a) The term of office of commission members shall be three years from the date of their election or appointment and until their successors are elected or appointed and qualified so that one-third of the terms will commence as nearly as practicable each year ((provided, however, that the initial members of the commission shall serve from the effective date of this marketing order in terms terminating as follows: Two producer members, being positions 1 and 2 shall be elected for one year terms terminating June 30, 1957; two producer members, being positions 3 and 4 shall be elected for 2 year terms terminating June 30, 1958; and one producer member, being position 5 shall be elected for a 3 year term terminating June 30, 1959.

The appointed members of the initial commission shall be elected by a majority of the elected commissioners at the first meeting of said commission. One appointed member being position 6, shall be appointed for a two year term expiring June 30, 1958, and one appointed member, being position 7, shall be appointed for a three year term, expiring June 30, 1959)).

(b) To accomplish the transition to a commodity board structure where the director appoints a majority of the board members, the names of the prior marketing order's elected board members in positions 1, 5, 6, and 7 shall be forwarded to the director for appointment within thirty days of the effective date of this amended marketing order to serve out the remainder of their terms.

(4) Nomination, appointment and election of commission members. Nomination, appointment, and election of commission members shall be as set forth in the act and specified by the director. Dates for this process are as follows:

(a) Not earlier than March 19 and not later than April 3 of each year, the director shall give notice by mail to all affected producers that ((a vacancy or vacancies)) an open commission position(s) will occur in the commission and call for nominations. Nominating petitions shall be signed by ((five)) three persons qualified to vote for ((such)) the candidates. ((Such)) The notice shall state the final date for filing ((said)) nominating petitions which shall be not earlier than April 7 and not later than April 12 of such year.

(b) The director shall ((submit ballots)) conduct an election or advisory vote by mail to all affected producers in the district wherein the ((vacancy)) open commission position(s) will occur not earlier than April 17 and not later than May 2 of each year. Ballots shall be returned not later than June 1 of ((such)) each year. ((Such mailed ballot)) An election or advisory vote shall be conducted in a manner so that it shall be a secret ballot in accordance with rules ((and regulations to be promulgated)) adopted by the director. An affected producer is entitled to one vote.

(c) ((With respect to the initial seed potato commission, the director shall call for nominations in the notice of his decision following the hearing designated in the act. The ballot specified herein shall be forwarded to the producers at the time the director's proposed marketing order is mailed to the producers for their referendum assent.)) When only one nominee is nominated by the affected producers for a director-appointed position, RCW 15.66.120 shall apply.

(d) Except with respect to the initial seed potato commission, the members of the commission not elected by the producers or appointed by the director shall be elected by a majority of the commission within ninety days prior to the expiration of the term.

(5) Vacancies.

(a) ((To fill any vacancy occasioned by the failure to qualify of any person elected by the producers as a member of the commission, or in the event of the death, removal, resignation or disqualification of any member, the director shall call for nominations and conduct such election in the manner provided in subsection (4) of this section.)) In the event of a vacancy in an elected position, the remaining members shall select a qualified person to fill the term. The appointment shall be made at the commission's first or second meeting after the position becomes vacant.

(b) ((To fill nonelective vacancies caused by other reasons than the expiration of the term, the new members shall be elected by the commission at its first meeting after the occurrence of the vacancy.

(6) Powers and duties of commission. The commission shall have the following powers and duties:

(a) To administer, enforce, direct and control the provisions of this marketing order and of the act relating thereto;

(b) To elect a chairman and such other officers as the commission may deem advisable; and to select subcommittees of commission members;

(c) To adopt, rescind, and amend rules and regulations reasonably necessary for the administration and operation of the commission and the enforcement of its duties under this marketing order;

(d) To employ and discharge at its discretion such administrators and additional personnel, attorneys, advertising and research agencies and other persons and firms that it may deem appropriate and pay compensation to the same;

(e) To acquire personal property and lease office space and other necessary real property and transfer and convey the same;

(f) To institute and maintain in its own name any and all legal actions, including actions by injunction, mandatory injunction or civil recovery, or proceedings before administrative tribunals or other governmental authorities necessary to carry out the provisions of the act and of this marketing order;

(g) To keep accurate records of all its receipts and disbursements, which records shall be open to inspection and audit by the department and other legal agencies of the state and make annual reports therefrom to the state auditor;

(h) To borrow money and incur indebtedness;

(i) To make necessary disbursements for routine operating expenses;

(j) To collect the assessments of producers as provided in this marketing order and to expend the same in accordance with and to effectuate the purposes of the act and this marketing order.

(k) To prepare a budget or budgets covering anticipated income and expenses to be incurred in carrying out the provisions of this marketing order during each fiscal year;

(1) To accept and receive gifts and grants and expend the same to effectuate the purposes of the act and this order;

(m) To exercise such other powers and perform such other duties as are necessary and proper to effectuate the purposes of the act and of this order.

(7) Procedure for commission.

(a) The commission may by resolution establish a headquarters which shall continue as such unless and until so changed by the commission, at which headquarters shall be kept the books, records and minutes of the commission meetings.

(b) The commission shall hold at least two regular meetings during each fiscal year with the time and date thereof to be fixed by the resolution of the commission.

(c) The commission may hold such special meetings as it may deem advisable and shall establish by resolution the time, place and manner of calling such special meetings with reasonable notice to the members, provided, however, that the notice of any special meeting may be waived by a waiver thereof signed by not less than a quorum of the membership.

(d) Any action taken by the commission shall require the majority vote of the members present provided a quorum is present.

(e) A quorum of the commission shall consist of at least four members.

(f) No members of the commission shall receive any salary or other compensation from the commission, except that each member shall be paid a specified sum to be determined by resolution of the commission, which rate shall not exceed $20.00 per day for each day spent in actual attendance at or traveling to and from meetings of the commission or on special assignments for the commission, together with subsistence and travel expense of the rate allowed by law to state employees.

(8) Limitation of liability of commission members and employees. Obligations incurred by the commission and any other liabilities or claims against the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any other commission established pursuant to the act or the assets thereof or against any member officer, employee or agent of the commission in his individual capacity. The members of the commission, including employees thereof, shall not be held responsible individually in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member.)) In the event of a vacancy in a director-appointed position, the position shall be filled as specified in chapter 15.66 RCW.

[Statutory Authority: Chapter 15.66 RCW. 83-22-019 (Order 1808), 16-520-020, filed 10/25/83, effective 12/1/83; Marketing Order, Article II, effective 10/1/56.]


NEW SECTION
WAC 16-520-025   Powers and duties of commission.   The commission shall have the following powers and duties:

(1) To administer, enforce, direct and control the provisions of this marketing order and of the act relating thereto;

(2) To elect a chairman and such other officers as the commission may deem advisable; and to select subcommittees of commission members;

(3) To adopt, rescind, and amend rules and regulations reasonably necessary for the administration and operation of the commission and the enforcement of its duties under this marketing order;

(4) To employ and discharge at its discretion such administrators and additional personnel, attorneys, advertising and research agencies and other persons and firms that it may deem appropriate and pay compensation to the same;

(5) To acquire personal property and lease office space and other necessary real property and transfer and convey the same;

(6) To institute and maintain in its own name any and all legal actions, including actions by injunction, mandatory injunction or civil recovery, or proceedings before administrative tribunals or other governmental authorities necessary to carry out the provisions of the act and of this marketing order;

(7) To keep accurate records of all its receipts and disbursements, which records shall be open to inspection and audit by the department and other legal agencies of the state and make annual reports therefrom to the state auditor;

(8) To borrow money and incur indebtedness;

(9) To make necessary disbursements for routine operating expenses;

(10) To collect the assessments of producers as provided in this marketing order and to expend the same in accordance with and to effectuate the purposes of the act and this marketing order;

(11) To prepare a budget or budgets covering anticipated income and expenses to be incurred in carrying out the provisions of this marketing order during each fiscal year. The commission, at least sixty days prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget;

(12) To accept and receive gifts and grants from private persons or private and public agencies and expend the same to effectuate the purposes of the act and this order;

(13) To work cooperatively with other local, state, and federal agencies, universities, and national organizations for the purposes set forth in this marketing order;

(14) To enter into contracts or interagency agreements with any private or public agency, whether federal, state, or local, to carry out the purposes set forth in this marketing order. Personal service contracts must comply with chapter 39.29 RCW;

(15) To enter into contracts or agreements for research in the production, irrigation, processing, transportation, marketing, use or distribution of seed potatoes;

(16) To retain in emergent situations the services of private legal counsel to conduct legal actions on behalf of the commission. The retention of a private attorney is subject to review by the office of the attorney general;

(17) To engage in appropriate fund-raising activities for the purpose of supporting activities of the commission authorized by this marketing order;

(18) To participate in international, federal, state, and local hearings, meetings, and other proceedings relating to the production, manufacture, regulation, transportation, distribution, sale, or use of seed potatoes including activities authorized under RCW 42.17.190, including the reporting of those activities to the public disclosure commission;

(19) To maintain a list of names and addresses of affected producers that may be compiled from information used to collect assessments under the provisions of this marketing order and data on the value of each producer's production for a minimum three-year period pursuant to RCW 15.66.140;

(20) To maintain a list of names and addresses of persons who handle seed potatoes within the affected area and data on the amount and value of seed potatoes handled for a minimum three-year period by each person pursuant to RCW 15.66.140;

(21) To maintain a list of names and addresses of all affected producers and the amount, by unit, of seed potatoes produced during the past three years pursuant to RCW 15.66.143;

(22) To maintain a list of all persons who handle seed potatoes and the amount of seed potatoes handled by each person during the past three years pursuant to RCW 15.66.143;

(23) To establish a foundation using commission funds as grant money for the purposes established in this marketing order;

(24) To request records and audit the records of producers or handlers of seed potatoes during normal business hours to determine whether the appropriate assessment has been paid;

(25) To acquire or own intellectual property rights, licenses, or patents and to collect royalties resulting from commission-funded research related to seed potatoes; and

(26) To exercise such other powers and perform such other duties as are necessary and proper to effectuate the purposes of the act and of this order.

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NEW SECTION
WAC 16-520-027   Procedure for commission.   (1) The commission may by resolution establish a headquarters which shall continue as such unless and until so changed by the commission, at which headquarters shall be kept the books, records and minutes of the commission meetings.

(2) The commission shall hold at least two regular meetings during each fiscal year with the time and date thereof to be fixed by the resolution of the commission. Notice of the time and place of regular meetings shall be published on or before January of each year in the Washington State Register. Notice of any change to the meeting schedule shall be provided in compliance with chapter 42.30 RCW, the Open Public Meetings Act.

(3) The commission may hold special meetings as it may deem advisable and shall establish by resolution the time, place and manner of calling such special meetings with reasonable notice to the members, provided, that the notice to a member of any special meeting may be waived by a waiver from that member of the board. Notice for special meetings shall be in compliance with chapter 42.30 RCW.

(4) Any action taken by the commission shall require the majority vote of the members present provided a quorum is present.

(5) A quorum of the commission shall consist of at least five members.

(6) No members of the commission shall receive any salary or other compensation from the commission, except that each member shall be paid a specified sum to be determined by resolution of the commission, which rate shall not exceed the compensation rate set by RCW 43.03.230 for each day spent in actual attendance at or traveling to and from meetings of the commission or on special assignments for the commission, together with subsistence and travel expenses in accordance with RCW 43.03.050 and 43.03.060. The commission may adopt by resolution provisions for reimbursement of actual travel expenses incurred by members of the commission in carrying out the provisions of this marketing order pursuant to RCW 15.66.130.

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NEW SECTION
WAC 16-520-035   Limitation of liability of commission members and employees.   Obligations incurred by the commission and any other liabilities or claims against the commission shall be enforced only against the assets of the commission in the same manner as if it were a corporation and no liability for the debts or actions of the commission shall exist against either the state of Washington or any subdivision or instrumentality thereof or against any other commission established pursuant to the act or the assets thereof or against any member officer, employee or agent of the commission in his or her individual capacity. The members of the commission, including employees thereof, shall not be held responsible individually in any way whatsoever to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for his or her own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the commission. The liability of the members of the commission shall be several and not joint and no member shall be liable for the default of any other member.

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AMENDATORY SECTION(Amending WSR 92-22-007, filed 10/21/92, effective 12/1/92)

WAC 16-520-040   Assessments and assessment funds.   (1) Assessments levied. ((Beginning December 1, 1983,)) There is hereby levied and there shall be collected by the commission, as provided in chapter 15.66 RCW, upon all seed potatoes of commercial quantities grown in the state an annual assessment which shall be paid by the producer thereof upon each and every hundredweight of seed potatoes sold, processed, delivered for sale or processing by him or her or stored or delivered for storage when such storage or delivery for storage is outside the boundaries of this state. The assessment shall be three cents per hundredweight ((from December 1, 1983, until August 31, 1984)). The assessment shall then be set by the seed potato commission at a regular meeting before July 15th of each year, to become effective from September 1st of the same year to August ((connote)) 31st of the following year. The assessment shall not be less than one cent or more than five cents per hundredweight. No assessment may be collected on the following:

(a) Seed potatoes of a producer's own production used by him or her on his or her own premises for seed, feed or personal consumption;

(b) Seed potatoes donated or shipped for relief or charitable purposes; or

(c) Sales on a producer's premises by a producer direct to a consumer of five hundred pounds or less of seed potatoes from a producer's own production.

No assessment levied or made collectable by the act under this order shall exceed three percent of the total market value of all such seed potatoes sold, processed or delivered for sale or processing by all producers of seed potatoes 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 therefore. To collect ((such)) the assessments, the commission may require:

(i) Stamps to be known as "Washington seed potato 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 ((such)) stamps shall be canceled immediately upon being attached or fixed and the date of ((such)) the cancellation shall be placed thereon;

(ii) Handlers receiving seed potatoes 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 ((such)) the times as required by rule ((and regulation required)), file with the commission a return under oath on forms to be furnished by the commission, stating the quantity of seed potatoes handled, processed, delivered and/or shipped during the period prescribed by the commission.

(iii) In the event payment of producer assessments occur before the seed potatoes are shipped off the farm or ((payments of assessments)) occur at different or later times ((and in)), such ((event, any)) person subject to the assessment shall give ((such)) adequate assurance or security for its payment as the commission shall require.

(b) The commission is authorized to make reasonable rules ((and regulations)) 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)) hundredweight unit or units of seed potatoes 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)) or obligation applies to common carriers in the regular course of their business. When any seed potatoes for which an exemption is claimed, as provided for 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 ((such)) the exemption(s).

(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 seed potato 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 seed potatoes sold, processed, delivered for sale or processing or delivered for storage or stored when such storage or delivery for storage was outside the boundaries of this state during that period. Refund may be made only upon satisfactory proof given by the producer ((in accordance with reasonable rules and regulations prescribed by the director)) which may include, bills of lading, bills of sale or receipts.

[Statutory Authority: RCW 15.66.050. 92-22-007, 16-520-040, filed 10/21/92, effective 12/1/92. Statutory Authority: Chapter 15.66 RCW. 83-22-019 (Order 1808), 16-520-040, filed 10/25/83, effective 12/1/83; Marketing Order, Article IV, effective 10/1/56.]


AMENDATORY SECTION(Amending Marketing Order, Article V, effective 10/1/56)

WAC 16-520-050   Information reports.   All persons subject to the provisions of this marketing order shall make and render ((such)) reports and furnish such information to the director or the commission as may be necessary or required under the act or this order to effectuate the purposes thereof. Any financial or commercial information and records obtained by ((any persons pursuant to the provisions of this section shall be confidential and)) the director or commission are exempted from public disclosure under the provisions of RCW 15.66.105 and 42.56.380 and shall not be ((by him)) disclosed to any other person save to a person with like right to obtain the same or any attorney employed by the director or the commission to give legal advice thereon or by court order.

[Marketing Order, Article V, effective 10/1/56.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 16-520-002 Director's findings and final decision approving a marketing order.
WAC 16-520-030 Marketing order purposes.
WAC 16-520-070 Effective time.

Washington State Code Reviser's Office