WSR 11-13-122

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed June 21, 2011, 4:28 p.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 246-282-012 Certificates of approval -- Operation licenses, harvest site certificates (shellfish license renewal date change for shellstock shippers and shucker packers) and 246-282-990 Fees (2011 shellfish operation license fee proration due to the annual license renewal date change, annual paralytic shellfish poison (PSP) fees adjustment according to samples taken from the prior year, and export certificate fee increase pursuant to legislative approval in HB 1087).

Hearing Location(s): Department of Health, Town Center 2, 111 Israel Road S.E., Tumwater, WA 98501, on August 5, 2011, at 10:00 a.m.

Date of Intended Adoption: August 8, 2011.

Submit Written Comments to: Brandy Brush, Department of Health, Office of Shellfish and Water Protection, P.O. Box 47824, Olympia, WA 98504-7824, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-2257, by August 5, 2011.

Assistance for Persons with Disabilities: Contact Brandy Brush by July 29, 2011, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to change the annual shellfish operation license renewal date for shellstock shippers and shucker packers from October 1 to July 1 of each year, and to prorate the 2011 fee amount for the transition to the new date. Changing the renewal date will allow inspectors to focus on illness prevention and investigation during the summer months when Vibrio parahaemolyticus (Vp) poses the most serious public health threat. The proposal also equitably assesses the costs of commercial geoduck PSP testing following the redistribution formula. The formula is based on the number of tests done in the previous year. The testing is essential to public health as it is the only way to determine if dangerous levels of PSP exist in commercial geoduck, and ensure toxic shellfish do not reach consumers. The proposed rule also increases the export certificate fee per legislative approval in HB 1087.

Reasons Supporting Proposal: The proposed shellfish license renewal date will allow the department and shellfish industry to focus on essential activities when Vp is most dangerous to the public. The proposed 2011 prorated shellfish operation license renewal fee is not a permanent change to the annual fee and will not change the total revenue generated by the fee. The proposed geoduck PSP fee redistribution is based on 2010 total cost of service and number of tests done for the entities that submitted geoduck tests in 2009. The proposed export certificate fees increase is necessary to adequately fund the program.

Statutory Authority for Adoption: RCW 69.30.030 and 43.20.030.

Statute Being Implemented: RCW 69.30.030 and 43.20.030.

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

Name of Proponent: State board of health and department of health, governmental.

Name of Agency Personnel Responsible for Drafting: Brandy Brush, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-3342; Implementation and Enforcement: Rick Porso, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-3302.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025 and 34.05.310 (4)(f), a small business economic impact statement is not required for proposed rules that set or adjust fees or rates pursuant to legislative standards.

A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(vi) exempts rules that set or adjust fees or rates pursuant to legislative standards.

June 21, 2011

Mary C. Selecky

Secretary

OTS-3955.4


AMENDATORY SECTION(Amending WSR 01-04-054, filed 2/5/01, effective 3/8/01)

WAC 246-282-012   Certificates of approval -- Operation licenses, harvest site certificates.   (1) The department issues two types of certificates of approval to persons who conduct shellfish operations. They are shellfish operation licenses and harvest site certificates.

(2) Any person who possesses a commercial quantity of shellfish or any quantity of shellfish for sale for human consumption must possess, or act on behalf of a person who possesses, a valid shellfish operation license. To obtain a shellfish operation license, a person must:

(a) Submit to the department a completed application on a form developed by the department;

(b) Submit to the department an acceptable written plan of operations that completely describes the shellfish operation;

(c) Pass a preoperational inspection demonstrating compliance with chapter 69.30 RCW, this chapter, and the NSSP Model Ordinance; and

(d) Pay the department any shellfish operation license fee required by this chapter.

(3) Any person who harvests a commercial quantity of shellfish or any quantity of shellfish for sale for human consumption must possess, or act on behalf of a person who possesses, a valid harvest site certificate. In order for a person to obtain a harvest site certificate, all of the following requirements must be met.

(a) The person possesses a valid shellfish operation license.

(b) The person submits to the department a completed application that describes the following characteristics of the site:

(i) Geographic location;

(ii) Map showing legal boundaries;

(iii) Unique government identification number, such as county parcel number, department of fish and wildlife tract number, department of fish and wildlife catch area number, or tribal identification number; and

(iv) Documentation of legal ownership or lease for shellfish harvesting.

(c) The harvest site is in a growing area that meets the requirements of chapter 69.30 RCW, this chapter, and the NSSP Model Ordinance for a commercial shellfish growing area.

(d) The harvest site is not impacted by any actual or potential sources of pollution.

(e) The harvest site passes a pollution assessment inspection conducted by the department if necessary to determine if the site is impacted by any actual or potential sources of pollution.

(f) The person signs the current conditionally approved area management plan, if applicable.

(g) The person pays the department any harvest site application fee required by this chapter.

(4) All shellfish operation licenses and harvest site certificates for shellfish dealers expire on the thirtieth day of ((September)) June each year. All shellfish operation licenses and harvest site certificates for harvesters expire on the thirty-first day of March each year((, beginning in 2002)).

[Statutory Authority: RCW 69.30.030 and 43.20.030. 01-04-054, 246-282-012, filed 2/5/01, effective 3/8/01.]


AMENDATORY SECTION(Amending WSR 10-19-034, filed 9/9/10, effective 10/10/10)

WAC 246-282-990   Fees.   (1) The required annual shellfish operation license fees for shellstock shippers and shucker-packers due October 1, 2011, shall be reduced by twenty-five percent of the annual shellfish operation license fees in subsection (2) of this section. Beginning July 1, 2012, and for every subsequent year, the full annual shellfish operation license fees in subsection (2) of this section shall be assessed.

(2) Annual shellfish operation license fees are:


Type of Operation Annual Fee
Harvester $263
Shellstock Shipper
0 - 49 Acres $297
50 or greater Acres $476
Scallop Shellstock Shipper $297
Shucker-Packer
Plants with floor space < 2000 sq. ft. $542

Plants with floor space 2000 sq. ft. to 5000 sq. ft. $656
Plants with floor space > 5000 sq. ft. $1,210

(((2))) (3) The fee for each export certificate is $((10.30)) 20.00.

(((3))) (4) 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
Harvester 3 or more $259
Shellstock Shipper ≤ 2 $195
0 - 49 acres
Shellstock Shipper 3 or more $292
0 - 49 acres
Shellstock Shipper N/A $468
50 or greater acres
Shucker-Packer ≤ 2 $354
(plants < 2000 ft2)
Shucker-Packer 3 or more $533
(plants < 2000 ft2)
Shucker-Packer ≤ 2 $429
(plants 2000 - 5000 ft2)
Shucker-Packer 3 or more $644
(plants 2000 - 5000 ft2)
Shucker-Packer N/A $1,189
(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))) (5) Annual PSP testing fees for companies harvesting geoduck are as follows:


Harvester Fee
((Discovery Bay Shellfish $464))
Department of natural resources (quota tracts harvested by DNR contract holders) $((8,507)) 9,616
Jamestown S'Klallam Tribe $((1,237)) 1,221
Lower Elwha Klallam Tribe $((4,485)) 4,274
((Lummi Nation $155))
Nisqually Indian Tribe $((2,011)) 3,968
Port Gamble S'Klallam Tribe $((4,021)) 3,053
Puyallup Tribe of Indians $((8,971)) 6,868
((Skokomish Indian Tribe $155))
Seattle Shellfish $1,374
Squaxin Island Tribe $((618)) 3,968
Suquamish Tribe $((21,189)) 16,026
Swinomish Tribe $((619)) 458
SYS Enterprises $611
Taylor Shellfish $2,900
Tulalip Tribe $((5,568)) 3,663

(((5))) (6) PSP fees must be paid in full to department of health before a commercial shellfish license is issued or renewed.

(((6))) (7) 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. 10-19-034, 246-282-990, filed 9/9/10, effective 10/10/10; 09-19-067, 246-282-990, filed 9/14/09, effective 10/15/09; 08-13-067, 246-282-990, filed 6/13/08, effective 7/14/08; 07-17-159, 246-282-990, filed 8/21/07, effective 9/21/07; 06-15-131, 246-282-990, filed 7/19/06, effective 8/19/06; 05-17-120, 246-282-990, filed 8/17/05, effective 9/17/05; 04-15-154, 246-282-990, filed 7/21/04, effective 8/21/04; 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.]

Washington State Code Reviser's Office