WSR 18-21-184

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed October 24, 2018, 8:09 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 18-17-171.

Title of Rule and Other Identifying Information: Chapter 16-30 WAC, Restricted feedlots and restricted holding facilities.

Hearing Location(s): On December 7, 2018, at 10:00 a.m., at the Department of Agriculture, Conference Room 238, 21 North First Avenue, Yakima, WA 98902; and on December 10, 2018, at 10:00 a.m., at the Department of Agriculture, Conference Room 259, 1111 Washington Street S.E., Olympia, WA 98504.

Date of Intended Adoption: December 31, 2018.

Submit Written Comments to: Henri Gonzales, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, email WSDARulesComments@agr.wa.gov, fax 360-902-2092, by 5:00 p.m., December 10, 2018.

Assistance for Persons with Disabilities: Contact Jodi Jones, animal services division, operations manager, phone 360-902-1889, fax 360-902-2087, TTY 800-833-6388, email jjones@agr.wa.gov, by December 3, 2018.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to amend the requirements regarding restricted holding facilities in chapter 16-30 WAC by:


•	Requiring additional oversight of Category 1 restricted holding facilities.
•	Removing the certificate of veterinary inspection exemption for out-of-state cattle entering a Category 2 restricted holding facility.
•	Requiring additional oversight of Category 3 restricted holding facilities.
•	Increasing notification and reporting requirements.
•	Amending the definition of "official individual identification" to mean an official United States Department of Agriculture (USDA) approved individual identification tag.
•	Adding a definition of "designated surveillance area."
•	Removing the restriction that a Category 2 restricted holding facility has to be a "dry" feed yard "with no provision for grazing."
•	Repealing WAC 16-30-025 and 16-30-030 and removing all references to "restricted feed lot."
•	Clarifying that Category 2 restricted holding facilities can have both in-state and out-of-state cattle.
•	Changing some references of "cattle" to "livestock."

Reasons Supporting Proposal: RCW 16.36.010 mandates the prevention of the spread and the suppression of infectious, contagious, communicable, and dangerous diseases affecting animals within, in transit through, and imported into the state. The department accomplishes this by enforcing vaccination, testing, and identification requirements, monitoring the health and movement of animals entering the state, prohibiting the entry of certain species, and minimizing exposure to animal diseases. In some cases the department must even euthanize animals that are infected with an incurable disease.

Currently, under chapter 16.36 RCW, it is unlawful for anyone to bring an animal into Washington state without first securing a certificate of veterinary inspection verifying that the animal meets Washington state animal health requirements except under two situations - if the animal is being delivered within twelve hours to a federally inspected slaughter plant or the animal is being delivered to a public livestock market for sale and subsequent delivery within twelve hours to a federally inspected slaughter plant. During the 2018 legislative session, the legislature passed SB 6369 (codified as RCW 16.36.140(1)). This legislation repealed a provision that allowed an exemption from obtaining a certificate of veterinary inspection for animals that are delivered to a feed lot for slaughter. This change was made to align state statute with federal regulations (9 C.F.R. Part 86) that require cattle to be accompanied by a certificate of veterinary inspection when moving interstate. The department is proposing to adopt the change made in RCW 16.36.140(1) and remove the certificate of veterinary inspection exemption.

Chapter 16.36 RCW allows the department to adopt rules establishing requirements for restricted holding facilities. Restricted holding facilities are isolated areas approved and licensed by the department to either temporarily or permanently contain animals imported into the state that do not meet animal health importation requirements. These holding facilities provide industry with additional flexibility in meeting Washington state animal importation requirements. Use of these facilities is not mandatory and producers always have the option of meeting import requirements prior to entry without endangering the state's disease-free status.

The department is also proposing to add additional oversight on Categories 1 and 3 holding facilities, and to increase the notification and reporting requirements when animals are moved.

RCW 16.36.010 mandates the prevention and suppression of infectious, contagious, communicable, and dangerous diseases affecting animals. Category 1 restricted holding facilities contain animals that are high risk because they have entered the state without meeting animal health entry requirements (testing/vaccination). The establishment of Category 3 restricted holding facilities allows the owners of animals infected with an incurable disease to keep the animal(s) under permanent quarantine instead of being euthanized. Currently, Categories 1 and 3 restricted holding facilities have limited department oversight - a single inspection is conducted when a facility applies for licensure and also as part of the annual license renewal process. The department is proposing to treat both Categories 1 and 3 restricted holding facilities the same as Category 2 facilities by conducting at least two and up to four unannounced onsite audits during each annual licensing period by the state veterinarian in order to ensure compliance with holding facility requirements.

Increasing oversight will aid in protecting Washington animals from high risk animals. Unapproved movement of restricted animals, inadequate sanitation practices, and inadequate biosecurity protocols associated with these facilities poses an unacceptable risk to the animal population of the state.

The proposed amendments to remove the restriction that a Category 2 restricted holding facility has to be a "dry" feed yard "with no provision for grazing," changing some references of "cattle" to "livestock," and clarifying that Category 2 restricted holding facilities can have both in-state and out-of-state livestock reflects currently acceptable practices and allows them more flexibility with what kind of animals can be held.

The proposed amendment to remove all reference of "restricted feedlot" and repeals WAC 16-30-025 and 16-30-030 which simplifies the chapter since these facilities are considered Category 2 restricted holding facilities and have to meet all of the same requirements of Category 2 restricted holding facilities as specified in WAC 16-30-035 through 16-30-040.

The proposed revision to the definition of "official individual identification" enhances animal disease traceability.

The proposed addition of the definition for "designated surveillance area" adds clarity to the rule by defining a term currently used in the rule language.

Statutory Authority for Adoption: RCW 16.36.040.

Statute Being Implemented: Chapter 16.36 RCW.

Rule is necessary because of federal law, 9 C.F.R. Section 86.4.

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

Name of Agency Personnel Responsible for Drafting: Jodi Jones, 1111 Washington Street S.E., Olympia, WA 98504, 360-902-1889; Implementation: Dr. Brian Joseph, 1111 Washington Street S.E., Olympia, WA 98504, 360-902-1881; and Enforcement: John Price, 1111 Washington Street S.E., Olympia, WA 98504, 360-902-1946.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.061 because this rule making is being adopted solely to conform and/or comply with federal statute or regulations. Citation of the specific federal statute or regulation and description of the consequences to the state if the rule is not adopted: 9 C.F.R. Section 86.4, by not revising this rule to remove the exemption requiring a certificate of veterinary inspection for animals being delivered to a feedlot for slaughter the department is creating confusion to the industry by having rules that are inconsistent with federal regulations.

Is exempt under RCW 19.85.025(3) as the rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; and rule content is explicitly and specifically dictated by statute.

Explanation of exemptions: This rule proposal adopts into rule changes made to RCW 16.36.140 that repealed an exemption for obtaining a certificate of veterinary inspections for animals delivered directly to a feedlot for slaughter. This revision falls under the exemption in RCW 34.05.310 (4)(c) and (e). Modifying the definition for "official individual identification" and adding the definition for "designated surveillance area" fall under the exemption in RCW 34.005.310 [34.05.310] (4)(d).

Small Business Economic Impact Statement

SECTION 1:Describe the proposed rule, including: A brief history of the issue; an explanation of why the proposed rule is needed; and a brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need in order to comply with the proposed rule.

Based on a 2014 economic contribution analysis conducted by Washington State University's School of Economic Sciences, the total economic contribution of the beef industry to Washington state was $5.691 billion, while a 2013 analysis found that the dairy industry contributed over $5.2 billion to the state's economy. The impact to these industries of an animal disease outbreak can be astounding. An animal disease outbreak can sicken or kill entire livestock herds, require animals to be quarantined or euthanized and, in some cases, pose a public health risk to humans. They are also expensive to manage and costly to the livestock industry. A 2003 case of BSE, or bovine spongiform encephalopathy (a.k.a. "mad cow disease"), in our state closed some foreign markets to Washington beef products until only recently, including China. Prior to market access closure, the United States (U.S.) was China's largest supplier of imported beef, providing seventy percent of their total consumption. It is estimated that this one incident of BSE cost the U.S. beef industry more than $11 billion - mainly due to market closures of U.S. beef imports.

RCW 16.36.010 directs the department to "supervise the prevention of the spread and the suppression of infectious, contagious, communicable, and dangerous diseases affecting animals within, in transit through, and imported into the state." The department accomplishes this by enforcing vaccination, testing, and identification requirements. And, also by monitoring the health and movement of animals entering the state, prohibiting the entry of certain species, and minimizing exposure to animal diseases.

In 2010, the department established in rule three categories of restricted holding facilities. These categories include:

Category 1 restricted holding facilities are where imported animals are held in quarantine until they meet animal health import requirements.

Category 2 restricted holding facilities are where imported cattle that are destined for slaughter are confined for feeding. Cattle in a Category 2 restricted holding facility must remain in slaughter channels and move only to a federally inspected slaughter plant or other restricted facilities of like status.

Category 3 restricted holding facilities are where animals are held under permanent quarantine.

The department is proposing to amend requirements regarding restricted holding facilities by:

Requiring additional oversight of Category 1 restricted holding facilities.

Removing the certificate of veterinary inspection exemption for out-of-state cattle entering a Category 2 restricted holding facility.

Requiring additional oversight of Category 3 restricted holding facilities.

Increasing notification and reporting requirements.

Amending the definition of "official individual identification" to mean an official USDA approved individual identification tag.

Removing the restriction that a Category 2 restricted holding facility has to be a "dry" feed yard "with no provision for grazing."

Removing all references to "restricted feed lot."

Clarifying that Category 2 restricted holding facilities can have both in-state and out-of-state cattle.

Changing some references of "cattle" to "livestock."

Probable compliance costs include payment of fees to cover additional department oversight of Categories 1 and 3 restricted holding facilities and additional time of facility personnel to meet increased reporting and notification requirements.

SECTION 2:Identify which businesses are required to comply with the proposed rule using the North American Industry Classification System (NAICS) codes and what the minor cost thresholds are.

NAICS Code (4, 5 or 6 Digit)	NAICS Business Description	Number of Businesses in WA	Minor Cost Threshold = 1% of Average Annual Payroll	Minor Cost Threshold = 0.3% of Average Annual Revenue
112112	Cattle feedlots	22	$7,041.94	Data not available
112111	Cattle ranching and farming	247	$681.52	Data not available

*	Data source: 2015 Quarterly Census of Employment and Wages (Bureau of Labor Statistics)

SECTION 3:Analyze the probable cost of compliance. Identify the probable costs to comply with the proposed rule, including: Cost of equipment, supplies, labor, professional services and increased administrative costs; and whether compliance with the proposed rule will cause businesses to lose sales or revenue.


•	Requiring additional oversight of Category 1 restricted holding facilities - Compliance costs include increased fees charged by the department for additional audits (see Section 4 for additional detail). No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.
•	Removing the certificate of veterinary inspection exemption for out-of-state cattle entering a Category 2 restricted holding facility – Brings the rule into alignment with recently adopted state statute (chapter 281, Laws of 2018) (codified as RCW 16.36.140(1)) and federal regulations (9 C.F.R. Part 86). Consideration of the economic impact of adopting existing state and federal regulations is specifically exempted under RCW 19.85.025(3)/34.05.310 (4)(c).
•	Requiring additional oversight of Category 3 restricted holding facilities - Compliance costs include increased fees charged by the department for additional audits (see Section 4 for additional detail). No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment. No current facilities affected by this change. Most likely only private citizens, not businesses.
•	Increasing notification and reporting requirements – These notifications can be submitted to the department simply by mailing or emailing the required testing/vaccination records of the animal(s) being moved. The department anticipates the additional notification requirements will require approximately fifteen minutes/month (three hours per year) for affected businesses to comply with. RCW 19.85.020(2) defines "minor cost" as a cost per business that is less than three-tenths of one percent of annual revenue or income, or one hundred dollars, whichever is greater, or one percent of annual payroll. Since the additional notification requirement will take on average an additional three hours per year for industry, the department anticipates the cost will be less than one hundred dollars (3 x $30/hour). Therefore, the costs for additional notification will be less than minor. No additional equipment, supplies, labor, or professional services; no anticipated loss of sales or revenue are associated with this amendment.
•	Amending the definition of "official individual identification" to mean an official USDA approved individual identification tag - The current definition implies that registered brands or tattoos are an acceptable form of individual identification if the department recognizes the brand inspection authority of another entity. Official USDA tags are currently the only form of individual identification accepted as "official." The department does not anticipate additional costs to be imposed on any restricted holding facility because the official individual identification tags are supplied free of charge by both the department and USDA and cattle imported directly from Canada already have individual identification. Depending on the class and age of an animal, this is already a federal requirement for the animal to cross a state line. No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.
•	Removing the restriction that a Category 2 restricted holding facility has to be a "dry" feed yard "with no provision for grazing" - The department has not found that there is any need to limit Category 2 restricted holding facilities to just dry feed yards with no areas for grazing. The licensee would still be required to segregate the animals, but there are no inherent risks with allowing restricted animals to graze on pasture. This gives the facility the ability to lower their feed costs by allowing the animals to graze naturally rather than providing one hundred percent of their nutrition from commercially purchased feed. No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.
•	Removing all references to "restricted feed lot" - WAC 16-30-025 currently defines a "restricted feedlot" as "a designated area that is isolated from all other nonrestricted areas within a feedlot." It also states, "A restricted feedlot is a Category 2 restricted holding facility and subject to all the requirements pertaining to Category 2 restricted holding facilities …" The terms "restricted feedlot" and "Category 2 restricted holding facility" are used interchangeably. The program no longer uses the term "restricted feedlot" on its forms or licenses. The department is proposing to simplify the chapter by repealing WAC 16-30-025 Restricted feedlots and 16-30-030 Conditions of permit to operate a restricted feedlot, since these facilities are required to meet the requirements for Category 2 restricted holding facilities that are specified in WAC 16-30-035 through 16-30-040. All other references to "restricted feedlot" were also removed. Removing the term "restricted feedlot" mirrors current practice, eliminates the redundancy of having the same requirements listed for both "restricted feedlots" and "Category 2 restricted holding facilities" and simplifies the rule language. No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.
•	Clarifying that Category 2 restricted holding facilities can have both in-state and out-of-state cattle – The proposed amendment clarifies that Category 2 restricted holding facilities can contain both in-state and imported livestock. Since this is already an acceptable practice by industry, the only impact is to amend the rule to align with current industry practice. No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.
•	Changing some references of "cattle" to "livestock" - Currently, the rule only allows cattle (beef/dairy) to be contained at a Category 2 restricted holding facility. Categories 1 and 3 facilities are allowed by rule to contain "animals." The department is anticipating the need for additional types of livestock such as sheep, goats, pigs, etc. to be held in Category 2 restricted holding facilities and is therefore proposing to amend "cattle" to "livestock" in order to allow this. No additional equipment, supplies, labor, professional services or administrative costs; no anticipated loss of sales or revenue are associated with this amendment.

SECTION 4:Analyze whether the proposed rule may impose more-than-minor costs on businesses in the industry.

Although, Section 2 identifies two types of businesses and associated minor cost thresholds, these figures do not accurately reflect the businesses impacted by these rule changes. Restricted holding facilities are not considered either a "cattle feedlot" or "cattle ranching and farming." There is not an NAICS code specifically designated for this type of business. Instead of using either the $7,041.94 or $681.52 minor cost thresholds identified in Section 2, the department is using a minor cost threshold of $100 as allowed under RCW 19.85.020(2). Based on this decision, the department anticipates that fees associated with additional oversight of Categories 1 and 3 restricted holding facilities will impose more-than-minor costs. All other components of the proposed rule change either have a positive impact on industry or will not impose more-than-minor costs on the regulated industry.

Category 1 Restricted Holding Facility Increased Oversight: RCW 16.36.010 mandates the prevention and suppression of infectious, contagious, communicable, and dangerous diseases affecting animals. Category 1 restricted holding facilities contain animals that are high risk because they have entered the state without meeting animal health entry requirements (testing/vaccination). Currently, Category 1 restricted holding facilities have limited department oversight - a single inspection is conducted when a facility applies for licensure and also as part of the annual license renewal process. The department is proposing to treat Category 1 restricted holding facilities the same as Category 2 facilities by conducting at least two and up to four unannounced onsite audits during each annual licensing period by the state veterinarian in order to ensure compliance with restricted holding facility requirements. Lack of containment of these animals until they meet health requirements poses an unacceptable risk to the animal industries of the state.

Increasing audits of Category 1 restricted holding facilities will help decrease the risk of a disease outbreak. The cost of containment of a disease outbreak is staggering and takes years for the industry to recover from. The department wants to ensure facilities are following applicable requirements before a problem occurs. Increasing oversight will aid with protecting Washington's healthy animal population.

RCW 16.36.025 mandates that "fees shall, as closely as practicable, cover the cost of the service provided." WAC 16-30-038 (3)(f) currently specifies that the state veterinarian will conduct at least two and up to four random, unannounced audits during each licensing period of a Category 2 restricted holding facility. The rates for the audit are specified in WAC 16-91-040.

Seven businesses are currently designated as both Categories 1 and 2 restricted holding facilities. This means that the business has an area that is designated as Category 1 and another area that is designated as Category 2. Since the department is already providing additional oversight because the business is designated as a Category 2 restricted holding facility, the department is able to audit the Category 1 facility during the same inspection trip which will minimize costs to the business. The department charges time ($85.00 per hour) and mileage at the office of financial management (OFM) allowed rate for inspections. The department anticipates that it will take an additional thirty minutes to conduct each onsite audit of the Category 1 side of the facility. At $85.00 per hour, this equates to $42.50 per audit. There will be no additional travel and mileage costs. If the department conducts four additional audits, then the cost of these additional audits would be an extra $170.00 per year.

There are currently four businesses that are solely licensed as a Category 1 restricted holding facility. These businesses would incur additional time and mileage charges in order for the department to conduct the onsite audits. Each onsite audit is anticipated to take about thirty minutes. The department hopes to mitigate the charge for travel by combining the audit with other inspections taking place in the vicinity so that the charge for travel would be split between each of the entities visited during the trip. However, if the department is not able to do this, the following table outlines the anticipated charges for each of the four affected businesses:

Costs for Additional Oversight of Category 1 Restricted Holding Facilities
Restricted Holding Facility	Business Location	Distance from Nearest State Veterinarian (miles)	Mileage Charge	Travel Time (hours)*	Audit Time (hours)	Total Hourly Charge	Total Charge for 4 Audits
1	Chewelah	300	$163.50	6.00	0.5	$552.50	$2,864.00
2	Sunnyside	140	$ 76.30	2.00	0.5	$212.50	$1,155.20
3	Othello	140	$ 76.30	3.00	0.5	$297.50	$1,495.20
4	Quincy	106	$ 57.77	1.75	0.5	$191.25	$ 996.08

*	Travel time was determined using GPS navigation that accounts for varying speed limits on different roads.

Category 3 Restricted Holding Facility Increased Oversight: RCW 16.36.010 mandates the prevention and suppression of infectious, contagious, communicable, and dangerous diseases affecting animals. One way this is accomplished, is by euthanizing animals infected with an incurable disease. The establishment of a Category 3 restricted holding facility allows the owners of these infected animal(s) to keep the animal(s) under permanent quarantine rather than euthanize them. As the rule is currently written, Category 3 restricted holding facilities have limited department oversight - a single inspection is conducted when a facility is initially licensed and also as part of the annual license renewal process. This is problematic as these animals are considered high risk to other noninfected animals and the likelihood that they could cause a deadly disease outbreak is high. The department is proposing to treat Category 3 restricted holding facilities the same as Category 2 facilities by conducting at least two and up to four unannounced onsite audits during each annual licensing period by the state veterinarian in order to ensure compliance with restricted holding facility requirements and to ultimately ensure continued disease containment. Lack of containment of these diseased animals poses an unacceptable risk to the animal population of the state.

The department wants to ensure facilities are following applicable requirements before a problem occurs. Increasing oversight will aid with protecting Washington animals from high risk animals. Unapproved movement of quarantined animals, inadequate sanitation practices, and inadequate biosecurity protocols associated with these facilities poses an unacceptable risk to the animal population of the state.

RCW 16.36.025 mandates that "fees shall, as closely as practicable, cover the cost of the service provided." The rates for the audit are specified in WAC 16-91-040. The cost of the oversight is charged at $85.00 per hour plus mileage at the OFM allowed rate for inspection. The hourly charge also applies to travel time to and from the facility.

There are currently no licensed Category 3 restricted holding facilities in the state and haven't been for a number of years, therefore, there are no businesses currently impacted by this rule change or available to conduct an economic impact analysis on. Only one Category 3 restricted holding facility license has been issued since this rule was established. The department doesn't anticipate this category being utilized by a business as there would not be adequate revenue opportunities. A business would not normally want to incur the expense or risk of maintaining a quarantined animal for an extended period of time. The only Category 3 restricted holding facility license was issued to a private citizen that had illegally imported horses from another country that did not meet import requirements. All the imported horses tested positive to piroplasmosis - a highly contagious disease transmitted by ticks which become infected when they ingest parasites in the blood of infected equine. In this case, the owner had a choice of euthanizing the animals or the animals being contained under permanent quarantine. The private owner chose to permanently quarantine the animals and obtained a Category 3 restricted holding facility license. Since the horses are now deceased and the private owner is no longer licensed as a Category 3 restricted holding facility, there are no Category 3 restricted holding facilities licensed by the department.

SECTION 5:Determine whether the proposed rule may have a disproportionate impact on small businesses as compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule.

All four of the Category 1 restricted holding facilities identified in Section 4 are considered a small business under RCW 19.85.020(3) because they employee fifty or fewer employees. Therefore, the proposed additional oversight of Category 1 restricted holding facilities will have a disproportionate impact on small businesses within the Category 1 restricted holding facility industry. There are seven facilities that are licensed as both Categories 1 and 2 restricted holding facilities. Of these seven facilities, five are considered small businesses and two are considered large businesses. Since all seven of the businesses are required to comply with the same requirements, regardless of size, the additional oversight will have a disproportionate impact on the five small combination Categories 1 and 2 restricted holding facilities.

SECTION 6:If the proposed rule has a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses. If the costs cannot be reduced provide a clear explanation of why.

The department intends to mitigate, when possible, the impact on Category 1 restricted holding facilities by combining the audits with other activities taking place nearby so that the charge for travel would be split between each of the businesses visited during the trip. The department intends to mitigate the impact on the combination Categories 1 and 2 restricted holding facilities by combining the audit of the Category 2 side of the business with the audit of the Category 1 side of the business.

RCW 19.85.030(2) requires consideration of the following methods of reducing the impact of the proposed amendment on small businesses:

(a) Reducing, modifying, or eliminating substantive regulatory requirements - RCW 16.36.010 mandates the prevention and suppression of infectious, contagious, communicable, and dangerous diseases affecting animals within, in transit through and imported into the state. Reducing, modifying, or eliminating the proposed regulatory requirements would increase the risk of a disease outbreak within the healthy animal populations of the state. The department is proposing additional regulatory oversight in order to decrease the likelihood of a disease outbreak. The health of Washington state livestock is a reflection of the health of livestock nationwide. Any disease outbreak in Washington could affect foreign market access for the industry throughout the country, as we saw with the BSE outbreak in 2003. These facilities are designed to contain a potentially infected or exposed animal and prevent a widespread disease outbreak that would debilitate the industry resulting in severe economic consequences to Washington state and the U.S. In essence, a Category 1 restricted holding facility is already a mitigation measure. The purpose of a Category 1 restricted holding facility is to provide a temporary alternative when animal importation requirements are not met. Businesses have the responsibility of meeting animal importation requirements prior to entry. Since the department is imposing additional reporting, notification, and oversight requirements in order to more effectively protect the state's livestock industry, there is not an option to reduce, modify, or eliminate substantive regulatory requirements.

(b) Simplifying, reducing, or eliminating recordkeeping and reporting requirements - The proposed amendments to the reporting requirements only state that the restricted holding facilities need to notify the state veterinarian when the animals being held meet requirements to be moved. The department has simplified this notification requirement as much as possible by allowing the notification to be submitted via mail or email. The businesses do not have to wait for additional acknowledgement or approval from the department before moving the animal(s). Since the department is imposing additional reporting and notification requirements in order to more effectively protect the state's livestock industry, there is not an option to simply reduce, or eliminate recordkeeping or reporting requirements.

(c) Reducing the frequency of inspections - Currently, the department normally only performs two random audits of Category 2 restricted holding facilities. We anticipate that we will also perform only two audits of Categories 1 and 3 facilities. Performing additional audits will depend on the number and type of animals in the facility and any issues identified in prior audits. These audits, when possible, will be combined with other nearby activities performed by veterinary staff in order to reduce costs to these facilities. Since the department is imposing additional inspections (audits) in order to more effectively protect the state's livestock industry, there is not an option to reduce the frequency of inspections.

(d) Delaying compliance timetables - This is not an option due to the sensitivity of animal disease outbreak potential with these high-risk facilities.

(e) Reducing or modifying fine schedules for noncompliance - Chapter 16-90 WAC sets the penalty amount for violations of animal health laws and rules. The level of civil penalty is determined by the number of prior civil penalties the person has received in the past ten years excluding notices of correction. The rule allows the department to consider mitigating circumstances when determining the monetary amount of any penalty issued for noncompliance. The department also follows the Administrative Procedure Act (RCW 34.05.110 Violations of state law or agency rule by small businesses) when determining compliance actions against small businesses. For violations that do not pose a significant risk for the spread of animal disease, the department will issue a notice of correction for first time violations and allow the business time to come into compliance. The department hopes with the increased audits, that issues identified can be corrected early with technical assistance prior to pursuing the adjudicative or civil process.

SECTION 7: Describe how small businesses were involved in the development of the proposed rule.

The department has discussed these changes and provided draft language to the Washington Cattle Feeders Association, who represents both small and large businesses. Rule notification has been sent to the Washington Farm Bureau, Washington Cattlemen's Association, Cattle Producers of Washington, Washington State Dairy Federation, and Washington State Veterinary Medical Association, all of whom represent both small and large businesses. An article was submitted for publication in the October edition of Ketch Pen (a publication of the Washington Cattlemen's Association) and Trail Dust (a publication of the Cattle Producers of Washington), and sent to the department's animal services listserv.

SECTION 8:Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule.

The department does not anticipate there will be any jobs created or lost as a result of the proposed amendments.

The public may obtain a copy of the small business economic impact statement or the detailed cost calculations by contacting Jodi Jones, 1111 Washington Street S.E., Olympia, WA 98504-2577, phone 360-902-1889, fax 360-902-2087, TTY 800-833-6388, email jjones@agr.wa.gov.

October 24, 2018

Dr. Brian E. Joseph

State Veterinarian

Chapter 16-30 WAC

((RESTRICTED FEEDLOTS AND)) RESTRICTED HOLDING FACILITIES

AMENDATORY SECTION(Amending WSR 10-20-091, filed 9/30/10, effective 10/31/10)

WAC 16-30-010Definitions.

In addition to the definitions found in RCW 16.36.005, the following definitions apply to this chapter:

"Department" means the Washington state department of agriculture (WSDA).

"Designated surveillance area" means a disease surveillance area in the Greater Yellowstone Area within the states of Idaho, Montana, and Wyoming where brucellosis positive elk are known or suspected to exist. In these areas, comingling of elk and livestock, and livestock exposure to tissue containing Brucella, is possible.

"Director" means the director of the department of agriculture or the director's authorized representative.

"Official individual identification" means ((identifying an animal or group of animals using devices or methods including, but not limited to, official tags, tattoos, and registered brands when accompanied by a certificate of brand inspection from a brand inspection authority who is recognized by the director))official United States Department of Agriculture (USDA) approved individual identification tag.

Note:

Official USDA ear tags are imprinted with an individual identification number, bears the official U.S. shield, and are tamper proof.

"Restricted animals" means animals being held in a restricted holding facility ((or a restricted feedlot)).

AMENDATORY SECTION(Amending WSR 10-20-091, filed 9/30/10, effective 10/31/10)

WAC 16-30-035Types of restricted holding facilities.

(1) Restricted holding facilities are isolated areas approved and licensed by the director, as advised by the state veterinarian. Fees associated with restricted holding facilities are referenced under chapter 16-91 WAC.

(2) There are three categories of restricted holding facilities.

(a) A category 1 restricted holding facility is a facility where imported animals are held in quarantine until they meet animal health import requirements prior to movement.

(b) A category 2 restricted holding facility is a ((dry feed yard with no provision for grazing where cattle that have been imported into the state and are))feed yard where livestock are fed and destined for slaughter only. Livestock are confined for feeding((. Cattle))as designated by a diagram of the restricted holding facility per WAC 16-30-039 (2)(c). Livestock in a category 2 restricted holding facility must remain in slaughter channels and move only to a federally inspected slaughter plant or other restricted facilities of like status.

AMENDATORY SECTION(Amending WSR 10-20-091, filed 9/30/10, effective 10/31/10)

WAC 16-30-038Conditions ((of permit)) to operate restricted holding facilities.

(1) The following requirements are applicable to all categories of restricted holding facilities:

(a) The restricted holding facility area shall house restricted animals separate and apart from all other nonrestricted animals. There may be no contact between animals not also similarly restricted and no commingling between separate shipments of animals.

(b) The restricted holding facility will be maintained in a sanitary condition to mitigate disease risk.

(c) The ((department of agriculture))state veterinarian will be notified immediately of any outbreak of any infectious or contagious disease or of any significant morbidity/mortality event.

(d) Milk from restricted animals may not be used for human consumption.

(e) Restricted holding facilities must be clearly identified as such by signs permanently affixed at all corners stating "restricted holding facility" in letters a minimum of six inches in height.

(f) The disposition of dead animals will be in accordance with the laws relating to the disposal of dead livestock and in accordance with chapter 16-25 WAC.

(g) Accurate records will be kept for six years to account for all animals entering and leaving the restricted holding facility. Records must be open for review by authorized department of agriculture personnel during normal business hours, and must be provided to the department upon the director's or state veterinarian's request.

(h) The state veterinarian has the authority to enter the restricted holding facility at any reasonable time to conduct tests, examinations, and inspections.

(2) Additional requirements for a category ((1))one restricted holding facility. In addition to the requirements of subsection (1) of this section for all types of restricted holding facilities, the operator of a category ((1))one restricted holding facility must abide by the following conditions:

(a) All animals entering a category ((1))one restricted holding facility must have official individual identification listed on the certificate of veterinary inspection.

(b) No animals may be removed from the category ((1))one restricted holding facility until they meet state and federal import regulations.

(c) The state veterinarian must be notified when animals in a category one restricted holding facility have met state and federal import regulations by submitting animal testing and vaccination records prior to movement of the animal.

(d) Animals may be removed from the restricted holding facility without meeting state and federal import regulations if they are sent to a federally inspected slaughter ((establishment))plant and have not commingled with any other animals not also similarly restricted. Category one restricted holding facilities must report to the state veterinarian the official individual identification of any animals that move out of the facility to a federally inspected slaughter plant or to a category two restricted holding facility prior to movement of the animals. Animals that have commingled with others not also similarly restricted will be quarantined and must be tested negative for disease as determined by the state veterinarian within thirty days before being released from the holding facility.

(e) Notifications of animal movement shall be submitted to:

Washington State Department of Agriculture

Animal Services Division

1111 Washington St. S.E.

P.O. Box 42577

Olympia, WA 98504-2577

Email: ahealth@agr.wa.gov

(f) The state veterinarian will conduct at least two and up to four random, unannounced audits during each licensing period. The rate for audits is established in WAC 16-91-040. The audits will consist of a physical inspection.

(g) Subsection (2)(f) of this section shall not limit the number of inspections necessary to investigate potential violations or limit the number of inspections to ensure compliance after a violation is found.

(3) Additional requirements for a category ((2))two restricted holding facility. In addition to the requirements of subsection (1) of this section for all types of restricted holding facilities, the operator of a category ((2))two restricted holding facility must abide by the following conditions:

(a) All livestock that enter Washington state destined to a category two restricted holding facility must enter with a certificate of veterinary inspection that includes the entry permit number.

(b) Cattle imported from Canada are required to have individual official identification and must be confined to the initial category two restricted holding facility until moved to a federally inspected slaughter plant.

(c) Category two restricted holding facilities may purchase and import cattle from a designated surveillance area if the cattle do not originate from a herd known to be exposed to brucellosis. Female cattle entering a category two restricted holding facility from a designated surveillance area must be:

(i) Officially brucellosis vaccinated; or

(ii) Brucellosis tested negative within thirty days prior to movement.

(d) All livestock in a category two restricted holding facility must remain in slaughter channels.

(e) There may be no contact between ((cattle))livestock not also similarly restricted.

(((b) Cattle))(f) Livestock may be removed from the restricted holding facility without meeting state and federal import regulations if they are sent immediately to a federally inspected slaughter plant((.

(c)))or moved to a facility of like status. Category two restricted holding facilities that move livestock to a facility of like status must report to the state veterinarian the number of livestock being moved, the official individual identification if applicable, the date the livestock will be moved, and the physical address of where the livestock will be moving to, prior to movement of the livestock.

(g) Notifications of animal movement shall be submitted to:

Washington State Department of Agriculture

Animal Services Division

1111 Washington St. S.E.

P.O. Box 42577

Olympia, WA 98504-2577

Email: ahealth@agr.wa.gov

(h) There must be a minimum of thirty feet between the restricted holding facility and other lots and facilities.

(((d)))(i) No common fences and gates may be used.

(((e) Cattle))(j) Livestock in the restricted holding facility must not share water or feeding facilities accessible to other areas.

(((f)))(k) The state veterinarian will conduct at least two and up to four random, unannounced audits during each licensing period. The audits will consist of a physical inspection. The licensee is also required to periodically confirm with the department ((cattle))livestock shipments identified on state ((import))entry permits and certificate of veterinary inspections as destined to the restricted holding facility by telephone or email. The rate for audits is established in WAC 16-91-040, but the total amount charged per licensed restricted holding facility shall not exceed one thousand five hundred dollars in a calendar year.

(((g) (f) of this subsection))(l) Subsection (3)(k) of this section shall not limit the number of inspections necessary to investigate potential violations or limit the number of inspections or total amount charged to ensure compliance after a violation is found. Category ((2))two restricted holding facilities that have been found to be in violation of animal health or import regulations may be charged for audits and inspections in excess of the one thousand five hundred dollar limit in (((f)))(k) of this subsection. This section shall not limit the department from charging the time and mileage fee for inspecting livestock and related records during an investigation of a proven violation of ((section 3, chapter 66, Laws of 2010))RCW 16.36.140.

(4) Additional requirements for category ((3))three restricted holding facilities. In addition to the requirements of subsection (1) of this section for all types of restricted holding facilities, the operator of a category ((3))three restricted holding facility must abide by the following conditions:

(a) The operator of a category ((3))three restricted holding facility must abide by quarantine conditions set forth by the state veterinarian.

(b) Accurate records will be kept accounting for all animals entering the category ((3))three restricted holding facility for the length of the quarantine.

(c) An animal in a category ((3))three restricted holding facility may be legally removed from the facility only upon the animal's death or if the animal is moved from the location by permit from the state veterinarian's office on a United States Department of Agriculture VS form 1-27 for the movement of restricted or quarantined animals to another category ((3))three restricted holding facility.

(d) If an animal dies or is moribund in a category ((3))three restricted holding facility, the operator of the holding facility will immediately notify the state veterinarian of the animal's condition. The state veterinarian may require inspection and testing of the animal before disposal.

(e) The state veterinarian will conduct at least two and up to four random, unannounced audits during each licensing period. The rate for audits is established in WAC 16-91-040. The audits will consist of a physical inspection.

(f) Subsection (4)(e) of this section shall not limit the number of inspections necessary to investigate potential violations or limit the number of inspections to ensure compliance after a violation is found.

AMENDATORY SECTION(Amending WSR 10-20-091, filed 9/30/10, effective 10/31/10)

WAC 16-30-039Applications for a restricted ((feedlot or restricted)) holding facility.

(1) Application forms to establish a ((restricted feedlot or)) restricted holding facility may be obtained from:

Washington State Department of Agriculture

Animal Services Division

1111 Washington St. S.E.

P.O. Box 42577

Olympia, Washington 98504-2577

Phone: 360-902-1878((.))

Email: ahealth@agr.wa.gov

(2) Applicants for ((restricted feedlots and)) restricted holding facilities must provide the following information on the application form:

(a) Name and address of applicant;

(b) Location of the ((restricted feedlot or)) restricted holding facility; and

AMENDATORY SECTION(Amending WSR 10-20-091, filed 9/30/10, effective 10/31/10)

WAC 16-30-040Expiration and revocation of ((restricted feedlot and)) restricted holding facility ((permits))licenses.

(1) All ((permits))licenses for restricted ((feedlots and)) holding facilities expire on the 30th day of June of the year following the date of issue. Restricted ((feedlots and)) holding facilities must be inspected annually upon renewal and at any other time as determined by the director. Renewal of a restricted ((feedlot or a restricted)) holding facility license is contingent upon accurate recordkeeping.

(2) Any violation of chapter 16.36 RCW or any of the rules adopted under that chapter is sufficient cause for the suspension or revocation of any ((permit))license to operate a ((restricted feedlot or)) restricted holding facility. In all proceedings for suspension or revocation of a ((restricted feedlot or)) restricted holding facility ((permit))license, the owner or manager has the right to request a hearing before revocation is made permanent. Any action shall be taken under the provisions of chapter 34.05 RCW, the Administrative Procedure Act.

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 16-30-025	Restricted feedlots.
WAC 16-30-030	Conditions of permit to operate a restricted feedlot.