1404-S

AN ACT Relating to seafood safety enhancement; amending RCW 69.30.010, 69.30.030, 69.30.050, 69.30.110, 69.30.120, and 69.30.140; adding a new section to chapter 43.70 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 69.30.010 and 1991 c 3 s 303 are each amended to read as follows:

When used in this chapter, the following terms shall have the following meanings:

(1) "Shellfish" means all varieties of fresh and frozen oysters, mussels, ((~~and~~)) clams, and scallops, either shucked or in the shell, and any fresh or frozen edible products thereof.

(2) "Sale" means to sell, offer for sale, barter, trade, deliver, consign, hold for sale, consignment, barter, trade, or delivery, and/or possess with intent to sell or dispose of in any commercial manner.

(3) "Shellfish growing areas" means the lands and waters in and upon which shellfish are grown for harvesting in commercial quantity or for sale for human consumption.

(4) "Establishment" means the buildings, together with the necessary equipment and appurtenances, used for the storage, culling, shucking, packing and/or shipping of shellfish in commercial quantity or for sale for human consumption.

(5) "Person" means any individual, partnership, firm, company, corporation, association, or the authorized agents of any such entities.

(6) "Department" means the state department of health.

(7) "Secretary" means the secretary of health or his or her authorized representatives.

(8) "Commercial quantity" means any quantity exceeding: (a) Forty pounds of mussels; (b) one hundred oysters; (c) fourteen ((~~horseclams~~)) horse clams; (d) six geoducks; ((or)) (e) fifty pounds of hard or soft shell clams; or (f) fifty pounds of scallops. The poundage in this subsection (8) constitutes weight with the shell.

(9) "Fish and wildlife enforcement officer" means a fisheries patrol officer or an ex officio fisheries patrol officer as defined in RCW 75.08.011 (4) and (5) or a wildlife agent or an ex officio wildlife agent as defined in RCW 77.08.010 (5) and (6).

Sec. 2. RCW 69.30.030 and 1955 c 144 s 3 are each amended to read as follows:

The state board of health shall cause such investigations to be made as are necessary to determine reasonable requirements governing the sanitation of shellfish, shellfish growing areas, and shellfish plant facilities and operations, in order to protect public health and carry out the provisions of this chapter; and shall adopt such requirements as rules and regulations of the state board of health. Such rules and regulations may include reasonable sanitary requirements relative to the quality of shellfish growing waters and areas, boat and barge sanitation, building construction, water supply, sewage and waste water disposal, lighting and ventilation, insect and rodent control, shell disposal, garbage and waste disposal, cleanliness of establishment, the handling, storage, construction and maintenance of equipment, the handling, storage and refrigeration of shellfish ((~~and~~)), the identification of containers, and the handling, maintenance, and storage of permits, certificates, and records regarding shellfish taken under this chapter.

Sec. 3. RCW 69.30.050 and 1985 c 51 s 2 are each amended to read as follows:

Shellfish growing areas, from which shellfish are removed in a commercial quantity or for sale for human consumption shall ((~~be in a safe and sanitary condition, meeting~~)) meet the requirements of this chapter and the state board of health; and such shellfish growing areas shall be so certified by the department. Any person desiring to remove shellfish in a commercial quantity or for sale for human consumption from a growing area in the state of Washington shall first apply to the department for a certificate of approval of the growing area. The department shall cause the shellfish growing area to be inspected and if the area meets the ((~~sanitary~~)) requirements of this chapter and the state board of health, the department shall issue a certificate of approval for that area. Such certificates shall be issued for a period not to exceed twelve months and may be revoked at any time the area is found not to be in compliance with the ((~~sanitary~~)) requirements of this chapter and the state board of health.

Shellfish growing areas from which shellfish are removed in a commercial quantity for purposes other than human consumption including but not limited to bait or seed, shall be readily subject to monitoring and inspections, and shall otherwise be of a character ensuring that shellfish harvested from such areas are not diverted for use as food. A certificate of approval issued by the department for shellfish growing areas from which shellfish are to be removed for purposes other than human consumption shall specify the date or dates and time of harvest and all applicable conditions of harvest, identification by tagging, dying, or other means, transportation, processing, sale, and other factors to ensure that shellfish harvested from such areas are not diverted for use as food.

Sec. 4. RCW 69.30.110 and 1985 c 51 s 4 are each amended to read as follows:

It is unlawful for any person to possess a commercial quantity of shellfish or to sell or offer to sell ((~~for human consumption~~)) shellfish in the state which have not been grown, shucked, packed, or shipped in accordance with the provisions of this chapter. Failure of a shellfish grower to display immediately a certificate of approval issued under RCW 69.30.050 to an authorized representative of the department, a ((~~fisheries patrol officer, or an ex officio fisheries patrol officer~~)) fish and wildlife enforcement officer, or an ex officio fish and wildlife enforcement officer subjects the grower to the penalty provisions of this chapter, as well as immediate seizure of the shellfish by the representative or officer.

Failure of a shellfish processor to display a certificate of approval issued under RCW 69.30.060 to an authorized representative of the department, a ((~~fisheries patrol~~)) fish and wildlife enforcement officer, or an ex officio ((~~fisheries patrol~~)) fish and wildlife enforcement officer subjects the processor to the penalty provisions of this chapter, as well as immediate seizure of the shellfish by the representative or officer.

Shellfish seized under this section shall be subject to prompt disposal by the representative or officer and may not be used for human consumption. The state board of health shall develop by rule procedures for the disposal of the seized shellfish.

Sec. 5. RCW 69.30.120 and 1985 c 51 s 5 are each amended to read as follows:

The department may enter and inspect any shellfish growing area or establishment for the purposes of determining compliance with this chapter and rules adopted under this chapter. The department may inspect all shellfish, all permits, all certificates of approval and all ((~~shellfish, and take for inspection such samples of shellfish as may reasonably be necessary to carry out the provisions of this chapter~~)) records.

During such inspections the department shall have free and unimpeded access to all buildings, yards, warehouses, storage and transportation facilities, vehicles, and other places reasonably considered to be or to have been part of the regulated business or entity, to all ledgers, books, accounts, memorandums, or records required to be compiled or maintained under this chapter or under rules adopted pursuant to this chapter, and to any products, components, or other materials reasonably believed to be or to have been used, processed, or produced by or in connection with the regulated business or activity. In connection with such inspections the department may take such samples or specimens as may be reasonably necessary to determine whether there exists a violation of this chapter or rules adopted under this chapter.

Inspection of establishments may be conducted between eight a.m. and five p.m. on any weekday that is not a legal holiday, during any time the regulated business or entity has established as its usual business hours, at any time the regulated business or entity is open for business or is otherwise in operation, and at any other time with the consent of the owner or authorized agent of the regulated business or entity.

The department may apply for an administrative inspection warrant to a court of competent jurisdiction and an administrative inspection warrant may issue where:

(1) The department has attempted an inspection under this chapter and access to all or part of the regulated business or entity has been actually or constructively denied; or

(2) There is reasonable cause to believe that a violation of this chapter or of rules adopted under this chapter is occurring or has occurred.

((For purposes of this chapter, fisheries patrol officers or ex officio fisheries patrol officers are limited to entry, inspection, and destruction of shellfish to achieve compliance with RCW 69.30.110 and to taking for inspection samples of shellfish as may reasonably be necessary to carry out this chapter.))

Sec. 6. RCW 69.30.140 and 1985 c 51 s 6 are each amended to read as follows:

Any person ((~~found~~)) convicted of violating any of the provisions of this chapter shall be guilty of a gross misdemeanor((, and upon conviction thereof shall be subject to a fine of not less than twenty-five dollars nor more than one thousand dollars, or imprisonment in the county jail of the county in which the offense was committed for not less than thirty days nor more than one year, or to both fine and imprisonment)). A conviction is an unvacated forfeiture of bail or collateral deposited to secure the defendant's appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt on a violation of this chapter, regardless of whether imposition of sentence is deferred or the penalty is suspended, and shall be treated as a violation conviction for purposes of license forfeiture under RCW 75.10.120.

NEW SECTION. Sec. 7. A new section is added to chapter 43.70 RCW to read as follows:

(1) The department may enter and inspect any property, lands, or waters, of this state in or on which any marine species are located or from which such species are harvested, whether recreationally or for sale or barter, and any land or water of this state which may cause or contribute to the pollution of areas in or on which such species are harvested or processed. The department may take any reasonably necessary samples to determine whether such species or any lot, batch, or quantity of such species is safe for human consumption.

(2) If the department determines that any species or any lot, batch, or other quantity of such species is unsafe for human consumption because consumption is likely to cause actual harm or because consumption presents a potential risk of substantial harm, the department may, by order under chapter 34.05 RCW, prohibit or restrict the commercial or recreational harvest or landing of any marine species except the recreational harvest of shellfish as defined in chapter 69.30 RCW if taken from privately owned tidelands.

(3) It is unlawful to harvest any marine species in violation of a departmental order prohibiting or restricting such harvest under this section or to possess or sell any marine species so harvested.

(4) Any person who sells any marine species taken in violation of this section is subject to the penalties provided in RCW 69.30.140 and 69.30.150. Any person who harvests or possesses marine species taken in violation of this section is guilty of a civil infraction and is subject to the penalties provided in RCW 69.30.150. Notwithstanding this section, any person who harvests, possesses, sells, offers to sell, culls, shucks, or packs shellfish is subject to the penalty provisions of chapter 69.30 RCW. Charges shall not be brought against a person under both chapter 69.30 RCW and this section in connection with this same action, incident, or event.

(5) The criminal provisions of this section are subject to enforcement by fish and wildlife enforcement officers or ex officio fish and wildlife enforcement patrol officers as defined in RCW 75.08.011.

(6) As used in this section, marine species include all fish, invertebrate or plant species which are found during any portion of the life cycle of those species in the marine environment.