CERTIFICATION OF ENROLLMENT

 

                        SENATE BILL 6122

 

 

                   Chapter 154, Laws of 1998

 

 

                        55th Legislature

                      1998 Regular Session

 

 

HORTICULTURAL PRODUCTS INSPECTIONS

 

 

 

                    EFFECTIVE DATE:  6/11/98

Passed by the Senate March 7, 1998

  YEAS 48   NAYS 0

 

 

 

               BRAD OWEN

President of the Senate

 

Passed by the House February 27, 1998

  YEAS 97   NAYS 0

             CERTIFICATE

 

I, Mike O=Connell, Secretary of the Senate of the State of Washington, do hereby certify that the attached is  SENATE BILL 6122 as passed by the Senate and the House of Representatives on the dates hereon set forth.

 

 

 

             CLYDE BALLARD

Speaker of the

      House of Representatives

           MIKE O'CONNELL

                            Secretary

 

 

Approved March 25, 1998 Place Style On Codes above, and Style Off Codes below.  

                                FILED          

 

 

           March 25, 1998 - 4:40 p.m.

 

 

 

              GARY LOCKE

Governor of the State of Washington

                   Secretary of State

                  State of Washington


          _______________________________________________

 

                         SENATE BILL 6122

          _______________________________________________

 

             Passed Legislature - 1998 Regular Session

 

                      AS AMENDED BY THE HOUSE

 

State of Washington      55th Legislature     1998 Regular Session

 

By Senators Morton and Rasmussen; by request of Department of Agriculture

 

Read first time 01/12/98.  Referred to Committee on Agriculture & Environment.

Inspecting horticultural products. 


    AN ACT Relating to the inspection and certification of horticultural products; amending RCW 15.17.010, 15.17.020, 15.17.030, 15.17.050, 15.17.060, 15.17.080, 15.17.090, 15.17.130, 15.17.140, 15.17.150, 15.17.170, 15.17.190, 15.17.200, 15.17.210, 15.17.230, 15.17.240, 15.17.260, 15.17.290, 15.04.100, and 42.17.31909; adding new sections to chapter 15.17 RCW; adding a new chapter to Title 15 RCW; creating a new section; recodifying RCW 15.04.100 and 15.17.130; repealing RCW 15.17.040, 15.17.070, 15.17.100, 15.17.110, 15.17.115, 15.17.120, 15.17.160, 15.17.180, 15.17.220, 15.17.250, 15.17.280, 15.17.910, 15.17.920, 15.17.930, 15.17.950, 15.04.020, 15.04.030, 15.04.040, 15.04.060, 15.04.070, and 15.04.080; decodifying RCW 15.17.950; and prescribing penalties.

 

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

 

    Sec. 1.  RCW 15.17.010 and 1963 c 122 s 1 are each amended to read as follows:

    The purpose of this chapter is to provide for the fair and orderly marketing of fruits and vegetables in the state of Washington by establishing uniform grades and standards ((for horticultural plants and products)) and ((to provide)) by providing for the inspection of ((such horticultural plants or)) these products ((in the state of Washington)).  This chapter is ((important and)) vital to ((the maintenance of a high level of public health and welfare of the citizens of this state by)) protecting the national and international reputation of ((horticultural plants and)) fruit and vegetable products grown and shipped from this state and protecting ((the citizens of this state)) consumers from the ((importation and)) sale of ((ungraded, immature, and)) inferior ((horticultural plants and products so as to prevent a condition conducive to substitution, confusion, deception, and fraud, a condition which if permitted to exist would tend to interfere with the orderly and fair marketing of horticultural plants and products essential to the well being of the citizens of this state.  It is hereby declared that)) and misrepresented fruits and vegetables. This chapter is enacted in the exercise of the police power of this state for the purpose of protecting the immediate and future health, safety, and general welfare of the citizens of this state.

 

    Sec. 2.  RCW 15.17.020 and 1996 c 188 s 1 are each amended to read as follows:

    For the purpose of this chapter:

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

    (2) "Director" means the director of the department or his duly authorized representative.

    (3) "Person" means a natural person, individual, or firm, partnership, corporation, company, society, and association, and every officer, agent, or employee thereof.  This term shall import either the singular or plural, as the case may be.

    (4) "Horticultural plant or product" includes, but is not limited to, any horticultural, floricultural, viticultural, and olericultural plant, growing or otherwise, and their products whether grown above or below the ground's surface.

    (5) "Horticultural facilities" means, but is not limited to, the premises where horticultural plants and products are grown, stored, handled, or delivered for sale or transportation, records required by rule under this chapter, and all vehicles and equipment, whether aerial or surface, used to transport such horticultural plants or products.

    (6) "Deceptive pack" means the pack of any container which has in the outer layer or any exposed surface, horticultural plants or products which are in quality, size, condition, or any other respect so superior to those in the interior of the container in the unexposed portion as to materially misrepresent the contents.  Such pack is deceptive when the outer or exposed surface is composed of horticultural plants or products whose size is not an accurate representation of the variation of the size of such horticultural plants or products in the entire container, even though such horticultural plants or products in the container are virtually uniform in size or comply with the specific horticultural plant or product for which the director in prescribing standards for grading and classifying has prescribed size variations or if such size variations are prescribed by law.

    (7) "Deceptive arrangement or display" of any horticultural plants or products, means any bulk lot or load, arrangement or display of such horticultural plants or products which has in the exposed surface, horticultural plants or products which are so superior in quality, size, condition, or any other respect to those which are concealed, or the unexposed portion, as to materially misrepresent any part of such bulk lot or load, arrangement, or display.

    (8) "Mislabel" means the placing or presence of any false or misleading statement, design, or device upon any container, or upon the label or lining of any such container, or upon the wrapper of any horticultural plants or products, or upon any such horticultural plants or products, or any placard used in connection therewith and having reference to such horticultural plants or products.  A statement, design, or device is false or misleading when the horticultural plant or product or container to which it refers does not conform to such statement.

    (9) "Container" means any container, subcontainer used within a container, or any type of a container used to prepackage any horticultural plants or products:  PROVIDED, That this does not include containers used by a retailer to package such horticultural plants or products sold from a bulk display to a consumer.

    (10) "Agent" means broker, commission merchant, auctioneer, solicitor, seller, or consignor, and any other person acting upon the actual or implied authority of another.

    (11) "Inspection and certification" means, but is not limited to, the inspection of any horticultural plant or product at any time prior to, during, or subsequent to harvest, by the director, and the issuance by him of a written permit to move or sell or a written certificate stating the grade, classification, and if such horticultural plants or products are free of plant pests and/or other defects.

    (12) "Plant pests" means, but is not limited to, any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitic plants or reproductive parts thereof, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substance, which can directly or indirectly injure or cause disease or damage in any plant or parts thereof, or any processed, manufactured, or other products of plants.))  "Agent" means broker, commission merchant, solicitor, seller, or consignor, and any other person acting upon the actual or implied authority of another.

    (2) "Certification" means, but is not limited to, the issuance by the director of an inspection certificate or other official document stating the grade, classification, and/or condition of any fruits or vegetables, and/or if the fruits or vegetables are free of plant pests and/or other defects.

    (3) "Combination grade" means two or more grades packed together as one, except cull grades, with a minimum percent of the product of the higher grade, as established by rule.

    (4) "Compliance agreement" means an agreement entered into between the department and a shipper or packer, that authorizes the shipper or packer to issue certificates of compliance for fruits and vegetables.

    (5) "Container" means any container or subcontainer used to prepackage any fruits or vegetables.  This does not include a container used by a retailer to package fruits or vegetables sold from a bulk display to a consumer.

    (6) "Deceptive arrangement or display" means any bulk lot or load, arrangement, or display of fruits or vegetables which has in the exposed surface, fruits or vegetables which are so superior in quality, size, condition, or any other respect to those which are concealed, or the unexposed portion, as to materially misrepresent any part of the bulk lot or load, arrangement, or display.

    (7) "Deceptive pack" means the pack of any container which has in the outer layer or any exposed surface fruits or vegetables which are in quality, size, condition, or any other respect so superior to those in the interior of the container in the unexposed portion as to materially misrepresent the contents.  Such pack is deceptive when the outer or exposed surface is composed of fruits or vegetables whose size is not an accurate representation of the variation of the size of the fruits or vegetables in the entire container, even though the fruits or vegetables in the container are virtually uniform in size or comply with the specific standards adopted under this chapter.

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

    (9) "Director" means the director of the department or his or her duly authorized representative.

    (10) "District manager" means a person representing the director in charge of overall operation of a fruit and vegetable inspection district established under RCW 15.17.230.

    (11) "Facility" means, but is not limited to, the premises where fruits and vegetables are grown, stored, handled, or delivered for sale or transportation, and all vehicles and equipment, whether aerial or surface, used to transport fruits and vegetables.

    (12) "Fruits and vegetables" means any unprocessed fruits or vegetables.

    (13) "Handler" means any person engaged in the business of handling, selling, processing, storing, shipping, or distributing fruits or vegetables that he or she has purchased or acquired from a producer.

    (14) "Inspection" means, but is not limited to, the inspection by the director of any fruits or vegetables at any time prior to, during, or subsequent to harvest.

    (15) "Mislabel" means the placing or presence of any false or misleading statement, design, or device upon any wrapper, container, container label or lining, or any placard used in connection with and having reference to fruits or vegetables.

    (16) "Person" means any individual, firm, partnership, corporation, company, society, or association, and every officer, agent, or employee thereof.

    (17) "Plant pests" means, but is not limited to, any living stage of any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substance, which can directly or indirectly injure or cause disease or damage in any plant or parts thereof, or any processed, manufactured, or other products of plants.

    (18) "Sell" means to sell, offer for sale, hold for sale, or ship or transport in bulk or in containers.

    (19) "Standards" means grades, classifications, and other inspection criteria for fruits and vegetables.

 

    Sec. 3.  RCW 15.17.030 and 1963 c 122 s 3 are each amended to read as follows:

    (1) The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose.  ((The adoption of rules shall be subject to the provisions of chapter 34.05 RCW, concerning the adoption of rules, as enacted or hereafter amended.))

    (2) The director shall, whenever he or she considers the adoption of rules or amendments to existing rules, consult with growers, associations of growers or other industry associations, or other persons affected by such rules or amendments.

    (((3) The director may, on his own motion or shall, on the written application of twenty-five or more interested persons, call a hearing for the purpose of considering changes to any rules prescribed under the provisions of this chapter.))

 

    Sec. 4.  RCW 15.17.050 and 1963 c 122 s 5 are each amended to read as follows:

    (1) The director shall adopt rules providing standards for apples, apricots, Italian prunes, peaches, sweet cherries, pears, potatoes, and asparagus and may adopt rules providing standards for any other fruit or vegetable.  When establishing these standards, the director shall consider the factors of maturity, soundness, color, shape, size, and freedom from mechanical and plant pest injury and other factors important to marketing.

    (2) The director shall adopt rules providing for mandatory inspection of apples, apricots, Italian prunes, peaches, sweet cherries, pears, and asparagus and may adopt rules providing for mandatory inspection of any other fruit or vegetable.

    (3) The director may((, unless otherwise provided for by the laws of this state, or in this chapter, establish)) adopt rules:

    (((1) Providing standards and sizes for grades and/or classifications especially provided for in this chapter for any horticultural plant or product;

    (2) Providing grades and/or classifications for any horticultural plant or product not especially provided for in this chapter.  In establishing such standards for grades and/or classifications, the director shall take into account the factors of maturity, soundness, color, shape, size, and freedom from mechanical and plant pest injury.  When adopting grades and/or classifications for any horticultural plant or product not especially provided for in this chapter the director may consider and adopt grades and/or classifications established by the secretary of agriculture of the United States in effect on July 1, 1963, and any subsequent amendment to such grades and/or classifications prescribed by the said secretary;

    (3))) (a) Fixing the sizes and dimensions of containers to be used for the packing or handling of any ((horticultural plant or product;

    (4) Concerning the inspection of any horticultural plant or product subject to the provisions of this chapter or in cooperation with the United States government or any other state;

    (5) Necessary to carry out the purpose and provisions of this chapter)) fruits or vegetables; and

    (b) Establishing combination grades for fruits and vegetables.  The standards for combination grades shall, by percentage quantities, include two or more of the grades provided for under this chapter.

 

    Sec. 5.  RCW 15.17.060 and 1963 c 122 s 6 are each amended to read as follows:

    The director may adopt any United States ((grade and/or classification)) or other state's standard for any ((horticultural plant or product especially provided for in this chapter if such United States grade and/or classification)) fruits and vegetables, if that standard is determined by the director to be substantially equivalent to or better than the ((minimum grade and/or classification especially provided for such horticultural plant or product in)) standard adopted under this chapter.

 

    Sec. 6.  RCW 15.17.080 and 1963 c 122 s 8 are each amended to read as follows:

    It ((shall be)) is unlawful for any person to sell ((fresh fruits)) for fresh consumption any fresh fruits classified as culls under the provisions of this chapter or rules adopted hereunder unless such fruit is packed in one-half bushel or one bushel wooden baskets ring faced, with the fruit in the ring face representative of the size and quality of the fruit in such baskets.  ((Such)) The baskets shall be lidded and the words "cull" including the kind of fruit and variety must appear on the top and side of each basket and on any label ((thereon)) in clear and legible letters at least two and one-half inches high.  Every bill of lading, invoice, memorandum, and document referring to ((said)) the fruit shall designate them as culls.

 

    Sec. 7.  RCW 15.17.090 and 1963 c 122 s 9 are each amended to read as follows:

    The director may approve and register a private grade or brand for any ((horticultural plant or product:  PROVIDED, That such)) fruit or vegetable.  The private grade or brand shall not be lower than the second grade and/or classification established under the provisions of this chapter or rules adopted ((hereunder)) under this chapter for ((such horticultural plant or product)) the fruit or vegetable.

 

    Sec. 8.  RCW 15.17.130 and 1963 c 122 s 13 are each amended to read as follows:

    ((The provisions of)) (1) This chapter ((shall)) does not apply:

    (((1))) (a) To the movement in bulk of any ((horticultural plant or product)) fruits or vegetables from the premises where they are grown or produced to a packing shed, warehouse, or processing plant ((within the area of production prior to inspection and/or grading where such inspection and/or grading is to be performed at such packing shed, warehouse, or processing plant; nor

    (2))) for the purpose of storing, grading, packing, labeling, or processing prior to entering commercial channels for wholesale or retail sale;

    (b) To any processed, canned, frozen, or dehydrated ((horticultural plants or products; nor

    (3) Shall this chapter prevent the manufacture of)) fruits or vegetables;

    (c) To any infected ((horticultural plant or product)) or infested fruits or vegetables to be manufactured into byproducts or ((its shipment)) to be shipped to a byproducts plant; or

    (d) To the sale of up to five hundred pounds per day of any fruit or vegetable by any producer or handler directly to an individual ultimate consumer unless otherwise established by rule for an individual commodity.  These fruits and vegetables shall meet the requirements of RCW 15.17.210(1)(b).

    (2) The inspection requirements of this chapter do not apply to the sale or transportation within a zone of production, as defined by rule, of any fruit or vegetable named in RCW 15.17.050(1) or any combination of those fruits and vegetables to a fruit or produce stand or farmers market in a quantity specified by the director by rule.

 

    Sec. 9.  RCW 15.17.140 and 1963 c 122 s 14 are each amended to read as follows:

    (1) Any person financially interested in any ((horticultural plants or products)) fruits or vegetables in this state may ((apply to the director for)) request inspection and/or certification ((as to whether such horticultural plants or products meet the requirements provided for by the laws of this state, the provisions of this chapter or rules adopted hereunder, or the standards for grading and classifying such horticultural plants or products established by the secretary of the United States department of agriculture, or by any other state, or by contractual agreement between buyers and sellers of such horticultural plants or products)) services provided for those fruits or vegetables under this chapter.

    (2) To facilitate the movement or sale of fruits and vegetables or other agricultural commodities, the director may provide, if requested by growers or other interested persons, special inspections or certifications not otherwise authorized under this chapter and shall prescribe a fee for that service.

    (3) Persons requesting services shall be responsible for payment of fees for those services prescribed by the director under RCW 15.17.150.

 

    Sec. 10.  RCW 15.17.150 and 1963 c 122 s 15 are each amended to read as follows:

    The director shall ((prescribe)) adopt rules establishing the necessary fees to ((be charged, (1) to the owner or his agent for the inspection and certification of any horticultural plants or products subject to the provisions of this chapter or rules adopted hereunder, (2) for inspection and certification when such inspection and certification is performed at the request of any person financially interested in any horticultural plants or products which are, or are not, subject to the provisions of this chapter or rules adopted hereunder, produced in, or imported into, this state)) recover the costs of providing inspection and/or certification or other requested services

    (1) The fees ((provided for in this section shall become)) are due and payable ((by the end of the next business day and if such fees are not paid within the prescribed time the director may withdraw inspection or refuse to perform any inspection or certification services for the person in arrears:  PROVIDED, That the director in such instances may demand and collect inspection and certification fees prior to inspecting and certifying any horticultural plants or products for such person)) upon billing.

    (2) A late fee of one and one-half percent per month on the unpaid balance shall be assessed against persons more than thirty days in arrears.

    (3) In addition to other penalties, the director may refuse to perform any inspection or certification service provided under this chapter for any person in arrears unless the person makes payment in full prior to such inspection or certification service.

    (4) The director may refuse to perform inspection or certification service for any person who has failed to pay assessments required by law to any agricultural commodity commission.

 

    Sec. 11.  RCW 15.17.170 and 1963 c 122 s 17 are each amended to read as follows:

    Every inspection certificate or other official document issued by the director under the provisions of this chapter shall be received in all the courts of the state as prima facie evidence of the statements therein.

 

    Sec. 12.  RCW 15.17.190 and 1963 c 122 s 19 are each amended to read as follows:

    The director may enter during business hours and inspect any ((horticultural)) facility where any ((horticultural plants or products are produced)) fruits or vegetables are processed, stored, packed, delivered for shipment, loaded, shipped, being transported, or sold, and may inspect all ((such horticultural plants or products)) fruits or vegetables and the containers ((thereof)) and the equipment in ((any such horticultural)) that facility.  The director may take for inspection ((such)) representative samples of ((such horticultural plants or products)) fruits or vegetables and ((such)) containers as may be necessary to determine whether or not ((provisions of)) this chapter or rules adopted ((hereunder)) under this chapter have been violated((, and may subject such samples of horticultural plants or products to any method of inspection or testing.  Should)).  If the director ((be)) is denied access to any ((horticultural facilities where such access was sought for the purpose set forth in this section, he)) facility, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to ((such horticultural facilities for said purpose)) the facility.  The court may upon such application issue ((the)) a search warrant for the purpose requested.

 

    Sec. 13.  RCW 15.17.200 and 1987 c 202 s 172 are each amended to read as follows:

    ((The director may affix to any such lot or part thereof of horticultural plants or products a tag or notice of warning that such lot of horticultural plants or products is held and stating the reasons therefor.  It shall be unlawful for any person other than the director to detach, alter, deface, or destroy any such tag or notice affixed to any such lot, or part thereof, of horticultural plants or products, or to remove or dispose of such lot, or part thereof, in any manner or under conditions other than as prescribed in such tag or notice, except on the written permission of the director or the court.

    The director shall forthwith cause a notice of noncompliance to be served upon the person in possession of such lot of horticultural plants or products.  The notice of noncompliance shall include a description of the lot, the place where, and the reason for which, it is held, and it shall give notice that such lot of horticultural plants or products is a public nuisance and subject to disposal as provided in this section unless, within a minimum of seventy-two hours or such greater time as prescribed in the notice by the director, it is reconditioned or the deficiency is otherwise corrected so as to bring it into compliance.

    If the person so served is not the sole owner of such lot of horticultural plants or products, or does not have the authority as an agent for the owner to bring it into compliance, it shall be the duty of such person to notify the director forthwith in writing giving the names and addresses of the owner or owners and all other persons known to him or her to claim an interest in such lot of horticultural plants or products.  Any person so served shall be liable for any loss sustained by such owner or other person whose name and address he or she has knowingly concealed from the director.

    If such lot of horticultural plants or products has not been reconditioned or the deficiency corrected so as to bring it into compliance within the time specified in the notice, the director shall forthwith cause a copy of such notice to be served upon all persons designated in writing by the person in possession of such lot of horticultural plants or products to be the owner or to claim an interest therein.  Any notice required by this section may be served personally or by mail addressed to the person to be served at last known address.

    The director with the written consent of all such persons so served, is hereby authorized to destroy such lot of horticultural plants or products or otherwise abate the nuisance.  If any such person fails or refuses to give such consent, then the director shall proceed in the manner provided for such purposes in this section.

    If such lot of horticultural plants or products is perishable or subject to rapid deterioration the director may, through the prosecutor in the county where such horticultural plants or products are held, file a verified petition in the superior court of the said county to destroy such lot of horticultural plants or products or otherwise abate the nuisance.  The petition shall state the condition of such lot of horticultural plants or products, that such lot of horticultural plants or products is held, and that notice of noncompliance has been served as provided in this chapter.  The court may then order that such lot of horticultural plants or products be forthwith destroyed or the nuisance otherwise abated as set forth in said order.

    If such lot of horticultural plants or products is not perishable or subject to rapid deterioration, the director may, through the prosecutor in the county in which it is located, file a petition within five days of the serving of the notice of noncompliance upon the owners or person in possession of such lot of horticultural plants or products in the superior court or district court of the said county for an order to show cause, returnable in five days, why such lot of horticultural plants or products should not be abated.  The owner or person in possession, on his or her own motion within five days from the expiration of the time specified in the notice of noncompliance, may file a petition in such court for an order to show cause, returnable in five days, why such lot of horticultural plants or products should not be released to the petitioner and any warning tags previously affixed removed therefrom.

    The court may enter a judgment ordering that such lot of horticultural plants or products be condemned and destroyed in the manner directed by the court or relabeled, or denatured, or otherwise processed, or sold, or released upon such conditions as the court in its discretion may impose to insure that the nuisance will be abated.  In the event of sale by the owner or the court, the costs of storage, handling, reconditioning, and disposal shall be deducted from the proceeds of the sale and the balance, if any, paid into the court for the owner))

    (1) For the purposes of this section, "lot" means any lot or any part of a lot.

    (2) When the director determines that any lot of fruits or vegetables fails to comply with the requirements of this chapter, the director may issue a hold order prohibiting the sale or movement of that lot except under conditions that may be prescribed.

    (3)(a) Written notice of the hold order must be provided to the person in possession of the lot of fruits or vegetables and a tag may be affixed to the lot or its containers.  It is unlawful for any person except the director to alter, deface, or remove the tag or notice or to move or allow the lot of fruits or vegetables to be moved except under the conditions prescribed on the tag or notice.

    (b) The notice shall include:

    (i) A description of the lot that is in noncompliance;

    (ii) The location of the lot;

    (iii) The reason that the hold order is placed on the lot;

    (iv) Any reconditioning, other corrective measures, or diversion to processing that may be required to release the lot for sale;

    (v) Time frames to affect the reconditioning or other corrective measures; and

    (vi) A reference to the violation of this chapter that provides the basis for the hold order.

    (c) Any corrective measures required by the notice pursuant to (b)(iv) of this subsection and the costs associated therewith are the sole responsibility of the person holding the fruits or vegetables for sale.

    (4) Upon issuance of a hold order by the director under this section, the seller or holder of the fruits or vegetables may request a hearing.  The request for hearing must be in writing and filed with the director.  Any hearing shall be held in conformance with RCW 34.05.422 and 34.05.479.

 

    Sec. 14.  RCW 15.17.210 and 1994 c 67 s 2 are each amended to read as follows:

    It is unlawful:

    (1) To sell((, offer for sale, hold for sale, ship, or transport)) any ((horticultural plants or products)) fruits or vegetables:

    (((1) Subject to the requirements of RCW 15.17.040 unless they meet the requirements;

    (2))) (a) As meeting ((either)) the ((grades or classifications, or both, and)) standards ((and sizes for the grades or classifications as adopted or amended by the director under RCW 15.17.050 unless they meet the standards and sizes for either grades or classifications, or both;

    (3) As meeting the standards and sizes for private grades or brands as approved by the director under RCW 15.17.090 unless they meet the standards and sizes)) for any fruit or vegetable as prescribed by the director unless they in fact do so;

    (((4))) (b) For which no standards have been established under this chapter unless ninety percent or more by weight or count, as determined by the director, are free from plant pest injury that has penetrated or damaged the edible portions and from worms, mold, slime, or decay;

    (c) In containers other than the size and dimensions prescribed by the director((, when he or she has prescribed)) by rule ((the size and dimensions for containers in which any horticultural plants or products will be placed or packed.  However, this subsection shall not apply when any such horticultural plants or products are being shipped or transported to a packing plant, processing plant, or cold storage facility for preparation for market));

    (((5))) (d) Unless the containers in which the ((horticultural plants or products)) fruits or vegetables are placed or packed are marked ((as prescribed by the director, with either the proper United States or Washington grade or classification, or both, or private grades or brands of the horticultural plants or products;

    (6) Unless the containers in which the horticultural plants or products are placed or packed are marked as prescribed by the director, which may include the following)) with the proper grade and additional information as may be prescribed by rule.  The additional information may include:

    (((a))) (i) The name and address of the grower, or packer, or distributor;

    (((b))) (ii) The varieties of the ((horticultural plants or products)) fruits or vegetables;

    (((c))) (iii) The size, weight, and either volume or count, or both, of the ((horticultural plants or products)) fruits or vegetables;

    (((7))) (e) Which are in containers marked or advertised for sale or sold as being either graded or classified, or both, according to the standards ((and sizes)) prescribed by the director ((or by law)) by rule unless the ((horticultural plants or products)) fruits or vegetables conform with ((either grades or classifications, or both, and their standards and sizes)) the standards;

    (((8))) (f) Which are deceptively packed;

    (((9))) (g) Which are deceptively arranged or displayed;

    (((10))) (h) Which are mislabeled; or

    (((11) Which are in containers marked with a Washington state grade designation for apples, unless the containers of apples were packed in the state of Washington;

    (12))) (i) Which do not conform to ((the provisions of)) this chapter or rules adopted ((hereunder)) under this chapter;

    (2) For any person to ship or transport or any carrier to accept any lot of fruits or vegetables without an inspection certificate, permit, or certificate of compliance when the director has prescribed by rule that such products be accompanied by an inspection certificate, permit, or certificate of compliance.  The inspection certificate, permit, or certificate of compliance shall be on a form prescribed by the director and may include methods of denoting that all assessments provided for by law have been paid before the fruits or vegetables may lawfully be delivered or accepted for shipment;

    (3) For any person to refuse to submit any container, load, or display of fruits or vegetables for inspection by the director, or refuse to stop any vehicle or equipment containing such products for the purpose of inspection by the director; or

    (4) For any person to move any fruits or vegetables or their containers to which any tag has been affixed, except as provided in RCW 15.17.200.

 

    Sec. 15.  RCW 15.17.230 and 1986 c 203 s 2 are each amended to read as follows:

    For the purpose of this chapter the state shall be divided into not less than three ((horticulture)) fruit and vegetable inspection districts to which the director may assign ((one or more inspectors-at-large)) a district manager who ((as a representative of the director)) shall supervise and administer regulatory and inspection affairs of the districts((:  PROVIDED, That for purposes of efficiency and economy the director may by rule promulgated in accordance with the Administrative Procedure Act establish or adjust district boundaries or abolish any district:  PROVIDED, HOWEVER, That there shall be at least three districts in existence at all times)).  The director, by rule, shall establish the boundaries of the districts and may adjust the boundaries for purposes of efficiency and economy.

 

    Sec. 16.  RCW 15.17.240 and 1975 c 40 s 3 are each amended to read as follows:

    (1) The ((inspectors-at-large in charge of such inspections)) district managers shall collect the fees ((therefor)) provided for under this chapter and deposit them in the ((horticultural)) fruit and vegetable  district fund in any bank in the district approved for the deposit of state funds.  ((The inspectors-at-large shall expend fees deposited in the horticultural district fund to assist in defraying the expenses of inspections and they)) The fees shall be used to carry out the provisions of this chapter and no appropriation is required for disbursement from the fund.  District managers shall ((make)) approve payments from the ((horticultural)) fruit and vegetable inspection district funds to the ((horticultural)) fruit and vegetable inspection trust ((fund in Olympia as authorized by the director)) account in accordance with RCW 15.04.100 (as recodified by this act).  ((Inspectors-at-large shall furnish bonds to the state in amounts set by the director of the department of general administration, pursuant to RCW 43.19.540, with sureties approved by the director of agriculture, conditioned upon the faithful handling of said funds for the purposes specified; and shall, on or before the tenth day of each month, render)) On a monthly basis, each district manager shall provide to the director ((of agriculture)) a detailed account of the receipts and disbursements for the preceding month.

    (2) Assessments and other fees approved by the director or authorized by law and collected by the district managers shall be deposited in the fruit and vegetable inspection district funds and distributed to the appropriate fund or agency.

 

    Sec. 17.  RCW 15.17.260 and 1963 c 122 s 26 are each amended to read as follows:

    The director may bring an action to enjoin the violation of any provision of this chapter or rule adopted pursuant to this chapter in the superior court of Thurston county or of any county in which such violation occurs, notwithstanding the existence of other remedies at law.

 

    Sec. 18.  RCW 15.17.290 and 1963 c 122 s 30 are each amended to read as follows:

    Any person ((violating the provisions of)) who violates this chapter or rules adopted ((hereunder is guilty of a misdemeanor)) under this chapter may be subject to:

    (1) Suspension of any compliance agreement under this chapter to which the person is a party for a period not to exceed twelve consecutive months; and/or

    (2) A civil penalty in an amount of not more than one thousand dollars for each violation.

 

    Sec. 19.  RCW 15.04.100 and 1987 c 393 s 2 are each amended to read as follows:

    The director shall establish a ((horticulture)) fruit and vegetable inspection trust ((fund)) account to be derived from ((horticulture)) fruit and vegetable inspection district funds.  The director shall adjust district payments so that the balance in the trust ((fund)) account shall not exceed three hundred thousand dollars.  The director is authorized to make payments from the trust ((fund)) account to:

    (1) Pay fees and expenses provided in the inspection agreement between the ((state)) department ((of agriculture)) and the agricultural marketing service of the United States department of agriculture;

    (2) Assist ((horticulture)) fruit and vegetable inspection districts in temporary financial distress as a result of less than normal production of ((horticultural commodities:  PROVIDED, That)) fruits and vegetables.  Districts receiving such assistance shall ((make repayment to)) repay the trust ((fund)) account as district funds ((shall)) permit.  Temporary financial distress and terms of the trust account repayment shall be determined by the director;

    (3) Pay necessary administrative ((expenses)) expenditures for the commodity inspection division attributable to the supervision of the ((horticulture)) fruit and vegetable inspection services.

 

    NEW SECTION.  Sec. 20.  A new section is added to chapter 15.17 RCW to be codified between RCW 15.17.140 and 15.17.150 to read as follows:

    Any shipper or packer of apples, apricots, cherries, pears, peaches, Italian prunes, potatoes, or asparagus may petition the director for authority to issue certificates of compliance for each season.  The director may issue certificate of compliance agreements, granting this authority, on terms and conditions defined by rule.  Certificates of compliance shall only be issued for fruits or vegetables that are in full compliance with this chapter and the rules adopted under this chapter.

 

    NEW SECTION.  Sec. 21.  The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

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

    (2) "Director" means the director of the department or his or her duly authorized representative.

    (3) "Facility" means, but is not limited to, the premises where ginseng is grown, stored, dried, handled, or delivered for sale or transportation, or where records required by rule under this chapter are stored or kept, and all vehicles and equipment, whether aerial or surface, used to transport ginseng.

    (4) "Grower" means a person who grows cultivated, wild simulated, and/or woodsgrown American ginseng and sells it to a dealer.

    (5) "Person" means any individual, firm, partnership, corporation, company, society, or association, and every officer, agent, or employee thereof.

 

    NEW SECTION.  Sec. 22.  The director shall enforce and carry out the provisions of this chapter and may adopt the necessary rules to carry out its purpose.

 

    NEW SECTION.  Sec. 23.  In addition to the powers conferred on the director under this chapter, the director has the power to adopt rules:

    (1) Establishing certification requirements for American ginseng (Panax quinquefolius L.).

    Certification factors include:

    (a) Place of origin;

    (b) Whether the ginseng is wild or cultivated;

    (c) Weight; and

    (d) Date of harvest;

and may include whether the ginseng meets requirements for freedom from infestation by plant pests as required by the importing country;

    (2) Requiring the registration of ginseng growers and of dealers who purchase and/or sell American ginseng for the purpose of foreign export; and

    (3) Requiring that records be maintained by ginseng growers and by dealers who purchase or sell American ginseng for the purpose of foreign export.

    The director may adopt any other rules necessary to comply with the requirements of the convention on international trade in endangered species of wild fauna and flora (27 U.S.T. 108); the endangered species act of 1973, as amended (16 U.S.C. Sec. 1531 et seq.); and 50 C.F.R. Part 23 (1995), as they existed on June 6, 1996, or a subsequent date as may be provided by rule, consistent with the purposes of this section.

 

    NEW SECTION.  Sec. 24.  (1) The director shall adopt rules establishing fees to recover the costs of providing ginseng certification activities authorized under this chapter.  All moneys collected under this chapter shall be paid to the director, deposited in an account within the agricultural local fund, and used solely for carrying out the purposes of this chapter and rules adopted under this chapter.

    (2) In addition to other penalties, the director may refuse to perform any inspection or certification service authorized under this chapter for any person in arrears unless the person makes payment in full prior to performing the service.

 

    NEW SECTION.  Sec. 25.  The director may enter at reasonable times as determined by the director and inspect any facility and any records required under this chapter.  The director may take for inspection those representative samples of ginseng necessary to determine whether or not this chapter or rules adopted under this chapter have been violated.  If the director is denied access to any facility or records, the director may apply to a court of competent jurisdiction for a search warrant authorizing access to the facility or records.  The court may upon such application issue a search warrant for the purpose requested.

 

    NEW SECTION.  Sec. 26.  The director may bring an action to enjoin any violation of this chapter or rule adopted under this chapter in the superior court of Thurston county or of any county in which a violation occurs, notwithstanding the existence of other remedies at law.

 

    NEW SECTION.  Sec. 27.  The director may cooperate with and enter into agreements with governmental agencies of this state, other states, and agencies of the federal government in order to carry out the purpose and provisions of this chapter.

 

    NEW SECTION.  Sec. 28.  The department shall not disclose information obtained under this chapter regarding the purchases, sales, or production of an individual American ginseng grower or dealer, except for providing reports to the United States fish and wildlife service.  This information is exempt from public disclosure required by chapter 42.17 RCW.

 

    NEW SECTION.  Sec. 29.  It is unlawful for a person to sell, offer for sale, hold for sale, or ship or transport American ginseng for foreign export in violation of this chapter or rules adopted under this chapter.

 

    NEW SECTION.  Sec. 30.  Any person who violates the provisions of this chapter or rules adopted under this chapter may be subject to:

    (1) A civil penalty in an amount of not more than one thousand dollars for each violation; and/or

    (2) Denial, revocation, or suspension of any registration or application for registration issued under this chapter.  Upon notice by the director to deny, revoke, or suspend a registration or application for registration, a person may request a hearing under chapter 34.05 RCW.

 

    NEW SECTION.  Sec. 31.  The provisions of this chapter are cumulative and nonexclusive and do not affect any other remedy.

 

    NEW SECTION.  Sec. 32.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

 

    Sec. 33.  RCW 42.17.31909 and 1996 c 188 s 6 are each amended to read as follows:

    Except under ((section 3 of this act)) section 28 of this act, information obtained regarding the purchases, sales, or production of an individual American ginseng grower or dealer is exempt from disclosure under this chapter.

 

    NEW SECTION.  Sec. 34.  The repeal of RCW 15.17.115 and the enactment of chapter 15.-- RCW (sections 21 through 32 of this act) does not repeal any rules adopted under the provisions of chapter 15.17 RCW not in conflict with the provisions of chapter 15.-- RCW (sections 21 through 32 of this act) and in effect immediately prior to the repeal of any section under section 36 of this act.  For the purpose of chapter 15.-- RCW (sections 21 through 32 of this act) it shall be deemed that such rules have been adopted under the provisions of chapter 15.-- RCW (sections 21 through 32 of this act) pursuant to the provisions of chapter 34.05 RCW.

 

    NEW SECTION.  Sec. 35.  Sections 21 through 32 of this act constitute a new chapter in Title 15 RCW.

 

    NEW SECTION.  Sec. 36.  The following acts or parts of acts are each repealed:

    (1) RCW 15.17.040 and 1963 c 122 s 4;

    (2) RCW 15.17.070 and 1963 c 122 s 7;

    (3) RCW 15.17.100 and 1994 c 67 s 1, 1990 c 19 s 1, & 1963 c 122 s 10;

    (4) RCW 15.17.110 and 1963 c 122 s 11;

    (5) RCW 15.17.115 and 1996 c 188 s 2;

    (6) RCW 15.17.120 and 1963 c 122 s 12;

    (7) RCW 15.17.160 and 1963 c 122 s 16;

    (8) RCW 15.17.180 and 1963 c 122 s 18;

    (9) RCW 15.17.220 and 1963 c 122 s 22;

    (10) RCW 15.17.250 and 1977 ex.s. c 26 s 1, 1969 ex.s. c 76 s 3, & 1963 c 122 s 25;

    (11) RCW 15.17.280 and 1963 c 122 s 32;

    (12) RCW 15.17.910 and 1963 c 122 s 28;

    (13) RCW 15.17.920 and 1963 c 122 s 29;

    (14) RCW 15.17.930 and 1963 c 122 s 34;

    (15) RCW 15.17.950 and 1963 c 122 s 35;

    (16) RCW 15.04.020 and 1981 c 296 s 1, 1977 c 75 s 7, & 1961 c 11 s 15.04.020;

    (17) RCW 15.04.030 and 1981 c 296 s 2 & 1961 c 11 s 15.04.030;

    (18) RCW 15.04.040 and 1987 c 393 s 1, 1975-'76 2nd ex.s. c 34 s 11, & 1961 c 11 s 15.04.040;

    (19) RCW 15.04.060 and 1961 c 11 s 15.04.060;

    (20) RCW 15.04.070 and 1981 c 296 s 3 & 1961 c 11 s 15.04.070; and

    (21) RCW 15.04.080 and 1961 c 11 s 15.04.080.

 

    NEW SECTION.  Sec. 37.  (1) RCW 15.04.100 is recodified as a new section in chapter 15.17 RCW to be codified between RCW 15.17.240 and 15.17.260.

    (2) RCW 15.17.130 is recodified as a new section in chapter 15.17 RCW to be codified between RCW 15.17.210 and 15.17.230.

 

    NEW SECTION.  Sec. 38.  RCW 15.17.950 is decodified.


    Passed the Senate March 7, 1998.

    Passed the House February 27, 1998.

Approved by the Governor March 25, 1998.

    Filed in Office of Secretary of State March 25, 1998.