Ms. Tena Ondeck
2096 Halverstick Road
Lynden, Washington 98264
| Re: Appeal of the October 20, 2000 denial by the Washington State Department of Agriculture (WSDA) of that certain request for repeal of WAC 16-143 filed by Ms. Tina Ondeck |
Thank you for your November 17, 2000 appeal of WSDA's denial of
your request for repeal of WAC 16-143, the Red Raspberry Grades
and Standards rule. As explained in more detail below, WSDA has
already undertaken to review and revise the questioned Small
Business Environmental Impact Statement (SBEIS) and reconsider
the rule. Accordingly, your appeal is moot and I have therefore
denied it.
Your appeal raises a number of specific concerns with respect to
the validity of the rule adopted by WSDA and I will address them
in sequence.
1. Your appeal contends that "the rule making process was flawed
in that no small businesses were contacted in preparation of the
Small Business Economic Impact Statement". In support of that
contention you supplied the November 8, 2000 statement of WSDA
employee Ms. Diane Dolstad, who worked on preparing the SBEIS.
Ms. Dolstad's statement addresses the circumstances under which
she prepared the SBEIS, and does raise significant questions
about the quality of the final SBEIS. Ms. Dolstad perceived that
the limitations placed on her excluded essential information and
fatally flawed the SBEIS. The Joint Administrative Rules Review
Committee (JARRC) subsequently found that WSDA failed to comply
with the Regulatory Fairness Act and that the SBEIS was
insufficient.
I asked WSDA director Jim Jesernig about his response to JARRC's
finding, and have learned that WSDA has already initiated a new
public process to reevaluate the SBEIS, as well as to gauge
support for the rule itself. This process will entail a public
hearing and a mailed advisory ballot. Based on the results of
these efforts, WSDA will determine whether to adopt or withdraw
the rule. I have enclosed a copy of Director Jesernig's
memorandum to me describing this plan for reconsideration of the
rule.
2. Your appeal further contends that "the required petitioning
document from the petitioning agency was not submitted as
required." The appeal notes that the Red Raspberry Commission
did not petition WSDA to undertake the rulemaking, and implies
that, in the absence of such a petition, WSDA lacked authority to
adopt the rule. That contention is not valid as WSDA director
Jim Jesernig explained in his October 20, 2000 denial of your
appeal.
The director of WSDA is authorized to adopt rules to achieve the
purposes of both the state laws covering Standards for Grade and
Pack (RCW 15.17.030) and addressing Intrastate Commerce in Foods,
Drugs and Cosmetics (RCW 69.04). While the Administrative
Procedures Act allows any person to petition an agency to request
adoption of a rule, such a petition is not a required
prerequisite for agency action. (See RCW 34.05.330).
3. Your appeal argues that "this is an economic issue... not a food
safety or food adulteration issue" and that WSDA does not have
authority to propose rules which involve regulating the economics
of the state." While it is recognized that nearly all
administrative rules have some economic impact, the rule you seek
to have repealed does not purport to regulate the economics of
our state. There is no doubt in my mind that the rule was
designed solely to protect the health, safety and general welfare
of the citizens of this state. Such rules are well within the
authority of WSDA, and are fundamental to the purpose of WSDA.
WSDA is authorized to protect the "reputation of fruit and
vegetable products grown and shipped from this state" and to
protect "the immediate and future health, safety and general
welfare of the citizens of this state." (See RCW 15.17.010 and
RCW 15.17.050). RCW 15.17.050 explicitly authorizes the director
to "adopt rules providing standards for any other fruit or
vegetable." Additionally, pursuant to the Intrastate Commerce in
Food, Drugs, and Cosmetics Act (RCW 69.04), the director of WSDA
is charged with making rules that establish reasonable standards
of quality. The purpose of that act is, in part, to safeguard
the public health and promote the public welfare by protecting
the consuming public from adulterated products, including food
that has "been produced, prepared, packed or held under
insanitary conditions whereby it may have become contaminated
with filth, or whereby it may have been rendered diseased,
unwholesome, or injurious to health." (See RCW 69.04.210(4)).
The administrative record compiled by WSDA during its rule
adoption process describes circumstances where raspberries
harvested into drums become or may become contaminated with
foreign material such as leaves, sticks or dirt. The rule
adopted by WSDA addresses the requirements for juice stock red
raspberries to be processed or filtered prior to sale and is
clearly within WSDA's authority to protect the public from
adulterated products.
In conclusion, there is no basis to repeal WAC 16-143 on the
grounds that WSDA lacked authority to adopt it. Furthermore,
WSDA has initiated a process to reevaluate the SBEIS as well as
the rule. The reevaluation will be based on a well-advertised
public hearing and an advisory ballot sent to growers. For these
reasons, I have denied your petition to repeal the rule.
I have asked Director Jesernig to keep me regularly informed of
his progress on this matter so I can follow the status of the
rule and the views of affected growers.
Thank you for your extensive efforts and profound commitment to
the health of the red raspberry industry in our state and the
quality of its products.
Sincerely,
Gary Locke
Governor
Enclosure
| cc: | Dennis W. Cooper, Code Reviser |
| Tim Martin, Co-Chief Clerk, House of Representatives | |
| Cindy Zehnder, Co-Chief Clerk, House of Representatives | |
| Tony Cook, Secretary of the Senate | |
| Jim Jesernig, Director, WSDA |
Reviser's note: The typographical error in the above material occurred in the copy filed by the Office of the Governor and appears in the Register pursuant to the requirements of RCW 34.08.040.