WSR 17-16-136 EXPEDITED RULES DEPARTMENT OF AGRICULTURE [Filed August 1, 2017, 9:30 a.m.]
Title of Rule and Other Identifying Information: Chapter 16-06 WAC, Public records.
NOTICE
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Henri Gonzales, Agency Rules Coordinator, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, email wsdarulescomments@agr.wa.gov, AND RECEIVED BY October 3, 2017.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 16-06 WAC establishes procedures the department follows to provide full access to public records and to implement the provisions of the Public Records Act (chapter 42.56 RCW). The rule establishes procedures for the department to follow in response to requests for public records, including the schedule used by the department for recovering the costs of producing public records. The department is proposing to amend chapter 16-06 WAC to:
(1) Explain the reasons that it would be unduly burdensome for the department to establish the actual costs it charges for providing copies of public records as required by RCW 42.56.120(2), as amended by section 3, chapter 304, Laws of 2017.
(2) Adopt the fee schedule for public records established in RCW 42.56.120, as amended by section 3, chapter 304, Laws of 2017.
(3) Add an exemption related to information about marijuana producers, marijuana processors, and marijuana retailers established in chapter 69.07 RCW as amended by section 4, chapter 138, Laws of 2017, and Title 15 RCW as amended by section 22, chapter 317, Laws of 2017.
Reasons Supporting Proposal: EHB 1595 (chapter 304, Laws of 2017) requires rule making regardless of whether the agency proposes to charge actual costs for producing public records, charge in accordance with the statutory schedule, or waive fees for producing public records. Under EHB 1595, to charge the statutory fees, the department must adopt a rule declaring that charging actual costs would be unduly burdensome. The department proposes to add language explaining why charging actual costs would be unduly burdensome. The department proposes to adopt the fee schedule established in RCW 42.56.120 without material change. And the department proposes to add an exemption to the list of agency exemptions in rule consistent with laws adopted by the 2017 legislature.
These rule amendments meet the criteria for expedited rule making under RCW 34.05.353 (1)(a), (b), and (d).
Statute Being Implemented: RCW 42.56.120, as amended by chapter 304, Laws of 2017.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of agriculture, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Pam Potwin, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-1935.
August 1, 2017
Kirk Robinson
Deputy Director
AMENDATORY SECTION (Amending WSR 17-06-034, filed 2/23/17, effective 3/26/17)
WAC 16-06-200 Costs of disclosure.
(1) No fee will be charged for the inspection of public records.
(2) ((The department charges a fee of fifteen cents per page of photocopy when copy charges exceed twenty dollars for providing copies of public records. The department may also charge actual costs of mailing, including the cost of the shipping container. This charge is the amount necessary to reimburse the department for copying costs incident to the disclosure request.)) Pursuant to RCW 42.56.120(2), as amended by section 3, chapter 304, Laws of 2017, the department declares for the following reasons that it would be unduly burdensome for it to calculate the actual costs it charges for providing copies of public records: Funds were not allocated for performing a study to calculate such actual costs and the agency lacks the necessary funds to perform a study and calculations; staff resources are insufficient to perform a study and to calculate such actual costs; and a study would interfere with and disrupt other essential agency functions.
(3) ((The department may charge the actual cost involved for the duplication of tape recordings, video tapes, photographs, slides, postage, other electronic records, or delivery if these costs exceed twenty dollars.)) The department may charge fees for production of copies of public records consistent with the fee schedule established in RCW 42.56.120, as amended by section 3, chapter 304, Laws of 2017.
(4) The public records officer may waive the fee when the expenses of processing payment exceeds the costs of providing copies.
(((5) Electronic records: The department charges a fee of five cents per page of scanned copy when the costs exceed twenty dollars and the records are converted from paper to electronic format, upon request. There will be no charge for emailing electronic records to a requestor unless another cost applies.))
AMENDATORY SECTION (Amending WSR 17-06-034, filed 2/23/17, effective 3/26/17)
WAC 16-06-210 Exemptions.
The Public Records Act provides that a number of types of information or records are exempt from public inspection and copying. In addition, records are exempt from disclosure if any other statute exempts or prohibits disclosure. Requestors should be aware of the following exemptions to public disclosure specific to department records. This list is not exhaustive and other exemptions may apply:
(1) Personal information in any files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy (reference RCW 42.56.230(3)).
(2) Investigative records (reference RCW 42.56.240).
(3) Test questions, scoring keys, and other examination data used to administer a license (reference RCW 42.56.250(1)).
(4) Records that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts (reference RCW 42.56.290).
(5) Lists of individuals requested for commercial purposes (reference RCW 42.56.070(9)).
(6) Records related to the entry of prohibited agricultural products imported into Washington state or that had Washington state as a final destination received from the United States Department of Homeland Security or the United States Department of Agriculture that are not disclosable by the federal agency under federal law including 5 U.S.C. Sec. 552 (reference RCW 42.56.380(12)).
(7) Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers, except when disclosure is expressly required or governed by other law (reference RCW 42.56.230(5)).
(8) Applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to the applicant (reference RCW 42.56.250(2)).
(9) Residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, Social Security numbers, driver's license numbers, and emergency contact information of employees or volunteers of a public agency, and the names, dates of birth, residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, Social Security numbers, and emergency contact information of dependents of employees or volunteers of a public agency that are held by any agency in personnel records, public employment related records, or volunteer rosters, or are included in any mailing list of employees or volunteers of any public agency (reference RCW 42.56.250(3)).
(10) Information provided for the semi-annual report for fertilizers, minerals and limes that would reveal the business operation of the person making the report (reference RCW 15.54.362(5) and 42.56.380(2)).
(11) The semiannual report required in the Commercial Feed Act is not a public record, and any information given in such report which would reveal the business operation of the person making the report is exempt from disclosure, and information obtained by the department from other governmental agencies or other sources that is used to verify information received in the report is exempt from public disclosure (reference RCW 15.53.9018).
(12) The department has the authority to publish reports of official seed inspections, seed certifications, laboratory statistics, verified violations of this chapter, and other seed branch activities which do not reveal confidential information regarding individual company operations or production (reference RCW 15.49.370(8)).
(13) Business related information obtained under the Organic Food Products Act concerning an entity certified under that act or an applicant for certification under RCW 15.86.110, and records whose disclosure is prohibited by the federal Organic Certification Act, 7 U.S.C. Sec. 6515(g) and the rules adopted under that act (reference RCW 42.56.380(1)).
(14) Consignment information contained on phytosanitary certificates issued by the department under chapters 15.13, 15.17, and 15.49 RCW or federal phytosanitary certificates issued under 7 C.F.R. 353 through cooperative agreements with the animal and plant health inspection service, United States Department of Agriculture, or on applications for phytosanitary certification required by the department (reference RCW 42.56.380(4)).
(15) Financial and commercial information and records supplied by businesses or individuals during application for loans or program services provided by the former chapter 15.110 RCW or chapter 43.325 RCW (the energy freedom loan program) (reference RCW 42.56.270(4)).
(16) Information obtained under RCW 15.19.080 regarding the purchases, sales, or production of an individual American ginseng grower or dealer (reference RCW 42.56.380(6)).
(17) Financial statement information required to determine whether or not an applicant for a license to operate a warehouse under chapter 22.09 RCW, agriculture commodities, meets minimum net worth requirements (reference RCW 22.09.040(9)).
(18) All financial statement information to determine whether or not an applicant for a license to be a grain dealer under chapter 22.09 RCW meets the minimum net worth requirements (reference RCW 22.09.045(7)).
(19) Information submitted by an individual or business to the department of agriculture under the requirements of chapters 16.36, 16.57, and 43.23 RCW for the purpose of herd inventory management for animal disease traceability, is exempt from disclosure. This information includes animal ownership, numbers of animals, locations, contact information, movements of livestock, financial information, the purchase and sale of livestock, account numbers or unique identifiers issued by government to private entities, and information related to livestock disease or injury that would identify an animal, a person or location. Disclosure to local, state, and federal officials is not public disclosure. This exemption does not affect the disclosure of information used in reportable animal health investigations under chapter 16.36 RCW once they are complete (reference RCW 42.56.380(9)).
(20) Results of testing for animal diseases from samples submitted by or at the direction of the animal owner or the owner's designee and that can be identified to a particular business or individual is exempt from disclosure (reference RCW 42.56.380(10)).
(21) Information that can be identified to a particular business and that is collected under chapter 15.17 RCW, standards of grades and packs, and specifically RCW 15.17.140(2) and 15.17.143 for certificates of compliance (reference RCW 42.56.380(7)).
(22) Financial statement information provided under RCW 16.65.030 (1)(d), public livestock markets, is confidential information and not subject to public disclosure (reference RCW 16.65.030 (1)(d) and 42.56.380(8)).
(23) Privileged or confidential information or data that contains trade secrets, commercial, or financial information and is required and submitted under the Washington Pesticide Control Act (reference RCW 15.58.060 (1)(c) and 15.58.065).
(24) Except for release of statistical information not descriptive of any readily identifiable person or persons, all financial and commercial information and records supplied by persons to the department with respect to export market development projects (reference RCW 43.23.270 and 42.56.270(3)).
(25) Information submitted by an applicant under chapter 17.24 RCW that is privileged or confidential because it contains trade secrets or commercial or financial information (reference RCW 17.24.061).
(26) Production or sales records required to determine assessment levels and actual assessment payments to commodity boards and commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.89, 15.100, and 16.67 RCW, or required by the department to administer these chapters or the department's programs (reference RCW 42.56.380(3)).
(27) Financial and commercial information and records supplied by persons:
(a) To the department for the purpose of conducting a referendum for the potential establishment of a commodity board or commission; or
(b) To the department or commodity boards or commissions formed under chapters 15.24, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.89, 15.100, or 16.67 RCW, with respect to domestic or export marketing activities or individual producer's production information (reference RCW 42.56.380(5)).
(28) Farm plans developed by conservation districts, unless the farm plan is used for the application or issuance of a permit (reference RCW 42.56.270(17)).
(29) Under RCW 42.56.610 and 90.64.190, information identifying the number of animals; volume of livestock nutrients generated; number of acres covered by the plan or used for land application of livestock nutrients; livestock nutrients transferred to other persons; and crop yields in plans, records, and reports obtained by state and local agencies from dairies, animal feeding operations, and concentrated animal feeding operations not required to apply for a National Pollutant Discharge Elimination System permit is disclosable in the following ranges:
(a) Number of animals: Beef cattle
1 to 19
20 to 159
160 to 299
300 to 999
1,000 to 5,999
6,000 to 10,999
11,000 to 15,999
16,000 to 20,999
21,000 to 25,999
26,000 to 31,199
31,200 to 37,439
37,440 to 44,999
45,000 and above
(b) Number of animals: Mature dairy cattle
1 to 37
38 to 199
200 to 699
700 to 1,699
1,700 to 2,699
2,700 to 3,699
3,700 to 4,699
4,700 to 5,699
5,700 to 6,839
6,840 and above
(c) Number of animals: Dairy heifers
1 to 49
50 to 149
150 to 299
300 to 999
1,000 to 1,999
2,000 to 2,999
3,000 to 3,999
4,000 and above
(d) Number of animals: Swine (fifty-five pounds or greater)
1 to 19
20 to 159
160 to 399
400 to 749
750 to 2,499
2,500 to 4,249
4,250 to 5,999
6,000 to 7,749
7,750 and above
(e) Number of animals: Swine (less than fifty-five pounds)
1 to 99
100 to 499
500 to 1,099
1,100 to 1,999
2,000 to 2,999
3,000 to 9,999
10,000 to 16,999
17,000 to 23,999
24,000 to 30,999
31,000 and above
(f) Number of animals: Layers (all ages)
1 to 199
200 to 999
1,000 to 10,999
11,000 to 24,999
25,000 to 81,999
82,000 to 138,999
139,000 to 195,999
196,000 to 252,999
253,000 to 309,999
310,000 to 371,999
372,000 to 446,399
446,400 to 535,679
535,680 to 642,815
642,816 to 771,379
771,380 to 925,655
925,656 to 1,110,787
1,110,788 to 1,332,945
1,332,946 and above
(g) Number of animals: Broilers (all ages)
1 to 199
200 to 999
1,000 to 17,999
18,000 to 37,499
37,500 to 124,999
125,000 to 212,499
212,500 to 299,999
300,000 and above
(h) Number of animals: Horses
1 to 19
20 to 79
80 to 149
150 to 499
500 to 849
850 to 1,199
1,200 to 1,549
1,550 and above
(i) Livestock nutrients generated or exported by volume (ft3/day)
1 to 74
75 to 134
135 to 299
300 to 449
450 to 749
750 to 1,499
1,500 to 2,499
2,500 to 4,999
5,000 to 8,499
8,500 to 11,999
12,000 to 15,999
16,000 and above
(j) Livestock nutrients generated or exported by weight (tons/year)
1 to 5,256
5,257 to 10,512
10,513 to 21,024
21,025 to 42,048
42,049 to 84,096
84,097 to 164,184
164,185 to 262,734
262,735 to 394,200
394,201 to 558,384
558,385 to 722,634
722,635 to 919,734
919,735 to 1,051,134
1,051,135 and above
(k) Number of acres covered by the plan or used for land application of livestock nutrients
0 to 25
26 to 65
66 to 120
121 to 300
301 to 550
551 to 900
901 to 1,300
1,301 to 1,800
1,801 to 2,500
2,501 to 3,200
3,201 to 4,000
4,001 to 6,000
6,001 to 9,000
9,001 to 11,500
11,501 to 14,000
14,001 and above
(l) Crop yields - tons/acre
0 to 1
1.1 to 2
2.1 to 3.5
3.6 to 5
5.1 to 7
7.1 to 9
9.1 to 12
12.1 to 14.5
14.6 to 17
17.1 to 19.5
19.6 to 22
22.1 to 26
26.1 and above
(30) Records of international livestock importation that can be identified to a particular animal, business, or individual received from the United States Department of Homeland Security or the United States Department of Agriculture that are not disclosable by the federal agency under federal law including 5 U.S.C. Sec. 552 (reference RCW 42.56.380(11)).
(31) A person aggrieved by a violation of chapter 17.21 RCW or the rules adopted under that chapter is entitled, on request, to have his or her name protected from disclosure in any communication with persons outside the department and in any record published, released, or made available to persons outside the department except as provided in RCW 17.21.340 (1)(a)(ii).
(32) All records, data, and information filed in support of an industrial hemp research program license application (reference RCW 15.120.050(7)).
(33) Information about marijuana producers, marijuana processors, and marijuana retailers otherwise exempt from public inspection and copying under chapter 42.56 RCW is exempt from public inspection and copying if submitted to or used by the department (reference chapter 69.07 RCW as amended by section 4, chapter 138, Laws of 2017 and Title 15 RCW as amended by section 22, chapter 317, Laws of 2017.
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