AN ACT Relating to a
forest products commission; amending RCW 42.17.31907 and 43.135.055; adding a
new section to chapter 82.32 RCW; and adding a new chapter to Title 15 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. The legislature finds
that the creation of a forest products commission would assist in expanding the
state's economy, because:
(1) Marketing is a
dynamic and changing part of the Washington forest products industry and a
vital element in expanding the state economy;
(2) The sale in the
state and export to other states and abroad of forest products made in the
state contribute substantial benefits to the economy of the state, provide a
large number of jobs and sizeable tax revenues, and are key components of the
health of many local communities because many secondary businesses are largely
dependent on the health of the forest products industry; and
(3) Forest products are
made from a renewable resource and are more environmentally sound than many
alternative products.
NEW SECTION. Sec.
2. Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1)
"Commission" means the forest products commission.
(2)
"Department" means the department of agriculture.
(3)
"Director" means the director of the department of agriculture or the
director's authorized representative.
(4) "Forest
products" or "timber" means trees of any species maintained for
eventual harvest whether planted or of natural growth, standing or down, on
privately or publicly owned land, and also includes wood products related
thereto, but does not include Christmas trees or other trees on which the
timber excise tax provided under chapter 84.33 RCW is not imposed.
(5) "Person"
includes any individual, corporation, firm, partnership, trust, association, or
any other organization of individuals.
(6) "Producer"
means any person who harvests timber in Washington state and pays the timber
excise tax imposed under chapter 84.33 RCW on at least two million board feet
in a calendar year or in four consecutive calendar quarters.
(7) "Eastern
Washington" means that portion of the state lying east of the Cascade
mountain range.
(8) "Western
Washington" means that portion of the state lying west of the Cascade
mountain range.
NEW SECTION. Sec.
3. (1)(a) There is created a
commodity commission to be known and designated as the Washington forest
products commission. The commission is composed of nine voting members. The
commission may, in its sole discretion, add or remove nonvoting ex officio members
to the commission. Of the members, six shall be from western Washington, and
three shall be from eastern Washington. After the initial election of
commission members, however, if a position cannot be filled by a member from
eastern Washington within sixty days from the date on which nominations may
first be received because of a lack of candidates, the position may be filled
by a member from western Washington. Under no circumstances will there be less
than two board members from eastern Washington. If a position was filled by a
member from western Washington because of a lack of candidates from eastern
Washington, and districts are not used for the nomination and election of
members, then a person from eastern Washington must fill the next available
vacancy or open position at the next election to bring the number of
representatives from eastern Washington up to three members. All members shall
be elected by the entire group of producers unless the commission creates
districts for the members as authorized in section 5 of this act. If districts
are used for the nomination and election of commission members, and it does not
appear that one of the positions from eastern Washington will be filled because
of a lack of candidates, then a commission member who resides in western
Washington must be elected by the entire group of producers as an at-large
member. The position of the western Washington member who is elected as an
at-large member shall be filled by a member from eastern Washington at the expiration
of the term of the at-large member. If districts are not used for the
nomination and election of members, the commission shall strive to achieve
representation on the commission from the different geographic regions of the
state.
(b) Of the six members
from western Washington, three members must have annual harvests of more than
seventy-five million board feet, and three members must have annual harvests
between two million board feet and seventy-five million board feet.
(c) Of the two members
from eastern Washington, one member must have an annual harvest greater than
forty million board feet, and one member must have an annual harvest between
two million board feet and forty million board feet. If there is a third
member from eastern Washington, the only harvest requirement is that the member
have an annual harvest of at least two million board feet.
(2) The members must be
citizens and residents of this state, and over the age of twenty-one years.
Each member must currently, and for the five years last preceding his or her
election, be actually engaged in producing forest products within the state of
Washington, either individually or as an officer of a corporation, firm,
partnership, trust, association, or business organization at the level of
production required to qualify as a producer. Each member must also derive a
substantial amount of his or her income from the production of forest
products. The qualifications set forth in this section apply throughout each
member's term of office.
(3) No more than one
member of the commission may be employed by, or connected in a proprietary
capacity with, the same corporation, firm, partnership, trust, association, or
business organization.
(4) Five voting members
of the commission constitute a quorum for the transaction of all business and
the carrying out of the duties of the commission.
(5) The regular term of
office of the members is four years from November 1st following their election
and until their successors are elected and qualified. However, the first terms
of the members elected November 1, 2001, is as follows: Positions one, four,
and seven terminate November 1, 2003; positions two, five, and eight terminate
November 1, 2004; and positions three, six, and nine terminate November 1, 2005.
NEW SECTION. Sec.
4. (1) The director shall
call the initial meeting of producers of forest products for the purpose of
nominating their respective members of the commission. Public notice of the
meeting shall be given by the director in the manner the director determines is
appropriate. A producer may on his or her own motion file his or her name with
the director for the purpose of receiving notice of the meeting. The
nonreceipt of the notice by any interested person does not invalidate the
proceedings.
(2) Prior to the
nomination of commission members, the department of revenue shall provide the
director with a list of all qualified producers within the state based upon tax
records of the department.
(3) For the initial
election of commission members, any qualified producer may be nominated orally
for a commissioner position at the meeting convened by the director.
Nominations may also be made within five days prior to the meeting by a written
petition filed with the department, signed by at least five producers who
reside in the state. If the director determines that one of the positions from
eastern Washington will go unfilled because of a lack of candidates, the
director shall announce that this position shall be filled by a member from
western Washington. If the position designated for eastern Washington is
filled by a member from western Washington because of a lack of candidates from
eastern Washington, this position shall be designated as position number seven
by the director for purposes of section 3(5) of this act. Under no
circumstances will there be less than two board members from eastern
Washington.
(4) The initial members
of the commission shall be elected by secret mail ballot under the supervision
of the director at the same time the referendum is submitted under section 12
of this act calling for the creation of the commission and the imposition of
the initial assessment. If a nominee does not receive a majority of the votes
on the first ballot, a run-off election shall be held by mail in a similar
manner between the two candidates for the position receiving the largest number
of votes.
NEW SECTION. Sec.
5. (1) After the initial
election of commission members, the commission shall establish rules for
electing commission members, including the method used for notification,
nominating, and voting. The commission may create commission districts and
boundaries, and may also establish a weighted voting procedure for election of
commission members. The commission shall hold its annual meeting during the
month of October each year for the purpose of nominating commission members and
the transaction of other business. Public notice of the meeting shall be given
by the commission in the manner it determines is appropriate. A producer may
on his or her own motion file his or her name with the commission for the
purpose of receiving notice of the meeting. The nonreceipt of the notice by
any interested person does not invalidate the proceedings.
(2) Prior to the
nomination of commission members, the department of revenue shall provide the
commission with a list of all qualified producers within the state based upon
tax records of the department.
NEW SECTION. Sec.
6. (1) In the event a
position becomes vacant due to resignation, disqualification, death, or for any
other reason, the position until the next annual meeting shall be filled by
vote of the remaining members of the commission. At the annual meeting a
commissioner shall be elected to fill the balance of the unexpired term.
(2) Each member of the
commission shall be compensated in accordance with RCW 43.03.230 and shall be
reimbursed for actual travel expenses incurred in carrying out the provisions
of this chapter. Employees of the commission may also be reimbursed for actual
travel expenses when on official commission business.
NEW SECTION. Sec.
7. Obligations incurred by
the commission and liabilities or claims against the commission may be enforced
only against the assets of the commission in the same manner as if it were a
corporation and no liability for the debts or actions of the commission exists
against either the state of Washington or any subdivision or instrumentality
thereof or against any member, officer, employee, or agent of the commission in
his or her individual capacity. The members of the commission, including
employees of the commission, may not be held responsible individually or any
way whatsoever to any person for errors in judgment, mistakes, or other acts,
either of commission or omission, as principal, agent, person, or employees,
except for their own individual acts of dishonesty or crime. A person or
employee may not be held responsible individually for any act or omission of
any other members of the commission.
NEW SECTION. Sec.
8. The powers and duties of
the commission include:
(1) To elect a chairman
and such officers as the commission deems advisable. The commission shall
adopt rules for its own governance, which provide for the holding of an annual
meeting for the election of officers and transaction of other business and for
such other meetings as the commission may direct;
(2) To adopt any rules
necessary to carry out the purposes of this chapter, in conformance with
chapter 34.05 RCW;
(3) To administer and
do all things reasonably necessary to carry out the purposes of this chapter;
(4) At the pleasure of
the commission, to employ a treasurer who is responsible for all receipts and
disbursements by the commission and the faithful discharge of whose duties
shall be guaranteed by a bond at the sole expense of the commission;
(5) At the pleasure of
the commission, to employ and discharge managers, secretaries, agents,
attorneys, and employees and to engage the services of independent contractors
as the commission deems necessary, to prescribe their duties, and to fix their
compensation;
(6) To engage directly
or indirectly in the promotion of Washington forest products and managed
forests, and shall in the good faith judgment of the commission be in aid of
the marketing, advertising, or sale of forest products, or of research related
to such marketing, advertising, or sale of forest products, or of research
related to managed forests;
(7) To enforce the
provisions of this chapter, including investigating and prosecuting violations
of this chapter;
(8) To acquire and
transfer personal and real property, establish offices, incur expense, and
enter into contracts. Contracts for creation and printing of promotional
literature are not subject to chapter 43.78 RCW, but such contracts may be
canceled by the commission unless performed under conditions of employment
which substantially conform to the laws of this state and the rules of the
department of labor and industries. The commission may create such debt and
other liabilities as may be reasonable for proper discharge of its duties under
this chapter;
(9) To maintain such
account or accounts with one or more qualified public depositaries as the
commission may direct, to cause moneys to be deposited therein, and to expend
moneys for purposes authorized by this chapter by drafts made by the commission
upon such institutions or by other means;
(10) To cause to be
kept and annually closed, in accordance with generally accepted accounting
principles, accurate records of all receipts, disbursements, and other
financial transactions, available for audit by the state auditor;
(11) To create and
maintain a list of producers and to disseminate information among and solicit
the opinions of producers with respect to the discharge of the duties of the
commission, directly or by arrangement with trade associations or other
instrumentalities;
(12) To employ,
designate as agent, act in concert with, and enter into contracts with any
person, council, commission, or other entity for the purpose of promoting the
general welfare of the forest products industry and particularly for the
purpose of assisting in the sale and distribution of Washington forest products
in domestic and foreign commerce, expending moneys as it may deem necessary or
advisable for such purpose and for the purpose of paying its proportionate
share of the cost of any program providing direct or indirect assistance to the
sale and distribution of Washington forest products in domestic or foreign
commerce, and employing and paying for vendors of professional services of all
kinds;
(13) To sue and be sued
as a commission, without individual liability for acts of the commission within
the scope of the powers conferred upon it by this chapter;
(14) To propose
assessment levels for producers subject to referendum approval under section 11
of this act; and
(15) To participate in
federal and state agency hearings, meetings, and other proceedings relating to
the regulation, production, manufacture, distribution, sale, or use of forest
products.
NEW SECTION. Sec.
9. The commission shall
create, provide for, and conduct a research, promotional, and educational
campaign as sales and market conditions reasonably require. It shall
investigate and ascertain the needs of producers, conditions of markets, and
degree of public awareness of products, and take into account the information
obtained in the discharge of its duties under this chapter.
NEW SECTION. Sec.
10. (1) The commission shall
cause a list to be prepared of all Washington producers of forest products from
any information available from the commission, producers' association, or
producers, including tax records from the department of revenue. This list
shall contain the names and addresses of all persons who produce forest products
within this state, the amount of forest products produced during the period
designated by the commission, and the assessment amount for each member. The
list is considered confidential and may be reviewed only by the employees of
the commission, except for information that may be disclosed to the public and
commission members under subsection (4) of this section. A qualified person
may, at any time, have his or her name placed upon the list by delivering or
mailing the information to the commission. This list shall be corrected and
brought up to date in accordance with evidence and information available to the
commission on or before December 31st of each year, or as soon thereafter as
possible. For all purposes of giving notice and holding referendums, the list
on hand, corrected up to the day next preceding the date for issuing notices or
ballots as the case may be, is, for purposes of this chapter, the list of all
producers entitled to notice or to assent or dissent or to vote.
(2) The commission shall
develop a reporting system to document that the producers of forest products in
this state are reporting quantities of forest products produced and subject to
the assessment as provided in section 11 of this act.
(3) The department of
revenue may charge the commission for the reasonable costs of providing reports
of harvest activity on a quarterly basis.
(4) Any taxpayer
information received by the commission from the department of revenue may only
be used for the limited purposes of establishing lists of producers necessary
to determine eligibility for voting, eligibility for serving as a commission
member, the amount of assessments owed, or other necessary purposes as
established by law. Any return or tax information received from the department
of revenue may be reviewed only by the employees of the commission. Employees
may disclose to the public and commission members a list of commission members,
groupings of at least three commission members by the amount of forest products
harvested over any time period designated by the commission of at least one
quarter, and the members who are eligible for the various positions on the
commission.
NEW SECTION. Sec.
11. (1) To provide for
permanent funding of the forest products commission, an assessment shall be
levied by the commission on producers of each species of forest products. The
initial rate of assessment that shall be submitted for approval by referendum
pursuant to section 12 of this act is fifty-seven cents per thousand board
feet. The initial assessment is not effective until approved by a majority of
producers as required by section 12 of this act.
(2) After the initial
assessment rate is approved, the commission may adjust the amount of the
assessment within a range of forty-five cents up to ninety cents per thousand
board feet. The commission shall submit any proposed increase in the
assessment to producers pursuant to the referendum process established in this
section, and shall supply all known producers with a ballot for the
referendum. The commission shall establish the assessment for the marketing
year by January 1st of each year, or as soon thereafter as possible.
Assessments may only be used for the purposes and objects of this chapter.
(3) The forest products
commission may raise the assessment on forest products in excess of the fiscal
growth factor under chapter 43.135 RCW. The assessment limits established by
this section are solely to provide prior legislative authority for the purposes
of RCW 43.135.055 and are not a limit on the authority of the forest products
commission to alter assessments in any manner not limited by RCW 43.135.055.
However, any alteration in assessments made under this section must be made
with the procedural requirements established by this chapter for altering such
assessments.
(4) The requirement for
approval of an assessment is met if: (a) At least fifty-one percent by numbers
of producers replying in the referendum vote affirmatively, and these producers
represent at least sixty-one percent of the volume of the producers replying in
the referendum; or (b) sixty-five percent by numbers of producers replying in
the referendum vote affirmatively, and these producers represent at least
fifty-one percent of the volume of the producers replying in the referendum.
An assessment shall only be approved if at least forty percent of the eligible
producers participate in the vote.
NEW SECTION. Sec.
12. (1) For purposes of
determining producer participation in the commission, the initial election of
commissioners, and for imposition of the original assessment specified in
section 11 of this act, the director shall conduct a referendum among all
producers of forest products within the state.
(2) The requirement for
approval of the assessment and creation of the commission is met if: (a) At
least fifty-one percent by numbers of producers replying in the referendum vote
affirmatively, and these producers represent at least sixty-one percent of the
volume of the producers replying in the referendum; or (b) sixty-five percent
by numbers of producers replying in the referendum vote affirmatively, and
these producers represent at least fifty-one percent of the volume of the
producers replying in the referendum. The referendum shall only be approved if
at least forty percent of the eligible producers participate in the vote.
(3) If the director
determines that the requisite approval has been given, the director shall
declare the establishment of the commission and direct it to put into force the
assessment authorized in section 11 of this act. If the director finds that
the requisite approval has not been given, then this chapter is not operative.
NEW SECTION. Sec.
13. The commission shall
deposit moneys collected under section 11 of this act in a separate account in
the name of the commission in any bank that is a state depositary. All
expenditures and disbursements made from this account under this chapter may be
made without the necessity of a specific legislative appropriation. RCW
43.01.050 does not apply to this account or to the moneys received, collected,
or expended under this chapter.
NEW SECTION. Sec.
14. A due and payable
assessment levied in the amount determined by the commission under section 11
of this act constitutes a personal debt of every person so assessed, or who
otherwise owes the assessment, and the assessment is due and payable to the
commission when payment is called for by the commission. If a person fails to
pay the commission the full amount of the assessment by the date due, the
commission may add to the unpaid assessment an amount not exceeding ten percent
of the assessment to defray the cost of enforcing its collection. If the
person fails to pay any due and payable assessment or other such sum, the
commission may bring a civil action for collection against the person or
persons in a court of competent jurisdiction. The action shall be tried and
judgment rendered as in any other cause of action for a debt due and payable.
NEW SECTION. Sec.
15. All county and state law
enforcement officers shall assist in the enforcement of this chapter.
NEW SECTION. Sec.
16. The superior courts are
hereby vested with jurisdiction to enforce this chapter and the rules of the
commission, and to prevent and restrain violations thereof.
NEW SECTION. Sec.
17. This chapter shall be
liberally construed to effectuate its purposes.
Sec. 18. RCW 42.17.31907 and 1996
c 80 s 3 are each amended to read as follows:
The following
agricultural business and commodity commission records are exempt from the
disclosure requirements of this chapter:
(1) Production or sales
records required to determine assessment levels and actual assessment payments
to commodity commissions formed under chapters 15.24, 15.26, 15.28, 15.44,
15.65, 15.66, 15.74, 15.88, 15.-- (sections 1 through 17 and 22 of this
act), and 16.67 RCW or required by the department of agriculture under RCW
15.13.310(4) or 15.49.370(6);
(2) Consignment
information contained on phytosanitary certificates issued by the department of
agriculture under chapters 15.13, 15.49, and 15.17 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 of agriculture; and
(3) Financial and
commercial information and records supplied by persons to commodity commissions
formed under chapters 15.24, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.--
(sections 1 through 17 and 22 of this act), and 16.67 RCW with respect to
domestic or export marketing activities or individual producer's production
information.
Sec. 19. RCW 43.135.055 and 1997
c 303 s 2 are each amended to read as follows:
(1) No fee may increase
in any fiscal year by a percentage in excess of the fiscal growth factor for
that fiscal year without prior legislative approval.
(2) This section does
not apply to an assessment made by an agricultural commodity commission or
board created by state statute or created under a marketing agreement or order
under chapter 15.65 or 15.66 RCW, or to the forest products commission,
if the assessment is approved by referendum in accordance with the provisions of
the statutes creating the commission or board or chapter 15.65 or 15.66 RCW for
approving such assessments.
NEW SECTION. Sec.
20. A new section is added
to chapter 82.32 RCW to read as follows:
The forest products
commission, created pursuant to chapter 15.-- RCW (sections 1 through 17 and 22
of this act), constitutes a state agency for purposes of applying the exemption
contained in RCW 82.32.330(3)(f) for the disclosure of taxpayer information by
the department. Disclosure of return or tax information may be made only to
employees of the commission and not to commission members. Employees are
authorized to use this information in accordance with section 10(4) of this
act. Employees are subject to all civil and criminal penalties provided under
RCW 82.32.330 for disclosures made to another person not entitled under the
provisions of this section or section 10 of this act to knowledge of such
information.
NEW SECTION. Sec.
21. Sections 1 through 17 and
22 of this act constitute a new chapter in Title 15 RCW.
NEW
SECTION. Sec. 22. 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.
