WSR 01-02-033


[ Filed December 26, 2000, 9:33 a.m. ]

December 21, 2000

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

Dear Ms. 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.


Gary Locke



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.

Washington State Code Reviser's Office