WSR 02-21-129

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed October 23, 2002, 10:54 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Dry pea and lentil marketing order -- Assessment in WAC 16-536-040.

Purpose: The proposal would increase the assessment on dry pea and lentils from 1% of the net receipts to 1.5% of the net receipts at the first point of sale.

Statutory Authority for Adoption: Chapter 15.65 RCW.

Statute Being Implemented: RCW 15.65.390 and 15.65.400.

Summary: The Washington Dry Pea and Lentil Commission has petitioned the director to amend its marketing order by increasing its assessment to 1.5% of the net receipts in WAC 16-536-040.

Reasons Supporting Proposal: Under RCW 15.65.050 through 15.65.120, the director of agriculture is required to hold a hearing to determine whether amendment of the dry pea and lentil marketing order would effectuate the declared policies and purposes of the statute and marketing order. At the hearing, the department will request testimony on the following issues:

1. Does the proposed amendment to increase the assessment in chapter 16-536 WAC, Dry pea and lentil marketing order, further the policies in the statute, chapter 15.65 RCW which include promoting the general welfare of the state, to enable producers of dry peas and/or lentils to help themselves establish orderly, fair, sound, efficient, unhampered marketing, grading and standardization of dry peas and/or lentils? It the increase in assessments needed to fulfill these policies for the state's dry pea and lentil industry? Explain why the increase in assessment is or is not needed.

2. Does the proposed amendment to increase the assessment in chapter 16-536 WAC accomplish the purposes and objects of the marketing order which include the following:

(a) Establish plans and conduct programs for advertising, sales, promotion and/or other programs for maintaining present markets and/or creating new or larger markets for dry peas and/or lentils. Such programs shall be directed toward increasing the sale of dry peas and/or lentils without reference to any particular brand or trade name and shall neither make use of false or unwarranted claims in behalf of dry peas and/or lentils nor disparage the quality, value, sale or use of any other agricultural commodity.

(b) Provide for research in the production, processing and/or distribution of dry peas and/or lentils and expend the necessary funds for such purposes. Insofar as practicable, such research shall be carried out by experiment stations of Washington State University, but if in the judgment of the board said experiment stations do not have adequate facilities for a particular project or if some other research agency has better facilities therefor, the project may be carried out by other research agencies selected by the board.

(c) Provide by rules and regulations for:

(i) Establishing uniform grades and standards of quality, condition, maturity, size, weight, pack, packages and/or label for dry peas and/or lentils or any products thereof;

(ii) Requiring producers, handlers and/or other persons to conform to such grades and/or standards in packing, packaging, processing, labeling, selling or otherwise commercially disposing of dry peas and/or lentils and/or in offering, advertising and/or delivering it therefor;

(iii) Providing for inspection and enforcement to ascertain and effectuate compliance;

(iv) Establishing rules and regulations respecting the foregoing;

(v) Providing that the board shall carry out inspection and enforcement of, and may (within the general provisions of the order) establish detailed provisions relating to, such standards and grades and such rules and regulations: Provided, That any modification not of a substantial nature, such as the modification of standards within a certain grade may be made without a hearing, and shall not be considered an amendment for the purposes of the act and order.

(d) Provide for marketing information and services to affected producers and for the verification of grades, standards, weights, tests and sampling of quality and quantity of dry peas and/or lentils purchased by handlers from affected producers?

Based on the testimony taken at the hearing and written comments received by the department in response to this notice and the notice issued pursuant to chapter 15.65 RCW, the director will make findings and issue a recommended decision and a final decision. The final decision may result in a referendum on the amendment proposal pursuant to RCW 15.65.160 or a decision to deny the proposal in its entirety under RCW 15.65.120. If the proposal is denied in its entirety, the director will take no further action and a referendum will not be held.

Name of Agency Personnel Responsible for Drafting and Implementation: Deborah Anderson, P.O. Box 42560, Olympia, WA 98504-2560, (360) 902-2043; and Enforcement: William E. Brookreson, P.O. Box 42560, Olympia, WA 98504-2560, (360) 902-1800.

Name of Proponent: Washington Dry Pea and Lentil Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The Washington Pea and Lentil Commission requests an assessment increase of 0.5% to a total of 1.5% at the first point of sale for peas, lentils, and chickpeas. This increase is necessary to augment the current efforts in research, market development and education. According to the Dry Pea and Lentil Commission present funding does not allow potential developments to be utilized fully by the growers. In research, the commission focuses on varietal development, crop quality and disease research.

A portion of the additional funds collected would be used to expand current research efforts in the development of winter legumes, breeding disease resistance in our plants, and finding integrated pest management strategies to increase yield potential and improve crop quality. International and national markets have become much more competitive in the last decade and the additional funds are planned to expand product uses -- particularly in domestic markets. The last area of emphasis is education of both the consumer and the potential consumer. Materials touting the nutritious goodness and environmental benefits of our products would be developed for school age children, institutional chefs and the general public. The education efforts would utilize new technologies such as the Internet and videodisc.

Proposal Changes the Following Existing Rules: The assessment on dry pea and lentil producers as established in the dry pea and lentil marketing order in WAC 16-536-040 is increase from 1% to 1.5% of the net receipts at the first point of sale.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 15.65.570 Rule-making proceedings, are exempt from compliance with chapter 19.85 RCW, the Regulatory Fairness Act when the adoption of the rules is determined by a referendum vote of the affected parties.

RCW 34.05.328 does not apply to this rule adoption. The Washington State Department of Agriculture is not a named agency.

Hearing Location: Whitman County Services Building, 310 North Main Street, Colfax, WA 99111, on November 26, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Laurie Crose by November 19, 2002, TDD (360) 902-1996 or (360) 902-1976.

Submit Written Comments to: Deborah Axelson, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2092, e-mail wsdarulescomments@agr.wa.gov, by November 26, 2002, 5:00 p.m.

Date of Intended Adoption: March 1, 2003.

October 23, 2002

William E. Brookreson

Deputy Director


AMENDATORY SECTION(Amending WSR 86-15-002 (Order 1895), filed 7/3/86, effective 8/4/86)

WAC 16-536-040   Assessments and collections.   (1) Assessments.

(a) The assessment on all varieties of dry peas and dry lentils subject to this marketing order shall be one and one-half percent of the net receipts at the first point of sale and shall be deducted by the first purchaser from the price paid to the grower. Such assessment shall be remitted to the commission board in accordance with procedures adopted by the commission board: Provided, That such assessment on commercial wrinkled pea seed shall not become effective unless approved by a referendum vote of the affected wrinkled pea seed producers.

(b) Such assessments shall not be payable on any such dry peas and/or lentils used by the producer thereof on his premises for feed, seed and personal consumption.

(2) Collections. Any moneys collected or received by the board pursuant to the provisions of the order during or with respect to any season or year may be refunded on a pro rata basis at the close of such season or year or at the close of such longer period as the board determines to be reasonably adapted to effectuate the declared policies of this act and the purposes of such marketing agreement or order, to all persons from whom such moneys were collected or received, or may be carried over into and used with respect to the next succeeding season, year or period whenever the board finds that the same will tend to effectuate such policies and purposes.

(3) Penalties. Any due and payable assessment herein levied in such specified amount as may be determined by the board pursuant to the provisions of the act and the order, shall constitute a personal debt of every person so assessed or who otherwise owes the same, and the same shall be due and payable to the board when payment is called for by it. In the event any person fails to pay the board the full amount of such assessment or such other sum on or before the date due, the board may, and is hereby authorized to add to such unpaid assessment or sum an amount not exceeding ten percent of the same to defray the cost of enforcing the collecting of the same. In the event of failure of such person or persons to pay any such due and payable assessment or other such sum, the board may bring a civil action against such person or persons in a state court of competent jurisdiction for the collection thereof, together with the above specified ten percent thereon, and such action shall be tried and judgment rendered as in any other cause of action for debt due and payable.

[Statutory Authority: Chapter 15.65 RCW. 86-15-002 (Order 1895), 16-536-040, filed 7/3/86, effective 8/4/86; 82-15-020 (Order 1768), 16-536-040, filed 7/13/82; Order 1533, 16-536-040, filed 6/8/77; Marketing Order Article IV, A through C, filed 3/26/65.]

Washington State Code Reviser's Office