Continuance of WSR 04-07-194.
Title of Rule and Other Identifying Information: Washington Red Raspberry Commission, chapter 16-561 WAC.
Date of Intended Adoption: January 28, 2005.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal is to continue the adoption date.
Name of Proponent: , governmental.
September 1, 2004
William E. Brookreson
WAC 16-561-005 Marketing order for Washington red raspberries -- Policy statement. (1) The marketing of red raspberries within this state is in the public interest. It is vital to the continued economic well-being of the citizens of this state and their general welfare that its red raspberries be properly promoted by:
(a) Enabling producers of red raspberries to help themselves in establishing orderly, fair, sound, efficient, and unhampered marketing of the red raspberries they produce; and
(b) Working towards stabilizing the agricultural industry by increasing consumption of red raspberries within the state, the nation, and internationally.
(2) That it is in the overriding public interest that support for the red raspberries industry be clearly expressed, that adequate protection be given to the industry and its activities and operations, and that red raspberries be promoted individually, and as part of a comprehensive agricultural industry to:
(a) Enhance the reputation and image of Washington state's red raspberries.
(b) Increase the sale and use of Washington state's red raspberries in local, domestic, and foreign markets.
(c) Protect the public by educating the public in reference to the quality, care, and methods used in the production of Washington state's red raspberries.
(d) Increase the knowledge of the health-giving qualities and dietetic value of Washington state's red raspberries and products.
(e) Support and engage in programs or activities that benefit the planting, production, harvesting, handling, processing, marketing, and uses of red raspberries produced in Washington state.
(3) The director is authorized to implement, administer, and enforce chapter 15.65 RCW through the adoption of this marketing order.
(4) The Washington state red raspberry commodity board exists primarily for the benefit of the people of the state of Washington and its economy, and with oversight by the director, the board is authorized to speak on behalf of Washington state government with regard to red raspberries under the provisions of this marketing order.
(1) To carry out the purposes of the marketing order, the board may provide for a program in one or more of the following areas:
(a) Establish plans and conduct programs for marketing, sales, promotion, and/or other programs for maintaining present markets and/or creating new or larger markets for raspberries. Programs shall be directed toward increasing the sale of raspberries without reference to any particular brand or trade name and shall neither make use of false or unwarranted claims on behalf of raspberries nor disparage the quality, value, sale, or use of any other agricultural commodity. The board may also engage in cooperative efforts in the domestic or foreign marketing of red raspberries.
(b) Provide for research in the production, processing, irrigation, transportation, handling, and/or marketing of raspberries and expend the necessary funds for such purposes. Insofar as practicable, such research shall be carried on by experiment stations of Washington State University, but if in the judgment of the board, said experiment stations do not have the 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) Conduct programs for the purpose of providing information and education including:
(i) Marketing information and services to affected producers, for the verification of weights, tests, and sampling of quality and quantity of raspberries purchased by handlers from affected producers;
(ii) Information and services enabling producers to meet their resource conservation objectives;
(iii) Red raspberry-related education and training.
(d) Subject to the provisions of the act, provide information and communicate on matters pertaining to the production, irrigation, processing, transportation, marketing, or uses of red raspberries produced in Washington state to any elected official or officer or employee of any agency.
(2) The director shall approve any plans, programs, and projects concerning:
(a) The establishment, issuance, effectuation, and administration of programs authorized under this section for advertising and promotion of red raspberries; and
(b) The establishment and effectuation of market research projects, market development projects, or both to the end that marketing and utilization of the affected commodity may be encouraged, expanded, improved, or made more efficient.
(3) The Washington state red raspberry commodity commission will not develop and adopt rules relating to grades and standards.
(1) "Director" means the director of agriculture of the state of Washington or his or her duly appointed representative.
(2) "Department" means the department of agriculture of the state of Washington.
(3) "Act" means the Washington State Agricultural
Enabling Act of 1961)) Commodity Boards Act or chapter 15.65 RCW.
(4) "Person" means any ((
person)) individual, firm,
(( association, or)) corporation, limited liability company,
trust, association, partnership, society or any other
organization of individuals or any unit or agency of local or
(5) "Affected producer" means any person who produces or stores in the state of Washington raspberries in commercial quantities for fresh market, for processing, or for sale to processors.
(6) "Commercial quantity" means any raspberries produced or stored in quantities of three tons (6,000 pounds) or more, in any calendar year.
(7) "Handler" means any person who acts as principal or agent or otherwise in processing, selling, marketing, storing, freezing, or distributing raspberries not produced by him/her. "Handler" does not include a common carrier used to transport an agricultural commodity. "To handle" means to act as a handler.
(8) "Red raspberry commodity board," hereinafter referred
to as "board((
,))" or "commission" means the commodity board
formed under the provisions of WAC 16-561-020.
(9) "Raspberries" means and includes all kinds, varieties, and hybrids of "rubus idaeus" of red color.
(10) "Marketing season" or "fiscal year" means the twelve-month period beginning with January 1 of any year and ending with the last day of December following, both dates being inclusive.
(11) "Producer-handler" means any person who acts both as a producer and as a handler with respect to raspberries. A producer-handler shall be deemed to be a producer with respect to the raspberries which he/she produces and a handler with respect to the raspberries which he/she handles, including those produced by himself/herself. "To produce" means to act as a producer. For the purposes of the red raspberry marketing order, "producer" shall include bailees who contract to produce or grow any agricultural product on behalf of a bailor who retains title to the seed and its resulting agricultural product or the agricultural product delivered for further production or increase.
(12) "Affected area" means that portion of the state of Washington located west of the summit of the Cascade Mountains.
(13) "Sell" includes offer for sale, expose for sale, have in possession for sale, exchange, barter, or trade.
(14) "Affected unit" means one pound net of raspberries.
[Statutory Authority: Chapter 15.65 RCW. 86-13-012 (Order 1888), § 16-561-010, filed 6/6/86. Statutory Authority: RCW 15.65.180. 83-24-028 (Order 1809), § 16-561-010, filed 12/1/83; Order 1478, § 16-561-010, filed 7/29/76.]
(2) Board membership.
(a) The board shall consist of ((
eleven)) nine members. (( Ten)) Eight members shall be affected producers appointed or
elected as provided in this section. The director shall
appoint one member who is neither an affected producer nor a
handler to represent the (( department and the public))
director. The position representing the director shall be a
There shall be a minimum of two producer board members per district, with additional producer board members added based on acreage; using two thousand acres as the baseline, every one thousand acres, or increment thereof, would entitle a district to another board member, so long as no single district had an over-all majority of representatives.
(b) Director-appointed producer positions on the board shall be designated as position 1, position 2, position 7, and position 8.
(c) Elected producer positions on the board shall be designated as position 3, position 4, position 5, and position 6.
(d) The position representing the director who is neither an affected producer nor a handler shall be designated as position 9.
(e) For the purpose of nomination, appointment, and
election of producer members of the board, the affected area
shall be that portion of the state of Washington located west
of the summit of the Cascade Mountains and shall be divided
four)) three representative districts as follows:
(i) District I shall have four board members, being positions 2, 3, 4, and 8, and shall be Whatcom County.
(ii) District II shall have two board members, being
,)) and (( 7)) 6, and shall include the counties
of Clallam, Grays Harbor, Island, Jefferson, King, Kitsap,
Mason, Pierce, San Juan, Skagit, Snohomish, and Thurston.
(iii) District III shall have two board members, being
positions 5 and ((
9)) 7, and shall include the counties of
Clark, Cowlitz, Lewis, Pacific, Skamania, and Wahkiakum.
(iv) District IV shall have two members, being
positions 6 and 10, and shall include the counties of San
Juan, Skagit, and Snohomish.))
(3) Board membership qualifications. The ((
producer members of the board (( shall)) must be practical
producers of raspberries and each shall be a citizen(( s)) and
resident(( s)) of (( the)) this state (( of Washington)), over
the age of twenty-five years(( , each of whom is and has)).
Each producer board member must be and have been actually
engaged in producing raspberries within the state of
Washington for a period of five years and has, during that
time, derived a substantial portion of his/her income
therefrom. Producer-handlers shall be considered to be acting
only as producers for purpose of appointment or election and
membership on a commodity board. The qualifications of
members of the board as herein set forth must continue during
the terms of office.
(4) Term of office.
(a) The term of office, for members of the board shall be three years, and one-third of the membership as nearly as possible shall be elected each year. These terms shall expire on November 30.
(b) Membership positions on the board shall be designated
numerically; affected producers shall have positions one
ten)) eight and the member (( appointed by))
representing the director, position (( eleven)) nine.
(c) The term of office for the initial board members shall be as follows:
Positions one and two - one year;
Positions three, four, five, and nine - two years;
Positions six, seven, eight, and ten((
, and eleven)) - three years.
No elected member of the board may serve more than
two full consecutive three-year terms.)) The term of office
for board members serving at the time of the effective date of
this amended marketing order shall be as follows:
Positions one, two and eight - until November 30, 2004;
Positions three, four, and five - until November 30, 2005;
Positions six and seven - until November 30, 2006.
(e) Except for the director's representative, no appointed or elected member of the board may serve more than two full consecutive three-year terms. Any previous board member may be reelected to a qualified position after such term limits, if at least one full three-year period has passed since the last date of the second consecutive term in office.
(f) To accomplish the transition to a commodity board structure where the director appoints a majority of the board members, the names of the currently elected board members in position 2, position 8, position 9, and position 10 shall be forwarded to the director for appointment within thirty days of the effective date of this amended marketing order. The current board members in position 9 and position 10 will be reappointed to position 1 and position 7.
(5) Nomination ((
and election)) of elected or
director-appointed board members. Each year the director
shall call (( for)) a nomination meeting for elected or
director-appointed producer board members. (( Such)) The
meeting(s) shall be held at least thirty days in advance of
the date set by the director for the election or advisory vote
of board members.
(a) Notice of ((
every such)) a nomination meeting shall
be published in a newspaper of general circulation within the
affected area not less than ten days in advance of the date of
such meeting; and, in addition, written notice of every such
meeting shall be given to all affected producers within the
affected area according to the list maintained by the
(( director pursuant to RCW 15.65.200 of the act)) board
pursuant to RCW 15.65.295.
(b) Nonreceipt of notice by any interested person shall not invalidate the proceedings at such nomination meeting.
(c) Any qualified affected producer may be nominated
orally for membership on the board at ((
such)) a nomination
meeting. Nominations may also be made within five days after
(( any such)) the meeting by written petition filed with the
director, signed by not less than five affected producers. (( At the inception of this order, nominations may be made at
the issuance hearing.))
(d) When only one nominee is nominated by the affected producers for any position, RCW 15.65.250 shall apply.
(6) Election or advisory vote of board members.
Members of the board shall be elected by secret
mail ballot within the month of October)) An election or
advisory vote shall be conducted by secret ballot under the
supervision of the director within the month of October. Each
affected producer shall be entitled to one vote. (( Affected
(b) Elected members of the board shall be elected by a
majority of the votes cast by the affected producers within
the affected area. ((
Each affected producer within the
affected area shall be entitled to one vote.
(b))) If a nominee for an elected position 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 such position receiving the largest number of votes.
(c) An advisory vote shall be conducted for producer board members appointed by the director under the provisions of RCW 15.65.243. The names of the two candidates receiving the most votes in the advisory vote shall be forwarded to the director for potential appointment to the board. In the event there are only two candidates nominated for a board position, an advisory vote may not be held and the candidates' names shall be forwarded to the director for potential appointment.
(d) Notice of every election or advisory vote for board
membership shall be published in a newspaper of general
circulation within the affected area not less than ten days in
advance of the date of ((
such)) the election. Not less than
ten days prior to every election or advisory vote for board
membership, the director shall mail a ballot of the candidates
to each affected producer entitled to vote whose name appears
on the list of (( such)) affected producers within the affected
area maintained by the (( director in accordance with RCW 15.65.200)) board pursuant to RCW 15.65.295. Any other
affected producer entitled to vote may obtain a ballot by
application to the director upon establishing his/her
(e) Nonreceipt of a ballot by any affected producer shall not invalidate the election or advisory vote of any board members.
(7) Vacancies ((
prior to election)).
(a) In the event of a vacancy on the board in an elected position, the remaining members shall select a qualified person to fill the unexpired term. The appointment shall be made at the board's first or second meeting after the position becomes vacant.
(b) In the event of a vacancy in a director-appointed position, the position shall be filled as specified in RCW 15.65.270.
(8) Quorum. A majority of the members shall constitute a quorum for the transaction of all business and the carrying out of all duties of the board.
(9) Board compensation. No member of the board shall
receive any salary or other compensation, but each member
shall receive $35.00 for each day in actual attendance at or
traveling to and from meetings of the board or on special
assignment for the board, together with travel expenses at the
rates allowed state employees)) may be compensated in
accordance with RCW 43.03.230 and shall be reimbursed for
subsistence, lodging, and mileage in accordance with RCW 43.03.050 and 43.03.060, as provided for in RCW 15.65.270.
The board may adopt by resolution provisions for reimbursement
of actual travel expenses incurred by members and employees of
the board in carrying out the provisions of this marketing
order pursuant to RCW 15.65.270.
(10) Powers and duties of the board. The board shall have the following powers and duties:
(a) To administer, enforce, and control the provisions of this order as the designee of the director.
(b) To elect a chairman and such other officers as the board deems advisable.
(c) To employ and discharge at its discretion such personnel as the board determines necessary and proper to carry out the purpose of the order and effectuate the declared policies of the act.
(d) To pay only from monies collected as assessments or advances thereon the costs arising in connection with the formulation, issuance, administration, and enforcement of the order. Such expenses and costs may be paid by check, draft, or voucher in such form and in such manner and upon the signature of the person as the board may prescribe.
(e) To reimburse any applicant who has deposited with the director in order to defray the costs of formulating the order.
(f) To establish a "raspberry board marketing revolving fund" and such fund to be deposited in a bank or banks or financial institution or institutions, approved for the deposit of state funds, in which all money received by the board, shall be deposited as often as advisable.
(g) To keep or cause to be kept in accordance with accepted standards of good accounting practice, accurate records of all assessments, paid outs, moneys, and other financial transactions made and done pursuant to this order. Such records, books, and accounts shall be audited subject to procedures and methods lawfully prescribed by the state auditor. Such books and accounts shall be closed as of the last day of each fiscal year. A copy of such audit shall be delivered within thirty days after the completion thereof to the governor, the director, the state auditor, and the board.
(h) To require a bond of all board members and employees of the board in a position of trust in the amount the board shall deem necessary. The premium for such bond or bonds shall be paid by the board from assessments collected. Such bond shall not be necessary if any such board member or employee is covered by any blanket bond covering officials or employees of the state of Washington.
(i) To prepare a budget or budgets covering anticipated income and expenses to be incurred in carrying out the provisions of the order during each fiscal year. The board, at least sixty days prior to the beginning of its fiscal year, shall prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget.
(j) To establish by resolution, a headquarters which shall continue as such unless and until so changed by the board. All records, books, and minutes of board meetings shall be kept at such headquarters.
(k) To adopt rules ((
and regulations)) of a technical or
administrative nature for the operation of the board, subject
to the provisions of chapter 34.05 RCW (Administrative
(l) To carry out the provisions of RCW 15.65.510 covering the obtaining of information necessary to effectuate the provisions of the order and the act, along with the necessary authority and procedure for obtaining such information.
(m) To bring actions or proceedings upon joining the director as a party for specific performance, restraint, injunction, or mandatory injunction against any person who violates or refuses to perform the obligations or duties imposed upon him by the act or the order.
(n) To confer with and cooperate with the legally constituted authorities of other states and of the United States for the purpose of obtaining uniformity in the administration of federal and state marketing regulations, licenses, agreements, or orders.
(o) To authorize the members of a commodity board, or their agents or designees, to participate in federal or state hearings or other proceedings concerning regulation of the manufacture, distribution, sale, or use of any pesticide as defined by RCW 15.38.030(1) or any agricultural chemical which is of use or potential use in producing the affected commodity, and may authorize the expenditure of commission funds for this purpose.
(p) To work cooperatively with other local, state, and federal agencies; universities; and national organizations for the purposes provided in this order.
(q) To enter into contracts or interagency agreements with any private or public agency, whether federal, state, or local. Personal service contracts must comply with chapter 39.29 RCW.
(r) To accept and expend or retain any gifts, bequests, contributions, or grants from private persons or private and public agencies.
(s) To enter into contracts or agreements for research in the production, irrigation, processing, transportation, marketing, use, or distribution of red raspberries.
(t) To retain in emergent situations the services of private legal counsel to conduct legal actions on behalf of the commission. The retention of a private attorney is subject to review by the office of the attorney general.
(u) To engage in appropriate fund-raising activities for the purpose of supporting activities authorized by this order.
(v) To participate in international, federal, state, and local hearings, meetings, and other proceedings relating to the production, irrigation, manufacture, regulation, transportation, distribution, sale, or use of red raspberries including activities authorized under RCW 42.17.190, including the reporting of those activities to the public disclosure commission.
(w) To maintain a list of the names and addresses of affected producers that may be compiled from information used to collect assessments under the provisions of this marketing order and data on the units of each producer's production pursuant to RCW 15.65.295. This list may be compiled from information used to collect producer assessments for a three-year period.
(x) To maintain a list of the names and addresses of persons who handle red raspberries within the affected area and data on the amount of the red raspberries handled by each person pursuant to RCW 15.65.295 for a minimum three-year period.
(y) To establish a foundation using commission funds as grant money for the purposes established in this marketing order.
(z) To carry out any other grant of authority or duty provided designees and not specifically set forth in this section.
(11) Procedures for board.
(a) The board shall hold regular meetings, at least four times annually, and such meetings shall be held in accordance with chapter 42.30 RCW (Open Public Meetings Act). Notice of the time and place of regular meetings shall be published on or before January of each year in the Washington State Register. Notice of any change of the meeting schedule shall be published in the State Register at least twenty days prior to the rescheduled meeting date.
(b) The board shall hold an annual meeting, at which time an annual report will be presented. The budget shall be presented for discussion at the meeting. Notice of the annual meeting shall be given by the board at least ten days prior to the meeting by written notice to each producer and by regular news service.
(c) The board shall establish by resolution, the time,
place, and manner of calling special meetings of the board
with reasonable notice to the members: Provided, That the
notice to a member of any special meeting may be waived by a
thereof by each)) from that member of the board.
Notice of special meetings shall be in compliance with chapter 42.30 RCW.
[Statutory Authority: Chapter 15.65 RCW. 92-12-003, § 16-561-020, filed 5/21/92, effective 6/21/92; 86-13-012 (Order 1888), § 16-561-020, filed 6/6/86. Statutory Authority: RCW 15.65.180. 83-24-028 (Order 1809), § 16-561-020, filed 12/1/83; Order 1478, § 16-561-020, filed 7/29/76.]
(a) The annual assessment on all varieties of raspberries shall be one-half cent per affected unit (pound).
(b) For the purpose of collecting assessments, the board may:
(i) Require handlers to collect producer assessments from producers whose production they handle, and remit the same to the board; or
(ii) Require the person subject to the assessment to give adequate assurance or security for its payment; or
(iii) Require in the case of assessments against affected units stored in frozen condition:
(A) Cold storage facilities storing ((
commodity to file information and reports with the commission
regarding the amount of commodity in storage, the date of
receipt, and the name and address of each such owner; and
(B) That ((
such)) the commodity not be shipped from a
cold storage facility until the facility has been notified by
the commission that the commodity owner has paid the
commission for any assessments imposed by the marketing order.
(c) Subsequent to the first sale, no affected units shall be transported, carried, shipped, sold, marketed, or otherwise handled or disposed of until every due and payable assessment herein provided for has been paid and the receipt issued. The foregoing shall include all affected units shipped, stored, or sold, both inside and outside the state.
(2) Collections. Any moneys collected or received by the
board pursuant to the provisions of ((
the)) this order during
or with respect to any season or year, may be refunded on a
pro rata basis at the close of (( such)) the 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)) this 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)) a 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)) the 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)) it. 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))
the 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. 86-13-012 (Order 1888), § 16-561-040, filed 6/6/86; 81-09-003 (Order 1728), § 16-561-040, filed 4/6/81; Order 1478, § 16-561-040, filed 7/29/76.]
[Order 1478, § 16-561-060, filed 7/29/76.]
The following section of the Washington Administrative Code is repealed:
|WAC 16-561-030||Marketing order purposes.|