Effective Date of Rule: Thirty-one days after filing.

     Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Federal Regulation US Grain Standards Act Regulations §800.70 requires that all grain inspection rules be reasonable and nondiscriminatory and therefore must be approved by the United States Department of Agriculture, Grain Inspection, Packers and Stockyards Administration prior to the rules becoming effective.

     Purpose: Amend chapter 16-240 WAC to remove a tonnage discount structure that provides an unfair fee advantage; increase the grain inspection program fees for service to recover the department's actual costs of providing inspection services to maintain the program; provide funding to restore and maintain the six-months minimum operating fund balance; and create a new discount structure that provides a benefit to all customers paying for services in the event that an excess amount of fees are collected by the department.

     Citation of Existing Rules Affected by this Order: Amending WAC 16-240-010, 16-240-020, 16-240-032, 16-240-036, 16-240-038, 16-240-042, 16-240-046, 16-240-054, 16-240-060, 16-240-070, 16-240-080, and 16-240-090.

     Statutory Authority for Adoption: RCW 15.17.050 and 3ESHB 2127, chapter 7, Laws of 2012.

     Other Authority: Chapter 34.05 RCW.

      Adopted under notice filed as WSR 12-17-159 on August 22, 2012.

     Changes Other than Editing from Proposed to Adopted Version: Deleted phrase to be consistent with text and intent of WAC 16-240-054:

     WAC 16-240-036 Permanent staffing requests. An applicant may request the department to establish permanent staffing on shifts as shown below:

     (1) Requests for permanent staffing of day, night, swing, or graveyard shifts must be made in writing at least seven business days prior to the ((beginning of the month for which the)) shift(s) that are requested.

     Clarified sentence to be consistent with text and intent of:

     WAC 16-240-043 Minimum operating fund discount.

     (2) ... No discount will be available in any month where the discount amount would be in excess of the total fees charged.

     (2) ... No discount will be available in excess of the total fees charged in any month.

     Restored explanatory notes where inadvertently deleted:

     WAC 16-240-070 Fees for services under the United States

Grain Standards Act.

     USGSA Table 1

▪	The metric ton vessel rate includes all additional factor inspection services required by the load order. All other additional factor inspection services in USGSA Table 1 are charged at the per factor fee.
▪	During vessel loading, assessments for other tests, such as protein analysis, falling number determinations, or mycotoxin analysis will be assessed at the per unit rates included in this fee schedule.

     Deleted orphan reference numbers:

     WAC 16-240-070 Fees for services under the United States

Grain Standards Act.

     USGSA Table 2

     per truck or container ((1))

     per railcar ((1, 2))

     per railcar ((1, 2))

     per railcar ((1, 2))

     USGSA Table 4

     per inspection ((1, 2))

     per inspection ((1, 2))

     per factor ((2))

     Deleted orphan reference numbers:

     WAC 16-240-080 Fees for services under the Agricultural

Marketing Act of 1946.

     AMA Table 1

     per metric ton ((1, 2))

     per metric ton ((1, 3, 4))

     per truck or container ((1, 2))

     per factor ((1))

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 12, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: October 17, 2012.

Dan Newhouse

Director

OTS-4952.5

AMENDATORY SECTION(Amending WSR 05-11-058, filed 5/17/05, effective 6/17/05)

WAC 16-240-010   Definitions.   "Department" means the Washington state department of agriculture.

     "Fee" means any charge made by the department for:

     (1) Inspecting and handling any commodity; or

     (2) Any service related to weighing or storing grains or commodities.

     "GIPSA, FGIS" means the Grain Inspection, Packers and Stockyards Administration, Federal Grain Inspection Service.

     "Metric ton" means two thousand two hundred four and six-tenths pounds.

     "Minimum operating fund balance" means six months of grain inspection program operating expenses.

     "Official commercial inspection services" means a contractual agreement between the applicant and the department for services specified by the applicant that will be provided at an applicant's facility.

     "Revenue minimum" means the amount of revenue that must be collected by the department to offset expenses. In order to act as an official inspection agency under the United States Grain Standards Act and the Agricultural Marketing Act of 1946, the program must collect revenue to offset expenses. The grain inspection program is supported entirely by the fees it generates from the services it provides as required by RCW 22.09.790. The circumstances under which charges occur to collect the revenue minimum are stated in WAC 16-240-038.

     "Service point" means the Washington state department of agriculture offices and surrounding service areas authorized by the Federal Grain Inspection Service to provide sampling, inspecting, weighing, and certification services.

     "USDA" means the United States Department of Agriculture.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-010, filed 5/17/05, effective 6/17/05.]

     (1) Service points:

     (a) Colfax.

     (b) Kalama.

     (c) Longview.

     (d) Olympia.

     (((d))) (e) Pasco.

     (((e))) (f) Seattle.

     (((f))) (g) Spokane.

     (((g))) (h) Tacoma.

     (((h))) (i) Vancouver.

     (2) Aberdeen has been delegated to Washington state as a service point by the Federal Grain Inspection Service. Services for Aberdeen are as follows:

     (a) Services for Aberdeen may be requested through the Tacoma grain inspection office.

     (b) Travel time and mileage will be assessed from Tacoma to Aberdeen for all services requested at Aberdeen until a permanent staff is established.

     (3) Inspection points may be added or deleted within the department's delegated and designated service area.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-020, filed 5/17/05, effective 6/17/05.]

     (1) The grades and standards established by the United States Department of Agriculture from August 1, 1984, ((to the present)) and as subsequently amended, that apply to all grains and commodities regulated by this chapter.

     (2) The procedures to sample, grade, test and weigh grains and commodities, established by the regulations and instructions under the United States Grain Standards Act and the Agricultural Marketing Act of 1946, and as subsequently amended.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-032, filed 5/17/05, effective 6/17/05.]

     (1) Requests for permanent staffing of day, night, swing, or graveyard shifts must be made in writing at least seven business days prior to the ((beginning of the month for which the)) shift(s) that are requested.

     (a) Requests for permanent staffing of any night, swing or graveyard shift will be deemed to include a request for permanent staffing of the day shift.

     (b) The requested shift(s) will be established if the department has an adequate number of trained personnel.

     (c) Confirmation of staffing requirements must be received by the inspection office by 2:00 p.m. each day Monday through Friday, for the next service day, and by 2:00 p.m. of the last business day before a Saturday, Sunday, or holiday (see WAC 16-240-034).

     (d) Failure to meet the notification requirement may result in denial of service.

     (2) When the department is able to staff the permanent night, swing, or graveyard shift(s) requested by the applicant, the overtime rate established under WAC 16-240-048 will be waived for the requested shift(s).

     (3) Once established, permanent shifts will continue ((for a minimum of one calendar month)) until canceled by the requesting party or canceled by the department for good cause.

     (a) ((The request for a permanent shift will remain in effect until canceled.

     (b))) Cancellation requests must be received, in writing, giving at least fifteen business ((days prior to the end of the month)) days' notice.

     (((c))) (b) Applicants will be assessed for any shifts established at their request until the cancellation notice period has expired.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-036, filed 5/17/05, effective 6/17/05.]

     (1) When the volume of work at the established fees does not generate revenue ((equivalent)) at least equal to the straight time hourly rate per hour, per employee, a sufficient additional amount, calculated by using the straight time hourly rate ((will be assessed)) per hour, per employee, will be added to the established fee amount to meet the revenue minimum.

     (2) ((Daily)) Work volume averaging at export locations will be determined as follows:

     (a) When the ((daily)) weekly volume of work at the established fees does not generate revenue equivalent to the straight time hourly rate per hour, per employee, including applicable supervisory and clerical employee hours, according to the staffing needs at the facility, the department ((charges a)) may charge an additional fee ((to recover expenses)), as described in subsection (1) of this section. The weekly volume will be based on the applicable shift from Monday through the following Monday.

     (b) ((The straight time hourly rate will be assessed per hour, per employee.

     (c))) Service cancellation fees, WAC 16-240-054, are not considered to be revenue under ((daily)) weekly averaging.

     (((3) Monthly averaging at export locations:

     (a) When the applicant has requested the department to establish one or more permanent shifts, the applicant may request, in writing, that the revenue minimum required for staffing at the location be determined based on the completed invoices for the calendar month, instead of paying the fees for daily volumes of work.

     (b) When the monthly volume of work at the established fees does not generate revenue equivalent to the straight time hourly rate per hour, per employee, including applicable supervisory and clerical employee hours, the department charges a fee to recover expenses.

     (c) The straight time hourly rate will be assessed per hour, per employee.

     (d) At export locations, the request for monthly averaging stays in effect until canceled.

     (e) Requests to establish or cancel monthly averaging for the coming month must be received by 2:00 p.m. of the last business day in the month.

     (f) Service cancellation fees, WAC 16-240-054, are not considered to be revenue under monthly averaging.))

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-038, filed 5/17/05, effective 6/17/05.]

     (2) If the department does not receive payment within thirty days:

     (((1))) (a) Services may be withheld until the delinquent account is paid; or

     (((2))) (b) Cash payment for subsequent services may be required.

     ((The department assesses a penalty of twelve percent per annum on all delinquent account balances.))

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-042, filed 5/17/05, effective 6/17/05.]

     (2) The discount will be made available to qualified customers as follows. The department will establish the percent of discount available to qualified customers as based on each customer's fees paid over the previous three calendar years in relation to the total amount determined to be in excess of the revenue minimum. During the discount calendar year, each qualified customer will be entitled to receive a discount in the amount of one-twelfth of its total potential discount amount during each month that it incurs fees. No discount will be available in excess of the total fees charged in any month. No discount will accrue if not used during any month of the applicable calendar year.

[]

     (1) An hourly fee is specified in the schedule of fees.

     (2) No other fee is established in the schedule of fees.

     (3) The revenue minimum under WAC 16-240-038 applies.

     (4) The revenue minimum required for staffing at export locations determined on a ((daily or monthly)) weekly basis under WAC 16-240-038 applies.

     (5) No contractual agreement supersedes the straight time rate.

     (6) Straight time is assessed in one-half hour increments.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-046, filed 5/17/05, effective 6/17/05.]

     (1) When a service is requested before or after the inspection office's established hours, a cancellation fee would apply as follows:

     (a) When a service is requested before or after an office's standard Monday through Friday shifts, or anytime on Saturdays, Sundays, or holidays; and

     (b) The requested service is canceled after 2:00 p.m. of the last business day before the requested service; then

     (c) A service cancellation fee according to WAC 16-240-060, Table 1, will be assessed per employee scheduled.

     (2) ((At locations where monthly averaging has been instituted, a cancellation fee would apply as follows:

     (a) A request for service must be filed by 2:00 p.m. on the last business day before service to guarantee full staffing at the service location;

     (b) When full staff at the location is requested and then canceled or services are not actually performed through no fault of the department; then

     (c) The service cancellation fee will be assessed per employee scheduled.

     (3))) When service is requested for a vessel inspection, a cancellation fee would apply as follows:

     (a) When a vessel inspection is requested and then canceled after 2:00 p.m. of the last business day before the requested service, a cancellation fee will apply.

     (b) The service cancellation fee will be assessed per employee scheduled to inspect the vessel.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-054, filed 5/17/05, effective 6/17/05.]

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-060, filed 5/17/05, effective 6/17/05.]

     (2) Fees that are not ((specifically cited in WAC)) otherwise provided for in this chapter for services under the United States Grain Standards Act are described below.

     (a) Fees for other services under the United States Grain Standards Act not specifically cited in WAC 16-240-070 are provided at the rates contained in WAC 16-240-080 or 16-240-090 ((and/))or at the published rates of the laboratory or organization providing the official service or analysis. The program will require the recipient of services to provide advance consent to the rate for any service necessary to be performed at an external laboratory or organization.

     (b) An applicant may be required to provide the necessary supplies and equipment when requesting a new or special type of analysis.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-070, filed 5/17/05, effective 6/17/05.]

     (2) Fees that are not ((specifically cited in WAC)) otherwise provided for in this chapter for services under the Agricultural Marketing Act of 1946 are described below.

     (a) Fees for other services under the Agricultural Marketing Act of 1946 not contained in WAC 16-240-080 are contained in WAC 16-240-070 or 16-240-090 and/or at the published rates of the laboratory or organization providing the official service or analysis.

     (b) An applicant may be required to provide the necessary supplies and/or equipment when requesting a new or special type of analysis.

AMA Table 1
Fees for Combination Sampling, Inspection and Weighing Services, and Additional Factors

AMA Table 2
Fees for Official Sampling and Inspection Without Weighing Services, and Additional Factors

AMA Table 3
Fees for Official Weighing Services without Inspections

AMA Table 4
Fees for Inspecting Submitted Samples

AMA Table 5
Fees for Miscellaneous Services

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-080, filed 5/17/05, effective 6/17/05.]

     (2) Applicant-defined analysis may be available from the department.

     (a) Hourly fees for sampling and/or sample preparation may be assessed.

     (b) The analysis will be provided at the established hourly rate or may be provided at the cost quoted by the laboratory or organization providing the service or analysis.

     (c) Applicant may be required to provide supplies and equipment when requesting a new analysis or special service.

     (3) Official samples, as defined under 7 C.F.R. 800.75, may be provided upon timely request by an interested party, specifying the number of samples requested. Samples are provided in up to five pound bags and are charged the fee stated in Table 3.

[Statutory Authority: 2003 1st sp.s. c 25 § 309(2); RCW 22.09.790, chapter 34.05 RCW and The United States Department of Agriculture has oversight of fees charged under the Federal Grain Inspection, Packers and Stockyards Administration. 05-11-058, § 16-240-090, filed 5/17/05, effective 6/17/05.]