DEPARTMENT OF AGRICULTURE

[Filed August 14, 2018, 8:30 a.m.]

Preproposal statement of inquiry was filed as WSR 18-11-099.

Title of Rule and Other Identifying Information: WAC 16-501-525 Unsigned ballot envelopes: Advisory votes, referenda, and board member elections.

Hearing Location(s): On October 9, 2018, at 10:30 a.m., at the Natural Resources Building, 1111 Washington Street S.E., Room 205, Olympia, WA 98504.

Date of Intended Adoption: October 16, 2018.

Submit Written Comments to: Teresa Norman, P.O. Box 42560, email WSDARulesComments@agr.wa.gov, fax 360-902-2092, by 5:00 p.m., October 9, 2018.

Assistance for Persons with Disabilities: Contact Teresa Norman, phone 360-902-2043, fax 360-902-2092, TTY 800-833-6388, email tnorman@agr.wa.gov, by October 1, 2018.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The director of agriculture is responsible for administering marketing order referenda under chapters 15.65 and 15.66 RCW and for administering elections for advisory votes and board member selection authorized in RCW 15.24.035, 15.26.060, 15.28.023, 15.44.021, 15.65.240, 15.66.113, 15.88.050, 15.89.050, 15.115.060, and 16.67.060. These rules set procedures for administrative functions for commodity commissions. Including statutory citations for those commissions established under statutes other than chapters 15.65 and 15.66 RCW clarify the director's responsibilities. Revising procedures for unsigned ballots will streamline and expedite the referendum and voting process.

Reasons Supporting Proposal: Washington state department of agriculture (WSDA) has oversight of the state's commodity commissions. As part of the oversight role, the director appoints many members of the commodity commissions. The proposed amendments include those commissions authorized under chapters other than chapters 15.65 and 15.66 RCW, thereby clarifying the department's oversight role. Further, affected producers vote on referenda, advisory votes, and elections. An integral part of voting is certifying one's eligibility to vote. If a ballot-mailing envelope is returned without a certification, the department has [been] setting the envelope aside and offering the voter a "second chance" to certify his or her eligibility to vote. If the voter does not return the certification within the allowed time frame, the ballot is not counted. This process adds a minimum of twenty days to the process; increases mailing costs to the department, the commission, and the voter; and makes the process cumbersome to administer. An analysis of recent commodity commission referenda, advisory ballots, and elections show less than one percent of those receiving second chances sign and return the certification that allows their ballots to be counted. The proposed amendments remove the "second chance" and affirms that ballot-mailing envelopes received without a signature will be set aside and not counted.

Statutory Authority for Adoption: RCW 15.24.035, 15.26.060, 15.28.023, 15.44.021, 15.65.240, 15.66.113, 15.88.050, 15.89.050, 15.115.060, 16.67.060, and chapter 34.05 RCW.

Statute Being Implemented: Chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.88, 15.89, 15.115, and 16.67 RCW.

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

Name of Proponent: WSDA, governmental.

Name of Agency Personnel Responsible for Drafting: Teresa Norman, 1111 Washington Street S.E., Olympia, 360-902-2043; Implementation and Enforcement: Henri Gonzales, 1111 Washington Street S.E., Olympia, 360-902-1809.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

Procedural Rules for Administrative Function for Commodity Commissions Advisory Votes, Elections, and Referenda

AMENDATORY SECTION(Amending WSR 05-08-078, filed 4/1/05, effective 5/2/05)

WAC 16-501-525Unsigned ballot envelopes: Advisory votes, referenda, and board member elections.

The director of the department of agriculture is responsible for administering marketing order referenda under chapters 15.65 and 15.66 RCW and for administering elections for advisory votes((, marketing order referenda)) and board member selection as ((required in chapters 15.65 and 15.66 RCW))authorized in RCW 15.24.035, 15.26.060, 15.28.023, 15.44.021, 15.65.240, 15.66.113, 15.88.050, 15.89.050, 15.115.060, and 16.67.060.

(1) The department will mail ballots to those eligible to vote in each election according to the terms of the applicable statute and marketing order. Each voter will be provided an official ballot, instructions for voting, a security envelope and return ballot-mailing envelope with a "Certificate of Eligibility" (certification) printed on the reverse side of the envelope.

(2) After casting ((its))a vote in the election, an eligible voter must place the ballot in the security envelope((. The security envelope is then to be)), which is then placed in the ballot-mailing return envelope with the certification on the reverse side. To validate ((its))his or her ballot, the voter is required to complete, sign and date the certification.

(3) In the event a ballot is submitted to the department and the certification is not signed and dated in accordance with the instructions contained on the outside of the ballot-mailing return envelope or the ballot is returned in a different envelope without a certification, the ((department shall process the ballot and the ballot-mailing return envelope as follows, if the department is able to ascertain the identity of the eligible voter from the envelope:

(a) The department will not open the ballot-mailing return envelope, but will make a copy of the reverse side of the ballot-mailing return envelope with the printed certification. The original ballot-mailing return envelope will be held by the department.

(b) The department will provide the eligible voter with a copy of the ballot-mailing return envelope with the certification and require the voter to sign the copy of the certification and mail it back to the department so that it is received not later than the date specified in the correspondence accompanying the certification.

(c) The department shall advise the voter about the correct procedures for completing the unsigned certification and that, in order for the ballot to be counted, the voter must sign and date the copy of the certification, and mail it back to the department so that it does not arrive later than the specified date.

(d) The signed certification must be received by the department within fourteen calendar days from the date the copy of the certification was mailed to the voter as evidenced by the United States mail date stamp, for the voter's ballot to be validated.

(e) If the department does not receive the signed certification with the requested information within the specified time frame, the original)) ballot-mailing envelope will not be opened nor will the ballot it contains be counted. The unopened ballot-mailing envelope will be set aside and retained in accordance with the appropriate records retention schedule.

(4) ((A record shall be kept of the date on which the department mailed the copy of the certification to the eligible voter, the date on which the voter signed the certification and the date that the department received the certification. That record will be retained in accordance with applicable records retention schedules for ballots.

(5))) Only validated ballots will be included in a ballot count.

(((6)))(5) This rule applies to referenda, advisory votes, elections, and runoffs required by statute ((that are conducted after the effective date of this rule. However, subsections (3) and (4) do not apply in an election once any election ballots have been counted or in a runoff election once any runoff election ballots have been counted.

(7) This rule does not apply if the recount period specified in the applicable statute has expired)).