PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-03-108.
Title of Rule: Rules relating to chapter 16-403 WAC, Standards for apples marketed within Washington and chapter 16-461 WAC, Inspection requirements for fruits and vegetables.
Purpose: Require all Red Delicious and Delicious varieties of apples to be certified for quality and condition on a twelve month basis, and if not entering channels of commerce within twenty-one days following the original inspection, will require recertification for the minimum firmness requirements prior to entering the channels of commerce. Eliminate the general release date established by the Delicious Maturity Committee of the Washington State Horticultural Association for Red Delicious and Delicious varieties of apples and require soluble solids testing until October first of each year.
Statutory Authority for Adoption: Chapter 15.17 RCW.
Statute Being Implemented: RCW 15.17.030.
Summary: Agency response to industry request and concerns in regards to the firmness requirements for the Red Delicious and Delicious varieties of apples. The revisions will improve and enhance the marketing of fresh Washington Red Delicious and Delicious apples. The consuming public will be served by improved product quality and condition.
Reasons Supporting Proposal: Request from industry, Washington State Horticultural Association.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Quigley, Olympia, Washington, (360) 902-1833.
Name of Proponent: Washington State Horticultural Association, public.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Amendments to the existing rules, chapter 16-403 WAC, Standards for apples marketed within Washington and chapter 16-461 WAC, Inspection requirements for fruits and vegetables, will assist in eliminating the lower levels of firmness for the Red Delicious and Delicious varieties of apples from entering the marketplace and will provide the consumer with a higher level of quality and condition for these varieties.
Proposal Changes the Following Existing Rules: Red Delicious and Delicious varieties will be required to be certified for quality and condition on a twelve month basis. Apples of the Red Delicious and Delicious varieties that have not entered channels of commerce within twenty-one days following the original date of inspection as indicated by a state lod [lot] I.D. stamp, will require recertification to meet the minimum firmness requirement. The general release date established by the Delicious Maturity Committee of the Washington State Horticultural Association for Red Delicious and Delicious varieties will be eliminated. These varieties will be required to be soluble solids tested with a refractometer until October first of each year.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Under current rules, Red Delicious and Delicious apples in regular storage may be packed and shipped under WSDA's quality control program (QCP). Under QCP, an agriculture inspector randomly visits packing facilities and inspects apples being packed. A facility then ships the packed fruit by issuing a certificate of compliance, which indicates the fruit packed and ready for shipment is in compliance with all grade requirements and regulations.
During regular storage periods, United States condition standards for export is not a requirement unless requested by a shipper. In addition, minimum firmness requirements is randomly verified during the regular storage period, either on the packing line during a quality control inspection or on the shipping dock just prior to the fruit being loaded for shipment.
However, controlled atmosphere stored apples must be inspected, certified and identified with a WSDA state lot identification number and a WSDA assigned facility license number. United States condition standards for export is mandatory for apples to qualify for controlled atmosphere storage.
The proposed rule would require all Red Delicious and Delicious varieties of apples in regular storage to be inspected and certified for grade and condition on a year-round basis, which means that all packed fruit will require an inspection, certification and be identified with a WSDA state lot identification number.
The proposed rule change would affect potentially one hundred and nine apple shippers and packers; fourteen of those (or approximately 12.8% of the shippers and packers) are identified as small businesses as defined in chapter 19.85 RCW, the Regulatory Fairness Act, depending upon the amount of Red Delicious or Delicious apples they pack during a given year.
The WSDA collected historical data on random inspections of Red Delicious and Delicious apples previously packed, the number of cartons certified and the inspection cost to packers/shippers and compared the random costs of inspection and certification versus the cost of 100% inspection and certification. The potential cost of 100% inspection varied; i.e., one small business would have paid as little as a $77.28 difference under an increased certification program, while one of the largest businesses would have paid a $6,568.80 difference.
Averaging five of the small businesses out of thirteen that may be affected, the average cost increase would be an approximate $280.00 to comply with the proposed rule to implement 100% inspection and certification. In contrast, WSDA averaged 10% of the largest businesses and what their cost would have been. The net result to large business would have been an average increase of $5,142.00. (Reference RCW 19.85.040(1).)
The data on costs that would reduce the net affect on all companies is data that cannot be projected with certainty. The first variable that could raise or, conversely, lower cost to a packer/shipper is the amount of Red Delicious and Delicious apples a company will pack and ship in any given year. The second variable that could offset the inspection cost is the profit ratio realized by a company due to the increased quality and condition of apples.
Using the guidelines "facilitating regulatory fairness" the average threshold of an acceptable increase to small business appears to be in the $50.00 range. Since the average increase to a small business could potentially exceed the acceptable threshold level, the next step in the analysis is whether the impact of the proposed rule could be mitigated.
Summary: The Washington State Department of Agriculture is unable to mitigate any economic impact on businesses, whether large or small, if the proposed rule is implemented because:
1. The department was petitioned by industry to promulgate rule amendments, a copy of which is in the official rule file. In accordance with RCW 34.05.330, the department initiated the rule-making process within sixty days by filing a CR-101, notice of intent, on January 20, 1999.
2. The department cannot mitigate by reducing inspections because the industry is requesting increased inspections.
3. The annual cost of inspections depends upon variable factors:
• The amount of Red Delicious and Delicious apples packed and shipped per company per year;
• The offset of increased profit per company due to the enhanced quality of the fruit marketed;
4. The budget to pay Washington State Department of Agriculture inspectors is based on fee-for-service. The program does not receive general-fund dollars to fund fruit and vegetable inspectors.
A copy of the statement may be obtained by writing to Jim Quigley, Program Manager, WSDA Commodity Inspection, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-1833, fax (360) 902-2085.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency under section 201.
Hearing Location: On June 23, 1999, at 10:00 a.m., at the State Department of Agriculture Building, 21 North 1st Avenue, Yakima, WA 98902; and on June 24, 1999, at 10:00 a.m., at the DoubleTree Hotel, 1225 North Wenatchee Avenue, Wenatchee, WA 98801.
Assistance for Persons with Disabilities: Contact Cathy Jensen by June 22, 1999, TDD (360) 902-1996.
Submit Written Comments to: Jim Quigley, Program Manager, WSDA Commodity Inspection, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2085, by June 28, 1999.
Date of Intended Adoption: June 29, 1999.
May 17, 1999
Robert W. Gore
Assistant Director
OTS-3105.1
AMENDATORY SECTION(Amending WSR 95-13-038, filed 6/14/95, effective 7/15/95)
WAC 16-461-010
Inspection certificate and/or permit required.
(1) No person shall ship, transport, accept for shipment, or accept delivery of, any commercial lot of the following agricultural products without an inspection and the issuance of a certificate and/or a permit by the plant services division of the department of agriculture allowing such shipment, movement or delivery:
(a) Apricots - in closed or open containers for fresh market.
(b) Italian prunes - in closed or open containers for fresh market.
(c) Peaches - in closed or open containers for fresh market.
(d) Cherries - in closed or open containers for fresh market: Provided, That no permit shall be issued on cherries infested with live cherry fruit fly larvae.
(e) Apples - in closed or open containers for fresh market: Provided, That apples may be shipped or transported if accompanied by a certificate of compliance issued by the shipper or packer of apples having the approval of the director to issue the certificates of compliance.
Apples of the Red Delicious and Delicious varieties must be certified as to quality and condition and must meet all the requirements of chapter 16-403 WAC, Standards for Apples Marketed Within Washington. Apples of the Red Delicious and Delicious varieties not allowed to enter channels of commerce within twenty-one days following the original date of inspection as indicated by a state lot stamp, will require recertification for meeting the minimum firmness requirement as stated in WAC 16-403-142.
(f) Pears - in closed or open containers for fresh market: Provided, That pears may be shipped or transported if accompanied by a certificate of compliance issued by the shipper or packer of pears having the approval of the director to issue the certificates of compliance.
(g) Asparagus - in closed or open containers for fresh market: Provided, That asparagus may be shipped or transported if accompanied by certificates of compliance issued by the shipper or packer of the asparagus, having the approval of the director to issue the certificates of compliance.
(h) Apples in containers or bulk, for processing: Provided, That apples for processing may be shipped or transported if accompanied by a certificate of compliance issued by the shipper of apples having the approval of the director to issue the certificates of compliance: Provided further, That apples for processing entering intrastate commerce shall not require a permit.
(i) Pears in containers or bulk, for processing: Provided, That pears for processing may be shipped or transported if accompanied by a certificate of compliance issued by the shipper of pears having the approval of the director to issue the certificates of compliance: Provided further, That pears for processing entering intrastate commerce shall not require a permit.
(2) Exemptions - Fruits and vegetables listed in WAC 16-461-010 shall be exempted from requirements for inspection and issuance of a certificate or permit:
(a) When the product is being transported from the premises where grown or produced to a horticultural facility other than wholesale or retail for the purpose of storing, grading, packing, packaging, labelling, or processing; prior to entering commercial channels for resale;
(b) When transportation is between horticultural facilities other than those facilities which sell at wholesale or retail level, for the purposes set forth in (a) of this subsection;
(c) When sold or transported to a fruit/produce stand within the zone of production, not to exceed daily quantities of two thousand pounds net weight of a single commodity nor six thousand pounds net weight of any combination of commodities other than cherries, listed in subsection (1) of this section, when on a single conveyance, provided that such exempt sales by the producer within a farmer's market shall not be restricted to the zone of production;
(d) When daily quantities do not exceed one hundred pounds net weight of dark varieties of sweet cherries which are sold for home use and not for resale, and the containers are marked "not for resale" in letters at least one-half inch in height.
(3)(a) Any shipper or packer of apples, apricots, cherries, pears, peaches, prunes, or asparagus may petition the director for authority to issue certificates of compliance for each season. The director may issue certificate of compliance agreements, granting such authority, on such terms and conditions as he may deem appropriate. The authority shall be limited to the issuance of certificates of compliance for apples, apricots, cherries, pears, peaches, prunes, and asparagus under the applicant's direct control or being handled at the shipper's or packer's facilities.
(b) The certificate of compliance shall be issued at time of shipment by the shipper or packer authorized to do so: Provided, That the apples, pears, cherries, and asparagus about to be shipped or transported are in full compliance with the requirements of chapter 15.17 RCW, regulations adopted thereunder and administrative directives of the director: Provided further, That apricots, cherries, peaches, prunes, or pears about to be shipped or transported are in full compliance with an existing federal marketing order requiring quality and condition certification and Washington state lot identification or federal-state lot identification;
Cherries of the dark sweet varieties shall be certified as to quality, condition, and size and shall meet all of the requirements of chapter 16-414 WAC, Cherries.
(c) The director's approval to issue certificates of compliance may be suspended, revoked, or denied for cause, subject to RCW 34.05.422(3) and that cause shall be the shipper's or packer's failure to comply with the requirements of subsection (3)(b) of this section, or for the shipper's or packer's actions which impede the department's abilities to ascertain full compliance with requirements of chapter 15.17 RCW or rules adopted thereunder, or for violation of the terms of the certificate of compliance agreement. The period of any suspension shall be determined by the director and shall be commensurate with the seriousness of the violation.
(d) Any shipper or packer whose authority to issue certificates of compliance has been suspended, revoked, or denied by the director shall be subject to those provisions of chapter 15.17 RCW and the regulations requiring the issuance of a shipping permit by the director before apples, apricots, cherries, pears, peaches, prunes, and asparagus may be shipped or transported.
(e) Certificates of compliance shall be on forms approved and issued by the director of agriculture.
(f) Any shipper or packer authorized to issue certificates of compliance shall deposit with the director of agriculture at the regular base fee equivalent to that charged by the director for a shipping permit, for each certificate of compliance issued by the authorized shipper or packer. The base fees shall be deposited with the director of agriculture in the same manner as fees for shipping permits.
[Statutory Authority: Chapter 15.17 RCW. 95-13-038, § 16-461-010, filed 6/14/95, effective 7/15/95; 92-18-103, § 16-461-010, filed 9/2/92, effective 10/3/92; 92-06-085, § 16-461-010, filed 3/4/92, effective 4/4/92; 83-06-050 (Order 1788), § 16-461-010, filed 3/1/83; Order 1523, § 16-461-010, filed 4/20/77; Order 1324, § 16-461-010, filed 8/3/73; Order 1122, § 16-461-010, filed 5/5/72, effective 6/5/72; Order 1122, § 16-461-010, filed 8/23/71; Order 1122, § 16-461-010, filed 5/29/70, effective 7/1/70; Order 1122, § 16-461-010, filed 8/14/69, effective 9/14/69; Order 1098, § 16-461-010, filed 8/30/68, effective 9/30/68; Order 968, filed 3/26/65.]
OTS-3104.1
AMENDATORY SECTION(Amending Order 1892, filed 6/25/86)
WAC 16-403-141
Red Delicious, Delicious, Golden Delicious--Minimum soluble
solids.
((Prior to the general release date)) For harvest of the crop of the current growing
season, apples of the Red Delicious and Delicious varieties cannot be shipped prior to October 1,
unless they have at least ten percent soluble solids as determined by refractometer. Apples of the
Golden Delicious varieties, cannot be shipped prior to the general release as established by the
Delicious maturity committee of the Washington state horticultural association((, shipment shall
not be allowed of apples of the Red Delicious and Delicious varieties having less than)) unless
they have at least ten and one-half percent soluble solids and apples of the Golden Delicious
variety having less than ten and one-half percent soluble solids as determined by refractometer.
[Statutory Authority: Chapter 15.17 RCW. 86-14-026 (Order 1892), § 16-403-141, filed 6/25/86.]