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VOLUME 3

Titles 28B through 36

2000

REVISED CODE OF WASHINGTON

Published under the authority of chapter 1.08 RCW.

Containing all laws of a general and permanent nature through the 2000 second special session, which adjourned

sine die April 27, 2000. .

(2000 Ed.) [Prefac:e-p i)
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REVISED CODE OF WASHINGTON

2000 Edition

e 2000 State of Washington

CERTIFICATE

The 2000 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in

accordance with RCW 1.08.037, certified to comply with the current specifications of the committee.

.jK#~""..,. JOHN G. SCHULTZ, Chair,

STATUTE LAW COMMITTEE

[Preface-p ii] (2000 Ed.)
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CHAPTER 34. 05 RCW

ADMINISTRATIVE PROCEDURE ACT

Sections

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34.05.001

34.05.010

34.05.020

34.05.030

34.05.040

34.05.050

34.05.060

34.05.070

34.05.080

34.05.090

34.05.210

34.05.220

34.05.230

34.05.240

34".05.250

34.05.260

34.05.310

34.05.312

34.05.313

34.05.314

34.05.315

34.05.320

34.05.322

34.05.325

34.05.328

34.05.330

34.05.335

34.05.340

34.05.345

34.05.350

34.05.354

34.05.356

34.05.360

Legislative intent.

PART I

GENERAL PROVISIONS

Definitions.

Savings--Authority of agencies to comply with

chapter--Effect of subsequent legislation.

Exclusions from c~apter or parts of chapter.

Operation of chapter if in conflict with federal law.

Waiver.

Informal settlements.

Conversion of proceedings.

Variation from time limits.

Forest practices board--Emergency rules.

PART II

PUBLIC ACCESS TO AGENCY RULES

Code and register--Publication and distribution--

Omissions, removals, revisions--Judicial notice.

Rules for agency procedure--Indexes of opinions and

statements~

Expedited adoption of rules--Interpretive and policy

statements.

Declaratory order by agency--Petition.

Model rules of procedure.

Electronic distribution.

PART III

RULE-MAKING PROCEDURES

Prenotice inquiry--Negotiated and p~lot rules.

Rules coordinator.

Feasibility studies~-Pilot projects.

Rules development agenda.

Rule-making docket.

Notice of proposed rule--Contents--Distribution by

agency--Institutions of higher education.

Scope of rule-making authority. _

Public participation--Concise explanatory statement.

Significant legislative rules, other selected rules.

Petition for adoption, amendment, repeal--Agency

action--Appeal.

Withdrawal of proposal--Time and manner of adoption.

Variance between proposed and final rule.

Failure to give twenty days notice of intended

action--Effect.

Emergency rules and amendments.

Expedited repeal.

Expedited adoption.

Order adopting rule, contents.

RCW (10/14/99 8:34) [ 1 ]
34.05.365

34.05.370

34.05.375

34.05.380

34.05.385

34.05.390

34.05.395

34.05.410

34.05.413

34.05.416

34.05.419

34.05.422

34.05.425

34.05.428

34.05.431

34.05.434

34.05.437

34.05.440

34.05.443

34.05.446

34.05.449

34.05.452

34.05.455

34.05.458

34.05.461

34.05.464

34.05.467

34.05.470

34.05.473

34.05.476

34.05.479

34.05.482

34.05.485

34.05.488

34.05.491

34.05.494

34.05.510

34.05.514

34.05.518

34.05.522

34.05.526

34.05.530

34.05.534

34.05.542

34.05.546

34.05.550

34.05.554

Incorporation by reference.

Rule-making file.

Substantial compliance with procedures.

Filing with code reviser--Register--Effective dates.

Rules for rule making.

Style, format, and numbering--Agency compliance.

Format and style of amendatory and new sections--

Failure to comply.

PART IV

ADJUDICATIVE PROCEEDINGS

Application of Part IV.

Commencement--When required.

Decision not to conduct an adjudication.

Agency action on applications for adjudication.

Rate changes, licenses.

Presiding officers--Disqualification, substitution.

Representation.

Conference--Procedure and participation.

Notice of hearing.

Pleadings, briefs, motions, service.

Default.

Intervention.

Subpoenas, discovery, and protective orders.

Procedure at hearing.

Rules of evidence--Cross-examination.

Ex parte communications.

Separation of functions.

Entry of orders.

Review of initial orders.

Stay.

Reconsideration.

Effectiveness of orders.

Agency record.

Emergency adjudicative proceedings.

Brief adjudicative proceedings--Applicability.

Brief adjudicative proceedings--Procedure.

Brief proceedings--Administrative review--

Applicability.

Brief proceedings--Administrative review--Procedures.

Agency record in brief proceedings.-

PART V

JUDICIAL REVIEW AND CIVIL ENFORCEMENT

Relationship between this chapter and other judicial

review authority.

Petition for review--Where filed.

Direct review by court of appeals.

Refusal of review by court of appeals.

Appellate review by· supreme court or court of

appeals.

Standing.

Exhaustion of administrative remedies.

Time for filing petition for review.

Petition for review--Contents.

Stay and other temporary remedies.

Limitation on new issues.

RCW (10/14/99 8:34) [ 2 ]
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34.05.558

34.05.562

34.05.566

34.05.570

34.05.574

34.05.578

34.05.582

34.05.586

34.05.588

34.05.590

34.05.594

34.05.598

34.05.610

34.05.620

34.05.630

34.05.640

34.05.650

34.05.655

34.05.660

34.05.665

34.\)5.671

34.05.675

34.05.681

34.05.900

34.05.901

34.05.902

34.05.903

Judicial review of facts confined to record.

New evidence taken by court or agency.

Agency record for review--Costs.

Judicial review.

Type of relief.

Petition by agency for enforcement.

Petition by others for enforcement.

Defenses, limitations on.

Enforcement of agency subpoena.

Incorporation of other judicial review provisions.

Review by higher court.

Frivolous petitionS.

PART VI

LEGISLATIVE REVIEW

Joint administrative rules review committee--

Members--Appointment--Terms--Vacancies.

Review of proposed rules--Notice.

Review of existing rules--Policy and interpretive

statements, etc.--Notice--Hearing.

Committee objections to agency intended action--

Statement in register and WAC--Suspension of rule.

Recommendations by committee to legislature.

Petition for review.

Review and objection procedures--No presumption

established.

Submission of rule for review--State employees

protected .

. Repbrts--Advisory boards--Staff.

Inspection of properties--Oaths, subpoenas,

witnesses, depositions.

Enforcement--Committee subpoena--Refusal to testify.

PART IX

TECHNICAL PROVISIONS

Captions and headings.

Severability--1988 c 288.

Effective date--Application--1988 c 288.

Severability-~1998 c 280.

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RCW 34.05.001 Legislative intent. The legislature intends,

by enacting this 1988 Administrative Procedure Act, to clarify the

existing law of administrative procedure, to achieve greater

consistency with other states and the federal government in

administrative procedure, and to provide greater public and

legislative access to administrative decision making. The

legislature intends that to the greatest extent possible and unless

this chapter clearly requires otherwise, current agency practices

and court decisions interpreting the Administrative Procedure Act

in effect before July 1, 1989, shall remain in effect. The

legislature also intends that the courts should interpret

provisions of this chapter consistently with decisions of other

courts interpreting similar provisions of other states, the federal

government, and model acts. [1988 c 288 § 18.]

. RCW (10/14/99 8: 34) [ 3 )
PART I

GENERAL PROVISIONS

RCW 34.05.010 Definitions. The definitions set forth in this

section shall apply throughout this chapter, unless the context

clearly requires otherwise.

(1) "Adjudicative proceeding" means a proceeding before an

agency in which an opportunity for hearing before that agency is

required by statute or constitutional right before or after the

entry of an order by the agency. Adjudicative proceedings also

include all cases of licensing and rate making in which an

application for a license or rate change is denied except as

limited by RCW 66.08.150, or a license is revoked, suspended, or

modified, or in which the granting of an application is contested

by a person having standing to contest under the law.

(2) "Agency" means any state board, commission, department,

institution of higher education, or officer, authorized by law to

make rules or to conduct adjudicative proceedings, except those in

the legislative or judicial branches, the governor, or the attorney

general except to the extent otherwise required by law and any

local governmental entity that may request the appointment of an

administrative law judge under chapter 42.41 RCW.

(3) "Agency act.Lon" means licensing, the implementation or

enforcement of a statute, the adoption or application of an agency

rule or order, the imposition of sanctions, or the granting or

withholding of benefits. . .

Agency action does not include an agency decision regarding

(a) contracting or procurement of goods, services, public works,

and the purchase, lease, or acquisition by any other means,

including eminent domain, of real estate, as well as all activities

necessarily related to those functions, or (b) determinations as to

the sufficiency of a showing of interest filed in'support of . a

representation petition, or mediation or conciliation of labor

disputes or arbitration of labor disputes under a collective

bargaining law or similar statute, or (c) any sale, lease,

contract, or other proprietary decision in the management of public

lands or real property interests, or (d) the granting of a license,

franchise, or permission for the use of trademarks, sYmbols, and

similar property owned or contrqlled by the agency.

(4) "Agency head" means the individual or body of individuals

in whom the ultimate legal authority of the agency is vested by any

provision of law. If the agency head is a body of individuals, a

majority of those individuals constitutes the agency head.

(5) "Entry" of an order means the signing of the order by all

persons who are to sign the order, as an official act indicating

that the. order is to be effective.

. (6) "Filingll of a document that is required to be filed with

an agency means delivery of the document to a place designated by

the agency by rule for receipt of official documents, or in the

absence of such designation, at the office of the agency head.

(7) "Institutions of higher education" are the University of

Washington, Washington State University, Central Washington

University, Eastern Washington University, Western Washington

University, The Evergreen State College, the various community

colleges, and the governing boards of each of the above, and the

various colleges, divisions, departments, or offices authorized by

the governing board of the· institution involved to act for the

Ci"-·.,.

RCW (10/14/99 8:34) [ 4 ]
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institution, all of which are sometimes referred to in this chapter

as "institutions."

(8) "Interpretive statement" means a written expression of the

opinion of an agency, entitled an 'interpretive statement by the .

agency head or its designee, as to the meaning of a statute or

other provision of law, of a court decision, or of an ,agency order.

(9) (a) "License" means a franchise, permit, certification,

approval, registration, charter, or similar form of authorization

required by law, but does not include (i) a license required solely

for revenue purposes, or (ii) a certification of an exclusive

bargaining representative, or similar status, under a collective

bargaining law or similar statute, or (iii) a license, franchise,

or permission for use of trademarks, symbols, and similar property

owned or controlled by the agency.

(b) "Licensing" includes the agency process respecting the

issuance, denial, revocation, suspension, or modification of a

license.

(10) "Mail" or "send," for purposes of any notice relating to

rule 'making or policy or interpretive statements, means regular

mail or electronic distribution, as provided in RCW 34.05.260.

"Electronic distribution" or "electronically" means distribution by

electronic mail or facsimile mail.

(11) (a) "Order," without further qualification, means a

written statement of particular applicability that finally

determines the legal rights, duties,. privileges, immunities, or

other legal interests of a specific person or persons.

(b) "Order of adoption" means the official written statement

by which an agency adopts, amends, or repeals a rule.

(12) "Party to agency proceedings," or "party" in a context so

indicating, means:

'(a) A person to whom the agency action is specifically

directed; or

(b) A person named as a party to the agency proceeding or

allowed to intervene or participate as a party in the' agency

proceeding.

(13) "Party to judicial review or civil enforcement

proceedings," or "party" in a context so indicating, means:

(a) A person who files a petition for a judicial review or

civil enforcement proceeding; or

(b) A persOn named as a party in a judicial review or civil

enforcement proceeding, or allowed to participate as a party in a

judicial review or civil enforcement proceeding.

(14) "Person" means any individual" partnership, corporation,

association, governmental subdivision or unit thereof, or public or

private organization or entity of any character, and includes

another agency.

(15) "Policy statement" means a written description of the

current approach of an agency, entitled a policy statement by the

agency head or its designee, to implementation of a statute or

other provision of law, of a court decision, or of an agency order,

including where appropriate the agency's current practice,

procedure, or method of action based upon that approach.

(16) "Rule" means any agency order,directive, or regulation

of general applicability (a) the violation of which subjects a

person to a penalty or administrative sanction; (b) which

establishes, alters, or revokes any procedure, practice, or

requirement, relating to agency hearings; (c) which establishes,

alters, or revokes any qualification or requirement relating to the

RCW (10/14/99 8:34) [ 5 ]
enjoyment of benefits or privileges conferred by law; (d) which

establishes, alters, or revokes any qualifications or standards for

the issuance, suspension, or revocation of licenses to pursue any

commercial activity, trade, or profdession; or (e) which C:.,. establishes, alters, or revokes any man atory standards for any ,

product or material which must be met before distribution or sale.

The term includes the amendment or repeal of a prior rule, but does

not include (i) statements concerning only the internal management

of an agency and not affecting private rights or pr-oceduzes

available to the public, (ii) declaratory rulings issued pursuant

to RCW 34.05.240, (iii) traffic restrictions for motor vehicles,

bicyclists, and pedestrians established by the secretary of

transportation or his designee where notice of such restrictions is

given by official traffic control devices, or (iv) rules of

institutions of higher education involving standards of admission,

academic advancement, academic credit, graduation and the granting

of degrees, employment relationships, or fiscal processes.

(17) "Rules review committee" or "committee" means the joint

administrative' rules review committee created pursuant to RCW

34.05.610 for the purpose of selectively reviewing existing and

proposed rules of state agencies.

(18) "Rule making" means the process for formulation and

adoption of a rule.

(19) "Service," except as otherwise provided in this chapter,

means posting in the United States mail, properly addressed,

postage prepaid, or personal service. Service by mail is complete

upon deposit in the United States mail. Agencies may, by rule,

authorize service by electronic telefacsimile transmission, where

copies are mailed simultaneously, or by commercial parcel delivery

company. [1997 c 126 § 2; 1992 c 44 § 10; 1989 c 175 § 1; 1988 c C

288 § 101; 1982 c 10 § 5. Prior: 1981 c 324 § 2; 1981 c 183 § 1;

1967 c 237 § 1; 1959 c 234 § 1. Formerly RCW 34.04.010.]

NOTES:

Effective dates--Severability--1992 c 44: See RCW 42.41.901

and 42.41.902.

Effective d~tes--1989 c 175: "Sections 1 through 35 and 37

through 185 of this act are necessary for the immediate

preservation of the public peace, health, or safety, or the support

of the state government and its existing public institutions, and

shall take effect on July 1, 1989. Section 36 of this act shall

take effect on July 1, 1990." [1989 c 175 § 186.]

Severability--1982 c 10: See note following RCW 6.13.080.

,Legislative affirmation- -1981 c 324: "The legislature affirms

that allrule-'making authority of·stateagencies and institutions

of higher education is a function delegated by the legislature, and

as such, shall be exercised pursuant to the conditions and·

restrictions contained in this act." [1981 c 324 § 1.]

Severability--1981 c 324: "If any provision of this act or

its application to any person or circumstance is held invalid, the

remainder of the act or the 'application of the provision to other

persons or circumstances is not affected." [1981 c 324 § 18.]

RCW (10/14/99 8:34) [ 6 ]
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RCW 34.05.020 Savings--Authority of agencies to comply with

chapter- -Effect of subsequent legislation. Nothing in this chapter

may be held to diminish the constitutional rights of any person or

to limit or repeal additional requirements imposed by statute or

otherwise recognized by law. Except as otherwise required by law,

all requirements or privileges relating to evidence or procedure

shall apply equally to agencies and persons. Every agency is

granted all authority necessary to comply with the requirements of

this chapter through the issuance of rules or otherwise. No

subsequent legislation shall be held to supersede or modify the

provisions of this chapter or its applicability to any agency

except to the extent that such legislation shall do so expressly.

[1988 c 288 § 102; 1967 c 237 § 24. Formerly RCW 34.04.940.]

RCW 34.05.030 Exclusions from chapter or parts of chapter.

(1) This chapter shall not apply to:

(a) The state militia, or

(b) The board of clemency and pardons, or

(c) The department of corrections' or the indeterminate

sentencing review board with respect to persons who are in their

custody or are subject to the jurisdiction of those agencies.

(2) The provisions of RCW 34.05.410 through 34.05.598 shall

not apply:

(a) To adjudicative proceedings of the board of industrial

insurance appeals except as provided in RCW 7.68.110 and 51.48.131;

(b) Except for actions pursuant to chapter 46.29 RCW, to the

denial, suspension, or revocation of a driver's license by the

department of licensing;

(c) To the department of labor and industries where another

statute expressly provides for review of adjudicative proceedings

of a department action, order, decision, or award before the board

of industrial insurance appeals;

(d) To actions of the Washington personnel resources board,

the director of personnel, or the personnel appeals board; or

(e) To the extent they are inconsistent with any provisions of

chapter 43.43 RCW.

(3) Unless a party makes an election for a formal hearing

pursuant to RCW 82.03.140 or 82.03.190, RCW 34.05.410 through

34.05.598 do not apply to a review hearing conducted by the board

of tax appeals.

(4) The rule -making provisions of this chapter do not apply to

reimbursement unit values, fee schedules, arithmetic conversion

factors, and similar arithmetic factors used to determine paYment

rates that apply to goods and services purchased under contract for

clients eligible under chapter 74.09 RCW.

(5) All other agencies, whether or not formerly specifically

excluded from the provisions of all or any part of the

Administrative Procedure Act, shall be subject to the entire act.

[1994 c 39 § 1; 1993 c 281 § 15; 1989 c 175 § 2; 1988 c 288 § 103;

1984 c 141 § 8; 1982 c 221 § 6; 1981 c 64 § 2; 1~79 c 158 § 90;

1971 ex.s. c 57 § 17;. 1971 c 21 § 1; 1967 ex.s. c 71 § 1; 1967 c

237 § 7; 1963 c 237 § 1; 1959 c234 § 15. Formerly RCW 34.04.150.]

NOTES:

Effective date--1993 c 281: See note following RCW 41.06.022.

RCW (10/14/99 8:34) ( 7 ]
Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.040 Operation of chapter if in conflict with Co.., federal law. If any part of this chapter is found to be in

conflict with federal requirements which are a condition precedent

to the allocation of federal funds to the state, the conflicting

part of this chapter is inoperative solely to the extent of the

conflict and with respect to the agencies directly affected, and

such findings or determination shall not affect the operation of

the remainder of this chapter in its application to the agencies

concerned. [1988 C 288 § 104; 1959 c 234 § 19. Formerly RCW

34.04.930.]

. RCW 34.05.050 Waiver. Except to the extent precluded by

another provision of law, a person may waive any right conferred

upon that person by this chapter. [1988 c 288 § 105.]

RCW 34.05.060 Informal settlements. Except to the extent

precluded by another provision of law and subject to approval by

agency order, informal settlement of matters' that may make

unnecessary more elaborate proceedings under this chapter is

strongly encouraged. Agencies may .establish by rule specific

procedures for attempting and executing informal settlement of

matters. This section does not require any party or other person

to settle a matter. [1988 c 288 § 106.]

RCW 34.05.070 Conversion of proceedings. (1) If it becomes

apparent during the course of an adjudicative or rule-making

proceeding undertaken pursuant to this chapter that another form of

proceeding under this chapter is necessary, is in the public

interest, or is more appropriate to resolve issues affecting the

participants, on his or her own motion or on the motion of any

party, the presiding officer or other official responsible for the

original proceeding shall advise the parties of necessary steps for

conversion and, if. within the official's power-, commence the new

proceeding. If the agency refuses to convert to another

proceeding, that decision is not subj ect to judicial .review ..

Commence~ent of,the new proceeding shall be accomplished pursuant

to the procedural rules of the new proceeding, except that elements

already performed need not be repeated.

(2) If appropriate, a new proceeding 'may be commenced

independently of the original proceeding or may replace the

original proceeding.

(3) Conversion to a replacement proceeding shall not be

undertaken if the rights of any party' will be substantially

prejudiced. . (4) To the extent feasible the record of the original

proceeding shall be included in the record of a replacement

proceeding.

(5) The time of commencement of a replacement proceedi.ng shall

be considered to be the time of commencement of the original

proceeding. [1988 c 288 § 107.]

RCW (lO/~4/99 8:34) [ 8 ]
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RCW 34.05.080 Variation from time limits. (1) An agency may

modify time limits established in this chapter only as set forth in

this section. An agency may not modify time limits relating to

rule-making procedures or the time limits for filing a petition for

judicial review specified in RCW 34.05.542.

(2) The time limits set forth in this chapter may be modified

by rule of the agency or by rule of the chief administrative law

judge if:

(a) The agency has an agency head composed of a body of

individuals serving part time who do not regularly meet on a

schedule that would allow compliance with the time limits of this

chapter in the normal course of agency affairs;

(b) The agency does not have a permanent staff to comply with.

the time limits set forth in this chapter without substantial loss

of efficiency and economy; and

(c) The rights of persons dealing with the agency are not

substantially' impaired.

(3) The time limits set forth in this chapter may be modified

by rule if the agency determines that the change is necessary to

the performance of its statutory duties. Agency rule may· provide

for emergency variation when required in a specific case.

(4) Time limits may be changed pursuant to RCW 34.05.040.

(5) Time limits may be waived pursuant to RCW 34.05.050.

(6) Any modification in. the time limits set forth in this

chapter shall.be to new time limits that are reasonable under the

specific circumstances.

(7) In an adjudicative proceeding, any agency whose time

limits vary from those set forth in this chapter shall provide

reasonable and adequate notice of the pertinent time limits to

persons affected. The notice may be given by the presiding or

reviewing officer involved in the proceeding.

(8) Two years after July 1, 1989, the chief administrative law

judge shall cause a survey to be made of variations by agencies

from the time limits set forth in this chapter, and shall submit a

written report of the results of the survey to the office of the

governor. [1989 c 175 § 3; 1988 c 288 § 108.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05.090 Forest practices board--Emergency rules.

Emergency rules adopted by the forest practices board pertaining to

forest practices and the protection of aquatic resources are

subject to this chapter to the extent provided in RCW 76.09.055.

[1999 1st sp.s. c 4 § 202.]

NOTES:

Effective date--1999 1st sp.s. c 4 §§ 201, 202, and 2.03: See

note following RCW 76.09.055.

Part headings not law--1999 1st sp.s. c 4: See note following

RCW 75.46.300.

RCW (10/14/99 8:34) [ 9 ]
PART II

PUBLIC ACCESS TO AGENCY RULES

RCW 34.05.210 Code and register--Publication and

distribution--Omissions, removals, revisions--Judicial notice. (1)

The code reviser shall cause the Washington Administrative Code to

be compiled, indexed by subject, and published. All current,

permanently effective rules of each agency shall be published in

the Washington Administrative Code. Compilations shall be

supplemented or revised as often as necessary and at least annually

in a form compatible with the main compilation. .

(2) Subj ect to the provis ions of this chapter, the code

reviser shall prescribe a uniform numbering system, form, and style

for all proposed and adopted rules.

(3) The code reviser shall publish a register setting forth

·the text of all rules filed during the appropriate register

publication period.

(4) The code z'evd aer may omit from the register or the

compilation, rules that would be unduly cumbersome, expensive, or

otherwise inexpedient to publish, if such rules are made available

in printed or processed form on application to the adopting agency,

and if the register or compilation contains a notice stating the

general subject matter of the rules so omitted and stating how

copies thereof may be obtained. .

(5) The code reviser may edit and revise rules for

publication, codification, and compilation, without changing the

meaning of any such rule.

(6) When a rule, in whole or in part, is declared invalid anG

unconstitutional by a court of final appeal, the adopting agency

shall give notice to.that effect in the register. With the consent

of the attorney general, the code reviser may remove obsolete rules

or parts of rules from the Washington Administrative Code when:

. (a) The rules are declared unconstitutional by a court of

final appeal; or

(b) The adopting agency ceases to exist and the rules are not

transferred by statute to a successor agency.

(7) Registers and compilations shall be made available, in

written· form to (a) -st.at e elected officials whose offices are

created by Article II or III of the state Constitution or by RCW

48.02.010, upon request, (b~ to the secretary of the senate and the

chief clerk of the house for committee use, as required, but not to

exceed the number of standing committees in each body, (c) to

county boards of law library trustees and to the Olympia

representatives of the Associated Press and the United Press

International without request, free of charge, and (d) to other

persons at a price fixed by the code reviser.

(8) The board of law library trustees of each courity shall

keep and maintain a complete and' current set of registers and

compilations for use and inspection as provided in *RCW 27.24.060.

(9) Judicial notice shall be taken. of rules filed and

published as provided in RCW 34.05.380 and this section. [1988 c

288 § 201; 1982 1st ex.s. c 32 § 7; 1980 c 186 § 12; 1977 ex.s. c

240 § 9; 1959 c 234 § 5. Formerly RCW 34.04.050.]

NOTES:

C"'t,

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·RCW (10/14/99 8: 34) [ 10 ]
Severability--1980 c 186: See note following RCW 34.05.320 .

*Reviser's note: RCW 27.24.060 was repealed by 1992 c 62 § 9,

effective April I, 1992.

• Effective "date--Severability--1977 ex. s , c 240:

34.08.905 and 34.08.910.

See RCW

•

- RCW 34.05.220 Rules for agency procedure--Indexes of opinions.

and statements. (1) In addition to other rule-making requirements

imposed by law:

(a) Each agency may adopt rules governing the formal and

informal procedures prescribed or authorized by this chapter and

rules of practice before the agency, together with forms and

instructions. If an agency has not adopted procedural rules under

this section, the model rules adopted by the chief administrative

law judge under RCW 34.05.250 govern procedures before the agency.

(b) To assist interested persons dealing with it, each agency

shall adopt as a rule a description of its organization, stating

the general course and method of its operations and the methods

whereby the public may obtain information and make submissions or

requests. No person may be required to comply with agency

procedure not adopted as a rule as herein required.

(2) To the extent not prohibited by federal law or regulation,

nor prohibited for reasons of confidentiality by state law, each

agency shall keep on file for public inspection all final orders,

decisions, and opinions in adjudicative proceedings, interpretive

statements, policy statements, and any digest" or index to those

orders, decisions, opinions, or statements prepared by or for the

agency.

(3) No agency order, decision, or opinion is valid or

effective against any person, nor may it be invoked by the agency

for any purpose, unless it is available for public inspection.

This subsection is not applicable in favor of any person who has

actual knowledge of the order, decision, or opinion. The agency

has the burden of proving that knowledge, but may meet that burden

by proving that the person has been properly served with a copy of

the order.

(4) Each agency that is authorized by law to exercise

discretion in deciding individual cases is encouraged to formalize

the general principles that may evolve from these decisions by

adopting the principles as rules that the agency will follow until

they are" amended or repealed.

(5) To the extent practicable, any rule proposed or adopted by

an agency should be clearly and simply stated, so that it can be

understood by those required to comply. [1994 c 249 § 24; 1989 c

175 § 4; 1988 c 288 § 202; 1981 c 67 § 13; 1967 c 237 § 2; 1959 c

234 § 2. Formerly RCW 34.04.020.]-

NOTES:

Severability--Application--1994 c 249:

RCW 34.05,310.

See notes following

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW (10/14/99 8:34) [ 11 ]
Effective dates- -Severability--1981 c 67: See notes following

RCW 34.12.010.

RCW 34.05.230 Expedited adoption of rules--Interpretive and

policy statements. (1) An agency may file notice for the expedited

adoption of rules in accordance with the procedures set forth in

this section for rules meeting anyone of the following criteria:

(a) The proposed rules relate only to internal governmental

operations that are not subject to violation by a person;

(b) The proposed rules adopt or incorporate by reference

without material change federal statutes or regulations, Washington

state statutes, rules of other Washington state agencies, shoreline

master programs other than those programs governing shorelines of

state-wide significance, or, as referenced by Washington state law,

national consensus codes that generally establish industry

standards, if the material adopted or incorporated regulates the

same subject matter and conduct as the adopting or incorporating

rule;

(c) The proposed rules only correct typographical errors, make

address or name changes, or clarify language of a rule without

changing its effect;

(d) The content of the proposed rules is explicitly and

specifically dictated by statute;

(e) The proposed rules have been the subject of negotiated

rule making, pilot rule making, or some other process that involved

substantial participation by interested parties before the

development of the proposed rule; or

(f) The proposed rule is being amended after a review under

RCW 34.05.328 or *section 210 of this act.

(2) The expedited rule-making process must follow the

requirements for rule making set forth in RCW 34.05.320, except

that the agency is not required to prepare a small business

economic impact statement under RCW 19.85.025, a statement

indicating whether the rule constitutes a significant legislative

rule under RCW 34.05.328(5) (c) (iii), or a significant legislative

rule analysis under RCW 34.05.328. An agency is not required to

prepare statements of inquiry under RCW 34.05.310 or conduct a

hearing .for the expedited adoption of rules. The notice for the

expedited adoption of rules must contain a statement in at least

ten-point type, that is substantially in the following form:

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN

EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE

NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A

SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE

RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE

RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE

EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR

OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT

NAME AND ADDRESS) AND RECEIVED BY (INSERT DATE) .

. (3) The agency shall send a copy of the notice of the proposed

expedited rule making to any person who has requested notification

of proposals for the expedited adoption of rules or of agency rule

making, as well as the joint administrative rules review committee,

within three days after its publication in the Washington State

0:

( \ .

RCW (10/14/99 8:34) [ 12 ]
•

•

•

Register. An agency may charge for the actual cost of providing a

requesting party mailed copies of these notices. The notice of the

proposed expedited rule making must be preceded by a statement

substantially in the form provided in subsection (2) of this

section. The notice must also include an explanation of the

reasons the agency believes the expedited adoption of the rule is

appropriate.

(4) The code reviser shall publish the text of all rules

proposed for expedited adoption along with the notice required in

this section in a separate section of the Washington State

Register. Once the text of the proposed rules has been published

in the Washington State Register, the only changes that an agency

may make in the text of these proposed rules before their final

adoption are to correct typographical errors.

(5) Any person may file a written objection to the expedited

adoption of a rule. The objection must be filed with the agency

rules coordinator within forty-five days after the notice of the

proposed expedited rule making has been published in the Washington

State Reg~ster. A person who has filed a written objection to the

expedited adoption of a rule may withdraw the objection ..

(6) If no written objections to the expedited adoption of a

rule are filed with the agency within forty-five days after the

notice of proposed expedited rule making is published, or if all

objections that have been filed are withdrawn by the persons filing

the objections, the agency may enter an order .adopting the rule

without further notice or a public hearing. The order must be

publish~d in the manner required by this chapter for any other

agency order adopting, amending, or repealing a rule. ,

(7) If a written notice of objection to the expedited adoption

of the rule is timely filed with the agency and 1s not withdrawn,

the notice of proposed expedited rule making published under this

section is considered a statement of inquiry for the purposes of

RCW 34.05.310, and the agency may initiate further rule adoption

proceedings in accordance with this chapter.

(8) Subsections (1) through (8) of this section expire on

December 31, 2000.

**an '[An] agency is encouraged to advise the public of its

current opinions, approaches, and likely courses of action by means

of interpretive or policy statements. Current' interpretive and

policy statements are advisory only. To better inform and involve

the public, an agency is encouraged to convert ·long-standing

interpretive and policy statements into rules.

(2) A person may petition an agency requesting the conversion

of interpretive and policy statements into rules. Upon submission,

the agency shall notify the joint administrative rules review

committee of the petition. Within sixty days after submission of

a petition, the agency shall either deny the petition in writing,

stating its reasons for the denial, or initiate rule-making

proceedings in accordance with this chapter.

** (11) Each agency shall maintain a roster of interested

persons, consisting of persohs who have requested in writing to be

notified of all interpretive and policy statements issued by that

agency. Each agency shall update the roster once each year and

eliminate persons who do not indicate a desire to continue on the

roster. Whenever an agency issues, an interpretive or policy

statement, it shall send a copy of the statement to each person

listed on the roster. The agency may charge a nominal fee to the

interested person for this service.

RCW (10/14/99 8:34) [ 13 ]
(12) Whenever an agency issues an interpretive or policy

statement, it shall submit to the code reviser for publication in

the Washington State Register a statement describing the subject

matter of the interpretive or policy statement, and listing the

person at the agency from whom a copy of the interpretive or policy

statement may be obtained. [1997 c 409 § 202; 1996 c 206 § 12;

1995 c 403 § 702; 1988 c 288 § 203.]

NOTES:

Reviser's note: * {I} 1997 c 409 § 210 was vetoed by the

governor.

**{2} The breaks in subsection numbering were caused by vetoes

by the governor to 1997 c 409 § 202.

Part headings--Severability--1997 c 409: See notes following

RCW 43.22.051.

Findings--1996 c 206: See note following RCW 43.05.030.

Findings- -Short title--Intent- -1995 c 403: See note following

RCW 34.05.328.

C~'

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW 34.05.240 Declaratory order by agency--Petition. {I} Any

person may petition an agency for a declaratory order with respect

to the applicability to specified circumstances of a rule, order,

or statute enforceable by the agency. The petition shall set forth

facts and reason~ on which the petitioner relies to show:

{a} That uncertainty necessitating resolution exists;

{b} That there is actual controversy arising from the

uncertainty such that a declaratory order will not be merely an

advisory opinion;

(c) That the uncertainty adversely affects the petitioner;

{d} That the adverse effect of uncertainty on the petitioner

outweighs any adverse effects on others or on the general public

that may likely arise from the order requested; and .

{e} That the petition complies with any additional

requirements established by the agency under subsection {2} of this

section.

{2} Each agency may adopt rules that provide for: {a} The

form, contents, and filing of petitions for a declaratory order;

{b} the procedural rights of persons in relation thereto; and {c}

the disposition of those petitions. These rules may include a

description of' the classes of circumstance.s in which the agency

will not enter a declaratory order and shall'be consistent with the

public interest and with the general policy of this chapter to

facilitate and encourage agencies to provide reliable advice.

{3} Within fifteen days after receipt ·of a petition for a

declaratory order, the agency shall give notice of the petition to

all person~ to whom notice is required by law, and may give notice

to any other person it deems desirable.

{4} RCW 34.05.410 through 34.05.494 apply to agency

proceedings for declaratory orders only to the extent an agency so

provides by rUle or order.

0:

RCW {10/14/99 8:34} [ 14 ]
•

•

•

(5) Within thirty days after receipt of a petition for a

declaratory order an agency, in writing, shall do one of the

following:

(a) Enter an order declaring the applicability of the statute,

rule, or order in question to the specified circumstances;

(b) Set the matter for specified proceedings to be held no

more than ninety days after receipt of the petition;

(c) Set a specified time no more than ninety days after

receipt of the petition by which it will enter a declaratory order; .

or

(d) Decline to enter a declaratory order, stating the reasons

for its action.

(6) The time limits of subsection (5) (b) and (c) of this

section may be extended by the agency for good cause.

(7) An agency may not enter a declaratory order that would

substantially prejudice the .rights of a person who would be a

necessary. party and who doe's not consent in writing to the

determination of the matter bya declaratory order proceeding.

(8) A declaratory order has the same status as any other order

entered in an agency adjudicative proceeding. Each declaratory

order shall contain the names of all parties to the proceeding on

which it is based, the particular facts on which it is based, and

the reasons for its conclusions. [1988 c 288 § 204; 1959 c 234 §

8. Formerly RCW 34.04.080.]

RCW 34.05.250 Model rules of procedure. The chief

administrative law judge shall adopt model rules of procedure

appropriate for use. by as many agencies as possible. The model

rules shall deal with all general functions and duties performed in

common by the various agencies. Each agency shall adopt as much of

the model rules as is reasonable under its circumstances. Any

agency adopting a rule of procedure that differs from the model

rules shall include in the order of adoption a finding stating the

reasons for variance. [1988 c 288 § 205.]

RCW 34.05.260 Electronic distribution. (1) In order to

provide the greatest possible access to agency documents to the

most people, agencies are encouraged to make their rule,

interpretive, and policy information available through electronic

distribution as well as through the regular mail. Agencies that

have the capacity to transmit electronically may ask persons who

are on mailing lists or rosters for copies of· interpretive

statements, policy statements, preproposal statements of inquiry, .

and other similar notices whether they would like to receive the

notices electronically. .

(2) Electronic distribution to persons who request it may

substitute for mailed copies related to·rule making or policy or

interpretive statements. If a notice is distributed

electronically, the agency is not required to transmit the actual

notice form but must send all the information contained in the

notice.

(3) Agencies which maintain mailing lists or rosters for any

notices relating to rule making or policy or interpretive

statements may establish different rosters or lists by general

subject area. [1997 c 126 § 1.]

RCW (10/14/99 8:34) [ 15 ]
PART III

RULE-MAKING PROCEDURES

RCW 34.05.310 Prenotice inquiry- -Negotiated and pilot rules.

(1) To meet the intent of providing greater public access to

administrative rule making and to promote consensus among

interested parties, agencies shall solicit comments from the public

on a subject of possible rule making before filing with the code

reviser a notice of proposed rule making under RCW 34.05.320. The

agency shall prepare a statement of inquiry that:

(a) Identifies the specific statute or statutes authorizing

the agency to adopt rules on this subject;

(b) Discusses why rules on this subject may be needed and what

they might accomplish; .

(c) Identifies other federal and state agencies that regulate

this subject, and describes the process whereby the agency would

coordinate the contemplated rule with these agencies;

(d) piscusses the. process by which the rule might be

developed, including, but not limited to, negotiated rule"making,

pilot rule making~ or agency study;

(e) Specifies the process by which interested parties can

effectively participate in the decision to adopt a new rule and

formulation of a proposed rule before its publication.

The statement of inquiry shall be filed with the code reviser

for publication in the state register at least thirty days before

the date the agency files notice of proposed rule making under RCW

34.05.320 and shall be sent to any party that has requested receipt

of the agency's statements of inquiry.

(2) Agencies are encouraged to develop and use new procedures

for reaching agreement among interested parties before publication

of notice and the adoption hearing on a proposed rule. Examples of

new procedures include, but are not limited to:

(a) Negotiated rule making by which representatives of an

agency ahd of the interests that are affected by a subject of rule

making, including, where appropriate, county and city

representatives, seek to reach consensus on the terms of the

proposed rule and on the process by which it is negotiated; and

(b) Pilot rule making which includes testing the feasibility.

of complying with or administering draft new rules or draft

amendments to existing rules through the use of volunteer pilot

groups in various. areas and circumstances, as provided in RCW

34.05.313 or as otherwise provided by the agency.

(3) (a) An agency must make a determination whether negotiated

rule making, pilot rule making, or another process' for generating.

participation from interested parties prior to development of the

rule is appropriate . . (b) An agency must include a written justification in the

rule-making file if an . opportunity for interested parties to

participate in the rule~making process prior to publication of the

proposed rule has not been provided.

(4) This section does not apply to:

(a) Emergency rules adopted under RCW 34.05.350;

(b) Rules relating only to internal governmental operations

that are not subject to violation by a nongovernment party;

(c) Rules adopting or incorporating by reference without

material change federal statutes or regulations, Washington state

statutes, ru],es of other Washington .state agencies, shoreline

C'.·~~:

"

RCW (10/14/99 8:34) [ 16 ]
•

master programs other than those programs governing shorelines of

state-wide significance, or, as referenced by Washington state law,

national consensus codes that generally establish industry

standards, if the material adopted or incorporated regulates the

same subject matter and conduct as the adopting or incorporating

rule;

(d) Rules that only correct typographical errors, make address

or name changes, or clarify language of a rule without changing its

effect;

(e) Rules the content of which is explicitly and specifically

dictated by statute;

(f) Rules that set or adjust fees or rates pursuant to

legislative standards; or

(g) Rules that adopt, amend, or repeal:

(i) A procedure, practice, or requirement relating to agency

hearings; or

(ii) A filing or related process requirement for applying to

an agency for a license or permit. [1995 c 403 § 301; 1994 c 249

§ 1; 1993 c 202 § 2; 1989 c 175 § 5; 1988 c 288§ 301.]

NOTES: .

Application--1995 c 403 §§ 201, 301-305, 401-405, and 801:

See note following RCW 34.05.328.

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328 .

Severability--1994 c 249: "If any provision of this act or

its application to any person or circumstance is held invalid, the

remainder of the act or the application of the provision to other

persons or circumstances is not affected." [1994 c 249 § 38.]

• . Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904 ..

See RCW

•

Application- -1994 c 249: "This act applies prospectively only

and not retroactively." [1994 c 249 § 36.]

Finding--Intent--1993 c 202: "The legislature finds that

while the 1988 Administrative Procedure Act expanded public

participation in the agency rule-making process, there continue to

be instances when participants have developed adversarial

relationships with each other, resulting in the inability to

identify all of the issues, the failure to focus on solutions to

problems, unnecessary delays, litigation, and added cost to the

agency, affected parties, and the public in general.

When interested parties work together, it is possible to

negotiate development of a rule that is acceptable to all affected,

and that conforms to the intent of the statute the rule is intended

to implement.

After a rule is adopted, unanticipated negative impacts may

emerge. Examples include excessive costs of administration for the

agency and compliance by affected parties, technical conditions

that may be physically or economically unfeasible to meet, problems

of interpretation due to lack of clarity, and reporting

requirements that duplicate or conflict with those already in

place.

RCW (10/14/99 8:34) [ 17 ]
, >...

It is therefore the intent of the legislature to encourage

flexible approaches to developing administrative rules, including

but not limited to negotiated rule making and a process for testing

the feasibility of adopted rules, often called the pilot ruleC

process. However, nothing in chapter 202, Laws of 1993 shall be

construed to create any mandatory duty for an agency to use the

procedures in RCW 34.05.310 or 34.05.313 in any particular instance

of rule making. Agencies shall determine, in their discretion,

when it is appropriate to use these procedures. ". [1993 c 202 § 1.J

Effective date--1989 c 175: See note following RCW 34.05.010.

Rules coordinator duties regarding business: RCW 43.17.310.

RCW 34.05. 312 Rules coordinator. Each agency shall designate

a rules coordinator, who shall have knowledge of the subjects of

rules being proposed or prepared within the agency for proposal,

maintain the records of any such action, and respond to public

inquiries about possible or proposed rules and the identity of

agency personnel working, reviewing, or commenting on th~m. The

office and mailing address of the rules coordinator shall be

published in the state register at the time of designation and in

the first issue of each calendar year thereafter for the duration

of the designation. The rules coordinator may be an employee of

another agency. [1993 c 202 § 3.J

NOTES:

Finding--Intent--1993

34.05.310.

c 202: See note following RCW C

RCW 34.05.313 Feasibility studies--Pilot projects. (1)

During the development of a rule or after its adoption, an agency

may develop methods for measuring or testing the feasibility of

complying with or administering the rule and for identifying·

simple, efficient, and economical alternatives for achieving the

goal of the rule. A pilot project shall include public notice,

participation by volunteers who are or will be subject to the rule,

a high level of involvement from agency management, reasonable

completion dates, and a process by which one or more parties may

withdraw from the processor the process may be terminated.

Volunteers who agree .to test a rule and attempt to meet the

requirements of the draft rule, to report periodically to the

proposing agency on the extent of their ability to meet the

requirements of the draft rule, and to make recommendations for

improving the draft rule shall not be obligated to comply fully

with the rule being tested nor be subject to any enforcement action

or other sanction for failing to comply with the requirements of.

the draft rule.

(2) An agency conducting a pilot rule project authorized under

subsection (1) o~ this section may waive one or more provisions of

agency rules otherwise applicable to participants in such a pilot .

project if the agency first determines that such a .wai.ver is in the (\

public interest and necessary to conduct the proj ect. Such a

waiver may be only for a stated period of time, not to exceed .the

duration of the project.

RCW (10/14/99 8:34) [ 18 J
•

•

(3) The findings of the pilot project should be widely shared

and, where appropriate, adopted as amendments to the rule.

(4) If an agency conducts a pilot rule project in lieu of

meeting the requirements of the regulatory fairness act, chapte~

19.85 RCW, the agency shall ensure the following conditions are

met:

(a) If over ten small businesses are affected, there shall be

at least ten small businesses in the test group and at least onehalf of the volunteers participating in the pilot test group shall

be small businesses.

(b) (i) If there are at least one hundred businesses affected,

the participation by small businesses in the test group shall be as

follows:

(A) Not less than twenty percent of the small businesses must

employ twenty-six to fifty employees;

{B}' Not less than twenty percent of the small businesses must

employ eleven to twenty-six employees; and

(C) Not less than twenty percent of the small businesses must

employ zero to·ten employees.

(ii) If there do not exist a sufficient number of small

businesses in each size category set forth in (b) (i) of this

subsection willing to participate in the pilot project to meet the

minimum requirements of that subsection, then the agency must

comply with this section to the maximum extent practicable.

(c) The agency may not terminate the pilot project before

completion.

(d) Before filing the notice of proposed rule making pursuant

to RCW 34.05.320, the agency must prepare a report of the pilot

rule project that includes:

(i) A description of the difficulties small businesses had in

complying with the pilot rule;

(ii) A list of the recommended revisions to the rule to make

compliance with the rule easier or to reduce the cost of compliance

with the rule by the small businesses participating in the pilot

rule project; .

(iii) A written statement explaining the options it considered

to resolve each of the difficulties described and a statement

explaining its reasons for not including a recommendation by the

pilot test group to revise the rule; and

(iv) If the agency was unable to meet the requirements set

forth in (b) (i) of this subsection, a written explanation of why it

was unable to do so and the steps the agency took to include small

businesses in the pilot project. [1995 c 403 § 303; 1993 c 202 §

4. ]

NOTES:

Application--1995 c 403 §§ 201, 301-305, 401-405, and 801:

. See .note following RCW 34.05.328.

Findings--Short title--J:ntent--1995 c 403: See note following

RCW 34.05.328.

See note following RCW

•

Part headings not law": -Severability- -1995 c 403:

43.05.903 and 43.05.904 .

Finding--J:ntent--1993 c 202:

34.05.310.

See RCW

RCW (10/14/99 8:34) [ 19 ]
for the agency

any rule-making

publication, and

§ 302.]

RCW 34.05.314 Rules development agenda. Each state agency

shall prepare a semiannual agenda for rules under development. The

agency shall file the agenda with the code reviser for publication

in the state register not later than January 31st and July 31st of

each year. Not later than three days after its publication in the

state register, the agency shall send a copy of the agenda to each

person who has requested receipt of a copy of the agenda. The

agency shall also submit the agenda to the director of financial

management, the rules review committee, and any other state agency

that may reasonably be expected to have an interest in the subject

of rules that will be developed. [1997 c 409 § 206.]

NOTES:

Part headings--Severability--1997 c 409: See notes following

RCW 43.22.051.

RCW 34.05.315 Rule-making docket. (1) Each agency shall

maintain a current public rule-making docket. The rule-making

docket shall contain the information specified in subsection (3) of

this section.

(2) The rule-making docket shall contain a listing of each

pending rule-making proceeding. A. rule-making proceeding is

pending from the time it is commenced by publication of a notice of

proposed rule adoption under RCW 34.05.320 until the proposed rule

is withdrawn under RCW 34.05.335 or is adopted by the agency.

(3) For each rule-making proceeding, the docket shall indicate

all of the following:

(a) The name and address of agency personnel responsible for

the proposed rule; .

(b) The subject of the proposed rule;

(c) A citation to all notices relating to the proceeding that

have been published in the state register under RCW 34.05.320;

(d) The place where written submissions about the proposed

rule may be inspected;

(e) The time during which written submissions will be

accepted;

(f) The current timetable established

proceeding, including the time and place of

hearing, the date of the rule's adoption, filing,

its effective date. [1989 c 175 § 6; 1988 c 288

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.320 Notice of proposed rule--Contents--Distribution

by agency--Institutions of higher education·. (1) At least twenty

days before the rule-making hearing at which the agency receives

public comment regarding adoption of a rule, the agency shall cause

notice of the hearing to be published in the state register. The

publication constitutes the proposal of a rule. The notice shall

include all of the following:

RCW (10/14/99 8:34) [ 20 ]
•

•

(a) A title, a description of the rule's purpose, and any

other information which may be of assistance in identifying the

rule or its purpose;

(b) Citations of the statutory authority for adopting the rule

and the specific statute the rule is intended to implement;

(c) A summary of the rule and a statement of the reasons

supporting the proposed action;

(d) The agency personnel, with their office location and

telephone number, who are responsible for the drafting,

implementation, and enforcement of the rule;

(e) The name of the person or organization, whether private,

public, or governmental, proposing the rule;

(f) Agency comments or recommendations, if any, regarding

statutory language, implementation, enforcement, and fiscal matters

pertaining to the rule;

(g) Whether the rule is necessary as the result of federal law

or federal or state court action; and if so, a copy of such law or

court decision shall be attached to the purpose statement;

(h) When, where, and how persons may present their views on

the proposed rule;

(i) The date on which the agency intends to adopt the rule;

(j) A short explanation of the rule, its purpose, and

anticipated effects, including in the case of a proposal that would

modify existing rules, a short description of the changes the

proposal would make;

(k) A copy of the: small business economic impact statement

prepared under chapter 19.85 RCW, or an explanation for why the

agency did not prepare the statement; and

. (1) A .atat.ement; indicating whether RCW 34.05.328 applies to

the rule adoption.

(2) Upon filing notice of the proposed rule with the code

reviser, the adopting agency shall have copies of the notice on

file and available for public inspection and shall forward three

copies of the notice to the rules review committee.

(3) No later than three days after its publication in the

state register, the agency shall cause a copy of the notice of

proposed rule adoption to be mailed to each person, city, and

county that has made a request to the agency for a mailed copy of

such notices. An agency may charge for the actual cost of

providing a requesting party mailed copies of these notices.

(4) In addition to the notice required by subsections (1) and

(2) of this section, an institution of higher education shall cause

the notice to be published in the campus or standard newspaper of

the institution at least seven days before the rule-making hearing .

. [1995 c 403 § 302; 1994 c 249 § 14; 1992 c 197 § 8; 1989 c 175 § 7;

1988 c 288 § 303; 1982 c 221 § 2; 1982 c 6 § 7; 1980 c 186 § 10;

1977 ex.s. c 84 § 1. Formerly RCW 34.04.045.]

NOTES:

Application--1995 c 403 §§ 201, 301-305, 401-405, and .801:

See note following RCW 34.05.328.

Findings--Short tit1e--Intent--1995 c 403: See note following

RCW 34.05.328 .

•••

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW (10/14/99 8:34) [ 21 ]
Severability--Application--1994 c 249:

RCW 34.05.310.

See notes following

Effective date- -1989 c 175: See note following RCW 34.05.010.

Severabili~y--1982 c 6: See RCW 19.85.900.

Severability--1980 c 186: "If any provision of this 1980 act

or its application to any person or circumstance is held invalid,

the remainder of the act or the application of the provision to

other persons or circumstances is not affected. II [1980 c 186 §

29. ]

Expedited adoption: RCW 34.05.230.

Small business economic impac~ statement--Purpose--Contents: RCW

19.85.040.

RCW 34.05.322 Scope of rule-making authority. For rules

implementing statutes enacted after July 23, 1995, an agency may

not rely solely on the section of law stating a statute's intent or

purpose, or on the enabling provisions of the statute establishing

the agency, or on any combination of such provisions, for its

statutory authority to adopt the rule. An agency may use the

statement of intent or purpose or the agency enabling provisions to

interpret ambiguities in a statute's other provisions. [1995 c 403

§ 118.]

NOTES:

.Pindings--Short title--Intent--1995 c 403:

RCW 34.05.328.

See note following

Part headings not law--Severability--l995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW 34.05.325 Public participation--Concise explanatory

statement. (1) The agency shall'make a good faith effort to insure

that the information on the proposed 'rule published pursuant to RCW

34.05.320 accurately reflects the rule to be presented and

considered at the oral hearing on the rule. Written comment about

a proposed rule, including supporting data, shall be accepted by an

agency if received no later than the time and date specified in the

notice, or such later time and date established at the rule-making

hearing.

(2) The agency shall provide an opportunity for oral comment

to be received by the agency in a rule-making hearing.

(3) If the agency possesses equipment capable of receiving

telefacsimile transmissions or recorded telephonic communications,

the agency may provide in its notice of hearing filed under RCW

34.05.320 that interested parties may comment on proposed rules by

these means. If the agency chooses to receive comments by these

means, the notice of hearing shall provide instructions for making

such comments, including, but not limited to, appropriate telephone

numbers to be used; the date and time by which comments must be

received; required methods to verify the receipt and authenticity

RCW (10/14/99 8:34) [ 22 ]
•

•

of the comments; and any limitations on the number of pages for

telefacsimile transmission comments and on the minutes of tape

recorded comments. The agency shall accept comments received by

these means for inclusion in the official record if the comments

are made in accordance with the agency's instructions.

(4) The agency head, a member of the agency head, or a

presiding officer designated by the agency head shall preside at

the rule-making hearing. Rule-making hearings shall be open to the

public. The agency shall cause a record to be made of the hearing

by stenographic, mechanical, or electronic means. Regardless of

whether the agency head has delegated rule-making authority, the

presiding official shall prepare a memorandum for consideration by

the agency head, summarizing the contents of the presentations made

at the rule-making hearing, unless the agency head presided or was

present at substantially all of the hearings. The summarizing

memorandum is a public document and shall be made available to any

person in acc6rdance with chapter 42.17 RCW.

(5) Rule-making hearings are legislative in character and

shall be reasonably conducted by the presiding official to afford

interested persons the opportunity to present comment. Rule-making

hearings may be continued to a later time and place established on

the record without publication of further notice under RCW

34.05.320.

(6) (a) Before it files an· adopted rule with the code reviser,

an agency shall prepare a concise explanatory statement of the

rule:

(i) Identifying the agency's reasons for adopting the rule;

(ii) Describing differences between the text of the proposed

rule as published in the register and the text of the rule as

adopted, other than editing changes, stating the reasons for

differences; and

(iii) Summarizing all comments received regarding the proposed

rule, and responding to the comments by category or subject matter,

indicating how the final rule reflects agency consideration of the

comments, or why it fails to do so.

(b) The agency shall provide the concise explanatory statement

to any person upon request or from whom the agency received

comment. [1998 c 125 § 1; ·1995 c 403 § 304; 1994 c 249 § 7; 1992

c 57 § 1; 1988 c 288 § 304.]

NOTES:

Application--1995 c 403 §§ 201, 301-305, 401-405, and 801:

See note following RCW 34.05.328.

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law- -Severability- -1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW 34.05.328 Significant legislative rules, other selected

rules. (1) Before adopting a rule described in subsection (5) of •

this section, an agency shall:

Severability--Application--1994 c 249:

RCW 34.05.310.

See notes following

RCW (10/14/99 8:34) [ 23 ]
this

rule

The

(a) Clearly state in detail the general goals and specific

objectives of the statute that the rule implements; . (b) Determine that the rule is needed to achieve the general

goals and speciflc objectives stated under (a) of this subsection,

and analyze alternatives to rule making and the consequences of not

adopting the rule;

(c) Determine that the probable benefits of the rule are

greater than its probable costs, taking into account both· the

qualitative and quantitative benefits and costs and the specific

directives of the statute being implemented;

(d) Determine, after considering alternative versions of the

rule and the analysis required under (b) and (c) of this

subsection, that the rule being adopted is the least burdensome

alternative for those required to comply with it that will achieve

the general goals and specific objectives stated under (a) of this

subsection;

(e) Determine.that the rule does not require those to whom it

applies to .take an action that violates requirements of another

.federal or state law; . (f) Determine that the rule does not impose more stringent

performance requirements on private entities than on public

entities unless required to do so by federal or state law;

(g) Determine if the rule differs from any federal regulation

or statute applicable to the same activity or subject matter and,

if so, determine that the difference is justified by the following:

(i) A state statute that explicitly allows the agency to

differ from federal standards; or

(ii) Substantial evidence that the difference is necessary to

achieve the general goals and specific objectives ·stated under (a)

of this subsection; and

(h) Coordinate the rule, to the maximum extent practicable,

with other federal, state, and local laws applicable to the same

activity or subject matter.

(2) In making its determinations pursuant to subsection (l) (b)

through (g) of this section, the agency shall place in the rulemaking file documentation of sufficient quantity and quality so as

to persuade a reasonable person that the determinations are

justified.

(3) Before adopting rules described in subsection (5) of

section, an agency shall place in the rule-making file a

implementation'plan for rules filed under each adopting order.

plan shall describe how the agency intends to:

(a) Implement and enforce the rule, including a description of

the resources the agency intends to use;

(b) Inform and educate affected persons about the rule;

(c) Promote and assist voluntary compliance; and

(d) Evaluate whether the rule achieves the purpose for which

it was adopted, including, to the maximum extent practicable, the

use of interim milestones to assess progress and the use of

objectively measurable outcomes.

(4) After adopting a rule described in subsection (5) of this

section regulating the. same activity or subject matter as another

provision of federal or state law, an agency shall do all ·of the

following:

(a) Provide to the *business assistance center a list citing

by reference the other federal and state laws that regulate the·

same activity or subject matter;

. RCW (10/14/99 8: 34) 24 ]
•

•

•

(b) Coordinate implementation and enforcement of' the rule with

the other federal and state entities regulating the same activity

or subject matter by making every effort to do one or more of the

following:

(i) Deferring to the other entity;

(ii) Designating a lead agency; or

(iii) Entering into an agreement with the other entities

specifying how the agency and entities will coordinate

implementation and enforcement.

If the agency is unable to comply with this subsection (4) (b) ,

the agency shall report to the legislature pursuant to (c) of this

subsection;

(c) Report to the joint administrative rules review committee:

(i) The existence of any overlap or duplication of other

federal or state laws, any differences from federal law, and any

known overlap, duplication, or conflict with local laws; and

(ii) Make recommendations for any legislation that may be

necessary to eliminate or mitigate any adverse effects of such

overlap, dMplication, or difference.

(5) (a) Except as provided in (b) of this subsection, this

section applies to:

(i) Significant legislative rules of. the departments of

ecology, labor and industries, health, revenue, social and health

services, and natural resources, the emp Loyment; security

department, the forest practices board, the office of the insurance

commissioner, and to the legislative rules of the department of

fish and wildlife implementing chapter 75.20 RCW; and

(ii) Any rule of any agency, if this section is vo~untarily

made applicable to the rule by the agency, or is made applicable to

the rule by a majority vote of .the joint. administrative rules

review committee within forty-five days of receiving the notice of

proposed rule making under RCW 34.05.320.

(b) This section does not apply to:

(i) Emergency rules adopted under RCW 34.05.350;

(ii) Rules relating only to internal governmental operations

that are not subject to violation by a nongovernment party;

(iii) Rules adopting or incorporating by reference without

material change federal statutes or regulations, Washington state

statutes, rules of other Washington state agencies, shoreline

master programs other than those programs governing shorelines of

state-wide significance, or, as referenced by Washington state law,

national consensus codes that generally establish industry

standards, if the material adopted or incorporated regulates the

same subject matter and conduct as the adopting or incorporating

rule; .

(iv) Rules that only correct typographical errors, make

address or name changes, or clarify language of a rule without

changing its effect; .

(v) Rules the content of which. is explicitly and specifically

dictated by statute;

.(vi) Rules that set or adjust fees or rates pursuant to

legislative standards; or

(vii) Rules of the department of social and health services

relating only to client medical or financial eligibility and rules

concerning liability for care of dependents.

(c) For purposes of this subsection:

(i) A "procedural rule" is a rule that adopts, amends, or

repeals (A) any procedure, practice,. or requirement relating to. any

RCW (10/14/99 8:34) [ 25 ]
agency hearings; (B) any filing or related process requirement for

making application to an agency for a license or permit; or (C) any

policy statement pertaining to the consistent internal operations

of an agency.

(ii) An "interpretive rule" is a rule, the violation of which

does not subject a person to a penalty or sanction, that sets forth

the agency's interpretation of statutory provisions it administers.

(iii) A "significant legislative rule" is a rule other than a

procedural or interpretive rule that (A) adopts substantive

provisions of law pursuant to delegated legislative authority, the

violation of which subjects a violator of such rule to a penalty or

sanction; (B) establishes, alters, or revokes any qualification or

standard for the issuance, suspension, or revocation of a license

or permit; or (C) adopts a new, or makes significant amendments to,

a policy or regulatory program.

(d) In the notice of proposed rule making under RCW 34.05.320,

an agency shall state whether this section applies to the proposed

rule pursuant to (a) (i) of this subsection, or if the agency will

apply this section voluntarily.

(6) By January 31, 1996, and by January 31st of each evennumbered year thereafter, the office of financial management, after

consulting with state agencies, counties, and cities, and business,

labor, and environmental organizations, shall report to the

governor and the legislature regarding the effects of this section

on the regulatory system in this state. The report shall document:

(a) The rules proposed to which this section applied and to

the extent possible, how compliance with this section affected the

substance of the rule, if any, that the agency ultimately adopted;

(b) The costs incurred by state agencies in complying with

this section;

(c) Any legal action maintained based upon the alleged failure

of any agency to comply with this section, the costs to the state

of such action, and the result;

(d) The extent to which this section has adversely affected

the capacity of agencies to fulfill their legislatively prescribed

mission;

(e) The extent to which this section· has improved the

acceptability of state rules to those regulated; and

(f) Any other information considered by the office of

financial management to be useful in evaluating the effect of this

section. [1997 c 430 § 1; 1995 c 403 § 201.]

NOTES:

C;

.j."

*Reviser's note: The business assistance

powers and duties were terminated June 30, 1995.

43.31.085, 43.31.087, and 43.31.089 were repealed

81, effective June 30, 1996.

center and its

RCW 43.31. 083,

by 1993 c 280 §

Findings--Short title--Intent--1995 c 403: " (1) The

legislature finds that:

(a) One of its fundamental responsibilities, to the benefit of

all the citizens of the state, is the protection of public health

and safety, including health and safety in the workplace, and the

preservation of the extraordinary natural environment with which

Washington.is endowed;

(b) Essential to this mission is the delegation of authority

to state agencies to implement .the policies established by the

RCW (10/14/99 8:34) [ 26 ]
•

•

•

legislature; and that the adoption of administrative rules by these

agencies helps assure that these policies are clearly understood,

fairly applied, and uniformly enforced;

(c) Despite its importance, Washington's regulatory system

must not impose excessive, unreasonable, or unnecessary

obligations; to do so serves only to discredit government, makes

enforcement of essential regulations more difficult, and

detrimentally affects the economy of the state and the well-being

of our citizens.

(2) The legislature therefore enacts chapter 403, Laws of

1995, to be known as the regulatory reform act of 1995, to ensure

that the citizens and environment of this state receive the highest

level of protection, in an effective and efficient manner, without

stifling legitimate activities and responsible economic growth. To

that end, it is the intent of the legislature, in the adoption of

chapter 403, Laws of 1995, that:

(a) Unless otherwise authorized, substantial policy decisions

affecting the public be made by those directly accountable to the

public, namely the legislature, and that state agencies not use

their administrative authority to create or amend regulatory

programs;

(b) When an agency is authorized to adopt rules imposing

obligations on the public, that it do so responsibly: The rules it

adopts should be justified and reasonable, with the agency having

determined, based on common sense criteria established by the

legislature, that the obligations imposed are truly in the public

interest; .

(c) Governments at all levels better coordinate their

regulatory efforts to"avoid confusing and frustrating the public

with overlapping or cont.radictory.requirements;

(d) The public respect the process whereby administrative

rules are adopted, whether or not they agree with the result:

MeIDbers of the public affected by administrative rUles must have

the opportunity for a meaningful role in their development; the

bases for agency action must be legitimate and clearly articulated;

(e) Members of the public have adequate opportunity to

challenge administrative rules with which they have legitimate

concerns through meaningful review of the rule by the executive,

the legislature, and the judiciary. While it is the intent of the

legislature that upon judicial r~view of a rule, a court should not

substitute its judgment for that of 'an administrative agency, the

court should determine whether the agency decision making was

~igorous and deliberative; whether the agency reacned its result

through a process of reason; and whether the agency took a hard

look at the rule before its adoption;

(f) In order to achieve greater compliance with administrative

rules at less cost, that a cooperative partnership exist between

agencies and regulated parties that emphasizes education and

assistance before the imposition of penalties; and

(g) Workplace safety and health in this state not be

diminished, whether provided by constitution, by statute, or by

rule. " [1995 c 403 § 1.]

Application--1995 c 403 §§ 201, 301-305, 401-405, and 801:

"Sections 201, 301 through 305, 401 through 405, and 801 of this

act shall apply to all rule making for which a statement of

proposed rule making under RCW 34.05.320 is filed after July 23,

1995. " [1995 c 403 § 1102.]

RCW (10/14/99 8:34) 27 ]
Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

Expedited adoption: RCW 34.05.230.

See RCW

a

RCW 34.05.330 Petition for adoption, amendment, repeal--

Agency action--Appeal. (1) Any person may petition an agency

requesting the adoption, amendment, or repeal of any rule. The

office of financial management shall prescribe by rule the format

for such petitions and the procedure for their submission,

consideration, and disposition and provide a standard form that may

be used to petition any agency. Within sixty days after submission

of a petition, the agency shall either (a) deny the petition in

writing, stating (i) its reasons for the denial, specifically

addressing the concerns raised by the petitioner, and, where

appropriate,(ii) the alternative means by which it will address

the concerns raised by the petitioner, or (b) initiate rule-making

proceedings in accordance with RCW 34.05.320.

(2) If an agency denies a petition to repeal or amend a rule

submitted under subsection (1) of this section, and the petition

alleges that the rule is not within the intent of the legislature

or was not adopted in accordance with all applicable provisions of

law, the person may petition for review of the rule by the joint

administrative rules review committee under RCW.34.05.655.

(3) If an agency· denies a petition to repeal or amend a rule

submitted under subsection (1) of this section, the petitioner,

witnin thirty days of the denial, may appeal the denial to the

governor. The governor shall immediately file notice of the appeal

with the code reviser for· publication in the Washington state

register. Within forty-five days after receiving the appeal, the

governor shall either (a) deny the petition in writing, stating (i)

his or her reasons for the denial, 'specifically addressing the

concerns raised by the petitioner, and, (ii) where appropriate, the

alternative means by which he or she will address the concerns

raised by the petitioner; (b) for agencies listed in RCW 43.17.010,

direct the agency to initiate rule-making proceedings in accordance

with this chapter; or (c) for agencies not listed.in RCW 43.17.010,

recommend that the agency initiate rule-making. proceedings in

accordance with this chapter. The governor's response to the

appeal shall be published in· the Washington state register and

copies shall be submitted to the chief clerk of the house of

representatives and the secretary of the senate.

(4) In petitioning for repeal or amendment of a rule under

this section, a person is encouraged to address, among other

concerns:

(a) Whether the rule is authorized;

'(b) Whether the rule is needed;

(c) Whether the rule conflicts with or .dupl i cat.es other

federal, state, or local laws;

(d) Whether alternatives to the rule exist that will serve the

same purpose at less cost;

(e) Whether the rule applies differently to public and private

entities;

(f) Whether the rule serves the purposes·for which it was

adopted;

(g) Whether the costs imposed by the rule are unreasonable;

(h) Whether the rule is clearly and simply stated;

0..

:

RCW (10/14/99 8:34) [ 28 ]
(i) Whether the rule is different than a federal law

applicable to the same activity or subject matter without adequate

justification; and

(j) Whether the rule was adopted according to all applicable

provisions of law.

(5) The department of community, trade, and economic

development and the office of financial management shall coordinate

efforts among agencies to inform the public about the existence of

this rules review process. .

(6) The office of financial management shall initiate the rule

making required by subsection (1) of this section by September 1,

1995. [1998 c 280 § 5; 1996 c 318 § 1; 1995 c 403 § 703; 1988 c

288 s 305; 1967 c 237 s 5; 1959 c 234 s 6. Formerly RCW

34.04.060.]

NOTES:

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.'

Part headings not law--Severability--l995 c 403:

43.05.903 and 43.05.904.

See RCW

•

•

RCW 34.05.335 Withdrawal of proposal--Time and manner of

adoption. (1) A proposed rule may be withdrawn by the proposing

agency at any time before adoption. A withdrawn rule may not be

adopted unless it is again proposed in accordance with RCW

34.05.320 .

(2) Before adopting a rule, an agency shall consider the

written and oral submissions, or any memorandum summarizing oral

submissions.

(3) Rules not adopted and filed with the code reviser within

one hundred eighty days after publication of the text as last

proposed in the register shall be regarded as withdrawn. An agency

may not thereafter adopt the proposed rule without refiling it in

accordance with RCW34.05.320. The code reviser shall give notice

of the withdrawal in the register.

(4) An agency may not adopt a rule before the time established

in the published notice, or such later time established on the

record or by publication in the state register. [1989 c 175 §8;

1988 c 288 § 306; 1980c 186 § 11. Formerly RCW 34.04.048.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

Severability--1980 c 186: See note following RCW 34.05.320.

RCW 34.05.340 Variance between propo~ed and final rule. (1)

Unless it complies with subsection (3) of this section, an agency

may not adopt a rule that is substantially different from the rule

proposed in the published notice of proposed rule adoption or a

supplemental notice in the proceeding. If an agency contemplates

making a substantial variance from a proposed rule described in a

published notice, it may file a supplemental notice with the code

reviser meeting the requirements of RCW 34.05.320 and reopen the

RCW (10/14/99 8:34) [ 29 ]
proceedings for public comment on the proposed variance, or the

agency may withdraw the proposed rule and commence a new rulemaking proceeding to adopt a substantially different rule. If a

new rule-making proceeding is commenced, relevant public comment

received regarding the initial proposed rule shall be considered in

the new proceeding.

(2) The following factors shall be considered in determining

whether an adopted rule is substantially different from the

proposed rule on which it is based:

(a) The extent to which a reasonable person affected by the

adopted rule would have understood that the published proposed rule

would affect his or her interests; .

(b) The extent to which the subject of the adopted rule or the

issues determined in it are substantially different from the

subject or issues involved in the published proposed rule; and

(c) The extent to which the effects of the adopted rule differ

from the effects of the published proposed rule.

(3) If the agency, without filing a supplemental notice under

subsection (1) of this section, adopts a rule that varies in

content from the proposed rule, the general subject matter of the

adopted rule must remain t.he same as the proposed rule. The agency

shall briefly describe any changes, other than editing changes, and

the principal reasons for adopting the changes. The brief

description shall be filed with the code reviser together with the

order of adoption for publication in the state register. Within

sixty days of publication of the adopted rule in the state

register, any interested person may petition the agency to amend

any portion of the adopted rule that is substantially different

from the proposed rule. The petition shall briefly demonstrate. how

the adopted rule is substantially different ·from the proposed rule

and shall contain the text of the petitioner's proposed amendment.

For purposes of the petition, an adopted rule is substantially

different if the issues determined in the adopted rule differ from

the issues determined in the proposed rule or the anticipated

effects of the adopted rule differ from those of the proposed rule.

If the petition meets the requirements of this subsection and RCW

34.05.330, the agency shall initiate rule-making proceedings upon

the proposed amendments within the time provided in RCW 34.05.330.

[1989 c.175 § 9; 1988 c 288 § 307.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010 ..

RCW 34.05.345 Failure to give twenty days notice of intended

action- -Effect. Except for emergency rules adopted under RCW

34.05.350, when twenty days notice of intended action to adopt,

amend, or repeal a rule has ·not been published in the state

register, as required by RCW 34.05.320, the code reviser shall not

publish such rule and such rule shall not be effective for any

purpose. [1988 c 288 § 308; 1967 c 237 § 4. Formerly RCW

34.04.027. ]

o·

RCW 34.05.350 Emergency rules and amendments.

agency for good cause finds:

(1) If an

RCW (10/14/99 8:34) [ 30 1
•

•

(a) That immediate adoption, amendment, or repeal of a rule is

necessary for the preservation of the public health, safety, or

general welfare, and that observing the time requirements of notice

and opportunity to comment upon adoption of a permanent rule would

be contrary to the public interest; or

(b) That state or federal law or federal rule.or·a federal

deadline for state receipt of federal funds requires immediate

adoption of a rule,

the agency may dispense with' those requirements and adopt, amend,

or repeal the rule on an emergency basis. The agency's finding and

a concise statement of the reasons for its finding shall be

incorporated in the order for adoption of the emergency rule or

amendment filed with the office of the code reviser under RCW

34.05.380 and with the rules review committee.

(2) An emergency rule adopted under this section takes effect

upon filing with the code reviser, unless a later date is specified

in the order of adoption, and may not remain in effect for longer

than one hundred twenty days after filing. Identical or

substantially similar emergency rules may not be adopted in

sequence unless conditions have changed or the agency has filed

notice of its intent to adopt the rule as a permanent rule, and is

actively undertaking the appropriate procedures to adopt the rule

as a permanent rule. This section does not relieve any agency from

compliance with any law requiring that its permanent rules be

approved by designated persons or. bodies before they become

effective.

(3) Within seven days after the rule is adopted, any person

may petition the governor requesting the immediate repeal of a rule

adopted on an emergency basis by any department listed in RCW

43.17.010. within seven days after submission of the petition, the

governor shall either deny the petition in writing, stating his or

her reasons for the denial, or order the immediate repeal of the

rule. In ruling on the petition, the governor shall consider only

whether the conditions in subsection (1) of this section were met

such that adoption of the rule on an emergency basis was necessary.

If the governor orders the repeal of the emergency rule, any

sanction imposed based on that rule is void. This subsection shall

not be construed to prohibit adoption of any rule as a permanent

rule.

(4) In adopting an emergency rule, the agency shall comply

with *section 4 of this act or provide a written explanation for

its failure to do so. [1994 c 249 § 3; 1989 c 175 § 10; 1988 c 288

s 309; 1981 c 324 § 4; 1977 ex. s . c 240 § 8 i 1959 c 234 § 3.

Formerly RCW 34~04.030.]

NOTES:

*Reviser's note: The governor vetoed 1994 c 249 § .4.

Severability--Application--1994 c 249:

RCW 34.05.310.

See notes following

•

Effective date--1989 c 175: See note following RCW 34.05.010.

Legislative affir.mation--Severability--1981 c 324: See notes

following RCW 34.05.010.

RCW (10/~4/99 8:34) [ 31 ]
Effective date--Severability--1977 ex.s. c 240:

34.08.905 and 34.08.910.

See RCW

RCW 34.05.354. Expedited repeal. (1) An agency may file

notice for the expedited repeal of rules under the procedures set

forth in this section for rules meeting anyone of the following

-criteria:

(a) The statute on which the rule is based has been repeal~d

and has not been replaced by another statute providing statutory

authority for the rule;

(b) The statute on which the rule is based has been declared

unconstitutional by a court with jurisdiction, there is a final

judgment, and no statute has been enacted to replace the

unconstitutional statute;

(c) The rule is no longer necessary because of changed

circumstances; or

(d) Other rules of the agency or of another agency govern the

same activity as the rule, making the rule redundant.

(2) An agency shall file a copy of a preproposal notice of

inquiry, as provided in RCW 34.05.310(1), that identifies the rule

as one that is proposed for expedited repeal. The agency shall

also send a copy of the preproposal notice of inquiry to any person

who has requested notification of copies of proposals for the

expedited repeal of rules or of agency· rule making. The

preproposal notice of inquiry shall include a statement that any

person who objects to the repeal of the rule must file a written

objection to the repeal within thirty days after the preproposal

notice of inquiry is published. The notice of inquiry shall also

include an explanation of the reasons the agency believes the

expedited repeal of the rule is appropriate.

(3) The code reviser shall publish all rules proposed for

'expedited repeal in a separate section of the Washington state

register.

(4) Any person may file a written objection to the expedited

repeal of a rule. The notice shall be filed with the agency rules

coordinator within thirty days after the notice of inquiry has been

published in the Washington state register. The written objection

need not state any reason for objecting to the expedited repeal of

the rule. -

(5) If no written objections to the expedited repeal of a rule

are filed with the agency within thirty days after the preproposal

notice of - inquiry is published, the agency may enter an order

repealing the rule without further notice,or an opportunity for a

public hearing. _The order shall be published in the manner

required by this chapter for any other order of the agency

adopting, amending, or repealing a rule. If a written objection to

the expedited repeal of the rule is filed with the agency within

thirty days after the notice of inquiry has been published, the

preproposal notice of inquiry published pursuant to this section

shall be considered a preproposal notice of inquiry for the

purposes of RCW 34.05.310 (1) and the agency may initiate rule

adoption proceedings in accordance with the provisions of this

chapter. [1998 c 280 § 6; 1997 c 409 § 208; 1995 c 403 § 701.]

NOTES:

RCW (10/14/99 8:34) [ 32 ]
•

Part headings--Severability--1997 c 409: See notes following

RCW 43.22.051.

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

Expedited adoption: RCW 34.05.230.

See RCW

•

•

Regulatory Fairness Act, application to expedited repeal: RCW

19.85.025.

RCW 34.05.356 Expedited adoption. (Expires December 3~,

2000.) (1) An agency may file notice for the expedited adoption of

rules in accordance with the procedures set forth in this section

for rules meeting anyone of the following criteria:

(a) The proposed rules relate only to internal governmental

operations that are not subject to violation by a person;

(b) The proposed rules adopt or incorporate by reference

without material change federal statutes or regulations, Washington

state statutes, rules of other Washington state agencies, shoreline

master programs other than those programs governing shorelines of

state-wide significance, or, as referenced by Washington state law,

national consensus codes that generally establish industry

standards, if the material adopted or incorporated regulates the

sam~ subject matter and conduct as the adopting or incorporating

rule;

(c) The proposed rules only correct typographical errors, make

address or name changes, or clarify language of a rule without

changing its effect;

(d) The content of the proposed rules is explicitly and

specifically dictated by statute;

(e) The proposed rules have been the subject of negotiated

rule making, pilot rule making, or some other process that involved

substantial participation by interested parties before the

development of the proposed rule; or

·(f) The proposed rule is being amended after a review under

RCW 34.05.328.

(2) The expedited rule-making process must follow the

requirements for rule making set forth in RCW 34.05.320, except

that the agency is not required to prepare a small business

economic impact statement under RCW 19.85.025, a statement

indicating. whether the rule constitutes a significant legislative

rule under *RCW 34.05.328(6) (c) (iii), or a significant legislative

rule analysis under RCW 34.05.328. An agency is not required to

prepare statements of inquiry under RCW 34.05.310 or conduct a

hearing for the expedited adoption of rules. The notice for the

expedited adoption of rules must. contain a statement in at. least

ten-point type, that is substantially in the following form:

NOTICE

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN

EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE

NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A

. RCW (10/14/99 8:34) [ .33 ]
SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE

RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE

RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE

EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR

OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT

NAME AND AQDRESS) AND RECEIVED BY (INSERT DATE) .

(3) The agency shall send a copy of the notice of the proposed

expedited rule making to any person who has requested notification

of proposals for the expedited adoption of rules or of agency rule

making, as well as the joint administrative rules review committee,

within three days after its publication in the Washington State

Register. An agency may charge for the actual cost of providing a

requesting party mailed copies of these notices. The notice of the

proposed expedited rule making must be preceded by a statement

substantially in the form provided in subsection (2) of this

section. The notice must also include an explanation of the

reasons the agency believes the expedited adoption of the rule is

appropriate.

(4) The code reviser shall publish the text of all rules

proposed for expedited adoption along with the notice required in

this section in a' separate section of the Washington State

Register. Once the text of the proposed rules has been published

in the Washington State Register, the only changes that an agency

may make in the text of these proposed rules before their final

adoption are to correct typographical errors.

(5) Any person may file a written objection to the expedited

adoption of a rule. The objection must be filed ,with the agency

rules coordinator with~n ~orty-five days after the notice of the

proposed expedited rule making has peen published in the Washington

State Register. A person who has filed a written objection to the

expedited adoption of a rule may withdraw the objection.

"(6) If no written objections to the expedited adoption of a

rule are filed with the agency within forty~five days after tfie

notice of proposed expedited rule making is published, or if all

objections that have been filed are withdrawn by the persons filing

the. obj ections, the agency may enter' an order adopting the rule

without further notice or a public hearing. The order must be

published in the manner required by this chapter for any other

agency order adopting, amending" or repealing a rule.

(7) If a written notice of objection to the expedited adoption

of' the rule is timely filed with the agency and is not withdrawn,

the notice of proposed expedited rule making published under this

section is considered a statement of inquiry for the purposes of

RCW 34,.05.310, and the agency may initiate further rule adoption

proceedings in accordance with this chapter. , (8) This section expires December 31,,2000. [1998 c 280 § 2.]

NOTES:

*Reviser's note: The criteria for a "significant legislative

rule ll are found in RCW 34.05.328(5) (c) (iii).

o

RCW 34.05.360 Order adopting rule, contents.

adoption by which each rule is adopted 'by an agency

all of the following:

(1) The date the agency adopted the rule;

The order of

shall contain

RCW, (10/14/99 8 :34) [ 34, ]
a

that

law as

and

than

(2) A concise statement of the purpose of the rule;

(3) A reference to all rules repealed, amended, or suspended

by the rule;

(4) A reference to the specific statutory or other authority

authorizing adoption of the rule; -

(5) Any findings required by any provision of

precondition to adoption or effectiveness of the rule;

(6) The effective date of the rule if other

specified in RCW 34.05.380(2). [1988 c 288 § 311.]

•

•

•

RCW 34.05.365 Incorporation by reference. An agency may

incorporate by reference and without publishing the incorporated

matter in full, all or any part of a code, standard, rule, or

regulation that has been adopted by an agency of the United States,

of this state, or of another state, by a political subdivision of

this state, 'or by a generally recognized organization or

association if incorporation of the full text in the agency rules

would be unduly cumbersome, expensive, or otherwise inexpedient:

The reference in agency rules shall fully identify the incorporated

matter. An agency may incorporate by reference such matter in its

rules only if the agency, organization, or association originally

issuing that matter makes copies readily available to the public.

The incorporating agency shall.have, maintain,and make available

for public inspection a copy of the incorporated matter. The rule

must state where copies of the incorporated matter are available.

[1988 c 288 § 312.] -

RCW 34.05.370 Rule-making file. (1) Each agency shall

maintain an official rule-making file for each rule that it (a)

proposes by publication in the state register,· or (b) adopts. The

file and materials incorporated by reference shall be available for

public inspection.

(2) The agency rule-making file shall contain all of the

following:

(a) A list of citations to all notices in the state register

with ·respect to the rule or the proceeding upon which the rule is

based; _

(b) Copies of any portions of the agency's public rule-making

-docket containing entries relating to the rule or the proceeding on

which the rule is based; . (c) All written petitions, requests, submissions, and comments

received by the agency and all other written material regarded by

the agency as important to adoption of the rule or the proceeding

on which the rule is based;

(d) Any official transcript of oral presentations made in the

proceeding on which the rule is based or, if not transcribed, any

tape recording or stenographic record of them, and any memorandum

prepared by a presiding official summarizing the contents of those

presentations;

(e) All petitions for exceptions to, amendment of, or repeal

or suspension of, the rule;

(f) Citations to data, factual information, studies, or

reports on which the agency relies in the adoption of the rule,

Lndi.cat Lnq where such data, factual information, studies, or

reports are available for review by the public, but this subsection

(2) (f) does not require the agency to include in the rule-making

RCW (10/14/99 8:34) [ 35 ]
file any data, factual information, studies, or reports gathered

pursuant to chapter 19.85 RCW or RCW 34.05.328 that can be

identified to a particular business;

(g) The concise explanatory statement required by RCW

34.05.325(6); and

(h) Any other material placed in the file by the agency.

(3) Internal agency documents are exempt from inclusion in the

rule-making file under subsection (2) of this section to the extent

they constitute preliminary drafts, notes, recommendations, and

intra-agency memoranda in which opinions are expressed or policies

formulated or recommended, except that a specific document is not

exempt from inclusion when it is publicly cited by an agency in

connection with its decision.

(4) Upon judicial review, the file required by'this section

constitutes the official agency rule-making file with respect to

that rule. Unless otherwise required by another provision of law,

the official agency rule-making file need not be the exclusive

basis for agency action on that rule. [1998 c 280 § 7; 1996 c 102

§ 2; 1995 c 403 § 801; 1994 c 249 § 2; 1988 c 288 § 313.]

NOTES:

Application--1995 c 403 §§ 201, 301-305, 401-405, and' 801:

See note following RCW 34.05.328.

Findings--Short title";'-Intent--1995 c 403: See note following

RCW 34.05.328 .

See notes following

. Part headings not law--Severability--1995 c 403:

4j.05.903 and 43.05.904.

Severability--Application--1994 c 249:

RCW 34.05.310.

See RCW

0:

RCW 34.05.375 Substantial compliance with procedures. No

rule proposed after July 1, 1989, is valid unless it is adopted in

substantial compliance with RCW 34.05.310 through 34.05.395.

Inadvertent failure to mail notice of a proposed rule adoption to

any personas required by RCW 34.05.320(3) does not invalidate a

rule. No action based upon this, section may' be maintained to

contest the validity of any rule unless it is commenced within two

years after the effective date of the rule. [1988 c ,288 §314.]

RCW 34.05.380 Filing with code reviser-~Register--Effective

dates. (1) Each agency shall file in the office of the code

reviser a certified copy of all rules it adopts, except for rules

contained in tariffs filed with or published by the Washington

utilities and transportation commission. The code reviser shall

place upon each rule a notation of the time and date of filing and

shall keep a permanent register of filed rules open to public

inspection. In filing a rule, each agency shall use the standard

form prescribed for this purpose by the code reviser.

(2) Emergency rules adopted under RCW 34.05.350 become

effective upon filing unless a later date is specified in the order

of adoption. All other rules become effective upon the eXpiration

,. ./

·RCW(10/14/99 8:34) [ 36 ]
•

•

•

of thirty days after the date of filing, unless a later date is

required by statute or specified in the order of adoption.

(3) A rule may become effective immediately upon its filing

with the code reviser or on any subsequent date earlier than that

established by subsection (2) of this section, if the agency

establishes that effective date in the adopting order and finds

that:

(a) Such action is required by the· state or federal

Constitution, a statute, or court order;

(b) The rule only delays the effective date of another rule

that is not yet effective; or

(c) The earlier effective date is necessary because of

imminent peril to the public health, safety, or welfare.

The finding and a brief statement of the reasons therefor

required by this subsection shall be made a part of the order

adopting the rule.

(4) With respect to a rule made effective pursuant to

subsection (3) of this section, each agency shall make reasonable

efforts to make the effective date known to persons who may be

affected by it. [1989 c 175 § 11; 1988 c "288 § 315; 1987 c 505 §

17; 1980 c 87 § 11; 1959 c 234 § 4. Formerly RCW 34.04.040.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.385 Rules for rule making. The code reviser may

adopt rules for carrying out the provisions of this chapter

relating to the filing and publication of rules and notices of

intention to adopt rules, including the form and style to be

employed by the various agencies in the drafting of such rules and

notices. [1988 c 288 § 316; 1967 c 237 § 13. Formerly RCW

34.04.055.]

RCW 34.05.390 Style, format, and numbering~-Agency

compliance. After the rules of an agency have been published by

the code reviser:

(1) All agency orders amending or rescinding such rules, or

creating new rules, shall be formulated in accordance with the

style, format, and numbering system of the Washington

Administrative Code;

(2) Any subsequent printing or reprinting of such rules shall

.be printed in the style and format (including the numbering system)

of such code; and

(3) Amendments of previously adopted rules shall incorPorate

any editorial corrections made by the code reviser. [1988 c 28a §

317; 1967 c 237 § 14. Formerly RCW 34.04.057.]

RCW 34.05.395 Format and style of amendatory and new

sections--Failure to comply. (1) Rules proposed or adopted by an

agency pursuant to this chapter that amend existing sections of the

administrative code shall have the words which are amendatory to

such existing sections underlined .. Any matter to be deleted from

an existing section shall be indicated by setting such matter forth

in full, enclosed by double parentheses, and such deleted matter

RCW (10/14/99 8:34) [ 37 ]
shall be lined out with hyphens. A new section shall be designated

"NEW SECTION" in upper case type and such designation shall be

underlined, but the complete text of the section shall not be

underlined. No rule may be forwarded by any agency to the code

reviser, nor may the code reviser accept for filing any rule unless

the format of such rule is in compliance with the provisions of

this section.

(2) Once the rule has been formally adopted by the agency the

code reviser need not, except with regard to the register published

pursuant to RCW 34.05.210 (3), include the items enumerated in

subsection (1) of this section in the official code.

(3) Any addition to or deletion from an existing code section

not filed by the agency in the style prescribed by subsection (1)

of this section shall in all respects be ineffectual; and shall not

be shown in subsequent publications or codifications of that

section unless the ineffectual portion of the rule is clearly

distinguished and an explanatory note is appended thereto by the

code reviser in accordance with RCW 34.05.210. [1988 c 288 § 318;

1980 c 186 §14; 1977 c 19 § 1. Formerly RCW 34.04.058.] .

NOTES:

Severability--1980 c 186: See note following RCW 34.05.320.

PART IV

ADJUDICATIVE PROCEEDINGS

RCW 34.05.410 Application of Part IV. (1) Adjudicative

proceedings are governed by RCW 34.05.413 through 34.05.476, except

as otherwise provided:

(a) By a rule that adopts the procedures for brief

adjudicative proceedings in accordance with the standards provided

in RCW 34.05.482 for those proceedings;

(b) By RCW 34.05.479 pertaining to emergency adjudicative

proceedings; or

(c) By RCW 34.05.240 pertaining to declaratory proceedings.

(2) RCW 34.05.410 through 34.05.494 do not apply to rulemaking proceedings unless another statute expressly so requires.

[1988 c 288 § 401.]

RCW 34.05.413 Commencement--Whenrequired. (1) Within the

scope of its authority, an agency may commence an adjudicative

proceeding at any time with respect to a matter within the agency's

jurisdiction.

(2) When required by law or constitutional right,. and upon the

timely application of any person, an agency shall commence an

adjudicative proceeding.

(3) An agency may provide forms for and, by rule, may provide

procedures for filing ~napplication for an adjudicative

proceeding. An agency may require by rule that an application be

in writing and that it be filed at a specific address, in a

specified manner, and within specified time limits. The agency

shall allow at least twenty days to apply. for an : adjudicative

proceeding from the time notice is given of the opportunity to file

such an application .

. RCW (10/14/99 8:34) [ 38 ]
•

•

•

(4) If an agency is required to hold an adjudicative

proceeding, an application for an agency to enter an order includes

an application for the agency to conduct appropriate adjudicative

proceedings, whether or not the applicant expressly requests those

proceedings.

(5) An adjudicative proceeding commences when the agency or a

presiding officer notifies a party that a prehearing conference,

hearing, or other stage of an adjudicative proceeding will be

conducted. [1989 c 175 § 12; 1988 c 288 § 402.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05.416 Decision not to conduct an adjudication. If an

agency decides not to conduct an adjudicative proceeding in

response to an application, the agency shall furnish the applicant

a copy of ,its decision in writing, with a brief statement of the

agency's reasons and of any administrative review available to the

applicant. [1988" c 288 § 403.]

RCW 34.05.419 Agency action on applications for adjudication.

After receipt of an application for an adjudicative proceeding,

other than a declaratory order, an agency shall proceed as follows:

(1) Except in situations governed by subsection (2) or (3) of

this section, within ninety days after receipt of the application

or of the resporise to a timely request made by the agency under

subsection (2) of this section, the agency shall do one of the

following:

(a) Approve or deny the application, in whole or in part, on

the basis of brief or emergency adjudicative proceedings, if those

proceedings are available under this chapter for disposition of the

matter;

(b) Commence an adjudicative proceeding in accordance with

this chapter; or

(c) Dispose of the application in accordance with RCW

34.05.416;

(2) Within thirty days after receipt of the application, the

agency shall examine the application, notify the applicant of any"

obvious errors or omissions," request any additional information the

agency wishes to obtain and is permitted "by law to require, and

notify the applicant of the name, mailing address, and telephone

number of an office that may be contacted regarding the

application;

(3) If the application seeks relief that is not available when

the application is filed but may be available in the future, the

agency may proceed to make a determination of eligibility within

the time limits provided in subsection (1) of this section. If the

agency determines that the applicant is eligible, the agency shall

maintain the application on the agency's list of eligible

applicants as provided by law and, upon request, shall notify the

applicant of the status of the application. "[1988 c 288 § 404.]

RCW 34.05.422 Rate changes, licenses. (1) Unless otherwise

provided by Laws (a) Applications for rate changes and uncontested

RCW (10/14/99 8:34) 39 ]
applications for licenses may, in the agency's discretion, be

conducted as adjudicative proceedings; (b) applications for

licenses that are contested by a person having standing to contest

under the law and review of denials of applications for licenses or

rate changes shall be conducted as adjudicative proceedings; and

(c) an agency may not revoke, suspend, or modify a license unless

the agency gives notice of an opportunity for an appropriate

adjudicative proceeding in accordance with this chapter or other

statute.

(2) An agency with authority to grant or deny a professional

or occupational license shall notify an applicant for a new or

renewal license not later than twenty days prior to the date of the

examination required for that license of any grounds for denial of

the license which are based on specific information disclosed in

the application submitted to the agency. The agency shall notify

the applicant either that the license is denied or that the

decision to grant or deny the license will be made at a future

date. If the agency fails to give the notification prior to the

examination and the applicant is denied licensure, the examination

fee shall be refunded to the applicant. If' the applicant takes the

examination, the agency shall notify the applicant of the result.

(3) When a licensee has made timely and sufficient application

for the renewal of a license or a new license with reference to any

activity of a continuing nature, an existing full, temporary, or

provisional license does not expire until the application has been

finally determined by the agency, and, in case the application is

denied or the terms of the new license limited, until the last day

for seeking review of the agency order or a later date fixed by

order of the reviewing court.

(4) If the, agency finds that public health, safety, or welfare

imperatively requires emergency action, and incorporates a finding

to that effect in its order, summary suspension of a license may be

ordered pending proceedings for revocation or other action. These

proceedings shall be promptly instituted and determined.' [1989 c

175 § 13; 1988 c 288 § 405; 1980 c 33 § 1; 1967 c 237 § 8.

Formerly RCW 34.04,.170. ]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

'RCW 34.05.425 Presiding officers--Disqualification,

substitution. (1)' Except as provided in subsection (2) of this

section, in the discretion of the agency head, the presiding

officer in an administrative hearing shall be:

(a) The agency head or one or more members of the agency head;

(b) If the agency has -statutory authority to do so, a person

other'than the agency head or an administrative law judge

designated by the agency head to make the'final decision and enter

the final order; or, .

(c) One or more administrative law judges assigned by the

office of administrative'hearings in accordance with chapter 34.12

RCW. .

(2) An agency expressly exempted under RCW 34.12.020(4) or

other statute from the provisions of chapter. 34.12 RCW or an

institution of higher education shall designate a presiding officer

as provided by rules adopted by the agency.

o

RCW (10/14/99 8:34) [ 40 ]
•

•

•

(3) Any individual serving or designated to serve alone 'or

with others as presiding officer is subject to disqualification for

bias, prejudice, interest, or any other cause provided in this

chapter or for which a judge is disqualified .

(4) Any party may petition for the disqualification of an

individual promptly after receipt of notice indicating that the

individual will preside or, if later, promptly upon discovering

facts establishing grounds for disqualification.

(5) The individual whose disqualification is requested sha~l

determine whether to grant the petition, stating facts and reasons

for the determination.

(6) When the presiding officer is an administrative law judge,

the provisions of this section regarding disqualification for cause

are in addition to the motion of prejudice available under RCW

34.12.050.

(7) If a substitute is required for an individual who becomes

unavailable as a result of disqualification or any other reason,

the substitute must be appointed by the appropriate appointing

authority.

(8) Any action taken by a duly appointed substitute for an

unavailable individual is as effective as if taken by the

unavailable individual. [1989 c 175 § 14; 1988 c 288 § 406.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05. 428 Representation~ (1) A party to an adjudicative

proceeding may participate personally or, if the party is a

corporation or other artifi,cial person, by a duly authorized

representative.

(2) Whether or not participating in person, any party may be

advised and represented at the party's own expense by counselor,

if permitted by provision of law, other representative. [1989 c

175 § 15; 1988 c 288 § 407.]

NOTES:

Effective date--1989 c 175:, See note following RCW 34.05.010.

RCW 34.05.431 ' Conference--Procedure and participation. (1)

Agencies may hold prehearing or other conferences for the

settlement or simplification of issues. Every agency shall by rule

describe the conditions under which and the manner in which

conferences are to be held.

(2) In the discretion of the presiding officer, and where the

rights of the parties will not be .prejudiced thereby, all or part

of the conference may be conducted by telephone, television, - or

other electronic means. Each participant in the conference must

have an opportunity to participate effectively in, to hear, and, if

technically and economically feasible, to see the entire proceeding _

while it is taking place. [1988 c 288 § 408.]

RCW 34.05.434 Notice of hearing. (1) The agency or the

office of administrative hearings shall set the time and place of

RCW (10/14/99 8:34) [ 41 ]
the hearing and give not less than seven days advance written

notice to all parties and to all.persons who have filed written

petitions to intervene in the matter.

(2) The notice shall include:

(a) Unless otherwise ordered by the presiding officer, the

names and mailing addresses of all parties to whom notice is being

given and, if known, the names and· addresses of their

representatives;

(b) If the agency intends to appear, the mailing address and

telephone number of the office designated to represent the agency

in the proceeding;

(c) The official file or other reference number and the name

of the proceeding;

(d) The name, official title, mailing address, and telephone

number of the presiding officer, if known;

(e) A statement of the time, place and nature of the

proceeding;

(f) A statement of the legal authority and jurisdiction unde~

which the hearing is to be held;

(g) A reference to the particular sections of the statutes and

rules involved;

(h) A short and plain statement of the matters asserted by the

agency; and

(i) A statement that a party who fails to attend or

participate in a hearing or other stage of an adjudicative

proceeding may be held in default in accordance with this chapter.

(3) If the agency is unable to state the matters required by

subsection (2) (h) of this section at the time the notice is served,

the initial notice may be limited to a statement of the issues

involved. If the proceeding is initiated by a person other than

the agency, the initial notice may be limited to the inclusion of

a copy of the initiating document. Thereafter, upon request, a

more definite and detailed statement shall be furnished.

(4) The notice may include any other matters considered

desirable by the agency. [1988 c 288 § 409; 1980 c 31 § 1; 1967 c

237 § 9; 1959 c 234 § 9. Formerly RCW 34.04.090.]

RCW 34.05.437 Pleadings, briefs, motions, service. (1) The

presiding officer, at appropriate stages of the proceedings, shall

give all parties full opportunity to submit and respond to

pleadings, motions, objections, and offers of settlement.

(2) At appropriate stages of the proceedings, the presiding

officer may give all parties full opportunity to file briefs,

proposed findings of fact and conclusions ·of law, and proposed

initial or final orders. '

(3) A party that files a pleading, brief, or other paper with

the agency or presiding officer shall serve copies on all other

parties, unless a different procedure is specified by agency rule.

[1988c 288 § 410.]

RCW 34.05.440 Default. (1) Failure of a party to fi:l.e an

application for an adjudicative proceeding within the time limit or

limits established by statute or agency rule constitutes a default

and results in the loss of that party's right to an adjudicative

proceeding, and the agency may proceed to resolve,the case without

further notice to, or hearing for the benefit of, that party,'

c'

RCW (10/14/99 8:34) [ 42 ]
•

except that any default or other dispositive order affecting that

party shall be served upon him or her or upon his or her attorney,

if any.

12) If a party fails to attend or participate in a hearing or

other stage of an adjudicative proceeding, other than failing to

timely request an adjudicative proceeding as set out in subsection

(I) of this section, the presiding officer may serve upon all

parties a default or other dispositive order, which shall include

a statement of the grounds for the order.

(3) Within seven days after service of a default order under

subsection (2) of this section, or such longer period as provided

by agency rule, the party against whom it was entered may file a

written motion requesting that the order be vacated, and stating

the grounds relied upon. During the time within which a party may

file a written motion under this subsection, the presiding officer

may adjourn the proceedings or conduct them without the

participation of that party, having due regard for the interests of

justice and the orderly and prompt conduct of the proceedings.

[1989 c 175 § 16; 1988 c 288 § 411.]

NOTES:

Effective date-'-1989 c 175: See note followingRCW 34. as. 010.

RCW 34.05.443 Intervention. (I) The presiding officer may

grant a petition for intervention at any time, upon determining

that the petitioner qualifies as an intervenor under any provision

of law and that the intervention sought is in the interests of

justice and will not impair the orderly and prompt conduct of the

proceedings.

(2) If a petitioner qualifies for intervention, the presiding

officer may impose conditions upon the intervenor's participation

in the proceedings, either at the time that intervention is granted

or at any subsequent time. Conditions may include:

(a) Limiting the intervenor's participation to designated

issues in which the intervenor has a particular interest

demonstrated by the petition; and

(b) Limiting the intervenor's use of -discovery, crossexamination, and other procedures so as to promote the orderly and

prompt conduct of the proceedings; and

(c) Requiring two or more intervenors to combine their

presentations of'. evidence and argument, cross-examination,

discovery, and other participation in the proceedings.

(3) The presiding officer shall timely grant or deny each

pending petition for intervention, specifying any conditions, and

briefly stating the reasons for the order. The presiding officer

may modify the order at any time, stating the reasons for the

modification. The presiding officer shall 'promptly give notice of

the decision granting, denying, or modifying intervention to the

petitioner for intervention and to all parties. [1988 c 288 §

412. ]

•

•• RCW 34.05.446

(1) The' presiding

protective orders.

Subpoenas, discovery, and protective orders.

officer may issue' subpoenas and may enter

A subpoena may be issued·with like effect byRCW (10/14/99 8:34) [ 43 ]
the agency or the attorney of record in whose behalf the witness is

required to appear. .

(2) An agency may by rule determine whether or not discovery

~s to be available in adjudicative proceedings and, if so, which

forms of discovery may be used.

(3) Except as otherwise provided by agency rules, the

presiding officer may decide whether to permit the taking of

depositions, the requesting of admissions, and all other procedures

authorized by rules 26 through 36 of the superior court c i.v i L

rules. The presiding officer may condition use of discovery on a

showing of necessity and unavailability by other means. In

exercising such discretion, the presiding officer shall consider:

(a) Whether all parties are represented by counsel; (b) whether

undue expense or delay in bringing the case to hearing will result;

(c) whether the discovery will promote the orderly and prompt

conduct of the proceeding; and (d) whether the interests of justice

will be promoted.

(4) Discovery orders and protective orders entered under this

section may be- enforced under the provisions of this chapter on

civil enforcement of agency action.

(5) Subpoenas issued under this section may be enforced under

RCW 34.05.588(1).

(6) The subpoena powers created by this section shall be

state-wide in effect.

(7) Witnesses in an adjudicatory proceeding shall be paid the

same fees and allowances, in the same manner and under the same

conditions, as provided for witnesses in the courts of this state

by chapter 2.40 RCW and by RCW 5.56.010, except that the agency

shall have the power to fix the allbwance for meals and lodging in

like manner as is provided in RCW 5.56.010 as to courts. The

person initiating an adjudicative proceeding or the party

requesting issuance of a subpoena shall pay the fees and allowances

and the cost of producing records required to be produced by

subpoena. [1989 c 175 § 17; 1988 c 288 § 413; 1967 c 237 § 10.

Formerly RCW 34.04.105.].

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.449 Procedure at hearing. (1) The presiding

officer shall regulate the course of the. proceedings, in conformity

with applicable rules and the prehearing order, if any.

(2) To the extent necessary for full disclosure of all

relevant facts and issues, the presiding officer shall afford to

all parties the opportunity to respond, present evidence and

argument, conduct cross-examination, and submit rebuttal evidence,

except as restricted by a limited grant of intervention or by the

prehearing order. .

(3) In the discretion of the presiding officer, and where the

rights of the parties will not be prejudiced thereby, all or part

of the hearing may be conducted by telephone, television, or 'other

electronic means. Each party in the hearing must have an

opportunity to participate effectively in, to hear, and, if

technically and economically feasible, to see the entire proceeding

while it is taking. place.

RCW (10/14/99 8: 34). [44 ]
•

•

".

(4) The presiding officer shall cause the hearing to be

recorded by a" method chosen by the agency. The agency is not

required, at its expense, to prepare a transcript, unless requireQ

to do so by a provision of law. Any party, at the party's expense,

may cause a reporter approved by the agency to prepare a transcript

from the agency~s record, or cause additional recordings to be made

during the hearing if the making of the additional recording does

not cause distraction or disruption.

(5) The hearing is open to public observation, except for the

parts that the presiding officer states to be closed under a

provision of law expressly authorizing closure or under a

protective order entered by the presiding officer pursuant to

applicable rules. A presiding officer may order the exclusion of

witnesses upon a showing of good cause. To the extent that the

hearing is conducted by telephone, television, or other electronic

means, and is not closed, the availability of public observation is

satisfied by giving members .of the public an opportunity, at

reasonable times, to hear or inspect the agency's record, and to

inspect any transcript obtained by the agency. [1989 c 175 § 18;

1988 c 288 § 414.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.452 Rules of evidence--Cross-examination. (1)

Evidence, including hearsay evidence, is admissible if in the

judgment of the presiding" officer it is the kind of evidence on

which reasonably prudent persons ·are accustomed to rely in the

conduct of their affairs. The presiding officer shall exclude

evidence that is excludable on constitutional or statutory grounds

or" on the basis of evidentiary privilege recognized in the courts

of this state. The presiding officer may exclude evidence that is

irrelevant, immaterial, or unduly repetitious.

(2) If not inconsistent with subsection (1) of this section,

the presiding officer shall refer to the Washington Rules of

Evidence as guidelines for evidentiary rulings.

(3) All testimony of parties and witnesses shall be made under

oath "or affirmation.

" (4) Documentary evidence may be·received in the form of copies

or excerpts, or by incorporation. by reference.

(5) Official notice may be taken of (a) any judicially

coqndzabLe facts, (b) technical or scientific facts within the

agency's specialized knowledge, and (c) codes or standards that

have been adopted by an agency of the United States, of this state

or of another state, or by a nationally recognized organization or

association. Parties ~hall be notified either before or during

hearing, or by reference in preliminary reports or otherwise, of

the material so noticed and the sources thereof, including any

staff memoranda and data, and they shall be afforded an opportunity

to contest the facts and material so noticed. A party proposing

that official notice be taken may be required to produce a copy of

the material to be noticed. [1988 c 288 § 415; 1959 c 234 § 10.

Formerly RCW 34.04.100.]

RCW (10/14/99 8:34) [ 45 ]
RCW 34.05.455 Ex parte communications. (1) A presiding

officer may not communicate, directly or indirectly, regarding any

issue in the proceeding other than communications necessary to

procedural aspects of maintaining an orderly process, with any

person employed by the agency without notice and opportunity for

all parties to participate, except as provided in this subsection:

(a) Where the ultimate legal authority of an agency is vested

in a multimember body, and where that body presides at an

adjudication, members of the body may communicate with one another

regarding the proceeding;

(b) Any presiding officer may receive aid from legal counsel,

or from staff assistants who are subject to the presiding officer's

supervision; and

(c) Presiding officers may communicate with other employees or

consultants of the agency who have not participated in the

proceeding in any manner, and who are not engaged in any

investigative or prosecutorial functions in the same or a factually

related case.

(d) Tpis subsection does not apply to communications required

for the disposition of ex parte matters specifically authorized by

statute. .

(2) Unless required for the .disposition of ex parte matters

specifically authorized by statute ·or unless necessary to

procedural aspects of maintaining an orderly process, a presiding

officer may not communicate, directly or indirectly, regarding any

issue in the proceeding, with any person not employed by the agency

who has a direct or indirect interest in the outcome of the

proceeding, without notice and opportunity for all part i.es to

participate.

(3) Unless necessary to procedural aspects of maintaining an

orderly process, persons to whom a presiding officer may not

communicate under subsection~ (1) and (2) of this section may not

communicate with presiding officers without notice and opportunity

for all parties to participate.

(4) If, before serving as presiding' officer in an adjudicative

proceeding, a person receives an ex parte communication of a type

that could not properly be received while serving, the person, . promptly after starting to serve, shall disclose the communication

in the manner prescribed in subsection (5) of this section.

(5) A presiding officer who receives an ex parte communication

in violation of this section shall place on the record of the

. pending matter all written communications received, all written

responses to the communications, . and a memorandum stating the

substance of all oral communications received, all responses made,

and the identity of each person from whom the presiding officer

received an ex parte communication. The presiding officer shall·

advise all parties that these matters have been placed on the

record. Upon request made within ten days after notice of the ex

parte communication, any party desiring to rebut the communication

shall be allowed' to place a written rebuttal statement on the

record. Portions of the record pertaining to ex parte

communications or rebuttal statements do not constitute evidence of

any fact at issue in the matter unless a party moves the admission

of any portion of the record for purposes of establishing a fact at

issue and that portion is admitted pursuant to RCW.34.05.452.

(6) If necessary to eliminate the effect of an ex parte

communication received in violation of this section, a presiding

officer who receives the communication may be disqualified, and the

o

RCW '(10/14/99 8:34) [ 46 ]
•

•

portions of the record pertaining to the communication may be

sealed by protective order.

(7) The agency shall, and any party may, report any violation

of this section to appropriate authorities for any disciplinary

proceedings provided by law. In addition, each agency by rule may

provide for appropriate sanctions, including default, for any

violations of this section. [1988 c 288 § 416.]

RCW 34.05.458 Separation of functions. (1) A person who has

served as investigator, prosecutor, or advocate in an adjudicative

proceeding or in its preadjudicative stage, or one who is subject

to the authority, direction, or discretion of such a person, may

not serve as a presiding officer in the same proceeding.

(2) A person, including an agency head, who has participated

in a determination of probable cause or other equivalent

preliminary determination in an adjudicative proceeding may serve

as presiding officer or assist or adv~se a presiding officer in the

same proceeding uhles.s a party demonstrates grounds for

disqualification in accordance with RCW 34.05.425.

(3) A person may serve as presiding officer at successive

stages of the same adjudicative proceeding unless a party

demonstrates grounds for disqualification in accordance with RCW

34.05.425. [1988 c 288 § 417.]

RCW 34.05.461 Entry of orders. (1) Except as provided in

subsection (2) of this section:

. (a) If. the'presiding officer is the agency head or one or more

members of the agency head, the presiding officer may enter an

initial order if further review is available within the agency, or

a final order if further review is not available;

(b) If the presiding officer is a person designated by the

agency to make the final decision and enter the final order, the

presiding officer shall enter a final order; and

(c) If the presiding officer is one or more administrative law

judges, the presiding officer shall enter an initial order.

(2) With respect to agencies exempt from chapter 34.12 RCW or

an institution of higher education, the presiding officer shall

transmit a full and complete record of the proceedings, including

such comments upon demeanor of witnesses as the presiding officer

deems relevant, to each agency official who is to enter a final or

initial order after. considering the record and evidence so

transmitted.

(3) Initial and final orders shall include a statement of

findings and conclusions, and the reasons and basis therefor, on

all the material issues of fact, law, or discretion presented on

the record, including the remedy or sanction and, if applicable,

the action taken on a petition for a stay of effectiveness. Any

findings based substantially on credibility of evidence or demeanor

of witnesses shall be so identified. Findings set forth in

language that is essentially a repetition or paraphrase of the

relevant provision of law shall be accompanied by a concise and

explicit statement of the underlying evidence of record to support

the findings. The order shall also include a statement of the

available procedures and time limits for seeking reconsideration or

other administrative relief. An initial order shall include a

. RCW (10/14/99 8:34) [ 47 ]
statement of any circumstances under which the initial order,

without further notice, may become a final order.

(4) Findings of fact shall be based exclusively on the

evidence of record in the adjudicative proceeding and on matters

officially noticed in that proceeding. Findings shall be based on

the kind of evidence on which reasonably prudent persons are

accustomed'to rely in the conduct of their affairs. Findings may

be based on such evidence even if it would be inadmissible in a

civil trial. However, the presiding officer shall not base a

finding exclusively on such inadmissible evidence unless the

presiding officer determines that doing so would not unduly abridge

the parties' opportunities to confront witnesses and rebut

evidence. The basis for this determination shall appear in the

order.

(5) Where it bears on the issues presented, the agency's

experience, technical competency, and specialized knowledge may be

used in the evaluation of evidence.

(6) If a person serving or designated to serve as presiding

officer becomes unavailable for any reason before entry of the

order, a substitute presiding officer shall be appointed as

provided in RCW 34.05.425. The substitute presiding officer shall

use any existing record and may conduct any further proceedings

appropriate in the interests of justice.

(7) The presiding officer may allow the parties a designated

time after conclusion of the hearing for the submission of memos,

briefs, or proposed findings.

(8) (a) Except as otherwise provided in (b) of this subsection,

initial or final orders shall be served in writing within ninety

days after conclusion of the hearing or after submission of memos,

briefs, or proposed findings in accordance with'subsection (7) of

this section unless this period is waived or extended for good

cause shown.

(b) This subsection does not apply to the final order of the

shorelines hearings board on appeal under RCW 90.58.180(3).

(9) The presiding officer shall cause copies of the order to

be served on each party and the agency. [1995 c 347 § 312; 1989 c

175 § 19; 1988 c 288 § 418.]

NOTES:

Finding--Severabi1ity--Part' headings and table of contents not

1aw--1995 c 347: See notes following RCW 36.70A.470.

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.464 Review of initial, orders. (1) As authorized by

law, an agency may by rule provide that initial orders in specified

classes of cases may become final without further agency action

unless, within a specified period, (a) the agency head upon its own

motion determines that the initial order should be reviewed, or (b)

a party to the proceedings files a petition for administrative

review of the initial order. .Upon occurrence of either event,

notice shall be given to all parties to the proceeding.

(2) As authorized by law, an agency head may appoint a person

to review initial orders and to prepare and enter final agency

orders.

RCW (10/14/99 8:34) [ 48 ]
•

•

•

(3) RCW 34.05.425 and 34.05.455 apply to any person reviewing

an initial order on behalf of an agency as part of the decision

process, and to persons communicating with them, to the same extent

that it is applicable to presiding officers.

(4) The officer reviewing the initial order (including the

agency head reviewing an initial order) is, for the purposes of

this chapter,termed the reviewing officer. The reviewing officer

shall exercise all the decision-making power that the reviewing

officer would have had to decide and enter the final order had the

reviewing officer presided over the hearing, except to the extent

that the issues subject to review are limited by a provision of law

or by the reviewing officer upon notice to all the parties. In

reviewing findings of fact by presiding officers, the reviewing

officers shall give due regard to the presiding officer's

opportunity to observe the witnesses.

(5) The reviewing officer shall personally consider the whole

record or such portions of it as may be cited by the parties.

(6) The reviewing officer shall afford each party an

opportunity to present written argument and may afford each party

an opportunity to present oral argument ..

(7) The reviewing officer shall enter a final order disposing

of the proceeding or remand the matter for further proceedings,

with instructions to the presiding officer who entered the initial

order. Upon remanding a matter, the reviewing officer shall order

such temporary relief as is authorized and appropriate.

(8) A final order shall include, or incorporate by reference

to the initial order, all matters required by RCW 34.05.461(3).

(9) The reviewing officer shall cause copies of the final

order or order remanding the matter for further proceedings to be

served upon each party. [1989 c 175 § 20; 1988 c 288 § 419.]·

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.467 Stay. A party may submit to the presiding 0+

reviewing officer, as is appropriate to the stage of the

proceeding, a petition for stay of effectiveness of a final order

within ten days of its service unless otherwise provided by statute

or stated in the final order. Disposition of the petition for stay

shall be made by the presiding officer, reviewing officer, or

agency head as provided by agency rule. Disposition may be made

either before or after the effective date of. the final order.

Disposition denying a stay is not subject to judicial review.

[1988 c 288 § 420.]

RCW 34.05.470 Reconsideration. (1) Within ten days of the

service of a final order, any party may file a petition for

reconsideration, stating the specific grounds upon which relief is

requested. The place of filing and other procedures, if any, shall

be specified by agency rule.

(2) No petition for.. z-ecorrsLdez-at Lon may stay the effectiveness

of an order.

(3) If a petition for reconsideration is' timely filed, and the

petitioner has complied with the agency's procedural rules for

reconsideration, if any, the time for filing a petition for

RCW (10/14/99 8 :34) [ 49 ]
judicial review does not commence until the agency disposes of the

petition for reconsideration. The agency is deemed to have denied

the petition for reconsideration if, within twenty days from the

date 'the petition is filed, the agency does not either: (a)

Dispose of the petition; or (b) serve the parties with a written

notice specifying the date by which it will act on the petition.

(4) Unless the petition for reconsideration is deemed denied

under subsection (3) of this section, the petition shall be

disposed of by the same person or persons who entered the order, if

reasonably available. The disposition shall be in the form of a

written order denying the petition, granting the petition and

dissolving or modifying the final order, or granting the petition

and setting the matter for further hearing.

(5) The filing of a petition for reconsideration is not a

prerequisite for seeking judicial review. An order denying

reconsideration, or a notice provided for in subsection (3) (b) of

this section is not subject to judicial review. [1989 c 175 § 21;

1988 c 288§ 421.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05.473 Effectiveness of.orders. (1) Unless a later

date is stated in an order or a stay is granted, an order is

effective when entered, but:

(a) A party may not be required to comply with a final order

unless the party has been served with or has actual knowledge of

the final order; . (b) A nonparty may not be required to comply with a final

order unless the agency has made the final order available for

public inspection and copying or the nonparty has actual knowledge

of the final order;

(c) For purposes of determining time limits for further

administrative procedure or for judicial review, the determinative

date is the date of service of the order.

(2) Unless a later date is stated in the initial order or a

stay is granted, the time when an initial order becomes a final

order in accordance with RCW 34.05.461 is determined as follows:

(a) When the initial order .is entered, if administrative

review is unavailable; or

(b) When the agency head with such authority enters an order

st~ting, after a petition for administrative review has' been filed,

that review will not be exercised.

(3) This section does not preclude an agency' from taking

immediate action to protect the public interest in accordance with

RCW 34.05.479. [1989 c 175 § 22; 1988 c 288 § 422.]

NOTES:·

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.476 Agency record. (1) An agency 'shall maintain an

official record of each adjudicative proceeding under this chapter

(2) The. agency record shall include:

(a) Notic~s of all proceedings; .

0;:

.:

RCW. (10/14/99 8:34) [ 50 ]
•

•

•

(b) Any prehearing order;

(c) Any motions, pleadings, briefs, petitions, reqpests, and

intermediate rulings;

(d) Evidence received or considered;

(e) A statement of matters officially noticed;

(f) Proffers of proof and objections and rulings thereon;

(g) Proposed findings, requested orders, and exceptions;

(h) The recording prepared for the presiding officer at the

hearing, together with any transcript of all or part of the hearing

considered before final disposition of the proceeding;

(i) Any final order, initial order, or order on

reconsideration; .

(j) Staff memoranda or data submitted to the. presiding

officer, unless prepared and submitted by personal assistants and

not inconsistent with RCW 34.05.455; and

(k) Matters placed on the record after an ex parte

communication.

(3) Except to the extent that this chapter or another statute

provides ptherwise, the agency record constitutes the exclusive

basis for agency action in adjudicative proceedings under this

chapter and for judicial review of adjudicative proceedings. [1988

c 288 § 423.]

RCW 34.05.479 Emergency adjudicative proceedings. (1) Unless

otherwise provided by law, an agency may use emergency adjudicative

proceedings in a situation involving an immediate danger to the

public health, safety, or welfare requiring immedia~e agency

action.

(2) The agency may take only such action as is necessary to

prevent or avoid the immediate danger to the public health, safety,

or welfare that justifies use of emergency adjudication.

(3) The agency shall enter an order, including a brief

statement of findings of fact, conclusions of law, and policy

reasons for the decision if it is an exercise of the agency's

discretion, to justify the determination of an immediate danger and

the agency's decision to take the specific action.

(4) The agency shall give such notice as is practicable to

persons who are required to comply with the order. The order is

effective when entered.

(5) After entering an order under this section, the agency

shall proceed as quickly as feasible to complete any proceedings

that would be required if the matter did not involve an immediate

danger.

(6) The agency record consists of any documents regarding the

matter that were considered or prepared by the agency. The agency

shall maintain these documents as its official record.

(7) Unless otherwise required by a provision of law, the

agency record need not constitute the exclusive basis for agency

action in emergency adjudicative proceedings or for judicial review

thereof.

(8) This section shall not; . apply to agency action taken

pursuant to a provision of law that expressly authorizes the agency

to issue a cease and desist order. The agency may proceed,

alternatively, under that independent authority: [1988 c 288 §

424. ]

RCW (10/14/99 8:34) [ 51 ]
NOTES:

Designation of persons for emergency adjudications by utilities and

transportatiqn commission: RCW 80.01.060.

RCW 34.05.482 Brief adjudicative proceedings--App1icabi1ity.

(1) An agency may use brief adjudicative proceedings if:

(a) The use of those proceedings in the circumstances does not

violate any provision of law;

(b) The protection of the public interest does not require the

agency to give notice and an opportunity to participate to persons

other than the parties; .

(c) The matter is entirely within one or more categories for

which the agency by rule has adopted this section and RCW 34.05.485

through 34.05.494; and

(d) The issue and interests involved in the controversy do not

warrant use of the procedures of RCW 34.05.413 through 34.05.479.

(2) Brief adjudicative proceedings are not authorized for

public assistance and food stamp or benefit programs provided for

in Title 74 RCW, including but not limited to public assistance as

defined in RCW 74.04.005 (1). [1998 c 79 § 3; 1988 c 288 § 425.]

RCW 34.05.485 Brief adjudicative proceedings--Procedure. (1)

If not specifically prohibited by law, the following persons may be

designated as the presiding officer of a brief adjudicative

proceeding:

(a) The agency head; . (b) One or more members of the agency head; .

(c) One or more administrative law judges; or

(d) One or more other persons designated by the agency head.

(2) Before taking action, the presiding officer shall give

each party an opportunity to be informed of the agency's view of

the matter and to explain the party's view of the matter.

(3) At the time any unfavorable action is taken the presiding

officer shall serve upon each party a brief statement of the

reasons for the decision. Within ten days, the presiding officer

shall give the parties a brief written statement of the reasons for

the decision and information about any internal administrative

review available.

(4) The brief written statement is an initial order. If no

review is taken of the initial order as authorized by RCW 34.05.488

and 34.05.491, the initial order shall be the final order. [1989

c 175 § 23; 1988 c 288 § 426.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.488 Brief proceedings--Administrative review--

Applicability. Unless prohibited by any provision of law, an

agency, on its own motion, may conduct administrative review of an

order resulting from brief adjudicative proceedings. An ·agency

shall conduct this review upon the written or oral request of a

party if the agency receives the request within twenty-one days

.'

RCW (10/14/99 8:34) [ 52 ]
Effective date--1989 c 175: See note following RCW 34.05.010.

•

after service

34 ..05.485(3) .

NOTES:

of the written statement required

[1989 c 175 § 24; 1988 c 288 § 427.J

by RCW

•

•

RCW 34.05.491 Brief proceedings--Administrative review--

Procedures. Unless otherwise provided by statute:

. (1) If the parties have not requested review, the agency may

review an order resulting from a brief adjudicative proceeding on

its own motion and without notice to the parties~ but it may not

take any action on review less favorable to any party than the

original order without giving that party notice and an opportunity

to explain that party's view of the matter.

(2) The Teviewing officer may be any person who could have

presided at the brief proceeding, but the reviewing officer must be

one who is authorized to grant appropriate relief upon review. .

(3) The reviewing officer shall give each party an opportunity

to explain the party's view of the matter and shall make any

inquiries necessary to ascertain whether the proceeding must be

converted to a formal adjudicative hearing.

(4) The order on review. must be in writing, must include a

brief statement of the reasons for the decision, and must be

entered within twenty days after the date of the initial order or

of the request for review, whichever is later. The order shall

include a description of any further availableadministrative

review or, if none is available, a notice that judicial review may

be available .

(5) A request for administrative review is deemed to have been

denied if the agency does not make a disposition of the matter

within twenty days after the request is submitted. [1988 c 288 §

428. ]

RCW 34.05.494 Agency record in brief proceedings. (1) The

agency record consists of any documents regarding the matter that

were considered or prepared by the presiding officer for the brief

adjudicative proceeding or by the reviewing officer for any review.

The agency shall maintain these documents as its official record.

(2) Unless otherwise required by a provision of law, the

agency record need not constitute the exclusive basis for agency

action in brief adjudicative proceedings or for the jUdicial review

of brief adjudicative proceedings. [1988·c 288 § 429.J

PART V

JUDICIAL REVIEW AND CIVIL ENFORCEMENT

RCW 34.05.510 Relationship between this chapter· and other

judicial review authority. This chapter establishes the exclusive

means of judicial review of agency action, except:

(1) The provisions of this chapter for judicial review do riot

apply to litigation in which the sole issue is a claim for money

damages or compensation and t he' agency whose action is at issue

does not have statutory authority to determine the claim.

RCW (10/14/99 8:34) [ 53 ]
(2) Ancillary procedural matters before the reviewing court,

including intervention, class actions, consolidation, joinder,

severance, transfer, protective orders, and other relief from

disclosure of privileged or confidential material, are governed, to

the extent not inconsistent with this chapter, by court rule.

(3) To the extent that de novo review or jury trial review of

agency action is expressly authorized by provision of law. [1988

c 288 s 501.]

RCW 34.05.514 Petition for review--Where filed. (1) Except

as provided in subsection (2) of this section, proceedings for

review under this chapter shall be instituted by paying the fee

required under RCW 36.18.020 and filing a petition in the superior

court, at the petitioner's option, for (a) Thurston county, (b) the

county of the petitioner's residence or, principal place of

business, or (c) in any county where the property owned by the

petitioner and affected by the contested decision is located.

(2) For proceedings involving institutions of higher

education, the petition shall be filed either in the county in

which the principal office of the institution involved is located

or in the county of a branch campus if the action involves such

branch. [1995 c 347 § 113; 1995 c 292 § 9; 1994 c 257 § 23; 1988

c 288 § 502.]

NOTES:

Reviser's note: This section was amended by 1995 c 292 § 9

and. by 1995.c 347 § 113, each without reference to·the other. Both

amendments are incorporated in the publication of this section ,0.,·,' under RCW 1.12.025(2). For rule of construction, see RCW .

1.12.025(1).

Finding--Severability--Part headings and table of contents not

law--1995 c 347: See notes following RCW 36.70A.470.

Severability--1994 c 257: See note following RCW 36.70A.270.

, RCW 34.05.518 Direct review by court ·of appeals. (1) The

final decision of an administrative agency. in an adjudicative

proceeding under this chapter may be directly reviewed by the court

of appeals either (a) upon certification by the superior court

pursuant: to this section or (b) if the final decision is from an

environmental board as defined in subsection (3) of this section,

upon' acceptance by the court of appeals after a certificate of

appealability has been filed by the environmental board that

rendered the final decision;

(2) For direct review upon' certification by the superior

court, an application for direct review must be filed with the

superior court within thirty days of the filing of the petition for

review in superior court. The superior court may certify a case

for direct review only if the judicial review is limited to the

record of the agency proceeding and the court .finds that:

(a) Fundamental and urgent issues affecting the future

administrative processor the ·public interest are involved which

require a prompt determination;

. RCW (10/14/99 8:34) [ 54 ]
•

•

•

(b) Delay in obtaining a final and prompt determination of

such issues would be detrimental to any party or the public

interest;

(c) An appeal to the court of appeals would be likely

regardless of the determination in superior court; and

(d) The appellate court's determination in the proceeding

would have significant precedential value.

Procedures for certification·shall .be established by court

rule.

(3) (a) For the purposes of direct review of final decisions of

environmental boards, environmental boards include those boards

identified in RCW 43.21B.005 and growth management hearings boards

as identified in RCW 36.70A.250.

(b) An environmental board may issue a certificate of

appealability if it finds that delay in obtaining a final and

prompt determination of the issues would be detrimental to any

party or the public interest and either:

(i) Fundamental and urgent state-wide or regional issues are

raised; or

(ii) The proceeding is likely to have significant precedential

value.

(4) The environmental board shall state in the certificate of

appealability which criteria it applied, explain how that criteria

was met, and file with the certificate a copy of the final

decision.

(5) For an appellate court to accept direct review of a final

decision of an environmental board, it shall consider the same

criteria outlined in subsection (3) of this section.

(6) The procedures for direct review of final decisions of

environmental boards include:

(a) Within thirty days after filing the petition for review

with the superior court, a party may file an application for direct

review with the superior court and serve the appropriate

environmental board and all parties of record. The application

shall request the environmental board to file a certificate of

appealability. .

(b) If an issue on review is the jurisdiction of the

environmental board, the board may file an application for direct

review on that issue.

(c) The environmental board shall have thirty days to grant or

deny the .request for a certificate of appealability and its

decision shall be filed with the superior court and served on all

parties of record.

(d) If a certificate of appealability is issued, the parties

shall have fifteen days from the date of service to file a notice

of discretionary review in the superior court, and the notice shall

include a copy of the certificate of appealability and a copy of

the final decision. .

(e) If the appellate court accepts review, the certificate of

appealability shall be transmitted to the court of appeals as part

of the certified record.

·(f) If a certificate of appealability is denied, review shall

be by the superior court. The superior court's decision may be

appealed to the court of appeals.' [1995 c 382 § 5; 1988 c 288 §

503; 1980 c 76 § 1. Formerly RCW 34.04.133.]

RCW (10/14/99 8:34) [ 55 ]
RCW 34.05.522 Refusal of review by court of appeals. The

court of appeals may refuse to accept direct review of a case

pursuant to RCW 34.05.518 if it finds that the case does not meet

the applicable standard in RCW 34.05.518(2) or (5). Rules of

Appellate Procedure·2.3 do not apply in this instance. The refusal

to accept such review is not subject to further appellate review,

notwithstanding anything in Rule 13.3 of the Rules of Appellate

Procedure to the contrary. [1995 c 382 § 6; 1988 c 288 § 504; 1980

c 76 § 2. Formerly RCW 34.04.135.]

RCW 34.05.526 Appellate review by supreme court or court of

appeals. An aggrieved party may secure appeliate review of any

final judgment of the superior court under this chapter by the

supreme court or the court of appeals. The review shall be secured

in . the manner provided by .law for review of superior court

decisions in other civil cases. [1988 c 288 § 505; 1988 c 202 §

35; 1971 c 81 § 87; 1959 c 234 § 14. Formerly RCW 34.04.140.]

NOTES:

Reviser's'note: This section was amended by 1988 c 202 § 35,

effective June 9, 1988, and by 1988 c 288 § 505, effective July 1,

1989, each without reference·to the other. Both amendments are

incorporated .in the publication of this section under RCW

1.12.025(2). For rule of construction, see RCW 1.12.025(1).

Severability--1988 c 202: See note following RCW 2.24.050.

RCW 34.05.530 Standing. A person has standing to obtain

judicial review of agency action if that person is aggrieved or

adversely affected by the agency action. A person is aggrieved or

adversely affected within the meaning of this section only when all

three of the following conditions are present: .

(1) The agency action has prejudiced or is likely to prejudice

that person;

(2 ) That person's asserted interests are among those that the

agency .was required to consider when it engaged in the agency

action challenged; and

(3) A judgment in favor of that person would substantially

eliminate or redress the prejudice to that person caused or likely

to be caused by the agency action. [1988 c 288 § 506.]

RCW 34.05.534 Exhaustion of administrative remedies. A

person may file a petition for judicial review under this chapter

only after exhausting all administrative remedies available within

the agency whose action is being challenged, or available within

any other agency authorized to exercise administrative review,

except:

(1) A petitioner for judicial review of a rule need not have

participated in the rule-making proceeding upon which that rule is

based, have petitioned for its amendment or repeal, have petitioned

the joint administrative rules review committee for its review, or

have appealed a petition for amendment or repeal to the governor;

C<'""

,.

,T

0'

c.---:\\

I'

" /'

RCW(10/14/99 8:34) [ 56 ]
•

(2) A petitioner for judicial review need not exhaust

administrative remedies to the extent that this chapter or any

other statute states that exhaustion is not required; or

(3) The court may relieve a petitioner of the requirement to

exhaust any or all administrative remedies upon a showing that:

(a) The remedies would be patently inadequate;

(b) The exhaustion of remedies would be futile; or

(c) The grave irreparable harm that would result from having

to exhaust administrative remedies would clearly outweigh the

public policy requiring exhaustion of administrative remedies.

[1997 c 409 § 302; 1995 c 403 § 803; 1988 c 288 § 507.)

NOTES:

Part headings--Severability--1997 c 409: See notes following

RCW 43.22.051.

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

•

•

RCW 34.05.542 Time for filing petition for review. Subject

to other requirements of this chapter or of another statute:

(1) A petition for judicial review of a rule may be filed at

any time, except as limited by RCW 34.05.375.

(2) A petition for judicial review of an order shall be filed

with the court and served. on the agency, the office of the attorney

general, and all parties of record within thirty days after service

of the final order.

(3) A petition for judicial review of agency action other than

the adoption of a rule or the entry of' an order is not timely

unless filed with the court and served on the agency, the office of

the attorney general, and all other parties of record within thirty

days after the agency action, but the time is extended during any

period that the petitioner did not know and was under no duty to

discover or could not reasonably have discovered that the agency

had taken the action or that the agency action had a sufficient

effect to confer standing upon the petitioner to obtain judicial

review under this chapter.

(4) Service of the petition on the agency shall be by delivery

of a copy of the petition to the office of the director, or other

chief administrative officer or chairperson of the agency, at the

principal office of the agency. Service of a copy by mail upon the

other parties of record and the office of the attorney general

shall be deemed complete upon deposit in the United States mail, as

evidenced by the postmark.

(5) Failure to timely serve a petition on the office of the

attorney general is not grounds for dismissal of the petition .

. (6) For purposes of this section, service upon the attorney of

record of any agency or party of record constitutes serVice upon

-the agency or party of record. [1998 c 186 § 1; 1988 c 288 § 509.)

RCW 34.05.546 Petition for review--Contents. A petition for

review must set forth:

RCW (10/14/99 8:34) [ 57 ]
(1) The name and mailing address of the petitioner;

(2) The name and mailing address of the petitioner's attorney,

if any;

(3) The name and mailing address of the agency whose action is

at issue;

(4) Identification of the agency action at issue, together

with a duplicate copy, summary, or brief description of the agency

action;

(5) Identification of persons who were parties in any

adjudicative proceedings that led to the agency action;

(6) Facts to demonstrate that the petitioner is entitled to

obtain judicial review;

(7) The petitioner's reasons for believing that relief should

be granted; and

(8) A request for relief, specifying the type and extent of

relief requested. [1988 c288 § 510.]

RCW ~4.05.550 Stay and other temporary remedies. (1) Unless

precluded by law, the agency may grant a stay, in whole or 'in part,

or other temporary remedy.

(2) After a petition for judicial review has been filed, a

party may file a motion in the reviewing court seeking a stay or

other temporary remedy.

(3) If judicial relief is sought for a stay.or other temporary

remedy from agency action based' on public health, safety, or

welfare grounds the court shall not grant such relief unless the

court finds that:

(a) The applicant is likely to prevail when the court finally

disposes of the matter;

(b) Without relief the applicant will suffer irreparable

injury;

(c) The grant of relief to the applicant will not

substantially harm other parties to the proceedings; and

(d) The threat to the public health, safety, or welfare is not

sufficiently . serious to justify the agency action in the

circumstances.

(4) If the court determines that relief should be granted from

the agency's action granting a stay or other temporary remedies,

the court may remand the matter or -may enter an order denying a

stay or granting a stay on appropriate terms. [1989 c 175 § 25;

1988 c 288 § 511.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.554 Limitation on new issues. (1) Issues not

raised before the agency may not be raised on appeal, except to the

extent that:

(a) The person did not know and was under no duty to discover

or could not have reasonably discovered facts giving rise to the

issue;

(b) The agency action subject to judicial review is a rule and

the person has not been a party in adjudicative proceedings that

provided an adequate opportunity to raise the issue;

C:."

o

RCW (10/14/99 8:34) [ 58 ]
(1) The

in the

to the

and is

•

•

•

(c) The agency action subject to judicial review is an order

and the person was not notified of the adjudicative proceeding in

substantial compliance with this chapter; or

(d) The interests of justice would be served by resolution of

an issue arising from:

(i) A change in controlling law occurring after the agency

action; or

(ii) Agency action occurring after the person exhausted the

last feasible opportunity for seeking relief from the agency_

(2) The court shall remand to the agency for determination any

issue that is properly raised pursuant to subsection (1) of this

section. [1988 c 288 § 512.]

RCW 34.05.558 Judicial review of facts confined to record.

Judicial review of disputed issues of fact shall be conducted by

the court without a jury and must be confined to the agency record

for judicial review as defined by this chapter, supplemented by

additional evidence taken pursuant to this chapter. [1988 c 288 §

513. ]

RCW 34. OS . 562 New evidence taken by court or agency.

court may receive evidence in addition to that contained

agency record for judicial review, only if it relates

validity of the agency action at the time it was taken

needed to decide disputed issues regarding:

(a) Improper constitution as a decision-making body or grounds

for .disqualification of those taking the agency action;

(b) Unlawfulness of procedure or of decision-making process;

or

(c) Material facts in rule making, brief adJudications, or

other proceedings not required to be determined on the agency

record.

(2) The court may remand a matter to the agency, before final

disposition of a petition for review, with directions that the

agency conduct fact-finding and other proceedings the court

considers necessary and that the agency take such further action on

the basis thereof as the court directs, if:

(a) The agency was required by t hds "chapter or any other

provision of law to base its action exclusively on a record of a

type reasonably suitable for judicial review, but the agency failed

to prepare or preserve an adequate record;

(b) The court finds that (i) new evidence.has become available

that relates to the validity of the agency action at the time it

was taken, that one or more of.the parties did not know and. was

under no :duty to discover or could not have reasonably been

discovered until after the agency action, and (ii) the interests of .

justice would be served by remand to the agency;

(c) The agency improperly excluded or omitted evidence from

the record; or

(d) A relevant provision of law changed after the agency

action and the court determines that the new provision may control

the outcome. [1988 c 288 § 514.]

RCW 34.05.566 Agency record for review--Costs. . (1) Within

thirty days after service of the petition for judicial review, or

·RCW (10/14/99 8:34) [ 59 )
within further time allowed by the court or by other provision of

law, the agency shall transmit to the court the original or a

certified copy of the agency record for judicial review of the

agency action. The record shall consist of any agency documents

expressing the agency action, other documents identified by the

agency as having been considered by it before its action and used

as a basis for its action, and any other material described in this

chapter as. the agency record for the type of agency action at

issue, subject to the provisions of this section.

(2) If part of the record has been preserved without a

transcript, the agency shall prepare a transcript for inclusion in

the record transmitted to the court, except for portions that the

parties stipulate to omit in accordance with subsection (4) of this

section.

(3) The agency may charge a nonindigent petitioner with the

reasonable costs of preparing any necessary copies and transcripts

for transmittal to the court .. A failure by the petitioner to pay

any of this cost to the agency relieves the agency from the

responsibility for preparation of the record and transmittal to the

court.

(4) The record may be shortened, summarized, or organized

temporarily or, by stipulation of all parties, permanently.

(5) The court may tax the cost of preparing transcripts and

copies of the record:

(a) Against a party who unreasonably refuses to stipulate to

shorten, summarize, or organize the record; or

(b) In accordance with any provision of law.

(6) Additions to the record pursuant to RCW 34.05.562 must be

made as ordered by the court.

(7) The court may require or permit subsequent corrections or

additions to the record. [1989 c 175 § 26;· 1988 c 288 § 515.]

NOTES:

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05.570 Judicial review. (1) Generally. Except to the

extent that this chap~er or another statute provides otherwise:

(a) The burden of demonstrating the invalidity of agency

action is on the party asserting invalidity;

(b) The validity of agency action shall be determined in

accordance with the standards of review provided in this section,

as applied to the agency action at the time it was taken;

(c) The court shall make a separate and distinct ruling on

each material issue on which the court's decision is based; and

(d) The court shall grant ~elief only if it determines that a

person seeking judicial relief has been substantially prejudiced by

the action complained' of.

(2) Review of rules. (a) A rule may be reviewed by petition

for declaratory judgment filed pursuant to this subsection or in

the context of any other review proceeding under ·this section. In

an action challenging the validity of a rule, the agency shall be

made a party to the proceeding.

(b) The. validity of any rule may be determined upon petition

for a declaratory judgment addressed to the superior court of

Thurston county, when it appears that the rule, or its threatened

application, interferes with or impairs or immediately threatens to

RCW (10/14/99 8:34) [ 60 ]
e

e

einterfere with or impair the legal rights or privileges of the

petitioner. The declaratory judgment order may be entered whether

or not the petitioner has first requested the agency to pass upon

the validity of the rule in question.

(c) In a proceeding involving review of a rule, the court

shall declare the rule invalid only if it finds that: The rule

violates constitutional provisions; the rule exceeds the statutory

authority of the agency; the rule was adopted without compliance

with statutory rule-making procedures; or the rule is arbitrary and

capricious.

(3) Review of agency orders in adjudicative proceedings. The

court shall grant relief from an agency order in an adjudicative

proceeding only if it determines that:

(a) The order, or the statute or rule on which the order is

based, is in violation of constitutional provisions on its face or

as applied;

(b) The order is outside the statutory authority or

jurisdiction of the agency conferred by any provision of law;

(c) The agency has engaged in unlawful procedure or decisionmaking process, or has failed to follow a prescribed procedure;

(d) The agency has erroneously interpreted or applied the law;

(e) The order is not supported by evidence that is substantial

when viewed in light of the whole record before the court, which

includes the agency record for judicial review, supplemented by any

additional evidence received by the court under this chapter;

(f) The agency has not decided all issues requiring resolution

by the agency;

(g) A motion for disqualification under RCW 34.05.425 or

34.12.050 was made and was improperly denied or, if no motion was

made, facts are shown to support the grant of. such a motion that

were not known and were not reasonably discoverable by the

challenging party at the appropriate time for making such a motion;

(h) The order is inconsistent with a rule of the agency unless

the agency explains the inconsistency by stating facts and reasons

to demonstrate a rational basis for inconsistency; or

(i) The order is arbitrary or capricious.

(4) Review of other agency action.

(a) All agency action not reviewable under subsection (2) or

(3) of this section shall be reviewed under this subsection.

(b) A person whose rights are violated by an agency's failure

to perform a duty that is required by law to be performed may file

a petition for review pursuant to RCW 34.05.514, seeking an order

pursuant to this subsection requiring performance. Within twenty

days after service of the petition for review, the agency shall

file and serve-an answer to the petition, made in th~- same manner

as an answer to a complaint in a civil action. The court may hear

evidence, pursuant to RCW 34.05.562, on material ipsues of fact

raised by the petition and answer.

(c) Relief for persons aggrieved by-the performance of an

_agency action, including the exercis~ of discretion, or an action

under (b) of this subsection can be granted only if the court

determines that the action is:

(i) Unconstitutional;

(ii) Outside the statutory authority of the agency or the

authority conferred by a provision of law;

(iii) Arbitrary or capricious; or

(iv) Taken by persons who were not properly constituted as

agency o%ficials lawfully entitled to take such action. [1995 c

RCW (10/14/99 8:34) [ 61 ]
403 § 802; 1989 c 175 § 27; 1988 c 288 § 516; 1977 ex.s. c 52 § 1;

1967 c 237 § 6; 1959 c 234 § 13. Formerly RCW 34.04.130.]

NOTES:

Findings- -Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

Effective date- -1989 c 175: See note following RCW 34.05.010.

RCW 34.05.574 Type of relief. (1) In a review under RCW

34.05.570, the court may (a) affirm the agency action or (b) order

an agency to take action required by law, order an agency to

exercise discretion required by law, set aside agency action,

enjoin or stay the agency action, remand the matter for further

proceedings, or enter a declaratory judgment order. The court

shall set out in its findings and conclusions, as appropriate, each

violation or error by the agency under the standards for review set

out in this chapter on which the court bases its decision and

order. In reviewing matters within agency discretion, the court

shall limit its function to assuring that the agency has exercised

its discretion in accordance with law, and shall not itself

undertake to exercise the discretion that the legislature has

placed in the agency. The court shall remand to the agency for

modification of agency action, unless remand is impracticable or

would cause unnecessary delay. 0:

(2) The sole remedy available to a person who is wrongfully

denied licensure based upon a failure to pass an examination

administered by a state agency, or under its auspices, is the right

to retake the examination free of the defect or defects the court

may have found in the examination or the examination procedure.

(3) The court may award damages, compensation, or ancillary

relief only to the extent expressly authorized by another provision

of law. '

(4) If the court sets aside or modifies agency action or

remands the matter to the agency for further proceedings, the court

may make any interlocutory order it finds necessary to preserve the

interests of the parties ,and the . public, pending. further

proceedings or agency action. [1989 c 175 § 28; 1988 c 288 § 517~]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.578 Petition by agency for enforcement. (1) In

addition to other remedies provided by law, an agency may seek

enforcement of its rule or order by filing a petition for civil

enforcement in the superior court. .

(2) The petition must name as respondent each alleged person

against whom the agency seeks to obtain civil enforcement.

(3) Venue is determined as in other civil cases.

(4) A petition 'for civil enforcement filed by an agency may

,request, and the court may grant, declaratory relief, temporary or

RCW (10/14/99 8:34) [ 62 ]
•

•

•

permanent injunctive relief, any other civil remedy provided by

law, or any combination of the foregoing. [1988 c 288 § 518.J

RCW 34.05.582 Petition by others for enforcement. (1) Any

person who would qualify under this chapter as having standing to

obtain judicial review of an agency's failure to enforce an order

directed to another person may file a petition for civil

enforcement of that order, but the action may not be commenced:

(a) Until at least sixty days after the petitioner has given

notice of the alleged violation and of the petitioner's intent to

seek civil enforcement to the head·of the agency concerned, to the

attorney general, and to each person against whom the petitioner

seeks civil enforcement;

(b) If the agency has filed and is diligently prosecuting a

petition for civil enforcement of the same order against the same

person; or

(c) If a petition for review of the same order has been filed

and a stay is in effect.

(2) The petition shall name, as respondents, the agency whose

order is sought to be enforced and each person against whom the

petitioner seeks civil enforcement.

(3) The agency whose order is sought to be enforced may move

to dismiss the petition on the grounds that it fails to qualify

under this section or that the enforcement would be contrary to the

policy of the agency. The court shall grant the motion to dismiss

the petition unless the petitioner demonstrates that (a) the

petition qualifies under this section and (b) the agency's failure

to enforce its order is based on an exercise of discretion that is

arbitrary or capricious.

(4) Except to the extent expressly authorized by law, a

petition for civil enforcement may not request, and the court may

not grant, any monetary payment apart from taxable costs. [1988 c

288 § 519.J

RCW 34.05.586 Defenses, l~itations on. (1) Except as

expressly provided in this section, a respondent may not assert as

a defense in a proceeding for civil enforcement any fact or issue

that the respondent had an opportunity to assert before the agency

or a reviewing court and did not, or upon which the final

determination of the agency or a reviewing court was adverse to the

respondent. A respondent may assert as a defense only the

following:

(a) That the rule or order is invalid under RCW 34.05.570(3)

(a), (b), (c), (d), (g), or (h), but only when the respondent did

not know and was under no duty to discover, or could not reasonably

have discovered, facts giving rise to this issue;

. (b) That the interest of justice would be served by resolution

of an issue arising from:

(L): A change in controlling law occurring after the agency

action; or

(ii) Agency action after the respondent has exhausted the last

foreseeable opportunity for seeking 'relief from the agency or from

a reviewing court;

(c) That the order does not apply to the respondent or that

the respondent has not violated the order; or

RCW (10/14/99 8:34) [ 63 ]
(d) A defense specifically authorized by statute to be raised

in a civil enforcement proceeding.

(2) The limitations of subsection (1) of this section do not

apply'to the extent that:

(a) The agency action sought to be enforced is a rule and the

respondent has not been a party in an adjudicative proceeding that

provided an adequate opportunity to raise the issue; or

(b) The agency action sought to be enforced is an order and

the respondent was not notified actually or constructively of the

related adjudicative proceeding in substantial compliance with this

chapter.

(3) The court, to the extent necessary for the determination

of the matter, may take new evidence. [1989 c 175 § 29; 1988 c 288

§ 520.]

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010.

RCW 34.05.588 Enforcement of agency subpoena. (1) If a

person fails to obey an agency subpoena issued in an adjudicative

proceeding, or obeys the subpoena but refuses to t.est.Lfy or p roduce

documents when requested concerning a matter under examination, the

agency or attorney issuing the subpoena may petition the superior

court of any county where the hearing is being conducted, where the

subpoenaed person resides or is found,· or where subpoenaed

documents are located, for enforcement of the subpoena. The

petition shall be accompanied by a copy of the subpoena and proof

of service, shall set forth in what specific manner the subpoena

has not been complied with, and shall request an order of the court

to compel compliance. Upon such petition, the court shall enter an

order directing the person to appear before the court at a time and

place fixed in the order to show cause why the person has not

obeyed the subpoena or has refused to testify or produce documents.

A copy of the court's show cause order shall be served upon the

person. If it appears to the court that the subpoena was properly

issued, and that the particular questions the person refused to

answer or the requests for production of documents were reasonable

and relevant, the court shall enter an order that the person appear

before the agency at the time arid place fixed in the order. and

testify or produce the required documents, and on failing to obey

this order the person shall be dealt with as for contempt of court.

(2) Agencies with statutory authority to issue investigative

subpoenas may petition for eriforcement of such subpoenas in

accordance with subsection (1) of this section. The agency may

petition the superior court of any county where the subpoenaed

person resides or is found, or where subpoenaed documents are

located. If it appears to the court that the subpoena was properly

issued, that the investigation is being conducted for a lawfully

authorized purpose, and that the testimony or documents required to

be produced are adequately specified and relevant to the

investigation, the court shall enter an order that the person

appear before the agency at the time and place fixed in the order

and testify or produce the required documents, and failing to obey

this order the person shall be dealt with as for contempt of court.

(3) Petitions for· enforcement of agency subpoenas are not

subject to RCW 34.05.578 through 34.05.590. [1989 c 175 § 30.]

RCW (10/14/99 8:34) [ 64 ]
•

•

•

NOTES:

Effective date--1989 c 175: See note following RCW 34.05.010 .

RCW 34.05.590 Incorporation of other judicial review

provisions. Proceedings for civil enforcement are governed by the

following provisions of this chapter on judicial review, as

modified where necessary to adapt them to those proceedings:

(1) RCW 34.05.510(2) (ancillary procedural matters); and

(2) ,RCW 34.05.566 (agency record for judicial review). [1988

c 288 s 521.]

RCW 34.05.594 Review by higher court. Decisions on petitions

for civil enforcement are reviewable as in other civil cases.

[1988 c 288 § 522.]

RCW 34.05.598 Frivolous petitions. The provisions of RCW

4.84.185 relating to c!vil actions that are frivolous and advanced

without reasonable cause apply to petitions for judicial review

under this chapter. [1988 c 288 § 607.]

PART VI

LEGISLATIVE REVIEW

RCW 34.05.610 Joint administrative rules review committee--

Members--Appointment--Ter.ms--Vacancies. (1) There is hereby

created a joint administrative rules review committee which shall

be a bipartisan committee consisting of four senators and four

representatives from the state' legislature. The senate members of

the committee shall be appointed by the president of the senate,

and the house members of the committee shall be appointed by the

speaker of the house. Not more than two members from each house

may be from the same political party. The appointing authorities

shall also appoint one alternate member from each caucus of each

house. All appointments to the committee are subject to approval

by the caucuses to which the appointed members belong.

(2) Members and alternates shall be appointed as soon as

possible after the legislature convenes in regular session in an

odd-numbered year, arid their terms shall extend until their

successors are appointed and qualified at the next regular session

of the legislature in an odd-numbered'year or until such persons no

longer serve in the legislature, whichever occurs first. Members

and alternates may be reappointed ·tothe committee.

(3) On or about January I, 1999, the president of the senate

shall appoint the chairperson and the vice chairperson from among

the committee membership. The speaker of the house shall appoint

the chairperson and the vice chairperson .in alternating evennumbered years beginning in the year 2000 from among the committee

membership. The secretary of the senate shall appoint· the

chairperson and the vice chairperson in the alternating evennumbered years beginning in the year 2002 from among the committee

membership. Such appointments shall be made in January of each

RCW (10/14/99 8:34) [ 65 ]
even-numbered year as soon as possible after a legislative session

convenes.

(4) The chairperson of the committee shall cause all meeting

notices and committee documents to be sent to the members and

alternates. A vacancy shall be filled by appointment of a

legislator from the same political party as the original

appointment. The appropriate appointing authority shall make the

appointment within thirty days of the vacancy occurring. [1998 c

280 § 9; 1996 c 318 § 2; 1988 c 288 § 601; 1983 c 53 § 1; 1981 c

324 § 5: Formerly RCW 34.04.210.]

NOTES:

Legislative affir.mation--Severability--1981 c 324: See notes

following RCW 34.05.010.

RCW34.05.620 Review of proposed rules--Notice. If the rules

review committee finds by a majority vote of .its members that a

proposed rule is not within the intent of the legislature as

expressed in the statute which the rule implements, or that an

agency may not be adopting a proposed rule in accordance with all

applicable provisions of law, the committee shall give the affected

agency written notice of its decision. The notice shall be given

at least seven days prior to any hearing scheduled for

consideration of or adoption of the proposed rule pursuant to RCW

34.05.320. The notice shall include a statement of the review

committee's findings and the reasons therefor. When the agency

hol¢s a hearing'on the proposed rule, the agency shall consider the

review committee's decision. [1996 c 318 § 3; 1994 c 249 § 17;

1988 c 288 § 602; 1987 c 451 § 1; 1981 c 324 § 6. Formerly RCW

34.04.220.] .

NOTES:

- - .- -------

Severability--Application~-1994 c 249:

RCW 34.05.310.

See notes following

Legislative affi·r.mation--Severability--1981 c 324: See notes

following RCW·34.05.010.

RCW 34.05.630 Review of existing rules--Po1icy and

interpretive statements, etc. --Notice--Hearing. (1) All rules

required to be filed pursuant to RCW 34.05.380, and emergency rules

adopted pursuant to RCW 34.05.350, are subject to selective review

by the committee. .

(2) All agency policy and interpretive statements, guidelines,

and documents that are of gerieral applicability, or their

equivalents, are subject to selective review by the committee to

determine whether or not a statement, guideline, or document that

is of general applicability, or its equivalent, is being used as a

rule that has not been adopted in accordance with all applicable

provisions of law.

(3) If the rules review committee finds by a majority vote of

its members: (a) That an existing rule is not within the intent of

the legislature as expressed by the statute which. the rule

implements, (b) that the rule has not been adopted in accordance

RCW (10/14/99 8:34) [ 66 ]
•

with all applicable provisions of law, or (c) that an agency is

using a policy or interpretive statement in place of a rule, the

agency affected shall be notified of such finding and the reasons

therefor. Within thirty days of the receipt of the rules review

committee's notice, the agency shall file notice of a hearing on

the rules review committee's finding with the code reviser and mail

notice to all persons who have made timely request of the agency

for advance notice of its rule-making proceedings as provided in

RCW 34.05.320. The agency's notice shall include the rules revi~w

committee's findings and reasons therefor, and shall be published

in the Washington state register in accordance with the provisions

of chapter 34.08 RCW.

(4) The agency shall consider fully all written and oral

submissions regarding (a) whether the rule in question is within

the intent of the legislature as expressed by the statute which the

rule implements, (b) whether the rule was adopted in accordance

with all applicable provisions of law, and (c) whether the agency

is using a policy or interpretive statement, guideline, or document

that is of general applicability, or its equivalent, in place of a

rule. [1998 c 21 § 1i 1996 c 318 § 4i 1994 c 249 § 18i 1993 c 277

§ 1i 1988 c 288 § 603i 1987 c 451 § 2i 1981 c 324 § 7. Formerly

RCW 34.04.230.]

NOTES:

Legislative affir.mation--Severability--1981 c 324: See notes

following RCW 34.05.010. •

Severability--Application--1994 c 249:

RCW 34.05.310.

See notes following

•

RCW 34.05.640 Committee objections to agency intended

action--Statement in register and WAC--Suspension of rule. (1)

Within seven days of an agency hearing held after notification of

the agency by the rules review committee pursuant to RCW 34.05.620

or 34.05.630, the affected agency shall notify the committee of its

intended action on a proposed or existing rule to which. the

committee objected or on a committee finding of the agency's

failure to adopt rules.

(2) If the rules review committee finds by a majority vote of

it~ members: (a) That the proposed or existing rule in question

will not be modified, amended, withdrawn, or repealed by the agency

so as to conform with the intent of the legislature, (b) that an

existing rule was not adopted in accordance with all applicable

provisions of law, or (c) that the agency will not replace the

policy or interpretive statement, guideline, or document that is of

general applicability, or its equivalent, with a rule, the rules

review committee may, within thirty days from notification by the

agency of its intended action, file with the code reviser notice of

its. objections together with a concise statement of the reasons

therefor. Such notice and statement shall also be provided to the

agency by the rules review committee.

(3) (a) If the rules review committee makes an adverse finding

regarding an existing rule under subsection (2) (a) or (b) of this

section, the committee may, by a majority vote of its members,

recommend suspension of the rule. Within seven days of such vote

the committee shall transmit to the appropriate standing committees

RCW (10/14/99 8:34) [ 67 ]
of the legislature, the governor, the code reviser, and the agency

written notice of its objection and recommended suspension and the

concise reasons therefor. Within thirty days of receipt of the

notice, the governor shall transmit to the committee, the cOdeC

reviser, and the agency written approval or disapproval of the /

recommended suspension. If the suspension is approved by the .

governor, it is effective from the date of that approval and

continues until ninety days after the expiration of the next

regular legislative session.

(b) If the rules review committee makes an adverse finding

regarding a policy or interpretive statement, guideline, or

document that is of general applicability, or its equivalent, under

subsection (2) (c) of this section, the committee may, by a majority

vote of its members, advise the governor of its finding.

(4) The code reviser shall publish transmittals from the rules

review committee or the governor issued pursuant to subsection (2)

or (3) of this section in the Washington state register and shall

publish in the next supplement and compilation of the Washington

Administrative Code a reference to the committee's objection or

recommended suspension and the governor's action on it and to the

issue of the Washington state register in which the full text

thereof appears.

(5) The reference shall be removed from a rule published in

the Washington Administrative Code if a subsequent adjudicatory

proceeding determines that the rule is within the intent of the

legislature or was adopted in accordance with all applicable laws,

whichever was the objection of the rules review committee. [1998

c 21 § 2; 1996 c 318 § 5; 1994 c 249 § 19; 1993 c 277 § 2; 1988 c

288 § 604; 1987 c 451 § 3; 1981 c 324 § 8. Formerly. RCW

34.04.240.]

NOTES:

Severability--Application--1994 c 249:

RCW 34.05.310.

See notes following

. i

." '" ",'. .

I

Legislative affirmation--Severability--1981 c 324: See notes

following RCW 34.05.010.

RCW 34.05.650 Recommendations by committee to legislature.

The rules review committee may recommend to the legislat~re that

the original enabling legislation serving as authority for the . adoption of any rule reviewed by the committee be amended or

repealed in such manner as the committee deems advisable. [1988 c

288 § 605; 1987 c 451 § 4; 1981 c 324 § 9. Formerly RCW

34.04.250.]

~OTES:

Legislative affirmation--Severability--1981 c 324: See notes

following RCW 34.05.010 .

RCW 34.05.655 Petition for review. (1) Any person may( -,

petition the rules review committee for. a review of a proposed or . existing rule or a proposed or existing policy or interpretive/

statement , guideline, or document that is of general applicability, .

RCW (10/14/99 8:34) [68 ]
•

•

•

or i ts equivalent. A petition to review a statement, guideline, or

document that is of general applicability, or its equivalent, may

only be filed for the purpose of requesting the committee to

determine whether the statement, guideline, or document that'is of

general applicability, or its equivalent, is being used as a rule

that has not been adopted in accordance with all provisions of law.

Within thirty days of the receipt of the petition, the rules review

committee shall acknowledge receipt of the petition and describe

any initial action taken. If the rules review committee rejects

the petition, a written statement of the reasons for rejection

shall' be included.

(2) A person may petition the rules review committee under

subsection (1) of this section requesting review of an existing

rule only if the person has petitioned the agency to amend or

repeal the rule under RCW 34.05.330 (1) and such petition was

denied.

(3) A petition for review of a rule under subsection (1) of

this section shall:

(a) Ldentify with specificity the proposed or existing rule to

be reviewed;

(b) Identify the specific statute identified by the agency as

authorizing the rule, the specific statute which the rule

interprets or implements, and, if applicable, the specific statute·

the department is alleged not to have followed in adopting the

rule;

(c) State the reasons why the petitioner believes that the

rule is not within the intent of the legislature, or that its

adoption was not or is not in accordance with law, anq provide

documentation to support these statements;

(d) Identify any known: judicial action regarding the rule or

statutes identified in the petition.

A petition to review an existing rule shall also include a

copy of the agency's denial of a petition to amend or repeal the

rule issued under RCW 34.05.330(1) and, if available, a copy of the

governor's denial issued under RCW 34.05.330(3).

(4) A petition' for review of a policy or interpretive

statement, guideline, or document that is of general applicability,

or its equivalent, under subsection (I) of this section shall:

(a) Identify the specific policy or interpretative statement,

guideline, or document that is of general applicability, or its

equivalent, to be reviewed;

(b) 'Identify the specific statute which the rule interprets or

. implements;

(c) State the reasons why the petitioner believes that the

policy or interpretive statement, guideline, or document that is of

general applicability, or its equivalent, meets the definition of

a rule under RCW 34.05.010 and should have been adopted according

to the procedures of this chapter;

(d) Identify any known judicial action regarding the policy or

interpretive statement, guideline, or document that is of general

applicability, or its equivalent, or statutes identified in the

petition.

(5) Within ninety days of receipt of the petition, the rules

review committee shall make a final decision on the rule for which

the petition for review was not previously rejected. [1998 c 21 §

3;1996 c 318 § 7; 1~95 c 403 § 502.]

RCW (10/14/99 8:34) [ 69 ]
NOTES:

Findings- -Short title--Intent- -1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW 34.05.660 Review and obj ection proceGiures- -No presumption

established. It is the express policy of the legislature that

establishment of procedures for review of administrative rules by

the legislature and the notice of objection required by RCW

*34.05.630 (2) and 34.05.640 (2) in no way serves to establish a

presumption as to the legality or constitutionality of a rule in

any subsequent judicial proceedings interpreting such rules. [1988

c 288 § 606; 1981 c 324 § 10. Formerly RCW 34.04.260.]

NOTES:

*Reviser's note: RCW 34.05.630 was amended by 1987 c 451 § 2,

changing subsection (2) to subsection (3).

Legislative affir.mation--Severability--1981 c 324: See notes

following RCW 34.05.010.

RCW 34.05.665 Submission of rule for review--State employees

protected. Any individual employed or holding office in any

department or agency of state government may supmit rules CJ\.'.'

warranting review to the rules review committee. Any such state

employee is protected under chapter 42.40 RCW. [1995 c 403 § 503.]

NOTES:

Findings- -Short title.--Intent- -1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

RCW 34.05.671 Reports-""Advisory boards--Staff. (1) The rules

review committee may make reports from time to time to the members

of the legislature and to the public with respect to any of its

findings or recommendations. The committee shall keep complete

minutes of its meetings.

(2) ,The committee may establish ad hoc advisory boards,

including but not limited to, ad hoc economics or. science advisory

boards to assist the committee in its rules review functions.

(3) The committee may hire staff as needed to perform

functions under this chapter. [1995 c 403.§ 505.]

NOTES:

Findings- -Short title--Intent- -1995 c 403: See note following (.')

RCW 34.05·.328. ~-_/

RCW (10/14/99 8:34) [ 70 ]
RCW 34.-05.675 Inspection of properties--Oaths, subpoenas,

witnesses, depositions. In the discharge of any duty imposed under

this chapter, the rules review committee may examine and inspect

all properties, equipment, facilities, files, records, and accounts

of any state office, department, institution, board, committee,

commission, or agency, and administer oaths, issue subpoenas,

compel the attendance of witnesses and - the production of any

papers, books, accounts, documents, and testimony, and cause the

deposition of witnesses, either residing within or without the

state, to be taken in the manner prescribed by law for taking

depositions in civil actions in the superior courts. [1995 c 403

§ 506.]

•

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904 . See RCW

NOTES:

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

See RCW

•

RCW 34.05.681 Enforcement-~Committee subpoena--Refusal to

testify. In case of the -failure on the part of any person to

comply with any subpoena issued in [on] behalf- of the rules review

committee, or on the refusal of 'any witness to testify to any

matters regarding which he or she may be lawfully interrogated, it

is the duty of the superior court of any county, or of the judge

thereof, on application of the committee, to compel obedience by

proceedings for contempt, as in the case of disobedience of the

requirements of a subpoena issued from the court or a refusal to.

testify in the court. [1995 c 403 § 507.]

NOTES:

Findings--Short title--Intent--1995 c 403: See note following

RCW 34.05.328.

Part headings not law--Severability--1995 c 403:

43.05.903 and 43.05.904.

PART IX

TECHNICAL PROVISIONS

See RCW

RCW 34.05.900 Captions and headings. Section captions and

subchapter headings used in this chapter do not constitute any part

of the law. [1988 c 288 § 703.]

RCW 34.05.901Severability--1988 c 288. If any provision of

this chapter or its application to any person or circumstance is

held invalid, the remainder of the chapter or the application of

RCW (10/14/99 8:34) [ 71 ]
-------------- ~--~

the provision to other persons or circumstances is not affected.

[1988 c 288 § 704.J

RCW 34.05.902 Effective date--Application--1988 c 288. RCW

34.05.001 through 34.05.902 shall take effect on July I, 1989, and

shall apply to all rule-making actions and agency proceedings begun

on or after that date. Rule -e-making actions or other agency

proceedings begun before July I, 1989, shall be completed under the

applicable provisions of chapter 28B .19 or 34.04 RCW existing

immediately before that date in the same manner as if they were not

amended by chapter 288, Laws of 1988 or repealed by section 701 of

chapter 288, Laws of 1988. [1988 c 288 § 705.J

NOTES:

Recodification--Correction of statutory references--1988 c

288: "Parts X through XV of this act shall constitute a new

chapter in. Title 34 RCW, and the sections amended or set forth in

this act shall be recodified in the order they appear in this act.

The code reviser shall correct all statutory references to these

sections and to the repealed chapters 28B 19 . and 34.04 RCW to

reflect this recodification and repeal." [1988 c 288 § 706. J

RCW 34.05.903 Severability--1998 c 280. If any provision of

this act or its application to any person or circumstance is held

invalid, the remainder· of the act or the application of the

provision to other persons or circumstances is not affected. [1998

c 280 § 14.J

.' II

i

i it

J

RCW (10/14/99 8: 34) [ 72 ]