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# •

•

• VOLUME3

Titles28Bthrough36

2000

REVISEDCODEOFWASHINGTON

Published under the authority of chapter 1.08 RCW.

Containing all laws of a general andpermanentnature through the 2000 second special session, which adjourned sine die April 27, 2000.

.

(2000 Ed.) [Prefac:e-pi)

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ie



# • REVISEDCODEOFWASHINGTON

2000Edition

e

### 2000StateofWashington

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,certifiedto comply with the currentspecificationsof thecommittee

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# .**jK#~""..,.**

JOHN G. SCHULTZ, Chair, STATUTELAWCOMMITTEE

[Preface-pii] (2000 Ed.)..



# • _ J

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 TOAGENCY 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. Briefproceedings--Administrative review--Procedures. Agency record in brief proceedings.-

PART V JUDICIAL REVIEWAND 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.

PARTVI 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.

PARTIX TECHNICALPROVISIONS Captions and headings. Severability--1988 c 288. Effective date--Application--1988 c 288.**Severability-~1998** c 280.



# • RCW 34.05.001 Legislative intent. The legislature intends, byenacting 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 legislatureintends thatto the greatestextentpossible andunless 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 interpretingsimilarprovisions ofotherstates, 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. Thedefinitions setforthinthis 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 orjudicialbranches, the governor, orthe 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, includingeminent domain, ofreal estate, as well as all activities necessarilyrelatedtothose 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, orotherproprietarydecision inthemanagementofpublic lands orreal propertyinterests, or (d) the grantingofa license, franchise, or permission for the use of trademarks, sYmbols, and similarproperty owned or contrqlled by the agency. (4) "Agencyhead" means the individual orbodyof individuals inwhomtheultimate legal authorityofthe agency is vestedbyany 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 ordermeans the signing of the orderby 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, oroffices authorizedby the governing board of the·institution involved to act for the 

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RCW (10/14/99 8:34) [ 4 ]

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• institution, all ofwhichare sometimes referredto inthis chapter

as "institutions." (8) "Interpretive statement" means a writtenexpressionofthe opinion of an agency, entitled an 'interpretive statement by the

. agency head or its designee, as to the meaning of a statute or otherprovisionoflaw, ofa court decision, orofan,agencyorder. (9) (a) "License" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization requiredby 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,

orpermission for use of trademarks, symbols, and similarproperty 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 anynotice relating to rule'making or policy or interpretive statements, means regular mail or electronic distribution, as provided in RCW 34.05.260. "Electronicdistribution" or "electronically" meansdistributionby 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) "Partyto agencyproceedings," or "party" ina 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) ApersOn 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 subdivisionorunitthereof, orpublicor 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 otherprovisionoflaw, ofa court decision, orofan agencyorder, 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, orrevokes anyqualificationorrequirementrelatingtothe

RCW (10/14/99 8:34) [ 5 ]enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, orrevokes anyqualifications orstandards 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 ormaterial whichmust be met before distribution or sale. The term includes the amendment orrepeal ofa priorrule, 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 transportationorhis designeewherenotice of suchrestrictions is given by official traffic control devices, or (iv) rules of institutions ofhighereducation involving standards ofadmission, academic advancement, academic credit, graduation andthe 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, orpersonal service. Service bymail is complete upon deposit in the United States mail. Agencies may, by rule, authorize service by electronic telefacsimile transmission, where copies are mailed simultaneously, orbycommercial parcel delivery company. [1997 c 126 § 2; 1992 c 44 § 10; 1989 c 175 § 1; 1988 c 

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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 preservationofthepublicpeace, health, or safety, orthe 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.

,Legislativeaffirmation--1981 c 324: "Thelegislatureaffirms that allrule-'making authority of·stateagencies and institutions ofhighereducationis a functiondelegatedbythe 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 anyperson 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--Effectofsubsequentlegislation. Nothinginthis chapter maybe held to diminish the constitutional rights of anyperson or to limit or repeal additional requirements imposed by statute or otherwise recognizedby law. Except as otherwise requiredby 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 complywith 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 exceptasprovidedinRCW7.68.110 and51.48.131; (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 awardbefore the board of industrial insurance appeals; (d) To actions of the Washington personnel resources board, the director ofpersonnel, or the personnel appeals board; or (e) To the extentthey are inconsistentwith anyprovisions 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-makingprovisionsofthis chapterdo not applyto reimbursement unit values, fee schedules, arithmetic conversion factors, and similar arithmetic factors used to determine paYment rates that applyto goods and services purchasedundercontract 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. FormerlyRCW 34.04.150.]

NOTES:

Effectivedate--1993 c 281: Seenote followingRCW41.06.022.

RCW (10/14/99 8:34) ( 7 ]Effectivedate--1989 c 175: 

### Seenote followingRCW34.05.010.

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 conditionprecedent 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 otherperson 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 proceedingundertakenpursuant tothis chapterthatanotherformof 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 orotherofficial responsible forthe originalproceeding shall advisethepartiesofnecessarysteps 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 subject to judicial

.review

..**Commence~ent** 

### of,the newproceeding shall be accomplishedpursuant totheprocedural rules ofthe newproceeding, exceptthatelements already performedneed 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) Thetimeofcommencementofa replacementproceedi.ngshall 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 agencymay modifytime limits established inthis chapteronly as set forth in this section. An agency may not modify time limits relating to rule-makingprocedures orthe time limits for filing a petition for judicial review specified in RCW 34.05.542. (2) The time limits set forth in this chaptermaybe 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 staffto comply with. the time limits set forth in this chapterwithout 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 chaptermay 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) Twoyears afterJuly 1, 1989, the chiefadministrative 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:

Effectivedate--1989 c 175: See note followingRCW34.05.010.

RCW 34.05.090 Forest practices board--Emergency rules. Emergencyrules adoptedbythe forest practicesboardpertainingto 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.

Partheadings notlaw--1999 1stsp.s. c 4: Seenote following RCW 75.46.300.

RCW (10/14/99 8:34) [ 9 ]PART II PUBLIC ACCESS TOAGENCY RULES

RCW 34.05.210 Code and register--Publication and distribution--Omissions, removals, revisions--Judicialnotice. (1) The code reviser shall cause the WashingtonAdministrative 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 supplementedorrevised as oftenas necessary andat least annually in a form compatible with the main compilation.

. (2) Subject to the provisions of this chapter, the code reviser shallprescribe a uniformnumbering 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'evdaer 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 inprintedorprocessedformon 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 ofthe attorneygeneral, the code revisermayremove 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.ate 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 secretaryofthe senate andthe chiefclerkofthe 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: 

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### j

·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 repealedby 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 Rulesforagencyprocedure--Indexesofopinions. 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 lawjudge underRCW 34.05.250 governprocedures before the agency. (b) To assist interestedpersons 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 extentnotprohibitedbyfederal laworregulation,

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 ofproving that knowledge, but may meet that burden byproving that the person has beenproperly servedwith a copy of the order. (4) Each agency that is authorized by law to exercise discretion indeciding individual cases is encouraged to formalize the general principles that may evolve from these decisions by adopting the principles as rules that the agencywill follow until they are"amended or repealed. (5) To the extentpracticable, anyrule proposedoradoptedby

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

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW (10/14/99 8:34) [ 11 ]Effectivedates--Severability--1981 c 67: Seenotes following RCW 34.12.010.

RCW 34.05.230 Expedited adoption of rules--Interpretive and policy statements. (1) An agencymay 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 withoutmaterial change federal statutes orregulations, Washington state statutes, rules ofotherWashington stateagencies, shoreline master programs other than those programs governing shorelines of state-wide significance, or, as referencedbyWashington 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) Theproposedrules onlycorrecttypographicalerrors, 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 rulemaking, orsome otherprocess 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 BEADOPTED USINGAN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THEAGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IFYOUOBJECT TOTHIS RULEBEINGADOPTEDUSING 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 senda copy ofthe notice oftheproposed expeditedrule making to anyperson who has requestednotification ofproposals for the expedited adoption of rules or ofagency rule making, aswell as thejointadministrativerules reviewcommittee, within three days after its publication in the Washington State 

# 0:

(\ .

RCW (10/14/99 8:34) [ 12 ]

# •

•

• Register. An agencymay charge for the actual cost ofproviding a requestingpartymailedcopies ofthese notices. The notice ofthe 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 proposedexpeditedrulemakinghasbeenpublishedintheWashington State**Reg~ster.** Apersonwho 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 thathavebeen filed arewithdrawnbythepersons 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) Ifa writtennotice ofobjectionto the expeditedadoption 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 currentopinions, approaches, andlikelycourses ofactionbymeans of interpretive or policy statements. Current'interpretive and policy statements are advisory only. To better informand involve the public, an agency is encouraged to convert ·long-standing interpretive and policy statements into rules. (2) Apersonmaypetition an agencyrequesting the conversion ofinterpretiveandpolicystatements intorules. Uponsubmission, 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 ofpersohs who have requested inwriting 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 interestedperson 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 fromwhom a copyofthe interpretive orpolicy 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} Thebreaks insubsectionnumberingwere causedbyvetoes 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: Seenotefollowing 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 Declaratoryorderbyagency--Petition. {I} 

### Any personmaypetition an agency for a declaratory orderwith respect to the applicability to specified circumstances of a rule, order,

orstatute enforceablebythe agency. Thepetition 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 establishedbythe agencyundersubsection {2} ofthis 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 entera declaratoryorderand shall'be consistentwiththe 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 ofthe petitionto all**person~** to whomnotice is requiredby law, andmay give notice to any otherperson 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) Enteran orderdeclaringthe applicabilityofthe 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 receiptofthepetitionbywhich it will entera 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) Adeclaratoryorderhas the same status as anyotherorder 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 withall general functions andduties performedin

common bythe various agencies. Each agency shall adopt as muchof 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--Negotiatedandpilot rules. (1) To meet the intent of providing greater public access to administrative rule making and to promote consensus among interestedparties, agencies shall solicitcomments fromthepublic

on a subject of possible rule making before filing with the code reviser a notice ofproposed 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) Discusseswhyrules onthis subjectmaybeneededandwhat 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 ofproposed rule makingunderRCW 34.05.320 and shallbe sent to anypartythat has requestedreceipt of the agency's statements of inquiry. (2) Agencies are encouraged to develop anduse newprocedures forreaching agreement among interestedparties before publication ofnotice andthe adoptionhearing ona proposedrule. 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 affectedby 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 agencymust make a determinationwhethernegotiated rule making, pilot rule making, or anotherprocess'for generating. participation from interestedparties 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 priortopublicationof 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 ]

# • masterprograms other than those programs governing shorelines of state-wide significance, or, as referencedbyWashington 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 thatonlycorrecttypographical errors, make address

orname changes, orclarify language ofa rule without changing its effect; (e) Rules the content ofwhich 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) Aprocedure, 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: Seenote following RCW 34.05.328

.

Severability--1994 c 249: "If any provision of this act or its application to anyperson 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 appliesprospectivelyonly 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 agencyrule-makingprocess, 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 negotiatedevelopmentofa rule that is acceptable to all affected, andthat conforms to the intent ofthe statute the rule is intended
to implement. After a rule is adopted, unanticipated negative impacts may emerge. Examples includeexcessive costs ofadministrationforthe agency and compliance by affected parties, technical conditions thatmaybephysicallyoreconomicallyunfeasible tomeet, 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 limitedto negotiatedrule making anda process fortesting the feasibility of adopted rules, often called the pilot rule

# C

process. However, nothing in chapter 202, Laws of 1993 shall be construed to create any mandatory duty for an agency to use the procedures inRCW34.05.310 or34.05.313 inanyparticularinstance of rule making. Agencies shall determine, in their discretion, when it is appropriate to use these procedures.". [1993 c 202 § 

### 1.

### J

Effectivedate--1989 c 175: Seenote followingRCW34.05.010.

Rules coordinator duties regarding business: RCW 43.17.310.

RCW 34.05.312 Rulescoordinator. Eachagencyshalldesignate

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, participationbyvolunteers who are orwillbe subject totherule,

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 withtherulebeingtestednorbe subject to anyenforcement action

or other sanction for failing to comply with the requirements of. the draft rule. (2) 

### Anagencyconductinga pilotruleprojectauthorizedunder subsection (1)**o~** 

### this sectionmaywaive one ormore provisions of agency rules otherwise applicable to participants in such a pilot

. project ifthe agency first determines that sucha .wai.ver is inthe(\ public interest and necessary to conduct the project. Such a waiver may be only for

### a statedperiod 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 participationby 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 easieror to reduce the cost of compliance with the rule by the small businesses participating in the pilot rule project;

. (iii) Awritten statement explainingthe 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) ofthis subsection, a written explanation ofwhy 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: Seenote 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 preparea semiannual agenda for rules underdevelopment. 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 eachyear. 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:

Partheadings--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 containthe information specifiedin 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 commencedbypublicationofa notice of proposedrule adoption underRCW 34.05.320 until the proposed rule is withdrawn under RCW 34.05.335 or is adopted by the agency. (3) Foreachrule-makingproceeding, 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) Acitation 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:

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW 34.05.320 Noticeofproposedrule--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 adoptionofa 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 ofthe statutoryauthority for adoptingthe 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 statutorylanguage, implementation, enforcement, andfiscalmatters pertaining to the rule; (g) Whetherthe rule is necessaryas 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 anticipatedeffects, including inthe case ofa proposal thatwould 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 requiredby subsections (1) and (2) ofthis section, an institutionofhighereducation shall cause the notice to be published in the campus or standard newspaper of the institutionat least sevendaysbeforethe rule-makinghearing

.

.[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--Shorttit1e--Intent--1995 c 403: Seenote 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

Effectivedate--1989 c 175: See note followingRCW 34.05.010.**Severabili~y--1982** c 6: See RCW 19.85.900.

Severability--1980 c 186: "Ifanyprovision 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 solelyonthe section oflaw stating a statute's intent or purpose, oron the enablingprovisions ofthe 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 ofintentorpurpose orthe agencyenablingprovisions to interpret ambiguities ina statute's otherprovisions. [1995 c 403 § 118.]

NOTES:

.Pindings--Shorttitle--Intent--1995 c 403: RCW 34.05.328. Seenotefollowing

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 goodfaith effort to insure that the informationontheproposed'rulepublishedpursuanttoRCW 34.05.320 accurately reflects the rule to be presented and considered at the oral hearing on the rule. Written comment about


### aproposedrule, including supportingdata, shallbe acceptedbyan agency ifreceivedno laterthan the time anddate specifiedin 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 orrecordedtelephonic communications, the agency may provide in its notice of hearing filed under RCW 34.05.320 that interestedparties may comment onproposedrules by these means. If the agency chooses to receive comments by these
means, the notice ofhearing shall provide instructions formaking suchcomments, including, butnot limitedto, 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-makinghearing. Rule-makinghearings shallbe opento 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 considerationby the agencyhead, summarizingthe contents ofthepresentations made at the rule-making hearing, unless the agency headpresided orwas 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 interestedpersons theopportunitytopresent comment. Rule-making hearings may be continued to a later time andplace establishedon 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) Summarizingallcommentsreceivedregardingtheproposed rule, andresponding to the commentsbycategoryor subjectmatter, indicating how the final rule reflects agency consideration ofthe comments, or why it fails to do so. (b) The agencyshallprovidethe conciseexplanatory 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--Shorttitle--Intent--1995 c 403: Seenotefollowing 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) ofthis subsection, andanalyze alternatives to rulemaking andthe consequences ofnot 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 complywith it that will achieve the general goals and specific objectives statedunder (a) of this subsection; (e) Determine.that the rule does not require those to whomit 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 ifthe rule differs from any federal regulation

or statute applicable to the same activity or subject matter and, ifso, determine that the difference is justifiedbythe following: (i) A state statute that explicitly allows the agency to differ from federal standards; or (ii) Substantial evidence that the difference is necessaryto achieve the general goals and specific objectives·statedunder (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) Inmaking its determinationspursuant to subsection (l) (b) through (g) of this section, the agency shall place in the rulemaking file documentation of sufficient quantity andquality 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'planfor rules filedundereachadoptingorder. plan shall describe how the agency intends to: (a) Implement andenforce therule, includingadescriptionof 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) ofthis 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 implementationandenforcementof'therulewith 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. Ifthe agency is unable to complywith this subsection (4) (b)

, the agency shall report to the legislature pursuant to (c) ofthis subsection; (c) Report tothejointadministrative rules reviewcommittee: (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 empLoyment; security department, the forest practicesboard, the officeofthe 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 bythe agency, or is made applicable to the rule by a majority vote of

.the joint.administrative rules review committee within forty-five days ofreceiving 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 referencedbyWashington 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 ofwhich.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 clientmedical or financial eligibility and rules concerning liability for care of dependents. (c) Forpurposes of this subsection: (i) A "procedural rule" is a rule that adopts, amends, or repeals (A) anyprocedure, practice,. orrequirementrelatingto.any


### RCW (10/14/99 8:34) [ 25 ]agency hearings; (B) any filing orrelatedprocess requirement for making application to an agency for a license orpermit; or (C) any policy statement pertaining to the consistent internal operations of an agency. (ii) An "interpretive rule" is a rule, the violation ofwhich does not subject a person to a penaltyor sanction, that sets forth the agency's interpretationofstatutoryprovisions itadministers. (iii) A "significant legislative rule" is a rule other than a procedural or interpretive rule that 

### (A) adopts substantive provisions of lawpursuant to delegated legislative authority, the violationofwhich subjects a violatorof suchrule to a penaltyor sanction; (B) establishes, alters, orrevokes any qualification or standard for the issuance, suspension, or revocation of a license

orpermit; or (C) adopts a new, ormakes significant amendments to,

a policy or regulatory program. (d) In the notice ofproposedrulemakingunderRCW34.05.320,

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 evennumberedyearthereafter, the officeoffinancial management, after consultingwith state agencies, counties, andcities, andbusiness, labor, and environmental organizations, shall report to the governor and the legislature regarding the effects of this section

onthe regulatory system inthis state. The report shalldocument: (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) Anylegal actionmaintainedbaseduponthe 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 legislativelyprescribed 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 ofthis section. [1997 c 430 § 1; 1995 c 403 § 201.]

NOTES: 

# C;

.j."

*Reviser's note: The business assistance powers andduties 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) Oneofits fundamental responsibilities, to thebenefitof all the citizens of the state, is the protection ofpublic 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; andthat the adoptionofadministrativerules bythese 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 andenvironment ofthis state receive the highest level ofprotection, in an effective and efficient manner, without stiflinglegitimate activities andresponsibleeconomicgrowth. 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 policydecisions 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 onthepublic, 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 agencyactionmustbe legitimate andclearlyarticulated; (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 thatuponjudicial**r~view** ofa rule, a court shouldnot 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) Inorderto achievegreatercompliancewithadministrative 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, anddispositionandprovidea standardformthatmay beusedtopetition any agency. Within sixtydays 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 raisedby 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

orwas 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 immediatelyfile notice ofthe appeal with the code reviser for· publication in the Washington state register. Within forty-five days after receiving the appeal, the governorshall either (a) denythepetitioninwriting, stating (i) his or her reasons for the denial, 'specifically addressing the

concerns raisedbythepetitioner, and, (ii) where appropriate, the alternative means by which he or she will address the concerns raisedbythe petitioner; (b) for agencies listedinRCW43.17.010, directthe agencyto initiaterule-makingproceedingsinaccordance with this chapter; or (c) for agencies not listed.inRCW43.17.010, 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 .duplicat.es other federal, state, or local laws; (d) Whetheralternatives to the rule exist thatwill servethe

same purpose at less cost; (e) Whethertherule applies differentlytopublic andprivate 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 matterwithout adequate justification; and (j) Whether the rule was adopted according to all applicable provisions of law. (5) The department of community, trade, and economic developmentandtheoffice offinancial management shall coordinate efforts among agencies to inform the public about the existence of this rules review process.

. (6) Theoffice offinancial 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--Shorttitle--Intent--1995 c 403: Seenote 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. 

### Awithdrawn 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 proposedinthe register shallbe regardedas withdrawn. An agency may not thereafter adopt the proposed rule without refiling it in accordance withRCW34.05.320. The code reviser shall give notice ofthe withdrawal in the register. (4) An agencymaynot adopt a rulebefore 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:

Effectivedate--1989 c 175: See note followingRCW 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 substantiallydifferent 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 receivedregarding the initialproposedrule shallbe consideredin 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 adoptedrule wouldhaveunderstoodthat thepublishedproposedrule would affect his or her interests;

. (b) The extent to whichthe subject ofthe adoptedrule orthe issues determined in it are substantially different from the subject or issues involved in the published proposed rule; and (c) The extent towhichthe effects ofthe adoptedrule 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 adoptedrule must remain t.hesame as the proposedrule. The agency shallbrieflydescribe anychanges, otherthaneditingchanges, and the principal reasons for adopting the changes. The brief description shall be filed with the code reviser togetherwith 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 fromtheproposedrule. Thepetition shallbrieflydemonstrate.how the adopted rule is substantially different·fromthe proposedrule and shall contain the text ofthe petitioner's proposedamendment. For purposes of the petition, an adopted rule is substantially different ifthe issues determined in the adopted rule differ from the issues determined in the proposed rule or the anticipated effects ofthe adoptedrule differ fromthose oftheproposedrule. 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:

Effectivedate--1989 c 175: Seenote following RCW 34.05.010

..

RCW 34.05.345 Failure to give twenty days notice ofintended 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 requiredby 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, orrepeal ofa rule is necessary for the preservation of the public health, safety, or general welfare, andthat observingthe time requirements ofnotice 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,

orrepeal the rule on an emergencybasis. 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 emergencyrule adoptedunder this section takes effect upon filing with the code reviser, unless a laterdate 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 maypetitionthe governorrequestingthe immediaterepeal ofa rule adopted on an emergency basis by any department listed in RCW 43.17.010. within sevendays after submissionofthepetition, the governor shall eitherdeny 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 suchthat adoptionofthe rule onan emergencybasis was necessary. If the governor orders the repeal of the emergency rule, any sanction imposedbasedonthat 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 § 8i 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



# • Effectivedate--1989 c 175: Seenote followingRCW34.05.010.

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 ofthe 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 inRCW 34.05.310(1), that identifies the rule

as one that is proposed for expedited repeal. The agency shall also senda copyofthepreproposal notice of inquiryto anyperson 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 coordinatorwithinthirtydays afterthenotice ofinquiryhas been published in theWashington state register. The written objection need not state any reason for objecting to the expeditedrepeal of the rule.

- (5) Ifnowrittenobjections to the expeditedrepeal ofa rule

are filed with the agency within thirty days afterthe 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, orrepealing a rule. Ifa writtenobjectionto 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 ]

# • Partheadings--Severability--1997 c 409: See notes following RCW 43.22.051.

Findings--Shorttitle--Intent--1995 c 403: Seenotefollowing 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.

RCW34.05.356 Expedited adoption. (Expires December**3~,** 2000.) (1) 

### Anagencymay file notice for the expeditedadoption 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 withoutmaterial changefederal statutes orregulations, Washington
state statutes, rules ofotherWashington stateagencies, shoreline master programs other than those programs governing shorelines of state-widesignificance, or, as referencedbyWashington 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) Theproposedrules onlycorrecttypographical 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 rulemaking, pilot rule making, or some otherprocess that involved substantial participation by interested parties before the development of the proposed rule; or ·(f) The proposed rule is being amended after

# areview 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), ora 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 BEADOPTED 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 THECRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IFYOUOBJECT TOTHIS RULEBEINGADOPTEDUSINGTHE 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 senda copyofthe notice oftheproposed expeditedrule making to anypersonwho has requestednotification ofproposals for the expedited adoption of rules orof agency rule making, as well as thejointadministrativerules reviewcommittee, within three days after its publication in the Washington State Register. An agencymay charge for the actual cost ofproviding a requestingpartymailedcopies ofthese notices. Thenotice ofthe 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 proposedexpeditedrulemakinghas peenpublished intheWashington State Register. Aperson 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 thathavebeenfiled arewithdrawnbythepersons filing the. objections, 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) Ifa writtennotice ofobjectionto the expeditedadoption 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 sectionexpires December31,,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 as law and than (2) Aconcise statement of the purpose of the rule; (3) Areference to all rules repealed, amended, or suspended by the rule; (4) Areference 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 adoptedby an agency ofthe 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: Thereference inagencyrules shall fully identifythe incorporated
matter. An agencymay 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 incorporatedmatter. 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 bypublication in the state register,·or (b) adopts. The file andmaterials incorporatedbyreference shallbe available for public inspection. (2) The agency rule-making file shall contain all of the following: (a) Alist 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 ofanyportions ofthe agency's public rule-making -docket containingentries relating to the rule ortheproceedingon which the rule is based;

. (c) Allwrittenpetitions, requests, submissions, andcomments 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 oforal 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 preparedbya 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.catLnq where such data, factual information, studies, or reports are available forreviewbythepublic, 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 agencydocuments are exempt from inclusion inthe rule-making file under subsection (2) ofthis sectionto the extent they constitute preliminary drafts, notes, recommendations, and intra-agencymemoranda in whichopinions are expressed orpolicies 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 anotherprovision 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--Shorttitle";'-Intent--1995 c 403: Seenote 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 validunless 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 eachrule 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 effectiveupon filing unless a laterdate is specifiedinthe 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:

Effectivedate--1989 c 175: Seenote 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 orreprinting of suchrules shall

.beprintedinthe style andformat (includingthe 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 agencypursuant to this chapterthat amendexisting sections ofthe administrative code shall have the words which are amendatory to such existing sections underlined

.. Any matter to be deleted from

anexisting section shall be indicatedby setting suchmatterforth in full, enclosed by double parentheses, and such deleted matter

RCW (10/14/99 8:34) [ 37 ]shallbe linedout withhyphens. Anew 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, normaythe code reviser accept for filing anyruleunless the format of such rule is in compliance with the provisions of this section. (2) Once the rule has been formally adoptedby the agency the code reviserneednot, exceptwithregard to the registerpublished 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) ofthis 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 ADJUDICATIVEPROCEEDINGS

RCW 34.05.410 Application of Part IV. (1) Adjudicative proceedings are governedbyRCW34.05.413 through34.05.476, except

as otherwise provided: (a) By a rule that adopts the procedures for brief adjudicative proceedings in accordance with the standardsprovided 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 anytime withrespect to a matterwithin the agency's jurisdiction. (2) Whenrequiredbylaworconstitutional right,. anduponthe timely application of any person, an agency shall commence an adjudicative proceeding. (3) An agencymayprovide forms for and, by rule, mayprovide 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 fromthe time notice is givenofthe opportunityto file such an application

.

.RCW (10/14/99 8:34) [ 38 ]

# •

•

• (4) If an agency is required to hold an adjudicative proceeding, anapplication for an agency to enteranorderincludes

an application for the agency to conduct appropriate adjudicative proceedings, whether ornot the applicant expressly requests those proceedings. (5) An adjudicative proceeding commences when the agencyor 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:

Effectivedate--1989 c 175: Seenote followingRCW 34.05.010.

RCW 34.05.416 Decisionnot toconductanadjudication. Ifan 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 Agencyactiononapplicationsforadjudication. After receipt of an application for an adjudicative proceeding, otherthana declaratoryorder, an agency shallproceedas follows: (1) Except in situations governedby 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 ofbrief or emergency adjudicative proceedings, if those proceedings are availableunderthis chapterfordispositionofthe 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 oromissions,"requestanyadditional informationthe 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) Ifthe application seeks reliefthat is notavailablewhen 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 providedin subsection (1) ofthis section. Ifthe agencydetermines 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 providedby Laws (a) Applications for rate changes anduncontested

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 contestedby a person having standing to contest underthe law andreviewofdenials ofapplications 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 laterthan twentydays priorto the date ofthe 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 refundedto the applicant. If'the applicant takes the examination, the agency shall notify the applicant of the result. (3) Whena licenseehas made timelyand sufficient application for the renewal ofa license ora new licensewithreference 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) Ifthe,agency finds thatpublic health, safety, orwelfare imperativelyrequires emergency action, and incorporates a finding to that effect in its order, summary suspensionofa licensemay be orderedpendingproceedings 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 RCW34.04,.170.]

NOTES:

Effectivedate--1989 c 175: Seenote 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 agencyheadorone ormoremembers ofthe agencyhead; (b) If the agency has -statutory authority to do so, a person other'than the agency head or an administrative law judge designatedby 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 ofadministrative'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 institutionofhighereducation shalldesignate a presidingofficer

as provided by rules adopted by the agency. 

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RCW (10/14/99 8:34) [ 40 ]

# •

•

• (3) Any individual serving or designated to serve alone'or withothers as presiding officeris subject to disqualificationfor 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 thepresiding officeris an administrative lawjudge, theprovisions ofthis sectionregardingdisqualificationfor 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:

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW 34.05.428**Representation~** (1) Apartyto anadjudicative 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:

Effectivedate--1989 c 175:, Seenote followingRCW 34.05.010.

RCW 34.05.431 'Conference--Procedure and participation. (1) Agencies may hold prehearing or other conferences for the settlementor simplificationofissues. Everyagency shallbyrule describe the conditions under which and the manner in which conferences are to be held. (2) In the discretion of the presiding officer, andwhere 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 anopportunityto participate effectivelyin, to hear, and, if technicallyandeconomicallyfeasible, to seetheentireproceeding

_ 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 andmailing addresses of all parties to whomnotice 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) Astatement ofthe legal authorityand jurisdiction**unde~** which the hearing is to be held; (g) 

### Areference to theparticular sections ofthe statutes and rules involved; (h) 

### Ashort andplain statement ofthe matters assertedbythe agency; and (i) 

### A statement that a party who fails to attend or participate in a hearing or other stage of an adjudicative proceedingmaybe held in default in accordance with this chapter. (3) If the agency is unable to state the matters required by subsection (2) (h) ofthis 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 ofthe 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 otherpaperwith the agency or presiding officer shall serve copies on all other parties, unless a different procedure is specifiedby agencyrule.

[1988c 288 § 410.]

RCW 34.05.440 Default. (1) Failure of 

### a party to fi:l.e an applicationfor anadjudicativeproceedingwithinthe time limitor limits establishedby statute or agencyrule constitutes a default and results in the loss of that party's right to an adjudicative proceeding, and the agencymayproceed 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 servedupon him or her orupon his orher attorney, if any. 12) If a party fails to attend orparticipate 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 reliedupon. During the time withinwhich a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participationofthatparty, 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:

Effectivedate-'-1989 c 175: Seenote 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 petitionerqualifies as an intervenorunder anyprovision 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) Ifa petitionerqualifies for intervention, the presiding officermay impose conditions upon the intervenor's participation intheproceedings, eitherat 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 otherprocedures 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. Thepresiding officer shall'promptlygive 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 agencyorthe attorneyofrecord inwhose behalfthe 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, therequestingofadmissions, andall otherprocedures authorized by rules 26 through 36 of the superior court c i.viL 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 ordelay inbringing the case to hearingwill result; (c) whether the discovery will promote the orderly and prompt conduct oftheproceeding; and (d) whetherthe interests ofjustice will be promoted. (4) Discoveryorders andprotective orders enteredunder this section may be-enforced under the provisions of this chapter on civil enforcement of agency action. (5) Subpoenas issuedunder this sectionmaybe enforcedunder RCW 34.05.588(1). (6) The subpoena powers created by this section shall be state-wide in effect. (7) Witnesses in an adjudicatoryproceeding shall be paidthe

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 ofa subpoena shallpaythe fees andallowances 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:

Effectivedate--1989 c 175: Seenote followingRCW34.05.010.

RCW 34.05.449 Procedure at hearing. (1) The presiding officershallregulate thecourseofthe.proceedings, inconformity 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, andwhere the rights of the parties will not be prejudiced thereby, all orpart of the hearing maybe conductedby telephone, television, or'other electronic means. Each party in the hearing must have an opportunity to participate effectively in, to hear, and, if technicallyandeconomicallyfeasible, to seetheentireproceeding 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. Anyparty, at the party's expense, maycause a reporterapprovedbythe agency toprepare a transcript fromthe**agency~s** record, orcause additional recordings tobemade 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. Apresiding officer may order the exclusion of witnesses upon a showing of good cause. To the extent that the hearing is conductedby telephone, television, or otherelectronic
means, andis not closed, the availabilityofpublic 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:

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

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 statutorygrounds or"on the basis of evidentiary privilege recognized in the courts ofthis state. Thepresiding officermay 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 testimonyofparties andwitnesses shallbemadeunder oath"or affirmation.

"(4) Documentaryevidencemaybe·receivedinthe formofcopies

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 havebeen adoptedby an agency of the United States, ofthis state

orofanother state, orby 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 staffmemorandaanddata, andthey shallbe affordedanopportunity to contest the facts and material so noticed. Aparty proposing that official notice be takenmay 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 officermaynot 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 inthis 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 bodymay communicate with one another regarding the proceeding; (b) Anypresiding officermay receive aid from legal counsel,

orfrom staffassistants who are subject to thepresidingofficer's supervision; and (c) Presidingofficersmaycommunicatewithotheremployees or consultants of the agency who have not participated in the proceeding in any manner, and who are not engaged in any investigativeorprosecutorial functions inthe sameora factually related case. (d) Tpis subsection does not apply to communications required for the disposition of exparte matters specificallyauthorizedby 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 officermaynot communicate, directly or indirectly, regarding any issue intheproceeding, with anypersonnot employedbythe agency who has a direct or indirect interest in the outcome of the proceeding, without notice and opportunity for all parti.es to participate. (3) Unless necessary to procedural aspects ofmaintaining an orderly process, persons to whom a presiding officer may not communicate under**subsection~** (1) and (2) of this section may not communicate withpresiding officers without notice andopportunity for all parties to participate. (4) If, before servingas presiding'officerinanadjudicative 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 mannerprescribed in subsection (5) of this section. (5) Apresidingofficerwhoreceives anexparte 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 ofall 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, anypartydesiring to rebut the communication shall be allowed' to place a written rebuttal statement on the record. Portions of the record pertaining to ex parte communicationsorrebuttal statements donotconstituteevidenceof any fact at issue in the matterunless a partymoves the admission ofanyportionofthe recordforpurposes ofestablishing 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 officerwhoreceives the communicationmaybedisqualified, andthe

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# •

• portions of the record pertaining to the communication may be sealedby protective order. (7) The agency shall, and anypartymay, report anyviolation of this section to appropriate authorities for any disciplinary proceedings providedby law. In addition, each agency byrule may provide for appropriate sanctions, including default, for any violations of this section. [1988 c 288 § 416.]

RCW 34.05.458 Separation offunctions. (1) Apersonwho has servedas investigator, prosecutor, oradvocate 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) Aperson, 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 presidingofficerorassist or**adv~se** a presiding officerinthe

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 agencyheadorone ormore members of the agency head, the presiding officer may enter an initial order iffurther 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) Ifthepresidingofficeris one ormore administrative law judges, the presiding officer shall enter an initial order. (2) With respect to agencies exempt from chapter 34.12 RCWor
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 findingsbasedsubstantiallyoncredibilityofevidenceordemeanor 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 ofthe underlying evidence ofrecord to support the findings. The order shall also include a statement of the availableprocedures andtime limits for seekingreconsiderationor 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 basedon 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 presidingofficerdetermines that doing sowouldnotundulyabridge 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 specializedknowledge maybe 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 inRCW 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 otherwiseprovidedin (b) ofthis subsection, initial or final orders shall be served in writing within ninety days after conclusion of the hearing or after submission ofmemos, 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 eachparty and the agency. [1995 c 347 § 312; 1989 c 175 § 19; 1988 c 288 § 418.]

NOTES:

Finding--Severabi1ity--Part'headingsandtableofcontentsnot 1aw--1995 c 347: See notes following RCW 36.70A.470.

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW 34.05.464 Reviewofinitial,orders. (1) As authorizedby law, anagencymaybyruleprovide that initial orders in specified classes of cases may become final without further agency action unless, withina specifiedperiod, (a) the agencyheadupon its own motiondetermines that the initial order shouldbereviewed, 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 authorizedby law, an agency headmay 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 anyperson reviewing

an initial order on behalf of an agency as part of the decision process, andtopersons communicatingwiththem, 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,termedthe reviewing officer. The reviewing officer shall exercise all the decision-making power that the reviewing officerwould have had to decide and enter the final orderhad the reviewing officer presided over the hearing, except to the extent that the issues subject to review are limitedbya provision oflaw

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 personallyconsider 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 officerwho entered the initial order. Upon remanding a matter, the reviewing officer shall order such temporary relief as is authorized and appropriate. (8) Afinal 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:

Effectivedate--1989 c 175: Seenote followingRCW 34.05.010.

RCW 34.05.467 Stay. Aparty 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 withintendays ofits serviceunless otherwiseprovidedby statute

or statedinthe final order. Dispositionofthepetitionfor 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 uponwhich reliefis requested. Theplaceoffiling andotherprocedures, ifany, shall be specified by agency rule. (2) Nopetitionfor

..z-ecorrsLdez-atLonmaystaytheeffectiveness of an order. (3) Ifapetitionforreconsideration is'timelyfiled, andthe 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 disposedofby the samepersonorpersonswho enteredthe 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:

Effectivedate--1989 c 175: See note followingRCW34.05.010.

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) Aparty 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 orthe nonparty has actual knowledge of the final order; (c) For purposes of determining time limits for further administrative procedure orforjudicial 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,** aftera petitionfor administrativereviewhas'beenfiled, that review will not be exercised. (3) This section does not preclude an agency'from taking immediate action to protect thepublic interest inaccordance with RCW 34.05.479. [1989 c 175 § 22; 1988 c 288 § 422.]

NOTES:·

Effectivedate--1989 c 175: See note followingRCW34.05.010.

RCW 34.05.476 Agencyrecord. (1) An agency'shallmaintainan officialrecordofeachadjudicativeproceedingunderthis 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) Astatement 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, togetherwithanytranscript ofall orpart ofthe 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 chapterandforjudicial reviewofadjudicativeproceedings. [1988

c 288 § 423.]

RCW 34.05.479 Emergencyadjudicativeproceedings. (1) Unless otherwiseprovidedbylaw, an agencymayuse emergencyadjudicative 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 oravoidthe immediate dangerto thepublic 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, tojustifythe determinationofan immediatedangerand 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 anydocuments regarding the matter thatwere consideredorpreparedby 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 actioninemergencyadjudicativeproceedingsorforjudicialreview thereof. (8) This section shall not;

.apply to agency action taken pursuantto aprovisionoflawthat expresslyauthorizes 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:
Designationofpersons for emergencyadjudications byutilities and transportatiqn commission: RCW 80.01.060.

RCW 34.05.482 Briefadjudicativeproceedings--App1icabi1ity. (1) 

### An agency may use brief adjudicative proceedings if: (a) Theuse ofthoseproceedings inthe circumstances does not violate any provision of law; (b) Theprotectionofthepublic 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 agencybyrule has adoptedthis sectionandRCW 34.05.485 through 34.05.494; and (d) The issue and interests involved inthe controversydonot 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 Briefadjudicativeproceedings--Procedure. (1) Ifnot specificallyprohibitedbylaw, the followingpersons maybe 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 theparties a briefwritten statementofthe 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 takenofthe initial orderas authorizedbyRCW34.05.488 and 34.05.491, the initial order shall be the final order. [1989



### c 175 § 23; 1988 

### c 288 § 426.]

NOTES:

Effectivedate--1989 c 175: Seenote followingRCW34.05.010.

RCW 34.05.488 Brief proceedings--Administrative review-- Applicability. Unless prohibited by any provision of law, an agency, on its ownmotion, may conduct administrative review ofan 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 ]Effectivedate--1989 c 175: Seenote followingRCW34.05.010. 

# • 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 orderwithout giving that partynotice and an opportunity
to explain that party's view of the matter. (2) The Teviewing officer may be any person who could have presidedat thebriefproceeding, but the reviewing officermustbe

one who is authorized to grant appropriate relief upon review.

. (3) The reviewingofficershall give eachpartyanopportunity 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, ifnone is available, a notice that judicial reviewmay be available

. (5) Arequest for administrativereviewis deemedtohavebeen 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 orpreparedby the presiding officer for the brief adjudicativeproceedingorbythe reviewing officerfor anyreview. 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 actioninbriefadjudicativeproceedings orforthejUdicialreview 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 reviewauthority. This chapterestablishes the exclusive

means ofjudicial review of agency action, except: (1) Theprovisions ofthis chapter for judicial review do riot apply to litigation in which the sole issue is a claim for money damages or compensation and the' 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 ofprivilegedorconfidentialmaterial, aregoverned, to the extent not inconsistent with this chapter, by court rule. (3) To the extent that de novo review orjury 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 underRCW 36.18.020 and filing a petition in the superior court, at thepetitioner's option, for (a) Thurstoncounty, (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, eachwithout 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--Partheadingsandtableofcontentsnot 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 proceedingunderthis chaptermaybedirectlyreviewedbythe 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 courtwithinthirtydays ofthe filing ofthepetitionfor 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) Forthepurposes ofdirect review offinal decisions of environmental boards, environmental boards include those boards identified inRCW43.21B.005 and growthmanagement 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) Theproceedingis likelytohave significantprecedential value. (4) The environmental board shall state in the certificate of appealabilitywhich criteria it applied, explainhow that criteria

was met, and file with the certificate a copy of the final decision. (5) For an appellate court to accept direct reviewofa 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 withthe superiorcourt, a partymay file an applicationfor 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 environmentalboard shall have thirtydays tograntor 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 ofdiscretionaryreviewinthe superiorcourt, andthenotice shall include a copy of the certificate of appealability and a copy of the final decision.

. (e) Ifthe appellate court accepts review, the certificate of appealability shall be transmittedto the court of appeals as part of the certified record. ·(f) Ifa 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 donot 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 reviewby 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 orthe court ofappeals. 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 sectionwas 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 affectedby the agency action. Aperson is aggrievedor adversely affectedwithinthemeaningofthis sectiononlywhenall three of the following conditions are present:

. (1) The agency actionhas prejudicedoris likelytoprejudice that person; (2 ) Thatperson'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) 

### Apetitioner forjudicial review of a rule need not have participated in the rule-making proceedinguponwhich that rule is based, havepetitionedfor its amendmentorrepeal, havepetitioned 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:

Partheadings--Severability--1997 c 409: See notes following RCW 43.22.051.

Findings--Shorttitle--Intent--1995 c 403: Seenote 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) Apetition for judicial review of a rule may be filed at any time, except as limited by RCW 34.05.375. (2) Apetition for judicial review of an order shall be filed withthe court and served.on the agency, the office ofthe attorney general, andall parties ofrecordwithin thirtydays after service of the final order. (3) Apetition forjudicial reviewofagencyactionotherthan the adoption of a rule or the entry of' an order is not timely unless filedwith the court and servedon the agency, the office of the attorneygeneral, and all otherparties ofrecordwithinthirty 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) Serviceofthe petitionon the agency shall bebydelivery 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 ofthe agency. Service ofa copybymail upon the other parties of record and the office of the attorney general shall be deemedcompleteupon deposit inthe UnitedStates 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) Forpurposes ofthis section, serviceuponthe attorneyof record of any agency or party of record constitutes serVice upon -the agencyorpartyofrecord. [1998 c 186 § 1; 1988 c 288 § 509.)

RCW 34.05.546 Petition for review--Contents. Apetition for review must set forth:

RCW (10/14/99 8:34) [ 57 ](1) The name and mailing address of the petitioner; (2) Thename andmailing address ofthepetitioner's attorney, if any; (3) The name andmailing address ofthe agencywhose actionis
at issue; (4) Identification of the agency action at issue, together with a duplicate copy, summary, orbrief 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 precludedby law, the agencymaygrant a stay, inwhole or'inpart,

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) Ifjudicial relief is sought fora stay.orothertemporary 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, orwelfare is not sufficiently

.serious to justify the agency action in the circumstances. (4) Ifthe court determines that reliefshouldbegrantedfrom 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:

Effectivedate--1989 c 175: See note following RCW34.05.010.

RCW 34.05.554 Limitation on new issues. (1) Issues not raisedbefore the agencymaynotbe raisedon 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 ofjustice wouldbe servedby 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 determinationany 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 Newevidence takenbycourt oragency. 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) Improperconstitutionas a decision-makingbodyorgrounds 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 necessaryandthat the agencytake suchfurther actionon the basis thereof as the court directs, if: (a) The agency was required by thds "chapter or any other provision of law to base its action exclusively on a record of a type reasonably suitable forjudicial review, butthe agencyfailed to prepare or preserve an adequate record; (b) The court finds that (i) newevidence.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 discovereduntil afterthe agencyaction, 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 newprovisionmay 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 anyothermaterial described inthis 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 accordancewith subsection (4) ofthis section. (3) The agency may charge a nonindigent petitioner with the reasonable costs ofpreparing anynecessary 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 forpreparationofthe recordandtransmittal 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 recordpursuant to RCW 34.05.562 must be made as ordered by the court. (7) The court may require orpermit subsequent corrections or additions to the record. [1989 c 175 § 26;· 1988 c 288 § 515.]

NOTES:

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW 34.05.570 Judicial review. (1) Generally. Excepttothe 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 personseekingjudicialreliefhasbeen substantiallyprejudicedby the action complained'of. (2) Review of rules. (a) Arule may be reviewed by petition for declaratory judgment filed pursuant to this subsection or in the context of any other reviewproceeding 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 withorimpairs orimmediatelythreatens to

RCW (10/14/99 8:34) [ 60 ]

# e

e



# einterfere with or impair the legal rights or privileges of the petitioner. The declaratoryjudgment ordermaybe enteredwhether

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 statutoryrule-makingprocedures; ortherule is arbitraryand 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 agencyhas engaged in unlawful procedure or decisionmaking process, or has failed to follow a prescribed procedure; (d) The agencyhas erroneouslyinterpretedorappliedthe law; (e) The orderis not supportedbyevidencethat is substantial when viewed in light of the whole record before the court, which includes the agencyrecord forjudicial review, supplementedbyany additional evidence received by the court under this chapter; (f) The agencyhas not decidedall issues requiringresolution 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 challengingparty at the appropriate time formaking sucha motion; (h) The orderis inconsistentwith a rule ofthe agencyunless the agency explains the inconsistencyby stating facts andreasons 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) Apersonwhose rights are violatedby an agency's failure to performa duty that is required by law to be performedmay 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--Shorttitle--Intent--1995 c 403: Seenote following RCW 34.05.328.

Part headings not law--Severability--1995 c 403: 43.05.903 and 43.05.904. See RCW

Effectivedate--1989 c 175: See note following RCW34.05.010.

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 violationor errorby the agencyunderthe 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 administeredby a state agency, orunder 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 reliefonlyto the extent expressly authorizedby anotherprovision of law. ' (4) If the court sets aside or modifies agency action or remands the matterto the agency for furtherproceedings, the court maymake any interlocutoryorderit finds necessarytopreserve the interests of the parties ,and the

.public, pending. further proceedings or agency action. [1989 c 175 § 28; 1988 c 288 §**517~]**
NOTES:

Effectivedate--1989 c 175: Seenote following RCW34.05.010.

RCW34.05.578 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 agencywhose 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 underthis sectionorthat the enforcementwouldbe contraryto 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 monetarypayment apart from taxable costs. [1988 c 288 § 519.J

RCW 34.05.586 Defenses,**l~itations** on. (1) Except as expresslyprovided 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 determinationofthe agencyora reviewing courtwas 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 knowandwas underno duty to discover, orcouldnot reasonably have discovered, facts giving rise to this issue;

. (b) That the interest ofjusticewouldbe servedbyresolution ofan issue arising from: (L): A change in controlling law occurring after the agency action; or (ii) Agencyactionafterthe respondenthas exhaustedthe last foreseeable opportunity for seeking'relieffrom 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) Adefense specifically authorizedby 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 relatedadjudicativeproceedingin substantialcompliancewiththis 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: Seenote 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, orobeys the subpoenabutrefuses to t.est.Lfy orproduce documentswhenrequestedconcerningamatterunderexamination, the agency or attorney issuing the subpoena may petition the superior court ofany countywhere the hearing is beingconducted, 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 notbeen compliedwith, and shall request an orderofthe court to compel compliance. Upon suchpetition, the court shall enteran orderdirecting thepersonto appearbefore the court at a time and place fixed in the order to show cause why the person has not obeyedthe subpoenaorhas refusedto testifyorproduce documents. A copy of the court's show cause order shall be served upon the person. If it appears to the court that the subpoenawas properly issued, and that the particular questions the person refused to

answeror the requests for production ofdocuments were reasonable andrelevant, the court shall enteran orderthat theperson 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 ordertheperson shall be dealt withas for contempt ofcourt. (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. Ifit appears to the court that the subpoenawas properly issued, that the investigation is being conducted for a lawfully authorizedpurpose, andthat the testimonyordocuments requiredto 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 orproduce the required documents, and failing to obey this order theperson shall be dealt with as for contempt ofcourt. (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:

Effectivedate--1989 c 175: Seenote following RCW 34.05.010

.

RCW 34.05.590 Incorporation of other judicial review provisions. Proceedings for civil enforcement are governedbythe 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 Reviewbyhighercourt. Decisionsonpetitions 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 ofthe legislature in anodd-numbered'yearoruntil suchpersonsno 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 evennumberedyears 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 evennumberedyears 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-numberedyear 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 Reviewofproposedrules--Notice. Iftherules 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 applicableprovisions oflaw, 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'onthe proposedrule, the agency shall considerthe 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 requiredtobe filedpursuant to RCW 34.05.380, andemergencyrules adoptedpursuant to RCW 34.05.350, are subject to selective review by the committee.

. (2) All agencypolicyandinterpretive 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 ofgeneral applicability, or its equivalent, is being used as a rule that has not been adopted in accordance with all applicable provisions of law. (3) Ifthe rules review committee finds by a majorityvote of its members: (a) That anexisting rule is notwithinthe 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 withthe code reviserandmail 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 ofthe legislature as expressedby the statute whichthe rule implements, (b) whether the rule was adopted in accordance with all applicable provisions of law, and (c) whether the agency is usinga policyorinterpretive statement, guideline, ordocument that is ofgeneral 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 agencyby the rules review committeepursuant to RCW 34.05.620

or34.05.630, the affected agency shall notifythe committeeofits 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) Ifthe rules review committee finds by a majorityvote of**it~** members: (a) That the proposed or existing rule in question will notbemodified, amended, withdrawn, orrepealedbythe 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 policyorinterpretive statement, guideline, ordocument that is of general applicability, or its equivalent, with a rule, the rules review committee may, within thirty days from notification by the agencyofits intendedaction, file withthe coderevisernotice of its. objections together with a concise statement of the reasons therefor. Such notice and statement shall also be providedto 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 transmittothe appropriate standingcommittees

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 ofgeneral applicability, orits equivalent, under subsection (2) (c) ofthis section, the committeemay, bya majority vote of its members, advise the governor of its finding. (4) The codereviser shallpublishtransmittals fromtherules review committee or the governor issuedpursuant 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 orwas 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 Legislativeaffirmation--Severability--1981 c 324: Seenotes 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 suchmanner 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: Seenotes following RCW 34.05.010

.

RCW 34.05.655 Petition for review. (1) Any person ma y( -, petition the rules review committee for.a review of a proposed or

. existing rule or a proposed or existing policy or interpretive/ statement
, guideline, ordocumentthat is ofgeneral applicability,

.
RCW (10/14/99 8:34) [68 ]

# •

•

• orits equivalent. Apetitionto reviewa 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, ordocument that'is of general applicability, or its equivalent, is being used as a rule that has notbeenadopted in accordance with all provisions oflaw. Within thirtydays ofthe receipt ofthepetition, 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) Apetition for review of a rule under subsection (1) of this section shall: (a) Ldentifywith specificitytheproposedorexistingrule to be reviewed; (b) Identifythe specific statute identifiedbythe 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 issuedunderRCW34.05.330(1) and, ifavailable, a copyofthe governor's denial issued under RCW 34.05.330(3). (4) A petition' for review of a policy or interpretive statement, guideline, ordocument thatis ofgeneral applicability,

or its equivalent, under subsection (I) of this section shall: (a) Identifythe specific policyor interpretative statement, guideline, or document that is of general applicability, or its equivalent, to be reviewed; (b) 'Identifythe specific statutewhichthe rule interprets or

.implements; (c) State the reasons why the petitioner believes that the policyorinterpretive statement, guideline, ordocument 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) Identifyanyknownjudicial actionregardingthepolicyor 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--1995c 403: Seenotefollowing 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 ReviewandobjectionproceGiures--Nopresumption 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 anysubsequentjudicialproceedings interpreting suchrules. [1988

c 288 § 606; 1981 c 324 § 10. Formerly RCW 34.04.260.]

NOTES:

*Reviser's note: RCW 34.05.630 was amendedby 1987 c 451 § 2, changing subsection (2) to subsection (3).

Legislative affir.mation--Severability--1981 c 324: Seenotes following RCW 34.05.010.

RCW 34.05.665 Submissionofrule 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 protectedunderchapter42.40 RCW. [1995 c 403 § 503.]

NOTES:

Findings--Shorttitle.--Intent--1995c 403: Seenotefollowing 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-""Advisoryboards--Staff. (1) Therules 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, includingbut 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--1995c 403: Seenotefollowing (.') RCW 34.05·.328.**~-_/**

RCW (10/14/99 8:34) [ 70 ]RCW 34.-05.675 Inspection of properties--Oaths, subpoenas, witnesses, depositions. Inthe discharge ofanydutyimposedunder this chapter, the rules review committee may examine and inspect allproperties, equipment, facilities, files, records, andaccounts 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--Shorttitle--Intent--1995 c 403: Seenote 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 complywith any subpoena issued in [on] behalf-of the rules review committee, or on the refusal of 'any witness to testify to any matters regarding whichhe or she maybe 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--Shorttitle--Intent--1995 c 403: Seenote following RCW 34.05.328.

Part headings not law--Severability--1995 

### c 403: 43.05.903 and 43.05.904.

PARTIX TECHNICAL PROVISIONS See RCW

RCW 34.05.900 Captions and headings. Section captions and subchapterheadings usedinthis chapterdonot constitute anypart of the law. [1988 c 288 § 703.]

RCW 34.05.901Severability--1988 c 288. If anyprovisionof 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 applyto all rule-making actions andagencyproceedingsbegun

on or after that date. Rule

-e-making actions or other agency proceedingsbegunbefore July I, 1989, shall be completedunderthe applicable provisions of chapter 28B.19 or 34.04 RCW existing immediatelybefore that date in the same manner as iftheywere not amendedby chapter 288, Laws of 1988 or repealedby 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. Ifanyprovision of this act or its application to any person or circumstance is held invalid, the remainder· of the act or the application of the provisionto otherpersons orcircumstances is not affected. [1998

c 280 § 14.J 

### .'II

i 

### i it

J

RCW (10/14/99 8:34) [ 72 ]