I

i

• Chapter 34.05 RCW

ADMINISTRATIVE PROCEDURE ACT

34.05.210

34.05.220

34.05.010

34.05.020

Sections

34.05.001

Joinl adminisUltive rulesreview c:ommiu-MembcnAppolntment-TertIl5-Vacancies.'

Review of proposed rule&-Notice.

Review of existing ns1e5-Policy sut.ements. guidelinea,

issuanocs-NotiI»-Hearing.

Committee objectiOll5 to 19ICDCy ac:boo or failure to Idopt

ruJe-StalCmenl in and WAC-Suspensioo or

rule.

RCCOI1U1lCDdatio by committee to legislature.

Reviewand objcc:liOll proocdures-No presumptioo

lishcd.

PARTIX

TECHNICALPilOVISIONS

c.pci0llS and beadinp.

Severability-l988 e 288.

Effective ~AppiicIlioD-l988 e 288.

34.05.900

34.05.901

34.05.902

34.05.650

34.05.660

34.05.620

34.05.630

34.05.640 .

34.05.610

34.05.514

34.05.518

34.0.5.522

34.05.526

34.05.530

34.05.534

34.05.542

34.05.546

34.05.550

34.05.5.54

34.05.5.58

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

Subpoenas, discovery. and proteetive orden.

Procedure III hearina·

Rules of evidenoc--Crou-euminlllion.

Ex patte communiclfions.

SeparaDOII of fuDctioas.

Entry of orden.

Review of initial orden.

Stay.

RcconsideratiOll.

EffeCtiveness of orden.

Agency record.

Emergency adjudicative prooeedinp.

Brief adjudicative proceedings-Applicability.

Brief adjudicative proceedings-Procedure.

Brief proceedings-Administralive review-Applicability.

Brief proceediags-AdmiDisCrative rev;ew-Procedures.

Agency record in brief proc:eedinp.

PARTV

JUDICIALREVIEW ANDeva ENFORCEMENT

34.05.5 I0 Relationship betweell this dlapter and other judicial review

authority.

Petition for review-When: filed.

. Direct review by ColIn IJi appeals.

Refusal of review by court of appeals.

AppeUaae review by IUJlRIDe c:owtor court or appeals.

Standing.

Exhaustion of admi.aislrltive remediea.

Time for filing petition for review.

Petition for review--Coolalls.

Stay and other temporary remediea.

Umiwion 011 new issues.

Judicial review of faeu coofined to RlCOI'd.

New evidence Iakeo by court or ageocy.

Agency record for revieW---<:osu.

Judic:ia1 review.

Type of relief.

Petitioa by -seney for enforcemeot.

Petitioo by othen for enforocmeol

Defenses. limitations on. Enforcement of ageocy subpoena.

Inc:orporatioo of otherjudicial review provWoas.

Review by higher coun.

Frivolous petitiOll5.

PART VI

LEGISLATIVE REVIEW

34.0~.446

34.05.449

34.05.452

34.05.455

34.05.4.58

34.05.461

34.05.464

34.05.467

34.05.470

34.05.473

34.05.476

34.0~.479

34.05.482

34.05.485

34.05.488

34.05.491

34.05.494

PART IV

ADJUDICAnVE 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-DisqualifJCaliOll, substitutioo.

Represenlalion.

Conference-Proocdure aDd participation.

Notice of hearing.

Pleadings. briefs, motions. service.

Default.

Intervention.

PART I

GENERAL PROVISIONS

PART II

PUBLIC ACCESS TO AGENCY RULES

Code and register-Publication and distribution-Omissions.

removals. revisions-Judicial notice.

Rules for agency procedure-Indexes of opinions and statements,

Interprenve and policy statements.

Declaratory order by agency-Petitioo-Coun review.

Model rules of procedure.

PART III

. RULE-MAKING PROCEDURES

Prenouee commcnlS-NegoWUed and pilot rules.

Rules coordinator.

Compliance feasibility studies-Pilot projecl5.

Rule-making docket.

Notice of proposed rule-ContenlS-Distribution by agency-Institutions of higher education.

Public participation. .

Petition for adoption. amendment. repeaJ-Agency aeuon.

Withdrawal of proposal-Time and manner of adoption.

Variance between proposed and final rule.

Failure to give twenty days notice of intended aCtionEffect.

Emergency rules and amendments.

Concise explanau)f)' swement.

Order adopting rule. contents.

Incorporation by reference.

Rule-making file.

Substantial compliance with procedures.

filing with code reviser-Register-Effective dates.

Rules for rulemaking.

Style, format, and numbering-Agency compliance.

FOrmal and style of amendatory and new sectioos-Failure

to comply.

Legislative intent.

Definitions.

S3vings-Aulhority of aaencies 10 comply with cl\aptcrEffect of subsequent Iegislatioa.

Exclusions from chapter or partS of chapter.

Operation of ebapter if in conflict with federaJ law.

WlIiver.

Informal settlements.

Conversion of proceedings.

V3riOllion from time linuts.

34.05.350

34.05.355

34.05.360

34.05.365

34.05.370

34.05.375

34.05.380

34.05.385

34.05.390

34.05.395

34.05.310

34.05.312

34.05.313

34.05.315

34.05.320

34.05.325

34.05.330

34.05.335

34.05.340

34.05.345

34.05.230

34.05.240

34.05.250

34.05.030

34.05.040

34.05.050

34.05.060

34.05.070

34.05.080

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

•

(1994)

[CIL. 3405 p. 1)

(
,-c-r

head is a body of iDdividuaJs. a majority of those Individuals :~ constitutes the aaeacy bead.

(5) "Entry" of aD order means the signing of the ~\ by all persons who are to sign the order. u an official a..,J

indicating that the order is to be effective.

(6) "Filing" 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 Univenity.

Western Washington University. The Evergreen State

College. the various community colleges. and thegoverning

b~~r~s of each of the above. and the various colleges.

divisions, departments, or offices authorized by the governing board of the institution involved to act for the institution.

all of which are sometimes referred to in this chapter as

"institutions."

(8) "Interpretive statement" means a written expression

of the opinion of an agency. entitled an interpretive statement by the agency bead or its designee. asto the meaning

of a statute or other provision of law. of a court decision. or

of an agency order.

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

approval. registration. charter, or similar form of authorization required by law. but does not include (i) a license

required solely for revenue purposes. or (ii) a certification of

an exclusive bargaining representative. or similar status~~ .

un~er a collective bargaining law or similar statute, or (iii \~:.-­

a license. franchise. or permission for use of trademarks~j

symbols. and similar property owned or controlled by the

agency.

(b) "Licensing" includes the agency processrespecting

the issuance. denial, revocation, suspension. or modification

of a license.

. (lO)(a) "Order," without further qualification. means a

written statement of particular applicability that finally

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

other legal interestsof a specific person or persons.

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

statement by which an agency adopts. amends. or repeals a

rule.

(II) "Party to agency proceedings," or "party" in a

context so indicating, means:

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

directed; or

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

or allowed to intervene or participate as a party in the

agency proceecting.

(12) "Pany to judicial review or civil enforcement

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

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

civil enforcement proceeding; or .

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

civil enforcement proceeding. or allowed to participate as a .

party in a judicial review or civil enforcement proceeding. --

(13 "Person." ~eans any individual,. ~a~tnershiPO·\

corporation, 8SSOC1!UJOD. governmental subdlVlSJon or unit

thereof. or public or private organization or entity of any.

character, and includes another agency.

PART I

GENERAL PROVISIONS

34.05.001 AdmInistratIVe Procedure Ad

. RCW 34.0S.0C)( Legislative lateDL The legislature

Intends. by enacting this 1988 Administrative Procedure Act,

to clarify the existing law of administrative procedure. to

achieve greater consistency with other states and the federal

government in administrative procedure. and to provide

greater public and legislative access to administrative

decision making. 'The legislature intends that to the greatest

extent possible and unless this chapter clearly requires

otherwise. current agency practices and court decisions

interpreting the Administrative Procedure Act in effect

before July I. 1989. shall remain in effect. The legislature

also intends that the courts should interpret provisions of this

chapter consistently with decisions of other courts interpreting similar provisions of other states. the federal government,

and model acts. [1988 c 288 § 18.]

RCW 34.05.010 Definitions. The definitions set forth

in this section shall apply throughout this chapter. unless the

context clearly requires otherwise.

(I) "Adjudicative proceeding" means a proceeding

before an agency in which an opportunity for hearing before

that agency is required by statute or constitutional right

before or after the entry of an order by the agency. Adjudicative proceedings also include all cases of licensing and rate

making in which an application for a license or rate change

is denied except as limited by RCW 66.08.150. or a license

is revoked. suspended. or modified. or in which the granting

of an application is contested-by a person having standing to •

contest under the law.

(2) "Agency" means any state board. commission.

department. institution of higher education. or officer.

authorized by law to make rules or to conduct adjudicative

proceedings. except those in the legislative or judicial

branches. the governor. or the attorney general except to the

extent otherwise required by law and any local governmental

entity that may request the appointment of an administrative

law judge under chapter 42.41 RCW.

. (3) "Agency action" means licensing. the implementauon or enforcement of a statute. the adoption or application

of an agency rule or order. the imposition of sanctions. or

the granting or withholding of benefits.

Agency action does not include an agency decision

regarding (a) contracting or procurement of goods. services.

public works. and the purchase. lease. or acquisition by any

other means. including eminent domain. of real estate. as

well as all activities necessarily related to those functions. or

(b) determinations as to the sufficiency of a showing of

interest filed in support of a representation petition. or

mediation or conciliation of labor disputes or arbitration of

labor disputes under a collective bargaining law or similar

statute. or (c) any sale. lease. contract, or other proprietary

~ecision in the management of public lands or real property

interests. or (d) the granting of a license. franchise. or

permission for the use of trademarks. symbols. and similar

property owned or controlled by the agency.

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

individuals in whom the ultimate legal authority of the

agency is vested by any provision of law. If the agency

[Cb. J4.05-p. 2)
- AdmlDlstrative Procedure Ad

•

•

•

(14) "Policy statement- means a written description of

the current approach of an agency. entitled a policy statement by the agency head or its designee. to implementation

of a statute or other provision of law. of a court decision. or

of an agency order, including where appropriate the agency's

current practice. procedure. or method of action based upon

that approach.

(15) "Rule" means any agency order. directive. or

regulation of general applicability (a) the violation of which

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

which establishes. alters. or revokes any procedure. practice.

or requirement relating to agency hearings; (c) which

establishes. alters. or revokes any qualification or requirement relating to the enjoyment of benefits or privileges

conferred by law; (d) which establishes. alters. or revokes

any qualifications or standards for the issuance. suspension.

or revocation of licenses to pursue any commercial activity.

trade. or profession; or (e) which establishes. alters. or

revokes any mandatory standards for any product or material

which must be met before distribution or sale. The term

includes the amendment or repeal of a prior rule. but does

not include (i) statements concerning only the internal

management of an agency and not affecting private rights or

procedures available to the public. (ii) declaratory rulings

issued pursuant to RCW 34.05.240. (iii) traffic restrictions

for motor vehicles. bicyclists. and pedestrians established by

the secretary of transportation or his designee where notice

of such restrictions is given by official traffic control

devices. or (iv) rules of institutions of higher education

involving standards of admission, academic advancement•

academic credit, graduation and the granting of degrees,

employment relationships, or fiscal processes.

(16) "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.

(17) "Rule making" means the process for formulation

and adoption of a rule.

(18) "Service," except as otherwise provided in this

chapter: means posting in the United States mail. properly

addressed. postage prepaid. or personal service. Service by

mail is complete upon deposit in the United States mail.

Agencies may. by rule. authorize service by electronic

telefacsimile transmission. where copies are mailed simultaneously. or by commercial parcel delivery company. [1992

c 44 § 10; 1989 c 175 § I; 1988 c 288 § 101; 1982 c 10 §

5. Prior: 1981 c 324 § 2; 1981 c 183 § I; 1967 c 237 § I;

1959 c 234 § 1. Formerly RCW 34.04.010.]

Elred.ive dates---&verabilily-lm e 44: See RCW 42.41.901 and

42.41.902.

Elred.ive dates-I989 c 175: "Sections I through 35 and 37 through

18S of this act are necessary for !be inunediate preservation of the public

peace, health. or safely, or lhe suppon of tbe state government and its

existing public mstirutions. and shall take effect OIl July I. 1989. section

36 of this act shall take effect on July I. 1990." (1989 c 175 § 186.)

Severabilily-I982 c 10: See IIOle following RCW 6.13.080.

Legislalive affinnalion-I981 e 324: "Tbe Iegis1anlre affinns that

all rule-making authority or state agencies and institutions of higher

education is a function delegated by !be Iegislatvre. and as such, sha1I be

exercised pursuant to the conditions and tatrictioos contained in this let."

(1981 c 324 I. I.)

Severablllly-1981 e 324: "If any provision of this act or its

application to any person or circumstance is held invalid. the remainder of

(1994)

·--34.os.010

the ICl or the applic:IlioD oIlbe pvvisioD 10 odw penoes or is DOt alfeaed." (1911 c 324 tIl.)

RCW 34.05.020 Savlnp-Autborlty of aaeudes to

comply with duapter-Etrect or subsequeot leaJslatioo.

Nothing in this chapter may be held to diminish the constitutional rights of any person or to limit or repeal additional

requirements imposed by statute or otherwise recognized by

law. Except as otherwise required by law. all requirements

or privileges relating to evidence or procedure shall apply

equally to agencies and persons. Every agency is granted all

authority necessary to comply with the requirements of this

chapter through the issuance of rules or otherwise. No

subsequent legislation shall be held to supersede or modify

the provisions of this chapter or its applicability to any

agency except to the extent that such legislation shall do so

expressly. [1988 c 288 § 102; 1967 c 237 § 24. Formerly

RCW 34.04.940.]

RCW 34.05.030 Exclusions from chapter or parts

or chapter. (I) 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 34.0S.410 th~i:ough

34.05.598 shall not apply:.4.::.

(a) To adjudicative proceedings of the board of iJfd~­

al insurance appeals except as provided in RCW 7.6~irll0

and 5 \.48.131; .~~';.

(b) Except for actions pursuant to chapter 46.29;·RCw.

to the denial. suspension. or revocation of a driver's license

by the department of licensing; :::;:

(c) To the department of labor and industries where

another statute expressly provides for review of adjudicative'

proceedings of a department action. order. decision. or~award .

before the board of industrial insurance appeals; '..

(d) To actions of the Washington personnel resources

board. the director of personnel. or the personnel appeals

board; or

(e) To the extent they are inconsistent with any provisions of chapter 43.43 RCW.

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

hearing pursuant to RCW 82.03.140 or 82.03.190. RCW

34.05.410 through 34 .OS .S98 do not apply to a review

hearing conducted by the board of tax appeals.

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

apply to reimbursement unit values. fee schedules. arithmetic

conversion factors. and similar arithmetic factors used to

determine payment rates that apply to goods and services

purchased under contract for clients eligible under chapter

74.09 RCW.

(5) All other agencies. whether or not formerly specifically excluded from the provisions of all or any part of the

Administrative Procedure Act, shall be subject to the entire

act. [1994 c 39 § I; 1993 c 281 § IS; 1989 e 17S § 2; 1988

c 288 § 103; 1984 c 141 § 8; 1982 c 221 I 6; 1981 c 64 §

2; 1979 c 1S8 § 90; 1971 ex.s. c S7 § 17; 1971 e 21' § 1;

1967 ex.s, e 71 § 1; 1967 c 237 § 7; 1963 e 237 I 1; 19S9

e 234 § IS. Formerly RCW 34.04.150.]

(CIL. 3405 .. 3]
34.05.030 Administrative Procedure Act

..

ErrmlYe da~I99J e 281: See nocc (oUowi41 RCW 41.06.022.

ErredlYe dat_1989 e 175: See DOfe foIJowiq RCW 34.05.010.

RCW 34.05.040 Operation or chapter" In conflict

with federal law. If any pan of this chapter is found to be

in conflict with federal requirements which are a condition

precedent to the allocation of federal funds to the state. the

conflicting pan of this chapter is inoperative solely to the

extent of the conflict and with respect to the agencies

directly affected. and such findings or detennination 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. Fonnerly RCW 34.04.930.)

RCW 34.05.050 Waiver. Except to the extent

precluded by another provision oflaw. a person may waive

any right conferred upon that person by this chapter. [1988

c 288 § 105.)

RCW 34.05.060 InConnal settlements. Except to the

extent precluded by another provision of law and subject to

approval by agency order. informal settlement of matters that

may make unnecessary more elaborate proceedings under

this chapter is strongly encouraged. Agencies may establish

by rule specific procedures for attempting and .executing

informal settlement of matters. This section does not require

any party or other person to settle a matter. [1988 c 288 §

106.]

. RCW 34.05.070 Conversion of proceedings. (I) If

It becomes apparent during the course of an adjudicative or

rule-making proceeding undertaken pursuant to this chapter

that another form of proceeding under this chapter is

necessary, is in the public interest. or is more appropriate to

resol ve Issues affecting the participants, on his or her own

motion or on the motion of any party. the presiding officer

or other official responsible for the original proceeding shall

advise the parties of necessary steps for conversion and, if

within the official's power, commence the new proceeding.

If the agency refuses to convert to another proceeding. that

decision is not subject to judicial review. Commencement

of the new proceeding shall be accomplished pursuant to the

procedural rules of the new proceeding, except that elements

already performed need not be repeated.

(2) H appropriate. a new proceeding may be commenced

independently of the original proceeding or may replace the

original proceeding.

(3) Conversion to a replacement proceeding shall not be

undertaken if the rights of any party will be substantially

prejudiced.

(4) To the extent feasible the-record of the original

proceeding shall be included in the record of a replacement

proceeding.

(5) The time of commencement of a replacement

proceeding shall be considered to be the time of commencement of the original proceeding. [1988 c 288 § 107.)

RCW 34.05.080 Variation from time ·lImlts. (I) An

agency may modify time limits established in this chapter

only as set forth in this section. An agency may not modify

.time limits relating to rule-making procedures or the time

Ieb. J4.GS-p. 41

limits for filing a petition for judicial review specified in

RCW

(2)

34.05.542.

The time limits let forth in this chapter may,

C'

modified by rule of the'agency or by rule of tbe ch] ..J

administrative law judge if:

(a) The agency has an agency headcomposed of a body

of individuals serving part time who do not regularly meet

on a schedule that would allow compliance with the time

limits of this chapter in the normal course of agency affairs;

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

comply with the time limits set forth in this chapter without

substantial loss of efficiency and economy; and

(c) The rights of persons dealing with the agency are

not substantially impaired.

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

modified by rule if the agency determines that the change is

necessary to the performance of its statutory duties. Agency

rule may provide for emergency variation when required in

a specific case.

(4) Time limits may be changed pursuant to RCW

34.05.040.

(5) Time limits may be waived pursuant to RCW

34.05.050.

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

chapter shall be to new time limits that are reasonable under

the specific circumstances.

(7) In an adjudicative proceeding, any agency whose

time limits vary from those set fonh in this chapter shall

provide reasonable and adequate notice of the pertinent time

limits to persons affected. The notice may be given by thf!-",-

presiding or reviewing officer involved in the proceeding{>

(8) Two years after July I, 1989, the chief administr'8---/

tive law judge sball 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 e 288 §

108.]

m~ da~l989 e 175: See DOle (ollowiDl RCW 34,OS.OIO.

PARTU

PUBUC ACCESS TO AGENCY RULES

RCW 34.05.210 Code and reglster-Publkatloa 8Dd

distributloo-OmissioDS, removals, revlsloos-Judklal

notice. (I) The code reviser shall cause the Washington

Administrative Code to be compiled, indexed by subject, and

published. AU current, permanently effective rules of each

agency shall be published in the Washington Administrative

Code. Compilations shall be supplemented or revised as

often as necessary and 81 least annually in a fonn compatible

with the main compilation.

(2) Subject to the provisions of this chapter, the code

reviser shall prescribe a uniform numbering system, form,

and style for all proposed and adopted rules.

(3) Thecode reviser shall publish a register setting forth

the text of all rules filed during the appropriate register

publication period.

(4) The code reviser may omit from the register or tI(.~ compilation, rules that would be unduly cumbersomtl~

expensive, or otherwise inexpedient to publisb. ifsuch rules

are made available printed or processed form on applica-

(1"4)
Administrative Procedure Ad

, ,

•

•

•

tion 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

and unconstitutional by a coun of final appeal. the adopting

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

the consent of the attorney general. the code reviser may

remove obsolete rules or parts of rules from the Washington

Administrative Code when:

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

final appeal; or

(b) The adopting agency ceases to exist and the rules

are not transferred by statute to a successor agency.

(7) Registers and compilations shall be made available.

in written form to (a) state elected officials whose offices are

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

RCW 48.02.010. upon request. (b) to the secretary of the

senate and the chief clerk of the house for committee use. as

required. but not to exceed the number of standing committees in each body. (c) to county boards of law library

trustees and to the Olympia representatives of the Associated

Press and the United Press International without request. free

of charge. and (d) to other persons at a price fixed by the

code reviser.

(8) The board of law library trustees of each county

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 lst ex.s. c 32 § 7; 1980 c 186 §

12; 1977 ex.s. c 240 § 9; 1959 c 234 § 5. Formerly RCW

34.04.050.]

-Reviser's Dole: RCW 27.24.060 was repealed by 1992 c 62 § 9.

effective April 1. 1992.

Severability-l980 e 186: See note following RCW 34.05.320.

EO'ective date-Severabillty-l977 u.s. c: 140: See RCW 34.08.905

and 34.08.910.

RCW 34.05.220 Rules for agency procedureIndexes of opinions and statements. (I) In addition to

other rule-making requirements imposed by law:

(a) Each agency may adopt rules governing the formal

and informal procedures prescribed or authorized by this

chapter and rules of practice before the agency. together with

forms and instructions. If an agency has not adopted

procedural rules under this section, the model rules adopted

by the chief administrative law judge under RCW 34~05.250

govern procedures before the agency.

(b) To assist interested persons dealing with it. each

agency shall adopt as a rule a description of its organization.

stating the general course and method of its operations and

the methods whereby the public may obtain information and

make submissions or requests. No person may be required

to comply with agency procedure not adopted as a rule as

herein required.

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

regulation. nor prohibited for reasons of confidentiality by

(1994)

--34.0S.110

state law. each agency shall keep on file fot public inspee-

. tion all final orders. decisions. and opinions in adjudicative

proceedings. interpretive statements, policy statements. and

any digest or index to those orders. decisions. opinions. or

statements prepared by or for the agency. .

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

effective against any person. nor may it be invoked by the

agency for any purpose, unless it is available for public

inspection. This subsection is not applicable in favor of any

person who has actual knowledge of the order. decision. or

opinion. The agency has the burden of proving that knowledge. but may meet that burden by proving that the person

has been properly served with a copy of the order.

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

discretion in deciding individual cases is encouraged to

formalize the general principles that may'evolve from these

decisions by adopting the principles asrules that the agency

will follow until they are amended or repealed.

(5) To the extent practicable. any rule' proposed or

adopted by an agency should be clearly and simply stared, 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 f

13; 1967 c 237 § 2; 1959 c 234 f 2. Formerly,RCW

34.04.020.] ~~

SeverabWty-AppUc:adoo-l994 c: 249: See DOteI followina RCW

34.05.310. ,

Elrective date-1989 e 115: Sec DO(C followiq RCW 304.05;010.

FJl'eahe datei--Seftnhil1981 e 61: See DOteS followi!liRCW

34.12.010. .

• ;i>"f.:..... k

RCW 34.05.130 Interpretive and poIiq sta~ts.

( I) If the adoption of rules is not feasible and practic8bit an

agency is encouraged to advise the public of its c'iiri-cnt

opinions. approaches. and likely courses of action by.means .

of interpretive or policy statements. Current interpretiveand

policy statements are advisory only. An agency is encouraged to convert long-standing interpretive and pplicy ..

statements into rules. .

(2) Each agency shall maintain a roster of interested

persons. consisting of persons who have requested in Wilting

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 ageocy issues an

interpretive or policy statement. it shall seod a copy of the

statement to each person listed on the roster. 1be asency

may charge a nominal fee to the interested person for this

service. [1988 c 288 t 203.]

RCW 34.05.240 Declaratory order by agencyPetition-Court review. (1) Any person may petition an

agency for a declaratoly order' with respect to the applicability to specified circumstances of a rule, order, or statute

enforceable by the agmc:y. 1be petition sbalJset forth facts

and reasons 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 uneenainty ~versely affects the petitioner,

[0.)4.15 po 5)
34.05.140 Administrative Procedure Act

..

(d) That the adverse effect of uncertainty on the

petitioner outweighs any adverse effects on others or on the

general public that may likely arise from the order requested:

and .

(e) That the petition complies with any additional

requirements established by the agency under subsection (2)

of this section.

(2) Each agency may adopt rules that provide for: (a)

The form, contents. and filing of petitions for a declaratory

order; (b) the procedural rights of persons in relation thereto;

and (c) the disposition of those petitions. These rules may

include a description of the classes of circumstances in

which the agency will not enter a declaratory order and shall

be consistent with the public interest and with the general

policy of this chapter to facilitate and encourage agencies to

provide reliable advice.. .

(3) Within fifteen days after receipt of a petition for a

declaratory order, the agency shall give notice of the petition

to all persons to whom notice is required by law. and may

give notice to any other person it deems desirable.

(4) RCW 34.05.410 through 34.05.494 apply to agency

proceedings for declaratory orders only to the extent an

agency so provides by rule or order.

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

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

following:

(a) Enter an order declaring the applicability of the

statute, rule. or order in question to the specified circumstances:

(b) Set the matter for specified proceedings to be held

no more than ninety days after receipt of the petition;

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

receipt of the petition by which it will enter a declaratory

order: or

(d) Decline to enter a declaratory order. stating the

reasons for its action.

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

section may be extended by the agency for good cause.

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

would substantially prejudice the rights of a person who

would be a necessary party and who does not consent in

writing to the determination of the matter by a declaratory

order proceeding.

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

order entered in an agency adjudicative proceeding. Each

declaratory order shall contain the names of all panies 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 01 procedure. The

chief administrative law judge shall adopt model rules of

procedure appropriate for use by as many agencies as

possible. The model rules shall deal with all gener.al

functions and duties performed in common by the various

agencies. Each agency shall adopt as much of the model

rules as is reasonable under its circumstances. Any agency

adopting a rule of procedure that differs from the model

rules shall include in the order of adoption a finding stating

the reasons for variance. [1988 c 288 t 20S.)

[eb. J4.0S-p. 6)

PARTm

RULE-MAKING PROCEDURES

r: RCW 34.05.310 Prenotic:e commeatI-NqotIIltt_J

and pUot rules. (1) To meet the intent of providing grea&cr

public access to administrative rule making and to promote

consensus among interested parties. agencies shall solicit

comments from the public on a subject of possible rule

making before publication of a notice of proposed rule

adoption under RCW 34.05.320. The agency shall prepare

a statement of intent that:

(a) States the specific statutory authority for the new

rule;

(b) Identifies the reasons the new rule is needed;

(c) Identifies the goals of the new rule;

(d) Describes the process by which the rule will be

developed. including. but not limited to, negotiated rule

making, pilot rule making, or agency study; and

(e) Specifies the process by which interested parties can

effectively participate in the formulation of the new rule.

The statement of intent shall be filed with the code

reviser for publication in the state register and shall be sent

to any party that bas requested receipt of the agency's

statements of intent, .

(2) Agencies are encouraged to develop and use new

procedures for reaching agreement among interested parties

before publication of notice and the adoption hearing on a

proposed rule. Examples of new procedures include. but are

not limited to: .

(a) Negotiated rule making which includes: •

(i) IdentifyingindividuaIs and organizations that bave \

recognized interest in or will be signifICantly affected by tbC>-/

adoption of the proposed rule;

(ii) Soliciting panicipation by persons who are capable.

willing. and appropriately authorized to enter into such

negotiations;

(iii) Assuring that participants fully recognize thec0nsequences of not participating in the process. are committed to

negotiate in good faith. and recognize the alternatives

available to other parties;

(iv) Establishing guidelines to encourage consideration

of all pertinent issues. to -set reasonable completion deadlines. and to provide fair and objective settlement of disputes

that may arise;

(v) Agreeing on a reasonable time periodd!1ring which

the agency will be bound to the rule resulting from the

negotiations without substantive amendment; and

(vi) Providing a mechanism by which one or more

parties may withdraw from the process or the negotiations

may be terminated if it appears that consensus cannot be

reached on a draft rule that accommodates the needs of the

agency. interested parties. and the general public and

conforms to the legislative intent of the statute that the rule

is intended to implement; and .

(b) Pilot rule making which includes testing thedraft of

a proposed rule through the use of volunteer pilot study

groups in various areas and circumstances.

(3)(a) An agency must make a ~natiOD wbetherr\

negotiated rule making, piJoI rule making. or another pI'OCeS£0

for generating panicipatioo from interested parties prior to

development of the rule is appropria1c.
. . .. ..", ":.- c . .....'_ .

- --Admlnlstradvt Procedure-Act

..

•

•

•

(b) An agency must include a wrincn justification in the

rule-making file if an opportunity for interested parties to

participate in the rule-making process prior to publication of

the proposed rule has not been provided. (1994 c 249 § 1;

1993 c 202 § 2; 1989 c 115 § 5; 1988 e 288 § 301.1

Senrablllty-1994 (149: "If any provision of this act or its

application to any person or circumstAnCC is held invalid. the remainder of

the act or the application of the provision to other penons or citcllJ1\SWlCC$

is not affected." (1994 c 249 § 38.1

Appllcatlon-l994 (149: "This act applies prospectively only and

not retroactively." (1994 c 249 § 36.1

Flndina-lotent-I993 (101: "The leaislature finds that while the

1988 Administrative Procedure Act expanded public participation in the

agency rule-making process, there continue to be instances when participants have developed adversariaJ relationships with each other. resulting in

lhe inabilily 10 idenlify :111 of the issues. the failure 10 focus on solutions to

problems. unnecessary delays. Iitiganon, and added eost to the agency.

affected parties. and the public in general.

When interested parties worle together, it is possible to negotiate

development of a rule that is acceptable 10 all affecled. and that confonns

10 the interu of the statute the rule is intended 10 implement.

After a rule is adopted, unanticipated DCgative impacts may emerge.

Examples include excessive costs of administralion for the agency and

compliance by affected parties. technical conditions that may be physically

or economically unfeasible 10 meet. problems of interpretaucn due 10 lack

of clarity. and reporting requirements that duplicale or conflict with those

already in place.

11 is therefore the intent of the legislature 10 encourage flexible

approaches 10 developing administrative rules. including but not limited 10

negotiated rule making and a process for testing the feasibility of adopted

rules. often called the pilot rule process. HoweYa'. nothing in -this act shall

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

procedures in RCW 34.05.310 or 34.05.313 in any particular instance of

rule making. Agencies shall determine. in their discretion. when it is

appropriate to use these procedures." [1993 c 202 § I.]

-Reviser's Dote: This act [1993 c 2021 consisted of the amendment

of RCW 34.05.310 and the enactment of RCW 34.05.312 and 34.05.313.

Effective date--l989 e 175: See note following RCW 34.05.010.

Rules coordinator duties regarding business: RCW 4J.17.Jl0.

RCW 34.05.312 Rules coordinator. Each agency

shall designate a rules coordinator. who shall have knowledge of the subjects of rules being proposed or prepared

within the agency for proposal. maintain the records of any

such action. and respond to public inquiries about possible

or proposed rules and the identity of agency personnel

working. reviewing. or commenting on them. 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 c202 § 3.]

Finding-lntent-I993 (101: See Dote following RCW 34.05.310.

RCW 34.05.313 Compliance feasibility studiesPilot projects. If. during development of a rule or after its

adoption. an agency determines that implementation may

produce unreasonable economic. procedural, or technical

burdens. agencies are encouraged to develop methods for

measuring or testing the feasibility of compliance with the

rule. including the use of voluntary pilot study groups.

Measuring and testing methods should emphasize public

notice. participation by persons who have a recognized

interest in or are significantly affected by the adoption of the

proposed rule. a high level of involvement from agency

management. consensus on issues and procedures among

(1994)

participants in the pilot group. assurance of fairness. and

reasonable completion dates. and a process by which one or

more parties may withdraw from the process or rhc process

may be terminated if consensus cannot be reached on the

rule.

The findings of the pilot project should bewidely

sharedand. where appropriate, adopted as amendments CD d1c

rule. (1993 c 202 § 4.)

F1nd1oa-1DIeDt-I993 e 201: See DOIC followiD& RCW 34.05.310.

RCW 34.05.315 Rule-making docket. (I) Each

agency shall maintain a current public rule-making docket.

The rule-making docket shall contain the information

specified in subsection (3) of this section.

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

each pending rule-making proceeding. A rule-making

proceeding is pending from the time it is commenced by

publication of a notice of proposed rule adoption under

RCW 34.05.320 until the proposed rule is withdrawn under

RCW 34.05.335 or is adopted by the agency.

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

indicate all of the following:

(a) The name and address of agency personnel responsible for the proposed rule;

(b) The subject of the proposed rule;

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

that have been published in the state register under..'RCW

34.05.320;

(d) The place where written submissions about the

proposed rule may be inspected;::'¥'

(e) The time during which written submissions-will be

~epred; s~

<0 The current timetable established for the agency

proceeding. including the time and place of any rule-making

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

and its effective date. [1989 c 175 § 6; 1988 c 288 §302.J

Effective dale-1m e 175: See DOIC followi.n& RCW 34.OS.010. 't

RCW 34.05.320 Notice 01 proposed ruleContents-Distribution by agency-Institutions of higber

education. (l) At least twenty days before the rule-making

hearing at which the agency receives public comment

regarding adoption of a rule, the agency shall cause notice

of the hearing to be published in the state register. 1be

publication constitutes the proposal of a rule. The notice

shall include all of the foUowing:

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

other information which may be of assistance in identifying

the rule or its purpose;

(b) Citations of the statutory authority for adopting the

rule and the specific statute the rule is intended to implement;

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

reasons supporting the proposed action;

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

telephone number, who ace responsible for the drafting.

implementation. and enforcement of the rule;

(e) 1be name of the person or organization, whether

private, public. or governmental. proposing the rule;

[CIa. 3405 P. 7)

,.

.,
J4.G5.JZO - -Aclmlnbtrathe -Procedure -Ad

.-

(0 Agency comments or recommendations. if any.

regarding statutory language. implementation. enforcement.

and fiscal matters pertaining to the rule;

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

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

law or court decision shall be attached to the purpose

statement;

(h) When. where. and how persons may present their

views on the proposed rule;

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

rule;

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

anticipated effects. including in the case of a proposal that

would modify existing rules. a short description of the

changes the proposal would make; and

(k) A statement indicating how a person can obtain 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.

(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 who has

made a request to the agency for a mailed copy of such

notices. An agency may charge for the actual cost of

providing individual mailed copies of these notices.

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

and (2) of this section. an institution of higher. education

shall cause the notice to be published in the campus or

standard newspaper of the institution at least seven days

before the rule-making hearing. [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 e x .s , c 84 § 1.

Formerly RCW 34.04.045.]

SeverabiJity-Applicatioo--l994 e 149: See notes following RCW

34.OS.310.

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

Severability-I982 e 6: See RCW 19.85.900.

Severability-1980 c 186: "If any provisioo of this 1980 act or its

application 10 any person or circumstance is held invalid. the n:mainder of

the act or theapplication of the provision to otherpersoes or circUmstances

is DOt affected." (1980 e 186 § 29.1

Small business economic impact stQte~nt-Purpose-eontenlS: RCW

/9.85_040.

RCW 34.05.325 Public participation. (I) The

agency shall make a good faith effort to insure that the

information on the proposed rule published pursuant to RCW

34.05.320 accurately reflects the rule to be presented and

considered at the oral hearing on the rule. Written comment

about a proposed rule. including supporting data. shall be

accepted by an agency if received no later than the time and

date specified in the notice. or such later time and date

established at the rule-making hearing.

(2) The agency shall provide an opportunity for oral

comment to be received by the agency in a rule-making

hearing.

(Cb. 34.05--1»- 81

(3) If the agency possesses equipment capable of

receiving telefacsimile ttansmissions or recorded telephonic

communications. the aaency may provide in its notice (."')

hearing filed under RCW 34.05.320 that interested parti -----/

may comment on proposed rules by these means. If the

agency chooses to receive comments by these means. the

notice of hearing sh~1 provide instructions for making such

comments. including. but not limited to. appropriate telephone numbers to be used; the date and time by which

comments must be received; required methods to verify the

receipt and authenticity of the comments; and any limitations

on the number of pages for telefacsimile ~ansmission

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 m8de

in accordance with the agency's instructions.

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

a presiding officer designated by the agency head shall

preside at the rule-making hearing. Rule-making hearings

shall be open to the public. The agency shall cause a record

to be made of the hearing by stenographic. mechanical. or

electronic means. Unless the agency head presides or is

present at substantially all the hearings. the presiding official

shall prepare a memorandum for consideration by the agency

head. summarizing the contents of the presentationsmade at

the rule-making bearina. The summarizing memorandum is

a public document and sbalJbe made available to any person

in accordance with chapter 42.17 RCW.

(5) Rule-making bearings are legislative in cbaracta' and

shall be reasonably conducted by the presiding official

afford interested persons the opportunity to present cmnmen, . Rule-making hearings may be continued to a later time anh__J

place established 00 the record without publication of further

notice under RCW 34.05.320.

(6) Before the adoption of a final rule. an agency shall

prepare a written summary of aU comments received

regarding the proposed rule. and a substantive response to

the comments by category or subject matter. indicating bow

the final rule reflects aseocy consideration of thecomments,

or why it fails to do so. The agency shall provide tbe

written summary and response to any person upon request or

from whom the agency received comment (1994 c 249 § 7;

1992 c 57 § I; 1988 c 288 § 304.]

SeverabUlty-AppUcadoo-l994 e 2049: See DOta followina RCW

34.OS.310.

RCW 34.05.330 Petition for adoption, amendmeot,

repeal-Agency action. Any person may petition an

agency requesting the adoption. amendment, or repeaJ of any

rule. Each agency may prescribe by rule the form for such

petitions and the procedure for their submission. consideration. and disposition. Within sixty days after submission of

. a petition. the agency shall (I) either deny the petition in

writing. stating its reasons for the denial. or (2) initiate rulemaking proceedings in accordance with this chapter. [1988

c 288. § 305; 1967 e 237 § S; 1959 c 234 § 6. Formerly

RCW 34.04.060.]

RCW 34.05335 WIthdrawal 01proposal-TIme

manner of adoption. (I) A.proposed rule may be withdrawn by the proposing aaeDC)' at any time befcn adoption.

(19M)
.. AdmlDlstrative Procedure Act

•

•

•

A withdrawn rule may not be adopted unless it is again

proposed in accordance with RCW 34.0'.320.

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

written and oral submissions. or any memorandum summarizing oral submissions.

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

within one hundred eighty days after publication of the text

as last proposed in the register shall be regarded as withdrawn. An agency maynot thereafter adopt the proposed

rule without refiling it in accordance with RCW 34.05.320.

The code reviser shall give notice of the withdrawal in the .

register.

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

established in the published notice. or such later time

established on the record or by publication in the state

register. [1989 c 175 § 8; 1988 c 288 § 306; 1980 c 186 §

11. Formerly RCW 34.04.048.]

Effeclive dale-1989 c 175: See no«e following RCW 34.05.010.

Severabilily-I980 c 186: See DOte following RCW 34.05.320.

RCW 34.05.340 Variance between proposed and

final rule. (I) Unless it complies with subsection (3) of this

section. an agency may not adopt a rule that is substantially

different from the rule proposed in the published notice of

proposed rule adoption or a supplemental notice in the

proceeding. If an agency contemplates making a substantial

variance from a proposed rule described in a published

notice. it may file a supplemental notice with the code

reviser meeting the requirements of RCW 34.05.320 and

reopen the proceedings for public comment on the proposed

variance. or the agency may withdraw the proposed rule and

commence a new rule-making proceeding to adopt a substantially different rule. If a new rule-making proceeding is

commenced. relevant public comment received regarding the

initial proposed rule shall be considered in the new proceeding.

(2) The following factors shall be considered in determining whether an adopted rule is substantially different

from the proposed rule on which it is based:

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

the adopted nile would have understood that the published

proposed rule would affect his or her interests;

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

or the issues determined in it are substantially different from

the subject or issues involved in the published proposed rule;

and

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

differ from the effects of the published proposed rule.

(3) If the agency. without filing a supplemental notice

under subsection (1) of this section. adopts a rule that varies

in content from the proposed rule. the general subject matter

of the adopted rule must remain the same as the proposed

rule. The agency shall briefly describe any changes. other

than editing changes. and the principal reasons for adopting

the changes. The brief description shall be filed with the

code reviser together with the order of adoption for publication in the state register. Within sixty days of publication of

the adopted rule in the state register. any interested person

may petition the agency to amend any portion of the adopted

rule that is substantially different from the proposed rule.

The petition shall briefly demonstrate how the adopted rule

(1994)

--34.05.335

is substantially different from the proposed rule and shan

contain the text of the petitiOllCl"S proposed amendment For

purposes of the petition. an adopted rule is substantiany

different if the issues determined in the adopted rule differ

from the issues determined in the proposed rule or the

anticipated effects of the adopted rule differ from those of

the proposed rule. If the petition meets the requirements of

this subsection and RCW 34.~.330. the agency shall initiate

rule-making proceedings upon the proposed amendments

within the time provided in RCW 34.05.330. [1989 c 175 t

9; 1988 c 288 t 307.J

Medin date-1m e 175: See llOle foUowma RCW 34.05.010.

RCW 34.05.345 FaUure to live twenty clays notice

of Intended action-Effect. Except for emergency rules

adopted under RCW 34.05.3SO. when twenty days notice of

intended action to adopt. amend. or repeal a rule has not

been published in the state register. as required by RCW

34.05.320. the code reviser shall not publish such rule and

such rule shall not be effective for any purpose. (1988 c

288 § 308; 1967 c 237 § 4. Formerly RCW 34.04.027.J ..,

RCW 34.05.350 Emergency roles and ameD~

(1) If an agency for good cause finds: "'

(a) That immediate adoption, amendment. or repeal of

a rule is necessary for the preservation of the public health.

safety, or general welfare. and that observing the' time

requirements of notice and opportunity to comment;l1pon

adoption of a permanent rule would be contrary to the ~lic . . ~~. interest: or ·-.'·A

(b>' That state or federal law or federal rule or a f@aJ

deadline for state receipt of federal funds requires inunOOiate

adoption of a rule. '-:., .

the agency 'may dispense with those requirements ~t.

amend. or repeal the rule on an emergency basis. 'The

agency's finding and a concise statement of the reasons for

its finding shall be incorporated in the order for adoption of

the emergency rule or amendment filed with the office of the

code reviser under RCW 34.~.380 and with the rulesreview

committee.

(2) An emergency rule adopted under this section takes

effect upon filing with the code reviser. unless a later date

is specified in the order of adoption. and may not remain in

effect for longer than one hundred twenty days after filing.

Identical or substantially similar emergency rules may not be

adopted in sequence unless conditions have changed or the

agency has filed notice of its intent to adopt the rule as a

permanent rule. and is actively undertaking the appropriate

procedures to adopt the rule as a permanent rule. This

section does not relieve any agency from compliance with

any. law requiring that its pennanent rules be approved by

designated persons or bodies before they become effective.

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

person may petition the governor requesting the immediate

repeal of a rule adopted on an emergency basis by any

department listed in RCW 43.17.010. Within seven days

after submission of the petition. the governor shall either

deny the petition in writing, staling his or her reasons for tbe

denial. or order the immediate repeal of the rule. In ruling

on the petition. the governor shaD consider only wbethCc tbe

conditions in subsection (1) of this section were met such

[0. 3405 Po f)

~~'. !

Q !

I
34.05.350 .. Administrative Procedure Ad

that adoption of the rule on an emergency basis was necessary. If the governor orders the repeal of the emergency

rule. any sanction imposed based on that rule is void. This

subsection shall not be construed to prohibit adoption of any

rule as a permanent rule.

(4) In adopting an emergency rule. the agency shall

comply with ·section 4 of this act or provide a written

explanation for its failure to do so. [1994 c 249 1 3; 1989

c t75 § 10; 1988 c 288 § 309; 1981 c 32414; 1977 ex.s. c

240 § 8; 1959 c 234 § 3. Formerly RCW 34.04.030.)

eRnlser's nere: The governor vetoed 1994 e 249 t 4.

SevenbIlUy-Applicalion-l994 e 149: Sec IIOCeS foUowing RCW

34.05.310.

Etreealve date-l989 c 175: Sec noo: foUowing RCW 34.05.010,

Leglslallve amrmatloD-5evenblllty-1981 c 324: See notes

followrng RCW 34.05.010.

Etreealvedaae-:.Severablllty-l977 eu. e 240: SecRCW 34.08.905

and 34.08.910.

RCW 34.05.355 Concise explanatory statement. At

the time it files an adopted rule with the code reviser or

within thirty days thereafter. an agency shall place into the

rule-making file maintained under RCW 34.05.370 a concise

explanatory statement about the rule. identifying (I) the

agency's reasons for adopting the rule. and (2) a description

of any difference 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 change.

[1994 c 249 § 8; 1988 c 288 § 310.J

Sevenbillty-ApplicaLion-l994 e 149: Sec IIOCeS following RCW

34.05.310.

RCW 34.05.360 Order adopting ruJe" contents. The

order of adoption by which each rule is adopted by an

agency shall contain al1 of the following:

( 1) The date the agency adopted the rule;

(2) A concise statement of the purpose of the rule;

(3) A reference to all rules repealed. amended. or

suspended by the rule;

(4) A reference to the, specific statutory or other

authority authorizing adoption of the rule;

(5) Any findings required by any provision of law as a

precondition to adoption or effectiveness of the rule; and

(6) The effective date of the rule if other than that

specified in RCW 34.05.380(2). [1988 c 288 § 31 I.J

RCW 34.05.365 Incorporation by reference. An

agency may incorporate by reference and without publishing

the incorporated matter in full. all or any part of a code.

standard. rule. or regulation that has been adopted by an

agency of the United States. of this state. or of another state.

by a political subdivision of this state. or by a generally

recognized organization or association if incorporation of the

full text in the agency rules would be unduly cumbersome.

expensive. or otherwise inexpedient. The reference in

agency rules shall fully identify the incorporated matter. An

agency may incorporate by reference such matter in its rules

only if the agency. organization. or association originally

issuing that matter makes copies readily available to the

public. The incorporating agency shall have, maintain, and

make available for public inspection a copy of the incorpoleb. 34.os". 101

rated matter. The rule must Stlte where copies of the

incorporated maner are available. (1988 c 288 t 312.)

RCW 34.05.370 Rule-maldDl fOe. (I) Each age£J

shall maintain an official rule-making file for each rule that

it (a) proposes by publication in the state register, or (b)

adopts. The file and materials incorporated by reference

shallbe available for public inspection.

(2) The agency rule-making file shaH contain all of the

following:

(a) Copies of all publications in the state register with

respect to the rule or the proceeding upon which the rule is

based;

(b) Copies of any portions of the aiency's public rulemaking docket containing entries relating to the rule or the

proceeding on which the rule is based;

(c) All written petitions, requests. submissions. and

comments received by the agency and all other written

material regarded by the agency as imponant to adoption of

the rule or the proceeding on which the rule is based;

(d) Any official transcript of oral presentations made in

the proceeding on which the rule is based or. if not transcribed, any tape recording or stenographic record of them.

and any memorandum prepared by a presiding official

summarizing the contents of those presentations;

(e) The concise explanatory statement required by RCW

34.05.355;

(0 All petitions for exceptions to, amendment of, or

repeal or suspension of, the rule;

(g) Citations to data. factual information, studies'Lor

reports on which the agency relies in the adoption of ')

rule, indicating where such data, factual information. studi >__ /

or reports are available for review by the public;

(h) The written summary and response required by

RCW 34.05.325(6); and '

(i) Any other material placed in the file by the agency.

(3) Internal agency documents arc exempt from inclusion in the rule-making file under subsection (2) of this

section to the extent they constibJte preliminary drafts, notes,

recommendations, and intra-agency memoranda in which

opinions arc expressed or policiesformulated or recommended, except that a specific document is not exempt from

inclusion when it is publicly cited by an agency in connection with its decision.

(4) Upon judicial review, the file required by this

section constitutes the official agency rule-making file with

respect to that rule. Unless otherwise required by another

provision of law, the official agency rule-making file need

not be the exclusive basis for agency action on that rule.

[1994 c 249 § 2; 1988 c 288 1 313.)

SeverabUlty-Applic:adoo-l994 e 149:, Sec DOles foUowing RCW

34.05.310.

RCW 34.05.375 Substaotlal compllaoce with

procedures. No rule proposed afterJuly I, 1989, is valid

unless it is adopted in substantial compliance with RCW

34.05.310 through 34.05.395. Inadvertent failure to mail

notice of a proposed rule adoption to any pCnon as required) by RCW 34.05.320(3) does DOt invalidate a rule. No actio(

based upon this section may be maintained to contest the

(1,">

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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 revlserRegister-Effective dates. (1) Each agency shall file in the

office of the code reviser a certified copy of all rules it

adopts. except for rules contained in tariffs filed with or

published by the Washington utilities and transportation

commission. The code reviser shall place upon each rule a

notation of the time and date of filing and shall keep a

permanent register of filed rules open to public inspection.

In filing a rule. each agency shall use the standard form

prescribed for this purpose by the code reviser.

(2) Emergency rules adopted under RCW 34.05.350

become effective upon filing unless a later date is specified

in the order of adoption. All other rules become effective

upon the expiration 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 § II; 1988

c 288 § 315; 1987 c 505 § 17; 1980 c 87 § ll; 1959c 234

§ 4. Formerly RCW 34.04.04O.J

Effective date-1989 c 175: See note following RCW34.0S.010.

RCW 34.05.385 Rules for rulemaking. 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; 1%7 c 237 §

13. Formerly RCW 34.04.055.]

RCW 34.05.390 Style, format, and numberingAgency compliance. After the.rules of an agency have been

published by the code reviser:

(I) All agency orders amending or rescinding such rules,

or creating new rules. shall be formulated in accordance with

the style. format, and numbering system of the Washington

Administrative Code;

(2) Any subsequent printing or reprinting of such rules

shall be printed in the style and format (including the

numbering system) of such code; and

(3) Amendments of previously adopted rules shall

incorporate any editorial corrections made by the code

(1994)

reviser. (1988 c 288 I 317; 1967 c 237 I 14. Formerly

RCW 34.04.057.J

RCW 34.05.395 Format and style of amendatory

and new sectlons-Fallure to comply. (1) Rules proposed

or adopted by an agency pursuant to this chapter that amend

existing sections of the administrative code shall have the

words which are amendatory to such existing sections

underlined. Any matter to be deleted from an existing

section shall be indicated by setting such matter forth in fuji.

. enclosed by double parentheses, and such deleted matter

shall be lined out with hyphens. A new section shall be

designated "NEW SEC110N" in upper ease type and such

designation shall be underlined. but the complete text of the

section shall not be underlined. No rule may be forwarded

by any agency to the code reviser. nor may the code reviser

accept for filing any rule unless the fonnat of such rule is in

compliance with the provisions of this section.

(2) Once the rule has been formally adopted by the

agency the code reviser need not. except with regard to the

register published pursuant to RCW 34.05.210(3), inelude the

items enumerated in subsection (I) of this sectionin 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 (I) of this section shall in all respects be ineffectual. and shall not be shown in)subsequent publications or

codifications of that section unless the ineffectual portion of

the rule is clearly distinguished and an explanatory 'DOte is

appended thereto by the code reviser in aceordanee:~ith

RCW 34.05.210. [1988 c 288 § 318; 1980 e 186 § 14;1m

c 19 § 1. Formerly RCW 34.04.058.] :L~~.'

SeverabWty-l980 e 186: See oocefoUowing RCW 34.OS.3~.

PART IV

ADJUDICATIVE PROCEEDINGS

RCW 34.05.410 Application or Part IV. (1) Adjudicative proceedings are governed by RCW 34.05.413 through

34.05.476. except as otherwise provided:

(a) By a rule that adopts the procedures for brief

adjudicative proceedingsin accordance with the standards

provided in RCW 34.05.482 for those proceedings;

(b) By RCW 34.05.479 pertaining to emergency

adjudicative proceedings; or

(c) By RCW 34.05.240 pertaining to declaratory

proceedings.

(2) RCW 34.05.410 through 34.05.494 do not apply to

rule-making proceedings unless another statute expressly so

requires. [1988 c 288 § 401.]

RCW 34.05.413 Coomiencement-WbeD required.

(1) Within the scope of its authority. an agency may commence an adjudicative proceeding at any time with respect

to a matter within the agency's jurisdiction.

(2) When required by law or constitutioual right. and

upon the timely application of any person. an agency shall

commence an adjudicative proceeding.

(3) An agency may provide forms for and. by rule, may

provide procedures for filing an application for an adjudiealive proceeding, An agency may require by rule that an

(0. 3415 p. 111

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34.G5.413 - Administrative Procedure Act

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application be in writing and that it be filed at a specific

address, in a specified manner. and within specified time

limits. The agency shall allow at least twenty days to apply

for an adjudicative proceeding from the time notice is given

of the opponunity to file such an application.

(4) If an agency is required to hold an adjudicative

proceeding. an application for an agency to enter an order

includes an application for the agency to conduct appropriate

adjudicative proceedings. whether or not the applicant

expressly requests those proceedings.

(5) An adjudicative proceeding commences when the

agency or a presiding officer notifies a party that a

prehearing conference. hearing, or other stage of an adjudicative proceeding will be conducted. [1989 c 175 § 12; 1988

c 288 § 402.)

Ell'ectlYf date-1989 c: 175: Sec note following RCW 34.OS.010.

RCW 34.05.416 Decision not toconduct an adJudication. If an agency decides not to conduct an adjudicative

proceeding in response to an application. the agency shall

furnish the applicant a copy of its decision in writing. with

a brief statement of the agency's reasons and of any administrative review available to the applicant. [1988 c 288 §

403.)

RCW 34.05.419 Agency action on applications for

adjudication. After receipt of an application for an adjudicative proceeding, other than a declaratory order. an agency

shall proceed as fol1ows:

(I) Except in situations governed by subsection (2) or

(3) of this section. within ninety days after receipt of the

application or of the response to a timely request made by

the agency under subsection (2) of this section. the agency

shall do one of the fol1owing:

(a) Approve or deny the application. in whole or in part.

on the basis of brief or emergency adjudicative proceedings.

if those proceedings are available under this chapter for

disposition of the matter,

(b) Commence an adjudicative proceeding in accordance

with this chapter; or

(c) Dispose of the application in accordance with RCW

34.05.416;' .

(2) Within thirty days after receipt of the application.

the agency shall examine the application. notify the applicant

of any obvious errors or omissions. request any additional

information the agency wishes to obtain and is permitted by

law to require, and notify the applicant of the name, mailing

address. and telephone number of an office that may be

contacted regarding the application;

(3) If the application seeks relief that is not available

when the application is filed but may be available in the

future. the agency may proceed to make a determination of

eligibility within the time limits provided in subsection (I)

of this section. If the agency determines that the applicant

is eligible. the agency shall maintain the application on the

agency's list of eligible applicants as provided by law and.

upon request. shall notify the applicant of the status of the

application. [1988 c 288 § 404.]

RCW 34.05.412 Rate changes, licenses. (1) Unless

_ . _ otherwise provided by law: (a) Applications for rate changes

(Ch. 34.0S-tJ. 111

and uncontested applications for licenses may. in the

agency's discretion. be conducted as adjudicative proceedings; (b) applications for licenses that are contested br\

person having standing to contest under the law and rcvilJ

of denials of applications for licenses or rate changes shaU

be conducted as adjudicative proceedings; and (c) an agency

may not revoke, suspend. or modify a license unless the

agency gives notice of an opponunity for an appropriate

adjudicative proceeding in accordance with this chapter or

other statute.

(2) An &Beney with authority to grant or deny a professional or occupational license shaJl notify an applicant for a new or renewal license notlatee than twenty days prior to

the date of the examination required for that license of any

grounds for denial of the license which arc based on specific

information disclosed in the application submitted to the

agency. The &Bency 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 lI8ency fails to

give the notification prior to the examination-and the

applicant is denied licensure. the examination fee shall be

refunded to the applicant. If the applicant takesthe examination. the agency shall notify the applicant of the result

(3) When a licensee has made timely and sufficient

application for the renewal of a license or a new license with

reference to any acti vity of a continuing nature, an existing

full. temporary. or provisional license does not expire until

the application bas been finally determined by the lI8eDCY.

and, in case the application is denied or the terms of the new

.Iicense limited. until the last day for seeking review of tbe_

agency order or a Iatel' date fixed by order of Ibe ~viewil} court. . -"

(4) If the agency finds that public health. safety. or

welfare imperatively requires emergency action. and

rates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for

revocation or other action. These proceedings shall be

promptly instituted and determined. [1989 e 175 § 13; 1988

c 288 § 405; 1980 c 33 § I; 1967 c 237 § 8. Formerly

RCW 34.04.170.]

Elffdlve at-1989 e 175: Sec IIOtC foUowiDi RCW 34.OS.010.

RCW 34.0S.415 Pnsiding oIJlcen..-Dbquatioo,

substitution. (1) Except as provided in subsection (2) of

this section. in the discretion of the agency head, the

presiding officer in an administrative bearing sbalI be:

(8) The agency head or one or more members of the

agency head;

(b) If the agency has statutory authority to do so. a

person other than file agency head or an administrative law

judge designated by the agency head to make the final

decision and enter the final order; or

(c) One or more administrative law judges assigned by

the office of administrative hearings in accordance with

chapter 34.12 RCW.

(2) An agency expressly exempted under RCW

34.12.020(4) or other statute from the provisions of chapter

34.12 RCW or an institution of higher education sha!'\

designate a presiding officer as provided by rules adopted t )

the agency. "'---

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AdmlnLm'adve-Procedure Act

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(3) Any individual serving or designated to serve alone

or with others as presiding officer is subject to disqualification for bias. prejudice. interest. or any other cause provided

in this chapter or for which a judge is disqualified.

(4) Any party may petition for the disqualification of an

individual promptly after receipt of notice indicating that the

individual will preside or. if later. promptJy upon discovering

facts establishing grounds for disqualification.

(5) The individual whose disqualification is requested

shall determine whether to grant the petition. stating facts

and reasons for the determination.

(6) When the presiding officer is an administrative law

judge. the provisions. of this section regarding disqualification for cause are in addition to the motion of prejudice

available under RCW 34.12.050.

(7) If a substitute is required for an individual who

becomes unavailable as a result of disqualification or any

other reason. the substitute must be appointed by the

appropriate appointing authority.

(8) Any action taken by a duly appointed substitute for

an unavailable individual is as effective as if taken by the

unavailable individual. [1989 c 175 § 14; 1988 c 288 §

406.)

ElTective date-1989 c 175: See nOle following RCW 34.05.010.

RCW 34.05.428 Representation. (l) A party to an

adjudicative proceeding may participate personally or. if the

party is a corporation or other artificial 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.J

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

RCW 34.05.431 Conference-Procedure and

participation. (I) Agencies may hold prehearing or other

conferences for the settlement or simplification of issues.

Every agency shall by rule describe the conditions under

which and the manner in which conferences are to be held.

(2) In the discretion of the presiding officer, and where

the rights of the parties will not be prejudiced thereby, all or

part of the conference may be conducted by telephone,

television. or other electronic means. Each participant in the

conference must have an opportunity to participate effectively in. to hear, and, if technically and economically feasible.

to see the entire proceeding while it is taking place. [1988

c 288 § 408.J

RCW 34.05.434 Notice of hearing. (l) The agency

or the office of administrative hearings shall set the time and

place of the hearing and give not less than seven days

advance written notice to all parties and to all persons who

have filed written petitions to intervene in the matter.

(2) The notice shall include:

(a) Unless otherwise ordered by the presiding 'officer,

the names and mailing addresses of aIt parties to whom

notice is being given arid. if known. thenames and addresses

of their representatives;

(1994)

_. --34.05A25-

(b) If the agency intends to appear, the mailing address

and telephone number of the office dcsignaIcd to represent

the agency in the proceeding;

(c) The official file or other reference number and the

name of the proceeding;

(d) The name, official title, mailing address, and

telephone number of the presiding officer, if known;

(e) A statement of the time, place and nature of the

proceeding;

(f) A statement of the legal authority and jurisdiction

under which the hearing is to be held;

(g) A reference to the particular sections of the statutes

and rules involved;

(h) A short and plain statement of the matters asserted

by the agency; and

(i) A statement that a party who fails to attend or

participate in a hearing or other stage of an adjudicative

proceeding may be held in default in accordance with this

chapter.

(3) If the agency is unable to state the matters required

by subsection (2)(h) of this section at the time the notice is

served.tbe 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, 'Ibemlfter,

upon request. a more definite and detailed statement shaU be

furnished.

(4) Tbe notice may include any other matters considered

desirable by the agency. [1988 c 288 § 409; 1980 c 3111; .

1967 c 237 § 9; 1959 c 23419. Formerly,I{~W

34.04.090.) I~.;

RCW 34;05.437 Pleadings, briefs, motioos, sentee.

(1) The presiding officer, at appropriate stages of the

proceedings, shall give all parties full opportunity to submit

and respond to pleadings, motions, objections. and offers of

settlemenl".

(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 tinal orders.

(3) A party that files a pleading, brief, or other paper

with the agency or presiding officer shall serve copies on all

other parties, unless a different procedure is specified by

agency rule. [1988 c 288 § 410.J

RCW 34.05.440 Default. (I) Failure of a party to file

an application for an adjudicative proceeding within the time

limit or limits established by statute or agency rule constitutes a default and results in the loss of that party's right to

an adjudicative proceeding, and the agCDC)' may proceed to

resolve the case without further notice to, or bearing for the

benefit of, that party, except that any default or other

dispositive order affecting that party shall be served upon

him or her or upon his or her attorney. if any.

(2) If a party fails to attend or participate in a hearing

or other stage of an adjudicative proceeding, other than

failing to timely request an adjudicative proceeding as set

out in subsection (1) of this section. the presiding officer

may serve upon all parties a default or other dispositive

rQ.)415 Po 13)

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. -~. - '.~ .--~--_._-~ -,. - . -~. .~ .-' - ~-,--;' ...--.-..'~". . _..... ... •. ..,---~ ..: ..-.,.~.;-"."::;'-';'--:-':;-.-.-;-:-.~

t'

34.05.440 .-Admlnlstndve Procedure Ad

order. which shall include a statement of the grounds for the

order.

(3) Within seven days after service of a.default order

under subsection (2) of this section. or such longer period as

provided by agency rule. the party against whom it was

entered may file a written motion requesting that the order

be vacated. and stating the grounds relied upon. During the

time within which a pany may file a written motion under

this subsection. the presiding officer may adjourn the

proceedings or conduct them without the participation of that

party. having due regard for the interests of justice and the

orderly and prompt conduct of the proceedings. [1989 c 175

§ 16; 1988 c 288 § 411.]

Effective dale-1989 c 175: Sec note followine RCW 34.~.OIO.

RCW 34.05.443 Intervention. (1) The presiding

officer may grant a petition for intervention at any time.

upon determining that the petitioner qualifies as an intervenor under any provision of law and that the intervention

sought is in the interests of justice and will not impair the

orderly and prompt conduct of the proceedings.

(2) If a petitioner qualifies for intervention. the presiding

officer may impose conditions upon the intervenor's participation in the proceedings. either at the time that intervention

is granted or at any subsequent time. Conditions may

include:

(a) Limiting the intervenor's participation to designated

issues in which the intervenor has a particular interest

demonstrated by the petition; and

(b) Limiting the intervenor's use of discovery. crossexamination. and other procedures so as to promote the

orderly and prompt conduct of the proceedings; and

(c) Requiring two or more intervenors to combine their

presentations of evidence and argument, cross-examination.

discovery. and other participation in the proceedings.

(3) The presiding officer shall timely grant or deny each

pending petition for intervention. specifying any conditions.

and briefly stating the reasons for the order. The presiding

officer may modify the order at any time. stating the reasons

for the modification. The presiding officer shall promptly

give notice of the decision granting. denying. or modifying

intervention to the petitioner for intervention and to all

parties. [1988 c 288 § 412.]

RCW 34.05.446 Subpoenas, discovery, and 'protective orders. (1) The presiding officer may issue subpoenas

, and may enter protective orders. A subpoena may be issued

with like effect by the agency or the attorney of record in

whose behalf the witness is required to appear.

(2) An agency may by rule determine whether or not

discovery is to be available in adjudicative proceedings and.

if so. which forms of discovery may be used.

(3) Except as otherwise provided by agency rules. the

presiding officer may decide whether to permit the taking of

depositions. the requesting of admissions. and all other

procedures authorized by rules 26 through 36 of the superior

court civil 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) Whetherall parties are represented

_______ by counsel; (b) whether undue expense or delay in bringing --- ~------- -- - - -- -

[eb. J4.GS-p. 141

the case to hearing win result; (c) whed'ier the disc:overy will

promote the orderly and prompt condlM:t of the proceeding;

and (d) whether the interests of justic:e will be promoced.0

(4) Discovery orders and protective orders entered

this section may be enforced under the provisions of this

chapter on civil enforcement of agency action.

(5) Subpoenas issued under thissection may be enfore:cd

under RCW 34.05.588(1).

(6) The subpoena powers created by this section shall be

state-wide in effect.

(7) Witnesses in an adjudicatory proceeding shall be

paid the same fees and allowances. in the same manner and

under the same conditions. asprovidcd for witoesses ill 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 allowance for meals and lodging in like manner as is

provided in RCW 5.56.010 as to courts. The person'

initiating an adjudicative proceeding or the party requesting

issuance of a subpoena shall pay the fees and aDowances and

the cost of producing records required to be produced by

subpoena. (1989 c 175 § 17; 1988e 288 § 413; 1967 e 237

§ 10. Fonnerly RCW 34.04.105.)

EO'ectI.-e date-1989 e 175: Sec Dote fol!owine RCW34.05.010.

RCW 34.05.449 Procedure at bearing. (1) The

presiding officer shall regu1at.e the course of the pnn:edings.

in confonnity with applicable rules and the prebcaring order.

if any.

(2) To the extent necessary for full disclosure of all

relevant facts and issues. the presiding officer sbalJ afford to.....-.....,

all parties the opportunity to respond, present evideocc an( !

argument, conduct cross-examination. and submit rebuttai·---,~

evidence. except as restricted by a limitedgrant of interveo- .

tion or by the prehearing order.

(3) In the discretion of the presiding officer. and wbere

the rights of the parties will not be prejudiced thereby, all or

part of the hearing may be conducted by telephone, television. or other electronic means. Each party in the hearing

must have an opportunity to participate effectivel)' in, to

hear. and, if technically and economically feasible, to see the

entire proceeding while it is taking place.

(4) The presiding officer shall cause the bearing to be

recorded by a method chosen by the agency. The agency is

not required. at its expense. to prepare a transcript. unless

required to do so by a provision of law. AJJy party, at the

party's expense, may cause a reporter approved by the

agency to prepare a transcript from the agency's record. or

cause additional recordings to be made during the hearing if

the making of the additional recording does Dot cause

distraction or disruption.

(5) The hearing is open to public observaIioo, exceptfor

the parts that the presiding officer states to be closed under

a provision of law expressly authorizing closure or UDder a

protective order entered by the presiding officer pursuant to

applicable rules. A presiding officer may orderthe exclusion of witnesses upon a showing of good cause. To the

extent that the hearing is conducted b)' telephone. televisioo,

or other electronic means. and is DOt closed. the aVai1ability~

of public observation is satisfied by giving memben of ~)

public an opportunity. at reasonable times, to bear or inspect

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Administrative Procedure Act

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the agency's record. and to inspect any transcript obtained by

the agency, [1989c 17S§ 18: 1988c288 1 414.)

Effective date-1m e 175: See note followina RCW 34,~,OIO,

RCW 34.05.451 Rules of evidence-Cross-examlnalion. (I) Evidence. including hearsay evidence. is admissible if in the judgment of the presiding officer it is the kind

of evidence on which reasonably prudent persons are

accustomed to rely in the conduct of their affairs. The

presiding officer shall exclude evidence that is excludable on

constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state. The

presiding officer may exclude evidence that is irrelevant.

immaterial. or unduly repetitious.

(2) If not inconsistent with subsection (1) of this section.

the presiding officer shall refer to the Washington Rules of

Evidence as guidelines for evidentiary rulings,

(3) All testimony of parties and witnesses shall be made

under oath or affirmation.

(4) Documentary evidence may be received in the form

of copies or excerpts. or by incorporation by reference.

~5) Official notice may be taken of (a) any judicially

cognizable facts. (b) technical or scientific facts within the

agency's specialized knowledge. and (c) codes or standards

that have been adopted by an agency of the United States. of

this state or of another state. or by a nationally recognized

organization or association. Parties shall be notified either

before or during hearing. or by reference in preliminary

reports or otherwise. of the material so noticed and the

sources thereof. including any staff memoranda and data, and

they shall be afforded an opportunity to contest the facts and

material so noticed. A party proposing that official notice be

taken may be required to produce a copy of the material to

be noticed, [1988 c 288 § 415; 1959 c 234 § 10. Formerly

RCW 34.04.100.)

RCW 34.05.455 Ex parte communications. (I) A

presiding officer may not communicate. directly or indirectly, regarding any issue in the proceeding other than communications necessary to procedural aspects of maintaining an

orderly process. with any person employed by the agency

without notice and opportunity for all parties to participate.

except as provided in this subsection:

(a) Where the ultimate legal authority of an agency is

vested in a multimember body, and where that body presides

at an adjudication. members of the body may communicate

with one another regarding the proceeding;

(b) Any presiding officer may receive aid from legal

counsel. or from staff assistants who are subject to the

presiding officer's supervision; and

(c) Presiding officers may communicate with other

employees or consultants of the agency who have not

participated in the proceeding in any manner, and who are

not engaged in any investigative or prosecutorial functions

in the same or a factually related case.

(d) This subsection does not apply to communications

required for the disposition of ex parte matters specifically

authorized by statute.

(2) Unless required for the disposition of ex parte

matters specifically authorized by statute or unless necessary

to procedural aspects of maintaining an orderly process. a

(1994)

presiding officer may not communicate. directly or indirectly. regarding any issue in the proceedin,. with any person

not employed by the agency who has a direct or indirect

interest in the outcome of the proceeding. without notice and

opportunity for all panies to participate.

(3) Unless necessary to procedural aspects of maintaining an orderly process. persons 10 whom a presiding officer

may not communicate under subsections (I) and (2) of this

section may not conununicar.e with presiding officers without

notice and opportunity for all parties to participate.

(4) If. beforeserving as presiding officer in an adjudicative proceeding, a person receives an ex parte communication of a type that could not property be received while

serving. the person. promptly after starting to serve, shall

disclose the communication in the manner prescribed in

subsection (5) of this section.

, (5) A presiding officer who receives an ex parte

communication in violation of this section shall place on the

record of the pending matter all written communications

received, all wriacn responses to the communications, and a

memorandum stating the substance of all oral communications received. all responses made. and the identity of each

person from whom the presiding officer received an ex parte

communication. The presiding officer shall advise all parties

that these matters have been placed on the record. Upon

request made within ten days after notice of the ex parte

communication. any party desiring to rebut the communication shall be allowed to place a written rebuttal statement on

the record. Portions of the record pertaining to ex. parte

communications or rebuttal statements do not constitute

evidence of any fact at issue in the matter unless a'pany

moves the admission of any portion of the recor'd"for

purposes of establishing a fact at issue and that parti'tin 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

p~esidi~g officer who receives the communication may be

disqualified. and the portions of the record pertaining y> the

communication may be sealed by protective order. ~:

(7) The agency shall, and any party may, report any

v~ol~ti?n of this ~tion to a~propriate authorities for any

disciplinary proceedings provided by law. In addition. each

~genc~ by rule may provide for appropriate sanctions,

including default. for any violations of this section. [1988

c 288 § 416.)

RCW 34.05.458 Separatlon or Iunctfons, (I) A

person who has served as investigator. prosecutor. or

advocate in an adjudicative proceeding or in its

preadjudicative stage. or one who is subject to the authority.

direction, or discretion of sucb a person. may not serve as a

presiding officer in the same proceeding.

(2) A person, including an agency bead. who has

participated in a determination of probable cause or other

equivalent preliminary determination in an adjudicative

proceeding may serve as presiding orrtea' or assist or advise

a presiding officer in the same proceeding unless a party

demonstrates grounds for disqualification in accordance with

RCW 34.05.425.

(3) A person may serve as presidioS officer at successive stages of the same adjudicative proceeding unless a

[CIa.34.15 P. 15]

..:,:
34.05.458 . -Admlnlstrad\'e Procedure Act

· - '."'f>"

party demonstrates grounds for disqualification in accordance

with RCW 34.05.425. [1988 c 288 t 417.)

RCW 34.05.461 Entry or orden. (I) Except as

provided in subsection (2) of this section:

(a) If the presiding officer is the agency head or one or

more members of the agency head. the presiding officer may

enter an initial order if further review is available within the

agency. or a final order if further review is not available;

(b) If the presiding officer is a person designated by the

agency to make the final decision and enter the final order.

the presiding officer shall enter a final order; and

(c) If the presiding officer is one or more administrative

law judges. the presiding officer shall enter an initial order.

(2) With respect to agencies exempt from chapter 34.12

RCW or an institution of higher education. the presiding

officer shall transmit a full and complete record of the

proceedings. including such comments upon demeanor of

witnesses as the presiding officer deems relevant. to each

agency official who is to enter a final or initial order after

considering the record and evidence so transmitted.

(3) Initial and final orders shall include a statement of

findings and conclusions. and the reasons and basis therefor.

on all the material issues of fact, law, or discretion presented

on the record. including the remedy or sanction and, if

applicable. the action taken on a petition for a stay of

effectiveness. Any findings based substantially on credibility

of evidence or demeanor of witnesses shall be so identified.

Findings set fonh in language that is essentially a repetition

or paraphrase of the relevant provision of law shall be

accompanied by a concise and explicit statement of the

underlying evidence of record to support the findings. The

order shall also include a statement of the available procedures and time limits for seeking reconsideration or other

administrative relief. An initial order shall include a

statement of any circumstances under which the initial order,

without funher notice. may become a final order.

(4) Findings of fact shall be based exclusively on the

evidence of record in the adjudicative proceeding and on

matters officially noticed in that proceeding. Findings shall

be based on the kind of evidence on which reasonably

prudent persons are accustomed to rely in the conduct of

their affairs. Findings may be based on such evidence' even

if it would be inadmissible in a civil trial. However, the

presiding officer shall not base a finding exclusively on such

inadmissible evidence unless the presiding officer determines

that doing so would not unduly abridge the parties' opportunities to confront witnesses and rebut evidence. The basis

for this determination shall appear in the order.

(5) Where it bears on the issues presented. the agency's

experience. technical competency, and specialized knowledge

may be used in the evaluation of evidence.

(6) If a person serving or designated to serve as presiding officer becomes unavailable for any reason before entry

of the order, a substitute presiding officer shall be.appointed

as provided in RCW 34.05.425. The substitute presiding

officer shall use any existing record and may conduct any

further proceedings appropriate in the-interests of justice.

(7) The presiding officer may allow the parties a

designated time after conclusion of the hearing for the

submission of memos, briefs. or proposed findings.

(eb. J4.o5-tJ, 16]

(8) Initial or final orders shall be served in writing

within ninety days after conclusion of the bearing or after

submission of memos. briefs. or proposed findings i(---""'-,

accordance with subsection (7) of this section unless thitJ

period is waived or extended for good cause shown.

(9) The presiding officer shall cause copies of the order

to be served on each party and the aaency. [1989 e 175 t

19; 1988 c 288 § 418.)

Etl'eam dat_l989 c 115: SeeDOle roUowiJl& RCW 34.05.010.

RCW 34.05.464 Review of initial orden. (I) As

authorized by law. an aaeocy may by rule povidc that initial

orders in specified classes of cases may become final

without further agency action unless. within a specified

period, (a) the agency head upon its own motion determines

that the initial order should be reviewed, or (b) a party to the

proceedings files a petition for administrative review of the

initial order. Upon occurrence of either event, notice shall

tie given to all parties to the proceeding.

(2) As authorized by law, an agency head may appoint

a person to review initial orders and to prepare and enter

final agency orders.

(3) RCW 34.05.425 and 34.05.455 apply to any person

reviewing an initial order on behalf of an agency as part of

the decision process, and to persons communicating with

them, to the same extent that it is applicable to presiding

officers.

(4) The officer reviewing the initial order (mclud.ing the

agency head reviewing an initial order) is. for the pwposes

of this chapter, termed the reviewing officer. The reviewing~

officer shall exercise all the decision-making powerthat th( '';

reviewing officer would have bad to decide and enter th~j

final order had the reviewing officer presided over the

hearing, except to the extent that the issues subjectto review

are limited by a provision of law or by the reviewing officer

upon notice to all the parties. In reviewing findings of fact

by presiding officers, the reviewing officers sbal1 give due

regard to the presiding officer's opportunity to observe the

witnesses.

(5) The reviewing officer shall personally consider the

whole record or such portions of it as may be cited by the

parties.

(6) The reviewing officer shall afford each party an

opportunity to present written argument and may afford each

party an opportunity to present oral argumenL .

(7) The reviewing officer shall enter a final order

disposing of the proceeding or remand the matter for further

proceedings. with instructions to the presiding officer who

entered the initial order. Upon remanding a matter, the

reviewing officer shall order such temporary relief as is

authorized and appropriate.

(8) A final order shall include. or incorporate by

reference to the initial order. all matters required by RCW

34.05.461(3).

(9) The reviewing officer shall cause copies of the final

order or order remanding the matter for further procCedings

to be served upoo each party. [1989 e 175 t 20; 1988 c 288

§ 419.] 0

FJrectlft aa.-ltD e 115: See IIOIie roDowiDa RCW 34.05.010.

o .
_Administrative Procedure Ad 34.os.467

•

•

•

RCW 34.05.467 Stay. A party may submit to the

presiding or reviewing officer. as is appropriate to the stage

of the proceeding. a petition for stay of effectiveness of a

final order within ten days of its service unless otherwise

provided by statute or stated in the final order. Disposition

of the petition for stay shall be made by the presiding

officer. reviewing officer. or agency head as provided by

agency rule. Disposition may be made either before or after

the effective date of the final order. Disposition denying a

stay is not subject to judicial review. [1988 c 288 § 420.)

RCW 34.05.470 Reconsideration. (1) Within ten

days of the service of a final order. any party may file a

petition for reconsideration. stating the specific grounds upon

which relief is requested. The place of filing and other

procedures. if any. shall be specified by agency rule.

(2) No petition for reconsideration may stay the effectiveness of an order.

(3) If a petition for reconsideration is timely filed. and

the petitioner has complied with the agency's procedural

rules for reconsideration. if any. the time for filing a petition

for judicial review does not commence until the agency

disposes of the petition for reconsideration. The agency is

deemed to have denied the petition for reconsideration if.

within twenty days from the date the petition is filed. the

agency does not either: (a) Dispose of the petition; or (b)

serve the parties with a written notice specifying the date by

which it will act on the petition.

(4) Unless the petition for reconsideration is deemed

denied under subsection (3) of this section. the petition shall

be disposed of by the same person or persons who entered

the order. if reasonably available. TIle 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.J

Effective date-l989 e 175: See nOle foUowing RCW 34.05.010.

RCW 34.05.473 Effectiveness ororders. (1) Unless

a later date is stated in an order or a stay is granted. an order

is effecti ve when entered. but:

(a) A party may not be required to comply with a final

order unless the party has been served with or has actual

knowledge of the final order;

(b) A nonparty may not be required to comply with a

final order unless the agency has made the final order

available for public inspection and copying or the nonparty

has actual knowledge of the final order;

(c) For purposes of determining time limits for further

administrative procedure or for judicial review. the determinative date is the date of service of the order.

(2) Unless a later date is stated in the initial order or a

stay is granted. the time when an initial order becomes a

final order in accordance with RCW 34.05.461 is determined

as follows:

(1994)

(a) When the initial order is entered. if administrative

review is unavailable; or

(b) When the agency head with such authority enters an

order stating, after a petition for administrative review has

been filed, that review will not be exercised.

(3) This section does not preclude an agency from

taking immediate action to protect the public interest in

accordance with RCW 34.05.479. [1989 c 175 f 22; 1988

c 288 § 422.J

Effective date-1m e 175: See DOle foUowin& RCW 34.OS.010.

RCW 34.05.476 Aaeaq record. (1) An agency shall

maintain an official record of each adjudicative proceeding

under this chapter. .

(2) The agency record shaH include:

(a) Notices of all proceedings;

(b) Any prehearing order,

(c) Any motions. pleadings, briefs. petitions. requests,

and intermediate rulings;

(d) Evidence received or considered;

(e) A statement of matters officially noticed;

(f) Proffers of proof and objections and rulings thereon;

(g) Proposed findings, requested orders, and exceptions;

(h) The recording prepared for the presiding om&!- at

the hearing, together with any transcript of all or panof the

hearing considered before final disposition of the proceeding;

(i) Any final order, initial order, or order on reconsideration;~.

G> Staff memoranda or data submitted to the preSi4ing

officer, unless prepared and submitted by personal assiS~ts

and not inconsistent with RCW 34.05.455; and '."

(k) Matters placed on the record after an exp:~e communication. -: "

(3) Except to the extent that this chapter or an~ther

statute provides otherwise. the agency record constitutes the

exclusive basis for agency action in adjudicative proceedings

under this chapter and for judicial review of adjudicative

proceedings. [1988 c 288 § 423.J

RCW 34.05.479 Emergency adjudicative proc:eecsiDgs. (1) Unless otherwise provided by law, an agency may

use emergency adjudicative proceedings in a situation

involving an immediate danger to the public health. safety,

or welfare requiring immediate agency action.

(2) The agency may take only such action as is necessary to prevent or avoid the immediate danger to the public

health, safety, or welfare that justifies use of emergency

adjudication. .

(3) The agency shall enter an order, including a brief

statement of findings of fact. conclusions of law, and policy

reasons for the decision if it is an exercise of the agency's

discretion, to justify the determination of an immediate

danger and· the agency's decision to take the specific action.

(4) The agency shall give such notice as is practicable

to persons who are required to comply with the order. The

order is effective.when entered.

(5) After entering an order under this section, the

agency shall proceed as quickly as feasible to complete any

proceedings that would be required if the matter did not

involve an immediate danser.

[Q. J4.I5-ia. 11]

'~J.I ."
34.05.479 Admln1m'atlve Procedure Ad

(6) The agency record consists of any documents

regarding the matter that were considered or prepared by the

agency. The agency shall maintain these documents as its

official record.

(7) Unless otherwise required by a provision of law. the

agency record need not constitute the exclusive basis for

agency action in emergency adjudicative proceedings or for

judicial review thereof.

(8) This section shall not apply to agency action taken

pursuant to a provision of law that expressly authorizes the

agency to issue a cease and desist order. The agency may

proceed. alternatively, under that independent authority.

[1988 c 288 § 424.) .

Designation of persons for ~merg~ncy adjudications by .tilitits and

transportation cOlMlissiOll: RCW BO.OJ.(J6().

RCW 34.05.482 Briel adjudicative proceedingsApplicability. (I) An agency may use brief adjudicative

proceedings if:

(a) The use of those proceedings in the circumstances

does not violate any provision of law;

(b) The protection of the public interest does not require

the agency to give notice and an opportunity to participate

to persons other than the parties;

(c) The matter is entirely within one or more categories

for which the agency by rule has adopted this section and

RCW 34.05.485 through 34.05.494; and

(d) The issue and interests involved in the controversy

do not warrant use of the procedures of RCW 34.05.413

through 34.05.479.

. (2) Brief adjudicative proceedings are not authorized for

public assistance and food stamp programs provided for in

Title 74 RCW, including but not limited to public assistance

as defined in RCW 74.04.005(1). [1988 c 288 § 425.)

RCW 34.05.485 Brier adjudicative proceedingsProcedure. (I) If not specifically prohibited by law, the

following persons may be designated as the presiding officer

of a brief adjudicative proceeding:

(a) The agency head;

(b) One or more members of the agency head;

(c) One or more administrative law judges; or

(d) One or more other persons designated by the agency

head.

(2) Before taking action. the presiding officer-shall give

each party an opportunity to be informed of the agency's

view of the matter and to explain the party's view of the

matter.

(3) At the time any unfavorable action is taken the

presiding officer shall serve upon each party a brief statement of the reasons for the decision. Within ten days, the

presiding officer shall give the parties a brief written

statement of the reasons for the decision and information

about any internal administrative review available.

(4) The brief written statement is an initial order. If no

review is taken of the initial order as authorized by RCW

34.05.488 and 34.05.491, the initial order shall be the final

order. [1989 c 175 § 23; i988 c 288 § 426.]

EtI'ectln date-l989 c 175: See aoce foUowing RCW 34.OS.0I0.

[eh. J4..o5--p. IIJ

RCW 34.05.488 Brief proceedlnp-AdmlDIstratIve

review-AppUcablllty. Unless prohibited by any provision

of law, an agency, on its own motion, may conduct admi~

trative review of an order resulting from brief Idjudic:ativtJ

proceedings. An agency shall conduct this review upon the

written or oral request of a party if the agency receives the

request within twenty~ne days after service of the written

statement required by RCW 34.05.485(3). [1989 c i7S f 24;

1988 c 288 § 427.)

Effective da'-l989 e 175: See noce foUowiDa RCW 34.OS.010.

RCW 34.05.491 Brier proceedlnp-AdmlDlstratIvf

review-Proc:edures. Unless otherwise provided by statute:

(1) If theparties have not requested review, the asenc:y

may review an order resulting from a brief adjudicative

proceeding on its own motion and without notice to the

parties, but it may not take any action on review less

favorable to any party than the original order without giving

that party notice and an opportunity to explain that party's

view of the maner.

(2) The reviewing officer may be any person whocould

have presided at the brief proceeding, but the reviewing

officer must be one who is authorized to grant appropriate

relief upon review.

(3) The reviewing officer shall give each party an

opportunity to explain the party's view of the matter and

shall make any inquiries necessary to ascertain whether the

proceeding must be converted to a formal adjudicative

hearing.

(4) The order on review must be in writing, m~!0.

include a brief statement of the reasons for the decision. ;

must be entered within twenty days after the date of the--.j

initial order or of the request for review, whichever is later.

The order shaU include a description of any further available

. administrative review or, if none is available, a notice that

judicial review may be available.

(S) A request for administrative review is deemed to

have been denied if the agency does not make a disposition

of the matter widiin twenty days after the request is submitted. [1988 c 288 § 428.)

RCW 34.05.494 Agtocy reconlln brief pmceedlnp.

(i) The agency record consists of any documents regarding

the matter that were considered or prepared by the presiding

officer for the brief adjudicative proceeding or by the

reviewing officer for any review. The agency shall maintain

these documents as its official. record.

(2) Unless otherwise required by a provision of law, the

agency record need not constitute the exclusive basis for

agency action in brief adjudicative proceedings or for the

judicial review of brief adjudicative proceedings. [1988 c

288 § 429.]

PART V

JUDICIAL REVIEW AND CIVD.. ENFORCEMENT

RCW 34.95.510 Relationship between this chapter

and other Judklal review authority. This chapter estal>(\

lishes the exclusive means of judicial review of agency~)

action, except:

(lt94)

~'

..
- Admbdstradve Procedure Act

.'

•

•

•

( I) The provisions of this chapter for judicial review do

not 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.

(2) Ancillary procedural matters before the reviewing

court. including intervention. class actions. consolidation.

joinder. severance, transfer. protective orders, and other relief

from disclosure of privileged or confidential material. are

governed, to the extent not inconsistent with this chapter, by

court rule.

(3) To the extent that de novo review or jury trial

review of agency action is expressly authorized by provision

of law. [1988 c 288 § 501.)

RCW 34.05.514 Petition for review-Where rued.

(I) Except as provided in subsection (2) of this section and

*RCW 36.70A.300(3). proceedings for review under this

chapter shall be instituted by filing a petition in the superior

court, at the petitioner's option, for (a) Thurston county. (b)

the county of the petitioner's residence or principal place of

business. or (c) in any county where the property owned by

the petitioner and affected by the contested decision is

located.

(2) For proceedings involving institutions of higher

education. the petition shall be filed either in the county in

which the principal office of the institution involved is

located or in the county of a branch campus if the action

involves such branch. [1994 c' 257 § 23; 1988 c 288 § 502.)

-Reviser's DOte: The reference to RCW 36.70A.3OO(3) apparently

refers to an amendment of RCW 36.70A.300 that appeared in a preliminary

version of the act (Engrossed Substitute Senate Bill No. 6339). That

amendatory section was deleted in the fmal bill.

Severability-l994 e 257: See note following RCW 36.70A.270.

RCW 34.05.518 Direct review by court or appeals.

The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals upon certification by the

superior court pursuant to this section. An application (or

direct review must be filed with the superior court within

thirty days of the filing of the petition for review in superior

court. The superior court may certify a case for direct

review only if the judicial review is limited to the record of

the agency proceeding and the court finds that:

(1) Fundamental and urgent issues affecting the future

administrative process or the public interest are involved

which require a prompt determination;

(2) Delay in obtaining a final and prompt determination

of such issues would be detrimental to any party or the

public interest; .

(3) An appeal to the court of'appeals would be likely

regardless of the determination in superior court; and

(4) The appellate court's determination in the proceeding would have significant precedential value. [1988 c 288

§ 503; 1980 c 76 § 1. Formerly RCW 34.04.133.)

RCW 34.05.522 Refusal of review by court of

appeals. The court of appeals may refuse to accept review

of a case certified pursuant to RCW 34.05.518. The refusal

to accept such review is not subject to further appellate

(1994)

._- 34.M.510

review. notwithstanding anythinl in Rule 13.3 of the Rules

of Appellate Procedure to the contrary. [1988 e 288 § 504:

1980 c 76 § 2. Formerly RCW 34.04.135.J

RCW 34.05.526 Appellate review by supreme court

or court of appeals. An aggrieved party may secure

appellate review of any final judgment of the superior court

under this chapter by the supreme court or the court of

appeals. The review shall be secured in the manner provided by law for review of superior court decisions in other

civil cases. [1988 c 288 § 50S: 1988 c 202 § 35; 1971 c 81

§ 87; 1959 c 234 § 14. Formerly RCW 34.04.140.J

Rnlser's Dote: This sectiOD wu ameaded by 1981 e 202 , 35.

effective June 9. 1988. aDd by 1988 e 2S8 t S05. etrCClive Jllly l, 1989.

each without ~rCl'CllCe to theocber. 8odI1IDCftdmeuts Ire iDcorporIted ill

the pubticaboa of this seaioa pursuant to RCW 1.12.025(2). For Nle of

constnlction. SICC RCW 1.12.025(1).

StvtrabiUtJ-l988 e 201: See DOte foUowinS RCW 2.24.0SO.

RCW 34.05.530 Standing. A person has standing to

obtain judicial review of agency action if that person is

aggrieved or adversely affected by the agency action. A

person is aggrieved or adversely affected within the meaning

of this section only when all three of the following conditions are present:

(I) The agency action has prejudiced or is likely to

prejudice that person; . ,

(2) 1bat person's asserted interests areamong tbose that

the agency was required to consider when it engaged-ia 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.]' jof'

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 beina

challenged. or available within any other agency authorized

to exercise administrative review, except

(I) A petitioner for judicial review of a rule need not

have participated in the rule-making proceedingupon which

that rule is based, or have petitioned for its amendment or

repeal;

(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) Tbe court may relieve a petitioner of the requirement

to exhaust any or all administrative remedies upon a showing

that:

(a) Tbe remedies would be patently inadequate;

(b) 1bc 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. [1988 c 288 § sm.J

RCW 34.05.542 1lme for fIllng petition for review.

Subject to ocher requirements of this chapter or of anotbeI'

statute:

"

-. "'J
34.05.541 _. AclmJDlstndve Procedure Act

r'

(I) A petition for judicial review of a rule may be filed

at any time. except as limited by RCW 34.05.375.

(2) A petition for judicial review of an order shall be

filed with the court and served on the agency. the office of

the auomey general. and all parties of record within thirty

days after service of the final order.

(3) A petition for judicial review of agency action other

than the adoption of a rule or the entry of an order is not

timely unless filed with the court and served on the agency,

the office of the attorney general. and all other parties of

record within thirty days after the agency action. but the time

is extended during any period that the petitioner did not

know and was under no duty to discover or could not

reasonably have discovered that the agency had taken the

action or that the agency action had a sufficient effect to

confer standing upon the petitioner to obtain judicial review

under this chapter.

(4) Service of the petition on the agency shall be by

delivery of a copy of the petition to the office of the

director. or other chief administrative officer or chairperson

of the agency. at the principal office of the agency. Service

of a copy by mail upon the other parties of record and the

office of the attorney general shall be deemed complete upon

deposit in the United States mail, as evidenced by the

postmark.

(5) Failure to timely serve a petition on the office of the

attorney general is not grounds for dismissal of the petition.

[1988 c 288 § 509.] .

RCW 34.05.546 Petition (or review-Contents. A

petition for review must set forth:

(1) The name and mailing address of the petitioner;

(2) The name and mailing address of the petitioner's

attorney, if any;

(3) The name and mailing address of the agency whose

action is at issue;

(4) Identification of the agency action at issue. together

with a duplicate copy. summary. or brief description of the

agency action;

(5) Identification of persons who were parties in any

adjudicative proceedings that led to the agency action;

. (6) Facts to demonstrate that the petitioner is entitled to

obtain judicial review;

(7) The petitioner's reasons for believing that relief

should be granted; and

(8) A request for relief. specifying the type and extent

of relief requested. [1988 c 288 § 510.]

RCW 34.05.550 Stay and other temporary remedies. (l) Unless precluded by law. the agency may grant a

stay. in whole or in part, or other temporary remedy.

(2) After a petition for judicial review has been filed. a

party may file a motion in the reviewing court seeking a stay

or other temporary remedy.

(3) Ifjudicial relief is sought for a stay or other temporary remedy from agency action based on public health.

safety. or welfare grounds the court shall not grant such

relief unless the court finds that:

(a) The applicant is likely to prevail when the court

finally disposes of the matter;

[eb. J4.GS-p••1

(b) Without relief the applicant will suffer imparable

injury;

(c) The grant of relief to the appli~t will nOl SUbs~i"1 tially harm other patties to the ProceedlllBS; and

(d) The threat to thepublic heaJth, safety. or welfare is

not sufficiently serious to justify the agency action in the

circumstances.

(4) If the court determines that relief should be granted

from the agency's action granting a stay or other temporary

remedies, the court may remand the matter or may enter an

order denying a stay or granting a stay on appropriate terms.

(1989 c 17S t 2S~ 1988 c 288 t 511.)

Uectm ~1989e 115: See DOle foUowiq RCW34.05.010.

RCW 34.05.554 Limitation on new Issues. (I)

Issues not raised before the agency may not be raised on

appeal. except to the extent that:

(a) The person did not know and was under no duty to

discover or could not have reasonably discovered facts

giving rise to the issue; .

(b) Theagency 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) The agency action subject to judicial review is an.

order and the person was not notified of the adjudicative

proceeding in substantial compliance with this chapter; or

(d) The interests of justice would be served by resolution of an issue arising from:

(i) A change in controlling law occurring after the

agency action; or . . ..!"- . (ii) Agency action occurring after the person exhau~ )

the last feasible opportunity for seeking relief from tl1e;-)

agency. .

(2) The court shall remand to the agency for determination any issue that is property raised pursuant to subsection

(I) of this section. [1988 c 288 § 512.)

RCW 34.05.558 Judldal remw of Cads confiDed to

record. Judicial review of disputed issues offaet shall be

conducted by the court without a jUl)' 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 t SI3.]

RCW 34.05.561 New evidence taken by court or

agency. (1) The court may receive evidence in addition to

that contained in the agency record for judicial review, only

if it relates to the validity of the agency action at the time it

was taken and is needed to decide disputed issues regarding:

(a) Improper constitution as a decision-making body or

.grounds for.disqualific.ation 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 agenc,!~

before final disposition of a petition for review, wit\~)

directions that the agency conduct riet-finding and other

proceedings the counconsiders necessary and that tbe

(ltM)
Administrative Procedure Ad

•

•

•

agency take such further action on the basis thereof as the

court directs. if:

(8) The agency was required by this chapter or any

other provision of law to base its action exclusively on a

record of a type reasonably suitable for judicial review. but

the agency failed to prepare or preserve an adequate record:

(b) The court finds that (i) new evidence has become

available that relates to the validity of the agency action at

the time it was taken, that one or more of the parties did not

know and was under no duty to discover or could not have

reasonably been discovered until after the agency action, and

(ii) the interests of justice would be served by remand to the

agency;

(c) The agency improperly excluded or omitted evidence

from the record: or

(d) A relevant provision of law changed after the agency

action and the court determines that the new provision may

control the outcome. [1988 c 288 § 514.]

RCW 34.05.566 Agency record for review-Costs.

(I) .Within thirty days after service of the petition for judicial

review. or within further time allowed by the court or by

other provision of law. the agency shall transmit to the court

the original or a certified copy of the agency record for

judicial review of the agency action. The record shall

consist of any agency documents expressing the agency

action. other documents identified by the agency as having

been considered by it before its action and used as a basis

for its action. and any other material described in this

chapter as the agency record for the type of agency action at

issue, subject to the provisions of this section.

(2) If pan of the record has been preserved without a

~anscript. the agency shall prepare a transcript for inclusion

In the record transmitted to the court, except for portions that

the parties stipulate to omit in accordance with subsection

(4) of this section.

(3) The agency may charge a nonindigent petitioner

with the reasonable costs of preparing any necessary copies

and transcripts for transmittal to the court. A failure by the

petitioner to pay any of this cost to the agency relieves the

agency from the responsibility for preparation of the record

and transmittal to the court,

(4) The record may be shortened. summarized. or

organized temporarily or. by stipulation of all parties.

permanently.

(5) The court may tax the cost of preparing transcripts

and copies of the record:

(a) Against a party who unreasonably refuses to stipulate to shorten. summarize. or organize the record; or

(b) In accordance with any provision of law.

(6) Additions to the record pursuant to RCW 34.05.562

must be made as ordered by the court, .

(7) The court may require or permit subsequent corrections or additions to the record. [1989 c 175 § 26: 1988 c

288 § SIS.]

ED'ective date-1989 c 175: See Dace following RCW 34.05.010.

RCW 34.05.570 Judicial review. (1) Generally.

Except to the extent that this chapter or another statute

provides otherwise:

(1994)

... -34.05.562

(a) The burden of demonstrating the invalidity of aaency

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 Nling

on each material issue on which the .eourt's decision is

based: and

(d) The court shall grant relief only if it determines that

a person seeking judicial relief has been substantially

prejudiced by the action complained of.

(2) Review of Nics. (a) A rule may be reviewed by

petition for declaratory judgment filed pursuant to this

subsection or in the context of any otherreview proceeding

under this section. In an action challenging the validity of

a rule. the agency shall be made a party to the proccedinl.

(b) 'The validity of any rule may be determined upon

petition for a declaratory judgment addressed to the superior

court of Thurston county. when it appears that the rule. or its

threatened application. interferes with or impairs or immediately threatens to interfere with or impair the legal rights or

privileges of the petitioner. Thedeclaratory judgmeni'order

may be entered whether or not the petitioner has'flrst

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 it violates

constitutional provisions. exceeds the statutory authority of

the agency. was adopted without compliance with SWulory

rule-making procedures. or could not conceivably have been

the product of a rational decision-maker. :J)ij{:'

(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: ,7

(a) The order. or the statute or rule on which the order

is based. is in violation of constitutional provisions on its

face or as applied; :-'

(b) The order is outside the statutory authority or

jurisdiction of the agency conferred by any provision of''law;

(c) The agency bas engaged in unlawful procedure or

decisioe-making process. or bas failed to foUow a prescribed

p~edure; .

(d) The agency bas erroneously interpreted or applied

the law:

(e) The order is not supported by evidence that is

substantial when viewed in light of the whole record before

the court. which includes the agency record for judicial

review. supplemented by any additional evidence received by

the court under this chapter;

(f) The agency has not decided all issues requiring

·resolutioo by 1heagency; .

(g) A motion for disqualification under RCW 34.05.425

or 34.12.050 was made and was improperly denied or. if DO

motion was made. facts are shown to support the grant of

such a motion that were not known and were DOt reasonably

discoverable by the challenging party at the appropriate time

for makiog such a motion;

(h) The order is inconsistent with a rule of the agency

unless the agency explains the inconsistency by statingfaets

and reasons to demonstrate a ratioua1 basisfor inconsisteocy;

or

[0. 34 OS po 21)

I"~
RCW 34.05.582 Petition by others for enforumeot.

(1) Any person wbo would qualify under this chapter as

having standing to obtain judicial review of an asency'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 bas 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 bas tiled and is diligently ~tinr~'\

a petition for civil enforcement of the same orda' aplDst iii. . "----.....,....,.. same person; or

(c) If a petition for review of the same order bas been

filed and a stay is in effect.

(2) The petitiOft shalJ name, as respondents, the asency

whose order is sougbt to be enforced and each person

against whom the petitioner seeks civil enforcement

(3) The agency whose order is sougbt to be enforced

may move to dismiss the petition on the grounds that it fails

to qualify under this section or that the enforcement would

be contrary to the policy of. the agency. The court shall

grant the motion to dismiss the petition unless the petitioner

demonstrates that (a) the petition qualifies under this section

and (b) the agency's failure to enforce its order is based on

an exercise of discretion thai is arbitrary 01' capricious.

(4) Except to the extent expressly authorized by Jaw, a

petition for civil enforcement may DOtrequest. and the court

may not grant, any monetary payment apart from taxable

costs. [1988 c 288 I 519.)

RCW 34.0S.586 DeCenses, IhnitatJoos 00. (1) Except

as expressly provided in this section. a respondent may not

.assert as a defense in a proceeding for civil enforcement any

fact or issue that the respondeDt bad an opportunity to assert

before the agency or a reviewing court and did not.or upon

which the final detennination of the ageucy 01' a reviewing

court was adverse to the respondenL A respondent may

assert as a defense only abc foUowiaa: 0

(a) Tbat tbe rule or order is invalid UDder RC '''..._

34.05.570(3) (a), (b). (c), (d), (J), or (b). but only wbeothe

respo~ dic1~_kDow and ~u tmdtz.DO todiscovcr.

(IJN)

Administrative Procedure Ad

further proceedingsor agency ac:tion. (1989 c 175 I 28;

1988 c 288 t 517.)

Dream dale-I'" e 115: See DOle foIlowiaa RCW 34.05.0100

RCW 34.05.5'71 Peddoa b1 qeDC)' for mforcemeat.

(1) In addition to othez remedies provided by law, an aaency

may seek enforcement of its rule or order by filing • petition

for civil enforcement in the superior court.

(2) TIle petition must name asrespondent each alleged

person against whom the agency seeks to obtain civil

enforcement

(3) Venue is determined asin other civil cases.

(4) A petition for civil enforcement filed by an agency

may request. and the court may grant, declaratory relief.

temporary or permanent injunctive relief, any other civil

remedy provided by law, or any combination of the foregoing. [1988 c 288 I SI8.J

34.05.570

(i) The order is arbitrary or capricious.

(4) Review of other agency action.

(a) All agency action not reviewable under subsection

(2) or (3) of this section shall be reviewed under this

subsection. .

(b) A person whose rights are violated by an agency's

failure to perform a duty that is required by law to be

performed may file a petition for review pursuant to RCW

34.05.514. seeking an order pursuant to this subsection

requiring performance. Within twenty days after service of

the petition for review. the agency shall file and serve an

answer to the petition. made in the 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 issues of

fact raised by the petition and answer.

(c) Relief for persons aggrieved by the performance of

an agency action. including the exercise 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 officials lawfully entitled to take such action.

[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.J

Effective date-1m e 175: See nOle (ollowing RCW 34.05.010.

RCW 34.05.574 Type or reDeI. (1) In a review under

RCW 34.05.570. the court may (a) affirmthe agency action

or (b) order an agency to take action required by law. order

an agency to exercise discretion required by law. set aside

agency action. enjoin or stay the agency action. remand the

matter for further proceedings. or enter a declaratory

judgment order. The court shall set out in its findings and

conclusions, as appropriate. each violation or error by the

agency under the standards for review set out in this chapter

on which the court bases its decision and order. In reviewing maners 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.

(2) The sole remedy available to a person who is

wrongfully denied licensure based upon a failure to pass an

examination administered by a state agency. or under its

auspices. is the right to retake the examination free of the

defect or defects the court may have found in the examination or the examination procedure.

(3) The court may award damages. compensation. or

ancillary relief only to the extent expressly authorized by

another provision of law.

(4) If the court sets aside or modifies agency action or

remands the matter to the agency for further proceedings. the

court may make any interlocutory order it ftnds necessary to

preserve the interests of the parties and the public. pending

[Cb.34~n]
Admlnlstndve Procedure Ad

RCW 34.05.594 Review by hJgber court. Decisions

on petitions for civil enforcement are reviewable as in Other

civil cases. [1988 c 288 § 522.]

RCW 34.05.598 Frivolous pedUons. The pro~ons

of RCW 4.84.185 relating to civil actions that are frivolous

and advanced without reasonable cause apply to petitio~~for

judicial review under this chapter. [1988 c 288 § 607.)"~::~,\

.~;.~~~ .

·;":'l~- PART VI

LEGISLATIVE REVIEW

RCW 34.05.590 Incorporation of other Judicial

review provisions. Proceedings for civil enforcement are

governed by the following provisions of this chapter on

judicial review, as modified where necessary to adapt them

to those proceedings:

(I) RCW 34.05.510(2) (ancillary procedural matters);

and

(2) RCW 34.05.566 (agency record for judicial review).

[1988 c 288 § 521.]

being conducted for a lawfully authorized purpose, and ttw

the testimony or documents required to be produced are

adequately specified and relevant to the investigation, the

court shall enter an order that the person appear before the

agency at the time and place fixed in the order and testify or

produce the required documents, and failing to obey this

order the person shall be dealt with as for COIlIempt of c:owt.

(3) Petitions for enforcement of agency subpoenas are

not subject to RCW 34.05.578 through 34.05.590. [1989 c

175 § 30.]

Elrect1~ dale-1m e 175: SeeDote rouowiD& RCW 34.05.010.

RCW 34.05.610 Joint administrative rules re~ew commlttee-Members-Appolo.tmeot-TermsVacaodes. (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. Tbe senate members of the

committee shall be appo~ted by the president of the senate,

and the house members of the committee sbaJl be appointed

by the speaker of the house. Not more than two members

from each house may be from the same political party. All

appointments to the committee are subject to approval by the

caucuses to which the appointed members belong.

(2) Members shall be appointed as soon as possible after

the legislature convenes in regular session in an odd-numbered year, and their tenns shall extend until their successors

are appointed and qualified at the next regular session of the

. legislature in an odd-numbered year or until such members

no longer serve in the legislature, whichever occurs first,

Members may be reappointed to a committee.

(3) The president of the senate shaD appoint the chairperson in even-numbered years and the vice chairperson in

odd-numbered years from among committee membership.

The speaker of the house shall appoint the chairperson in

odd-numbered years and the vice chairperson in evennumbered years from among committee membership: Such

RCW 34.05.588 Enforcement of agency subpoena.

(I) If a person fails to obey an agency subpoena issued in an

adjudicative proceeding. or obeys the subpoena but refuses

to testify or produce documents when requested concerning

a matter under examination. the agency or attorney issuing

the subpoena may petition the superior court of any county

where the hearing is being conducted, where the subpoenaed

person resides or is found. or where subpoenaed documents

are located. for enforcement of the subpoena. The petition

shall be accompanied by a copy of the subpoena and proof

of service. shall set forth in what specific manner the

subpoena has not been complied with. and shall request an

order of the court to compel compliance. Upon such

petition. the court shall enter an order directing the person to

appear before thecourt at a time and place fixed in the order

to show cause why the person has not obeyed the subpoena

or has refused to testify or produce documents. A copy of .

the court's show cause order shall be served upon the

person. If it appears to the court that the subpoena was

properly issued. and that the panicular questions the person

refused to answer or the requests for production of documents were reasonable and relevant. the court shall enter an

order that the person appear before the agency at the time

and place fixed in the order and testify or produce the

required documents, and on failing to obey this order the

person shall be dealt with as for contempt of court.

(2) Agencies with statutory authority to issue investigative subpoenas may petition for enforcement of such subpoenas in accordance with subsection (I) of this section. The

agency may petition the superior court of any county where

the subpoenaed person resides or is found. or where subpoenaed documents are located. If it appears to the court that

the subpoena was properly issued, that the investigation is

or could not reasonably have discovered. facts giving rise to

this issue;

(b) That the interest of justice would be served by

resolution of an issue arising from:

(i) A change in controlling law occurring after the

agency action; or

(ii) Agency action after the respondent has exhausted

the last foreseeable opportunity for seeking relief from the

agency or from a reviewing court;

(c) That the order does not apply to the respondent or

that the respondent has not violated the order; or

(d) A defense specifically authorized by statute to be

raised in a civil enforcement proceeding.

(2) The limitations of subsection (I) of this section do

not apply to the extent that:

(a) The agency action sought to be enforced is a rule

and the respondent has not been a party in an adjudicative

proceeding that provided an adequate opportunity to raise the

issue; or

(b) The agency action sought to be enforced is an order

and the respondent was not notified actually or constructively of the related adjudicative proceeding in substantial

compliance with this chapter. .

(3) The court, to the extent necessary for the determination of the matter, may take new evidence. [1989 c 175 §

29; 1988 c 288 § 520.]

EO'ective date-1989 e 175: Sec note following RCW 34.0S.010.

•

•

•

..

(1994)
34.05.610

-..,;,

Admlnlslradve Procedun·Ad - 0 -

,\

appointments shall be made in January of each year as soon

as possible after a legislative session convenes.

(4) A vacancy on the committee 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 thiny days of

the vacancy occurring. [1988 c 288 I 601; 1983 c 53 § I;

1981 c 324 § 5. Formerly RCW 34.04.210.)

Legislative .mrmation-Snenblllty-1981 e 314: See lIotes

following RCW 34.05.010.

RCW 34.05.620 Review or proposed rules-Notice.

Whenever a majority of the members of the rules review

committee determines that a proposed rule is not within the

intent of the legislature as expressed in the statute which the

rule implements. or that an agency may not be adopting a

proposed rule in accordance with all applicable provisions of

law. including ·section 4 of this act and chapter 19.85 RCW,

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 ofor

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 holds a hearing on the proposed rule. the agency

shall consider the review committee's decision. [1994 c 249

.§ 17; 1988 c 288 § 602; 1987 c 451 § I; 1981 c 324 § 6.

Formerly RCW 34.04.220.)

-Reviser's note: lbe governor vetoed 1994C 249 I 4.

Severabl1lty-Appllca~l994 e 249: See notes following RCW

34.05.310.

Legislative amrmatioD-Severablllty-1981 e 324: See lIotes

following RCW 34.05.010.

RCW 34.05.630 Review or existing rules-Policy

statements, guidelines, issuances-Notic:e-:-Hearing. (I)

All rules required to be filed pursuant to RCW 34.05.380.

and emergency rules adopted pursuant to RCW 34.05.350,

are subject to selective review by the legislature.

(2) The rules review committee may review an agency's

use of policy statements. guidelines. and issuances that are

of general applicability. or their equivalents to determine

whether or not an agency has failed to adopt a rule or

whether they are within the intent of the legislature as

expressed by the governing statute.

(3) If the rules review committee finds by a majority

vote of its members: (a) That an existing rule is DOt within

the intent of the legislature as expressed by the statute which

the rule implements. (b) that the rule has not been adopted

in accordance with all applicable provisions of law. including

·section 4 of this act if the rule was adopted after ·the

effective date of section 4 of this act and chapter 19.85

RCW. (c) that an agency is using a policy statement.

guideline. or issuance in place of a rule, or (d) that the

policy statement. guideline. or issuance is outside of legislative intent. the agency affected shall be notified of such

finding and the reasons therefor. Within thirty days of the

receipt of the rules review committee'S notice, the agency

shall file notice of a hearing on the rules review committee's

finding with the code reviser and mail notice to all persons

who have made timely request of the agency for advance

notice of its rule-makingproceedings-as providedin-RCW --

[0. 34.DS-p. 14)

34.0'.320. The agency's notice sball include the rules

review committee's findinas and reasons therefor. and shan

be published in the Washington state register in ~\

with the provisions of chapter 34.08 RCW. J

(4) The agency shall consider fully all written and oral

submissions regarding (a) whether the rule in question is

within the intent of the legislature as expressed by the statute

which the role implements. (b) whether the rule was adopted

in accordance with all applicable proviSions of law, including

·section 4 of this act if the rule was adopted after -the

effective date of section 4 of this act and chapter 19.85

RCW. (c) whether the agency is using a policy statement.

guideline, or issuance in place of a rule. or (d) wbetbcr the

policy statement. guideline. or issuance is withinthe leplative intent. [1994 c 249 t 18; 1993 e 277 f I; 1988 e 288

§ 603; 1987 c 451 § 2; 1981 c 324 t 7. Formerly RCW

34.04.230.)

·Ilevber', Dote: The aovemor vetoed t994 e 249 I 4.

SeverabWty-AppUcalloD-l994 e 249: SeeDOCeI foUowiq RCW

34.05.310.

Lqlllative afflrmatioo-SnerabWt1-1981 c 314: See lIotes

. followinl RCW 34.05.0to.

RCW 34.05.640 Committee objections to agency

action 01' failure to adopt rule-Statement la register and

WAC-SuspensioD of rule. (I) Within seven days of an

agency hearing held after notification of the agency by the

rules review committee pursuant to RCW 34.05.620 or

34.05.630, the affected agency shall notify the committee of

its action on a proposed or existing rule to wbich the

committee objected or on a committee finding of tl;"..··'\

agency's' failure to adopt rules. If the rulesre~ COIDID!~/

tee determines, by a majority vote of its members. that the

agency has failed to provide for the required hearings or

notice of its action to the committee, the committee may file

notice of its objections. together with a conciseSlatCmentof

the reasons therefor, with the code reviser within thirty days

of such determination. .

(2) If the rules review committee finds, by a majority

vote of its members: (a) That the proposed or existing rule

in question has not been modified, amended. withdrawn, or

repealed by the agency 59 as to conform with the intent of

the legislature, or (b) that an existing rule was DOl adopted

in acoon:Iance with all applicable provisions of law. including

·section 4 of this act if the rule was adopted after -the

effective date of section 4 of this act and chapter 19.85

RCW, or (c) that the agency is using a policy statement.

guideline. or issuance in place of a rule, or that the policy

statement, guideline. or issuance is outside of the legislative

intent. the rules review committee may, within thirty days

from notification by the agency of its action. file with the

code reviser notice of its objections toaetber with a concise

statement of the reasons therefor. Such notice and sta1cment

shall also be provided to the agency by the rules review

committee.

(3) If the rules review committee makes an adverse

finding under subsection (2) of this scc:tion. abc committee

may, by a majority vote of its members, recommend".

suspension of an existina rule. Within seven days of sur"j'"

vote the committee sha1J transmit to the appRlIlIWe staDdii.~

committees of the legis1alure, the governor, the code miser,

and-lhc-agency .wriuen.DOtice of its.objection ~~.

(1JM)
•

Aclmlnlstrative Procedure Act 34.05.640

'" ..

•

•

•

mended suspension and the concise reasons therefor. Within

thirty days of receipt of the notice. the governor shall

transmit to the committee. the code 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.

(4) If the governor disapproves the recommendation of

the rules review committee to suspend the rule. the transmittal of such decision. along with the findings of the rules

review committee. shall be treated by the agency as a

petition by the rules review committee to repeal the rule

under RCW 34.05.330.

(5) 'The code reviser shall publish transmittals from the

rules review committee or the governor issued pursuant to

subsection (I). (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.

(6) The reference shall be removed from a rule published in the Washington Administrative Code if a subsequent adjudicatory proceeding determines that the rule is

within the intent of the legislature or was adopted in accordance with all applicable laws. whichever was the objection

of the rules review committee. [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.]

-Reviser's Dote: The governor vetoed 1994 e 249 f 4.

Severabilily-ApplicaU_J994 e 249: Sec notes fonowing RCW

34.05.310.

Legislative affirmatloo-Sevenbl1lly-1981 e 314: See Dotes

following RCW 34.05.010.

RCW 34.05.650 Recommendations by committee to

legisla~re.\ The rules review committee may recommend to

the legislature that the original enabling legislation serving

as authority for the adoption of any rule reviewed by the

committee be amended or repealed in such manner as the

committee deems advisable. (1988 c 288 § 605; 1987 c 451

§ 4; 1981 c 324 § 9. Formerly RCW 34.04.250.]

Legislative amrmatioo-Severability-1981 e 314: See Dotes

following RCW 34.05.010.

RCW 34.05.660 Review and objection proceduresNo presumption established. It is the express policy of the

legislature that establishment of procedures for review of

administrative rules by the legislature and the notice of

objection required by RCW 34.05.630(2) and 34.05.640(2)

in no way serves to establish a presumption as to the legality

or constitutionality of a rule in any subsequent judicial

proceedings interpreting such rules. [1988 c 288 § 606;

1981 c 324 § 10. Formerly RCW 34.04.260.]

Legislative amrmatioo-Sevenbillly-1981 e 314: See Dotes

following RCW 34.05.010.

(1994)

PART IX

TECHNICAL PROVISIONS

RCW 34.05.900 Captions and beadings. Section

captions and subchapter headings used in this chapter do not

constitute any part of the law. [1988 c 288 § 703.]

RCW 34.05.901 SeverabUity-1988 e 288. If any

provision of this chapter or its application to any person or

circumstance is held invalid, the remainder of the chapter or

the application of the provision to other persons or circumstances is not affected. [1988 c 288 § 704.]

RCW 34.05.901 Effective date-Applicatioo-1988

c 288. RCW 34.05.001 through 34.0S.902 shall take effect

on July 1, 1989, and shall apply to all rule-making actions

and agency proceedings begun on or after that date. Rulemaking actions or other agency proceedings begun before

July I. i989, shall be completed under the applicable

provisions of chapter 28B.19 or 34.04 RCW existing

immediately before that date in the same manner as if they

were not amended by chapter 288. Laws of 1988 or repealed

by section 701 of chapter 288, Laws of 1988. [1988 c 288

§ 705.] ,

RecocIlficatioo--Cornctloo ol statutory relueoca-l988 e 188:

"Parts X through xv of this .a shall constitute a new c:hapter ill Tide 34

RCW. and the scctioas ameoded or set forth ill this act shall be m:odi6ed

in the order they appear ill this act. The code reviser sban correct all

statutory refereoc:es to these sectioas aDd to the repealed c:bapcl:ft 288.19

and 34.04 RCW 10 refled this rcc:odific:atioo aDd repeal.· [1988 c "288 I

706.1 : "('

-'

(Cb. 34.15 P 2.5]