title: RCW 34.05.272

text:
(1) This section applies only to the water quality and shorelands and environmental assistance programs within the department of ecology and to actions taken by the department of ecology under chapter 70A.350 RCW.
(2)(a) Before taking a significant agency action, which includes each department of ecology rule to implement a determination of a regulatory action specified in RCW 70A.350.040(1) (b) or (c), the department of ecology must identify the sources of information reviewed and relied upon by the agency in the course of preparing to take significant agency action. Peer-reviewed literature, if applicable, must be identified, as well as any scientific literature or other sources of information used. The department of ecology shall make available on the agency's website the index of records required under RCW 42.56.070 that are relied upon, or invoked, in support of a proposal for significant agency action.
(b) On the agency's website, the department of ecology must identify and categorize each source of information that is relied upon in the form of a bibliography, citation list, or similar list of sources. The categories in (c) of this subsection do not imply or infer any hierarchy or level of quality.
(c) The bibliography, citation list, or similar list of sources must categorize the sources of information as belonging to one or more of the following categories:
(i) Independent peer review: Review is overseen by an independent third party;
(ii) Internal peer review: Review by staff internal to the department of ecology;
(iii) External peer review: Review by persons that are external to and selected by the department of ecology;
(iv) Open review: Documented open public review process that is not limited to invited organizations or individuals;
(v) Legal and policy document: Documents related to the legal framework for the significant agency action including but not limited to:
(A) Federal and state statutes;
(B) Court and hearings board decisions;
(C) Federal and state administrative rules and regulations; and
(D) Policy and regulatory documents adopted by local governments;
(vi) Data from primary research, monitoring activities, or other sources, but that has not been incorporated as part of documents reviewed under the processes described in (c)(i), (ii), (iii), and (iv) of this subsection;
(vii) Records of the best professional judgment of department of ecology employees or other individuals; or
(viii) Other: Sources of information that do not fit into one of the categories identified in this subsection (2)(c).
(3) For the purposes of this section, "significant agency action" means an act of the department of ecology that:
(a) Results in the development of a significant legislative rule as defined in RCW 34.05.328; or
(b) Results in the development of technical guidance, technical assessments, or technical documents that are used to directly support implementation of a state rule or state statute.
(4) This section is not intended to affect agency action regarding individual permitting, compliance and enforcement decisions, or guidance provided by an agency to a local government on a case-by-case basis.
[ 2021 c 65 s 23; 2019 c 292 s 11; 2014 c 22 s 1; 2013 c 69 s 2.]
Notes:
Explanatory statement—2021 c 65: See note following RCW 53.54.030.
Short title—2019 c 292: See RCW 70A.350.900.
Finding—Intent—2013 c 69: "(1) The legislature finds that it is critically important that scientific information used to inform public policy be of the highest quality and integrity. Furthermore, the legislature recognizes that a public benefit is derived from greater transparency as to what scientific information, data, or records are being used to inform public policy or relied upon in agency decision making.
(2) Therefore, in order to help ensure that agencies routinely use scientifically credible information in conducting their policy-making functions, it is the intent of the legislature to have those sources of scientific information reviewed and relied upon by agencies be identified in a clear and transparent way." [ 2013 c 69 s 1.]

catchline: Department of ecology—Significant agency action—Identification and categorization of sources of information used.


doc_type: statute

jurisdiction: wa

title: RCW 34.05.310

text:
(1)(a) To meet the intent of providing greater public access to administrative rule making and to promote consensus among interested parties, agencies must solicit comments from the public on a subject of possible rule making before filing with the code reviser a notice of proposed rule making under RCW 34.05.320. The agency must prepare a statement of inquiry that:
(i) Identifies the specific statute or statutes authorizing the agency to adopt rules on this subject;
(ii) Discusses why rules on this subject may be needed and what they might accomplish;
(iii) Identifies other federal and state agencies that regulate this subject, and describes the process whereby the agency would coordinate the contemplated rule with these agencies;
(iv) Discusses the process by which the rule might be developed, including, but not limited to, negotiated rule making, pilot rule making, or agency study;
(v) Specifies the process by which interested parties can effectively participate in the decision to adopt a new rule and formulation of a proposed rule before its publication.
(b) The statement of inquiry must be filed with the code reviser for publication in the state register at least thirty days before the date the agency files notice of proposed rule making under RCW 34.05.320 and the statement, or a summary of the information contained in that statement, must be sent to any party that has requested receipt of the agency's statements of inquiry.
(2) Agencies are encouraged to develop and use new procedures for reaching agreement among interested parties before publication of notice and the adoption hearing on a proposed rule. Examples of new procedures include, but are not limited to:
(a) Negotiated rule making by which representatives of an agency and of the interests that are affected by a subject of rule making, including, where appropriate, county and city representatives, seek to reach consensus on the terms of the proposed rule and on the process by which it is negotiated; and
(b) Pilot rule making which includes testing the feasibility of complying with or administering draft new rules or draft amendments to existing rules through the use of volunteer pilot groups in various areas and circumstances, as provided in RCW 34.05.313 or as otherwise provided by the agency.
(3)(a) An agency must make a determination whether negotiated rule making, pilot rule making, or another process for generating participation from interested parties prior to development of the rule is appropriate.
(b) An agency must include a written justification in the rule-making file if an opportunity for interested parties to participate in the rule-making process prior to publication of the proposed rule has not been provided.
(4) Except as provided in subsection (5) of this section, this section does not apply to:
(a) Emergency rules adopted under RCW 34.05.350;
(b) Rules relating only to internal governmental operations that are not subject to violation by a nongovernment party;
(c) Rules adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule;
(d) Rules that only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect;
(e) Rules the content of which is explicitly and specifically dictated by statute;
(f) Rules that set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045; or
(g) Rules that adopt, amend, or repeal:
(i) A procedure, practice, or requirement relating to agency hearings; or
(ii) A filing or related process requirement for applying to an agency for a license or permit.
(5) Notwithstanding subsection (4) of this section, this section applies to all rules adopted by the department of health or a disciplining authority specified in RCW 18.130.040 that set or adjust fees affecting professions regulated under chapter 18.130 RCW.
[ 2019 c 303 s 1; 2011 c 298 s 20; 2004 c 31 s 1; 1995 c 403 s 301; 1994 c 249 s 1; 1993 c 202 s 2; 1989 c 175 s 5; 1988 c 288 s 301.]
Notes:
Purpose—Intent—Agency transfer—Contracting—Effective date—2011 c 298: See notes following RCW 19.02.020.
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: See note following RCW 34.05.328.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.
Severability—1994 c 249: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1994 c 249 s 38.]
Application—1994 c 249: "This act applies prospectively only and not retroactively." [ 1994 c 249 s 36.]
Finding—Intent—1993 c 202: "The legislature finds that while the 1988 Administrative Procedure Act expanded public participation in the agency rule-making process, there continue to be instances when participants have developed adversarial relationships with each other, resulting in the inability to identify all of the issues, the failure to focus on solutions to problems, unnecessary delays, litigation, and added cost to the agency, affected parties, and the public in general.
When interested parties work together, it is possible to negotiate development of a rule that is acceptable to all affected, and that conforms to the intent of the statute the rule is intended to implement.
After a rule is adopted, unanticipated negative impacts may emerge. Examples include excessive costs of administration for the agency and compliance by affected parties, technical conditions that may be physically or economically unfeasible to meet, problems of interpretation due to lack of clarity, and reporting requirements that duplicate or conflict with those already in place.
It is therefore the intent of the legislature to encourage flexible approaches to developing administrative rules, including but not limited to negotiated rule making and a process for testing the feasibility of adopted rules, often called the pilot rule process. However, nothing in chapter 202, Laws of 1993 shall be construed to create any mandatory duty for an agency to use the procedures in RCW 34.05.310 or 34.05.313 in any particular instance of rule making. Agencies shall determine, in their discretion, when it is appropriate to use these procedures." [ 1993 c 202 s 1.]
Effective date—1989 c 175: See note following RCW 34.05.010.
Rules coordinator duties regarding business: RCW 43.17.310.

license: public-domain-government-work

rule_set: Revised Code of Washington

catchline: Prenotice inquiry—Negotiated and pilot rules.

code: rcw

unit: section

court: Washington State Legislature


title: RCW 34.05.312

text:
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, proposed, or adopted 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 maintained thereafter on the code reviser website for the duration of the designation. The rules coordinator may be an employee of another agency.
[ 2007 c 456 s 4; 2003 c 246 s 4; 1993 c 202 s 3.]
Notes:
Finding—2003 c 246: See note following RCW 34.05.362.
Finding—Intent—1993 c 202: See note following RCW 34.05.310.

catchline: Rules coordinator.


title: RCW 34.05.313

text:
(1) During the development of a rule or after its adoption, an agency may develop methods for measuring or testing the feasibility of complying with or administering the rule and for identifying simple, efficient, and economical alternatives for achieving the goal of the rule. A pilot project shall include public notice, participation by volunteers who are or will be subject to the rule, a high level of involvement from agency management, reasonable completion dates, and a process by which one or more parties may withdraw from the process or the process may be terminated. Volunteers who agree to test a rule and attempt to meet the requirements of the draft rule, to report periodically to the proposing agency on the extent of their ability to meet the requirements of the draft rule, and to make recommendations for improving the draft rule shall not be obligated to comply fully with the rule being tested nor be subject to any enforcement action or other sanction for failing to comply with the requirements of the draft rule.
(2) An agency conducting a pilot rule project authorized under subsection (1) of this section may waive one or more provisions of agency rules otherwise applicable to participants in such a pilot project if the agency first determines that such a waiver is in the public interest and necessary to conduct the project. Such a waiver may be only for a stated period of time, not to exceed the duration of the project.
(3) The findings of the pilot project should be widely shared and, where appropriate, adopted as amendments to the rule.
(4) If an agency conducts a pilot rule project in lieu of meeting the requirements of the regulatory fairness act, chapter 19.85 RCW, the agency shall ensure the following conditions are met:
(a) If over ten small businesses are affected, there shall be at least ten small businesses in the test group and at least one-half of the volunteers participating in the pilot test group shall be small businesses.
(b)(i) If there are at least one hundred businesses affected, the participation by small businesses in the test group shall be as follows:
(A) Not less than twenty percent of the small businesses must employ twenty-six to fifty employees;
(B) Not less than twenty percent of the small businesses must employ eleven to twenty-six employees; and
(C) Not less than twenty percent of the small businesses must employ zero to ten employees.
(ii) If there do not exist a sufficient number of small businesses in each size category set forth in (b)(i) of this subsection willing to participate in the pilot project to meet the minimum requirements of that subsection, then the agency must comply with this section to the maximum extent practicable.
(c) The agency may not terminate the pilot project before completion.
(d) Before filing the notice of proposed rule making pursuant to RCW 34.05.320, the agency must prepare a report of the pilot rule project that includes:
(i) A description of the difficulties small businesses had in complying with the pilot rule;
(ii) A list of the recommended revisions to the rule to make compliance with the rule easier or to reduce the cost of compliance with the rule by the small businesses participating in the pilot rule project;
(iii) A written statement explaining the options it considered to resolve each of the difficulties described and a statement explaining its reasons for not including a recommendation by the pilot test group to revise the rule; and
(iv) If the agency was unable to meet the requirements set forth in (b)(i) of this subsection, a written explanation of why it was unable to do so and the steps the agency took to include small businesses in the pilot project.
[ 1995 c 403 s 303; 1993 c 202 s 4.]
Notes:
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: See note following RCW 34.05.328.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.
Finding—Intent—1993 c 202: See note following RCW 34.05.310.

catchline: Feasibility studies—Pilot projects.


title: RCW 34.05.314

text:
Each state agency shall prepare a semiannual agenda for rules under development. The agency shall file the agenda with the code reviser for publication in the state register not later than January 31st and July 31st of each year. Not later than three days after its publication in the state register, the agency shall send a copy of the agenda to each person who has requested receipt of a copy of the agenda. The agency shall also submit the agenda to the director of financial management, the rules review committee, and any other state agency that may reasonably be expected to have an interest in the subject of rules that will be developed.
[ 1997 c 409 s 206.]
Notes:
Part headings—Severability—1997 c 409: See notes following RCW 43.22.051.

catchline: Rules development agenda.


title: RCW 34.05.315

text:
(1) Each agency shall maintain a current public rule-making docket. The rule-making docket shall contain the information specified in subsection (3) of this section.
(2) The rule-making docket shall contain a listing of each pending rule-making proceeding. A rule-making proceeding is pending from the time it is commenced by publication of a notice of proposed rule adoption under RCW 34.05.320 until the proposed rule is withdrawn under RCW 34.05.335 or is adopted by the agency.
(3) For each rule-making proceeding, the docket shall indicate all of the following:
(a) The name and address of agency personnel responsible for the proposed rule;
(b) The subject of the proposed rule;
(c) A citation to all notices relating to the proceeding that have been published in the state register under RCW 34.05.320;
(d) The place where written submissions about the proposed rule may be inspected;
(e) The time during which written submissions will be accepted;
(f) The current timetable established 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 s 6; 1988 c 288 s 302.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Rule-making docket.


title: RCW 34.05.320

text:
(1) At least twenty days before the rule-making hearing at which the agency receives public comment regarding adoption of a rule, the agency shall cause notice of the hearing to be published in the state register. The publication constitutes the proposal of a rule. The notice shall include all of the following:
(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 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 a statement of the reasons supporting the proposed action;
(d) The agency personnel, with their office location and telephone number, who are responsible for the drafting, implementation, and enforcement of the rule;
(e) The name of the person or organization, whether private, public, or governmental, proposing the rule;
(f) Agency comments or recommendations, if any, regarding statutory language, implementation, enforcement, and fiscal matters pertaining to the rule;
(g) Whether the rule is necessary as the result of federal law or federal or state court action, and if so, a citation to such law or court decision;
(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 copy of the small business economic impact statement prepared under chapter 19.85 RCW, or a copy of the school district fiscal impact statement under RCW 28A.305.135 in the case of the state board of education, or an explanation for why the agency did not prepare the statement;
(k) A statement indicating whether RCW 34.05.328 applies to the rule adoption; and
(l) If RCW 34.05.328 does apply, a statement indicating that a copy of the preliminary cost-benefit analysis described in RCW 34.05.328(1)(c) is available.
(2)(a) 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. Except as provided in (b) of this subsection, the agency shall forward three copies of the notice to the rules review committee.
(b) A pilot of at least ten agencies, including the departments of labor and industries, fish and wildlife, revenue, ecology, retirement systems, and health, shall file the copies required under this subsection, as well as under RCW 34.05.350 and 34.05.353, with the rules review committee electronically for a period of four years from June 10, 2004. The office of regulatory assistance shall negotiate the details of the pilot among the agencies, the legislature, and the code reviser.
(3) No later than three days after its publication in the state register, the agency shall cause either a copy of the notice of proposed rule adoption, or a summary of the information contained on the notice, to be mailed to each person, city, and county that has made a request to the agency for a mailed copy of such notices. An agency may charge for the actual cost of providing a requesting party mailed copies of these notices.
(4) In addition to the notice required by subsections (1) and (2) of this section, an institution of higher education shall cause the notice to be published in the campus or standard newspaper of the institution at least seven days before the rule-making hearing.
[ 2012 c 210 s 2; 2004 c 31 s 2; 2003 c 165 s 1; 1995 c 403 s 302; 1994 c 249 s 14; 1992 c 197 s 8; 1989 c 175 s 7; 1988 c 288 s 303; 1982 c 221 s 2; 1982 c 6 s 7; 1980 c 186 s 10; 1977 ex.s. c 84 s 1. Formerly RCW 34.04.045.]
Notes:
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: See note following RCW 34.05.328.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.
Severability—Application—1994 c 249: See notes following RCW 34.05.310.
Effective date—1989 c 175: See note following RCW 34.05.010.
Severability—1980 c 186: "If any provision of this 1980 act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1980 c 186 s 29.]
Expedited adoption: RCW 34.05.353.
Small business economic impact statement—Purpose—Contents: RCW 19.85.040.

catchline: Notice of proposed rule—Contents—Distribution by agency—Institutions of higher education.


title: RCW 34.05.322

text:
For rules implementing statutes enacted after July 23, 1995, an agency may not rely solely on the section of law stating a statute's intent or purpose, or on the enabling provisions of the statute establishing the agency, or on any combination of such provisions, for its statutory authority to adopt the rule. An agency may use the statement of intent or purpose or the agency enabling provisions to interpret ambiguities in a statute's other provisions.
[ 1995 c 403 s 118.]
Notes:
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.

catchline: Scope of rule-making authority.


title: RCW 34.05.325

text:
(1) The agency shall make a good faith effort to insure that the information on the proposed rule published pursuant to RCW 34.05.320 accurately reflects the rule to be presented and considered at the oral hearing on the rule. Written comment about a proposed rule, including supporting data, shall be accepted by an agency if received no later than the time and date specified in the notice, or such later time and date established at the rule-making hearing.
(2) The agency shall provide an opportunity for oral comment to be received by the agency in a rule-making hearing.
(3) If the agency possesses equipment capable of receiving telefacsimile transmissions or recorded telephonic communications, the agency may provide in its notice of hearing filed under RCW 34.05.320 that interested parties may comment on proposed rules by these means. If the agency chooses to receive comments by these means, the notice of hearing shall provide instructions for making such comments, including, but not limited to, appropriate telephone numbers to be used; the date and time by which comments must be received; required methods to verify the receipt and authenticity of the comments; and any limitations on the number of pages for telefacsimile transmission comments and on the minutes of tape recorded comments. The agency shall accept comments received by these means for inclusion in the official record if the comments are made in accordance with the agency's instructions.
(4) The agency head, a member of the agency head, or a presiding officer designated by the agency head shall preside at the rule-making hearing. Rule-making hearings shall be open to the public. The agency shall cause a record to be made of the hearing by stenographic, mechanical, or electronic means. Regardless of whether the agency head has delegated rule-making authority, the presiding official shall prepare a memorandum for consideration by the agency head, summarizing the contents of the presentations made at the rule-making hearing, unless the agency head presided or was present at substantially all of the hearings. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.56 RCW.
(5) Rule-making hearings are legislative in character and shall be reasonably conducted by the presiding official to afford interested persons the opportunity to present comment individually. All comments by all persons shall be made in the presence and hearing of other attendees. Written or electronic submissions may be accepted and included in the record. Rule-making hearings may be continued to a later time and place established on the record without publication of further notice under RCW 34.05.320.
(6)(a) Before it files an adopted rule with the code reviser, an agency shall prepare a concise explanatory statement of the rule:
(i) Identifying the agency's reasons for adopting the rule;
(ii) Describing differences between the text of the proposed rule as published in the register and the text of the rule as adopted, other than editing changes, stating the reasons for differences; and
(iii) Summarizing all comments received regarding the proposed rule, and responding to the comments by category or subject matter, indicating how the final rule reflects agency consideration of the comments, or why it fails to do so.
(b) The agency shall provide the concise explanatory statement to any person upon request or from whom the agency received comment.
[ 2009 c 336 s 1; 2005 c 274 s 262; 1998 c 125 s 1; 1995 c 403 s 304; 1994 c 249 s 7; 1992 c 57 s 1; 1988 c 288 s 304.]
Notes:
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: See note following RCW 34.05.328.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.
Severability—Application—1994 c 249: See notes following RCW 34.05.310.

catchline: Public participation—Concise explanatory statement.


title: RCW 34.05.328

text:
(1) Before adopting a rule described in subsection (5) of this section, an agency must:
(a) Clearly state in detail the general goals and specific objectives of the statute that the rule implements;
(b) Determine that the rule is needed to achieve the general goals and specific objectives stated under (a) of this subsection, and analyze alternatives to rule making and the consequences of not adopting the rule;
(c) Provide notification in the notice of proposed rule making under RCW 34.05.320 that a preliminary cost-benefit analysis is available. The preliminary cost-benefit analysis must fulfill the requirements of the cost-benefit analysis under (d) of this subsection. If the agency files a supplemental notice under RCW 34.05.340, the supplemental notice must include notification that a revised preliminary cost-benefit analysis is available. A final cost-benefit analysis must be available when the rule is adopted under RCW 34.05.360;
(d) Determine that the probable benefits of the rule are greater than its probable costs, taking into account both the qualitative and quantitative benefits and costs and the specific directives of the statute being implemented;
(e) Determine, after considering alternative versions of the rule and the analysis required under (b), (c), and (d) of this subsection, that the rule being adopted is the least burdensome alternative for those required to comply with it that will achieve the general goals and specific objectives stated under (a) of this subsection;
(f) Determine that the rule does not require those to whom it applies to take an action that violates requirements of another federal or state law;
(g) Determine that the rule does not impose more stringent performance requirements on private entities than on public entities unless required to do so by federal or state law;
(h) Determine if the rule differs from any federal regulation or statute applicable to the same activity or subject matter and, if so, determine that the difference is justified by the following:
(i) A state statute that explicitly allows the agency to differ from federal standards; or
(ii) Substantial evidence that the difference is necessary to achieve the general goals and specific objectives stated under (a) of this subsection; and
(i) Coordinate the rule, to the maximum extent practicable, with other federal, state, and local laws applicable to the same activity or subject matter.
(2) In making its determinations pursuant to subsection (1)(b) through (h) of this section, the agency must place in the rule-making file documentation of sufficient quantity and quality so as to persuade a reasonable person that the determinations are justified.
(3) Before adopting rules described in subsection (5) of this section, an agency must place in the rule-making file a rule implementation plan for rules filed under each adopting order. The plan must describe how the agency intends to:
(a) Implement and enforce the rule, including a description of the resources the agency intends to use;
(b) Inform and educate affected persons about the rule;
(c) Promote and assist voluntary compliance; and
(d) Evaluate whether the rule achieves the purpose for which it was adopted, including, to the maximum extent practicable, the use of interim milestones to assess progress and the use of objectively measurable outcomes.
(4) After adopting a rule described in subsection (5) of this section regulating the same activity or subject matter as another provision of federal or state law, an agency must do all of the following:
(a) Coordinate implementation and enforcement of the rule with the other federal and state entities regulating the same activity or subject matter by making every effort to do one or more of the following:
(i) Deferring to the other entity;
(ii) Designating a lead agency; or
(iii) Entering into an agreement with the other entities specifying how the agency and entities will coordinate implementation and enforcement.
If the agency is unable to comply with this subsection (4)(a), the agency must report to the legislature pursuant to (b) of this subsection;
(b) Report to the joint administrative rules review committee:
(i) The existence of any overlap or duplication of other federal or state laws, any differences from federal law, and any known overlap, duplication, or conflict with local laws; and
(ii) Make recommendations for any legislation that may be necessary to eliminate or mitigate any adverse effects of such overlap, duplication, or difference.
(5)(a) Except as provided in (b) of this subsection, this section applies to:
(i) Significant legislative rules of the departments of ecology, labor and industries, health, revenue, social and health services, and natural resources, the employment security department, the forest practices board, the office of the insurance commissioner, the state building code council, and to the legislative rules of the department of fish and wildlife implementing chapter 77.55 RCW; and
(ii) Any rule of any agency, if this section is voluntarily made applicable to the rule by the agency, or is made applicable to the rule by a majority vote of the joint administrative rules review committee within forty-five days of receiving the notice of proposed rule making under RCW 34.05.320.
(b) This section does not apply to:
(i) Emergency rules adopted under RCW 34.05.350;
(ii) Rules relating only to internal governmental operations that are not subject to violation by a nongovernment party;
(iii) Rules adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule;
(iv) Rules that only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect;
(v) Rules the content of which is explicitly and specifically dictated by statute, including any rules of the department of revenue adopted under the authority of RCW 82.32.762(3);
(vi) Rules that set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045;
(vii) Rules of the department of social and health services relating only to client medical or financial eligibility and rules concerning liability for care of dependents; or
(viii) Rules of the department of revenue that adopt a uniform expiration date for reseller permits as authorized in RCW 82.32.780 and 82.32.783.
(c) For purposes of this subsection:
(i) A "procedural rule" is a rule that adopts, amends, or repeals (A) any procedure, practice, or requirement relating to any agency hearings; (B) any filing or related process requirement for making application to an agency for a license or permit; or (C) any policy statement pertaining to the consistent internal operations of an agency.
(ii) An "interpretive rule" is a rule, the violation of which does not subject a person to a penalty or sanction, that sets forth the agency's interpretation of statutory provisions it administers.
(iii) A "significant legislative rule" is a rule other than a procedural or interpretive rule that (A) adopts substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction; (B) establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit; or (C) adopts a new, or makes significant amendments to, a policy or regulatory program.
(d) In the notice of proposed rule making under RCW 34.05.320, an agency must state whether this section applies to the proposed rule pursuant to (a)(i) of this subsection, or if the agency will apply this section voluntarily.
(6) By January 31, 1996, and by January 31st of each even-numbered year thereafter, the office of regulatory assistance, after consulting with state agencies, counties, and cities, and business, labor, and environmental organizations, must report to the governor and the legislature regarding the effects of this section on the regulatory system in this state. The report must document:
(a) The rules proposed to which this section applied and to the extent possible, how compliance with this section affected the substance of the rule, if any, that the agency ultimately adopted;
(b) The costs incurred by state agencies in complying with this section;
(c) Any legal action maintained based upon the alleged failure of any agency to comply with this section, the costs to the state of such action, and the result;
(d) The extent to which this section has adversely affected the capacity of agencies to fulfill their legislatively prescribed mission;
(e) The extent to which this section has improved the acceptability of state rules to those regulated; and
(f) Any other information considered by the office of financial management to be useful in evaluating the effect of this section.
[ 2019 c 8 s 405; 2018 c 207 s 8. Prior: 2011 c 298 s 21; 2011 c 149 s 1; 2010 c 112 s 15; prior: 2003 c 165 s 2; 2003 c 39 s 13; 1997 c 430 s 1; 1995 c 403 s 201.]
Notes:
Effective date—2019 c 8 ss 101, 104, 106, 201, 402-405, and 501: See note following RCW 82.02.250.
Existing rights and liability—Retroactive application—2019 c 8: See notes following RCW 82.02.250.
Effective date—2018 c 207 ss 1-8: See note following RCW 19.27.070.
Purpose—Intent—Agency transfer—Contracting—Effective date—2011 c 298: See notes following RCW 19.02.020.
Effective date—2011 c 149: See note following RCW 43.42.010.
Effective date—2010 c 112 ss 2, 3, 11, 12, and 15: See note following RCW 82.32.780.
Retroactive application—2010 c 112: See note following RCW 82.32.780.
Findings—Short title—Intent—1995 c 403: "(1) The legislature finds that:
(a) One of its fundamental responsibilities, to the benefit of all the citizens of the state, is the protection of public health and safety, including health and safety in the workplace, and the preservation of the extraordinary natural environment with which Washington is endowed;
(b) Essential to this mission is the delegation of authority to state agencies to implement the policies established by the legislature; and that the adoption of administrative rules by these agencies helps assure that these policies are clearly understood, fairly applied, and uniformly enforced;
(c) Despite its importance, Washington's regulatory system must not impose excessive, unreasonable, or unnecessary obligations; to do so serves only to discredit government, makes enforcement of essential regulations more difficult, and detrimentally affects the economy of the state and the well-being of our citizens.
(2) The legislature therefore enacts chapter 403, Laws of 1995, to be known as the regulatory reform act of 1995, to ensure that the citizens and environment of this state receive the highest level of protection, in an effective and efficient manner, without stifling legitimate activities and responsible economic growth. To that end, it is the intent of the legislature, in the adoption of chapter 403, Laws of 1995, that:
(a) Unless otherwise authorized, substantial policy decisions affecting the public be made by those directly accountable to the public, namely the legislature, and that state agencies not use their administrative authority to create or amend regulatory programs;
(b) When an agency is authorized to adopt rules imposing obligations on the public, that it do so responsibly: The rules it adopts should be justified and reasonable, with the agency having determined, based on common sense criteria established by the legislature, that the obligations imposed are truly in the public interest;
(c) Governments at all levels better coordinate their regulatory efforts to avoid confusing and frustrating the public with overlapping or contradictory requirements;
(d) The public respect the process whereby administrative rules are adopted, whether or not they agree with the result: Members of the public affected by administrative rules must have the opportunity for a meaningful role in their development; the bases for agency action must be legitimate and clearly articulated;
(e) Members of the public have adequate opportunity to challenge administrative rules with which they have legitimate concerns through meaningful review of the rule by the executive, the legislature, and the judiciary. While it is the intent of the legislature that upon judicial review of a rule, a court should not substitute its judgment for that of an administrative agency, the court should determine whether the agency decision making was rigorous and deliberative; whether the agency reached its result through a process of reason; and whether the agency took a hard look at the rule before its adoption;
(f) In order to achieve greater compliance with administrative rules at less cost, that a cooperative partnership exist between agencies and regulated parties that emphasizes education and assistance before the imposition of penalties; and
(g) Workplace safety and health in this state not be diminished, whether provided by constitution, by statute, or by rule." [ 1995 c 403 s 1.]
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: "Sections 201, 301 through 305, 401 through 405, and 801 of this act shall apply to all rule making for which a statement of proposed rule making under RCW 34.05.320 is filed after July 23, 1995." [ 1995 c 403 s 1102.]
Expedited adoption: RCW 34.05.353.

catchline: Significant legislative rules, other selected rules.


title: RCW 34.05.330

text:
(1) Any person may petition an agency requesting the adoption, amendment, or repeal of any rule. The office of financial management shall prescribe by rule the format for such petitions and the procedure for their submission, consideration, and disposition and provide a standard form that may be used to petition any agency. Within sixty days after submission of a petition, the agency shall either (a) deny the petition in writing, stating (i) its reasons for the denial, specifically addressing the concerns raised by the petitioner, and, where appropriate, (ii) the alternative means by which it will address the concerns raised by the petitioner, or (b) initiate rule-making proceedings in accordance with RCW 34.05.320.
(2) If an agency denies a petition to repeal or amend a rule submitted under subsection (1) of this section, and the petition alleges that the rule is not within the intent of the legislature or was not adopted in accordance with all applicable provisions of law, the person may petition for review of the rule by the joint administrative rules review committee under RCW 34.05.655.
(3) If an agency denies a petition to repeal or amend a rule submitted under subsection (1) of this section, the petitioner, within thirty days of the denial, may appeal the denial to the governor. The governor shall immediately file notice of the appeal with the code reviser for publication in the Washington state register. Within forty-five days after receiving the appeal, the governor shall either (a) deny the petition in writing, stating (i) his or her reasons for the denial, specifically addressing the concerns raised by the petitioner, and, (ii) where appropriate, the alternative means by which he or she will address the concerns raised by the petitioner; (b) for agencies listed in RCW 43.17.010, direct the agency to initiate rule-making proceedings in accordance with this chapter; or (c) for agencies not listed in RCW 43.17.010, recommend that the agency initiate rule-making proceedings in accordance with this chapter. The governor's response to the appeal shall be published in the Washington state register and copies shall be submitted to the chief clerk of the house of representatives and the secretary of the senate.
(4) In petitioning for repeal or amendment of a rule under this section, a person is encouraged to address, among other concerns:
(a) Whether the rule is authorized;
(b) Whether the rule is needed;
(c) Whether the rule conflicts with or duplicates other federal, state, or local laws;
(d) Whether alternatives to the rule exist that will serve the same purpose at less cost;
(e) Whether the rule applies differently to public and private entities;
(f) Whether the rule serves the purposes for which it was adopted;
(g) Whether the costs imposed by the rule are unreasonable;
(h) Whether the rule is clearly and simply stated;
(i) Whether the rule is different than a federal law applicable to the same activity or subject matter without adequate justification; and
(j) Whether the rule was adopted according to all applicable provisions of law.
(5) The department of commerce and the office of financial management shall coordinate efforts among agencies to inform the public about the existence of this rules review process.
(6) The office of financial management shall initiate the rule making required by subsection (1) of this section by September 1, 1995.
[ 2023 c 470 s 2013; 1998 c 280 s 5; 1996 c 318 s 1; 1995 c 403 s 703; 1988 c 288 s 305; 1967 c 237 s 5; 1959 c 234 s 6. Formerly RCW 34.04.060.]
Notes:
Explanatory statement—2023 c 470: See note following RCW 10.99.030.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.

catchline: Petition for adoption, amendment, repeal—Agency action—Appeal.


title: RCW 34.05.335

text:
(1) A proposed rule may be withdrawn by the proposing agency at any time before adoption. A withdrawn rule may not be adopted unless it is again proposed in accordance with RCW 34.05.320.
(2) Before adopting a rule, an agency shall consider the written and oral submissions, or any memorandum summarizing oral submissions.
(3) Rules not adopted and filed with the code reviser within one hundred eighty days after publication of the text as last proposed in the register shall be regarded as withdrawn. An agency may not thereafter adopt the proposed rule without refiling it in accordance with 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 s 8; 1988 c 288 s 306; 1980 c 186 s 11. Formerly RCW 34.04.048.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.
Severability—1980 c 186: See note following RCW 34.05.320.

catchline: Withdrawal of proposal—Time and manner of adoption.


title: RCW 34.05.340

text:
(1) Unless it complies with subsection (3) of this section, an agency may not adopt a rule that is substantially different from the rule proposed in the published notice of proposed rule adoption or a supplemental notice in the proceeding. If an agency contemplates making a substantial variance from a proposed rule described in a published notice, it may file a supplemental notice with the code reviser meeting the requirements of RCW 34.05.320 and reopen the 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 rule would have understood that the published proposed rule would affect his or her interests;
(b) The extent to which the subject of the adopted rule or the issues determined in it are substantially different from the subject or issues involved in the published proposed rule; and
(c) The extent to which the effects of the adopted rule differ from the effects of the published proposed rule.
(3) If the agency, without filing a supplemental notice under subsection (1) of this section, adopts a rule that varies in content from the proposed rule, the general subject matter of the adopted rule must remain 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 is substantially different from the proposed rule and shall contain the text of the petitioner's proposed amendment. For purposes of the petition, an adopted rule is substantially different if the issues determined in the adopted rule differ from the issues determined in the proposed rule or the anticipated effects of the adopted rule differ from those of the proposed rule. If the petition meets the requirements of this subsection and RCW 34.05.330, the agency shall initiate rule-making proceedings upon the proposed amendments within the time provided in RCW 34.05.330.
[ 1989 c 175 s 9; 1988 c 288 s 307.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Variance between proposed and final rule.


title: RCW 34.05.345

text:
Except for emergency rules adopted under RCW 34.05.350, when twenty days notice of intended action to adopt, amend, or repeal a rule has not been published in the state register, as required by RCW 34.05.320, the code reviser shall not publish such rule and such rule shall not be effective for any purpose.
[ 1988 c 288 s 308; 1967 c 237 s 4. Formerly RCW 34.04.027.]

catchline: Failure to give twenty days notice of intended action—Effect.


title: RCW 34.05.350

text:
(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 upon adoption of a permanent rule would be contrary to the public interest;
(b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule; or
(c) In order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012, 2013, or in an omnibus transportation appropriations act for the 2021-2023 biennium related to setting toll rates or ferry fares, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency,
the agency may dispense with those requirements and adopt, amend, or repeal the rule on an emergency basis. The agency's finding and a concise statement of the reasons for its finding shall be incorporated in the order for adoption of the emergency rule or amendment filed with the office of the code reviser under RCW 34.05.380 and with the rules review committee.
(2) An emergency rule adopted under this section takes effect upon filing with the code reviser, unless a later date is specified in the order of adoption, and may not remain in effect for longer than one hundred twenty days after filing. Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or the agency has filed notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule. This section does not relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or bodies before they become effective.
(3) Within seven days after the rule is adopted, any person may petition the governor requesting the immediate repeal of a rule adopted on an emergency basis by any department listed in RCW 43.17.010. Within seven days after submission of the petition, the governor shall either deny the petition in writing, stating his or her reasons for the denial, or order the immediate repeal of the rule. In ruling on the petition, the governor shall consider only whether the conditions in subsection (1) of this section were met such that adoption of the rule on an emergency basis was necessary. If the governor orders the repeal of the emergency rule, any sanction imposed based on that rule is void. This subsection shall not be construed to prohibit adoption of any rule as a permanent rule.
[ 2021 c 333 s 717; 2011 1st sp.s. c 2 s 1; 2009 c 559 s 1; 1994 c 249 s 3; 1989 c 175 s 10; 1988 c 288 s 309; 1981 c 324 s 4; 1977 ex.s. c 240 s 8; 1959 c 234 s 3. Formerly RCW 34.04.030.]
Notes:
Effective date—2021 c 333: See note following RCW 43.19.642.
Effective date—2011 1st sp.s. c 2: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 31, 2011]." [ 2011 1st sp.s. c 2 s 2.]
Effective date—2009 c 559: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 19, 2009]." [ 2009 c 559 s 2.]
Severability—Application—1994 c 249: See notes following RCW 34.05.310.
Effective date—1989 c 175: See note following RCW 34.05.010.
Legislative affirmation—Severability—1981 c 324: See notes following RCW 34.05.010.
Effective date—1977 ex.s. c 240: See RCW 34.08.905.

catchline: Emergency rules and amendments.


title: RCW 34.05.353

text:
(1) An agency may file notice for the expedited adoption of rules in accordance with the procedures set forth in this section for rules meeting any one of the following criteria:
(a) The proposed rules relate only to internal governmental operations that are not subject to violation by a person;
(b) The proposed rules adopt or incorporate by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule;
(c) The proposed rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect, including a proposed rule described in subsection (9) of this section;
(d) The content of the proposed rules is explicitly and specifically dictated by statute;
(e) The proposed rules have been the subject of negotiated rule making, pilot rule making, or some other process that involved substantial participation by interested parties before the development of the proposed rule; or
(f) The proposed rule is being amended after a review under RCW 34.05.328.
(2) An agency may file notice for the expedited repeal of rules under the procedures set forth in this section for rules meeting any one of the following criteria:
(a) The statute on which the rule is based has been repealed and has not been replaced by another statute providing statutory authority for the rule;
(b) The statute on which the rule is based has been declared unconstitutional by a court with jurisdiction, there is a final judgment, and no statute has been enacted to replace the unconstitutional statute;
(c) The rule is no longer necessary because of changed circumstances; or
(d) Other rules of the agency or of another agency govern the same activity as the rule, making the rule redundant.
(3) The expedited rule-making process must follow the requirements for rule making set forth in RCW 34.05.320, except that the agency is not required to prepare a small business economic impact statement under RCW 19.85.025, a statement indicating whether the rule constitutes a significant legislative rule under RCW 34.05.328(5)(c)(iii), or a significant legislative rule analysis under RCW 34.05.328. An agency is not required to prepare statements of inquiry under RCW 34.05.310 or conduct a hearing for the expedited rule making. The notice for the expedited rule making must contain a statement in at least ten-point type, that is substantially in the following form:
NOTICE
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT NAME AND ADDRESS) AND RECEIVED BY (INSERT DATE).
(4) The agency shall send either a copy of the notice of the proposed expedited rule making, or a summary of the information on the notice, to any person who has requested notification of proposals for expedited rule making or of regular agency rule making, as well as the joint administrative rules review committee, within three days after its publication in the Washington State Register. An agency may charge for the actual cost of providing a requesting party mailed copies of these notices. The notice of the proposed expedited rule making must be preceded by a statement substantially in the form provided in subsection (3) of this section. The notice must also include an explanation of the reasons the agency believes the expedited rule-making process is appropriate.
(5) The code reviser shall publish the text of all rules proposed for expedited adoption, and the citation and caption of all rules proposed for expedited repeal, along with the notice required in this section in a separate section of the Washington State Register. Once the notice of expedited rule making has been published in the Washington State Register, the only changes that an agency may make in the noticed materials before their final adoption or repeal are to correct typographical errors.
(6) Any person may file a written objection to the expedited rule making. The objection must be filed with the agency rules coordinator within forty-five days after the notice of the proposed expedited rule making has been published in the Washington State Register. A person who has filed a written objection to the expedited rule making may withdraw the objection.
(7) Except as provided in subsection (9) of this section, if no written objections to the expedited rule making are filed with the agency within forty-five days after the notice of proposed expedited rule making is published, or if all objections that have been filed are withdrawn by the persons filing the objections, the agency may enter an order adopting or repealing the rule without further notice or a public hearing. The order must be published in the manner required by this chapter for any other agency order adopting, amending, or repealing a rule.
(8) Except as provided in subsection (9) of this section, if a written notice of objection to the expedited rule making is timely filed with the agency and is not withdrawn, the notice of proposed expedited rule making published under this section is considered a statement of inquiry for the purposes of RCW 34.05.310, and the agency may initiate further rule-making proceedings in accordance with this chapter.
(9) The proposed rules which may be filed under subsection (1)(d) [(1)(c)] of this section include any proposed rule which, pursuant to RCW 1.20.130(2), only substitutes the term "alien," when used to refer to an individual who is not a citizen or national of the United States, with the term "noncitizen" or other context-appropriate term and which makes necessary grammatical changes and definitions resulting from the substitution, but does not change the effect of a rule. Written objections to a proposed rule meeting the criteria in this subsection may be filed as described in subsection (6) of this section, however an agency may proceed with entering an order under subsection (7) of this section notwithstanding objections.
(10) As used in this section, "expedited rule making" includes both the expedited adoption of rules and the expedited repeal of rules.
[ 2026 c 36 s 43; 2004 c 31 s 4; 2001 c 25 s 2.]

catchline: Expedited rule making.


title: RCW 34.05.360

text:
The order of adoption by which each rule is adopted by an agency shall contain all 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 s 311.]

catchline: Order adopting rule, contents.


title: RCW 34.05.362

text:
Either before or within two hundred days after the effective date of an adopted rule that imposes additional requirements on businesses the violation of which subjects the business to a penalty, assessment, or administrative sanction, an agency identified in RCW 34.05.220(6) shall notify businesses affected by the rule of the requirements of the rule and how to obtain technical assistance to comply. Notification must be provided by email, if possible, to every person identified to receive the postadoption notice under RCW 34.05.220(6).
The notification must announce the rule change, briefly summarize the rule change, refer to appeal procedures under RCW 34.05.330, and include a contact for more information. Failure to notify a specific business under this section does not invalidate a rule or waive the requirement to comply with the rule. The requirements of this section do not apply to emergency rules adopted under RCW 34.05.350.
[ 2003 c 246 s 3.]
Notes:
Finding—2003 c 246: "The legislature finds that many businesses in the state are frustrated by the complexity of the regulatory system. The Washington Administrative Code containing agency rules now fills twelve volumes, and appears to be growing each year. While the vast majority of businesses make a good faith attempt to comply with applicable laws and rules, many find it extremely difficult to keep up with agencies' issuance of new rules and requirements. Therefore, state agencies are directed to make a good faith attempt to notify businesses affected by rule changes that may subject noncomplying businesses to penalties." [ 2003 c 246 s 1.]

catchline: Postadoption notice.


title: RCW 34.05.365

text:
An agency may incorporate by reference and without publishing the incorporated matter in full, all or any part of a code, standard, rule, or regulation that has been adopted by an agency of the United States, of this state, or of another state, by a political subdivision of this state, or by a generally recognized organization or association if incorporation of the full text in the agency rules would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in agency rules shall fully identify the incorporated matter. An agency may incorporate by reference such matter in its rules only if the agency, organization, or association originally issuing that matter makes copies readily available to the public. The incorporating agency shall have, maintain, and make available for public inspection a copy of the incorporated matter. The rule must state where copies of the incorporated matter are available.
[ 1988 c 288 s 312.]

catchline: Incorporation by reference.


title: RCW 34.05.370

text:
(1) Each agency shall maintain an official rule-making file for each rule that it (a) proposes by publication in the state register, or (b) adopts. The file and materials incorporated by reference shall be available for public inspection.
(2) The agency rule-making file shall contain all of the following:
(a) A list of citations to all notices in the state register with respect to the rule or the proceeding upon which the rule is based;
(b) Copies of any portions of the agency's public rule-making docket containing entries relating to the rule or the proceeding on which the rule is based;
(c) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;
(d) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them, and any memorandum prepared by a presiding official summarizing the contents of those presentations;
(e) All petitions for exceptions to, amendment of, or repeal or suspension of, the rule;
(f) Citations to data, factual information, studies, or reports on which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public, but this subsection (2)(f) does not require the agency to include in the rule-making file any data, factual information, studies, or reports gathered pursuant to chapter 19.85 RCW or RCW 34.05.328 that can be identified to a particular business;
(g) The concise explanatory statement required by RCW 34.05.325(6); and
(h) Any other material placed in the file by the agency.
(3) Internal agency documents are exempt from inclusion in the rule-making file under subsection (2) of this section to the extent they constitute preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended, except that a specific document is not exempt from inclusion when it is publicly cited by an agency in connection with its decision.
(4) Upon judicial review, the file required by this section constitutes the official agency rule-making file with respect to that rule. Unless otherwise required by another provision of law, the official agency rule-making file need not be the exclusive basis for agency action on that rule.
[ 1998 c 280 s 7; 1996 c 102 s 2; 1995 c 403 s 801; 1994 c 249 s 2; 1988 c 288 s 313.]
Notes:
Application—1995 c 403 ss 201, 301-305, 401-405, and 801: See note following RCW 34.05.328.
Findings—Short title—Intent—1995 c 403: See note following RCW 34.05.328.
Severability—Application—1994 c 249: See notes following RCW 34.05.310.

catchline: Rule-making file.


title: RCW 34.05.375

text:
No rule proposed after July 1, 1989, is valid unless it is adopted in substantial compliance with RCW 34.05.310 through 34.05.395. Inadvertent failure to mail notice of a proposed rule adoption to any person as required by RCW 34.05.320(3) does not invalidate a rule. No action based upon this section may be maintained to contest the validity of any rule unless it is commenced within two years after the effective date of the rule.
[ 1988 c 288 s 314.]

catchline: Substantial compliance with procedures.


title: RCW 34.05.380

text:
(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 written record 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.
[ 2007 c 456 s 5; 1989 c 175 s 11; 1988 c 288 s 315; 1987 c 505 s 17; 1980 c 87 s 11; 1959 c 234 s 4. Formerly RCW 34.04.040.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Filing with code reviser—Written record—Effective dates.


title: RCW 34.05.385

text:
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 s 316; 1967 c 237 s 13. Formerly RCW 34.04.055.]

catchline: Rules for rule making.


title: RCW 34.05.390

text:
After the rules of an agency have been published by the code reviser:
(1) All agency orders amending or rescinding such rules, or creating new rules, shall be formulated in accordance with the style, format, and numbering system of the Washington Administrative Code;
(2) Any subsequent printing or reprinting of such rules shall be printed in the style and format (including the numbering system) of such code; and
(3) Amendments of previously adopted rules shall incorporate any editorial corrections made by the code reviser.
[ 1988 c 288 s 317; 1967 c 237 s 14. Formerly RCW 34.04.057.]

catchline: Style, format, and numbering—Agency compliance.


title: RCW 34.05.395

text:
(1) Rules proposed or adopted by an agency pursuant to this chapter that amend existing sections of the administrative code shall have the words which are amendatory to such existing sections underlined. Any matter to be deleted from an existing section shall be indicated by setting such matter forth in full, enclosed by double parentheses, and such deleted matter shall be lined out with hyphens. A new section shall be designated "NEW SECTION" in upper case type and such designation shall be underlined, but the complete text of the section shall not be underlined. No rule may be forwarded by any agency to the code reviser, nor may the code reviser accept for filing any rule unless the format of such rule is in compliance with the provisions of this section.
(2) Once the rule has been formally adopted by the agency the code reviser need not, except with regard to the register published pursuant to RCW 34.05.210(3), include the items enumerated in subsection (1) of this section in the official code.
(3) Any addition to or deletion from an existing code section not filed by the agency in the style prescribed by subsection (1) of this section shall in all respects be ineffectual, and shall not be shown in subsequent publications or codifications of that section unless the ineffectual portion of the rule is clearly distinguished and an explanatory note is appended thereto by the code reviser in accordance with RCW 34.05.210.
[ 1988 c 288 s 318; 1980 c 186 s 14; 1977 c 19 s 1. Formerly RCW 34.04.058.]
Notes:
Severability—1980 c 186: See note following RCW 34.05.320.

catchline: Format and style of amendatory and new sections—Failure to comply.


title: RCW 34.05.410

text:
(1) Adjudicative proceedings are governed by RCW 34.05.413 through 34.05.476, except as otherwise provided:
(a) By a rule that adopts the procedures for brief adjudicative proceedings in accordance with the standards provided in RCW 34.05.482 for those proceedings;
(b) By RCW 34.05.479 pertaining to emergency adjudicative proceedings; or
(c) By RCW 34.05.240 pertaining to declaratory proceedings.
(2) RCW 34.05.410 through 34.05.494 do not apply to rule-making proceedings unless another statute expressly so requires.
[ 1988 c 288 s 401.]

catchline: Application of Part IV.


title: RCW 34.05.413

text:
(1) Within the scope of its authority, an agency may commence an adjudicative proceeding at any time with respect to a matter within the agency's jurisdiction.
(2) When required by law or constitutional right, and upon the timely application of any person, an agency shall commence an adjudicative proceeding.
(3) An agency may provide forms for and, by rule, may provide procedures for filing an application for an adjudicative proceeding. An agency may require by rule that an application be in writing and that it be filed at a specific address, in a specified manner, and within specified time limits. The agency shall allow at least twenty days to apply for an adjudicative proceeding from the time notice is given of the opportunity to file such an application.
(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 s 12; 1988 c 288 s 402.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Commencement—When required.


title: RCW 34.05.416

text:
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 s 403.]

catchline: Decision not to conduct an adjudication.


title: RCW 34.05.419

text:
After receipt of an application for an adjudicative proceeding, other than a declaratory order, an agency shall proceed as follows:
(1) Except in situations governed by subsection (2) or (3) of this section, within ninety days after receipt of the application or of the response to a timely request made by the agency under subsection (2) of this section, the agency shall do one of the following:
(a) Approve or deny the application, in whole or in part, on the basis of brief or emergency adjudicative proceedings, if those proceedings are available under this chapter for disposition of the matter;
(b) Commence an adjudicative proceeding in accordance with this chapter; or
(c) Dispose of the application in accordance with RCW 34.05.416;
(2) Within thirty days after receipt of the application, the agency shall examine the application, notify the applicant of any obvious errors or omissions, request any additional information the agency wishes to obtain and is permitted by law to require, and notify the applicant of the name, mailing address, and telephone number of an office that may be contacted regarding the application;
(3) If the application seeks relief that is not available when the application is filed but may be available in the future, the agency may proceed to make a determination of eligibility within the time limits provided in subsection (1) of this section. If the agency determines that the applicant is eligible, the agency shall maintain the application on the agency's list of eligible applicants as provided by law and, upon request, shall notify the applicant of the status of the application.
[ 1988 c 288 s 404.]

catchline: Agency action on applications for adjudication.


title: RCW 34.05.422

text:
(1) Unless otherwise provided by law: (a) Applications for rate changes and uncontested applications for licenses may, in the agency's discretion, be conducted as adjudicative proceedings; (b) applications for licenses that are contested by a person having standing to contest under the law and review of denials of applications for licenses or rate changes must be conducted as adjudicative proceedings; and (c) an agency may not revoke, suspend, or modify a license unless the agency gives notice of an opportunity for an appropriate adjudicative proceeding in accordance with this chapter or other statute.
(2) An agency with authority to grant or deny a professional or occupational license must notify an applicant for a new or renewal license not later than twenty days prior to the date of the examination required for that license of any grounds for denial of the license which are based on specific information disclosed in the application submitted to the agency. The agency must notify the applicant either that the license is denied or that the decision to grant or deny the license will be made at a future date. If the agency fails to give the notification prior to the examination and the applicant is denied licensure, the examination fee must be refunded to the applicant. If the applicant takes the examination, the agency must notify the applicant of the result.
(3) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, an existing full, temporary, or provisional license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.
(4) If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings must be promptly instituted and determined.
(5) This section does not apply to requests made by the department of revenue, under the authority of RCW 82.08.155, to the *liquor control board to suspend a person's spirits license and to refuse to renew any spirits license held by the person and to issue any new spirits license to the person.
[ 2012 c 39 s 6; 1989 c 175 s 13; 1988 c 288 s 405; 1980 c 33 s 1; 1967 c 237 s 8. Formerly RCW 34.04.170.]
Notes:
*Reviser's note: The "state liquor control board" was renamed the "state liquor and cannabis board" by 2015 c 70 s 3.
Construction—Effective date—2012 c 39: See notes following RCW 82.08.155.
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Rate changes, licenses.


title: RCW 34.05.425

text:
(1) Except as provided in subsection (2) of this section, in the discretion of the agency head, the presiding officer in an administrative hearing shall be:
(a) The agency head or one or more members of the agency head;
(b) If the agency has statutory authority to do so, a person other than the agency head or an administrative law judge designated by the agency head to make the final decision and enter the final order;
(c) One or more administrative law judges assigned by the office of administrative hearings in accordance with chapter 34.12 RCW; or
(d) A person or persons designated by the secretary of health pursuant to RCW 43.70.740.
(2) An agency expressly exempted under RCW 34.12.020(4) or other statute from the provisions of chapter 34.12 RCW or an institution of higher education shall designate a presiding officer as provided by rules adopted by the agency.
(3) Any individual serving or designated to serve alone or with others as presiding officer is subject to disqualification for bias, prejudice, interest, or any other cause provided in this chapter or for which a judge is disqualified.
(4) Any party may petition for the disqualification of an individual promptly after receipt of notice indicating that the individual will preside or, if later, promptly upon discovering facts establishing grounds for disqualification.
(5) The individual whose disqualification is requested 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.
[ 2013 c 109 s 4; 1989 c 175 s 14; 1988 c 288 s 406.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.


title: RCW 34.05.428

text:
(1) 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 counsel or, if permitted by provision of law, other representative.
[ 1989 c 175 s 15; 1988 c 288 s 407.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Representation.


title: RCW 34.05.431

text:
(1) Agencies may hold prehearing or other conferences for the settlement or simplification of issues. Every agency shall by rule describe the conditions under which and the manner in which conferences are to be held.
(2) In the discretion of the presiding officer, and where the rights of the parties will not be prejudiced thereby, all or part of the conference may be conducted by telephone, television, or other electronic means. Each participant in the conference must have an opportunity to participate effectively in, to hear, and, if technically and economically feasible, to see the entire proceeding while it is taking place.
[ 1988 c 288 s 408.]

catchline: Conference—Procedure and participation.


title: RCW 34.05.434

text:
(1) 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 all parties to whom notice is being given and, if known, the names and addresses of their representatives;
(b) If the agency intends to appear, the mailing address and telephone number of the office designated to represent the agency in the proceeding;
(c) The official file or other reference number and the name of the proceeding;
(d) The name, official title, mailing address, and telephone number of the presiding officer, if known;
(e) A statement of the time, place and nature of the proceeding;
(f) A statement of the legal authority and jurisdiction 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, the initial notice may be limited to a statement of the issues involved. If the proceeding is initiated by a person other than the agency, the initial notice may be limited to the inclusion of a copy of the initiating document. Thereafter, upon request, a more definite and detailed statement shall be furnished.
(4) The notice may include any other matters considered desirable by the agency.
(5) The notice may be served on a party via electronic distribution, with a party's agreement.
[ 2013 c 110 s 1; 1988 c 288 s 409; 1980 c 31 s 1; 1967 c 237 s 9; 1959 c 234 s 9. Formerly RCW 34.04.090.]

catchline: Notice of hearing.


title: RCW 34.05.437

text:
(1) The presiding officer, at appropriate stages of the proceedings, shall give all parties full opportunity to submit and respond to pleadings, motions, objections, and offers of settlement.
(2) At appropriate stages of the proceedings, the presiding officer may give all parties full opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed initial or final orders.
(3) A party that files a pleading, brief, or other paper with the agency or presiding officer shall serve copies on all other parties, unless a different procedure is specified by agency rule.
[ 1988 c 288 s 410.]

catchline: Pleadings, briefs, motions, service.


title: RCW 34.05.440

text:
(1) 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 agency may proceed to resolve the case without further notice to, or hearing 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 order, which shall include a statement of the grounds for the order.
(3) Within seven days after service of a default order under subsection (2) of this section, or such longer period as provided by agency rule, the party against whom it was entered may file a written motion requesting that the order be vacated, and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participation of that party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings.
[ 1989 c 175 s 16; 1988 c 288 s 411.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Default.


title: RCW 34.05.443

text:
(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, cross-examination, 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 s 412.]

catchline: Intervention.


title: RCW 34.05.446

text:
(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) Whether all parties are represented by counsel; (b) whether undue expense or delay in bringing the case to hearing will result; (c) whether the discovery will promote the orderly and prompt conduct of the proceeding; and (d) whether the interests of justice will be promoted.
(4) Discovery orders and protective orders entered under this section may be enforced under the provisions of this chapter on civil enforcement of agency action.
(5) Subpoenas issued under this section may be enforced under RCW 34.05.588(1).
(6) The subpoena powers created by this section shall be statewide in effect.
(7) Witnesses in an adjudicatory proceeding shall be paid the same fees and allowances, in the same manner and under the same conditions, as provided for witnesses in the courts of this state by chapter 2.40 RCW and by RCW 5.56.010, except that the agency shall have the power to fix the 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 allowances and the cost of producing records required to be produced by subpoena.
[ 1989 c 175 s 17; 1988 c 288 s 413; 1967 c 237 s 10. Formerly RCW 34.04.105.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Subpoenas, discovery, and protective orders.


title: RCW 34.05.449

text:
(1) The presiding officer shall regulate the course of the proceedings, in conformity with applicable rules and the prehearing order, if any.
(2) To the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted by a limited grant of intervention or by the prehearing order.
(3) In the discretion of the presiding officer, and where the rights of the parties will not be prejudiced thereby, all or part of the hearing may be conducted by telephone, television, or other electronic means. Each party in the hearing must have an opportunity to participate effectively in, to hear, and, if technically and economically feasible, to see the entire proceeding while it is taking place.
(4) The presiding officer shall cause the hearing to be recorded by a method chosen by the agency. The agency is not required, at its expense, to prepare a transcript, unless required to do so by a provision of law. Any party, at the party's expense, may cause a reporter approved by the agency to prepare a transcript from the agency's record, or cause additional recordings to be made during the hearing if the making of the additional recording does not cause distraction or disruption.
(5) The hearing is open to public observation, except for the parts that the presiding officer states to be closed under a provision of law expressly authorizing closure or under a protective order entered by the presiding officer pursuant to applicable rules. A presiding officer may order the exclusion of witnesses upon a showing of good cause. To the extent that the hearing is conducted by telephone, television, or other electronic means, and is not closed, the availability of public observation is satisfied by giving members of the public an opportunity, at reasonable times, to hear or inspect the agency's record, and to inspect any transcript obtained by the agency.
[ 1989 c 175 s 18; 1988 c 288 s 414.]
Notes:
Effective date—1989 c 175: See note following RCW 34.05.010.

catchline: Procedure at hearing.


title: RCW 34.05.452

text:
(1) Evidence, including hearsay evidence, is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this state. The presiding officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious.
(2) If not inconsistent with subsection (1) of this section, the presiding officer shall refer to the Washington Rules of Evidence as guidelines for evidentiary rulings.
(3) All testimony of parties and witnesses shall be made under oath or affirmation.
(4) Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.
(5) Official notice may be taken of (a) any judicially 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 s 415; 1959 c 234 s 10. Formerly RCW 34.04.100.]

catchline: Rules of evidence—Cross-examination.


title: RCW 34.05.455

text:
(1) [(a)] 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) [(i)] 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) [(ii)] Any presiding officer may receive aid from legal counsel, or from staff assistants who are subject to the presiding officer's supervision; and
(c) [(iii)] 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) [(b)] 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 presiding officer may not communicate, directly or indirectly, regarding any issue in the proceeding, with any person not employed by the agency who has a direct or indirect interest in the outcome of the proceeding, without notice and opportunity for all parties to participate.
(3) Unless necessary to procedural aspects of maintaining an orderly process, persons to whom a presiding officer may not communicate under subsections (1) and (2) of this section may not communicate with presiding officers without notice and opportunity for all parties to participate.
(4) If, before serving as presiding officer in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while serving, the person, promptly after starting to serve, shall disclose the communication in the manner prescribed in subsection (5) of this section.
(5) A presiding officer who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the presiding officer received an ex parte communication. The presiding officer shall advise all parties that these matters have been placed on the record. Upon request made within ten days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a written rebuttal statement on the record. Portions of the record pertaining to ex parte communications or rebuttal statements do not constitute evidence of any fact at issue in the matter unless a party moves the admission of any portion of the record for purposes of establishing a fact at issue and that portion is admitted pursuant to RCW 34.05.452.
(6) If necessary to eliminate the effect of an ex parte communication received in violation of this section, a presiding officer who receives the communication may be disqualified, and the portions of the record pertaining to the communication may be sealed by protective order.
(7) The agency shall, and any party may, report any violation of this section to appropriate authorities for any disciplinary proceedings provided by law. In addition, each agency by rule may provide for appropriate sanctions, including default, for any violations of this section.
[ 1988 c 288 s 416.]

catchline: Ex parte communications.


title: RCW 34.05.458

text:
(1) A person who has served as investigator, prosecutor, or advocate in an adjudicative proceeding or in its preadjudicative stage, or one who is subject to the authority, direction, or discretion of such a person, may not serve as a presiding officer in the same proceeding.
(2) A person, including an agency head, who has participated in a determination of probable cause or other equivalent preliminary determination in an adjudicative proceeding may serve as presiding officer or assist or 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 presiding officer at successive stages of the same adjudicative proceeding unless a party demonstrates grounds for disqualification in accordance with RCW 34.05.425.
[ 1988 c 288 s 417.]

catchline: Separation of functions.