RCW ch. 34.05 — Revised Code of Washington Chapter 34.05 RCW — Administrative Procedure Act

RCW 34.05.001 Legislative intent. The legislature intends, by enacting this 1988 Administrative Procedure Act, to clarify the existing law of administrative procedure, to achieve greater consistency with other states and the federal government in administrative procedure, and to provide greater public and legislative access to administrative decision making. The legislature intends that to the greatest extent possible and unless this chapter clearly requires otherwise, current agency practices and court decisions interpreting the Administrative Procedure Act in effect before July 1, 1989, shall remain in effect. The legislature also intends that the courts should interpret provisions of this chapter consistently with decisions of other courts interpreting similar provisions of other states, the federal government, and model acts. [ 1988 c 288 s 18.] RCW 34.05.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Adjudicative proceeding" means a proceeding before an agency in which an opportunity for hearing before that agency is required by statute or constitutional right before or after the entry of an order by the agency. Adjudicative proceedings also include all cases of licensing and rate making in which an application for a license or rate change is denied except as limited by RCW 66.08.150, or a license is revoked, suspended, or modified, or in which the granting of an application is contested by a person having standing to contest under the law. (2) "Agency" means any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general except to the extent otherwise required by law and any local governmental entity that may request the appointment of an administrative law judge under chapter 42.41 RCW. (3) "Agency action" means licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits. Agency action does not include an agency decision regarding (a) contracting or procurement of goods, services, public works, and the purchase, lease, or acquisition by any other means, including eminent domain, of real estate, as well as all activities necessarily related to those functions, or (b) determinations as to the sufficiency of a showing of interest filed in support of a representation petition, or mediation or conciliation of labor disputes or arbitration of labor disputes under a collective bargaining law or similar statute, or (c) any sale, lease, contract, or other proprietary decision in the management of public lands or real property interests, or (d) the granting of a license, franchise, or permission for the use of trademarks, symbols, and similar property owned or controlled by the agency. (4) "Agency head" means the individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law. If the agency head is a body of individuals, a majority of those individuals constitutes the agency head. (5) "Entry" of an order means the signing of the order by all persons who are to sign the order, as an official act indicating that the order is to be effective. (6) "Filing" of a document that is required to be filed with an agency means delivery of the document to a place designated by the agency by rule for receipt of official documents, or in the absence of such designation, at the office of the agency head. (7) "Institutions of higher education" are the University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College, the various community colleges, and the governing boards of each of the above, and the various colleges, divisions, departments, or offices authorized by the governing board of the institution involved to act for the institution, all of which are sometimes referred to in this chapter as "institutions." (8) "Interpretive statement" means a written expression of the opinion of an agency, entitled an interpretive statement by the agency head or its designee, as to the meaning of a statute or other provision of law, of a court decision, or of an agency order. (9)(a) "License" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law, but does not include (i) a license required solely for revenue purposes, or (ii) a certification of an exclusive bargaining representative, or similar status, under a collective bargaining law or similar statute, or (iii) a license, franchise, or permission for use of trademarks, symbols, and similar property owned or controlled by the agency. (b) "Licensing" includes the agency process respecting the issuance, denial, revocation, suspension, or modification of a license. (10) "Mail" or "send," for purposes of any notice relating to rule making or policy or interpretive statements, means regular mail or electronic distribution, as provided in RCW 34.05.260. "Electronic distribution" or "electronically" means distribution by email or fax. (11)(a) "Order," without further qualification, means a written statement of particular applicability that finally determines the legal rights, duties, privileges, immunities, or other legal interests of a specific person or persons. (b) "Order of adoption" means the official written statement by which an agency adopts, amends, or repeals a rule. (12) "Party to agency proceedings," or "party" in a context so indicating, means: (a) A person to whom the agency action is specifically directed; or (b) A person named as a party to the agency proceeding or allowed to intervene or participate as a party in the agency proceeding. (13) "Party to judicial review or civil enforcement proceedings," or "party" in a context so indicating, means: (a) A person who files a petition for a judicial review or civil enforcement proceeding; or (b) A person named as a party in a judicial review or civil enforcement proceeding, or allowed to participate as a party in a judicial review or civil enforcement proceeding. (14) "Person" means any individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency. (15) "Policy statement" means a written description of the current approach of an agency, entitled a policy statement by the agency head or its designee, to implementation of a statute or other provision of law, of a court decision, or of an agency order, including where appropriate the agency's current practice, procedure, or method of action based upon that approach. (16) "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession; or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale. The term includes the amendment or repeal of a prior rule, but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, (ii) declaratory rulings issued pursuant to RCW 34.05.240, (iii) traffic restrictions for motor vehicles, bicyclists, and pedestrians established by the secretary of transportation or his or her designee where notice of such restrictions is given by official traffic control devices, or (iv) rules of institutions of higher education involving standards of admission, academic advancement, academic credit, graduation and the granting of degrees, employment relationships, or fiscal processes. (17) "Rules review committee" or "committee" means the joint administrative rules review committee created pursuant to RCW 34.05.610 for the purpose of selectively reviewing existing and proposed rules of state agencies. (18) "Rule making" means the process for formulation and adoption of a rule. (19) "Service," except as otherwise provided in this chapter, means posting in the United States mail, properly addressed, postage prepaid, or personal or electronic service. Service by mail is complete upon deposit in the United States mail. Agencies may, by rule, authorize service by electronic transmission, or by commercial parcel delivery company. [ 2019 c 8 s 701; 2014 c 97 s 101; 2013 c 110 s 3; 2011 c 336 s 762; 1997 c 126 s 2; 1992 c 44 s 10; 1989 c 175 s 1; 1988 c 288 s 101; 1982 c 10 s 5. Prior: 1981 c 324 s 2; 1981 c 183 s 1; 1967 c 237 s 1; 1959 c 234 s 1. Formerly RCW 34.04.010.] NOTES: Effective date— RCW 34.05.020 Savings—Authority of agencies to comply with chapter—Effect of subsequent legislation. Nothing in this chapter may be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. Every agency is granted all authority necessary to comply with the requirements of this chapter through the issuance of rules or otherwise. No subsequent legislation shall be held to supersede or modify the provisions of this chapter or its applicability to any agency except to the extent that such legislation shall do so expressly. [ 1988 c 288 s 102; 1967 c 237 s 24. Formerly RCW 34.04.940.] RCW 34.05.030 Exclusions from chapter or parts of chapter. (1) This chapter shall not apply to: (a) The state militia; or (b) The clemency and pardons board; or (c) The department of corrections or the indeterminate sentencing [sentence] review board with respect to persons who are in their custody or are subject to the jurisdiction of those agencies; or (d) The transportation commission when exercising its powers as the state tolling authority under RCW 47.56.850 and 47.56.877. (2) The provisions of RCW 34.05.410 through 34.05.598 shall not apply: (a) To adjudicative proceedings of the board of industrial insurance appeals except as provided in RCW 7.68.110 and 51.48.131; (b) Except for actions pursuant to chapter 46.29 RCW, to the denial, suspension, or revocation of a driver's license by the department of licensing; (c) To the department of labor and industries where another statute expressly provides for review of adjudicative proceedings of a department action, order, decision, or award before the board of industrial insurance appeals; (d) To actions of the Washington personnel resources board, the director of financial management, and the department of enterprise services when carrying out their duties under chapter 41.06 RCW; (e) To adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261; (f) To actions to implement the provisions of chapter 70A.02 RCW, except as specified in RCW 70A.02.130; or (g) To the extent they are inconsistent with any provisions of chapter 43.43 RCW. (3) Unless a party makes an election for a formal hearing pursuant to RCW 82.03.140 or 82.03.190, RCW 34.05.410 through 34.05.598 do not apply to a review hearing conducted by the board of tax appeals. (4) The rule-making provisions of this chapter do not apply to: (a) Reimbursement unit values, fee schedules, arithmetic conversion factors, and similar arithmetic factors used to determine payment rates that apply to goods and services purchased under contract for clients eligible under chapter 74.09 RCW; and (b) Adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261. (5) All other agencies, whether or not formerly specifically excluded from the provisions of all or any part of the administrative procedure act, shall be subject to the entire act. [ 2025 c 293 s 2; 2021 c 314 s 24; 2015 3rd sp.s. c 1 s 309; 2011 1st sp.s. c 43 s 431; 2006 c 300 s 4; 2002 c 354 s 225; 1994 c 39 s 1; 1993 c 281 s 15; 1989 c 175 s 2; 1988 c 288 s 103; 1984 c 141 s 8; 1982 c 221 s 6; 1981 c 64 s 2; 1979 c 158 s 90; 1971 ex.s. c 57 s 17; 1971 c 21 s 1; 1967 ex.s. c 71 s 1; 1967 c 237 s 7; 1963 c 237 s 1; 1959 c 234 s 15. Formerly RCW 34.04.150.] NOTES: Findings— RCW 34.05.040 Operation of chapter if in conflict with federal law. If any part of this chapter is found to be in conflict with federal requirements which are a condition precedent to the allocation of federal funds to the state, the conflicting part of this chapter is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and such findings or determination shall not affect the operation of the remainder of this chapter in its application to the agencies concerned. [ 1988 c 288 s 104; 1959 c 234 s 19. Formerly RCW 34.04.930.] RCW 34.05.050 Waiver. Except to the extent precluded by another provision of law, a person may waive any right conferred upon that person by this chapter. [ 1988 c 288 s 105.] RCW 34.05.060 Informal settlements. Except to the extent precluded by another provision of law and subject to approval by agency order, informal settlement of matters that may make unnecessary more elaborate proceedings under this chapter is strongly encouraged. Agencies may establish by rule specific procedures for attempting and executing informal settlement of matters. This section does not require any party or other person to settle a matter. [ 1988 c 288 s 106.] RCW 34.05.070 Conversion of proceedings. (1) If it becomes apparent during the course of an adjudicative or rule-making proceeding undertaken pursuant to this chapter that another form of proceeding under this chapter is necessary, is in the public interest, or is more appropriate to resolve issues affecting the participants, on his or her own motion or on the motion of any party, the presiding officer or other official responsible for the original proceeding shall advise the parties of necessary steps for conversion and, if within the official's power, commence the new proceeding. If the agency refuses to convert to another proceeding, that decision is not subject to judicial review. Commencement of the new proceeding shall be accomplished pursuant to the procedural rules of the new proceeding, except that elements already performed need not be repeated. (2) If appropriate, a new proceeding may be commenced independently of the original proceeding or may replace the original proceeding. (3) Conversion to a replacement proceeding shall not be undertaken if the rights of any party will be substantially prejudiced. (4) To the extent feasible the record of the original proceeding shall be included in the record of a replacement proceeding. (5) The time of commencement of a replacement proceeding shall be considered to be the time of commencement of the original proceeding. [ 1988 c 288 s 107.] RCW 34.05.080 Variation from time limits. (1) An agency may modify time limits established in this chapter only as set forth in this section. An agency may not modify time limits relating to rule-making procedures or the time limits for filing a petition for judicial review specified in RCW 34.05.542. (2) The time limits set forth in this chapter may be modified by rule of the agency or by rule of the chief administrative law judge if: (a) The agency has an agency head composed of a body of individuals serving part time who do not regularly meet on a schedule that would allow compliance with the time limits of this chapter in the normal course of agency affairs; (b) The agency does not have a permanent staff to comply with the time limits set forth in this chapter without substantial loss of efficiency and economy; and (c) The rights of persons dealing with the agency are not substantially impaired. (3) The time limits set forth in this chapter may be modified by rule if the agency determines that the change is necessary to the performance of its statutory duties. Agency rule may provide for emergency variation when required in a specific case. (4) Time limits may be changed pursuant to RCW 34.05.040. (5) Time limits may be waived pursuant to RCW 34.05.050. (6) Any modification in the time limits set forth in this chapter shall be to new time limits that are reasonable under the specific circumstances. (7) In an adjudicative proceeding, any agency whose time limits vary from those set forth in this chapter shall provide reasonable and adequate notice of the pertinent time limits to persons affected. The notice may be given by the presiding or reviewing officer involved in the proceeding. (8) Two years after July 1, 1989, the chief administrative law judge shall cause a survey to be made of variations by agencies from the time limits set forth in this chapter, and shall submit a written report of the results of the survey to the office of the governor. [ 1989 c 175 s 3; 1988 c 288 s 108.] NOTES: Effective date— RCW 34.05.090 Forest practices board—Emergency rules. Emergency rules adopted by the forest practices board pertaining to forest practices and the protection of aquatic resources are subject to this chapter to the extent provided in RCW 76.09.055. [ 1999 sp.s. c 4 s 202.] NOTES: Effective date— RCW 34.05.100 Respectful language. (1) All agency orders creating new rules, or amending existing rules, shall be formulated in accordance with the requirements of RCW 44.04.280 regarding the use of respectful language. (2) No agency rule is invalid because it does not comply with this section. [ 2004 c 175 s 2.] RCW 34.05.110 Violations of state law or agency rule by small businesses—Notice requirements—Waiver of penalty for first-time paperwork violations. (1) Agencies must provide to a small business a copy of the state law or agency rule that a small business is violating and a period of at least seven calendar days to correct the violation before the agency may impose any fines, civil penalties, or administrative sanctions for a violation of a state law or agency rule by a small business. If no correction is possible or if an agency is acting in response to a complaint made by a third party and the third party would be disadvantaged by the application of this subsection, the requirements in this subsection do not apply. (2) Except as provided in subsection (4) of this section, agencies shall waive any fines, civil penalties, or administrative sanctions for first-time paperwork violations by a small business. (3) When an agency waives a fine, penalty, or sanction under this section, when possible it shall require the small business to correct the violation within a reasonable period of time, in a manner specified by the agency. If correction is impossible, no correction may be required and failure to correct is not grounds for reinstatement of fines, penalties, or sanctions under subsection (5)(b) of this section. (4) Exceptions to requirements of subsection (1) of this section and the waiver requirement in subsection (2) of this section may be made for any of the following reasons: (a) The agency head determines that the effect of the violation or waiver presents a direct danger to the public health, results in a loss of income or benefits to an employee, poses a potentially significant threat to human health or the environment, or causes serious harm to the public interest; (b) The violation involves a knowing or willful violation; (c) The violation is of a requirement concerning the assessment, collection, or administration of any tax, tax program, debt, revenue, receipt, a regulated entity's financial filings, or insurance rate or form filing; (d) The requirements of this section are in conflict with federal law or program requirements, federal requirements that are a prescribed condition to the allocation of federal funds to the state, or the requirements for eligibility of employers in this state for federal unemployment tax credits, as determined by the agency head; (e) The small business committing the violation previously violated a substantially similar requirement; or (f) The owner or operator of the small business committing the violation owns or operates, or owned or operated a different small business which previously violated a substantially similar requirement. (5)(a) Nothing in this section prohibits an agency from waiving fines, civil penalties, or administrative sanctions incurred by a small business for a paperwork violation that is not a first-time offense. (b) Any fine, civil penalty, or administrative sanction that is waived under this section may be reinstated and imposed in addition to any additional fines, penalties, or administrative sanctions associated with a subsequent violation for noncompliance with a substantially similar paperwork requirement, or failure to correct the previous violation as required by the agency under subsection (3) of this section. (6) Nothing in this section may be construed to diminish the responsibility for any citizen or business to apply for and obtain a permit, license, or authorizing document that is required to engage in a regulated activity, or otherwise comply with state or federal law. (7) Nothing in this section shall be construed to apply to small businesses required to provide accurate and complete information and documentation in relation to any claim for payment of state or federal funds or who are licensed or certified to provide care and services to vulnerable adults or children. (8) Nothing in this section affects the attorney general's authority to impose fines, civil penalties, or administrative sanctions as otherwise authorized by law; nor shall this section affect the attorney general's authority to enforce the consumer protection act, chapter 19.86 RCW. (9) As used in this section: (a) "Small business" means a business with two hundred fifty or fewer employees or a gross revenue of less than seven million dollars annually as reported on its most recent federal income tax return or its most recent return filed with the department of revenue. (b) "Paperwork violation" means the violation of any statutory or regulatory requirement that mandates the collection of information by an agency, or the collection, posting, or retention of information by a small business. This includes but is not limited to requirements in the Revised Code of Washington, the Washington Administrative Code, the Washington State Register, or any other agency directive. (c) "First-time paperwork violation" means the first instance of a particular or substantially similar paperwork violation. [ 2011 c 18 s 1; 2010 c 194 s 1; 2009 c 358 s 1.] RCW 34.05.120 Extension of rights and responsibilities—State registered domestic partnerships. (1) Subject to the availability of funds appropriated for this specific purpose, except where inconsistent with federal law or regulations applicable to federal benefit programs, agencies shall amend their rules to reflect the intent of the legislature to ensure that all privileges, immunities, rights, benefits, or responsibilities granted or imposed by statute to an individual because that individual is or was a spouse in a marital relationship are granted or imposed on equivalent terms to an individual because that individual is or was in a state registered domestic partnership. (2) Except where inconsistent with federal law or regulations applicable to federal benefit programs, all agency orders creating new rules, or amending existing rules, shall be formulated to reflect the intent stated in subsection (1) of this section. (3) No agency rule is invalid because it does not comply with this section. [ 2009 c 521 s 2.] RCW 34.05.210 Code and register—Publication and distribution—Omissions, removals, revisions—Judicial notice. (1)(a) The code reviser shall cause the Washington Administrative Code to be compiled, indexed by subject, and published. All current, permanently effective rules of each agency shall be published in the Washington Administrative Code. Compilations shall be supplemented or revised as often as necessary and at least annually in a form compatible with the main compilation. (b) The statute law committee, in its discretion, may publish the official copy of the Washington Administrative Code in a digital format on the code reviser or legislative website. (c) The code reviser shall provide a paper copy of the entire Washington Administrative Code or any section or sections of the code upon request. The code reviser may charge a minimal fee sufficient to cover costs of printing and mailing the paper copy. (d) The code reviser shall provide a limited number of free paper copies of the Washington Administrative Code to libraries or institutions on request for access and archival purposes. (2) Subject to the provisions of this chapter, the code reviser shall prescribe a uniform numbering system, form, and style for all proposed and adopted rules. (3) The code reviser shall publish a register setting forth the text of all rules filed during the appropriate register publication period. (4) The code reviser may omit from the register or the compilation, rules that would be unduly cumbersome, expensive, or otherwise inexpedient to publish, if such rules are made available in printed or processed form on application to the adopting agency, and if the register or compilation contains a notice stating the general subject matter of the rules so omitted and stating how copies thereof may be obtained. (5) The code reviser may edit and revise rules for publication, codification, and compilation, without changing the meaning of any such rule. (6) When a rule, in whole or in part, is declared invalid and unconstitutional by a court of final appeal, the adopting agency shall give notice to that effect in the register. With the consent of the attorney general, the code reviser may remove obsolete rules or parts of rules from the Washington Administrative Code when: (a) The rules are declared unconstitutional by a court of final appeal; or (b) The adopting agency ceases to exist and the rules are not transferred by statute to a successor agency. (7) Compilations and registers shall be made available for purchase, in print or tangible, digital format, at a price fixed by the code reviser. (8) The board of law library trustees of each county shall keep and maintain a complete and current set of registers and compilations when required for use and inspection as provided in chapter 27.24 RCW. If the register or compilation is published in digital format on the code reviser or legislative website, providing on-site access to the digital version of the register shall satisfy the requirements of this subsection for access to the register. (9) Judicial notice shall be taken of rules filed and published as provided in RCW 34.05.380 and this section. [ 2011 c 156 s 4; 2007 c 456 s 3; 1988 c 288 s 201; 1982 1st ex.s. c 32 s 7; 1980 c 186 s 12; 1977 ex.s. c 240 s 9; 1959 c 234 s 5. Formerly RCW 34.04.050.] NOTES: Purpose— RCW 34.05.220 Rules for agency procedure—Indexes of opinions and statements. (1) In addition to other rule-making requirements imposed by law: (a) Each agency may adopt rules governing the formal and informal procedures prescribed or authorized by this chapter and rules of practice before the agency, together with forms and instructions. If an agency has not adopted procedural rules under this section, the model rules adopted by the chief administrative law judge under RCW 34.05.250 govern procedures before the agency. (b) To assist interested persons dealing with it, each agency shall adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information and make submissions or requests. No person may be required to comply with agency procedure not adopted as a rule as herein required. (2) To the extent not prohibited by federal law or regulation, nor prohibited for reasons of confidentiality by state law, each agency shall keep on file for public inspection all final orders, decisions, and opinions in adjudicative proceedings, interpretive statements, policy statements, and any digest or index to those orders, decisions, opinions, or statements prepared by or for the agency. (3) No agency order, decision, or opinion is valid or effective against any person, nor may it be invoked by the agency for any purpose, unless it is available for public inspection. This subsection is not applicable in favor of any person who has actual knowledge of the order, decision, or opinion. The agency has the burden of proving that knowledge, but may meet that burden by proving that the person has been properly served with a copy of the order. (4) Each agency that is authorized by law to exercise discretion in deciding individual cases is encouraged to formalize the general principles that may evolve from these decisions by adopting the principles as rules that the agency will follow until they are amended or repealed. (5) To the extent practicable, any rule proposed or adopted by an agency should be clearly and simply stated, so that it can be understood by those required to comply. (6) The departments of employment security, labor and industries, ecology, and revenue shall develop and use a notification process to communicate information to the public regarding the postadoption notice required by RCW 34.05.362. [ 2003 c 246 s 2; 1994 c 249 s 24; 1989 c 175 s 4; 1988 c 288 s 202; 1981 c 67 s 13; 1967 c 237 s 2; 1959 c 234 s 2. Formerly RCW 34.04.020.] NOTES: Finding— RCW 34.05.230 Interpretive and policy statements. (1) An agency is encouraged to advise the public of its current opinions, approaches, and likely courses of action by means of interpretive or policy statements. Current interpretive and policy statements are advisory only. To better inform and involve the public, an agency is encouraged to convert long-standing interpretive and policy statements into rules. (2) A person may petition an agency requesting the conversion of interpretive and policy statements into rules. Upon submission, the agency shall notify the joint administrative rules review committee of the petition. Within sixty days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for the denial, or initiate rule-making proceedings in accordance with this chapter. (3) Each agency shall maintain a roster of interested persons, consisting of persons who have requested in writing to be notified of all interpretive and policy statements issued by that agency. Each agency shall update the roster periodically and eliminate persons who do not indicate a desire to continue on the roster. Whenever an agency issues an interpretive or policy statement, it shall send a copy of the statement to each person listed on the roster. The agency may charge a nominal fee to the interested person for this service. (4) Whenever an agency issues an interpretive or policy statement, it shall submit to the code reviser for publication in the Washington State Register a statement describing the subject matter of the interpretive or policy statement, and listing the person at the agency from whom a copy of the interpretive or policy statement may be obtained. [ 2004 c 31 s 3; 2001 c 25 s 1; 1997 c 409 s 202; 1996 c 206 s 12; 1995 c 403 s 702; 1988 c 288 s 203.] NOTES: Part headings— RCW 34.05.240 Declaratory order by agency—Petition. (1) Any person may petition an agency for a declaratory order with respect to the applicability to specified circumstances of a rule, order, or statute enforceable by the agency. The petition shall set forth facts and reasons on which the petitioner relies to show: (a) That uncertainty necessitating resolution exists; (b) That there is actual controversy arising from the uncertainty such that a declaratory order will not be merely an advisory opinion; (c) That the uncertainty adversely affects the petitioner; (d) That the adverse effect of uncertainty on the petitioner outweighs any adverse effects on others or on the general public that may likely arise from the order requested; and (e) That the petition complies with any additional requirements established by the agency under subsection (2) of this section. (2) Each agency may adopt rules that provide for: (a) The form, contents, and filing of petitions for a declaratory order; (b) the procedural rights of persons in relation thereto; and (c) the disposition of those petitions. These rules may include a description of the classes of circumstances in which the agency will not enter a declaratory order and shall be consistent with the public interest and with the general policy of this chapter to facilitate and encourage agencies to provide reliable advice. (3) Within fifteen days after receipt of a petition for a declaratory order, the agency shall give notice of the petition to all persons to whom notice is required by law, and may give notice to any other person it deems desirable. (4) RCW 34.05.410 through 34.05.494 apply to agency proceedings for declaratory orders only to the extent an agency so provides by rule or order. (5) Within thirty days after receipt of a petition for a declaratory order an agency, in writing, shall do one of the following: (a) Enter an order declaring the applicability of the statute, rule, or order in question to the specified circumstances; (b) Set the matter for specified proceedings to be held no more than ninety days after receipt of the petition; (c) Set a specified time no more than ninety days after receipt of the petition by which it will enter a declaratory order; or (d) Decline to enter a declaratory order, stating the reasons for its action. (6) The time limits of subsection (5) (b) and (c) of this section may be extended by the agency for good cause. (7) An agency may not enter a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding. (8) A declaratory order has the same status as any other order entered in an agency adjudicative proceeding. Each declaratory order shall contain the names of all parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusions. [ 1988 c 288 s 204; 1959 c 234 s 8. Formerly RCW 34.04.080.] RCW 34.05.250 Model rules of procedure. The chief administrative law judge shall adopt model rules of procedure appropriate for use by as many agencies as possible. The model rules shall deal with all general functions and duties performed in common by the various agencies. Each agency shall adopt as much of the model rules as is reasonable under its circumstances. Any agency adopting a rule of procedure that differs from the model rules shall include in the order of adoption a finding stating the reasons for variance. [ 1988 c 288 s 205.] RCW 34.05.260 Electronic distribution. (1) In order to provide the greatest possible access to agency documents to the most people, agencies are encouraged to make their rule, interpretive, and policy information available through electronic distribution as well as through the regular mail. Agencies that have the capacity to transmit electronically may ask persons who are on mailing lists or rosters for copies of interpretive statements, policy statements, preproposal statements of inquiry, and other similar notices whether they would like to receive the notices electronically. (2) Electronic distribution to persons who request it may substitute for mailed copies related to rule making or policy or interpretive statements. If a notice is distributed electronically, the agency is not required to transmit the actual notice form but must send all the information contained in the notice. (3) Agencies which maintain mailing lists or rosters for any notices relating to rule making or policy or interpretive statements may establish different rosters or lists by general subject area. [ 1997 c 126 s 1.] RCW 34.05.270 Agency websites for rule-making information. Within existing resources, each state agency shall maintain a website that contains the agency's rule-making information. A direct link to the agency's rule-making page must be displayed on the agency's homepage. The rule-making website shall include the complete text of all proposed rules, emergency rules, and permanent rules proposed or adopted within the past twelve months, or include a direct link to the index page on the Washington State Register website that contains links to the complete text of all proposed rules, emergency rules, and permanent rules proposed or adopted within the past twelve months by that state agency. For proposed rules, the time, date, and place for the rule-making hearing and the procedures and timelines for submitting written comments and supporting data must be posted on the website. [ 2009 c 93 s 1.] RCW 34.05.271 Department of fish and wildlife—Significant agency action—Identification and categorization of sources of information used. (1)(a) Before taking a significant agency action, the department of fish and wildlife 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 fish and wildlife 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 fish and wildlife 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 fish and wildlife; (iii) External peer review: Review by persons that are external to and selected by the department of fish and wildlife; (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 fish and wildlife employees or other individuals; or (viii) Other: Sources of information that do not fit into one of the categories identified in this subsection (1)(c). (2)(a) For the purposes of this section, "significant agency action" means an act of the department of fish and wildlife that: (i) Results in the development of a significant legislative rule as defined in RCW 34.05.328; (ii) 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; or (iii) Results in the development of fish and wildlife recovery plans. (b) "Significant agency action" does not include rule making by the department of fish and wildlife associated with fishing and hunting rules. (3) 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. [ 2014 c 21 s 1; 2013 c 68 s 2.] NOTES: Finding— RCW 34.05.272 Department of ecology—Significant agency action—Identification and categorization of sources of information used. (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— RCW 34.05.310 Prenotice inquiry—Negotiated and pilot rules. (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— RCW 34.05.312 Rules coordinator. Each agency shall designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed or prepared within the agency for proposal, maintain the records of any such action, and respond to public inquiries about possible, 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— RCW 34.05.313 Feasibility studies—Pilot projects. (1) During the development of a rule or after its adoption, an agency may develop methods for measuring or testing the feasibility of complying with or administering the rule and for identifying simple, efficient, and economical alternatives for achieving the goal of the rule. A pilot project shall include public notice, participation by volunteers who are or will be subject to the rule, a high level of involvement from agency management, reasonable completion dates, and a process by which one or more parties may withdraw from the 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— RCW 34.05.314 Rules development agenda. Each state agency shall prepare a semiannual agenda for rules under development. The agency shall file the agenda with the code reviser for publication in the state register not later than January 31st and July 31st of each year. Not later than three days after its publication in the state register, the agency shall send a copy of the agenda to each person who has requested receipt of a copy of the agenda. The agency shall also submit the agenda to the director of financial management, the rules review committee, and any other state agency that may reasonably be expected to have an interest in the subject of rules that will be developed. [ 1997 c 409 s 206.] NOTES: Part headings— RCW 34.05.315 Rule-making docket. (1) Each agency shall maintain a current public rule-making docket. The rule-making docket shall contain the information specified in subsection (3) of this section. (2) The rule-making docket shall contain a listing of each pending rule-making proceeding. A rule-making proceeding is pending from the time it is commenced by publication of a notice of proposed rule adoption under RCW 34.05.320 until the proposed rule is withdrawn under RCW 34.05.335 or is adopted by the agency. (3) For each rule-making proceeding, the docket shall indicate all of the following: (a) The name and address of agency personnel responsible for the proposed rule; (b) The subject of the proposed rule; (c) A citation to all notices relating to the proceeding that have been published in the state register under RCW 34.05.320; (d) The place where written submissions about the proposed rule may be inspected; (e) The time during which written submissions will be accepted; (f) The current timetable established 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— RCW 34.05.320 Notice of proposed rule—Contents—Distribution by agency—Institutions of higher education. (1) At least twenty days before the rule-making hearing at which the agency receives public comment regarding adoption of a rule, the agency shall cause notice of the hearing to be published in the state register. The publication constitutes the proposal of a rule. The notice shall include all of the following: (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— RCW 34.05.322 Scope of rule-making authority. For rules implementing statutes enacted after July 23, 1995, an agency may not rely solely on the section of law stating a statute's intent or purpose, or on the enabling provisions of the statute establishing the agency, or on any combination of such provisions, for its statutory authority to adopt the rule. An agency may use the statement of intent or purpose or the agency enabling provisions to interpret ambiguities in a