AN ACT Relating to administrative law; amending RCW 34.04.025 and 34.04.030; adding new sections to chapter 34.04 RCW; creating new sections; repealing RCW 28B.19.010, 28B.19.020, 28B.19.030, 28B.19.033, 28B.19.037, 28B.19.040, 28B.19.050, 28B.19.060, 28B.19.070, 28B.19.073, 28B.19.077, 28B.19.080, 28B.19.090, 28B.19.100, 28B.19.110, 28B.19.120, 28B.19.130, 28B.19.140, 28B.19.150, 28B.19.160, 28B.19.163, 28B.19.165, 28B.19.168, 28B.19.200, 28B.19.210, 34.04.010, 34.04.020, 34.04.022, 34.04.025, 34.04.026, 34.04.027, 34.04.030, 34.04.040, 34.04.045, 34.04.048, 34.04.050, 34.04.052, 34.04.055, 34.04.057, 34.04.058, 34.04.060, 34.04.070, 34.04.080, 34.04.090, 34.04.100, 34.04.105, 34.04.110, 34.04.120, 34.04.130, 34.04.133, 34.04.135, 34.04.140, 34.04.150, 34.04.170, 34.04.270, 34.04.280, 34.04.290, 34.04.900, 34.04.901, 34.04.910, 34.04.920, 34.04.921, 34.04.930, 34.04.931, and 34.04.940; repealing section 19, chapter 57, Laws of 1971 ex. sess. (uncodified); repealing section 22, chapter 57, Laws of 1971 ex. sess. (uncodified); and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: PART I.

GENERAL PROVISIONS

NEW SECTION. Sec. 1. DEFINITIONS. The definitions set forth in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Agency" means each board, commission, department, institution of higher education, officer, or other administrative unit of this state, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly acting under the authority of the agency head. The term does not include the legislative branch, the judicial branch, the governor, or the attorney general except to the extent otherwise required by law. To the extent it exercises authority subject to any provision of this chapter, an administrative unit otherwise qualifying as an "agency" shall be treated as a separate agency even if the unit is located within or subordinate to another agency.

(2) "Agency action" means any of the following:

(a) The whole or part of a rule or an order;

(b) The agency's performance of, or failure to perform any other duty, function, or activity that is required by law; or

Agency action, for purposes of this chapter, does not include an agency decision regarding (i) contracting or procurement of goods, services, public works, and the purchase, lease, or acquisition by eminent domain of real estate, as well as all activities necessarily related to those functions, or (ii) 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 (iii) any sale, lease, contract, or other proprietary decision of the department of natural resources in the management of public lands, or (iv) the granting of a license, franchise, or permission for the use of trademarks, symbols, and similar property owned or controlled by the agency.

(3) "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.

(4) "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.

(5) "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.

(6) "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."

(7) "Interpretive statement" means a written expression of the opinion of an agency, so designated 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.

(8) (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 grant, denial, renewal, revocation, suspension, annulment, withdrawal, or modification of a license.

(9) (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.

(10) "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.

(11) "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.

(12) "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.

(13) "Policy statement" means a written description of the current approach of an agency, so designated 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.

(14) "Provision of law" or "law" means the whole or a part of the federal or state Constitution, or of any federal or state statute, rule of court, executive order, or rule of an administrative agency.

(15) "Rule" means the whole or part of any agency directive of general applicability (a) a violation of which subjects a person to a penalty or administrative sanction; (b) that establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) that establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) that 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) that establishes, alters, or revokes any mandatory standards for any product or material that 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 orders entered pursuant to section 12 of this act, (iii) traffic restrictions for motor vehicles, bicyclists, and pedestrians established by the secretary of transportation or his designee where notice of such restrictions is given by official traffic control devices, or (iv) rules of institutions of higher education involving academic advancement, academic credit, graduation and the granting of degrees, employment relationships, and fiscal processes.

(16) "Rule making" means the process for formulation and adoption of a rule.

(17) "Service" means posting in the United States mail, properly addressed, postage prepaid, or personal service as provided by law. Service by mail is complete upon posting.

NEW SECTION. Sec. 2. CONSTRUCTION. This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by all other statutes. This chapter takes precedence over all other statutes now in existence or subsequently enacted that appear to diminish a right created or duty imposed by this chapter, except to the extent another statute expressly provides that it takes precedence over this chapter.

NEW SECTION. Sec. 3. LIMITED EXEMPTIONS. (1) Special and unique circumstances justify the following limited exemptions from the provisions of this chapter as specified in this section.

(2) The provisions of this chapter do not apply (a) to the board of clemency and pardons, or (b) to the department of corrections or the indeterminate sentencing review board with respect to offenders, as that term is defined in RCW 9.94A.030(13), who are subject to the jurisdiction of those agencies, or (c) to the state militia.

(3) Sections 35 through 87 of this act do not apply to adjudicative proceedings of the board of industrial insurance appeals, nor do they apply 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.

(4) Sections 35 through 87 of this act do not apply to actions of the state personnel board, the higher education personnel board, or the personnel appeals board.

(5) Sections 35 through 87 of this act do not apply to adjudicative proceedings pursuant to chapter 43.43 RCW to the extent those sections are inconsistent with provisions of chapter 43.43 RCW.

NEW SECTION. Sec. 4. OPERATION OF CHAPTER IF IN CONFLICT WITH FEDERAL LAW. If any part of this chapter is found to be in conflict with federal requirements that 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.

NEW SECTION. Sec. 5. WAIVER. Except to the extent precluded by another provision of law, a person may waive any right conferred upon that person by this chapter.

NEW SECTION. Sec. 6. SETTLEMENTS. Except to the extent precluded by another provision of law and subject to approval by agency order, 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 settlement of matters. This section does not require any party or other person to settle a matter.

NEW SECTION. Sec. 7. CONVERSION OF PROCEEDINGS. (1) When, during the course of an adjudicative or rule-making proceeding undertaken pursuant to this chapter, it becomes apparent that another form of proceeding under this chapter is necessary, in the public interest, or more appropriate to resolve issues affecting the participants, the presiding officer or other official responsible for the original proceeding, shall, on his or her own motion or on the motion of any party, advise the parties of necessary steps for conversion and, if within the official's power, commence the new proceeding. 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) Where 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 where doing so would substantially prejudice the rights of any party.

(4) The record of the original proceeding shall be included in the record of a replacement proceeding to the extent feasible.

(5) The time of commencement of a proceeding shall be considered to be the time of commencement of the original proceeding.

NEW SECTION. Sec. 8. VARIATION FROM TIME LIMITS. (1) The time limits set forth in this chapter for the taking of action by an agency or other person may be increased or decreased only as set forth in this section. Subsections (2), (3), (4), and (5) of this section are alternative standards.

(2) The time limits set forth in this chapter may be increased or decreased for an agency 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 who could arrange agency affairs to comply with the time limits set forth in this chapter without substantial loss of efficiency and economy; and

(3) The time limits set forth in this chapter may be increased or decreased by agency 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 section 4 of this act.

(5) Time limits may be waived pursuant to section 5 of this act.

(6) Any increase or decrease in the time limits set forth in this chapter shall be to new time limits that are reasonable under the specific circumstances.

(7) In any rule-making or 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. In an adjudicative proceeding, such notice may be given by the presiding or reviewing officer involved in the proceeding. In a rule-making proceeding, the notice may be given in the notice of proposed rule-making.

(8) Two years after the effective date of this section, the chief administrative law judge shall cause a survey to be made of variations by agencies from the time limits set forth in other sections of this chapter, and shall prepare a written report of the results of the survey to the office of the governor. The report shall be made immediately available to the public.

PART II.

PUBLIC ACCESS TO AGENCY RULES

NEW SECTION. Sec. 9. PUBLICATION OF REGISTER AND ADMINISTRATIVE CODE. (1) The requirements of this section are in addition to any publication requirements of chapter 42.17 RCW.

(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, and has authority to edit the rules for clarity and accuracy and to correct ministerial mistakes, but without changing the meaning of any rule.

(3) The code reviser shall publish a register in which the text of all rule-making actions filed during the appropriate register publication period shall appear.

(4) The code reviser shall cause the Washington Administrative Code to be compiled, indexed by subject, and published. All of the current, permanently effective rules of each agency shall be published and indexed in that publication. The code reviser shall also cause supplements to be published at least annually in a form compatible with the main compilation.

(5) The code reviser may omit from the register or the code any rules, the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if such rules are made available on application to the adopting agency, and if the register or the code contains a notice stating the general subject matter of the rules that have been omitted and stating how copies of them may be obtained.

(6) The code reviser shall supply registers and codes upon request and without charge to state elected officials whose offices are created by Article II or Article III of the state Constitution or by RCW 48.02.010, and without request or charge to county boards of law library trustees. Other persons may purchase these materials at a price fixed by the code reviser.

(7) Judicial notice shall be taken of rules filed and published as provided in this section.

NEW SECTION. Sec. 10. PUBLIC ACCESS TO INTERPRETIVE AND POLICY STATEMENTS. (1) The requirements of this section are subject to any publication or access requirements of chapter 42.17 RCW.

(2) Each agency and each branch, office, or subdivision of each agency shall maintain a current and dated compilation that is indexed by subject, containing all interpretive or policy statements of the agency, branch, office, or other subdivision that are so designated after the effective date of this section. Each compilation shall be available for public inspection and copying. Each agency shall maintain an interested persons roster, consisting of persons who have requested in writing to be notified of all interpretive and policy statements issued by that agency. The agencies shall update their interested person rosters once each year and eliminate persons who do not indicate a desire to continue on the interested persons roster. Whenever an agency issues an interpretive or policy statement, it shall send a copy of such statement to each person listed on the interested persons roster. The agency may charge a nominal fee to the interested person for this service.

(3) Each agency may adopt rules designating the employees or classes of employees of the agency and of each branch, office, or subdivision who have the authority to make interpretive and policy statements.

(4) This section shall not be construed to require that interpretive and policy statements be uniform between branches, offices, or subdivisions of the same agency where uniformity is impracticable.

NEW SECTION. Sec. 11. PUBLIC INSPECTION AND COPYING OF AGENCY ORDERS. (1) Subject to the requirements of chapter 42.17 RCW, each agency shall:

(a) Make available for public inspection and copying all written final orders. An agency shall delete from those orders material to the extent required by any provision of law or necessary to prevent a clearly unwarranted invasion of privacy or release of trade secrets. In each case, the justification for the deletion must be explained in writing and attached to the order.

(b) Maintain and make available for public inspection and copying an index by name and subject of written final orders, issued after the effective date of this section, that the agency considers as a guide to future decision making.

(2) A written final order may not be relied on as precedent by an agency to the detriment of any person until it has been made available for public inspection and indexed in the manner described in subsection (1)(b) of this section. This provision is inapplicable to any person who has actual knowledge of the order. 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.

(3) An agency may use an outside service to prepare the index specified in subsection (1)(b) of this section. Use of an outside service does not relieve the agency of the requirement to make the index available for public inspection and copying.

NEW SECTION. Sec. 12. DECLARATORY ORDERS. (1) Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of 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;

(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.

The petition shall be verified by the petitioner.

(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) Provisions of Part IV of this chapter 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) An agency may decline to enter a declaratory order for reasons including, but not limited to, the following:

(a) The plaintiff is not an interested party;

(b) The lack of uncertainty necessitating resolution;

(d) The lack of an adverse effect of uncertainty on the petitioner;

(e) The adverse effects of a declaratory order on others or on the public, including the agency's costs in undertaking to reach a decision, outweighs any adverse effect of uncertainty on the petitioner;

(f) The declaratory order requested is outside established budget constraints and agency priorities;

(g) Any reason established by the agency pursuant to subsection (2) of this section; or

(h) Any other proper reason.

(7) The time limits of subsection (5)(b) and (c) of this section may be extended by the agency for good cause.

(8) 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.

(9) A copy of all orders entered in response to a petition for a declaratory order shall be mailed promptly to the petitioner and any other parties.

(10) 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.

NEW SECTION. Sec. 13. REQUIRED RULE MAKING. (1) In addition to other rule-making requirements imposed by any provision of law, each agency shall, as soon as feasible and to the extent practicable for general application, adopt rules to set forth principles of law or policy that have been lawfully declared by the agency as the basis for its decisions in particular cases.

(2) Any person who claims that an agency has failed to adopt rules as required by this section may petition the agency to request the adoption of rules pursuant to section 34 of this act. An agency's failure to adopt rules as required by this section shall not invalidate an agency order or other action that is otherwise lawful.

NEW SECTION. Sec. 14. USE OF INTERPRETIVE AND POLICY STATEMENTS. In all situations where the adoption of rules is not feasible and practicable, an agency is encouraged to advise the public of its current opinions, approaches, and likely courses of action by means of interpretive and policy statements. Current interpretive and policy statements are advisory and shall not bind an agency to any particular future action or course of action in any particular case. However, agency actions shall be consistent with interpretive and policy statements unless there is a fair and rational basis for deviation which in the public interest outweighs any hardship to a person from deviation. An agency is encouraged to convert long-standing interpretive and policy statements into rules.

NEW SECTION. Sec. 15. 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 practicable 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 why the relevant portions of the model rules were impracticable under the circumstances.

PART III.

RULE-MAKING PROCEDURES

NEW SECTION. Sec. 16. SOLICITATION OF COMMENTS BEFORE NOTICE PUBLICATION. (1) In addition to seeking information by other methods, an agency may, before publication of a notice of a proposed rule adoption under section 17 of this act, solicit comments from the public on a subject of possible rule making under active consideration within the agency, by causing notice to be published in the state register of the subject matter and indicating where, when, and how persons may comment.

(2) Each agency may appoint committees to comment, before publication of a notice of proposed rule adoption under section 16 of this act, on the subject of a possible rule-making action under active consideration within the agency.

(3) Each agency shall designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed or prepared within the agency for proposal, maintain the records of any such action, and respond to public inquiries about possible or proposed rules and the identity of agency staff persons working, reviewing, or commenting on them. The office and mailing address of the rules coordinator shall be published in the state register at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation.

NEW SECTION. Sec. 17. RULE-MAKING DOCKET. (1) Each agency shall maintain a current public rule-making docket. The rule-making docket shall contain a listing of the subject of each rule currently being prepared by the agency for proposal under section 18 of this act, the name and address of agency personnel with whom persons may communicate with respect to the proposal, and an indication of the present status of that possible rule.

(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 section 18 of this act until it is terminated under section 20(3) of this act.

(3) For each rule-making proceeding, the docket shall indicate all of the following:

(a) The subject of the proposed rule;

(b) A citation to all notices relating to the proceeding that have been published in the state register under section 18 of this act;

(d) The time during which written submissions will be accepted;

(e) 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, indexing, publication, and its effective date.

NEW SECTION. Sec. 18. NOTICE OF PROPOSED RULE MAKING. (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 short explanation of the purpose of the rule, including, in the case of a proposal that would modify existing rules, a short description of the changes that the proposal would make;

(b) The specific legal authority for the proposed rule;

(d) Where, when, and how persons may present their views on the proposed rule;

(e) The time and place of adoption of the proposed rule;

(f) A brief analysis describing the expected effects of the proposed rule, and identifying the classes of persons believed by the agency to be substantially affected by the proposal; and

(g) A written analysis of the proposed rule, including but not limited to background information and the effects of the rule, and any anticipated changes in state revenues and state expenditures; and

(h) A small business economic impact statement if required by chapter 19.85 RCW.

(2) No later than three days after its publication in the state register, the agency shall cause a copy of the notice of proposed rule adoption to be mailed to each person who has made a timely request to the agency for a mailed copy of such notices. An agency may charge persons for the actual cost of providing them individual mailed copies of those notices.

(3) In addition to the notices 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 and in a newspaper of general circulation in the area at least seven days before the rule-making hearing.

NEW SECTION. Sec. 19. PUBLIC PARTICIPATION IN RULE MAKING. (1) Written comment about the proposed rule, including supporting data, shall be accepted by the 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 to afford interested persons the opportunity to present comments.

(2) Oral comment about the proposed rule shall be received by the agency in a rule-making hearing.

(3) The agency head, a member of the agency head, or a presiding officer designated by the agency head shall preside at the rule-making hearing. Rule-making hearings shall be open to the public. The agency shall cause a record to be made of the hearing by stenographic, mechanical, or electronic means. Unless the agency head presides or is present at substantially all the hearings, the presiding official shall prepare a memorandum for consideration by the agency head, summarizing the contents of the presentations made at the rule-making hearing. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.17 RCW.

(4) Rule-making hearings are legislative in character and shall be reasonably conducted by the presiding official to afford interested persons the opportunity to present comment. Rule-making hearings may be continued to a later time and place established on the record without publication of further notice under section 18 of this act.

NEW SECTION. Sec. 20. TIME AND MANNER OF RULE ADOPTION. (1) Before adopting a rule, an agency shall consider the written and oral submissions, or any memorandum summarizing oral submissions.

(2) 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.

(3) A rule-making proceeding terminates upon the adoption or rejection of a proposed rule by the agency or, if no action is taken, upon the expiration of one hundred eighty days after publication in the register of the text as last proposed.

NEW SECTION. Sec. 21. VARIANCE BETWEEN PROPOSED AND FINAL RULE. (1) 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. When 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 section 18 of this act and reopen the proceedings for public comment on the proposed variance, or the agency may reject 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 different from the subject or issues determined in the published proposed rule; and

NEW SECTION. Sec. 22. FAILURE TO GIVE TIMELY NOTICE. Except for emergency rules adopted under section 23 of this act, when twenty days' notice of an agency's intended action to adopt, amend, or repeal a rule has not been published in the state register as required in section 18 of this act, the code reviser shall not publish such rule and such rule shall not be effective for any purpose.

NEW SECTION. Sec. 23. EMERGENCY RULES. (1) Where an agency for good cause finds that the 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 requirements of notice and opportunity to present comment would be contrary to the public interest, the agency may dispense with those requirements and may adopt, amend, or repeal the rule on an emergency basis. The agency shall incorporate the required finding and a brief statement of the reasons therefor in the order of adoption for the emergency rule. If contested, the burden is upon the party urging the validity of the rule to establish the condition for action under this section.

(2) A rule or amendment adopted under this section takes effect upon filing with the code reviser and shall not remain in effect longer than ninety days after filing.

(3) This section does not relieve the agency from the requirements of conforming to appropriate sections of the Regulatory Fairness Act, RCW 19.85.030 and 19.85.040.

NEW SECTION. Sec. 24. CONCISE EXPLANATORY STATEMENT. (1) At the time it files an adopted rule with the code reviser or within thirty days thereafter, an agency shall place into the rule-making record maintained under section 27 of this act a concise explanatory statement about the rule, identifying (a) the agency's reasons for adopting the rule, and (b) a description of any difference between the text of the proposed rule as published in the register and the text of the rule as adopted, stating the reasons for change.

(2) Upon the request of any interested person within thirty days after adoption of a rule, the agency shall issue a concise statement of the principal reasons for overruling the considerations urged against its adoption.

NEW SECTION. Sec. 25. ORDER ADOPTING RULE, CONTENTS. 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 section 30(1) of this act.

NEW SECTION. Sec. 26. INCORPORATION BY REFERENCE. An agency may incorporate by reference and without publishing the incorporated matter in full, all or any part of a code, standard, rule, or regulation that has been adopted by an agency of the United States, of this state, or of another state, by a political subdivision of this state, or by a generally recognized organization or association if incorporation of the full text in the agency rules would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in agency rules shall fully identify the incorporated matter. An agency may incorporate by reference such matter in its rules only if the agency, organization, or association originally issuing that matter makes copies readily available to the public. The incorporating agency shall have, maintain, and make available for public inspection a copy of the incorporated matter. The rule must state where copies of the incorporated matter are available.

NEW SECTION. Sec. 27. RULE-MAKING RECORD. (1) Each agency shall maintain an official rule-making record for each rule that it (a) proposes by publication in the state register, or (b) adopts. The record, and materials incorporated by reference, shall be available for public inspection.

(2) The agency rule-making record shall contain all of the following:

(a) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based;

(b) Copies of any portions of the 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) The explanatory statement required by section 24 of this act;

(f) All petitions for exceptions to, amendment of, or repeal or suspension of, the rule; and

(g) Any other material placed in the record by the agency.

(3) Internal agency documents are exempt from inclusion in the rule-making record 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 record required by this section constitutes the official agency rule-making record with respect to that rule. Unless otherwise required by another provision of law, the official agency rule-making record need not be the exclusive basis for agency action on that rule.

NEW SECTION. Sec. 28. SUBSTANTIAL COMPLIANCE WITH PROCEDURES. No rule proposed after the effective date of this act is valid unless it is adopted in substantial compliance with sections 16 through 33 of this act. Failure of an agency to set forth all of the items required by section 18(1) of this act is not substantial compliance as intended by this section. Inadvertent failure to mail notice of a proposed rule adoption to any person as required by section 18(2) of this act 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.

NEW SECTION. Sec. 29. FILING OF RULES. Each agency shall file in the office of the code reviser each rule that it adopts under this chapter, 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 keep a permanent register open to public inspection of all filed rules. In filing a rule, each agency shall use the standard form prescribed for this purpose by the code reviser.

NEW SECTION. Sec. 30. EFFECTIVE DATE OF RULES. (1) Except as otherwise provided in this section or section 23 of this act, each rule adopted after the effective date of this act, becomes effective thirty days after its filing with the code reviser.

(2) A rule may become effective on a date later than specified in subsection (1) of this section if a later date is required by the state or federal Constitution, a statute, or court order, or is specified in the order adopting the rule.

(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 (1) of this section, if the agency establishes that effective date 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

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 before publication and indexing under this section, each agency shall make reasonable efforts to make the effective date known to persons who may be affected by it.

NEW SECTION. Sec. 31. RULES ON DRAFTING, FILING, AND PUBLICATION OF RULES. The code reviser may adopt rules to implement 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 rules and notices.

NEW SECTION. Sec. 32. COMPLIANCE WITH WAC STYLE, FORMAT, AND NUMBERING SYSTEM. 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) Amendments of previously adopted rules shall incorporate any editorial corrections made by the code reviser; and

(3) Any subsequent printing or reprinting of such rules shall be printed in the style and format (including the numbering system) of such code.

NEW SECTION. Sec. 33. FORMAT AND STYLE OF AMENDATORY AND NEW RULES‑-EFFECT OF FAILURE TO COMPLY. (1) Rules proposed or adopted by an agency under this chapter that amend existing sections of the administrative code shall have the words that are amendatory to the existing sections underlined. Any matter to be deleted from an existing section shall be indicated by setting forth the matter in full, enclosed by double parentheses, and the deleted matter shall be lined out with hyphens. A new section shall be designated "NEW SECTION" in upper case type, and the designation shall be underlined, but the text of the new 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 the rule complies with 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 under section 9(3) of this act, 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 that is not filed by the agency in the style prescribed by subsection (1) of this section is in all respects 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 to it by the code reviser in accordance with section 9(2) of this act.

NEW SECTION. Sec. 34. PETITION FOR ADOPTION OF RULE. Any person may petition an agency to request the adoption, amendment, or repeal of a rule. Each agency may prescribe by rule the form of the petition and the procedure for its submission, consideration, and disposition. Within sixty days after submission of a petition, the agency shall either (1) deny the petition in writing, stating the reasons for the denial, or (2) initiate rule-making proceedings in accordance with the provisions of this chapter.

PART IV.

ADJUDICATIVE PROCEEDINGS

NEW SECTION. Sec. 35. ADJUDICATIVE PROCEEDINGS. (1) Adjudicative proceedings under section 36 of this act are governed by sections 36 through 64 of this act, except as otherwise provided:

(a) By a rule that adopts the procedures for brief adjudicative proceedings in accordance with the standards provided in section 61 of this act for those proceedings;

(b) By section 59 of this act pertaining to emergency adjudicative proceedings; or

(2) Sections 35 through 64 of this act do not apply to rule-making proceedings unless another statute expressly so requires.

NEW SECTION. Sec. 36. ADJUDICATIVE PROCEEDINGS‑-COMMENCEMENT‑-WHEN REQUIRED. (1) Within the scope of its authority, an agency may commence an adjudicative proceeding at any time with respect to a matter within the agency's jurisdiction.

(2) When required by law or constitutional right, and upon the timely application of any person an agency shall commence an adjudicative proceeding before the entry of an order unless the agency lacks authority to conduct the proceeding or lacks jurisdiction of the subject matter.

(3) An agency may require by rule that an application for an adjudicative proceeding be in writing and that it be filed at a specific address and in a specified manner.

(4) 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:

(a) Notifies a party that a prehearing conference, hearing, or other stage of an adjudicative proceeding will be conducted; or

(b) Begins to take action on a matter that appropriately may be determined by an adjudicative proceeding, unless this action is:

(i) An investigation for the purpose of determining whether an adjudicative proceeding should be conducted; or

(ii) A decision that, under section 38(1) of this act, the agency may make without conducting an adjudicative proceeding.

NEW SECTION. Sec. 37. DECISION NOT TO CONDUCT AN ADJUDICATION. If an agency decides not to conduct an adjudicative proceeding in response to an application, the agency shall furnish the applicant a copy of its decision in writing, with a brief statement of the agency's reasons and of any administrative review available to the applicant.

NEW SECTION. Sec. 38. AGENCY ACTION ON APPLICATIONS FOR ADJUDICATION. After receipt of an application for an adjudicative proceeding, other than a declaratory order, an agency shall proceed as follows:

(1) Except in situations governed by subsection (2) or (3) of this section, within ninety days after receipt of the application or of the 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

(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.

NEW SECTION. Sec. 39. LICENSES AND LICENSING. (1) Unless otherwise provided by law, applications for rate changes and uncontested applications for licenses may, in the agency's discretion, be conducted as adjudicative proceedings. Applications for licenses that are contested by a person having standing to contest under law and review of denials of applications for licenses or rate changes, except as specified in RCW 66.08.150, shall be conducted as adjudicative proceedings.

(2) An agency may not revoke, suspend, modify, annul, withdraw, or amend a license unless the agency gives notice of an opportunity for an appropriate adjudicative proceeding in accordance with this chapter or other statute.

(3) This section does not preclude an agency from (a) taking immediate action to protect the public interest in accordance with section 59 of this act or (b) adopting rules, otherwise within the scope of its authority, pertaining to a class of licensees, including rules affecting the existing licenses of a class of licensees.

(4) 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.

NEW SECTION. Sec. 40. PRESIDING OFFICERS‑-DISQUALIFICATION, SUBSTITUTION. (1) Except as provided in subsection (2) of this section, the agency head, one or more members of the agency head, a person designated to make the final decision and enter the final order, or one or more administrative law judges assigned by the office of administrative hearings in accordance with chapter 34.12 RCW may, in the discretion of the agency head, be the presiding officer in an adjudicative proceeding.

(2) An agency expressly exempted under RCW 34.12.020(4) or other statute from the provisions of chapter 34.12 RCW 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) 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.

(7) Any action taken by a duly appointed substitute for an unavailable individual is as effective as if taken by the unavailable individual.

NEW SECTION. Sec. 41. REPRESENTATION. (1) Any party 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.

NEW SECTION. Sec. 42. CONFERENCE‑-PROCEDURE AND ORDER. (1) Agencies are authorized to 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.

NEW SECTION. Sec. 43. NOTICE OF HEARING. (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) Where the agency intends to appear, the mailing address and telephone number of the office designated to represent the agency in the proceeding;

(d) A statement of the date, time, place, and nature of the hearing;

(e) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(f) The name, official title, mailing address, and telephone number of the presiding officer, if known;

(g) A short and plain statement of matters asserted by the agency; and

(h) 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, pursuant to subsection (2)(g) of this section, is unable to state the matters asserted in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved, or, where the proceeding is initiated by other than the agency, 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.

NEW SECTION. Sec. 44. PLEADINGS, BRIEFS, MOTIONS, SERVICE. (1) The presiding officer, at appropriate stages of the proceedings, shall give all parties full opportunity to submit and respond to pleadings, motions, objections, and offers of settlement.

(2) At appropriate stages of the proceedings, the presiding officer may give all parties full opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed initial or final orders.

(3) A party that files a pleading, brief, or other paper with the agency or presiding officer shall serve copies on all other parties, unless a different procedure is specified by agency rule.

NEW SECTION. Sec. 45. DEFAULT. (1) If a party fails to attend or participate in a hearing or other stage of an adjudicative proceeding, 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.

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

NEW SECTION. Sec. 46. INTERVENTION. (1) The presiding officer may grant a petition for intervention at any time, upon determining that the petitioner qualifies as an intervenor under any provision of law and that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.

(2) If a petitioner qualifies for intervention, the presiding officer may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:

(a) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition; and

(b) Limiting the intervenor's use of discovery, 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 petition for intervention and to all parties.

NEW SECTION. Sec. 47. SUBPOENAS, DISCOVERY, AND PROTECTIVE ORDERS. (1) The presiding officer may issue subpoenas and may enter protective orders. A subpoena may be issued with like effect by the agency or the attorney of record in whose behalf the witness is required to appear.

(2) An agency may by rule determine whether or not discovery is to be available in adjudicative proceedings and, if so, which forms of discovery may be used.

(3) Except as otherwise provided by agency rules, the presiding officer may decide whether to permit the taking of depositions, the requesting of admissions, and all other procedures authorized by rules 26 through 36 of the superior court civil rules. The presiding officer may condition use of discovery on a showing of necessity and unavailability by other means. In exercising such discretion, the presiding officer shall consider: (a) 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) Subpoenas issued and 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) Witnesses shall be paid the same fees and allowances, in the same manner and under the same conditions, as provided for witnesses of the courts of this state by chapter 2.40 RCW and RCW 5.56.010. The agency may fix the allowance for meals and lodging in a like manner as the courts as provided in RCW 5.56.010. The person initiating an adjudicative proceeding or the party requesting issuance of the subpoena shall pay the fees and allowances and the cost of producing records required to be produced by subpoena.

NEW SECTION. Sec. 48. PROCEDURE AT HEARING. At a hearing:

(1) The presiding officer shall regulate the course of the proceedings, in conformity with 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. 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.

NEW SECTION. Sec. 49. EVIDENCE, OFFICIAL NOTICE. (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 serious 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) Where not inconsistent with subsection (1) of this section, the presiding officer shall refer to the Washington Rules of Evidence as guidelines for evidentiary rulings. Notwithstanding subsection (1) of this section, an agency may provide by rule that the Washington Rules of Evidence are applicable in adjudicative proceedings that, by express provision of statute, are made subject to de novo jury review of the administrative record of the adjudicative proceeding.

(3) All testimony of parties and witnesses shall be made under oath or affirmation.

(4) Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party.

(5) Documentary evidence may be received in the form of a copy or excerpt. Upon request, parties must be given an opportunity to compare the copy with the original if available.

(6) Official notice may be taken of (a) any fact that could be judicially noticed in the courts of this state, (b) technical or scientific matters 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 specific facts or 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.

NEW SECTION. Sec. 50. EX PARTE COMMUNICATIONS. (1) A presiding officer may not communicate, directly or indirectly, regarding any issue in the proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any person employed by the agency without notice and opportunity for all parties to participate, except as provided in this subsection:

(a) Where the ultimate legal authority of an agency is vested in a multimember body, and where that body presides at an adjudication, members of the body may communicate with one another regarding the proceeding;

(b) Any presiding officer may receive aid from legal counsel, or from staff assistants who are subject to the presiding officer's supervision; and

(c) Presiding officers may communicate with other employees or consultants of the agency who have not participated in the proceeding in any manner, and who are not engaged in any investigative or prosecutorial functions in the same or a factually related case.

(d) 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 section 48 of this act.

(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.

NEW SECTION. Sec. 51. SEPARATION OF FUNCTIONS. (1) A person who has served as investigator, prosecutor, or advocate in an adjudicative proceeding or in its preadjudicative stage, or one who is subject to the authority, direction, or discretion of such a person, may not serve as a presiding officer in the same proceeding.

(2) A person, including an agency head, who has participated in a determination of probable cause or other equivalent preliminary determination in an adjudicative proceeding may serve as presiding officer or assist or advise a presiding officer in the same proceeding unless a party demonstrates grounds for disqualification in accordance with section 40 of this act.

(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 section 40 of this act.

NEW SECTION. Sec. 52. FINAL ORDER, INITIAL ORDER. (1) The presiding officer, as authorized by law, shall:

(a) Enter a final order; or

(b) Enter an initial order; or

(c) With respect to agencies exempt from chapter 34.12 RCW, transmit a full and complete record of the proceedings, including such comments upon demeanor of witnesses as the presiding officer deems relevant, to each agency official who is to enter a final or initial order after considering the record and evidence so transmitted.

(2) Each final or initial order shall include a statement of findings and conclusions, and the reasons and basis therefor, on all the material issues of fact, law, or discretion presented on the record, including the remedy or sanction and, if applicable, the action taken on a petition for a stay of effectiveness. Any findings based substantially on credibility of evidence or demeanor of witnesses shall be so identified. Findings set forth in language that is essentially a repetition or paraphrase of the relevant provision of law shall be accompanied by a concise and explicit statement of the underlying evidence of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order.

(3) Findings of fact shall be based exclusively on the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. Findings shall be based on the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their serious affairs. Unless an agency has adopted a rule under section 49(2) of this act, findings may be based on such evidence even if it would be inadmissible in a civil trial, but any such findings shall be based on the best evidence reasonably obtainable in order that the parties' opportunities to confront witnesses and rebut evidence are not unduly abridged.

(4) Where it bears on the issues presented, the agency's experience, technical competency, and specialized knowledge may be used in the evaluation of evidence.

(5) If a person serving or designated to serve as presiding officer becomes unavailable for any reason before entry of the final order or initial order, a substitute presiding officer shall be appointed as provided in section 40 of this act. The substitute presiding officer shall use any existing record and may conduct any further proceedings appropriate in the interests of justice.

(6) The presiding officer may allow the parties a designated time after conclusion of the hearing for the submission of memos, briefs, or proposed findings.

(7) A final or initial order under this section shall be served in writing within ninety days after conclusion of the hearing or after submission of memos, briefs, or proposed findings in accordance with subsection (6) of this section unless this period is waived or extended for good cause shown.

(8) The presiding officer shall cause copies of the final order or initial order to be delivered to each party and to the agency head.

NEW SECTION. Sec. 53. FINAL ORDERS. (1) As authorized by law, an agency may by rule provide that initial orders in specified classes of cases may become final without further agency action unless, within a specified period, (a) the agency head upon its own motion determines that the initial order should be reviewed, or (b) a party to the proceedings files exceptions to the initial order. Upon occurrence of either event, notice shall be given to all parties to the proceeding.

(2) As provided by law, an agency head may appoint a person to review initial orders and to prepare and enter final agency orders.

(3) Sections 40 and 50 of this act apply to any person reviewing an initial order on behalf of an agency as part of the decision process, and to persons communicating with them, to the same extent that it is applicable to presiding officers.

(4) The officer reviewing the initial order (including the agency head reviewing an initial order) is, for the purposes of this chapter, termed the reviewing officer. The reviewing officer shall exercise all the decision-making power that the reviewing officer would have had to decide and enter the final order had the reviewing officer presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the reviewing officer upon notice to all the parties. In reviewing findings of fact by presiding officers, the reviewing officers shall give due regard to the presiding officer's opportunity to observe the witnesses.

(5) The reviewing officer shall personally consider the whole record or such portions of it as may be cited by the parties.

(6) The reviewing officer shall afford each party an opportunity to present written argument and may afford each party an opportunity to present oral argument.

(7) The reviewing officer shall enter a final order disposing of the proceeding or remand the matter for further proceedings, with instructions to the presiding officer who entered the initial order. Upon remanding a matter, the reviewing officer shall order such temporary relief as is authorized and appropriate.

(8) A final order shall include, or incorporate by reference to the initial order, all matters required by section 52(2) of this act.

(9) The reviewing officer shall cause copies of the final order or order remanding the matter for further proceedings to be served upon each party.

NEW SECTION. Sec. 54. STAY. A party may submit to the presiding or reviewing officer, as is appropriate to the stage of the proceeding, a petition for stay of effectiveness of a final order within ten days of its service unless otherwise provided by statute or stated in the final order. Disposition of the petition for stay shall be made by the presiding officer, reviewing officer, or agency head as provided by agency rule. Disposition may be made either before or after the effective date of the final order. Disposition denying a stay is not subject to judicial review.

NEW SECTION. Sec. 55. RECONSIDERATION. (1) Within ten days of the service of a final order, any party may file a petition for reconsideration, stating the specific grounds upon which relief is requested. The place of filing shall be specified by agency rule. The filing of the petition is not a prerequisite for seeking judicial review.

(2) The petition shall be disposed of by the same person or persons who entered the order, if reasonably available. The disposition shall be in the form of a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further hearing. The petition shall be deemed to have been denied if not disposed of within twenty days.

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

(4) The agency head may extend the time limits in this section for good cause, with due consideration that the rights of the parties will not be prejudiced by the extension and that extension will be in the public interest.

(5) The filing of a petition for reconsideration is not a prerequisite for seeking judicial review. An order denying reconsideration, or an extension of time limits pursuant to subsection (4) of this section is not subject to judicial review.

NEW SECTION. Sec. 56. REVIEW BY SUPERIOR AGENCY. Unless otherwise provided by statute, if an agency is authorized to review the final order of another agency, the review is deemed to be a continuous proceeding as if before a single agency. The final order of the first agency is treated as an initial order and the second agency functions as though it were reviewing an initial order in accordance with section 53 of this act. This section does not apply if another statute expressly provides for a de novo adjudication before the second agency.

NEW SECTION. Sec. 57. EFFECTIVENESS OF ORDERS. (1) Unless a later date is stated in an order or a stay is granted, an order is effective when signed, but:

(a) A party may not be required to comply with a final order unless the party has been served with or has actual knowledge of the final order;

(b) A nonparty may not be required to comply with a final order unless the agency has made the final order available for public inspection and copying or the nonparty has actual knowledge of the final order;

(c) For purposes of determining time limits for further administrative procedure or for judicial review, the determinative date is the date of service of the order.

(2) Unless a later date is stated in the initial order or a stay is granted, the time when an initial order becomes a final order in accordance with section 52 of this act is determined as follows:

(a) When the initial order is entered, if administrative review is unavailable; or

(b) When the agency head with such authority enters an order stating, after a petition for administrative review has been filed, that review will not be exercised.

(3) This section does not preclude an agency from taking immediate action to protect the public interest in accordance with section 59 of this act.

NEW SECTION. Sec. 58. AGENCY RECORD. (1) An agency shall maintain an official record of each adjudicative proceeding under this chapter.

(2) The agency record shall include:

(a) Notices of all proceedings;

(b) Any prehearing order;

(d) Evidence received or considered;

(e) A statement of matters officially noticed;

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

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

(h) The recording prepared for the presiding officer at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding;

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

(j) Staff memoranda or data submitted to the presiding officer, unless prepared and submitted by personal assistants and not inconsistent with section 50 of this act; and

(k) Matters placed on the record after an ex parte communication.

(3) Except to the extent that this chapter or another statute provides otherwise, the agency record constitutes the exclusive basis for agency action in adjudicative proceedings under this chapter and for judicial review of adjudicative proceedings.

NEW SECTION. Sec. 59. EMERGENCY ADJUDICATIVE PROCEEDINGS. (1) Unless otherwise provided by law, an agency may use emergency adjudicative proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate agency action.

(2) The agency may take only such action as is necessary to prevent or avoid the immediate danger to the public health, safety, or welfare that justifies use of emergency adjudication.

(3) The agency shall enter an order, including a brief statement of findings of fact, conclusions of law, and policy reasons for the decision if it is an exercise of the agency's discretion, to justify the determination of an immediate danger and the agency's decision to take the specific action.

(4) The agency shall give such notice as is practicable to persons who are required to comply with the order. The order is effective when entered.

(5) After entering an order under this section, the agency shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.

(6) The agency record consists of any documents regarding the matter that were considered or prepared by the agency. The agency shall maintain these documents as its official record.

(7) Unless otherwise required by a provision of law, the agency record need not constitute the exclusive basis for agency action in emergency adjudicative proceedings or for judicial review thereof.

NEW SECTION. Sec. 60. BRIEF ADJUDICATIVE PROCEEDINGS‑-APPLICABILITY. An agency may use brief adjudicative proceedings if:

(1) The use of those proceedings in the circumstances does not violate any provision of law;

(2) The protection of the public interest does not require the agency to give notice and an opportunity to participate to persons other than the parties;

(3) The matter is entirely within one or more categories for which the agency by rule has adopted this section and sections 61 through 64 of this act; and

(4) The issue and interests involved in the controversy do not warrant use of the procedures of sections 36 through 59 of this act.

NEW SECTION. Sec. 61. BRIEF ADJUDICATIVE PROCEEDINGS‑-PROCEDURE. (1) Where no designation of the presiding officer has been made, and where not prohibited by law, a person exercising authority over the matter is the presiding officer. Where not prohibited by law, the following persons may be designated as the presiding officer:

(a) The agency head;

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

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

(2) The presiding officer, before taking action, shall give each party an opportunity to be informed of the agency's view of the matter and to explain the party's view of the matter; and

(3) The presiding officer, at the time any unfavorable action is taken, shall give each party a brief statement of the reasons for the decision. Within ten days, the presiding officer shall give the parties a brief written statement of the reasons for the decision and information about any internal administrative review available.

NEW SECTION. Sec. 62. BRIEF PROCEEDINGS‑-ADMINISTRATIVE REVIEW‑-APPLICABILITY. Unless prohibited by any provision of law, an agency, on its own motion, may conduct administrative review of an order resulting from brief adjudicative proceedings. An agency shall conduct this review upon the written or oral request of a party if the agency receives the request within ten days after furnishing the written statement required by section 61(3) of this act.

NEW SECTION. Sec. 63. BRIEF PROCEEDINGS‑-ADMINISTRATIVE REVIEW‑-PROCEDURES. Unless otherwise provided by statute:

(1) Where the parties have not requested review, the agency may review an order resulting from a brief adjudicative proceeding on its own motion and without notice to the parties, but it may not take any action on review less favorable to any party than the original order without giving that party notice and an opportunity to explain that party's view of the matter.

(2) The reviewing officer may be any person who could have presided at the brief proceeding, but the reviewing officer must be one who is authorized to grant appropriate relief upon review.

(3) The reviewing officer shall give each party an opportunity to explain the party's view of the matter and shall make any inquiries necessary to ascertain whether the proceeding must be converted to a formal adjudicative hearing.

(4) The order on review must be in writing, must include a brief statement of the reasons for the decision, and must be entered within twenty days after the date of the initial order or of the request for review, whichever is later. The order shall include a description of any further available administrative review or, if none is available, a notice that judicial review may be available.

(5) A request for administrative review is deemed to have been denied if the agency does not make a disposition of the matter within twenty days after the request is submitted.

NEW SECTION. Sec. 64. AGENCY RECORD IN BRIEF PROCEEDINGS. (1) The agency record consists of any documents regarding the matter that were considered or prepared by the presiding officer for the brief adjudicative proceeding or by the reviewing officer for any review. The agency shall maintain these documents as its official record.

(2) Unless otherwise required by a provision of law, the agency record need not constitute the exclusive basis for agency action in brief adjudicative proceedings or for the judicial review of brief adjudicative proceedings.

PART V.

JUDICIAL REVIEW AND CIVIL ENFORCEMENT

NEW SECTION. Sec. 65. RELATIONSHIP BETWEEN THIS CHAPTER AND OTHER JUDICIAL REVIEW AUTHORITY. This chapter establishes the exclusive means of judicial review of agency action, except:

(1) The provisions of this chapter for judicial review do not apply to litigation in which the sole issue is a claim for money damages or compensation and the agency whose action is at issue does not have statutory authority to determine the claim.

(2) Ancillary procedural matters before the reviewing court, including intervention, class actions, consolidation, joinder, severance, transfer, protective orders, and other relief from disclosure of privileged or confidential material, are governed, to the extent not inconsistent with this chapter, by the court rules.

(3) The provisions of this chapter for judicial review do not apply to the extent that de novo review or jury trial review is expressly authorized by a currently existing or subsequent provision of law.

NEW SECTION. Sec. 66. AGENCY ACTION REVIEWABLE. Only a person who qualifies under this chapter regarding (1) standing (section 71 of this act), (2) exhaustion of administrative remedies (section 72 of this act), and (3) the time for filing the petition for review (section 74 of this act), and other applicable provisions of law regarding bond, compliance, and other preconditions is entitled to judicial review of agency action.

NEW SECTION. Sec. 67. PETITION FOR REVIEW‑-WHERE FILED. Except as provided in section 73 of this act, proceedings for review under this chapter shall be instituted by filing a petition in the superior court, at the petitioner's option, for (1) Thurston county, (2) the county of the petitioner's residence or principal place of business, or (3) in any county where the property owned by the petitioner and affected by the contested decision is located.

NEW SECTION. Sec. 68. ADJUDICATIVE PROCEEDINGS‑-DIRECT REVIEW BY COURT OF APPEALS. The final decision of an administrative agency in a contested case under this chapter may be directly reviewed by the court of appeals upon certification by the superior court under this section. An application for direct review must be filed with the superior court within thirty days of the filing of the petition for review in superior court. The superior court may certify a case for direct review only if the judicial review is limited to the record of the agency proceeding and the court finds that:

(1) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;

(2) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;

(3) An appeal to the court of appeals would be likely regardless of the determination in superior court; and

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

NEW SECTION. Sec. 69. ADJUDICATIVE PROCEEDINGS‑-REFUSAL OF REVIEW BY COURT OF APPEALS. The court of appeals may refuse to accept review of a case certified under section 68 of this act. The refusal to accept the review is not subject to further appellate review, notwithstanding anything in Rule 13.3 of the Rules of Appellate Procedure to the contrary.

NEW SECTION. Sec. 70. APPEAL TO SUPREME COURT OR COURT OF APPEALS. An aggrieved party may secure a review of any final judgment of the superior court under this chapter by appeal to the supreme court or the court of appeals. The appeal shall be taken in the manner provided by law for appeals from the superior court in other civil cases.

NEW SECTION. Sec. 71. STANDING. A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present:

(1) The agency action has prejudiced or is likely to prejudice that person;

(2) That person's asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and

(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.

NEW SECTION. Sec. 72. EXHAUSTION OF ADMINISTRATIVE REMEDIES. A person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged, or available within any other agency authorized to exercise administrative review, except:

(1) A petitioner for judicial review of a rule need not have participated in the rule-making proceeding upon which that rule is based, or have petitioned for its amendment or repeal;

(2) A petitioner for judicial review need not exhaust administrative remedies to the extent that this chapter or any other statute states that exhaustion is not required; or

(3) The court may relieve a petitioner of the requirement to exhaust any or all administrative remedies upon a showing that:

(a) The exhaustion of such remedies would not affect the agency action; or

(b) It appears likely that the petitioner will qualify for judicial review of the agency action, and postponement of judicial review would result in grave and irreparable harm to the petitioner without substantial public benefit.

NEW SECTION. Sec. 73. DECLARATORY JUDGMENT ON VALIDITY OF RULE. (1) The validity of any rule may be determined upon petition for a declaratory judgment addressed to the superior court of Thurston county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner. The agency shall be made a party to the proceeding. The declaratory judgment order may be entered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.

(2) In a proceeding under subsection (1) of this section the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without compliance with statutory rule-making procedures.

NEW SECTION. Sec. 74. TIME FOR FILING PETITION FOR REVIEW. Subject to other requirements of this chapter or of another statute:

(1) A petition for judicial review of a rule may be filed at any time, except as limited by section 28 of this act.

(2) A petition for judicial review of an order is not timely unless filed and served on the agency and all parties of record within thirty days after service of the order.

(3) A petition for judicial review of agency action other than the adoption of a rule or the entry of an order is not timely unless filed and served on the agency and all other parties of record within thirty days after the agency action, but the time is extended during any period that the petitioner did not know and was under no duty to discover or could not reasonably have discovered that the agency had taken the action or that the agency action had a sufficient effect to confer standing upon the petitioner to obtain judicial review under this chapter.

NEW SECTION. Sec. 75. PETITION FOR REVIEW‑-CONTENTS. A petition for review must set forth:

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

(2) The name and mailing address of the petitioner's attorney, if any;

(3) The name and mailing address of the agency whose action is at issue;

(4) Identification of the agency action at issue, together with a duplicate copy, summary, or brief description of the agency action;

(5) Identification of persons who were parties in any adjudicative proceedings that led to the agency action;

(6) Facts to demonstrate that the petitioner is entitled to obtain judicial review;

(7) The petitioner's reasons for believing that relief should be granted; and

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

NEW SECTION. Sec. 76. STAY AND OTHER TEMPORARY REMEDIES. (1) Unless precluded by law, the agency may grant a stay, in whole or in part, or other temporary remedy during the pendency of judicial review.

(2) Agency action denying a stay or other temporary review is not judicially reviewable.

(3) Agency action granting stay or other temporary remedy is judicially reviewable for reasonableness, but agency action based on public health, safety, or welfare grounds may not be set aside unless the court finds that:

(a) The applicant is likely to prevail when the court finally disposes of the matter;

(b) Without relief the applicant will suffer irreparable injury;

(d) The threat to the public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency action in the circumstances.

(4) If the court determines that relief should be granted from the agency's action granting a stay or other temporary remedies, the court may remand the matter or may enter an order denying a stay or granting a stay on appropriate terms.

NEW SECTION. Sec. 77. LIMITATION ON NEW ISSUES. (1) Issues not raised before the agency may not be raised on appeal, except to the extent that:

(a) The person did not know and was under no duty to discover or could not have reasonably discovered facts giving rise to the issue;

(b) The agency action subject to judicial review is a rule and the person has not been a party in adjudicative proceedings that provided an adequate opportunity to raise the issue;

(c) The agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding in substantial compliance with this chapter; or

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

(i) A change in controlling law occurring after the agency action; or

(ii) Agency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency.

(2) The court shall remand to the agency for determination any issue that is properly raised pursuant to subsection (1) of this section.

NEW SECTION. Sec. 78. JUDICIAL REVIEW OF FACTS CONFINED TO RECORD. Judicial review of disputed issues of fact shall be conducted by the court without a jury and must be confined to the agency record for judicial review as defined by this chapter, supplemented by additional evidence taken pursuant to this chapter.

NEW SECTION. Sec. 79. NEW EVIDENCE TAKEN BY COURT OR AGENCY. (1) The court may receive evidence in addition to that contained in the agency record for judicial review, only if it relates to the validity of the agency action at the time it was taken and is needed to decide disputed issues regarding:

(a) Improper constitution as a decision-making body or grounds for disqualification of those taking the agency action;

(b) Unlawfulness of procedure or of decision-making process; or

(c) Material facts in rule making, brief adjudications, or other proceedings not required to be determined on the agency record.

(2) The court may remand a matter to the agency, before final disposition of a petition for review, with directions that the agency conduct fact-finding and other proceedings the court considers necessary and that the agency take such further action on the basis thereof as the court directs, if:

(a) The agency was required by this chapter or any other provision of law to base its action exclusively on a record of a type reasonably suitable for judicial review, but the agency failed to prepare or preserve an adequate record;

(b) The court finds that (i) new evidence has become available that relates to the validity of the agency action at the time it was taken, that one or more of the parties did not know and was under no duty to discover or could not have reasonably been discovered until after the agency action, and (ii) the interests of justice would be served by remand to the agency;

(d) A relevant provision of law changed after the agency action and the court determines that the new provision may control the outcome.

NEW SECTION. Sec. 80. AGENCY RECORD FOR REVIEW‑-COSTS. (1) Within thirty days after service of the petition, or within further time allowed by the court or by other provision of law, the agency shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action. The record shall consist of any agency documents expressing the agency action, other documents identified by the agency as having been considered by it before its action and used as a basis for its action, and any other material described in this chapter as the agency record for the type of agency action at issue, subject to the provisions of this section.

(2) If part of the record has been preserved without a transcript, the agency shall prepare a transcript for inclusion in the record transmitted to the court, except for portions that the parties stipulate to omit in accordance with subsection (4) of this section.

(3) The agency may charge a nonindigent petitioner with the reasonable costs of preparing any necessary copies and transcripts for transmittal to the court. A failure by the petitioner to pay any of this cost to the agency relieves the agency from the responsibility for timely preparation of the record and transmittal to the court.

(4) The record may be shortened, summarized, or organized temporarily or, by stipulation of all parties, permanently.

(5) The court may tax the cost of preparing transcripts and copies for the record:

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

(b) As provided by section 81 of this act; or

(6) Additions to the record pursuant to section 79 of this act must be made as ordered by the court.

(7) The court may require or permit subsequent corrections or additions to the record.

NEW SECTION. Sec. 81. SCOPE OF REVIEW. (1) Except to the extent that this chapter or another statute provides otherwise:

(a) The burden of demonstrating the invalidity of agency action is on the party asserting invalidity; and

(b) The validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken.

(2) The court shall make a separate and distinct ruling on each material issue on which the court's decision is based.

(3) The court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by any one or more of the following:

(a) The agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied;

(b) The agency has acted beyond its statutory authority or jurisdiction conferred by any provision of law;

(d) The agency has not decided all issues requiring resolution in an adjudicative proceeding;

(e) The agency has erroneously interpreted or applied the law;

(f) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow prescribed procedure;

(g) The persons taking the agency action were improperly constituted as a decision-making body or were subject to disqualification;

(h) The agency action, other than a rule, is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;

(i) The agency action, other than a rule, is inconsistent with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency;

(j) The agency action, other than a rule or the imposition of a sanction or penalty, is substantially inconsistent with the agency's prior established practice unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for the inconsistency;

(k) The agency action, other than a rule, is arbitrary or capricious; or

(l) The agency action is an abuse of discretion.

NEW SECTION. Sec. 82. TYPE OF RELIEF. (1) The court may order agency action required by law, order agency exercise of discretion required by law, affirm or set aside agency action, enjoin or stay the agency action, remand the matter for further proceedings, or enter a declaratory judgment order. In reviewing matters within agency discretion, the court shall limit its function to assuring that the agency has exercised its discretion in accordance with law, and shall not itself undertake to exercise the discretion that the legislature has placed in the agency. The court shall remand to the agency for modification of agency action, unless remand is impracticable or would cause unnecessary delay.

(2) The court may award damages, compensation, or ancillary relief only to the extent expressly authorized by another provision of law.

(3) If the court sets aside or modifies agency action or remands the matter to the agency for further proceedings, the court may make any interlocutory order it finds necessary to preserve the interests of the parties and the public, pending further proceedings or agency action.

NEW SECTION. Sec. 83. PETITION BY AGENCY FOR ENFORCEMENT. (1) In addition to other remedies provided by law, an agency may seek enforcement of its rule or order by filing a petition for civil enforcement in the superior court.

(2) The petition must name as respondent each alleged person against whom the agency seeks to obtain civil enforcement.

(3) Venue is determined as in other civil cases.

(4) A petition for civil enforcement filed by an agency may request, and the court may grant, declaratory relief, temporary or permanent injunctive relief, any other civil remedy provided by law, or any combination of the foregoing.

NEW SECTION. Sec. 84. PETITION BY OTHERS FOR ENFORCEMENT. (1) Any person who would qualify under this chapter as having standing to obtain judicial review of an agency's failure to enforce an order directed to another person may file a petition for civil enforcement of that order, but the action may not be commenced:

(a) Until at least sixty days after the petitioner has given notice of the alleged violation and of the petitioner's intent to seek civil enforcement to the head of the agency concerned, to the attorney general, and to each person against whom the petitioner seeks civil enforcement;

(b) If the agency has filed and is diligently prosecuting a petition for civil enforcement of the same order against the same person; or

(2) The petition shall name, as respondents, the agency whose order is sought to be enforced and each person against whom the petitioner seeks civil enforcement.

(3) The agency whose order is sought to be enforced may move to dismiss the petition on the grounds that it fails to qualify under this section or that the enforcement would be contrary to the policy of the agency. The court shall grant the motion to dismiss the petition unless the petitioner demonstrates that (a) the petition qualifies under this section and (b) the agency's failure to enforce its order is based on an exercise of discretion that is arbitrary or capricious.

(4) Except to the extent expressly authorized by law, a petition for civil enforcement may not request, and the court may not grant, any monetary payment apart from taxable costs.

NEW SECTION. Sec. 85. DEFENSES‑-LIMITATION ON NEW ISSUES. A respondent may assert, in a proceeding for civil enforcement:

(1) That the rule or order sought to be enforced is invalid on any of the grounds stated in section 81(3) (a) and (b) of this act. If a defense under that section is raised, the court may consider issues and receive evidence only within the limitations provided by sections 77, 78, and 79 of this act; and

(2) Any of the following defenses on which the court, to the extent necessary for the determination of the matter, may consider new issues or take new evidence:

(a) The rule or order does not apply to the party;

(b) The party has not violated the rule or order; or

NEW SECTION. Sec. 86. INCORPORATION OF OTHER JUDICIAL REVIEW PROVISIONS. Proceedings for civil enforcement are governed by the following provisions of this chapter on judicial review, as modified where necessary to adapt them to those proceedings:

(1) Section 65(2) of this act (ancillary procedural matters); and

(2) Section 80 of this act (agency record for judicial review).

NEW SECTION. Sec. 87. REVIEW BY HIGHER COURT. Decisions on petitions for civil enforcement are reviewable as in other civil cases.

PART VI.

TECHNICAL PROVISIONS

NEW SECTION. Sec. 88. The provisions of RCW 4.84.185 relating to civil actions that are frivolous and advanced without reasonable cause apply to petitions for judicial review under this chapter.

NEW SECTION. Sec. 89. SECTIONS ADDED TO CHAPTER 34.04 RCW. Sections 1 through 88 of this act are added to chapter 34.04 RCW.

NEW SECTION. Sec. 90. REPEALER. The following acts or parts of acts are each repealed:

(1) Section 1, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.010;

(2) Section 2, chapter 57, Laws of 1971 ex. sess., section 42, chapter 169, Laws of 1977 ex. sess., section 11, chapter 324, Laws of 1981 and RCW 28B.19.020;

(3) Section 3, chapter 57, Laws of 1971 ex. sess., section 10, chapter 240, Laws of 1977 ex. sess., section 12, chapter 324, Laws of 1981, section 7, chapter 221, Laws of 1982 and RCW 28B.19.030;

(4) Section 23, chapter 186, Laws of 1980, section 8, chapter 221, Laws of 1982 and RCW 28B.19.033;

(5) Section 24, chapter 186, Laws of 1980 and RCW 28B.19.037;

(6) Section 4, chapter 57, Laws of 1971 ex. sess., section 4, chapter 46, Laws of 1973 1st ex. sess., section 11, chapter 240, Laws of 1977 ex. sess., section 13, chapter 324, Laws of 1981 and RCW 28B.19.040;

(7) Section 5, chapter 57, Laws of 1971 ex. sess., section 9, chapter 87, Laws of 1980 and RCW 28B.19.050;

(8) Section 6, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.060;

(9) Section 7, chapter 57, Laws of 1971 ex. sess., section 25, chapter 186, Laws of 1980 and RCW 28B.19.070;

(10) Section 26, chapter 186, Laws of 1980 and RCW 28B.19.073;

(11) Section 27, chapter 186, Laws of 1980 and RCW 28B.19.077;

(12) Section 8, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.080;

(13) Section 9, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.090;

(14) Section 10, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.100;

(15) Section 11, chapter 57, Laws of 1971 ex. sess., section 5, chapter 46, Laws of 1973 1st ex. sess. and RCW 28B.19.110;

(16) Section 12, chapter 57, Laws of 1971 ex. sess., section 6, chapter 46, Laws of 1973 1st ex. sess., section 26, chapter 67, Laws of 1981 and RCW 28B.19.120;

(17) Section 13, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.130;

(18) Section 14, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.140;

(19) Section 15, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.150;

(20) Section 14, chapter 324, Laws of 1981 and RCW 28B.19.160;

(21) Section 15, chapter 324, Laws of 1981 and RCW 28B.19.163;

(22) Section 16, chapter 324, Laws of 1981 and RCW 28B.19.165;

(23) Section 17, chapter 324, Laws of 1981 and RCW 28B.19.168;

(24) Section 16, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.200;

(25) Section 20, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.210;

(26) Section 19, chapter 57, Laws of 1971 ex. sess. (uncodified);

(27) Section 22, chapter 57, Laws of 1971 ex. sess. (uncodified);

(28) Section 5, chapter 10, Laws of 1982 and RCW 34.04.010;

(29) Section 2, chapter 234, Laws of 1959, section 2, chapter 237, Laws of 1967, section 13, chapter 67, Laws of 1981 and RCW 34.04.020;

(30) Section 12, chapter 237, Laws of 1967, section 14, chapter 67, Laws of 1981 and RCW 34.04.022;

(31) Section 3, chapter 237, Laws of 1967, section 17, chapter 250, Laws of 1971 ex. sess., section 7, chapter 240, Laws of 1977 ex. sess, section 3, chapter 324, Laws of 1981, section 1, chapter 221, Laws of 1982, section 95 of this act and RCW 34.04.025;

(32) Section 2, chapter 19, Laws of 1977 and RCW 34.04.026;

(33) Section 4, chapter 237, Laws of 1967 and RCW 34.04.027;

(34) Section 3, chapter 234, Laws of 1959, section 8, chapter 240, Laws of 1977 ex. sess., section 4, chapter 324, Laws of 1981, section 96 of this act and RCW 34.04.030;

(35) Section 4, chapter 234, Laws of 1959, section 11, chapter 87, Laws of 1980 and RCW 34.04.040;

(36) Section 1, chapter 84, Laws of 1977 ex. sess., section 10, chapter 186, Laws of 1980, section 7, chapter 6, Laws of 1982, section 2, chapter 221, Laws of 1982 and RCW 34.04.045;

(37) Section 11, chapter 186, Laws of 1980 and RCW 34.04.048;

(38) Section 5, chapter 234, Laws of 1959, section 9, chapter 240, Laws of 1977 ex. sess., section 12, chapter 186, Laws of 1980, section 7, chapter 32, Laws of 1982 1st ex. sess. and RCW 34.04.050;

(39) Section 13, chapter 186, Laws of 1980 and RCW 34.04.052;

(40) Section 13, chapter 237, Laws of 1967 and RCW 34.04.055;

(41) Section 14, chapter 237, Laws of 1967 and RCW 34.04.057;

(42) Section 1, chapter 19, Laws of 1977, section 14, chapter 186, Laws of 1980 and RCW 34.04.058;

(43) Section 6, chapter 234, Laws of 1959, section 5, chapter 237, Laws of 1967 and RCW 34.04.060;

(44) Section 7, chapter 234, Laws of 1959, section 8, chapter 6, Laws of 1982 and RCW 34.04.070;

(45) Section 8, chapter 234, Laws of 1959 and RCW 34.04.080;

(46) Section 9, chapter 234, Laws of 1959, section 9, chapter 237, Laws of 1967, section 1, chapter 31, Laws of 1980 and RCW 34.04.090;

(47) Section 10, chapter 234, Laws of 1959 and RCW 34.04.100;

(48) Section 10, chapter 237, Laws of 1967 and RCW 34.04.105;

(49) Section 11, chapter 234, Laws of 1959 and RCW 34.04.110;

(50) Section 12, chapter 234, Laws of 1959, section 1, chapter 12, Laws of 1975 and RCW 34.04.120;

(51) Section 13, chapter 234, Laws of 1959, section 6, chapter 237, Laws of 1967, section 1, chapter 52, Laws of 1977 ex. sess. and RCW 34.04.130;

(52) Section 1, chapter 76, Laws of 1980 and RCW 34.04.133;

(53) Section 2, chapter 76, Laws of 1980 and RCW 34.04.135;

(54) Section 14, chapter 234, Laws of 1959, section 87, chapter 81, Laws of 1971 and RCW 34.04.140;

(55) Section 15, chapter 234, Laws of 1959, section 1, chapter 237, Laws of 1963, section 7, chapter 237, Laws of 1967, section 1, chapter 71, Laws of 1967 ex. sess., section 1, chapter 21, Laws of 1971, section 17, chapter 57, Laws of 1971 ex. sess., section 90, chapter 158, Laws of 1979, section 2, chapter 64, Laws of 1981, section 6, chapter 221, Laws of 1982, section 8, chapter 141, Laws of 1984 and RCW 34.04.150;

(56) Section 8, chapter 237, Laws of 1967, section 1, chapter 33, Laws of 1980 and RCW 34.04.170;

(57) Section 3, chapter 221, Laws of 1982 and RCW 34.04.270;

(58) Section 4, chapter 221, Laws of 1982 and RCW 34.04.280;

(59) Section 5, chapter 221, Laws of 1982 and RCW 34.04.290;

(60) Section 16, chapter 234, Laws of 1959 and RCW 34.04.900;

(61) Section 27, chapter 237, Laws of 1967 and RCW 34.04.901;

(62) Section 17, chapter 234, Laws of 1959, section 25, chapter 237, Laws of 1967 and RCW 34.04.910;

(63) Section 18, chapter 234, Laws of 1959 and RCW 34.04.920;

(64) Section 29, chapter 237, Laws of 1967 and RCW 34.04.921;

(65) Section 19, chapter 234, Laws of 1959 and RCW 34.04.930;

(66) Section 26, chapter 237, Laws of 1967 and RCW 34.04.931; and

(67) Section 24, chapter 237, Laws of 1967 and RCW 34.04.940.

NEW SECTION. Sec. 91. CAPTIONS AND HEADINGS. Section captions and subchapter headings used in this act do not constitute any part of the law.

NEW SECTION. Sec. 92. SEVERABILITY. 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.

NEW SECTION. Sec. 93. EFFECTIVE DATE‑-APPLICATION. Sections 1 through 92 of this act shall take effect on July 1, 1989, and shall apply to all rule-making actions and agency proceedings begun on or after that date. Rule-making actions or other agency proceedings begun before July 1, 1989, shall be completed under the applicable provisions of chapter 28B.19 or 34.04 RCW existing immediately before that date in the same manner as if they were not repealed by this act. Sections 94 through 98 of this act shall take effect as provided by Article II, section 1(c) of the state Constitution.

NEW SECTION. Sec. 94. The legislature finds and declares that rules are often imposed without an assessment of their practical impact in the workplace and the marketplace. This often leads to anecdotes describing absurd regulation, which in turn lead to unnecessary loss of confidence in state agencies and a decline in business enthusiasm. Therefore it is the purpose of sections 95 and 96 of this act to ensure that when agencies make rules, proper analysis is conducted on the relevancy of the rule and that this analysis is made public, and when agencies adopt emergency rules that the impact on small businesses is considered.

Sec. 95. Section 3, chapter 237, Laws of 1967 as last amended by section 1, chapter 221, Laws of 1982 and RCW 34.04.025 are each amended to read as follows:

(1) Prior to the adoption, amendment, or repeal of any rule, each agency shall:

(a) File notice thereof with the code reviser in accordance with RCW 34.08.020(1) for publication in the state register, and with the rules review committee, and mail such notice to all persons who have made timely request of the agency for advance notice of its rule-making proceedings. Such notice shall also include (i) reference to the authority under which the rule is proposed, (ii) a statement of ((~~either~~)) the terms or substance of the proposed rule ((or)) and a description of the subjects and issues involved, ((~~and~~)) (iii) the time when, the place where, and the manner in which interested persons may present their views thereon, (iv) the time and place of adoption of the proposed rule, (v) a written analysis of the proposed rule, including but not limited to background information and the effects of the rule, and any anticipated changes in state revenues and state expenditures;

(b) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In case of substantive rules, opportunity for oral hearing must be granted if requested by twenty-five persons, by a governmental subdivision or agency, by the rules review committee, or by an association having not less than twenty-five members.

(2) The agency shall make every effort to insure that the information on the proposed rule circulated pursuant to subsection (1)(a) of this section accurately reflects the rule to be presented and discussed at any oral hearing on such rule. Where substantial changes in the draft of the proposed rule are made after publication of notice in the register which would render it difficult for interested persons to properly comment on the rule without further notice, new notice of the agency's intended action as provided in subsection (1)(a) of this section shall be required.

(3) The agency shall consider fully all written and oral submissions respecting the proposed rule including those addressing the question of whether the proposed rule is within the intent of the legislature as expressed by the statute which the rule implements, and may amend the proposed rule at the oral hearing or adopt the proposed rule, if there are no substantial changes, without refiling the notice required by this section. Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within thirty days thereafter, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein its reasons for overruling the considerations urged against its adoption.

(4) No proceeding may be held on any rule until twenty days have passed from the distribution date of the register in which notice thereof was contained. The code reviser shall make provisions for informing an agency giving notice under subsection (1) of this section of the distribution date of the register in which such notice will be published.

(5) No rule hereafter adopted is valid unless adopted in substantial compliance with this section, unless it is an emergency rule designated as such and is adopted in substantial compliance with RCW 34.04.030, as now or hereafter amended. In any proceeding a rule cannot be contested on the ground of noncompliance with the procedural requirements of RCW 34.08.020(1), of this section, or of RCW 34.04.030, as now or hereafter amended, after two years have elapsed from the effective date of the rule.

Sec. 96. Section 3, chapter 234, Laws of 1959 as last amended by section 4, chapter 324, Laws of 1981 and RCW 34.04.030 are each amended to read as follows:

If the agency finds that immediate adoption or amendment of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observance of the requirements of notice and opportunity to present views on the proposed action would be contrary to the public interest, the agency may dispense with such requirements and adopt the rule or amendment as an emergency rule or amendment. The agency's finding and a concise statement of the reasons for its finding shall be incorporated in the emergency rule or amendment as filed with the office of the code reviser under RCW 34.04.040 and with the rules review committee. An emergency rule or amendment may not remain in effect for longer than ninety days after filing. 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. This section does not relieve the agency from the requirements of conforming to appropriate sections of the Regulatory Fairness Act, RCW 19.85.030 and 19.85.040.

NEW SECTION. Sec. 97. The legislature finds that over time rules can become detached from their original intent. Those rules which remain relevant become part of an ever-larger body of law, since the tendency is to add new rules without deleting old ones. Old rules may not apply to a modern economy yet may still be a constraint on small businesses throughout the state. The drain of time and energy required to comply with this mass of rules is in itself a major burden on small business operations. Therefore it is the purpose of section 98 of this act to initiate an agency review process to ensure that rules which are several years old are still applicable to the constantly evolving economy within this state.

NEW SECTION. Sec. 98. A new section is added to chapter 34.04 RCW to read as follows:

Any rule adopted under this chapter after July 1, 1987, must be reviewed after five years from the date of adoption. If no review has occurred by seven years after the date of adoption, the rule will expire.

The agency review shall include an evaluation of the effectiveness of the rule in relation to the original intent of the rule and an evaluation of whether the rule continues to apply at the time the review is conducted.