WSR 17-13-125 PERMANENT RULES DEPARTMENT OF AGRICULTURE [Filed June 21, 2017, 10:12 a.m., effective July 22, 2017]
Effective Date of Rule: Thirty-one days after filing.
Purpose: This rule-making order amends chapter 16-08 WAC, Practice and procedure, by:
1. Clarifying the department's process for brief adjudicative proceedings, including filing, department decisions, administrative review, and the agency record;
2. Adding actions and deleting actions that the department may review in a brief adjudicative proceeding, to address changes in law and other rules; and
3. Improving clarity and readability.
Citation of Existing Rules Affected by this Order: Amending WAC 16-08-002, 16-08-003, 16-08-004, 16-08-011, 16-08-091, 16-08-141, 16-08-151, and 16-08-171.
Statutory Authority for Adoption: RCW 43.17.060.
Other Authority: Chapter 34.05 RCW.
Adopted under notice filed as WSR 17-10-068 on May 3, 2017.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 5, Amended 8, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 5, Amended 8, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: June 21, 2017.
Derek I. Sandison
Director
AMENDATORY SECTION (Amending WSR 11-20-047, filed 9/29/11, effective 10/30/11)
WAC 16-08-002 Definitions.
The definitions in this section apply to this chapter unless the context otherwise requires:
"Date of service" means the date the department places a properly dated and stamped document into the United States Postal Service or other mail service for delivery.
"Department" means the department of agriculture of the state of Washington.
"Director" means the director of the department of agriculture.
"Person" means natural persons, sole proprietorship, corporations, trusts, unincorporated associations and partnerships.
"Presiding officer" means the person designated by the director to preside over adjudicative proceedings.
"Reviewing officer" means the director of agriculture or the person designated by the director to review initial orders and prepare and enter final orders for the director.
AMENDATORY SECTION (Amending WSR 04-02-063, filed 1/7/04, effective 2/7/04)
WAC 16-08-003 ((Declaration of)) Purpose ((and applicability)) of this chapter.
This chapter sets forth the rules of procedure that ((are applicable)) apply to adjudicative proceedings before the department. ((Because)) This chapter does not apply to civil penalties and orders issued by the department ((pursuant to)) under chapters 90.64 and 90.48 RCW in the ((livestock)) dairy nutrient management program ((are appealable only to the pollution control hearings board (PCHB) under chapter 43.21B RCW and chapter 371-08 WAC, this chapter is not applicable to those proceedings)).
AMENDATORY SECTION (Amending WSR 04-02-063, filed 1/7/04, effective 2/7/04)
WAC 16-08-004 ((Livestock)) Dairy nutrient management program (((LNMP))) appeals.
(1) All appeals of civil penalties and orders issued by the ((department in the livestock)) department's dairy nutrient management program ((shall be)) are filed with the ((PCHB)) pollution control hearings board at the environmental hearings office and ((shall be)) are served on the department of agriculture ((pursuant to)) under RCW 43.21B.230 and 43.21B.300, and WAC 371-08-335 and 371-08-345.
(2) ((Pursuant to)) Under WAC 371-08-306, when referring to appeals related to civil penalties and orders issued by the department of ((agriculture in the livestock)) agriculture's dairy nutrient management program, all references to "department" in both chapters 43.21B RCW and 371-08 WAC ((shall)) mean the department of agriculture; all references to "director" ((shall)) mean the director of the department of agriculture.
AMENDATORY SECTION (Amending WSR 91-23-051, filed 11/15/91, effective 12/16/91)
WAC 16-08-011 ((Adoption of)) The department of agriculture adopts the model rules of procedure.
The model rules of procedure, chapter 10-08 WAC, adopted by the chief administrative law judge ((pursuant to)) under RCW 34.05.250((, as now or hereafter amended,)) are ((hereby)) adopted for use by the department. In the case of a conflict between the model rules of procedure and procedural rules adopted in this chapter, the procedural rules adopted in this chapter by the department ((shall)) take precedence.
AMENDATORY SECTION (Amending WSR 91-23-051, filed 11/15/91, effective 12/16/91)
WAC 16-08-091 Depositions in adjudicative proceedings—Notice.
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice of not less than five days in writing to the department of agriculture and all parties. The notice shall state the time and place for taking the deposition, the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs. On motion of a party upon whom the notice is served, the presiding officer may for cause shown, enlarge or shorten the time. If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used as other depositions.
AMENDATORY SECTION (Amending WSR 11-20-047, filed 9/29/11, effective 10/30/11)
WAC 16-08-141 Brief adjudicative proceedings—Applicability.
(((1) Pursuant to RCW 34.05.482, the department will use brief adjudicative proceedings where not violative of law and where protection of the public interest does not require the department to give notice and an opportunity to participate to persons other than the parties. Those circumstances may include:
(a) Actions taken by the agency based on the failure:
(i) To maintain, supply, or display records; and/or
(ii) To display evidence of a license; and/or
(iii) To display or post information required by law; and/or
(iv) To possess required insurance, bonding or other security.
(b) Actions taken with respect to late application renewal fees.
(c) Actions taken with respect to certificate of compliance agreements under WAC 16-461-010.
(d) Actions taken with respect to sale permits pursuant to RCW 15.13.270.
(e) Actions taken to revoke certification of plant material as foundation or breeder planting stock pursuant to RCW 15.14.110.
(f) Penalty actions taken with respect to cattle breed name use.
(h) Dairy degrade or permit suspension actions taken pursuant to chapter 15.36 RCW.
(i) Actions taken with respect to licenses for sale of milk for animal food pursuant to RCW 15.37.030 et seq.
(j) Actions taken with respect to registration of commercial feed pursuant to RCW 15.53.9036.
(k) Actions taken with respect to pesticide registration under RCW 15.58.110.
(m) Actions taken with respect to mushroom buyer or dealer licenses pursuant to RCW 15.90.020.
(n) Actions taken with respect to animal health certificates pursuant to RCW 16.36.050.
(o) Actions taken with respect to destruction or treatment of quarantined animals pursuant to RCW 16.36.090.
(p) Actions taken with respect to licenses for garbage feeding to swine pursuant to RCW 16.36.108.
(q) Actions taken with respect to licenses related to custom farm slaughter pursuant to chapter 16.49 RCW.
(r) Actions taken with respect to licenses related to custom meat facilities pursuant to chapter 16.49 RCW.
(s) Actions taken with respect to approval of livestock pens within feedlots pursuant to RCW 16.58.080.
(t) Actions taken with respect to certified feed lot licenses pursuant to RCW 16.58.130.
(u) Actions taken with respect to seizure and destruction of incorrect weights and measures pursuant to RCW 19.24.250.
(v) Actions taken with respect to licenses of grain dealers or warehousemen pursuant to RCW 22.09.471.
(w) Revocation of compliance agreements for the completion of state phytosanitary, sanitation, or brown garden snail certificates pursuant to chapters 15.13 and 17.24 RCW.
(x) Revocation of compliance agreements for preprinting or use of rubber stamps for nursery stock inspection certificates pursuant to chapter 15.13 RCW.
(y) Revocation of compliance agreements for root sampling of nursery stock pursuant to chapter 15.13 RCW.
(z) Agency refusal to certify seed stocks because of misleading or confusing labeling pursuant to chapter 15.60 RCW and WAC 16-316-345.
(aa) Rescinding of permit for seed conditioning pursuant to chapter 15.60 RCW and WAC 16-316-185(8).
(bb) Expulsion from or refusal to allow entry into a seed or plant certification program pursuant to chapters 15.60 and 15.13 RCW.
(2) A party to a brief adjudicative hearing has twenty-five days to file an application or request from the date of service of the department's notice of intent to take action. The application or request for a brief adjudicative hearing shall be filed at the address listed on the form provided by the department. The party filing the application or request for a brief adjudicative proceeding shall submit a written explanation of their view of the matter along with the application or request. Other parties may file a written response within ten days after service of the application for a brief adjudicative proceeding. Copies of the response shall be served on all parties. Oral statements may be submitted and considered as follows:
(a) If a party to a brief adjudicative proceeding desires an opportunity to make an oral statement, it should be requested in the application or request.
(b) A request to make an oral statement may be granted if the presiding officer believes such a statement would benefit him or her in reaching a decision. The presiding officer shall notify the parties within a reasonable time of the decision to grant or deny the request to hear oral comments, and if the request is granted, shall notify the parties of the time and place for hearing comments.
(3) At the time any unfavorable action is taken, the presiding officer shall serve upon each party a brief statement of the reasons for the decision. Within ten days of the decision, the presiding officer shall give the parties a brief written statement of the reasons for the decision and information about any internal administrative review available.
(4) The presiding officer's written decision is an initial order. If no review is taken of the initial order, it shall be the final order.
(5) The reviewing officer shall conduct a review of an initial order resulting from a brief adjudicative proceeding upon the written or oral request of a party if the director receives the request within twenty-one days from the service of the initial order. If no request is filed in a timely manner, the reviewing officer may review, on his or her own motion, an order resulting from a brief adjudicative proceeding and adopt, modify, or reject the initial order; but the reviewing officer shall not take any action on review less favorable to any party without giving that party notice and opportunity to explain his or her view of the matter.
(6) A request for review of an initial order shall contain an explanation of the party's view of the matter and a statement of reasons why the initial order is incorrect. The request for review shall be filed with the director and copies shall be served on all parties, and evidence of such service filed. Responses to a request for review of an initial order shall be filed with the director and served on all parties within ten days after service of the request for review.
(7) The order on review shall be in writing, shall include a brief statement of the reasons for the decision, and shall 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.
(8) The record in a brief adjudicative proceeding shall consist of any documents regarding the matter that were considered or prepared by the presiding officer for the brief adjudicative proceeding and/or by the reviewing officer for any review.)) (1) If an adjudicative proceeding is requested in a matter not listed in this section, a brief adjudicative proceeding may be conducted at the discretion of the presiding officer when use of a brief adjudicative proceeding will not violate any provision of law and protection of the public interest does not require the department to give notice and an opportunity to participate to persons other than the parties and:
(a) The only issues presented are issues of law; or
(b) Both parties have agreed to a brief adjudicative proceeding.
(2) Brief adjudicative proceedings may be used to determine the following issues including, but not limited to:
(a) Whether an applicant, permittee, or licensee satisfies all requirements to maintain, provide, make available for review, or display records or has committed other recordkeeping violations.
(b) Whether an applicant, permittee, or licensee satisfies all requirements to create, maintain, provide, or make available for review data or reports.
(c) Whether an applicant, permittee, or licensee satisfies all requirements to display or post information required by law.
(d) Whether an applicant satisfies financial security requirements by providing adequate proof of insurance, surety bonds, custodial account, or other proof of financial security as required by law.
(e) Whether an applicant satisfies terms for reinstatement of a license or registration after a period of license or registration suspension or revocation.
(f) Whether an applicant meets minimum eligibility requirements for an initial or renewal application for a license, permit, registration, or certification.
(g) Whether an applicant, licensee, permittee, or registrant should be denied a license, permit, registration, or certification for failure to comply with labeling requirements.
(h) Whether an applicant, permittee, or licensee failed to cooperate in an investigation, examination, sample taking, or inspection by the department.
(i) Whether an applicant, permittee, or licensee violated the terms of a final order issued by the director or director's designee.
(j) Whether an applicant, permittee, licensee, or registrant failed to timely pay an application fee, renewal fee, or an assessment required for a license, registration, permit, or certification.
(k) Whether commercial use of a weighing or measuring instrument or device violates chapter 19.94 RCW or 16-674, 16-662, or 16-663 WAC.
(l) Whether motor fuel marketed for sale is in compliance with chapters 19.112 RCW and 16-662 WAC.
(m) Whether planting stock fails to meet the certification requirements under chapter 15.14 RCW.
(n) Whether a milk processing plant or producer license should be lowered in grade for failure to meet requirements under chapter 15.36 RCW.
(o) Whether a license for sale of milk for animal food should be denied, suspended, or revoked for violations under chapter 15.37 RCW.
(p) Whether a commercial feed registration of pet food and specialty pet food should be denied or canceled for failure to comply with requirements under chapter 15.53 RCW.
(q) Whether registration on the organic brand name materials list should be denied, suspended, or revoked for failure to meet the requirements under chapter 15.86 RCW.
(r) Whether an applicant for a custom farm slaughter license or a custom meat facility license should be denied, suspended, or revoked for failure to comply with the requirements under chapter 16.49 RCW.
(s) Whether an applicant for pesticide registration should be denied for failure to comply with the pesticide product or labeling requirements under chapter 15.58 RCW.
(t) Whether an applicant for fertilizer registration should be denied for failure to comply with commercial fertilizer product or labeling requirements under chapter 15.54 RCW.
(u) Whether an applicant for a license to feed garbage to swine should be denied, suspended, or revoked for failure to comply with the licensing requirements under chapter 16.36 RCW.
(v) Whether an applicant for a certified feed lot license should be denied, suspended, or revoked for failure to pay fees required under RCW 16.58.130.
(w) Whether a person is in violation of chapter 16.36 RCW for failure to secure a certificate of veterinary inspection for an animal being brought into Washington state.
(x) Whether a person is in violation of RCW 16.36.050(2) for failure to transport or deliver an animal to the destination designated by a certificate of veterinary inspection, import health papers, permits, or other transportation documents required by law.
(y) Whether a person licensed to practice veterinary medicine, surgery, or dentistry in Washington state is in violation of RCW 16.36.080 for failure to report to the department the existence or suspected existence of a reportable disease among animals within the state.
(z) Whether a seed conditioning permit should be revoked for failure to comply with chapters 15.49 RCW and 16-302 WAC.
NEW SECTION
WAC 16-08-142 Brief adjudicative proceedings—Filing.
(1) A request for hearing (application for brief adjudicative proceeding) must be in writing and filed with the department during regular office hours at the address designated in the notice or instructions provided by the department. A party may request a brief adjudicative proceeding by completing the application form provided by the department, along with a written explanation of the party's view of the matter.
(2) A request for hearing is filed in a timely manner when the mailing is postmarked or received by the department within twenty-five days of service of the proposed department action giving rise to the request for hearing.
(3) A request for hearing may be filed with the department by personal delivery, commercial delivery, fax, or first-class, registered, or certified mail. A request for hearing may be filed by electronic mail (email) only when instructions for email filings have been provided by the department.
(4) If the request for hearing is not timely filed with the department, the applicant waives his or her right to a hearing.
NEW SECTION
WAC 16-08-144 Brief adjudicative proceedings—Procedure.
(1) Brief adjudicative proceedings shall be conducted by a presiding officer designated by the director in accordance with WAC 16-08-021.
(2) The parties or their representatives may present written documentation in addition to the request for hearing. The presiding officer for brief adjudicative proceedings shall designate the date by which written documents must be submitted by the parties.
(3) The presiding officer may hear oral argument from the parties or their representatives if the presiding officer believes the statement will help in reaching a decision. If a party to a brief adjudicative proceeding desires to make an oral statement, a request shall be included in the application for the brief adjudicative proceeding. If the request is granted, the presiding officer will designate the time and place for taking oral statements and notify the parties.
(4) The parties may not call witnesses to testify.
(5) If a party fails to appear at the designated time and place for taking oral statements, the presiding officer shall take the oral statement of any party present and shall consider it and all written submissions.
NEW SECTION
WAC 16-08-145 Brief adjudicative proceedings—Decisions.
(1) The presiding officer for brief adjudicative proceedings shall not issue an oral order.
(2) Within ten days of the final date for submission of materials or oral argument, if any, the presiding officer shall enter a written initial order. The initial order will contain a brief written statement of the reasons for the decision and information about any internal review available.
(3) If a party does not request administrative review of an initial order in accordance with WAC 16-08-148, the initial order becomes a final order on the twenty-first calendar day after service of the initial order.
NEW SECTION
WAC 16-08-148 Brief adjudicative proceedings—Administrative review.
(1) Any party may request orally or in writing a review of the initial order issued under WAC 16-08-145. A petition for review of an initial order shall contain a written explanation of the party's view of the matter and a statement of reasons why the initial order is incorrect. Oral requests must be placed in writing.
(a) Petitions for review may be filed with the department by personal delivery, commercial delivery, fax, or first-class, registered or certified mail. A petition for review may be filed by electronic mail (email) only when instructions for email filings have been provided by the department. Petitions for review must be received by the department at the address designated in the initial order within twenty-one days of service of the initial order.
(b) Petitions for review shall be served on all parties, and evidence of such service filed at the address designated in the initial order.
(2) A party may file a response to a petition for a review.
(a) The response shall be filed at the address designated in the initial order within ten days of the date of service of the petition for review.
(b) Copies of the response shall be served on all other parties at the time the response is filed.
(3)(a) The department reviewing officer, upon his or her own motion, may petition for administrative review of an initial order.
(b) The reviewing officer shall provide notice to the parties of his or her determination to review the initial order within twenty-one days of service of the initial order. The notice to the parties shall state the date by which a decision shall be made. The reviewing officer shall not take any action on review that is less favorable than the initial order without giving all parties notice and an opportunity to explain his or her view of the matter.
(4) The reviewing officer shall enter a final order disposing of the proceeding. A final order shall be in writing and shall:
(a) Include a brief statement of the reasons for the decision;
(b) Be entered within twenty-one days after the date of the initial order or of the petition for review, whichever is later.
(5) If the reviewing officer deems it necessary, he or she may remand a matter for further proceedings.
NEW SECTION
WAC 16-08-149 Brief adjudicative proceedings—Agency record.
The agency record in a brief adjudicative proceeding shall consist of any documents relating to the matter that were considered or prepared by the presiding officer or by the reviewing officer for any review. The agency record shall include:
(1) All initiating documents;
(2) The request for hearing;
(3) All documents submitted in the proceeding;
(4) Any transcript or recording of any oral arguments presented; and
(5) All orders issued in the case.
AMENDATORY SECTION (Amending WSR 98-09-085, filed 4/21/98, effective 5/22/98)
WAC 16-08-151 Emergency adjudicative proceedings.
(1) Pursuant to RCW 34.05.479, the department shall use emergency adjudicative proceedings for the suspension or cancellation of authority in situations involving an immediate danger to the public health, safety, or welfare requiring immediate action by the department. Such situations shall include:
(a) Failure to possess required insurance, bonding or other security.
(b) Health, safety, or welfare violations when the violation involves an immediate danger to the public health, safety, or welfare, including, but not limited to, decisions by the department to:
(vii) Close food processing facilities under chapter 69.07 RCW((;)) or under rules or regulations of the director adopted pursuant to such laws.
(2) The ((summary)) department shall enter a written order ((shall include)) containing a brief statement of findings of fact, conclusions of law, and justification for the determination of an immediate danger to the public health, safety, or welfare. The order shall be effective when entered. Service of the order shall be made pursuant to WAC 10-08-110. The order shall also give the affected party ((five days from service of the order)) instructions on how to request an adjudicative proceeding on the order, or, in the alternative, the ((director)) department may in the order automatically establish a date affording the affected party the opportunity to present any defense concerning why the ((summary)) order is incorrect.
(3) A ((decision made upon)) request for emergency hearing (application for an adjudicative proceeding) must be in writing and filed with the department during regular office hours at the address designated in the notice or instructions provided by the department. A request for hearing is filed in a timely manner when the mailing is postmarked or received by the department within five days of service of the order. A request for hearing may be filed with the department by personal delivery, commercial delivery, fax, or first-class, registered, or certified mail. A request for hearing may be filed by electronic mail (email) only when instructions for email filings have been provided by the department.
(4) The presiding officer for the emergency adjudicative proceeding shall ((be expressed in)) issue a written order which shall be served on all parties ((within five days after its entry)). This written order is a final order.
(((4))) (5) The ((summary)) order shall be effective pending disposition on the merits of the denial, suspension or revocation of authority.
AMENDATORY SECTION (Amending WSR 97-14-050, filed 6/27/97, effective 7/28/97)
WAC 16-08-171 Documents—Filing.
Any documents filed with the director under provisions of the Administrative Procedure Act, chapter 34.05 RCW, Model rules of procedure, chapter 10-08 WAC, and this chapter, shall be filed with the Administrative Regulations Program, P.O. Box 42560, 1111 Washington St., S.E., Olympia, WA 98504-2560.
Unless otherwise required by law, ((filing of a document with the director shall be made personally, by first class mail, by certified or registered mail, by commercial parcel delivery company, or by electronic telefacsimile transmission and same-day mailing of original showing same-day postmark)) documents may be filed with the department by personal delivery, commercial delivery, fax, or first-class, registered or certified mail. Documents may be filed by electronic mail (email) only when instructions for email filings have been provided by the department. Filing shall occur within the period of time specified for filing by statute, rule, or order.
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