WSR 07-13-038

PERMANENT RULES

DEPARTMENT OF LICENSING


[ Filed June 13, 2007, 4:10 p.m. , effective July 14, 2007 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: To add clarity to rule language and to reflect a current course of the profession.

Citation of Existing Rules Affected by this Order: Amending WAC 308-15-020 Definitions and 308-15-075 When do I need to use my stamp/seal?; new sections WAC 308-15-105 Brief adjudicative proceeding, 308-15-107 Records required for the brief adjudicative proceeding and 308-15-160 Board member rules of conduct -- Activities incompatible with public duties -- Financial interests in transactions; and repealing WAC 308-15-100 What is a brief adjudicative proceeding (BAP)? and 308-15-101 When can a brief adjudicative proceeding (BAP) be requested?

Statutory Authority for Adoption: RCW 18.220.040.

Adopted under notice filed as WSR 07-08-099 on April 3, 2007.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 2, Amended 3, Repealed 2.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 3, Repealed 2.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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 12, 2007.

Ralph Osgood

Assistant Director

Business Profession Division

OTS-9590.3


AMENDATORY SECTION(Amending WSR 05-01-174, filed 12/21/04, effective 1/21/05)

WAC 308-15-020   Definitions.   (1) "Board" means the Washington state geologist licensing board.

(2) "Department" means the Washington state department of licensing.

(3) "Geologic interpretation," as applied to the practice of geology and its specialties, is the iterative process by which geologists, using generally accepted geologic principles, determine geologic history, origin and process from observation and testing of rock, soil and water characteristics, contents, distribution, orientation, lateral and vertical continuity; and resulting landforms.

(4) "Geological work of a character satisfactory to the board" means that the applicant's qualifying work history consists of professional experience in the practice of geology. Professional geological work is work performed at a professional level that requires the application of professional knowledge, principles and methods to geological problems through the exercise of individual initiative and judgment in investigating, measuring, interpreting and reporting on the physical phenomena of the earth. Implicit in this definition are the recognition of professional responsibility and integrity and the acknowledgment of minimal supervision. Professional geological work specifically does not include routine activities by themselves such as drafting, sampling, sample preparation, routine laboratory work, or core logging, where the elements of initiative, scientific judgment and decision making are lacking, nor does it include activities which do not use scientific methods to process and interpret geologic data. It also does not include engineering or other physical sciences where geological investigation, analysis and interpretation are minimal or lacking. Professional specialty experience is considered to meet this definition.

(5) "Geologist web site" means the internet web site maintained by the department of licensing.

(6) "National Association of State Boards of Geology" or "ASBOG" means the organization responsible for developing, publishing and grading National Geologist Licensing Examinations.

(7) "Professional specialty practice of a character satisfactory to the board" means that the applicant has qualifying work history pertinent to the specialty that meets the standards for professional geologic work defined above. Elements, typical applications, types of projects, for the engineering geologist and hydrogeologist specialties are outlined in WAC 308-15-053.

(8) "Reciprocity" means the issuance of a license without examination as a geologist or specialty geologist to a person who holds a license or certificate of qualifications issued by proper authority of any state, territory, or possession of the United States, District of Columbia, or any foreign country, if the applicant meets the requirements outlined in WAC 308-15-040 for a geologist license, in WAC 308-15-055 for an engineering geologist license, and in WAC 308-15-057 for a hydrogeologist license.

(9) "Year of professional practice" means at least 1600 hours of work in the practice during a year. Examples of a "year of professional practice" include 200 eight-hour days or 160 ten-hour days during a year. Part-time work will be counted on a prorated basis.

(10) "Year of professional specialty practice" means at least 1600 hours of work in a specialty during a calendar year, per examples given in subsection (9) of this section.

(11) "Geologist in training" means an individual who has met all the educational requirements outlined in WAC 308-15-040(2), and has passed the ASBOG Fundamentals of Geology examination, but does not meet the experience requirements outline in WAC 308-15-040(3).

[Statutory Authority: RCW 18.220.040, 18.220.050. 05-01-174, 308-15-020, filed 12/21/04, effective 1/21/05. Statutory Authority: Chapter 18.220 RCW. 01-12-023, 308-15-020, filed 5/25/01, effective 6/25/01.]


AMENDATORY SECTION(Amending WSR 05-01-174, filed 12/21/04, effective 1/21/05)

WAC 308-15-075   When do I need to use my stamp/seal?   (1) You must stamp/seal, sign, and date every final geology or specialty geology report, letter report, or document that is prepared by you or prepared under your supervision or direction and submitted to other parties.

(a) All figures, maps, and plates bound within final reports or documents do not need to be individually stamped/sealed, signed and dated. Unbound final figures, maps, and plates must be individually stamped/sealed, signed and dated.

(b) ((Preliminary or)) Draft geology or specialty geology work does not have to be stamped/sealed, but the documents and all associated figures, maps, and plates must be clearly marked as ((preliminary or)) draft.

(2) You must stamp/seal, sign, and date every final geology or specialty geology design and specification that is prepared by you or prepared under your supervision or direction. ((Preliminary or)) Draft geology or specialty geology design and specification drawings do not have to be stamped/sealed, but each design and specification must be clearly marked as ((preliminary or)) draft.

(3) If you stamp/seal, sign and date work performed by someone other than yourself, you are responsible to the same extent as if you prepared the report, design or specification.

[Statutory Authority: RCW 18.220.040, 18.220.050. 05-01-174, 308-15-075, filed 12/21/04, effective 1/21/05. Statutory Authority: Chapter 18.220 RCW. 01-12-023, 308-15-075, filed 5/25/01, effective 6/25/01.]


NEW SECTION
WAC 308-15-105   Brief adjudicative proceedings.   (1) The board will conduct brief adjudicative proceedings as provided for in RCW 34.05.482 through 34.05.494 of the Administrative Procedure Act. Brief adjudicative proceedings may be used whenever a statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleges violations of chapters 18.220 and 18.235 RCW, administrative rules in TITLE 308 WAC or any statutes or rules that specifically govern the defined practices of geologists. Brief adjudicative proceedings may also be used in place of formal adjudicative hearings whenever the board issues a statement of charges, notice of intent to issue a cease and desist order, or temporary cease and desist order alleging that an applicant or licensee's conduct, act(s), or condition(s) constitute unlicensed practice or unprofessional conduct as that term is defined under chapter 18.235 RCW, the Uniform Regulation of Business and Professions Act.

(2) Brief adjudicative proceedings may be used to determine the following issues, including, but not limited to:

(a) Whether an applicant has satisfied terms for reinstatement of a license after a period of license restriction, suspension, or revocation;

(b) Whether an applicant is eligible to sit for a professional licensing examination;

(c) Whether a sanction proposed by the board is appropriate based on the stipulated facts;

(d) Whether an applicant meets minimum requirements for an initial or renewal application;

(e) Whether an applicant has failed the professional licensing examination;

(f) Whether an applicant or licensee failed to cooperate in an investigation by the board;

(g) Whether an applicant or licensee was convicted of a crime that disqualifies the applicant or licensee from holding the specific license sought or held;

(h) Whether an applicant or licensee has defaulted on educational loans;

(i) Whether an applicant or licensee has violated the terms of a final order issued by the board or the board's designee;

(j) Whether a person has engaged in false, deceptive, or misleading advertising; or

(k) Whether a person has engaged in unlicensed practice.

(3) In addition to the situations enumerated in subsection (2) of this section, the board may conduct brief adjudicative proceedings instead of formal adjudicative hearings whenever the parties have stipulated to the facts and the only issues presented are issues of law, or whenever issues of fact exist but witness testimony is unnecessary to prove or disprove the relevant facts.

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NEW SECTION
WAC 308-15-107   Records required for the brief adjudicative proceeding.   The records for the brief adjudicative proceeding shall include:

(1) Renewal or reinstatement of a license:

(a) All correspondence between the applicant and the board about the renewal or reinstatement;

(b) Copies of renewal notice(s) sent by the department of licensing to the licensee;

(c) All documents received by the board from or on behalf of the licensee relating to information, payments or explanations that have been provided to the board.

(2) Applicants for certification/licensing:

(a) Original complete application with all attachments as submitted by applicant;

(b) Copies of all supplementary information related to application review by staff or board member;

(c) All documents relied upon in reaching the determination of ineligibility;

(d) All correspondence between the applicant and the board about the application or the appeal.

(3) Default of student loan payments:

(a) Copies of notices to the board showing the name and other identification information of the individual claimed to be in default on student loan payments;

(b) Copies of identification information corresponding to the person who is certified/licensed by the board that relate to the identity of the individual in default;

(c) All documents received by the board from or on behalf of the licensee relating to rebutting such identification;

(d) Certification and report by the lending agency that the identified person is in default or nonpayment on a federally or state-guaranteed student loan or service-conditional scholarship; or

(e) A written release, if any, issued by the lending agency stating that the identified person is making payment on the loan in accordance with a repayment agreement approved by the lending agency.

(4) Determination of compliance with previously issued board order:

(a) The previously issued final order or agreement;

(b) All reports or other documents submitted by, or at the direction of, the license holder, in full or partial fulfillment of the terms of the final order or agreement;

(c) All correspondence between the license holder and the program regarding compliance with the final order or agreement; and

(d) All documents relied upon by the program showing that the license holder has failed to comply with the previously issued final order or agreement.

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NEW SECTION
WAC 308-15-160   Board member rules of conduct -- Activities incompatible with public duties -- Financial interests in transactions.   (1) When a member of the board either owns a beneficial interest in or is an officer, agent, employee, or member of an entity, or individual that is engaged in a transaction involving the board, the member shall:

(a) Recuse him or herself from the board discussion regarding the specific transaction;

(b) Recuse him or herself from the board vote on the specific transaction; and

(c) Refrain from attempting to influence the remaining board members in their discussion and vote regarding the specific transaction.

(2) The prohibition against discussion and voting set forth in subsection (1)(a) and (c) of this section shall not prohibit the member of the board from using his or her general expertise to educate and provide general information on the subject area to the other members.

(3)(a) "Transaction involving the board" means a proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other similar matter that the member in question believes, or has reason to believe:

(i) Is, or will be, the subject of board action; or

(ii) Is one to which the board is or will be a party; or

(iii) Is one in which the board has a direct and substantial proprietary interest.

(b) "Transaction involving the board" does not include the following: Preparation, consideration, or enactment of legislation, including appropriation of moneys in a budget, or the performance of legislative duties by a member; or a claim, case, lawsuit, or similar matter if the member did not participate in the underlying transaction involving the board that is the basis for the claim, case, or lawsuit. Rule making is not a "transaction involving the board."

(4) "Board action" means any action on the part of the board, including, but not limited to:

(a) A decision, determination, finding, ruling, or order; and

(b) A grant, payment, award, license, contract, transaction, sanction, or approval, or the denial thereof, or failure to act with respect to a decision, determination, finding, ruling, or order.

(5) The following are examples of possible scenarios related to board member rules of conduct. Activities incompatible with public duties; financial interests in transactions.


(a) Example 1:

The geologist licensing board disciplines licensed geologists in Washington. The board is conducting an investigation involving the services provided by a licensed geologist. One of the members of the board is currently serving as a subcontractor to that geologist on a large project. The board member must recuse himself from any board investigation, discussion, deliberation and vote with respect to disciplinary actions arising from licensed geologist services.

(b) Example 2:

The geologist licensing board makes licensing decisions on applications for licensure. An applicant for licensure owns a geotechnical consulting business which employs licensed geologists, including one of the board members. The board member employed by the business must recuse himself from any board investigation, discussion, deliberation and vote with respect to his employer's application for licensure.

(c) Example 3:

The geologist licensing board makes licensing decisions on applications from geologists registered in other states or territories of the United States, the District of Columbia, or other countries. The board can grant licensure if an individual's qualifications and experience are equivalent to the qualifications and experience required of a person licensed under Washington law. An out-of-state applicant is employed as a geologist by a multinational corporation that is planning to build its world headquarters in Washington and has hired a board member's firm as the geologist for the project. The board member must recuse himself from any board investigation, discussion, deliberation and vote with respect to the sufficiency of the out-of-state geologist's qualifications and experience.


(6) Recusal disclosure. If recusal occurs pursuant to subsection (1) of this section, the member of the board shall disclose to the public the reasons for his or her recusal from any board action whenever recusal occurs. The board staff shall record each recusal and the basis for the recusal.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 308-15-100 What is a brief adjudicative proceeding (BAP)?
WAC 308-15-101 When can a brief adjudicative proceeding (BAP) be requested?

Washington State Code Reviser's Office