On January 13, 2011, the Governor's Office received an appeal from Mr. David Keller relating to the Board of Pharmacy's Emergency Rule adding the chemicals JWH-018, JWH-073, JWH-200, CP-47, 497 and cannabicyclohexanol to Schedule I. The Governor has no jurisdiction to take action under RCW 34.05.350(3) and RCW 43.17.010 and therefore denied the appeal on January 20, 2011.
DATE: January 20, 2011
General Counsel to the Governor
January 20, 2011
PO Box 452
Shelton, WA 98584
RE: Petition for Repeal of Emergency Rule
Dear Mr. Keller:
Thank you for your email of January 13, 2011, in which you request the immediate repeal of a rule pertaining to synthetic marijuana that was adopted on an emergency basis by the Washington State Board of Pharmacy.
RCW 34.05.350(1)(a) allows adoption of an emergency rule when "immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare." RCW 34.05.350(3) provides: "Within seven days after the rule is adopted, any person may petition the governor requesting the immediate repeal of a rule adopted on an emergency basis by any department listed in RCW 43.17.010." The Board of Pharmacy is not a department listed in RCW 43.17.010, therefore, the Governor lacks the jurisdiction to take the direct action requested in your letter.
Notwithstanding this jurisdictional issue, our review indicates the action taken by the Board of Pharmacy meets the requirements for adoption of a rule on an emergency basis. The Board found the scheduling of the substance on an emergency basis was necessary to avoid an imminent hazard to the public safety. The Drug Enforcement Administration banned the same five synthetic cannabinoids on an emergency basis, and synthetic cannibinoids poison cases reported to the Washington Poison Center have been on the rise. The Board had good cause to find that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.