On April 22, 2011, the Governor's Office received an appeal from Mr. David Keller relating to the Board of Pharmacy's Emergency Rule WSR 11-09-44 adding the chemicals known as substituted cathinones 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 April 27, 2011.
DATE: April 28, 2011
General Counsel to the Governor
April 27, 2011
PO Box 452
Shelton, WA 98584
RE: Petition for Repeal of Emergency Rule WSR 11-09-44
Dear Mr. Keller:
Thank you for your email of April 22, 2011, in which you request the immediate repeal of rule WSR 11-09-44 pertaining to "Bath Salts" 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 had evidence that the substances are being used as substitute stimulants in place of cocaine and methamphetamine, and that these substances affect behavior, judgment and health and can cause serious harm when used. There have been reports of serious injuries and suicides linked to the use of these substances, and the Washington Poison Center has seen a three-fold increase just this year over the total number of "bath salt" ingestions in 2010. The Board found the scheduling of the substances on an emergency basis was necessary to avoid an imminent hazard to the public safety. 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