EMPLOYMENT SECURITY DEPARTMENT

[Filed May 28, 2020, 11:56 a.m., effective June 29, 2020]

Effective Date of Rule: June 29, 2020.

Purpose: The rule making permits appellants who have received an order of default to file a motion to vacate the order of default directly with the office of administrative hearings.

Citation of Rules Affected by this Order: New WAC 192-04-185; and amending WAC 192-04-180.

Statutory Authority for Adoption: RCW 50.32.060, 50.12.040, and 34.05.440.

Adopted under notice filed as WSR 20-08-035 on March 24, 2020.

A final cost-benefit analysis is available by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98501, phone 360-890-3472, fax 844-652-7096, email rules@esd.wa.gov, website https://esd.wa.gov/newsroom/rulemaking/benefits.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 1, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: May 28, 2020.

AMENDATORY SECTION(Amending WSR 89-24-030, filed 11/30/89, effective 1/1/90)

WAC 192-04-180Decisions—Disposition other than by hearing on the merits—Petition for review.

(1) The presiding administrative law judge may dispose of any appeal or petition for hearing ((by))through:

(a) An order approving a withdrawal of appeal((,));

(b) An order approving a withdrawal of a petition for hearing((,));

(d) An order of default.

(2) There shall be no petition for review rights from:

(a) An order approving a withdrawal of appeal((,));

(b) An order approving a withdrawal of a petition for hearing; or

((Any interested party aggrieved by the entry of an order of default may file a petition for review from such order by complying with the filing requirements set forth in WAC 192-04-170: Provided, however, That the default of such party shall be set aside by the commissioner only upon a showing of good cause for failure to appear or to request a postponement prior to the scheduled time for hearing. In the event such order of default is set aside, the commissioner shall remand the matter to the office of administrative hearings for hearing and decision.))

WAC 192-04-185Orders of default—Motion to vacate—Petition for review.

(1) Any interested party aggrieved by the entry of an order of default may:

(a) File a motion to vacate that order with the office of administrative hearings pursuant to the methods of filing found in WAC 10-08-110. Motions to vacate must be postmarked or received by the office of administrative hearings within ten days of the date of mailing of the order of default; or

(b) File a petition for review with the commissioner pursuant to the filing requirements in WAC 192-04-170. Once a petition for review is filed, the office of administrative hearings no longer has jurisdiction to vacate its order of default.

(2) The filing of a motion to vacate an order of default suspends the appeal period for filing a timely petition for review until the office of administrative hearings rules on the motion to vacate. If the motion to vacate is denied, the petitioner shall have thirty days from the issuance of denial in which to file a timely petition for review of the order of default.

(3) Under subsection (1)(a) of this section, an order of default will be vacated by the presiding officer only upon a showing of good cause for failure to appear or to request a postponement prior to the scheduled time for hearing. If the order of default is vacated, the presiding administrative law judge will conduct a hearing on the merits and issue a decision.

(4) Under subsection (1)(b) of this section, an order of default will be set aside by the commissioner's review office only upon a showing of good cause for failure to appear or to request a postponement prior to the scheduled time for hearing. If that order of default is set aside, the commissioner will remand the matter to the office of administrative hearings for hearing and decision.