AN ACT Relating to administrative procedure; amending RCW 34.04.025, 34.04.030, 34.04.080, 34.04.090, 34.04.130, 34.12.040, 28B.19.030, 28B.19.040, 28B.19.120, and 28B.19.150; adding new sections to chapter 34.04 RCW; adding new sections to chapter 28B.19 RCW; repealing RCW 28B.19.033, 34.04.022, and 34.04.045; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 3, chapter 237, Laws of 1967 as last amended by section 1, chapter 221, Laws of 1982 and RCW 34.04.025 are each amended to read as follows:

(1) Prior to the adoption, amendment, or repeal of any rule, each agency shall:

(a) File notice thereof with the code reviser in accordance with RCW 34.08.020(1) for publication in the state register, and with the rules review committee, and mail such notice to all persons who have made timely request of the agency for advance notice of its rule-making proceedings((. Such notice shall also include (i) reference to the authority under which the rule is proposed, (ii) a statement of either the terms or substance of the proposed rule or a description of the subjects and issues involved, and (iii) the time when, the place where, and the manner in which interested persons may present their views thereon));

(b) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In case of substantive rules, opportunity for oral hearing must be granted if requested by twenty-five persons, by a governmental subdivision or agency, by the rules review committee, or by an association having not less than twenty-five members.

(2) The notice shall include all of the following:

(a) A short explanation of the rule, its purpose, and anticipated effects, including, in the case of a proposal that would modify existing rules, a short description of the changes that the proposal would make;

(b) The specific legal authority for the proposed rule;

(d) The names, office addresses, and telephone numbers of the agency personnel who are responsible for drafting and implementation of the rule;

(e) Where, when, and how persons may present their views on the proposed rule;

(f) The date on which the agency intends to adopt the rule; and

(g) A copy of the small business economic impact statement, where applicable.

(3) The agency shall make ((~~every~~)) a good faith effort to insure that the information on the proposed rule circulated pursuant to ((~~subsection (1)(a) of~~)) this section accurately reflects the rule to be presented and discussed at any oral hearing on such rule. ((Where substantial changes in the draft of the proposed rule are made after publication of notice in the register which would render it difficult for interested persons to properly comment on the rule without further notice, new notice of the agency's intended action as provided in subsection (1)(a) of this section shall be required.)) If, after giving the notice described in this section, the agency contemplates adopting a rule substantially varying from the proposed rule described in the notice, the agency may give a supplemental notice meeting the requirements of this section and reopen the proceedings for public comment.

((~~(3)~~)) (4) The agency shall consider fully all written and oral submissions respecting the proposed rule including those addressing the question of whether the proposed rule is within the intent of the legislature as expressed by the statute which the rule implements((~~, and may amend the proposed rule at the oral hearing or adopt the proposed rule, if there are no substantial changes, without refiling the notice required by this section~~)). Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within thirty days thereafter, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein its reasons for overruling the considerations urged against its adoption.

((~~(4)~~)) (5) If the agency, without filing a supplemental notice under subsection (3) of this section, adopts a rule that varies in content from the proposed rule, the general subject matter of the adopted rule must remain the same as the proposed rule. The agency shall briefly describe any changes and the principal reasons for adopting substantive changes. The brief description shall be filed with the code reviser together with the order of adoption for publication in the state register. Within sixty days of publication of the adopted rule in the state register, any interested person may petition the agency to amend any portion of the adopted rule that is substantially different from the proposed rule. The petition shall briefly demonstrate how the adopted rule is substantially different from the proposed rule and shall contain the text of the petitioner's proposed amendments. For purposes of such a petition, an adopted rule is substantially different if the issues determined in the adopted rule differ from the issues determined in the proposed rule or the anticipated effects of the adopted rule differ from those of the proposed rule. If the petition meets the requirements of this section and RCW 34.04.060, the agency shall initiate rule-making proceedings on the proposed amendments within the time provided in RCW 34.04.060.

(6) No proceeding may be held on any rule until twenty days have passed from the distribution date of the register in which notice thereof was contained. The code reviser shall make provisions for informing an agency giving notice under subsection (1) of this section of the distribution date of the register in which such notice will be published.

((~~(5)~~)) (7) No rule hereafter adopted is valid unless adopted in substantial compliance with this section, unless it is an emergency rule designated as such and is adopted in substantial compliance with RCW 34.04.030((~~, as now or hereafter amended~~)). In any proceeding a rule cannot be contested on the ground of noncompliance with the procedural requirements of RCW 34.08.020(1), of this section, or of RCW 34.04.030((~~, as now or hereafter amended,~~)) after two years have elapsed from the effective date of the rule.

Sec. 2. Section 3, chapter 234, Laws of 1959 as last amended by section 4, chapter 324, Laws of 1981 and RCW 34.04.030 are each amended to read as follows:

If ((~~the~~)) an agency ((~~finds~~)) for good cause concludes:

(1) That immediate adoption ((or)), amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that ((~~observance of~~)) observing the time requirements of notice and opportunity to ((~~present views on the proposed action~~)) comment upon adoption of a permanent rule would be contrary to the public interest((,)); or

(2) That either of the following necessitates adoption of a rule before all procedures otherwise required can be met:

(a) State or federal law; or

(b) Federal requirements establishing deadlines for state receipt of federal funds;

the agency may dispense with ((~~such~~)) those requirements and may adopt, amend, or repeal the rule ((~~or amendment as~~)) on an emergency ((~~rule or amendment~~)) basis. The agency((~~'s finding and~~)) shall incorporate a concise statement of the ((~~reasons for its finding shall be incorporated~~)) material facts supporting its conclusion in the order of adoption for the emergency rule ((~~or amendment as filed with the office of the code reviser under RCW 34.04.040 and with the rules review committee~~)). An emergency rule ((~~or amendment~~)) may not remain in effect for longer than ((~~ninety~~)) one hundred twenty days after filing. ((~~This section does not relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or bodies before they become effective.~~)) Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or the agency has published notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule.

NEW SECTION. Sec. 3. (1) In addition to seeking information by other methods, an agency may, before publication of a notice of a proposed rule adoption under RCW 34.04.025, solicit comments from the public on a subject of possible rule making under active consideration within the agency, by causing notice to be published in the state register of the subject matter and indicating where, when, and how persons may comment.

(2) Each agency shall designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed or prepared within the agency for proposal, maintain a docket listing the subject matter and status of all proposed rules, and respond to public inquiries about possible or proposed rules and the identity of agency staff persons working, reviewing, or commenting on them. The office and mailing address of the rules coordinator shall be published in the state register at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation. The rules coordinator may be an employee of another agency.

NEW SECTION. Sec. 4. (1) An agency shall accept written comment about the proposed rule, including supporting data, if received no later than the time and date specified in the notice, or such later time and date established at the rule-making hearing to afford interested persons the opportunity to present comments.

(2) At an oral hearing scheduled under RCW 34.04.025, oral comment about the proposed rule shall be received by the agency.

(3) The agency head, a member of the agency head, another person authorized to adopt rules, or a presiding officer designated by the agency head shall preside at the rule-making hearing. The presiding officer may be an employee of the agency. Rule-making hearings shall be open to the public. The agency shall cause a recording to be made of the hearing by stenographic, mechanical, or electronic means. Unless the person authorized to adopt the rule presides or is present at substantially all the hearings, the presiding officer shall prepare a memorandum for consideration by the person authorized to adopt the rule, summarizing the contents of the presentations made at the rule-making hearings that such person did not attend. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.17 RCW.

(4) Rule-making hearings are legislative in character and shall be reasonably conducted by the presiding officer to afford interested persons the opportunity to present comment. Rule-making hearings may be continued to a later time and place established on the record without publication of further notice under RCW 34.04.025.

NEW SECTION. Sec. 5. An agency may incorporate by reference and without publishing the incorporated matter in full, all or any part of a code, standard, rule, or regulation adopted by an agency of the United States, of this state, or of another state, by a political subdivision of this state, or by a generally recognized organization or association if incorporation of the full text in the agency rules would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in agency rules shall fully identify the incorporated matter. An agency may incorporate by reference the matter in its rules only if the agency, organization, or association originally issuing that matter makes copies readily available to the public. The incorporating agency shall have and make available for public inspection a copy of the incorporated matter. The rule must state where copies of the incorporated matter are available.

NEW SECTION. Sec. 6. (1) Each agency shall maintain a public information rule-making file for each rule that it (a) proposes by publication in the state register, or (b) adopts. The file, and materials incorporated by reference, shall be available for public inspection.

(2) The agency rule-making file shall contain the following:

(a) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based;

(b) Written petitions, requests, submissions, and comments received by the agency;

(c) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them, and any memorandums prepared by a presiding official summarizing the contents of those presentations;

(d) The description of differences between the proposed and adopted rule required by RCW 34.04.025(5); and

(e) Any other material placed in the file by the agency.

(3) An agency may incorporate by reference in the file any written matter if inclusion of the matter would be unduly cumbersome, expensive, or otherwise inexpedient. The reference shall fully identify the incorporated matter.

(4) Internal agency documents are not required to be included in the rule-making file.

NEW SECTION. Sec. 7. Beginning in 1989, and each fiscal year thereafter, each agency shall review any section of the Washington Administrative Code adopted by it under this chapter that has been in effect for at least ten years and that has not been amended pursuant to RCW 34.04.025 during the preceding ten years. As a result of the review, the agency shall either repeal or amend the section, as appropriate, or shall notify the code reviser by October 1st of the year after the review, that the section should be continued in its current form.

Sec. 8. Section 8, chapter 234, Laws of 1959 and RCW 34.04.080 are each amended to read as follows:

On petition of any interested person, an agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. The agency shall review each petition as promptly as feasible considering the competing priorities of the agency. If the agency determines not to issue a declaratory ruling it shall notify the petitioner in writing of that decision, together with the agency's reasons therefor, within ten days following that decision. A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court. Such a ruling is subject to review in the superior court of Thurston county in the manner hereinafter provided for the review of decisions in contested cases. Each agency shall prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition.

Sec. 9. Section 9, chapter 234, Laws of 1959 as last amended by section 1, chapter 31, Laws of 1980 and RCW 34.04.090 are each amended to read as follows:

(1) In any contested case all parties shall be afforded an opportunity for hearing after not less than twenty days' notice((~~; but~~)). However, the required notice period shall be not less than ten days when the notice is given following receipt by the agency of a demand or request for hearing from the affected party. No hearing shall be required until the hearing is demanded unless other statutory provisions or agency rules provide otherwise. The notice shall include:

(a) A statement of the time, place and nature of the proceeding;

(b) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(d) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon request a more definite and detailed statement shall be furnished.

(2) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.

(3) The chief administrative law judge shall adopt model procedural rules governing the conduct of contested cases. From time to time thereafter, the chief administrative law judge may modify the uniform procedural rules. Each agency may adopt, and may modify, rules governing the conduct of contested cases. An agency proposing to adopt a rule of procedure that differs from the model rules adopted by the chief administrative law judge shall include a summary of its reasons for the difference in the notice required by RCW 34.04.025.

(4) An agency may provide forms for and, by rule, may provide procedures for and impose time limits upon, submission of requests for hearing. Failure of a party to request a hearing within the time limit or limits established by the agency rule constitutes a waiver of that party's right to hearing, and the agency may proceed to resolve the case without further notice to, or hearing for the benefit of, that party. There shall be a minimum of twenty days from notice of an opportunity to request a hearing before a party is deemed to have waived his or her right to a hearing under this subsection.

(5) An agency may provide by rule for entry of summary orders in part or in whole after notice and hearing to all parties. The motion shall be granted if the pleadings, dispositions and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to the order as a matter of law.

((~~(4)~~)) (6) Unless precluded by law, informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order, or default.

((~~(5)~~)) (7) The record in a contested case shall include:

(a) All pleadings, motions, intermediate rulings;

(b) Evidence received or considered;

(d) Questions and offers of proof, objections, and ruling thereon;

(e) Proposed findings and exceptions;

(f) Any decision, opinion, or report by the officer presiding at the hearing.

((~~(6) Oral proceedings shall be transcribed for the purposes of agency decision pursuant to RCW 34.04.110, as now or hereafter amended, rehearing, or court review.~~)) (8) A copy of the record or any part thereof shall be transcribed and furnished to any party to the hearing upon request therefor and payment of the reasonable costs thereof.

((~~(7)~~)) (9) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

((~~(8) Each agency shall adopt appropriate rules of procedure for notice and hearing in contested cases.~~

~~(9)~~)) (10) Agencies, or their authorized agents, may:

(a) Administer oaths and affirmations, examine witnesses, and receive evidence, and no person shall be compelled to divulge information which he could not be compelled to divulge in a court of law,

(b) Issue subpoenas as provided in RCW 34.04.105,

(d) Take or cause depositions to be taken pursuant to rules promulgated by the agency, and no person shall be compelled to divulge information which he could not be compelled to divulge by deposition in connection with a court proceeding,

(e) Regulate the course of the hearing,

(f) Hold conferences for the settlement or simplification of the issues by consent of the parties,

(g) Dispose of procedural requests or similar matters,

(h) Issue summary orders,

(i) Make decisions or proposals for decisions pursuant to RCW 34.04.110,

(j) Take any other action authorized by agency rule consistent with this chapter.

Sec. 10. Section 13, chapter 234, Laws of 1959 as last amended by section 1, chapter 52, Laws of 1977 ex. sess. and RCW 34.04.130 are each amended to read as follows:

(1) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof only under the provisions of this ((~~1967 amendatory act~~)) chapter, and such person may not use any other procedure to obtain judicial review of a final decision, even though another procedure is provided elsewhere by a special statute or a statute of general application. Where the agency's rules provide a procedure for rehearing or reconsideration, and that procedure has been invoked, the agency decision shall not be final until the agency shall have acted thereon.

(2) Proceedings for review under this chapter shall be instituted by filing a petition in the superior court, at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located. ((~~The petition shall be served and filed~~))

(3) Within thirty days after ((~~the~~)) service of the final decision of the agency((.)), copies of the petition shall be filed with the court, personally served upon the agency, and ((~~all~~)) served upon other parties of record and the office of the attorney general. The agency shall be served by delivering a copy to the office of the director, or other chief administrative officer or chairperson of the agency, at the principal office of the agency. Service of a copy by mail upon the other parties of record and the office of the attorney general shall be deemed complete upon deposit in the United States mail.

If a ((~~timely~~)) petition is timely filed and served, any party of record not filing or joining in the first petition who wants relief from the decision must join in the petition or serve and file a cross-petition within twenty days after service of the first petition or thirty days after service of the final decision of the agency, whichever period of time is longer. The court, in its discretion, may permit other interested persons to intervene.

((~~(3)~~)) (4) The filing of the petition shall not stay enforcement of the agency decision. Where other statutes provide for stay or supersedeas of an agency decision, it may be stayed by the agency or the reviewing court only as provided therein; otherwise the agency may do so, or the reviewing court may order a stay upon such terms as it deems proper.

((~~(4)~~)) (5) Within thirty days after service of the petition, or within such further time as the court may allow, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review; but, by stipulation of all parties to the review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record when deemed desirable. The agency may charge a nonindigent petitioner with the reasonable costs of preparing the official record of the proceeding for the court. Failure by the petitioner to pay any of these costs relieves the agency from the responsibility for preparation of the record and transmittal to the court. The cost of preparing the official record of the proceeding for the court is a taxable cost, which may be awarded by the court.

((~~(5)~~)) (6) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court. The court shall, upon request, hear oral argument and receive written briefs.

((~~(6)~~)) (7) The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or

(f) arbitrary or capricious.

NEW SECTION. Sec. 11. (1) An agency may use a brief adjudicative proceeding in a contested case if:

(a) The use of a brief adjudicative proceeding does not violate the state or federal constitution or any other provision of law;

(b) The protection of the public interest does not require the agency to give an opportunity to participate to persons other than the parties;

(c) The matter is entirely within one or more categories of contested cases for which the agency has adopted rules pursuant to section 16 of this act; and

(d) The issues and interests involved do not warrant use of the formal procedures of RCW 34.04.090 through 34.04.120.

(2) The requirements and procedures in sections 11 through 15 of this act are minimum standards. The agency by rule may provide for additional requirements or more formal procedures.

(3) RCW 34.04.100(4) applies to all brief adjudicative proceedings, notwithstanding any implication to the contrary in subsection (1)(d) of this section.

NEW SECTION. Sec. 12. (1) Where not specifically prohibited by law, the following persons may be designated as the officer presiding over a brief adjudicative proceeding:

(a) The agency head;

(b) One or more members of the agency head;

(d) One or more other persons designated by the agency head.

(2) Before rendering a decision, the presiding officer shall give each party an opportunity to be informed of the agency's view of the matter and to explain the party's view of the matter.

(3) If an oral decision is rendered, the presiding officer shall give a brief statement of the reasons for the decision. Within twenty-one days, 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 brief written statement is a proposed order. If no review is taken of the proposed order as authorized by this chapter, the proposed order automatically becomes a final agency order.

NEW SECTION. Sec. 13. (1) An aggrieved party may, within ten days, or a longer period of time set by agency rule, after the presiding officer mailed the proposed order required by section 12(3) of this act, request in writing that the agency review the proposed order. Upon receipt of such a request, the agency may conduct the review, or may deny review and affirm the proposed order.

(2) The agency also may on its own motion review a proposed order resulting from a brief adjudicative proceeding, unless prohibited by any provision of law.

NEW SECTION. Sec. 14. (1) If an agency reviews an order resulting from a brief adjudicative proceeding on its own motion, it may do so without notice to the parties, but it may not take any action on review less favorable to any party than the original order without giving that party notice and an opportunity to explain that party's view of the matter.

(2) The agency shall review a proposed order in a brief adjudicative proceeding by review of the record of the brief proceeding. In its discretion, however, the agency may hold a hearing de novo under RCW 34.04.090 through 34.04.120, even if the parties do not consent to a de novo hearing.

(3) If the agency review is on the record:

(a) The reviewing officer may be any person who could have presided at the brief proceeding, but the reviewing officer must be one who is authorized to grant appropriate relief upon review;

(b) The reviewing officer shall give each party an opportunity to explain the party's view of the matter;

(c) The order on review must be in writing, must include a brief statement of the reasons for the decision, and must be issued within twenty-one days after expiration of the period of time the reviewing officer gave each party to explain the party's view of the matter. The order shall describe any further available administrative review or, if none is available, shall contain a notice that judicial review may be available.

(d) A request for administrative review is deemed to have been denied if the agency does not dispose of the matter within the time specified in (c) of this subsection.

NEW SECTION. Sec. 15. (1) The agency shall maintain the following documents and recordings as its official record:

(a) Any documents regarding the matter that were considered or prepared by the presiding officer for the brief adjudicative proceeding or by the reviewing officer for any review; and

(b) A tape recording or transcript of any hearing on the matter.

(2) The agency record is the exclusive basis for agency action in brief adjudicative proceedings and in the judicial review of brief adjudicative proceedings.

NEW SECTION. Sec. 16. (1) Each agency shall, before it holds a brief adjudicative proceeding in a category of contested cases, adopt rules:

(a) Defining the category or categories of contested cases for which brief adjudicative proceedings may be used; and

(b) Describing the procedures that apply to the brief adjudicative proceeding, including any requirements and procedures that exceed the minimums required by sections 11 through 15 of this act.

(2) Each agency may adopt any other rules necessary to implement the brief adjudicative proceedings.

Sec. 17. Section 4, chapter 67, Laws of 1981 and RCW 34.12.040 are each amended to read as follows:

Whenever a state agency conducts a hearing ((~~which~~)), other than a brief adjudicative proceeding under sections 11 through 16 of this act, that is not presided over by officials of the agency who are to render the final decision, the hearing shall be conducted by an administrative law judge assigned under this chapter. In assigning administrative law judges, the chief administrative law judge shall wherever practical (1) use personnel having expertise in the field or subject matter of the hearing, and (2) assign administrative law judges primarily to the hearings of particular agencies on a long-term basis.

Sec. 18. Section 3, chapter 57, Laws of 1971 ex. sess. as last amended by section 7, chapter 221, Laws of 1982 and RCW 28B.19.030 are each amended to read as follows:

(1) Prior to the adoption, amendment, or repeal of any rule adopted under this chapter, each institution, college, division, department, or official thereof exercising rule-making authority delegated by the governing board or the president, shall:

(a) File notice thereof with the code reviser in accordance with RCW 34.08.020(1) for publication in the state register, and with the rules review committee, and mail the notice to all persons who have made timely request of the institution or related board for advance notice of its rule-making proceedings((. Such notice shall also include (i) reference to the authority under which the rule is proposed, (ii) a statement of either the terms or substance of the proposed rule or a description of the subjects and issues involved, and (iii) the time when, the place where, and the manner in which interested persons may present their views thereon));

(b) Provide notice to the campus or standard newspaper of the institution involved and to a newspaper of general circulation in the area at least seven days prior to the date of the rule-making proceeding((~~. The notice shall state~~)), stating the time when, place where, and manner in which interested persons may present their views thereon and the general subject matter to be covered;

(c) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. An opportunity for oral hearing must be granted if requested by twenty-five persons or by the rules review committee.

(2) The notice filed with the code reviser shall include the following:

(b) The specific legal authority for the proposed rule;

(d) The names, office addresses, and telephone numbers of the institution personnel who are responsible for drafting and implementation of the rule; and

(e) Where, when, and how persons may present their views on the proposed rule; and

(f) The date on which the institution intends to adopt the rule.

(3) The institution shall make ((~~every~~)) a good faith effort to insure that the information on the proposed rule circulated pursuant to ((~~subsection (1)(a) of~~)) this section accurately reflects the rule to be presented and discussed at any oral hearing on such rule. ((Where substantial changes in the draft of the proposed rule are made after publication of notice in the register which would render it difficult for interested persons to properly comment on the rule without further notice, new notice of the institution's intended action as provided in subsection (1)(a) of this section shall be required.)) If, after giving the notice described in this section, the institution contemplates adopting a rule substantially varying from the proposed rule described in the notice, the institution may give a supplemental notice meeting the requirements of this section and reopen the proceedings for public comment.

((~~(3)~~)) (4) The institution shall consider fully all written and oral statements respecting the proposed rule including those addressing the question of whether the proposed rule is within the intent of the legislature as expressed by the statute which the rule implements((~~, and may amend the proposed rule at the oral hearing or adopt the proposed rule, if there are no substantial changes, without refiling the notice required by this section~~)).

((~~(4)~~)) (5) If the institution, without filing a supplemental notice under subsection (3) of this section, adopts a rule that varies in content from the proposed rule, the general subject matter of the adopted rule must remain the same as the proposed rule. The institution shall briefly describe any changes and the principal reasons for adopting substantive changes. The brief description shall be filed with the code reviser together with the order of adoption for publication in the state register. Within sixty days of publication of the adopted rule in the state register, any interested person may petition the institution to amend any portion of the adopted rule that is substantially different from the proposed rule. The petition shall briefly demonstrate how the adopted rule is substantially different from the proposed rule and shall contain the text of the petitioner's proposed amendments. For purposes of such a petition, an adopted rule is substantially different if the issues determined in the adopted rule differ from the issues determined in the proposed rule or the anticipated effects of the adopted rule differ from those of the proposed rule. If the petition meets the requirements of this section, the institution shall initiate rule-making proceedings on the proposed amendments within thirty days after receiving the petition.

(6) No proceeding may be held on any rule until twenty days have passed from the distribution date of the register in which notice thereof was contained. The code reviser shall make provisions for informing an institution of higher education giving notice under subsection (1) of this section of the distribution date of the register in which such notice will be published.

((~~(5)~~)) (7) No rule adopted under this chapter is valid unless adopted in substantial compliance with this section, unless it is an emergency rule designated as such and is adopted in substantial compliance with RCW 28B.19.040((~~, as now or hereafter amended~~)). In any proceeding a rule cannot be contested on the ground of noncompliance with the procedural requirements of RCW 34.08.020(1), of this section, or of RCW 28B.19.040((~~, as now or hereafter amended,~~)) after two years have elapsed from the effective date of the rule.

((~~(6)~~)) (8) When twenty days notice of intended action to adopt, amend, or repeal a rule has not been filed with the code reviser, as required by subsection ((~~(4)~~)) (6) of this section, the code reviser may not publish such rule, and such rule may not be effective for any purpose.

Sec. 19. Section 4, chapter 57, Laws of 1971 ex. sess. as last amended by section 13, chapter 324, Laws of 1981 and RCW 28B.19.040 are each amended to read as follows:

If ((~~the~~)) an institution of higher education ((~~finds~~)) for good cause concludes:

(1) That immediate adoption ((or)), amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and ((~~the observance of~~)) observing the time requirements of notice and opportunity to ((~~present views on the proposed action~~)) comment upon adoption of a permanent rule would be contrary to the public interest((,)); or

(2) That either of the following necessitates adoption of a rule before all procedures otherwise required can be met:

(a) State or federal law; or

(b) Federal requirements establishing deadlines for state receipt of federal funds;

!ixthe institution may dispense with ((~~such~~)) those requirements and may adopt, amend, or repeal the rule ((~~or amendment as~~)) on an emergency ((~~rule or amendment~~)) basis. The ((~~institution's finding and~~)) institution shall incorporate a concise statement of the ((~~reasons for its finding shall accompany~~)) material facts supporting its conclusion in the order of adoption for the emergency rule ((~~or amendment as filed with the code reviser and with the rules review committee~~)). An emergency rule or amendment may not remain in effect for longer than ((~~ninety~~)) one hundred twenty days after filing. Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or if the institution has published notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule.

Emergency rules become effective upon filing with the code reviser unless an effective date is specified in the rule.

NEW SECTION. Sec. 20. (1) In addition to seeking information by other methods, an institution may, before publication of a notice of a proposed rule adoption under RCW 28B.19.030, solicit comments from the public on a subject of possible rule making under active consideration within the institution, by causing notice to be published in the state register, the campus or standard newspaper of the institution, and a newspaper of general circulation in the area, of the subject matter and indicating where, when, and how persons may comment.

(2) Each institution shall designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed or prepared within the institution for proposal, maintain a docket listing the subject matter and status of all proposed rules, and respond to public inquiries about possible or proposed rules and the identity of institution staff persons working, reviewing, or commenting on them. The office and mailing address of the rules coordinator shall be published in the state register and the campus or standard newspaper of the institution at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation. The rules coordinator may be an employee of another institution or agency.

NEW SECTION. Sec. 21. (1) An institution shall accept written comment about the proposed rule, including supporting data, if received no later than the time and date specified in the notice, or such later time and date established by the institution for an oral hearing to afford interested persons the opportunity to present oral comments.

(2) At an oral hearing scheduled under RCW 28B.19.030, oral comment about the proposed rule shall be received by the institution.

(3) The institution head, a member of the institution head, another person authorized to adopt rules, or a presiding officer designated by the institution head shall preside at such hearing. The presiding officer may be an employee of the institution. Such hearings shall be open to the public. The institution shall cause a recording to be made of the hearing by stenographic, mechanical, or electronic means. Unless the person authorized to adopt the rule presides or is present at substantially all the hearings, the presiding officer shall prepare a memorandum for consideration by the person authorized to adopt the rule, summarizing the contents of the presentations made at the hearings that such person did not attend. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.17 RCW.

(4) Such hearings are legislative in character and shall be reasonably conducted by the presiding officer to afford interested persons the opportunity to present comment. Such hearings may be continued to a later time and place established on the record without publication of further notice under RCW 28B.19.030.

NEW SECTION. Sec. 22. An institution may incorporate by reference and without publishing the incorporated matter in full, all or any part of a code, standard, rule, or regulation adopted by an agency of the United States, of this state, or of another state, by a political subdivision of this state, or by a generally recognized organization or association if incorporation of the full text in the institution rules would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in institution rules shall fully identify the incorporated matter. An institution may incorporate by reference the matter in its rules only if the agency, organization, or association originally issuing that matter makes copies readily available to the public. The incorporating institution shall have and make available for public inspection a copy of the incorporated matter. The rule must state where copies of the incorporated matter are available.

NEW SECTION. Sec. 23. (1) Each institution shall maintain a public information rule-making file for each rule that it (a) proposes by publication in the state register, or (b) adopts. The file, and materials incorporated by reference, shall be available for public inspection.

(2) The institution rule-making file shall contain the following:

(a) Copies of all publications in the state register and campus or other newspapers with respect to the rule or the proceeding upon which the rule is based;

(b) Written petitions, requests, submissions, and comments received by the institution;

(d) The description of differences between the proposed and adopted rule required by RCW 28B.19.030(5); and

(e) Any other material placed in the file by the institution.

(3) An institution may incorporate by reference in the file any written matter if inclusion of the matter would be unduly cumbersome, expensive, or otherwise inexpedient. The reference shall fully identify the incorporated matter.

(4) Internal institution documents are not required to be included in the rule-making file.

NEW SECTION. Sec. 24. Beginning in 1989, and each fiscal year thereafter, each institution shall review any section of the Washington Administrative Code adopted by it under this chapter that has been in effect for at least ten years and that has not been amended pursuant to RCW 28B.19.030 during the preceding ten years. As a result of the review, the institution shall either repeal or amend the section, as appropriate, or shall notify the code reviser by October 1st of the year after the review, that the section should be continued in its current form.

NEW SECTION. Sec. 25. On petition of any interested person, an institution may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. The institution shall review each petition as promptly as feasible considering the competing priorities of the institution. If the institution determines not to issue a declaratory ruling it shall notify the petitioner in writing of that decision, together with the institution's reasons therefor, within ten days following that decision. A declaratory ruling, if issued after argument and stated to be binding, is binding between the institution and the petitioner on the state of facts alleged, unless it is altered or set aside by a court. Such a ruling is subject to review in the superior court of the county in which the primary office of the institution involved is located in the manner provided by this chapter for the review of decisions in contested cases. Each institution shall prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition.

Sec. 26. Section 12, chapter 57, Laws of 1971 ex. sess. as last amended by section 26, chapter 67, Laws of 1981 and RCW 28B.19.120 are each amended to read as follows:

(1) In any contested case where informal procedures authorized by RCW 28B.19.110(1) are not used and where the formal procedures are invoked because of necessity or request in accordance with RCW 28B.19.110(2), or by institutional rule in accordance with RCW 28B.19.110(3), ((~~as in section 6, chapter 46, Laws of 1973 1st ex. sess. amended,~~)) all parties shall be afforded an opportunity for hearing after not less than ((~~ten~~)) twenty days' notice. However, the required notice period shall be not less than ten days when the notice is given following receipt by the institution of a demand or request for hearing from the affected party. The notice shall include:

(a) A statement of the time, place, and nature of the proceeding;

(b) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(d) A short and plain statement of the matters asserted. If the institution or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon request a more definite and detailed statement shall be furnished.

(2) Hearings may be held or conducted by any officer or committee authorized by the president of any institution of higher education or administrative law judges appointed under chapter 34.12 RCW. The administrative law judge or committee shall determine whether the hearing shall be open to the educational community in which it takes place, or whether particular persons should be permitted in attendance or excluded from attendance.

(3) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved, and to examine and cross-examine witnesses.

(4) Each institution shall adopt appropriate rules of procedure for notice and hearing in contested cases.

(5) An institution may provide forms for and, by rule, may provide procedures for and impose time limits upon, submission of requests for hearing. Failure of a party to request a hearing within the time limit or limits established by the institution rule constitutes a waiver of that party's right to hearing, and the institution may proceed to resolve the case without further notice to, or hearing for the benefit of, that party. There shall be a minimum of twenty days from notice of an opportunity to request a hearing before a party is deemed to have waived his or her right to a hearing under this subsection.

(6) Statements, testimony, and all other evidence given at an informal proceeding authorized pursuant to RCW 28B.19.110(1) shall be confidential and shall not be subject to discovery or released to anyone, including the officer or committee conducting a formal hearing or the parties involved, or used for impeachment purposes, without permission of the person who divulged the information.

((~~(5)~~)) (7) Unless precluded by law, informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order, or default, or other established informal procedure.

((~~(6)~~)) (8) The record in a contested case shall include:

(a) All documents, motions, and intermediate rulings;

(b) Evidence received or considered;

(d) Questions and offers of proof, objections, and rulings thereon;

(e) Proposed findings and exceptions; and

(f) Any decision, opinion, or report by the officer or committee chairman presiding at the hearing.

((~~(7) Oral proceedings shall be transcribed if necessary for the purposes of rehearing, or court review.~~)) (9) A copy of the record or any part thereof shall be transcribed and furnished to any party to the hearing upon request therefor and payment of the costs thereof.

((~~(8)~~)) (10) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

((~~(9)~~)) (11) Each institution shall adopt appropriate rules of procedure for notice and hearing informal contested cases.

((~~(10)~~)) (12) Institutions, or their authorized officer, administrative law judge, or committee, may:

(a) Administer oaths and affirmations, examine witnesses, and receive evidence, and no person may be compelled to divulge information which he could not be compelled to divulge in a court of law;

(b) Issue subpoenas;

(c) Take or cause depositions to be taken pursuant to rules promulgated by the institution, and no person may be compelled to divulge information which he could not be compelled to divulge by deposition in connection with a court proceeding;

(d) Regulate the course of the hearing;

(e) Hold conferences for the settlement or simplification of the issues by consent of the parties;

(f) Dispose of procedural requests or similar matters;

(g) Make decisions or proposals for decisions; and

(h) Take any other action authorized by rule consistent with this chapter.

Sec. 27. Section 15, chapter 57, Laws of 1971 ex. sess. and RCW 28B.19.150 are each amended to read as follows:

(1) Any party, including the institution involved, aggrieved by a final decision in a contested case where formal proceeding has been utilized, whether such decision is affirmative or negative in form, is entitled to judicial review thereof only under the provisions of this chapter, and such party may not use any other procedure to obtain judicial review of a final decision, even though another procedure is provided elsewhere by a special statute or a statute of general application. Where the institution's rules provide a procedure for rehearing or reconsideration, and that procedure has been invoked, the decision shall not be final until action has been taken thereon.

(2) Proceedings for review under this chapter shall be instituted by filing a petition in the superior court in the county wherein the primary office of the institution involved is located.

(3) All petitions shall be filed, together with an appropriate cost bond securing payment of costs necessary to prepare the record, within thirty days after the service of the final decision by the institution. Copies of the petition shall be filed with the court, personally served upon the institution or related board, and ((~~all~~)) served upon other parties of record and the office of the attorney general. The institution shall be served by delivering a copy to the office of the president, or other chief administrative officer or chairperson of the institution, at the principal office of the institution. Service of a copy by mail upon the other parties of record and the office of the attorney general shall be deemed complete upon deposit in the United States mail.

((~~(3)~~)) (4) The filing of the petition shall not stay enforcement of the decision being appealed. Where other statutes provide for stay or supersedeas of a decision, it may be stayed by the institution or the reviewing court only as provided therein; otherwise the institution may do so, or the reviewing court may order a stay upon such terms as it deems proper.

((~~(4)~~)) (5) Within thirty days after service of the petition, or within such further time as the court may allow, the institution shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review; but, by stipulation of all parties to the review proceedings, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require ((~~a [or]~~)) or permit subsequent corrections or additions to the record when deemed desirable. The institution may charge a nonindigent petitioner with the reasonable costs of preparing the official record of the proceeding for the court. Failure by the petitioner to pay any of these costs relieves the institution from the responsibility for preparation of the record and transmittal to the court. The cost of preparing the official record of the proceeding for the court is a taxable cost, which may be awarded by the court.

((~~(5)~~)) (6) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the institution ((~~now [not]~~)) not shown in the record, testimony thereon may be taken in the court. The court shall, upon request, hear oral argument and receive written briefs.

((~~(6)~~)) (7) The court may affirm the decision appealed from, or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) In violation of any state or federal constitutional provision; or

(b) In excess of the statutory authority or jurisdiction of the institution; or

(d) Affected by other error of law; or

(e) Clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or

(f) Arbitrary or capricious.

NEW SECTION. Sec. 28. (1) An institution may use a brief adjudicative proceeding in a contested case if:

(a) The use of a brief adjudicative proceeding does not violate the state or federal constitution or any other provision of law;

(b) The protection of the public interest does not require the institution to give an opportunity to participate to persons other than the parties;

(c) The matter is entirely within one or more categories of contested cases for which the institution has adopted rules pursuant to section 33 of this act; and

(d) The issues and interests involved do not warrant use of the formal procedures of RCW 28B.19.110 through 28B.19.150.

(2) The requirements and procedures in sections 28 through 32 of this act are minimum standards. The institution by rule may provide for additional requirements or more formal procedures.

NEW SECTION. Sec. 29. (1) Where not specifically prohibited by law, the following persons may be designated as the officer presiding over a brief adjudicative proceeding:

(a) The institution head;

(b) One or more members of the institution head;

(d) One or more other persons designated by the institution head.

(2) Before rendering a decision, the presiding officer shall give each party an opportunity to be informed of the institution's view of the matter and to explain the party's view of the matter.

(4) The brief written statement is a proposed order. If no review is taken of the proposed order as authorized by this chapter, the proposed order automatically becomes a final institution order.

NEW SECTION. Sec. 30. (1) An aggrieved party may, within ten days, or a longer period of time set by agency rule, after the presiding officer mailed the proposed order required by section 29(3) of this act, request in writing that the institution review the proposed order. Upon receipt of such a request, the institution may conduct the review, or may deny review and affirm the proposed order.

(2) The institution also may on its own motion review a proposed order resulting from a brief adjudicative proceeding, unless prohibited by any provision of law.

NEW SECTION. Sec. 31. (1) If an institution reviews an order resulting from a brief adjudicative proceeding on its own motion, it may do so without notice to the parties, but it may not take any action on review less favorable to any party than the original order without giving that party notice and an opportunity to explain that party's view of the matter.

(2) The institution shall review a proposed order in a brief adjudicative proceeding by review of the record of the brief proceeding. In its discretion, however, the institution may hold a hearing de novo under RCW 28B.19.110 through 28B.19.150, even if the parties do not consent to a de novo hearing.

(3) If the institution review is on the record:

(a) The reviewing officer may be any person who could have presided at the brief proceeding, but the reviewing officer must be one who is authorized to grant appropriate relief upon review;

(b) The reviewing officer shall give each party an opportunity to explain the party's view of the matter;

(d) A request for administrative review is deemed to have been denied if the institution does not dispose of the matter within the time specified in (c) of this subsection.

NEW SECTION. Sec. 32. (1) The institution shall maintain the following documents and recordings as its official record:

(a) Any documents regarding the matter that were considered or prepared by the presiding officer for the brief adjudicative proceeding or by the reviewing officer for any review; and

(b) A tape recording or transcript of any hearing on the matter.

(2) The institution record is the exclusive basis for institution action in brief adjudicative proceedings and in the judicial review of brief adjudicative proceedings.

NEW SECTION. Sec. 33. (1) Each institution shall, before it holds a brief adjudicative proceeding in a category of contested cases, adopt rules:

(a) Defining the category or categories of contested cases for which brief adjudicative proceedings may be used; and

(b) Describing the procedures that apply to the brief adjudicative proceeding, including any requirements and procedures that exceed the minimums required by sections 28 through 32 of this act.

(2) Each institution may adopt any other rules necessary to implement the brief adjudicative proceedings.

NEW SECTION. Sec. 34. The following acts or parts of acts are each repealed:

(1) Section 23, chapter 186, Laws of 1980, section 8, chapter 221, Laws of 1982 and RCW 28B.19.033;

(2) Section 12, chapter 237, Laws of 1967, section 14, chapter 67, Laws of 1981 and RCW 34.04.022; and

(3) Section 1, chapter 84, Laws of 1977 ex. sess., section 10, chapter 186, Laws of 1980, section 7, chapter 6, Laws of 1982, section 2, chapter 221, Laws of 1982 and RCW 34.04.045.

NEW SECTION. Sec. 35. Sections 3 through 7 and 11 through 16 of this act are each added to chapter 34.04 RCW. Sections 20 through 25 and 28 through 33 of this act are each added to chapter 28B.19 RCW.

NEW SECTION. Sec. 36. This act shall take effect on January 1, 1989, and shall apply to all rule-making actions begun on or after that date.