WSR 02-14-058

PROPOSED RULES

DEPARTMENT OF LICENSING


(Cemetery Board)

[ Filed June 27, 2002, 10:42 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-03-088.

Title of Rule: To amend existing rules, adopt uniform rules concerning cremation, and to adopt new rules concerning board policy.

Purpose: To amend existing rules for clarity; bring terminology in line with industry standards; to adopt uniform rules concerning cremation of human remains for consistency between the cemetery and funeral boards; and to bring existing board policy into rule.

Statutory Authority for Adoption: RCW 68.05.100.

Statute Being Implemented: Title 68 RCW.

Summary: The rules being established, amended, or repealed will update the rules governing the cemetery industry in accordance with the governor's directive requiring periodic rule review. See proposed and amended rules shown below.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Dennis McPhee, Department of Licensing, 405 Black Lake Boulevard, Olympia, WA, (360) 664-1555.

Name of Proponent: Cemetery Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: To adopt model rules of procedure; to amend rules regarding prearranged merchandise and services; to provide for annual inspections of crematories; to require endowment care trust fund contribution for additional rights of interment, entombment or inurnment; and to adopt uniform rules of procedure for cremation.

Chapters 98-08 and 98-40 WAC will be repealed.

Proposal Changes the Following Existing Rules: See copies of rule changes and new rules shown below.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The Cemetery Board has determined there will be no impact on small business as a result of these rules.

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Holiday Inn (Ballroom "A"), 1 South Grady Way, Renton, WA 98055, on September 5, 2002, at 11:30 a.m.

Assistance for Persons with Disabilities: Contact Dennis McPhee by telephone, TDD (360) 586-2788, or (360) 664-1555.

Submit Written Comments to: Dennis McPhee, Program Manager, Funeral and Cemetery Unit, P.O. Box 9012, Olympia, WA 98507-9012, fax (360) 586-4414, by September 4, 2002.

Date of Intended Adoption: September 5, 2002.

June 27, 2002

Jon Donnellan

Administrator

OTS-5455.1


NEW SECTION
WAC 98-08-001   Model rules of procedure.   Except as they may be inconsistent with the rules in this chapter, the cemetery board adopts the model rules of procedure as set forth in chapter 10-08 WAC.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 98-08-010 Appearance and practice before agency -- Who may appear.
WAC 98-08-030 Appearance and practice before agency -- Solicitation of business unethical.
WAC 98-08-040 Appearance and practice before agency -- Standards of ethical conduct.
WAC 98-08-050 Appearance and practice before agency -- Appearance by former employee of agency or former member of attorney general's staff.
WAC 98-08-060 Appearance and practice before agency -- Former employee as expert witness.
WAC 98-08-070 Computation of time.
WAC 98-08-080 Notice and opportunity for hearing in contested cases.
WAC 98-08-090 Service of process -- By whom served.
WAC 98-08-100 Service of process -- Upon whom served.
WAC 98-08-110 Service of process -- Service upon parties.
WAC 98-08-120 Service of process -- Method of service.
WAC 98-08-130 When service complete.
WAC 98-08-140 When service complete -- Filing with agency.
WAC 98-08-150 Subpoenas -- Where provided by law -- Form.
WAC 98-08-170 Subpoenas -- Service.
WAC 98-08-190 Subpoenas -- Proof of service.
WAC 98-08-200 Subpoenas -- Quashing.
WAC 98-08-210 Subpoenas -- Enforcement.
WAC 98-08-220 Subpoenas -- Geographical scope.
WAC 98-08-370 Official notice -- Matters of law.
WAC 98-08-380 Official notice -- Material facts.
WAC 98-08-390 Presumptions.
WAC 98-08-400 Stipulations and admissions of record.
WAC 98-08-410 Form and content of decisions in contested cases.
WAC 98-08-420 Definition of issues before hearing.
WAC 98-08-430 Prehearing conference rule -- Authorized.
WAC 98-08-440 Prehearing conference rule -- Record of conference action.
WAC 98-08-450 Submission of documentary evidence in advance.
WAC 98-08-460 Excerpts from documentary evidence.
WAC 98-08-470 Expert or opinion testimony and testimony based on economic and statistical data -- Number and qualifications of witnesses.
WAC 98-08-480 Expert or opinion testimony and testimony based on economic and statistical data -- Written sworn statements.
WAC 98-08-490 Expert or opinion testimony and testimony based on economic and statistical data -- Supporting data.
WAC 98-08-500 Expert or opinion testimony and testimony based on economic and statistical data -- Effect of noncompliance with WAC 98-08-470 or 98-08-480.
WAC 98-08-510 Continuances.
WAC 98-08-520 Rules of evidence -- Admissibility criteria.
WAC 98-08-530 Rules of evidence -- Tentative admission -- Exclusion -- Discontinuance -- Objections.
WAC 98-08-540 Petitions for rule making, amendment or repeal.
WAC 98-08-550 Petitions for rule making, amendment or repeal -- Requisites.
WAC 98-08-560 Petitions for rule making, amendment or repeal -- Agency must consider.
WAC 98-08-570 Petitions for rule making, amendment or repeal -- Notice of disposition.
WAC 98-08-580 Declaratory rulings.
WAC 98-08-590 Forms.

OTS-5456.1


AMENDATORY SECTION(Amending Order CB 101, filed 10/17/75)

WAC 98-14-050   Determination of delivery.   Prearrangement merchandise ((shall)) and services will be delivered within the meaning of RCW 68.46.050(1) when:

(1) Actual delivery of the merchandise is made to the contract beneficiary; or

(2) Delivery of the merchandise is made to the cemetery authority for the contract beneficiary and the merchandise is permanently affixed to real property or a mausoleum; or

(3) Delivery of the merchandise to the cemetery authority for the contract beneficiary with the storage provided by the cemetery authority, provided that fifty percent of the service charge of the installation and other services to be performed upon the merchandise is maintained in the prearrangement trust fund, and an insurance provision is maintained when stored in a building: Provided, That no insurance is necessary when merchandise is affixed to the grave; or

(4) The cemetery authority has paid its supplier for prearrangement merchandise, and the supplier has caused ((such)) the merchandise to be manufactured and stored, and has caused title to ((such)) the merchandise to be transferred to the contract beneficiary, and has agreed to ship ((such)) the merchandise upon his request or the request of the cemetery authority: Provided, That fifty percent of the service charge of delivery, installation and other costs are maintained in the prearrangement trust fund by the cemetery authority. ((Such)) The delivery and installation cost must be itemized upon the prearrangement contract, in accordance with WAC 98-14-020. This subsection will apply to the manufacture and storage of merchandise, such as, but not limited to, vaults, liners, urns and marker bases, that are not permanently labeled or engraved with the beneficiaries' name.

[Order CB 101, 98-14-050, filed 10/17/75.]


AMENDATORY SECTION(Amending Order CB 101, filed 10/17/75)

WAC 98-14-060   Suppliers.   No person, firm or corporation ((shall)) will be deemed a supplier for purposes of chapter 98-14 WAC, unless it:

(1) Permanently and unalterably identifies all ((such)) merchandise with the name of the contract beneficiary; and

(2) Submits ((to)), upon request of the board ((not less than annually a certified report by a certified public accountant)), a report of all merchandise which has been purchased through a Washington cemetery authority and ((which, at the date of such report, was then)) has been placed in storage; and

(3) Permits the board or its designee, at any time, to examine stored merchandise which was purchased through a Washington cemetery authority and to examine any document pertaining thereto; and

(4) Submits evidence of a bond insuring the existing and good title of any merchandise due any contract beneficiary purchased through a Washington cemetery authority; and

(5) Submits evidence insuring that all merchandise purchased through a Washington cemetery authority and being stored by ((said)) the supplier is insured for casualty, theft or other loss ((normally assumed by a bailee for hire)).

Subsection (1) of this section will not apply to merchandise that is manufactured and stored without being permanently labeled or engraved with the beneficiaries' name. Suppliers must maintain an inventory equal to the amount sold.

[Order CB 101, 98-14-060, filed 10/17/75.]


AMENDATORY SECTION(Amending Order CB 101, filed 10/17/75)

WAC 98-14-070   Securities for loans.   In any instance where a prearrangement contract containing undelivered merchandise or services is sold, pledged or otherwise encumbered as security for a loan by cemetery authority, the cemetery authority shall pay into the prearrangement trust fund fifty percent of the total sale price of the prearrangement contract within twenty days of receipt of payment of the proceeds from ((such)) the sale or loan.

[Order CB 101, 98-14-070, filed 10/17/75.]


AMENDATORY SECTION(Amending Order 106, filed 1/5/83)

WAC 98-14-080   Development plan for unconstructed, undeveloped property.   Any cemetery authority selling undeveloped graves, unconstructed crypts or niches in accordance with chapter 68.46 RCW ((shall)) must make available to the purchaser at the time the prearrangement contract is signed, a statement of estimated time schedule of the development or construction. Such schedules, or modifications of them, will also be submitted to the cemetery board annually with the financial reports required by RCW 68.46.090 and made available to holders of prearrangement contracts affected by ((such)) the development or construction in the offices of the cemetery authority.

A cemetery authority must maintain an equivalent inventory of constructed crypts, niches and developed graves, equal to ten percent of the unconstructed crypts, niches and undeveloped graves sold through prearrangement contracts. The equivalent inventory must be located within the cemetery or an adjacent cemetery under common ownership.

Trust fund deposits required for the prearrangement contract sales of undeveloped property, will be in accordance with RCW 68.46.030.

[Statutory Authority: RCW 68.05.100. 83-02-063 (Order 106), 98-14-080, filed 1/5/83.]

OTS-5457.1

Chapter 98-15 WAC

CREMATORIES


NEW SECTION
WAC 98-15-010   Crematory inspections.   (1) Crematories registered under the provisions of RCW 68.05.175 will be inspected at least once each year by the duly appointed department inspector.

(2) Inspections will cover compliance with applicable statutes and rules.

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NEW SECTION
WAC 98-15-020   Endowment care trust fund contribution for additional rights of interment, entombment or inurnment.   A cemetery authority not exempt from this chapter must make a deposit to the endowment care fund, for additional rights of interment, entombment or inurnment, as required in RCW 68.40.010.

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OTS-5458.2


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 98-40-010 Purpose for procedures.
WAC 98-40-020 Terminology.
WAC 98-40-030 Removal and identification of human remains.
WAC 98-40-040 Holding human remains for cremation.
WAC 98-40-050 Cremation of human remains.
WAC 98-40-060 Processing of cremated remains.
WAC 98-40-070 Packaging and storage of cremated remains.
WAC 98-40-080 Disposition of cremated remains.

OTS-5459.3

Chapter 98-80 WAC

RULES OF PROCEDURE FOR CREMATION


NEW SECTION
WAC 98-80-010   Definitions.   (1) "Authorizing agent" means the person(s) legally entitled to control the disposition of the human remains.

(2) "Crematory" the building or area of a building that houses a cremation chamber, to be used for the cremation of human remains.

(3) "Crematory authority or endorsement" the legal entity and their authorized representatives, licensed to perform cremations.

(4) "Cremation chamber" means the enclosed space in a crematory in which the cremation process takes place.

(5) "Cremation" means the reduction of human remains to bone fragments, in a crematory, by means of incineration.

(6) "Cremated human remains" means the end products of cremation.

(7) "Pulverization" is the reduction of identifiable bone fragments to unidentifiable dimensions by manual or mechanical means following cremation.

(8) "Processing" is the removal of foreign objects from cremated human remains and may include pulverization.

(9) "Cremation container" means the container in which the human remains must be enclosed before being placed in the cremation chamber for cremation. A cremation container must:

Be composed of a combustible material. If the remains are delivered to a crematory in a noncombustible container, the authorizing agent must be informed of the disposition of the container, if the container is not actually used in the cremation process. Any transfer of human remains to combustible containers at the crematory must be in accordance with chapter 18.39 RCW, Title 308 WAC, and applicable public health laws.

Be rigid enough for placement into the cremation chamber.

Assure protection to the health and safety of the crematory operators and others.

Provide a proper covering for the human remains.

Be resistant to leakage or spillage of body fluids.

(10) "Sealable container" means any container in which cremated human remains can be placed and closed to prevent leakage or spillage of cremated human remains.

(11) "Holding facility" means an area designated for the care, storage and holding of human remains prior to disposition. A holding facility must:

Comply with any applicable public health laws.

Preserve the dignity of the human remains.

Recognize the personal integrity, health and safety of employees and others.

Be secure from access by anyone other than authorized personnel.

(12) "Human remains" means the body of a deceased person.

(13) "Cadaver" means the body of a deceased person, or any part thereof, which has been donated to science for medical research purposes.

(14) "Body parts" means limbs and other portions of human anatomy that have been removed from a person or human remains for medical purposes during treatment, surgery, biopsy, autopsy or medical research.

(15) "Commingling" means the mixing of cremated human remains of more than one deceased person.

(16) "Residue" means the cremation products that may unavoidably remain in the cremation chamber after manual sweeping techniques are performed.

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NEW SECTION
WAC 98-80-020   Identification of human remains.   A crematory must not take custody of unidentified human remains. Before accepting human remains, the crematory must verify that identification is attached to the cremation container. Upon accepting human remains for cremation, the crematory must make a permanent record of the following:

Name of deceased.

Date of death.

Place of death.

Name and relationship of authorizing agent.

Name of firm engaging crematory services.

Description of the cremation container to be consumed with the human remains.

An identification number assigned each human remains and inscribed on a metal disc or metal tag. The metal identification disc or tag must identify the crematory and accompany the human remains through each phase of the cremation, processing and packaging. The disc or tag identification number must be recorded on all paperwork regarding a human remains and in the crematory log.

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NEW SECTION
WAC 98-80-030   Holding human remains for cremation.   (1) A crematory must not accept and hold human remains for cremation unless the human remains are contained in a cremation container.

(2) A crematory must not accept human remains in a cremation container having evidence of body fluid leakage.

(3) Human remains that are not embalmed must be held only within a refrigerated facility of adequate capacity, with a maximum temperature of 48 degrees Fahrenheit, or in compliance with applicable public health regulations.

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NEW SECTION
WAC 98-80-040   Cremation of human remains.   (1) Cremation must not take place until the burial transit permit and authorization for cremation are obtained.

(2) Immediately prior to being placed within the cremation chamber, the identification of the human remains must be verified by the crematory operator. Appropriate identification of the human remains will be placed near the cremation chamber in such a way as to identify the human remains being cremated. The metal identification disc or metal tag must be placed in the cremation chamber with the human remains.

(3) Simultaneous cremation of more than one human remains within the same cremation chamber is not permitted, unless written authorization is obtained from the authorizing agent of each human remains to be cremated simultaneously. Such written authorization will exempt the crematory from all liability for commingling the products of the cremation process.

(4) Simultaneous cremation of more than one human remains within the same cremation chamber may be performed without the authorizations required in subsection (3) of this section, if:

Equipment, techniques, and other devices are employed that keep the human remains separate and distinct, before and during the cremation process.

Recoverable cremated remains are kept separate and distinct after the cremation process.

(5) Crematories licensed by the state cemetery board or the board of funeral directors and embalmers, will only be used for the cremation of human remains, cadavers, or human body parts.

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NEW SECTION
WAC 98-80-050   Processing of cremated human remains.   (1) Upon completion of the cremation, the products of the cremation process must be removed from the cremation chamber, with the exception of residue.

(2) The cremation products must be placed within an individual container or tray in such a way that will insure against commingling with other cremated human remains.

(3) Identification must be attached to the container or tray.

(4) All cremated human remains must undergo processing to comply with applicable legal requirements.

(5) Processing or pulverization of cremated human remains may not be required if cremated human remains are to be placed in a cemetery, mausoleum, columbarium, or building devoted exclusively to religious purposes, or where religious or cultural beliefs oppose the practice.

(6) All body prostheses, bridgework, or similar items removed from the cremated human remains during processing will be disposed of by the crematory, as directed by the authorizing agent.

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NEW SECTION
WAC 98-80-060   Packaging and storage of cremated human remains.   (1) The cremated human remains must be placed in a sealable container, or in such container as may have been ordered or supplied by the authorizing agent.

(2) The packaged cremated human remains will be identified. The metal identification disc or metal tag must stay with the cremated human remains.

(3) If the cremated human remains do not completely fill the container, the remaining space may be filled with suitable packing material. The container must then be securely closed.

(4) If the entire cremated human remains will not fit within the designated container, the remainder of the cremated human remains must be returned to the authorizing agent in a second container, clearly identified as being part of, and together with, the designated container. Upon written consent of the authorizing agent, excess cremated human remains may be disposed of in any legal manner.

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NEW SECTION
WAC 98-80-070   Disposition of cremated human remains.   (1) A crematory must keep a permanent record of all cremations performed and the disposition or release of the cremated human remains. The record must include the following information:

Date of death.

Date burial transit permit was issued.

Date of delivery of human remains to the crematory.

Date of cremation.

Name of crematory operator performing the cremation.

Name of person performing packaging, and date of packaging.

Date of release or date of disposition of the cremated human remains.

(2) When cremated human remains have been in the possession of a crematory, funeral establishment or cemetery for a period of two years or more, the entity holding the cremated human remains may arrange for disposition in any legal manner, provided the entity:

Attempts to contact the authorizing agent for disposition instructions by registered mail.

Informs the authorizing agent(s) of the procedures that will be followed if disposition instructions are not received.

Informs the authorizing agent(s) that disposition will take place if disposition instructions are not received within sixty days of initiation of the contact process.

Informs the authorizing agent(s) that recovery of the cremated human remains, after the disposition, may or may not be possible.

Maintains a permanent record of the location of the disposition.

(3) No entity making disposition of cremated human remains under subsection (2) of this section will be liable for the disposition or nonrecoverability of cremated human remains.

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Washington State Code Reviser's Office