EMPLOYMENT SECURITY DEPARTMENT

[Filed February 12, 2020, 8:27 a.m.]

Supplemental Notice to WSR 19-24-006.

Preproposal statement of inquiry was filed as WSR 19-20-053.

Title of Rule and Other Identifying Information: WAC 192-04-180 and a new section, Decisions—Disposition other than by hearing on the merits—Petition for review, and Orders of default—Motion to vacate—Petition for review.

Hearing Location(s): On March 25, 2020, at 9:00 a.m., at the John L. O'Brien Building, 504 15th Avenue, JLOB 102, Olympia, WA 98501.

Date of Intended Adoption: March 27, 2020.

Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by March 24, 2020.

Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@esd.wa.gov, by March 17, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To permit 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 (OAH).

Reasons Supporting Proposal: Giving appellants who received an order of default the option to file a motion to vacate the order of default directly with OAH will allow for more timely review of orders of default, which, if the order of default is vacated, will also lead to more timely resolution of the merits of the underlying appeal.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department (ESD). RCW 50.32.060 provides authority for rule making for hearings and appeals. RCW 34.05.440 provides rule-making authority for establishing time limits for filing motions to vacate default orders.

Statute Being Implemented: RCW 34.05.440, 50.32.070, 50.32.080.

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

Name of Proponent: ESD, OAH, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation: Brendon Tukey, Spokane Valley, 509-742-5729; and Enforcement: Don Westfall, Lacey, 360-507-9709.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are "procedural rules" and not "significant legislative rules," as those terms are defined in RCW 34.05.328(5).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.

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.