WSR 98-04-082

EXPEDITED ADOPTION

DEPARTMENT OF AGRICULTURE

[Filed February 4, 1998, 11:26 a.m.]

Title of Rule: Emergency adjudicative proceedings in WAC 16-08-151.

Purpose: Pursuant to RCW 34.05.479, the department may use emergency adjudicative proceedings in situations involving an immediate danger to public health, safety or welfare. Situations when an emergency proceeding may be used are provided for in the agency practice and procedure rules as well as when a proceeding can be requested.

Statutory Authority for Adoption: Chapter 34.05 RCW.

Statute Being Implemented: RCW 34.05.479.

Summary: The proposed changes to the emergency adjudicative rule include clarification that a person whose animals are quarantined under chapter 16.36 RCW an emergency adjudicative proceeding is used. The proposed amendments also provide that a person may request a hearing within five days from service of an agency order. Presently the rule provides that a person may request a hearing from forty-eight hours of receipt of the order.

Reasons Supporting Proposal: It is the practice of the department to offer a person whose animal is quarantined an emergency adjudicative proceeding. This has been clarified in the rule. The change concerning when a person may request a hearing to five days from service of an order is consistent with the definition of service and computation of any allowed time periods under the Administrative Procedure Act, chapter 34.05 RCW and the model rules, chapter 10-08 WAC.

Name of Agency Personnel Responsible for Drafting: Deborah L. Anderson, 1111 North Washington, Natural Resources Building, Olympia, WA 98504, (360) 902-1808; Implementation and Enforcement: Dannie McQueen, 1111 North Washington, Natural Resources Building, Olympia, WA 98504, (360) 902-1809.

Name of Proponent: Washington State Department of Agriculture, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Pursuant to RCW 34.05.479, the department may use emergency adjudicative proceedings in situations involving an immediate danger to public health, safety or welfare. The proposed changes to the agency emergency adjudicative rule include clarification that when a person's animals are quarantined by the department under chapter 16.36 RCW, that person may request an emergency adjudicative proceeding. The proposed amendments also provide that a person may request a hearing within five days from service of an agency order. Presently the rule provides that a person may request a hearing from forty-eight hours of receipt of the order. The proposed changes clarify the rules and are consistent with the Administrative Procedure Act.

Proposal Changes the Following Existing Rules: An emergency adjudicative proceeding is used in situations involving an immediate danger to the public health, safety and welfare. New language is added to include when animals are quarantined under chapter 16.36 RCW; and the time frame for requesting an adjudicative proceeding has been amended to "five days from service" of an order, from "forty-eight hours from receipt."

THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Deborah L. Anderson, Administrative Regulations Analyst, Washington State Department of Agriculture, P.O. Box 42560, Olympia, WA 98504-2560, AND RECEIVED BY April 6, 1998.

February 4, 1998

William E. Brookreson

Assistant Director

AMENDATORY SECTION (Amending WSR 93-10-059, filed 4/30/93, effective 5/31/93)

WAC 16-08-151 Emergency adjudicative proceedings. (1) Pursuant to RCW 34.05.479, the department shall use emergency adjudicative proceedings for the suspension or cancellation of authority in situations involving an immediate danger to the public health, safety, or welfare requiring immediate action by the department. Such situations shall include:

(a) Failure to possess required insurance, bonding or other security.

(b) Health, safety, or welfare violations when the violation involves an immediate danger to the public health, safety, or welfare, including, but not limited to, decisions by the department to condemn horticultural plants under chapter 15.13 RCW; or to condemn infested or infected articles under chapter 15.08 RCW; or to issue stop sale, use, or removal order under chapter 15.49 RCW; or to quarantine apiaries under chapter 15.60 RCW; or to quarantine animals under chapter 16.36 RCW; or to impound infested, infected, or regulated articles pursuant to chapter 17.24 RCW; or to close food processing facilities under chapter 69.07 RCW; or under rules or regulations of the director adopted pursuant to such laws.

(2) The summary order shall include a brief statement of findings of fact, conclusions of law, and justification for the determination of an immediate danger to the public health, safety, or welfare. The order shall be effective when entered. Service of the order shall be made pursuant to WAC 10-08-110. The order shall also give the affected party ((forty-eight hours from receipt)) five days from service of the order to request an adjudicative proceeding on the order, or, in the alternative, the director may in the order automatically establish a date affording the affected party the opportunity to present any defense concerning why the summary order is incorrect.

(3) A decision made upon the emergency adjudicative proceeding shall be expressed in a written order which shall be served on all parties within five days after its entry. This written order is a final order.

(4) The summary order shall be effective pending disposition on the merits of the denial, suspension or revocation of authority.