Effective Date of Rule: Thirty-one days after filing.

     Purpose: To amend (1) WAC 390-28-020 Definition -- Applicant, to remove reference to the out-of-date subsection; (2) WAC 390-28-070 Hearing to modify reporting -- By affidavit or sworn statement, to correct a grammatical error; and (3) WAC 390-28-080 Hearing to modify reporting -- Evidence, record, adverse decisions, to comply with a provision of the Administrative Procedure Act, RCW 34.05.449(5), and identify those rare circumstances that would give rise to the commission deciding to hear all or a portion of the details related to a reporting modification request in closed session.

     Citation of Existing Rules Affected by this Order: Amending 3 WAC 390-28-020, 390-28-070, and 390-28-080.

     Statutory Authority for Adoption: RCW 42.17.370.

      Adopted under notice filed as WSR 07-12-096 on June 6, 2007.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 3, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 3, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0.

     Date Adopted: June 28, 2007.

Vicki Rippie

Executive Director

OTS-9659.2

AMENDATORY SECTION(Amending WSR 91-22-083, filed 11/5/91, effective 12/6/91)

WAC 390-28-080   Hearing to modify reporting -- Evidence, record, adverse decisions.   (1) All evidence presented at hearings ((of the commission)) held pursuant to chapter 390-28 WAC and RCW 42.17.370(10) shall be considered to be a public record((: Provided, That)). There is a presumption that all hearings and evidence presented in hearing records are open to the public. Requests for closure of hearings or portions of hearings or hearing records generally will be denied. However, pursuant to RCW 34.05.449(5) and 42.17.370(10), the commission may close the hearing ((and hold an executive session)) or a portion of the hearing or hearing record. The commission may close a hearing or portion of a hearing or hearing record for a limited purpose to protect compelling interests and where closure is specifically justified if it finds that it is necessary to allow the applicant to:

     (a) Provide sufficient evidence to assure that proper findings are made regarding the name of an entity the disclosure of which would likely adversely affect the competitive position of the applicant as provided in RCW 42.17.370(10); or

     (b) Provide other information or relevant legal authorities for which it finds a compelling interest has otherwise been shown by the applicant to close the hearing.

     (2)(a) Before concluding that closure of a hearing or portion of a hearing or hearing record is warranted, the commission must find by clear and convincing evidence that:

     (i) The applicant has satisfied a basis for seeking closure under subsection (1)(a) or (b) of this section;

     (ii) An open hearing or record to report the information would work a manifestly unreasonable hardship on the applicant;

     (iii) Anyone present when the closure request is made has been given an opportunity to object to the closure;

     (iv) The proposed method for closing the hearing or hearing record is the least restrictive means available for protecting the threatened interests, after considering alternatives;

     (v) The commission has had the opportunity to weigh the competing interests of the applicant seeking closure and the public's interests;

     (vi) Closing the hearing or portion of the hearing or hearing record will not frustrate the purposes of chapter 42.17 RCW; and

     (vii) The proposed protective order is not broader in its application or duration than necessary to serve its purpose.

     (b) All evidence presented at any portion of a ((hearing held in executive)) closed session identifying the matters for which the applicant requests modification under these rules shall be considered ((and held)) confidential by the commission pursuant to a protective order which shall be entered by the commission unless otherwise ordered by a court of competent jurisdiction. In the event that an administrative law judge determines that testimony in private may be necessary, the judge shall immediately adjourn the hearing and refer the matter to the commission.

     (((2))) (3) Any decision or order adverse to an applicant rendered by the commission or the administrative law judge shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.

[Statutory Authority: RCW 42.17.370. 91-22-083, § 390-28-080, filed 11/5/91, effective 12/6/91. Statutory Authority: RCW 42.17.370(1). 85-22-029 (Order 85-04), § 390-28-080, filed 10/31/85; Order 62, § 390-28-080, filed 8/26/75; Order 24, § 390-28-080, filed 2/21/74. Formerly WAC 390-28-070.]

OTS-9658.1

AMENDATORY SECTION(Amending Order 85-04, filed 10/31/85)

WAC 390-28-070   Hearing to modify reporting -- By affidavit or sworn statement.   (1) An applicant may choose to waive a personal appearance at a hearing conducted pursuant to chapter 390-28 WAC. In the event that an applicant chooses to waive such appearance, that person shall submit a written, sworn statement setting out in detail the rationale for requesting modification or suspension.

     (2) The commission, or the administrative law judge, shall proceed to decide the application in the same manner as if an appearance were made((: Provided, That)). However, in the event the commission or the administrative law judge is not able to reach a conclusion on the request because of an insufficiency of the evidence, ((it may adjourn)) the hearing may be adjourned for the purposes of gathering further evidence, or ((it may deny)) the application may be denied.

[Statutory Authority: RCW 42.17.370(1). 85-22-029 (Order 85-04), § 390-28-070, filed 10/31/85; Order 64, § 390-28-070, filed 11/25/75; Order 62, § 390-28-070, filed 8/26/75; Order 24, § 390-28-070, filed 2/21/74. Formerly WAC 390-28-080.]

OTS-9657.1

AMENDATORY SECTION(Amending WSR 91-22-083, filed 11/5/91, effective 12/6/91)

WAC 390-28-020   Definition -- Applicant.   The term applicant for the purposes of chapter 390-28 WAC shall mean any person as defined in RCW 42.17.020(((21))) that seeks a modification pursuant to RCW 42.17.370(10) and these rules.

[Statutory Authority: RCW 42.17.370. 91-22-083, § 390-28-020, filed 11/5/91, effective 12/6/91. Statutory Authority: RCW 42.17.370(1). 85-22-029 (Order 85-04), § 390-28-020, filed 10/31/85; Order 62, § 390-28-020, filed 8/26/75; Order 24, § 390-28-020, filed 2/21/74.]

© Washington State Code Reviser's Office