On April 22, 2011, the Governor's Office received an appeal from Mr. David Keller relating to the Board of Pharmacy's Emergency Rule WSR 11-09-44 adding the chemicals known as substituted cathinones to Schedule I. The Governor has no jurisdiction to take action under RCW 34.05.350(3) and RCW 43.17.010 and therefore denied the appeal on April 27, 2011.
DATE: April 28, 2011
Narda Pierce
General Counsel to the Governor
April 27, 2011
David Keller
PO Box 452
Shelton, WA 98584
RE: Petition for Repeal of Emergency Rule WSR 11-09-44
Dear Mr. Keller:
Thank you for your email of April 22, 2011, in which you
request the immediate repeal of rule WSR 11-09-44 pertaining
to "Bath Salts" that was adopted on an emergency basis by the
Washington State Board of Pharmacy.
RCW 34.05.350 (1)(a) allows adoption of an emergency rule when
"immediate adoption, amendment, or repeal of a rule is
necessary for the preservation of the public health, safety,
or general welfare." RCW 34.05.350(3) provides: "Within
seven days after the rule is adopted, any person may petition
the governor requesting the immediate repeal of a rule adopted
on an emergency basis by any department listed in RCW 43.17.010." The Board of Pharmacy is not a department listed
in RCW 43.17.010; therefore, the Governor lacks the
jurisdiction to take the direct action requested in your
letter.
Notwithstanding this jurisdictional issue, our review
indicates the action taken by the Board of Pharmacy meets the
requirements for adoption of a rule on an emergency basis.
The Board had evidence that the substances are being used as
substitute stimulants in place of cocaine and methamphetamine,
and that these substances affect behavior, judgment and health
and can cause serious harm when used. There have been reports
of serious injuries and suicides linked to the use of these
substances, and the Washington Poison Center has seen a
three-fold increase just this year over the total number of
"bath salt" ingestions in 2010. The Board found the
scheduling of the substances on an emergency basis was
necessary to avoid an imminent hazard to the public safety.
The Board had good cause to find that immediate adoption,
amendment, or repeal of a rule is necessary for the
preservation of the public health, safety, or general welfare,
and that observing the time requirements of notice and
opportunity to comment upon adoption of a permanent rule would
be contrary to the public interest
Sincerely,
Narda Pierce
General Counsel