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Administrative Procedure Act – Washington

The Washington Administrative Procedure Act (“Act”) is found in Title 34, Chapter 34.5 of the Annotated Revised Code of Washington.  The main purposes of the Act are to make clear the existing administrative procedural law, to attain greater reliability with other states and the federal government in administrative procedure, and to provide greater public and legislative access to administrative decision making.  The Act will not limit the constitutional rights of a person or will not repeal additional requirements imposed by a statute or identified by law.  The Act permits a person to waive his/her rights under the Act.

According to Rev. Code Wash. (ARCW) § 34.05.210, all current, permanently effective rules of each agency must be published in the Washington Administrative Code (“Code”) by the code reviser and must be supplemented or revised at least annually.

Rev. Code Wash. (ARCW) § 34.05.220 provides that every agency must adopt rules dealing with the formal and informal procedures authorized by the Act.  The agency must also take up rules of practice before the agency, along with the related forms and instructions.  If an agency fails to comply with this section, then the model rules adopted by the chief administrative law judge (“ALJ”) under RCW 34.05.250 governs procedures before the agency.  The model rules adopted by ALJ include dealing with all general functions and duties performed in common by the various agencies.  Every agency must adopt the model rules which are reasonable under the circumstances.  Any agency adopting a rule of procedure that differs from the model rules must state the reasons for inconsistency.  The agency must also adopt as a rule a description of its organization.  The agency must also state the mode of its operations; methods for obtaining information by the public and how public can make submissions and requests.  Further every agency must keep on file for public inspection all final orders, decisions, and opinions in adjudicative proceedings, interpretive statements, policy statements, and any digest or index to those orders, decisions, opinions, or statements prepared by or for the agency.

According to Rev. Code Wash. (ARCW) § 34.05.312, each agency must appoint a rules coordinator to maintain the records of every actions, respond to public inquiries about proposed rules and the identity of agency personnel working, reviewing, or commenting on the proposed action.  The rules coordinator can also be an employee of another agency.

Rev. Code Wash. (ARCW) § 34.05.313 provides that the agency must maintain a current rule-making docket.  It must also contain pending rule-making proceedings.  Each rule-making proceeding docket must contain the following:

  1. The contact details of agency personnel responsible for the proposed rule;
  2. The subject matter of the proposed rule;
  3. A reference to all notices relating to the proceeding that have been published in the state register;
  4. The place of inspection of written submissions related to the proposed rule;
  5. The time of accepting written submissions;
  6. The current timetable established for the agency proceeding.

The agency must also maintain an official rule-making file for each rule that is proposed or adopted by publishing in the state register.

According to Rev. Code Wash. (ARCW) § 34.05.320, an agency must publish a notice of hearing in the state register at least 20 days before the rule-making hearing.  If the agency does not comply with this notice provision the code reviser will not publish the concerned rule and that rule will not be effective for any purpose.  The notice must contain:

  1. A description of the rule’s purpose;
  2. Citations of the statutory authority for adopting the rule and the specific statute under which the rule will be implemented;
  3. A short explanation of the rule and its anticipated effects;
  4. A statement of the reasons supporting the proposed action;
  5. The contact details of agency personnel who are responsible for the drafting, implementation, and enforcement of the rule;
  6. The name of the party proposing the rule;
  7. Any agency comments or recommendations pertaining to the rule;
  8. Citation of law or court decision if the proposed rule is necessary as the result of federal law or federal or state court action;
  9. When, where, and how persons can present their views on the proposed rule;
  10. The date of intended adoption;
  11. A statement explaining the impact of proposed rule on small business and economy;

Rev. Code Wash. (ARCW) § 34.05.330 provides that any person can petition an agency requesting the adoption, amendment or repeal of a rule in the format prescribed by the office of financial management.  Within 60 days after the receipt of the petition, the agency can either initiate the rule-making proceedings or can deny the petition stating the reasons in writing.

An agency can withdraw a proposed rule any time before its adoption and rules not adopted and filed with the code reviser within one hundred eighty days after publication in the register will also be considered withdrawn.  A withdrawn rule cannot be adopted unless it is again proposed complying with the procedures under the Act.  Further, an agency cannot adopt a rule that vary significantly from the proposed rule published in the notice of proposed rule adoption or a supplemental notice in the proceeding.

Rev. Code Wash. (ARCW) § 34.05.350 provides that an agency can resort to emergency rule-making proceedings if immediate adoption, amendment or repeal of a rule is mandatory for the preservation of public health, safety and welfare. The agency can also file notice for an expedited rule-making if the proposed rule only relate to internal governmental operations and cannot be violated by an individual.

According to Rev. Code Wash. (ARCW) § 34.05.413, an agency can commence adjudicative proceeding at any time related to matter within its jurisdiction.  An agency can also initiate adjudicative proceeding if required by law or constitutional right and by timely application by a person.  After receipt of an application for adjudicative proceeding the agency can either accept or deny the application in full or in part, commence an adjudicative proceeding or dispose of the application without conduction adjudication.

Rev. Code Wash. (ARCW) § 34.05.425 provides that an agency head or one or more members of the agency head can serve as the presiding officer of an administrative hearing.  If there is statutory authority any person other than the agency head or an ALJ designated by the agency head to make the final decision and enter the final order can also serve as presiding officer.  If the presiding officer is the agency head or one or more members of the agency head, then s/he can enter a final order in an administrative hearing if further review is not available within the agency.  If final review is available within the agency then s/he can enter only an initial order.  If the presiding officer is one or more of the ALJs then also s/he can enter only an initial order.  If the presiding officer is a person chosen by the agency to make the final decision and enter the final order, then s/he can enter a final order.

According to Rev. Code Wash. (ARCW) § 34.05.434, in an administrative hearing the agency must give at least seven days’ written notice to all the parties who have filed written petitions to intervene in the matter.  Further, (ARCW) § 34.05.467 provides that any party can submit to the reviewing officer in an administrative proceeding, a petition for stay of effectiveness of a final order within ten days of its service. Disposition of the petition for stay can be made either by presiding officer, reviewing officer of the agency head.

According to Rev. Code Wash. (ARCW) § 34.05.476, every agency must maintain official record of each adjudicative proceeding.  The agency record must include in record:

  1. Notices of all proceedings;
  2. Any pre-hearing order;
  3. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings;
  4. Evidence received or considered;
  5. A statement of officially noticed matters;
  6. Any final order, initial order, or order on reconsideration;
  7. Details of evidence, objections and rulings thereon;
  8. Staff memoranda or data submitted to the presiding officer;
  9. Anticipated findings, requested orders, and exceptions;
  10. Matters placed on the record after an ex parte communication.
  11. The recording arranged for the presiding officer at the hearing; and
  12. Any transcript of all or part of the hearing considered before final disposition of the proceeding.

Rev. Code Wash. (ARCW) § 34.05.479 provides that an agency can use emergency adjudicative proceeding in situations concerning imminent threat to public health, safety and welfare where immediate agency action is required.  The agency must take only such action which is necessary to avoid threat public health, safety and welfare.  The agency can use brief adjudicatory proceedings if the use of such proceedings in the situation does not violate any provisions of law and the protection of the public interest does not require the agency to give notice and participation opportunity to persons other than the parties.

According to Rev. Code Wash. (ARCW) § 34.05.514, any person exhausted with all administrative remedies within the agencies, can file a petition for review of an administrative decision in the superior court, of Thurston county or the county of the petitioner’s residence or principal place of business, or in any county where the property owned by the petitioner and affected by the contested decision is located.  Further Rev. Code Wash. (ARCW) § 34.05.518 provides that a final administrative decision can be directly reviewed by the court of appeals either upon certification by the superior court or if the final decision is from an environmental board.  A party aggrieved of the final judgment of the superior court can seek appellate review in the Supreme Court or court of appeals.

Rev. Code Wash. (ARCW) § 34.05.574 provides that in a judicial review, the court can either:

  1. affirm the agency action;
  2. order an agency to take action required by law;
  3. order an agency to exercise prudence required by law;
  4. set aside agency action;
  5. stay the agency action;
  6. remand the matter for further proceedings; or
  7. enter a declaratory judgment order.

According to Rev. Code Wash. (ARCW) § 34.05.578 an agency can also seek enforcement of its rule or order by filing a civil enforcement petition in the superior court.  In the civil enforcement petition by an agency the court can either grant declaratory relief, temporary or permanent injunctive relief, any other civil remedy provided by law, or any combination of the abovementioned.  Any person who has standing to obtain judicial review of an agency’s failure to enforce an order directed to another person can file a petition for civil enforcement of that order.  The higher courts can review the civil enforcement petitions by agency or any other person as in other civil cases.

The Act creates joint administrative law review committee to review all proposed rules and to look if it complies with the legislative intent.

Rev. Code Wash. (ARCW) § 34.05.903 provides that if the application of any provision of the Act to any person or circumstance is invalid, it does not mean that other provisions are also invalid.  Other provisions are not affected by the invalidity and can be given effect without the invalid provision.  Therefore, the provisions of this Act are severable.

Inside Administrative Procedure Act – Washington