S-0697.2          _______________________________________________


                                 SENATE BILL 5786



State of Washington              52nd Legislature             1991 Regular Session


By Senators Cantu, Owen, Metcalf, Moore, Hayner, Amondson, von Reichbauer, Stratton, Bluechel, L. Smith, Barr, Hansen, Johnson, Snyder, Anderson, Craswell, Rasmussen, Bailey, Thorsness, McCaslin, Newhouse, Nelson, Bauer and Oke.


Read first time February 20, 1991.  Referred to Committee on Governmental Operations.Providing for more efficiency in governmental regulation.

     AN ACT Relating to efficiency in governmental regulation; amending RCW 34.05.220, 34.05.010, 34.05.310, 43.31.005, 43.31.125, 43.19.1911, and 42.04.060; reenacting and amending RCW 19.85.030; adding new sections to chapter 43.31 RCW; adding a new section to chapter 42.17 RCW; adding new sections to chapter 34.05 RCW; adding a new section to chapter 19.85 RCW; adding a new section to chapter 49.17 RCW; adding a new section to chapter 19.27 RCW; adding new sections to chapter 43.19 RCW; adding new sections to chapter 42.04 RCW; and providing an expiration date.




     NEW SECTION.  Sec. 1.  A new section is added to chapter 43.31 RCW to read as follows:

     The office of the regulatory ombudsman shall consider whether abstract standards have been fairly translated into realistic and attainable regulatory requirements.  The regulatory ombudsman shall recommend policies, consider counter-proposals from businesses to achieve regulatory goals more efficiently, and, if necessary, grant relief directly.

     The ombudsman shall take the appropriate measures to institute this program and shall solicit input from both private industry and regulatory agencies for this program.


     NEW SECTION.  Sec. 2.  A new section is added to chapter 42.17 RCW to read as follows:

     Upon the request of an applicant for a permit or license, the regulating agency shall furnish, for a fee not to exceed ten dollars, a written statement of all applicable regulations that must be complied with in order to obtain the license or permit.  The agency shall not use a regulation unless it is listed in the written statement as the basis for denying the license or permit to the applicant who has requested the statement.


     Sec. 3.  RCW 34.05.220 and 1989 c 175 s 4 are each amended to read as follows:

     (1) In addition to other rule-making requirements imposed by law:

     (a) Each agency may adopt rules governing the formal and informal procedures prescribed or authorized by this chapter and rules of practice before the agency, together with forms and instructions.  If an agency has not adopted procedural rules under this section, the model rules adopted by the chief administrative law judge under RCW 34.05.250 govern procedures before the agency. 

     (b) To assist interested persons dealing with it, each agency shall adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information and make submissions or requests.  No person may be required to comply with agency procedure not adopted as a rule as herein required.

     (2) To the extent not prohibited by federal law or regulation, nor prohibited for reasons of confidentiality by state law, each agency shall 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.

     Each agency shall, to the extent allowed by law, coordinate with federal, state, and local regulations so that regulatory requirements at each level are clearly stated and coordinated to prevent inconsistent and conflicting regulations at each level.  Each agency shall create to the extent allowed in section 10 of this act, categories of decisions in which the local offices can make final interpretations or determinations of their rules.  Nothing in this section changes federal or state preemption.

     (3) No agency order, decision, or opinion is valid or effective against any person, nor may it be invoked by the agency for any purpose, unless it is available for public inspection.  This subsection is not applicable in favor of any person who has actual knowledge of the order, decision, or opinion.  The agency has the burden of proving that knowledge, but may meet that burden by proving that the person has been properly served with a copy of the order.

     (4) Each agency that is authorized by law to exercise discretion in deciding individual cases is encouraged to formalize the general principles that may evolve from these decisions by adopting the principles as rules that the agency will follow until they are amended or repealed.


     NEW SECTION.  Sec. 4.  A new section is added to chapter 34.05 RCW to read as follows:

     A regulated party may inquire as to the use and relevance of reports required by a regulatory agency.  If the agency cannot provide specific evidence of utilization of the required report as an essential part of its decision-making process, then the regulated party may discontinue its production of the required report.  The regulatory ombudsman shall have the authority to decide if such evidence merits the continuation of the required report.


     Sec. 5.  RCW 34.05.010 and 1989 c 175 s 1 are each amended to read as follows:

     The definitions set forth in this section shall apply throughout this chapter, unless the context clearly requires otherwise.

     (1) "Adjudicative proceeding" means a proceeding before an agency in which an opportunity for hearing before that agency is required by statute or constitutional right before or after the entry of an order by the agency.  Adjudicative proceedings also include all cases of licensing and rate making in which an application for a license or rate change is denied except as limited by RCW 66.08.150, or a license is revoked, suspended, or modified, or in which the granting of an application is contested by a person having standing to contest under the law.

     (2) "Agency" means any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general except to the extent otherwise required by law.

     (3)(a) "Agency action" means licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits.

     (i) When enforcing an agency action, agency personnel should be sensitive to the fact that many businesses, especially small businesses, while striving to comply with the statutes and laws, may not have sufficient knowledge or experience of the process involved. This fact does not relieve business liability under the law or act as a defense if a violation occurs.

     (ii) When enforcing an agency action, agency personnel should be sensitive to any appearance or perception of inequity in the enforcement of the action.  The intention is that agency personnel assist the business community, especially small businesses, in understanding the basis for specific agency actions.

     (b) Agency action does not include an agency decision regarding (((a))) (i) contracting or procurement of goods, services, public works, and the purchase, lease, or acquisition by any other means, including eminent domain, of real estate, as well as all activities necessarily related to those functions, or (((b))) (ii) determinations as to the sufficiency of a showing of interest filed in support of a representation petition, or mediation or conciliation of labor disputes or arbitration of labor disputes under a collective bargaining law or similar statute, or (((c))) (iii) any sale, lease, contract, or other proprietary decision in the management of public lands or real property interests, or (((d))) (iv) the granting of a license, franchise, or permission for the use of trademarks, symbols, and similar property owned or controlled by the agency.

     (4) "Agency head" means the individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.  If the agency head is a body of individuals, a majority of those individuals constitutes the agency head.

     (5) "Entry" of an order means the signing of the order by all persons who are to sign the order, as an official act indicating that the order is to be effective.

     (6) "Filing" of a document that is required to be filed with an agency means delivery of the document to a place designated by the agency by rule for receipt of official documents, or in the absence of such designation, at the office of the agency head.

     (7) "Institutions of higher education" are the University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College, the various community colleges, and the governing boards of each of the above, and the various colleges, divisions, departments, or offices authorized by the governing board of the institution involved to act for the institution, all of which are sometimes referred to in this chapter as "institutions."

     (8) "Interpretive statement" means a written expression of the opinion of an agency, entitled an interpretive statement by the agency head or its designee, as to the meaning of a statute or other provision of law, of a court decision, or of an agency order.

     (9)(a) "License" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law, but does not include (i) a license required solely for revenue purposes, or (ii) a certification of an exclusive bargaining representative, or similar status, under a collective bargaining law or similar statute, or (iii) a license, franchise, or permission for use of trademarks, symbols, and similar property owned or controlled by the agency.

     (b) "Licensing" includes the agency process respecting the issuance, denial, revocation, suspension, or modification of a license.

     (10)(a) "Order," without further qualification, means a written statement of particular applicability that finally determines the legal rights, duties, privileges, immunities, or other legal interests of a specific person or persons.

     (b) "Order of adoption" means the official written statement by which an agency adopts, amends, or repeals a rule.

     (11) "Party to agency proceedings," or "party" in a context so indicating, means:

     (a) A person to whom the agency action is specifically directed; or

     (b) A person named as a party to the agency proceeding or allowed to intervene or participate as a party in the agency proceeding.

     (12) "Party to judicial review or civil enforcement proceedings," or "party" in a context so indicating, means:

     (a) A person who files a petition for a judicial review or civil enforcement proceeding; or

     (b) A person named as a party in a judicial review or civil enforcement proceeding, or allowed to participate as a party in a judicial review or civil enforcement proceeding.

     (13) "Person" means any individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.

     (14) "Policy statement" means a written description of the current approach of an agency, entitled a policy statement by the agency head or its designee, to implementation of a statute or other provision of law, of a court decision, or of an agency order, including where appropriate the agency's current practice, procedure, or method of action based upon that approach.

     (15) "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession; or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale.  The term includes the amendment or repeal of a prior rule, but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, (ii) declaratory rulings issued pursuant to RCW ((34.05.230)) 34.05.240, (iii) traffic restrictions for motor vehicles, bicyclists, and pedestrians established by the secretary of transportation or his or her designee where notice of such restrictions is given by official traffic control devices, or (iv) rules of institutions of higher education involving standards of admission, academic advancement, academic credit, graduation and the granting of degrees, employment relationships, or fiscal processes.

     (16) "Rules review committee" or "committee" means the joint administrative rules review committee created pursuant to RCW 34.05.610 for the purpose of selectively reviewing existing and proposed rules of state agencies.

     (17) "Rule making" means the process for formulation and adoption of a rule.

     (18) "Service," except as otherwise provided in this chapter, means posting in the United States mail, properly addressed, postage prepaid, or personal service.  Service by mail is complete upon deposit in the United States mail. Agencies may, by rule, authorize service by electronic telefacsimile transmission, where copies are mailed simultaneously, or by commercial parcel delivery company.


     NEW SECTION.  Sec. 6.  A new section is added to chapter 34.05 RCW to read as follows:

     A regulatory agency shall publish and provide to the regulated party a schedule of specific maximum time periods for performance, findings of regulation inspections, tests, and related findings.  Delays in granting permits shall be linked by the agency to specific insufficiencies on the part of the applicant, not to broad policies.


     Sec. 7.  RCW 34.05.310 and 1989 c 175 s 5 are each amended to read as follows:

     (1) In addition to seeking information by other methods, an agency, before publication of a notice of a proposed rule adoption under RCW 34.05.320, is encouraged to solicit comments from the public on a subject of possible rule making under active consideration within the agency, by causing notice to be published in the state register of the subject matter and indicating where, when, and how persons may comment.

     (2) Each agency may appoint committees to comment, before publication of a notice of proposed rule adoption under RCW 34.05.320, on the subject of a possible rule-making action under active consideration within the agency.

     (3) Each agency shall designate a rules coordinator, who shall have knowledge of the subjects of rules being proposed or prepared within the agency for proposal, maintain the records of any such action, and respond to public inquiries about possible or proposed rules and the identity of agency personnel working, reviewing, or commenting on them.  The office and mailing address of the rules coordinator shall be published in the state register at the time of designation and in the first issue of each calendar year thereafter for the duration of the designation.  The rules coordinator may be an employee of another agency.  To the extent possible, the agency director should seek to coordinate regulatory and audit requirements between the agency, local, and local federal regulators to prevent the same information from being provided repeatedly by firms and businesses in the regulatory process.


     NEW SECTION.  Sec. 8.  A new section is added to chapter 34.05 RCW to read as follows:

     If an agency fails to make a final determination not to exceed twenty-one days regarding any claim, investigation, or proceeding involving any regulated party, it shall provide the regulated party with a written notice which shall state why the agency is extending the time, how long the delay will be, and give a new date for final action.  Each agency shall determine and publish a schedule of reasonable time requirements, and if the timetable is exceeded, shall provide that the regulated party shall be permitted to proceed unless personal health or safety is threatened.


     NEW SECTION.  Sec. 9.  A new section is added to chapter 34.05 RCW to read as follows:

     An agency, when evaluating and establishing priorities for the correction of all substantial public health and safety risks, shall do so on the basis of the severity of risk without reference to the source of the risk.


     NEW SECTION.  Sec. 10.  A new section is added to chapter 43.31 RCW to read as follows:

     The regulatory ombudsman shall balance local need and broad public benefit when determining the degree to which city and county governments may make ad hoc changes in regulatory requirements to fit local needs.

     The director shall take the appropriate measures necessary to implement the program.  The director shall solicit input from both private industry and regulatory agencies.


     NEW SECTION.  Sec. 11.  A new section is added to chapter 34.05 RCW to read as follows:

     Local regulators shall bear the burden of proof to show the reason for variance from state standards.


     Sec. 12.  RCW 19.85.030 and 1989 c 374 s 2 and 1989 c 175 s 72 are each reenacted and amended to read as follows:

     In the adoption of any rule pursuant to RCW 34.05.320 that will have an economic impact on more than twenty percent of all industries, or more than ten percent of any one industry, the adopting agency:

     (1) Shall reduce the economic impact of the rule on small business by doing ((one or more of)) the following when it is legal and feasible in meeting the stated objective of the statutes which are the basis of the proposed rule:

     (a) Establish differing compliance or reporting requirements or timetables for small businesses;

     (b) Clarify, consolidate, or simplify the compliance and reporting requirements under the rule for small businesses;

     (c) Establish performance rather than design standards;

     (d) Exempt small businesses from any or all requirements of the rule, especially a rule dealing with employee benefits or job classifications;

     (2) Shall prepare a small business economic impact statement in accordance with RCW 19.85.040 and file such statement with the code reviser along with the notice required under RCW 34.05.320;

     (3) May request assistance from the business assistance center in the preparation of the small business economic impact statement.


     NEW SECTION.  Sec. 13.  A new section is added to chapter 19.85 RCW to read as follows:

     A regulatory agency shall, in the adoption of a rule or exercise of other regulatory authority, recognize existing arrangements covering all or part of an industry that satisfy all or part of the regulatory goal.  The agency shall coordinate its regulatory requirements with these arrangements whenever possible.


     NEW SECTION.  Sec. 14.  A new section is added to chapter 49.17 RCW to read as follows:

     The director shall develop and implement regulations that acknowledge efforts at good faith compliance with rule modifications or new rules that impact locations where work is in progress. Regulators shall be given, and encouraged to use discretion in applying rules when they involve a disruption of work in such a way as to increase risk to worker health and safety.

     Fines shall not be imposed on good faith efforts at compliance with regulatory changes impacting work in progress.


     NEW SECTION.  Sec. 15.  A new section is added to chapter 19.27 RCW to read as follows:

     (1) A five-member building technologies advisory board shall be appointed by the governor.  At least three of the members must also serve on the state building code council.  Two of the members shall reside east of the crest of the Cascade mountains.

     (2) Members shall not be compensated but shall receive reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

     (3) The department of community development shall provide administrative and clerical assistance to the building technologies advisory board.

     (4) The building technologies advisory board shall hold public hearings at its discretion to assess new construction and design technologies and methods and shall inform the state building code council about advances in construction and design technologies and methods.

     (5) The state building code council shall provide such information to state and local regulators and such regulators shall incorporate into their codes a reference to each new construction or design technology or method within a reasonable time.


     Sec. 16.  RCW 43.31.005 and 1990 1st ex.s. c 17 s 68 are each amended to read as follows:

     The legislature of the state of Washington finds that economic development is an essential public purpose which requires the active involvement of state government.  The state's primary economic strategy is to encourage the retention and expansion of existing businesses, to attract new businesses and industries, to foster the formation of new businesses, and to economically link rural communities with urban areas.  In order to aid the citizens of Washington to obtain desirable employment and achieve adequate incomes, it is necessary for the state to encourage balanced growth and economic prosperity and to promote a more diversified and healthy economy throughout the state.

     The legislature finds that the state needs to improve its level of employment, business activity, and revenue growth. In order to increase job opportunities and revenues, a broader and more stable economic base is needed.  The state shall take primary responsibility to encourage the balanced growth of the economy consistent with the preservation of Washington's quality of life and environment.  A healthy economy can be achieved through partnership efforts with the private sector to facilitate increased investment in Washington.  It is the policy of the state of Washington to encourage and promote an economic development program that provides sufficient employment opportunities for our current resident work force and those individuals who will enter the state's work force in the future.

     The legislature finds that the state's effort to attract high-technology business must include the ability to evaluate the environmental health aspects of advanced industrial processes.  Additionally, sufficient technical expertise must be developed to analyze new processes in a timely fashion, without the need for types of information from the producer which may contain trade secrets and thus retard development of advanced technology.

     The legislature finds that the state of Washington has the potential to become a major world trade gateway.  In order for Washington to fulfill its potential and compete successfully with other states and provinces, it must articulate a consistent, long-term trade policy.  It is the responsibility of the state to monitor and ensure that such traditional functions of state government as transportation, infrastructure, education, taxation, regulation and public expenditures contribute to the international trade focus the state of Washington must develop.


     Sec. 17.  RCW 43.31.125 and 1985 c 466 s 16 are each amended to read as follows:

     (1) The ((director)) regulatory ombudsman may establish such advisory groups as in the ((director's)) ombudsman's discretion are necessary to carry out the purposes of this chapter.  Members of and vacancies in such advisory groups shall be filled by appointment by the ((director)) ombudsman.  Members shall receive reimbursement for travel expenses incurred in the performance of their duties in accordance with RCW 43.03.050 and 43.03.060.

     (2) The regulatory ombudsman shall establish a group, with sufficient technical expertise, capable of assessing the use of materials in the emerging technologies to allow the development of appropriate regulations in a reasonable time.  Every means needed to assure confidentiality of information shall be used.


     NEW SECTION.  Sec. 18.  A new section is added to chapter 43.19 RCW to read as follows:

     (1) There is established within the department of general administration a task force known as the contract specifications task force.  The task force shall consist of at least two state employees and at least three members of the business community familiar with the state contract bidding procedure.

     (2) The task force shall develop requests for proposal criteria which:  (a) Offer adequate detail for realistic bids; and (b) encourage competitive bids from multiple suppliers.

     (3) The task force should facilitate the implementation of the criteria by requiring, for each contract, inclusion of the following specifications:  (a) A list of several competitors as potential suppliers; (b) a reasonable payment schedule with specified late fees; and (c) providing an automatic carry-forward provision of those amounts to be paid in the next fiscal year.


     Sec. 19.  RCW 43.19.1911 and 1989 c 431 s 60 are each amended to read as follows:

     (1) When purchases are made through competitive bidding, the contract shall be let to the lowest responsible bidder, subject to any preferences provided by law to Washington products and vendors and to RCW 43.19.704, taking into consideration the quality of the articles proposed to be supplied, their conformity with specifications, the purposes for which required, and the times of delivery:  PROVIDED, That whenever there is reason to believe that the lowest acceptable bid is not the best price obtainable, all bids may be rejected and the division of purchasing may call for new bids or enter into direct negotiations to achieve the best possible price.  Each bid with the name of the bidder shall be entered of record and each record, with the successful bid indicated, shall, after letting of the contract, be open to public inspection.  In determining "lowest responsible bidder", in addition to price, the following elements shall be given consideration:

     (((1))) (a) The ability, capacity, and skill of the bidder to perform the contract or provide the service required;

     (((2))) (b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;

     (((3))) (c) Whether the bidder can perform the contract within the time specified;

     (((4))) (d) The quality of performance of previous contracts or services;

     (((5))) (e) The previous and existing compliance by the bidder with laws relating to the contract or services;

     (((6))) (f) Such other information as may be secured having a bearing on the decision to award the contract:  PROVIDED, That in considering bids for purchase, manufacture, or lease, and in determining the "lowest responsible bidder," whenever there is reason to believe that applying the "life cycle costing" technique to bid evaluation would result in lowest total cost to the state, first consideration shall be given by state purchasing activities to the bid with the lowest life cycle cost which complies with specifications.  "Life cycle cost" means the total cost of an item to the state over its estimated useful life, including costs of selection, acquisition, operation, maintenance, and where applicable, disposal, as far as these costs can reasonably be determined, minus the salvage value at the end of its estimated useful life.  The "estimated useful life" of an item means the estimated time from the date of acquisition to the date of replacement or disposal, determined in any reasonable manner.  Nothing in this section shall prohibit any state agency, department, board, commission, committee, or other state-level entity from allowing for preferential purchase of products made from recycled materials or products that may be recycled or reused.

     (2) Any contract subject to this section that is not let to the lowest responsible bidder pursuant to this section is void.


     NEW SECTION.  Sec. 20.  A new section is added to chapter 43.19 RCW to read as follows:

     The department of general administration is directed to closely monitor purchases subject to RCW 43.19.1906 through 43.19.1913 to determine whether competitive bidding requirements are being followed.


     Sec. 21.  RCW 42.04.060 and 1973 2nd ex.s. c 1 s 2 are each amended to read as follows:

     (1) All state elective and appointive officers shall keep their offices open for the transaction of business from eight o'clock a.m. to five o'clock p.m. of each business day from Monday through Friday, state legal holidays excepted. On Saturday, such offices may be closed.

     (2) In order to assist in the implementation of the uniform business identifier program, state agency regional offices should maintain the following state-wide practices:

     (a) Uniform business hours;

     (b) At least one public parking place; and

     (c) Post the following:

     (i) Office hours of the agency; and

     (ii) Notice of those areas for specific transactions.

     (3) This section shall not apply to the courts of record of this state or to their officers nor to the office of the attorney general and the lieutenant governor.


     NEW SECTION.  Sec. 22.     The legislature recognizes the necessity of having a system of complaint and proper redress for the person, firm, or corporation injured by erroneous, faulty, or biased decisions or actions of state regulatory agencies and departments.  For this purpose, the legislature hereby creates the appointed office of citizens' regulatory ombudsman.


     NEW SECTION.  Sec. 23.     The governor shall appoint a qualified person to the office of citizens' regulatory ombudsman.  The ombudsman shall serve at the pleasure of the governor, subject to confirmation by the senate.  The ombudsman shall be paid a salary to be fixed by the governor in accordance with RCW 43.03.040.


     NEW SECTION.  Sec. 24.     The citizens' regulatory ombudsman may create such administrative structures as the ombudsman considers appropriate, except as otherwise specified by law.  The ombudsman may employ such assistants and personnel as may be necessary to serve the purposes of sections 22 through 26 of this act.  This employment shall be in accordance with the state civil service law, chapter 41.06 RCW.


     NEW SECTION.  Sec. 25.     (1) The citizens' regulatory ombudsman shall receive and review citizens' complaints against state regulatory agency actions or decisions.  The ombudsman shall investigate a citizen's complaint by contacting the appropriate state regulatory agency or department and obtaining the facts and circumstances surrounding the complaint.

     (2) If the ombudsman finds, after reviewing and investigating a citizen's complaint, that the regulatory agency or department made an unreasonable decision or took action that was erroneous or groundless, the deputy shall contact the agency or department and attempt to correct the error.

     (3) The office of the ombudsman may mediate between the regulatory agency or department and the citizen filing the complaint and attempt to reach a solution that is mutually agreeable to both parties.


     NEW SECTION.  Sec. 26.     The citizens' regulatory ombudsman may file an action in superior court against a state regulatory agency or department on behalf of a citizen who has been injured by an erroneous or groundless decision or act of such agency or department.


     NEW SECTION.  Sec. 27.     Sections 22 through 26 of this act are each added to chapter 42.04 RCW.


     NEW SECTION.  Sec. 28.     Section 18 of this act shall expire June 30, 1992.