WSR 11-11-042

OFFICE OF THE GOVERNOR


[ Filed May 12, 2011, 10:30 a.m. ]


NOTICE OF APPEAL

RCW 34.05.330(3)



Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:


On March 22, 2011, the Governor's Office received an appeal from Mr. Randy Boss relating to the Department of Transportation's denial of a petition to repeal or amend WAC 468-270. The Governor denied the Petition on May 5, 2011.

DATE: May 9, 2011

Narda Pierce

General Counsel to the Governor


May 5, 2011

Randy Boss

PO Box 237

Gig Harbor, WA 98335


RE: Administrative Rule Appeal - WAC 468-270


Dear Mr. Boss:


I am writing in response to your letter appealing the Transportation Commission's denial of your petitions under RCW 34.05.330(1). These petitions requested repeal or amendment of recent rule making actions that modified Chapter 468-270 of the Washington Administrative Code (WAC) relating to setting tolls for toll facilities in our state. You have petitioned that denial to the Governor under RCW 34.05.330(3). After careful consideration of your petitions and the Transportation Commission's reasons for denial of your petitions, I am denying your appeal.


The Transportation Commission is designated in various statutes as the entity responsible for setting tolls. These statutes are valid law and were not repealed by Initiative 1053. Initiative 1053 provides that "[a] fee may only be imposed or increased in any fiscal year if approved with majority legislative approval in both the house of representatives and the senate ..." RCW 43.135.055(1). As outlined in the enclosed informal Attorney General Opinion1, Initiative 1053 does not constrain the manner in which the legislature approves imposition or increases in fees. The Transportation Commission made its adoption of the rule amendments contingent on action by the Legislature pursuant to RCW 43.135.055(1).


The Transportation Commission clearly had authority to take these actions. With regard to the Tacoma Narrows Bridge, RCW 47.46.100(1) states: "The commission shall fix the rates of toll and other charges for all toll bridges built under this chapter that are financed primarily by bonds issued by the state. Subject to RCW 47.46.090, the commission may impose and modify toll charges from time to time as conditions warrant." With regard to State Route 520, RCW 47.56.810(1) states: "Tolling authority" means the governing body that is legally empowered to review and adjust toll rates. Unless otherwise delegated, the transportation commission is the tolling authority for all state highways." RCW 47.56.850(1) states: "Unless these powers are otherwise delegated by the legislature, the transportation commission is the tolling authority for the state." The Transportation Commission also clearly stated its intent that the toll rates adopted would not take effect without subsequent legislative action, recognizing the passage of Initiative 1053.


You also protest that the language of the title of the Proposed Rulemaking notice, "Toll and Fee Setting for Toll Facilities in Washington State," is broader than the specific toll facilities addressed in the proposed rules. The CR-102 announces to the public that a change to a rule is being proposed, and there are no provisions in the Administrative Procedures Act that require the title of the form to be narrowly tailored and specifically describe the proposed rules. In any event, the CR-102 form gave adequate notice to members of the public and any person who wished to be apprised of more detail could simply read the remainder of the form.


As another basis for your appeal, you allege that the Transportation Commission has not implemented a provision in Engrossed Substitute Senate Bill 6499, Laws of 2010, Chapter 249, that directed the Transportation Commission to adopt rules to assess administrative fees as appropriate for toll collection processes. However, the Transportation Commission adopted WAC 468-270-300, filed on January 20, 2011, with effectiveness contingent upon legislative action. This rule details fees as appropriate for toll collection processes and cites the 2010 law (codified at RCW 47.56.795) as statutory authority for the rule.


For these reasons and for the additional reasons set forth in the Transportation Commission's response, I am denying your appeal. I appreciate your concerns regarding proper rule making authority, notice and processes, but have concluded the Transportation Commission met all legal requirements with regard to these rule adoptions.


1 Letter opinion from Deputy Solicitor General James K. Pharris to Senator Don Benton dated February 17, 2011.

Sincerely,

Christine O. Gregoire

Governor

Reviser's note: The typographical errors in the above material occurred in the copy filed by the Office of the Governor and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office