BP BHEAD INT S

AN ACT Relating to executive branch review of administrative rules; and creating a new chapter in Title 34 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that:

(1) There has been an unprecedented growth in the number of administrative rules in recent years;

(2) The language of many administrative rules is frequently unclear and unnecessarily complex, even when the complicated and technical nature of the subject matter is taken into account. The language is often confusing to the persons who must comply with the rules;

(3) Substantial time and public funds have been spent in adopting administrative rules, the necessity for which has not been established;

(4) The imposition of prescriptive standards upon private persons and entities through administrative rules where the establishment of performance standards could reasonably be expected to produce the same result has placed an unnecessary burden on Washington citizens and discouraged innovation, research, and development of improved means of achieving desirable social goals;

(5) There exists no central office in state government with the power and duty to review administrative rules to ensure they are written in a comprehensible manner, are authorized by statute, and are consistent with other law; and

(6) Correcting the problems that have been caused by the unprecedented growth of administrative rules in Washington requires the direct involvement of the legislature as well as that of the executive branch of state government.

The legislature therefore declares that it is in the public interest to establish an office of administrative law charged with the orderly review of administrative rules. It is the intent of the legislature that the purpose of the review is to reduce the number of administrative rules and to improve the quality of those rules that are adopted. It is the intent of the legislature that agencies shall actively seek to reduce the unnecessary regulatory burden on private individuals and entities by substituting performance standards for prescriptive standards wherever performance standards can reasonably be expected to be as effective and less burdensome, and that agencies shall consider this substitution during the course of the agency rule-making process. It is the intent of the legislature that neither the office of administrative law nor the court should substitute its judgment for that of the rule-making agency as expressed in the substantive content of the adopted rule. It is the intent of the legislature that while the office of administrative law will be part of the executive branch of state government, that the office work closely with, and upon request report directly to, the legislature in order to accomplish regulatory reform in Washington.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Agency" has the same meaning as in RCW 34.05.010.

(2) "Authority" means the provision of law that permits or obligates the agency to adopt, amend, or repeal a rule.

(3) "Clarity" means written or displayed so that the meaning of the rules will be easily understood by those persons directly affected by them.

(4) "Consistency" means being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.

(5) "Necessity" means that the record of the rule making demonstrates by substantial evidence the need for a rule. For purposes of this standard, evidence includes, but is not limited to facts, studies, and expert opinion.

(6) "Nonduplication" means a rule does not serve the same purpose as a state or federal statute or another rule.

(7) "Office" means the office of administrative law.

(8) "Reference" means the statute, court decision, or other provision of law that the agency implements, interprets, or makes specific by adopting, amending, or repealing a rule.

NEW SECTION. Sec. 3. The office of administrative law is created as an agency of state government, responsible to the governor and the legislature for carrying out the purposes of this chapter. The governor shall appoint the director with the consent of the senate. The director serves at the pleasure of the governor. The salary of the director is determined under RCW 43.03.040. In accordance with chapter 41.06 RCW, the director shall employ such personnel as are necessary to implement this chapter.

NEW SECTION. Sec. 4. Each agency shall:

(1) Deliver to the office, no later than the day of its publication in the Washington State Register, a copy of the notice of a proposed rule published under RCW 34.05.320;

(2) Deliver to the office for filing with the office of the code reviser a certified copy of all rules it adopts, except for rules contained in tariffs filed with or published by the Washington utilities and transportation commission.

NEW SECTION. Sec. 5. (1) All rules delivered to the office of administrative law for filing with the office of the code reviser must conform to the style prescribed by that office under RCW 34.05.385.

(2) All rules must include a notation indicating a reference to the authority under which the rule is being adopted and the reference to the specific statute or other provision being implemented, interpreted, or made specific.

(3) Rules approved by the office must bear an endorsement by the office affixed to the certified copy that is filed with the office of the code reviser.

NEW SECTION. Sec. 6. (1) The office shall review all administrative rules delivered to it for filing with the office of the code reviser using the following criteria: (a) Necessity; (b) authority; (c) clarity; (d) consistency; (e) reference; and (f) nonduplication. In reviewing rules under this section, the office shall restrict its review to the rule and the record of the rule-making proceeding. The office shall approve the rule if it complies with the standards set forth in this section and with this chapter.

(2) In reviewing rules under subsection (1) of this section, the office may consider the clarity of the rule in the context of existing related rules.

(3) The standard for nonduplication requires that an agency proposing to amend or adopt a rule must identify a state or federal statute or rule that is overlapped or duplicated by the proposed rule and justify any overlap or duplication. This standard is not intended to prohibit state agencies from printing relevant portions of enabling legislation in rules when the duplication is necessary to satisfy the clarity standard of this chapter. This standard is intended to prevent the indiscriminate incorporation of statutory language in a rule.

(4) The office shall adopt rules governing the procedures it uses in reviewing rules submitted to it. The rules must provide for an orderly review and specify the methods, standards, presumptions, and principles the office uses, and the limitations it observes, in reviewing rules for compliance with the standards in subsection (1) of this section. The rules adopted by the office must ensure that it does not substitute its judgment for that of the rule-making agency as expressed in the substantive content of adopted rules.

(5) The office shall return any rule subject to this chapter to the adopting agency if any of the following occur:

(a) The rule conflicts with existing statutes, court decisions, or other provisions of law;

(b) The adopting agency has not complied with chapter 19.85 RCW;

(6) The office shall return a rule-making file to a submitting agency if the file does not comply with RCW 34.05.370. Within three working days of the receipt of a rule-making file, the office shall notify the submitting agency of any deficiency identified. If no notice of deficiency is mailed to the adopting agency within that time, a rule-making file is deemed submitted as of the date of its original receipt by the office. A rule-making file may not be deemed submitted until each deficiency identified under this subsection has been corrected.

(7) This section does not limit the review of rules under this title, including, but not limited to, the conformity of rule-making files to RCW 34.05.370.

NEW SECTION. Sec. 7. (1) The office shall either approve a rule submitted to it for review, and transmit it to the office of the code reviser for filing, or disapprove it within thirty working days after the rule has been submitted to the office for review. If the office fails to act within thirty days, the rule is deemed to have been approved and the office shall transmit it to the office of the code reviser for filing.

(2) If the office disapproves a rule, it shall return it to the adopting agency within the thirty-day period specified in subsection (1) of this section, accompanied by a notice specifying the reasons for disapproval. Within seven days of the issuance of the notice, the office shall provide the adopting agency with a written decision detailing the reasons for disapproval. The office may not disapprove a rule except for failure to comply with the standards set forth in this chapter.

(3) If an agency determines on its own that a rule submitted under subsection (1) of this section should be returned by the office before the completion of the office's review, it may request the return of the rule. The submitting agency shall memorialize in writing all requests for the return of a rule no later than seven days after the request. The agency shall resubmit to the office for review within one hundred eighty days specified in RCW 34.05.335, or refile in accordance with RCW 34.05.320, a rule returned under this subsection.

(4) The office shall not initiate the return of a rule under subsection (3) of this section as an alternative to disapproval under subsection (2) of this section.

NEW SECTION. Sec. 8. (1) Within one hundred twenty days of an agency's receipt of the written opinion required by section 7(2) of this act, the agency may rewrite and resubmit a rule returned to it under that provision without complying with the notice and hearing requirements of RCW 34.05.320, unless the substantive provisions of the rule are significantly changed. If the rule is significantly changed or is not submitted within one hundred twenty days of receipt of the written opinion, the agency shall, in compliance with chapter 34.05 RCW, readopt the rule. The director of the office may, upon a showing of good cause, grant an extension to the one hundred twenty-day period specified in this subsection.

(2) Upon resubmission of a previously disapproved rule to the office under subsection (1) of this section, the office shall review the resubmitted rule only for those reasons expressly identified in the written opinion required by section 7(2) of this act, or for those issues arising as a result of a significant change to a provision of the resubmitted rule or as a result of intervening statutory changes or intervening court orders or decisions.

(3) When an agency resubmits a withdrawn or disapproved rule to the office, it shall identify the prior withdrawn or disapproved rule by date of submission to the office, shall specify the portion of the prior rule-making record that should be included in the resubmission, and shall submit to the office a copy of the prior rule-making record if that record has been returned to the agency by the office.

(4) The office shall expedite the review of a rule resubmitted without significant substantive changes.

NEW SECTION. Sec. 9. (1) To initiate a review of a decision by the office, the agency shall file a written request for review with the governor's office within ten days of the receipt of the written opinion provided by the office under section 7(2) of this act. The request for review must include a complete statement as to why the agency believes the decision is incorrect and should be overruled. Along with the request for review, the agency shall submit the following:

(a) The office's written decision detailing the reasons for disapproval required by section 7(2) of this act; and

(b) Copies of all rules, notices, statements, and other documents that were submitted to the office.

(2) The agency shall deliver a copy of its request for review to the office on the same day it is delivered to the governor's office. The office shall file its written response to the agency's request with the governor's office within ten days and deliver a copy of its response to the agency on the same day it is delivered to the governor's office.

(3) The governor's office shall provide the requesting agency, the office, and the code reviser's office with a written statement either affirming or overruling the decision of the office within fifteen days of receipt of the response by the office to the agency's request for review. Upon receipt of the statement, the code reviser shall publish the agency's request for review, the office's response thereto, and the governor's statement in the Washington State Register.

(4) Upon overruling the decision of the office, the governor shall immediately transmit to both houses of the legislature a statement of his or her reasons for so doing.

NEW SECTION. Sec. 10. (1) If the office becomes aware of an existing rule in the Washington Administrative Code for which the statutory authority has been repealed or become ineffective or inoperative by its own terms, the office shall order the adopting agency to show cause why the rule should not be repealed for lack of statutory authority and shall notify the legislature in writing of this order. In issuing the order, the office shall specify in writing the reasons for issuance of the order.

(2) The agency may, within thirty days after receipt of the written notification, submit in writing to the office any citations, legal arguments, or other information opposing the repeal, including public comments received during this period. This section does not apply where the agency demonstrates in its response that any of the following conditions exist:

(a) The statute or section thereof is simultaneously repealed and substantially reenacted through a single piece of legislation, or where subsequent legislation evinces a specific legislative attempt to reenact the substance of the statute or section. When a rule cites more than one specific statute or section as reference or authority for the adoption of a rule, and one or more of the statutes or sections are repealed or become ineffective or inoperative, then the only provisions of the rule that remain in effect are those for which the remaining statutes or sections provide specific or general authority.

(b) The statute is temporarily repealed, or rendered ineffective or inoperative by a provision of law that is effective only for a limited period, in which case a rule described in subsection (1) of this section is thereby also temporarily repealed, rendered ineffective, or inoperative during that limited period. A rule so affected has the same force and effect upon the expiration of the limited period during which the provision of law was effective as if that temporary provision had not been enacted.

(c) The statute or section of a statute being repealed, or becoming ineffective or inoperative by its own terms, is to remain in full force and effect as regards events occurring before the date of repeal or ineffectiveness, in which case a rule adopted to implement or interpret that statute likewise remains in full force and effect in regards to those same events.

(3) This section does not be deprive a person or public agency of a substantial right that would have existed before, or hereafter exists after, the effective date of this act.

(4) At least thirty days after receipt of the agency's opposition material, or the close of the thirty-day agency and public response period if no response is submitted, the office shall do one of the following:

(a) Inform the agency and the legislature in writing that the office has withdrawn its order to show cause; or

(b) Issue a written notice to the agency specifying the reason for the repeal and its intent to file a notice of repeal of the invalid rule with the office of the code reviser. Within seven calendar days of the filing of the notice of repeal, the office shall provide the agency, the governor, the code reviser, and the legislature with a written decision detailing the reasons for the repeal and a copy of the notice of repeal. The code reviser shall publish the office's written decision in the Washington State Register.

(5) The office shall order the removal of the repealed rule from the Washington Administrative Code within thirty days after filing the notice of repeal, if the agency has not appealed the office's decision, or upon receipt of notification of the governor's decision upholding the office's decision, if an appeal has been filed under section 11 of this act.

NEW SECTION. Sec. 11. (1) To initiate a review of the office's notice of repeal under section 10 of this act, the agency shall appeal the office's decision by filing a written request for review with the governor's office within ten days of receipt of the notice of repeal and written decision provided for by section 10(4)(b) of this act. The request for review must include a complete statement as to why the agency believes the decision is incorrect and should be overruled. Along with the request for review, the agency shall submit the following:

(a) The office's written opinion detailing the reasons for repeal required by section 10(4)(b) of this act;

(b) Copies of all statements and other documents that were submitted to the office.

(2) The agency shall deliver a copy of its request for review to the office on the same day it is delivered to the governor's office. The office shall file its written response to the agency's request with the governor's office within ten days, and deliver a copy of its response to the agency on the same day it is delivered to the governor's office.

(3) The governor's office shall provide the requesting agency, the office, and the code reviser's office with a written decision within fifteen days of the receipt of the response by the office to the agency's request for review. Upon receipt of the decision, the code reviser shall publish in the Washington State Register the agency's request for review, the office's response thereto, and the decision of the governor's office.

(4) The governor's office may shorten the time requirements set by subsections (1) and (2) of this section for good cause.

(5) If the governor overrules the decision of the office, the office shall immediately transmit the rule to the office of the code reviser for filing.

(6) Upon overruling the decisions of the office, the governor shall transmit to both houses of the legislature a statement of the reasons for overruling the decisions of the office.

NEW SECTION. Sec. 12. Sections 1 through 11 of this act constitute a new chapter in Title 34 RCW.