1903-S

AN ACT Relating to rule making by administrative agencies; amending RCW 34.05.360, 34.05.345, 34.05.350, 90.48.220, 90.48.230, 15.58.040, 17.24.021, and 49.17.040; adding a new section to chapter 90.48 RCW; adding a new section to chapter 43.21A RCW; adding a new section to chapter 15.58 RCW; adding a new section to chapter 17.21 RCW; adding a new section to chapter 43.23 RCW; adding a new section to chapter 49.17 RCW; adding a new section to chapter 43.22 RCW; adding a new section to chapter 34.05 RCW; and creating new sections.

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

NEW SECTION. Sec. 1. The legislature finds that its delegation of legislative authority to the executive branch of state government in the form of the authority to adopt rules requires closer scrutiny to ensure that the authority is exercised within the intention of the legislature. It is the intent of the legislature to condition its delegation of certain legislative authorities to the department of ecology, the department of agriculture, and the department of labor and industries in two ways: First, by requiring that the legislature be given an opportunity to review rules proposed by these departments before the rules become effective; and second, by ensuring that any order, directive, or regulation of general applicability established by either of the departments has been subject to evaluation and comment by the public under the rule-making process provided by the administrative procedure act before such an order, directive, or regulation is applied to any member of the public.

PART 1 - RULE MAKING

NEW SECTION. Sec. 101. A new section is added to chapter 90.48 RCW to read as follows:

(1) A rule adopted by the director or department under the authority of this chapter shall be adopted in accordance with the administrative procedure act, chapter 34.05 RCW, and this section.

Before publishing a proposal of such a rule under RCW 34.05.320, the director or department shall conduct negotiated rule making on the proposal under RCW 34.05.310. Once a proposal for the rule is published under RCW 34.05.320, at least one public hearing shall be conducted on the proposed rule before the rule's being considered by the legislature under this section. The proposed rule may be adopted only after the legislature has had an opportunity to consider the proposal during one full regular session, as such a session is described in Article II, section 12 of the state Constitution. To provide such an opportunity, the following apply:

(a) A proposal of a rule published on or by the first day of November of one calendar year is subject to consideration by the legislature during the regular session of the legislature convened in the following year; and

(b) A proposal of a rule published after the first day of November of one calendar year and before the end of the first regular session of the legislature convened following that first day of November, is subject to consideration by the legislature during the second regular session of the legislature convened after that first day of November.

A copy of the file for the rule, including the summary and responses required by RCW 34.05.325(6), shall be transmitted to the chief clerk of the house of representatives and the secretary of the senate not later than the fifteenth day of January following the convening of the regular session.

(2) Subsection (1) of this section does not apply to emergency rules adopted in accordance with RCW 34.05.350(5).

NEW SECTION. Sec. 102. A new section is added to chapter 43.21A RCW to read as follows:

The department shall not take an action to enforce or apply an order, directive, or regulation of general applicability that satisfies the definition of a rule provided by RCW 34.05.010 unless the order, directive, or regulation has been adopted as a rule. If, during the judicial review of an action taken by the department, a court of competent jurisdiction finds that the department has by the action or some significant portion of the action violated this section, the court may, in addition to exercising any other authorities, award a party aggrieved by the violation reasonable attorneys' fees and court costs incurred by the aggrieved party with regard to the violation.

This section applies to any action taken by the department after the effective date of this section.

NEW SECTION. Sec. 103. A new section is added to chapter 15.58 RCW to read as follows:

(1) A rule adopted by the director or department under the authority of this chapter shall be adopted in accordance with the administrative procedure act, chapter 34.05 RCW, and this section.

(2) Subsection (1) of this section does not apply to emergency rules adopted in accordance with RCW 34.05.350(5).

NEW SECTION. Sec. 104. A new section is added to chapter 17.21 RCW to read as follows:

(1) A rule adopted by the director or department under the authority of this chapter shall be adopted in accordance with the administrative procedure act, chapter 34.05 RCW, and this section.

(2) Subsection (1) of this section does not apply to emergency rules adopted in accordance with RCW 34.05.350(5) or to rules the director of agriculture is required to adopt under chapter . . ., Laws of 1995 (Substitute House Bill No. 1065).

NEW SECTION. Sec. 105. A new section is added to chapter 43.23 RCW to read as follows:

The department of agriculture shall not take an action to enforce or apply an order, directive, or regulation of general applicability that satisfies the definition of a rule provided by RCW 34.05.010 unless the order, directive, or regulation has been adopted as a rule. If, during the judicial review of an action taken by the department, a court of competent jurisdiction finds that the department has by the action or some significant portion of the action violated this section, the court may, in addition to exercising any other authorities, award a party aggrieved by the violation reasonable attorneys' fees and court costs incurred by the aggrieved party with regard to the violation.

This section applies to any action taken by the department after the effective date of this section.

NEW SECTION. Sec. 106. A new section is added to chapter 49.17 RCW to read as follows:

(1) A rule adopted by the director or department of labor and industries under the authority of this chapter shall be adopted in accordance with the administrative procedure act, chapter 34.05 RCW, and this section.

(2) Subsection (1) of this section does not apply to emergency rules adopted in accordance with RCW 34.05.350(5).

NEW SECTION. Sec. 107. A new section is added to chapter 43.22 RCW to read as follows:

The department of labor and industries shall not take an action to enforce or apply an order, directive, or regulation of general applicability that satisfies the definition of a rule provided by RCW 34.05.010 unless the order, directive, or regulation has been adopted as a rule. If, during the judicial review of an action taken by the department, a court of competent jurisdiction finds that the department has by the action or some significant portion of the action violated this section, the court may, in addition to exercising any other authorities, award a party aggrieved by the violation reasonable attorneys' fees and court costs incurred by the aggrieved party with regard to the violation.

This section applies to any action taken by the department after the effective date of this section.

Sec. 108. RCW 34.05.360 and 1988 c 288 s 311 are each amended to read as follows:

The order of adoption by which each rule is adopted by an agency shall contain all of the following:

(1) The date the agency adopted the rule;

(2) A concise statement of the purpose of the rule;

(3) A reference to all rules repealed, amended, or suspended by the rule;

(4) A reference to the specific statutory or other authority authorizing adoption of the rule;

(5) Any findings required by any provision of law as a precondition to adoption or effectiveness of the rule; and

(6) The effective date of the rule if other than that specified in RCW 34.05.380(2).

Except as provided in section 101(2) of this act, a rule may not be adopted by the department of ecology or by the director of the department under chapter 90.48 RCW unless the legislature and the public have had an opportunity to consider the proposed rule during one full regular session as provided in section 101 of this act.

Except as provided in section 103(2) or 104(2) of this act, a rule may not be adopted by the department of agriculture or by the director of the department under chapter 15.58 or 17.21 RCW unless the legislature and the public have had an opportunity to consider the proposed rule during one full regular session as provided in section 103 or 104 of this act.

Except as provided in section 106(2) of this act, a rule may not be adopted by the department of labor and industries or by the director of the department under chapter 49.17 RCW unless the legislature and the public have had an opportunity to consider the proposed rule during one full regular session as provided in section 106 of this act.

Sec. 109. RCW 34.05.345 and 1988 c 288 s 308 are each amended to read as follows:

(1) Except for emergency rules adopted under RCW 34.05.350, when twenty days notice of intended action to adopt, amend, or repeal a rule has not been published in the state register, as required by RCW 34.05.320, the code reviser shall not publish such rule and such rule shall not be effective for any purpose.

(2) If the legislature and the public have not been given an opportunity to consider a proposal of a rule by the department of ecology as required by RCW 34.05.360 and section 101 of this act, the code reviser shall not publish the rule and the rule shall not be effective for any purpose.

(3) If the legislature and the public have not been given an opportunity to consider a proposal of a rule by the department of agriculture as required by RCW 34.05.360 and section 103 or 104 of this act, the code reviser shall not publish the rule and the rule shall not be effective for any purpose.

(4) If the legislature and the public have not been given an opportunity to consider a proposal of a rule by the department of labor and industries as required by RCW 34.05.360 and section 106 of this act, the code reviser shall not publish the rule and the rule shall not be effective for any purpose.

Sec. 110. RCW 34.05.350 and 1994 c 249 s 3 are each amended to read as follows:

(1) If an agency for good cause finds:

(a) 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; or

(b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule, the agency may dispense with those requirements and adopt, amend, or repeal the rule on an emergency basis. The agency's finding and a concise statement of the reasons for its finding shall be incorporated in the order for adoption of the emergency rule or amendment filed with the office of the code reviser under RCW 34.05.380 and with the rules review committee.

(2)(a) An emergency rule adopted under this section takes effect upon filing with the code reviser, unless a later date is specified in the order of adoption, and, except as provided in (b) of this subsection, may not remain in effect for longer than one hundred twenty days after filing. Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or the agency has filed notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule. This section does not relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or bodies before they become effective.

(b) An emergency rule that is subject to and is filed in accordance with subsection (5) of this section may remain in effect until the first date upon which a permanent version of the rule could become effective under section 101, 103, 104, or 106 of this act.

(3) 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. Within seven days after submission of the petition, the governor shall either deny the petition in writing, stating his or her reasons for the denial, or order the immediate repeal of the rule. In ruling on the petition, the governor shall consider only whether the conditions in subsection (1) of this section were met such that adoption of the rule on an emergency basis was necessary. If the governor orders the repeal of the emergency rule, any sanction imposed based on that rule is void. This subsection shall not be construed to prohibit adoption of any rule as a permanent rule.

(4) In adopting an emergency rule, the agency shall comply with section 4 of this act or provide a written explanation for its failure to do so.

(5) An emergency rule may be adopted and filed with the code reviser by the director or department of ecology under chapter 90.48 RCW, by the director or department of agriculture under chapter 15.58 or 17.21 RCW, or by the director or department of labor industries under chapter 49.17 RCW only if the filing is accompanied by a written declaration by the governor that an emergency exists that justifies the adoption of the rule on an emergency basis under this section.

PART 2 - DEPARTMENT OF ECOLOGY

CONFORMING AMENDMENTS

Sec. 201. RCW 90.48.220 and 1993 c 296 s 1 are each amended to read as follows:

(1) For the purposes of this section "marine finfish rearing facilities" means those private and public facilities located within the salt water of the state where finfish are fed, nurtured, held, maintained, or reared to reach the size of release or for market sale.

(2) Not later than October 31, 1994, the department shall adopt criteria under chapter 34.05 RCW for allowable sediment impacts from organic enrichment due to marine finfish rearing facilities.

(3) Not later than June 30, 1995, the department shall adopt standards ((~~under~~)) in accordance with section 101 of this act and chapter 34.05 RCW for waste discharges from marine finfish rearing facilities. In establishing these standards, the department shall review and incorporate, to the extent possible, studies conducted by state and federal agencies on waste discharges from marine finfish rearing facilities, and any reports and other materials prepared by technical committees on waste discharges from marine finfish rearing facilities. The department shall approve or deny discharge permit applications for marine finfish rearing facilities within one hundred eighty days from the date of application, unless a longer time is required to satisfy public participation requirements in the permit process in accordance with applicable rules, or compliance with the requirements of the state environmental policy act under chapter 43.21C RCW. The department shall notify applicants as soon as it determines that a proposed discharge meets or fails to comply with the standards adopted pursuant to this section, or if a time period longer than one hundred eighty days is necessary to satisfy public participation requirements of the state environmental policy act.

(4) The department may adopt rules to exempt marine finfish rearing facilities not requiring national pollutant discharge elimination system permits under the federal water pollution control act from the discharge permit requirement.

Sec. 202. RCW 90.48.230 and 1989 c 175 s 181 are each amended to read as follows:

The provisions of chapter 34.05 RCW, the administrative procedure act, and section 101 of this act apply to all rule making ((~~and adjudicative proceedings~~)) authorized by or arising under the provisions of this chapter.

PART 3 - DEPARTMENT OF AGRICULTURE

CONFORMING AMENDMENTS

Sec. 301. RCW 15.58.040 and 1991 c 264 s 2 are each amended to read as follows:

(1) The director shall administer and enforce the provisions of this chapter and rules adopted under this chapter. All the authority and requirements provided for in chapter 34.05 RCW (administrative procedure act) and ((~~chapter 42.30 RCW shall~~)) section 103 of this act apply to this chapter in the adoption of rules including those requiring due notice and a hearing for the adoption of permanent rules.

(2) The director is authorized to adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for:

(a) Declaring as a pest any form of plant or animal life or virus which is injurious to plants, people, animals (domestic or otherwise), land, articles, or substances;

(b) Determining that certain pesticides are highly toxic to people. For the purpose of this chapter, highly toxic pesticide means any pesticide that conforms to the criteria in 40 C.F.R. Sec. 162.10 for toxicity category I due to oral inhalation or dermal toxicity. The director shall publish a list of all pesticides, determined to be highly toxic, by their common or generic name and their trade or brand name if practical. Such list shall be kept current and shall, upon request, be made available to any interested party;

(d) The collection and examination of samples of pesticides or devices;

(e) The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers;

(f) Restricting or prohibiting the use of certain types of containers or packages for specific pesticides. These restrictions may apply to type of construction, strength, and/or size to alleviate danger of spillage, breakage, misuse, or any other hazard to the public. The director shall be guided by federal regulations concerning pesticide containers;

(g) Procedures in making of pesticide recommendations;

(h) Adopting a list of restricted use pesticides for the state or for designated areas within the state if the director determines that such pesticides may require rules restricting or prohibiting their distribution or use. The director may include in the rule the time and conditions of distribution or use of such restricted use pesticides and may, if it is found necessary to carry out the purpose and provisions of this chapter, require that any or all restricted use pesticides shall be purchased, possessed, or used only under permit of the director and under the director's direct supervision in certain areas and/or under certain conditions or in certain quantities or concentrations. The director may require all persons issued such permits to maintain records as to the use of all the restricted use pesticides;

(i) Label requirements of all pesticides required to be registered under provisions of this chapter;

(j) Regulating the labeling of devices; and

(k) The establishment of criteria governing the conduct of a structural pest control inspection.

(3) For the purpose of uniformity and to avoid confusion endangering the public health and welfare the director may adopt rules in conformity with the primary pesticide standards, particularly as to labeling, established by the United States environmental protection agency or any other federal agency.

Sec. 302. RCW 17.24.021 and 1991 c 257 s 6 are each amended to read as follows:

(1) The director may intercept and hold or order held for inspection, or cause to be inspected while in transit or after arrival at their destination, all plants, plant products, bees, or other articles likely to carry plant pests, bee pests, or noxious weeds being moved into this state from another state, territory, or a foreign country or within or through this state for plant and bee pests and disease.

(2) The director may enter upon public and private premises at reasonable times for the purpose of carrying out this chapter. If the director be denied access, the director may apply to any court of competent jurisdiction for a search warrant authorizing access to such premises. The court may upon such application issue the search warrant for the purposes requested.

(3) The director ((~~may~~)) shall adopt rules in accordance with section 104 of this act and chapter 34.05 RCW as may be necessary to carry out the purposes and provisions of this chapter.

PART 4 - DEPARTMENT OF LABOR AND INDUSTRIES

CONFORMING AMENDMENTS

Sec. 401. RCW 49.17.040 and 1973 c 80 s 4 are each amended to read as follows:

The director shall make, adopt, modify, and repeal rules ((~~and regulations~~)) governing safety and health standards for conditions of employment as authorized by this chapter after a public hearing in conformance with the administrative procedure act and the provisions of this chapter. Rules shall be adopted in accordance with section 106 of this act. At least thirty days prior to such public hearing, the director shall cause public notice of such hearing to be made in newspapers of general circulation in this state, of the date, time, and place of such public hearing, along with a general description of the subject matter of the proposed rules and information as to where copies of any rules ((~~and regulations~~)) proposed for adoption may be obtained and with a solicitation for recommendations in writing or suggestions for inclusion or changes in such rules to be submitted not later than five days prior to such public hearing. Any preexisting rules adopted by the department of labor and industries relating to health and safety standards in work places subject to the jurisdiction of the department shall remain effective insofar as such rules are not inconsistent with the provisions of this chapter.

PART 5 - MISCELLANEOUS

NEW SECTION. Sec. 501. A new section is added to chapter 34.05 RCW under the subchapter heading Part III to read as follows:

The provisions of sections 101, 103, 104, and 106 of this act establishing new procedural requirements for adopting rules apply only to rules adopted after the effective date of this section.

NEW SECTION. Sec. 502. Part headings used in this act do not constitute any part of the law.