AN ACT Relating to
regulatory reform; amending RCW 43.21A.080, 43.70.040, 82.01.060, 46.01.110,
50.12.040, 76.09.040, 77.04.090, 48.02.060, 48.30.010, 48.44.050, 48.46.200,
34.05.310, 34.05.320, 34.05.313, 34.05.325, 19.85.030, 19.85.040, 34.05.660,
42.40.010, 42.40.020, 42.40.030, 18.104.155, 49.17.180, 70.94.431, 70.105.080,
70.132.050, 70.138.040, 86.16.081, 90.03.600, 90.48.144, 90.58.210, 90.58.560,
90.76.080, 34.05.230, 34.05.330, 34.05.370, 34.05.570, 34.05.534, and
19.02.075; adding new sections to chapter 43.12 RCW; adding a new section to
chapter 43.20A RCW; adding new sections to chapter 43.23 RCW; adding new
sections to chapter 43.24 RCW; adding new sections to chapter 43.22 RCW; adding
a new section to chapter 70.94 RCW; adding new sections to chapter 34.05 RCW;
adding new sections to chapter 19.85 RCW; adding a new section to chapter 43.30
RCW; adding a new section to chapter 43.70 RCW; adding a new section to chapter
43.300 RCW; adding a new section to chapter 1.08 RCW; adding new sections to chapter
4.84 RCW; adding a new section to chapter 43.88 RCW; adding a new section to
chapter 19.02 RCW; adding a new chapter to Title 43 RCW; creating new sections;
repealing RCW 34.05.355 and 19.85.060; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. (1) The legislature finds
that:
(a) One of its
fundamental responsibilities, to the benefit of all the citizens of the state,
is the protection of public health and safety, including health and safety in
the workplace, and the preservation of the extraordinary natural environment
with which Washington is endowed;
(b) Essential to this
mission is the delegation of authority to state agencies to implement the
policies established by the legislature; and that the adoption of
administrative rules by these agencies helps assure that these policies are
clearly understood, fairly applied, and uniformly enforced;
(c) Despite its
importance, Washington's regulatory system must not impose excessive,
unreasonable, or unnecessary obligations; to do so serves only to discredit
government, makes enforcement of essential regulations more difficult, and
detrimentally affects the economy of the state and the well-being of our
citizens.
(2) The legislature
therefore enacts chapter . . ., Laws of 1995 (this act), to be known as
the regulatory reform act of 1995, to ensure that the citizens and environment
of this state receive the highest level of protection, in an effective and efficient
manner, without stifling legitimate activities and responsible economic
growth. To that end, it is the intent of the legislature, in the adoption of
this act, that:
(a) Unless otherwise
authorized, substantial policy decisions affecting the public be made by those
directly accountable to the public, namely the legislature, and that state
agencies not use their administrative authority to create or amend regulatory
programs;
(b) When an agency is
authorized to adopt rules imposing obligations on the public, that it do so
responsibly: The rules it adopts should be justified and reasonable, with the
agency having determined, based on common sense criteria established by the
legislature, that the obligations imposed are truly in the public interest;
(c) Governments at all
levels better coordinate their regulatory efforts to avoid confusing and
frustrating the public with overlapping or contradictory requirements;
(d) The public respect
the process whereby administrative rules are adopted, whether or not they agree
with the result: Members of the public affected by administrative rules must
have the opportunity for a meaningful role in their development; the bases for
agency action must be legitimate and clearly articulated;
(e) Members of the
public have adequate opportunity to challenge administrative rules with which
they have legitimate concerns through meaningful review of the rule by the
executive, the legislature, and the judiciary. While it is the intent of the
legislature that upon judicial review of a rule, a court should not substitute
its judgment for that of an administrative agency, the court should determine
whether the agency decision making was rigorous and deliberative; whether the
agency reached its result through a process of reason; and whether the agency
took a hard look at the rule before its adoption;
(f) In order to achieve
greater compliance with administrative rules at less cost, that a cooperative
partnership exist between agencies and regulated parties that emphasizes
education and assistance before the imposition of penalties; and
(g) Workplace safety
and health in this state not be diminished, whether provided by constitution,
by statute, or by rule.
PART
I
GRANTS OF AUTHORITY
NEW SECTION. Sec.
101. A new section is added
to chapter 43.12 RCW to read as follows:
For rules adopted after
the effective date of this section, the commissioner of public lands may not
rely solely on a section of law stating a statute's intent or purpose, on the
enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule.
NEW SECTION. Sec.
102. A new section is added
to chapter 43.20A RCW to read as follows:
For rules adopted after
the effective date of this section, the secretary may not rely solely on a
section of law stating a statute's intent or purpose, on the enabling
provisions of the statute establishing the agency, or on any combination of
such provisions, for statutory authority to adopt any rule.
Sec. 103. RCW 43.21A.080 and 1970
ex.s. c 62 s 8 are each amended to read as follows:
The director of the
department of ecology is authorized to adopt such rules and regulations as are
necessary and appropriate to carry out the provisions of this chapter:
PROVIDED, That the director may not adopt rules after the effective date of
this section that are based solely on a section of law stating a statute's
intent or purpose, on the enabling provisions of the statute establishing the
agency, or on any combination of such provisions, for statutory authority to
adopt the rule.
NEW SECTION. Sec.
104. A new section is added
to chapter 43.23 RCW to read as follows:
For rules adopted after
the effective date of this section, the director of agriculture may not rely
solely on a section of law stating a statute's intent or purpose, on the
enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule.
Sec. 105. RCW 43.70.040 and 1989
1st ex.s. c 9 s 106 are each amended to read as follows:
In addition to any
other powers granted the secretary, the secretary may:
(1) Adopt, in
accordance with chapter 34.05 RCW, rules necessary to carry out the provisions
of ((this act)) chapter 9, Laws of 1989 1st ex. sess.: PROVIDED,
That for rules adopted after the effective date of this section, the secretary
may not rely solely on a section of law stating a statute's intent or purpose,
on the enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule;
(2) Appoint such
advisory committees as may be necessary to carry out the provisions of ((this
act)) chapter 9, Laws of 1989 1st ex. sess. Members of such
advisory committees are authorized to receive travel expenses in accordance
with RCW 43.03.050 and 43.03.060. The secretary and the board of health shall
review each advisory committee within their jurisdiction and each statutory
advisory committee on a biennial basis to determine if such advisory committee
is needed. The criteria specified in RCW 43.131.070 shall be used to determine
whether or not each advisory committee shall be continued;
(3) Undertake studies,
research, and analysis necessary to carry out the provisions of ((this act))
chapter 9, Laws of 1989 1st ex. sess. in accordance with RCW 43.70.050;
(4) Delegate powers,
duties, and functions of the department to employees of the department as the
secretary deems necessary to carry out the provisions of ((this act)) chapter
9, Laws of 1989 1st ex. sess.;
(5) Enter into
contracts on behalf of the department to carry out the purposes of ((this
act)) chapter 9, Laws of 1989 1st ex. sess.;
(6) Act for the state
in the initiation of, or the participation in, any intergovernmental program to
the purposes of ((this act)) chapter 9, Laws of 1989 1st ex. sess.;
or
(7) Accept gifts,
grants, or other funds.
Sec. 106. RCW 82.01.060 and 1977 c
75 s 92 are each amended to read as follows:
The director of
revenue, hereinafter in ((this 1967 amendatory act)) chapter 26, Laws
of 1967 ex. sess. referred to as the director, through the department of
revenue, hereinafter in ((this 1967 amendatory act)) chapter 26, Laws
of 1967 ex. sess. referred to as the department, shall:
(1) Assess and collect
all taxes and administer all programs relating to taxes which are the
responsibility of the tax commission at the time ((this 1967 amendatory act))
chapter 26, Laws of 1967 ex. sess. takes effect or which the legislature
may hereafter make the responsibility of the director or of the department;
(2) Make, adopt and
publish such rules ((and regulations)) as he or she may deem
necessary or desirable to carry out the powers and duties imposed upon him or
her or the department by the legislature: PROVIDED, That the director
may not adopt rules after the effective date of this section that are based
solely on a section of law stating a statute's intent or purpose, on the
enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule;
(3) Rules ((and
regulations)) adopted by the tax commission ((prior to)) before
the effective date of this ((1967 amendatory act)) section shall
remain in force until such time as they may be revised or rescinded by the
director;
(((3))) (4)
Provide by general regulations for an adequate system of departmental review of
the actions of the department or of its officers and employees in the
assessment or collection of taxes;
(((4))) (5)
Maintain a tax research section with sufficient technical, clerical and other
employees to conduct constant observation and investigation of the
effectiveness and adequacy of the revenue laws of this state and of the sister
states in order to assist the governor, the legislature and the director in
estimation of revenue, analysis of tax measures, and determination of the
administrative feasibility of proposed tax legislation and allied problems;
(((5))) (6)
Recommend to the governor such amendments, changes in, and modifications of the
revenue laws as seem proper and requisite to remedy injustice and
irregularities in taxation, and to facilitate the assessment and collection of
taxes in the most economical manner.
NEW SECTION. Sec.
107. A new section is added
to chapter 43.24 RCW to read as follows:
For rules adopted after
the effective date of this section, the director of the department of licensing
may not rely solely on a section of law stating a statute's intent or purpose,
on the enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule,
except rules defining or clarifying terms in, or procedures necessary to the
implementation of, a statute.
Sec. 108. RCW 46.01.110 and 1979 c
158 s 120 are each amended to read as follows:
The director of
licensing is hereby authorized to adopt and enforce such reasonable rules ((and
regulations)) as may be consistent with and necessary to carry out the
provisions relating to vehicle licenses, certificates of ownership and license
registration and drivers' licenses not in conflict with the provisions of Title
46 RCW: PROVIDED, That the director of licensing may not adopt rules after
the effective date of this section that are based solely on a section of law
stating a statute's intent or purpose, on the enabling provisions of the
statute establishing the agency, or on any combination of such provisions, for
statutory authority to adopt any rule.
Sec. 109. RCW 50.12.040 and 1973
1st ex.s. c 158 s 3 are each amended to read as follows:
((Regular)) Permanent
and emergency rules ((and regulations)) shall be adopted, amended, or
repealed by the commissioner in accordance with the provisions of Title 34 RCW
and the rules ((or regulations)) adopted pursuant thereto: PROVIDED,
That the commissioner may not adopt rules after the effective date of this section
that are based solely on a section of law stating a statute's intent or
purpose, on the enabling provisions of the statute establishing the agency, or
on any combination of such provisions, for statutory authority to adopt any
rule.
Sec. 110. RCW 76.09.040 and 1994 c
264 s 48 are each amended to read as follows:
(1) Where necessary to
accomplish the purposes and policies stated in RCW 76.09.010, and to implement
the provisions of this chapter, the board shall ((promulgate)) adopt
forest practices ((regulations)) rules pursuant to chapter 34.05
RCW and in accordance with the procedures enumerated in this section:
PROVIDED, That the board may not adopt rules after the effective date of this
section that are based solely on a section of law stating a statute's intent or
purpose, on the enabling provisions of the statute establishing the agency, or
on any combination of such provisions, for statutory authority to adopt any
rule.
(2) The board shall
adopt rules that:
(a) Establish minimum
standards for forest practices;
(b) Provide procedures
for the voluntary development of resource management plans which may be adopted
as an alternative to the minimum standards in (a) of this subsection if the
plan is consistent with the purposes and policies stated in RCW 76.09.010 and
the plan meets or exceeds the objectives of the minimum standards;
(c) Set forth necessary
administrative provisions; and
(d) Establish
procedures for the collection and administration of forest practice fees as set
forth by this chapter.
Forest practices ((regulations))
rules pertaining to water quality protection shall be ((promulgated))
adopted individually by the board and by the department of ecology after
they have reached agreement with respect thereto. All other forest practices
((regulations)) rules shall be ((promulgated)) adopted
by the board.
Forest practices ((regulations))
rules shall be administered and enforced by the department except as
otherwise provided in this chapter. Such ((regulations)) rules
shall be ((promulgated)) adopted and administered so as to give
consideration to all purposes and policies set forth in RCW 76.09.010.
(((2))) (3)
The board shall prepare proposed forest practices ((regulations)) rules.
In addition to any forest practices ((regulations)) rules
relating to water quality protection proposed by the board, the department of
ecology shall prepare proposed forest practices ((regulations)) rules
relating to water quality protection.
Prior to initiating the
rule making process, the proposed ((regulations)) rules shall be
submitted for review and comments to the department of fish and wildlife and to
the counties of the state. After receipt of the proposed forest practices ((regulations))
rules, the department of fish and wildlife and the counties of the state
shall have thirty days in which to review and submit comments to the board, and
to the department of ecology with respect to its proposed ((regulations))
rules relating to water quality protection. After the expiration of
such thirty day period the board and the department of ecology shall jointly
hold one or more hearings on the proposed ((regulations)) rules
pursuant to chapter 34.05 RCW. At such hearing(s) any county may propose
specific forest practices ((regulations)) rules relating to
problems existing within such county. The board and the department of ecology
may adopt such proposals if they find the proposals are consistent with the
purposes and policies of this chapter.
Sec. 111. RCW 77.04.090 and 1984 c
240 s 1 are each amended to read as follows:
The commission shall
adopt permanent rules and amendments to or repeals of existing rules by
approval of four members by resolution, entered and recorded in the minutes of
the commission: PROVIDED, That the commission may not adopt rules after the
effective date of this section that are based solely on a section of law
stating a statute's intent or purpose, on the enabling provisions of the
statute establishing the agency, or on any combination of such provisions, for
statutory authority to adopt any rule. The commission shall adopt
emergency rules by approval of four members. The commission or the director,
when adopting emergency rules under RCW 77.12.150, shall adopt rules in
conformance with chapter 34.05 RCW. Judicial notice shall be taken of the rules
filed and published as provided in RCW 34.05.380 and 34.05.210.
A copy of an emergency
rule, certified as a true copy by a member of the commission, the director, or
by a person authorized in writing by the director to make the certification, is
admissible in court as prima facie evidence of the adoption and validity of the
rule.
NEW SECTION. Sec.
112. A new section is added
to chapter 43.22 RCW to read as follows:
For rules adopted after
the effective date of this section, the director of the department of labor and
industries may not rely solely on a statute's statement of intent or purpose,
on the enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for statutory authority to adopt any rule:
PROVIDED, That this section shall not apply to rules adopted pursuant to
chapter 39.12 RCW. It is the intent of the legislature to retain the status
quo and that the provisions of chapter . . ., Laws of 1995 (this act)
shall neither explicitly or impliedly diminish nor expand the rule-making
authority of the department under chapter 39.12 RCW.
Sec. 113. RCW 48.02.060 and 1947 c
79 s .02.06 are each amended to read as follows:
(1) The commissioner
shall have the authority expressly conferred upon him or her by or
reasonably implied from the provisions of this code.
(2) The commissioner
shall execute his or her duties and shall enforce the provisions of this
code.
(3) The commissioner
may:
(a) Make reasonable
rules and regulations for effectuating any provision of this code, except those
relating to his or her election, qualifications, or compensation:
PROVIDED, That the commissioner may not adopt rules after the effective date of
this section that are based solely on this statute, or on a statute's statement
of intent or purpose, or on the enabling provisions of the statute establishing
the agency, or any combination of such provisions, for statutory authority to
adopt any rule, except rules defining or clarifying terms in, or procedures
necessary to the implementation of a statute. No such rules and
regulations shall be effective prior to their being filed for public inspection
in the commissioner's office.
(b) Conduct
investigations to determine whether any person has violated any provision of
this code.
(c) Conduct
examinations, investigations, hearings, in addition to those specifically
provided for, useful and proper for the efficient administration of any
provision of this code.
Sec. 114. RCW 48.30.010 and 1985 c
264 s 13 are each amended to read as follows:
(1) No person engaged
in the business of insurance shall engage in unfair methods of competition or
in unfair or deceptive acts or practices in the conduct of such business as
such methods, acts, or practices ((are defined pursuant to subsection (2) of
this section.
(2) In addition to
such unfair methods and unfair or deceptive acts or practices)) as are expressly defined and prohibited by
this code((, the commissioner may from time to time by regulation
promulgated pursuant to chapter 34.05 RCW, define other methods of competition
and other acts and practices in the conduct of such business reasonably found
by the commissioner to be unfair or deceptive.
(3) No such
regulation shall be made effective prior to the expiration of thirty days after
the date of the order by which it is promulgated)).
(((4))) (2)
If the commissioner has cause to believe that any person is violating any such
((regulation)) rule or prohibition of this code, the commissioner
may order such person to cease and desist therefrom. The commissioner shall
deliver such order to such person direct or mail it to the person by registered
mail with return receipt requested. If the person violates the order after
expiration of ten days after the cease and desist order has been received by
him or her, he or she may be fined by the commissioner a sum not to exceed two
hundred and fifty dollars for each violation committed thereafter.
(((5))) (3)
If any such ((regulation)) rule or prohibition of this code is
violated, the commissioner may take such other or additional action as is
permitted under the insurance code for violation of a ((regulation)) rule
or that prohibition.
(4) Any permanent rule
that was adopted by the commissioner under the authority of this section as it
existed before the effective date of this section, and that was in effect as of
the effective date of this section, shall, if otherwise valid, remain in effect
until and unless it is repealed by the commissioner, who shall retain the
authority to repeal any such rule, or is effectively repealed by an act of the
legislature.
Sec. 115. RCW 48.44.050 and 1947 c
268 s 5 are each amended to read as follows:
The insurance
commissioner shall make reasonable regulations in aid of the administration of
this chapter which may include, but shall not be limited to regulations
concerning the maintenance of adequate insurance, bonds, or cash deposits,
information required of registrants, and methods of expediting speedy and fair
payments to claimants: PROVIDED, That the commissioner may not adopt rules
after the effective date of this section that are based solely on this section,
a statute's statement of intent or purpose, or on the enabling provisions of
the statute establishing the agency, or any combination of such provisions, for
statutory authority to adopt any rule, except rules defining or clarifying
terms in, or procedures necessary to the implementation of a statute.
Sec. 116. RCW 48.46.200 and 1975
1st ex.s. c 290 s 21 are each amended to read as follows:
The commissioner may adopt,
in accordance with the provisions of the administrative procedure act, chapter
34.05 RCW, ((promulgate)) rules and regulations as necessary or proper
to carry out the provisions of this chapter: PROVIDED, That the
commissioner may not adopt rules after the effective date of this section that
are based solely on this section, a statute's statement of intent or purpose,
or on the enabling provisions of the statute establishing the agency, or any
combination of such provisions, for statutory authority to adopt any rule,
except rules defining or clarifying terms in, or procedures necessary to the
implementation of a statute. Nothing in this chapter shall be construed to
prohibit the commissioner from requiring changes in procedures previously
approved by ((him)) the commissioner.
NEW SECTION. Sec.
117. A new section is added to
chapter 70.94 RCW to read as follows:
(1) After the effective
date of this section, the department may adopt or amend a rule under the
authority of this chapter that exceeds the requirements of the federal clean
air act or regulations adopted under it or that imposes burdens or obligations
before the scheduled adoption of federal regulations addressing similar subject
matter only after compliance with the procedures established in section 201 of
this act.
(2) In fulfilling the
requirements of section 201(1)(g)(ii) of this act, the department shall
consider: (a) The differences between the proposed rule and the corresponding
provisions of the federal clean air act; (b) the air quality problem that the
proposed rule would address, including the sources of the problem and any
factors that make the problem different in the state or in a part of the state
than in other parts of the United States; and (c) the effect of the proposed
rule in eliminating the problem or reducing its severity. This section shall
not be interpreted to impede efforts to streamline or simplify federal air
regulations that are developed with participation of the public and regulated
entities.
(3) This section shall
expire July 1, 1999.
NEW SECTION. Sec.
118. A new section is added
to chapter 34.05 RCW under the subchapter heading Part III to read as follows:
For rules implementing
statutes enacted after the effective date of this section, an agency may not
rely solely on the section of law stating a statute's intent or purpose, or on
the enabling provisions of the statute establishing the agency, or on any
combination of such provisions, for its statutory authority to adopt the rule.
An agency may use the statement of intent or purpose or the agency enabling
provisions to interpret ambiguities in a statute's other provisions.
NEW SECTION. Sec.
119. A new section is added
to chapter 34.05 RCW under the subchapter heading Part III to read as follows:
Section 118 of this act
does not apply to: The commissioner of public lands, the department of social
and health services, the department of ecology, the department of agriculture,
the department of health, the department of revenue, the department of licensing,
the department of labor and industries, the employment security department, the
forest practices board, the fish and wildlife commission, and the office of the
insurance commissioner.
PART
II
RULE-MAKING CRITERIA
NEW SECTION. Sec.
201. A new section is added
to chapter 34.05 RCW under the subchapter heading Part III to read as follows:
(1) Before adopting a
rule described in subsection (5) of this section, an agency shall:
(a) Clearly state in
detail the general goals and specific objectives of the statute that the rule
implements;
(b) Determine that the
rule is needed to achieve the general goals and specific objectives stated
under (a) of this subsection, and analyze alternatives to rule making and the
consequences of not adopting the rule;
(c) Determine that the
probable benefits of the rule are greater than its probable costs, taking into
account both the qualitative and quantitative benefits and costs and the
specific directives of the statute being implemented;
(d) Determine, after
considering alternative versions of the rule and the analysis required under
(b) and (c) of this subsection, that the rule being adopted is the least
burdensome alternative for those required to comply with it that will achieve
the general goals and specific objectives stated under (a) of this subsection;
(e) Determine that the
rule does not require those to whom it applies to take an action that violates
requirements of another federal or state law;
(f) Determine that the
rule does not impose more stringent performance requirements on private
entities than on public entities unless required to do so by federal or state
law;
(g) Determine if the
rule differs from any federal regulation or statute applicable to the same
activity or subject matter and, if so, determine that the difference is
justified by the following:
(i) A state statute
that explicitly allows the agency to differ from federal standards; or
(ii) Substantial
evidence that the difference is necessary to achieve the general goals and
specific objectives stated under (a) of this subsection; and
(h) Coordinate the
rule, to the maximum extent practicable, with other federal, state, and local
laws applicable to the same activity or subject matter.
(2) In making its determinations
pursuant to subsection (1)(b) through (g) of this section, the agency shall
place in the rule-making file documentation of sufficient quantity and quality
so as to persuade a reasonable person that the determinations are justified.
(3) Before adopting
rules described in subsection (5) of this section, an agency shall place in the
rule-making file a rule implementation plan for rules filed under each adopting
order. The plan shall describe how the agency intends to:
(a) Implement and
enforce the rule, including a description of the resources the agency intends
to use;
(b) Inform and educate
affected persons about the rule;
(c) Promote and assist
voluntary compliance; and
(d) Evaluate whether
the rule achieves the purpose for which it was adopted, including, to the
maximum extent practicable, the use of interim milestones to assess progress
and the use of objectively measurable outcomes.
(4) After adopting a
rule described in subsection (5) of this section regulating the same activity
or subject matter as another provision of federal or state law, an agency shall
do all of the following:
(a) Provide to the
business assistance center a list citing by reference the other federal and
state laws that regulate the same activity or subject matter;
(b) Coordinate
implementation and enforcement of the rule with the other federal and state
entities regulating the same activity or subject matter by making every effort
to do one or more of the following:
(i) Deferring to the
other entity;
(ii) Designating a lead
agency; or
(iii) Entering into an
agreement with the other entities specifying how the agency and entities will
coordinate implementation and enforcement.
If the agency is unable
to comply with this subsection (4)(b), the agency shall report to the
legislature pursuant to (c) of this subsection;
(c) Report to the joint
administrative rules review committee:
(i) The existence of
any overlap or duplication of other federal or state laws, any differences from
federal law, and any known overlap, duplication, or conflict with local laws;
and
(ii) Make
recommendations for any legislation that may be necessary to eliminate or
mitigate any adverse effects of such overlap, duplication, or difference.
(5)(a) Except as
provided in (b) of this subsection, this section applies to:
(i) Significant
legislative rules of the departments of ecology, labor and industries, health,
revenue, and natural resources, the employment security department, the forest
practices board, the office of the insurance commissioner, and to the
legislative rules of the department of fish and wildlife implementing chapter
75.20 RCW; and
(ii) Any rule of any
agency, if this section is voluntarily made applicable to the rule by the
agency, or is made applicable to the rule by a majority vote of the joint
administrative rules review committee within forty-five days of receiving the
notice of proposed rule making under RCW 34.05.320.
(b) This section does
not apply to:
(i) Emergency rules
adopted under RCW 34.05.350;
(ii) Rules relating
only to internal governmental operations that are not subject to violation by a
nongovernment party;
(iii) Rules adopting or
incorporating by reference without material change federal statutes or
regulations, Washington state statutes, rules of other Washington state
agencies, shoreline master programs other than those programs governing
shorelines of state-wide significance, or, as referenced by Washington state
law, national consensus codes that generally establish industry standards, if
the material adopted or incorporated regulates the same subject matter and
conduct as the adopting or incorporating rule;
(iv) Rules that only
correct typographical errors, make address or name changes, or clarify language
of a rule without changing its effect;
(v) Rules the content
of which is explicitly and specifically dictated by statute; or
(vi) Rules that set or
adjust fees or rates pursuant to legislative standards.
(c) For purposes of
this subsection:
(i) A "procedural
rule" is a rule that adopts, amends, or repeals (A) any procedure,
practice, or requirement relating to any agency hearings; (B) any filing or
related process requirement for making application to an agency for a license
or permit; or (C) any policy statement pertaining to the consistent internal
operations of an agency.
(ii) An
"interpretive rule" is a rule, the violation of which does not
subject a person to a penalty or sanction, that sets forth the agency’s
interpretation of statutory provisions it administers.
(iii) A
"significant legislative rule" is a rule other than a procedural or
interpretive rule that (A) adopts substantive provisions of law pursuant to
delegated legislative authority, the violation of which subjects a violator of
such rule to a penalty or sanction; (B) establishes, alters, or revokes any
qualification or standard for the issuance, suspension, or revocation of a
license or permit; or (C) adopts a new, or makes significant amendments to, a
policy or regulatory program.
(d) In the notice of
proposed rule making under RCW 34.05.320, an agency shall state whether this
section applies to the proposed rule pursuant to (a)(i) of this subsection, or
if the agency will apply this section voluntarily.
(6) By January 31,
1996, and by January 31st of each even-numbered year thereafter, the office of
financial management, after consulting with state agencies, counties, and
cities, and business, labor, and environmental organizations, shall report to
the governor and the legislature regarding the effects of this section on the
regulatory system in this state. The report shall document:
(a) The rules proposed
to which this section applied and to the extent possible, how compliance with
this section affected the substance of the rule, if any, that the agency
ultimately adopted;
(b) The costs incurred
by state agencies in complying with this section;
(c) Any legal action
maintained based upon the alleged failure of any agency to comply with this
section, the costs to the state of such action, and the result;
(d) The extent to which
this section has adversely affected the capacity of agencies to fulfill their
legislatively prescribed mission;
(e) The extent to which
this section has improved the acceptability of state rules to those regulated;
and
(f) Any other
information considered by the office of financial management to be useful in
evaluating the effect of this section.
PART
III
PUBLIC PARTICIPATION
Sec. 301. RCW 34.05.310 and 1994 c
249 s 1 are each amended to read as follows:
(1) To meet the intent
of providing greater public access to administrative rule making and to promote
consensus among interested parties, agencies shall solicit comments from the
public on a subject of possible rule making before ((publication of)) filing
with the code reviser a notice of proposed rule ((adoption)) making
under RCW 34.05.320. The agency shall prepare a statement of ((intent))
inquiry that:
(a) ((States the
specific statutory authority for the new rule;
(b) Identifies the
reasons the new rule is needed;
(c) Identifies the
goals of the new rule;
(d) Describes)) Identifies the specific statute or statutes
authorizing the agency to adopt rules on this subject;
(b) Discusses why
rules on this subject may be needed and what they might accomplish;
(c) Identifies other
federal and state agencies that regulate this subject, and describes the
process whereby the agency would coordinate the contemplated rule with these
agencies;
(d) Discusses
the process by which the rule ((will)) might be developed,
including, but not limited to, negotiated rule making, pilot rule making, or
agency study; ((and))
(e) Specifies the
process by which interested parties can effectively participate in the ((formulation
of the)) decision to adopt a new rule and formulation of a
proposed rule before its publication.
The statement of ((intent))
inquiry shall be filed with the code reviser for publication in the
state register at least thirty days before the date the agency files notice
of proposed rule making under RCW 34.05.320 and shall be sent to any party
that has requested receipt of the agency's statements of ((intent)) inquiry.
(2) Agencies are
encouraged to develop and use new procedures for reaching agreement among
interested parties before publication of notice and the adoption hearing on a
proposed rule. Examples of new procedures include, but are not limited to:
(a) Negotiated rule
making ((which includes:
(i) Identifying
individuals and organizations that have a recognized interest in or will be
significantly affected by the adoption of the proposed rule;
(ii) Soliciting
participation by persons who are capable, willing, and appropriately authorized
to enter into such negotiations;
(iii) Assuring that
participants fully recognize the consequences of not participating in the
process, are committed to negotiate in good faith, and recognize the
alternatives available to other parties;
(iv) Establishing
guidelines to encourage consideration of all pertinent issues, to set
reasonable completion deadlines, and to provide fair and objective settlement
of disputes that may arise;
(v) Agreeing on a
reasonable time period during which the agency will be bound to the rule
resulting from the negotiations without substantive amendment; and
(vi) Providing a
mechanism by which one or more parties may withdraw from the process or the
negotiations may be terminated if it appears that consensus cannot be reached
on a draft rule that accommodates the needs of the agency, interested parties,
and the general public and conforms to the legislative intent of the statute
that the rule is intended to implement)) by which representatives of an agency and of the interests that
are affected by a subject of rule making, including, where appropriate, county
and city representatives, seek to reach consensus on the terms of the proposed
rule and on the process by which it is negotiated; and
(b) Pilot rule making
which includes testing the ((draft of a proposed rule)) feasibility
of complying with or administering draft new rules or draft amendments to
existing rules through the use of volunteer pilot ((study)) groups
in various areas and circumstances, as provided in RCW 34.05.313 or as
otherwise provided by the agency.
(3)(a) An agency must
make a determination whether negotiated rule making, pilot rule making, or
another process for generating participation from interested parties prior to
development of the rule is appropriate.
(b) An agency must
include a written justification in the rule-making file if an opportunity for
interested parties to participate in the rule-making process prior to
publication of the proposed rule has not been provided.
(4) This section
does not apply to:
(a) Emergency rules
adopted under RCW 34.05.350;
(b) Rules relating
only to internal governmental operations that are not subject to violation by a
nongovernment party;
(c) Rules adopting
or incorporating by reference without material change federal statutes or
regulations, Washington state statutes, rules of other Washington state
agencies, shoreline master programs other than those programs governing
shorelines of state-wide significance, or, as referenced by Washington state
law, national consensus codes that generally establish industry standards, if
the material adopted or incorporated regulates the same subject matter and
conduct as the adopting or incorporating rule;
(d) Rules that only
correct typographical errors, make address or name changes, or clarify language
of a rule without changing its effect;
(e) Rules the
content of which is explicitly and specifically dictated by statute;
(f) Rules that set
or adjust fees or rates pursuant to legislative standards; or
(g) Rules that
adopt, amend, or repeal:
(i) A procedure,
practice, or requirement relating to agency hearings; or
(ii) A filing or
related process requirement for applying to an agency for a license or permit.
Sec. 302. RCW 34.05.320 and 1994 c
249 s 14 are each amended to read as follows:
(1) At least twenty
days before the rule-making hearing at which the agency receives public comment
regarding adoption of a rule, the agency shall cause notice of the hearing to
be published in the state register. The publication constitutes the proposal
of a rule. The notice shall include all of the following:
(a) A title, a
description of the rule's purpose, and any other information which may be of
assistance in identifying the rule or its purpose;
(b) Citations of the
statutory authority for adopting the rule and the specific statute the rule is
intended to implement;
(c) A summary of the
rule and a statement of the reasons supporting the proposed action;
(d) The agency personnel,
with their office location and telephone number, who are responsible for the
drafting, implementation, and enforcement of the rule;
(e) The name of the
person or organization, whether private, public, or governmental, proposing the
rule;
(f) Agency comments or
recommendations, if any, regarding statutory language, implementation,
enforcement, and fiscal matters pertaining to the rule;
(g) Whether the rule is
necessary as the result of federal law or federal or state court action, and if
so, a copy of such law or court decision shall be attached to the purpose
statement;
(h) When, where, and
how persons may present their views on the proposed rule;
(i) The date on which
the agency intends to adopt the rule;
(j) A short explanation
of the rule, its purpose, and anticipated effects, including in the case of a
proposal that would modify existing rules, a short description of the changes
the proposal would make; ((and))
(k) A ((statement
indicating how a person can obtain a)) copy of the small business economic
impact statement prepared under chapter 19.85 RCW, or an explanation for why
the agency did not prepare the statement; and
(l) A statement
indicating whether section 201 of this act applies to the rule adoption.
(2) Upon filing notice
of the proposed rule with the code reviser, the adopting agency shall have
copies of the notice on file and available for public inspection and shall
forward three copies of the notice to the rules review committee.
(3) No later than three
days after its publication in the state register, the agency shall cause a copy
of the notice of proposed rule adoption to be mailed to each person ((who)),
city, and county that has made a request to the agency for a mailed copy of
such notices. An agency may charge for the actual cost of providing ((individual))
a requesting party mailed copies of these notices.
(4) In addition to the
notice required by subsections (1) and (2) of this section, an institution of
higher education shall cause the notice to be published in the campus or
standard newspaper of the institution at least seven days before the
rule-making hearing.
Sec. 303. RCW 34.05.313 and 1993 c
202 s 4 are each amended to read as follows:
((If,)) (1) During
the development of a rule or after its adoption, an agency ((determines
that implementation may produce unreasonable economic, procedural, or technical
burdens, agencies are encouraged to)) may develop methods for
measuring or testing the feasibility of ((compliance)) complying
with or administering the rule((, including the use of voluntary
pilot study groups)) and for identifying simple, efficient, and
economical alternatives for achieving the goal of the rule. ((Measuring
and testing methods should emphasize)) A pilot project shall include
public notice, participation by ((persons who have a recognized interest in
or are significantly affected by the adoption of the proposed rule)) volunteers
who are or will be subject to the rule, a high level of involvement from
agency management, ((consensus on issues and procedures among participants
in the pilot group, assurance of fairness, and)) reasonable completion
dates, and a process by which one or more parties may withdraw from the process
or the process may be terminated ((if consensus cannot be reached on the
rule)). Volunteers who agree to test a rule and attempt to meet the
requirements of the draft rule, to report periodically to the proposing agency
on the extent of their ability to meet the requirements of the draft rule, and
to make recommendations for improving the draft rule shall not be obligated to
comply fully with the rule being tested nor be subject to any enforcement
action or other sanction for failing to comply with the requirements of the draft
rule.
(2) An agency
conducting a pilot rule project authorized under subsection (1) of this section
may waive one or more provisions of agency rules otherwise applicable to
participants in such a pilot project if the agency first determines that such a
waiver is in the public interest and necessary to conduct the project. Such a
waiver may be only for a stated period of time, not to exceed the duration of
the project.
(3) The findings
of the pilot project should be widely shared and, where appropriate, adopted as
amendments to the rule.
(4) If an agency
conducts a pilot rule project in lieu of meeting the requirements of the
regulatory fairness act, chapter 19.85 RCW, the agency shall ensure the
following conditions are met:
(a) If over ten
small businesses are affected, there shall be at least ten small businesses in
the test group and at least one-half of the volunteers participating in the
pilot test group shall be small businesses.
(b)(i) If there are
at least one hundred businesses affected, the participation by small businesses
in the test group shall be as follows:
(A) Not less than
twenty percent of the small businesses must employ twenty-six to fifty
employees;
(B) Not less than
twenty percent of the small businesses must employ eleven to twenty-six
employees, and
(C) Not less than
twenty percent of the small businesses must employ zero to ten employees.
(ii) If there do
not exist a sufficient number of small businesses in each size category set
forth in (b)(i) of this subsection willing to participate in the pilot project
to meet the minimum requirements of that subsection, then the agency must
comply with this section to the maximum extent practicable.
(c) The agency may
not terminate the pilot project before completion.
(d) Before filing
the notice of proposed rule making pursuant to RCW 34.05.320, the agency must
prepare a report of the pilot rule project that includes:
(i) A description of
the difficulties small businesses had in complying with the pilot rule;
(ii) A list of the
recommended revisions to the rule to make compliance with the rule easier or to
reduce the cost of compliance with the rule by the small businesses
participating in the pilot rule project;
(iii) A written
statement explaining the options it considered to resolve each of the
difficulties described and a statement explaining its reasons for not including
a recommendation by the pilot test group to revise the rule; and
(iv) If the agency
was unable to meet the requirements set forth in (b)(i) of this subsection, a
written explanation of why it was unable to do so and the steps the agency took
to include small businesses in the pilot project.
Sec. 304. RCW 34.05.325 and 1994 c
249 s 7 are each amended to read as follows:
(1) The agency shall
make a good faith effort to insure that the information on the proposed rule
published pursuant to RCW 34.05.320 accurately reflects the rule to be
presented and considered at the oral hearing on the rule. Written comment
about a proposed rule, including supporting data, shall be accepted by an
agency if received no later than the time and date specified in the notice, or
such later time and date established at the rule-making hearing.
(2) The agency shall
provide an opportunity for oral comment to be received by the agency in a
rule-making hearing.
(3) If the agency
possesses equipment capable of receiving telefacsimile transmissions or
recorded telephonic communications, the agency may provide in its notice of
hearing filed under RCW 34.05.320 that interested parties may comment on
proposed rules by these means. If the agency chooses to receive comments by
these means, the notice of hearing shall provide instructions for making such
comments, including, but not limited to, appropriate telephone numbers to be
used; the date and time by which comments must be received; required methods to
verify the receipt and authenticity of the comments; and any limitations on the
number of pages for telefacsimile transmission comments and on the minutes of
tape recorded comments. The agency shall accept comments received by these
means for inclusion in the official record if the comments are made in
accordance with the agency's instructions.
(4) The agency head, a
member of the agency head, or a presiding officer designated by the agency head
shall preside at the rule-making hearing. Rule-making hearings shall be open
to the public. The agency shall cause a record to be made of the hearing by
stenographic, mechanical, or electronic means. Unless the agency head presides
or is present at substantially all the hearings, the presiding official shall
prepare a memorandum for consideration by the agency head, summarizing the
contents of the presentations made at the rule-making hearing. The summarizing
memorandum is a public document and shall be made available to any person in
accordance with chapter 42.17 RCW.
(5) Rule-making
hearings are legislative in character and shall be reasonably conducted by the
presiding official to afford interested persons the opportunity to present
comment. Rule-making hearings may be continued to a later time and place
established on the record without publication of further notice under RCW
34.05.320.
(6) ((Before the
adoption of a final rule)) (a) Before it files an adopted rule with the
code reviser, an agency shall prepare a ((written summary of)) concise
explanatory statement of the rule:
(i) Identifying the
agency's reasons for adopting the rule;
(ii) Describing
differences between the text of the proposed rule as published in the register
and the text of the rule as adopted, other than editing changes, stating the
reasons for differences; and
(iii) Summarizing
all comments received regarding the proposed rule, and ((a substantive
response)) responding to the comments by category or subject matter,
indicating how the final rule reflects agency consideration of the comments, or
why it fails to do so.
(b) The agency
shall provide the ((written summary and response)) concise
explanatory statement to any person upon request or from whom the agency
received comment.
NEW SECTION. Sec.
305. RCW 34.05.355 and 1994 c
249 s 8 & 1988 c 288 s 310 are each repealed.
PART
IV
REGULATORY FAIRNESS ACT
NEW SECTION. Sec.
401. A new section is added
to chapter 19.85 RCW to read as follows:
(1) Unless an agency
receives a written objection to the expedited repeal of a rule, this chapter
does not apply to a rule proposed for expedited repeal pursuant to section 701
of this act. If an agency receives a written objection to expedited repeal of
the rule, this chapter applies to the rule-making proceeding.
(2) This chapter does
not apply to the adoption of a rule described in RCW 34.05.310(4).
(3) An agency is not
required to prepare a separate small business economic impact statement under
RCW 19.85.040 if it prepared an analysis under section 201 of this act that
meets the requirements of a small business economic impact statement, and if
the agency reduced the costs imposed by the rule on small business to the
extent required by RCW 19.85.030(3). The portion of the analysis that meets
the requirements of RCW 19.85.040 shall be filed with the code reviser and provided
to any person requesting it in lieu of a separate small business economic
impact statement.
Sec. 402. RCW 19.85.030 and 1994 c
249 s 11 are each amended to read as follows:
(1) ((In the
adoption of any rule pursuant to RCW 34.05.320 that will impose more than minor
costs on more than twenty percent of all industries, or more than ten percent
of any one industry, the adopting agency:
(a) 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:
(i) Establish
differing compliance or reporting requirements or timetables for small
businesses;
(ii) Clarify,
consolidate, or simplify the compliance and reporting requirements under the
rule for small businesses;
(iii) Establish
performance rather than design standards;
(iv) Exempt small
businesses from any or all requirements of the rule;
(v) Reduce or modify
fine schedules for noncompliance; and
(vi) Other
mitigation techniques;
(b) Before filing
notice of a proposed rule, shall prepare a small business economic impact
statement in accordance with RCW 19.85.040 and file notice of how the person
can obtain the statement with the code reviser as part of the notice required
under RCW 34.05.320.
(2) If requested to
do so by a majority vote of the joint administrative rules review committee
within thirty days after notice of the proposed rule is published in the state
register, an agency shall prepare a small business economic impact statement on
the proposed rule before adoption of the rule. Upon completion, an agency
shall provide a copy of the small business economic impact statement to any person
requesting it.
(3))) In the adoption of a rule under chapter
34.05 RCW, an agency shall prepare a small business economic impact statement:
(a) If the proposed rule will impose more than minor costs on businesses in an
industry; or (b) if requested to do so by a majority vote of the joint
administrative rules review committee within forty-five days of receiving the
notice of proposed rule making under RCW 34.05.320. However, if the agency has
completed the pilot rule process as defined by RCW 34.05.313 before filing the
notice of a proposed rule, the agency is not required to prepare a small
business economic impact statement.
An agency shall
prepare the small business economic impact statement in accordance with RCW
19.85.040, and file it with the code reviser along with the notice required
under RCW 34.05.320. An agency shall file a statement prepared at the request
of the joint administrative rules review committee with the code reviser upon
its completion before the adoption of the rule. An agency shall provide a copy
of the small business economic impact statement to any person requesting it.
An agency may request
assistance from the business assistance center in the preparation of the small
business economic impact statement.
(((4))) (2)
The business assistance center shall develop guidelines to assist agencies in
determining whether a proposed rule will impose more than minor costs on
businesses in an industry and therefore require preparation of a small business
economic impact statement. The business assistance center may review an agency
determination that a proposed rule will not impose such costs, and shall advise
the joint administrative rules review committee on disputes involving agency
determinations under this section.
(3) Based upon the
extent of disproportionate impact on small business identified in the statement
prepared under RCW 19.85.040, the agency shall, where legal and feasible in
meeting the stated objectives of the statutes upon which the rule is based,
reduce the costs imposed by the rule on small businesses. Methods to reduce
the costs on small businesses may include:
(a) Reducing,
modifying, or eliminating substantive regulatory requirements;
(b) Simplifying,
reducing, or eliminating recordkeeping and reporting requirements;
(c) Reducing the
frequency of inspections;
(d) Delaying
compliance timetables;
(e) Reducing or
modifying fine schedules for noncompliance; or
(f) Any other
mitigation techniques.
Sec. 403. RCW 19.85.040 and 1994 c
249 s 12 are each amended to read as follows:
(1) A small business
economic impact statement must include a brief description of the reporting,
recordkeeping, and other compliance requirements of the proposed rule, and the
kinds of professional services that a small business is likely to need in order
to comply with such requirements. It shall analyze the costs of compliance for
businesses required to comply with the proposed rule adopted pursuant to RCW
34.05.320, including costs of equipment, supplies, labor, and increased administrative
costs. It shall consider, based on input received, whether compliance with the
rule will cause businesses to lose sales or revenue. To determine whether the
proposed rule will have a disproportionate impact on small businesses, the
impact statement must compare the cost of compliance for small business with
the cost of compliance for the ten percent of businesses that are the largest
businesses required to comply with the proposed rules using one or more of the
following as a basis for comparing costs:
(a) Cost per employee;
(b) Cost per hour of
labor; or
(c) Cost per one
hundred dollars of sales.
(2) A small business
economic impact statement must also include:
(a) A statement of the
steps taken by the agency to reduce the costs of the rule on small businesses
as required by RCW 19.85.030(((1))) (3), or reasonable
justification for not doing so, addressing the options listed in RCW
19.85.030(((1))) (3);
(b) A description of
how the agency will involve small businesses in the development of the rule;
and
(c) A list of
industries that will be required to comply with the rule. However, this
subsection (2)(c) shall not be construed to preclude application of the rule to
any business or industry to which it would otherwise apply.
(3) To obtain
information for purposes of this section, an agency may survey a representative
sample of affected businesses or trade associations and should, whenever
possible, appoint a committee under RCW 34.05.310(2) to assist in the accurate
assessment of the costs of a proposed rule, and the means to reduce the costs
imposed on small business.
NEW SECTION. Sec.
404. A new section is added
to chapter 19.85 RCW to read as follows:
Unless so requested by
a majority vote of the joint administrative rules review committee under RCW
19.85.030, an agency is not required to comply with this chapter when adopting
any rule solely for the purpose of conformity or compliance, or both, with
federal statute or regulations. In lieu of the statement required under RCW
19.85.030, the agency shall file a statement citing, with specificity, the
federal statute or regulation with which the rule is being adopted to conform
or comply, and describing the consequences to the state if the rule is not
adopted.
NEW SECTION. Sec.
405. RCW 19.85.060 and 1989 c
374 s 5 are each repealed.
PART
V
STRENGTHENED LEGISLATIVE
OVERSIGHT
NEW SECTION. Sec.
501. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
The joint
administrative rules review committee shall not render a decision on a rule
unless a quorum is present. A quorum shall consist of at least five members of
the committee. Once a quorum is established, a majority of the quorum may
render any decision except a suspension recommendation. A recommendation to
suspend a rule under RCW 34.05.640 shall require a majority vote of the entire
membership of the rules review committee.
NEW SECTION. Sec.
502. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
(1) Any person may
petition the rules review committee for a review of that rule. Within thirty
days of the receipt of the petition, the rules review committee shall
acknowledge receipt of the petition and describe any initial action taken. If
the rules review committee rejects the petition, a written statement of the
reasons for rejection shall be included.
(2) Within ninety days
of receipt of the petition, the rules review committee shall make a final
decision on the rule for which the petition for review was not previously
rejected.
NEW SECTION. Sec.
503. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
Any individual employed
or holding office in any department or agency of state government may submit
rules warranting review to the rules review committee. Any such state employee
is protected under chapter 42.40 RCW.
Sec. 504. RCW 34.05.660 and 1988 c
288 s 606 are each amended to read as follows:
(1) Except as
provided in subsection (2) of this section, it is the express policy of the
legislature that establishment of procedures for review of administrative rules
by the legislature and the notice of objection required by RCW 34.05.630(2) and
34.05.640(2) in no way serves to establish a presumption as to the legality or
constitutionality of a rule in any subsequent judicial proceedings interpreting
such rules.
(2) If the joint
administrative rules review committee recommends to the governor that an
existing rule be suspended because it does not conform with the intent of the
legislature, the recommendation shall establish a rebuttable presumption in any
proceeding challenging the validity of the rule that the rule is invalid. The
burden of demonstrating the rule's validity is then on the adopting agency.
NEW SECTION. Sec.
505. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
(1) The rules review
committee may make reports from time to time to the members of the legislature
and to the public with respect to any of its findings or recommendations. The
committee shall keep complete minutes of its meetings.
(2) The committee may
establish ad hoc advisory boards, including but not limited to, ad hoc
economics or science advisory boards to assist the committee in its rules
review functions.
(3) The committee may
hire staff as needed to perform functions under this chapter.
NEW SECTION. Sec.
506. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
In the discharge of any
duty imposed under this chapter, the rules review committee may examine and
inspect all properties, equipment, facilities, files, records, and accounts of
any state office, department, institution, board, committee, commission, or
agency, and administer oaths, issue subpoenas, compel the attendance of
witnesses and the production of any papers, books, accounts, documents, and
testimony, and cause the deposition of witnesses, either residing within or
without the state, to be taken in the manner prescribed by law for taking
depositions in civil actions in the superior courts.
NEW SECTION. Sec.
507. A new section is added
to chapter 34.05 RCW under the subchapter heading Part VI to read as follows:
In case of the failure
on the part of any person to comply with any subpoena issued in behalf of the
rules review committee, or on the refusal of any witness to testify to any
matters regarding which he or she may be lawfully interrogated, it is the duty of
the superior court of any county, or of the judge thereof, on application of
the committee, to compel obedience by proceedings for contempt, as in the case
of disobedience of the requirements of a subpoena issued from the court or a
refusal to testify in the court.
Sec. 508. RCW 42.40.010 and 1982 c
208 s 1 are each amended to read as follows:
It is the policy of the
legislature that employees should be encouraged to disclose, to the extent not
expressly prohibited by law, improper governmental actions, and it is the
intent of the legislature to protect the rights of state employees making these
disclosures. It is also the policy of the legislature that employees should
be encouraged to identify rules warranting review or provide information to the
rules review committee, and it is the intent of the legislature to protect the
rights of these employees.
Sec. 509. RCW 42.40.020 and 1992 c
118 s 1 are each amended to read as follows:
As used in this
chapter, the terms defined in this section shall have the meanings indicated
unless the context clearly requires otherwise.
(1) "Auditor"
means the office of the state auditor.
(2)
"Employee" means any individual employed or holding office in any
department or agency of state government.
(3)(a) "Improper
governmental action" means any action by an employee:
(i) Which is undertaken
in the performance of the employee's official duties, whether or not the action
is within the scope of the employee's employment; and
(ii) Which is in
violation of any state law or rule, is an abuse of authority, is of substantial
and specific danger to the public health or safety, or is a gross waste of
public funds.
(b) "Improper
governmental action" does not include personnel actions including but not
limited to employee grievances, complaints, appointments, promotions,
transfers, assignments, reassignments, reinstatements, restorations,
reemployments, performance evaluations, reductions in pay, dismissals,
suspensions, demotions, violations of the state civil service law, alleged
labor agreement violations, reprimands, or any action which may be taken under
chapter 41.06 ((or 28B.16)) RCW, or other disciplinary action except as
provided in RCW 42.40.030.
(4) "Use of
official authority or influence" includes taking, directing others to
take, recommending, processing, or approving any personnel action such as an
appointment, promotion, transfer, assignment, reassignment, reinstatement,
restoration, reemployment, performance evaluation, or any adverse action under
chapter 41.06 ((or 28B.16)) RCW, or other disciplinary action.
(5)
"Whistleblower" means an employee who in good faith reports alleged
improper governmental action to the auditor, initiating an investigation under
RCW 42.40.040. For purposes of the provisions of this chapter and chapter
49.60 RCW relating to reprisals and retaliatory action, the term
"whistleblower" also means: (a) An employee who in good faith
provides information to the auditor in connection with an investigation under
RCW 42.40.040 and an employee who is believed to have reported alleged improper
governmental action to the auditor or to have provided information to the
auditor in connection with an investigation under RCW 42.40.040 but who, in
fact, has not reported such action or provided such information; or (b) an
employee who in good faith identifies rules warranting review or provides
information to the rules review committee, and an employee who is believed to
have identified rules warranting review or provided information to the rules
review committee but who, in fact, has not done so.
Sec. 510. RCW 42.40.030 and 1989 c
284 s 2 are each amended to read as follows:
(1) An employee shall
not directly or indirectly use or attempt to use the employee's official
authority or influence for the purpose of intimidating, threatening, coercing,
commanding, influencing, or attempting to intimidate, threaten, coerce,
command, or influence any individual for the purpose of interfering with the
right of the individual to: (a) Disclose to the auditor (or
representative thereof) information concerning improper governmental action;
or (b) identify rules warranting review or provide information to the rules
review committee.
(2) Nothing in this
section authorizes an individual to disclose information otherwise prohibited
by law.
NEW SECTION. Sec.
511. Before the 1996
legislative session, the appropriate standing committees of the legislature
shall study alternative means to provide effective, objective oversight of
state agency rule making, and make a recommendation whether the joint
administrative rules review committee should be continued or replaced.
PART
VI
TECHNICAL ASSISTANCE
NEW SECTION. Sec.
601. The legislature finds
that, due to the volume and complexity of laws and rules it is appropriate for
regulatory agencies to adopt programs and policies that encourage voluntary
compliance by those affected by specific rules. The legislature recognizes that
a cooperative partnership between agencies and regulated parties that
emphasizes education and assistance before the imposition of penalties will
achieve greater compliance with laws and rules and that most individuals and
businesses who are subject to regulation will attempt to comply with the law,
particularly if they are given sufficient information. In this context,
enforcement should assure that the majority of a regulated community that
complies with the law are not placed at a competitive disadvantage and that a
continuing failure to comply that is within the control of a party who has
received technical assistance is considered by an agency when it determines the
amount of any civil penalty that is issued.
NEW SECTION. Sec.
602. Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Civil
penalty" means a monetary penalty administratively issued by a regulatory
agency for noncompliance with state or federal law or rules. The term does not
include any criminal penalty, damage assessments, wages, premiums, or taxes
owed, or interest or late fees on any existing obligation.
(2) "Regulatory
agency" means an agency as defined in RCW 34.05.010 that has the authority
to issue civil penalties. The term does not include the state patrol or any
institution of higher education as defined in RCW 28B.10.016.
(3) "Technical
assistance" includes:
(a) Information on the
laws, rules, and compliance methods and technologies applicable to the
regulatory agency's programs;
(b) Information on
methods to avoid compliance problems;
(c) Assistance in
applying for permits; and
(d) Information on the
mission, goals, and objectives of the program.
NEW SECTION. Sec.
603. All regulatory agencies
shall develop programs to encourage voluntary compliance by providing technical
assistance consistent with statutory requirements. The programs shall include
but are not limited to technical assistance visits, printed information,
information and assistance by telephone, training meetings, and other
appropriate methods to provide technical assistance. In addition, all
regulatory agencies shall provide upon request a list of organizations,
including private companies, that provide technical assistance. This list
shall be compiled by the agencies from information submitted by the
organizations and shall not constitute an endorsement by an agency of any
organization.
NEW SECTION. Sec.
604. (1) For the purposes of
this chapter, a technical assistance visit is a visit by a regulatory agency to
a facility, business, or other location that:
(a) Has been requested
or is voluntarily accepted; and
(b) Is declared by the
regulatory agency at the beginning of the visit to be a technical assistance
visit.
(2) A technical
assistance visit also includes a consultative visit pursuant to RCW 49.17.250.
(3) During a technical
assistance visit, or within a reasonable time thereafter, a regulatory agency
shall inform the owner or operator of the facility of any violations of law or
agency rules identified by the agency as follows:
(a) A description of
the condition that is not in compliance and a specific citation to the
applicable law or rule;
(b) A statement of what
is required to achieve compliance;
(c) The date by which
the agency requires compliance to be achieved;
(d) Notice of the means
to contact any technical assistance services provided by the agency or others;
and
(e) Notice of when,
where, and to whom a request to extend the time to achieve compliance for good
cause may be filed with the agency.
NEW SECTION. Sec.
605. The owner and operator
shall be given a reasonable period of time to correct violations identified
during a technical assistance visit before any civil penalty provided for by
law is imposed for those violations. A regulatory agency may revisit a
facility, business, or other location after a technical assistance visit and a
reasonable period of time has passed to correct violations identified by the
agency in writing and issue civil penalties as provided for by law for any
uncorrected violations.
NEW SECTION. Sec.
606. A regulatory agency that
observes a violation during a technical assistance visit may issue a civil
penalty as provided for by law if: (1) The individual or business has
previously been subject to an enforcement action for the same or similar type
of violation of the same statute or rule or has been given previous notice of
the same or similar type of violation of the same statute or rule; or (2) the
issue involves sales taxes due to the state and the individual or business is
not remitting previously collected sales taxes to the state; or (3) the
violation has a probability of placing a person in danger of death or bodily
harm, has a probability of causing more than minor environmental harm, or has a
probability of causing physical damage to the property of another in an amount
exceeding one thousand dollars.
NEW SECTION. Sec.
607. (1) If in the course of
any site inspection or visit that is not a technical assistance visit, the
department of ecology becomes aware of conditions that are not in compliance
with applicable laws and rules enforced by the department and are not subject
to civil penalties as provided for in section 608 of this act, the department
may issue a notice of correction to the responsible party that shall include:
(a) A description of
the condition that is not in compliance and a specific citation to the
applicable law or rule;
(b) A statement of what
is required to achieve compliance;
(c) The date by which
the department requires compliance to be achieved;
(d) Notice of the means
to contact any technical assistance services provided by the department or
others; and
(e) Notice of when,
where, and to whom a request to extend the time to achieve compliance for good
cause may be filed with the department.
(2) A notice of
correction is not a formal enforcement action, is not subject to appeal, and is
a public record.
(3) If the department
issues a notice of correction, it shall not issue a civil penalty for the
violations identified in the notice of correction unless the responsible party
fails to comply with the notice.
NEW SECTION. Sec.
608. The department of ecology
may issue a civil penalty provided for by law without first issuing a notice of
correction if: (1) The person has previously been subject to an enforcement
action for the same or similar type of violation of the same statute or rule or
has been given previous notice of the same or similar type of violation of the
same statute or rule; or (2) compliance is not achieved by the date established
by the department in a previously issued notice of correction, if the
department has responded to any request for review of such date by reaffirming
the original date or establishing a new date; or (3) the violation has a probability
of placing a person in danger of death or bodily harm, has a probability of
causing more than minor environmental harm, or has a probability of causing
physical damage to the property of another in an amount exceeding one thousand
dollars.
NEW SECTION. Sec.
609. The provisions of
sections 607 and 608 of this act affecting civil penalties issued by the
department of ecology shall not apply to civil penalties for negligent
discharge of oil as authorized under RCW 90.56.330 or to civil penalties as
authorized under RCW 90.03.600 for unlawful use of water in violation of RCW
90.03.250 or 90.44.050.
NEW SECTION. Sec.
610. (1) Following a
consultative visit pursuant to RCW 49.17.250, the department of labor and
industries shall issue a report to the employer that the employer shall make
available to its employees. The report shall contain:
(a) A description of
the condition that is not in compliance and a specific citation to the
applicable law or rule;
(b) A statement of what
is required to achieve compliance;
(c) The date by which
the department requires compliance to be achieved;
(d) Notice of means to
contact technical assistance services provided by the department; and
(e) Notice of when,
where, and to whom a request to extend the time to achieve compliance for good
cause may be filed with the department.
(2) Following a
compliance inspection pursuant to RCW 49.17.120, the department of labor and
industries shall issue a citation for violations of industrial safety and
health standards. The citation shall not assess a penalty if the violations:
(a) Are determined not
to be of a serious nature;
(b) Have not been
previously cited;
(c) Are not willful;
and
(d) Do not have a
mandatory penalty under chapter 49.17 RCW.
NEW SECTION. Sec.
611. (1) If in the course of
any inspection or visit that is not a technical assistance visit, the
department of agriculture, fish and wildlife, health, licensing, or natural
resources becomes aware of conditions that are not in compliance with
applicable laws and rules enforced by the department and are not subject to
civil penalties as provided for in section 612 of this act, the department may issue
a notice of correction to the responsible party that shall include:
(a) A description of
the condition that is not in compliance and a specific citation to the
applicable law or rule;
(b) A statement of what
is required to achieve compliance;
(c) The date by which
the department requires compliance to be achieved;
(d) Notice of the means
to contact any technical assistance services provided by the department or
others; and
(e) Notice of when,
where, and to whom a request to extend the time to achieve compliance for good
cause may be filed with the department.
(2) A notice of
correction is not a formal enforcement action, is not subject to appeal, and is
a public record.
(3) If the department
issues a notice of correction, it shall not issue a civil penalty for the
violations identified in the notice of correction unless the responsible party
fails to comply with the notice.
NEW SECTION. Sec.
612. The department of
agriculture, fish and wildlife, health, licensing, or natural resources may
issue a civil penalty provided for by law without first issuing a notice of
correction if: (1) The person has previously been subject to an enforcement
action for the same or similar type of violation of the same statute or rule or
has been given previous notice of the same or similar type of violation of the
same statute or rule; or (2) compliance is not achieved by the date established
by the department in a previously issued notice of correction, if the
department has responded to any request for review of such date by reaffirming
the original date or establishing a new date; (3) the violation has a
probability of placing a person in danger of death or bodily harm, has a
probability of causing more than minor environmental harm, or has a probability
of causing physical damage to the property of another in an amount exceeding
one thousand dollars; or (4) the violation was committed by a business that
employed fifty or more employees on at least one day in each of the preceding
twelve months. In addition, the department of fish and wildlife may issue a
civil penalty provided for by law without first issuing a notice of correction
for a violation of any rule dealing with seasons, catch or bag limits, gear
types, or geographical areas for fish or wildlife removal, reporting, or
disposal.
NEW SECTION. Sec.
613. The date for compliance
established by the department of ecology, labor and industries, agriculture,
fish and wildlife, health, licensing, or natural resources pursuant to section
607, 610, or 611 of this act respectively shall provide for a reasonable time
to achieve compliance. Any person receiving a notice of correction pursuant to
section 607 or 611 of this act or a report or citation pursuant to section 610
of this act may request an extension of time to achieve compliance for good
cause from the issuing department. Requests shall be submitted to the issuing
department and responded to by the issuing department in writing in accordance
with procedures specified by the issuing department in the notice, report, or
citation.
NEW SECTION. Sec.
614. The departments of
revenue and labor and industries and the employment security department shall
undertake an educational program directed at those who have the most difficulty
in determining their tax or premium liability. The departments may rely on
information from internal data, trade associations, and businesses to determine
which entities should be selected. The educational programs may include, but
not be limited to, targeted informational fact sheets, self-audits, or
workshops, and may be presented individually by the agency or in conjunction
with other agencies.
NEW SECTION. Sec.
615. The department of
revenue, the department of labor and industries in respect to its duties in
Title 51 RCW, and the employment security department shall develop and
administer a pilot voluntary audit program. Voluntary audits can be requested
by businesses from any of these agencies according to guidelines established by
each agency. No penalty assessments may be made against participants in such a
program except when the agency determines that either a good faith effort has
not been made by the taxpayer or premium payer to comply with the law or that
the taxpayer has failed to remit previously collected sales taxes to the
state. The persons conducting the voluntary audit shall provide the business
undergoing the voluntary audit an audit report that describes errors or
omissions found and future reporting instructions. This program does not
relieve a business from past or future tax or premium obligations.
NEW SECTION. Sec.
616. The departments of
revenue and labor and industries and the employment security department shall
each review the penalties it issues related to taxes or premiums to determine
if they are consistent and provide for waivers in appropriate circumstances.
Each department shall report the results of its review to the legislature no
later than December 1, 1995.
NEW SECTION. Sec.
617. Nothing in this chapter
obligates a regulatory agency to conduct a technical assistance visit. The
state and officers or employees of the state shall not be liable for damages to
a person to the extent that liability is asserted to arise from providing
technical assistance, or if liability is asserted to arise from the failure of
the state or officers or employees of the state to provide technical assistance.
This chapter does not limit the authority of any regulatory agency to take any
enforcement action, other than a civil penalty, authorized by law. This
chapter shall not limit a regulatory agency's authority to issue a civil
penalty as authorized by law based upon a person's failure to comply with
specific terms and conditions of any permit or license issued by the agency to
that person.
NEW SECTION. Sec.
618. Agency rules, guidelines,
and procedures necessary to implement sections 601 through 615, 617, and 619
through 621 of this act shall be established and implemented expeditiously and
not later than July 1, 1996.
NEW SECTION. Sec.
619. If a regulatory agency
determines any part of this chapter to be in conflict with federal law or
program requirements, in conflict with federal requirements that are a
prescribed condition to the allocation of federal funds to the state, or in
conflict with the requirements for eligibility of employers in this state for
federal unemployment tax credits, the conflicting part of this chapter shall be
inoperative solely to the extent of the conflict. Any rules under this chapter
shall meet federal requirements that are a necessary condition to the receipt
of federal funds by the state or the granting of federal unemployment tax
credits to employers in this state.
NEW SECTION. Sec.
620. If notified by
responsible federal officials of any conflict of this chapter with federal law
or program requirements or with federal requirements that are a prescribed
condition to the allocation of federal funds to the state, the regulatory
agency notified of the conflict shall actively seek to resolve the conflict.
If the agency determines that the conflict cannot be resolved without loss of
benefits or authority to the state, the agency shall notify the governor, the
president of the senate, and the speaker of the house of representatives in writing
within thirty days of making that determination.
NEW SECTION. Sec.
621. (1) By January 31, 1996,
and by January 31st of each even-numbered year thereafter, the office of
financial management, after consulting with state regulatory agencies,
counties, and cities, and business, labor, and environmental organizations,
shall report to the governor and the legislature regarding the effects of
sections 601 through 615, 617, and 619 through 621 of this act on the
regulatory system in this state. The report shall document:
(a) Technical
assistance, including but not limited to technical assistance visits, provided
by state regulatory agencies consistent with this chapter;
(b) Any rules adopted,
guidelines developed, or training conducted to implement this chapter;
(c) Any changes in the
appropriation, allocation, or expenditure of regulatory agency resources to
implement this chapter;
(d) Any legal action
against state regulatory agencies for any alleged failure to comply with this
chapter, the costs to the state of the action, and the result;
(e) The extent to which
this chapter has resulted in either an increase or decrease in regulatory
agency use of civil penalties;
(f) The extent to which
this chapter has contributed to any change in voluntary compliance with state
statutes or rules;
(g) The extent to which
this chapter has improved the acceptability or effectiveness of state
regulatory procedures; and
(h) Any other
information considered by the office of financial management to be useful in
evaluating the effect of this chapter.
(2) This section shall
expire June 30, 2000.
NEW SECTION. Sec.
622. A new section is added
to chapter 43.12 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the commissioner of public
lands shall be in accordance with sections 611 and 612 of this act.
NEW SECTION. Sec.
623. A new section is added
to chapter 43.23 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the director or the
department of agriculture shall be in accordance with sections 611 and 612 of
this act.
NEW SECTION. Sec.
624. A new section is added
to chapter 43.24 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the director or the
department of licensing shall be in accordance with sections 611 and 612 of
this act.
NEW SECTION. Sec.
625. A new section is added
to chapter 43.30 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the commissioner or
supervisor of public lands shall be in accordance with sections 611 and 612 of
this act.
NEW SECTION. Sec.
626. A new section is added
to chapter 43.70 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the director or the
department shall be in accordance with sections 611 and 612 of this act.
NEW SECTION. Sec.
627. A new section is added
to chapter 43.300 RCW to read as follows:
Enforcement action
taken after the effective date of this section by the director or the
department shall be in accordance with sections 611 and 612 of this act.
Sec. 628. RCW 18.104.155 and 1993
c 387 s 21 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, the department of
ecology may assess a civil penalty for a violation of this chapter or rules or
orders of the department adopted or issued pursuant to it.
(2) There shall be
three categories of violations: Minor, serious, and major.
(a) A minor violation
is a violation that does not seriously threaten public health, safety, and the
environment. Minor violations include, but are not limited to:
(i) Failure to submit
completed start cards and well reports within the required time;
(ii) Failure to submit
variance requests before construction;
(iii) Failure to submit
well construction fees;
(iv) Failure to place a
well identification tag on a new well; and
(v) Minor or reparable
construction problems.
(b) A serious violation
is a violation that poses a critical or serious threat to public health,
safety, and the environment. Serious violations include, but are not limited
to:
(i) Improper well
construction;
(ii) Intentional and
improper location or siting of a well;
(iii) Construction of a
well without a required permit;
(iv) Violation of
decommissioning requirements;
(v) Repeated minor
violations; or
(vi) Construction of a
well by a person whose license has expired or has been suspended for not more
than ninety days.
(c) A major violation
is the construction of a well by a person:
(i) Without a license;
or
(ii) After the person's
license has been suspended for more than ninety days or revoked.
(3)(a) The penalty for
a minor violation shall be not less than one hundred dollars and not more than
five hundred dollars. Before the imposition of a penalty for a minor
violation, the department may issue an order of noncompliance to provide an
opportunity for mitigation or compliance.
(b) The penalty for a
serious violation shall be not less than five hundred dollars and not more than
five thousand dollars.
(c) The penalty for a
major violation shall be not less than five thousand dollars and not more than
ten thousand dollars.
(4) In determining the
appropriate penalty under subsection (3) of this section the department shall
consider whether the person:
(a) Has demonstrated a
general disregard for public health and safety through the number and magnitude
of the violations;
(b) Has demonstrated a
disregard for the well construction laws or rules in repeated or continuous
violations; or
(c) Knew or reasonably
should have known of circumstances that resulted in the violation.
(5) Penalties provided
for in this section shall be imposed pursuant to RCW 43.21B.300. The department
shall provide thirty days written notice of a violation as provided in RCW
43.21B.300(3).
(6) For informational
purposes, a copy of the notice of violation, resulting from the improper
construction of a well, that is sent to a water well contractor or water well
construction operator, shall also be sent by the department to the well owner.
(7) Penalties collected
by the department pursuant to this section shall be deposited in the
reclamation account established by chapter 89.16 RCW. Subject to legislative
appropriation, the penalties may be spent only for purposes related to the
restoration and enhancement of ground water resources in the state.
Sec. 629. RCW 49.17.180 and 1991 c
108 s 1 are each amended to read as follows:
(1) Except as
provided in section 610 of this act, any employer who willfully or
repeatedly violates the requirements of RCW 49.17.060, of any safety or health
standard promulgated under the authority of this chapter, of any existing rule
or regulation governing the conditions of employment promulgated by the
department, or of any order issued granting a variance under RCW 49.17.080 or
49.17.090 may be assessed a civil penalty not to exceed seventy thousand
dollars for each violation. A minimum penalty of five thousand dollars shall
be assessed for a willful violation.
(2) Any employer who
has received a citation for a serious violation of the requirements of RCW
49.17.060, of any safety or health standard promulgated under the authority of
this chapter, of any existing rule or regulation governing the conditions of
employment promulgated by the department, or of any order issued granting a
variance under RCW 49.17.080 or 49.17.090 as determined in accordance with
subsection (6) of this section, shall be assessed a civil penalty not to exceed
seven thousand dollars for each such violation.
(3) Any employer who
has received a citation for a violation of the requirements of RCW 49.17.060,
of any safety or health standard promulgated under this chapter, of any
existing rule or regulation governing the conditions of employment promulgated
by the department, or of any order issued granting a variance under RCW
49.17.080 or 49.17.090, where such violation is specifically determined not to
be of a serious nature as provided in subsection (6) of this section, may be
assessed a civil penalty not to exceed seven thousand dollars for each such
violation, unless such violation is determined to be de minimis.
(4) Any employer who
fails to correct a violation for which a citation has been issued under RCW
49.17.120 or 49.17.130 within the period permitted for its correction, which
period shall not begin to run until the date of the final order of the board of
industrial insurance appeals in the case of any review proceedings under this
chapter initiated by the employer in good faith and not solely for delay or
avoidance of penalties, may be assessed a civil penalty of not more than seven
thousand dollars for each day during which such failure or violation continues.
(5) Any employer who
violates any of the posting requirements of this chapter, or any of the posting
requirements of rules promulgated by the department pursuant to this chapter
related to employee or employee representative's rights to notice, including
but not limited to those employee rights to notice set forth in RCW 49.17.080,
49.17.090, 49.17.120, 49.17.130, 49.17.220(1) and 49.17.240(2), shall be
assessed a penalty not to exceed seven thousand dollars for each such
violation. Any employer who violates any of the posting requirements for the
posting of informational, educational, or training materials under the
authority of RCW 49.17.050(7), may be assessed a penalty not to exceed seven
thousand dollars for each such violation.
(6) For the purposes of
this section, a serious violation shall be deemed to exist in a work place if
there is a substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices, means,
methods, operations, or processes which have been adopted or are in use in such
work place, unless the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation.
(7) The director, or
his authorized representatives, shall have authority to assess all civil
penalties provided in this section, giving due consideration to the
appropriateness of the penalty with respect to the number of affected employees
of the employer being charged, the gravity of the violation, the size of the
employer's business, the good faith of the employer, and the history of
previous violations.
(8) Civil penalties
imposed under this chapter shall be paid to the director for deposit in the
supplemental pension fund established by RCW 51.44.033. Civil penalties may be
recovered in a civil action in the name of the department brought in the
superior court of the county where the violation is alleged to have occurred,
or the department may utilize the procedures for collection of civil penalties
as set forth in RCW 51.48.120 through 51.48.150.
Sec. 630. RCW 70.94.431 and 1991 c
199 s 311 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, and in addition
to or as an alternate to any other penalty provided by law, any person who
violates any of the provisions of chapter 70.94 RCW, chapter 70.120 RCW, or any
of the rules in force under such chapters may incur a civil penalty in an
amount not to exceed ten thousand dollars per day for each violation. Each
such violation shall be a separate and distinct offense, and in case of a
continuing violation, each day's continuance shall be a separate and distinct
violation.
Any person who fails to
take action as specified by an order issued pursuant to this chapter shall be
liable for a civil penalty of not more than ten thousand dollars for each day
of continued noncompliance.
(2) Penalties incurred
but not paid shall accrue interest, beginning on the ninety-first day following
the date that the penalty becomes due and payable, at the highest rate allowed
by RCW 19.52.020 on the date that the penalty becomes due and payable. If
violations or penalties are appealed, interest shall not begin to accrue until
the thirty-first day following final resolution of the appeal.
The maximum penalty
amounts established in this section may be increased annually to account for
inflation as determined by the state office of the economic and revenue
forecast council.
(3) Each act of
commission or omission which procures, aids or abets in the violation shall be
considered a violation under the provisions of this section and subject to the
same penalty. The penalties provided in this section shall be imposed pursuant
to RCW 43.21B.300.
(4) All penalties
recovered under this section by the department shall be paid into the state
treasury and credited to the air pollution control account established in RCW
70.94.015 or, if recovered by the authority, shall be paid into the treasury of
the authority and credited to its funds. If a prior penalty for the same
violation has been paid to a local authority, the penalty imposed by the
department under subsection (1) of this section shall be reduced by the amount
of the payment.
(5) To secure the
penalty incurred under this section, the state or the authority shall have a
lien on any vessel used or operated in violation of this chapter which shall be
enforced as provided in RCW 60.36.050.
(6) Public or private
entities that are recipients or potential recipients of department grants,
whether for air quality related activities or not, may have such grants
rescinded or withheld by the department for failure to comply with provisions
of this chapter.
(7) In addition to
other penalties provided by this chapter, persons knowingly under-reporting
emissions or other information used to set fees, or persons required to pay
emission or permit fees who are more than ninety days late with such payments
may be subject to a penalty equal to three times the amount of the original fee
owed.
(8) By January 1, 1992,
the department shall develop rules for excusing excess emissions from
enforcement action if such excess emissions are unavoidable. The rules shall
specify the criteria and procedures for the department and local air
authorities to determine whether a period of excess emissions is excusable in
accordance with the state implementation plan.
Sec. 631. RCW 70.105.080 and 1987
c 109 s 12 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, every person who
fails to comply with any provision of this chapter or of the rules adopted
thereunder shall be subjected to a penalty in an amount of not more than ten
thousand dollars per day for every such violation. Each and every such
violation shall be a separate and distinct offense. In case of continuing
violation, every day's continuance shall be a separate and distinct violation.
Every person who, through an act of commission or omission, procures, aids, or
abets in the violation shall be considered to have violated the provisions of
this section and shall be subject to the penalty herein provided.
(2) The penalty provided
for in this section shall be imposed pursuant to the procedures in RCW
43.21B.300.
Sec. 632. RCW 70.132.050 and 1982
c 113 s 5 are each amended to read as follows:
Except as provided
in sections 607 through 609 and 617 of this act, any person who violates
any provision of this chapter or any rule adopted under this chapter is subject
to a civil penalty not exceeding five hundred dollars for each violation. Each
day of a continuing violation is a separate violation.
Sec. 633. RCW 70.138.040 and 1987
c 528 s 4 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, any person who
violates any provision of a department regulation or regulatory order relating
to the management of special incinerator ash shall incur in addition to any
other penalty provided by law, a penalty in an amount up to ten thousand
dollars a day for every such violation. Each and every such violation shall be
a separate and distinct offense. ((If [In])) In case of
continuing violation, every day's continuance shall be a separate and distinct
violation. Every person who, through an act of commission or omission,
procures, aids, or abets in the violation shall be considered to have violated
the provisions of this section and shall be subject to the penalty herein
provided.
(2) The penalty
provided for in this section shall be imposed by a notice in writing, either by
certified mail with return receipt requested or by personal service, to the
person incurring the same from the department, describing the violation with
reasonable particularity. Within fifteen days after the notice is received,
the person incurring the penalty may apply in writing to the department for the
remission or mitigation of such penalty. Upon receipt of the application, the
department may remit or mitigate the penalty upon whatever terms the department
in its discretion deems proper, giving consideration to the degree of hazard
associated with the violation, provided the department deems such remission or
mitigation to be in the best interests of carrying out the purposes of this
chapter. The department shall have authority to ascertain the facts regarding
all such applications in such reasonable manner and under such rules as it may
deem proper.
(3) Any penalty imposed
by this section shall become due and payable thirty days after receipt of a
notice imposing the same unless application for remission or mitigation is made
or petition for review by the hearings board is filed. When such an
application for remission or mitigation is made, any penalty incurred pursuant
to this section shall become due and payable thirty days after receipt of
notice setting forth the disposition of such application.
(4) If the amount of
any penalty is not paid to the department within thirty days after it becomes
due and payable, the attorney general, upon the request of the director, shall
bring an action in the name of the state of Washington in the superior court of
Thurston county, or any county in which such violator may do business, to
recover such penalty. In all such actions, the procedure and rules of evidence
shall be the same as an ordinary civil action except as otherwise provided in
this chapter.
Sec. 634. RCW 86.16.081 and 1987 c
523 s 8 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, the attorney
general or the attorney for the local government shall bring such injunctive,
declaratory, or other actions as are necessary to ensure compliance with this
chapter.
(2) Any person who
fails to comply with this chapter shall also be subject to a civil penalty not
to exceed one thousand dollars for each violation. Each violation or each day
of noncompliance shall constitute a separate violation.
(3) The penalty
provided for in this section shall be imposed by a notice in writing, either by
certified mail with return receipt requested or by personal service, to the
person incurring the same from the department or local government, describing
the violation with reasonable particularity and ordering the act or acts
constituting the violation or violations to cease and desist or, in appropriate
cases, requiring necessary corrective action to be taken within a specific and
reasonable time.
(4) Any penalty imposed
pursuant to this section by the department shall be subject to review by the
pollution control hearings board. Any penalty imposed pursuant to this section
by local government shall be subject to review by the local government
legislative authority. Any penalty jointly imposed by the department and local
government shall be appealed to the pollution control hearings board.
Sec. 635. RCW 90.03.600 and 1987 c
109 s 157 are each amended to read as follows:
Except as provided
in sections 607 through 609 and 617 of this act, the power is granted to
the department of ecology to levy civil penalties of up to one hundred dollars
per day for violation of any of the provisions of this chapter and chapters
43.83B, 90.22, and 90.44 RCW, and rules, permits, and similar documents and
regulatory orders of the department of ecology adopted or issued pursuant to
such chapters. The procedures of RCW 90.48.144 shall be applicable to all
phases of the levying of a penalty as well as review and appeal of the same.
Sec. 636. RCW 90.48.144 and 1992 c
73 s 27 are each amended to read as follows:
Except as provided
in sections 607 through 609 and 617 of this act, every person who:
(1) Violates the terms
or conditions of a waste discharge permit issued pursuant to RCW 90.48.180 or
90.48.260 through 90.48.262, or
(2) Conducts a
commercial or industrial operation or other point source discharge operation
without a waste discharge permit as required by RCW 90.48.160 or 90.48.260
through 90.48.262, or
(3) Violates the
provisions of RCW 90.48.080, or other sections of this chapter or chapter 90.56
RCW or rules or orders adopted or issued pursuant to either of those chapters,
shall incur, in addition to any other penalty as provided by law, a penalty in
an amount of up to ten thousand dollars a day for every such violation. Each
and every such violation shall be a separate and distinct offense, and in case
of a continuing violation, every day's continuance shall be and be deemed to be
a separate and distinct violation. Every act of commission or omission which procures,
aids or abets in the violation shall be considered a violation under the
provisions of this section and subject to the penalty herein provided for. The
penalty amount shall be set in consideration of the previous history of the
violator and the severity of the violation's impact on public health and/or the
environment in addition to other relevant factors. The penalty herein provided
for shall be imposed pursuant to the procedures set forth in RCW 43.21B.300.
Sec. 637. RCW 90.58.210 and 1986 c
292 s 4 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, the attorney
general or the attorney for the local government shall bring such injunctive,
declaratory, or other actions as are necessary to insure that no uses are made
of the shorelines of the state in conflict with the provisions and programs of
this chapter, and to otherwise enforce the provisions of this chapter.
(2) Any person who
shall fail to conform to the terms of a permit issued under this chapter or who
shall undertake development on the shorelines of the state without first
obtaining any permit required under this chapter shall also be subject to a
civil penalty not to exceed one thousand dollars for each violation. Each
permit violation or each day of continued development without a required permit
shall constitute a separate violation.
(3) The penalty
provided for in this section shall be imposed by a notice in writing, either by
certified mail with return receipt requested or by personal service, to the
person incurring the same from the department or local government, describing
the violation with reasonable particularity and ordering the act or acts
constituting the violation or violations to cease and desist or, in appropriate
cases, requiring necessary corrective action to be taken within a specific and
reasonable time.
(4) Within thirty days
after the notice is received, the person incurring the penalty may apply in
writing to the department for remission or mitigation of such penalty. Upon
receipt of the application, the department or local government may remit or
mitigate the penalty upon whatever terms the department or local government in
its discretion deems proper. Any penalty imposed pursuant to this section by
the department shall be subject to review by the shorelines hearings board.
Any penalty imposed pursuant to this section by local government shall be
subject to review by the local government legislative authority. Any penalty jointly
imposed by the department and local government shall be appealed to the
shorelines hearings board.
Sec. 638. RCW 90.58.560 and 1983 c
138 s 2 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, a person who
violates RCW 90.58.550, or any rule adopted thereunder, is subject to a penalty
in an amount of up to five thousand dollars a day for every such violation.
Each and every such violation shall be a separate and distinct offense, and in
case of a continuing violation, every day's continuance shall be and be deemed
to be a separate and distinct violation. Every act of commission or omission
which procures, aids or abets in the violation shall be considered a violation
under the provisions of this section and subject to the penalty provided for in
this section.
(2) The penalty shall
be imposed by a notice in writing, either by certified mail with return receipt
requested or by personal service, to the person incurring the penalty from the
director or the director's representative describing such violation with
reasonable particularity. The director or the director's representative may,
upon written application therefor received within fifteen days after notice imposing
any penalty is received by the person incurring the penalty, and when deemed to
carry out the purposes of this chapter, remit or mitigate any penalty provided
for in this section upon such terms as he or she deems proper, and shall have
authority to ascertain the facts upon all such applications in such manner and
under such regulations as he or she may deem proper.
(3) Any person
incurring any penalty under this section may appeal the penalty to the hearings
board as provided for in chapter 43.21B RCW. Such appeals shall be filed
within thirty days of receipt of notice imposing any penalty unless an
application for remission or mitigation is made to the department. When an
application for remission or mitigation is made, such appeals shall be filed
within thirty days of receipt of notice from the director or the director's
representative setting forth the disposition of the application. Any penalty
imposed under this section shall become due and payable thirty days after
receipt of a notice imposing the same unless application for remission or
mitigation is made or an appeal is filed. When an application for remission or
mitigation is made, any penalty incurred hereunder shall become due and payable
thirty days after receipt of notice setting forth the disposition of the
application unless an appeal is filed from such disposition. Whenever an
appeal of any penalty incurred under this section is filed, the penalty shall
become due and payable only upon completion of all review proceedings and the issuance
of a final order confirming the penalty in whole or in part.
(4) If the amount of
any penalty is not paid to the department within thirty days after it becomes
due and payable, the attorney general, upon the request of the director, shall
bring an action in the name of the state of Washington in the superior court of
Thurston county or of any county in which such violator may do business, to
recover such penalty. In all such actions the procedure and rules of evidence
shall be the same as an ordinary civil action except as otherwise in this
chapter provided. All penalties recovered under this section shall be paid
into the state treasury and credited to the general fund.
Sec. 639. RCW 90.76.080 and 1989 c
346 s 9 are each amended to read as follows:
(1) Except as
provided in sections 607 through 609 and 617 of this act, a person who
fails to notify the department pursuant to tank notification requirements or
who submits false information is subject to a civil penalty not to exceed five
thousand dollars per violation.
(2) Except as
provided in sections 607 through 609 and 617 of this act, a person who
violates this chapter is subject to a civil penalty not to exceed five thousand
dollars for each tank per day of violation.
PART
VII
RULES REVIEW
NEW SECTION. Sec.
701. A new section is added
to chapter 34.05 RCW under the subchapter heading Part III to read as follows:
(1) Not later than June
30th of each year, each agency shall submit to the code reviser, according to
procedures and time lines established by the code reviser, rules that it
determines should be repealed by the expedited repeal procedures provided for in
this section. An agency shall file a copy of a preproposal notice of inquiry,
as provided in RCW 34.05.310(1), that identifies the rule as one that is
proposed for expedited repeal.
(2) An agency may
propose the expedited repeal of rules meeting one or more of the following
criteria:
(a) The statute on
which the rule is based has been repealed and has not been replaced by another
statute providing statutory authority for the rule;
(b) The statute on
which the rule is based has been declared unconstitutional by a court with
jurisdiction, there is a final judgment, and no statute has been enacted to
replace the unconstitutional statute;
(c) The rule is no
longer necessary because of changed circumstances; or
(d) Other rules of the
agency or of another agency govern the same activity as the rule, making the
rule redundant.
(3) The agency shall
also send a copy of the preproposal notice of inquiry to any person who has
requested notification of copies of proposals for the expedited repeal of rules
or of agency rule making. The preproposal notice of inquiry shall include a
statement that any person who objects to the repeal of the rule must file a
written objection to the repeal within thirty days after the preproposal notice
of inquiry is published. The notice of inquiry shall also include an
explanation of the reasons the agency believes the expedited repeal of the rule
is appropriate.
(4) The code reviser
shall publish all rules proposed for expedited repeal in a separate section of
a regular edition of the Washington state register or in a special edition of
the Washington state register. The publication shall be not later than July
31st of each year, or in the first register published after that date.
(5) Any person may file
a written objection to the expedited repeal of a rule. The notice shall be
filed with the agency rules coordinator within thirty days after the notice of
inquiry has been published in the Washington state register. The written
objection need not state any reason for objecting to the expedited repeal of
the rule.
(6) If no written
objections to the expedited repeal of a rule are filed with the agency within
thirty days after the preproposal notice of inquiry is published, the agency
may enter an order repealing the rule without further notice or an opportunity
for a public hearing. The order shall be published in the manner required by
this chapter for any other order of the agency adopting, amending, or repealing
a rule. If a written objection to the expedited repeal of the rule is filed
with the agency within thirty days after the notice of inquiry has been
published, the preproposal notice of inquiry published pursuant to this section
shall be considered a preproposal notice of inquiry for the purposes of RCW
34.05.310(1) and the agency may initiate rule adoption proceedings in
accordance with the provisions of this chapter.
Sec. 702. RCW 34.05.230 and 1988 c
288 s 203 are each amended to read as follows:
(1) If the adoption of
rules is not feasible and practicable, an agency is encouraged to advise the
public of its current opinions, approaches, and likely courses of action by
means of interpretive or policy statements. Current interpretive and policy
statements are advisory only. An agency is encouraged to convert long-standing
interpretive and policy statements into rules.
(2) A person may
petition an agency requesting the conversion of interpretive and policy
statements into rules. Upon submission, the agency shall notify the joint
administrative rules review committee of the petition. Within sixty days after
submission of a petition, the agency shall either deny the petition in writing,
stating its reasons for the denial, or initiate rule-making proceedings in
accordance with this chapter.
(3) Each agency
shall maintain a roster of interested persons, consisting of persons who have
requested in writing to be notified of all interpretive and policy statements
issued by that agency. Each agency shall update the roster once each year and
eliminate persons who do not indicate a desire to continue on the roster.
Whenever an agency issues an interpretive or policy statement, it shall send a
copy of the statement to each person listed on the roster. The agency may
charge a nominal fee to the interested person for this service.
Sec. 703. RCW 34.05.330 and 1988 c
288 s 305 are each amended to read as follows:
(1) Any person
may petition an agency requesting the adoption, amendment, or repeal of any
rule. ((Each agency may)) The office of financial management shall
prescribe by rule the ((form)) format for such petitions and the
procedure for their submission, consideration, and disposition and provide a
standard form that may be used to petition any agency. Within sixty days
after submission of a petition, the agency shall (((1))) either (a)
deny the petition in writing, stating (i) its reasons for the denial, specifically
addressing the concerns raised by the petitioner, and, where appropriate, (ii)
the alternative means by which it will address the concerns raised by the
petitioner, or (((2))) (b) initiate rule-making proceedings
in accordance with this chapter.
(2) If an agency
denies a petition to repeal or amend a rule submitted under subsection (1) of
this section, the petitioner, within thirty days of the denial, may appeal the
denial to the governor. The governor shall immediately file notice of the
appeal with the code reviser for publication in the Washington state register.
Within forty-five days after receiving the appeal, the governor shall either
(a) deny the petition in writing, stating (i) his or her reasons for the
denial, specifically addressing the concerns raised by the petitioner, and,
(ii) where appropriate, the alternative means by which he or she will address
the concerns raised by the petitioner; (b) for agencies listed in RCW
43.17.010, direct the agency to initiate rule-making proceedings in accordance
with this chapter; or (c) for agencies not listed in RCW 43.17.010, recommend
that the agency initiate rule-making proceedings in accordance with this
chapter. The governor's response to the appeal shall be published in the
Washington state register and copies shall be submitted to the chief clerk of
the house of representatives and the secretary of the senate.
(3) In petitioning
for repeal or amendment of a rule under this section, a person is encouraged to
address, among other concerns:
(a) Whether the rule
is authorized;
(b) Whether the rule
is needed;
(c) Whether the rule
conflicts with or duplicates other federal, state, or local laws;
(d) Whether
alternatives to the rule exist that will serve the same purpose at less cost;
(e) Whether the rule
applies differently to public and private entities;
(f) Whether the rule
serves the purposes for which it was adopted;
(g) Whether the
costs imposed by the rule are unreasonable;
(h) Whether the rule
is clearly and simply stated; and
(i) Whether the rule
is different than a federal law applicable to the same activity or subject
matter without adequate justification.
(4) The business
assistance center and the office of financial management shall coordinate
efforts among agencies to inform the public about the existence of this rules
review process.
(5) The office of
financial management shall initiate the rule making required by subsection (1)
of this section by September 1, 1995.
NEW SECTION. Sec.
704. A new section is added
to chapter 1.08 RCW to read as follows:
(1) The code reviser
shall compile and publish on a quarterly basis a report on state agency
rule-making activity. The report shall summarize the following information by
agency and by type of activity for new, amended, and repealed rules adopted by
state agencies pursuant to chapter 34.05 RCW:
(a) The number adopted,
proposed for adoption, and withdrawn;
(b) The number adopted
as emergency rules;
(c) The number adopted
in order to comply with federal statute, with federal rules or standards, and
with recently enacted state statutes;
(d) The number adopted
at the request of a nongovernmental entity;
(e) The number adopted
on an agency's own initiative;
(f) The number adopted
in order to clarify, streamline, or reform agency procedures;
(g) The number of
petitions for review of rules received by agencies;
(h) The number of rules
appealed to superior court; and
(i) The number adopted
using negotiated rule making, pilot rule making, or other alternative
rule-making mechanisms.
(2) For purposes of the
report required by this section, each Washington State Register filing section
shall be considered as a separate rule. The code reviser may adopt rules
necessary to implement this section. To the maximum extent practicable, the
code reviser shall use information supplied on forms provided by state agencies
pursuant to chapter 34.05 RCW to prepare the report required by this section.
PART
VIII
JUDICIAL REVIEW
Sec. 801. RCW 34.05.370 and 1994 c
249 s 2 are each amended to read as follows:
(1) Each agency shall
maintain an official rule-making file for each rule that it (a) proposes by
publication in the state register, or (b) adopts. The file and materials
incorporated by reference shall be available for public inspection.
(2) The agency
rule-making file shall contain all of the following:
(a) Copies of all
publications in the state register with respect to the rule or the proceeding
upon which the rule is based;
(b) Copies of any
portions of the agency's public rule-making docket containing entries relating
to the rule or the proceeding on which the rule is based;
(c) All written
petitions, requests, submissions, and comments received by the agency and all
other written material regarded by the agency as important to adoption of the
rule or the proceeding on which the rule is based;
(d) Any official
transcript of oral presentations made in the proceeding on which the rule is
based or, if not transcribed, any tape recording or stenographic record of
them, and any memorandum prepared by a presiding official summarizing the
contents of those presentations;
(e) ((The concise
explanatory statement required by RCW 34.05.355;
(f))) All petitions for exceptions to, amendment of,
or repeal or suspension of, the rule;
(((g))) (f)
Citations to data, factual information, studies, or reports on which the agency
relies in the adoption of the rule, indicating where such data, factual
information, studies, or reports are available for review by the public, but
this subsection (2)(f) does not require the agency to include in the
rule-making file any data, factual information, studies, or reports gathered
pursuant to chapter 19.85 RCW that can be identified to a particular business;
(((h))) (g)
The ((written summary and response)) concise explanatory statement
required by RCW 34.05.325(6); and
(((i))) (h)
Any other material placed in the file by the agency.
(3) Internal agency
documents are exempt from inclusion in the rule-making file under subsection
(2) of this section to the extent they constitute preliminary drafts, notes,
recommendations, and intra-agency memoranda in which opinions are expressed or
policies formulated or recommended, except that a specific document is not
exempt from inclusion when it is publicly cited by an agency in connection with
its decision.
(4) Upon judicial
review, the file required by this section constitutes the official agency
rule-making file with respect to that rule. Unless otherwise required by
another provision of law, the official agency rule-making file need not be the
exclusive basis for agency action on that rule.
Sec. 802. RCW 34.05.570 and 1989 c
175 s 27 are each amended to read as follows:
(1) Generally. Except
to the extent that this chapter or another statute provides otherwise:
(a) The burden of
demonstrating the invalidity of agency action is on the party asserting
invalidity;
(b) The validity of
agency action shall be determined in accordance with the standards of review
provided in this section, as applied to the agency action at the time it was
taken;
(c) The court shall
make a separate and distinct ruling on each material issue on which the court's
decision is based; and
(d) The court shall
grant relief only if it determines that a person seeking judicial relief has
been substantially prejudiced by the action complained of.
(2) Review of rules.
(a) A rule may be reviewed by petition for declaratory judgment filed pursuant
to this subsection or in the context of any other review proceeding under this
section. In an action challenging the validity of a rule, the agency shall be
made a party to the proceeding.
(b) The validity of any
rule may be determined upon petition for a declaratory judgment addressed to
the superior court of Thurston county, when it appears that the rule, or its
threatened application, interferes with or impairs or immediately threatens to
interfere with or impair the legal rights or privileges of the petitioner. The
declaratory judgment order may be entered whether or not the petitioner has
first requested the agency to pass upon the validity of the rule in question.
(c) In a proceeding
involving review of a rule, the court shall declare the rule invalid only if it
finds that: ((it)) The rule violates constitutional
provisions((,)); the rule exceeds the statutory authority of the
agency((,)); the rule was adopted without compliance with
statutory rule-making procedures((, or could not conceivably have been the
product of a rational decision-maker)); or the rule is arbitrary and
capricious.
(3) Review of agency
orders in adjudicative proceedings. The court shall grant relief from an
agency order in an adjudicative proceeding only if it determines that:
(a) The order, or the
statute or rule on which the order is based, is in violation of constitutional
provisions on its face or as applied;
(b) The order is
outside the statutory authority or jurisdiction of the agency conferred by any
provision of law;
(c) The agency has
engaged in unlawful procedure or decision-making process, or has failed to
follow a prescribed procedure;
(d) The agency has
erroneously interpreted or applied the law;
(e) The order is not
supported by evidence that is substantial when viewed in light of the whole
record before the court, which includes the agency record for judicial review,
supplemented by any additional evidence received by the court under this chapter;
(f) The agency has not
decided all issues requiring resolution by the agency;
(g) A motion for
disqualification under RCW 34.05.425 or 34.12.050 was made and was improperly
denied or, if no motion was made, facts are shown to support the grant of such a
motion that were not known and were not reasonably discoverable by the
challenging party at the appropriate time for making such a motion;
(h) The order is
inconsistent with a rule of the agency unless the agency explains the
inconsistency by stating facts and reasons to demonstrate a rational basis for
inconsistency; or
(i) The order is
arbitrary or capricious.
(4) Review of other
agency action.
(a) All agency action
not reviewable under subsection (2) or (3) of this section shall be reviewed
under this subsection.
(b) A person whose
rights are violated by an agency's failure to perform a duty that is required
by law to be performed may file a petition for review pursuant to RCW
34.05.514, seeking an order pursuant to this subsection requiring performance.
Within twenty days after service of the petition for review, the agency shall
file and serve an answer to the petition, made in the same manner as an answer
to a complaint in a civil action. The court may hear evidence, pursuant to RCW
34.05.562, on material issues of fact raised by the petition and answer.
(c) Relief for persons
aggrieved by the performance of an agency action, including the exercise of
discretion, or an action under (b) of this subsection can be granted only if
the court determines that the action is:
(i) Unconstitutional;
(ii) Outside the
statutory authority of the agency or the authority conferred by a provision of
law;
(iii) Arbitrary or
capricious; or
(iv) Taken by persons
who were not properly constituted as agency officials lawfully entitled to take
such action.
Sec. 803. RCW 34.05.534 and 1988 c
288 s 507 are each amended to read as follows:
A person may file a
petition for judicial review under this chapter only after exhausting all administrative
remedies available within the agency whose action is being challenged, or
available within any other agency authorized to exercise administrative review,
except:
(1) A petitioner for
judicial review of a rule need not have participated in the rule-making
proceeding upon which that rule is based, ((or)) have petitioned for its
amendment or repeal, or have appealed a petition for amendment or repeal to
the governor;
(2) A petitioner for
judicial review need not exhaust administrative remedies to the extent that
this chapter or any other statute states that exhaustion is not required; or
(3) The court may
relieve a petitioner of the requirement to exhaust any or all administrative
remedies upon a showing that:
(a) The remedies would
be patently inadequate;
(b) The exhaustion of
remedies would be futile; or
(c) The grave
irreparable harm that would result from having to exhaust administrative
remedies would clearly outweigh the public policy requiring exhaustion of
administrative remedies.
PART
IX
EQUAL ACCESS TO JUSTICE
NEW SECTION. Sec.
901. The legislature finds
that certain individuals, smaller partnerships, smaller corporations, and other
organizations may be deterred from seeking review of or defending against an
unreasonable agency action because of the expense involved in securing the
vindication of their rights in administrative proceedings. The legislature
further finds that because of the greater resources and expertise of the state
of Washington, individuals, smaller partnerships, smaller corporations, and
other organizations are often deterred from seeking review of or defending
against state agency actions because of the costs for attorneys, expert
witnesses, and other costs. The legislature therefore adopts this equal access
to justice act to ensure that these parties have a greater opportunity to
defend themselves from inappropriate state agency actions and to protect their
rights.
NEW SECTION. Sec.
902. A new section is added
to chapter 4.84 RCW to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
sections 902 through 904 of this act.
(1) "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.
(2) "Agency
action" means agency action as defined by chapter 34.05 RCW.
(3) "Fees and
other expenses" includes the reasonable expenses of expert witnesses, the
reasonable cost of a study, analysis, engineering report, test, or project that
is found by the court to be necessary for the preparation of the party's case,
and reasonable attorneys' fees. Reasonable attorneys' fees shall be based on
the prevailing market rates for the kind and quality of services furnished,
except that (a) no expert witness shall be compensated at a rate in excess of
the highest rates of compensation for expert witnesses paid by the state of
Washington, and (b) attorneys' fees shall not be awarded in excess of one
hundred fifty dollars per hour unless the court determines that an increase in
the cost of living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher fee.
(4) "Judicial
review" means a judicial review as defined by chapter 34.05 RCW.
(5) "Qualified
party" means (a) an individual whose net worth did not exceed one million
dollars at the time the initial petition for judicial review was filed or (b) a
sole owner of an unincorporated business, or a partnership, corporation,
association, or organization whose net worth did not exceed five million
dollars at the time the initial petition for judicial review was filed, except
that an organization described in section 501(c)(3) of the federal internal
revenue code of 1954 as exempt from taxation under section 501(a) of the code
and a cooperative association as defined in section 15(a) of the agricultural
marketing act (12 U.S.C. 1141J(a)), may be a party regardless of the net worth
of such organization or cooperative association.
NEW SECTION. Sec.
903. A new section is added
to chapter 4.84 RCW to read as follows:
(1) Except as otherwise
specifically provided by statute, a court shall award a qualified party that
prevails in a judicial review of an agency action fees and other expenses,
including reasonable attorneys' fees, unless the court finds that the agency
action was substantially justified or that circumstances make an award unjust.
A qualified party shall be considered to have prevailed if the qualified party
obtained relief on a significant issue that achieves some benefit that the
qualified party sought.
(2) The amount awarded
a qualified party under subsection (1) of this section shall not exceed
twenty-five thousand dollars. Subsection (1) of this section shall not apply
unless all parties challenging the agency action are qualified parties. If two
or more qualified parties join in an action, the award in total shall not
exceed twenty-five thousand dollars. The court, in its discretion, may reduce
the amount to be awarded pursuant to subsection (1) of this section, or deny
any award, to the extent that a qualified party during the course of the
proceedings engaged in conduct that unduly or unreasonably protracted the final
resolution of the matter in controversy.
NEW SECTION. Sec.
904. A new section is added
to chapter 4.84 RCW to read as follows:
Fees and other expenses
awarded under sections 902 and 903 of this act shall be paid by the agency over
which the party prevails from operating funds appropriated to the agency within
sixty days. Agencies paying fees and other expenses pursuant to sections 902
and 903 of this act shall report all payments to the office of financial
management within five days of paying the fees and other expenses. Fees and
other expenses awarded by the court shall be subject to the provisions of
chapter 39.76 RCW and shall be deemed payable on the date the court announces
the award.
NEW SECTION. Sec.
905. A new section is added
to chapter 43.88 RCW to read as follows:
The office of financial
management shall report annually to the legislature on the amount of fees and
other expenses awarded during the preceding fiscal year pursuant to sections
902 through 904 of this act. The report shall describe the number, nature, and
amount of the awards, the claims involved in the controversy, and other
relevant information that may aid the legislature in evaluating the scope and
impact of the awards.
PART
X
BUSINESS LICENSE INFORMATION
NEW SECTION. Sec.
1001. The master license system
of the department of licensing is a proven, progressive program for one-stop
state licensing. This flexible system should be expanded into a state-wide
shared data base to facilitate combined licensing processes at local, state,
and federal levels as a benefit to the business community through improved
customer service.
In order to achieve
this goal the department of licensing should expand the license information
management system, offered by the master license system, to include local and
federal licensing requirements, making this information readily accessible at
appropriate locations throughout the state. In addition, the department should
develop a pilot program expanding the capabilities of the master licensing
system to local and federal levels in an efficient manner; and provide access
to the expanded master licensing system for all jurisdictions within the state
of Washington.
NEW SECTION. Sec.
1002. (1) The department shall
solicit advice and recommendations for planning and establishing policy for a
combined licensing pilot project and license information management system.
Advice and assistance shall be solicited from:
(a) The business
assistance center;
(b) The office of the
secretary of state;
(c) The department of
revenue;
(d) The department of
labor and industries;
(e) The employment
security department;
(f) The Washington
state association of counties;
(g) The association of
Washington cities;
(h) The department of
information services;
(i) The small business
improvement council; and
(j) The cities chosen
under section 1005 of this act.
(2) The department may
create ad hoc advisory committees for purposes of subsection (1) of this
section.
(3) This section shall
expire July 1, 1997.
NEW SECTION. Sec.
1003. By December 31, 1995, the
department of licensing, with advice and recommendations provided in section
1002 of this act, shall develop a plan for the state-wide license information
management system. This plan shall include:
(1) The scope and
phases of the project, listing areas of responsibility for each phase;
(2) Analysis of the
costs and benefits, as well as funding sources, staffing levels, and technological
issues involved in completing the project; and
(3) A computer
prototype for demonstration of the new license information system to interested
jurisdictions.
NEW SECTION. Sec.
1004. By December 31, 1995, the
department of licensing, with advice and recommendations provided in section
1002 of this act, shall develop a plan for a pilot combined licensing program.
The plan shall include:
(1) The scope and
phases of the project, listing areas of responsibility for each phase;
(2) Analysis of the
costs and benefits, as well as funding sources, staffing levels, and
technological issues involved in completing the project;
(3) The use of the
state unified business identifier as the key number for identifying persons and
businesses, for licensing purposes, throughout local, state and, if
appropriate, federal levels of government;
(4) Steps leading to
the expansion of the department's master license automated system, to be used
for combined licensing processes at selected local service jurisdictions;
(5) Development of
common technology for information dissemination, access, and delivery at
appropriate service locations through the master license system, including
remote field input of master business application information;
(6) Adoption of the
state's master business application to become the standard for all registration
or licensing applications used at local and state levels, and federal levels
where appropriate; and
(7) Necessary training
for staff at service locations.
NEW SECTION. Sec.
1005. By December 31, 1996, the
department of licensing shall:
(1) Expand the license
information management system, in order to provide on-line local, state, and
federal business registration and licensing requirements;
(2) Include specific
licensing requirements for local jurisdictions in the license information
packet;
(3) Provide the
capability to distribute the information packets at the appropriate service
locations;
(4) Provide the ability
for local jurisdictions to access, store, and update the license requirements
data of their own jurisdiction; and
(5) Provide training to
all organizations providing services using the master license information
management system.
NEW SECTION. Sec.
1006. A new section is added
to chapter 19.02 RCW to read as follows:
(1) By June 30, 1997,
the department shall have a pilot combined licensing project fully operational
in at least two cities within the state of Washington, with at least one city
west of the Cascade mountains and at least one city east of the Cascade
mountains.
(2) By January 31,
1997, the department shall make an interim report to the legislature on the
progress of the pilot combined licensing project.
(3) By January 31,
1998, the department shall have evaluated the pilot combined licensing project
and reported to the legislature with a plan for transition of the pilot project
into an ongoing program. The transition plan shall include cost, funding
sources, and staffing needs for the ongoing program.
(4) Upon approval and
continued funding of the transition plan by the legislature under this section,
the master license system shall implement a transition from the pilot program
to the ongoing program.
Sec. 1007. RCW 19.02.075 and 1992 c
107 s 2 are each amended to read as follows:
(1) ((Beginning June
1, 1992,)) The department shall collect a fee of fifteen dollars on
each master application ((and five dollars on each license information
packet. From June 1, 1992, to June 30, 1992, twelve dollars of the master
application fee shall be deposited in the general fund and three dollars
deposited in the master license fund. Thereafter,)). The entire
master application fee shall be deposited in the master license fund. ((License
information packet fees shall be deposited in the general fund.))
(2) ((Beginning July
1, 1992,)) The department shall collect a fee of nine dollars on
each renewal application. Renewal application fees shall be deposited in the
master license fund.
PART
XI
MISCELLANEOUS
NEW SECTION. Sec.
1101. Part headings as used in
this act do not constitute any part of the law.
NEW SECTION. Sec.
1102. Sections 201, 301 through
305, 401 through 405, and 801 of this act shall apply to all rule making for
which a statement of proposed rule making under RCW 34.05.320 is filed after
the effective date of this section.
NEW SECTION. Sec.
1103. Sections 601 through 615,
617, and 619 through 621 of this act shall constitute a new chapter in Title 43
RCW.
NEW SECTION. Sec.
1104. If specific funding for
the purposes of sections 704 and 1001 through 1007 of this act, referencing
this act by bill and section numbers, is not provided by June 30, 1995, in the
omnibus appropriations act, sections 704 and 1001 through 1007 of this act
shall be null and void.
NEW
SECTION. Sec. 1105. If any provision of this
act or its application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other persons or
circumstances is not affected.
