AN ACT Relating to
clarifying and streamlining procedures of the joint administrative rules review
committee; amending RCW 34.05.330, 34.05.610, 34.05.620, 34.05.630, 34.05.640,
34.05.655, and 34.05.660; and repealing RCW 34.05.645.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec. 1. RCW 34.05.330 and 1995 c
403 s 703 are each amended to read as follows:
(1) Any person may
petition an agency requesting the adoption, amendment, or repeal of any rule.
The office of financial management shall prescribe by rule the 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
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 (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, and the petition alleges that the rule is not within the intent
of the legislature or was not adopted in accordance with all applicable
provisions of law, the person may petition for review of the rule by the joint
administrative rules review committee under RCW 34.05.655.
(3) 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))) (4)
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; and
(j) Whether the rule
was adopted according to all applicable provisions of law.
(((4))) (5)
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))) (6)
The office of financial management shall initiate the rule making required by
subsection (1) of this section by September 1, 1995.
Sec. 2. RCW 34.05.610 and 1988 c
288 s 601 are each amended to read as follows:
(1) There is hereby
created a joint administrative rules review committee which shall be a bipartisan
committee consisting of four senators and four representatives from the state
legislature. The senate members of the committee shall be appointed by the
president of the senate, and the house members of the committee shall be
appointed by the speaker of the house. Not more than two members from each
house may be from the same political party. The appointing authorities
shall also appoint one alternate member from each caucus of each house.
All appointments to the committee are subject to approval by the caucuses to
which the appointed members belong.
(2) Members and
alternates shall be appointed as soon as possible after the legislature
convenes in regular session in an odd-numbered year, and their terms shall
extend until their successors are appointed and qualified at the next regular
session of the legislature in an odd-numbered year or until such ((members))
persons no longer serve in the legislature, whichever occurs first.
Members and alternates may be reappointed to ((a)) the
committee.
(3) The president of
the senate shall appoint the chairperson in even-numbered years and the vice
chairperson in odd-numbered years from among committee membership. The speaker
of the house shall appoint the chairperson in odd-numbered years and the vice
chairperson in even-numbered years from among committee membership. Such
appointments shall be made in January of each year as soon as possible after a
legislative session convenes.
(4) The chairperson
of the committee shall cause all meeting notices and committee documents to be
sent to the members and alternates. A vacancy ((on the committee))
shall be filled by appointment of a legislator from the same political party as
the original appointment. The appropriate appointing authority shall make the
appointment within thirty days of the vacancy occurring.
Sec. 3. RCW 34.05.620 and 1994 c
249 s 17 are each amended to read as follows:
((Whenever a
majority of the members of the rules review committee determines)) If
the rules review committee finds by a majority vote of its members that a
proposed rule is not within the intent of the legislature as expressed in the
statute which the rule implements, or that an agency may not be adopting a
proposed rule in accordance with all applicable provisions of law, ((including
section 4 of this act and chapter 19.85 RCW,)) the committee shall give the
affected agency written notice of its decision. The notice shall be given at
least seven days prior to any hearing scheduled for consideration of or
adoption of the proposed rule pursuant to RCW 34.05.320. The notice shall
include a statement of the review committee's findings and the reasons
therefor. When the agency holds a hearing on the proposed rule, the agency
shall consider the review committee's decision.
Sec. 4. RCW 34.05.630 and 1994 c
249 s 18 are each amended to read as follows:
(1) All rules required
to be filed pursuant to RCW 34.05.380, and emergency rules adopted pursuant to
RCW 34.05.350, are subject to selective review by the legislature.
(2) ((The rules
review committee may review an agency's use of policy statements, guidelines,
and issuances that are of general applicability, or their equivalents to
determine whether or not an agency has failed to adopt a rule or whether they
are within the intent of the legislature as expressed by the governing statute))
All agency policy and interpretive statements are subject to selective
review by the legislature.
(3) If the rules review
committee finds by a majority vote of its members: (a) That an existing rule
is not within the intent of the legislature as expressed by the statute which
the rule implements, (b) that the rule has not been adopted in accordance with
all applicable provisions of law, ((including section 4 of this act if the
rule was adopted after the effective date of section 4 of this act and chapter
19.85 RCW,)) or (c) that an agency is using a policy or
interpretive statement((, guideline, or issuance)) in place of a
rule, ((or (d) that the policy statement, guideline, or issuance is outside
of legislative intent,)) the agency affected shall be notified of such
finding and the reasons therefor. Within thirty days of the receipt of the
rules review committee's notice, the agency shall file notice of a hearing on
the rules review committee's finding with the code reviser and mail notice to
all persons who have made timely request of the agency for advance notice of
its rule-making proceedings as provided in RCW 34.05.320. The agency's notice
shall include the rules review committee's findings and reasons therefor, and
shall be published in the Washington state register in accordance with the
provisions of chapter 34.08 RCW.
(4) The agency shall
consider fully all written and oral submissions regarding (a) whether the rule
in question is within the intent of the legislature as expressed by the statute
which the rule implements, (b) whether the rule was adopted in accordance with
all applicable provisions of law, ((including section 4 of this act if the
rule was adopted after the effective date of section 4 of this act and chapter
19.85 RCW,)) or (c) whether the agency is using a policy or
interpretive statement((, guideline, or issuance)) in place of a
rule((, or (d) whether the policy statement, guideline, or issuance is
within the legislative intent)).
Sec. 5. RCW 34.05.640 and 1994 c
249 s 19 are each amended to read as follows:
(1) Within seven days
of an agency hearing held after notification of the agency by the rules review
committee pursuant to RCW 34.05.620 or 34.05.630, the affected agency shall
notify the committee of its intended action on a proposed or existing
rule to which the committee objected or on a committee finding of the agency's
failure to adopt rules. ((If the rules review committee determines, by a
majority vote of its members, that the agency has failed to provide for the
required hearings or notice of its action to the committee, the committee may
file notice of its objections, together with a concise statement of the reasons
therefor, with the code reviser within thirty days of such determination.))
(2) If the rules review
committee finds((,)) by a majority vote of its members: (a) That the
proposed or existing rule in question ((has not been)) will not be
modified, amended, withdrawn, or repealed by the agency so as to conform with
the intent of the legislature, ((or)) (b) that an existing rule was not
adopted in accordance with all applicable provisions of law, ((including
section 4 of this act if the rule was adopted after the effective date of
section 4 of this act and chapter 19.85 RCW,)) or (c) that the agency ((is
using a policy statement, guideline, or issuance in place of a rule, or that
the policy statement, guideline, or issuance is outside of the legislative
intent)) will not replace the policy or interpretive statement with a
rule, the rules review committee may, within thirty days from notification
by the agency of its intended action, file with the code reviser notice
of its objections together with a concise statement of the reasons therefor.
Such notice and statement shall also be provided to the agency by the rules
review committee.
(3) If the rules review
committee makes an adverse finding regarding an existing rule under
subsection (2) (a) or (b) of this section, the committee may, by a
majority vote of its members, recommend suspension of ((an existing)) the
rule. Within seven days of such vote the committee shall transmit to the
appropriate standing committees of the legislature, the governor, the code
reviser, and the agency written notice of its objection and recommended
suspension and the concise reasons therefor. Within thirty days of receipt of
the notice, the governor shall transmit to the committee, the code reviser, and
the agency written approval or disapproval of the recommended suspension. If
the suspension is approved by the governor, it is effective from the date of
that approval and continues until ninety days after the expiration of the next
regular legislative session.
(4) ((If the
governor disapproves the recommendation of the rules review committee to
suspend the rule, the transmittal of such decision, along with the findings of
the rules review committee, shall be treated by the agency as a petition by the
rules review committee to repeal the rule under RCW 34.05.330.
(5))) The code reviser shall publish transmittals
from the rules review committee or the governor issued pursuant to subsection
(((1),)) (2)((,)) or (3) of this section in the Washington state
register and shall publish in the next supplement and compilation of the
Washington Administrative Code a reference to the committee's objection or
recommended suspension and the governor's action on it and to the issue of the
Washington state register in which the full text thereof appears.
(((6))) (5)
The reference shall be removed from a rule published in the Washington
Administrative Code if a subsequent adjudicatory proceeding determines that the
rule is within the intent of the legislature or was adopted in accordance with
all applicable laws, whichever was the objection of the rules review committee.
NEW SECTION. Sec.
6. RCW 34.05.645 and 1995 c 403 s 501 are
each repealed.
Sec. 7. RCW 34.05.655 and 1995 c
403 s 502 are each amended to read as follows:
(1) Any person may
petition the rules review committee for a review of ((that rule)) a
proposed or existing rule or a policy or interpretive statement. 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) A person may
petition the rules review committee under subsection (1) of this section
requesting review of an existing rule only if the person has petitioned the
agency to amend or repeal the rule under RCW 34.05.330(1) and such petition was
denied.
(3) A petition for
review of a rule under subsection (1) of this section shall:
(a) Identify with
specificity the proposed or existing rule to be reviewed;
(b) Identify the
specific statute identified by the agency as authorizing the rule, the specific
statute which the rule interprets or implements, and, if applicable, the
specific statute the department is alleged not to have followed in adopting the
rule;
(c) State the
reasons why the petitioner believes that the rule is not within the intent of
the legislature, or that its adoption was not or is not in accordance with law,
and provide documentation to support these statements;
(d) Identify any
known judicial action regarding the rule or statutes identified in the
petition.
A petition to review
an existing rule shall also include a copy of the agency's denial of a petition
to amend or repeal the rule issued under RCW 34.05.330(1) and, if available, a
copy of the governor's denial issued under RCW 34.05.330(3).
(4) A petition for
review of a policy or interpretive statement under subsection (1) of this
section shall:
(a) Identify the
specific statement to be reviewed;
(b) Identify the
specific statute which the rule interprets or implements;
(c) State the
reasons why the petitioner believes that the statement meets the definition of
a rule under RCW 34.05.010 and should have been adopted according to the
procedures of this chapter;
(d) Identify any
known judicial action regarding the statement or statutes identified in the
petition.
(5) 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.
*Sec. 8. 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.
*Sec. 8
was vetoed. See message at end of chapter.
