|Passed by the House February 11, 2004|
Speaker of the House of Representatives
Passed by the Senate March 3, 2004
President of the Senate
I, Richard Nafziger, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is HOUSE BILL 2683 as passed by the House of Representatives and the Senate on the dates hereon set forth.
Governor of the State of Washington
Secretary of State
State of Washington
|State of Washington||58th Legislature||2004 Regular Session|
Read first time 01/19/2004. Referred to Committee on State Government.
AN ACT Relating to providing notice of potential administrative rule actions; and amending RCW 34.05.310, 34.05.320, 34.05.230, and 34.05.353.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 34.05.310 and 1995 c 403 s 301 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 filing with the code reviser a notice of proposed rule making under RCW 34.05.320. The agency shall prepare a statement of inquiry that:
(a) 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 might be developed, including, but not limited to, negotiated rule making, pilot rule making, or agency study;
(e) Specifies the process by which interested parties can effectively participate in the decision to adopt a new rule and formulation of a proposed rule before its publication.
The statement of 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 the statement, or a summary of the information contained in that statement, shall be sent to any party that has requested receipt of the agency's statements of 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 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 feasibility of complying with or administering draft new rules or draft amendments to existing rules through the use of volunteer pilot 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 statewide 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. 2 RCW 34.05.320 and 2003 c 165 s 1 are each amended to read
(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)) 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 a statement of the reasons supporting the proposed
(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)) citation to
such law or court decision (( shall be attached to the purpose
(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;
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;)) 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;
(l))) (k) A statement indicating whether RCW 34.05.328 applies to
the rule adoption; and
(m))) (l) If RCW 34.05.328 does apply, a statement indicating
that a copy of the preliminary cost-benefit analysis described in RCW
34.05.328(1)(c) is available.
(2)(a) 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)). Except as provided in (b)
of this subsection, the agency shall forward three copies of the notice
to the rules review committee.
(b) A pilot of at least ten agencies, including the departments of labor and industries, fish and wildlife, revenue, ecology, retirement systems, and health, shall file the copies required under this subsection, as well as under RCW 34.05.350 and 34.05.353, with the rules review committee electronically for a period of four years from the effective date of this section. The office of regulatory assistance shall negotiate the details of the pilot among the agencies, the legislature, and the code reviser.
(3) No later than three days after its publication in the state register, the agency shall cause either a copy of the notice of proposed rule adoption, or a summary of the information contained on the notice, to be mailed to each person, 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 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. 3 RCW 34.05.230 and 2001 c 25 s 1 are each amended to read
(1) 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. To better inform and involve the public, 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)) periodically 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.
(4) Whenever an agency issues an interpretive or policy statement, it shall submit to the code reviser for publication in the Washington State Register a statement describing the subject matter of the interpretive or policy statement, and listing the person at the agency from whom a copy of the interpretive or policy statement may be obtained.
Sec. 4 RCW 34.05.353 and 2001 c 25 s 2 are each amended to read
(1) An agency may file notice for the expedited adoption of rules in accordance with the procedures set forth in this section for rules meeting any one of the following criteria:
(a) The proposed rules relate only to internal governmental operations that are not subject to violation by a person;
(b) The proposed rules adopt or incorporate 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 statewide 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;
(c) The proposed rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect;
(d) The content of the proposed rules is explicitly and specifically dictated by statute;
(e) The proposed rules have been the subject of negotiated rule making, pilot rule making, or some other process that involved substantial participation by interested parties before the development of the proposed rule; or
(f) The proposed rule is being amended after a review under RCW 34.05.328.
(2) An agency may file notice for the expedited repeal of rules under the procedures set forth in this section for rules meeting any one 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 expedited rule-making process must follow the requirements for rule making set forth in RCW 34.05.320, except that the agency is not required to prepare a small business economic impact statement under RCW 19.85.025, a statement indicating whether the rule constitutes a significant legislative rule under RCW 34.05.328(5)(c)(iii), or a significant legislative rule analysis under RCW 34.05.328. An agency is not required to prepare statements of inquiry under RCW 34.05.310 or conduct a hearing for the expedited rule making. The notice for the expedited rule making must contain a statement in at least ten-point type, that is substantially in the following form:
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT NAME AND ADDRESS) AND RECEIVED BY (INSERT DATE).