BILL REQ. #: S-1714.1
State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/18/11.
AN ACT Relating to the office of regulatory assistance; amending RCW 34.05.328 and 43.42.010; repealing RCW 43.131.401 and 43.131.402; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 34.05.328 and 2010 c 112 s 15 are each amended 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) Provide notification in the notice of proposed rule making
under RCW 34.05.320 that a preliminary cost-benefit analysis is
available. The preliminary cost-benefit analysis must fulfill the
requirements of the cost-benefit analysis under (d) of this subsection.
If the agency files a supplemental notice under RCW 34.05.340, the
supplemental notice shall include notification that a revised
preliminary cost-benefit analysis is available. A final cost-benefit
analysis shall be available when the rule is adopted under RCW
34.05.360;
(d) 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;
(e) Determine, after considering alternative versions of the rule
and the analysis required under (b), (c), and (d) 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;
(f) 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;
(g) 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;
(h) 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
(i) 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 (h) 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) 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)(a), the
agency shall report to the legislature pursuant to (b) of this
subsection;
(b) 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, social and health services, 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 77.55 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 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;
(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;
(vi) Rules that set or adjust fees or rates pursuant to legislative
standards;
(vii) Rules of the department of social and health services
relating only to client medical or financial eligibility and rules
concerning liability for care of dependents; or
(viii) Rules of the department of revenue that adopt a uniform
expiration date for reseller permits as authorized in RCW 82.32.780 and
82.32.783.
(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)) regulatory
assistance, 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.
Sec. 2 RCW 43.42.010 and 2009 c 97 s 4 are each amended to read
as follows:
(1) The office of regulatory assistance is created in the office of
financial management and ((shall)) must be administered by the office
of the governor to help improve the regulatory system and assist
citizens, businesses, and project proponents.
(2) The governor ((shall)) must appoint a director. The director
may employ a deputy director and a confidential secretary and such
staff as are necessary, or contract with another state agency pursuant
to chapter 39.34 RCW for support in carrying out the purposes of this
chapter.
(3) The office ((shall)) must offer to:
(a) Act as the central point of contact for the project proponent
in communicating about defined issues;
(b) Conduct project scoping as provided in RCW 43.42.050;
(c) Verify that the project proponent has all the information
needed to correctly apply for all necessary permits;
(d) Provide general coordination services;
(e) Coordinate the efficient completion among participating
agencies of administrative procedures, such as collecting fees or
providing public notice;
(f) Maintain contact with the project proponent and the permit
agencies to promote adherence to agreed schedules;
(g) Assist in resolving any conflict or inconsistency among permit
requirements and conditions;
(h) Coordinate, to the extent practicable, with relevant federal
permit agencies and tribal governments;
(i) Facilitate meetings;
(j) Manage a fully coordinated permit process, as provided in RCW
43.42.060;
(k) Help local jurisdictions comply with the requirements of
chapter 36.70B RCW by providing information about best permitting
practices methods to improve communication with, and solicit early
involvement of, state agencies when needed; and
(l) Maintain and furnish information as provided in RCW 43.42.040.
(4) The office ((shall)) must provide the following by September 1,
2009, and biennially thereafter, to the governor and the appropriate
committees of the legislature:
(a) A performance report including:
(i) Information regarding use of the office's voluntary cost-reimbursement services as provided in RCW 43.42.070;
(ii) The number and type of projects where the office provided
services and the resolution provided by the office on any conflicts
that arose on such projects; ((and))
(iii) The agencies involved on specific projects;
(iv) Specific information on any difficulty encountered in
provision of services, implementation of programs or processes, or use
of tools; and
(v) Trend reporting that allows comparisons between statements of
goals and performance targets and the achievement of those goals and
targets; and
(b) Recommendations on system improvements including
recommendations regarding:
(i) Measurement of overall system performance; ((and))
(ii) Changes needed to make cost reimbursement, a fully coordinated
permit process, multiagency permitting teams, and other processes
effective; and
(iii) Resolving any conflicts or inconsistencies arising from
differing statutory or regulatory authorities, roles and missions of
agencies, timing and sequencing of permitting and procedural
requirements as identified by the office in the course of its duties.
NEW SECTION. Sec. 3 The following acts or parts of acts are each
repealed:
(1) RCW 43.131.401 (Office of regulatory assistance -- Termination)
and 2007 c 231 s 6, 2007 c 94 s 15, 2003 c 71 s 5, & 2002 c 153 s 13;
and
(2) RCW 43.131.402 (Office of regulatory assistance -- Repeal) and
2010 c 162 s 7.
NEW SECTION. Sec. 4 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
June 29, 2011.