SENATE BILL REPORT

SB 5058

BYSenators Halsan, Deccio, Johnson, Talmadge, Hansen, Lee, McDonald, Nelson, Anderson, Hayner and Saling; by request of Joint Administrative Rules Review Committee

Revising agency failure to adopt rules.

Senate Committee on Governmental Operations

Senate Hearing Date(s):January 29, 1987

Majority Report:  That Substitute Senate Bill No. 5058 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Halsan, Chairman; Garrett, Vice Chairman; DeJarnatt, McCaslin, Talmadge, Zimmerman.

Senate Staff:Sam Thompson (786-7754); Walt Corneille (786-7452)

                  January 30, 1987

AS REPORTED BY COMMITTEE ON GOVERNMENTAL OPERATIONS, JANUARY 29, 1987

BACKGROUND:

The Administrative Procedure Act (APA) governs the procedure for the adoption of an administrative rule by state agencies.  An administrative rule is defined by the APA as an agency order, directive or regulation of general applicability that meets one of the following conditions:

      (1)if violated, it subjects a person to a penalty;

      (2)it affects any requirement relating to agency hearings;

      (3)it affects any requirement relating to the enjoyment of benefits or privileges conferred by law;

      (4)it affects standards for licenses for any commercial activity, trade or profession;

      (5)it affects any mandatory standards for any product or material which must be met before distribution or sale;

      (6)it amends or repeals an existing administrative rule.

Specifically exempted from the definition of administrative rules are an agency's internal management statements, declaratory rulings affecting particular persons, and certain traffic restrictions.

When an agency proposes an administrative rule, it must provide notice to interested parties and publish a description of the proposed rule in the Washington State Register.  The agency must allow interested persons the opportunity to comment upon the proposed rule.  Depending upon the circumstances, a public hearing to consider the rule may be required.  After formal adoption of the rule, it is published in the Register and, later, in the Washington Administrative Code (WAC).

It is suggested that agencies occasionally substitute policy statements for formally adopted administrative rules, effectively circumventing the procedure established by the APA.  Such statements are not published in the Register or WAC.  The Joint Administrative Rules Review Committee, a bipartisan legislative committee that reviews agency rules for conformance with legislative intent, has requested that it also be allowed to review an agency's use of these policy statements.

SUMMARY:

The Joint Administrative Rules Review Committee is authorized to review an agency's use of policy statements, guidelines, issuances or their equivalents.  The Committee will determine whether an administrative rule should have been adopted.

If the Committee finds that a rule should have been adopted, and the agency then fails to comply with the Committee's decision, the Committee's objection and statement of reasons may be published in the Washington State Register.  A reference to the objection is then published in the next compilation of the Washington Administrative Code.

When the Committee finds that a proposed administrative rule is outside of legislative intent, the Committee may require the agency to hold a hearing to consider its decision.

EFFECT OF PROPOSED SUBSTITUTE:

Senate Bill 5057, which authorizes the Joint Administrative Rules Review Committee to temporarily suspend the effectiveness of existing agency rules, is incorporated.

When the Committee determines that a rule does not conform with the intent of the Legislature, and the agency does not modify the rule accordingly, the Committee may vote, by two thirds of its members, to suspend the rule.  If the Governor approves the suspension of the rule, the suspension is effective from the date of the approval and continues until 90 days after the end of the next legislative session.

Notices of the Committee's objections and a statement of its reasons must be transmitted to the Governor within seven days of the vote to suspend the rule.  Within seven days of the receipt of the notice, the Governor must transmit to the Committee and the Code Reviser written approval or disapproval of the suspension.

The Committee's suspension of a rule and the Governor's action on it must be published in the Washington State Register and the Washington Administrative Code.

Fiscal Note:      none requested

Senate Committee - Testified: Carter Mitchell, Liquor Control Board; Mike Ryherd, Washington State Medical Association; Jerry Farley, Washington State Pyrotechnics Association; Betty Buckley, Department of Labor and Industries