On March 22, 2011, the Governor's Office received an
appeal from Mr. Randy Boss relating to the Department of
Transportation's denial of a petition to repeal or amend WAC 468-270. The Governor denied the Petition on May 5, 2011.
DATE: May 9, 2011
Narda Pierce
General Counsel to the Governor
May 5, 2011
Randy Boss
PO Box 237
Gig Harbor, WA 98335
RE: Administrative Rule Appeal - WAC 468-270
Dear Mr. Boss:
I am writing in response to your letter appealing the
Transportation Commission's denial of your petitions under RCW 34.05.330(1). These petitions requested repeal or amendment
of recent rule making actions that modified Chapter 468-270 of
the Washington Administrative Code (WAC) relating to setting
tolls for toll facilities in our state. You have petitioned
that denial to the Governor under RCW 34.05.330(3). After
careful consideration of your petitions and the Transportation
Commission's reasons for denial of your petitions, I am
denying your appeal.
The Transportation Commission is designated in various
statutes as the entity responsible for setting tolls. These
statutes are valid law and were not repealed by Initiative
1053. Initiative 1053 provides that "[a] fee may only be
imposed or increased in any fiscal year if approved with
majority legislative approval in both the house of
representatives and the senate ..." RCW 43.135.055(1). As
outlined in the enclosed informal Attorney General Opinion1,
Initiative 1053 does not constrain the manner in which the
legislature approves imposition or increases in fees. The
Transportation Commission made its adoption of the rule
amendments contingent on action by the Legislature pursuant to
RCW 43.135.055(1).
The Transportation Commission clearly had authority to take
these actions. With regard to the Tacoma Narrows Bridge, RCW 47.46.100(1) states: "The commission shall fix the rates of
toll and other charges for all toll bridges built under this
chapter that are financed primarily by bonds issued by the
state. Subject to RCW 47.46.090, the commission may impose
and modify toll charges from time to time as conditions
warrant." With regard to State Route 520, RCW 47.56.810(1)
states: "Tolling authority" means the governing body that is
legally empowered to review and adjust toll rates. Unless
otherwise delegated, the transportation commission is the
tolling authority for all state highways." RCW 47.56.850(1)
states: "Unless these powers are otherwise delegated by the
legislature, the transportation commission is the tolling
authority for the state." The Transportation Commission also
clearly stated its intent that the toll rates adopted would
not take effect without subsequent legislative action,
recognizing the passage of Initiative 1053.
You also protest that the language of the title of the
Proposed Rulemaking notice, "Toll and Fee Setting for Toll
Facilities in Washington State," is broader than the specific
toll facilities addressed in the proposed rules. The CR-102
announces to the public that a change to a rule is being
proposed, and there are no provisions in the Administrative
Procedures Act that require the title of the form to be
narrowly tailored and specifically describe the proposed
rules. In any event, the CR-102 form gave adequate notice to
members of the public and any person who wished to be apprised
of more detail could simply read the remainder of the form.
As another basis for your appeal, you allege that the
Transportation Commission has not implemented a provision in
Engrossed Substitute Senate Bill 6499, Laws of 2010, Chapter
249, that directed the Transportation Commission to adopt
rules to assess administrative fees as appropriate for toll
collection processes. However, the Transportation Commission
adopted WAC 468-270-300, filed on January 20, 2011, with
effectiveness contingent upon legislative action. This rule
details fees as appropriate for toll collection processes and
cites the 2010 law (codified at RCW 47.56.795) as statutory
authority for the rule.
For these reasons and for the additional reasons set forth in
the Transportation Commission's response, I am denying your
appeal. I appreciate your concerns regarding proper rule
making authority, notice and processes, but have concluded the
Transportation Commission met all legal requirements with
regard to these rule adoptions.
1 Letter opinion from Deputy Solicitor General James K. Pharris to Senator Don Benton dated February 17, 2011.
Sincerely,
Christine O. Gregoire
Governor
Reviser's note: The typographical errors in the above material occurred in the copy filed by the Office of the Governor and appear in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.