5794-S

AN ACT Relating to administrative law; amending RCW 34.05.620, 34.05.630, 34.05.640, and 34.05.370; adding new sections to chapter 34.05 RCW; and repealing RCW 34.05.660, 34.05.670, and 34.05.680.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 34.05.620 and 1988 c 288 s 602 are each amended to read as follows:

Whenever a majority of the members of the rules review committee determines 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 6 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. 2. RCW 34.05.630 and 1988 c 288 s 603 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.

(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 6 of this act and chapter 19.85 RCW, or (c) that an agency is using a policy statement, guideline, or issuance in place of a rule, 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 6 of this act and chapter 19.85 RCW, or (c) whether the agency is using a policy statement, guideline, or issuance in place of a rule.

Sec. 3. RCW 34.05.640 and 1988 c 288 s 604 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 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 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 6 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, the rules review committee may, within thirty days from notification by the agency of its 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 under subsection (2) of this section, the committee may, by a ((~~two-thirds~~)) majority vote of its members, recommend suspension of an existing 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) 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.

(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. 4. A new section is added to chapter 34.05 RCW to read as follows:

Notwithstanding any other provision of law, an election by the rules review committee under RCW 34.05.640 to recommend suspension of a rule, regardless of whether the suspension is approved by the governor, establishes a presumption in any subsequent judicial review of the rule that it is invalid. The burden of demonstrating the rule's validity is then on the adopting agency. The court shall declare the rule valid only if it finds that the rule does not violate constitutional provisions, does not exceed the statutory authority of the agency, that it was adopted in compliance with statutory rule-making procedures, and that it could conceivably have been the product of a rational decision maker.

Sec. 5. RCW 34.05.370 and 1988 c 288 s 313 are each amended to read as follows:

(1) Each agency shall maintain an official rule-making file for each rule that it (a) proposes by publication in the state register, or (b) adopts. The file and materials incorporated by reference shall be available for public inspection.

(2) The agency rule-making file shall contain all of the following:

(a) Copies of all publications in the state register with respect to the rule or the proceeding upon which the rule is based;

(b) Copies of any portions of the agency's public rule-making docket containing entries relating to the rule or the proceeding on which the rule is based;

(c) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;

(d) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them, and any memorandum prepared by a presiding official summarizing the contents of those presentations;

(e) The concise explanatory statement required by RCW 34.05.355;

(f) All petitions for exceptions to, amendment of, or repeal or suspension of, the rule; ((~~and~~))

(g) All data and other factual information, technical, theoretical, and empirical studies or reports, if any, on which the agency relies in the adoption of the rule; and

(h) Any other material placed in the file by the agency.

(3) Internal agency documents are exempt from inclusion in the rule-making file under subsection (2) of this section to the extent they constitute preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended, except that a specific document is not exempt from inclusion when it is publicly cited by an agency in connection with its decision.

(4) Upon judicial review, the file required by this section constitutes the official agency rule-making file with respect to that rule. Unless otherwise required by another provision of law, the official agency rule-making file need not be the exclusive basis for agency action on that rule.

NEW SECTION. Sec. 6. A new section is added to chapter 34.05 RCW to read as follows:

(1) In addition to other requirements imposed by law, an agency may not adopt a rule the violation of which subjects a person to a penalty or administrative sanction; that establishes, alters, or revokes a qualification or standard for the issuance, suspension, or revocation of a license to pursue a commercial activity, trade, or profession; or that establishes, alters, or revokes a mandatory standard for a product or material that must be met before distribution or sale, unless:

(a) The rule-making file provides substantial evidence that: (i) The particular rule is necessary to fulfill the purpose and intent of a specific statute; (ii) the agency considered the probable benefits of the particular rule relative to its probable costs; (iii) the agency considered other less intrusive or less costly means to achieve the purpose of the rule, including any that were proposed in the rule-making hearing, but had reasonable justification for rejecting them in favor of the adopted rule; and (iv) any fee imposed by the rule will generate no more revenue than is necessary to fulfill the intent of the specific statute authorizing the fee;

(b) The rule is clearly and simply stated, so that it will be understood by any person required to comply;

(c) The agency has a written plan to (i) inform and educate affected persons about the rule; (ii) promote voluntary compliance; (iii) evaluate whether the rule achieves the purpose for which it was adopted; and (iv) where necessary, meet the requirements of subsection (2) or (3) of this section;

(d) The rule does not, without clear and specific statutory authorization to do so, exceed any provision of federal law regulating the same activity or subject matter; and

(e) The rule does not, without clear and specific statutory authorization to do so, conflict with, overlap, or duplicate, any other provision of federal, state, or local law regulating the same activity or subject matter. The agency shall survey other federal, state, and local entities that have jurisdiction over the same or similar subject matter to determine whether such conflict, overlap, or duplication exists.

(2) Upon the adoption of a rule that conflicts with, overlaps, or duplicates any other provision of federal, state, or local law regulating the same activity or subject matter, an agency shall: (a) File with the code reviser for publication in the Washington State Register a list citing by reference the other laws that the rule conflicts with, overlaps, or duplicates; (b) mitigate the adverse impact of the conflict, overlap, or duplication through coordination with the appropriate federal, state, or local entities; and (c) submit to the appropriate standing committee of the legislature before the next legislative session proposed legislation to mitigate the conflict, overlap, or duplication, and facilitate coordination with appropriate federal, state, or local entities.

(3) Upon the adoption of a rule that exceeds any provision of federal law regulating the same activity or subject matter, the agency shall, to the extent practicable, coordinate implementation and enforcement with the appropriate federal entities.

NEW SECTION. Sec. 7. The following acts or parts of acts are each repealed:

(1) RCW 34.05.660 and 1988 c 288 s 606 & 1981 c 324 s 10;

(2) RCW 34.05.670 and 1992 c 197 s 3; and

(3) RCW 34.05.680 and 1992 c 197 s 4.