BP BHEAD INT S

AN ACT Relating to state agency rule making; amending RCW 34.05.325, 34.05.330, 34.05.350, 34.05.370, 34.05.620, 34.05.630, and 34.05.640; and adding a new section to chapter 34.05 RCW.

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

Sec. 1. RCW 34.05.325 and 1992 c 57 s 1 are each amended to read as follows:

(1) The agency shall make a good faith effort to insure that the information on the proposed rule published pursuant to RCW 34.05.320 accurately reflects the rule to be presented and considered at the oral hearing on the rule. Written comment about a proposed rule, including supporting data, shall be accepted by an agency if received no later than the time and date specified in the notice, or such later time and date established at the rule-making hearing.

(2) The agency shall provide an opportunity for oral comment to be received by the agency in a rule-making hearing.

(3) If the agency possesses equipment capable of receiving telefacsimile transmissions or recorded telephonic communications, the agency may provide in its notice of hearing filed under RCW 34.05.320 that interested parties may comment on proposed rules by these means. If the agency chooses to receive comments by these means, the notice of hearing shall provide instructions for making such comments, including, but not limited to, appropriate telephone numbers to be used; the date and time by which comments must be received; required methods to verify the receipt and authenticity of the comments; and any limitations on the number of pages for telefacsimile transmission comments and on the minutes of tape recorded comments. The agency shall accept comments received by these means for inclusion in the official record if the comments are made in accordance with the agency's instructions.

(4) The agency head, a member of the agency head, or a presiding officer designated by the agency head shall preside at the rule-making hearing. Rule-making hearings shall be open to the public. The agency shall cause a record to be made of the hearing by stenographic, mechanical, or electronic means. Unless the agency head presides or is present at substantially all the hearings, the presiding official shall prepare a memorandum for consideration by the agency head, summarizing the contents of the presentations made at the rule-making hearing. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.17 RCW.

(5) Rule-making hearings are legislative in character and shall be reasonably conducted by the presiding official to afford interested persons the opportunity to present comment. Rule-making hearings may be continued to a later time and place established on the record without publication of further notice under RCW 34.05.320.

(6) Before the adoption of a final rule, an agency shall prepare a written summary of all comments received regarding the proposed rule, and a response to the comments by subject matter, indicating how the final rule reflects agency consideration of the comments, or why it fails to do so. The agency shall provide the written summary and response to any person upon request or from whom the agency received comment.

Sec. 2. RCW 34.05.330 and 1988 c 288 s 305 are each amended to read as follows:

(1) Any person may petition an agency requesting the adoption, amendment, or repeal of any rule. Each agency may prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition. Within sixty days after submission of a petition, the agency shall ((~~(1)~~)) (a) either deny the petition in writing, stating its reasons for the denial, or ((~~(2)~~)) (b) initiate rule-making proceedings in accordance with this chapter.

(2) If an agency denies a petition to repeal or amend a rule submitted under subsection (1) of this section, the petitioner may appeal the denial to the governor. The governor shall file notice of the appeal with the code reviser for publication in the Washington State Register. Within sixty days after publication of the notice, the governor shall either reject the appeal in writing, stating his or her reasons for the rejection, or order the agency to initiate rule-making proceedings in accordance with this chapter. In ruling on the appeal, the governor shall consider:

(a) Whether the rule was adopted in compliance with section 5 of this act;

(b) Whether the agency has established an adequate internal rules review process, allowing public participation, and has subjected the rule to that review;

(d) Whether the rule conflicts with, overlaps, or duplicates any other provision of federal, state, or local law and, if so, whether the agency has taken steps to mitigate any adverse effects of the conflict, overlap, or duplication;

(e) The extent to which technology, social or economic conditions, or other relevant factors have changed since the rule was adopted, and whether, given those changes, the rule continues to be necessary and appropriate;

(f) Whether the statute that the rule implements has been amended or repealed by the legislature, or ruled invalid by a court.

The governor shall file a copy of the ruling with the code reviser for publication in the Washington State Register.

Sec. 3. RCW 34.05.350 and 1989 c 175 s 10 are each amended to read as follows:

(1) If ((~~an agency~~)) the governor for good cause finds:

(a) That immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; or

(b) That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule,

the governor may order the agency ((~~may~~)) to dispense with those requirements and adopt, amend, or repeal the rule on an emergency basis. The ((~~agency's~~)) governor's finding and a concise statement of the reasons for ((~~its~~)) the finding shall be incorporated in the order for adoption of the emergency rule or amendment filed with the office of the code reviser under RCW 34.05.380 and with the rules review committee.

(2) An emergency rule adopted under this section takes effect upon filing with the code reviser, unless a later date is specified in the order of adoption, and may not remain in effect for longer than one hundred twenty days after filing. Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or the agency has filed notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule. This section does not relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or bodies before they become effective.

Sec. 4. 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;

(h) The written summary and response required by RCW 34.05.325(6); and

(i) 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. 5. 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 evaluated 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) report to the chief clerk of the house of representatives and the secretary of the senate regarding legislation that may be necessary to mitigate the conflict, overlap, or duplication, and to facilitate coordination with appropriate federal, state, and 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.

Sec. 6. 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 5 of this act, 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. 7. RCW 34.05.630 and 1993 c 277 s 1 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 or whether they are within the intent of the legislature as expressed by the governing statute.

(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 5 of this act, (c) that an agency is using a policy statement, guideline, or issuance in place of a rule, or (d) that the policy statement, guideline, or issuance is outside of legislative intent, 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 5 of this act, (c) whether the agency is using a policy statement, guideline, or issuance in place of a rule, or (d) whether the policy statement, guideline, or issuance is within the legislative intent.

Sec. 8. RCW 34.05.640 and 1993 c 277 s 2 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 5 of this act, or (c) that the agency is using a policy statement, guideline, or issuance in place of a rule, or that the policy statement, guideline, or issuance is outside of the legislative intent, 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 vote of its members, recommend suspension of an existing rule. Within seven days of such vote the committee shall transmit to 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.