AN
ACT Relating to administrative law; amending RCW 34.05.230, 34.05.328,
34.05.330, 34.05.354, 34.05.370, 34.05.610, 34.12.040, and 48.04.010; adding
new sections to chapter 34.05 RCW; adding a new section to chapter 43.132 RCW;
creating a new section; and providing an expiration date.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
34.05.230 and 1997 c 409 s 202 are each amended to read as follows:
(1)
((An agency may file notice for the expedited adoption of rules in
accordance with the procedures set forth in this section for rules meeting any
one of the following criteria:
(a)
The proposed rules relate only to internal governmental operations that are not
subject to violation by a person;
(b)
The proposed rules adopt or incorporate 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 state-wide 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;
(c)
The proposed rules only correct typographical errors, make address or name
changes, or clarify language of a rule without changing its effect;
(d)
The content of the proposed rules is explicitly and specifically dictated by
statute;
(e)
The proposed rules have been the subject of negotiated rule making, pilot rule
making, or some other process that involved substantial participation by
interested parties before the development of the proposed rule; or
(f)
The proposed rule is being amended after a review under RCW 34.05.328 or
section 210 of this act.
(2)
The expedited rule-making process must follow the requirements for rule making
set forth in RCW 34.05.320, except that the agency is not required to prepare a
small business economic impact statement under RCW 19.85.025, a statement
indicating whether the rule constitutes a significant legislative rule under
RCW 34.05.328(5)(c)(iii), or a significant legislative rule analysis under RCW
34.05.328. An agency is not required to prepare statements of inquiry under
RCW 34.05.310 or conduct a hearing for the expedited adoption of rules. The
notice for the expedited adoption of rules must contain a statement in at least
ten-point type, that is substantially in the following form:
NOTICE
THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN
EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO
HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR
PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU
OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU
MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT NAME
AND ADDRESS) AND RECEIVED BY (INSERT DATE).
(3)
The agency shall send a copy of the notice of the proposed expedited rule
making to any person who has requested notification of proposals for the
expedited adoption of rules or of agency rule making, as well as the joint
administrative rules review committee, within three days after its publication
in the Washington State Register. An agency may charge for the actual cost of
providing a requesting party mailed copies of these notices. The notice of the
proposed expedited rule making must be preceded by a statement substantially in
the form provided in subsection (2) of this section. The notice must also
include an explanation of the reasons the agency believes the expedited
adoption of the rule is appropriate.
(4)
The code reviser shall publish the text of all rules proposed for expedited
adoption along with the notice required in this section in a separate section
of the Washington State Register. Once the text of the proposed rules has been
published in the Washington State Register, the only changes that an agency may
make in the text of these proposed rules before their final adoption are to
correct typographical errors.
(5)
Any person may file a written objection to the expedited adoption of a rule.
The objection must be filed with the agency rules coordinator within forty-five
days after the notice of the proposed expedited rule making has been published
in the Washington State Register. A person who has filed a written objection
to the expedited adoption of a rule may withdraw the objection.
(6)
If no written objections to the expedited adoption of a rule are filed with the
agency within forty-five days after the notice of proposed expedited rule
making is published, or if all objections that have been filed are withdrawn by
the persons filing the objections, the agency may enter an order adopting the
rule without further notice or a public hearing. The order must be published
in the manner required by this chapter for any other agency order adopting,
amending, or repealing a rule.
(7)
If a written notice of objection to the expedited adoption of the rule is
timely filed with the agency and is not withdrawn, the notice of proposed
expedited rule making published under this section is considered a statement of
inquiry for the purposes of RCW 34.05.310, and the agency may initiate further
rule adoption proceedings in accordance with this chapter.
(8)
Subsections (1) through (8) of this section expire on December 31, 2000.
an
[An] agency is encouraged to advise the public of its current opinions,
approaches, and likely courses of action by means of interpretive or policy
statements. Current)) Interpretive and
policy statements or their equivalents, regardless of title, are
advisory only. To better inform and involve the public, ((an)) each
agency is encouraged to convert long-standing interpretive and policy
statements into rules.
(2)
A person may petition an agency requesting the conversion of interpretive and
policy statements into rules. Upon submission, the agency shall notify the
joint administrative rules review committee of the petition. Within sixty days
after submission of a petition, the agency shall either deny the petition in
writing, stating its reasons for the denial, or initiate rule-making
proceedings in accordance with this chapter.
(((11)))
(3) Each agency shall maintain a roster of interested persons,
consisting of persons who have requested in writing to be notified of all
interpretive and policy statements issued by that agency. Each agency shall
update the roster once each year and eliminate persons who do not indicate a
desire to continue on the roster. Whenever an agency issues an interpretive or
policy statement, it shall send a copy of the statement to each person listed
on the roster. The agency may charge a nominal fee to the interested person
for this service.
(((12)))
(4) Whenever an agency issues an interpretive or policy statement, it
shall submit to the code reviser for publication in the Washington State
Register a statement describing the subject matter of the interpretive or policy
statement, and listing the person at the agency from whom a copy of the
interpretive or policy statement may be obtained.
(5)
When a person requests a copy of a rule from an agency, the agency shall
identify any associated interpretive or policy statements, guidelines,
documents of general applicability, or their equivalents, and provide copies of
the statements upon request.
(6)
Within two hundred days after an agency issues a policy or interpretative
statement, guideline, document of general applicability, or its equivalent
involving an issue, the violation of which can result in a citation, civil
penalty, assessment, or other sanction to a business, the agency shall make a
good faith effort to notify businesses affected by the statement, guideline, or
document and how to obtain technical assistance to comply. For purposes of
this section, "good faith" means: (a) The agency at least notifies
businesses in the standard industrial classifications or their successor
affected by the statement, guideline, or document that are registered with the
department of revenue; or (b) for a statement, guideline, or document that
applies only to persons or firms that are licensed, registered, or operate
under a permit, the agency notifies those persons or firms holding the license,
registration, or permit. Inadvertent failure to notify a specific business
under this section does not invalidate a rule.
NEW
SECTION. Sec. 2. A
new section is added to chapter 34.05 RCW to read as follows:
(1)
An agency may file notice for the expedited adoption of rules in accordance
with the procedures set forth in this section for rules meeting any one of the
following criteria:
(a)
The proposed rules relate only to internal governmental operations that are not
subject to violation by a person;
(b)
The proposed rules adopt or incorporate 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 state-wide 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;
(c)
The proposed rules only correct typographical errors, make address or name
changes, or clarify language of a rule without changing its effect;
(d)
The content of the proposed rules is explicitly and specifically dictated by
statute;
(e)
The proposed rules have been the subject of negotiated rule making, pilot rule
making, or some other process that involved substantial participation by
interested parties before the development of the proposed rule; or
(f)
The proposed rule is being amended after a review under RCW 34.05.328.
(2)
The expedited rule-making process must follow the requirements for rule making
set forth in RCW 34.05.320, except that the agency is not required to prepare a
small business economic impact statement under RCW 19.85.025, a statement
indicating whether the rule constitutes a significant legislative rule under
RCW 34.05.328(6)(c)(iii), or a significant legislative rule analysis under RCW
34.05.328. An agency is not required to prepare statements of inquiry under
RCW 34.05.310 or conduct a hearing for the expedited adoption of rules. The
notice for the expedited adoption of rules must contain a statement in at least
ten-point type, that is substantially in the following form:
NOTICE
THIS RULE IS BEING PROPOSED TO BE ADOPTED USING AN
EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO
HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR
PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU
OBJECT TO THIS RULE BEING ADOPTED USING THE EXPEDITED RULE-MAKING PROCESS, YOU
MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO (INSERT NAME
AND ADDRESS) AND RECEIVED BY (INSERT DATE).
(3)
The agency shall send a copy of the notice of the proposed expedited rule
making to any person who has requested notification of proposals for the
expedited adoption of rules or of agency rule making, as well as the joint
administrative rules review committee, within three days after its publication
in the Washington State Register. An agency may charge for the actual cost of
providing a requesting party mailed copies of these notices. The notice of the
proposed expedited rule making must be preceded by a statement substantially in
the form provided in subsection (2) of this section. The notice must also
include an explanation of the reasons the agency believes the expedited
adoption of the rule is appropriate.
(4)
The code reviser shall publish the text of all rules proposed for expedited
adoption along with the notice required in this section in a separate section
of the Washington State Register. Once the text of the proposed rules has been
published in the Washington State Register, the only changes that an agency may
make in the text of these proposed rules before their final adoption are to
correct typographical errors.
(5)
Any person may file a written objection to the expedited adoption of a rule.
The objection must be filed with the agency rules coordinator within forty-five
days after the notice of the proposed expedited rule making has been published
in the Washington State Register. A person who has filed a written objection
to the expedited adoption of a rule may withdraw the objection.
(6)
If no written objections to the expedited adoption of a rule are filed with the
agency within forty-five days after the notice of proposed expedited rule
making is published, or if all objections that have been filed are withdrawn by
the persons filing the objections, the agency may enter an order adopting the
rule without further notice or a public hearing. The order must be published
in the manner required by this chapter for any other agency order adopting,
amending, or repealing a rule.
(7)
If a written notice of objection to the expedited adoption of the rule is
timely filed with the agency and is not withdrawn, the notice of proposed
expedited rule making published under this section is considered a statement of
inquiry for the purposes of RCW 34.05.310, and the agency may initiate further
rule adoption proceedings in accordance with this chapter.
(8)
This section expires December 31, 2000.
Sec.
3. RCW
34.05.328 and 1997 c 430 s 1 are each amended to read as follows:
(1)
Before adopting a rule described in subsection (((5))) (6) 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)
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;
(d)
Determine, after considering alternative versions of the rule and the analysis
required under (b) and (c) 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;
(e)
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;
(f)
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;
(g)
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
(h)
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 (g) 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))) (6) 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)) will:
(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; and
(e)
Provide appropriate training to agency personnel.
(4)
At least twenty days before the effective date of a rule described in
subsection (6) of this section, the agency is encouraged to convene a meeting
of interested persons affected by the rule to identify ambiguities and problem
areas in the rule and determine how to resolve the ambiguities and problem
areas. If the agency convenes such a meeting, the agency shall include the
meeting in the plan described under subsection (3) of this section.
(5)
After adopting a rule described in subsection (((5))) (6) 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)
Provide to the ((business assistance center)) department of
community, trade, and economic development a list citing by reference the
other federal and state laws that regulate the same activity or subject matter;
(b)
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))) (5)(b),
the agency shall report to the legislature pursuant to (c) of this subsection;
(c)
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)))
(6)(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 75.20 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)) seventy-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 state-wide 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; or
(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.
(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)))
(7) By January 31, 1996, and by January 31st of each even-numbered year
thereafter, the office of financial management, 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.
NEW
SECTION. Sec. 4. A
new section is added to chapter 34.05 RCW to read as follows:
Within
two hundred days after the effective date of a rule that imposes additional
requirements on businesses the violation of which subjects a person to a
penalty, assessment, or administrative sanction, an agency shall make a good
faith effort to notify businesses affected by the rule of the requirements of
the rule and how to obtain technical assistance to comply. For purposes of
this section, "good faith" means: (1) The agency at least notifies
businesses in the standard industrial classifications or their successor
identified in the rule-making file as businesses affected by the rule that are
registered with the department of revenue; or (2) for rules imposing additional
requirements only on persons or firms licensed, registered, or operating under
a permit, the agency notifies those persons or firms holding the license,
registration, or permit. Inadvertent failure to notify a specific business
under this section does not invalidate a rule.
Sec.
5. RCW
34.05.330 and 1996 c 318 s 1 are each amended to read as follows:
(1)
Any person may petition an agency requesting the adoption, amendment, or repeal
of any rule. The office of financial management shall prescribe by rule the
format for such petitions and the procedure for their submission,
consideration, and disposition and provide a standard form that may be used to
petition any agency. Within sixty days after submission of a petition, the agency
shall either (a) deny the petition in writing, stating (i) its reasons for the
denial, specifically addressing the concerns raised by the petitioner, and,
where appropriate, (ii) the alternative means by which it will address the
concerns raised by the petitioner, or (b) initiate rule-making proceedings in
accordance with ((this chapter)) RCW 34.05.320.
(2)
If an agency denies a petition to repeal or amend a rule submitted under
subsection (1) of this section, and the petition alleges that the rule is not
within the intent of the legislature or was not adopted in accordance with all
applicable provisions of law, the person may petition for review of the rule by
the joint administrative rules review committee under RCW 34.05.655.
(3)
If an agency denies a petition to repeal or amend a rule submitted under
subsection (1) of this section, the petitioner, within thirty days of the
denial, may appeal the denial to the governor. The governor shall immediately
file notice of the appeal with the code reviser for publication in the
Washington state register. Within forty-five days after receiving the appeal,
the governor shall either (a) deny the petition in writing, stating (i) his or
her reasons for the denial, specifically addressing the concerns raised by the
petitioner, and, (ii) where appropriate, the alternative means by which he or
she will address the concerns raised by the petitioner; (b) for agencies listed
in RCW 43.17.010, direct the agency to initiate rule-making proceedings in
accordance with this chapter; or (c) for agencies not listed in RCW 43.17.010,
recommend that the agency initiate rule-making proceedings in accordance with
this chapter. The governor's response to the appeal shall be published in the
Washington state register and copies shall be submitted to the chief clerk of
the house of representatives and the secretary of the senate.
(4)
In petitioning for repeal or amendment of a rule under this section, a person
is encouraged to address, among other concerns:
(a)
Whether the rule is authorized;
(b)
Whether the rule is needed;
(c)
Whether the rule conflicts with or duplicates other federal, state, or local
laws;
(d)
Whether alternatives to the rule exist that will serve the same purpose at less
cost;
(e)
Whether the rule applies differently to public and private entities;
(f)
Whether the rule serves the purposes for which it was adopted;
(g)
Whether the costs imposed by the rule are unreasonable;
(h)
Whether the rule is clearly and simply stated;
(i)
Whether the rule is different than a federal law applicable to the same
activity or subject matter without adequate justification; and
(j)
Whether the rule was adopted according to all applicable provisions of law.
(5)
The ((business assistance center)) department of community, trade,
and economic development and the office of financial management shall
coordinate efforts among agencies to inform the public about the existence of
this rules review process.
(6)
The office of financial management shall initiate the rule making required by
subsection (1) of this section by September 1, 1995.
Sec.
6. RCW
34.05.354 and 1997 c 409 s 208 are each amended to read as follows:
(1)
((Not later than April 1st or October 1st of each year, each agency shall
submit to the code reviser, according to procedures and time lines established
by the code reviser, rules that it determines should be repealed by the
expedited repeal procedures provided for in this section. An agency shall file
a copy of a preproposal notice of inquiry, as provided in RCW 34.05.310(1),
that identifies the rule as one that is proposed for expedited repeal.
(2))) An
agency may ((propose)) file notice for the expedited repeal of
rules under the procedures set forth in this section for rules meeting any
one ((or more)) of the following criteria:
(a)
The statute on which the rule is based has been repealed and has not been
replaced by another statute providing statutory authority for the rule;
(b)
The statute on which the rule is based has been declared unconstitutional by a
court with jurisdiction, there is a final judgment, and no statute has been
enacted to replace the unconstitutional statute;
(c)
The rule is no longer necessary because of changed circumstances; or
(d)
Other rules of the agency or of another agency govern the same activity as the
rule, making the rule redundant.
(((3)))
(2) An agency shall file a copy of a preproposal notice of inquiry, as
provided in RCW 34.05.310(1), that identifies the rule as one that is proposed
for expedited repeal. The agency shall also send a copy of the preproposal
notice of inquiry to any person who has requested notification of copies of
proposals for the expedited repeal of rules or of agency rule making. The
preproposal notice of inquiry shall include a statement that any person who
objects to the repeal of the rule must file a written objection to the repeal
within thirty days after the preproposal notice of inquiry is published. The
notice of inquiry shall also include an explanation of the reasons the agency
believes the expedited repeal of the rule is appropriate.
(((4)))
(3) The code reviser shall publish all rules proposed for expedited
repeal in a separate section of ((a regular edition of)) the Washington
state register ((or in a special edition of the Washington state register.
The publication shall be not later than May 31st or November 30th of each year,
or in the first register published after that date)).
(((5)))
(4) Any person may file a written objection to the expedited repeal of a
rule. The notice shall be filed with the agency rules coordinator within
thirty days after the notice of inquiry has been published in the Washington
state register. The written objection need not state any reason for objecting
to the expedited repeal of the rule.
(((6)))
(5) If no written objections to the expedited repeal of a rule are filed
with the agency within thirty days after the preproposal notice of inquiry is
published, the agency may enter an order repealing the rule without further
notice or an opportunity for a public hearing. The order shall be published in
the manner required by this chapter for any other order of the agency adopting,
amending, or repealing a rule. If a written objection to the expedited repeal
of the rule is filed with the agency within thirty days after the notice of
inquiry has been published, the preproposal notice of inquiry published
pursuant to this section shall be considered a preproposal notice of inquiry
for the purposes of RCW 34.05.310(1) and the agency may initiate rule adoption
proceedings in accordance with the provisions of this chapter.
Sec.
7. RCW
34.05.370 and 1996 c 102 s 2 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)) A list of citations to all notices
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)
All petitions for exceptions to, amendment of, or repeal or suspension of, the
rule;
(f)
Citations to data, factual information, studies, or reports on which the agency
relies in the adoption of the rule, indicating where such data, factual
information, studies, or reports are available for review by the public, but
this subsection (2)(f) does not require the agency to include in the
rule-making file any data, factual information, studies, or reports gathered
pursuant to chapter 19.85 RCW or RCW 34.05.328 that can be identified to a
particular business;
(g)
The concise explanatory statement required by RCW 34.05.325(6); 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. 8. A
new section is added to chapter 34.05 RCW to read as follows:
(1)
The legislature finds that under the governor's Executive Order 97-02, agencies
have begun systematic reviews of existing rules and have eliminated some
unnecessary rules and improved clarity for other rules.
(2)
Effective July 1, 2001, each state agency shall review its rules that have
significant effects on businesses, labor, consumers, and the environment.
Agencies shall establish a rules review schedule that allows each rule filing
under the criteria of this section to be reviewed every seven years. Agencies
shall determine if their rules should be (a) retained in their current form, or
(b) amended or repealed, if they do not meet the review criteria specified in
this section. Agencies shall concentrate their regulatory review on rules or
portions of a rule that have been the subject of petitions filed under RCW
34.05.330 or have been the source of complaints, concerns, or other
difficulties that relate to matters other than the specific mandates of the statute
on which the rule is based. Agencies that have already established regulatory
review processes shall make them consistent with the requirements of this
section. Each agency head shall designate a person responsible for regulatory
review who shall serve as the agency's contact for regulatory review.
(3)
The following criteria will be used for the review of each rule identified for
review:
(a)
Need. Is the rule necessary to comply with the statutes that authorize it? Is
the rule obsolete, duplicative, or ambiguous to a degree that warrants repeal
or revision? Have laws or other circumstances changed so that the rule should
be amended or repealed? Is the rule necessary to protect or safeguard the
health, welfare, or safety of Washington's citizens?
(b)
Effectiveness and efficiency. Is the rule providing the results that it was
originally designed to achieve in a reasonable manner? Are there regulatory
alternatives or new technologies that could more effectively or efficiently
achieve the same objectives?
(c)
Clarity. Is the rule written and organized in a clear and concise manner so
that it can be readily understood by those to whom it applies?
(d)
Intent and statutory authority. Is the rule consistent with legislative intent
of the statutes that authorize it? Is the rule based upon sufficient statutory
authority? Is there a need to develop a more specific legislative
authorization in order to protect the health, safety, and welfare of
Washington's citizens?
(e)
Coordination. Could additional consultation and coordination with other
governmental jurisdictions and state agencies with similar regulatory authority
eliminate or reduce duplication and inconsistency? Agencies should consult
with and coordinate with other jurisdictions that have similar regulatory
requirements when it is likely that coordination can reduce duplication and
inconsistency.
(f)
Cost. Have qualitative and quantitative benefits of the rule been considered
in relation to its cost?
(g)
Fairness. Does the rule result in equitable treatment of those required to
comply with it? Should it be modified to eliminate or minimize any
disproportionate impacts on the regulated community? Should it be strengthened
to provide additional protection?
(4)(a)
By July 1, 2002, and July 1st of each year thereafter, each agency shall report
to the rules review committee on the rules reviewed during the previous fiscal
year and other measures taken to improve its regulatory program. The reports
must include, but not be limited to: (i) The number of rule sections amended
or repealed and the number of pages eliminated in the Washington Administrative
Code; (ii) a summary of rules amended or repealed based on the review criteria
in this section; (iii) a summary of agency actions in response to petitions
under RCW 34.05.330; (iv) a summary of the results of the agency's review of
policy and interpretive statements and similar documents; (v) a summary of the
agency's review of reporting requirements imposed on businesses; and (vi)
recommendations for statutory or administrative changes resulting from the
regulatory reviews. More frequent reports may be requested, as necessary.
Agencies shall make the reports available to persons who have requested
notification of agency rule making and shall submit a summary of the report for
publication in the Washington State Register.
(b)
As part of its regulatory review, each agency shall review its existing policy
and interpretive statements or similar documents to determine whether or not
they must, by law, be adopted as rules. The review must include consultation
with the attorney general. Agencies shall concentrate their review on those
statements and documents that have been the source of complaints, concerns, or
other difficulties.
(c)
Each agency shall also review its reporting requirements that are applied
generally to all businesses or classes of businesses to ensure that they are
necessary and consistent with the principles and objectives of this section.
The goals of the review must be to achieve reporting requirements that, to the
extent possible, are coordinated with other state agencies with similar
requirements, are economical and easy to understand, and rely on electronic
transfer of information.
(5)(a)
An agency is deemed to have met the requirements of this section ninety days
after publication in the Washington State Register unless the rules review
committee receives a written objection of the agency's compliance with the
requirements of this section.
(b)
If a written objection is received within the ninety-day period, the rules
review committee will make a determination as to whether the agency did indeed
comply with this section.
(c)
If the committee finds the agency has failed to meet the requirements of this
section, the agency will have one hundred twenty days to meet the requirements
and receive approval by a majority vote of the committee. If the agency fails
to comply with the requirements of this section after the one hundred twenty
days, the committee may, by a majority vote of its members, recommend
suspension of a rule or rules included in the report. Within seven days of
that 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 any recommended suspension based on failure to meet
the rules review requirements. 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.
(d)
If the governor disapproves the recommendation of the rules review committee to
suspend a rule or rules in the report, the agency shall treat the transmittal
of that decision, along with the findings of the rules review committee, as a
petition by the committee to repeal the rule or rules under RCW 34.05.330.
(e)
The code reviser shall publish these transmittals according to RCW
34.05.640(5).
Sec.
9. RCW
34.05.610 and 1996 c 318 s 2 are each amended to read as follows:
(1)
There is hereby created a joint administrative rules review committee which
shall be a bipartisan committee consisting of four senators and four
representatives from the state legislature. The senate members of the
committee shall be appointed by the president of the senate, and the house
members of the committee shall be appointed by the speaker of the house. Not
more than two members from each house may be from the same political party.
The appointing authorities shall also appoint one alternate member from each
caucus of each house. All appointments to the committee are subject to
approval by the caucuses to which the appointed members belong.
(2)
Members and alternates shall be appointed as soon as possible after the
legislature convenes in regular session in an odd-numbered year, and their
terms shall extend until their successors are appointed and qualified at the
next regular session of the legislature in an odd-numbered year or until such
persons no longer serve in the legislature, whichever occurs first. Members
and alternates may be reappointed to the committee.
(3)
On or about January 1, 1999, the president of the senate shall appoint
the chairperson ((in even-numbered years)) and the vice chairperson ((in
odd-numbered years)) from among the committee membership. The
speaker of the house shall appoint the chairperson ((in odd-numbered years))
and the vice chairperson in alternating even-numbered years beginning
in the year 2000 from among the committee membership. The
secretary of the senate shall appoint the chairperson and the vice chairperson
in the alternating even-numbered years beginning in the year 2002 from among
the committee membership. Such appointments shall be made in January of
each even-numbered year as soon as possible after a legislative session
convenes.
(4)
The chairperson of the committee shall cause all meeting notices and committee
documents to be sent to the members and alternates. A vacancy shall be filled
by appointment of a legislator from the same political party as the original appointment.
The appropriate appointing authority shall make the appointment within thirty
days of the vacancy occurring.
Sec.
10. RCW
34.12.040 and 1981 c 67 s 4 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, whenever a state
agency conducts a hearing which is not presided over by officials of the agency
who are to render the final decision, the hearing shall be conducted by an
administrative law judge assigned under this chapter. In assigning
administrative law judges, the chief administrative law judge shall wherever
practical (((1))) (a) use personnel having expertise in the field
or subject matter of the hearing, and (((2))) (b) assign
administrative law judges primarily to the hearings of particular agencies on a
long-term basis.
(2)
An employee of the office of the insurance commissioner may conduct a hearing
as provided in RCW 48.04.010(5).
NEW
SECTION. Sec. 11. A
new section is added to chapter 43.132 RCW to read as follows:
(1)
To determine the fiscal impact of proposed rules on units of local government,
an agency shall prepare a local government economic impact statement if the
proposed rule will impose costs on units of local government.
(2)
The economic impact statement shall describe the reporting, recordkeeping, and
other compliance requirements of the proposed rule and analyze the costs of
compliance for local governments. An agency shall file the statement with the
code reviser along with the notice required under RCW 34.05.320.
(3)
The department of community, trade, and economic development shall develop a
guide to assist agencies in preparing the economic impact statement. The guide
shall be developed through a collaborative process with agencies and local
governments and other interested persons.
(4)
An agency shall maintain a list of proposed rules for which it prepares an
economic impact statement and a summary of the costs. By December 1st of each
year, an agency shall submit the list and summary to the joint administrative
rules review committee.
(5)
This section does not apply to:
(a)
A rule proposed for expedited repeal or expedited adoption, unless the agency
receives written objection;
(b)
Rules described in RCW 34.05.310(4); and
(c)
Rules adopted solely for the purpose of conformity or compliance, or both, with
federal statutes or regulations.
Sec.
12. RCW
48.04.010 and 1990 1st ex.s. c 3 s 1 are each amended to read as follows:
(1)
The commissioner may hold a hearing for any purpose within the scope of this
code as he or she may deem necessary. The commissioner shall hold a hearing:
(a)
If required by any provision of this code; or
(b)
Upon written demand for a hearing made by any person aggrieved by any act,
threatened act, or failure of the commissioner to act, if such failure is
deemed an act under any provision of this code, or by any report, promulgation,
or order of the commissioner other than an order on a hearing of which such
person was given actual notice or at which such person appeared as a party, or
order pursuant to the order on such hearing.
(2)
Any such demand for a hearing shall specify in what respects such person is so
aggrieved and the grounds to be relied upon as basis for the relief to be
demanded at the hearing.
(3)
Unless a person aggrieved by a written order of the commissioner demands a
hearing thereon within ninety days after receiving notice of such order, or in
the case of a licensee under Title 48 RCW within ninety days after the
commissioner has mailed the order to the licensee at the most recent address
shown in the commissioner's licensing records for the licensee, the right to
such hearing shall conclusively be deemed to have been waived.
(4)
If a hearing is demanded by a licensee whose license has been temporarily
suspended pursuant to RCW 48.17.540, the commissioner shall hold such hearing
demanded within thirty days after receipt of the demand or within thirty days
of the effective date of a temporary license suspension issued after such
demand, unless postponed by mutual consent.
(5)
A hearing held under this section must be conducted by an administrative law judge
unless the person demanding the hearing agrees in writing to have an employee
of the commissioner conduct the hearing.
NEW
SECTION. Sec. 13. If
specific funding for the purposes of this act, referencing this act by bill or
chapter number, is not provided by June 30, 1998, in the omnibus appropriations
act, this act is null and void.
NEW SECTION. Sec. 14. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
