AN
ACT Relating to regulatory reform; amending RCW 76.09.010, 76.09.040,
48.02.060, 48.44.050, 48.46.200, 48.30.010, 34.05.010, 34.05.230, 34.05.325,
34.05.328, 34.05.350, 34.05.354, 82.32.410, 19.85.025, 34.05.570, 34.05.534,
48.04.010, 34.12.040, 34.05.630, 34.05.640, 34.05.655, 34.05.660, 4.84.340,
4.84.350, 4.84.360, 51.04.030, and 50.13.060; reenacting and amending RCW
42.17.260; adding a new section to chapter 43.22 RCW; adding new sections to
chapter 34.05 RCW; adding a new section to chapter 43.17 RCW; adding a new
section to chapter 43.05 RCW; creating new sections; and declaring an
emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
PART
I
GRANTS OF
RULE-MAKING AUTHORITY
*Sec.
101.
RCW 76.09.010 and 1993 c 443 s 1 are each amended to read as follows:
(1)
The legislature hereby finds and declares that the forest land resources are
among the most valuable of all resources in the state; that a viable forest
products industry is of prime importance to the state's economy; that it is in
the public interest for public and private commercial forest lands to be
managed consistent with sound policies of natural resource protection; that
coincident with maintenance of a viable forest products industry, it is
important to afford protection to forest soils, fisheries, wildlife, water
quantity and quality, air quality, recreation, and scenic beauty.
(2)
The legislature further finds and declares it to be in the public interest of
this state to create and maintain through the adoption of this chapter a
comprehensive state-wide system of laws and forest practices regulations which
will achieve the following purposes and policies:
(a)
Afford protection to, promote, foster and encourage timber growth, and require
such minimum reforestation of commercial tree species on forest lands as will
reasonably utilize the timber growing capacity of the soil following current
timber harvest;
(b)
Afford protection to forest soils and public resources by utilizing all
reasonable methods of technology in conducting forest practices;
(c)
Recognize both the public and private interest in the profitable growing and
harvesting of timber;
(d)
Promote efficiency by permitting maximum operating freedom consistent with the
other purposes and policies stated herein;
(e)
Provide for regulation of forest practices so as to avoid unnecessary
duplication in such regulation;
(f)
Provide for interagency input and intergovernmental and tribal coordination and
cooperation;
(g)
Achieve compliance with all applicable requirements of federal and state law
with respect to nonpoint sources of water pollution from forest practices;
(h)
To consider reasonable land use planning goals and concepts contained in local
comprehensive plans and zoning regulations; and
(i)
Foster cooperation among managers of public resources, forest landowners,
Indian tribes and the citizens of the state.
The
authority of the board to adopt forest practices rules is prescribed by this
subsection (2) and RCW 76.09.040. After the effective date of this act, the
board may not adopt forest practices rules based solely on any other section of
law stating a statute's intent or purpose, on the enabling provisions of the
statute establishing the agency, or on any combination of those provisions.
(3)
The legislature further finds and declares that it is also in the public
interest of the state to encourage forest landowners to undertake corrective
and remedial action to reduce the impact of mass earth movements and fluvial
processes.
(4)
The legislature further finds and declares that it is in the public interest
that the applicants for state forest practice permits should assist in paying
for the cost of review and permitting necessary for the environmental
protection of these resources.
*Sec. 101 was vetoed. See message at end of chapter.
*Sec.
102.
RCW 76.09.040 and 1994 c 264 s 48 are each amended to read as follows:
(1)
Where necessary to accomplish the purposes and policies specifically
stated in RCW 76.09.010(2), and to implement the provisions of this
chapter, the board shall ((promulgate)) adopt forest practices ((regulations))
rules pursuant to chapter 34.05 RCW and in accordance with the
procedures enumerated in this section that:
(a)
Establish minimum standards for forest practices;
(b)
Provide procedures for the voluntary development of resource management plans
which may be adopted as an alternative to the minimum standards in (a) of this
subsection if the plan is consistent with the purposes and policies specifically
stated in RCW 76.09.010(2) and the plan meets or exceeds the objectives
of the minimum standards;
(c)
Set forth necessary administrative provisions; and
(d)
Establish procedures for the collection and administration of forest practice
fees as set forth by this chapter.
Forest
practices ((regulations)) rules pertaining to water quality
protection shall be ((promulgated)) adopted individually by the
board and by the department of ecology after they have reached agreement with
respect thereto. All other forest practices ((regulations)) rules
shall be ((promulgated)) adopted by the board.
Forest
practices ((regulations)) rules shall be administered and
enforced by the department except as otherwise provided in this chapter. Such
((regulations)) rules shall be ((promulgated)) adopted
and administered so as to give consideration to all purposes and policies specifically
set forth in RCW 76.09.010(2).
(2)
The board shall prepare proposed forest practices ((regulations)) rules.
In addition to any forest practices ((regulations)) rules
relating to water quality protection proposed by the board, the department of
ecology shall prepare proposed forest practices ((regulations)) rules
relating to water quality protection.
Prior
to initiating the rule making process, the proposed ((regulations)) rules
shall be submitted for review and comments to the department of fish and
wildlife and to the counties of the state. After receipt of the proposed
forest practices ((regulations)) rules, the department of fish
and wildlife and the counties of the state shall have thirty days in which to
review and submit comments to the board, and to the department of ecology with
respect to its proposed ((regulations)) rules relating to water
quality protection. After the expiration of such thirty day period the board
and the department of ecology shall jointly hold one or more hearings on the
proposed ((regulations)) rules pursuant to chapter 34.05 RCW. At
such hearing(s) any county may propose specific forest practices ((regulations))
rules relating to problems existing within such county. The board and
the department of ecology may adopt such proposals if they find the proposals
are consistent with the purposes and policies of this chapter.
*Sec. 102 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 103. A
new section is added to chapter 43.22 RCW to read as follows:
For
rules adopted after the effective date of this act, the director of the
department of labor and industries may not rely solely on a statute's statement
of intent or purpose, on the enabling provisions of the statute establishing
the agency, or on any combination of those provisions, for statutory authority
to adopt any rule. This section does not apply to rules adopted under chapter
39.12 RCW.
*Sec.
104.
RCW 48.02.060 and 1947 c 79 s .02.06 are each amended to read as follows:
(1)
The commissioner shall have the authority expressly conferred upon him or
her by or reasonably implied from the provisions of this code.
(2)
The commissioner shall execute his or her duties and shall enforce the
provisions of this code.
(3)
The commissioner may:
(a)
Make reasonable rules and regulations for effectuating any provision of this
code, except those relating to his or her election, qualifications, or
compensation. However, the commissioner may not adopt rules after the
effective date of this act that are based solely on this statute, or on a
statute's statement of intent or purpose, or on the enabling provisions of the
statute establishing the agency, or any combination of those provisions, for
statutory authority to adopt any rule, except rules defining or clarifying
terms in, or procedures necessary to the implementation of a statute. No
such rules and regulations shall be effective prior to their being filed for
public inspection in the commissioner's office.
(b)
Conduct investigations to determine whether any person has violated any
provision of this code.
(c)
Conduct examinations, investigations, hearings, in addition to those
specifically provided for, useful and proper for the efficient administration
of any provision of this code.
*Sec. 104 was vetoed. See message at end of chapter.
*Sec.
105.
RCW 48.44.050 and 1947 c 268 s 5 are each amended to read as follows:
The
insurance commissioner shall make reasonable regulations in aid of the
administration of this chapter which may include, but shall not be limited to
regulations concerning the maintenance of adequate insurance, bonds, or cash
deposits, information required of registrants, and methods of expediting speedy
and fair payments to claimants. However, the commissioner may not adopt
rules after the effective date of this act that are based solely on this
section, a statute's statement of intent or purpose, or on the enabling
provisions of the statute establishing the agency, or any combination of those
provisions, for statutory authority to adopt any rule, except rules defining or
clarifying terms in, or procedures necessary to the implementation of a statute.
*Sec. 105 was vetoed. See message at end of chapter.
*Sec.
106.
RCW 48.46.200 and 1975 1st ex.s. c 290 s 21 are each amended to read as
follows:
The
commissioner may adopt, in accordance with the provisions of the Administrative
Procedure Act, chapter 34.05 RCW, ((promulgate)) rules and
regulations as necessary or proper to carry out the provisions of this
chapter. However, the commissioner may not adopt rules after the effective
date of this act that are based solely on this section, a statute's statement
of intent or purpose, or on the enabling provisions of the statute establishing
the agency, or any combination of those provisions, for statutory authority to
adopt any rule, except rules defining or clarifying terms in, or procedures
necessary to the implementation of a statute. Nothing in this chapter
shall be construed to prohibit the commissioner from requiring changes in
procedures previously approved by ((him)) the commissioner.
*Sec. 106 was vetoed. See message at end of chapter.
Sec.
107. RCW
48.30.010 and 1985 c 264 s 13 are each amended to read as follows:
(1)
No person engaged in the business of insurance shall engage in unfair methods
of competition or in unfair or deceptive acts or practices in the conduct of
such business as such methods, acts, or practices are defined pursuant to
subsection (2) of this section.
(2)
In addition to such unfair methods and unfair or deceptive acts or practices as
are expressly defined and prohibited by this code, the commissioner may from
time to time by regulation promulgated pursuant to chapter 34.05 RCW, define
other methods of competition and other acts and practices in the conduct of
such business reasonably found by the commissioner to be unfair or deceptive after
a review of all comments received during the notice and comment rule-making
period.
(3)(a)
In defining other methods of competition and other acts and practices in the
conduct of such business to be unfair or deceptive, and after reviewing all
comments and documents received during the notice and comment rule-making
period, the commissioner shall identify his or her reasons for defining the
method of competition or other act or practice in the conduct of insurance to
be unfair or deceptive and shall include a statement outlining these reasons as
part of the adopted rule.
(b)
The commissioner shall include a detailed description of facts upon which he or
she relied and of facts upon which he or she failed to rely, in defining the
method of competition or other act or practice in the conduct of insurance to
be unfair or deceptive, in the concise explanatory statement prepared under RCW
34.05.325(6).
(c)
Upon appeal the superior court shall review the findings of fact upon which the
regulation is based de novo on the record.
(4)
No such regulation shall be made effective prior to the expiration of thirty
days after the date of the order by which it is promulgated.
(((4)))
(5) If the commissioner has cause to believe that any person is
violating any such regulation, the commissioner may order such person to cease
and desist therefrom. The commissioner shall deliver such order to such person
direct or mail it to the person by registered mail with return receipt
requested. If the person violates the order after expiration of ten days after
the cease and desist order has been received by him or her, he or she may be
fined by the commissioner a sum not to exceed two hundred and fifty dollars for
each violation committed thereafter.
(((5)))
(6) If any such regulation is violated, the commissioner may take such
other or additional action as is permitted under the insurance code for
violation of a regulation.
PART
II
RULE-MAKING
REQUIREMENTS
*Sec.
201.
RCW 34.05.010 and 1992 c 44 s 10 are each amended to read as follows:
The
definitions set forth in this section shall apply throughout this chapter,
unless the context clearly requires otherwise.
(1)
"Adjudicative proceeding" means a proceeding before an agency in
which an opportunity for hearing before that agency is required by statute or
constitutional right before or after the entry of an order by the agency.
Adjudicative proceedings also include all cases of licensing and rate making in
which an application for a license or rate change is denied except as limited
by RCW 66.08.150, or a license is revoked, suspended, or modified, or in which
the granting of an application is contested by a person having standing to
contest under the law.
(2)
"Agency" means any state board, commission, department, institution
of higher education, or officer, authorized by law to make rules or to conduct
adjudicative proceedings, except those in the legislative or judicial branches,
the governor, or the attorney general except to the extent otherwise required
by law and any local governmental entity that may request the appointment of an
administrative law judge under chapter 42.41 RCW.
(3)
"Agency action" means licensing, the implementation or enforcement of
a statute, the adoption or application of an agency rule or order, the
imposition of sanctions, or the granting or withholding of benefits.
Agency
action does not include an agency decision regarding (a) contracting or
procurement of goods, services, public works, and the purchase, lease, or
acquisition by any other means, including eminent domain, of real estate, as
well as all activities necessarily related to those functions, or (b)
determinations as to the sufficiency of a showing of interest filed in support
of a representation petition, or mediation or conciliation of labor disputes or
arbitration of labor disputes under a collective bargaining law or similar
statute, or (c) any sale, lease, contract, or other proprietary decision in the
management of public lands or real property interests, or (d) the granting of a
license, franchise, or permission for the use of trademarks, symbols, and
similar property owned or controlled by the agency.
(4)
"Agency head" means the individual or body of individuals in whom the
ultimate legal authority of the agency is vested by any provision of law. If
the agency head is a body of individuals, a majority of those individuals
constitutes the agency head.
(5)
"De facto rule" means an issuance not adopted under Part III of
this chapter that the agency uses to (a) subject a person to a penalty or administrative
sanction; (b) establish, alter, or revoke a procedure, practice, or requirement
relating to agency hearings; (c) establish, alter, or revoke a qualification or
requirement relating to the enjoyment of a benefit or privilege conferred by
law; (d) establish, alter, or revoke a qualification or standard for the
issuance, suspension, or revocation of a license to pursue a commercial
activity, trade, or profession; or (e) establish, alter, or revoke mandatory
standards for a product or material that must be met before distribution or
sale. The term does not include (i) statements concerning only the internal
management of an agency and not affecting private rights or procedures
available to the public, (ii) declaratory rulings issued under RCW 34.05.240,
(iii) traffic restrictions for motor vehicles, bicyclists, and pedestrians
established by the secretary of transportation or his or her designee where
notice of the restrictions is given by official traffic control devices, or
(iv) rules of institutions of higher education involving standards of
admission, academic advancement, academic credit, graduation and the granting
of degrees, employment relationships, or fiscal processes.
(6)
"Entry" of an order means the signing of the order by all persons who
are to sign the order, as an official act indicating that the order is to be
effective.
(((6)))
(7) "Filing" of a document that is required to be filed with
an agency means delivery of the document to a place designated by the agency by
rule for receipt of official documents, or in the absence of such designation,
at the office of the agency head.
(((7)))
(8) "Institutions of higher education" are the University of
Washington, Washington State University, Central Washington University, Eastern
Washington University, Western Washington University, The Evergreen State
College, the various community colleges, and the governing boards of each of
the above, and the various colleges, divisions, departments, or offices
authorized by the governing board of the institution involved to act for the
institution, all of which are sometimes referred to in this chapter as
"institutions."
(((8)))
(9) "Interpretive statement" means a written expression of the
opinion of an agency, entitled an interpretive statement by the agency head or
its designee, as to the meaning of a statute or other provision of law, of a
court decision, or of an agency order.
(((9)))
(10) "Issuance" means a written document of general applicability
issued by an agency that is available to the public. It includes, but is not
limited to, an agency order of adoption, bulletin, directive, policy statement,
interpretive statement, guideline, letter, memorandum, rule, or de facto rule.
"Issuance" does not include final agency orders issued after an adjudicative
proceeding under Part IV of this chapter, tax determinations of precedential
value issued by the department of revenue, documents entitled "technical
assistance document," medical coverage decisions, tariffs, or permits.
(11)(a)
"License" means a franchise, permit, certification, approval,
registration, charter, or similar form of authorization required by law, but
does not include (i) a license required solely for revenue purposes, or (ii) a
certification of an exclusive bargaining representative, or similar status,
under a collective bargaining law or similar statute, or (iii) a license,
franchise, or permission for use of trademarks, symbols, and similar property
owned or controlled by the agency.
(b)
"Licensing" includes the agency process respecting the issuance,
denial, revocation, suspension, or modification of a license.
(((10)))
(12)(a) "Order," without further qualification, means a
written statement of particular applicability that finally determines the legal
rights, duties, privileges, immunities, or other legal interests of a specific
person or persons.
(b)
"Order of adoption" means the official written statement by which an
agency adopts, amends, or repeals a rule.
(((11)))
(13) "Party to agency proceedings," or "party" in a
context so indicating, means:
(a)
A person to whom the agency action is specifically directed; or
(b)
A person named as a party to the agency proceeding or allowed to intervene or
participate as a party in the agency proceeding.
(((12)))
(14) "Party to judicial review or civil enforcement
proceedings," or "party" in a context so indicating, means:
(a)
A person who files a petition for a judicial review or civil enforcement
proceeding; or
(b)
A person named as a party in a judicial review or civil enforcement proceeding,
or allowed to participate as a party in a judicial review or civil enforcement
proceeding.
(((13)))
(15) "Person" means any individual, partnership, corporation,
association, governmental subdivision or unit thereof, or public or private
organization or entity of any character, and includes another agency.
(((14)))
(16) "Policy statement" means a written description of the
current approach of an agency, entitled a policy statement by the agency head
or its designee, to implementation of a statute or other provision of law, of a
court decision, or of an agency order, including where appropriate the agency's
current practice, procedure, or method of action based upon that approach.
(((15)))
(17) "Rule" means any ((agency order, directive, or
regulation of general applicability (a) the violation of which subjects a
person to a penalty or administrative sanction; (b) which establishes, alters,
or revokes any procedure, practice, or requirement relating to agency hearings;
(c) which establishes, alters, or revokes any qualification or requirement
relating to the enjoyment of benefits or privileges conferred by law; (d) which
establishes, alters, or revokes any qualifications or standards for the
issuance, suspension, or revocation of licenses to pursue any commercial
activity, trade, or profession; or (e) which establishes, alters, or revokes any
mandatory standards for any product or material which must be met before
distribution or sale)) issuance adopted under Part III of this chapter.
The term includes the amendment or repeal of a prior rule((, but does not
include (i) statements concerning only the internal management of an agency and
not affecting private rights or procedures available to the public, (ii)
declaratory rulings issued pursuant to RCW 34.05.240, (iii) traffic
restrictions for motor vehicles, bicyclists, and pedestrians established by the
secretary of transportation or his designee where notice of such restrictions
is given by official traffic control devices, or (iv) rules of institutions of
higher education involving standards of admission, academic advancement,
academic credit, graduation and the granting of degrees, employment
relationships, or fiscal processes)).
(((16)))
(18) "Rules review committee" or "committee" means
the joint administrative rules review committee created pursuant to RCW
34.05.610 ((for the purpose of selectively reviewing existing and proposed
rules of state agencies)).
(((17)))
(19) "Rule making" means the process for formulation and
adoption of a rule.
(((18)))
(20) "Service," except as otherwise provided in this chapter,
means posting in the United States mail, properly addressed, postage prepaid,
or personal service. Service by mail is complete upon deposit in the United
States mail. Agencies may, by rule, authorize service by electronic
telefacsimile transmission, where copies are mailed simultaneously, or by
commercial parcel delivery company.
*Sec. 201 was vetoed. See message at end of chapter.
*Sec.
202. RCW
34.05.230 and 1996 c 206 s 12 are each amended to read as follows:
(1)
((If the adoption of rules is not feasible and practicable,)) 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.
(9)
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)) issuances.
Unless adopted under Part III of this chapter or exempted under the definition
of de facto rule as defined in RCW 34.05.010, these issuances are advisory
only. ((To better inform and involve the public, an agency is encouraged to
convert long-standing interpretive and policy statements into rules.
(2))) (10)
A person may petition an agency ((requesting the conversion of interpretive
and policy statements into rules)) to adopt an issuance as a rule.
Upon submission, the agency shall notify the joint administrative rules review
committee of the petition. A person may petition an agency requesting the
repeal or withdrawal of an interpretive or policy statement. Within sixty
days after submission of ((a)) either type of 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.
(((3)))
(11) 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.
(((4)))
(12) 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.
*Sec. 202 was partially vetoed. See message at end of
chapter.
*NEW
SECTION. Sec. 203.
A new section is added to chapter 34.05 RCW under the subchapter heading
"Part III" to read as follows:
In
lieu of regular mail, an agency may send the contents of any notice pertaining
to rule making required under this chapter by electronic mail or facsimile mail
if requested in writing by the person entitled to receive the notice.
*Sec. 203 was vetoed. See message at end of chapter.
*Sec.
204.
RCW 34.05.325 and 1995 c 403 s 304 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 electronic mail,
telefacsimile transmissions, or recorded telephonic communications, the
agency ((may)) shall 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)) is able 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 or electronic mail
comments and on the minutes of tape recorded comments. The agency shall accept
comments received by these means for inclusion in the ((official record))
rule-making file established under RCW 34.05.370 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)(a)
Before it files an adopted rule with the code reviser, an agency shall prepare
a concise explanatory statement of the rule:
(i)
Identifying the agency's reasons for adopting the rule;
(ii)
Describing differences between the text of the proposed rule as published in
the register and the text of the rule as adopted, other than editing changes,
stating the reasons for differences; and
(iii)
Summarizing all comments received regarding the proposed rule, and responding
to the comments by category or subject matter, indicating how the final rule
reflects agency consideration of the comments, or why it fails to do so.
(b)
The agency shall provide the concise explanatory statement to any person upon
request or from whom the agency received comment.
*Sec. 204 was vetoed. See message at end of chapter.
*Sec.
205.
RCW 34.05.328 and 1995 c 403 s 201 are each amended to read as follows:
(1)
Before adopting a rule described in subsection (5) 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) 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:
(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.
(4)
After adopting a rule described in subsection (5) 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)(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)(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)) ninety
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;
((or))
(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)
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.
*Sec. 205 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 206. A
new section is added to chapter 34.05 RCW under the subchapter heading
"Part III" to read as follows:
Each
state agency shall prepare a semiannual agenda for rules under development.
The agency shall file the agenda with the code reviser for publication in the
state register not later than January 31st and July 31st of each year. Not
later than three days after its publication in the state register, the agency
shall send a copy of the agenda to each person who has requested receipt of a
copy of the agenda. The agency shall also submit the agenda to the director of
financial management, the rules review committee, and any other state agency
that may reasonably be expected to have an interest in the subject of rules
that will be developed.
*Sec.
207.
RCW 34.05.350 and 1994 c 249 s 3 are each amended to read as follows:
(1)
If an agency 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
agency may dispense with those requirements and adopt, amend, or repeal the
rule on an emergency basis. ((The agency's finding and a concise statement
of the reasons for its 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 must
contain the governor's signature approving the adoption of the emergency rule
or amendment if immediate adoption is found necessary for the preservation of
the general welfare. In that case, the governor shall also include a statement
explaining why the rule is necessary for that reason. For all other emergency
rules, the order of adoption must contain the agency's finding and a concise
statement of the reasons for its finding.
(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.
(3)
Within seven days after the rule is adopted, any person may petition the
governor requesting the immediate repeal of a rule adopted on an emergency
basis by any department listed in RCW 43.17.010. Within seven days after
submission of the petition, the governor shall either deny the petition in
writing, stating his or her reasons for the denial, or order the immediate
repeal of the rule. In ruling on the petition, the governor shall consider
only whether the conditions in subsection (1) of this section were met such
that adoption of the rule on an emergency basis was necessary. If the governor
orders the repeal of the emergency rule, any sanction imposed based on that
rule is void. This subsection shall not be construed to prohibit adoption of
any rule as a permanent rule.
(((4)
In adopting an emergency rule, the agency shall comply with section 4 of this
act or provide a written explanation for its failure to do so.))
*Sec. 207 was vetoed. See message at end of chapter.
Sec.
208. RCW
34.05.354 and 1995 c 403 s 701 are each amended to read as follows:
(1)
Not later than ((June 30th)) 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 the expedited repeal of rules meeting 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)
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)
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 ((July)) May 31st or November 30th of each
year, or in the first register published after that date.
(5)
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)
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.
NEW
SECTION. Sec. 209. The
legislature finds that rules existing as of the effective date of this act may
be unclear or difficult to understand; written or being implemented in a way
that does not conform with the intent of the legislature as expressed by the
statute that the rule implements; duplicative of, inconsistent with, or in
conflict with other state, federal, or local rules or statutes; excessively
costly or outdated in the methods prescribed; unauthorized because the
authorizing statute has since been repealed or amended; or no longer necessary
to meet the purposes of the statute that it implements. The legislature
further finds that the review of existing rules is a critical undertaking that
is necessary to address these and other deficiencies.
The
legislature acknowledges the special nature of the relationship between the
legislative and executive branches of government, the cooperation between both
of which is essential to the just and efficient administration of the laws of
this state.
The
legislature further acknowledges the governor's Executive Order 97-02, which
provides for executive review of existing rules of agencies the heads of which
are appointed by and serve at the pleasure of the governor. The legislature
encourages not only these but all agencies to establish a formal and
expeditious process for the review of existing rules in consideration of the
aforementioned deficiencies in the rules of all state agencies and their
interactions with each other.
*NEW
SECTION. Sec. 210.
A new section is added to chapter 34.05 RCW under the subchapter heading
"Part III" to read as follows:
(1)
No rule, adopted by any agency after the effective date of this act, is
effective for more than seven years after the rule is adopted, unless the rule
has been reviewed under the procedure in this subsection. An agency shall
review a rule to evaluate:
(a)
Achievement of the goals and objectives of the rule;
(b)
Technological changes that impact the implementation of or compliance with the
rule;
(c)
Controversy surrounding the implementation or enforcement of the rule, stating
the nature of the controversy;
(d)
The outcome of any court challenges to the validity of the rule or its authority
to draft the rule;
(e)
Actual costs or changes undergone by the regulated community; and
(f)
Laws or other rules passed since the rule was adopted that are in conflict,
impact its implementation, or render the rule obsolete.
The
agency shall place in a rules review file documentation sufficient to show that
the agency conducted the review under this section.
(2)
Those rules certified to the legislature by the governor to have undergone
executive rules review by July 31, 2001, are subject to review under subsection
(1) of this section beginning July 31, 2001, and may be effective for no more
than seven years after that date unless so reviewed.
*Sec. 210 was vetoed. See message at end of chapter.
Sec.
211. RCW
82.32.410 and 1991 c 330 s 2 are each amended to read as follows:
(1)
The director may designate certain written determinations as precedents.
(a)
By rule adopted pursuant to chapter 34.05 RCW, the director shall adopt
criteria which he or she shall use to decide whether a determination is
precedential. These criteria shall include, but not be limited to, whether the
determination clarifies an unsettled interpretation of Title 82 RCW or where
the determination modifies or clarifies an earlier interpretation.
(b)
Written determinations designated as precedents by the director shall be indexed
by subject matter. The determinations and indexes shall be made available
for public inspection and shall be published by the department.
(c)
The department shall disclose any written determination upon which it relies to
support any assessment of tax, interest, or penalty against such taxpayer,
after making the deletions provided by subsection (2) of this section.
(2)
Before making a written determination available for public inspection under
subsection (1) of this section, the department shall delete:
(a)
The names, addresses, and other identifying details of the person to whom the
written determination pertains and of another person identified in the written
determination; and
(b)
Information the disclosure of which is specifically prohibited by any statute
applicable to the department of revenue, and the department may also delete
other information exempted from disclosure by chapter 42.17 RCW or any other
statute applicable to the department of revenue.
Sec.
212. RCW
19.85.025 and 1995 c 403 s 401 are each amended to read as follows:
(1)
Unless an agency receives a written objection to the expedited repeal of a
rule, this chapter does not apply to a rule proposed for expedited repeal
pursuant to RCW 34.05.354. If an agency receives a written objection to
expedited repeal of the rule, this chapter applies to the rule-making
proceeding.
(2)
This chapter does not apply to a rule proposed for expedited adoption under
RCW 34.05.230 (1) through (8), unless a written objection is timely filed with
the agency and the objection is not withdrawn.
(3)
This chapter does not apply to the adoption of a rule described in RCW
34.05.310(4).
(((3)))
(4) An agency is not required to prepare a separate small business
economic impact statement under RCW 19.85.040 if it prepared an analysis under
RCW 34.05.328 that meets the requirements of a small business economic impact
statement, and if the agency reduced the costs imposed by the rule on small
business to the extent required by RCW 19.85.030(3). The portion of the
analysis that meets the requirements of RCW 19.85.040 shall be filed with the
code reviser and provided to any person requesting it in lieu of a separate
small business economic impact statement.
NEW
SECTION. Sec. 213. (1)
The legislature finds that there are state rules on the same subject adopted by
more than one state agency. The legislature further finds that this situation
places an undue hardship on those regulated by rules issued by more than one
state agency on the same subject since the regulated individuals must determine
what the combined requirements of the rules from the multiple agencies are and
how to comply with the requirements of one agency without violating the
requirements of another agency.
(2)
The governor or his or her designee shall present to the legislature a plan for
the design and implementation of a pilot project on a single subject for the
consolidation of all rules adopted by any state agency that regulate that same
activity or subject matter. The goal of the pilot project is to consolidate
these rules into one rule or set of rules that will be the sole and conclusive
source of all regulation affecting that activity or subject matter.
The
governor or his or her designee shall present the plan for the pilot project to
the legislature no later than November 30, 1997.
PART
III
JUDICIAL
REVIEW
*Sec.
301.
RCW 34.05.570 and 1995 c 403 s 802 are each amended to read as follows:
(1)
Generally. Except to the extent that this chapter or another statute provides
otherwise:
(a)
Except as provided in subsection (2) of this section, the burden of
demonstrating the invalidity of agency action is on the party asserting
invalidity;
(b)
The validity of agency action shall be determined in accordance with the
standards of review provided in this section, as applied to the agency action
at the time it was taken;
(c)
The court shall make a separate and distinct ruling on each material issue on
which the court's decision is based; and
(d)
The court shall grant relief only if it determines that a person seeking
judicial relief has been substantially prejudiced by the action complained of.
(2)
Review of rules. (a) A rule may be reviewed by petition for declaratory
judgment filed pursuant to this subsection or in the context of any other
review proceeding under this section. In an action challenging the validity of
a rule, the agency shall be made a party to the proceeding.
(b)
The validity of any rule may be determined upon petition for a declaratory
judgment addressed to the superior court of Thurston county, when it appears
that the rule, or its threatened application, interferes with or impairs or
immediately threatens to interfere with or impair the legal rights or privileges
of the petitioner. When the validity of a rule is challenged, after the
petitioner has identified the defects in the rule, the burden of going forward
with the evidence is on the agency. The declaratory judgment order may be
entered whether or not the petitioner has first requested the agency to pass
upon the validity of the rule in question.
(c)
In a proceeding involving review of a rule, the court shall declare the rule
invalid only if it finds that: The rule violates constitutional provisions; the
rule exceeds the statutory authority of the agency; the rule was adopted
without compliance with statutory rule-making procedures; or the rule is
arbitrary and capricious.
(3)
Review of agency orders in adjudicative proceedings. The court shall grant
relief from an agency order in an adjudicative proceeding only if it determines
that:
(a)
The order, or the statute or rule on which the order is based, is in violation
of constitutional provisions on its face or as applied;
(b)
The order is outside the statutory authority or jurisdiction of the agency
conferred by any provision of law;
(c)
The agency has engaged in unlawful procedure or decision-making process, or has
failed to follow a prescribed procedure;
(d)
The agency has erroneously interpreted or applied the law;
(e)
The order is not supported by evidence that is substantial when viewed in light
of the whole record before the court, which includes the agency record for
judicial review, supplemented by any additional evidence received by the court
under this chapter;
(f)
The agency has not decided all issues requiring resolution by the agency;
(g)
A motion for disqualification under RCW 34.05.425 or 34.12.050 was made and was
improperly denied or, if no motion was made, facts are shown to support the
grant of such a motion that were not known and were not reasonably discoverable
by the challenging party at the appropriate time for making such a motion;
(h)
The order is inconsistent with a rule of the agency unless the agency explains
the inconsistency by stating facts and reasons to demonstrate a rational basis
for inconsistency; ((or))
(i)
The order is arbitrary or capricious; or
(j)
The order is based on a de facto rule.
(4)
Review of other agency action.
(a)
All agency action not reviewable under subsection (2) or (3) of this section
shall be reviewed under this subsection.
(b)
A person whose rights are violated by an agency's failure to perform a duty
that is required by law to be performed may file a petition for review pursuant
to RCW 34.05.514, seeking an order pursuant to this subsection requiring
performance. Within twenty days after service of the petition for review, the
agency shall file and serve an answer to the petition, made in the same manner
as an answer to a complaint in a civil action. The court may hear evidence,
pursuant to RCW 34.05.562, on material issues of fact raised by the petition
and answer.
(c)
Relief for persons aggrieved by the performance of an agency action, including
the exercise of discretion, or an action under (b) of this subsection can be
granted only if the court determines that the action is:
(i)
Unconstitutional;
(ii)
Outside the statutory authority of the agency or the authority conferred by a
provision of law;
(iii)
Arbitrary or capricious; ((or))
(iv)
Taken by persons who were not properly constituted as agency officials lawfully
entitled to take such action; or
(v)
Based on a de facto rule.
*Sec. 301 was vetoed. See message at end of chapter.
Sec.
302. RCW
34.05.534 and 1995 c 403 s 803 are each amended to read as follows:
A
person may file a petition for judicial review under this chapter only after
exhausting all administrative remedies available within the agency whose action
is being challenged, or available within any other agency authorized to
exercise administrative review, except:
(1)
A petitioner for judicial review of a rule need not have participated in the
rule-making proceeding upon which that rule is based, have petitioned for its
amendment or repeal, have petitioned the joint administrative rules review
committee for its review, or have appealed a petition for amendment or
repeal to the governor;
(2)
A petitioner for judicial review need not exhaust administrative remedies to
the extent that this chapter or any other statute states that exhaustion is not
required; or
(3)
The court may relieve a petitioner of the requirement to exhaust any or all
administrative remedies upon a showing that:
(a)
The remedies would be patently inadequate;
(b)
The exhaustion of remedies would be futile; or
(c)
The grave irreparable harm that would result from having to exhaust
administrative remedies would clearly outweigh the public policy requiring
exhaustion of administrative remedies.
*Sec.
303.
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.
*Sec. 303 was vetoed. See message at end of chapter.
*Sec.
304.
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).
*Sec. 304 was vetoed. See message at end of chapter.
PART
IV
LEGISLATIVE
REVIEW
*Sec.
401.
RCW 34.05.630 and 1996 c 318 s 4 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,)) issuances are subject to
selective review by the legislature.
(2)
((All agency policy and interpretive statements are subject to selective
review by the legislature.
(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)) that the rule implements, (b) that the
rule has not been adopted in accordance with all applicable provisions of law,
or (c) that an agency issuance is ((using a policy or interpretive
statement in place of)) a de facto 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)))
(3) 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)) that the rule
implements, (b) whether the rule was adopted in accordance with all applicable
provisions of law, or (c) whether ((the agency is using a policy or
interpretive statement in place of a)) an agency issuance is a de facto
rule.
*Sec. 401 was vetoed. See message at end of chapter.
*Sec.
402.
RCW 34.05.640 and 1996 c 318 s 5 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 intended action on a proposed or
existing rule or issuance to which the committee objected ((or on a
committee finding of the agency's failure to adopt rules)).
(2)
If the rules review committee finds by a majority vote of its members: (a)
That the proposed or existing rule in question will not be modified, amended,
withdrawn, or repealed by the agency so as to conform with the intent of the
legislature, (b) that an existing rule was not adopted in accordance with all
applicable provisions of law, or (c) that the agency will not modify or
withdraw a de facto rule, or replace ((the policy or interpretive
statement)) it with a rule, the rules review committee may, within
thirty days from notification by the agency of its intended 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 regarding an existing
rule under subsection (2)(a) or (b) of this section or a de facto rule under
subsection (2)(c) of this section, the committee may, by a majority vote of
its members, recommend suspension of the 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 (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. If the transmittal relates to a de facto rule, the code
reviser shall publish the reference within the Washington State Register and
the Washington Administrative Code in a location that addresses the most
relevant subject matter.
(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.
*Sec. 402 was vetoed. See message at end of chapter.
*Sec.
403.
RCW 34.05.655 and 1996 c 318 s 7 are each amended to read as follows:
(1)
Any person may petition the rules review committee for a review of a proposed
or existing rule or ((a policy or interpretive statement)) other
issuance. Within thirty days of the receipt of the petition, the rules
review committee shall acknowledge receipt of the petition and describe any
initial action taken. If the rules review committee rejects the petition, a
written statement of the reasons for rejection shall be included.
(2)
A person may petition the rules review committee under subsection (1) of this
section requesting review of an existing rule only if the person has petitioned
the agency to amend or repeal the rule under RCW 34.05.330(1) and such petition
was denied.
(3)
A petition for review of a rule under subsection (1) of this section shall:
(a)
Identify with specificity the proposed or existing rule to be reviewed;
(b)
Identify the specific statute identified by the agency as authorizing the rule,
the specific statute which the rule interprets or implements, and, if
applicable, the specific statute the department is alleged not to have followed
in adopting the rule;
(c)
State the reasons why the petitioner believes that the rule is not within the
intent of the legislature, or that its adoption was not or is not in accordance
with law, and provide documentation to support these statements;
(d)
Identify any known judicial action regarding the rule or statutes identified in
the petition.
A
petition to review an existing rule shall also include a copy of the agency's
denial of a petition to amend or repeal the rule issued under RCW 34.05.330(1)
and, if available, a copy of the governor's denial issued under RCW
34.05.330(3).
(4)
A petition for review of ((a policy or interpretive statement)) an
issuance other than a proposed or existing rule under subsection (1) of
this section shall:
(a)
Identify the specific ((statement)) issuance to be reviewed;
(b)
((Identify the specific statute which the rule interprets or implements;
(c)))
State the reasons why the petitioner believes that the ((statement)) issuance
meets the definition of a de facto rule under RCW 34.05.010 ((and
should have been adopted according to the procedures of this chapter));
(((d)))
(c) Identify any known judicial action regarding the ((statement))
issuance or statutes identified in the petition.
(5)
Within ninety days of receipt of the petition, the rules review committee shall
make a final decision on the rule or other issuance for which the
petition for review was not previously rejected.
*Sec. 403 was vetoed. See message at end of chapter.
*Sec.
404.
RCW 34.05.660 and 1988 c 288 s 606 are each amended to read as follows:
(1)
Except as provided in subsection (2) of this section, it is the express
policy of the legislature that establishment of procedures for review of
administrative rules by the legislature and the notice of objection required by
RCW 34.05.630(2) and 34.05.640(2) in no way serves to establish a presumption
as to the legality or constitutionality of a rule in any subsequent judicial
proceedings interpreting such rules.
(2)
If the joint administrative rules review committee recommends to the governor
that an existing rule be suspended because it does not conform with the intent
of the legislature or was not adopted in accordance with all applicable
provisions of law, the recommendation establishes a rebuttable presumption in a
proceeding challenging the validity of the rule that the rule is invalid. The
burden of demonstrating the validity of the rule is then on the adopting
agency.
*Sec. 404 was vetoed. See message at end of chapter.
PART
V
FEES
AND EXPENSES
*Sec.
501.
RCW 4.84.340 and 1995 c 403 s 902 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout RCW 4.84.340 through 4.84.360.
(1)
"Agency" means any state board, commission, department, institution
of higher education, or officer, authorized by law to make rules or to conduct
adjudicative proceedings, except those in the legislative or judicial branches,
the governor, or the attorney general except to the extent otherwise required
by law.
(2)
"Agency action" means agency action as defined by chapter 34.05 RCW.
(3)
"Fees and other expenses" includes the reasonable expenses of expert
witnesses, the reasonable cost of a study, analysis, engineering report, test,
or project that is found by the court to be necessary for the preparation of
the party's case, and reasonable attorneys' fees. Reasonable attorneys' fees
shall be based on the prevailing market rates for the kind and quality of
services furnished, except that (a) no expert witness shall be compensated at a
rate in excess of the highest rates of compensation for expert witnesses paid
by the state of Washington, and (b) attorneys' fees shall not be awarded in
excess of one hundred fifty dollars per hour unless the court determines that
an increase in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved, justifies a
higher fee.
(4)
"Judicial review" means ((a judicial review as defined by chapter
34.05 RCW)) review of an agency action in the superior court and courts
of appeal.
(5)
"Qualified party" means (a) an individual whose net worth did not
exceed ((one)) two million dollars at the time the initial petition
for judicial review was filed or (b) a sole owner of an unincorporated
business, or a partnership, corporation, association, or organization whose net
worth did not exceed ((five)) seven million dollars at the time
the initial petition for judicial review was filed, except that an organization
described in section 501(c)(3) of the federal Internal Revenue Code
of 1954 as exempt from taxation under section 501(a) of the code and a
cooperative association as defined in section 15(a) of the Agricultural Marketing
Act (12 U.S.C. 1141J(a)), may be a party regardless of the net worth of
such organization or cooperative association.
*Sec. 501 was vetoed. See message at end of chapter.
*Sec.
502.
RCW 4.84.350 and 1995 c 403 s 903 are each amended to read as follows:
(1)
Except as otherwise specifically provided by statute, a court shall award a
qualified party that prevails in a judicial review of an agency action fees and
other expenses incurred in the judicial review, including reasonable
attorneys' fees, unless the court finds that ((the agency action was
substantially justified or that)) circumstances make an award grossly
unjust. A qualified party shall be considered to have prevailed if the
qualified party obtained relief on a significant issue that achieves some
benefit that the qualified party sought.
(2)
The amount awarded a qualified party under subsection (1) of this section shall
not exceed ((twenty-five)) fifty thousand dollars for the fees
and other expenses incurred in superior court, and fifty thousand dollars for
the fees and other expenses incurred in each court of appeal to a maximum of
seventy-five thousand dollars. Subsection (1) of this section shall not
apply unless all parties challenging the agency action are qualified parties.
If two or more qualified parties join in an action, the award in total shall
not exceed ((twenty-five)) fifty thousand dollars in the
superior court and fifty thousand dollars in each court of appeal to a maximum
of seventy-five thousand dollars. The court, in its discretion, may reduce
the amount to be awarded pursuant to subsection (1) of this section, or deny
any award, to the extent that a qualified party during the course of the
proceedings engaged in conduct that unduly or unreasonably protracted the final
resolution of the matter in controversy.
*Sec. 502 was vetoed. See message at end of chapter.
*Sec.
503.
RCW 4.84.360 and 1995 c 403 s 904 are each amended to read as follows:
Fees
and other expenses awarded under RCW 4.84.340 and 4.84.350 shall be paid by the
agency over which the party prevails from operating funds appropriated to the
agency within ((sixty days)) thirty days of the decision of a
superior court or court of appeal. The fees and other expenses must be paid
from moneys appropriated to the agency for administration and support services
and not out of moneys for program activities or service delivery if the
operating budget or budget notes separately designate administration and
support services. Agencies paying fees and other expenses pursuant to RCW
4.84.340 and 4.84.350 shall report all payments to the office of financial
management within five days of paying the fees and other expenses. Fees and
other expenses awarded by the court shall be subject to the provisions of
chapter 39.76 RCW and shall be deemed payable on the date the court announces
the award.
*Sec. 503 was vetoed. See message at end of chapter.
PART
VI
MISCELLANEOUS
Sec.
601. RCW
42.17.260 and 1995 c 397 s 11 and 1995 c 341 s 1 are each reenacted and amended
to read as follows:
(1)
Each agency, in accordance with published rules, shall make available for
public inspection and copying all public records, unless the record falls
within the specific exemptions of subsection (6) of this section, RCW
42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of
specific information or records. To the extent required to prevent an
unreasonable invasion of personal privacy interests protected by RCW 42.17.310
and 42.17.315, an agency shall delete identifying details in a manner
consistent with RCW 42.17.310 and 42.17.315 when it makes available or
publishes any public record; however, in each case, the justification for the
deletion shall be explained fully in writing.
(2)
For informational purposes, each agency shall publish and maintain a current
list containing every law, other than those listed in this chapter, that the
agency believes exempts or prohibits disclosure of specific information or
records of the agency. An agency's failure to list an exemption shall not
affect the efficacy of any exemption.
(3)
Each local agency shall maintain and make available for public inspection and
copying a current index providing identifying information as to the following
records issued, adopted, or promulgated after January 1, 1973:
(a)
Final opinions, including concurring and dissenting opinions, as well as
orders, made in the adjudication of cases;
(b)
Those statements of policy and interpretations of policy, statute, and the
Constitution which have been adopted by the agency;
(c)
Administrative staff manuals and instructions to staff that affect a member of
the public;
(d)
Planning policies and goals, and interim and final planning decisions;
(e)
Factual staff reports and studies, factual consultant's reports and studies,
scientific reports and studies, and any other factual information derived from
tests, studies, reports, or surveys, whether conducted by public employees or
others; and
(f)
Correspondence, and materials referred to therein, by and with the agency
relating to any regulatory, supervisory, or enforcement responsibilities of the
agency, whereby the agency determines, or opines upon, or is asked to determine
or opine upon, the rights of the state, the public, a subdivision of state
government, or of any private party.
(4)
A local agency need not maintain such an index, if to do so would be unduly
burdensome, but it shall in that event:
(a)
Issue and publish a formal order specifying the reasons why and the extent to
which compliance would unduly burden or interfere with agency operations; and
(b)
Make available for public inspection and copying all indexes maintained for
agency use.
(5)
Each state agency shall, by rule, establish and implement a system of indexing
for the identification and location of the following records:
(a)
All records issued before July 1, 1990, for which the agency has maintained an
index;
(b)
Final orders entered after June 30, 1990, that are issued in adjudicative
proceedings as defined in RCW 34.05.010(((1))) and that contain an
analysis or decision of substantial importance to the agency in carrying out
its duties;
(c)
Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW
34.05.240 and that contain an analysis or decision of substantial importance to
the agency in carrying out its duties;
(d)
Interpretive statements as defined in RCW 34.05.010(((8))) that were
entered after June 30, 1990; and
(e)
Policy statements as defined in RCW 34.05.010(((14))) that were entered
after June 30, 1990.
Rules
establishing systems of indexing shall include, but not be limited to,
requirements for the form and content of the index, its location and availability
to the public, and the schedule for revising or updating the index. State
agencies that have maintained indexes for records issued before July 1, 1990,
shall continue to make such indexes available for public inspection and
copying. Information in such indexes may be incorporated into indexes prepared
pursuant to this subsection. State agencies may satisfy the requirements of
this subsection by making available to the public indexes prepared by other
parties but actually used by the agency in its operations. State agencies
shall make indexes available for public inspection and copying. State agencies
may charge a fee to cover the actual costs of providing individual mailed
copies of indexes.
(6)
A public record may be relied on, used, or cited as precedent by an agency
against a party other than an agency and it may be invoked by the agency for
any other purpose only ifC
(a)
It has been indexed in an index available to the public; or
(b)
Parties affected have timely notice (actual or constructive) of the terms
thereof.
(7)
Each agency shall establish, maintain, and make available for public inspection
and copying a statement of the actual per page cost or other costs, if any,
that it charges for providing photocopies of public records and a statement of
the factors and manner used to determine the actual per page cost or other
costs, if any.
(a)
In determining the actual per page cost for providing photocopies of public
records, an agency may include all costs directly incident to copying such
public records including the actual cost of the paper and the per page cost for
use of agency copying equipment. In determining other actual costs for
providing photocopies of public records, an agency may include all costs
directly incident to shipping such public records, including the cost of
postage or delivery charges and the cost of any container or envelope used.
(b)
In determining the actual per page cost or other costs for providing copies of
public records, an agency may not include staff salaries, benefits, or other
general administrative or overhead charges, unless those costs are directly
related to the actual cost of copying the public records. Staff time to copy
and mail the requested public records may be included in an agency's costs.
(8)
An agency need not calculate the actual per page cost or other costs it charges
for providing photocopies of public records if to do so would be unduly
burdensome, but in that event: The agency may not charge in excess of fifteen
cents per page for photocopies of public records or for the use of agency
equipment to photocopy public records and the actual postage or delivery charge
and the cost of any container or envelope used to mail the public records to
the requestor.
(9)
This chapter shall not be construed as giving authority to any agency, the
office of the secretary of the senate, or the office of the chief clerk of the
house of representatives to give, sell or provide access to lists of
individuals requested for commercial purposes, and agencies, the office of the
secretary of the senate, and the office of the chief clerk of the house of
representatives shall not do so unless specifically authorized or directed by
law: PROVIDED, HOWEVER, That lists of applicants for professional licenses and
of professional licensees shall be made available to those professional
associations or educational organizations recognized by their professional
licensing or examination board, upon payment of a reasonable charge therefor:
PROVIDED FURTHER, That such recognition may be refused only for a good cause
pursuant to a hearing under the provisions of chapter 34.05 RCW, the
Administrative Procedure Act.
*Sec.
602.
RCW 51.04.030 and 1994 c 164 s 25 are each amended to read as follows:
The
director shall supervise the providing of prompt and efficient care and
treatment, including care provided by physician assistants governed by the
provisions of chapters 18.57A and 18.71A RCW, acting under a supervising
physician, and including chiropractic care, to workers injured during the
course of their employment at the least cost consistent with promptness and
efficiency, without discrimination or favoritism, and with as great uniformity
as the various and diverse surrounding circumstances and locations of
industries will permit and to that end shall, from time to time, establish and
adopt and supervise the administration of printed forms, rules, regulations,
and practices for the furnishing of such care and treatment: PROVIDED, That,
the department may recommend to an injured worker particular health care
services and providers where specialized treatment is indicated or where cost
effective payment levels or rates are obtained by the department: AND PROVIDED
FURTHER, That the department may enter into contracts for goods and services
including, but not limited to, durable medical equipment so long as state-wide
access to quality service is maintained for injured workers.
The
director shall, in consultation with interested persons, establish and, in his
or her discretion, periodically change as may be necessary, and make available
a fee schedule of the maximum charges to be made by any physician, surgeon,
chiropractor, hospital, druggist, physicians' assistants as defined in chapters
18.57A and 18.71A RCW, acting under a supervising physician or other agency or
person rendering services to injured workers. The department shall coordinate
with other state purchasers of health care services to establish as much
consistency and uniformity in billing and coding practices as possible, taking
into account the unique requirements and differences between programs. No
service covered under this title shall be charged or paid at a rate or rates
exceeding those specified in such fee schedule, and no contract providing for
greater fees shall be valid as to the excess. The establishment of such a
schedule, exclusive of conversion factors, does not constitute "agency
action" as used in RCW 34.05.010(((3))), nor does such a fee
schedule constitute a "de facto rule" as used in RCW
34.05.010(((15))).
The
director or self-insurer, as the case may be, shall make a record of the
commencement of every disability and the termination thereof and, when bills
are rendered for the care and treatment of injured workers, shall approve and
pay those which conform to the adopted rules, regulations, established fee
schedules, and practices of the director and may reject any bill or item
thereof incurred in violation of the principles laid down in this section or
the rules, regulations, or the established fee schedules and rules and
regulations adopted under it.
*Sec. 602 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 603. A
new section is added to chapter 43.17 RCW to read as follows:
(1)
An agency, prior to releasing a final report or study regarding management by a
county, city, town, special purpose district, or other unit of local government
of a program delegated to the local government by the agency or for which the
agency has regulatory responsibility, shall provide copies of a draft of the
report or study at least two weeks in advance of the release of the final
report or study to the legislative body of the local government. The agency
shall, at the request of a local government legislative body, meet with the
legislative body before the release of a final report or study regarding the
management of such a program.
(2)
For purposes of this section, "agency" means an office, department,
board, commission, or other unit of state government, other than a unit of
state government headed by a separately elected official.
*NEW
SECTION. Sec. 604.
A new section is added to chapter 43.05 RCW to read as follows:
When
issuing a citation or other written finding that a person has violated a
statute, rule, or order, the agency shall include with the citation or other written
finding the text of the specific statute or statutes granting the agency the
authority to regulate the subject matter of the citation or other written
finding.
*Sec. 604 was vetoed. See message at end of chapter.
Sec.
605. RCW
50.13.060 and 1996 c 79 s 1 are each amended to read as follows:
(1)
Governmental agencies, including law enforcement agencies, prosecuting
agencies, and the executive branch, whether state, local, or federal shall have
access to information or records deemed private and confidential under this
chapter if the information or records are needed by the agency for official
purposes and:
(a)
The agency submits an application in writing to the employment security department
for the records or information containing a statement of the official purposes
for which the information or records are needed and specific identification of
the records or information sought from the department; and
(b)
The director, commissioner, chief executive, or other official of the agency
has verified the need for the specific information in writing either on the
application or on a separate document; and
(c)
The agency requesting access has served a copy of the application for records
or information on the individual or employing unit whose records or information
are sought and has provided the department with proof of service. Service
shall be made in a manner which conforms to the civil rules for superior
court. The requesting agency shall include with the copy of the application a
statement to the effect that the individual or employing unit may contact the
public records officer of the employment security department to state any
objections to the release of the records or information. The employment
security department shall not act upon the application of the requesting agency
until at least five days after service on the concerned individual or employing
unit. The employment security department shall consider any objections raised
by the concerned individual or employing unit in deciding whether the
requesting agency needs the information or records for official purposes.
(2)
The requirements of subsections (1) and (8) of this section shall not apply to
the state legislative branch. The state legislature shall have access to
information or records deemed private and confidential under this chapter, if
the legislature or a legislative committee finds that the information or
records are necessary and for official purposes. If the employment security
department does not make information or records available as provided in this
subsection, the legislature may exercise its authority granted by chapter 44.16
RCW.
(3)
In cases of emergency the governmental agency requesting access shall not be
required to formally comply with the provisions of subsection (1) of this
section at the time of the request if the procedures required by subsection (1)
of this section are complied with by the requesting agency following the
receipt of any records or information deemed private and confidential under
this chapter. An emergency is defined as a situation in which irreparable harm
or damage could occur if records or information are not released immediately.
(4)
The requirements of subsection (1)(c) of this section shall not apply to
governmental agencies where the procedures would frustrate the investigation of
possible violations of criminal laws or to the release of employing unit
names, addresses, number of employees, and aggregate employer wage data for the
purpose of state governmental agencies preparing small business economic impact
statements under chapter 19.85 RCW or preparing cost-benefit analyses under RCW
34.05.328(1)(c). Information provided by the department and held to be private
and confidential under state or federal laws must not be misused or released to
unauthorized parties. A person who misuses such information or releases such
information to unauthorized parties is subject to the sanctions in RCW
50.13.080.
(5)
Governmental agencies shall have access to certain records or information,
limited to such items as names, addresses, social security numbers, and general
information about benefit entitlement or employer information possessed by the
department, for comparison purposes with records or information possessed by
the requesting agency to detect improper or fraudulent claims, or to determine
potential tax liability or employer compliance with registration and licensing
requirements. In those cases the governmental agency shall not be required to
comply with subsection (1)(c) of this section, but the requirements of the
remainder of subsection (1) must be satisfied.
(6)
Governmental agencies may have access to certain records and information,
limited to employer information possessed by the department for purposes
authorized in chapter 50.38 RCW. Access to these records and information is
limited to only those individuals conducting authorized statistical analysis,
research, and evaluation studies. Only in cases consistent with the purposes
of chapter 50.38 RCW are government agencies not required to comply with
subsection (1)(c) of this section, but the requirements of the remainder of
subsection (1) of this section must be satisfied. Information provided by the
department and held to be private and confidential under state or federal laws
shall not be misused or released to unauthorized parties subject to the
sanctions in RCW 50.13.080.
(7)
Disclosure to governmental agencies of information or records obtained by the
employment security department from the federal government shall be governed by
any applicable federal law or any agreement between the federal government and
the employment security department where so required by federal law. When
federal law does not apply to the records or information state law shall
control.
(8)
The disclosure of any records or information by a governmental agency which has
obtained the records or information under this section is prohibited unless the
disclosure is directly connected to the official purpose for which the records
or information were obtained.
(9)
In conducting periodic salary or fringe benefit studies pursuant to law, the
department of personnel shall have access to records of the employment security
department as may be required for such studies. For such purposes, the
requirements of subsection (1)(c) of this section need not apply.
NEW
SECTION. Sec. 606. The
code reviser shall study the feasibility of accepting agency rule filings in an
electronic format. The study must include consideration of the benefits to be
achieved by electronic filing compared to the costs that electronic filing
would entail. The code reviser may consult with the office of financial
management, state agencies, and the general public in conducting the study.
The code reviser shall report to the legislature and the governor by July 1,
1998, on the results of this study.
NEW
SECTION. Sec. 607. Part
headings used in this act do not constitute any part of the law.
NEW
SECTION. Sec. 608.
Section 605 of this act is necessary for the immediate preservation of the
public peace, health, or safety, or support of the state government and its
existing public institutions, and takes effect immediately.
NEW
SECTION. Sec. 609. 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.
