AN
ACT Relating to state and local government; amending RCW 34.05.328; and adding
a new section to chapter 43.20A RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. 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 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 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.
NEW
SECTION. Sec. 2. A
new section is added to chapter 43.20A RCW to read as follows:
A
committee or council required by federal law, within the department of social
and health services, that makes policy recommendations regarding reimbursement
for drugs under the requirements of federal law or regulations is subject to
chapters 42.30 and 42.32 RCW.
