HOUSE BILL REPORT

SSB 5058

As Amended by the House

BYSenate Committee on Governmental Operations (originally sponsored by Senators Halsan, Deccio, Johnson, Talmadge, Hansen, Lee, McDonald, Nelson, Anderson, Hayner and Saling; by request of Joint Administrative Rules Review Committee)

Strengthening authority of the legislature over agency rule-making.

House Committe on State Government

Majority Report:  Do pass with amendments.  (7)

      Signed by Representatives H. Sommers, Chair; Baugher, Chandler, Hankins, O'Brien, Taylor and Walk.

House Staff:Pam Madson (786-7135)

AS PASSED HOUSE APRIL 7, 1987

BACKGROUND:

The Administrative Procedure Act (APA) governs the procedure for the adoption of an administrative rule by state agencies.  An administrative rule is defined by the APA as an agency order, directive or regulation of general applicability.

The Joint Administrative Rules Review Committee (JARRC) reviews proposed and existing administrative rules of state agencies to determine whether the rules comply with legislative intent.  The JARRC is a bipartisan committee consisting of four Senators and four Representatives.

If the committee finds that a proposed or existing rule does not comply with legislative intent, it notifies the agency of its decision.  If the agency does not amend, modify, withdraw or repeal the rule to conform to legislative intent, the committee may file a notice of objection and a statement of its reasons with the Code Reviser.  The Code Reviser, in turn, publishes the committee's objections in the Washington State Register and a reference to the objections in the Washington Administrative Code.

Other than the publication of its objections, the committee's powers are advisory.

Many states have adopted rules review procedures that enable agency rules to be suspended if they are found to be outside of legislative intent.

Agencies occasionally substitute policy statements for formally adopted administrative rules, effectively circumventing the public notice, opportunity for comment, and hearing procedures established by the APA.  These policy statements are not published in the Washington State Register or Washington Administrative Code, compilations of proposed and existing administrative rules.

SUMMARY:

The Joint Administrative Rules Review Committee (JARRC) is authorized to temporarily suspend the effectiveness of existing agency administrative rules with concurrence by the governor.  When the committee determines that a rule does not conform with the intent of the legislature, it may suspend the rule by a two-thirds vote of its members.  If the governor approves the suspension of the rule, the suspension is effective from the date of the approval and continues until 90 days after the end of the next legislative session.

Notice of the committee's objections and a statement of its reasons must be transmitted to the governor and the agency within seven days of the vote to suspend the rule.  Within 30 days of the receipt of the notice, the governor must transmit to the committee, the agency, and the Code Reviser written approval or disapproval of the suspension.

The committee's suspension of a rule and the governor's action on it must be published in the Washington State Register and the Washington Administrative Code.

The JARRC is also authorized to review an agency's use of policy statements, guidelines, issuances or their equivalents.  The committee will determine whether an administrative rule should have been adopted.

If the committee finds that a rule should have been adopted, and the agency then fails to comply with the committee's decision, the committee's objection and statement of reasons may be published in the Washington State Register.  A reference to the objection is then published in the next compilation of the Washington Administrative Code.

When the committee finds that a proposed administrative rule is outside of legislative intent, the committee may require the agency to hold a hearing to consider its decision.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    Mike Ryherd, Washington State Medical Association, and Joint Council of Teamsters No. 28; Chuck Sauvage, Common Cause; and Jerry Farley, representing various clients.

House Committee - Testified Against:      Brett Buckley and Alan Paja, Department of Labor and Industries.

House Committee - Testimony For:    The ability to suspend a rule is a necessary next step in a process to oversee the promulgation of rules by state agencies.  JARRC needs added authority to deal with agencies who adopt rules that go beyond legislative intent.  By maintaining a two-thirds majority to recommend suspension of a rule, the possibility of abuse of the process is minimized.  Agencies should be required to put into rule those policies that belong in rules.

House Committee - Testimony Against:      Review of an agency's policy statements, guidelines, issuances or their equivalents adds another obstacle to the development of agency rules.  By allowing JARRC to review department policies and determine that the department should have adopted a rule when it did not, the potential exists for adverse parties to use the process to delay making and implementing rules.