Following is the letter from JARRC for their finding on the proposed rule. See also WSR 10-01-065 for JARRC's notice of objection to the proposed Washington State Energy Code changes.
If you have questions or need additional information, please contact council staff at (360) 725-2966 or via e-mail at sbcc@cted.wa.gov.
Peter D. DeVries
Chair
Joint Administrative Rules Review CommitteePO Box 40600
Olympia, WA 98504-0600
December 9, 2009
The Honorable Peter DeVries, Council Chair
Mr. Jon Napier, Council Vice-Chair
Washington State Building Code Council
128 - 10th Avenue Southwest
Olympia, Washington 98504-2525
Dear Chair DeVries and Vice-Chair Napier:
The Joint Administrative Rules Review Committee (Committee)
respectfully acknowledges the significant work performed by
the many agencies and stakeholders in an effort to achieve
greater energy efficiencies, including the State Building Code
Council (Council) and the Council's Technical Advisory Groups.
As you know, the Committee expressed concerns regarding the
sufficiency of the economic impact analysis performed in
regards to the Council's 2009 proposed changes to the State
Energy Code (Chapter 51-11 of the Washington Administrative
Code). The purpose of this letter is to advise you of the
outcome of the Committee's December 2 meeting, at which the
Committee considered the adequacy of the Council's response to
the Committee's request for additional economic impact and
cost-benefit analyses.
As you are aware, by way of letter dated October 14, the
Committee requested that the Council amend the Small Business
Economic Impact Statement (SBEIS) to comply with all
requirements of the Regulatory Fairness Act, Chapter 19.85 RCW, and to support it with a detailed and rigorous costs
analysis of the cumulative impact of all the changes. The
Committee specifically requested that the Council provide an
estimate of how many jobs will be lost or created as a result
of compliance with all the proposed rules, as required by RCW 19.85.040 (2)(d), and that the Council solicit industry and
supplier sources in reaching it cost estimates. In addition,
the Committee exercised it statutory authority to direct the
Council to perform a cost-benefit analysis pursuant to RCW 34.05.328. Finally, the Committee asked that this additional
analysis be provided to the Committee prior to adoption of the
rules by the Council.
While the Committee is appreciative of the analysis and
information provided to the Committee in response to its
request, the Committee unanimously found on December 2 that
the Council's response was inadequate and failed to comply
with all requirements of the law. Support for these findings
include the following facts: the SBEIS was not amended to
reflect specific consideration of the cumulative impacts of
all the proposed changes, nor was any analysis performed to
estimate job loss or creation (as specifically required by
statute) or to provide the requested cost-benefit analysis.
The Committee feels the Council and the Legislature need this
information to fully evaluate the value, impacts, and
consequences of the proposed codes, with due diligence to
their respective fiduciary responsibilities, to create the
best informed public policy.
Based on the Committee's findings at the December 2 hearing,
the Committee unanimously agreed to take several actions,
including recommending suspension of adoption and
implementation of the rules; causing a statement to be
published in the State Register and Washington Administrative
Code; and introducing legislation in the 2010 legislative
session that would delay implementation of these proposed
changes until the Legislature has received the analysis we
requested and had an opportunity to determine whether the
additional analysis is sufficient. (See attached, copy of
adopted motion).
The Committee is aware that the Council's standard practice is
to consider updates to the Energy Code every three years.
However, it seems that the 2009 proposed changes are unusually
comprehensive and complex. While the Committee believes that
this work is extremely important, and that the Council has
worked diligently,, the Committee believes the Council did not
fully develop and consider the economic impact and
cost-benefits of these significant changes to our Energy Code.
Respectfully,
Bob Hasegawa
Chair
Joel Kretz
Vice-Chair
cc: Mr. Tim Nogler, Managing Director, SBCC
Ms. Sandra Adix, SBCC AAG
Representative Ormsby
Representative Dammeier
Senator Tom
Senator Holmquist
Representative Kelley
Representative Kristiansen
Senator McCaslin
Senator Kastama
Senator Fraser
Representative Crouse
Representative Hudgins
Senator Keiser
Representative McCoy
Senator Rockefeller
Representative Rolfes
Senator Kilmer
Speaker Chopp
Majority Leader Brown
Mr. Keith Phillips
Ms. Diane Smith
Attachment: JARRC Energy Code motion adopted Dec. 2,
2009
Reviser's note: The typographical errors in the above material occurred in the copy filed by the Joint Administrative Rules Review Committee and appear in the Register pursuant to the requirements of RCW 34.08.040.
Motion, State Energy Codes Work Session, December 2, 2009
As adopted by the Committee on: 12/2/2009
Motion passed: 5-0-2
(Vice-Chair): I move that the Joint Administrative Rules
Review Committee find that the State Building Code Council's
adoption of proposed changes and amendments to the State
Energy Code, Chapter 51-11 of the Washington Administrative
Code, on November 20, 2009 was not done in accordance with all
applicable provisions of law and that the Council failed to
adequately respond to this Committee's October 14, 2009
request for additional information because:
1. The Council failed to amend the small business
economic impact statement and provide the amended
impact statement to this Committee prior to adoption
of the rules in order to comply with all the
requirements of RCW 19.85.030, and it failed to
include in the amended impact statement an estimate
of the number of jobs that will be created or lost
and to support the amended statement with a detailed
and rigorous cost analysis of the cumulative impact
of all the changes; and
2. The Council failed to submit to this Committee a
cost-benefit analysis prepared pursuant to RCW 34.05.328 and to provide the analysis to this
Committee prior to adoption of the rules.
Based on these findings, and pursuant to RCW 34.05.640, the
Committee shall take the following actions:
• Recommend that the Governor suspend adoption and implementation of the changes to the State Energy Code that were adopted by the Council on November 20, 2009;
• Provide the Committee's objections to the Governor, the Office of the Code Reviser, the appropriate standing committees of the Legislature, and the Council;
• Direct the Code Reviser to publish the Committee's objections in the State Register and Washington Administrative Code; and
• Direct Committee staff to draft legislation that would suspend the implementation of the State Building Code Council's 2009 proposed changes and amendments to Chapter 51-11 of the Washington Administrative Code (the State Energy Code) until the Legislature has been provided with the additional economic impact and cost-benefit analysis information, as requested by the Committee in its October 14, 2009 letter to the Council, and has been given an opportunity to determine whether the additional information is sufficient to make an informed decision.
(Chair): It has been moved that the Committee find that the
State Building Code Council's adoption of proposed changes and
amendments to the State Energy Code on November 20, 2009 was
not done in accordance with all applicable provisions of law,
that the Council failed to adequately respond to this
Committee's request for additional information, and that the
Committee recommend suspension of the rules, provide
appropriate entities with notice of our objections, cause the
Code Reviser to publish our objections, and direct staff to
draft legislation.
Motion passed, 5-0-2.
Roll Call:
Voting yea: Representatives Hasegawa, Kretz, Kelley, and Kristiansen; Senator McCaslin
Voting nay: None.
Absent: None.
Excused: Senators Fraser and Kastama.