WSR 97-19-042

RULES REVIEW PLAN

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed September 10, 1997, 2:40 p.m.]

Reviser's note: The following Rules Review Plan has been electronically generated directly from the agency and has not been through the usual editing and proofing processes.

The Washington State Department of Labor and Industries intends to use this plan to guide its efforts for regulatory improvement through the year 2001 and beyond. The plan was developed in response to Governor Gary Locke's Executive Order 97-02. That order requires all state agencies to review regulations to ensure they meet standards of need, effectiveness and efficiency, clarity, intent and statutory authority, coordination, cost and fairness.

Labor and Industries as an agency has made regulatory improvement one of its four major priorities. In order to implement our regulatory improvement priority, the agency has set goals that are based on a common sense approach. L&I will revise and develop rules that:

Focus on concerns of customers.

Are developed in partnership with both business and labor.

Are written in plain language and easy to understand.

Labor and Industries' responsibilities include worker health and safety, industrial insurance, crime victim compensation, inspection duties, building trades and other work-related and consumer protection activities. Because of this wide variety of responsibilities, the agency has many constituencies who are interested in our activities.

In developing this plan, Labor and Industries staff undertook an extensive effort to contact and obtain input from stakeholders. Methods of contact included personal visits, meetings, telephone calls and letters. In all, 1,286 individuals and organizations were asked to identify rules, policies and procedures that should be reviewed. Stakeholders also were encouraged to use Governor Locke's Executive Order criteria as categories to explain why a rule should be reviewed.

Some 2,291 rule sections and policies will be reviewed over the next four years. (See Appendix A for the schedule of rules to be reviewed)

This plan emphasizes consulting with affected organizations and the public at the beginning of the rules review process. The public's input will be sought very early in the process of reviewing a rule, before a proposal has been developed. Several methods will be used to involve external customers. This will include making use of existing advisory committees and forming new committees to review specific rules. L&I also will involve the public through workshops, public meetings, direct mailings, news coverage and articles in association newsletters.

This plan will be flexible and subject to change to reflect new information and changing technology. L&I will look at methods customers can use to file reports and forms via the Internet and other electronic pathways. The agency also will explore ways companies can pay fees and premiums electronically.

Progress in our regulatory improvement efforts will be measured by the number of rules and policies reviewed each year and by how many are repealed or revised. L&I also will document time savings and cost savings to the public, workers and the regulated community. The percentage of rules reviewed by the dates set in this plan also will be regularly reported. In addition, feedback from external customers and the public and examples of streamlining of the regulatory process will be collected. Ultimately, success will be determined by whether or not the agency can achieve its worker safety goals through an increase in voluntary compliance with our regulations.

Although this plan only covers a four-year period, regulatory improvement activities will be a regular part of L&I's processes beyond the year 2001. The Executive Order's seven criteria will be part of the examination of any new rule and existing rules. Labor and Industries embraces the concept of continuous improvement. Existing rules will be regularly reviewed to be sure they continue to be necessary, clearly written and up-to-date. All our rules will be reviewed. None will be exempted from review under the executive order.

This plan is available for the public on L&I's Internet home page and at L&I offices around the state. It also will be published in the State Register in September, 1997.

This rule review plan is intended to guide the Washington State Department of Labor and Industries' efforts in regulatory improvement. It was developed in response to Executive Order 97-02, issued by Governor Gary Locke on March 25, 1997.

The executive order requires all agencies to review their regulations to ensure the regulations meet standards of:

Need

Effectiveness and efficiency

Clarity

Consistency with legislative intent and statutory authority

Coordination

Cost

Fairness

The executive order called for each state agency to develop a plan to review its rules and submit that plan to the Governor no later than September 1, 1997. Agencies were required to consult with stakeholders in developing the plan.

Each agency's plan was mandated to contain these elements:

(a) A schedule for when the rules would be reviewed.

(b) Methods used to determine if the rules meet the executive order criteria.

(c) Means for public participation in the rules review process.

(d) Resources necessary for amending significant rules.

(e) Exceptions to the rule review process.

(f) A longer-term rules review process after the initial four-year review.

In addition to the rule review plan, agencies will submit yearly reports through the year 2000, beginning Oct. 15, 1997, on progress in implementing their rule review plans.

This plan is a "working" document. It will be changed to reflect new information furnished by the regulated community and the public. Other changes may occur if rules become outdated by changing technology or external mandates such as federal rule changes.

The Washington State Department of Labor and Industries' mission is:

"To promote a safe and healthful environment in which to work and live. In partnership with our customers, we strive to prevent injury, occupational illness and disability, and to limit economic hardship."

The agency delivers a diverse array of services to its customers - Washington's 5.5 million citizens, 157,000 employers and 2.8 million workers. Responsibilities include:

Providing workers with insurance benefits for on-the-job accidents and occupational diseases.

Providing financial and medical support to eligible victims of violent crime.

Assisting employers and employees in understanding and complying with worker-protection laws.

Enforcing state laws regarding workplace safety and health.

Enforcing state laws governing child labor, family leave, wage-and-hour requirements, construction compliance, prevailing wage on public work projects and other labor requirements.

Registering contractors and licensing electrical contractors, electrical administrators, journeymen and trainees and plumber journeymen and trainees.

Coordinating the state's apprenticeship job training program.

Conducting electrical, elevator, boiler, manufactured homes and factory-assembled structures inspections.

The agency has 2,600 employees located in six regions and 22 service locations and a central office in Tumwater. It is divided into five major divisions:

WISHA Services, which handles worker safety and health matters.

Specialty Compliance Services, which enforces state laws governing child labor, family leave, wage-and-hour requirements and other labor requirements and registers contractors and conducts electrical and other inspections.

Insurance Services, which provides workers' compensation benefits and assistance to crime victims.

Administrative Services, which provides management services to the agency and program support to WISHA Services and Insurance Services.

Information Services, which provides computer, telecommunications and technological support to each program.

L&I's structure also includes a Planning and Research Services division and operations regarding Communications, Quality and Human Resources.

Labor and Industries had a number of regulatory improvement activities under way at the time the executive order was issued. Twenty-four staff positions were added in 1995 under the omnibus regulatory reform act (ESHB 1010). Eighteen of those positions are located throughout the state in technical assistance assignments. Assignments include conducting workshops and consulting with individual businesses and industries on methods and requirements to reduce worker injury and health problems.

The agency also has been training staff in clear rule writing. Rules are being rewritten using a "clear writing" question-and-answer format. Five rules were rewritten in 1996 governing commercial coaches, factory assembled structures, manufactured homes, recreational vehicles/park trailers and agricultural practices. Labor and Industries also adopted two rules jointly with other agencies. Pesticide rules were adopted in conjunction with the Department of Agriculture and drug-free workplace rules were adopted jointly with the Department of Social and Health Services.

An example of regulatory improvement involved the drywall installation and finishing industry. Some drywall contractors told L&I that other contractors were underreporting hours worked by employees and thus paying less for workers compensation insurance. In turn, this allowed them to charge less for their services. Contractors who honestly reported hours worked were at a competitive disadvantage. Labor and Industries staff worked closely with industry representatives. After an extensive rule-making process, the basis for determining workers' compensation premiums for the drywall industry was changed from hours worked to materials installed. This new method provides greater fairness to all.

When Governor Locke issued Executive Order 97-02, Labor and Industries staff stepped up efforts to review regulations for possible revision or repeal. The director set up a top management committee to review progress on a weekly basis. Mary Pat Frederick, Assistant Director for Administrative Services, was appointed to head regulatory improvement efforts. Staff members from each division began work on a number of fronts, including:

Compiling a list of possible rule changes.

Developing lists of outside groups and individuals to be contacted. A list of stakeholders is available be contacting L&I offices.

Discussing ramifications of possible rule changes with the attorney general's office.

Preparing lists of petitions filed regarding rules over the past two years.

Labor and Industries activities affect the lives of virtually every person living in Washington. L&I staff ensure that the places where people work are safe, provide health and wage benefits when workers are injured on the job or fall ill because of work-related diseases as well as performing many other functions. The agency has many organizations and individuals interested in portions of our responsibilities. Other stakeholders are involved in all L&I's work.

Key Agency-wide Groups

Associated General Contractors of Washington

Association of Washington Business

Association of Washington Cities

Board of Industrial Insurance Appeals

Building Industry Association of Washington

Independent Business Association

International Brotherhood of Electrical Workers

National Federation of Independent Business

Retro Advisory Council

United Association of Plumbers and Pipefitters

U.S. Department of Labor, Occupational Safety and Health Administration

Washington Federation of State Employees

Washington Self Insurers Association

Washington State Association of Counties

Washington State Building and Construction Trades Council

Washington State Labor Council

Washington State Legislature

Washington State Medical Association

Washington State Trial Lawyers Association

Contacts in Developing This Plan

Labor and Industries staff undertook an extensive effort to contact and obtain input from individuals and organizations. Contacts included personal visits, meetings with groups, telephone calls and letters. Stakeholders were asked to identify rules, policies or procedures that should be reviewed and to explain which of the Executive Order's seven criteria applied. In all, 1,286 persons and groups were contacted and asked to provide input into this plan.

The WISHA Services Division mailed letters to organizations and individuals in May outlining the process, interactions and requirements of the Executive Order and requested input. Division staff met with several organizations to explain the Executive Order and get their comments. In early July a letter was faxed to both business and labor entities requesting input for formulation of the plan. The division also held workshops around the state to obtain an internal staff perspective. Follow-up meetings were conducted with associations to further review their proposals. The draft plan was then reviewed with interested business and labor entities.

The Specialty Compliance Services Division staff sent letters to external groups in early July soliciting comments. Labor and Industries staff also provided comments. This was followed up with phone calls requesting feedback. A copy of draft recommendations was sent to individuals and organizations for review and comment.

The Insurance Services Division used personal visits, public meetings, telephone conversations and mailings to invite comments and participation in reviews of department rules. An ongoing list of responses will be maintained to ensure that concerns are recognized and incorporated into the department's rule review process.

A complete list of stakeholders contacted in preparing this plan is available by contacting Jerry Gilliland at (360) 902-5411.

The agency also reviewed and considered petitions filed regarding rules over the past two years. In all, eight petitions have been filed since 1995. Four of the petitions were denied, three were accepted and one is under review. Four of the petitions concerned WISHA job safety issues, three concerned industrial insurance issues and one concerned employment standards.

The Department of Labor and Industries makes regulatory improvement one of its top four priorities.

The priority says:

"Regulatory Improvement: Creating Rules That Make Sense and Work Well. We develop rules that are necessary, fair, understandable, and consistent."

L&I's regulatory improvement goals are to revise and develop rules that:

Focus on priorities of concern to customers

Are developed in partnership with both business and labor

Are written in plain language and easy to understand

L&I wants to be sure rules are based on good sense, that there are good reasons for having the rule, and that it is necessary for successfully carrying out the agency's mission and legislative intent.

The agency also wants to be sure that the public is involved in the formative stages of developing proposals to change rules or writing new rules. Involving stakeholders and the public at the front end of the process provides valuable information at an early stage and a better product.

Regulatory improvement will be an integral part of achieving the other three L&I priorities: providing safe workplaces, providing better workers' compensation service to employers and employees, and delivering customer service in a professional and courteous manner.

Because Labor and Industries has many responsibilities, the review of rules, policies and procedures will need to be tailored to each particular rule. An overlapping theme of the review, however, will be common sense. In looking at each rule L&I will be asking the questions:

Why is this being done?

Is this rule really necessary?

How will success be measured?

Methods to be used to review rules, policies and procedures include:

Focusing on rules that are of greatest concern to the public and the regulated community.

Approaching rule revision as a partnership with the business community and labor organizations.

Keeping in mind the need for clarity and plain language in our rules.

A major goal will be to ensure that the public and the regulated community are involved at the beginning of the rules review process, before a proposal has been developed. L&I divisions plan several methods of involvement, including making use of current advisory committees and forming ad hoc groups to review specific rules.

Labor and Industries will use a variety of methods to involve the public in the agency's rule review process. This will include:

Developing mailing lists for notification of rule changes.

Making extensive use of public workshops

Conducting public meetings and public hearings.

Issuing news releases and other informational materials.

Submitting articles for association newsletters.

Using the agency's Internet home page to distribute information.

The seven criteria in the governor's Executive Order (need, effectiveness and efficiency, clarity, intent and statutory authority, coordination, cost and fairness) are serving as the standards L&I is using to review rules. In addition to public input using the criteria, Labor and Industries staff are now using the criteria in their work looking at both new and existing rules.

Division Methods

The WISHA Services Division will actively solicit comments for each review item, using standing labor and business committees along with internal e-mail requests. WISHA currently uses the Electrical Utilities Safety Advisory Committee (EUSAC), Construction Advisory Committee (CAC), Telecommunications Advisory Committee, Logging Advisory Committee and the First Aid Advisory Committee to provide comments to standards. For each of the division's vertical standards, stakeholders will be asked to comment and serve on advisory committees. The division used this process for agriculture, fire fighting and law enforcement and fall protection recently to amend rules and directives. Several major entities, such as the Association of Washington Business and the Washington State Labor Council, will be asked to assist in all reviews.

Rules: WISHA developed a comment collection sheet based on the criteria listed in the Executive Order. Division staff then developed a spreadsheet used to collect input and pertinent data. The technical staff at Labor and Industries discussed each issue raised by the stakeholder input in light of the criteria. After thorough discussion, a tentative ranking of the rules was developed. Staff then went back to organizations and individuals for clarification and further discussion. The senior WISHA staff then made decisions on the priority listing based on the data collected and discussions with technical staff and stakeholders.

Some rule sections contain more than one topic and/or issue. A few of the sections are being reviewed to address only specific issues as raised by stakeholders. For a more detailed description of the topics/issues proposed for review, please contact the department.

Policy and interpretive documents: Since late 1995, the department's major Washington Industrial Safety and Health Act (WISHA) policy emphasis has anticipated the direction given in Executive Order 97-02. The department gathered previous WISHA policies, reviewed all such policies to determine whether they were needed and accurate, and developed a consistent process and structure to provide policy guidance on other issues as identified by staff and by external stakeholders. As part of this effort, the department replaced all informal policies with numbered, indexed policies officially adopted by the department.

The program reviewed more than 300 policy documents. Many policy documents were obsolete or out of date, none was clearly indexed, and nearly two-thirds could not be tracked with confidence. The policy documents have been replaced with a total of 119 WISHA Interim Memorandums (WIMs), new WISHA Regional Directives (WRDs), and WRDs held over on a temporary basis. These documents accurately reflect current policy, only include obligations for employers or others already found in statute or administrative code, and can be readily identified by WISHA staff and many other interested parties.

A few policies have been identified which may include provisions requiring rulemaking. They have been included in the division's list of rules to be reviewed.

Non-Rulemaking Initiative: In discussions with the business community and others, the WISHA Services Division has recognized that many concerns can be addressed by several immediate initiatives that do not require rulemaking. In particular, division staff heard about the need to provide guidance regarding similar requirements that are located in more than one WISHA standard. The agency believes this need can be addressed through technical assistance documents and other mechanisms much more rapidly than will be possible through rulemaking. Other areas of recurring concern included enforcement of the Accident Prevention Plan requirements and the need for collaborative implementation plans related to significant new rulemaking. The agency believes these subjects can also be addressed before rulemaking.

WISHA Rule Implementation Plan: The department plans to implement a collaborative rule implementation planning process, relying primarily on the WISHA Advisory Committee and other available resources. Although 1997's Substitute House Bill 1992, which proposed to address this subject, was not acted upon by the Legislature, the department is prepared to implement its substance on its own initiative. Before new WISHA standards take effect, the department will meet with stakeholders regarding the rule's implementation and any appropriate employer outreach efforts.

The Specialty Compliance Services Division will be establishing ad hoc committees and board subcommittees that include external customers and agency staff. In addition, the division staff will attend meetings of stakeholder organizations and discuss regulatory improvement status and ask for comments. The division also will mail general information to major customer groups to keep them informed of program activities.

Utilizing the Executive Order review criteria, the division will continue to use advisory boards, ad hoc committees, and stakeholder comments to review proposed rules and interpretive documents. Prior to publishing new or revised rules or interpretive documents, stakeholders will be contacted and rules reviewed to ensure they are in compliance with the executive order guidelines.

For example, the division will be looking at several very controversial rules, such as child labor requirements and work uniforms.

The Insurance Services Division has concentrated its rule review process efforts by focusing on the laws and/or rules creating customer concerns. Groups and individuals have been invited to assist with the rule reviews, either by providing comments or serving on existing or new advisory committees. The division will keep them informed as the review process continues. The division's in-depth review will incorporate the seven Executive Order criteria points. Stakeholders will be asked to comment on whether changes have had positive results. The division expects to review all its rules within the four-year period.

For example, the division will be looking at rules regarding medical providers to better clarify the roles within the medical profession such as chiropractors, physician assistants and paraprofessionals.

The Administrative Services Division will contact external customers by telephone and mail to encourage their participation in the rules review process.

The division will apply the seven Executive Order criteria to each rule. If all criteria are not answered with a yes, then the rule will be reviewed and amended to meet the criteria.

Resources Required

The amount of resources needed to amend significant legislative rules depends on the complexity of each rule. Complexity is determined by: the number of sections involved, technical input requirements, public interest in a section, advisory committee requirements, federal requirements, and the number of impacted employers and employees. Many of the rules being reviewed during the next four years are extremely complex and will require significant expenditure of resources.

Electronic Commerce

The agency also intends to look at ways for more extensive use of "electronic commerce." This would mean seeking ways for reports and forms to be filed with the agency via the Internet and other electronic means. L&I also is exploring additional ways for companies to pay fees and premiums electronically.

Measuring Success

The success of L&I's regulatory improvement efforts will be measured in several ways:

The number of regulations, policies and orders reviewed each year.

The number of regulations, policies and orders repealed or revised each year.

Documented time savings and cost savings to the public, workers and the regulated community.

Examples of streamlining of the regulatory process.

The percentage of rule reviews completed by the dates set in this plan.

Feedback from the regulated community and others the regulations were designed to protect.

The number of rules rewritten to improve clarity, using the agency's clear rule writing program.

Whether there is increased voluntary compliance with revised regulations.

This rule review plan covers a four-year period ending in the year 2001. L&I expects that regulatory improvement activities will become a regular part of agency business during the next four years. The Executive Order's seven criteria will be a part of the examination of any new rule and in reviewing existing rules.

Some of L&I's divisions use many rules, policies and procedures to carry out their responsibilities. Agency staff will be looking first at those rules customers identify as a top priority. Other, less controversial rules may not be reviewed during the first four years, but they all are part of the department's long-range plan to review all agency rules, policies and procedures.

Some rules will be looked at annually. Others may be reviewed every several years. Labor and Industries embraces the concept of continuous process improvement. The agency will never be done looking at existing rules. Rules that are acceptable today may not be adequate four years from now, or they may no longer be needed.

After the initial four-year plan, the WISHA Services Division intends to continue streamlining its rulemaking. The division will apply quality principles and continuous process improvement. L&I has been delegated authority for enforcing federal worker safety standards. Adoption of any new federal Occupational Safety and Health Administration rules or substantive amendments would heavily impact schedules for WISHA rule review.

Within the next four years, the Specialty Compliance Services Division will review all its rules, policies and interpretive documents. The division will continue to monitor and review rules that are impacted by future legislative changes. All review processes will begin within 30 days after legislation is signed and draft recommendations developed within 120 days. Existing rules also will be reviewed periodically to determine if they are in compliance with the Executive Order criteria.

The Insurance Services Division has a periodic rule review process in place. Generally, rules are reviewed annually or every few years. From now on, the review process will use the Executive Order criteria.

The Administrative Services Division is setting up an ongoing review of its rules every four years using the Executive Order criteria.

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Most Labor and Industries employees are involved in regulatory reform activities in some capacity, either in the review of rules or in implementing reform measures. This is a list of persons who have major responsibilities for regulatory improvement efforts at Labor and Industries.

Chief Agency Coordinator: Mary Pat Frederick, assistant director for administrative services, (360) 902-6698.

Agency Contact: Dave Pratt, special assistant to the director, (360) 902-6697.

Public Information: Jerry Gilliland, public information officer, (360) 902-5411.

Rules Coordination: Marie Myerchin-Redifer, rules coordinator, (360) 902-4206.

Economic Analysis: Mike Ratko, economic analyst, (360) 902-6805

Insurance Services: Ken Woehl, (360) 902-4775.

WISHA Compliance Services: Gail Hughes, (360) 902-5439.

Specialty Compliance Services: Peter Schmidt (360) 902-5571

The Department of Labor and Industries maintains a home page on the Internet. A variety of information is provided regarding agency programs and training opportunities. Information includes descriptions of services, press releases, publications, events, training schedules and a directory of contacts. The Rule Review Plan is included on L&I's home page.

The home page address is:

http://www.wa.gov/lni

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This plan was scheduled to be published in Washington State Register in September, 1997. It also was sent to interested parties and is available on Labor and Industries Internet web site (see Appendix D) and at L&I regional offices. Copies of the plan can be obtained by calling your local Labor and Industries office listed below.

Aberdeen -- 415 West Wishkah, Suite 1B (360) 533-9300

Bellevue -- 616 120th Avenue NE, Suite C201 (206) 990-1400

Bellingham -- 1720 Ellis Street, Suite 200 (360) 647-7300

Bremerton -- 500 Pacific Avenue, Suite 400 (360) 415-4000

Colville -- 298 South Main, Suite 203 (509) 684-7417

East Wenatchee -- 519 Grant Road (509) 866-6500

Everett -- Evergreen Way Business Center 8625 Evergreen Way, Suite 250

(425) 290-1300

Kennewick -- 500 N Morain, Suite 1110 (509) 735-0100

Longview -- 900 Ocean Beach Hwy (360) 577-2200

Moses Lake -- 3001 W. Broadway (509) 764-6900

Mount Vernon -- 525 E College Way, Suite H (360) 416-3000

Okanogan -- 1234 2nd Avenue S (509) 826-7345

Port Angeles -- 1605 East Front Street, Suite C (360) 417-2700

Pullman -- 1250 Bishop Blvd SE, Suite G (509) 334-5296

Seattle -- 300 W Harrison Street (206) 281-5400

Spokane -- 901 N Monroe Street, Suite 100 (509) 324-2600

Tacoma -- 1305 Tacoma Avenue S, Suite 305 (253) 596-3800

Tukwila -- 12806 Gateway Drive (206) 248-8240

Tumwater -- 7273 Linderson Way SW (360) 902-5799

Vancouver -- 312 SE Stonemill Dr, Suite 120 (360) 896-2300

Walla Walla -- 1815 Portland Avenue, Suite 2 (509) 527-4437

Yakima -- 15 W. Yakima Avenue (509) 454-3700