WSR 98-07-033

PROPOSED RULES

PUBLIC WORKS BOARD

[Filed March 11, 1998, 3:39 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-22-015

Title of Rule: All permanent rules of the Public Works Board, Title 399 WAC will be reviewed under this proposed action

Purpose: Consistent with Executive Order 97-02, Regulatory Improvement, the Public Works Board is reviewing, modifying, reconfirming, or eliminating its current rules as contained in the WAC

Statutory Authority for Adoption: RCW 43.155.040 (4) and (5)

Statute Being Implemented: Chapter 43.155 RCW

Summary: By its preproposal statement of inquiry and a public meeting, the board has sought public input and modified its proposed rules review and readoption process. The proposed rule modifications are those that accompany this notice

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Pete A. Butkus, P.O. Box 48319, Olympia, WA 98504, (360) 586-7186

Name of Proponent: Public Works Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This chapter [title] of the WAC covers activities of the Public Works Board. Consistent with Executive Order 97-03 [97-02], Regulatory Improvement, the board has reviewed its rules and determined that minor modifications and housekeeping language changes are necessary. In order to reduce costs and public confusion, the entire WAC title is being reviewed at once

Proposal Changes the Following Existing Rules: The changes involve clarification of eligible cost activities and general "housekeeping" language

No small business economic impact statement has been prepared under chapter 19.85 RCW. The board WAC deals only with local governments, not business. There is no small business impact.

RCW 34.05.328 does not apply to this rule adoption. This is not a significant rule as defined by RCW 34.05.328 (5)(a)(i).

Hearing Location: The Wenatchee Center, 201 North Wenatchee, Wenatchee, WA, on Tuesday, May 5, at 9:00 a.m

Assistance for Persons with Disabilities: Contact Beth Rockwell by April 21, 1998, (360) 753-3262

Submit Written Comments to: Pete A. Butkus, e-mail peteb@cted.wa.gov or FAX (360) 664-3029 by April 23, 1998

Date of Intended Adoption: May 5, 1998

March 11, 1998

Pete A. Butkus

Rules Coordinator

OTS-1937.1

AMENDATORY SECTION (Amending WSR 95-11-093, filed 5/19/95, effective 6/19/95)

WAC 399-10-010  Organization and operation of the public works board. (1) The public works board, hereinafter referred to as the board, is a thirteen-member board appointed by the governor and created pursuant to RCW 43.155.030.

(2) The governor shall appoint one of the general public members of the board as chair. The board may elect such other officers for such terms as it may from time to time deem necessary ((in accordance with the board's bylaws)).

(3) The board's staff support and office space is provided by the Department of Community, Trade, and Economic Development, P.O. Box 48319, Olympia, Washington 98504-8319; phone (360) 753-2200.

The Internet WEB site address is: www.CRAB.wa.gov/pwtf

[Statutory Authority: RCW 43.155.040(4). 95-11-093, § 399-10-010, filed 5/19/95, effective 6/19/95; 93-22-014, § 399-10-010, filed 10/26/93, effective 11/26/93. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-10-010, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 93-22-014, filed 10/26/93, effective 11/26/93)

WAC 399-10-030  Communications with the board. Any and all written communications with the board, including but not limited to requests for information or copies of agency records, or submittals of any nature, shall be addressed to the public works board, in care of the chair, at the address which appears in WAC 399-10-010(3). Telephonic communications may be initiated by calling the phone number ((also)) listed in WAC 399-10-010(3). Electronic communications may be initiated through the Internet WEB site listed in WAC 399-10-010(3).

[Statutory Authority: RCW 43.155.040(4). 93-22-014, § 399-10-030, filed 10/26/93, effective 11/26/93. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-10-030, filed 12/4/85.]

OTS-1938.2

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-060  Office hours. Public records shall be available for inspection and copying during the department's normal office hours. For purposes of this chapter, normal office hours shall be from ((9:00)) 8:00 a.m. to noon and from 1:00 p.m. to 5:00 p.m., Monday through Friday, excluding legal holidays, closure due to natural disaster, inclement weather, or local emergencies.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-060, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-070  Requests for public records. In accordance with the requirements of chapter 42.17 RCW that agencies prevent unreasonable invasions of privacy, and to protect public records from damage or disorganization, and to prevent excessive interference with essential functions of the board, public records may be inspected or copied, or copies of such records may be obtained by members of the public, upon compliance with the following procedures:

(1) A request shall be made in writing upon ((a)) the form prescribed by the board and set forth in WAC 399-20-120 which shall be available at the board's offices, or by writing or calling the board.

(2) The form shall be presented or mailed to the public records officer, or to any member of the board's staff, if the public records officer is not available, at the board's offices during normal office hours. ((The request shall include the following information:

(a) The name, address, and organization represented, if any, of the person requesting the record;

(b) The calendar date on which the request was made, and, when presented in person, the time of day;

(c) The nature of the request;

(d) If the matter requested is referred to within the current index maintained by the records officer, a reference to the requested record as it is described in such current index.

(2))) (3) In all cases in which a member of the public is making a request, it shall be the obligation of the public records officer or staff member to assist the member of the public in appropriately identifying the public record requested.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-070, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-100  Review of denials of public records requests. (1) Any person who objects to the denial of a request for public records may petition for prompt review of such decision by submitting a written request for review. The written request shall specifically refer to the written statement by the public records officer or other staff member which constituted or accompanied the denial.

(2) Following receipt of a written request for review of a decision denying a request from public records, the public records officer or other authorized staff member denying the request shall refer it to the ((chairman)) chair of the board or ((his)) designee. The ((chairman)) chair or ((his)) designee shall immediately consider the matter and either affirm or reverse such denial. The request shall be returned with the final decision, within two business days following receipt of the request for review.

(3) Administrative remedies shall not be considered exhausted until the request has been returned with a decision or until the close of the second business day following the denial of inspection, whichever occurs first.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-100, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-120  Adoption of form. The board hereby adopts for use by all persons requesting inspection or copying of its records, the form set out below, entitled "request for public records."

In order to request copies of our public records, please complete the attached form and return it with the proper payment to the address below. We will forward to you those requested copies which are not exempt from disclosure when we receive this form. Thank you.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-120, filed 12/4/85.]

OTS-1939.1

AMENDATORY SECTION (Amending Order 89-01, filed 4/28/89)

WAC 399-30-020  Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Board" means the public works board.

(2) "Department" means the department of community, trade, and economic development.

(3) "Financing guarantees" means the pledge of money in the public works assistance account, or money to be received by the public works assistance account, to the repayment of all or a portion of the principal of or interest on obligations issued by local governments to finance public works projects.

(4) "Local governments" means cities, towns, counties, special purpose districts, and any other municipal corporations or quasi-municipal corporations in the state excluding school districts and port districts.

(5) "Public works project" means a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of ((streets and roads, bridges, water systems, or storm and sanitary sewage)) bridges, roads, domestic water systems, sanitary sewer systems, storm sewer systems, and solid waste/recycling systems.

(6) "Emergency public works project" means a public works project made necessary by a natural disaster, or an immediate and emergent threat to the public health and safety due to unforeseen or unavoidable circumstances.

[Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-020, filed 4/28/89. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-020, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-030  Loan and financing guarantee applications. (1) Applications for loans and/or financing guarantees to assist in the financing of critical public works projects may be made by any local government in the state of Washington.

(2) All applicants must meet the following conditions:

(a) Applicant cities and counties must be imposing a real estate excise tax under RCW 82.46.010(2) at a rate of at least one-quarter of one percent;

(b) Applicant local governments must have developed a long-term plan for financing public works needs as further described in the loan application package((; and

(c) Applicant local governments must be using all local revenue sources that are reasonably available for funding public works, taking into consideration local employment and economic factors.)) under "capital facilities planning."

(3) Direct costs eligible for public works loans are those costs which are directly attributable to a specific project and shall include:

(a) ((Direct labor (engineering and/or construction) including related employee benefits:)) Work done by employees of the applicant, or by other government employees under an inter-local agreement or contract limited to: Engineering, environmental review, design activities, acquisition of rights of way or property, construction inspection activities, roadway seal coating if bids from private sector contractors have been solicited and compared with the inter-local agreement proposal, and the cleaning, sterilization, or bacteriological testing of water system components prior to public use.

(i) Salaries and wages (at actual or average rates) covering productive labor hours of the local government employees (excluding the administrative organization of the operating unit involved) ((for periods of time, actively or incidentally engaged in (A) engineering, (B) acquisition of rights-of-way, (C) construction inspection activities)). The cost of services rendered by employees generally classified as administrative are considered a direct cost only when such employees are assigned for short periods of time to perform on a full-time basis the types of services described above and when similar procedures are followed;

(ii) Employee benefits relating to direct labor are considered a direct cost of construction projects. The following items may be included as employee benefits:

(A) F.I.C.A. (Social Security) - employer's share;

(B) Retirement benefits;

(C) Hospital, health, dental, and other welfare insurance;

(D) Life insurance;

(E) Industrial and medical insurance;

(F) Vacation;

(G) Holiday;

(H) Sick leave; and

(I) Military leave and jury duty.

Employee benefits shall be calculated as a percentage of direct labor dollars. The computation of predetermined percentage rates to be applied to current labor costs shall be based upon the average of total employee benefits and total labor costs for the prior fiscal year and adjusted by known current year variations.

(b) Contract engineering ((and)), planning, legal, and financial planning services.

(c) Right-of-way acquisition costs including:

(i) Purchase of land and easements acquired for and devoted to the project;

(ii) Purchase of improvements;

(iii) Adjustment or reestablishment of improvements;

(iv) Salaries, expenses or fees of appraisers, negotiators or attorneys;

(v) Removal or demolition of improvement;

(vi) Other direct costs in connection with the acquisition. Amounts received from the sale of excess real property or improvements and from any rentals shall be a reduction of the direct cost.

(d) Contract construction work.

(e) Direct vehicle and equipment charges at the actual rental cost paid for the equipment or, in the case of city or county-owned equipment, at the rental rates established by the local government's "equipment rental and revolving fund" following the methods prescribed by the division of municipal corporations: Provided, That such costs shall be charged on a uniform basis to equipment used for all projects regardless of the source of funding. Cities with a population of eight thousand or less which may not use this type of fund shall be allowed the same rates as used by the department of transportation.

(f) Direct materials and supplies. ((The cost of materials used in projects shall be based upon methods prescribed for the "equipment rental and revolving fund" by the division of municipal corporations.))

(i) An overhead rate or "loading factor" shall not be considered an appropriate additive to the actual cost of materials and supplies used on construction projects unless the factor is readily and properly supportable by the governmental unit's accounting records.

(ii) The cost, or reasonable estimate thereof, of materials paid for as contract estimate items, but not used, shall be considered a reduction of direct costs. Any material which may be salvaged in connection with a project shall be assigned a reasonable value and considered a reduction of direct costs.

(g) Interdepartmental charges for work performed by the local government for the benefit of specific construction projects shall be limited to direct costs plus an allocation of indirect costs based upon ten percent of direct labor dollars, excluding employee benefits.

(h) Other direct costs incurred for materials or services acquired for a specific project shall be eligible for participation by public works loan funds and may include, but shall not be limited to such items as:

(i) Telephone charges;

(ii) Reproduction and photogrammetry costs;

(iii) Video and photography for project documentation;

(iv) Computer usage; and

(v) Printing and advertising.

(4) Other than work identified in subsection (3)(a) of this section, no government employee labor related costs, including force account work, are eligible for financing assistance or to be considered as local match under this chapter.

(5) Applications shall be submitted to the board in writing, on such forms as may be prescribed by and obtained from the board for the current funding cycle.

(((5))) (6) Any application for financial assistance submitted to the board shall be signed and verified by a responsible official of the applicant jurisdiction. Such official shall also provide the board with any additional materials or information in support of the application which the board or its staff may request.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-030, filed 1/13/92, effective 2/13/92. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-030, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-045  Emergency loan program. This section implements RCW 43.155.060 as amended in 1988 to provide that: The board may make low-interest or interest free loans to local governments for emergency public works projects. The emergency loan program is to financially assist eligible communities experiencing the loss of critical public works services or facilities due to an emergency, and that can demonstrate a substantial fiscal need.

(1) Eligible local governments. Applicants must meet the conditions as identified under WAC 399-30-030(2).

(2) Eligible uses of funds. Financial assistance received shall be used for the purpose of restoring the services and/or repair of the public works facilities involved in the emergency. Assistance provided may be used to help fund all or part of an emergency public works project less any reimbursement from any of the following:

(a) Federal disaster or emergency funds, including funds from the Federal Emergency Management Agency;

(b) State disaster or emergency funds;

(c) Insurance settlements; or

(d) Litigation.

Reimbursement from the sources listed above shall be made to the department and shall remain an obligation of the assisted local government up to four years after the date of formal project closeout with the department. Local governments ((receiving)) eligible to receive such funds shall undertake efforts to be reimbursed in a timely manner. ((Further, that assistance will be offered only for those eligible costs identified in WAC 399-30-030(3).))

(3) Availability of funds. Funding will be made available on a first-come first-served basis. Only those funds specifically appropriated by the legislature from the public works assistance account shall be used to make emergency loans. That amount shall not exceed five percent of the total amount appropriated from this account in any biennium.

(4) Application process. The application process shall be in writing on such forms or format as may be prescribed and obtained from the board. The date and time of receipt of the application by the board designated representative shall determine the sequence for application processing.

(5) Board deliberations--Emergency loan applications.

(a) The board will consider and approve or disapprove all eligible applications for emergency financial assistance at regular or special meetings of the board. The applicant will be notified of meetings at which its application will be considered.

(b) All applications will be accepted, evaluated, and prioritized in accordance with the following procedures:

(i) Applications will be accepted only when emergency funding is available.

(ii) Staff will review applications and verify that the applicant is eligible for assistance as set forth in RCW 43.155.070(1).

(iii) Staff will provide the board an evaluation of whether an emergency loan is needed based upon the information documented by the applicant and staff.

(iv) Site visits to the location of the emergency public works project will be carried out at the discretion of the board or staff.

(6) Loan terms. The board shall determine the term and interest rate(s) of emergency loans annually.

(7) Exceptions to public works trust fund policies and procedures. Except as provided in this chapter or specified in annual program guidelines, the emergency program shall follow all general administrative program policies as set for the public works trust fund.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-045, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-045, filed 4/28/89.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-060  Loan and financing guarantee contracts. (1) The board shall not sign loan agreements or otherwise financially obligate funds from the public works assistance account until the list and accompanying appropriation are approved by the legislature.

(2) After the legislature has appropriated funds from the public works assistance account for a specific list of public works projects, the loan funds will be disbursed to the applicant local government pursuant to a contract therefor, which will be offered to the local government with such reasonable terms and conditions as the board may determine: Provided, That the amount loaned to a local government shall not exceed ninety percent of eligible proposed project cost: Provided further, That the funds provided by a local government which are considered local financial participation shall consist of locally generated revenues and/or federal and/or state-shared revenues subject to discretionary allocation by the recipient unit of local government: Provided further, That the interest rate and local share requirements for loans shall be determined annually by the board: Provided further, That loans shall not exceed twenty years in duration, or the useful life of the improvements, whichever is shorter.

(3) Public works project loan and/or financing guarantee agreements offered to local governments shall be formally executed by the local government and the department ((of community development)) prior to the disbursal of any funds thereunder.

(4) Public works project loan and/or financing guarantee scope of work forms shall be completed and returned to the department ((of community development)) by the local government within ninety days of the date a scope of work form request is initiated.

(5) Public works project loan and/or financing guarantee contracts offered to local governments shall be executed by the local government within ninety days of the date a loan agreement is initiated.

(6) Work on public works projects financed through loans or financing guarantees offered to local governments must commence prior to October 1 of the year in which the loan or financing guarantee is offered.

(7) Work on public works projects financed through loans or financing guarantees offered to local governments must be completed within ((thirty months of the date of loan execution)) the time specified in the loan agreement, unless a written request for extension is approved by the board.

(8) Funds expended by local governments on projects financed through loans or financing guarantees by the public works assistance account before an agreement has been formally executed by the local government and the department ((of community development)) may not be reimbursed with funds from the public works assistance account. Such funds may be used by the local government as an element in its required local participation in a project financed by the public works assistance account provided they are used for activities eligible under WAC 399-30-030 and are consistent with the executed loan agreement.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-060, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 88-23-095 (Order 88-08, Resolution No. 86-12), § 399-30-060, filed 11/22/88; 86-18-009 (Resolution No. 86-12), § 399-30-060, filed 8/21/86. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-060, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-065  Emergency loan and financing guarantee contracts. (1) After the legislature has appropriated funds from the public works assistance account for emergency loans, the loan funds will be disbursed to the applicant local government pursuant to a contract therefor, which will be offered to the local government with such reasonable terms and conditions as the board may determine, if any: Provided, That the funds provided by a local government which are considered local financial participation shall consist of locally generated revenues and/or federal and/or state-shared revenues subject to discretionary allocation by the recipient unit of local government: Provided further, That loans shall not exceed twenty years in duration, or the useful life of the improvements, whichever is shorter.

(2) Public works project loan and/or financing guarantee agreements offered to local governments shall be formally executed by the local government and the department ((of community development)) prior to the disbursal of any funds thereunder.

(3) Public works project loan and/or financing guarantee scope of work forms shall be completed and returned to the department of community development by the local government within ninety days of the date a scope of work form request is initiated.

(4) Public works project loan and/or financing guarantee contracts offered to local governments shall be executed by the local government within ninety days of the date a loan agreement is initiated.

(5) Work on emergency public works projects financed through loans or financing guarantees offered to local governments must commence within ninety days of the date of loan execution.

(6) Work on public works projects financed through loans or financing guarantees offered to local governments must be completed within twelve months of the date of loan execution, unless a written request for extension is approved by the board.

(7) Funds expended by local governments on projects financed through loans or financing guarantees by the public works assistance account before an agreement has been formally executed by the local government and the department of community development may not be reimbursed with funds from the public works assistance account: Provided, That if the local government has made a formal declaration of an emergency, eligible costs for correction of the emergency incurred from the effective date of such declaration, and approved by the public works board, will be eligible for reimbursement. Such eligible costs not reimbursed but incurred before a loan agreement is approved may be used by the local government as an element of its required local participation, if any, for the emergency public works project.

(8) All public works projects shall comply with the competitive bid requirement of RCW 43.155.060 to the extent feasible and practicable.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-065, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-065, filed 4/28/89.]

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