S-3982.2 _______________________________________________
SENATE BILL 6128
_______________________________________________
State of Washington 53rd Legislature 1994 Regular Session
By Senators Anderson, Amondson, McDonald, Nelson, Bluechel, Oke, Morton, L. Smith, Cantu, Schow, Sellar, Hochstatter, Moyer, Erwin, Roach, Ludwig, McAuliffe, Quigley and A. Smith
Read first time 01/13/94. Referred to Committee on Labor & Commerce.
AN ACT Relating to review of administrative rules; amending RCW 34.05.630, 34.05.640, and 34.05.660; and adding a new section to chapter 34.05 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 34.05.630 and 1993 c 277 s 1 are each amended to read as follows:
(1) All rules required to be filed pursuant to RCW 34.05.380, and emergency rules adopted pursuant to RCW 34.05.350, are subject to selective review by the legislature.
(2) The rules review committee may review an agency's use of policy statements, guidelines, and issuances that are of general applicability, or their equivalents to determine whether or not an agency has failed to adopt a rule or whether they are within the intent of the legislature as expressed by the governing statute.
(3) If the rules review committee finds by a
majority vote of its members: (a) That an existing rule is not within the
intent of the legislature as expressed by the statute which the rule
implements, (b) that the rule exceeds federal law without specific state
legislative authorization to do so, (c) that the rule has not been adopted
in accordance with all applicable provisions of law, (((c))) (d)
that an agency is using a policy statement, guideline, or issuance in place of
a rule, or (((d))) (e) that the policy statement, guideline, or
issuance is outside of legislative intent, the agency affected shall be
notified of such finding and the reasons therefor. Within thirty days of the
receipt of the rules review committee's notice, the agency shall file notice of
a hearing on the rules review committee's finding with the code reviser and
mail notice to all persons who have made timely request of the agency for
advance notice of its rule-making proceedings as provided in RCW 34.05.320.
The agency's notice shall include the rules review committee's findings and
reasons therefor, and shall be published in the Washington state register in
accordance with the provisions of chapter 34.08 RCW.
(4) The agency shall consider fully all written
and oral submissions regarding (a) whether the rule in question is within the
intent of the legislature as expressed by the statute which the rule
implements, (b) whether the rule exceeds federal law without specific state
legislative authorization to do so, (c) whether the rule was adopted in
accordance with all applicable provisions of law, (((c))) (d)
whether the agency is using a policy statement, guideline, or issuance in place
of a rule, or (((d))) (e) whether the policy statement,
guideline, or issuance is within the legislative intent.
Sec. 2. RCW 34.05.640 and 1993 c 277 s 2 are each amended to read as follows:
(1) Within seven days of an agency hearing held after notification of the agency by the rules review committee pursuant to RCW 34.05.620 or 34.05.630, the affected agency shall notify the committee of its action on a proposed or existing rule to which the committee objected or on a committee finding of the agency's failure to adopt rules. If the rules review committee determines, by a majority vote of its members, that the agency has failed to provide for the required hearings or notice of its action to the committee, the committee may file notice of its objections, together with a concise statement of the reasons therefor, with the code reviser within thirty days of such determination.
(2) If the rules review committee finds, by a majority vote of its members: (a) That the proposed or existing rule in question has not been modified, amended, withdrawn, or repealed by the agency so as to conform with the intent of the legislature, or (b) that the agency is using a policy statement, guideline, or issuance in place of a rule, or that the policy statement, guideline, or issuance is outside of the legislative intent, the rules review committee may, within thirty days from notification by the agency of its action, file with the code reviser notice of its objections together with a concise statement of the reasons therefor. Such notice and statement shall also be provided to the agency by the rules review committee.
(3) If the rules review committee makes an
adverse finding under subsection (2) of this section, the committee may, by a
((two-thirds)) majority vote of its members, recommend suspension
of an existing rule. Within seven days of such vote the committee shall
transmit to the governor, the code reviser, and the agency written notice of
its objection and recommended suspension and the concise reasons therefor.
Within thirty days of receipt of the notice, the governor shall transmit to the
committee, the code reviser, and the agency written approval or disapproval of
the recommended suspension. If the suspension is approved by the governor, it
is effective from the date of that approval and continues until ninety days
after the expiration of the next regular legislative session.
(4) If the governor denies the recommendation for suspension, the agency shall consider the governor's transmittal of the denial to be a petition for rule making under RCW 34.05.330, and shall proceed as directed by that section. If the agency denies the petition, it must state the basis for finding the rule to be within the scope of the agency's statutory authority.
(5) The code reviser shall publish
transmittals from the rules review committee or the governor issued pursuant to
subsection (1), (2), ((or)) (3), or (4) of this section in the
Washington state register and shall publish in the next supplement and
compilation of the Washington Administrative Code a reference to the
committee's objection or recommended suspension and the governor's action on it
and to the issue of the Washington state register in which the full text
thereof appears.
(((5))) (6) The reference shall
be removed from a rule published in the Washington Administrative Code if a
subsequent adjudicatory proceeding determines that the rule is within the
intent of the legislature or was adopted in accordance with all applicable
laws, whichever was the objection of the rules review committee.
Sec. 3. RCW 34.05.660 and 1988 c 288 s 606 are each amended to read as follows:
It is the express policy of the legislature that establishment of procedures for review of administrative rules by the legislature and the notice of objection required by RCW 34.05.630(2) and 34.05.640(2) in no way serves to establish a presumption as to the legality or constitutionality of a rule in any subsequent judicial proceedings interpreting such rules. However, the rules review committee may, by a majority vote of its membership, create a rebuttable presumption, for purposes of a judicial proceeding in which the validity of the rule is at issue, that a rule was adopted without proper legal authority.
NEW SECTION. Sec. 4. A new section is added to chapter 34.05 RCW to read as follows:
If the rules review committee votes to recommend suspension of a rule under RCW 34.05.640 or to create a rebuttable presumption under RCW 34.05.660, the prevailing party is entitled to receive attorneys' fees and costs not to exceed ten thousand dollars. The agency over which the party prevails shall pay these fees and other expenses from operating funds appropriated to the agency.
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