Washington's Rulemaking Process
A rule (or regulation) is a written policy or procedure by a state agency that is generally applicable to a group of people, industries, activities, or circumstances.
Rules are used by agencies to “fill in the gaps” of legislation. They implement, interpret, apply or enforce a state or federal law or court decision. A rule is adopted by an agency; a statute is a law that is passed by the state Legislature. In both cases, state law provides for citizen participation before a rule or law is approved.
After laws, or statutes, are passed by the state Legislature and signed by the Governor, they are compiled in the Revised Code of Washington, or RCWs. Rules to carry out those laws — which are sometimes called regulations and sometimes called WACs, for the Washington Administrative Code — are adopted by agencies through a process mandated in law by Washington’s Administrative Procedure Act (APA).
The APA sets out exactly what steps an agency has to follow to adopt rules. Different processes are provided for different kinds of rules. The same basic process is used to adopt, amend, or repeal a rule. It has three formal steps:
Step 1: Notice of intent to change, adopt, or repeal a rule.
The first step is called a pre-notice inquiry. An agency files a notice with the Office of the Code Reviser explaining that it is considering a rule adoption or amendment. The Code Reviser then publishes the notice in the Washington State Register (Register), which is published twice a month. The Register is available at the Code Reviser’s web site, http://www.leg.wa.gov/CodeReviser/Pages/default.aspx.
The agency also sends copies of the pre-notice inquiry, either electronically or in hard copy, to any person who has asked for such notice. Agencies may have a public meeting where interested parties can comment on the proposal, or they may request written comments only at this stage. The agency will take any comments it receives into consideration as it decides whether to go forward with the rulemaking.
Step 2: Proposed new or revised rule language.
If the agency decides to go forward with rulemaking, it will develop a draft considering all the comments it has received. Agencies may also involve the public through meetings with interested parties, surveys, circulating working drafts, or forming drafting committees. The drafting process can take anywhere from months to years before the agency proposes the rule for formal comment. During this time an agency must also decide if the rule proposal will require a “small business economic impact statement”.
This statement is required if a rule will impose more than minor costs on business or industry, or if the legislative Joint Administrative Rules Review Committee requests a statement. If possible, the agency must reduce the costs that the rule imposes on small businesses. This requirement does not apply to costs imposed by legislation or by court directive. Some rules, called “significant legislative rules”, require a more detailed analysis to be done. These rules require that the agency make a more complete explanation of why it is proposing this rule, including performing a qualitative and quantitative cost-benefit analysis of the proposal.
When the agency believes it has developed a final rule, it files a “Notice of Proposed Rulemaking” and a copy of the proposed rule with the Code Reviser, which is published in the Register. The agency also sends the notice to interested parties and schedules a public hearing at which anyone can make comments about the proposal. Written comments can also be submitted to the agency. After the hearing, the agency considers the comments and makes any changes it thinks necessary to the proposed rule. If the changes are substantial, the agency may revise the draft rule, file another Notice of Proposed Rulemaking, send out a new notice, and hold another hearing.
Prior to the adoption of the rule, the agency also prepares a document called a “concise explanatory statement”. This statement summarizes the agency’s reasons for adopting the rule, any comments received on the rule proposal, and the agency’s responses to those comments.
Step 3: Final Adoption of the Rule.
When the agency is ready, it will adopt the rule. The rule adoption is not a public process, but consists of filing the final rule, along with the “Rulemaking Order” with the Code Reviser. Rules normally become effective 31 days after they are filed. The Code Reviser publishes the order and the final rule in the Register. The agency normally sends a notice to its stakeholders that it has adopted the rule.
Agencies can use an “expedited process” to adopt, repeal, or amend rules in certain limited circumstances. Generally this process is available if:
The rule applies only to internal government operations;
The rule incorporates only federal or state law or other agency rules;
The rule is correcting only typographical errors, making name or address changes, or clarifying the language of a rule without changing its effect;
The rule is explicitly and specifically dictated by statute; or
The rule was developed through negotiated or pilot rulemaking.
In the expedited process, the agency files the proposed rule with the Code Reviser for publication in the Register, and sends the notice to interested parties, but no hearing is scheduled. If any person objects to the expedited process within forty-five days of publication, the agency considers the notice to be the same as the proposal notice used in the basic rulemaking process, and it must complete the rulemaking using the basic process detailed above.
The “emergency rulemaking process” may be used when a rule is needed before the standard rulemaking process can be completed. To use this process, an agency must find, with good cause, that the immediate adoption, amendment, or repeal of a rule is necessary for the preservation of public health, safety, or general welfare, or that state or federal law or rule, or a federal deadline for receipt of funds, requires immediate adoption of a rule.
Emergency rules do not require public notice or hearing. They usually take effect when filed with the Code Reviser. Emergency rules can remain in effect for up to 120 days after filing. An agency can re-file the emergency rule if the agency has started the permanent rulemaking process.