The rulemaking process
When the state legislature passes a bill that is signed into law by the Governor, it is coded into state law known as the Revised Code of Washington (RCW). In order to clarify, apply or enforce state laws, state agencies may propose and adopt a rule, sometimes referred to as a regulation, known as the Washington Administrative Code (WAC).
The same basic rulemaking process is used to adopt a new rule, amend an existing rule or repeal an existing rule.
Basic rulemaking process
- Notice of intent to change, adopt or repeal a rule.
This first step in the rulemaking process is called a pre-notice inquiry. The department files a notice with the Office of the Code Reviser explaining that it is considering adopting or amending a rule, why it is considering such an action, and what authority it has for doing so. The filing form for this notice is called a CR-101.
The Code Reviser then publishes this notice in the Washington State Register. The register is published twice a month and contains all state agency rule notices, public meeting notices, Governor Executive Orders and Supreme Court rules.
The department also sends copies of the pre-notice inquiry, either electronically or in hard copy, to any person who has asked for such a notice. At this stage, the department usually has one or more public meetings where interested parties can provide input on the rules being developed. The department may also send out draft rule language for review and comment. The department will take any comments it receives into consideration as it decides whether to go forward with the proposed rulemaking.
- Proposed new or revised rule language.
If the department decides to go forward with rulemaking, it will develop draft language for the rule. Typically, the draft rule language will go through several changes as the department considers the comments it receives. In some cases, the department will have meetings with interested parties to discuss any issues with the proposed language. Or, the department may use other means to involve the public, such as sending surveys, circulating working drafts to interested parties, and forming drafting committees.
The drafting process can take anywhere from several months to several years to complete before the department releases the rule for formal comment. During this time, the department must also decide if the proposed rule(s) will require a small business economic impact statement.
A small business economic impact statement is required by law if a rule will impose more than minor costs on business or industry, or if the state legislative committee, known as the Joint Administrative Rules Review Committee, requests a statement. If possible, the department must reduce the costs that the rule imposes on small businesses. However, this requirement does not apply to costs imposed by legislation or a court directive.
Some rules, called Significant Legislative Rules, require a more detailed analysis to be done. These rules require that the department make a more complete explanation of why it is proposing this rule, including making a quality and cost-benefit analysis of the proposed rule(s).
When the department believes it has developed a final proposed rule(s), it files a Notice of Proposed Rulemaking (CR-102) along with a copy of the proposed rule(s) with the Code Reviser's Office. This notice and proposed rule(s) are published in the Washington State Register. The notice contains information on the date, time, and location of public hearing(s) on the proposed rule(s). In some cases, the department may schedule more than one public hearing on a proposed rule(s). Depending on public interest, the department may hold these public hearings on more than one date, time and location or on both sides of the state.
At the public hearing(s), a department spokesperson will explain the proposed rule(s) and the rulemaking process. Anyone who wishes can give verbal or written comments. Written comments can be submitted at the public hearing or may be submitted by a later date set by the department. After the hearing and the deadline for written comments, the department considers the comments and the proposed rule(s), and makes any changes it thinks are needed. If the changes are major, the department may revise the draft rule, file another Notice of Proposed Rulemaking (CR-102), send out a new notice and hold more hearings.
Prior to the adoption of the rule, the department also prepares a document called a Concise Explanatory Statement. This statement sums up all comments received on the proposed rule(s) and the department's reasons for adopting or not adopting the comments into the proposed rule.
- Final adoption of the rule.
When the department has completed the basic rulemaking process, 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 (CR-103) with the Code Reviser. Rules normally become effective 31 days after they are filed with the Code Reviser. The Code Reviser publishes the order and the final rule in the register. The department normally sends a notice to its stakeholders that it has adopted the rule(s).
Other rulemaking processes
The department 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.
- The rule was developed through negotiated or pilot rulemaking.
In the expedited process, the department files the Expedited Rulemaking Notice (CR-105) along with the full text of the proposed rule with the Code Reviser for publishing in the register.
The department sends a notice to interested parties, but no hearing is scheduled. If any person objects to the expedited process, they must comment within 45 days of publication. If someone does object to the expedited process, the department must follow the basic rulemaking process to adopt the rule, including holding a public hearing. However, if no one objects during the 45-day comment period, the department may adopt the rule by issuing a Rulemaking Order (CR-103).
The department may use an emergency rulemaking process when a rule is needed before the basic rulemaking process can be completed.
To use this process, the department 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 and requires immediate adoption of a rule."
Emergency rules do not require public notice or hearing(s). In most cases, however, the department will make every effort to obtain input from interested parties before adopting emergency rules. Emergency rules take effect on the date they are filed with the Code Reviser, unless another date is specified.
Emergency rules can remain in effect for up to 120 days. The department can re-file the emergency rule if it has started through the basic rulemaking process and the rules are not final before the 120 days is up.
The department has 60 days to either reject the petition or accept it. If the request is accepted, the basic rulemaking process is followed. If the request is rejected, the department will deny the petition in writing, stating reasons for the denial, specifically speaking to the concerns raised in the petition, and, where appropriate, the alternate means by which the department will address the concerns raised in the petition.