Process

Rulemaking Process

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. 

Permanent Rulemaking

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 (Pre-proposal Statement of Inquiry) 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 website.

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.

Expedited Rulemaking

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.

Emergency Rulemaking

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 or conditions have changed.

Rulemaking Petition

Anyone may petition L&I to adopt, amend, or repeal a rule by sending a letter or using the petition form. Mail or email petitions to the L&I rules coordinator at Rules@Lni.wa.gov. L&I has 60 days to accept or reject the petition, and if the request is accepted, the regular rulemaking process is started. 

Terms

Rulemaking Terms

Some common rulemaking terms. See also the rulemaking process.

Administrative Procedure Act (APA)

The Administrative Procedure Act, referred to as the APA, (Chapter 34.05 RCW) is the law that sets the minimum standards L&I must follow to enact rules. Procedural fairness is the fundamental premise of the APA.

Adoption

The date listed on the rulemaking order of adoption (CR–103 form). This date is usually different from the effective date.

Agency Action

Any agency activity that affects the licensing, implementation, or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits.

Amendment

An action that changes the language of an existing rule.

Chapter

The second number grouping in a Washington Administrative Code (WAC) citation. For example, in WAC 296-24-100 the chapter is 24.

Office of the Code Reviser (OCR)

The Office of the Code Reviser is responsible for accepting rule filings. This office is responsible for compiling, publishing, and determining the form, style and uniform numbering system for all laws and rules.

Codify

The process of placing new or amended rules in their proper location for publication in the Washington Administrative Code (WAC). The Office of the Code Reviser (OCR) is responsible for codifying the agency's rules.

Concise Explanatory Statement

L&I prepares the Concise Explanatory Statement which contains the following information:

  • The agency's reason for adopting the rule;
  • A description of the differences between the published text and the text of the rule as adopted along with reasons for the differences;
  • A summary of all comments received and responses to the comments by category or subject matter;
  • A description of how the final rule reflects consideration of the comments; and
  • An extension of a hearing date or a rule's adoption date.

Continuance

An extension of a hearing date or a rule's adoption date.

Cost Benefit Analysis (CBA)

The Administrative Procedure Act (APA) requires an assessment of benefits and costs of a proposed significant legislative rule. This analysis focuses on all of the potentially impacted industries, not just small business. In addition, this analysis considers both the quantitative and qualitative aspects of a proposed rule. For rulemaking to continue, the analysis must show that the probable benefits of the rule exceed the probable costs of the rule.

A preliminary CBA, if needed, is prepared and available when the CR-102 is filed with the Office of the Code Reviser (OCR). A final CBA, if needed, is prepared and available when the CR-103 is filed. Copies of both documents are available to the public by contacting the rules coordinator.

CR–101 Form (Preproposal Statement of Inquiry)

This form gives public notice that L&I is considering rulemaking on a specific subject. See Rulemaking Process: Permanent Rulemaking Step 1: Notice of intent to change, adopt, or repeal a rule.

CR–102 Form (Proposed Rulemaking)

This form provides the public with the proposed rule language, along with the notice of public hearing dates. See Rulemaking Process: Permanent Rulemaking Step 2: Proposed new or revised rule language.

CR–103E Form (Rulemaking Order of Adoption – Emergency Rule)

This form adopts a rule on an emergency basis. An emergency rule is effective for 120 days after filing the CR-103E with the Office of the Code Reviser (OCR). An emergency rule can take immediate effect or a later date can be specified. See Rulemaking Process: Emergency Rulemaking.

CR–103P Form (Rulemaking Order of Adoption – Permanent Rule)

This form permanently adopts a rule when it is filed with the Office of the Code Reviser (OCR). The date of a rule's adoption is different from its effective date. The effective date of a rule is the date when compliance with and enforcement of the rule begins. See Rulemaking Process: Permanent Rulemaking Step 3: Final adoption of the rule.

CR–105 Form (Expedited Rulemaking)

This form gives notices of expedited rulemaking and provides the public of the proposed rule language. See Rulemaking Process: Expedited Rulemaking.

Effective Date

The date a rule goes into operation. Normally a rule goes into operation 30 days after the agency files it with the Office of the Code Reviser.

Federal Identical Rule

This rule adopts a federal regulation without material change.

Filing

The process of depositing documents in the Office of the Code Reviser where they are stamped with the date, time and the Washington State Register (WSR) number.

Housekeeping Rule

A rule that corrects typographical, grammatical, gender, or spelling errors or changes the format of a rule.

Interpretive Statement

A written announcement by the agency concerning the meaning of one of its orders, a law or a court decision.

Joint Administrative Rules Review Committee (JARRC)

The Joint Administrative Rules Review Committee, also known at JARRC, is the bipartisan, joint (Senate-House) legislative committee responsible for reviewing agency rules to determine if they are supported by law.

Law (also statute)

A statement by the legislature or the courts that must be obeyed and followed by citizens. The Revised Code of Washington (RCW), contains a compilation of all permanent laws in Washington State.

National Consensus Rule

This rule adopts national codes that establish industry standards. For example, the standards of the National Electrical Code (NEC).

Permanent Rule

The final rule that the agency adopts.

Petition

The process that an organization or interested party follows when requesting adoption, amendment or repeal of a rule. See Rulemaking Process: Rulemaking Petition.

Policy Statement

A written description of the agency’s approach to implementing a law, court decision or agency order.

Preproposal Statement of Inquiry (CR-101 form)

The CR-101 gives the public notice that L&I is thinking about rulemaking on a specific subject. This allows the public an opportunity to have notice of the rulemaking subject area at the beginning of the rulemaking process.

Presiding Officer (also hearing officer)

An individual assigned by the director to conduct a public hearing on a proposed rule.

Proposed Rulemaking (CR-102 form)

The CR-102 informs the public of the specific purpose of the proposed rule. The proposed rule language and notice of the public hearing and public comment period are also provided at this time.

Public hearing and comment period

A public hearing and comment period is an opportunity for the public to comment on the proposed rule and to participate in the rulemaking process. A public hearing is a formal agency meeting at a publicized time and location where the public gives testimony on a proposed rule. Any one may submit comments about a proposed rule to L&I during the comment period. You may submit comments about a proposed rule to L&I during the comment period. View upcoming public hearings.

Regulatory Fairness Act (RFA) (Chapter 19.85 RCW)

The Regulatory Fairness Act (RFA) is a law that requires the agency to review all proposed rules to determine their impact on small business.

Repeal

To terminate a rule. After repeal the rule is removed from the Washington Administrative Code (WAC).

Rule

An agency order, directive or regulation:

  • That imposes a penalty on a person who violates the rule.
  • That establishes or revokes requirements relating to a benefit or privilege.
  • That establishes or revokes a standard relating to a benefit.
  • That establishes or revokes a requirement relating to the issuance or revocation of a license.

Rules are codified in the Washington Administrative Code (WAC).

Rulemaking

Rulemaking is the process the agency uses to develop, adopt and repeal a rule. The Administrative Procedure Act (APA) is the state law that outlines the standards the agency must follow when it engages in rulemaking.

Rulemaking Order of Adoption (CR-103 form)

The CR-103 indicates L&I has adopted a rule. The adopted rule language is also provided at this time. Note that the date of a rule's adoption is different from its effective date. The effective date of a rule is the date compliance when the rule begins.

Section

The third number grouping in a Washington Administrative Code (WAC) citation. For example, in WAC 296-24-100, the section is 100. It is the smallest portion of a rule that can be amended.

Semi-annual Rules Development Agenda

The agenda allows the public to see what subject areas are under rule development. L&I files the agenda with the Office of the Code Reviser for publication in the Washington State Register by January 31 and July 31 of each year. View the semi-annual rules development agenda.

Significant Legislative Rule

A significant legislative rule:

  • Changes agency policy, and affects the rights, benefits, or privileges of an individual.
  • Subjects an individual to a penalty or sanction for its violation.
  • Changes requirements for issuing, suspending, or revoking a license or a permit.

Small Business Economic Impact Statement (SBEIS)

The Regulatory Fairness Act (RFA) is state law that requires L&I to analyze the impact of its rules on small business. The RFA requires a small business economic impact statement (SBEIS) when it is anticipated that a proposed rule would impose disproportionate cost on small business, or when requested by the Joint Administrative Rules Review Committee (JARRC).

Subsection

A portion of a rule identified by a number in parenthesis. Subsections may not be amended. For example, in 296-24-100(a)(i), the subsection is '(a)(i)'.

Supplemental Notice

A supplemental notice informs interested parties that significant changes are being made to a proposed rule. It reopens the rulemaking proceedings for additional public comment on the substantive changes.

Title

The first number grouping in a Washington Administrative Code (WAC) citation. For example, in WAC 296-24-100, the title is 296. Each agency usually has one title. Labor & Industries' title is WAC 296.

Washington Administrative Code (WAC)

A Washington Administrative Code (WAC)  is an administrative regulation or rule adopted by agencies (executive branch). The WAC is broken out in these areas:

Title- Chapter- Section- Subsection
296- 24- 100- (a)(i)

Washington State Register (WSR)

The Washington State Register is the official place in rule filing where documentation is published for all state agencies in Washington State. The WSR contains all proposed emergency, amended, new or repealed rules filed with the Office of the Code Reviser (OCR).