On November 1, 2005, the Governor received an appeal from Kathleen Benedict of Olympia, Washington, relating to the Department of Health's denial of a petition to it concerning a Pilot Project Rule.

December 16, 2005

Kathleen D. Benedict, Esq.

Benedict Garratt, PLLC

1235 Fourth Avenue East, Suite 200

Olympia, WA 98506

RE: Request for Review of Denial of Pilot Rule Making Project

Dear Ms. Benedict:

As you know, the Governor's Office has been considering whether or not the Governor has jurisdiction to review your petition under RCW 34.05.330(3) of the Administrative Procedure Act (APA). We have concluded that jurisdiction does not exist. Therefore, the Governor will refrain from any consideration of the petition's merits.

The APA specifically allows persons to petition to agencies for the "adoption, amendment, or repeal of any rule." RCW 34.05.330(1). Subsequent appeal to the Governor, however, is only permitted after "an agency denies a petition to repeal or amend a rule." RCW 34.05.330(3). As noted in your correspondence dated December 9, 2005, the word "adopt" is omitted in Subsection (3). This omission is carried through in RCW 34.05.330(4), further underscoring the distinction between petitions for the adoption of a new rule, on the one hand, as opposed to those for the repeal or amendment of an existing rule, on the other.

The word "adopt" is not defined in the APA. See RCW 34.05.010. Nonetheless, in order to give it meaning, it must be reasonably construed in the context of petitions to the Governor as pertaining to anything other than the repeal or amendment of an existing rule.

Your request to the Governor to review the Department of Health's (Department) denial of your August 2005 petition to it for a pilot project rule does not concern - at least initially - the repeal or amendment of an existing rule. Rather, it concerns the development of a proposed pilot project rule under RCW 34.05.313(1). Whether or not the development of a rule should be considered encompassed by the word "adopt" must be addressed before the secondary question of whether or not an existing rule should be waived for a pilot project rule (e.g. Certificate of Need rule). See RCW 43.05.313(2). Without being able to answer the first question in the negative, the Governor is without authority to address the second.

Before a proposed rule, including a pilot project rule, can be implemented, the Department must comply with the APA's rule making process requirements. "Rule making" is defined as "the process for formulation and adoption of a rule." RCW 34.05.010(18) (emphasis added). That singular process accommodates two tracks, one for adopting entirely new rules and one for adopting amendments to existing rules. Along the spectrum of developing or initiating the amendment of a rule under RCW 34.05.310(1) to the filing of the Order of Adoption under RCW 34.05.360, all rules are being formulated and ultimately finalized for adoption.

In the context of petitions to the Governor, however, the distinction is whether or not an existing rule is currently in place addressing the substance of the rule questioned in the petition. Where there is no existing rule in place, the petition and APA process required does not concern the repeal, amendment, or adoption of an amendment to an existing rule - whether or not it is pilot rule making project. It concerns, as in this instance, the development, formulation and adoption of a new rule.

Consequently, without a statutory mandate to review petitions involving pilot rule making projects (or the adoption or "formulation and adoption of a rule"), the Governor is without clear statutory authority to consider the merits of your petition. It is therefore neither granted nor denied under RCW 34.05.330(3). Rather, it is simply denied for lack of jurisdiction.

Sincerely,

Richard E. Mitchell

General Counsel

cc: Tom Fitzsimmons, Chief of Staff

     Marty Brown, Legislative Director

     Laurie Dolan, Policy Office Director

     Mary Selecky, Secretary, Department of Health

     Christina Hulet, Executive Policy Advisor

     Mark Rupp, Executive Policy Advisor

     Reviser's note: The typographical error in the above material occurred in the copy filed by the Office of the Governor and appears in the Register pursuant to the requirements of RCW 34.08.040.