WSR 17-16-002 EMERGENCY RULES DEPARTMENT OF NATURAL RESOURCES [Filed July 19, 2017, 2:21 p.m., effective July 23, 2017] Effective Date of Rule: July 23, 2017.
Purpose: The 2017 legislative [legislature] amended portions of RCW 42.56.120 pertaining to fee charges for public record copies. EHB 1595 requires that a rule be in place if an agency needs to use the statutory public records fee schedule, rather than charging for actual costs. The department of natural resources (DNR) lacks sufficient data to use the actual cost method at this time. This rule specifies that DNR will utilize the legislature's statutory default fee schedule, effective July 23, 2017. DNR will soon be filing a preproposal statement of inquiry to begin the permanent rule-making process for these and other changes to chapter 332-10 WAC.
1. Identify Reasons for Adopting this Rule: EHB 1595 becomes law on July 23, 2017. The bill requires changes to the fees charged to public records requester[s], in that agencies must use a data-driven actual cost method, or if that is unduly burdensome as declared by agency rule, agencies may instead rely upon the statutory fee schedule adopted by the legislature.
Adopting an actual cost approach to public records fees would be unduly burdensome to DNR. DNR does not currently have accurate data regarding the many specific cost elements associated with public records production, nor does it have the resources or appropriated funds to conduct an actual cost study. DNR cannot divert resources away from other critical agency programs in order to perform such a cost study. Additionally, such a study would be time consuming, and a legally suitable fee structure is necessary immediately to defray the costs to the people of Washington associated with public records production. Therefore, DNR will use the statutory fee schedule in RCW 42.56.120(2).
This declaration will allow DNR to utilize the statutory default fee schedule established by the legislature in EHB 1595 starting on July 23, 2017, the date the legislation goes into effect, and to be in full compliance with the Public Records Act (PRA), as amended. The agency will be filing a preproposal statement of inquiry to begin the permanent rule-making process.
2. Discuss any Legislative Background, Federal Laws, and Statutory Authority: State law RCW 42.56.120 will change effective July 23, 2017. This affects all state agencies.
3. Identify Adoption Date and Effective Date of Rule: July 23, 2017.
4. Describe Differences Between Proposed as Published in the State Register and the Final Rule as Adopted: As an emergency rule, this rule has not been published previously in the state register. Hence, there are no differences between any prior rule proposal and the version adopted as an emergency rule.
The amendments to WAC 332-10-170(4) eliminate the preexisting rule-based structure for assessing public records fees. In place of that, new WAC 332-10-170(4) indicates the reasons why it would be infeasible and unduly burdensome for DNR to use an actual cost method of charging fees for public records. Due to that infeasibility, DNR will instead use the fee structure established statutorily by the 2017 legislature in EHB 1595, which amended RCW 42.56.120(2).
Summary of All Comments and Agency Response to Each. Indicate how final rule reflects agency consideration of comment or why it fails to do so: Not applicable to emergency rule making.
5. List or Description of All Public Involvement Opportunities, Including Workshop Dates and Locations, Hearing Dates and Locations, News Releases, Fact Sheets, Newspaper Announcements, Web Site Info. Include the number of people who attended, received mailings, etc.: Not applicable to emergency rule making. Before DNR adopts permanent rules regarding the use of the statutory public records fee schedule established in new RCW 42.56.120(2), DNR will collect public comments and conduct hearings in accordance with the Administrative Procedure Act.
Citation of Existing Rules Affected by this Order: Amending WAC 332-10-170.
Statutory Authority for Adoption: RCW 42.56.120.
Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Change in state law RCW 42.56.120(3) EHB 1595 effective July 23, 2017.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: July 18, 2017.
Brule Burkhart
Deputy Supervisor
for Administration
AMENDATORY SECTION (Amending WSR 92-22-076, filed 11/2/92, effective 12/3/92)
WAC 332-10-170 Fees for performing the following service.
Charges for the following categories of services will be collected and transmitted to the state treasurer for deposit:
(1) Twenty-five dollars for the approval of any assignment of contract of sale, assignment of lease, assignment of bill of sale or assignment of right of way.
(2) Twenty-five dollars for the division of contracts or leases pursuant to RCW 79.01.236.
(3) Five dollars for certification of any document.
(4) ((Twenty-five cents per page, plus postage if mailed, for copies of documents which do not exceed 8-1/2 x 14 inches in size. May be copied by requestor or agency staff.
Up to one dollar per page, plus postage if mailed, for copies of documents when copying would unreasonably disrupt the operations of the agency, requiring uninterrupted, long-term use of agency copy equipment. Actual costs incident to such copying will be charged. Copies not to exceed 8-1/2 x 14 inches in size.
(5) Copies of documents or nonstandard items beyond the size of documents set forth in subsection (4) of this section (e.g., computer printouts, films, recordings or maps) will be charged on the basis of the cost of reproduction including the time of department personnel as determined by the department of natural resources.)) For public records requests: Adopting an actual cost rule would be unduly burdensome. DNR does not currently have accurate data regarding the many specific cost elements associated with public records production, nor does it have the resources or appropriated funds to conduct an actual cost study. DNR cannot divert resources away from other critical agency programs in order to perform such a cost study. Additionally, such a study would be time consuming, and a legally suitable fee structure is necessary to defray the costs to people of Washington associated with public records production. Therefore, DNR will use the statutory fee schedule in RCW 42.56.120(2).
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