What is Rulemaking?

Rulemaking is the process the Washington State Department of Health (DOH), including all health profession boards and commissions, uses when it proposes to create, change, or delete rules in order to protect public health.

DOH must follow the procedural requirements set out in the Administrative Procedure Act, chapter 34.05 RCW and the Regulatory Fairness Act, chapter 19.85 RCW when conducting rulemaking. Interested parties in DOH's rulemaking activities should join appropriate ListServs. If available, individual ListServs can be found by contacting program staff.

To learn more, watch the Rulemaking at DOH video:

This video is available in multiple languages on YouTube:

To view current and adopted rules, visit the Rulemaking Activity page.

About the Rulemaking Process

• What are rules and how do they work?
  • Washington State: Laws versus Rules
  • Rulemaking Authority – Where does it come from?
  • What is a rule and what is rulemaking?
  • What processes are there for rulemaking?
• Major phases in the rulemaking process
  • Notification of intent to do rulemaking
  • Getting involved in rulemaking
  • Proposed rule changes and opportunity to provide formal input
  • Adoption of Final Rule

What Are Rules and How Do They Work?

Washington State: Laws Versus Rules

Laws

Laws are passed by our state legislature and approved by our governor. Laws are published as statutes in the Revised Code of Washington (RCW). Laws give or limit people rights and can be legally enforced against a person. Legislature grants DOH the authority to protect the health of Washingtonians by giving authority to adopt rules.

Rules

Rules implement, or put into effect, laws. Rules are also necessary to clarify laws. Rules have the same effect as laws when a state agency follows the legal process. Statutory authority is given to DOH by the Washington State Legislature through the RCW. DOH can’t change laws but must have the authority to adopt rules. DOH adopts rules as found in the Washington Administrative Code according to laws passed by the Washington State Legislature.

Rulemaking Authority – Where Does It Come From?

Proposing Rules

DOH’s rules are administered under Title 246 of the Washington Administrative Code (WAC). DOH must follow the procedural requirements set out in the Administrative Procedure Act, chapter 34.05 RCW and the Regulatory Fairness Act, chapter 19.85 RCW when conducting rulemaking.

Enforcing Rules

The secretary of health enforces all rules created for the protection of public health by DOH and many rules established by the State Board of Health. Health profession boards and commissions enforce the rules they have the authority over.

What Is a Rule and What Is Rulemaking?

A rule, also known as the Washington Administrative Code (WAC) establishes a privilege to do something and must be followed or you could be disciplined.

Rulemaking is the process DOH, including 17 health profession boards and commissions, uses when it proposes to create, change, or remove rules with the intent to protect public health. DOH also works closely with the State Board of Health to assist with the board’s rulemaking processes. DOH invites the public to engage in rulemaking in various ways with the intent that rules that affect Washingtonians are created, changed, or removed in an equitable way.

What Processes Are There for Rulemaking?

There are four types of processes that can be used for rulemaking:

• Standard
• Expedited
• Exception
• Emergency

The type of rulemaking process determines the steps followed during rulemaking.

The standard rulemaking process is the primary process. There are three additional rulemaking processes that shorten standard rulemaking but must meet specific criteria to be used:

• Expedited rulemaking (CR-105) is used when a rule only affects internal government operations, refers to other rules, corrects errors or makes clarifying changes, or incorporates language from statute. This process does not require a public hearing.
• Exception rulemaking (CR-102) is used for the same reasons as the expedited rulemaking but includes a public hearing.
• Emergency rulemaking (CR-103E) is used when a rule is necessary to protect the public’s health and safety or is required to comply with federal law and rule and is needed before the standard rulemaking process can be completed. This process does not require a public hearing.

Major Phases in the Rulemaking Process

The major phases of rulemaking are:

1. Notification of intent to do rulemaking (CR-101): This is where DOH notifies its intent to do rulemaking and outreach to interested parties begins.
2. Getting involved in rulemaking: This is where interested parties can provide input to shape the draft rule language.
3. Proposal of rule changes and opportunity to provide formal input (CR-102 or CR-105): This is where interested parties can review the rule changes and provide formal input through a hearing or by submitting comments.
4. Adoption of final rule (CR-103P): Rule is filed and becomes effective typically within 31 days.

1. Notification of Intent To Do Rulemaking

DOH notifies interested parties about the intent to adopt a new rule, amend, or repeal an existing rule through appropriate ListServs, postings on the agency's website, and by filing the appropriate forms with the Office of the Code Reviser.

Communication to interested parties includes:

• A brief description of the subject,
• Reasons why rules on this subject may be needed and what they might accomplish, and
• How interested parties can participate in the rulemaking activities.

Under certain circumstances the notification and proposal of rule changes are combined into a single step and the CR-102 form or CR-105 form is filed.

2. Getting Involved in Rulemaking

Input from interested parties can take place in various ways, such as by public meetings or written comments. DOH considers all comments and decides if rulemaking should move to the next step. If so, draft language is developed considering comments from interested parties. Public meetings or dissemination of draft language may occur at this stage for additional input.

• Find out where rules are in the process: Rulemaking Activity page (rules that have been adopted within the past 12 months)
• Commenting on rules: For rules currently accepting comments
• Subscribe to rulemaking updates

3. Proposed Rule Changes and Opportunity to Provide Formal Input

DOH provides interested parties the opportunity to submit formal comments on proposed rules before DOH makes a final decision to adopt rules.

Hearing process (CR-102): DOH notifies interested parties about the proposed rulemaking and invites input in writing or verbally through a public hearing process.

• When DOH files a Proposed Rulemaking (CR-102) form it holds a scheduled public rulemaking hearing.
  • An individual may provide comments either by attending the public hearing, submitting written comments using the agency's online rules comment site at Policy Review, or by mailing or faxing the comments to DOH by the specified deadline.
• Hearings will include a brief statement of the proposed rule and then open for testimony from the public. Public testimony will be recorded. Time will be limited to accommodate space for each to testify.

After the hearing, DOH then decides if the rule should move to the next step or if substantial changes to the proposed rule language needs to be made. DOH may choose to revise the draft rule or reengage interested parties before moving to the next step.

When DOH files an Expedited Rulemaking (CR-105) form a public rulemaking hearing is not required. Instead, an individual may submit in writing an objection to the use of the expedited rulemaking process.

4. Adoption of Final Rule

At the conclusion of the public comment period, DOH must consider all formal comments received and must file the adopted rule language with the Office of the Code Reviser. This is done with the publication of the Rulemaking Order (CR-103) form. Typically, interested parties are required to comply with the adopted rule 31 days after DOH files the CR-103 form and adopted rule language. In some exceptions the effective date of the adopted rule may be specified as something other than 31 days after a CR-103 form is filed.

For emergency rulemaking (CR-103E), the rules do not require public notice or hearing. They remain in effect for up to 120 days after filling. The effective date is determined on the CR-103E form.

DOH notifies interested parties about the adopted rule.

DOH’s rules are scheduled to be reviewed at least every five years to ensure that they continue to meet the intent of protecting the health and safety of Washingtonians. Rules are amended and updated accordingly.

Anyone may petition DOH to adopt, amend, or repeal a rule by sending DOH your petition. A petition may be received on the Office of Financial Management (OFM) petition form titled “Petition for Adoption, Amendment, or Repeal of a State Administrative Rule,” via email, or through other written correspondence.

Contact Us

Deputy Director of Regulatory Affairs
360-628-0096

Agency Economist
360-890-0423