(1) During the development of a rule or after its adoption, an agency may develop methods for measuring or testing the feasibility of complying with or administering the rule and for identifying simple, efficient, and economical alternatives for achieving the goal of the rule. A pilot project shall include public notice, participation by volunteers who are or will be subject to the rule, a high level of involvement from agency management, reasonable completion dates, and a process by which one or more parties may withdraw from the process or the process may be terminated. Volunteers who agree to test a rule and attempt to meet the requirements of the draft rule, to report periodically to the proposing agency on the extent of their ability to meet the requirements of the draft rule, and to make recommendations for improving the draft rule shall not be obligated to comply fully with the rule being tested nor be subject to any enforcement action or other sanction for failing to comply with the requirements of the draft rule.
(2) An agency conducting a pilot rule project authorized under subsection (1) of this section may waive one or more provisions of agency rules otherwise applicable to participants in such a pilot project if the agency first determines that such a waiver is in the public interest and necessary to conduct the project. Such a waiver may be only for a stated period of time, not to exceed the duration of the project.
(3) The findings of the pilot project should be widely shared and, where appropriate, adopted as amendments to the rule.
(4) If an agency conducts a pilot rule project in lieu of meeting the requirements of the regulatory fairness act, chapter
19.85 RCW, the agency shall ensure the following conditions are met:
(a) If over ten small businesses are affected, there shall be at least ten small businesses in the test group and at least one-half of the volunteers participating in the pilot test group shall be small businesses.
(b)(i) If there are at least one hundred businesses affected, the participation by small businesses in the test group shall be as follows:
(A) Not less than twenty percent of the small businesses must employ twenty-six to fifty employees;
(B) Not less than twenty percent of the small businesses must employ eleven to twenty-six employees; and
(C) Not less than twenty percent of the small businesses must employ zero to ten employees.
(ii) If there do not exist a sufficient number of small businesses in each size category set forth in (b)(i) of this subsection willing to participate in the pilot project to meet the minimum requirements of that subsection, then the agency must comply with this section to the maximum extent practicable.
(c) The agency may not terminate the pilot project before completion.
(d) Before filing the notice of proposed rule making pursuant to RCW
34.05.320, the agency must prepare a report of the pilot rule project that includes:
(i) A description of the difficulties small businesses had in complying with the pilot rule;
(ii) A list of the recommended revisions to the rule to make compliance with the rule easier or to reduce the cost of compliance with the rule by the small businesses participating in the pilot rule project;
(iii) A written statement explaining the options it considered to resolve each of the difficulties described and a statement explaining its reasons for not including a recommendation by the pilot test group to revise the rule; and
(iv) If the agency was unable to meet the requirements set forth in (b)(i) of this subsection, a written explanation of why it was unable to do so and the steps the agency took to include small businesses in the pilot project.
