BILL REQ. #:  S-4285.1 


State of Washington62nd Legislature2012 Regular Session

By Senate Economic Development, Trade & Innovation (originally sponsored by Senators Kilmer, Becker, Rolfes, Hatfield, Kastama, Baumgartner, Eide, Fain, Hobbs, Shin, Parlette, Chase, and Frockt)

READ FIRST TIME 02/01/12.   

     AN ACT Relating to changing agency regulatory practices; amending RCW 34.05.110, 43.05.030, and 43.42.010; adding a new section to chapter 43.05 RCW; adding a new section to chapter 43.42 RCW; and creating a new section.


NEW SECTION.  Sec. 1   The legislature recognizes the importance of small businesses to the economy and the need to provide them with assistance to ensure their success. It is, therefore, the intent of the legislature that regulating agencies contribute to a culture of professionalism and cooperation by providing assistance in complying with state and federal laws, rules, and regulations.

Sec. 2   RCW 34.05.110 and 2011 c 18 s 1 are each amended to read as follows:
     (1) Agencies must ((provide to)) allow a small business ((a copy of the state law or agency rule that a small business is violating and)) a period of at least seven calendar days to correct ((the)) a violation of a state law or agency rule before the agency may impose any fines, civil penalties, or administrative sanctions ((for a violation of a state law or agency rule by a small business)). If no correction is possible or if an agency is acting in response to a complaint made by a third party and the third party would be disadvantaged by the application of this subsection, the requirements in this subsection do not apply.
     (2) Agencies must provide to a small business a copy of the state law or agency rule that the small business is alleged to be violating, or a link to an online copy.
     (3) Agencies must make every effort to avoid adding on violations or corrective actions that could have been discovered and noted in the original violation or correction notice, and shall provide a single list of the violations discovered during the review and the required corrective action or actions. Once the small business has been provided with the single list of corrective action or actions, the agency shall not add more violations or corrective actions during that review period, provided that exceptions to this policy are allowed pursuant to subsection (6) of this section and in response to inspections generated by complaints from a third party.
Except as provided in subsection (((4))) (6) of this section, agencies shall waive any fines, civil penalties, or administrative sanctions for first-time paperwork violations by a small business.
     (((3))) (5) When an agency waives a fine, penalty, or sanction under this section, when possible it shall require the small business to correct the violation within a reasonable period of time, in a manner specified by the agency. If correction is impossible, no correction may be required and failure to correct is not grounds for reinstatement of fines, penalties, or sanctions under subsection (((5))) (7)(b) of this section.
     (((4))) (6) Exceptions to requirements of subsections (1) and (3) of this section and the waiver requirement in subsection (((2))) (4) of this section may be made for any of the following reasons:
     (a) The agency head determines that the effect of the violation or waiver presents a direct danger to the public health, results in a loss of income or benefits to an employee, poses a potentially significant threat to human health or the environment, or causes serious harm to the public interest;
     (b) The violation involves a knowing or willful violation;
     (c) The violation is of a requirement concerning the assessment, collection, or administration of any tax, tax program, debt, revenue, receipt, a regulated entity's financial filings, or insurance rate or form filing;
     (d) The requirements of this section are in conflict with federal law or program requirements, federal requirements that are a prescribed condition to the allocation of federal funds to the state, or the requirements for eligibility of employers in this state for federal unemployment tax credits, as determined by the agency head;
     (e) The small business committing the violation previously violated a substantially similar requirement; or
     (f) The owner or operator of the small business committing the violation owns or operates, or owned or operated a different small business which previously violated a substantially similar requirement.
     (((5))) (7)(a) Nothing in this section prohibits an agency from waiving fines, civil penalties, or administrative sanctions incurred by a small business for a paperwork violation that is not a first-time offense.
     (b) Any fine, civil penalty, or administrative sanction that is waived under this section may be reinstated and imposed in addition to any additional fines, penalties, or administrative sanctions associated with a subsequent violation for noncompliance with a substantially similar paperwork requirement, or failure to correct the previous violation as required by the agency under subsection (((3))) (5) of this section.
     (((6))) (8) Nothing in this section may be construed to diminish the responsibility for any citizen or business to apply for and obtain a permit, license, or authorizing document that is required to engage in a regulated activity, or otherwise comply with state or federal law.
     (((7))) (9) Nothing in this section shall be construed to apply to small businesses required to provide accurate and complete information and documentation in relation to any claim for payment of state or federal funds or who are licensed or certified to provide care and services to vulnerable adults or children.
     (((8))) (10) Nothing in this section affects the attorney general's authority to impose fines, civil penalties, or administrative sanctions as otherwise authorized by law; nor shall this section affect the attorney general's authority to enforce the consumer protection act, chapter 19.86 RCW.
     (((9))) (11) As used in this section:
     (a) "Small business" means a business with two hundred fifty or fewer employees or a gross revenue of less than seven million dollars annually as reported on its most recent federal income tax return or its most recent return filed with the department of revenue.
     (b) "Paperwork violation" means the violation of any statutory or regulatory requirement that mandates the collection of information by an agency, or the collection, posting, or retention of information by a small business. This includes but is not limited to requirements in the Revised Code of Washington, the Washington Administrative Code, the Washington State Register, or any other agency directive.
     (c) "First-time paperwork violation" means the first instance of a particular or substantially similar paperwork violation.
     (12) Beginning July 31, 2013, all agencies with inspection and enforcement programs affecting small businesses must file annual reports indicating the agency director's estimate of the percentage of small business regulatory cases that are not offered the benefits intended for small businesses in this section and RCW 43.05.030 due to the exceptions in subsection (6) of this section.

Sec. 3   RCW 43.05.030 and 1996 c 206 s 2 are each amended to read as follows:
     (1) For the purposes of this chapter, a technical assistance visit is a visit by a regulatory agency to a facility, business, or other location that:
     (a) Has been requested or is voluntarily accepted; and
     (b) Is declared by the regulatory agency at the beginning of the visit to be a technical assistance visit.
     (2) A technical assistance visit also includes a consultative visit pursuant to RCW 49.17.250.
     (3)(a) During a technical assistance visit, or within a reasonable time thereafter, a regulatory agency shall inform the owner or operator of the facility of any violations of law or agency rules identified by the agency as follows:
     (((a))) (i) A description of the condition that is not in compliance and the text of the specific section or subsection of the applicable state or federal law or rule;
     (((b))) (ii) A statement of what is required to achieve compliance;
     (((c))) (iii) The date by which the agency requires compliance to be achieved;
     (((d))) (iv) Notice of the means to contact any technical assistance services provided by the agency or others; and
     (((e))) (v) Notice of when, where, and to whom a request to extend the time to achieve compliance for good cause may be filed with the agency.
     (b) If violations are not identified during the visit, the agency must let the owner or operator of the facility know when to expect the results of the visit.
     (4) At the time of the visit, the person conducting the technical assistance visit must provide the owner or operator of the facility with a web site address where the owner or operator may complete an anonymous customer service survey, pursuant to section 5 of this act, regarding the visit.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.05 RCW to read as follows:
     Each regulatory agency must require its regulators to complete a self-assessment for each technical assistance visit that contains, at a minimum, the same survey information developed by the office of regulatory assistance under section 5 of this act. Each individual regulator shall receive from his or her respective agency the aggregate results of customer service surveys completed for that regulator to compare with the regulator's self-assessments.

NEW SECTION.  Sec. 5   A new section is added to chapter 43.42 RCW to read as follows:
     (1) In coordination with regulatory agencies, the office must develop a customer service survey that regulated entities may complete after a technical assistance visit under chapter 43.05 RCW. The survey must include, but is not limited to, the questions:
     (a) The name of the regulator and his or her agency;
     (b) Was the visit conducted in a professional and respectful manner;
     (c) Did the regulator provide assistance to help your business succeed while also enforcing compliance with state regulations;
     (d) If cited with a violation during the visit, was a copy of the violated rule or law, or a link to an online copy, provided;
     (e) Were you informed of a seven-day grace period for complying with regulations in order to avoid fees and penalties, or informed about why the grace period did not apply;
     (f) Were you given a single comprehensive list of violations and the corrective actions required;
     (g) If cited with a violation, was the owner or operator provided with information that would assist him or her with compliance; and
     (h) What could have been improved about your inspection or compliance experience.
     (2) The survey must be available on the office web site. The results of the surveys must be summarized, by agency, in a report and forwarded to the agency director, the governor, and the appropriate committees of the legislature in December of each year. Each agency shall receive a copy of all surveys completed for any of its regulators. No identifying information may be included that would reveal the identity of the respondent.

Sec. 6   RCW 43.42.010 and 2011 c 149 s 2 are each amended to read as follows:
     (1) The office of regulatory assistance is created in the office of financial management and must be administered by the office of the governor to help improve the regulatory system and assist citizens, businesses, and project proponents.
     (2) The governor must appoint a director. The director may employ a deputy director and a confidential secretary and such staff as are necessary, or contract with another state agency pursuant to chapter 39.34 RCW for support in carrying out the purposes of this chapter.
     (3) The office must offer to:
     (a) Act as the central point of contact for the project proponent in communicating about defined issues;
     (b) Conduct project scoping as provided in RCW 43.42.050;
     (c) Verify that the project proponent has all the information needed to correctly apply for all necessary permits;
     (d) Provide general coordination services;
     (e) Coordinate the efficient completion among participating agencies of administrative procedures, such as collecting fees or providing public notice;
     (f) Maintain contact with the project proponent and the permit agencies to promote adherence to agreed schedules;
     (g) Assist in resolving any conflict or inconsistency among permit requirements and conditions;
     (h) Coordinate, to the extent practicable, with relevant federal permit agencies and tribal governments;
     (i) Facilitate meetings;
     (j) Manage a fully coordinated permit process, as provided in RCW 43.42.060; and
     (k) Provide information and assistance to legislators in responding to constituent inquiries regarding small business regulation, permitting, or other regulatory issues.
     (4) The office must also:
Help local jurisdictions comply with the requirements of chapter 36.70B RCW by providing information about best permitting practices methods to improve communication with, and solicit early involvement of, state agencies when needed; ((and
)) (b) Maintain and furnish information as provided in RCW 43.42.040; and
     (c) Coordinate an agency small business liaison team
     (((4))) (5) The office must provide the following by September 1, 2009, and biennially thereafter, to the governor and the appropriate committees of the legislature:
     (a) A performance report including:
     (i) Information regarding use of the office's voluntary cost-reimbursement services as provided in RCW 43.42.070;
     (ii) The number and type of projects or initiatives where the office provided services ((and the resolution provided by the office on any conflicts that arose on such projects)), including the key agencies with which the office partnered;
     (iii) The ((agencies involved on specific projects)) activities of the small business liaison team and other efforts directed toward small business;
     (iv) Specific information on any difficulty encountered in ((provision of)) providing services, ((implementation of)) implementing programs or processes, or ((use of)) assistance tools; and
     (v) Trend reporting that allows comparisons between statements of goals and performance targets and the achievement of those goals and targets; and
     (b) Recommendations on system improvements including recommendations ((regarding:
     (i) Measurement of overall system performance;
     (ii) Changes needed to make cost reimbursement, a fully coordinated permit process, multiagency permitting teams, and other processes effective; and
     (iii) Resolving any conflicts or inconsistencies arising from differing statutory or regulatory authorities, roles and missions of agencies, timing and sequencing of permitting and procedural requirements as identified by the office in the course of its duties
)) from the small business liaison team and ideas for improving the environmental permitting system.

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