Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-17-069.

     Title of Rule: Chapter 308-390 WAC, Uniform commercial code.

     Purpose: Make housekeeping amendments in order to bring the rules in alignment with other states and with current operating procedures.

     Statutory Authority for Adoption: RCW 62A.9-409, 60.11.040, 60.13.040, 60.68.035, and 34.05.220.

     Statute Being Implemented: Chapter 62A.9A RCW, RCW 60.11.040, 60.13.040, 60.68.035.

     Reasons Supporting Proposal: These rules are based on model rules developed by the International Association of Commercial Administrators to promote uniform procedures across the nation and need to reflect recent resolutions made by that organization.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jon Donnellan, 405 Black Lake Boulevard, Olympia, WA, (360) 664-1530.

     Name of Proponent: Department of Licensing, Uniform Commercial Code, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: The program needs to standardize its definitions and procedures with those in other states across the nation. The program also needs to amend certain rules to reflect current processes, service options, and system limitations. An amendment to WAC 308-390-602 is needed to clarify procedures and reduce filing errors related to preparer liens and processor liens.

     Proposal Changes the Following Existing Rules: Repeals WAC 308-390-200 Acceptance and refusal of records.

     Amends WAC 308-390-101, 308-390-102, 308-390-104, 308-390-105, 308-390-108, 308-390-201, 308-390-203, 308-390-204, 308-390-300, 308-390-302, 308-390-401, 308-390-500, 308-390-503, 308-390-505, and 308-390-602, describing procedures for filing financing statements and liens, and for searching the UCC records, including definitions, delivery, forms, payments, refusals, and errors.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 34.05.310 (4)(c), 19.85.025(3), 62A.9A-526(b). These rules are proposed to adopt national standards in accordance with Revised Article 9, section 526 "to keep the filing office rules and practices of the filing office in harmony with the rules and practices of filing offices in other jurisdictions that enact substantially this part, and to keep the technology used by the filing office compatible with the technology used by filing offices in other jurisdictions..."

     Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Department of Licensing is exempt from this statute.

     Hearing Location: Department of Licensing, Business and Professions Division, 405 Black Lake Boulevard, 2nd Floor Conference Room, Olympia, WA 98502, on June 11, 2004, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Margaret Vogeli, TDD (360) 586-2788 or (360) 664-1530.

     Submit Written Comments to: Margaret Vogeli, Management Analyst, Uniform Commercial Code, P.O. Box 9660, Olympia, WA 98507-9660, fax (360) 586-4414.

     Date of Intended Adoption: July 18, 2004.

April 20, 2004

Mykel D. Gable

Assistant Director

OTS-7091.1

AMENDATORY SECTION(Amending WSR 01-10-056, filed 4/27/01, effective 7/1/01)

WAC 308-390-101   Definitions.   The following terms shall have the respective meanings provided in this rule. Terms not defined in this rule shall have the respective meanings given such terms in chapter 62A.9A RCW.

     (1) "ACH account" is a method of payment via electronic funds transfer under National Automated Clearing House Association rules and agreement with the department of licensing.

     (2) "Active record" means a UCC record that has not reached the one-year anniversary of its lapse date.

     (3) "Address" means a name or other identifying information, either a street address, route number (may include box) or a P.O. Box number plus the city and state or country.

     (4) "Amendment" means a UCC record that amends the information contained in a financing statement. Amendments include assignments, continuations and terminations.

     (((3))) (5) "Assignment" is an amendment that assigns all or a part of a secured party's power to authorize an amendment to a financing statement.

     (((4))) (6) "Certified search" is a certified record of information maintained by the filing office.

     (((5))) (7) "Continuation" shall have the meaning prescribed by RCW 62A.9A-102(27).

     (((6))) (8) "Correction statement" means a UCC record that indicates that a financing statement is inaccurate or wrongfully filed.

     (((7))) (9) "File number" shall have the meaning prescribed by RCW 62A.9A-519(b).

     (((8))) (10) "Filing office" and "filing officer" mean the department of licensing and the director of the department of licensing or designee.

     (((9))) (11) "Filing officer statement" means a statement entered into the filing office's information system to correct an error by the filing office.

     (((10))) (12) "Financing statement" shall have the meaning prescribed by RCW 62A.9A-102(39).

     (((11))) (13) "Image" means the image of a financing statement, or portion of a financing statement, as stored in the UCC information management system.

     (((12))) (14) "Inactive record" means a UCC record that has reached the first anniversary of its lapse date.

     (15) "Individual" means a human being, or a decedent in the case of a debtor that is such decedent's estate.

     (((13))) (16) "Initial financing statement" means a UCC record containing the information required to be in an initial financing statement and that causes the filing office to establish the initial record of existence of a financing statement.

     (((14))) (17) "On-line services" means the interactive internet application for filing and search functions.

     (((15))) (18) "Organization" means a legal person who is not an individual.

     (((16))) (19) "Organizational number" means the identifying number issued to an entity upon the formation of that entity by the filing office in the jurisdiction of formation.

     (((17))) (20) "Remitter" means a person who tenders a UCC record to the filing officer for filing, whether the person is a filer or an agent of a filer responsible for tendering the record for filing. "Remitter" does not include a person responsible merely for the delivery of the record to the filing office, such as the postal service or a courier service but does include a service provider who acts as a filer's representative in the filing process.

     (((18))) (21) "Secured party of record" shall have the meaning prescribed in RCW 62A.9A-511.

     (((19))) (22) "Termination statement" shall have the meaning prescribed by RCW 62A.9A-102(79).

     (((20))) (23) "UCC" means the Uniform Commercial Code as adopted in this state under chapter 62A.9A RCW.

     (((21))) (24) "UCC record" means an initial financing statement, an amendment, an assignment, a continuation, a termination or a correction statement and shall not be deemed to refer exclusively to paper or paper-based writings.

     (((22))) (25) "UCC website" means the series of related internet web pages provided for on-line filing and search functions.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-101, filed 4/27/01, effective 7/1/01.]

     (1) Personal delivery, at the filing office's street address ((during regular business hours)) between 8:30 a.m. and 4:30 p.m., Monday through Friday except state holidays. The file time for a UCC document delivered by this method is when the UCC document is received by the filing office (even though the UCC document may not yet have been accepted for filing and subsequently may be rejected).

     (2) Express mail delivery, at the filing office's street address during regular business hours. The file time for a UCC document delivered by this method is 5:00 p.m. on the day of delivery (even though the UCC document may not yet have been accepted for filing and may be subsequently rejected). A UCC document delivered after regular business hours or on a day the filing office is not open for business will have a filing time of 5:00 p.m. on the next day the filing office is open for business.

     (3) Postal service delivery, to the filing office's mailing address. The file time for a UCC document delivered by this method is 5:00 p.m. on the day of delivery (even though the UCC document may not yet have been accepted for filing and may be subsequently rejected). A UCC document delivered after regular business hours or on a day the filing office is not open for business will have a filing time of 5:00 p.m. on the next day the filing office is open for business.

     (4) Electronic mail and telefacsimile delivery, to the filing office's e-mail address or the filing office's fax filing telephone number, are not accepted.

     (5) Electronic filing. Financing statements may be entered on-line after July 1, 2001, as described in WAC 308-390-313 and 308-390-315. The time of filing of a financing statement delivered by direct on-line access or by web page data entry is the time that the filing office's information management system analyzes the relevant transmission, determines that all the required elements of the transmission have been received in a required format, and acknowledges acceptance to that system.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-102, filed 4/27/01, effective 7/1/01.]

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-104, filed 4/27/01, effective 7/1/01.]

     (2) For an initial financing statement that indicates that it is filed in connection with a public-finance transaction or in connection with a manufactured-home transaction will be filed at the fee provided in subsection (1) of this section.

     (3) UCC search fee. The fee for a UCC search request communicated on paper or in a paper-based format is $18.80. The fee for filing and indexing a UCC search request communicated by a medium authorized by these rules which is other than on paper or in a paper-based format shall be $15.00.

     (4) UCC search -- Copies. The fee for a UCC search and copies of all relevant documents is $26.57.

     (((5) UCC search -- Partial copies. The fee for a UCC search and copies of first pages only is $20.00.))

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-105, filed 4/27/01, effective 7/1/01.]

     (2) Underpayment. Upon receipt of a document with an insufficient fee, a copy of the document shall be returned to the remitter as provided in WAC 308-390-204(2). A refund shall be delivered under separate cover.

     (3) All refunds shall be made in the form of a warrant issued by the state treasurer's office. Warrants shall be redeemed within one hundred eighty days from date of issue ((and will not be reissued)).

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-108, filed 4/27/01, effective 7/1/01.]

     (2) To file multiple secured party names on a paper submittal, a filer must provide the additional names in box 12 only of the national UCC Financing Statement Addendum and box 7 of the national UCC Financing Statement Amendment. Secured party names appearing in other boxes or on attachments will not be indexed. There is no limit to the number of addendum pages that may be attached)) designated boxes on approved addenda forms only. The approved addenda forms are UCC1Ad, UCC1Ap, and UCC3Ap. Addenda forms are approved as provided in WAC 308-390-104. The number of paper submittal addenda pages that may be attached is limited as set forth in subsection (2) of this section.

     (2) The number and type of paper submittal addenda forms that may be filed and indexed is limited to the following combinations:

     (a) UCC1 plus one addendum (UCC1Ad) form and/or one or two additional party (UCC1Ap) forms (permits a maximum of nine debtor and six secured party names to be indexed).

     (b) UCC3 plus up to three additional party (UCC3Ap) forms (permits a maximum of ten debtor and seven secured party names to be indexed).

     (3) Debtor and secured party names appearing in the incorrect boxes or on paper submittal attachments or addenda in excess of that stated in subsection (2) of this section will be accepted but not added to the index.

     (4) To file and index more names than provided on the allowable number of paper submittal addenda pages, a filer may file using the Washington UCC electronic filing function on the internet. Electronic filing permits an unlimited number of names to be filed and added to the index.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-201, filed 4/27/01, effective 7/1/01.]

     (2) The acknowledgment will show the financing statement as it was ((recorded)) indexed. The filer shall be responsible for verifying that the information was ((recorded)) indexed accurately. If an input error is detected, the filer must notify the filing office within ninety days of the date of filing and the record will be corrected as provided in WAC 308-390-401. ((If no objection to the department of licensing record is communicated by the filer within ninety days, the record will be deemed identical to the filing submitted.))

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-203, filed 4/27/01, effective 7/1/01.]

     (a) The record contains illegible information. The term "illegible" is not limited to refer only to written expressions on paper; it requires machine-readable transmission in all formats. Labels and imprints from an ink stamp are illegible.

     (b) No address as defined in WAC 308-390-101 is given in the address field. ((As used in this section, address is deemed to include city and state.))

     (c) The information on the financing statement form is not machine-printed. Attachments to the form, however, may be handwritten.

     (d) The filing officer is unable to decipher the information provided.

     (2) Procedure upon refusal. If the filing officer finds grounds to refuse a financing statement, the filing officer shall return an image of the document to the remitter and shall refund the filing fee in the form of a warrant issued by the state treasurer's office.

     (3) Multiple secured parties. If the record contains more than one secured party or assignee name or address and some names or addresses are missing, the grounds for refusal shall be applied to each secured party separately.

     (4) Notification of defects. Nothing in these rules prevents a filing officer from communicating to a filer or a remitter that the filing officer noticed apparent potential defects in a UCC document, whether or not it was filed or refused for filing. However, the filing office is under no obligation to do so and may not, in fact, have the resources to do so or to identify such defects. The responsibility for the legal effectiveness of filing rests with filers and remitters and the filing office bears no responsibility for such effectiveness.

     (5) Refusal errors. If, within ninety days of the date of the refusal notice, a secured party or a remitter demonstrates to the satisfaction of the filing officer that a UCC record that was refused for filing should not have been refused, the filing officer ((shall)) will file the UCC record with the filing date and time the UCC record was originally tendered for filing. ((The filing officer shall also file a statement noting when and why the record was changed.)) A filing officer statement record relating to the relevant initial financing statement will be placed in the UCC information management system on the date that the corrective action was taken. The filing officer statement must provide the date of the correction and explain the nature of the corrective action taken. The record shall be preserved for so long as the record of the initial financing statement is preserved in the UCC information management system.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-204, filed 4/27/01, effective 7/1/01.]

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-300, filed 4/27/01, effective 7/1/01.]

     (1) Individual name fields. The names of individuals are stored in files that include only the names of individuals, and not the names of organizations. Separate data entry fields are established for first (given), middle (given), and last names (surnames or family names) of individuals. A filer should place the name of a debtor with a single name (e.g., "Cher") in the last name field. The filing officer assumes no responsibility for the accurate designation of the components of a name but will accurately enter the data in accordance with the filer's designations.

     (2) Titles and prefixes before names. Titles and prefixes, such as "doctor," "reverend," "Mr.," and "Ms.," should not be entered in the UCC information management system. However, when a UCC record is submitted with designated name fields, the data will be entered in the UCC information management system exactly as it appears.

     (3) Titles and suffixes after names. Titles or indications of status such as "M.D." and "esquire" shall not be entered in the UCC information management system. Suffixes are not part of an individual's name and should not be provided by filers in UCC records. Suffixes that indicate which individual is being named, such as "senior," "junior," "I," "II," and "III," are entered in a field designated for name suffixes. In either case, they will be entered into the information management system exactly as received.

     (4) Truncation -- Individual names. Personal name fields in the UCC data base are fixed in length. Although filers should continue to provide full names on their UCC records, a name that exceeds the fixed length is entered as presented to the filing officer, up to the maximum length of the data entry field. The lengths of data entry name fields are as follows:

     (a) First name: ((100)) 254 characters.

     (b) Middle name: ((100)) 254 characters.

     (c) Last name: ((100)) 254 characters.

     (d) Suffix: 10 characters.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-302, filed 4/27/01, effective 7/1/01.]

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-401, filed 4/27/01, effective 7/1/01.]

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-500, filed 4/27/01, effective 7/1/01.]

     (1) There is no limit to the number of matches that may be returned in response to the search criteria.

     (2) No distinction is made between upper and lower case letters.

     (3) Punctuation marks and accents are disregarded.

     (4) Certain words and abbreviations at the end of a name that indicate the existence or nature of an organization are disregarded (((e.g., company, limited, incorporated, corporation, limited partnership, limited liability company or abbreviations of the foregoing))). Those words and abbreviations are published on the Washington State List of Ending Noise Words.

     (5) The word "the" at the beginning of the search criteria is disregarded.

     (6) All spaces are disregarded.

     (7) For first and middle names of individuals, initials are equated with all names that begin with such initials, and no middle name or initial is equated with all middle names and initials. For example, a search request for "John A. Smith" would cause the search to retrieve all filings against all individual debtors with "John" or the initial "J" as the first name, "Smith" as the last name, and with the initial "A" or any name beginning with "A" in the middle name field. If the search request were for "John Smith" (first and last names with no designation in the middle name field), the search would retrieve all filings against individual debtors with "John" or the initial "J" as the first name, "Smith" as the last name and with any name or initial or no name or initial in the middle name field.

     (8) After using the preceding rules to modify the name to be searched, the search will reveal only names of debtors that are contained in unlapsed financing statements and exactly match the name requested, as modified.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-502, filed 4/27/01, effective 7/1/01.]

     (1) The request may limit the records requested by limiting them by the city of the debtor, the date of filing (or a range of filing dates), or specific file number(s). A report created by the filing officer in response to such a request shall contain the statement:

     "A limited search may not reveal all filings against the debtor searched and the searcher bears the risk of relying on such a search."

     (2) The request may ask for copies of all pages ((or of first pages only)) of UCC ((documents)) records identified on the primary search response.

     (3) ((The request may ask for a listing of all financing statements and notices that include a named secured party in a specific city and state. Copies may not be requested.

     (4))) The request may ask for records of lien notices only((, or by type of lien)).

     (((5))) (4) The request may ask for all records maintained by the information management system including those that have lapsed within the last twelve months.

     (((6))) (5) Instructions to return results by express mail will be honored if the remitter includes a prepaid way-bill or account number and the requested mode is available to the filing office.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-503, filed 4/27/01, effective 7/1/01.]

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-505, filed 4/27/01, effective 7/1/01.]

     (a) Designate the financing statement as a statement ((as a preparer or processor lien)) filed pursuant to RCW 60.13.040 evidencing the processor lien or preparer lien by marking "Non-UCC Filing" (not AG-lien) in box 5, and ((naming the)) by stating which type of lien is claimed in box 8.

     (b) ((Identify)) State the true amount or a reasonable estimate of the debt demanded after deducting all credits and offsets and the date on which payment was due for the agricultural product or fish to be charged with the lien in box 10 of the Addendum.

     (c) State the name and address of the ((preparer,)) processor(s), ((or)) conditioner(s) or preparer(s) who received the agricultural product or fish to be charged with the lien in ((box 1)) boxes 1, 2 and 11, as needed.

     (((c) Identify)) (d) State the name and address of the lien holder in box 3.

     (((d) Describe)) (e) Add a description sufficient to identify the agricultural product or fish to be charged with the lien in box 4.

     (((e) State the amount of the debt and the date on which payment was due in box 10 of the Addendum.

     (2))) (f) Include the statement that the amount claimed is a true and bona fide existing debt as of the date of the filing of the notice evidencing the lien, and the statement that the act of filing this notice constitutes the present intention of the producer or commercial fisherman that the statements there are true and adopted by the producer or commercial fisherman as their own in box 10 of the Addendum. If you cannot include all of the information required to be included in box 10, use the additional space provided in box 16 of the Addendum with a cross-reference that it is a continuation of the information to be added to box 10.

     (2) Authentication. The authorized filing of the financing statement on the approved forms, containing the additional information, and in the manner that complies with the requirements of this section is deemed to be an authenticated record by the producer or commercial fisherman as required by RCW 60.13.040(2).

     (3) Where to file. File in the department of licensing as provided in WAC 308-390-102.

     (((3))) (4) Fee. The fees are the same as provided in WAC 308-390-105.

     (((4))) (5) Duration. ((The lien lapses five years after the date of filing unless)) As provided in RCW 60.13.060(1), the processor lien shall terminate twelve months after, and the preparer lien shall terminate fifty days after, the later of the date of attachment of the lien or filing of the statement, unless a suit to foreclose the lien has been filed before that time as provided in RCW 60.13.070. Thus a filed statement evidencing a processor lien or a preparer lien is not effective for five years, and need not, and may not be continued as provided in WAC 308-390-202.

     (((5))) (6) Mechanics of search. ((All liens)) Crop liens claimed under chapter 60.11 RCW, processor liens or preparer liens claimed under chapter 60.13 RCW for which statements have been filed in accordance with this rule, and financing statements filed under RCW 62A.9A-310 are revealed in a search as provided in WAC 308-390-504.

[Statutory Authority: Chapters 62A.9, 60.11, 60.13, 60.68, and 62A.9A RCW. 01-10-056, § 308-390-602, filed 4/27/01, effective 7/1/01.]

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