WSR 09-22-077

PROPOSED RULES

WASHINGTON STATE PATROL


[ Filed November 3, 2009, 12:01 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-17-038.

Title of Rule and Other Identifying Information: WAC 204-36-040 Permit limitations.

Hearing Location(s): General Administration Building, Room G-3, 210 11th Avenue, Olympia, WA 98504, on December 9, 2009, at 9:00 a.m.

Date of Intended Adoption: December 10, 2009.

Submit Written Comments to: Melissa Van Gorkom, P.O. Box 42600, Olympia, WA 98504-2600, e-mail melissa.vangorkom@wsp.wa.gov, fax (360) 596-4015, by December 8, 2009.

Assistance for Persons with Disabilities: Contact Melissa Van Gorkom by December 8, 2009, (360) 596-4017.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Adds new restrictions to WAC 204-36-040 that would prohibit signs, shield markings, accessories and insignia used on uniforms, clothing or equipment which may imply that the operator is a law enforcement officer.

Reasons Supporting Proposal: Provides additional standards that will increase public safety.

Statutory Authority for Adoption: RCW 46.37.005 and 46.37.194.

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

Name of Proponent:

Name of Agency Personnel Responsible for Drafting and Implementation: Melissa Van Gorkom, General Administration Building, P.O. Box 42600, Olympia, WA 98504-2600, (360) 596-4017; and Enforcement: Washington State Patrol, General Administration Building, P.O. Box 42600, Olympia, WA 98504-2600, (360) 596-4017.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

SUMMARY OF PROPOSED RULES: The Washington state patrol equipment and standards review (ESR) unit is proposing amendments to WAC 204-36-040 Permit limitations.

The purpose of this section is to outline the limitations for the operations of an authorized emergency vehicle permitted under the process outlined in chapter 204-36 WAC.

The proposed amendments to this chapter include:

Restricting a private company from applying if the name of the company portrays the company as a public law enforcement agency, or in association with a public law enforcement agency, or includes the word "police" or "patrol."

Adding language which would restrict an operator of an approved emergency vehicle from displaying any of the following:

a) A name that includes the word "police," "patrol," or "law enforcement," or other word which portrays the individual or business as a law enforcement agency.

b) A sign, shield, marking, accessory or insignia on their uniform, clothing or equipment to imply that he or she is a law enforcement officer. (Unless such sign, shield, marking, accessory or insignia represents the law enforcement agency that is being represented and are approved by that agency for the purposes outlined under the authorized emergency vehicle permit):

SMALL BUSINESS ECONOMIC IMPACT STATEMENT -- DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The statute defines small businesses as those business entities that employ fifty or fewer people and are independently owned and operated.

The ESR unit has analyzed the proposed rule amendments and has determined that small businesses may be impacted by these changes, with some costs that may considered "more than minor" and disproportionate to some small businesses that may apply for an assistance van application.

EVALUATION OF PROBABLE COSTS AND PROBABLE BENEFITS: Since the proposed amendments "make significant amendments to a policy or regulatory program" under RCW 34.05.328 (5)(c)(iii), ESR has determined the proposed rules to be "significant" as defined by the legislature.

As required by RCW 34.05.328 (1)(d), ESR has analyzed the probable costs and probable benefits of the proposed amendments, taking into account both the qualitative and quantitative benefits and costs.

INDUSTRY ANALYSIS: ESR is responsible for certifying all applications for an authorized emergency vehicle permit in the state of Washington. As part of its monitoring, ESR keeps a current database that identifies all permit holders. Since internal industry information can be obtained at a more accurate level than is required by chapter 19.85 RCW, it is unnecessary to conduct an industry analysis using the four-digit standard industrial classification (SIC) codes.

ESR has determined that there are forty-six existing permit holders (public, private and for-profit) that meet the criteria for small businesses under RCW 19.85.020.

INVOLVEMENT OF SMALL BUSINESSES: All forty-six permit holders have been provided with the proposed language and a small business impact survey so that they have an opportunity to be involved in writing the proposed rules and in ascertaining the costs associated with proposed rule changes. Of the forty-six permit holders, nineteen responded to our inquiry (a forty-one percent response rate). It is also of note that the responses were inclusive of each type of permit currently on file. The responses to the survey are summarized below to showing the impact according to these businesses.

COST OF COMPLIANCE:

Cost of Outcomes Evaluations

The major cost anticipated by small businesses for proposed rule changes is the removal of wording and insignia used to depict the operator/company. This requirement has been added to increase public safety so that a holder of an authorized emergency vehicle permit does not depict themselves as being a law enforcement entity and having the same authority as a law enforcement entity.

According to the survey sent to all current permit holders, sixteen of the nineteen who responded indicate that they are not impacted by the proposed rule changes.

For the other three permit holders, the anticipated costs to comply with the new requirement are outlined in the chart below:

Outcomes Evaluation Costs:

UNIFORM COSTS:


Subject Costs per Year* First Year Subsequent Years
Removal of current patches $16-$20 per officer (2-3 shirts per officer)

(This includes the removal of two patches per garment)

Yes No
Set up cost $50-$150 (one time fee) Yes No
New badges $59-$68 Yes No
Sewing new patches $40 per officer (2-3 shirts/jackets per officer)


(This includes shirts, jackets, and cap and also estimates two patches per garment (shirt and jacket) and includes estimate for replacement embroidered name tags)

Yes No
New emblems $20 Yes No

*Because the different locations of businesses and choices in the suppliers, it is difficult to determine definitive costs for these items. ESR has given a range of costs to cover a range of choices as outlined in the responses provided in the survey. There is no anticipated costs to the permit holders after they are brought into compliance, therefore the costs outlined are only for one year.


First Year (fee per officer) First Year Total per Average Number of operators for affected permit holders (16) Other fees in first year Subsequent Total per permit holder based on the average number of operators (16)
$135-

$148

$2,160-$2,368 per permit holder $50-

$150

$2,210-$2,518 per permit holder

VEHICLE COSTS:


Subject Costs per Year* First Year Subsequent Years
Removal of current decals $944 per vehicle ($118 per hour - 8 hours per vehicle) Yes No
New decals $400 per vehicle (2 decals per vehicle) Yes No
Adding new decals $944 per vehicle ($118 per hour - 8 hours per vehicle) Yes No
Total 2,288 per vehicle Yes No

OFFICE SUPPLY COSTS:


Subject Costs per Year* First Year Subsequent Years
Business Cards $45 per operator


(estimate total for company with 16 operators is $720)

Yes No
Time log sheets $370 per box Yes No
Building Checklist $310 per box Yes No
Letterhead $350 per box Yes No
Total 1,750 (for a permit holder with 16 operators) Yes No

First Year fees for uniforms (based on an average number of operators for affected permit holders (16)) First Year fees for vehicles (based on an average number of vehicles for affected permit holders (9)) First Year fees for office supplies (based on an average number of operators for affected permit holders (16)) First Year Total per Average Number of operators (16) and vehicles (12) for affected permit holders
$2,210-

$2,518 per permit holder

$20,592 per permit holder $1,750 per permit holder $24,552-

$24,860 per permit holder


*NOTE: Only one company surveyed indicated that they would have costs associated with vehicles and office supplies, but for the purpose of this estimate, we have calculated the estimates based on the average of the companies that indicated they would be impacted to ensure the figures were all inclusive. Therefore in most cases the estimated cost anticipated would only be those costs associated with the uniforms ($2,210-$2,518 per permit holder) according to survey responses.

Disproportionate Economic Impact Analysis: When there are more than minor costs to small businesses as a result of proposed rule changes, the Regulatory Fairness Act requires an analysis to be done comparing these expenses between small businesses and ten percent of the largest businesses. The costs identified with outcomes evaluations for small businesses would be considered by ESR to be "more than minor."

ESR looked at the possible disproportionate impact of this requirement on small businesses, as compared to ten percent of the largest businesses. However, these largest businesses are not impacted by the proposed changes according to the survey. Consequently, it is not possible to accurately delineate and compare costs between small businesses and ten percent of the largest agencies. In its desire to be fair to small businesses and to meet the intent of the law, however, ESR has outlined ways to mitigate expenses for small businesses in meeting the new requirement.

Mitigating Expenses for Outcomes Evaluations: ESR has proposed a plan to mitigate some expenses for small businesses impacted by these proposed rules. ESR will use one or more of the following to help small businesses meet the requirement for outcomes evaluations:

ESR will allow companies to use their existing office supplies until their current stock runs out or until January 1, 2012, whichever is sooner to help mitigate the costs for complying with this regulation.

Current permit holders will be given until January 1, 2012, to bring their company into compliance. This will allow the company to phase in the changes over time and not accrue a one lump sum cost.

Summary of Benefits: The benefit for the proposed rule changes is to increase the scrutiny provided for the permit holders to ensure that they do not portray themselves as a law enforcement entity which will increase the safety of the citizens that these drivers/operators may come in contact with on the public roadways in the state of Washington.

JOBS CREATED OR LOST: This regulation is not a requirement for small businesses, it is an optional service that a small business can choose to provide if it chooses to apply and follow the guidelines outlined in chapter 204-36 WAC. Therefore, it is not anticipated that the requirements set forth in the current proposal will cause jobs to be lost as a result of small businesses complying with these rules.

CONCLUSION: ESR has given careful consideration to the impact on small businesses of proposed rules in WAC 204-36-040 Permit limitations. In accordance with the Regulatory Fairness Act, chapter 19.85 RCW, ESR has analyzed impacts on small businesses and outlined the reasons for the costs and ways that cost cannot be mitigated.

Please contact Melissa Van Gorkom if you have any questions at (360) 596-4017.

A copy of the statement may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia, WA 98504-2600, online at http://www.wsp.wa.gov/information/cr_status.htm, phone (360) 596-4017, fax (360) 596-4015, e-mail melissa.vangorkom@wsp.wa.gov.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Melissa Van Gorkom, P.O. Box 42600, Olympia, WA 98504-2600, online at http://www.wsp.wa.gov/information/cr_status.htm, phone (360) 596-4017, fax (360) 596-4015, e-mail melissa.vangorkom@wsp.wa.gov.

November 3, 2009

John R. Batiste

Chief

OTS-2755.1


AMENDATORY SECTION(Amending WSR 09-09-091, filed 4/16/09, effective 5/17/09)

WAC 204-36-040   Permit limitations.   (1) A vehicle authorized by the patrol must not be used as an authorized emergency vehicle except as follows:

(a) Only by the operators named in the original or amended application approved by the patrol. If the applicant wishes to add or remove operator(s) from the permit, such request must be made to the patrol in writing.

(b) Only with the equipment described in the original or amended application approved by the patrol.

(c) Only within the geographic area described in the original or amended application approved by the patrol.

(d) Only for the purposes set forth in the original or amended application approved by the patrol.

(e) If being used for escort services, may be used only for funeral escorts.

(2) If an authorized emergency vehicle is used for private purposes, or for purposes in an area or by an operator other than as set forth in the application, all emergency equipment which is exposed to public view must be removed or covered with an opaque hood, and must not be operated during such period of time.

(3) The issuance of an emergency vehicle permit does not relieve the driver from the duty to drive with regard for the safety of all persons, nor will such provisions protect the driver from the consequences of his disregard for the safety of others and does not grant police authority to the operators of said vehicle. Any inappropriate or misuse of authorized emergency vehicles may result in criminal or civil liability as well as cancellation of the emergency vehicle permit.

(4) No permit will be issued to an applicant if the name of the applicant portrays the applicant as a public law enforcement agency, or in association with a public law enforcement agency, or includes the word "police" or "patrol."

(5) An operator under an approved emergency vehicle permit will not be allowed to display or use any of the following:

(a) A name that includes the word "police," "patrol," or "law enforcement," or other word which portrays the individual or business as a public law enforcement agency.

(b) A sign, shield, marking, accessory or insignia on their uniform, clothing or equipment to imply that he or she is a law enforcement officer.

(6) Subsections (4) and (5) of this section do not apply:

(a) If the applicant is recognized under Washington state law as a municipal corporation and certifies to the patrol that the applicant is a municipal corporation; or

(b) If the sign, shield, marking, accessory or insignia on the operator's uniform or equipment is issued by a public law enforcement agency; the operator is employed by the public law enforcement agency that the operator is representing with the sign, shield, marking, accessory or insignia on the operator's uniform or equipment; and the operator is approved to operate the vehicle by that public law enforcement agency for the purposes outlined under the authorized emergency vehicle permit.

(7) All current permit holders as of December 31, 2010, will have until January 1, 2012, to make changes necessary to comply with the requirements outlined in subsections (4) and (5) of this section.

[Statutory Authority: RCW 46.37.194 and 46.37.005. 09-09-091, 204-36-040, filed 4/16/09, effective 5/17/09; 02-07-055, 204-36-040, filed 3/14/02, effective 4/14/02. Statutory Authority: RCW 46.37.194. 90-07-034, 204-36-040, filed 3/15/90, effective 4/15/90; 88-15-052 (Order 88-08-ESR), 204-36-040, filed 7/18/88; Order 7301, 204-36-040, filed 2/5/73.]

Washington State Code Reviser's Office