WSR 09-24-104

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[ Docket TV-091038, General Order R-556 -- Filed December 2, 2009, 8:25 a.m. , effective January 2, 2010 ]

In the matter of amending WAC 480-15-020, 480-15-145,

480-15-180, 480-15-450 and 480-15-610, relating to household goods carrier permits and advertisement to implement the 2009 legislature's HB 1536.

1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission (commission) takes this action under Notice No. WSR 09-19-143, filed with the code reviser on September 23, 2009. The commission brings this proceeding pursuant to RCW 80.01.040, 80.04.160, 34.05.353, and chapter 94, Laws of 2009 (HB 1536).

2 STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

3 DATE OF ADOPTION: The commission adopts this rule on the date this order is entered.

4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW 34.05.325(6) requires the commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the commission's responses to the comments reflecting the commission's consideration of them.

5 To avoid unnecessary duplication in the record of this docket, the commission designates the discussion in this order, including Appendix A, as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda preceding the filing of the CR-105 proposal and the adoption order. Together, these documents provide a complete but concise explanation of the agency actions and its reasons for taking those actions.

6 REFERENCE TO AFFECTED RULES: This order amends WAC 480-15-020 Definitions, 480-15-145 Enforcement, 480-15-180 Carrier operations that require a household goods permit, 480-15-450 Involuntary cancellation of a permit, and 480-15-610 Advertising.

7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: A preproposal statement of inquiry is not required under RCW 34.05.353 Expedited rule making.

8 NOTICE OF EXPEDITED RULE MAKING: The commission filed an expedited rule making (CR-105) on September 23, 2009, at WSR 09-19-143. The statement advised interested persons that the commission was considering a rule making to amend language in rules relating to household goods carrier permits and advertisement to implement the provisions in the 2009 legislature's HB 1536. The commission also informed persons of this matter by providing notice of the subject and the CR-105 to everyone on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3), the commission's list of all household goods companies operating in the state, persons interested in household goods issues, as well as attorneys representing the industry, and by posting all information on the commission's web site.

9 WRITTEN COMMENTS: The commission received written comments from Angela Chiders of Able Moving, Inc., and from Jim Tutton of the Washington Trucking Association. Able Moving, Inc., initially had an objection to the rule making, but later withdrew its objection on November 23, 2009. The Washington Trucking Association wrote in favor of the rules. There are no outstanding objections to the rules.

10 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend the rules as proposed in the CR-105 at WSR 09-19-143.

11 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-15-020, 480-15-145, 480-15-180, 480-15-450, and 480-15-610 should be amended to read as set forth in Appendix A, as a rule of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 5, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

ORDER


12 THE COMMISSION ORDERS:

13 The commission amends WAC 480-15-020, 480-15-145, 480-15-180, 480-15-450, and 480-15-610 to read as set forth in the CR-105 at WSR 09-19-143, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

14 This order and the rules set out in Appendix A, after being recorded in the register of the Washington utilities and transportation commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01, 34.05 RCW and 1-21 WAC.

DATED at Olympia, Washington, December 2, 2009.

Washington state utilities and transportation commission.

Jeffrey D. Goltz, Chairman

Patrick J. Oshie, Commissioner

Philip B. Jones, Commissioner


Appendix A

OTS-2650.3


AMENDATORY SECTION(Amending Docket TV-070466, General Order R-547, filed 12/27/07, effective 1/27/08)

WAC 480-15-020   Definitions.   For the purpose of this chapter, the words, terms, and phrases in this section have the following meaning:

Accessorial services: Any service provided by a household goods carrier that supplements, or is incidental to, the transportation of household goods. Examples include packing, unpacking, wrapping or protecting a portion of the shipment or providing special equipment or services such as hoisting.

Agent: A permitted carrier, who, under the provisions of a formal written agreement, performs services on behalf of another permitted carrier.

Application docket: A commission publication listing applications requesting operating authority.

Authority: The rights granted to a carrier to transport household goods.

Cancellation: An act by the commission to terminate a household goods carrier's authority.

Carrier or household goods carrier: A ((company performing household goods moves)) person who transports for compensation, by motor vehicle within this state, or who advertises, solicits, offers, or enters into an agreement to transport household goods.

Commission: The Washington utilities and transportation commission.

Customer: Anyone who hires a household goods carrier.

Engaging in business as a household goods carrier: Transporting household goods for compensation, by motor vehicle within this state, or advertising, soliciting, offering, or entering into an agreement to transport household goods.

Estimate:

(a) Nonbinding estimate: The written estimate the carrier gives to the customer in advance of the move. A nonbinding estimate is not binding on the mover. The final charges will be based upon the actual cost of the move and the services provided, although a carrier may not charge more than twenty-five percent over the nonbinding estimate.

(b) Binding estimate: The written estimate the carrier gives to the customer in advance of the move, signed by the carrier and the customer, and by which both the carrier and customer are bound. The carrier may not charge any amount other than the binding estimate and the customer must pay the amount of the binding estimate.

(c) Supplemental estimate: An amendment to the original nonbinding estimate, necessary when the circumstances of a move change in a way from the original written estimate that increases the cost of the move.

Filing: Any application, petition, tariff proposal, annual report, comment, complaint, pleading or other document submitted to the commission.

Household goods: The personal effects and property used, or to be used, in a residence when transported or arranged to be transported between residences or between a residence and a storage facility with the intent to later transport to a residence or when referenced in connection with advertising, soliciting, offering, or entering into an agreement for such transportation. Transportation of the goods must be arranged and paid for by the customer or by another individual, company or organization on behalf of the customer.

Local move: A move taking place within the limits of a city or town or moves where the shipment is transported fifty-five miles or less.

Long distance move: A move where the shipment is transported fifty-six miles or more.

Motor vehicle or vehicle: Any motor truck, tractor or other self-propelled vehicle, any trailer, semi-trailer or any combination of such vehicles moving as a single unit.

Permit: A document issued by the commission describing the authority granted to a household goods carrier.

Person: Any individual, firm, corporation, company, or partnership.

Shipment: A load of household goods moved by a carrier from a single residence or as a single transaction.

State: The state of Washington.

Suspension also includes suspend, suspended, suspending: An act by the commission to withhold temporarily a household goods carrier's authority.

Tariff: A publication containing rates and charges carriers must assess on shipments of household goods and the rules that govern how rates and charges are assessed.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.250, 81.28.040, 81.80.120, 81.80.130 and 81.80.290. 08-02-049 (Docket TV-070466, General Order R-547), 480-15-020, filed 12/27/07, effective 1/27/08. Statutory Authority: RCW 81.04.160, 81.04.250, 81.28.040, 81.80.090, 81.80.120, 81.80.130, 81.80.290, 81.80.211, and 80.01.040. 00-14-010 (General Order No. R-471, Docket No. TV-991559), 480-15-020, filed 6/27/00, effective 7/28/00. Statutory Authority: RCW 81.04.160 and 80.01.040. 99-01-077 (Order R-454, Docket No. TV-971477), 480-15-020, filed 12/15/98, effective 1/15/99.]


AMENDATORY SECTION(Amending Docket TV-070466, General Order R-547, filed 12/27/07, effective 1/27/08)

WAC 480-15-145   Enforcement.   The commission has a number of options available to enforce its statutes, rules, orders and tariff requirements, as follows:

(1) RCW 81.04.110 allows the commission to file a complaint and hold a hearing.

(2) RCW 81.04.260 allows the commission to file in court for an immediate injunction for violations of law, commission rule, order, direction or requirement of the commission.

(3) RCW 81.04.380 allows penalties against public service companies of up to one thousand dollars for each violation for each day the violation occurs or continues to occur.

(4) RCW 81.04.387 allows penalties against corporations, other than public service companies, of up to one thousand dollars for each offense.

(5) RCW 81.04.390 provides that violations may be treated as misdemeanors.

(6) RCW 81.04.405 allows penalties of one hundred dollars for each violation for each day the violation occurs or continues to occur. These penalties are issued through a penalty assessment with a fifteen-day response period.

(7) RCW 81.04.510 ((and 81.80.070)) allows the commission to issue cease and desist orders against a carrier operating without a permit.

(8) Section 4(5), chapter 94, Laws of 2009 (HB 1536), allows a penalty of up to ten thousand dollars per violation for any person who engages in business as a household goods carrier in violation of a cease and desist order.

(9) RCW 81.80.280 allows the commission to cancel, suspend, alter, or amend a permit for violations of federal or state law, or commission rule.

(((9) RCW 81.80.070 also)) (10) Section 4(4), chapter 94, Laws of 2009 (HB 1536), allows a penalty of ((one thousand five hundred)) up to five thousand dollars to any carrier operating without a permit. If the basis for the violation is advertising, each advertisement reproduced, broadcast, or displayed via a particular medium constitutes a separate violation.

(((10))) (11) RCW 81.80.355 provides that advertising without a permit may be treated as a misdemeanor.

(((11))) (12) RCW 81.80.357 allows a penalty of five hundred dollars for each violation when a carrier does not include its permit number, physical address, and telephone number in its advertisements.

(((12))) (13) WAC 480-120-172 allows a telecommunications company to disconnect a customer's service if that service is used for illegal purposes, such as operating without a permit issued by the commission.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.250, 81.28.040, 81.80.120, 81.80.130 and 81.80.290. 08-02-049 (Docket TV-070466, General Order R-547), 480-15-145, filed 12/27/07, effective 1/27/08.]


AMENDATORY SECTION(Amending Docket TV-070466, General Order R-547, filed 12/27/07, effective 1/27/08)

WAC 480-15-180   Carrier operations that require a household goods permit.   A carrier must receive a permit from the commission before transporting household goods, for compensation, by motor vehicle (including a rental truck) over public roads between two points within the state ((unless the carrier is operating in the territory described in subsection (1) or (2) of this section:

(1) Under RCW 81.80.040(1), a carrier does not need a permit to operate exclusively between points within the limits of a city or town with a population of less than ten thousand, unless it borders a city or town with a population of greater than ten thousand.

(2) Under RCW 81.80.040(2), a carrier does not need a permit to operate exclusively between points within a city with a population between ten thousand and thirty thousand if the commission has issued an order exempting transportation within that city from regulation. As of June 2007, these cities included:

(a) Cities of Mountlake Terrace and Mercer Island, exempted by commission General Orders 178, effective March 3, 1965, and R-66, effective May 8, 1974.

(b) City of Ellensburg, exempted by commission General Order 199, effective April 17, 1968)), or before advertising, soliciting, offering, or entering into an agreement to transport household goods.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.250, 81.28.040, 81.80.120, 81.80.130 and 81.80.290. 08-02-049 (Docket TV-070466, General Order R-547), 480-15-180, filed 12/27/07, effective 1/27/08. Statutory Authority: RCW 81.04.160 and 80.01.040. 99-01-077 (Order R-454, Docket No. TV-971477), 480-15-180, filed 12/15/98, effective 1/15/99.]


AMENDATORY SECTION(Amending Docket TV-070466, General Order R-547, filed 12/27/07, effective 1/27/08)

WAC 480-15-450   Involuntary cancellation of a permit.   (1) The commission may cancel a permit without the carrier's authorization for good cause. Good cause includes, but is not limited to, the carrier:

(a) Failing to file an annual report or pay required regulatory fees.

(b) Failing to correct, within the time frame specified in the suspension order, all conditions that led to the suspension of a permit.

(c) Failing or refusing to comply with applicable laws and commission rules pertaining to operations of household goods carriers, including safety requirements set in law or rule.

(d) Failing to supply information necessary to the commission for the performance of its regulatory functions when the commission requests the carrier to do so.

(e) Submitting false, misleading or inaccurate information.

(f) Allowing others to transport goods under the carrier's permit authority.

(g) Operating in a manner that constitutes unfair or deceptive business practices.

(h) Committing fraud.

(2) The commission will hold a hearing prior to canceling a permit unless the permit is subject to cancellation because the carrier failed, within the time frame specified by a suspension order, to correct the causes of the suspension. In that case:

(a) The commission will send the carrier notice of the date the commission will cancel a permit. The commission will enter an order canceling the permit thirty days after the service date of the notice.

(b) A carrier may contest the cancellation of its permit by requesting a hearing or brief adjudicative proceeding. Chapter 480-07 WAC describes the procedures for such hearings.

(3) When the commission has canceled a household goods carrier permit, the carrier must, when directed by the commission, provide notice to every customer that its permit has been canceled, and provide proof of such notice to the commission.

(4) If the permit is canceled and the carrier corrects all conditions that led to cancellation of the permit, the carrier may apply for reinstatement.

(a) To reinstate the permit within thirty days of cancellation, the carrier must file an application for reinstatement and pay the applicable reinstatement fees as stated in WAC 480-15-230.

(b) If the carrier files an application for reinstatement after thirty days of cancellation, the application will be considered in all aspects to be an application for new authority and will be subject to all terms and conditions specified in WAC 480-15-240 for new entrants.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.250, 81.28.040, 81.80.120, 81.80.130 and 81.80.290. 08-02-049 (Docket TV-070466, General Order R-547), 480-15-450, filed 12/27/07, effective 1/27/08. Statutory Authority: RCW 81.04.160 and 80.01.040. 99-01-077 (Order R-454, Docket No. TV-971477), 480-15-450, filed 12/15/98, effective 1/15/99.]


AMENDATORY SECTION(Amending Docket TV-070466, General Order R-547, filed 12/27/07, effective 1/27/08)

WAC 480-15-610   Advertising.   (1) Carriers must include the commission-issued permit number, name or trade name as recorded at the commission, ((business)) physical address and ((business)) telephone number in any advertising for household goods moving services. Advertising includes, but is not limited to:

(a) Advertisements in telephone books, newspapers, correspondence, cards, or any other written document.

(b) Signs, posters or similar displays.

(c) Web sites or other on-line advertising.

(2) Advertisements may not be misleading, false or deceptive.

(3) Radio or television advertising need not contain the carrier's permit number if the carrier provides its permit number, physical address, and telephone number to the person selling the advertisement and it is recorded in the advertising contract.

(4) Carriers may advertise services provided as an agent of, or connecting carrier to, another household goods carrier if they include the name and permit number of the other household goods carrier in their advertising.

(((4))) (5) No person may falsify a permit number or use a false or inaccurate permit number in connection with any advertisement, solicitation or any form of identification as an authorized household goods carrier.

(6) Carriers may not advertise services or rates and charges that conflict with those in the tariff.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.250, 81.28.040, 81.80.120, 81.80.130 and 81.80.290. 08-02-049 (Docket TV-070466, General Order R-547), 480-15-610, filed 12/27/07, effective 1/27/08. Statutory Authority: RCW 81.04.160 and 80.01.040. 99-01-077 (Order R-454, Docket No. TV-971477), 480-15-610, filed 12/15/98, effective 1/15/99.]

Washington State Code Reviser's Office