SEVENTY NINTH DAY

MORNING SESSION

Senate Chamber, Olympia, Tuesday, March 29, 2011

The Senate was called to order at 9:30 a.m. by President Owen. The Secretary called the roll and announced to the President that all Senators were present with the exception of Senator Zarelli.

The Sergeant at Arms Color Guard consisting of Pages Jess Sargent and Sean Wilkinson, presented the Colors. Senator Kline offered the prayer.

MOTION

On motion of Senator Eide, the reading of the Journal of the previous day was dispensed with and it was approved.

MOTION

There being no objection, the Senate advanced to the first order of business.

REPORTS OF STANDING COMMITTEES

March 28, 2011

ESHB 1071        Prime Sponsor, Committee on Transportation: Creating a complete streets grant program.  Reported by Committee on Transportation

MAJORITY recommendation:  Do pass as amended.  Signed by Senators Haugen, Chair; White, Vice Chair; King; Fain; Delvin; Eide; Hill; Hobbs; Litzow; Nelson; Prentice; Ranker; Sheldon; Shin and Swecker.

MINORITY recommendation:  Do not pass.  Signed by Senator Ericksen.

Passed to Committee on Rules for second reading.

March 28, 2011

SHB 1384          Prime Sponsor, Committee on Transportation: Concerning public improvement contracts involving certain federally funded transportation projects.  Reported by Committee on Transportation

MAJORITY recommendation:  Do pass.  Signed by Senators Haugen, Chair; White, Vice Chair; King; Fain; Delvin; Eide; Ericksen; Hill; Hobbs; Litzow; Prentice; Sheldon; Shin and Swecker.

Passed to Committee on Rules for second reading.

March 28, 2011

ESHB 1922        Prime Sponsor, Committee on Transportation: Requiring certain vehicles to submit to inspection and weight measurement upon entering the state. (REVISED FOR ENGROSSED: Requiring certain vehicles to stop at a port of entry upon entering the state. )  Reported by Committee on Transportation

MAJORITY recommendation:  Do pass as amended.  Signed by Senators Haugen, Chair; White, Vice Chair; King; Fain; Delvin; Eide; Ericksen; Hill; Hobbs; Nelson; Prentice; Ranker; Sheldon; Shin and Swecker.

Passed to Committee on Rules for second reading.

MOTION

On motion of Senator Eide, all measures listed on the Standing Committee report were referred to the committees as designated.

MOTION

On motion of Senator Eide, the Senate advanced to the fifth order of business.

INTRODUCTION AND FIRST READING

SB 5911              by Senators Murray and Zarelli

AN ACT Relating to the master license service program; amending RCW 19.02.020, 19.02.030, 19.02.050, 19.02.070, 19.02.075, 19.02.100, 19.02.800, 19.02.900, 19.80.005, 19.80.010, 19.80.025, 19.80.045, 19.80.075, 19.80.900, 19.94.015, 34.05.310, 34.05.328, 35.21.392, 35A.21.340, 43.07.200, 46.68.060, 46.72.110, 46.72A.110, 59.30.010, 59.30.020, 59.30.050, 59.30.060, 76.48.121, 79A.60.485, 82.01.060, 82.02.010, 82.32.030, 90.76.010, and 90.76.020; reenacting and amending RCW 43.24.150; adding a new section to chapter 19.02 RCW; adding a new section to chapter 59.30 RCW; creating new sections; decodifying RCW 19.02.901 and 19.02.910; prescribing penalties; providing an effective date; and declaring an emergency.

Referred to Committee on Ways & Means.

INTRODUCTION AND FIRST READING OF HOUSE BILLS

ESHB 1175        by House Committee on Transportation (originally sponsored by Representatives Clibborn, Armstrong, Liias and Billig)

AN ACT Relating to transportation funding and appropriations; amending RCW 47.29.170, 46.63.170, 46.63.160, 43.19.642, 43.19.534, 47.01.380, 47.56.403, 43.105.330, 47.64.170, 47.64.270, 47.64.280, 46.68.170, 46.68.370, 47.12.244, 46.68.060, 46.68.220, 47.56.876, and 46.68.---; reenacting and amending RCW 46.18.060 and 47.28.030; amending 2010 c 247 ss 205, 207, 208, 209, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 301, 302, 303, 304, 305, 307, 308, 401, 402, and 403 (uncodified); amending 2009 c 470 ss 301 and 305 (uncodified); amending 2010 c 283 s 19 (uncodified); amending 2010 1st sp.s. c 37 s 804 (uncodified); adding a new section to 2010 c 247 (uncodified); creating new sections; repealing 2010 c 161 s 1126; making appropriations and authorizing expenditures for capital improvements; providing an effective date; providing a contingent effective date; and declaring an emergency.

MOTION

      On motion of Senator Eide, all measures listed on the Introduction and First Reading report were referred to the committees as designated with the exception of Engrossed Substitute House Bill No. 1175 which was placed on the second reading calendar under suspension of the rules.

MOTION

At 9:38 a.m., on motion of Senator Eide, the Senate was declared to be at ease subject to the call of the President.

The Senate was called to order at 11:28 a.m. by President Owen.

MOTION

On motion of Senator Eide, the Senate advanced to the sixth order of business.

SECOND READING

SECOND SUBSTITUTE HOUSE BILL NO. 1362, by House Committee on Ways & Means (originally sponsored by Representatives Orwall, Hope, Rolfes, Moeller, Liias, Probst, Green, Darneille, Frockt, Kirby, Miloscia, Roberts, Hunt, Dickerson, Upthegrove, Fitzgibbon, Kagi, Eddy, Hasegawa, Pettigrew, Ormsby, Sells, Kenney, Cody, Hudgins, Lytton, Moscoso, Ryu, Appleton, Reykdal, Van De Wege, Carlyle, Dunshee, Santos, McCoy, Tharinger, Haigh, Goodman, Jinkins, Jacks, Takko, Sullivan, Blake, Seaquist, Billig, Stanford, Ladenburg, Finn and Pedersen)

Addressing homeowner foreclosures. Revised for 2nd Substitute: Protecting and assisting homeowners from unnecessary foreclosures.

The measure was read the second time.

MOTION

Senator Kline moved that the following committee striking amendment by the Committee on Financial Institutions, Housing & Insurance be adopted:

0)Strike everything after the enacting clause and insert the following:

"NEW SECTION.  Sec. 1. (1) The legislature finds and declares that:

      (a) The rate of home foreclosures continues to rise to unprecedented levels, both for prime and subprime loans, and a new wave of foreclosures has occurred due to rising unemployment, job loss, and higher adjustable loan payments;

      (b) Prolonged foreclosures contribute to the decline in the state's housing market, loss of property values, and other loss of revenue to the state;

      (c) In recent years, the legislature has enacted procedures to help encourage and strengthen the communication between homeowners and lenders and to assist homeowners in navigating through the foreclosure process; however, Washington's nonjudicial foreclosure process does not have a mechanism for homeowners to readily access a neutral third party to assist them in a fair and timely way; and

      (d) Several jurisdictions across the nation have foreclosure mediation programs that provide a cost-effective process for the homeowner and lender, with the assistance of a trained mediator, to reach a mutually acceptable resolution that avoids foreclosure.

      (2) Therefore, the legislature intends to:

      (a) Encourage homeowners to utilize the skills and professional judgment of housing counselors as early as possible in the foreclosure process;

      (b) Create a framework for homeowners and beneficiaries to communicate with each other to reach a resolution and avoid foreclosure whenever possible; and

      (c) Provide a process for foreclosure mediation when a housing counselor or attorney determines that mediation is appropriate.  For mediation to be effective, the parties should attend the mediation (in person, telephonically, through an agent, or otherwise), provide the necessary documentation in a timely manner, willingly share information, actively present, discuss, and explore options to avoid foreclosure, negotiate willingly and cooperatively, maintain a professional and cooperative demeanor, cooperate with the mediator, and keep any agreements made in mediation.

NEW SECTION.  Sec. 2. This act may be known and cited as the foreclosure fairness act.

Sec. 3. RCW 61.24.005 and 2009 c 292 s 1 are each reenacted and amended to read as follows:

      The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

      (1) "Affiliate of beneficiary" means any entity which controls, is controlled by, or is under common control with a beneficiary.

      (2) "Beneficiary" means the holder of the instrument or document evidencing the obligations secured by the deed of trust, excluding persons holding the same as security for a different obligation.

      (3) "Borrower" means a person or a general partner in a partnership, including a joint venture, that is liable for all or part of the obligations secured by the deed of trust under the instrument or other document that is the principal evidence of such obligations, or the person's successors if they are liable for those obligations under a written agreement with the beneficiary.

      (4) "Commercial loan" means a loan that is not made primarily for personal, family, or household purposes.

      (5) "Department" means the department of commerce or its designee.
      (6) "Fair value" means the value of the property encumbered by a deed of trust that is sold pursuant to a trustee's sale.  This value shall be determined by the court or other appropriate adjudicator by reference to the most probable price, as of the date of the trustee's sale, which would be paid in cash or other immediately available funds, after deduction of prior liens and encumbrances with interest to the date of the trustee's sale, for which the property would sell on such date after reasonable exposure in the market under conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under duress.

      (((6))) (7) "Grantor" means a person, or its successors, who executes a deed of trust to encumber the person's interest in property as security for the performance of all or part of the borrower's obligations.

      (((7))) (8) "Guarantor" means any person and its successors who is not a borrower and who guarantees any of the obligations secured by a deed of trust in any written agreement other than the deed of trust.

      (((8))) (9) "Housing counselor" means a housing counselor that has been approved by the United States department of housing and urban development or approved by the Washington state housing finance commission.
      (10) "Owner-occupied" means property that is the principal residence of the borrower.

      (((9))) (11) "Person" means any natural person, or legal or governmental entity.

      (((10))) (12) "Record" and "recorded" includes the appropriate registration proceedings, in the instance of registered land.

      (((11))) (13) "Residential real property" means property consisting solely of a single-family residence, a residential condominium unit, or a residential cooperative unit.

      (((12))) (14) "Tenant-occupied property" means property consisting solely of residential real property that is the principal residence of a tenant subject to chapter 59.18 RCW or other building with four or fewer residential units that is the principal residence of a tenant subject to chapter 59.18 RCW.

      (((13))) (15) "Trustee" means the person designated as the trustee in the deed of trust or appointed under RCW 61.24.010(2).

      (((14))) (16) "Trustee's sale" means a nonjudicial sale under a deed of trust undertaken pursuant to this chapter.

Sec. 4. RCW 61.24.030 and 2009 c 292 s 8 are each amended to read as follows:

      It shall be requisite to a trustee's sale:

      (1) That the deed of trust contains a power of sale;

      (2) That the deed of trust contains a statement that the real property conveyed is not used principally for agricultural purposes; provided, if the statement is false on the date the deed of trust was granted or amended to include that statement, and false on the date of the trustee's sale, then the deed of trust must be foreclosed judicially.  Real property is used for agricultural purposes if it is used in an operation that produces crops, livestock, or aquatic goods;

      (3) That a default has occurred in the obligation secured or a covenant of the grantor, which by the terms of the deed of trust makes operative the power to sell;

      (4) That no action commenced by the beneficiary of the deed of trust is now pending to seek satisfaction of an obligation secured by the deed of trust in any court by reason of the grantor's default on the obligation secured:  PROVIDED, That (a) the seeking of the appointment of a receiver shall not constitute an action for purposes of this chapter; and (b) if a receiver is appointed, the grantor shall be entitled to any rents or profits derived from property subject to a homestead as defined in RCW 6.13.010.  If the deed of trust was granted to secure a commercial loan, this subsection shall not apply to actions brought to enforce any other lien or security interest granted to secure the obligation secured by the deed of trust being foreclosed;

      (5) That the deed of trust has been recorded in each county in which the land or some part thereof is situated;

      (6) That prior to the date of the notice of trustee's sale and continuing thereafter through the date of the trustee's sale, the trustee must maintain a street address in this state where personal service of process may be made, and the trustee must maintain a physical presence and have telephone service at such address;

      (7)(a) That, for residential real property, before the notice of trustee's sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust.  A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust shall be sufficient proof as required under this subsection.

      (b) Unless the trustee has violated his or her duty under RCW 61.24.010(4), the trustee is entitled to rely on the beneficiary's declaration as evidence of proof required under this subsection.

      (c) This subsection (7) does not apply to association beneficiaries subject to chapter 64.32, 64.34, or 64.38 RCW; ((and))

      (8) That at least thirty days before notice of sale shall be recorded, transmitted or served, written notice of default shall be transmitted by the beneficiary or trustee to the borrower and grantor at their last known addresses by both first-class and either registered or certified mail, return receipt requested, and the beneficiary or trustee shall cause to be posted in a conspicuous place on the premises, a copy of the notice, or personally served on the borrower and grantor.  This notice shall contain the following information:

      (a) A description of the property which is then subject to the deed of trust;

      (b) A statement identifying each county in which the deed of trust is recorded and the document number given to the deed of trust upon recording by each county auditor or recording officer;

      (c) A statement that the beneficiary has declared the borrower or grantor to be in default, and a concise statement of the default alleged;

      (d) An itemized account of the amount or amounts in arrears if the default alleged is failure to make payments;

      (e) An itemized account of all other specific charges, costs, or fees that the borrower, grantor, or any guarantor is or may be obliged to pay to reinstate the deed of trust before the recording of the notice of sale;

      (f) A statement showing the total of (d) and (e) of this subsection, designated clearly and conspicuously as the amount necessary to reinstate the note and deed of trust before the recording of the notice of sale;

      (g) A statement that failure to cure the alleged default within thirty days of the date of mailing of the notice, or if personally served, within thirty days of the date of personal service thereof, may lead to recordation, transmittal, and publication of a notice of sale, and that the property described in (a) of this subsection may be sold at public auction at a date no less than one hundred twenty days in the future;

      (h) A statement that the effect of the recordation, transmittal, and publication of a notice of sale will be to (i) increase the costs and fees and (ii) publicize the default and advertise the grantor's property for sale;

      (i) A statement that the effect of the sale of the grantor's property by the trustee will be to deprive the grantor of all their interest in the property described in (a) of this subsection;

      (j) A statement that the borrower, grantor, and any guarantor has recourse to the courts pursuant to RCW 61.24.130 to contest the alleged default on any proper ground;

      (k) In the event the property secured by the deed of trust is owner‑occupied residential real property, a statement, prominently set out at the beginning of the notice, which shall state as follows:

      "You should take care to protect your interest in your home.  This notice of default (your failure to pay) is the first step in a process that could result in you losing your home.  You should carefully review your options.  For example:

      Can you pay and stop the foreclosure process?

      Do you dispute the failure to pay?

      Can you sell your property to preserve your equity?

      Are you able to refinance this loan or obligation with a new loan or obligation from another lender with payments, terms, and fees that are more affordable?

      Do you qualify for any government or private homeowner assistance programs?

      Do you know if filing for bankruptcy is an option?  What are the pros and cons of doing so?

      Do not ignore this notice; because if you do nothing, you could lose your home at a foreclosure sale.  (No foreclosure sale can be held any sooner than ninety days after a notice of sale is issued and a notice of sale cannot be issued until thirty days after this notice.)  Also, if you do nothing to pay what you owe, be careful of people who claim they can help you.  There are many individuals and businesses that watch for the notices of sale in order to unfairly profit as a result of borrowers' distress.

      You may feel you need help understanding what to do.  There are a number of professional resources available, including home loan counselors and attorneys, who may assist you.  Many legal services are lower‑cost or even free, depending on your ability to pay.  If you desire legal help in understanding your options or handling this default, you may obtain a referral (at no charge) by contacting the county bar association in the county where your home is located.  These legal referral services also provide information about lower‑cost or free legal services for those who qualify.  You may contact the Department of Financial Institutions or the statewide civil legal aid hotline for possible assistance or referrals"; and

      (l) In the event the property secured by the deed of trust is residential real property, the name and address of the owner of any promissory notes or other obligations secured by the deed of trust and the name, address, and telephone number of a party acting as a servicer of the obligations secured by the deed of trust((.")); and
      (9) That, for owner-occupied residential real property, before the notice of the trustee's sale is recorded, transmitted, or served, the beneficiary has complied with RCW 61.24.031 and, if applicable, section 7 of this act.

Sec. 5. RCW 61.24.031 and 2009 c 292 s 2 are each amended to read as follows:

      (1)(a) A trustee, beneficiary, or authorized agent may not issue a notice of default under RCW 61.24.030(8) until:  (i) Thirty days after initial contact with the borrower ((is made)) was initiated as required under (b) of this subsection or thirty days after satisfying the due diligence requirements as described in subsection (5) of this section and the borrower has not responded; or (ii) if the borrower responds to the initial contact, ninety days after the initial contact with the borrower was initiated.

      (b) A beneficiary or authorized agent shall make initial contact with the borrower by letter to provide the borrower with information required under (c) of this subsection and by telephone ((in order to assess the borrower's financial ability to pay the debt secured by the deed of trust and explore options for the borrower to avoid foreclosure)) as required under subsection (5) of this section.  The letter required under this subsection must be mailed in accordance with subsection (5)(a) of this section and must include the information described in (c) of this subsection and subsection (5)(((a) and)) (e) (i) through (iv) of this section.

      (c) ((During the initial contact, the beneficiary or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the beneficiary or authorized agent shall schedule the meeting to occur within fourteen days of the request.  The)) The letter required under this subsection, developed by the department pursuant to section 16 of this act, at a minimum shall include:
      (i) A paragraph printed in no less than twelve point font and bolded that reads:
      "You must respond within thirty days of the date of this letter.  IF YOU DO NOT RESPOND within thirty days, a notice of default may be issued and you may lose your home in foreclosure.
      IF YOU DO RESPOND within thirty days of the date of this letter, you will have an additional sixty days to meet with your lender before a notice of default may be issued.
      You should contact a housing counselor or attorney as soon as possible.  Failure to contact a housing counselor or attorney may result in your losing certain opportunities, such as meeting with your lender or participating in mediation in front of a neutral third party.  A housing counselor or attorney can help you work with your lender to avoid foreclosure.";
      (ii) The toll-free telephone number from the United States department of housing and urban development to find a department-approved housing counseling agency, the toll-free numbers for the statewide foreclosure hotline recommended by the housing finance commission, and the statewide civil legal aid hotline for assistance and referrals to other housing counselors and attorneys;
      (iii) A paragraph stating that a housing counselor may be available at little or no cost to the borrower and that whether or not the borrower contacts a housing counselor or attorney, the borrower has the right to request a meeting with the beneficiary; and
      (iv) A paragraph explaining how the borrower may respond to the letter and stating that after responding the borrower will have an opportunity to meet with his or her beneficiary in an attempt to resolve and try to work out an alternative to the foreclosure and that, after ninety days from the date of the letter, a notice of default may be issued, which starts the foreclosure process.
      (d) If the beneficiary has exercised due diligence as required under subsection (5) of this section and the borrower does not respond by contacting the beneficiary within thirty days of the initial contact, the notice of default may be issued.  "Initial contact" with the borrower is considered made three days after the date the letter required in (b) of this subsection is sent.
      (e) If a meeting is requested by the borrower or the borrower's housing counselor or attorney, the beneficiary or authorized agent shall schedule the meeting to occur before the notice of default is issued.  An assessment of the borrower's financial ability to ((repay the debt)) modify or restructure the loan obligation and a discussion of options ((may)) must occur during the ((initial contact or at a subsequent)) meeting scheduled for that purpose.  ((At the initial contact, the borrower must be provided the toll-free telephone number made available by the department to find a department-certified housing counseling agency and the toll-free numbers for the department of financial institutions and the statewide civil legal aid hotline for possible assistance and referrals.
      (d) Any meeting under this section may occur telephonically.))

(f) The meeting scheduled to assess the borrower's financial ability to modify or restructure the loan obligation and discuss options to avoid foreclosure must be in person, unless the requirement to meet in person is waived in writing by the borrower or the borrower's representative.  A person who is authorized to modify the loan obligation or reach an alternative resolution to foreclosure on behalf of the beneficiary may participate by telephone or video conference, so long as a representative of the beneficiary is at the meeting in person.

      (2) A notice of default issued under RCW 61.24.030(8) must include a declaration, as provided in subsection (9) of this section, from the beneficiary or authorized agent that it has contacted the borrower as provided in subsection (1)(((b))) of this section, it has tried with due diligence to contact the borrower under subsection (5) of this section, or the borrower has surrendered the property to the trustee, beneficiary, or authorized agent.  Unless the trustee has violated his or her duty under RCW 61.24.010(4), the trustee is entitled to rely on the declaration as evidence that the requirements of this section have been satisfied, and the trustee is not liable for the beneficiary's or its authorized agent's failure to comply with the requirements of this section.

      (3) ((A beneficiary's or authorized agent's loss mitigation personnel may participate by telephone during any contact required under this section.
      (4) Within fourteen days)) If, after the initial contact under subsection (1) of this section, ((if)) a borrower has designated a ((department-certified)) housing counseling agency, housing counselor, or attorney((, or other advisor)) to discuss with the beneficiary or authorized agent, on the borrower's behalf, options for the borrower to avoid foreclosure, the borrower shall inform the beneficiary or authorized agent and provide the contact information to the beneficiary or authorized agent.  The beneficiary or authorized agent shall contact the designated representative for the borrower ((for the discussion within fourteen days after the representative is designated by the borrower)) to meet.

(4) The beneficiary or authorized agent and the borrower or the borrower's representative shall attempt to reach a resolution for the borrower within the ninety days from the time the initial contact is sent and the notice of default is issued.  A resolution may include, but is not limited to, a loan modification, an agreement to conduct a short sale, or a deed in lieu of foreclosure transaction, or some other workout plan.  Any ((deed of trust)) modification or workout plan offered at the meeting with the borrower's designated representative by the beneficiary or authorized agent is subject to approval by the borrower.

      (5) A notice of default may be issued under RCW 61.24.030(8) if a beneficiary or authorized agent has ((not contacted a)) initiated contact with the borrower as required under subsection (1)(b) of this section and the failure to ((contact)) meet with the borrower occurred despite the due diligence of the beneficiary or authorized agent.  Due diligence requires the following:

      (a) A beneficiary or authorized agent shall first attempt to contact a borrower by sending a first-class letter to the address in the beneficiary's records for sending account statements to the borrower and to the address of the property encumbered by the deed of trust.  The letter must ((include the toll-free telephone number made available by the department to find a department-certified housing counseling agency, and the following information:
      "You may contact the Department of Financial Institutions, the Washington State Bar Association, or the statewide civil legal aid hotline for possible assistance or referrals.")) be the letter described in subsection (1)(c) of this section.

      (b)(i) After the letter has been sent, the beneficiary or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days.  Telephone calls must be made to the primary and secondary telephone numbers on file with the beneficiary or authorized agent.

      (ii) A beneficiary or authorized agent may attempt to contact a borrower using an automated system to dial borrowers if the telephone call, when answered, is connected to a live representative of the beneficiary or authorized agent.

      (iii) A beneficiary or authorized agent satisfies the telephone contact requirements of this subsection (5)(b) if the beneficiary or authorized agent determines, after attempting contact under this subsection (5)(b), that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected or are not good contact numbers for the borrower.

      (c) If the borrower does not respond within fourteen days after the telephone call requirements of (b) of this subsection have been satisfied, the beneficiary or authorized agent shall send a certified letter, with return receipt requested, to the borrower at the address in the beneficiary's records for sending account statements to the borrower and to the address of the property encumbered by the deed of trust.  The letter must include the information described in (e)(i) through (iv) of this subsection.  The letter must also include a paragraph stating:  "Your failure to contact a housing counselor or attorney may result in your losing certain opportunities, such as meeting with your lender or participating in mediation in front of a neutral third party."

      (d) The beneficiary or authorized agent shall provide a means for the borrower to contact the beneficiary or authorized agent in a timely manner, including a toll-free telephone number or charge-free equivalent that will provide access to a live representative during business hours.

      (e) The beneficiary or authorized agent shall post a link on the home page of the beneficiary's or authorized agent's internet web site, if any, to the following information:

      (i) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options;

      (ii) A list of financial documents borrowers should collect and be prepared to present to the beneficiary or authorized agent when discussing options for avoiding foreclosure;

      (iii) A toll-free telephone number or charge-free equivalent for borrowers who wish to discuss options for avoiding foreclosure with their beneficiary or authorized agent; and

      (iv) The toll-free telephone number or charge-free equivalent made available by the department to find a department-((certified)) approved housing counseling agency.

      (6) Subsections (1) and (5) of this section do not apply if any of the following occurs:

      (a) The borrower has surrendered the property as evidenced by either a letter confirming the surrender or delivery of the keys to the property to the trustee, beneficiary, or authorized agent; or

      (b) The borrower has filed for bankruptcy, and the bankruptcy stay remains in place, or the borrower has filed for bankruptcy and the bankruptcy court has granted relief from the bankruptcy stay allowing enforcement of the deed of trust.

      (7)(a) This section applies only to deeds of trust ((made from January 1, 2003, to December 31, 2007, inclusive,)) that are recorded against owner-occupied residential real property.  This section does not apply to deeds of trust:  (i) Securing a commercial loan; (ii) securing obligations of a grantor who is not the borrower or a guarantor; or (iii) securing a purchaser's obligations under a seller-financed sale.

      (b) This section does not apply to association beneficiaries subject to chapter 64.32, 64.34, or 64.38 RCW.

      (8) As used in this section:

      (a) "Department" means the United States department of housing and urban development.

      (b) "Seller-financed sale" means a residential real property transaction where the seller finances all or part of the purchase price, and that financed amount is secured by a deed of trust against the subject residential real property.

      (9) The form of declaration to be provided by the beneficiary or authorized agent as required under subsection (2) of this section must be in substantially the following form:

"FORECLOSURE LOSS MITIGATION FORM

Please select applicable option(s) below.

      The undersigned beneficiary or authorized agent for the beneficiary hereby represents and declares under the penalty of perjury that [check the applicable box and fill in any blanks so that the trustee can insert, on the beneficiary's behalf, the applicable declaration in the notice of default required under chapter 61.24 RCW]:

      (1) [ ] The beneficiary or beneficiary's authorized agent has contacted the borrower under, and has complied with, RCW 61.24.031 (contact provision to "assess the borrower's financial ability to pay the debt secured by the deed of trust and explore options for the borrower to avoid foreclosure") and the borrower did not request a meeting.

      (2) [ ] The beneficiary or beneficiary's authorized agent has contacted the borrower as required under RCW 61.24.031 and the borrower or the borrower's designated representative requested a meeting.  A meeting was held in compliance with RCW 61.24.031.
      (3) [ ] The beneficiary or beneficiary's authorized agent has exercised due diligence to contact the borrower as required in RCW 61.24.031(5) ((and, after waiting fourteen days after the requirements in RCW 61.24.031 were satisfied, the beneficiary or the beneficiary's authorized agent sent to the borrower(s), by certified mail, return receipt requested, the letter required under RCW 61.24.031)).

      (((3))) (4) [ ] The borrower has surrendered the secured property as evidenced by either a letter confirming the surrender or by delivery of the keys to the secured property to the beneficiary, the beneficiary's authorized agent or to the trustee.

      (((4))) (5) [ ] Under RCW 61.24.031, the beneficiary or the beneficiary's authorized agent has verified information that, on or before the date of this declaration, the borrower(s) has filed for bankruptcy, and the bankruptcy stay remains in place, or the borrower has filed for bankruptcy and the bankruptcy court has granted relief from the bankruptcy stay allowing the enforcement of the deed of trust."

NEW SECTION.  Sec. 6. A new section is added to chapter 61.24 RCW to read as follows:

      (1)(a) A housing counselor who is contacted by a borrower under RCW 61.24.031 has a duty to act in good faith to attempt to reach a resolution with the beneficiary on behalf of the borrower within the ninety days provided from the date the beneficiary initiates contact with the borrower and the date the notice of default is issued.  A resolution may include, but is not limited to, modification of the loan, an agreement to conduct a short sale, a deed in lieu of foreclosure transaction, or some other workout plan.

      (b) Nothing in RCW 61.24.031 or this section precludes a meeting or negotiations between the housing counselor, borrower, and beneficiary at any time, including after the issuance of the notice of default.

      (c) A borrower who is contacted under RCW 61.24.031 may seek the assistance of a housing counselor or attorney at any time.

      (2) Housing counselors have a duty to act in good faith to assist borrowers by:

      (a) Preparing the borrower for meetings with the beneficiary;

      (b) Advising the borrower about what documents the borrower must have to seek a loan modification or other resolution;

      (c) Informing the borrower about the alternatives to foreclosure, including loan modifications or other possible resolutions; and

      (d) Providing other guidance, advice, and education as the housing counselor considers necessary.

      (3) A housing counselor or attorney assisting a borrower may refer the borrower to a mediation program, pursuant to section 7 of this act, if:

      (a) The housing counselor or attorney determines that mediation is appropriate based on the individual circumstances; and

      (b) A notice of sale on the deed of trust has not been recorded.

      (4) A referral to mediation by a housing counselor or attorney does not preclude a trustee issuing a notice of default if the requirements of RCW 61.24.031 have been met.

      (5) Housing counselors providing assistance to borrowers under RCW 61.24.031 are not liable for civil damages resulting from any acts or omissions in providing assistance, unless the acts or omissions constitute gross negligence or willful or wanton misconduct.

      (6) Housing counselors shall provide information to the department to assist the department in its annual report to the legislature as required under section 7(15) of this act.  The information provided to the department by the housing counselors should include outcomes of foreclosures and be similar to the information requested in the national foreclosure mortgage counseling client level foreclosure outcomes report form.

NEW SECTION.  Sec. 7. A new section is added to chapter 61.24 RCW to read as follows:

      (1) The foreclosure mediation program established in this section applies only to borrowers who have been referred to mediation by a housing counselor or attorney.  The mediation program under this section is not governed by chapter 7.07 RCW and does not preclude mediation required by a court or other provision of law.

      (2) A housing counselor or attorney referring a borrower to mediation shall send a notice to the borrower and the department, stating that mediation is appropriate.

      (3) Within ten days of receiving the notice, the department shall:

      (a) Send a notice to the beneficiary, the borrower, the housing counselor or attorney who referred the borrower, and the trustee stating that the parties have been referred to mediation.  The notice must include the statements and list of documents and information described in subsection (5)(b)(i) through (iv) of this section; and

      (b) Select a mediator and notify the parties of the selection.

      (4)(a) Within forty-five days of receiving the referral from the department, the mediator shall convene a mediation session in the county where the borrower resides, unless the parties agree on another location.  The parties may agree in writing to extend the time in which to schedule the mediation session.  If the parties agree to extend the time, the beneficiary shall notify the trustee of the extension and the date the mediator is expected to issue the mediator's certification.

      (b) Prior to scheduling a mediation session, the mediator shall require that both parties sign a waiver stating that neither party may call the mediator as a live witness in any litigation pertaining to a foreclosure action between the parties.  However, the mediator's certification may be deemed admissible evidence, subject to court rules, in any litigation pertaining to a foreclosure action between the parties.

      (5)(a) The mediator may schedule phone conferences, consultations with the parties individually, and other communications to ensure that the parties have all the necessary information to engage in a productive mediation.

      (b) The mediator must send written notice of the time, date, and location of the mediation session to the borrower, the beneficiary, and the department at least fifteen days prior to the mediation session.  At a minimum, the notice must contain:  

      (i) A statement that the borrower may be represented in the mediation session by an attorney or other advocate;

      (ii) A statement that a person with authority to agree to a resolution, including a proposed settlement, loan modification, or dismissal or continuation of the foreclosure proceeding, must be present either in person or on the telephone or video conference during the mediation session;

      (iii) A complete list of documents and information required by this section that the parties must provide to the mediator and the deadlines for providing the documents and information; and

      (iv) A statement that the parties have a duty to mediate in good faith and that failure to mediate in good faith may impair the beneficiary's ability to foreclose on the property or the borrower's ability to modify the loan or take advantage of other alternatives to foreclosure.

      (6) The borrower, the beneficiary or authorized agent, and the mediator must meet in person for the mediation session.  However, a person with authority to agree to a resolution on behalf of the beneficiary may be present over the telephone or video conference during the mediation session.

      (7) The participants in mediation must address the issues of foreclosure that may enable the borrower and the beneficiary to reach a resolution, including but not limited to reinstatement, modification of the loan, restructuring of the debt, or some other workout plan.  To assist the parties in addressing issues of foreclosure, the mediator must require the participants to consider the following:

      (a) The borrower's current and future economic circumstances, including the borrower's current and future income, debts, and obligations for the previous sixty days or greater time period as determined by the mediator;

      (b) The net present value of receiving payments pursuant to a modified mortgage loan as compared to the anticipated net recovery following foreclosure;

      (c) Any affordable loan modification calculation and net present value calculation when required under any federal mortgage relief program, including the home affordable modification program (HAMP) as applicable to government-sponsored enterprise and nongovernment-sponsored enterprise loans and any HAMP-related modification program applicable to loans insured by the federal housing administration, the veterans administration, and the rural housing service.  If such a calculation is not required, then the beneficiary must use the current calculations, assumptions, and forms that are established by the federal deposit insurance corporation and published in the federal deposit insurance corporation loan modification program guide; and

      (d) Any other loss mitigation guidelines to loans insured by the federal housing administration, the veterans administration, and the rural housing service, if applicable.

      (8) A violation of the duty to mediate in good faith as required under this section may include:

      (a) Failure to timely participate in mediation without good cause;

      (b) Failure of the beneficiary to provide the following documentation to the borrower and mediator at least ten days before the mediation or pursuant to the mediator's instructions:

      (i) An accurate statement containing the balance of the loan as of the first day of the month in which the mediation occurs;

      (ii) Copies of the note and deed of trust;

      (iii) Proof that the entity claiming to be the beneficiary is the owner of any promissory note or obligation secured by the deed of trust.  Sufficient proof may be a copy of the declaration described in RCW 61.24.030(7)(a);

      (iv) The best estimate of any arrearage and an itemized statement of the arrearages;

      (v) An itemized list of the best estimate of fees and charges outstanding;

      (vi) The payment history and schedule for the preceding twelve months, or since default, whichever is longer, including a breakdown of all fees and charges claimed;

      (vii) All borrower-related and mortgage-related input data used in any net present value analysis;

      (viii) An explanation regarding any denial for a loan modification, forbearance, or other alternative to foreclosure in sufficient detail for a reasonable person to understand why the decision was made;

      (ix) The most recently available appraisal or other broker price opinion most recently relied upon by the beneficiary; and

      (x) The portion or excerpt of the pooling and servicing agreement that prohibits the beneficiary from implementing a modification, if the beneficiary claims it cannot implement a modification due solely to limitations in a pooling and servicing agreement, and documentation or a statement detailing the efforts of the beneficiary to obtain a waiver of the pooling and servicing agreement provisions;

      (c) Failure of the borrower to provide documentation to the beneficiary and mediator, at least ten days before the mediation or pursuant to the mediator's instruction, showing the borrower's current and future income, debts and obligations, and tax returns for the past two years;

      (d) Failure of either party to pay the respective portion of the mediation fee in advance of the mediation as required under this section;

      (e) Failure of a party to designate representatives with adequate authority to fully settle, compromise, or otherwise reach resolution with the borrower in mediation; and

      (f) A request by a beneficiary that the borrower waive future claims he or she may have in connection with the deed of trust, as a condition of agreeing to a modification, except for rescission claims under the federal truth in lending act.  Nothing in this section precludes a beneficiary from requesting that a borrower dismiss with prejudice any pending claims against the beneficiary, its agents, loan servicer, or trustee, arising from the underlying deed of trust, as a condition of modification.

      (9) Within seven business days after the conclusion of the mediation session, the mediator must send a written certification to the department and the trustee and send copies to the parties of:

      (a) The date, time, and location of the mediation session;

      (b) The names of all persons attending in person and by telephone or video conference, at the mediation session;

      (c) Whether a resolution was reached by the parties, including whether the default was cured by reinstatement, modification, or restructuring of the debt, or some other alternative to foreclosure was agreed upon by the parties;

      (d) Whether the parties participated in the mediation in good faith; and

      (e) A description of the net present value test used, along with a copy of the inputs, including the result of the net present value test expressed in a dollar amount.

      (10) If the parties are unable to reach any agreement and the mediator certifies that the parties acted in good faith, the beneficiary may proceed with the foreclosure.

      (11)(a) The mediator's certification that the beneficiary failed to act in good faith in mediation constitutes a defense to the nonjudicial foreclosure action that was the basis for initiating the mediation.  In any action to enjoin the foreclosure, the beneficiary shall be entitled to rebut the allegation that it failed to act in good faith.

      (b) The mediator's certification that the beneficiary failed to act in good faith during mediation does not constitute a defense to a judicial foreclosure or a future nonjudicial foreclosure action if a modification of the loan is agreed upon and the borrower subsequently defaults.

      (c) If an agreement was not reached and the mediator's certification shows that the net present value of the modified loan exceeds the anticipated net recovery at foreclosure, that showing in the certification shall constitute a basis for the borrower to enjoin the foreclosure.

      (12) The mediator's certification that the borrower failed to act in good faith in mediation authorizes the beneficiary to proceed with the foreclosure.

      (13)(a) A trustee may not record the notice of sale until the trustee receives the mediator's certification stating that the mediation has been completed.

      (b) If the trustee does not receive the mediator's certification, the trustee may record the notice of sale after ten days from the date the certification to the trustee was due.  If the notice of sale is recorded under this subsection (13)(b) and the mediator subsequently issues a certification alleging the beneficiary violated the duty of good faith, the trustee may not proceed with the sale.

      (14) A mediator may charge reasonable fees as authorized by this subsection and by the department.  Unless the fee is waived or the parties agree otherwise, a foreclosure mediator's fee may not exceed four hundred dollars for a mediation session lasting between one hour and three hours.  For a mediation session exceeding three hours, the foreclosure mediator may charge a reasonable fee, as authorized by the department.  The mediator must provide an estimated fee before the mediation, and payment of the mediator's fee must be divided equally between the beneficiary and the borrower.  The beneficiary and the borrower must tender the loan mediator's fee seven calendar days before the commencement of the mediation or pursuant to the mediator's instructions.

      (15) Beginning December 1, 2012, and every year thereafter, the department shall report annually to the legislature on:

      (a) The performance of the program, including the numbers of borrowers who are referred to mediation by a housing counselor or attorney;

      (b) The results of the mediation program, including the number of mediations requested by housing counselors and attorneys, the number of certifications of good faith issued, the number of borrowers and beneficiaries who failed to mediate in good faith, and the reasons for the failure to mediate in good faith, if known, the numbers of loans restructured or modified, the change in the borrower's monthly payment for principal and interest and the number of principal write-downs and interest rate reductions, and, to the extent practical, the number of borrowers who report a default within a year of restructuring or modification;

      (c) The information received by housing counselors regarding outcomes of foreclosures; and

      (d) Any recommendations for changes to the statutes regarding the mediation program.

NEW SECTION.  Sec. 8. A new section is added to chapter 61.24 RCW to read as follows:

      (1) Section 7 of this act applies only to deeds of trust that are recorded against owner-occupied residential real property.  The property must have been owner-occupied as of the date of the initial contact under RCW 61.24.031 was made.

      (2) A borrower under a deed of trust on owner-occupied residential real property who has received a notice of default on or before the effective date this section may be referred to mediation under section 7 of this act by a housing counselor or attorney.

      (3) Section 7 of this act does not apply to deeds of trust:

      (a) Securing a commercial loan;

      (b) Securing obligations of a grantor who is not the borrower or a guarantor; or

      (c) Securing a purchaser's obligations under a seller-financed sale.

      (4) Section 7 of this act does not apply to association beneficiaries subject to chapter 64.32, 64.34, or 64.38 RCW.

NEW SECTION.  Sec. 9. A new section is added to chapter 61.24 RCW to read as follows:

      The provisions of section 7 of this act do not apply to any federally insured depository institution, as defined in 12 U.S.C. Sec. 461(b)(1)(A), that certifies to the department under penalty of perjury that it was not a beneficiary of deeds of trust in more than two hundred fifty trustee sales of owner-occupied residential real property that occurred in this state during the preceding calendar year.  A federally insured depository institution certifying that section 7 of this act does not apply must do so annually, beginning no later than thirty days after the effective date of this section, and no later than January 31st of each year thereafter.

NEW SECTION.  Sec. 10. A new section is added to chapter 61.24 RCW to read as follows:

      (1) For the purposes of section 7 of this act, the department must maintain a list of approved foreclosure mediators.  The department may approve the following persons to serve as foreclosure mediators under this section:

      (a) Attorneys who are active members of the Washington state bar association;

      (b) Employees of United States department of housing and urban development-approved housing counseling agencies or approved by the Washington state housing finance commission;

      (c) Employees or volunteers of dispute resolution centers under chapter 7.75 RCW; and

      (d) Retired judges of Washington courts.

      (2) The department may establish a required training program for foreclosure mediators and may require mediators to acquire training before being approved.  The mediators must be familiar with relevant aspects of the law, have knowledge of community-based resources and mortgage assistance programs, and refer borrowers to these programs where appropriate.

      (3) The department may remove any mediator from the approved list of mediators.

NEW SECTION.  Sec. 11. A new section is added to chapter 61.24 RCW to read as follows:

      The foreclosure fairness account is created in the custody of the state treasurer.  All receipts received under section 12 of this act must be deposited into the account.  Only the director of the department of commerce or the director's designee may authorize expenditures from the account.  The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.  Expenditures from the account must be used as follows:  (1) No less than eighty percent must be used for the purposes of providing housing counselors for borrowers, except that this amount may be less than eighty percent only if necessary to meet the funding level specified for the office of the attorney general under subsection (2) of this section and the department under subsection (4) of this section; (2) up to six percent, or six hundred fifty-five thousand dollars per biennium, whichever amount is greater, to the office of the attorney general to be used by the consumer protection division to enforce this chapter; (3) up to two percent to the office of civil legal aid to be used for the purpose of contracting with qualified legal aid programs for legal representation of homeowners in matters relating to foreclosure.  Funds provided under this subsection (3) must be used to supplement, not supplant, other federal, state, and local funds; (4) up to nine percent, or four hundred fifty-one thousand dollars per biennium, whichever amount is greater, to the department to be used for implementation and operation of the foreclosure fairness act; and (5) up to three percent to the department of financial institutions to conduct homeowner prepurchase and postpurchase outreach and education programs as defined in RCW 43.320.150.

      The department shall enter into interagency agreements to contract with the Washington state housing finance commission and other appropriate entities to implement the foreclosure fairness act.

NEW SECTION.  Sec. 12. A new section is added to chapter 61.24 RCW to read as follows:

      (1) Except as provided in subsection (4) of this section, beginning October 1, 2011, and every quarter thereafter, every beneficiary issuing notices of default, or directing that a trustee or authorized agent issue the notice of default, on owner-occupied residential real property under this chapter must:

      (a) Report to the department the number of owner-occupied residential real properties for which the beneficiary has issued a notice of default during the previous quarter; and

      (b) Remit the amount required under subsection (2) of this section.

      (2) For each owner-occupied residential real property for which a notice of default has been issued, the beneficiary issuing the notice of default, or directing that a trustee or authorized agent issue the notice of default, shall remit two hundred fifty dollars to the department to be deposited, as provided under section 11 of this act, into the foreclosure fairness account.  The two hundred fifty dollar payment is required per property and not per notice of default.  The beneficiary shall remit the total amount required in a lump sum each quarter.

      (3) No later than thirty days after the effective date of this section, the beneficiaries required to report and remit to the department under this section shall determine the number of owner-occupied residential real properties for which notices of default were issued during the three months prior to the effective date of this section.  The beneficiary shall remit to the department a one-time sum of two hundred fifty dollars multiplied by the number of properties.  The department shall deposit the funds into the foreclosure fairness account as provided under section 11 of this act.

      (4) This section does not apply to any beneficiary or loan servicer that is a federally insured depository institution, as defined in 12 U.S.C. Sec. 461(b)(1)(A), and that certifies under penalty of perjury that it has issued, or has directed a trustee or authorized agent to issue, fewer than two hundred fifty notices of default in the preceding year.

      (5) This section does not apply to association beneficiaries subject to chapter 64.32, 64.34, or 64.38 RCW.

NEW SECTION.  Sec. 13. A new section is added to chapter 61.24 RCW to read as follows:

      Any duty that servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a deed of trust pool, not to any particular parties, and a servicer acts in the best interests of all parties if it agrees to or implements a modification or workout plan when both of the following apply:

      (1) The deed of trust is in payment default, or payment default is reasonably imminent; and

      (2) Anticipated recovery under a modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.

Sec. 14. RCW 61.24.135 and 2008 c 153 s 6 are each amended to read as follows:

(1) It is an unfair or deceptive act or practice under the consumer protection act, chapter 19.86 RCW, for any person, acting alone or in concert with others, to offer, or offer to accept or accept from another, any consideration of any type not to bid, or to reduce a bid, at a sale of property conducted pursuant to a power of sale in a deed of trust.  The trustee may decline to complete a sale or deliver the trustee's deed and refund the purchase price, if it appears that the bidding has been collusive or defective, or that the sale might have been void.  However, it is not an unfair or deceptive act or practice for any person, including a trustee, to state that a property subject to a recorded notice of trustee's sale or subject to a sale conducted pursuant to this chapter is being sold in an "as-is" condition, or for the beneficiary to arrange to provide financing for a particular bidder or to reach any good faith agreement with the borrower, grantor, any guarantor, or any junior lienholder.

(2) It is an unfair or deceptive act in trade or commerce and an unfair method of competition in violation of the consumer protection act, chapter 19.86 RCW, for any person or entity to:  (a) Violate the duty of good faith under section 7 of this act; (b) fail to comply with the requirements of section 12 of this act; or (c) fail to initiate contact with a borrower and exercise due diligence as required under RCW 61.24.031.

Sec. 15. RCW 82.45.030 and 1993 sp.s. c 25 s 503 are each amended to read as follows:

      (1) As used in this chapter, the term "selling price" means the true and fair value of the property conveyed.  If property has been conveyed in an arm's length transaction between unrelated persons for a valuable consideration, a rebuttable presumption exists that the selling price is equal to the total consideration paid or contracted to be paid to the transferor, or to another for the transferor's benefit.

      (2) If the sale is a transfer of a controlling interest in an entity with an interest in real property located in this state, the selling price shall be the true and fair value of the real property owned by the entity and located in this state.  If the true and fair value of the real property located in this state cannot reasonably be determined, the selling price shall be determined according to subsection (4) of this section.

      (3) As used in this section, "total consideration paid or contracted to be paid" includes money or anything of value, paid or delivered or contracted to be paid or delivered in return for the sale, and shall include the amount of any lien, mortgage, contract indebtedness, or other incumbrance, either given to secure the purchase price, or any part thereof, or remaining unpaid on such property at the time of sale.

      Total consideration shall not include the amount of any outstanding lien or incumbrance in favor of the United States, the state, or a municipal corporation for taxes, special benefits, or improvements.

When a transfer or conveyance is made by deed in lieu of foreclosure to satisfy a deed of trust, total consideration shall not include the amount of any relocation assistance provided to the transferor.

      (4) If the total consideration for the sale cannot be ascertained or the true and fair value of the property to be valued at the time of the sale cannot reasonably be determined, the market value assessment for the property maintained on the county property tax rolls at the time of the sale shall be used as the selling price.

NEW SECTION.  Sec. 16. A new section is added to chapter 61.24 RCW to read as follows:

      (1)(a) The department must develop model language for the initial contact letter to be used by beneficiaries as required under RCW 61.24.031.  The model language must explain how the borrower may respond to the letter.  The department must develop the model language in both English and Spanish and both versions must be contained in the same letter.

      (b) No later than thirty days after the effective date of this section, the department must create the following forms:

      (i) The notice form to be used by housing counselors and attorneys to refer borrowers to mediation under section 7 of this act;

      (ii) The notice form stating that the parties have been referred to mediation along with the required information under section 7(3)(a) of this act;

      (iii) The waiver form as required in section 7(4)(b) of this act;

      (iv) The scheduling form notice in section 7(5)(b) of this act; and

      (v) The form for the mediator's written certification of mediation.

      (2) The department may create rules to implement the mediation program under section 7 of this act and to administer the funds as required under section 11 of this act.

NEW SECTION.  Sec. 17. 2009 c 292 s 13 (uncodified) is repealed.

NEW SECTION.  Sec. 18. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 19. Sections 11, 12, and 16 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately."

      Senator Kline spoke in favor of adoption of the committee striking amendment.

The President declared the question before the Senate to be the adoption of the committee striking amendment by the Committee on Financial Institutions, Housing & Insurance to Second Substitute House Bill No. 1362.

The motion by Senator Kline carried and the committee striking amendment was adopted by voice vote.

MOTION

There being no objection, the following title amendment was adopted:

      On page 1, line 2 of the title, after "foreclosures;" strike the remainder of the title and insert "amending RCW 61.24.030, 61.24.031, 61.24.135, and 82.45.030; reenacting and amending RCW 61.24.005; adding new sections to chapter 61.24 RCW; creating new sections; repealing 2009 c 292 s 13 (uncodified); and declaring an emergency."

MOTION

On motion of Senator Kline, the rules were suspended, Second Substitute House Bill No. 1362 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senator Kline spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of Second Substitute House Bill No. 1362 as amended by the Senate.

ROLL CALL

      The Secretary called the roll on the final passage of Second Substitute House Bill No. 1362 as amended by the Senate and the bill passed the Senate by the following vote:  Yeas, 36; Nays, 11; Absent, 2; Excused, 0.

      Voting yea: Senators Becker, Brown, Carrell, Chase, Conway, Eide, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Murray, Nelson, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Shin, Swecker, Tom and White

      Voting nay: Senators Baumgartner, Baxter, Benton, Delvin, Ericksen, Holmquist Newbry, Honeyford, Morton, Parlette, Schoesler and Stevens

      Absent: Senators Sheldon and Zarelli

SECOND SUBSTITUTE HOUSE BILL NO. 1362 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

MOTION

On motion of Senator White, Senator Sheldon was excused.

MOTION

On motion of Senator Ericksen, Senator Zarelli was excused.

SECOND READING

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1716, by House Committee on Public Safety & Emergency Preparedness (originally sponsored by Representatives Asay, Hurst, Klippert, Pearson and Miloscia)

Regulating secondhand dealers who deal with precious metal property.

The measure was read the second time.

MOTION

Senator Kohl-Welles moved that the following committee striking amendment by the Committee on Labor, Commerce & Consumer Protection be adopted:

0)Strike everything after the enacting clause and insert the following:

"NEW SECTION.  Sec. 1. The legislature finds:

      (1) The market price of gold has increased significantly in recent years and there has been a proliferation of secondhand dealers, including temporary, transient secondhand businesses, engaging in "cash for gold" type precious metal transactions.  Frequently, these "cash for gold" type operations are operated by persons desiring to exploit unsuspecting consumers based on current market conditions;

      (2) The increasing number of "cash for gold" type transactions in communities and neighborhoods throughout Washington has been linked to increased crimes involving the theft of gold and other precious metal objects, including home burglaries, robberies, and other crimes, resulting in depressed home values and other threats to the health, safety, and welfare of Washington state residents; and

      (3) With the growing number of precious metal transactions, there is a corresponding significant increase in the number of "cash for gold" type storefront businesses, including temporary, transient secondhand businesses, in Washington state which may not be consistent with the quality of life and personal security sought by communities and neighborhoods and the state as a whole.

      Therefore, to better protect legitimate owners, consumers, and secondhand dealers, the legislature intends to establish and implement stricter standards relating to transactions involving property consisting of gold and other precious metals.

Sec. 2. RCW 19.60.010 and 1995 c 133 s 1 are each amended to read as follows:

      Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

      (1) "Melted metals" means metals derived from metal junk or precious metals that have been reduced to a melted state from other than ore or ingots which are produced from ore that has not previously been processed.

      (2) "Metal junk" means any metal that has previously been milled, shaped, stamped, or forged and that is no longer useful in its original form, except precious metals.

      (3) "Nonmetal junk" means any nonmetal, commonly discarded item that is worn out, or has outlasted its usefulness as intended in its original form except nonmetal junk does not include an item made in a former period which has enhanced value because of its age.

      (4) "Pawnbroker" means every person engaged, in whole or in part, in the business of loaning money on the security of pledges of personal property, or deposits or conditional sales of personal property, or the purchase or sale of personal property.

      (5) "Precious metals" means gold, silver, and platinum.

      (6) "Secondhand dealer" means every person engaged in whole or in part in the business of purchasing, selling, trading, consignment selling, or otherwise transferring for value, secondhand property including metal junk, melted metals, precious metals, whether or not the person maintains a fixed place of business within the state.  Secondhand dealer also includes persons or entities conducting business, more than three times per year, at flea markets or swap meets((, more than three times per year)).

      (7) "Secondhand precious metal dealer" means any person or entity engaged in whole or in part in the commercial activity or business of purchasing, selling, trading, consignment selling, or otherwise transferring for value, more than three times per year, secondhand property that is a precious metal, whether or not the person or entity maintains a permanent or fixed place of business within the state, or engages in the business at flea markets or swap meets.  The terms "precious metal" and "secondhand property," for purposes of transactions by a secondhand precious metal dealer, do not include:  (a) Gold, silver, or platinum coins, or other precious metal coins, that are legal tender, or precious metal coins that have numismatic or precious metal value, (b) gold, silver, platinum, or other precious metal bullion, or (c) gold, silver, platinum, or other precious metal dust, flakes, or nuggets.
      (8) "Secondhand property" means any item of personal property offered for sale which is not new, including metals in any form, except postage stamps, coins that are legal tender, bullion in the form of fabricated hallmarked bars, used books, and clothing of a resale value of seventy-five dollars or less, except furs.

      (((8))) (9) "Transaction" means a pledge, or the purchase of, or consignment of, or the trade of any item of personal property by a pawnbroker or a secondhand dealer from a member of the general public.

      (((9))) (10) "Loan period" means the period of time from the date the loan is made until the date the loan is paid off, the loan is in default, or the loan is refinanced and new loan documents are issued, including all grace or extension periods.

NEW SECTION.  Sec. 3. (1) For any transaction involving property consisting of a precious metal bought or received from an individual, every secondhand precious metal dealer doing business in this state shall maintain wherever that business is conducted a record in which shall be legibly written in the English language, at the time of each transaction, the following information:

      (a) The signature of the person with whom the transaction is made;

      (b) The time and date of the transaction;

      (c) The name of the person or employee or the identification number of the person or employee conducting the transaction;

      (d) The name, date of birth, sex, height, weight, race, and residential address and telephone number of the person with whom the transaction is made;

      (e) A complete description of the precious metal property pledged, bought, or consigned, including the brand name, serial number, model number or name, any initials or engraving, size, pattern, and color of stone or stones;

      (f) The price paid;

      (g) The type and identifying number of identification used by the person with whom the transaction was made, which shall consist of a valid driver's license or identification card issued by any state or two pieces of identification issued by a governmental agency, one of which shall be descriptive of the person identified, and a full copy of both sides of each piece of identification used by the person with whom the transaction was made.  At all times, one piece of current government issued picture identification will be required; and

      (h) The nature of the transaction, a number identifying the transaction, the store identification as designated by the applicable law enforcement agency, or the name and address of the business or location, including the street address, and room number if appropriate, and the name of the person or employee conducting the transaction, and the location of the property.

      (2) The records required in subsection (1) of this section shall at all times during the ordinary hours of business, or at reasonable times if ordinary hours of business are not kept, be open to the inspection by any commissioned law enforcement officer of the state or any of its political subdivisions, and shall be maintained wherever that business is conducted for three years following the date of the transaction.

NEW SECTION.  Sec. 4. (1) Property consisting of a precious metal bought or received from an individual on consignment by any secondhand precious metal dealer with a permanent place of business in the state may not be removed from that place of business except consigned property returned to the owner, for a total of thirty days after the receipt of the property.  Property shall at all times during the ordinary hours of business be open to inspection to any commissioned law enforcement officer of the state or any of its political subdivisions.

      (2) Property consisting of a precious metal bought or received from an individual on consignment by any secondhand precious metal dealer without a permanent place of business in the state must be stored and held within the city or county in which the property was received, except consigned property returned to the owner, for a total of thirty days after receipt of the property.  The property shall be available within the appropriate jurisdiction for inspection at reasonable times by any commissioned law enforcement officer of the state or any of its political subdivisions.

      (3) Subsections (1) and (2) of this section do not apply when the property consisting of a precious metal was bought or received from a pawn shop, jeweler, secondhand dealer, or secondhand precious metal dealer who must provide a signed declaration showing the property is not stolen.  The declaration may be included as part of the transactional record required under this subsection, or on a receipt for the transaction.  The declaration must state substantially the following:  "I, the undersigned, affirm under penalty of law that the property that is subject to this transaction is not to the best of my knowledge stolen property."

NEW SECTION.  Sec. 5. If the applicable chief of police or the county's chief law enforcement officer has compiled and published a list of persons who have been convicted of any crime involving theft, then a secondhand precious metal dealer shall utilize such a list for any transaction involving property other than property consisting of a precious metal as required by the applicable chief of police or the county's chief law enforcement officer.

NEW SECTION.  Sec. 6. No secondhand precious metal dealer doing business in this state may operate a business without first obtaining a business license from the local government in which the business is situated.

NEW SECTION.  Sec. 7. (1) It is a gross misdemeanor for:

      (a) A secondhand precious metal dealer to knowingly make, cause, or allow to be made any false entry or misstatement of any material matter in any book, record, or writing required to be kept under sections 3 through 6 and 9 of this act involving property consisting of precious metal;

      (b) A secondhand precious metal dealer to receive any precious metal property from any person known to the secondhand precious metal dealer as having been convicted of burglary, robbery, theft, or possession of or receiving stolen property within the past ten years whether the person is acting in his or her own behalf or as the agent of another; or

      (c) A secondhand precious metal dealer to knowingly violate any other provision relating to precious metals under sections 3 through 6 and 9 of this act.

      (2) It is a class C felony for a secondhand precious metal dealer to commit a second or subsequent violation of subsection (1) of this section involving property consisting of a precious metal.

Sec. 8. RCW 19.60.085 and 2000 c 171 s 56 are each amended to read as follows:

      The provisions of this chapter do not apply to transactions conducted by the following:

      (1) Motor vehicle dealers licensed under chapter 46.70 RCW;

      (2) Vehicle wreckers ((or)), hulk haulers, and scrap processors licensed under chapter 46.79 or 46.80 RCW;

      (3) Persons giving an allowance for the trade-in or exchange of secondhand property on the purchase of other merchandise of the same kind of greater value; and

      (4) Persons in the business of buying or selling empty food and beverage containers or metal or nonmetal junk, in compliance with chapter 19.290 RCW.

NEW SECTION.  Sec. 9.  (1) For purposes of this section, "hosted home party" means a gathering of persons at a private residence where a host or hostess has invited friends or other guests into his or her residence where individual person-to-person sales of precious metals occur.

      (2) A host or hostess must be the owner, renter, or lessee of the private residence where the hosted home party takes place.

      (3) A secondhand precious metal dealer who attends a hosted home party and purchases or sells precious metals from the invited guests must issue a receipt for each item sold or purchased at the hosted home party.

      (4) The secondhand precious metal dealer must include on every receipt the following:  (a) The name, residential address, telephone number, and driver's license number of the person hosting the home party; (b) The name, residential address, telephone number, and driver's license number of the person selling the item; (c) the name, residential address, telephone number, and driver's license number of the person purchasing the item; (d) a complete description of the item being sold, including the brand name, serial number, model number or name, any initials or engraving, size, pattern, and color of stone or stones; (e) time and date of the transaction; and (f) the amount and form of any consideration paid for the item.

      (5) The secondhand precious metal dealer must make four copies of each transaction receipt:  One for the seller, one for the host or hostess, one for the purchaser, and one for local authorities, if they should ask.  The secondhand precious metal dealer and the host shall maintain copies of all transaction receipts and records for three years following the date of the precious metal transaction.

      (6) A secondhand precious metal dealer of a hosted home party who purchases precious metals at a hosted home party and complies with this section is otherwise exempt from sections 3, 4, and 5 of this act.

NEW SECTION.  Sec. 10. Sections 3 through 7 and 9 of this act are each added to chapter 19.60 RCW."

      Senator Kohl-Welles spoke in favor of adoption of the committee striking amendment.

The President declared the question before the Senate to be the adoption of the committee striking amendment by the Committee on Labor, Commerce & Consumer Protection to Engrossed Substitute House Bill No. 1716.

The motion by Senator Kohl-Welles carried and the committee striking amendment was adopted by voice vote.

MOTION

There being no objection, the following title amendment was adopted:

      On page 1, line 1 of the title, after "dealers;" strike the remainder of the title and insert "amending RCW 19.60.010 and 19.60.085; adding new sections to chapter 19.60 RCW; creating a new section; and prescribing penalties."

MOTION

On motion of Senator Kohl-Welles, the rules were suspended, Engrossed Substitute House Bill No. 1716 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senators Kohl-Welles, Holmquist Newbry and Eide spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of Engrossed Substitute House Bill No. 1716 as amended by the Senate.

ROLL CALL

      The Secretary called the roll on the final passage of Engrossed Substitute House Bill No. 1716 as amended by the Senate and the bill passed the Senate by the following vote:  Yeas, 45; Nays, 2; Absent, 0; Excused, 2.

      Voting yea: Senators Baxter, Becker, Benton, Brown, Carrell, Chase, Conway, Delvin, Eide, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Holmquist Newbry, Honeyford, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Morton, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Shin, Stevens, Swecker, Tom and White

      Voting nay: Senators Baumgartner and Ericksen

      Excused: Senators Sheldon and Zarelli

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1716 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

SECOND READING

HOUSE BILL NO. 1016, by Representatives Blake, Condotta, Armstrong, Shea, Kretz, Klippert, McCune, Takko, Van De Wege, Dunshee, Probst, Liias, Miloscia, Finn, Hurst, Springer, Goodman, Rodne, Orcutt, Haigh, Dickerson, Taylor, Warnick, Hope, Dammeier, Kristiansen, Chandler, Ross, Sells and Upthegrove

Changing restrictions on firearm noise suppressors.

The measure was read the second time.

MOTION

On motion of Senator Kline, the rules were suspended, House Bill No. 1016 was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senators Kline and Pflug spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of House Bill No. 1016.

ROLL CALL

      The Secretary called the roll on the final passage of House Bill No. 1016 and the bill passed the Senate by the following vote:  Yeas, 47; Nays, 0; Absent, 0; Excused, 2.

      Voting yea: Senators Baumgartner, Baxter, Becker, Benton, Brown, Carrell, Chase, Conway, Delvin, Eide, Ericksen, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Holmquist Newbry, Honeyford, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Morton, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Shin, Stevens, Swecker, Tom and White

      Excused: Senators Sheldon and Zarelli

HOUSE BILL NO. 1016, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

SECOND READING

HOUSE BILL NO. 1412, by Representatives Santos, Dammeier, Probst, Liias, Kelley, Kenney and Van De Wege

Regarding mathematics end-of-course assessments.

The measure was read the second time.

MOTION

On motion of Senator McAuliffe, the rules were suspended, House Bill No. 1412 was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senators McAuliffe and Litzow spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of House Bill No. 1412.

ROLL CALL

      The Secretary called the roll on the final passage of House Bill No. 1412 and the bill passed the Senate by the following vote:  Yeas, 47; Nays, 0; Absent, 0; Excused, 2.

      Voting yea: Senators Baumgartner, Baxter, Becker, Benton, Brown, Carrell, Chase, Conway, Delvin, Eide, Ericksen, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Holmquist Newbry, Honeyford, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Morton, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Shin, Stevens, Swecker, Tom and White

      Excused: Senators Sheldon and Zarelli

HOUSE BILL NO. 1412, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

SECOND READING

HOUSE BILL NO. 1229, by Representatives Moscoso, Armstrong and Kenney

Concerning the certification of commercial driver's license holders and applicants.

The measure was read the second time.

MOTION

Senator Haugen moved that the following committee striking amendment by the Committee on Transportation be adopted:

0)Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 46.25.010 and 2009 c 181 s 2 are each amended to read as follows:

      The definitions set forth in this section apply throughout this chapter.

      (1) "Alcohol" means any substance containing any form of alcohol, including but not limited to ethanol, methanol, propanol, and isopropanol.

      (2) "Alcohol concentration" means:

      (a) The number of grams of alcohol per one hundred milliliters of blood; or

      (b) The number of grams of alcohol per two hundred ten liters of breath.

      (3) "Commercial driver's license" (CDL) means a license issued to an individual under chapter 46.20 RCW that has been endorsed in accordance with the requirements of this chapter to authorize the individual to drive a class of commercial motor vehicle.

      (4) The "commercial driver's license information system" (CDLIS) is the information system established pursuant to ((the CMVSA)) 49 U.S.C. Sec. 31309 to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.

      (5) "Commercial driver's instruction permit" means a permit issued under RCW 46.25.060(5).

      (6) "Commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

      (a) Has a gross vehicle weight rating of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds or more); or

      (b) Has a gross vehicle weight rating of 11,794 kilograms or more (26,001 pounds or more); or

      (c) Is designed to transport sixteen or more passengers, including the driver; or

      (d) Is of any size and is used in the transportation of hazardous materials as defined in this section; or

      (e) Is a school bus regardless of weight or size.

      (7) "Conviction" means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, entry into a deferred prosecution program under chapter 10.05 RCW, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.

      (8) "Disqualification" means a prohibition against driving a commercial motor vehicle.

      (9) "Drive" means to drive, operate, or be in physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic.  For purposes of RCW 46.25.100, 46.25.110, and 46.25.120, "drive" includes operation or physical control of a motor vehicle anywhere in the state.

      (10) "Drugs" are those substances as defined by RCW 69.04.009, including, but not limited to, those substances defined by 49 C.F.R. Sec. 40.3.

      (11) "Employer" means any person, including the United States, a state, or a political subdivision of a state, who owns or leases a commercial motor vehicle, or assigns a person to drive a commercial motor vehicle.

      (12) "Gross vehicle weight rating" (GVWR) means the value specified by the manufacturer as the maximum loaded weight of a single vehicle.  The GVWR of a combination or articulated vehicle, commonly referred to as the "gross combined weight rating" or GCWR, is the GVWR of the power unit plus the GVWR of the towed unit or units.  If the GVWR of any unit cannot be determined, the actual gross weight will be used.  If a vehicle with a GVWR of less than 11,794 kilograms (26,001 pounds or less) has been structurally modified to carry a heavier load, then the actual gross weight capacity of the modified vehicle, as determined by RCW 46.44.041 and 46.44.042, will be used as the GVWR.

      (13) "Hazardous materials" means any material that has been designated as hazardous under 49 U.S.C. Sec. 5103 and is required to be placarded under subpart F of 49 C.F.R. Part 172 or any quantity of a material listed as a select agent or toxin in 42 C.F.R. Part 73.

      (14) "Motor vehicle" means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power used on highways, or any other vehicle required to be registered under the laws of this state, but does not include a vehicle, machine, tractor, trailer, or semitrailer operated exclusively on a rail.

      (15) "Out-of-service order" means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation is out‑of‑service pursuant to 49 C.F.R. Secs. 386.72, 392.5, 395.13, 396.9, or compatible laws, or the North American uniform out‑of‑service criteria.

      (16) "Positive alcohol confirmation test" means an alcohol confirmation test that:

      (a) Has been conducted by a breath alcohol technician under 49 C.F.R. Part 40; and

      (b) Indicates an alcohol concentration of 0.04 or more.

      A report that a person has refused an alcohol test, under circumstances that constitute the refusal of an alcohol test under 49 C.F.R. Part 40, will be considered equivalent to a report of a positive alcohol confirmation test for the purposes of this chapter.

      (17) "School bus" means a commercial motor vehicle used to transport preprimary, primary, or secondary school students from home to school, from school to home, or to and from school-sponsored events.  School bus does not include a bus used as a common carrier.

      (18) "Serious traffic violation" means:

      (a) Excessive speeding, defined as fifteen miles per hour or more in excess of the posted limit;

      (b) Reckless driving, as defined under state or local law;

      (c) A violation of a state or local law relating to motor vehicle traffic control, other than a parking violation, arising in connection with an accident or collision resulting in death to any person;

      (d) Driving a commercial motor vehicle without obtaining a commercial driver's license;

      (e) Driving a commercial motor vehicle without a commercial driver's license in the driver's possession; however, any individual who provides proof to the court by the date the individual must appear in court or pay any fine for such a violation, that the individual held a valid CDL on the date the citation was issued, is not guilty of a "serious traffic offense";

      (f) Driving a commercial motor vehicle without the proper class of commercial driver's license endorsement or endorsements for the specific vehicle group being operated or for the passenger or type of cargo being transported; and

      (g) Any other violation of a state or local law relating to motor vehicle traffic control, other than a parking violation, that the department determines by rule to be serious.

      (19) "State" means a state of the United States and the District of Columbia.

      (20) "Substance abuse professional" means an alcohol and drug specialist meeting the credentials, knowledge, training, and continuing education requirements of 49 C.F.R. Sec. 40.281.

      (21) "Tank vehicle" means a vehicle that is designed to transport a liquid or gaseous material within a tank that is either permanently or temporarily attached to the vehicle or the chassis.  Tank vehicles include, but are not limited to cargo tanks and portable tanks.  However, this definition does not include portable tanks having a rated capacity under one thousand gallons.

      (22) "Type of driving" means one of the following:
(a) "Nonexcepted interstate," which means the CDL holder or applicant operates or expects to operate in interstate commerce, is both subject to and meets the qualification requirements under 49 C.F.R. Part 391 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, and is required to obtain a medical examiner's certificate under 49 C.F.R. Sec. 391.45 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section;
      (b) "Excepted interstate," which means the CDL holder or applicant operates or expects to operate in interstate commerce, but engages exclusively in transportation or operations excepted under 49 C.F.R. Secs. 390.3(f), 391.2, 391.68, or 398.3, as they existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, from all or parts of the qualification requirements of 49 C.F.R. Part 391 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section, and is therefore not required to obtain a medical examiner's certificate under 49 C.F.R. Sec. 391.45 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section;
(c) "Nonexcepted intrastate," which means the CDL holder or applicant operates only in intrastate commerce and is therefore subject to state driver qualification requirements; or
      (d) "Excepted intrastate," which means the CDL holder or applicant operates in intrastate commerce, but engages exclusively in transportation or operations excepted from all or parts of the state driver qualification requirements.
(23) "United States" means the fifty states and the District of Columbia.

      (((23))) (24) "Verified positive drug test" means a drug test result or validity testing result from a laboratory certified under the authority of the federal department of health and human services that:

      (a) Indicates a drug concentration at or above the cutoff concentration established under 49 C.F.R. Sec. 40.87; and

      (b) Has undergone review and final determination by a medical review officer.

      A report that a person has refused a drug test, under circumstances that constitute the refusal of a federal department of transportation drug test under 49 C.F.R. Part 40, will be considered equivalent to a report of a verified positive drug test for the purposes of this chapter.

Sec. 2. RCW 46.25.080 and 2004 c 249 s 8 and 2004 c 187 s 5 are each reenacted and amended to read as follows:

      (1) The commercial driver's license must be marked "commercial driver's license" or "CDL," and must be, to the maximum extent practicable, tamperproof.  It must include, but not be limited to, the following information:

      (a) The name and residence address of the person;

      (b) The person's color photograph;

      (c) A physical description of the person including sex, height, weight, and eye color;

      (d) Date of birth;

      (e) The person's social security number or any number or identifier deemed appropriate by the department;

      (f) The person's signature;

      (g) The class or type of commercial motor vehicle or vehicles that the person is authorized to drive, together with any endorsements or restrictions;

      (h) The name of the state; and

      (i) The dates between which the license is valid.

      (2) Commercial driver's licenses may be issued with the classifications, endorsements, and restrictions set forth in this subsection.  The holder of a valid commercial driver's license may drive all vehicles in the class for which that license is issued and all lesser classes of vehicles except motorcycles and vehicles that require an endorsement, unless the proper endorsement appears on the license.

      (a) Licenses may be classified as follows:

      (i) Class A is a combination of vehicles with a gross combined weight rating (GCWR) of 26,001 pounds or more, if the GVWR of the vehicle or vehicles being towed is in excess of 10,000 pounds.

      (ii) Class B is a single vehicle with a GVWR of 26,001 pounds or more, and any such vehicle towing a vehicle not in excess of 10,000 pounds.

      (iii) Class C is a single vehicle with a GVWR of less than 26,001 pounds or any such vehicle towing a vehicle with a GVWR not in excess of 10,000 pounds consisting of:

      (A) Vehicles designed to transport sixteen or more passengers, including the driver; or

      (B) Vehicles used in the transportation of hazardous materials.

      (b) The following endorsements and restrictions may be placed on a license:

      (i) "H" authorizes the driver to drive a vehicle transporting hazardous materials.

      (ii) "K" restricts the driver to vehicles not equipped with air brakes.

      (iii) "T" authorizes driving double and triple trailers.

      (iv) "P1" authorizes driving all vehicles, other than school buses, carrying passengers.

      (v) "P2" authorizes driving vehicles with a GVWR of less than 26,001 pounds, other than school buses, carrying sixteen or more passengers, including the driver.

      (vi) "N" authorizes driving tank vehicles.

      (vii) "X" represents a combination of hazardous materials and tank vehicle endorsements.

      (viii) "S" authorizes driving school buses.

(ix) "V" means that the driver has been issued a medical variance.

      The license may be issued with additional endorsements and restrictions as established by rule of the director.

      (3) All school bus drivers must have either a "P1" or "P2" endorsement depending on the GVWR of the school bus being driven.

      (4) Before issuing a commercial driver's license, the department shall obtain driving record information:

      (a) Through the commercial driver's license information system;

      (b) Through the national driver register;

      (c) From the current state of record; and

      (d) From all states where the applicant was previously licensed over the last ten years to drive any type of motor vehicle.

      A check under (d) of this subsection need be done only once, either at the time of application for a new commercial driver's license, or upon application for a renewal of a commercial driver's license for the first time after July 1, 2005, provided a notation is made on the driver's record confirming that the driving record check has been made and noting the date it was completed.

      (5) Within ten days after issuing a commercial driver's license, the department must notify the commercial driver's license information system of ((that fact,)) the information required under 49 C.F.R. Sec. 383.73 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section and provide all information required to ensure identification of the person.

      (6) A commercial driver's license shall expire in the same manner as provided in RCW 46.20.181.

      (7) When applying for renewal of a commercial driver's license, the applicant shall:

      (a) Complete the application form required by RCW 46.25.070(1), providing updated information and required certifications;

      (b) Submit the application to the department in person; and

      (c) If the applicant wishes to retain a hazardous materials endorsement, take and pass the written test for a hazardous materials endorsement.

NEW SECTION.  Sec. 3. A new section is added to chapter 46.25 RCW to read as follows:

      (1)(a) Any person applying for a CDL must certify that he or she is or expects to be engaged in one of the following types of driving:

      (i) Nonexcepted interstate;

      (ii) Excepted interstate;

      (iii) Nonexcepted intrastate; or

      (iv) Excepted intrastate.

      (b) From January 30, 2012, to January 30, 2014, the department may require that any person holding a CDL prior to the effective date of this section must provide the department with the certification required under (a) of this subsection.  The CDL of a person failing to submit the required certification is subject to downgrade under subsection (4) of this section.

      (2) A CDL applicant or holder who certifies under subsection (1)(a)(i) of this section that he or she is or expects to be engaged in nonexcepted interstate commerce must provide a copy of a medical examiner's certificate prepared by a medical examiner, as defined in 49 C.F.R. Sec. 390.5 as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section.  Upon submission, a copy of the medical examiner's certificate must be date-stamped by the department.  A CDL holder who certifies under subsection (1)(a)(i) of this section must submit a copy of each subsequently issued medical examiner's certificate.

      (3) For each operator of a commercial motor vehicle required to have a commercial driver's license, the department must meet the following requirements:

      (a)(i) The driver's self-certification of type of driving under subsection (1) of this section must be maintained on the driver's record and the CDLIS driver record;

      (ii) The copy of a medical examiner's certificate, when submitted under subsection (2) of this section, must by retained for three years beyond the date the certificate was issued; and

      (iii) When a medical examiner's certificate is submitted under subsection (2) of this section, the information required under 49 C.F.R. Sec. 383.73(j)(1)(iii) as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section must be posted to the CDLIS driver record within ten calendar days from the date submitted.  The indicator of medical certification status, such as "certified" or "not-certified," must be maintained on the driver's record.

      (b) Within ten calendar days of the driver's medical certification status expiring or a medical variance expiring or being rescinded, the medical certification status of the driver must be updated to "not-certified."

      (c) Within ten calendar days of receiving information from the federal motor carrier safety administration regarding issuance or renewal of a medical variance for a driver, the department must update the CDLIS driver record to include the medical variance information.

      (4)(a) If a driver's medical certification or medical variance expires, or the federal motor carrier safety administration notifies the department that a medical variance was removed or rescinded, the department must:

      (i) Notify the driver of his or her "not-certified" medical certification status and that the CDL privilege will be removed from the driver's license unless the driver submits a current medical certificate or medical variance, or changes his or her self-certification to driving only in excepted or intrastate commerce; and

      (ii) Initiate procedures for downgrading the license.  The CDL downgrade must be completed and recorded within sixty days of the driver's medical certification status becoming "not-certified" to operate a commercial motor vehicle.

      (b) Beginning January 30, 2014, if a driver fails to provide the department with the certification required in subsection (1) of this section, or a current medical examiner's certificate if the driver self-certifies under subsection (1)(a)(i) of this section that he or she is operating in nonexcepted interstate commerce as required in subsection (2) of this section, the department must mark the CDLIS driver record as "not-certified" and initiate a CDL downgrade in accordance with (a)(ii) of this subsection.

      (c) A driver whose CDL has been downgraded under this subsection may restore the CDL privilege by providing the necessary certifications or medical variance information to the department.

Sec. 4. RCW 46.25.090 and 2006 c 327 s 4 are each amended to read as follows:

      (1) A person is disqualified from driving a commercial motor vehicle for a period of not less than one year if a report has been received by the department pursuant to RCW 46.20.308 or 46.25.120, or if the person has been convicted of a first violation, within this or any other jurisdiction, of:

      (a) Driving a motor vehicle under the influence of alcohol or any drug;

      (b) Driving a commercial motor vehicle while the alcohol concentration in the person's system is 0.04 or more, or driving a noncommercial motor vehicle while the alcohol concentration in the person's system is 0.08 or more, or is 0.02 or more if the person is under age twenty‑one, as determined by any testing methods approved by law in this state or any other state or jurisdiction;

      (c) Leaving the scene of an accident involving a motor vehicle driven by the person;

      (d) Using a motor vehicle in the commission of a felony;

      (e) Refusing to submit to a test or tests to determine the driver's alcohol concentration or the presence of any drug while driving a motor vehicle;

      (f) Driving a commercial motor vehicle when, as a result of prior violations committed while operating a commercial motor vehicle, the driver's commercial driver's license is revoked, suspended, or canceled, or the driver is disqualified from operating a commercial motor vehicle;

      (g) Causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the crimes of vehicular homicide and negligent homicide.

      If any of the violations set forth in this subsection occurred while transporting hazardous material, the person is disqualified for a period of not less than three years.

      (2) A person is disqualified for life if it has been determined that the person has committed or has been convicted of two or more violations of any of the offenses specified in subsection (1) of this section, or any combination of those offenses, arising from two or more separate incidents.

      (3) The department may adopt rules, in accordance with federal regulations, establishing guidelines, including conditions, under which a disqualification for life under subsection (2) of this section may be reduced to a period of not less than ten years.

      (4) A person is disqualified from driving a commercial motor vehicle for life who uses a motor vehicle in the commission of a felony involving the manufacture, distribution, or dispensing of a controlled substance, as defined by chapter 69.50 RCW, or possession with intent to manufacture, distribute, or dispense a controlled substance, as defined by chapter 69.50 RCW.

      (5)(a) A person is disqualified from driving a commercial motor vehicle for a period of:

      (i) Not less than sixty days if:

      (A) Convicted of or found to have committed a second serious traffic violation while driving a commercial motor vehicle; or

      (B) Convicted of reckless driving, where there has been a prior serious traffic violation; or

      (ii) Not less than one hundred twenty days if:

      (A) Convicted of or found to have committed a third or subsequent serious traffic violation while driving a commercial motor vehicle; or

      (B) Convicted of reckless driving, where there has been two or more prior serious traffic violations.

      (b) The disqualification period under (a)(ii) of this subsection must be in addition to any other previous period of disqualification.

      (c) For purposes of determining prior serious traffic violations under this subsection, each conviction of or finding that a driver has committed a serious traffic violation while driving a commercial motor vehicle or noncommercial motor vehicle, arising from a separate incident occurring within a three-year period, must be counted.

      (6) A person is disqualified from driving a commercial motor vehicle for a period of:

      (a) Not less than ((ninety)) one hundred eighty days nor more than one year if convicted of or found to have committed a first violation of an out-of-service order while driving a commercial vehicle;

      (b) Not less than ((one)) two years nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed two violations of out-of-service orders while driving a commercial motor vehicle in separate incidents;

      (c) Not less than three years nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed three or more violations of out-of-service orders while driving commercial motor vehicles in separate incidents;

      (d) Not less than one hundred eighty days nor more than two years if the person is convicted of or is found to have committed a first violation of an out-of-service order while transporting hazardous materials, or while operating motor vehicles designed to transport sixteen or more passengers, including the driver.  A person is disqualified for a period of not less than three years nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed subsequent violations of out-of-service orders, in separate incidents, while transporting hazardous materials, or while operating motor vehicles designed to transport sixteen or more passengers, including the driver.

      (7) A person is disqualified from driving a commercial motor vehicle if a report has been received by the department under RCW 46.25.125 that the person has received a verified positive drug test or positive alcohol confirmation test as part of the testing program conducted under 49 C.F.R. 40.  A disqualification under this subsection remains in effect until the person undergoes a drug and alcohol assessment by a substance abuse professional meeting the requirements of 49 C.F.R. 40, and the person presents evidence of satisfactory participation in or successful completion of a drug or alcohol treatment and/or education program as recommended by the substance abuse professional, and until the person has met the requirements of RCW 46.25.100.  The substance abuse professional shall forward a diagnostic evaluation and treatment recommendation to the department of licensing for use in determining the person's eligibility for driving a commercial motor vehicle.  Persons who are disqualified under this subsection more than twice in a five-year period are disqualified for life.

      (8)(a) A person is disqualified from driving a commercial motor vehicle for the period of time specified in (b) of this subsection if he or she is convicted of or is found to have committed one of the following six offenses at a railroad-highway grade crossing while operating a commercial motor vehicle in violation of a federal, state, or local law or regulation:

      (i) For drivers who are not required to always stop, failing to slow down and check that the tracks are clear of an approaching train;

      (ii) For drivers who are not required to always stop, failing to stop before reaching the crossing, if the tracks are not clear;

      (iii) For drivers who are always required to stop, failing to stop before driving onto the crossing;

      (iv) For all drivers, failing to have sufficient space to drive completely through the crossing without stopping;

      (v) For all drivers, failing to obey a traffic control device or the directions of an enforcement officer at the crossing;

      (vi) For all drivers, failing to negotiate a crossing because of insufficient undercarriage clearance.

      (b) A person is disqualified from driving a commercial motor vehicle for a period of:

      (i) Not less than sixty days if the driver is convicted of or is found to have committed a first violation of a railroad-highway grade crossing violation;

      (ii) Not less than one hundred twenty days if the driver is convicted of or is found to have committed a second railroad-highway grade crossing violation in separate incidents within a three-year period;

      (iii) Not less than one year if the driver is convicted of or is found to have committed a third or subsequent railroad-highway grade crossing violation in separate incidents within a three-year period.

      (9) A person is disqualified from driving a commercial motor vehicle for not more than one year if a report has been received by the department from the federal motor carrier safety administration that the person's driving has been determined to constitute an imminent hazard as defined by 49 C.F.R. 383.5.  A person who is simultaneously disqualified from driving a commercial motor vehicle under this subsection and under other provisions of this chapter, or under 49 C.F.R. 383.52, shall serve those disqualification periods concurrently.

      (10) Within ten days after suspending, revoking, or canceling a commercial driver's license or disqualifying a driver from operating a commercial motor vehicle, the department shall update its records to reflect that action.

Sec. 5. RCW 46.32.100 and 2010 c 161 s 1116 are each amended to read as follows:

      (1)(a) In addition to all other penalties provided by law, and except as provided otherwise in (a)(i), (ii), or (iii) of this subsection, a commercial motor vehicle that is subject to compliance reviews under this chapter and an officer, agent, or employee of a company operating a commercial motor vehicle who violates or who procures, aids, or abets in the violation of this title or any order or rule of the state patrol is liable for a penalty of one hundred dollars for each violation.

      (i) It is a violation of this chapter for a person operating a commercial motor vehicle to fail to comply with the requirements of 49 C.F.R. Pt. 382, controlled substances and alcohol use and testing, 49 C.F.R. Sec. 391.15, disqualification of drivers, and 49 C.F.R. Sec. 396.9(c)(2), moving a vehicle placed out of service before the out of service defects have been satisfactorily repaired.  For each violation the person is liable for a penalty of five hundred dollars.

      (ii) The driver of a commercial motor vehicle who ((violates)) is convicted of violating an out-of-service order is liable for a penalty of at least ((one)) two thousand ((one)) five hundred dollars ((but not more than two thousand seven hundred fifty dollars for each)) for a first violation, and not less than five thousand dollars for second or subsequent violation.

      (iii) An employer who allows ((a driver to operate)) the operation of a commercial motor vehicle when there is an out-of-service order is liable for a penalty of at least two thousand seven hundred fifty dollars but not more than ((eleven)) twenty-five thousand dollars for each violation.

      (iv) Each violation under this subsection (1)(a) is a separate and distinct offense, and in case of a continuing violation every day's continuance is a separate and distinct violation.

      (b) In addition to all other penalties provided by law, any motor carrier, company, or any officer or agent of a motor carrier or company operating a commercial motor vehicle subject to compliance reviews under this chapter who refuses entry or to make the required records, documents, and vehicles available to a duly authorized agent of the state patrol is liable for a penalty of at least five thousand dollars as well as an out-of-service order being placed on the department of transportation number, as defined in RCW 46.16A.010, and vehicle registration to operate.  Each violation is a separate and distinct offense, and in case of a continuing violation every day's continuance is a separate and distinct violation.

      (c) A motor carrier operating a commercial motor vehicle after receiving a final unsatisfactory rating or being placed out of service is liable for a penalty of not more than eleven thousand dollars for each violation.  Each violation is a separate and distinct offense, and in case of a continuing violation every day's continuance is a separate and distinct violation.

      (d) A high-risk carrier is liable for double the amount of the penalty of a prior violation if the high-risk carrier repeats the same violation during a follow-up compliance review.  Each repeat violation is a separate and distinct offense, and in case of a repeat continuing violation every day's continuance is a separate and distinct violation.

      (2) The Washington state patrol may place an out-of-service order on a department of transportation number, as defined in RCW 46.16A.010, for violations of this chapter or for nonpayment of any monetary penalties assessed by the state patrol or the utilities and transportation commission, as a result of compliance reviews, or for violations of cease and desist orders issued by the utilities and transportation commission.  The state patrol shall notify the department of licensing when an out-of-service order has been placed on a motor carrier's department of transportation number.  The state patrol shall notify the motor carrier when there has been an out-of-service order placed on the motor carrier's department of transportation number and the vehicle registrations have been revoked by sending a notice by first-class mail using the last known address for the registered or legal owner or owners, and recording the transmittal on an affidavit of first-class mail.  Notices under this section fulfill the requirements of RCW 46.12.550.  Motor carriers may not be eligible for a new department of transportation number, vehicle registration, or temporary permits to operate unless the violations that resulted in the out-of-service order have been corrected.

      (3) Any penalty provided in this section is due and payable when the person incurring it receives a notice in writing from the state patrol describing the violation and advising the person that the penalty is due.

      (a)(i) Any motor carrier who incurs a penalty as provided in this section, except for a high-risk carrier that incurs a penalty for a repeat violation during a follow-up compliance review, may, upon written application, request that the state patrol mitigate the penalty.  An application for mitigation must be received by the state patrol within twenty days of the receipt of notice.

      (ii) The state patrol may decline to consider any application for mitigation.

      (b) Any motor carrier who incurs a penalty as provided in this section has a right to an administrative hearing under chapter 34.05 RCW to contest the violation or the penalty imposed, or both.  In all such hearings, the procedure and rules of evidence are as specified in chapter 34.05 RCW except as otherwise provided in this chapter.  Any request for an administrative hearing must be made in writing and must be received by the state patrol within twenty days after the later of (i) receipt of the notice imposing the penalty, or (ii) disposition of a request for mitigation, or the right to a hearing is waived.

      (c) All penalties recovered under this section shall be paid into the state treasury and credited to the state patrol highway account of the motor vehicle fund.

Sec. 6. RCW 46.20.049 and 2005 c 314 s 309 are each amended to read as follows:

      There shall be an additional fee for issuing any class of commercial driver's license in addition to the prescribed fee required for the issuance of the original driver's license.  The additional fee for each class shall be ((thirty)) seventy-five dollars for the original commercial driver's license or subsequent renewals.  If the commercial driver's license is renewed or extended for a period other than five years, the fee for each class shall be ((six)) fifteen dollars for each year that the commercial driver's license is renewed or extended.  The fee shall be deposited in the highway safety fund.

NEW SECTION.  Sec. 7. Sections 1 through 3 of this act take effect January 30, 2012."

Senator Haugen spoke in favor of adoption of the committee striking amendment.

The President declared the question before the Senate to be the adoption of the committee striking amendment by the Committee on Transportation to House Bill No. 1229.

The motion by Senator Haugen carried and the committee striking amendment was adopted by voice vote.

MOTION

There being no objection, the following title amendment was adopted:

      On page 1, line 1 of the title, after "Relating to" strike the remainder of the title and insert "certain commercial motor vehicle provisions; amending RCW 46.25.010, 46.25.090, 46.32.100, and 46.20.049; reenacting and amending RCW 46.25.080; adding a new section to chapter 46.25 RCW; prescribing penalties; and providing an effective date."

MOTION

On motion of Senator Haugen, the rules were suspended, House Bill No. 1229 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senators Haugen and King spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of House Bill No. 1229 as amended by the Senate.

ROLL CALL

      The Secretary called the roll on the final passage of House Bill No. 1229 as amended by the Senate and the bill passed the Senate by the following vote:  Yeas, 46; Nays, 1; Absent, 0; Excused, 2.

      Voting yea: Senators Baumgartner, Baxter, Becker, Benton, Brown, Carrell, Chase, Conway, Delvin, Eide, Ericksen, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Holmquist Newbry, Honeyford, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Shin, Stevens, Swecker, Tom and White

      Voting nay: Senator Morton

      Excused: Senators Sheldon and Zarelli

HOUSE BILL NO. 1229 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

STATEMENT FOR THE JOURNAL

 “Today, we voted on House Bill No. 1229 concerning the certification of commercial driver's license holders and applicants.

I inadvertently voted in favor of the measure. I want the record to reflect that I would have been a "No." My consistent voting record against bills that represent an increased burden on tax payers through taxes and fees demonstrates that I would have voted against the measure.

Due to the distraction of negotiations with my colleagues, I believed we were voting on a different bill.”

SENATOR HOLMQUIST NEWBRY, 13^TH LEGISLATIVE DISTRICT

SECOND READING

HOUSE BILL NO. 1069, by Representatives Alexander and Moeller

Regarding the disposition of unclaimed remains.

The measure was read the second time.

MOTION

On motion of Senator Pridemore, the rules were suspended, House Bill No. 1069 was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senator Pridemore spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of House Bill No. 1069.

ROLL CALL

      The Secretary called the roll on the final passage of House Bill No. 1069 and the bill passed the Senate by the following vote:  Yeas, 47; Nays, 0; Absent, 0; Excused, 2.

      Voting yea: Senators Baumgartner, Baxter, Becker, Benton, Brown, Carrell, Chase, Conway, Delvin, Eide, Ericksen, Fain, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hill, Hobbs, Holmquist Newbry, Honeyford, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Litzow, McAuliffe, Morton, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Shin, Stevens, Swecker, Tom and White

      Excused: Senators Sheldon and Zarelli

HOUSE BILL NO. 1069, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

SECOND READING

SUBSTITUTE HOUSE BILL NO. 1294, by House Committee on Environment (originally sponsored by Representatives Tharinger, Warnick, Seaquist, Finn, Smith, Upthegrove, Springer, Dunshee, Orcutt, Hudgins, Reykdal, Rolfes, Hunt, Moscoso, Green, McCoy, Morris, Frockt, Ryu, Jinkins, Fitzgibbon, Sells, Blake, Appleton, Liias, Maxwell, Kenney, Carlyle, Hope and Billig)

Establishing the Puget Sound corps.

The measure was read the second time.

MOTION

On motion of Senator Ranker, the rules were suspended, Substitute House Bill No. 1294 was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senators Ranker and Morton spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of Substitute House Bill No. 1294.

ROLL CALL

      The Secretary called the roll on the final passage of Substitute House Bill No. 1294 and the bill passed the Senate by the following vote:  Yeas, 38; Nays, 9; Absent, 0; Excused, 2.

      Voting yea: Senators Baumgartner, Becker, Brown, Chase, Conway, Eide, Ericksen, Fain, Fraser, Hargrove, Harper, Haugen, Hewitt, Hill, Hobbs, Kastama, Keiser, Kilmer, Kline, Kohl-Welles, Litzow, McAuliffe, Morton, Murray, Nelson, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Shin, Stevens, Swecker, Tom and White

      Voting nay: Senators Baxter, Benton, Carrell, Delvin, Hatfield, Holmquist Newbry, Honeyford, King and Schoesler

      Excused: Senators Sheldon and Zarelli

SUBSTITUTE HOUSE BILL NO. 1294, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

SIGNED BY THE PRESIDENT

The President signed:

ENGROSSED SUBSTITUTE SENATE BILL NO. 5124,

SUBSTITUTE SENATE BILL NO. 5157,

ENGROSSED SUBSTITUTE SENATE BILL NO. 5747.

RULING BY THE PRESIDENT

President Owen: “In ruling upon the point of order raised by Senator Ericksen as to the application of Initiative Number 1053 to Substitute Senate Bill 5251, the President finds and rules as follows:

Because the language with respect to revenue increases found in Initiative Number 1053 is essentially the same as that found in Initiative Number 960, the President believes that his past rulings differentiating a ‘tax’ from a ‘fee’ are useful precedent in making similar rulings for I-1053. 

The President believes that almost every user of an electric vehicle can expect to drive that vehicle upon public roads.  The fees to be paid on electric vehicles pursuant to this measure must be used only for highway purposes, and every account into which the proceeds are deposited is similarly limited to expenditure for road purposes.  The President believes this direct connection between those paying the fee and the purpose for which the proceeds can be used satisfies the nexus test, and the revenue is properly viewed as a fee.

For these reasons, the President believes this measure will take only a simple majority vote on final passage, and Senator Ericksen’s point is not well-taken.”

MOTION

On motion of Senator Eide, the Senate advanced to the seventh order of business.

THIRD READING

ENGROSSED SUBSTITUTE SENATE BILL NO. 5251, by Senate Committee on Transportation (originally sponsored by Senators Haugen, Swecker, Sheldon, Hobbs and White).

Imposing an additional vehicle license fee on electric vehicles. Revised for 1st Substitute: Concerning electric vehicle license fees.

The bill was read on Third Reading.

Senator Haugen spoke in favor of passage of the bill.

The Presiding declared the question before the Senate to be the final passage of Engrossed Substitute Senate Bill No. 5251.

ROLL CALL

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5251 and the bill passed the Senate by the following vote:  Yeas, 30; Nays, 16; Absent, 1; Excused, 2.

      Voting yea: Senators Becker, Benton, Brown, Chase, Conway, Delvin, Fraser, Hargrove, Harper, Hatfield, Haugen, Hewitt, Hobbs, Honeyford, Keiser, King, Kline, Kohl-Welles, McAuliffe, Morton, Nelson, Parlette, Pflug, Prentice, Regala, Roach, Rockefeller, Schoesler, Shin and Swecker

      Voting nay: Senators Baumgartner, Baxter, Eide, Ericksen, Fain, Hill, Holmquist Newbry, Kastama, Kilmer, Litzow, Murray, Pridemore, Ranker, Stevens, Tom and White

      Absent: Senator Carrell

      Excused: Senators Sheldon and Zarelli

ENGROSSED SUBSTITUTE SENATE BILL NO. 5251, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

MOTION

At 12:16 p.m., on motion of Senator Eide, the Senate adjourned until 10:00 a.m. Wednesday, March 30, 2011.

BRAD OWEN, President of the Senate

THOMAS HOEMANN, Secretary of the Senate

1016

Second Reading.................................................................... 12

Third Reading Final Passage................................................ 12

1069

Second Reading.................................................................... 18

Third Reading Final Passage................................................ 18

1071-S

Committee Report................................................................. 1

1175-S

Introduction & 1^st Reading..................................................... 1

Other Action.......................................................................... 2

1229

Other Action........................................................................ 18

Second Reading.................................................................... 13

Third Reading Final Passage................................................ 18

1294-S

Second Reading.................................................................... 18

Third Reading Final Passage................................................ 19

1362-S2

Other Action.......................................................................... 9

Second Reading...................................................................... 2

Third Reading Final Passage................................................ 10

1384-S

Committee Report................................................................. 1

1412

Second Reading.................................................................... 12

Third Reading Final Passage................................................ 13

1716-S

Other Action........................................................................ 12

Second Reading.................................................................... 10

Third Reading Final Passage................................................ 12

1922-S

Committee Report................................................................. 1

5124-S

President Signed................................................................... 19

5157-S

President Signed................................................................... 19

5251-S

Third Reading....................................................................... 19

Third Reading Final Passage................................................ 19

5747-S

President Signed................................................................... 19

5911

Introduction & 1^st Reading..................................................... 1

PRESIDENT OF THE SENATE

Ruling by the President ESSB 5251..................................... 19

WASHINGTON STATE SENATE

Statement for the Journal, Senator Holmquist Newbry....... 18