Preproposal statement of inquiry was filed as WSR 09-17-125.
Title of Rule and Other Identifying Information: Guaranteed asset protection waiver registration and oversight program.
Hearing Location(s): Training Room 120, 5000 Capitol Boulevard, Tumwater, WA 98503, on January 5, 2010, at 10:00 a.m.
Date of Intended Adoption: January 6, 2010.
Submit Written Comments to: Meg Jones, P.O. Box 40258, Olympia, WA 98502, e-mail firstname.lastname@example.org, fax (360) 586-3109, by January 4, 2010.
Assistance for Persons with Disabilities: Contact Lorrie Villaflores by January 4, 2010, TTY (360) 586-0241 or (360) 725-7087.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposal explains the commissioner's application procedures and requirements, and describes a registrant's obligations related to advertising, keeping consumers and the commissioner advised of changes in contact information, and record retention requirements. The commissioner anticipates that the proposed rules will:
• Implement chapter 48.160 RCW, which was passed by the 2009 Washington legislature; and
• Clarify what registrants must do to legally operate in Washington when selling or administering guaranteed asset protection waiver agreements.
Reasons Supporting Proposal: The statute enacted by the 2009 legislature establishing the guaranteed asset protection waiver registration program assigned specific responsibilities to the commissioner. To carry out these responsibilities, the commissioner must explain to potential registrants the steps to follow, and the interpretation of some undefined aspects of the legislation.
Statutory Authority for Adoption: RCW 48.02.060, 48.160.070.
Statute Being Implemented: Chapter 48.160 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Mike Kreidler, insurance commissioner, governmental.
Name of Agency Personnel Responsible for Drafting: Meg L. Jones, 5000 Capitol Boulevard, Olympia, WA, (360) 725-7170; Implementation: Gayle Pasero, 5000 Capitol Boulevard, Olympia, WA, (360) 725-7210; and Enforcement: Carol Sureau, 5000 Capitol Boulevard, Olympia, WA, (360) 725-7050.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The businesses that must register do not qualify as small businesses under chapter 19.85 RCW. For those that are small businesses, the rules impose a minor, one-time only cost.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Meg Jones, P.O. Box 40258, Olympia, WA 98502, e-mail email@example.com, fax (360) 586-3109, phone (360) 725-7170.
December 2, 2009
GUARANTEED ASSET PROTECTION WAIVER
(2) This chapter is effective on January 1, 2010. All guaranteed asset protection waiver creditors must comply with this chapter on or after that date. Applicants registered before the effective date of this chapter do not need to refile their application to be in compliance.
(1) "Complete filing" means the package of information containing the registration application, other supporting documents requested by the commissioner, and fees.
(2) "Creditor" means the same as in RCW 48.160.010(3), and includes any person acting as an obligor for a guaranteed asset protection waiver.
(3) "Days" means calendar days including Saturday and Sunday and holidays unless otherwise specified.
(4) "File" means a record in any retrievable format, and unless otherwise specified, includes paper and electronic formats.
(5) "Home state" means the District of Columbia and any state or territory of the United States or province of Canada in which a creditor maintains its principal place of residence or principal place of business and is licensed to do business.
(6) "Registrant" means a person registering with the commissioner under the guaranteed asset protection waiver program as required by chapter 48.160 RCW.
(7) "Written" or "in writing" means any retrievable method of recording an agreement or document, and unless otherwise specified, includes paper and electronic formats.
(1) The person is exempt under RCW 48.160.001(2);
(2) The person is a retail seller of motor vehicles assigning:
(a) More than eighty-five percent of guaranteed asset protection waiver agreements within thirty days of such agreements' effective date; and
(b) One hundred percent of guaranteed protection waiver agreements within forty-five days of each agreement's effective date; or
(3) The person is an insurer authorized to transact insurance business in Washington state.
(2) Upon any assignment or transfer of the waiver, as allowed under RCW 48.160.030, the disclosure provided to the consumer must conspicuously include:
(a) The legal name and home office address of both the person or entity transferring the obligation;
(b) The legal name and home office address of the assignee for the guaranteed asset protection waiver; and
(c) The local address, telephone and e-mail contact information for the assignee for the guaranteed asset protection waiver.
(3) The contract must not use a trade name, a group designation, name of a parent company, name of a particular division, service mark, slogan, symbol, or other device or reference without also disclosing the legal name of the creditor, or in such a manner that it would have the capacity or tendency to mislead or deceive as to the true identity of the creditor or create the impression that a company other than the creditor would have any responsibility for the financial obligation under the contract.
(4) No contract, solicitation or marketing document or disclosure notice to a consumer may use any combination of words, symbols or physical materials which by their content, phraseology, shape, color or other characteristics are so similar to a combination of words, symbols or physical materials used by a government program or agency or otherwise appear to be of such a nature that they tend to mislead prospective consumers into believing that the program or contract is in some manner connected with such government program or agency. Creditors may disclose that they are registered with the commissioner.
(5) The commissioner will use the last mailing address provided by the registrant to the commissioner as the address of record. Registrants must advise the commissioner of any change of address within thirty days after the end of the month in which the change of address occurs. This includes any change in the registrant's mailing, business or e-mail address. Failure to advise the commissioner of a change of address may subject a registrant to disciplinary action under RCW 48.160.070.
(6) When communicating with the commissioner's office for any reason, applicants and registrants must use their legal name.
(2) In order to transact the business of issuing and administering guaranteed asset protection waiver contracts in the state of Washington, the commissioner must have approved the registration application packets filed by an applicant for registration. Applicants must submit packets that comply with chapter 48.160 RCW and with these rules.
(1) The selling, transferring or assigning creditor must mail the notice to the borrower's last known address using U.S. mail. The selling, transferring or assigning creditor may also provide electronic notice to the borrower, but such notice does not satisfy the notice requirement under the statute.
(2) The notice of transfer, assignment or sale of the waiver obligation must contain the legal name and official business address, and if different, the local business address of the new person or entity responsible to the borrower for waiver benefits. If that person or entity is different from the contact person or entity to apply to for benefits, then the notice must also contain the legal name, official business and local business addresses for the contact person.