Original Notice.

Preproposal statement of inquiry was filed as WSR 00-20-033.

Title of Rule: Chapter 308-400 WAC, Uniform commercial code and chapter 308-410 WAC, Uniform commercial code field access.

Purpose: Repeal chapters 308-400 and 308-410 WAC and replace with new set of rules, chapter 308-390 WAC, to implement Revised Article 9 (chapter 62A.9A RCW) which becomes effective July 1, 2001.

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

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

Summary: Replace existing rules with new rules for filing UCC financing statements and liens. New rules also include procedures for searching the UCC files.

Reasons Supporting Proposal: The UCC program is moving toward new technology in order to meet the requirements of Revised Article 9 changes, reduce repetitive processes, allow for electronic filing, and electronic payment of filing fees. The use of new technology demands the standardization of forms and procedures for the automated and expedient processing of filings. These rules are based on model rules developed by the International Association of Corporate Administrators to promote uniform procedures across the nation.

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

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: The UCC program is confronting the implementation of new technology in order to meet the proposed requirements of revised Article 9 dealing with Uniform Commercial Code, as well as electronic filings, and the electronic payment of filing fees. The program needs to position itself for the implementation of automated technology by standardizing its procedures with those in other states across the nation.

Proposal Changes the Following Existing Rules: Repeals chapters 308-400 and 308-410 WAC in total.

     Adds new chapter 308-390 WAC, describing procedures for filing financing statements and liens, and for searching the UCC records, including: Definitions, forms, fees, payment, and document delivery.

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

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

Hearing Location: Department of Licensing, Business and Professions Division, 405 Black Lake Boulevard, 2nd Floor, Conference Room, Olympia, WA 98502, on April 24, 2001, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Margaret Vogeli by April 17, 2001, TDD (360) 586-2788, or (360) 664-1530.

Submit Written Comments to: Margaret Vogeli, Management Analyst, Uniform Commercial Code, P.O. Box 9660, Olympia, WA 98507-9660, fax (360) 586-4414, by April 19, 2001.

Date of Intended Adoption: April 27, 2001.

March 19, 2001

Alan E. Rathbun

Assistant Director

OTS-4711.2

     (2) The duties and responsibilities of the filing officer with respect to the administration of the UCC are ministerial. In accepting for filing or refusing to file a UCC record pursuant to these rules, the filing officer does none of the following:

     (a) Determine the legal sufficiency or insufficiency of a record.

     (b) Determine that a security interest in collateral exists or does not exist.

     (c) Determine that information in the record is correct or incorrect, in whole or in part.

     (d) Create a presumption that information in the record is correct or incorrect, in whole or in part.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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     (1) Personal delivery, at the filing office's street address during regular business hours. The file time for a UCC document delivered by this method is when the UCC document is received by the filing office (even though the UCC document may not yet have been accepted for filing and subsequently may be rejected).

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

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

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

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

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

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

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

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

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     (1) Cash. Payment in cash shall be accepted if paid in person at the filing office.

     (2) Checks. Personal checks, cashier's checks and money orders made payable to the department of licensing shall be accepted if they are drawn on a bank acceptable to the filing office.

     (3) Electronic funds transfer. The filing office may accept payment via electronic funds transfer under National Automated Clearing House Association (NACHA) rules from remitters who have entered into appropriate NACHA-approved arrangements for such transfers and who authorize the relevant transfer pursuant to such arrangements and rules.

     (4) Credit cards. The filing office shall accept payment by credit cards issued by approved issuers. Remitters shall provide the filing officer with the card number, the expiration date of the card, the name of the card issuer, the name of the person or entity to whom the card was issued and the billing address for the card. Payment will not be deemed tendered until the issuer or its agent has confirmed payment. This method of payment is accepted for on-line services only.

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

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

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     (2) To file multiple secured party names on a paper submittal, a filer must provide the additional names in box 12 only of the national UCC Financing Statement Addendum and box 7 of the national UCC Financing Statement Amendment. Secured party names appearing in other boxes or on attachments will not be indexed. There is no limit to the number of addendum pages that may be attached.

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     (2) Last day permitted. The last day on which a continuation may be filed is the date upon which the financing statement lapses, although filing by certain means may not be possible on the date if the filing office is not open on that date. The relevant lapse date for a February 29 filing date shall be the March 1 in the fifth year following the year of the filing date.

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

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

     (b) No address is given in the address field. As used in this section, address is deemed to include city and state.

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

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

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

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

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

     (5) Refusal errors. If, within ninety days of the date of the refusal notice, a secured party or a remitter demonstrates to the satisfaction of the filing officer that a UCC record that was refused for filing should not have been refused, the filing officer shall file the UCC record with the filing date and time the UCC record was originally tendered for filing. The filing officer shall also file a statement noting when and why the record was changed.

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     (1) Identification numbers.

     (a) Each initial financing statement is identified by its file number as described in RCW 62A.9A-519(b). Identification of the initial financing statement is permanently associated with the record maintained for UCC documents in the UCC information management system. A record is created in the information management system for each initial financing statement and all information comprising such record is maintained in such system. Such record is identified by the same information assigned to the initial financing statement.

     (b) A UCC document other than an initial financing statement is identified by a unique file number assigned by the filing officer. In the information management system, records of all UCC documents other than initial financing statements are linked to the record of their related initial financing statement.

     (2) Type of document. The type of UCC document from which data is transferred is identified in the information management system from information supplied by the remitter.

     (3) Filing date and filing time. The filing date and filing time of UCC documents are stored in the information management system. Calculation of the lapse date of an initial financing statement is based upon the filing date.

     (4) Identification of parties. The names and addresses of debtors and secured parties are transferred from UCC documents to the UCC information management system using one or more data entry or transmittal techniques.

     (5) Status of financing statement. In the information management system, each financing statement has a status of lapsed or unlapsed.

     (6) Page count. The total number of pages in a UCC document is maintained in the information management system.

     (7) Lapse indicator. An indicator is maintained by which the information management system identifies whether or not a financing statement will lapse and, if it does, when it will lapse. The lapse date is determined as provided in RCW 62A.9A-515.

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

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

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

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

     (a) First name: 100 characters.

     (b) Middle name: 100 characters.

     (c) Last name: 100 characters.

     (d) Suffix: 10 characters.

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     (1) Single field. The names of organizations are stored in files that include only the names of organizations and not the names of individuals. A single field is used to store an organization name.

     (2) Truncation -- Organization names. The organization name field in the UCC data base is fixed in length. The maximum length is 300 characters. Although filers should continue to provide full names on their UCC records, a name that exceeds the fixed length is entered as presented to the filing officer, up to the maximum length of the data entry field.

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     (1) Status of secured party. Each secured party named on an initial financing statement shall be a secured party of record, except that if the UCC record names an assignee, the secured party/assignor shall not be a secured party of record and the secured party/assignee shall be a secured party of record.

     (2) Status of debtor. The status of a debtor named on the record shall be active and shall continue as active until one year after the financing statement lapses.

     (3) Status of financing statement. The status of the financing statement shall be active. A lapse date shall be calculated, five years from the file date, unless the initial financing statement indicates that it is filed with respect to a public-financing transaction or a manufactured-home transaction, in which case the lapse date shall be thirty years from the file date, or if the initial financing statement indicates that it is filed against a transmitting utility, in which case there shall be no lapse date. A financing statement remains active until one year after it lapses, or if it is indicated to be filed against a transmitting utility, until one year after it is terminated with respect to all secured parties of record.

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     (1) Status of secured party and debtor. An amendment shall affect the status of its debtor(s) and secured party(ies) as follows:

     (a) Collateral amendment or address change. An amendment that amends only the collateral description or one or more addresses has no effect upon the status of any debtor or secured party. If a statement of amendment is authorized by less than all of the secured parties (or, in the case of an amendment that adds collateral, less than all of the debtors), the statement affects only the interests of each authorizing secured party (or debtor).

     (b) Debtor name change. An amendment that changes a debtor's name has no effect on the status of any debtor or secured party, except that the related initial financing statement and all UCC records that include an identification of such initial financing statement shall be cross-indexed in the UCC information management system so that a search under either the debtor's old name or the debtor's new name will reveal such initial financing statement and such related UCC records. Such a statement of amendment affects only the rights of its authorizing secured party(ies).

     (c) Secured party name change. An amendment that changes the name of a secured party has no effect on the status of any debtor or any secured party, but the new name is added to the index as if it were a new secured party of record.

     (d) Addition of a debtor. An amendment that adds a new debtor name has no effect upon the status of any party to the financing statement, except the new debtor name shall be added as a new debtor on the financing statement. The addition shall affect only the rights of the secured party(ies) authorizing the statement of amendment.

     (e) Addition of a secured party. An amendment that adds a new secured party shall not affect the status of any party to the financing statement, except that the new secured party name shall be added as a new secured party on the financing statement.

     (f) Deletion of a debtor. An amendment that deletes a debtor has no effect on the status of any party to the financing statement, even if the amendment purports to delete all debtors.

     (g) Deletion of a secured party. An amendment that deletes a secured party of record has no effect on the status of any party to the financing statement, even if the amendment purports to delete all secured parties of record.

     (2) Status of financing statement. An amendment shall have no effect upon the status of the financing statement, except that a continuation may extend the period of effectiveness of a financing statement.

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     (2) Status of financing statement. An assignment shall have no effect upon the status of the financing statement.

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     (2) Status of parties. The filing of a continuation shall have no effect upon the status of any party to the financing statement.

     (3) Status of financing statement. Upon the filing of a continuation statement, the status of the financing statement remains active.

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     (2) Status of financing statement. A termination shall have no effect upon the status of the financing statement and the financing statement shall remain active in the information management system until one year after it lapses, unless the termination relates to a financing statement that indicates it is filed against a transmitting utility, in which case the financing statement will become inactive one year after it is terminated with respect to all secured parties of record.

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     (2) Status of financing statement. A correction statement shall have no effect upon the status of the financing statement.

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     (2) Implementation guide. The filing office publishes an implementation guide that prescribes the use of the XML format. The guide shall be available to the public upon request.

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     (2) Record filing procedures. Initial financing statements and amendments may be filed via the UCC website that allows entry of the information permitted on the national forms. A record which is created by the filer in this manner is subject to all of the provisions of this chapter as if it were a paper document submitted to the filing office, except that attachments may not be submitted. Instructions on how to file are provided on the website.

     (3) Search request procedures. A certified search naming a particular debtor may be obtained via the UCC website. A request that is created by the filer in this manner is subject to all of the provisions of this chapter as if it were a paper search request submitted to the filing office. Copies of individual financing statements may be ordered on-line, but will not be displayed or transmitted on-line. Copies will be deposited in the U.S. Postal Service within two business days following receipt of the request. Instructions on how to request a certified search are provided on the website.

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     (1) Organization names. Organization names are entered into the UCC information management system exactly as set forth in the UCC record, even if it appears that multiple names are set forth in the record or if it appears that the name of an individual has been included in the field designated for an organization name.

     (2) Individual names. The filing officer enters the names into the first, middle, and last name and suffix fields in the UCC information management system exactly as set forth on the form.

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     (1) Name searched. A customer's search request should state the full correct name of the debtor or the name variant to be searched and must specify whether the debtor is an individual or an organization. A search request will be processed using the name in the exact form it is submitted.

     (2) Fee. The appropriate fee shall be enclosed, payable by a method described in WAC 308-390-107.

     (3) Search request with filing. If a filer requests a search at the time a UCC record is filed, the name searched will be the debtor name as set forth on the form. The requesting party shall be the remitter of the UCC document, and the search request shall be deemed to request a search that would retrieve all financing statements filed on or prior to the date the UCC document is filed.

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

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

     (3) Punctuation marks and accents are disregarded.

     (4) Words and abbreviations at the end of a name that indicate the existence or nature of an organization are disregarded (e.g., company, limited, incorporated, corporation, limited partnership, limited liability company or abbreviations of the foregoing).

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

     (6) All spaces are disregarded.

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

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

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

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

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

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

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

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

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

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     (1) Filing officer. Identification of the filing officer and the certification of the filing officer required by RCW 62A.9A-523.

     (2) Report date. The date the report was generated.

     (3) Name searched. Identification of the name searched.

     (4) Certification date. The certification date and time for which the search is effective.

     (5) Identification of initial financing statements. Identification of each unlapsed initial financing statement or lien filed on or prior to the certification date and time corresponding to the search criteria, by name of debtor, by identification number, and by file date and file time.

     (6) History of financing statement. For each initial financing statement on the report, a listing of all related UCC records filed by the filing officer on or prior to the certification date.

     (7) Copies. Copies of all UCC records revealed by the search and requested by the searcher.

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     (a) Designate the statement as a preparer or processor lien by marking "Non-UCC Filing" (not AG-lien) in box 5 and naming the type of lien in box 8.

     (b) Identify name and address of the preparer, processor, or conditioner to be charged with the lien in box 1.

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

     (d) Describe the agricultural product or fish to be charged with the lien in box 4.

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

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

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

     (4) Duration. The lien lapses five years after the date of filing unless continued as provided in WAC 308-390-202.

     (5) Mechanics of search. All liens and financing statements are revealed in a search as provided in WAC 308-390-504.

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     (1) Notice of Federal Tax Lien, RCW 60.68.045

     (2) Criminal Profiteering Lien, RCW 9A.82.120-140

     (3) Department of Justice Lien, RCW 60.68.015

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