WSR 06-07-100

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[ Docket No. T-051359, General Order No. R-529 -- Filed March 15, 2006, 3:32 p.m. , effective April 15, 2006 ]

In the matter of amending WAC 480-31-050, 480-31-070, 480-31-080 and 480-70-161; adopting WAC 480-31-052 and 480-31-054; and repealing WAC 480-70-161, relating to notice and providing hearing for transportation companies.

1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission takes this action under Notice No. WSR 06-03-130, filed with the code reviser on January 18, 2006. The commission brings this proceeding pursuant to RCW 80.01.040(4), 81.04.160.

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

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

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

5 In this docket, to avoid unnecessary duplication, the commission designates the discussion in this order as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda preceding the filing of the CR-102 proposal and the adoption hearing. Together, the documents provide a complete but concise explanation of the agency actions and its reasons for taking those actions.

6 REFERENCE TO AFFECTED RULES: This rule repeals, amends or adopts the following sections of the Washington Administrative Code: Repealing WAC 480-70-166 Canceling certificates; amending WAC 480-31-050 Certificates, 480-31-070 Insurance, 480-31-080 Fees and annual report and 480-70-161 Suspending and canceling certificates; and adopting WAC 480-31-052 Suspending and canceling certificates; and 480-31-054 Certificates, reinstatement.

7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a proposal statement of inquiry (CR-101) on October 5, 2005, at WSR 05-20-093. The statement advised interested persons that the commission was considering entering a rule making to amend sections of chapter 480-31 WAC, Private, nonprofit transportation providers; chapter 480-51 WAC, Commercial ferries; and chapter 480-70 WAC, Solid waster collection companies, to reflect recent changes to chapters 81.66, 81.77, and 81.84 RCW, relating to notice and opportunity for hearing prior to suspension or revocation of a certificate, and in conjunction with a request for a certificate to operate in a territory served by an existing certificate holder.

8 The commission filed an amended preproposal statement of inquiry (CR-101) on November 23, 2005, at WSR 05-23-175. This notice expanded the original CR-101 filed at WSR 05-20-093 to consider adding new language or sections in chapters 480-31 and 480-70 WAC to implement the statutory amendments. The amended CR-101 also eliminated chapter 480-51 WAC, Commercial ferries, from this rule making.

9 ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending a notice to all transportation companies and solid waste companies operating in the state, to the commission's list of transportation attorneys, and by posting all information on the commission's web site.

10 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on January 18, 2006, at WSR 06-03-130. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 06-03-130 at 2:30 p.m., Wednesday, February 22, 2006, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

11 COMMENTERS (WRITTEN COMMENTS): The commission received no written comments.

12 RULE-MAKING HEARING: The rule proposal was considered for adoption, pursuant to the notice in WSR 06-03-130, at a rule-making hearing on Wednesday, February 22, 2006, before Chairman Mark H. Sidran, Commissioner Patrick J. Oshie, and Commissioner Philip B. Jones. The commission received no oral comments.

13 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend, adopt, and repeal the rules as proposed in the CR-102 at WSR 06-03-130.

14 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-70-166 should be repealed, WAC 480-31-050, 480-31-070, 480-31-080, and 480-70-161 should be amended, and WAC 480-31-052 and 480-31-054 should be adopted to read as set forth in Appendix A, as rules of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 2, Amended 4, Repealed 1.

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

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

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

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

ORDER

15 THE COMMISSION ORDERS:

16 (1) The commission repeals WAC 480-70-166.

17 (2) The commission amends and adopts WAC 480-31-050, 480-31-070, 480-31-080, 480-70-161, 480-31-052, and 480-31-054 to read as set forth in Appendix A, as rules of the Washington utilities and transportation commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

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

DATED at Olympia, Washington, March 14, 2006.

Washington Utilities and Transportation Commission

Mark H. Sidran, Chairman

Patrick J. Oshie, Commissioner

Philip B. Jones, Commissioner

OTS-8586.1


AMENDATORY SECTION(Amending Docket No. A-010827, General Order No. R-491, filed 9/28/01, effective 10/29/01)

WAC 480-31-050   Certificates.   (1) The commission will issue a certificate to any corporation which files a completed application, as provided by the commission, which provides:

(a) Satisfactory proof of its status as a private, nonprofit corporation;

(b) Information sufficient to determine the particular service to be provided;

(c) Satisfactory proof of insurance or surety bond, in accordance with WAC 480-31-070 (Insurance);

(d) The number and type of vehicles to be operated, together with satisfactory proof that the vehicles are adequate for the proposed service, that the vehicles are or will be licensed in compliance with the laws of the state, and that drivers of such vehicles will be adequately trained and qualified.

(2) Applications for certificates must be on forms to be furnished by the commission, giving all information requested and accompanied by a fifty dollar application fee.

(3) Remittances will be made by money order, bank draft, personal check or certified check, made payable to the Washington utilities and transportation commission.

(4) No provider may operate, establish, or begin operation of any business for the purpose of transporting persons with special transportation needs on the public highways of this state, without first having obtained from the commission a certificate.

(5) No certificate will be issued to persons operating under a trade name, unless a certificate of said trade name is filed in accordance with the provisions of RCW 19.80.010, and a copy thereof filed with the commission.

(6) Each vehicle operated by a provider must carry a copy of the company's certificate, and will be subject at all times to inspection by an authorized representative of the commission.

(7) ((Any certificate to operate as a private, nonprofit transportation provider obtained by any false affidavit or representation will be subject to cancellation by the commission.

(8))) No certificate will be sold, assigned, leased, acquired, or transferred except upon authorization of the commission.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160, and 34.05.310. 01-20-061 (Docket No. A-010827, General Order No. R-491), 480-31-050, filed 9/28/01, effective 10/29/01. Statutory Authority: RCW 80.01.040 and chapter 80.01 RCW. 97-08-037 (Order R-440, Docket No. TC 961102), 480-31-050, filed 3/27/97, effective 4/27/97.]


NEW SECTION
WAC 480-31-052   Suspending and canceling certificates.   (1) Cause for suspension. The commission may suspend a certificate for cause. Cause includes, but is not limited to:

(a) Failure to maintain evidence of required liability insurance coverage for all areas of a private, nonprofit transportation provider's operations;

(b) Failure to file an annual report or pay required regulatory fees;

(c) Failure or refusal to comply with operating standards that protect the public health, safety, or welfare;

(d) Allowing others to operate under a provider's certificated authority without having first obtained commission approval;

(e) Operating in a manner that violates the rights of customers and/or constitutes an unfair or deceptive business practice; or

(f) Repeated failure or refusal to comply with laws and rules pertaining to operations of private, nonprofit transportation providers.

(2) Cause for cancellation. The commission may cancel a certificate for cause. Cause includes, but is not limited to:

(a) Operating without proper insurance;

(b) Failure to file an annual report or pay required fees;

(c) Failure to correct within the time specified in a suspension order all conditions listed in the suspension order that led to the certificate's suspension;

(d) Continued violations of laws and rules affecting the public health, safety, or welfare when the commission has reason to believe the private, nonprofit transportation provider will not comply with those laws and rules following a specified period of suspension;

(e) Failure to supply requested information needed by the commission in the performance of its regulatory functions; or

(f) Submission of false, misleading or inaccurate information.

(3) Notice of pending suspension and cancellation. When the commission believes cause exists to suspend or cancel a certificate, it will issue a notice to the private, nonprofit transportation provider of the commission's intention to suspend or cancel the authority.

(4) Contest of suspension and cancellation. A private, nonprofit transportation provider may contest the pending suspension and/or cancellation of its certificate by requesting a hearing or brief adjudicative proceeding within ten days following the date of the notice.

[]


NEW SECTION
WAC 480-31-054   Certificates, reinstatement.   (1) The commission may reinstate a certificate canceled for cause under the provisions of WAC 480-31-052 (Suspending and canceling certificates) if the private, nonprofit transportation provider:

(a) Corrects all conditions leading to the cancellation;

(b) Provides a written statement explaining the circumstances surrounding the cancellation and commits that it is unlikely to recur; and

(c) Files an application to reinstate authority with the proper application fee.

(2) The commission may reinstate a certificate suspended under the provisions of WAC 480-31-052 (Suspending and canceling certificates) if the provider satisfies the terms of the suspension and all conditions leading to the suspension are corrected.

[]


AMENDATORY SECTION(Amending Order R-440, Docket No. TC 961102, filed 3/27/97, effective 4/27/97)

WAC 480-31-070   Insurance.   (1) Evidence of liability and property damage insurance or a surety bond must be on file before a certificate will be issued to a private, nonprofit transportation provider. The insurance or surety bond must have been written by a company authorized to write such insurance in the state of Washington. The combined bodily injury and property damage liability insurance or surety bond must not be less than:

Five hundred thousand dollars combined single limit for vehicles with a passenger capacity of less than sixteen passengers, including the driver;

One million dollars combined single limit for vehicles with a passenger capacity of sixteen or more passengers, including the driver.

((Failure to file and keep such insurance or surety bond in full force and effect will be cause for dismissal of an application or cancellation of a certificate.))

(2) A provider's insurance agency or company must submit evidence of insurance ((must be submitted)) on a "uniform motor carrier bodily injury and property damage liability certificate of insurance" (form E).

(3) All liability and property damage insurance policies issued to providers must carry a "uniform motor carrier bodily injury and property damage liability endorsement."

(4) Insurance termination. All insurance policies issued must provide that the same will continue in full force and effect until canceled by at least thirty days' written notice served on the insured and the commission by the insurance company. The thirty-day notice will commence to run from the date notice is actually received by the commission, except for binders which may be canceled on ten days' written notice.

A provider's insurance agency or company must submit notice of cancellation or expiration ((must be submitted)) in duplicate on forms prescribed by the commission and must not ((be submitted)) submit the notice more than sixty days before the desired termination date, except binders which may be canceled by ten days' written notice from the insurance agency or company.

(5) No provider may operate upon the public highways of this state without insurance as required by this section. ((The permit of any provider who fails to maintain evidence on file that its insurance is in current effect will be suspended by operation of law beginning with the time of the failure, until the permit is canceled or the cause of the suspension is cured and the permit is reinstated. The commission will make a good faith effort to notify providers of impending suspension for failure to maintain evidence of insurance and enter a timely order of suspension, but failure to do so will not invalidate the suspension.))

[Statutory Authority: RCW 80.01.040 and chapter 80.01 RCW. 97-08-037 (Order R-440, Docket No. TC 961102), 480-31-070, filed 3/27/97, effective 4/27/97.]


AMENDATORY SECTION(Amending Order R-440, Docket No. TC 961102, filed 3/27/97, effective 4/27/97)

WAC 480-31-080   Fees and annual report.   (1) A private, nonprofit transportation provider must pay to the commission the sum of ten dollars annually for each vehicle operated. The provider must pay the annual fee ((must be paid)) with the filing of the annual report ((of the provider)).

(2) At the close of each calendar year, every provider must secure from the commission the proper forms and file with the commission its annual report as soon as possible after the close of the calendar year, but no later than May 1st of the succeeding year. ((Failure to file such report will be sufficient cause for the commission, in its discretion to revoke a certificate.))

[Statutory Authority: RCW 80.01.040 and chapter 80.01 RCW. 97-08-037 (Order R-440, Docket No. TC 961102), 480-31-080, filed 3/27/97, effective 4/27/97.]

OTS-8587.1


AMENDATORY SECTION(Amending Docket No. TG-990161, General Order No. R-479, filed 3/23/01, effective 4/23/01)

WAC 480-70-161   Suspending and canceling certificates.   (1) Cause for suspension. The commission may suspend a certificate for cause. Cause includes, but is not limited to:

(a) Failure to maintain evidence of required liability insurance coverage for all areas of a company's operations;

(b) Failure to file an annual report or pay required regulatory fees;

(c) Failure to comply with the rates and rules contained in the company's filed tariff;

(d) Failure or refusal to comply with operating standards that protect the public health, safety or welfare;

(e) Allowing others to operate under a company's certificated authority without having first obtained commission approval; or

(f) Operating in a manner that violates the rights of customers and/or constitutes an unfair or deceptive business practice.

(2) ((Notice of suspension. The commission will issue an order notifying the company of the commission's action to suspend a certificate. Suspension is effective on the date the commission mails the suspension order (service date).

(3))) Cause for cancellation. The commission may cancel a certificate for cause. Cause includes, but is not limited to:

(a) Operating without proper insurance;

(b) Failure to file an annual report or pay required regulatory fees;

(c) Failure to correct within the time specified in a suspension order all conditions listed in the suspension order that led to the certificate's suspension;

(d) Continued violations of applicable laws and rules affecting the public health, safety, or welfare when the commission has reason to believe the company will not comply with those laws and rules following a specified period of suspension;

(e) Repeated failure or refusal to comply with applicable laws and rules pertaining to operations of solid waste collection companies;

(f) Failure to supply requested information needed by the commission in the performance of its regulatory functions;

(g) Submission of false, misleading, or inaccurate information; or

(h) Allowing others to operate under a company's certificated authority without having first obtained commission approval.

(3) Notice of pending suspension and cancellation. When the commission believes cause exists to suspend or cancel a certificate, it will issue a notice to the company of the commission's intention to suspend or cancel the authority.

(4) Contest of suspension and cancellation. A company may contest the pending suspension and/or cancellation of its certificate by requesting a hearing or brief adjudicative proceeding within ten days following the date of the notice.

(((4) Suspension without opportunity for prior hearing. The commission may suspend a certificate without providing an opportunity for prior hearing if there is imminent danger to the public health, safety, or welfare, and there is insufficient time to conduct a hearing. If the commission invokes this suspension clause, the commission will, as soon as is practical, schedule a hearing or brief adjudicative proceeding to determine if the suspension should continue in force and effect.))

[Statutory Authority: RCW 81.04.160, 81.77.030 and 80.01.040. 01-08-012 (Docket No. TG-990161, General Order No. R-479), 480-70-161, filed 3/23/01, effective 4/23/01.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 480-70-166 Canceling certificates.

Washington State Code Reviser's Office