WSR 11-23-184

PROPOSED RULES

BOARD OF

PILOTAGE COMMISSIONERS

[ Filed November 23, 2011, 11:51 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-17-017.

     Title of Rule and Other Identifying Information: Chapter 363-11 WAC, Practice and procedure -- Board of pilotage commissioners.

     Hearing Location(s): 2901 Third Avenue, 5th Floor, Alki Conference Room, Seattle, WA 98121, on January 12, 2012, at 9:30 a.m.

     Date of Intended Adoption: January 12, 2012.

     Submit Written Comments to: Captain Harry Dudley, Chairman, 2901 Third Avenue, Suite 500, Seattle, WA 98121, e-mail larsonp@wsdot.wa.gov, fax (206) 515-3906, by January 5, 2012.

     Assistance for Persons with Disabilities: Contact Shawna Erickson by January 9, 2012, (206) 515-3647.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed revisions to chapter 363-11 WAC is to update the board's practices and procedures for administrative hearings so they are consistent with the Administrative Procedure Act, model rules of procedure (chapter 10-08 WAC), and chapter 363-116 WAC, and the civil rules of Washington.

     The proposed changes are also intended to modify the scope of hearings and associated discovery currently permitted under chapter 363-11 WAC.

     Housekeeping revisions will also be made as necessary.

     Reasons Supporting Proposal: To update and bring this WAC chapter in alignment with other rules and procedures under which the board operates.

     Statutory Authority for Adoption: Chapter 88.16 RCW.

     Statute Being Implemented: Chapter 88.16 RCW.

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

     Name of Proponent: Board of pilotage commissioners, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Board of Pilotage Commissioners, 2901 Third Avenue, Seattle, WA 98121, (206) 515-3904.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The application of the proposed rule is clear in the description of the proposal and its anticipated effects as well as the proposed language shown below.

     A cost-benefit analysis is not required under RCW 34.05.328. The Washington state board of pilotage commissioners is not a listed agency in RCW 34.05.328 (5)(a)(i).

November 23, 2011

Peggy Larson

Executive Director

OTS-4423.1


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-001   General rule and information.   The chairperson of the board of pilotage commissioners is the assistant secretary of marine operations of the department of transportation of the state of Washington or the assistant secretary's designee. Information regarding the Pilotage Act, complaints and other matters coming under the provisions of the Pilotage Act and the board's rules and regulations may be obtained by contacting the chairperson or the board's ((secretary)) staff in person or in writing at the Office of the Board of Pilotage Commissioners((, Pier 52, Seattle, Washington 98104)). All public documents in the custody of the board may be obtained upon request made to the chairperson of the Board of Pilotage Commissioners((, Pier 52, Seattle, Washington 98104)).

     Any matter filed with the chairperson and/or the ((secretary)) staff will be brought to the attention of the board at its next regular meeting, the date of which is the second Thursday of each month. Persons desiring to do so may also attend the board meetings((, which are held at Pier 52, Seattle, Washington)). Please see www.pilotage.wa.gov for office hours, meeting times and locations.

     The purpose and scope of activity of the board of pilotage commissioners are set out in chapter 88.16 RCW and are as follows:

     Scope: (1) Puget Sound pilotage district.

     (2) Grays Harbor pilotage district.

     Purpose: The purpose of the board of pilotage commissioners is to prevent the loss of human lives, loss of property and vessels and to protect the marine environment by maintenance of a competent and efficient pilotage service on the state's waters. To accomplish this end the board examines proficiency of potential pilots, licenses pilots, regulates pilots, enforces the use of pilots, sets pilotage rates, receives and investigates reports of accidents involving pilots, keeps records of various matters affecting pilotage and fulfills other responsibilities enumerated in chapter 88.16 RCW.

[Recodified as § 363-11-001. 97-08-042, filed 3/28/97, effective 3/28/97. Statutory Authority: RCW 88.16.035. 80-03-081 (Order 79-6, Resolution No. 79-6), § 296-11-001, filed 3/4/80. Statutory Authority: RCW 88.16.035 and 88.16.155. 78-09-057 (Order 78-2, Resolution No. 78-2), § 296-11-001, filed 8/23/78; Order 2-68, § 296-11-001, filed 11/1/68.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-090   ((Service of process -- By whom served.)) Adoption of the model rules of procedure.   ((The board of pilotage commissioners shall cause to be served all orders, notices and other papers issued by it, together with any other papers which it is required by law to serve. Every other paper shall be served by the party filing it.)) Except as they may be inconsistent with the rules of this chapter, the board adopts the model rules of procedure as set forth in chapter 10-08 WAC, et seq. Where the rules of this chapter conflict with chapter 10-08 WAC, the rules of this chapter shall govern.

[Recodified as § 363-11-090. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.090, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-230   Depositions and interrogatories ((in contested cases)) -- Right to take.   Except as may be otherwise provided in this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for use as evidence in the proceeding, except that leave must be obtained if notice of the taking is served by a proponent within twenty days after the filing of a complaint. The attendance of witnesses may be compelled by the use of a subpoena. Depositions shall be taken only in accordance with this rule and the rule of subpoenas.

[Recodified as § 363-11-230. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.230, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-240   Depositions and interrogatories ((in contested cases)) -- Scope.   Unless otherwise ordered, the deponent may be examined regarding any matter not privileged, which is relevant to the subject matter involved in the proceeding. Depositions shall not exceed four hours, including breaks, unless otherwise agreed to by the parties, or unless otherwise ordered by the presiding officer based upon a motion by the party seeking the deposition demonstrating good cause why the deposition should exceed four hours.

[Recodified as § 363-11-240. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.240, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-250   Depositions and interrogatories ((in contested cases)) -- Officer before whom taken.   Within the United States or within a territory or insular possession subject to the dominion of the United States depositions shall be taken before an officer authorized to administer oaths by the laws of the state of Washington or of the place where the examination is held; within a foreign country, depositions shall be taken before a secretary of an embassy or legation, consul general, vice consul or consular agent of the United States, or a person designated by the board of pilotage commissioners or agreed upon by the parties by stipulation in writing filed with the board. Except by stipulation, no deposition shall be taken before a person who is a party or the privy of a party, or a privy of any counsel of a party, or who is financially interested in the proceeding.

[Recodified as § 363-11-250. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.250, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-260   Depositions and interrogatories ((in contested cases)) -- Authorization.   A party desiring to take the deposition of any person upon oral examination shall give reasonable notice of not less than ((three)) fifteen days in writing to the board of pilotage commissioners and all parties. The notice shall state the time and place for taking the deposition, the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. ((On motion of a party upon whom the notice is served, the hearing officer may for cause shown, enlarge or shorten the time.)) If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used as other depositions.

[Recodified as § 363-11-260. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.260, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-270   Depositions and interrogatories ((in contested cases)) -- Protection of parties and deponents.   After notice is served for taking a deposition, upon its own motion or upon motion reasonably made by any party or by the person to be examined and upon notice and for good cause shown the board of pilotage commissioners or its designated hearing officer may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed, the deposition shall be opened only by order of the board, or that business secrets or secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the board, or the board may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the board or its designated hearing officer may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as above provided. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the ((agency)) board. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

[Recodified as § 363-11-270. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.270, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-280   Depositions and interrogatories ((in contested cases -- Oral examination and cross-examination)).   ((Examination and cross-examination shall proceed as at an oral hearing. In lieu of participating in the oral examination, any party served with notice of taking a deposition may transmit written cross interrogatories to the officer who, without first disclosing them to any person, and after the direct testimony is complete, shall propound them seriatim to the deponent and record or cause the answers to be recorded verbatim.)) (1) Written interrogatories. Written interrogatories may be submitted in accordance with the rules of this chapter, which may become a part of the record of proceedings upon a motion made by one of the parties. Parties shall have sixty days to respond to interrogatories.

     (2) Depositions and interrogatories in hearings brought pursuant to WAC 363-116-083 and 363-116-084. The board and the exam committee shall be required to produce for depositions no more than a total of three fact witnesses (two board/committee members, one test developer), and no more than one expert witness, in connection with any hearing requested pursuant to WAC 363-116-083 and 363-116-084, unless the board's chair, in his/her sole discretion, determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses.

     No more than five written interrogatories (including subparts) in total may be submitted to other board and/or exam committee members, which may then be submitted as a part of the record of proceedings upon a motion duly made.

     The scope of the deposition and interrogatories shall be limited to those issues set forth in WAC 363-116-083(5) and 363-116-084(5) and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, performance evaluations, correspondence to the petitioner, and/or other documents submitted to the board as a part of the decision making process.

     (3) Depositions and interrogatories in hearings brought pursuant to WAC 363-116-086.

     (a) Board/TEC witnesses - The board and the trainee evaluation committee (TEC) shall be required to produce no more than a total of two fact witnesses (one board witness, one TEC witness) and no more than one expert witness in support of its decisions made pursuant to WAC 363-116-080, unless the chair, in his/her sole discretion, determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses.

     No more than five written interrogatories (including subparts) in total may be submitted to other board and/or TEC members, which may then be submitted as a part of the record of proceedings upon a motion duly made. The scope of the deposition and interrogatories will be limited as set forth in WAC 363-116-086 (3)(b) and (c) and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, correspondence to the petitioner, training trip reports, training trip report summary spreadsheets, and/or other documents submitted to the board as a part of the decision making process.

     (b) Training and supervising pilots - The board has determined that requiring or permitting the deposition of training and supervising pilots in connection with a hearing pursuant to WAC 363-116-086 would jeopardize the integrity of the training program and would stifle candid and honest assessments of a trainee's performance in the training program. The training and supervising pilots prepare written training trip reports for each training trip. Those reports shall speak for themselves. Notwithstanding any other provision in these regulations, no training or supervising pilot shall be deposed, or called as a witness, in connection with a hearing brought pursuant to WAC 363-116-086. Consistent with WAC 363-11-410, to the extent a particular training trip report is considered by a party to be vague and/or ambiguous, a party may seek, by way of motion, a declaration from a training or supervising pilot, seeking clarification of specific issues which the party believes, for good cause shown, should be clarified. Such declaration may then become a part of the record of proceedings.

     (4) Depositions and interrogatories in hearings brought pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420. The board shall be required to produce for depositions no more than a total of two fact witnesses and, if it deems necessary one expert witness, in connection with any hearing requested pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420, unless the board's chair, in his/her sole discretion, determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses.

     No more than five written interrogatories (including subparts) in total may be submitted to other board members concerning the matters at issue, which may then be submitted as a part of the record of proceedings upon a motion duly made.

     The scope of the deposition and interrogatories will be limited as set forth in RCW 88.16.100(5), WAC 363-116-370 and 363-116-420 and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, correspondence to the petitioner, and/or other documents submitted to the board as a part of the decision making process.

[Recodified as § 363-11-280. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.280, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-290   Depositions and interrogatories ((in contested cases)) -- Recordation.   The officer before whom the deposition is to be taken shall put the witness on oath and shall personally or by someone acting under his direction and in his presence, record the testimony ((by typewriter directly or)) by transcription from stenographic notes((, wire or record recorders, which record shall separately and consecutively number each interrogatory)). Depositions shall not be recorded via videotape, or other video recording device under any circumstances. Objections to the notice, qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented or to the conduct of the officer, or of any party, shall be noted by the officer upon the deposition. All objections by any party not so made are waived.

[Recodified as § 363-11-290. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.290, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-310   Depositions and interrogatories ((in contested cases)) -- Use and effect.   Subject to rulings by the hearing officer upon objections a deposition taken and filed as provided in this rule will not become a part of the record in the proceeding until received in evidence by the hearing officer upon ((his own motion or)) the motion of any party. Except by agreement of the parties or ruling of the hearing officer, ((a deposition will be received only in its entirety)) only that portion of the deposition transcript cited during the adjudicative hearing which demonstrates that the witness made a previously inconsistent statement may become a part of the record of proceedings. The portion of the transcript submitted shall include such testimony necessary to give proper context to the witness's prior statement, as determined by the hearing officer. A party does not make a party, or the privy of a party, or any hostile witness his witness by taking his deposition. Any party may rebut any relevant evidence contained in a deposition whether introduced by him or any other party.

[Recodified as § 363-11-310. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.310, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-330   Depositions upon interrogatories -- Submission of interrogatories.   Where ((the deposition is taken upon)) written interrogatories are submitted as permitted under this chapter, the party offering the testimony shall separately and consecutively number each interrogatory ((and file and serve them with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom they are to be taken. Within ten days thereafter a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five days thereafter, the latter may serve redirect interrogatories upon the party who served cross-interrogatories)). The number of interrogatories shall not exceed five, including subparts. Answers shall be provided within sixty days of receipt, unless otherwise ordered by the presiding officer, and may be submitted as a part of the record of proceedings upon a motion duly made by either party.

[Recodified as § 363-11-330. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.330, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-350   Depositions upon interrogatories -- Attestation and return.   The ((officer before whom)) answers to interrogatories ((are verified or answered)) shall (((1))) certify under ((his official signature and seal that the deponent was duly sworn by him, that the interrogatories and answers are a true record of the deponent's testimony, that no one except deponent, the officer and the stenographer were present during the taking, and that neither he nor the stenographer, to his knowledge is a party, privy to a party, or interested in the event of the proceedings, and (2) promptly send by registered or certified mail the original copy of the deposition and exhibits with his attestation to the board of pilotage commissioners, or its designated hearing officer, one copy to the counsel who submitted the interrogatories and another copy to the deponent)) penalty of perjury, of the laws of the state of Washington that the answers are true and correct as of the date of attestation.

[Recodified as § 363-11-350. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.350, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-410   ((Form and content of decisions in contested cases.)) Adjudicative hearings -- Testimony.   ((Every decision and order, whether proposed, initial, or final, shall:

     (1) Be correctly captioned as to name of agency and name of proceeding;

     (2) Designate all parties and counsel to the proceeding;

     (3) Include a concise statement of the nature and background of the proceeding;

     (4) Be accompanied by appropriate numbered findings of fact and conclusions of law;

     (5) Whenever practical, include the reason or reasons for the particular order or remedy afforded;

     (6) Wherever practical, be referenced to specific provisions of the law and/or regulations appropriate thereto, together with reasons and precedents relied upon to support the same.)) (1) Testimony in hearings brought pursuant to WAC 363-116-083 and 363-116-084. The board and the exam committee shall be required to produce no more than a total of three fact witnesses (two board/committee members, one test developer), and no more than one expert witness, for any hearing requested pursuant to WAC 363-116-083 and 363-116-084, unless the board's chair, in his/her sole discretion, determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses.

     The scope of the hearing shall be limited to those issues set forth in WAC 363-116-083(5) and 363-116-084(5) and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, performance evaluations, correspondence to the petitioner, and/or other documents submitted to the board as a part of the decision making process.

     (2) Testimony in hearings brought pursuant to WAC 363-116-086.

     (a) Board/TEC witnesses - The board and the trainee evaluation committee (TEC) shall be required to produce no more than a total of two fact witnesses (one board witness, one TEC witness) and no more than one expert witness in support of its decisions made pursuant to WAC 363-116-080, unless the chair, in his/her sole discretion, determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses. The scope of the testimony for the hearing will be limited as set forth in WAC 363-116-086 (3)(b) and (c) and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, training trip reports, training trip report summary spreadsheets, correspondence to the petitioner, and/or other documents submitted to the board as a part of the decision making process.

     (b) Training and supervising pilots - The board has determined that requiring or permitting the testimony of training and supervising pilots in connection with a hearing pursuant to WAC 363-116-086 would jeopardize the integrity of the training program and would stifle candid and honest assessments of a trainee's performance in the training program. The training and supervising pilots prepare written training trip reports for each training trip. Those reports shall speak for themselves. Notwithstanding any other provision in these regulations, no training or supervising pilot shall be called as a witness in connection with a hearing brought pursuant to WAC 363-116-086. To the extent a particular training trip report is considered by a party to be vague and/or ambiguous, a party may seek, by way of motion, a declaration from a training or supervising pilot, seeking clarification of specific issues which the party believes, for good cause shown, should be clarified. The burden to demonstrate that there is a necessity for such a declaration shall be on the petitioner, who must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means. Such declaration may then become a part of the record of proceedings, upon a motion duly made by a party to the proceedings.

     (3) Testimony in hearings brought pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420. The board shall be required to produce no more than a total of two fact witnesses and, if it deems necessary one expert witness, in connection with any hearing requested pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420, unless the board's chair, in his/her sole discretion determines that additional witnesses are necessary. If the petitioner asserts that there is a necessity for additional witnesses, he/she must demonstrate to the presiding officer that "exceptional circumstances" exist and that such information cannot be obtained through other means in order to increase the number of witnesses.

     The scope of the testimony for the hearing will be limited to those issues set forth in RCW 88.16.100(5), WAC 363-116-370 and 363-116-420 and shall not include inquiry into the mental processes of a board or committee member concerning their decision making processes once a decision has been made and a written explanation has been provided. A written explanation may be in the form of a written recommendation, board or committee meeting minutes, incident reports, correspondence to the petitioner, and/or other documents submitted to the board as a part of the decision making process.

[Recodified as § 363-11-410. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.410, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-420   ((Definition of issues before hearing.)) Scope of discovery, relevant documents for hearings and record of proceedings.   (1) Hearings brought pursuant to WAC 363-116-083 and 363-116-084. The scope of discovery and relevant admissible documents, shall be limited to those materials bearing on the issues set forth in WAC 363-116-083(5) and 363-116-084(5), and as may otherwise be limited by chapter 363-11 WAC herein. Documentation and materials relating to the performance of pilot applicants other than those requesting a hearing are not relevant, they shall not be subject to discovery, they shall not be submitted as an exhibit or referenced in any hearing, nor shall they be submitted for inclusion in any record of proceeding conducted pursuant to WAC 363-116-083 and 363-116-084.

     (2) Hearings brought pursuant to WAC 363-116-086. The scope of discovery and relevant admissible documents shall be limited to those materials bearing on the issues set forth in WAC 363-116-086, and as may otherwise be limited by chapter 363-11 WAC herein. Documentation and materials relating to the performance of pilot trainees other than those requesting a hearing are not relevant, they shall not be subject to discovery, they shall not be submitted as an exhibit or referenced in any hearing, nor shall they be submitted for inclusion in any hearing or record of proceeding conducted pursuant to WAC 363-116-086.

     (3) Hearings brought pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420. The scope of discovery and relevant admissible documents shall be limited to those materials bearing on the issues set forth in RCW 88.16.110(5), WAC 363-116-370 and 363-116-420, and as may otherwise be limited by chapter 363-11 WAC herein. Documentation and materials relating to the performance of pilots other than those requesting a hearing are not relevant, they shall not be subject to discovery, they shall not be submitted as an exhibit or referenced in any hearing, nor shall they be submitted for inclusion in any hearing or record of proceeding conducted pursuant to RCW 88.16.100(5), WAC 363-116-370 and 363-116-420.

     In all proceedings the issues to be adjudicated shall be made initially as precise as possible, in order that hearing officers may proceed promptly to conduct the hearings on relevant and material matter only.

[Recodified as § 363-11-420. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.420, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-470   Expert or opinion testimony ((and testimony based on economic or statistical data)) -- Number and qualifications of witnesses.   That the hearing examiner or other appropriate officer in all classes of cases where practicable make an effort to have the interested parties agree upon the witness or witnesses who are to give expert or opinion testimony, either by selecting one or more to speak for all parties or by limiting the number for each party; and, if the interested parties cannot agree, require them to submit to him and to the other parties written statements containing the names, addresses and qualifications of their respective opinion or expert witnesses, by a date determined by him and fixed sufficiently in advance of the hearing to permit the other interested parties to investigate such qualifications.

[Recodified as § 363-11-470. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.470, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-480   Expert or opinion testimony ((and testimony based on economic or statistical data)) -- Written sworn statements.   That the hearing examiner or other appropriate officer, in all classes of cases in which it is practicable and permissible, require, and when not so permissible, make every effort to bring about by voluntary submission, that all direct opinion or expert testimony and all direct testimony ((based on economic or statistical data)) be reduced to written sworn statements, and, together with the exhibits upon which based, be submitted to him and to the other parties to the proceeding by a date determined by the hearing officer and fixed a reasonable time in advance of the hearing, which shall be no less than sixty days prior to the hearing; and that such sworn statements be acceptable as evidence upon formal offer at the hearing, subject to objection on any ground except that such sworn statements shall not be subject to challenge because the testimony is not presented orally, and provided that witnesses making such statements shall not be subject to cross-examination unless a request is made sufficiently in advance of the hearing to insure the presence of the witnesses. If cross examination is requested, the sworn written statement may be supplemented with live direct testimony consistent with the sworn written statement.

[Recodified as § 363-11-480. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.480, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-490   Expert or opinion testimony ((and testimony based on economic or statistical data)) -- Supporting data.   That the hearing examiner or other appropriate officer, in his discretion but consistent with the rights of the parties, cause the parties to make available for inspection in advance of the hearing, and for purposes of cross-examination at the hearing, the data underlying statements and exhibits submitted in accordance with WAC ((296-11-480)) 363-11-480, at least sixty day prior to the hearing, but, wherever practicable that he restrict to a minimum the placing of such data in the record.

[Recodified as § 363-11-490. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.490, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-500   Expert or opinion testimony and testimony based on economic or statistical data -- Effect of noncompliance with WAC 363-11-470 or 363-11-480.   Whenever the manner of introduction of opinion or expert testimony ((or testimony based on economic or statistical data)) is governed by requirements fixed under the provisions of WAC ((296-11-470 or 296-11-480)) 363-11-470 or 363-11-480, such testimony not submitted in accordance with the relevant requirements shall not be received in evidence in the absence of a clear showing that the offering party had good cause for his failure to conform to such requirements.

[Recodified as § 363-11-500. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.500, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-520   Rules of evidence -- Admissibility criteria.   Subject to the other provisions ((of these rules, all relevant evidence is admissible which, in the opinion of the officer conducting the hearing, is the best evidence reasonably obtainable, having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the officer conducting the hearing shall give consideration to, but shall not be bound to follow, the rules of evidence governing civil proceedings, in matters not involving trial by jury, in the superior court of the state of Washington)) and rules on evidence set forth in this chapter, evidentiary rulings shall conform with RCW 34.05.452 and WAC 10-08-140.

[Recodified as § 363-11-520. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.520, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-530   Rules of evidence -- Tentative admission -- Exclusion -- Discontinuance -- Objections.   When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The officer conducting the hearing may, in his discretion, either with or without objection, exclude inadmissible evidence or order cumulative evidence discontinued. Parties objecting to the introduction of evidence shall state the precise grounds of such objection at the time such evidence is offered. A party may move to exclude evidence previously admitted pursuant to WAC 10-08-140(6); a party may also move to exclude previously admitted evidence if a subsequent ruling by the presiding officer renders previously admitted evidence irrelevant, cumulative, immaterial and/or inadmissible and the moving party can demonstrate that the granting of such motion will not unjustly prejudice the rights of the other party. Such a motion shall be permissible and considered timely if made prior to the close of the hearing.

[Recodified as § 363-11-530. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.530, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-580   Declaratory rulings.   As prescribed by chapter 34.05 RCW ((34.04.080)) et seq., any interested person may petition the board of pilotage commissioners for a declaratory ruling. The board shall consider the petition and within a reasonable time the board shall:

     (1) Issue a nonbinding declaratory ruling; or

     (2) Notify the person that no declaratory ruling is to be issued or

     (3) Set a reasonable time and place for a hearing or the submission of written evidence upon the matter, and give reasonable notification to the person of the time and place for such hearing or submission and of the issues involved.

     (4) If a hearing is held or evidence is submitted as provided in subsection (3), the board shall within a reasonable time:

     (a) Issue a binding declaratory rule; or

     (b) Issue a nonbinding declaratory ruling; or

     (c) Notify the person that no declaratory ruling is to be issued.

[Recodified as § 363-11-580. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.580, effective 3/1/60, filed 3/23/60.]


AMENDATORY SECTION(Amending WSR 97-08-042, filed 3/28/97, effective 3/28/97)

WAC 363-11-590   Forms.   (1) Any interested person petitioning the board of pilotage commissioners for a declaratory ruling pursuant to RCW ((34.04.080)) 34.05.240, shall generally adhere to the following form for such purpose.

     (a) At the top of the page shall appear the wording "Before the board of pilotage commissioners, state of Washington," on the left side of the page below the foregoing the following caption shall be set out: "In the matter of the petition of (name of petitioning party) for a declaratory ruling." Opposite the foregoing caption shall appear the word "petition."

     (b) The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the name and address of the petitioning party. The second paragraph shall state all rules or statutes that may be brought into issue by the petition. Succeeding paragraphs shall set out the state of facts relied upon in form similar to that applicable to complaints in civil actions before the superior courts of this state. The concluding paragraphs shall contain the prayer of the petitioner. The petition shall be subscribed and verified in the manner prescribed for verification of complaints in the superior courts of this state.

     (c) The original and two legible copies shall be filed with the agency. Petitions shall be on white paper, either 8 1/2" x 11" or 8 1/2" x ((13)) 14" in size.

     (2) Any interested person petitioning the board of pilotage commissioners requesting the promulgation, amendment or repeal of any rules shall generally adhere to the following form for such purpose.

     (a) At the top of the page shall appear the wording "Before the board of pilotage commissioners, state of Washington." On the left side of the page below the foregoing the following caption shall be set out: "In the matter of the petition of (name of petitioning party) for (state whether promulgation, amendment or repeal) of rule (or rules)." Opposite the foregoing caption shall appear the word "petition."

     (b) The body of the petition shall be set out in numbered paragraphs. The first paragraph shall state the name and address of the petitioning party and whether petitioner seeks the promulgation of new rule or rules, or amendment or repeal of existing rule or rules. The second paragraph, in case of a proposed new rule or amendment of an existing rule, shall set forth the desired rule in its entirety. Where the petition is for amendment, the new matter shall be underscored and the matter proposed to be deleted shall appear in double parentheses. Where the petition is for repeal of an existing rule, such shall be stated and the rule proposed to be repealed shall either be set forth in full or shall be referred to by agency rule number. The third paragraph shall set forth concisely the reasons for the proposal of the petitioner and shall contain a statement as to the interest of the petitioner in the subject matter of the rule. Additional numbered paragraphs may be used to give full explanation of petitioner's reason for the action sought.

     (c) Petitions shall be dated and signed by the person or entity named in the first paragraph or by his attorney. The original and two legible copies of the petition shall be filed with the agency. Petitions shall be on white paper, either 8 1/2" x 11" or 8 1/2" x ((13)) 14" in size.

[Recodified as § 363-11-590. 97-08-042, filed 3/28/97, effective 3/28/97; Rule .08.590, effective 3/1/60, filed 3/23/60.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 363-11-003 Index to documents.
WAC 363-11-070 Computation of time.
WAC 363-11-080 Notice and opportunity for hearing in contested cases.
WAC 363-11-100 Service of process -- Upon whom served.
WAC 363-11-110 Service of process -- Service upon parties.
WAC 363-11-120 Service of process -- Method of service.
WAC 363-11-130 Service of process -- When service complete.
WAC 363-11-140 Service of process -- Filing with agency.
WAC 363-11-150 Subpoenas -- Where provided by law -- Form.
WAC 363-11-160 Subpoenas -- Issuance to parties.
WAC 363-11-170 Subpoenas -- Service.
WAC 363-11-180 Subpoenas -- Fees.
WAC 363-11-190 Subpoenas -- Proof of service.
WAC 363-11-200 Subpoenas -- Quashing.
WAC 363-11-210 Subpoenas -- Enforcement.
WAC 363-11-220 Subpoenas -- Geographical scope.
WAC 363-11-300 Depositions and interrogatories in contested cases -- Signing attestation and return.
WAC 363-11-340 Depositions upon interrogatories -- Interrogation.
WAC 363-11-360 Depositions upon interrogatories -- Provisions of deposition rule.
WAC 363-11-430 Prehearing conference rule -- Authorized.
WAC 363-11-440 Prehearing conference rule -- Record of conference action.
WAC 363-11-450 Submission of documentary evidence in advance.

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