H-0699.1 _______________________________________________
HOUSE BILL 1493
_______________________________________________
State of Washington 55th Legislature 1997 Regular Session
By Representatives Buck, Regala, Talcott, Ballasiotes, Kessler and Dyer
Read first time 01/28/97. Referred to Committee on Natural Resources.
AN ACT Relating to licensing whitewater river outfitters; amending RCW 88.12.010, 88.12.235, 88.12.245, 88.12.255, 88.12.265, 88.12.275, and 19.02.050; adding new sections to chapter 88.12 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 88.12.010 and 1993 c 244 s 5 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) "Boat wastes" includes, but is not limited to, sewage, garbage, marine debris, plastics, contaminated bilge water, cleaning solvents, paint scrapings, or discarded petroleum products associated with the use of vessels.
(2) "Boater" means any person on a vessel on waters of the state of Washington.
(3) "Carrying passengers for hire" means carrying passengers in a vessel on waters of the state for valuable consideration, whether given directly or indirectly or received by the owner, agent, operator, or other person having an interest in the vessel. This shall not include trips where expenses for food, transportation, or incidentals are shared by participants on an even basis. Anyone receiving compensation for skills or money for amortization of equipment and carrying passengers shall be considered to be carrying passengers for hire on waters of the state.
(4) "Commission" means the state parks and recreation commission.
(5) "Darkness" means that period between sunset and sunrise.
(6) "Environmentally sensitive area" means a restricted body of water where discharge of untreated sewage from boats is especially detrimental because of limited flushing, shallow water, commercial or recreational shellfish, swimming areas, diversity of species, the absence of other pollution sources, or other characteristics.
(7) "Guide" means any individual, including but not limited to subcontractors and independent contractors, engaged for compensation or other consideration by a whitewater river outfitter for the purpose of operating vessels.
(8) "Marina" means a facility providing boat moorage space, fuel, or commercial services. Commercial services include but are not limited to overnight or live‑aboard boating accommodations.
(((8)))
(9) "Motor driven boats and vessels" means all boats and
vessels which are self propelled.
(((9)))
(10) "Muffler" or "muffler system" means a sound
suppression device or system, including an underwater exhaust system, designed
and installed to abate the sound of exhaust gases emitted from an internal
combustion engine and that prevents excessive or unusual noise.
(((10)))
(11) "Operate" means to steer, direct, or otherwise have
physical control of a vessel that is underway.
(((11)))
(12) "Operator" means an individual who steers, directs, or
otherwise has physical control of a vessel that is underway or exercises actual
authority to control the person at the helm.
(((12)))
(13) "Observer" means the individual riding in a vessel who is
responsible for observing a water skier at all times.
(((13)))
(14) "Owner" means a person who has a lawful right to
possession of a vessel by purchase, exchange, gift, lease, inheritance, or
legal action whether or not the vessel is subject to a security interest.
(((14)))
(15) "Person" means any individual, sole proprietorship,
partnership, corporation, nonprofit corporation or organization, limited
liability company, firm, association, or other legal entity located within or
outside this state.
(16) "Personal flotation device" means a buoyancy device, life preserver, buoyant vest, ring buoy, or buoy cushion that is designed to float a person in the water and that is approved by the commission.
(((15)))
(17) "Personal watercraft" means a vessel of less than sixteen
feet that uses a motor powering a water jet pump, as its primary source of
motive power and that is designed to be operated by a person sitting, standing,
or kneeling on, or being towed behind the vessel, rather than in the
conventional manner of sitting or standing inside the vessel.
(((16)))
(18) "Polluted area" means a body of water used by boaters
that is contaminated by boat wastes at unacceptable levels, based on applicable
water quality and shellfish standards.
(((17)))
(19) "Public entities" means all elected or appointed bodies,
including tribal governments, responsible for collecting and spending public
funds.
(((18)))
(20) "Reckless" or "recklessly" means acting
carelessly and heedlessly in a willful and wanton disregard of the rights,
safety, or property of another.
(((19)))
(21) "Sewage pumpout or dump unit" means:
(a) A receiving chamber or tank designed to receive vessel sewage from a "porta‑potty" or a portable container; and
(b) A stationary or portable mechanical device on land, a dock, pier, float, barge, vessel, or other location convenient to boaters, designed to remove sewage waste from holding tanks on vessels.
(((20)))
(22) "Underway" means that a vessel is not at anchor, or made
fast to the shore, or aground.
(((21)))
(23) "Vessel" includes every description of watercraft on the
water, other than a seaplane, used or capable of being used as a means of
transportation on the water. However, it does not include inner tubes, air
mattresses, and small rafts or flotation devices or toys customarily used by
swimmers.
(((22)))
(24) "Water skiing" means the physical act of being towed
behind a vessel on, but not limited to, any skis, aquaplane, kneeboard, tube,
or any other similar device.
(((23)))
(25) "Waters of the state" means any waters within the
territorial limits of Washington state.
(((24)))
(26) "Whitewater river outfitter" means any person who is
advertising to carry or carries passengers for hire on any whitewater river of
the state.
(27) "Whitewater rivers of the state" means those rivers and streams, or parts thereof, within the boundaries of the state as listed in RCW 88.12.265 or as designated by the commission under section 11 of this act.
NEW SECTION. Sec. 2. A new section is added to chapter 88.12 RCW to read as follows:
(1) No person shall act in the capacity of a paid whitewater river outfitter, or advertise in any newspaper or magazine or any other trade publication, or represent himself or herself as a whitewater river outfitter in the state, without first obtaining a whitewater river outfitter's license from the department of licensing in accordance with RCW 88.12.275.
(2) Every whitewater river outfitter's license must, at all times, be conspicuously placed on the premises set forth in the license.
NEW SECTION. Sec. 3. A new section is added to chapter 88.12 RCW to read as follows:
Any attempt by a commercial whitewater river outfitter to waive liability for its own negligence is void as against public policy.
Sec. 4. RCW 88.12.235 and 1993 c 244 s 27 are each amended to read as follows:
Except as provided in RCW 88.12.275(((3))), the commission
of a prohibited act or the omission of a required act under RCW ((88.12.250))
88.12.245 through 88.12.275 constitutes a misdemeanor, punishable as
provided under RCW 9.92.030.
Sec. 5. RCW 88.12.245 and 1993 c 244 s 30 are each amended to read as follows:
(1)
While carrying passengers for hire on whitewater rivers in this state, the ((operator
and owner of the vessel)) licensed whitewater river outfitter shall:
(a) If using inflatable vessels, use only vessels with three or more separate air chambers;
(b)
Ensure that all passengers and ((operators)) guides are wearing a
securely fastened United States coast guard-approved type III or type V
personal flotation device in good serviceable condition of the proper size
for each person on board;
(c) Ensure that each vessel has accessible a spare United States coast guard-approved type III or type V personal flotation device in good repair;
(d) Ensure that each vessel has on it a bagged throwable line with a floating line and bag;
(e) Ensure that each vessel has accessible an adequate first-aid kit;
(f) Ensure that each vessel has a spare propelling device;
(g)
Ensure that a repair kit and air pump are accessible to inflatable vessel; ((and))
(h) Ensure that equipment to prevent and treat hypothermia is accessible to all vessels on a trip; and
(i) Ensure that each vessel is operated by a guide who has complied with the requirements of subsection (2) of this section.
(2)
No person may ((operate on the whitewater rivers of this state a vessel
carrying passengers for hire unless the person)) act as a guide unless
the individual is at least eighteen years of age and has successfully
completed:
(a) A lifesaving training course meeting standards adopted by the commission;
(b) A swiftwater river rescue course meeting standards adopted by the commission; and
(c) A program of guide training on whitewater rivers meeting standards adopted by the commission. In adopting guide training standards, the commission shall require training programs to issue proof of completion to any guide successfully completing the required training program. In addition, the commission shall certify as acceptable each training program meeting the commission's standards and maintain a list of those programs.
Sec. 6. RCW 88.12.255 and 1993 c 244 s 31 are each amended to read as follows:
(1)
((Vessel operators and passengers)) Whitewater river outfitters and
guides on any trip carrying passengers for hire on whitewater rivers of the
state shall not allow the use of alcohol during the course of a trip on a
whitewater river section in this state.
(2)
Any vessel carrying passengers for hire on any whitewater river section in this
state must be accompanied by at least one other vessel ((under the
supervision of the same operator or owner or)) being operated by a ((person
registered under RCW 88.12.275)) licensed whitewater river outfitter
or ((an operator)) a guide under the direction or control of a ((person
registered under RCW 88.12.275)) licensed whitewater river outfitter.
Sec. 7. RCW 88.12.265 and 1986 c 217 s 8 are each amended to read as follows:
Whitewater river sections include but are not limited to:
(1) Green river above Flaming Geyser state park;
(2) Klickitat river above the confluence with Summit creek;
(3) Methow river below the town of Carlton;
(4) Sauk river above the town of Darrington;
(5) Skagit river above Bacon creek;
(6) Suiattle river;
(7) Tieton river below Rimrock dam;
(8) Skykomish river below Sunset Falls and above the Highway 2 bridge one mile east of the town of Gold Bar;
(9) Wenatchee river above the Wenatchee county park at the town of Monitor;
(10) White Salmon river; and
(11)
Any other section of river designated a "whitewater river section" by
the ((interagency committee for outdoor recreation. Such river sections
shall be class two or greater difficulty under the international scale of
whitewater difficulty)) commission under section 11 of this act.
Sec. 8. RCW 88.12.275 and 1995 c 399 s 216 are each amended to read as follows:
(1)
((Any person carrying passengers for hire on whitewater river sections in
this state may register with the department of licensing. Each registration
application shall be submitted annually on a form provided by the department of
licensing)) The department of licensing shall issue a whitewater river
outfitter's license to an applicant who submits a completed application, pays
the required fee, and complies with the requirements of this section.
(2)
An applicant for a whitewater river outfitter's license shall make application
upon a form provided by the department of licensing. The form must be
submitted annually and ((shall)) include the following information:
(a)
The name, residence address, and residence telephone number, and the business
name, address, and telephone number of the ((registrant)) applicant;
(b) Certification that all employees, subcontractors, or independent contractors hired as guides meet the training standards adopted by the commission under section 11 of this act before carrying any passengers for hire;
(c)
Proof that the ((registrant)) applicant has liability insurance
for a minimum of three hundred thousand dollars per claim for occurrences by
the ((registrant)) applicant and the ((registrant's)) applicant's
employees that result in bodily injury or property damage. All guides must
be covered by the applicant's insurance policy; ((and
(c))) (d)
Certification that the ((registrant)) applicant will maintain the
insurance for a period of not less than one year from the date of ((registration))
issuance of the license;
(e) Certification that the policy names the state and its political subdivisions as insureds; and
(f) Certification by the applicant that for a period of not less than twenty-four months immediately preceding the application the applicant:
(i) Has not had a license, permit, or certificate to carry passengers for hire on a river revoked by another state or by an agency of the government of the United States for any reason related to safety or insurance coverage requirements; and
(ii) Has not been denied the right to apply for a license, permit, or certificate to carry passengers for hire on a river by another state.
(((2)))
(3) The department of licensing shall charge a fee for each application,
to be set in accordance with RCW 43.24.086.
(((3)))
(4) Any person advertising or representing ((themselves)) himself
or herself as ((having registered under this section)) a
whitewater river outfitter who is not currently ((registered)) licensed
is guilty of a gross misdemeanor.
(((4)))
(5) The department of licensing shall submit annually a list of ((registered))
licensed persons and companies to the department of community, trade,
and economic development, tourism promotion division.
(((5)))
(6) If an insurance company cancels or refuses to renew insurance for a
((registrant during the period of registration)) licensee, the
insurance company shall notify the department of licensing in writing of the
termination of coverage and its effective date not less than thirty days before
the effective date of termination.
(a)
Upon receipt of an insurance company termination notice, the department of
licensing shall send written notice to the ((registrant)) licensee
that on the effective date of termination the department of licensing will ((suspend))
cancel the ((registration)) license unless proof of
insurance as required by this section is filed with the department of licensing
before the effective date of the termination.
(b) If an insurance company fails to give notice of coverage termination, this failure shall not have the effect of continuing the coverage.
(c)
The department of licensing may ((suspend or revoke registration)) cancel
a license under this section if the ((registrant)) licensee
fails to maintain in full force and effect the insurance required by this
section.
(((6)))
(7) The state of Washington shall be immune from any civil action
arising from ((a registration)) the issuance of a license under
this section.
NEW SECTION. Sec. 9. A new section is added to chapter 88.12 RCW to read as follows:
The department of licensing may cancel the license of any whitewater river outfitter upon receipt of a court judgment for violation of any of the provisions of RCW 88.12.245 through 88.12.275. Local law enforcement officials shall forward a copy of the judgment to the department of licensing.
NEW SECTION. Sec. 10. A new section is added to chapter 88.12 RCW to read as follows:
The commission, in cooperation with the department of licensing, may adopt and enforce such rules, including the setting of fees, as may be consistent with and necessary to implement this chapter. The fees must approximate the cost of administration.
NEW SECTION. Sec. 11. A new section is added to chapter 88.12 RCW to read as follows:
The commission shall adopt rules that designate as whitewater rivers all sections of rivers with at least one class III rapid or greater, as described in the American whitewater affiliation's whitewater safety code. Additionally, the commission shall adopt rules pertaining to guide training and certification of training programs as required by RCW 88.12.245(2). The commission is authorized to consider the imposition of a schedule of fines for minor violations.
NEW SECTION. Sec. 12. A new section is added to chapter 88.12 RCW to read as follows:
(1) The governor shall appoint an ad hoc advisory committee consisting of:
(a) Two representatives of whitewater river outfitters or guides, each of whom is engaged in commercial river rafting in this state;
(b) One representative of the department of licensing;
(c) One representative of local law enforcement; and
(d) Three members of the public.
(2) The committee shall assist and advise the commission in the development of rules necessary to implement this chapter. The appointments to the committee expire at the time of adoption of the rules.
Sec. 13. RCW 19.02.050 and 1994 c 264 s 8 are each amended to read as follows:
(((1)))
The legislature hereby directs the full participation by the following agencies
in the implementation of this chapter:
(((a)))
(1) Department of agriculture;
(((b)))
(2) Secretary of state;
(((c)))
(3) Department of social and health services;
(((d)))
(4) Department of revenue;
(((e)))
(5) Department of fish and wildlife;
(((f)))
(6) Department of employment security;
(((g)))
(7) Department of labor and industries;
(((h)))
(8) Department of community, trade, and economic development;
(((i)))
(9) Liquor control board;
(((j)))
(10) Department of health;
(((k)))
(11) Department of licensing;
(((l)))
(12) Parks and recreation commission;
(13) Utilities and transportation commission; and
(((m))) (14) Other agencies as determined by the
governor.
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