BP BHEAD INT H [atlas:bill]

AN ACT Relating to establishing a public/private partnership to manage and operate a passenger-only vessel system; amending RCW 81.84.005, 81.84.010, 81.84.020, 81.84.030, 81.84.060, 81.104.050, and 81.104.070; adding a new section to chapter 81.104 RCW; and repealing 1995 c 361 s 4 (uncodified).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 81.84.005 and 1995 c 361 s 1 are each amended to read as follows:

As used in this chapter:

(1) "Excursion service" means the carriage or conveyance of persons for compensation over the waters of this state from a point of origin and returning to the point of origin with an intermediate stop or stops at which passengers leave the vessel and reboard before the vessel returns to its point of origin.

(2) "Charter service" means the hiring of a vessel, with captain and crew, by a person or group for carriage or conveyance of persons or property.

(3) "Public subsidy" means the provision of money, equipment, or materials, or the provision of equipment, materials, services, or facilities at below-market value by a public entity to an applicant for a certificate or certificate holder that is included in the applicant's or certificate holder's revenue projections or that materially support or affect the fares charged by the applicant or certificate holder.

Sec. 2. RCW 81.84.010 and 1993 c 427 s 2 are each amended to read as follows:

(1) No commercial ferry may hereafter operate any vessel or ferry for the public use for hire between fixed termini or over a regular route upon the waters within this state, including the rivers and lakes and Puget Sound, without first applying for and obtaining from the commission a certificate declaring that public convenience and necessity require such operation. Service authorized by certificates issued before or after July 25, 1993, to a commercial ferry operator shall be exercised by the operator in a manner consistent with the conditions established in the certificate or tariffs: PROVIDED, That no certificate shall be required for a vessel primarily engaged in transporting freight other than vehicles, whose gross earnings from the transportation of passengers and/or vehicles, are not more than ten percent of the total gross annual earnings of such vessel: PROVIDED, That nothing herein shall be construed to affect the right of any county public transportation benefit area or other public agency within this state to construct, condemn, purchase, operate, or maintain, itself or by contract, agreement, or lease, with any person, firm, or corporation, ferries or boats across or wharfs at or upon the waters within this state, including rivers and lakes and Puget Sound, provided such operation is not over the same route or between the same districts, being served by a certificate holder without first acquiring the rights granted to the certificate holder under the certificate, nor shall this chapter be construed to affect, amend, or invalidate any contract entered into prior to January 15, 1927, for the operation of ferries or boats upon the waters within this state, which was entered into in good faith by any county with any person, firm, or corporation, except that in case of the operation or maintenance by any county, city, town, port district, or other political subdivision by contract, agreement, or lease with any person, firm, or corporation, of ferries or boats across or wharfs at or upon the waters within this state, including rivers and lakes and Puget Sound, the commission shall have power and authority to regulate rates and services of such operation or maintenance of ferries, boats, or wharfs, to make, fix, alter, or amend said rates, and to regulate service and safety of operations thereof, in the manner and to the same extent as it is empowered to regulate a commercial ferry, notwithstanding the provisions of any act or parts of acts inconsistent herewith.

(2) The holder of a certificate of public convenience and necessity granted under this chapter must initiate service within five years of obtaining the certificate. The certificate holder shall report to the commission every six months after the certificate is granted on the progress of the certificated route. The reports shall include, but not be limited to, the progress of environmental impact, parking, local government land use, docking, and financing considerations. However, if service has not been initiated within five years of obtaining the certificate, the commission may extend the certificate on a twelve-month basis for up to three years if the six-month progress reports indicate there is significant advancement toward initiating service.

(3) The commission shall review certificates in existence as of July 25, 1993, where service is not being provided on all or any portion of the route or routes certificated. Based on progress reports required under subsection (2) of this section, the commission may grant an extension beyond that provided in subsection (2) of this section. Such additional extension may not exceed a total of two years.

(4) Certificates issued to holders whose rates include or otherwise rely upon public subsidies must be conditioned upon the continuation of the subsidies. If the public entity subsidizing the certificate holder, in its sole legislative discretion or by exercise of contractual right, eliminates the subsidy, the certificate will lapse upon notification of the commission by the public entity. If the subsidy is reduced the commission shall review the certificate.

Sec. 3. RCW 81.84.020 and 1993 c 427 s 3 are each amended to read as follows:

(1) Upon the filing of an application the commission shall give reasonable notice to the department, affected cities and counties, and any common carrier which might be adversely affected, of the time and place for hearing on such application. The commission shall have power after hearing, to issue the certificate as prayed for, or to refuse to issue it, or to issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the rights granted by said certificate such terms and conditions as in its judgment the public convenience and necessity may require; but the commission shall not have power to grant a certificate to operate between districts and/or into any territory prohibited by RCW 47.60.120 or already served by an existing certificate holder, unless such existing certificate holder has failed or refused to furnish reasonable and adequate service or has failed to provide the service described in its certificate or tariffs after the time period allowed to initiate service has elapsed: PROVIDED, A certificate shall be granted when it shall appear to the satisfaction of the commission that the commercial ferry was actually operating in good faith over the route for which such certificate shall be sought, on January 15, 1927: PROVIDED, FURTHER, That in case two or more commercial ferries shall upon said date have been operating vessels upon the same route, or between the same districts the commission shall determine after public hearing whether one or more certificates shall issue, and in determining to whom a certificate or certificates shall be issued, the commission shall consider all material facts and circumstances including the prior operation, schedules, and services rendered by either of the ferries, and in case more than one certificate shall issue, the commission shall fix and determine the schedules and services of the ferries to which the certificates are issued to the end that duplication of service be eliminated and public convenience be furthered.

(2) Before issuing a certificate, the commission shall determine that the applicant has the financial resources to operate the proposed service for at least twelve months, based upon the submission by the applicant of a pro forma financial statement of operations. Issuance of a certificate shall be determined upon, but not limited to, the following factors: Ridership and revenue forecasts; the cost of service for the proposed operation; an estimate of the cost of the assets to be used in providing the service; public subsidies; a statement of the total assets on hand of the applicant that will be expended on the proposed operation; and a statement of prior experience, if any, in such field by the applicant. The documentation required of the applicant under this section shall comply with the provisions of RCW 9A.72.085.

(3) ((~~Subsection (2) of this section does not apply to an application for a certificate that is pending as of July 25, 1993.~~)) Any subsidizing public entity must be named as a party in interest to a certificate whose issuance is based in whole or in part upon revenue forecasts that include such public subsidies. As a party in interest, the subsidizing public entity is a necessary party to a proceeding regarding the certificate holder, its rates, or the certificate.

Sec. 4. RCW 81.84.030 and 1993 c 427 s 5 are each amended to read as follows:

No certificate or any right or privilege thereunder held, owned, or obtained under the provisions of this chapter shall be sold, assigned, leased, mortgaged, or in any manner transferred, either by the act of the parties or by operation of law, except upon authorization by the commission first obtained. A certificate in which a subsidizing public entity is a party in interest or holds, owns, or maintains a right or privilege under it may not be transferred in any manner, and the commission may not authorize the transfer without the express written consent of the party in interest.

Sec. 5. RCW 81.84.060 and 1993 c 427 s 7 are each amended to read as follows:

The commission, upon complaint by an interested party, or upon its own motion after notice and opportunity for hearing, may cancel, revoke, suspend, alter, or amend a certificate issued under this chapter on any of the following grounds:

(1) Failure of the certificate holder to initiate service by the conclusion of the fifth year after the certificate has been granted or by the conclusion of an extension granted under RCW 81.84.010 (2) or (3), if the commission has considered the progress report information required under RCW 81.84.010 (2) or (3);

(2) Failure of the certificate holder to file an annual report;

(3) The filing by a certificate holder of an annual report that shows no revenue in the previous twelve-month period after service has been initiated;

(4) The violation of any provision of this chapter;

(5) The violation of or failure to observe the provisions or conditions of the certificate or tariffs;

(6) The violation of an order, decision, rule, regulation, or requirement established by the commission under this chapter;

(7) Failure of a certificate holder to maintain the required insurance coverage in full force and effect; ((or))

(8) Failure or refusal to furnish reasonable and adequate service after initiating service; or

(9) Cessation or reduction of a public subsidy.

The commission shall take appropriate action within thirty days upon a complaint by an interested party or of its own finding that a provision of this section has been violated.

Sec. 6. RCW 81.104.050 and 1992 c 101 s 22 are each amended to read as follows:

Regional high-capacity transportation service may be expanded beyond the established district boundaries through interlocal agreements among the transit agencies and any regional transit authorities in existence.

The interlocal agreements may authorize participation in acquisition of equipment or facilities through the federally approved alternative purchasing procedures, and methods authorized by RCW 81.104.070.

Sec. 7. RCW 81.104.070 and 1990 c 43 s 28 are each amended to read as follows:

(1) The state shall not become an operating agent for regional high capacity transportation systems.

(2) Agencies providing high capacity transportation service are responsible for planning, construction, operations, and funding including station area design and development, and parking facilities. Agencies may implement necessary contracts, joint development agreements, and interlocal government agreements. Contracts and agreements may include public/private partnerships, design-build, turnkey, and super-turnkey purchasing methods authorized under federal law applicable to joint development projects, such as Public Law 105-178 and 62 Fed. Reg. 12266. Agencies providing service shall consult with affected local jurisdictions and cooperate with comprehensive planning processes.

NEW SECTION. Sec. 8. A new section is added to chapter 81.104 RCW to read as follows:

RCW 81.104.100 and 81.104.110 do not apply to an assumption of a high-capacity responsibility, route, or plan element by one agency from another, such as the assumption by a local transit agency of the responsibility, route, or plan element of a state transportation agency if the assuming agency undertakes all the obligations of the planning process and the assumption is approved by the appropriate regional planning agency.

NEW SECTION. Sec. 9. 1995 c 361 s 4 (uncodified) is repealed.