UTILITIES AND TRANSPORTATION
[Docket TP-180402, General Order R-596—Filed May 3, 2019, 10:22 a.m., effective June 3, 2019]
In the matter of amending chapter 480-07 WAC and adopting chapter 480-160 WAC, relating to marine pilotage rate-setting authority.
1 STATUTORY OR OTHER AUTHORITY:
The Washington utilities and transportation commission (commission) takes this action under Notice No. WSR 19-07-077, filed with the code reviser on March 20, 2019. The commission has authority to take this action pursuant to RCW 80.01.040
, and 81.116.900.
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
3 DATE OF ADOPTION:The commission adopts this rule on the date this order is entered.
4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE:
(6) requires the commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the commission's responses to the comments reflecting the commission's consideration of them.
5 To avoid unnecessary duplication in the record of this docket, the commission designates the discussion in this order, including appendices, as its concise explanatory statement. This order provides a complete but concise explanation of the agency's actions and its reasons for taking those actions.
6 REFERENCE TO AFFECTED RULES: This order amends and adopts the following sections of the Washington Administrative Code: Amending WAC 480-07-140 General requirements for submitting documents to the commission, 480-07-500 General rate proceedings—Statement of policy, 480-07-505 General rate proceedings—Definition—Tariff suspension, 480-07-540 General rate proceedings—Burden of proof and 480-07-700 Alternative dispute resolution; and adopting WAC 480-07-525 General rate proceedings—Marine pilotage services in Puget Sound, 480-160-001 Purpose of chapter, 480-160-005 Application, 480-160-010 Resolving disputes about the meaning of these rules, 480-160-020 Definitions, 480-160-030 Change of address, telephone number, or email, 480-160-040 Exemptions from rules in chapter 480-160 WAC, 480-160-050 Records retention, 480-160-060 Reporting requirements, 480-160-070 Commission compliance policy, 480-160-080 Fees, 480-160-090 Pilots must charge only approved rates, 480-160-100 Tariffs and rates—General, 480-160-110 Tariffs—Changes must be identified, 480-160-120 Changing commission-published tariff—Puget Sound pilotage district, 480-160-130 Changing commission-published tariffs—Grays Harbor pilotage district, 480-160-140 Tariffs—Approval, 480-160-150 Tariffs—Suspension by the commission, and 480-160-160 Complaints—Rates and charges.
7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER:
The commission filed a preproposal statement of inquiry (CR-101) on August 8, 2018, at WSR 18-17-051. The statement advised interested persons that the commission was considering entering a rule making to implement SSB 6519, chapter 107, Laws of 2018, enacted during the 2018 legislative session and effective on July 1, 2019. The commission also informed persons of this inquiry by providing notice of the subject and the CR-101 to everyone on the commission's list of persons requesting such information pursuant to RCW 34.05.320
(3) and by providing notice to the commission's list of transportation attorneys and known stakeholders involved in marine pilotage rate-setting. Pursuant to the notice, the commission received comments on the subject of the proposed rule making on September 14 and October 3, 2018, from Pacific Merchant Shipping Association (PMSA), Holland America Group, and Puget Sound Pilots (PSP).
8 MEETINGS OR WORKSHOPS; ORAL COMMENTS:The commission held a workshop to discuss draft rules on October 19, 2019.
9 ADDITIONAL COMMENTS:The commission circulated revised draft rules following the workshop and received additional written comments from PSP and PMSA on January 31 and February 1, 2019, respectively.
10 SMALL BUSINESS ECONOMIC IMPACT ANALYSIS: The rules the commission proposes to adopt establish a process for setting rates, terms, and conditions for pilotage services that is comparable to the general rate-making process the commission has long used for utilities and other transportation companies the commission regulates. On January 18, 2019, the commission mailed a notice to all stakeholders interested in the rule making, providing a copy of the draft rules and an opportunity to respond to a small business economic impact statement (SBEIS) questionnaire. The notice requested that entities affected by the proposed rules provide information about possible cost impacts of the rules with specific information for each rule that the entity identified as causing an impact. The commission did not receive any information in response to the questionnaire.
11 Based on the information available to the commission, the proposed rules merely implement the statute and extend existing commission procedures to marine pilotage services as required by the legislature. The draft rules will impose no costs beyond those already imposed by statute or that apply to the other industries the commission regulates. Accordingly, because the proposed rules will not impose more-than-minor costs on marine pilots or shippers, the commission concludes that no SBEIS is required.
12 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on March 20, 2019, at WSR 19-07-077. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 19-07-077 at 9:30 a.m., Wednesday, April 24, 2019, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.
13 WRITTEN COMMENTS:PMSA filed comments in response to the CR-102 on April 19, 2019. A summary of these comments and the commission's responses are contained in Appendix A, shown below, and made part of, this order.
14 RULE-MAKING HEARING:The commission considered the proposed rules for adoption at a rule-making hearing on Wednesday, April 24, 2019, before Chairman David W. Danner, Commissioner Ann E. Rendahl, and Commissioner Jay M. Balasbas. The commission heard oral comments from Jason Lewis, representing commission staff (staff), and representatives of PSP and PMSA, all in support of the proposed rules.
15 SUGGESTIONS FOR CHANGE THAT ARE REJECTED/ACCEPTED:Written comments were supportive of the proposed rules but suggested a few clarifying revisions. The suggested changes and the commission's reason for rejecting or accepting them are included in Appendix A. In addition, the commission has made a few nonsubstantive revisions to the proposed rules to enhance clarity and correct typographical or grammatical errors.
16 The commission appreciates staff's work to develop proposed rules and coordinate with stakeholders to implement the statute expeditiously. The commission gratefully acknowledges the assistance of the board of pilotage commissioners and the cooperation and comments of PMSA and PSP, all of which facilitated the rule-making process and were instrumental in enabling the commission to promulgate the rules we adopt today. We look forward to working with these entities in the future.
17 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend and adopt the rules as proposed in the CR-102 at WSR 19-07-077 with the changes described below.
18 CHANGES FROM PROPOSAL:The commission adopts the proposal with the following changes from the text noticed at WSR 19-07-07 [19-07-077]:
1. WAC 480-07-500(5), delete "or pilotage service provider."
2. WAC 480-07-505 (1)(e), insert "filed by a person with a substantial interest" after "Any petition" and "a" before "marine."
3. WAC 480-07-505 (4)(e), substitute "rate changes designed to recover only the costs to comply with government actions that directly impact the costs to provide regulated pilotage services" for "to recover changes in state, local or federal taxes or fees applicable to pilotage services."
4. WAC 480-07-505(5), delete "or pilotage service provider."
5. WAC 480-07-505(6), delete "or pilotage service provider."
6. WAC 480-07-525(3), substitute "cover" for "transmittal" and "WAC 480-07-140" for "WAC 480-07-141."
7. WAC 480-07-700(3), insert "for pilotage rates" before "must allow."
8. WAC 480-160-020, insert "an" before "arrangement" and substitute "produces" for "produce."
9. WAC 480-160-030, insert "the provider's" before "physical."
10. WAC 480-160-070(3), delete "district" after "pilotage."
11. WAC 480-160-090, insert "in a" before "different."
19 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE:
After reviewing the entire record, the commission determines that the WAC sections listed above should be amended and adopted to read as set forth in Appendix B, 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 19, Amended 5, Repealed 0.
Number of Sections Adopted at the 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.
20 THE COMMISSION ORDERS:
The commission amends chapter 480-07 WAC and adopts chapter 480-160 WAC to read as set forth in Appendix B, 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
This order and the rule[s] 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
RCW and 1-21 WAC.
DATED at Olympia, Washington, May 3, 2019.
Washington Utilities and Transportation Commission
David W. Danner, Chairman
Ann E. Rendahl, Commissioner
Jay M. Balasbas, Commissioner
(Comment Summary Matrix)
WAC 480-07-500 (5) and (6)
Requests clarification on the inclusion of the phrase "or pilotage service provider" in these subsections, contending that staff previously agreed that it could cause confusion in rate proceedings but did not delete the language.
Staff agrees and proposes to delete this phrase from these subsections.
WAC 480-07-505 (1)(e)
Recommends adding "filed by a person with a substantial interest" after "Any petition" to be consistent with the statutory authority that any person with a substantial interest has a right to petition for a rate-making proceeding.
Staff agrees and proposes to add this phrase to this subsection.
WAC 480-07-505 (4)(c)
Requests that the phrase "automatic periodic or annual" be deleted to make clear that the allowance for prior commission approved automatic adjustments applies generally and not just to those adjustments that are time-based.
Staff disagrees. The intent of this subsection is to allow the same opportunity for an automatic adjustment mechanism that exists in other industries, and the meaning of this language is well-accepted and understood.
WAC 480-07-505 (4)(e)
Recommends deleting the exemption from general rate proceedings for filings "to recover changes in state, local or federal taxes or fees applicable to pilotage services." PMSA believes that the language is "overly vague, broad, and fraught with potential unintended impacts, especially given a lack of understanding of the taxes implicated by this exemption and the tax treatment of relationships between PSP and individual pilot licensees."
Staff agrees that the language should be clarified and proposes to substitute language comparable to the language used for other industries, i.e., "rate changes designed to recover only the costs to comply with government actions that directly impact the costs to provide regulated pilotage services."
AMENDATORY SECTION(Amending WSR 17-06-051, filed 2/28/17, effective 3/31/17)
WAC 480-07-140General requirements for submitting documents to the commission.
(a) Informal submissions. Informal submissions are oral or written comments or communications directed to the commission that do not seek, or respond to, formal commission action, are not required by statute or commission rule, and generally are not filed in a docket. Informal submissions include, but are not limited to, consumer complaints other than complaints requesting commencement of an adjudicative proceeding, and public comments made on matters the commission considers at an open public meeting or in an adjudication when submitted by persons who are not, and do not seek to be, parties to that adjudication. A person may make informal submissions by using the comment form available on the commission's web site or by contacting the commission records center or consumer protection section by telephone, letter, or email at the contact information listed in WAC 480-07-125.
(b) Formal filings. Formal filings are written submissions that seek or respond to formal commission action or are required by statute or commission rule and that the commission may file in a docket. Unless otherwise provided in this chapter, all documents submitted to the commission for formal filing, including documents that contain confidential information, must be submitted electronically to the commission records center in conformance with this rule. The commission will not accept a document for formal filing unless the commission receives that document in electronic form.
(2) Where to send written communications. Persons should send written communications to the commission using the contact information contained in WAC 480-07-125 or on the commission's web site. Correspondence directed to the commission should be addressed to the commission secretary.
(3) Cover letters. Persons submitting documents to the commission for formal filing must include a cover letter with the submission unless the sole document submitted is a letter or the document is one page in length and includes the information identified in subsection (4) of this section.
(4) Requirements. The following requirements enable the commission to identify submissions and to facilitate prompt delivery of communications to commission personnel.
(a) Identification of sender. All persons who communicate with the commission should provide their full name, mailing address, telephone number, and email address to assist the commission in responding. Persons who communicate with the commission on behalf of a business, organization, or other entity must state their name and title or position, and the name of the entity on whose behalf they are sending the communication. All submissions on behalf of a company the commission regulates must identify the company using the exact name of the company in the commission's records. The commission's web site includes a list of all such companies by the names in the commission's records. The commission may reject or require resubmission of any submission that does not comply with this requirement.
(b) Identification of permit, license, or certificate. Any person or entity holding a commission-issued permit, license, or certificate must identify the permit, license, or certificate number (if any), including the exact name under which the authority is held, when communicating with the commission concerning the permit, license, or certificate.
(c) Identification of proceeding. Persons who communicate with the commission concerning a formal commission proceeding (e.g., rule-making or adjudication) must identify the proceeding to the best of their ability, including the docket number and name of the proceeding.
(d) Identification of documents. All documents submitted to the commission must be named in conformance with subsection (6)(b) of this section.
(5) Electronic submission of documents. The commission accepts only electronic versions of documents for formal filing. Unless required in a specific rule or order, the commission does not require a paper copy of the document.
(a) Electronic submission via web portal. Documents submitted electronically must be submitted using the commission's records center web portal except as provided in this rule.
(i) How to use the web portal. To use the web portal to submit documents for filing, persons should navigate to, and follow the instructions on, the web portal at the address specified in WAC 480-07-125.
(ii) Official commission receipt. The commission officially receives a document submitted through the web portal on the date and at the time registered by the portal; provided that documents the commission receives after 5:00 p.m. are not considered officially received or filed until the next business day. The web portal will send an automated notification to the person submitting the document when the commission has received the document.
(iii) Insufficient capacity. If a submission exceeds the size limitations of the commission's web portal for a single submission, the person may submit the documents in multiple web portal submissions, via one or more emails as provided in subsection (6)(c) of this section, or on a disc or other commonly used electronic storage medium delivered by mail or hand delivery. The commission includes on its web site the current size limitation of submissions on the web portal and instructions for making multiple web portal submissions.
(b) Electronic submission via email. If a person is unable to use the web portal to submit documents for filing, the commission will accept a submission via email. The commission may also accept correspondence or comments directed to the commission in the form of an email. An email transmitting documents must explain the reason the documents are not being submitted via the web portal and must comply with the following requirements:
(i) Where to send electronic documents. Emails and emailed submissions for filing must be directed to the commission's records center at the email address specified in WAC 480-07-125. Courtesy or informational copies may be sent to other email addresses for individual commission personnel. The commission will receive for filing only email submissions sent to the records center.
(ii) When deemed received. An email and any transmitted documents are deemed received only when the email and the entire document or set of documents successfully reach the commission's records center electronic mailbox. Emails or documents wholly or partly received by email in the commission's records center after 5:00 p.m. are not considered officially received or filed until the next business day.
(iii) Insufficient capacity. If a submission exceeds the size limitations of the commission's email system for a single message, the person may submit the documents in multiple messages as provided in subsection (6)(c) of this section or on a disc or other commonly used electronic storage medium delivered via mail or hand delivery. The commission includes on its web site the current size limitation of a single email.
(c) Electronic submission by mail or hand delivery. A person may submit for filing electronic copies of documents on a disc or other commonly used electronic storage medium by mail or hand delivery (e.g., courier delivery service) to the commission's business address. The commission deems it has received an electronic document submitted by mail or hand delivery when the commission's records center physically receives it. Documents delivered to the commission's records center after 5:00 p.m. are not considered officially received or filed until the next business day.
(d) Additional requirements. The following additional requirements apply when submitting documents in the circumstances identified below.
Submissions in these dockets or types of documents:
Must comply with these rules and:
Part II of this chapter
Part III of this chapter, plus any requirements in the specific adjudication
Utility tariffs and contracts
Chapter 480-80 WAC and WAC 480-07-141
Transportation tariffs and time schedules
WAC 480-07-141; and
(a) For auto transportation companies
(a) Chapter 480-30 WAC;
(b) For commercial ferry companies
(b) Chapters 480-51 and 480-149 WAC;
(c) For solid waste collection companies
(c) Chapter 480-70 WAC
(d) For marine pilotage services
(d) Chapter 480-160 WAC
For public records requests
RCW and 480-04 WAC
(6) Electronic file format requirements. Electronic versions of all documents filed with the commission must conform to the following file format requirements.
(a) Acceptable format.
(i) All documents other than spreadsheets as described in (a)(ii) of this subsection and email correspondence or comments must be filed in searchable .pdf (adobe acrobat or comparable software) format and to the extent feasible should be saved or otherwise converted directly from the native format in which the document was created. Parties that cannot create .pdf files directly from the document in its native format must provide a copy of the document converted to .pdf via scanning or other available technology. Scanned documents must be searchable unless readily available software does not support searchable scanned documents.
(ii) Any document in the form of a spreadsheet that displays results of calculations based on formulas must be filed in its native Excel format (((.xls,)) .xlsx((, .xlsm))) or the updated version of, or successor to, that software program. The commission will accept spreadsheets created using a different software program only if the commission has a license to use that program and personnel who know how to use it. Spreadsheets must include all formulas and may not include locked, password protected, or hidden cells or tabs, or any other restrictions that impair or hamper the commission's ability to review or modify the data in those cells.
(iii) Correspondence or comments in the form of an email must conform to generally accepted conventions for email communications.
(b) File naming conventions. Documents must be named in a way that describes the contents. Each document a person submits must be labeled with the docket number of the proceeding (except in the case of original submissions), any confidentiality designation, the name of the document, the name of the person or party on whose behalf the document is submitted, the last name of any witness sponsoring the document, and the date the document is submitted. The prefix to the docket number (e.g., UE-, TG-, etc.) may be omitted, and words may be abbreviated as necessary in the file name of an electronic document if the full name is too long. The cover letter accompanying the submission must list all of the documents included in the submission using the same identifying information. The commission maintains a sample list of acceptable file names and abbreviations on its web site.
(c) Acceptable organization. Except as provided in WAC 480-07-160 (((4)(d)(vii))) when submitting documents that include information designated as confidential, highly confidential, or exempt, all files required to meet a single deadline must be submitted at the same time and in the same message, if possible, or on the same disc or commonly used electronic storage medium. A person may submit files in more than one submission or message when submitting those files via the commission's web portal or via email as authorized in subsection (5)(a)(iii) and (b)(iii) of this section if the total size of the submission exceeds the size constraints of the commission's web portal or email system for a single submission. If the documents are submitted in multiple email messages, each email message must prominently identify which one it is in the sequence of messages and, to the extent possible, the total number of messages used (e.g., "Message 2 of 4"). The first and final messages in the sequence must be identified as such. The first message also must explain the reason for the multiple messages and must include the cover letter and any required certificate of service. All such messages must be submitted as close to simultaneously as practicable.
AMENDATORY SECTION(Amending WSR 18-18-041, filed 8/29/18, effective 9/29/18)
WAC 480-07-500General rate proceedings—Statement of policy.
(1) Scope of this subpart. This subpart explains the special requirements for certain filings to change rates charged by electric, natural gas, pipeline, telecommunications, and water companies, low-level radioactive waste sites, solid waste collection companies, and commercial ferries, and marine pilotage services.
(2) Inconsistencies with subpart A requirements. If there is any inconsistency between the requirements in subpart B of these rules and those in subpart A, the requirements in subpart B control.
(3) Purpose of special rules. The special requirements in subpart B are designed to standardize presentations, clarify issues, and speed and simplify processing of general rate proceedings.
(4) Failure to comply. The commission, pursuant to WAC 480-07-141, may reject, or require the company to revise, any filing to initiate a general rate proceeding that does not conform to the requirements of subpart B of these rules. The commission will provide a written statement of its reasons if it rejects a filing. The company may revise or refile a filing that remedies the noncompliance the commission has identified and otherwise fully complies with the rules consistent with the requirements in WAC 480-07-141(2), which governs the date on which the commission considers a filing to have been made.
(5) Less than statutory notice.
The commission may grant requests to alter tariffs on less than statutory notice for good cause shown, in accordance with RCW 80.28.060
. A company that seeks to implement general rate proceeding tariff changes on less than statutory notice must include with its filing a complete explanation of the reasons that support such treatment.
AMENDATORY SECTION(Amending WSR 18-18-041, filed 8/29/18, effective 9/29/18)
WAC 480-07-505General rate proceedings—Definition—Tariff suspension.
(1) Filings that initiate general rate proceedings.
Except as otherwise provided in this rule or RCW 80.04.130
(2)(a) (governing rate decreases for telecommunications companies), the commission will initiate a general rate proceeding in response to a filing by any public service company identified in WAC 480-07-500 requesting to change its rates if that filing meets any of the following criteria:
(a) The rates a company requests would alter its gross annual revenue from activities the commission regulates by three percent or more.
(b) Tariffs would be restructured such that the gross revenue provided by any customer class would increase by three percent or more.
(c) The company requests a change in its authorized rate of return on common equity or a change in its capital structure.
(d) The company is a solid waste collection company regulated under chapter 81.77
(e) Any petition filed by a person with a substantial interest to change the rates, charges, or rules of a marine pilotage services tariff.
(2) Filings under Title 80 RCW that will not initiate general rate proceedings.
The commission generally will not initiate general rate proceedings in response to the following filings, even though the revenue the company requests may vary by three percent or more from the company's current gross annual revenue from Washington regulated operations:
(a) Periodic rate adjustments the commission has generally authorized for electric and natural gas companies (e.g., power cost adjustments, purchased gas cost adjustments, or decoupling adjustments);
(b) Emergency or other rate increases a company requests on short notice as a result of disasters, adverse weather, or other causes beyond the company's control that unexpectedly and substantially increase a public service company's expenses; or
(c) Rate changes designed to recover only the costs a company incurs to comply with government actions that directly impact the company's costs to provide regulated service (e.g., changes to tax laws or local fees) or to comply with federal or state rules concerning the level of rates for telecommunications companies.
(3) Filings under chapter 81.77 RCW that will not initiate general rate proceedings.
The commission generally will not initiate general rate proceedings in response to the following filings by solid waste collection companies regulated under chapter 81.77
RCW even though the request may meet one or more criteria identifying general rate proceedings:
(a) Filings by companies:
(i) That provide specialized hauling services restricted to certain specific waste products that are limited to specific customers; or
(ii) That provide only on-call or nonscheduled service (i.e., Class C companies, as defined in WAC 480-70-041).
(b) Filings seeking only to pass through a change in fees unilaterally established and imposed by governmental or unaffiliated private entities, including disposal, recycling, yard waste, or processing fees, or to pass through changes to fees charged by affiliated entities if the public service company demonstrates that the total cost of transfer, transport, and fees at the affiliate's facilities is equal to or lower than other reasonable and currently available alternatives;
(c) Filings for rate changes designed to recover only the costs a company incurs to comply with government actions that directly impact the company's costs to provide regulated service (e.g., changes to state or local fees, charges, or taxes directly related to the collection or disposal of solid waste);
(d) Filings implementing new solid waste collection programs; or
(e) Filings for periodic rate adjustments through a cost adjustment mechanism the commission has generally authorized for solid waste collection companies (e.g., fuel or recycling commodity adjustments).
(4) Filings under chapter 81.116 RCW that will not initiate general rate proceedings. The following filings are not considered general rate proceedings for pilotage services regulated under chapter 81.116 RCW:
(a) Filings by a countywide port district located in part or in whole within the Grays Harbor pilotage district, as defined by RCW 88.16.050 that meets the filing requirements in RCW 53.08.390; (b) Filings to fund the stipend the board of pilotage commissioners is authorized to pay to pilot trainees and to use in its pilot training program under RCW 88.16.035;
(c) Filings to reflect any automatic periodic or annual adjustment to pilotage rates previously established and approved by the commission in a general rate proceeding;
(d) Any filing to collect by a countywide port district the cost of the commission for setting tariff rates; and
(e) Any filing to collect tariff surcharges authorized by the legislature or rate changes designed to recover only the costs to comply with government actions that directly impact the costs to provide regulated pilotage services.
(5)Commission discretion. The commission retains discretion to determine whether to initiate a general rate proceeding in response to any filing described in this section or to convert any rate proceeding to a general rate proceeding, following notice and an opportunity to comment, if the commission finds that such action is consistent with the public interest. The commission may require that any filing or proposal by a public service company to change rates for any customer class, or to restructure rates, be subject to the procedures and protections in subpart B of these rules.
(((5)))(6)Suspension of tariffs. The commission may take action at a regularly scheduled open public meeting to suspend the tariff sheets included in any filing that seeks to change rates. A company may waive its right to commission consideration of the filing at an open meeting and request immediate suspension of the tariffs, either in the cover letter accompanying the filing or in a subsequent document. If commission staff confirms that the filing is complete and complies with the applicable rules in subpart B of these rules, the commission may enter a complaint and order suspending the tariffs without further process. The company and statutory parties may engage in discovery pursuant to WAC 480-07-400 through 480-07-415 after the commission issues a notice of prehearing conference prior to the commission entering a prehearing conference order.
WAC 480-07-525General rate proceedings—Marine pilotage services in Puget Sound.
General rate proceeding filings for marine pilotage services must include the information described in this section. The commission may reject a filing that fails to meet these minimum requirements, without prejudice to a petitioner's right to refile its request in conformance with this section.
(1) Testimony and exhibits. When the filing is suspended and a hearing scheduled the petitioner must file with the commission one paper copy and an electronic copy for all testimony and exhibits that the petitioner intends to present as its direct case. The electronic copy of all filed material must be in the format identified in WAC 480-07-140(6). The commission may require the petitioner to file additional paper copies if the commission suspends and conducts a hearing on the filing.
(2) Proposed tariff. Proposed tariff sheets must be filed in electronic form supplemented by one paper copy. The proposed tariff sheets should be in legislative format (i.e., with strike-through to indicate the material to be deleted or replaced and underlining to indicate the material to be inserted) consistent with the requirements in WAC 480-160-110 through 480-160-140, as well as copies of any tariff sheets that are referenced in the new or amended tariff sheets. The electronic copy must be submitted in the format identified in WAC 480-07-140(6).
(3) Cover letter. A cover letter prepared in compliance with the provisions of WAC 480-07-140.
(4) Work papers. One paper and one electronic copy of all supporting work papers for the test period, which is the most recent twelve-month period for which financial data are available. The electronic copy must be submitted in the format identified in WAC 480-07-140(6). Work papers reflecting the test year must include:
(a) Schedule of fixed or long-term assets.
(b) Computation of revenue requirement for the rate effective year.
(c) An accrual basis income statement and balance sheet.
(d) An income statement with restating actual and pro forma adjustments, including all supporting calculations and documentation for all adjustments. The filing must identify dollar values and underlying reasons for each restating actual and pro forma adjustment.
(e) A calculation of the revenue impact of the proposed tariff revisions.
(f) An income statement listing all revenue and expense accounts by month.
(g) If nonregulated revenue represents more than ten percent of total test period revenue, a detailed separation of all revenue and expenses between regulated and nonregulated operations.
(h) A detailed list of all nonregulated operations, including the rates charged for the services rendered. Copies of all contracts must be provided on request.
(i) Schedule reconciling, within five percent, rates and charges:
(i) Earned during the test year to actual reported revenues; and
(ii) Expected to be earned during the rate year to computed revenue requirement.
(j) At the time the petitioner makes its general rate case filing, the petitioner must provide to commission staff one paper and one electronic copy of all supporting work papers of each witness in a format as described in this subsection. When the filing is suspended and a hearing scheduled, if the testimony, exhibits, or work papers refer to a document including, but not limited to, a report, study, analysis, survey, article or decision, that document must be included as a work paper unless it is a reported court or agency decision, in which case the reporter citation must be provided in the testimony. If a referenced document is voluminous, it need not be provided, but the petitioner must identify clearly the materials that are omitted and their content. Omitted materials must be provided or made available if requested by the commission.
(k) Organization. Work papers must be plainly identified and well organized, and must include an index and tabs. All work papers must be cross referenced and include a description of the cross referencing methodology.
(l) Electronic documents. Parties must provide all electronic files supporting their witnesses' work papers. The electronic files must be fully functional and include all formulas and linked spreadsheet files. Electronic files that support the exhibits and work papers must be provided using logical file paths, as necessary, by witness, and using identifying file names.
(m) Projected changes in vessel assignments and a detailed portrayal of vessel assignments for the previous twelve months along with the associated tariff and fees charged to vessel operators for pilotage services as required in chapter 480-160 WAC.
(n) The number of pilots licensed in the pilotage district. At a minimum, work papers must provide the board of pilotage commissioners' determination pursuant to WAC 363-116-065(2).
(o) The known increases or decreases in state fees and taxes.
(p) Normalized annual costs of any major capital investment or other recurring expenses.
(q) Revenues generated by tariff and fees for the test period, and any restating or pro forma adjustments based on available projected vessel assignments, vessel type, vessel tonnage, routes, number of pilots or other tariff-based billing determinates.
(r) Necessary tariff surcharge to fund the stipend the board of pilotage commissioners is authorized to pay to pilot trainees and to use in its pilot training program under RCW 88.16.035
(s) Change in methodologies for adjustments. If a party proposes to calculate an adjustment in a manner different from the method that the commission most recently accepted or authorized for the petitioner, it must also present a work paper demonstrating how the adjustment would be calculated under the methodology previously accepted by the commission, and a brief narrative describing the change. Commission approval of a settlement does not constitute commission acceptance of any underlying methodology unless so specified in the order approving the settlement.
AMENDATORY SECTION(Amending WSR 18-18-041, filed 8/29/18, effective 9/29/18)
WAC 480-07-540General rate proceedings—Burden of proof.
Public service companies and the petitioner seeking to establish or modify tariff rates for marine pilotage services
bear the burden of proof in the general rate proceedings described in RCW 80.04.130
. The burden of proof includes the burden of going forward with evidence and the burden of persuasion. The commission will consider the company's or petitioner's
initial filing and any supplemental filings the commission authorized to be the company's or petitioner's
full direct case in support of its rate change request for purposes of deciding any prehearing motion to dismiss under WAC 480-07-380.
AMENDATORY SECTION(Amending WSR 18-18-041, filed 8/29/18, effective 9/29/18)
WAC 480-07-700Alternative dispute resolution.
The commission supports parties' informal efforts to resolve disputes without the need for contested hearings when doing so is lawful and consistent with the public interest. Alternative dispute resolution (ADR) includes any mechanism to resolve disagreements, in whole or in part, without contested hearings.
(1) No delegation of commission authority. The commission cannot delegate to parties the power to make final decisions in any adjudicative proceeding. The commission will determine whether to approve and adopt any proposed settlement or other agreement and the extent to which it resolves some or all of the issues presented in the proceeding consistent with the public interest.
(2) Pilot training program stipend. Any proposed settlement or agreement for pilotage rates must include the necessary tariff surcharge to fund the stipend the board of pilotage commissioners is authorized to pay to pilot trainees and to use in its pilot training program under RCW 88.16.035.
(3) Commission fee to set pilotage service rates. The parties to any proposed settlement or agreement for pilotage rates must allow for the commission to apply its reasonable fee for setting rates for marine pilotage services.
(4)Forms of ADR. The commission provides the following nonexclusive forms of ADR:
(a) Voluntary negotiation. Parties to a dispute that is within the commission's jurisdiction may agree to negotiate with any other parties at any time without commission oversight.
(b) Commission-directed negotiation. The commission may direct parties to meet or consult as provided in subsection (((3)))(5) of this section, or may establish or approve a collaborative process as provided in WAC 480-07-720.
(c) Mediation. The commission may assign commission staff trained in ADR principles and techniques to serve as neutral third parties (e.g., mediator or facilitator) to assist the parties in formal or informal mediation.
(d) Assignment of settlement judge. The commission may assign a settlement judge to assist the parties to resolve their dispute through negotiation in appropriate circumstances.
(e) Arbitration. The commission may provide an arbitrator whose decision is subject to commission review in matters for which arbitration is authorized.
(((3)))(5)Settlement conference. A settlement conference is any discussion or other communication between two or more parties in an adjudicative proceeding intended to resolve one or more disputed issues. Settlement conferences do not include requests for information, for clarification, or in aid of discovery, or communications to identify whether a dispute exists or whether another party is willing to negotiate resolution of a disputed issue. Settlement conferences must be informal and without prejudice to the rights of the parties. The parties may waive the procedural requirements of this section relating to settlement conferences if all parties and the commission agree. Any party and any person who has filed a petition to intervene may participate in an initial or early settlement conference as defined in this section. An intervenor's participation in a settlement conference is limited to the interests supporting its intervention, except by agreement of other participants in the conference. No party is required to attend a settlement conference, but any party that attends and participates must make a good faith effort to resolve one or more disputed issues in which the party has a substantial interest.
(a) Initial settlement conference. The commission will include in the procedural schedule for each adjudicative proceeding the date for at least one settlement conference. Parties may reschedule a settlement conference included in the procedural schedule without seeking to modify the schedule if all parties agree, but the parties must provide notice to the presiding officer of the rescheduled date.
(b) Early settlement conference. Any party may initiate a settlement conference with any other party after the commission opens a docket and before the initial prehearing conference, but in general rate proceedings for electric, natural gas, or Class A telecommunications companies, the party initiating the settlement conference must provide ten days prior notice of any such conference to the commission, any statutory party, any person who has submitted a petition to intervene or notice of appearance, and any person who was a party in the most recent proceeding of the same type involving the same filing party and respondent, if any. Such persons may participate in the early settlement conference, as may any other person who submits a petition to intervene prior to the early settlement conference.
(((4)))(6)Settlement negotiation guidelines. In any settlement negotiation, including collaboratives, settlement conferences, and mediations, the following apply unless all participants agree otherwise:
(a) No statement, admission, or offer of settlement made during negotiations is admissible in evidence in any formal hearing before the commission without the consent of the participants or unless necessary to address the process of the negotiations;
(b) Information exchanged exclusively within the context of settlement negotiations will be treated as confidential and will be privileged against disclosure to the extent permitted by law;
(c) Participants in a commission-sanctioned ADR process must periodically advise any nonparticipating parties and the commission of any substantial progress made toward settlement and must immediately advise the commission if that process is without substantial prospects of resolving the issue or issues under discussion (i.e., if the participants agree that they are at an impasse or any neutral third party who is assisting the participants in the ADR process declares an impasse); and
(d) Any mediator, facilitator, or settlement judge who assists the participants in an ADR process will not participate in any adjudication, arbitration, or approval process for the same proceeding unless all parties consent in writing.
Chapter 480-160 WAC
WAC 480-160-001Purpose of chapter.
(1) Puget Sound pilotage district
- The legislature has declared that tariffs for pilotage services provided under chapter 88.16
RCW in the Puget Sound pilotage district shall be established by the commission. The purpose of these rules is to administer chapter 81.116
RCW in setting or amending pilotage tariff rates or charges for pilotage services.
(2) Grays Harbor pilotage district
- The legislature has declared that in setting rates or charges for pilotage services provided by the Grays Harbor pilotage district under chapter 88.16
RCW, the commission will consider the recommendation of the port district. The purpose of these rules is to administer chapter 81.116
RCW in setting or amending pilotage tariff rates or charges for pilotage services.
Except for the vessels exempted under RCW 88.16.070
, every vessel that operates in the waters of the Puget Sound pilotage district or Grays Harbor pilotage district must employ a pilotage service provider licensed under the provisions of RCW 88.16.090
and must pay the applicable pilotage rates and charges in accordance with the applicable tariff.
WAC 480-160-010Resolving disputes about the meaning of these rules.
Any person subject to these rules may seek a commission interpretation of a rule by filing with the commission a petition for declaratory order pursuant to WAC 480-07-930 or a petition under WAC 480-07-370 requesting clarification.
"Commission" means the utilities and transportation commission.
"File with the commission" means filed with the commission's executive secretary pursuant to WAC 480-07-140.
"Grays Harbor pilotage district"
shall have the same meaning as in RCW 88.16.050
"Person with a substantial interest" means:
(a) A pilot or a group or association of pilots licensed under chapter 88.16
(b) A vessel operator or other person using the services of a licensed pilot and paying pilotage fees and charges for such services or an organization representing vessel operators or persons; or
(c) Any other person or business entity that can show that a requested tariff change would be likely to have a substantial economic impact on its operations.
"Pilotage service provider" means a person licensed by the state to provide marine pilotage services in the Grays Harbor pilotage district or Puget Sound pilotage district.
"Pro forma adjustments" means a mechanism that gives effect for the test period to all known and measurable changes that are not offset by other factors.
"Puget Sound pilotage district"
shall have the same meaning as in RCW 88.16.050
"Rate design" and "rate structure" mean an arrangement or system of rates and charges that produces revenues necessary to recover the costs of service and support economic and social goals and policies.
"Rates" and "charges" mean prices for services that, when multiplied by the number of times a service is performed, determines the amount owed for the services.
"Serve" or "provide" means to deliver to commission staff and parties in a proceeding documents that are filed with the commission or documents that are not filed with the commission but are formally exchanged between parties.
WAC 480-160-030Change of address, telephone number, or email.
A pilotage service provider must notify the commission in writing of any change in the provider's physical business address, business mailing address, business telephone number, or business email. This notice must be filed at least ten days before the effective date of the change.
WAC 480-160-040Exemptions from rules in chapter 480-160 WAC.
The commission may grant an exemption from the provisions of any rule in this chapter in the same manner, consistent with the standards, and according to the procedures set forth in WAC 480-07-110.
WAC 480-160-050Records retention.
(1) General provisions. A pilotage service provider must keep all business records and reports for at least three years following the date those documents are created unless otherwise specified in these rules or unless a longer retention period is required by another governmental entity.
(2) A pilotage service provider is deemed in compliance with the requirements of this section (records retention), WAC 480-160-060 (reporting requirements), and 480-160-160 (complaints) if the information required is provided by an organization of licensed pilots or an employer on the pilotage service provider's behalf.
(3) Customer service records. A pilotage service provider must maintain complete and accurate customer service records for all customers the provider serves.
(a) A pilotage service provider must keep customer service records on file in the provider's general office for at least three years.
(b) Customer service records must be retained either in a searchable electronic format, or in alphabetical, service address, or service route order.
(c) Customer service records must show at least the following information:
(i) The name and service address of the customer;
(ii) The billing address of the customer, if different than the service address;
(iii) Categories and quantity of pilotage or other services provided, including extra services provided;
(iv) Information required to provide, on customer request, a detailed description of the amount billed the customer;
(v) Amounts billed;
(vi) Amounts collected; and
(vii) Any balance due.
WAC 480-160-060Reporting requirements.
(1) Annual reports. An annual report is an end-of-the-year summary of financial activity that each pilotage service provider is required to file with the commission.
(a) Each year the commission will make available on the commission web site an annual report form and instructions for completing the form.
(b) A pilotage service provider must file a complete and accurate annual report showing all requested information by May 1st of the succeeding year. Information provided in the annual report must be consistent with source documents maintained at the provider's offices.
(c) The commission may grant an extension of time to allow a pilotage service provider to file its annual report after the May 1st due date if the commission receives a request for extension before April 15th.
(d) The commission may issue penalty assessments if a provider fails to file its required annual report by May 1st or any extended due date the commission has established.
(2) Other reports. The commission may require a pilotage service provider to file periodic or other special reports.
WAC 480-160-070Commission compliance policy.
(1) The commission encourages voluntary compliance with statutes, rules, and commission orders.
(2) The commission will enforce statutes, rules, and commission orders through:
(a) A program emphasizing education and technical assistance.
(b) A compliance program including:
(i) Investigation and resolution of complaints;
(ii) Economic compliance audits including, but not limited to, rates, charges, and billing practices; and
(iii) Cooperative agreements with other agencies to enable effective enforcement and appropriate use of resources.
(3) Where necessary to ensure compliance with statutes, rules, and commission orders, the commission will pursue administrative actions with the intent of ensuring future compliance, by the violating pilotage service provider including, but not limited to, warnings, sanctions, or penalty assessments under the provisions of chapter 81.04
The commission will assess fees to recover the reasonable costs the commission incurs to establish or amend the tariff rates of Grays Harbor pilotage district and Puget Sound pilotage district, respectively. The fees must be included in the respective marine pilotage tariffs and shall be appropriated from the pilotage account established in RCW 88.16.061
WAC 480-160-090Pilots must charge only approved rates.
No pilotage service provider shall charge, collect, or receive, and no person, firm, corporation, or association shall pay for pilotage or other services performed that is any greater, less, or in a different amount, directly or indirectly, than the rates or charges approved by the commission.
WAC 480-160-100Tariffs and rates—General.
(1) A tariff is a publication containing the rates and charges for pilotage services, including rules that govern how rates and charges are assessed.
(2) The commission establishes and amends the tariffs that pilotage service providers serving the Puget Sound pilotage district and Grays Harbor pilotage district must use.
(3) All regulated pilotage service providers must comply with the rates, terms, conditions, and all other requirements in the applicable tariff.
(4) Any person with a substantial interest may petition the commission to update or modify the rates, terms, or conditions contained in the applicable marine pilotage district tariff.
(5) Any proposed changes to the tariff must be provided using the electronic template the commission provides.
WAC 480-160-110Tariffs—Changes must be identified.
Each change in rates, charges, terms, or conditions in a tariff must be clearly identified by including the appropriate code symbol immediately to the left of the material being changed. Symbols to indicate the type of changes are:
Used to indicate:
Reductions in rates or charges
Increases in rates or charges
Changes resulting in neither increases nor decreases
New rates, terms, or conditions
WAC 480-160-120Changing commission-published tariff—Puget Sound pilotage district.
(1) A person with a substantial interest may petition the commission to modify the Puget Sound pilotage district tariff, and the commission may propose tariff changes on its own initiative.
(2) Persons must file their proposed changes electronically using the commission's records portal.
(3) Proposed changes must:
(a) Be made on the appropriate page(s) of the existing tariff using the commission's tariff template.
(b) Identify the tariff item to be changed.
(c) Fully describe the proposed change.
(d) State clearly the reason(s) for the proposed change.
(e) Include any information or documents that justify the proposed change.
(f) Provide name, title, address, telephone number, and email address of the person or entity proposing the changes.
(4) If the commission modifies the Puget Sound pilotage district tariff, the commission will enter an appropriate order. The order and the modified tariff will state the date on which the revised rates, terms, or conditions become effective. The commission will serve a copy of the modified tariff in electronic format on the Puget Sound pilotage service providers.
WAC 480-160-130Changing commission-published tariffs—Grays Harbor pilotage district.
(1) When the Grays Harbor pilotage district files a notice of its recommended pilotage service tariff with the commission, it must include:
(a) The district pilotage budget;
(b) The prior year pilotage financial statement; and
(c) Official notice of the public hearing held on the proposed tariff.
(2) If a person with a substantial interest petitions the commission to modify the Grays Harbor pilotage district tariff, the person must submit all of the following:
(a) The name of the petitioner;
(b) A description of why the existing tariff is not fair, just, reasonable, and sufficient;
(c) A description of each proposed change and a brief statement of the reason for the change;
(d) The dollar and percentage amounts that revenue generated under the tariff will change if the commission approves the filing;
(e) The percentage amount that rates will change if approved by the commission;
(f) A contact person's name, mailing address, telephone number, and email address;
(g) An electronic copy of the proposed tariff; and
(h) Information demonstrating the petition was submitted to and subsequently rejected by the Port of Grays Harbor.
(3) If the commission modifies the Grays Harbor pilotage district tariff, the commission will enter an appropriate order. The order and the modified tariff will state the date on which the revised rates, terms, or conditions become effective. The commission will serve a copy of the modified tariff electronically on the Grays Harbor pilotage service providers.
The commission's receipt of a filing to modify tariff rates, terms, or conditions does not mean that the proposed modifications are immediately effective or that the commission approves those revisions. Petitioners may not implement any proposed tariff modifications until the commission approves them or until the modified tariff becomes effective by operation of law.
WAC 480-160-150Tariffs—Suspension by the commission.
(1) Upon receiving a complaint or protest concerning rates or charges, or on its own initiative, the commission may suspend tariff rates, terms, or conditions as provided in RCW 81.04.130
(2) The commission will not take action to suspend a tariff, or any part of a tariff, based on a complaint or protest concerning rates or charges unless the complaint or protest is filed in compliance with the commission's rules of practice and procedure in chapter 480-07 WAC.
WAC 480-160-160Complaints—Rates and charges.
(1) Pilotage service provider responsibility.
(a) Complaints from customers. When a pilotage service provider receives a complaint from a customer or an applicant concerning rates or charges, it must:
(i) Acknowledge the complaint;
(ii) Investigate the matter promptly;
(iii) Report the results of the investigation to the complainant;
(iv) Take corrective action, if warranted, as soon as appropriate under the circumstances;
(v) Inform the complainant that the pilotage service provider's initial decision may be appealed to a higher level representative of the pilotage service provider, if any;
(vi) Inform the complainant, if still dissatisfied after speaking with the higher level representative, of the commission's availability for review of the complaint; and
(vii) Provide the complainant with the commission's mail and email addresses and toll free telephone number.
(b) Complaint referred by commission. When commission consumer protection staff refers an informal complaint regarding rates or charges to the pilotage service provider, the pilotage service provider must:
(i) Investigate and report the results to the commission consumer protection staff within two business days (the commission consumer protection staff may grant an extension of time for responding to the complaint if requested and warranted);
(ii) Keep the commission consumer protection staff informed of progress toward the solution; and
(iii) Inform the commission consumer protection staff of the final result.
(c) Complaint record. A pilotage service provider must keep a record of all complaints against it concerning rates or charges for at least one year. The record of complaints must be made readily available for commission review. The record must contain:
(i) The complainant's name and address;
(ii) Date and nature of the complaint;
(iii) Action taken; and
(iv) Final result.
(2) Complaints to commission. Applicants, customers, or their representatives may file with the commission either:
(a) An informal complaint against the pilotage service provider under the provisions of WAC 480-07-910; or
(b) A formal complaint against the pilotage service provider under the provisions of WAC 480-07-370.