(1) Commercial ferries shall comply with the terms of this chapter in addition to rules prescribed by the commission for public service companies in general.

(2) This chapter is subject to such exceptions as the commission may consider just and reasonable in individual cases.

(3) Application for exception to any of the rules of this chapter shall be made in accordance with the following:

(a) Application must be directed to the commission at its Olympia headquarters office;

(b) The application must be legibly presented on 8-1/2 inch by 11 inch paper, on one side of each sheet only;

(c) The applicant must identify the rule to which exception is sought and give a full explanation of the reasons for requesting the exception.

For the purposes of these rules, the following definitions shall apply:

(1) The term "commercial ferry" means every corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receivers, appointed by any court whatever, owning, controlling, leasing, operating or managing any vessel over and upon the waters of this state.

(2) The term "certificated commercial ferry" means a person required by chapter 81.84 RCW to obtain a certificate of public convenience and necessity before operating any vessel upon the waters of this state.

(3) The term "common carrier ferry vessel" means 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.

(4) The term "vessel" includes every species of watercraft, by whatever power operated, for public use in the conveyance of persons or property for hire over and upon the waters within this state, excepting all towboats, tugs, scows, barges, and lighters, and excepting rowboats and sailing boats under twenty gross tons burden, open steam launches of five tons gross and under, and vessels under five tons gross propelled by gas, fluid, naphtha, or electric motors.

(5) The term "transportation of property" includes any service in connection with the receiving, delivery, elevation, transfer in transit, ventilation, refrigeration, icing, storage and handling of the property transported, and the transmission of credit.

(6) The term "transportation of persons" includes any service in connection with the receiving, carriage and delivery of the person transported and that passenger's baggage and all facilities used, or necessary to be used in connection with the safety, comfort and convenience of the person transported.

(7) The term "for hire" means transportation offered to the general public for compensation.

(8) The term "transfer" means sale, assignment, mortgage, lease or any other voluntary or involuntary conveyance of an interest in a certificate by the entity owning a certificate.

(9) The term "launch service" means transportation of passengers and/or freight to or from a vessel under way, at anchor or at a dock.

(10) The term "person" means any natural person or persons or any entity legally capable of taking any action.

(11) The term "published schedule" means a time schedule that is published by the certificate holder and filed with the commission in accordance with the provisions of WAC 480-51-090.

(12) For the purposes of these rules, where the terms "United States Coast Guard" and/or "Coast Guard" are used, the term "Washington state department of labor and industries, marine division" shall be substituted if the commercial ferry boat operates on Washington state waterways not subject to Coast Guard regulation or if the vessel itself is subject to department of labor and industries, marine division, rules and regulations rather than those of the United States Coast Guard.

(13) The term "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.

(14) The term "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.

The rules of this chapter do not apply to the following vessels or operations:

(1) Charter services;

(2) Passenger-carrying vessels that depart and return to the point of origin without stopping at another location within the state where passengers leave the vessel;

(3) Vessels operated by not-for-profit or governmental entities that are replicas of historical vessels or that are recognized by the United States Department of the Interior as national historical landmarks;

(4) Excursion services that:

(a) Originate and primarily operate at least six months per year in San Juan County waters and use vessels less than sixty-five feet in length with a United States Coast Guard certificate that limits them to forty-nine passengers or less;

(b) Do not depart from the point of origin on a regular published schedule;

(c) Do not operate between the same point of origin and the same intermediate stop more than four times in any month or more than fifteen times during any twelve-month period;

(d) Use vessels that do not return to the point of origin on the day of departure; or

(e) Operate vessels upon the waters of the Pend Oreille River, Pend Oreille County, Washington.

(1) Commercial ferries must comply with all pertinent federal and state laws, chapter 81.84 RCW, and the rules of this commission.

(2) No certificated commercial ferry shall provide service subject to the regulation of this commission without first having obtained from the commission a certificate declaring that public convenience and necessity require, or will require, that service.

(3) No company may operate any vessel providing excursion service subject to the regulation of this commission over the waters of this state without first having obtained a certificate of public convenience and necessity as provided in RCW 81.84.010.

(4) Any operator holding unrestricted commercial ferry authority may provide excursion service on an existing route without the need to obtain additional authority. The commission may restrict grants of commercial ferry authority to operations in excursion service.

(5) Any certificate of public convenience and necessity obtained by any false affidavit, statement or misrepresentation shall be subject to revocation and cancellation by this commission.

(1) Any person desiring to operate a commercial ferry which is required by the provisions of chapter 81.84 RCW to be certificated, to acquire a controlling interest in, or to acquire by transfer any certificate, shall file with the Washington utilities and transportation commission an application for a certificate of public convenience and necessity on a form furnished by the commission. Applications shall include, but are not limited to the following:

(a) Pro forma financial statement of operations;

(b) Ridership and revenue forecasts;

(c) The cost of service for the proposed operation;

(d) An estimate of the cost of the assets to be used in providing service;

(e) A statement of the total assets on hand of the applicant that will be expended on the proposed operation; and

(f) A statement of prior experience, if any, in providing commercial ferry service.

(2) Certificate holders wishing to issue stocks and stock certificates, or other evidences of interest or ownership, and bonds, notes, and other evidences of indebtedness and to create liens on their property in this state shall comply with chapter 81.08 RCW, as amended, and with all pertinent commission rules.

(3) Application fees:

(1) The commission shall send a notice of each application for certificated commercial ferry service and each application to operate vessels providing excursion service, with a description of the terms of that application, to all persons presently certificated to provide service; all present applicants for certificates to provide service; the department of transportation; affected cities and counties; and any other person who has requested, in writing, to receive such notices. Interested persons may file a protest with the commission within thirty days after service of the notice. The protest shall state the specific grounds for opposing the application and contain a concise statement of the interest of the protestant in the proceeding. A person who is eligible to file a protest and fails to do so may not participate further in the proceeding in any way, unless it can be demonstrated that failure to file a protest was due to an omission by the commission in providing proper notification of the pending application.

(2) If any person wishes to seek authority which overlaps, in whole or in part, with that sought in any pending application, it must apply for that authority within thirty days following mailing of the notice of filing of the initial application in order for the applications to be considered jointly. During the thirty-day period, pending applications will be on file and available for inspection in the commission's headquarters office in Olympia.

(3) The commission may consolidate overlapping pending applications, pursuant to WAC 480-07-320, for joint consideration.

(4) Overlapping applications which are not filed within thirty days of the initial application will not be jointly considered with the initial application and will not be decided until after the conclusion of proceedings resolving the initial application and any other application qualifying for joint consideration.

(5) The commission may consider and decide, on any schedule, portions of an overlapping application when:

(a) The portions to be heard do not overlap a prior pending application; and

(b) The overlapping portions may appropriately be severed from the portions to be heard.

(1) Application. An application to provide service otherwise forbidden by the ten-mile restriction in RCW 47.60.120 shall include a request for waiver of that restriction.

(2) Notice—Protests. The commission shall send a notice of each application for waiver of the ten-mile restriction pursuant to WAC 480-51-030. Interested persons shall have twenty days from the date of mailing of the notice in which to file a protest with the commission stating opposition to the waiver petition and application. Protests should set forth specifically the grounds upon which they are made and contain a concise statement of the interest of the protestant in the proceeding.

(3) Standards. In determining whether to grant or deny a waiver, the commission shall consider, but is not limited to, the impact of the waiver on:

(a) Transportation congestion mitigation;

(b) Air quality improvement; and

(c) The Washington state ferry system.

(4) Resolution—Hearing. The commission shall act upon a request for a waiver of the ten-mile restriction within ninety days after the conclusion of the hearing. The commission may in its discretion separate the request for a waiver of the ten-mile restriction from other issues in the application when necessary to comply with the statutory ninety-day deadline.

(5) Effective period of waiver.

(a) A waiver granted to an applicant or certificate holder under RCW 47.60.010(3) shall be effective for a period of five years from the date of grant of the waiver.

(b) Pursuant to RCW 47.60.010(3), the waiver shall automatically become permanent unless appealed to the commission, or unless reviewed by the commission upon its own motion, no later than thirty days after the fifth anniversary of the effective date of the waiver as set forth in (a) of this subsection. The commission will issue no notice of the expiration date of the five-year period. The burden of proof to show that the waiver should not become permanent shall be upon the party who files the appeal or upon the commission, if the review is on the commission's own motion. Persons who may appeal include the department of transportation, affected cities and counties, and any interested party. An interested party, for the purposes of this rule, means any party to the proceeding in which the application was granted, any person certificated to provide service possessing overlapping authority, and any applicant for overlapping authority.

(c) Upon receipt of an appeal of a waiver and the holder's answer, if any, the commission shall set the matter for adjudication. The commission may, in its discretion, on the request of a party, or on its own motion, order a brief adjudicative proceeding on the appeal. WAC 480-07-610 governs applications for and procedures in brief adjudicative proceedings.

(6) Certificates containing waiver. Certificates granted in conjunction with the grant of a waiver shall include the following proviso:

"Pursuant to RCW 47.60.010(3), the waiver of the ten-mile restriction granted in this certificate is effective until (DATE). This waiver shall become permanent if not appealed within thirty days after this date."

(1) The commission may issue temporary certificates for authority to provide service for a period not to exceed one hundred eighty days.

(2) The commission shall not issue a temporary certificate to operate on a route for which a certificate has been issued or for which an application is pending.

(3) The commission shall only issue temporary certificates upon finding that the issuance is due to an urgent and immediate need and is otherwise consistent with the public interest. In determining whether to grant the requested temporary certificate, the commission will consider evidence of the following factors:

(a) An immediate and urgent need for the requested service;

(b) Any available service capable of meeting the need;

(c) The fitness of the applicant; and

(d) Any other circumstance indicating that a grant of temporary authority is consistent with the public interest.

(4) An application for a temporary certificate shall be completed legibly on a form furnished by the commission, giving all information requested and accompanied by:

(a) The application fee;

(b) A copy of a certificate or letter from the United States Coast Guard certifying that any vessel to be used under that temporary certificate has been inspected by the United States Coast Guard and is safe and seaworthy for the intended operation;

(c) Evidence of proper insurance as required by WAC 480-51-070;

(d) Statements from potential customers, riders, shippers or interested parties demonstrating that there is an immediate and urgent need for the requested service.

(5) The commission shall send a notice of each temporary certificate granted, with a description of the temporary certificate's terms, to all persons presently certificated to provide service; all present applicants for certificates to provide service; the department of transportation; affected cities and counties; and any other person who has requested, in writing, to receive such notices. Interested persons may file a protest with the commission within twenty days after service of the notice. The protest shall state the specific grounds for opposing the application and contain a statement of the interest of the protestant in the proceeding.

(6) The commission may grant or deny the protest without hearing. The commission may, in its discretion, on the application of a party, or on its own motion, order a brief adjudicative proceeding on the protest. WAC 480-07-610 governs applications for and procedures in brief adjudicative proceedings.

(7) The commission may impose special terms and conditions in connection with the grant of any temporary certificate.

(8) If the holder of temporary authority files a valid application for parallel permanent certificated authority within thirty days after the grant of temporary authority, that temporary authority shall continue in force until the commission grants or denies the application for the permanent certificate authority, or until the temporary certificate is otherwise cancelled pursuant to law, whichever occurs first.

(1) Liability and property damage insurance or surety bond.

(a) Prior to the commission issuing a certificate, and prior to the commission issuing a registration to a common carrier ferry operating passenger-carrying vessels, each applicant shall file with the commission evidence of currently effective liability and property damage insurance or a surety bond, the form of which is set out below, written by a company authorized to write such insurance or bond in the state of Washington, covering each vessel to be used under the certificate or registration granted. Coverage shall be for not less than the following amounts:

(b) Evidence of insurance shall be submitted on either a certificate of insurance, filed in triplicate with the commission, or a written binder issued by an insurance agent or insurance company evidencing the coverage as required above. If a binder is submitted, it shall be effective for not longer than sixty days, during which time the operator must file the required certificate of insurance.

(c) Form of surety bond.

(2) Insurance, continuance of. Proper evidence of continued insurance or surety bond shall be filed with the commission not less than ten days prior to the termination date of coverage then on file so there is no question of continuous coverage as required by law.

(3) Insurance termination.

(a) All insurance policies issued under the requirements of chapter 81.84 RCW shall provide that the coverage shall continue in full force and effect unless and until cancelled by at least thirty days' written notice served on the insured and the Washington utilities and transportation commission by the insurance company. The thirty days' notice period runs from the date the notice is actually received by the commission. Exception: Binders may be cancelled on ten days' written notice.

(b) Notice of cancellation or expiration shall be submitted in duplicate and shall not be submitted more than sixty days before the intended termination date, except that binders may be cancelled by written notification from the insurance agency or insurance company on ten days' written notice.

(4) Involuntary suspension—Cancellation.

(a) Involuntary suspension. No certificate holder and no registered passenger-carrying common carrier may operate in this state without the required insurance. Any certificate holder or registered passenger-carrying common carrier who fails to maintain evidence that its insurance is in current force and effect shall have its certificate or registration suspended by operation of law beginning with the time of the failure.

(i) A person whose certificate or registration is suspended may secure reinstatement of the same by correcting conditions leading to suspension.

(ii) A certificate or registration holder may contest suspension by requesting a brief adjudication or an adjudication.

(iii) The suspension shall last until the cause of the suspension is cured and the certificate or registration is reinstated or until the certificate or registration is cancelled.

(b) Cancellation.

(i) The commission may cancel a certificate or registration for failure to demonstrate that the holder has corrected the conditions leading to suspension with the time defined in the order of suspension.

(ii) The commission will hold a hearing prior to canceling a certificate or registration, except when cancellation results from failure to correct causes of a suspension in which an adjudicative or brief adjudication was held or was available to the certificate or registration holder.

(5) All persons holding certificates on the effective date of this rule shall, within sixty days of the effective date, file evidence of proper insurance with the commission.

(1) No commercial ferry shall operate any vessel that has not been inspected by the United States Coast Guard and certified to be safe and seaworthy for its intended operation.

(2) Each commercial ferry shall maintain in its main office a copy of the most current certificate issued for each vessel operated.

(3) The commission may periodically require commercial ferry operators to provide proof that each vessel operated has been inspected and found to be safe and seaworthy. Such proof may be contained on the annual report form required by WAC 480-51-100.

(4) No commercial ferry shall augment its fleet with a vessel leased, borrowed, or obtained from another party unless the commercial ferry operator first obtains proof that the vessel has been inspected within the past twelve months and found to be safe and seaworthy for its intended purpose. A copy of the inspection certificate must be maintained in the commercial ferry operator's files for a period of not less than twelve months following use of such vessel.

(1) No person shall operate a common carrier ferry vessel without first having registered with the commission and filing a tariff in accordance with the provisions of WAC 480-51-080. Registration to be made on forms supplied by the commission. Operators of passenger-carrying common carrier ferry vessels must provide evidence of insurance as required by WAC 480-51-070.

(2) Any person who operates a common carrier ferry vessel shall be required to submit annual reports and regulatory fees in accordance with the provisions of WAC 480-51-100.

(3) Operators of common carrier ferry vessels shall maintain accounts in accordance with the provisions of WAC 480-51-110.

(4) Any person operating a common carrier ferry vessel on the date this rule is adopted must file a registration application within sixty days of the effective date of the rule.

(1) All commercial ferries shall file with the commission tariffs containing fair, just and reasonable rates governing the transportation services to be provided.

(a) Pursuant to Article 12, section 12 of the Washington Constitution and RCW 81.28.180 and 81.28.190, rates contained in commercial ferry tariffs must be nondiscriminatory and nonpreferential.

(b) Tariffs may provide for variations within a band of rates, and may provide for exceptions and conditions in defined circumstances.

(2) Operators of commercial ferries shall prepare, publish, file and reissue their tariffs in accordance with the provisions of the commission's Tariff Circular No. 6.

(3) Tariffs must be issued in the registered name of the operator and must show its certificate or registration number.

(4) Tariffs must contain a title page which identifies the name of the company; its business name, if any; its business address; its business telephone number; and the name, address and business telephone number of the issuing agent.

Each certificate holder, excluding launch services, shall publish and file with the commission, time schedules showing all service given under their certificate and the manner in which it is available, as follows:

(1) Time schedules shall be typewritten or printed on 8-1/2 x 11 inch paper.

(2) The title page of each time schedule must show the following (see sample time schedule in subsection (8) of this section):

(a) A consecutive number in the upper right hand corner, indicating the number of the current version of the time schedule (beginning with Number 1), and must show the number of the time schedule cancelled thereby, if any.

(b) The name of the certificate holder, approved trade name under which operation is conducted, and the number of the certificate.

(c) The termini or points between which the time schedule applies, briefly stated.

(d) A definite statement of the regular route or routes traversed including all intermediate stops and the names and locations of all docks and landings used along the route.

(e) The date when the time schedule is issued, posted and filed with the commission and the date when the time schedule is to become effective.

(f) The name, title and address (including both street address and mailing address, if different from street address) of the official issuing the time schedule.

(3) Time schedules must show (see sample time schedule in subsection (8) of this section):

(a) The time of Arrival and Departure at and from all Points Served.

(b) The Days upon which each trip will be given.

(c) The Distance between all points shown in the schedule.

(e) Any limitations of service contained in the certificate and any restriction or limitation of the service given at or between the points shown as served.

(4) At least one copy of each time schedule shall be posted on or before the date shown as the date of its issuance, in a conspicuous place, easily accessible for public inspection, at each dock, waiting room and regular stopping place on the route and on each vessel used.

(5) Two copies of each time schedule shall be filed with the commission at its Olympia headquarters on or before the date shown as the date of its issuance.

(6) Changes in the operation under a certificate which affect in any way the information or service shown in the time schedule then in effect must be made only after a new time schedule has been issued and been made effective as follows:

(a) A new time schedule must be issued, bearing the next consecutive number, and stating the number of the time schedule cancelled thereby as provided in subsection (2) of this section, as for example:

"Time Schedule No. 2

Time Schedule No. 1"

(b) Notice period required. Copies of the new time schedule shall be posted and filed, in accordance with subsections (3) and (4) of this section, at least fifteen days before the effective date thereof. Exception: If the sole change accomplished by a new time schedule is to increase the number of runs on an established route currently operated, and no change is otherwise made in existing schedules, the filing must be made with the commission not less than one full day before the effective date and advance notice to the public will not be required.

(c) After such fifteen days, the new time schedule will be considered in full force and effect, unless ordered withdrawn, modified or suspended.

(d) The commission may, prior to the effective date of a new time schedule, on its own motion or on the filing of a sufficient protest by any person or persons affected, order the time schedule withdrawn, modified or suspended.

(e) In case of actual emergency or when real merit is shown, the commission may, in its discretion, permit a time schedule to become effective on less than fifteen days notice.

(7) Time schedules as filed with the commission and posted for the information of the public must be adhered to.

(8) Sample time schedule:

[Statutory Authority: RCW 81.84.070, 1993 c 427, 1995 c 361 and RCW 80.01.040(4). WSR 95-22-001 (Order R-435, Docket No. TS-941485), § 480-51-090, filed 10/18/95, effective 11/18/95.]