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State
Oregon Regulations
CHAP 856 DEPARTMENT OF TRANSPORTATION, BOARD OF MARITIME PILOTS DIVISION 30 RATEMAKING PROCEDURES






The Oregon Administrative Rules contain OARs filed through July 14, 2006

DEPARTMENT OF TRANSPORTATION, BOARD OF MARITIME PILOTS

DIVISION 30

RATEMAKING PROCEDURES

856-030-0000

Ratemaking -- Substantive Elements

The Board shall for each pilotage ground establish a rate structure which provides for efficient, economical, and competent pilotage services and fair compensation for pilotage services and expenses:

(1) In determining the number of pilot positions needed and fair compensation for services and expenses, the Board shall consider:

(a) The amount of activity, including number of vessels, number of pilot assignments, size of vessels by net tonnage and length, and draft;

(b) Any change in the amount of activity since the last rate order;

(c) The public interest in prompt and efficient service;

(d) The professional skills and experience required of a pilot and the difficulty and inconvenience of providing the service, including time necessary to perform the service;

(e) Evidence of compensation for comparable maritime professions, including other pilotage associations;

(f) Total gross and net income for the pilots' group since the last rate order, or as directed by the Board, including sources of income by tariff category; and

(g) Individual amounts paid to pilots since the last rate order, or as directed by the Board, which may be shown as both gross and adjusted gross income, as reported for tax purposes.

(2) In determining compensation for expenses the Board shall consider evidence of appropriate expenses related to the provision of pilotage services as shown by records of the pilots' group, and verified by an independent audit.

(3) In receiving evidence on any financial or economic issue, the Board or its hearings officer may require parties to submit independently audited or other financial records in order to hold all parties to a comparable standard of proof.

Stat. Auth.: ORS 776

Stats. Implemented: ORS 776.115

Hist.: MP 2-1983, f. & ef. 12-15-83; MP 3-1988, f. & cert. ef. 11-9-88; BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0001

Capital Improvement Planning

(1) A pilot organization that intends to seek funding through pilotage rates at the next available ratemaking opportunity for reimbursement of the cost of a proposed major capital improvement is encouraged to notify the Board as soon as practicable. A "major capital improvement" is a change in an asset used for or in support of transportation, offices, accommodations, computing or communications that, if funded, would require an increase in revenue produced by rates of five (5) percent or more in the next rate case.

(2) If a pilot organization notifies the Board of a proposed major capital improvement, the Board shall make time on its agenda for one or more of its regularly scheduled meetings for the presentation of information by the pilot organization and discussion of the proposed major capital improvement. The Board may, in addition, appoint a subcommittee of its members to meet with the organization of pilots and other interested parties to evaluate the proposed major capital improvement.

(3) A pilot organization choosing not to utilize the opportunity for Board planning participation provided by this section shall, when filing its pre-petition notice as required by section 856-030-0005, explain its reasons for not doing so.

(4) Major capital improvement expenses shall be submitted to the process provided by this section unless the proponent shows that compliance was prevented by reasons beyond its control and which the proponent could not have reasonably anticipated, or other circumstances make exclusion of the request for major capital improvement funding unjust.

Stat. Auth.: ORS 776

Stats. Implemented: ORS 776.115

Hist.: BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0002

Pre-Petition Notice and Dispute Resolution Process

(1) Any party intending to request a change in pilotage rates must, at least 90 days prior to petitioning the Board, file a notice of intent to petition with the Board, with a copy served on each pilot association, any association representing the interests of vessel owners or operators and any other party that participated in the most recent past rate proceedings. The notice shall contain an explanation of the proposed change, including a description of each new cost item not previously approved by the Board in a rate proceeding, any increase in a cost item previously approved by the Board where the increase is greater than five (5) percent over the amount expended during the prior calendar year, and any requested change in pilot compensation and benefits.

(2) Within 20 days after receipt of the first-filed notice of intent to petition, any other pilot association, any association representing the interests of vessel owners or operators, any other party that participated in the most recent past rate proceedings, shall file their response to the notice, including a description of any intended opposition, or notice of intent to petition for a change on another pilotage ground.

(3) Upon receipt of a notice of intent to petition pursuant to paragraph (1) above, the Board's members representing the public shall be formed as a rate subcommittee.

(4) The Board's rate subcommittee shall, within 45 days of the first filing of a notice of intent to petition, hold a meeting with the party filing the notice and with all respondents thereto. The purpose of the meeting shall be to clarify the issues and begin exploration of possible means of narrowing and simplifying the issues. The rate subcommittee shall encourage the interested parties to utilize mediation or other alternative dispute resolution processes to narrow and simplify issues as much as possible.

(5) Prior to filing of a petition, the rate subcommittee may convene or participate in such additional meetings with interested parties as it deems in the best interests of the Board and the public. The rate subcommittee may, if requested by the interested parties, participate in any mediation or other alternative dispute resolution process that is arranged by the interested parties.

Stat. Auth.: ORS 776, 183

Stats. Implemented: ORS 776.115, ORS 183.415

Hist.: BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0010

Ratemaking -- Petitions, Filing and Response

When the Board is petitioned to act under ORS 776.115(5) or acts upon its own motion, the following procedure shall be followed:

(1) An interested person may petition the Board requesting a hearing. The petition is deemed filed when received by the Board at its office. Before the petition can be accepted as filed, the person must deposit $1,000 with the Board to defray the expenses of the hearing. Deposits are also required with petitions filed for other pilotage grounds as provided in subsection (3)(a) of this rule.

(2) The petition must be in writing, signed by petitioner or petitioner's agent and containing a detailed statement of:

(a) The action requested of the Board, with a detailed listing of all cost items and any requested changes in compensation and benefits;

(b) Enough detailed facts to show petitioner's interest in the factors shown in ORS 776.115(5)(b) and in OAR 856-030-0000 if applicable;

(c) The extent to which the parties have been able to narrow or simplify issues pursuant to OAR 856-030-0003 prior to the petition being filed.

(d) The name and address of petitioner and of any other persons petitioner knows who may be interested in the proceeding; and a statement as to whether a copy of the petition has been served upon them.

(3) Upon receipt of the petition, the Board will mail a true copy of the petition and a copy of any applicable rules of practice to all parties named in the petition unless they have been previously served by petitioner. The Board will include in its mailing those who the Board believes have interest in the proceeding, including pilots' groups and owner/operator associations on all pilotage grounds. The mailing will be by certified or registered mail and will be deemed served on the date of mailing to the last known address of the person being served:

(a) The Board will advise all parties that they have 30 days to file with the Board and the petitioner a petition for another ground, a counter-petition or answer, or other applicable pleading or response. For good cause shown, the Board may extend the time for filing responses for a period not to exceed an additional 20 days. If representatives of pilotage grounds other than those of petitioner wish a rate change, they must file a petition or answer within the time period set by this;

(b) The responses filed by interested parties, whether counter-petitions or responses, must address the factors in ORS 776.115(5)(b) and in OAR 856-030-0000 and all related issues raised in the petition.

(4)(a) Within 45 days of the filing of a petition under this rule, the Board shall appoint a hearings officer and delegate to the hearings officer its powers to subpoena, swear witnesses and otherwise conduct a contested case hearing as required under ORS Chapters 183 and 776;

(b) The hearings officer will set the hearing for a date and time most convenient to the parties concerned, but not later than 90 days after the filing of the petition.

(5) Pre-hearing Conferences, Exhibits and Testimony:

(a) In order to make a more effective use of hearing time in formal proceedings and to expedite the orderly conduct and disposition of the proceedings, the hearings officer shall arrange for conferences between the parties to consider:

(A) Simplifying and clarifying the issues and eliminating irrelevant or immaterial issues;

(B) Obtaining stipulations as to facts, authenticity of documents, admissibility of evidence, and other matters;

(C) Such other aids to the orderly conduct and disposition of the proceeding as may be possible.

(b) Conferences may be called before the hearing, or the hearing may be recessed for a conference. The presiding officer shall state on the record the results of such a conference;

(c) Exhibits and testimony. The hearings officer shall require the parties to file proposed written testimony and exhibits with the Board before the date set for hearing, reserving rights of cross-examination. Any objections to the pre-filed testimony and exhibits shall be resolved prior to the hearing.

(6) Intervention. Any person with a material interest may by written petition seek permission to intervene in any proceeding before the Board. The petition shall contain:

(a) The name and address of the party intervening and the party's attorney, if any;

(b) Sufficient facts to show clearly the interest of the proposed intervention and how any action taken by the Board will affect that interest;

(c) The position of the party in the proceeding. Intervention shall not broaden the issues in the proceeding nor shall intervention delay the hearing or unfairly prejudice the other parties.

(7) Notwithstanding the provisions of this section, the Board shall, absent emergency circumstances, refuse to accept any petition to change pilotage rates for any pilotage ground if less than 16 months have elapsed since the effective date of the last rate order for that or any other pilotage ground. The burden shall be on a petitioner wishing to shorten this period to demonstrate emergency circumstances affecting the public interest. In the event the Board determines there are emergency circumstances affecting the public interest that require an immediate rate proceeding, the Board shall issue an order setting forth its justifications for accepting the petition. The order shall be mailed to the petitioner and to other persons upon whom a copy of the petition was served.

Stat. Auth.: ORS 776

Stats. Implemented: ORS 183.413-183.470, 776.115, 776.125 & 776.135

Hist.: PC 6, f. 6-2-72, ef. 6-15-72; MP 2-1983, f. & ef. 12-15-83; MP 2-1984, f. & ef. 10-4-84; Renumbered from 856-020-0115; MP 3-1988, f. & cert. ef. 11-9-88; MP 1-1996, f. & cert. ef. 5-9-96; BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0015

Conduct of the Hearing

(1) The hearing shall be conducted in accordance with ORS 183.425 to 183.464 and the Attorney General's Model Rules.

(2) If the hearings officer believes that additional evidence or written argument is necessary to complete the record, the officer may allow additional time for the presentation of further evidence on specific issues designated by the officer or for submission of written arguments. No further evidence or argument shall be received without notice to all parties or later than 10 days after the oral hearing. Any party presenting such evidence or argument shall provide copies to all parties.

(3) The hearings officer shall submit the officer's proposed order to the Board and to all parties within 30 days after the close of the hearing.

Stat. Auth.: ORS 776
Stats. Implemented: ORS 183.425 & ORS 776.115
Hist.: PC 6, f. 6-2-72, ef. 6-15-72; PC 9, f. & ef. 11-12-76; MP 2-1983, f. & ef. 12-15-83; MP 2-1984, f. & ef. 10-4-84; Renumbered from 856-020-0120; MP 1-1996, f. & cert. ef. 5-9-96; BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0020

Proposed Orders

(1) In any case heard under Division 030, Ratemaking Procedures, the hearings officer shall prepare and serve on all members of the Board, and on all parties to the hearing, a proposed order which includes recommended findings of fact and conclusions of law.

(2) The parties affected by the order shall have 15 days from the date of the proposed order to present their objections or alternative proposed orders to the Board.

Stat. Auth.: ORS 776
Stats. Implemented: ORS 183.464 & ORS 776.115
Hist.: PC 6, f. 6-2-72, ef. 6-15-72; MP 2-1983, f. & ef. 12-15-83; MP 2-1984, f. & ef. 10-4-84; Renumbered from 856-020-0125; MP 3-1988, f. & cert. ef. 11-9-88; BMP 3-2003, f. & cert. ef. 5-23-03

856-030-0025

Final Orders

(1) Every final order entered in a proceeding under Division 30, Ratemaking Procedures, shall be in writing and shall be accompanied by findings of fact and conclusions of law, and by a citation of the statutes under which the order may be appealed.

(2) The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the order.

(3) The Board shall adopt the final order at its next or second meeting after the time for response has run. On a proceeding held under OAR 856-030-0010, the final order shall be adopted within 240 days of the date of the filing of a valid petition and deposit of the required sum of money, and shall be effective on the date adopted or the second anniversary date of the previous rate order, whichever is later.

(4) The Board shall determine the costs of the proceedings and assess such costs equitably among the parties involved as part of the final order.

Stat. Auth.: ORS 776
Stats. Implemented: ORS 183.470 & ORS 776.115
Hist.: PC 6, f. 6-2-72, ef. 6-15-72; MP 2-1983, f. & ef. 12-15-83; MP 2-1984, f. & ef. 10-4-84; Renumbered from 856-020-0130.

856-030-0030

Notification of Orders

The Board shall deliver or mail a copy of the final order and accompanying findings and conclusions to each party to the proceeding or, if applicable, to a party's attorney of record.

Stat. Auth.: ORS 776
Stats. Implemented: ORS 183.470
Hist.: PC 6, f. 6-2-72, ef. 6-15-72; MP 2-1983, f. & ef. 12-15-83; MP 2-1984, f. & ef. 10-4-84; Renumbered from 856-020-0135.

856-030-0035

Pilotage Fee Waiver

Notwithstanding the terms of any applicable rate order, the Board may, in its discretion and upon the application of any pilot or pilots, permit the requesting pilot or pilots to waive all or part of any pilotage fees that would otherwise be due from a vessel, provided that:

(1) The waiver is sought for a noncommercial vessel.

(2) The application is in writing; is made in advance of pilotage services being rendered; and states the nature of the vessel and the reasons why the waiver should be granted.

(3) The Board may grant a waiver only upon a finding that it would be in the public interest to do so.

Stat. Auth.: ORS 776
Stats. Implemented: ORS 776.115(7)
Hist.: MP 1-1994(Temp), f. 7-29-94, cert. ef. 8-1-94; MP 1-1995, f. & cert. ef. 1-13-95


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