Chapter 754 Oregon Laws 2003

AN ACT

SB 471

Relating to household goods; creating new provisions; amending ORS 823.103, 823.991, 825.005, 825.017, 825.180, 825.326, 825.328 and 825.950; and appropriating money.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 825.005 is amended to read:

825.005. As used in this chapter:

(1) “Carrier” or “motor carrier” means for-hire carrier or private carrier.

(2) “Cartage carrier” means any person who undertakes to transport any class of property by motor vehicle for compensation when the transportation is performed wholly within an incorporated city or a commercial zone adjacent to an incorporated city.

(3) “Certificate” means an authority issued to a for-hire carrier under ORS 825.110.

(4) “Combined weight” means the weight of the motor vehicle plus the weight of the maximum load which the applicant has declared such vehicle will carry. Any declared combined weight is subject to audit and approval by the Department of Transportation. The combined weight of motor buses or bus trailers is the light weight of the vehicle plus the weight of the maximum seating capacity including the driver’s seat estimated at 170 pounds per seat, exclusive of emergency seats, except that transit-type motor vehicles may use 150 pounds per seat in determining combined weight. In cases where a bus has a seating capacity which is not arranged for separate or individual seats, 18 lineal inches of such capacity shall be deemed the equivalent of a passenger seat.

(5) “Department” means the Department of Transportation.

(6) “Extreme miles” or “extreme mileage” means the total miles operated by a vehicle over the public highways, except the extra miles necessarily operated in traversing detours or temporary routes on account of road blockades in the state.

(7) “For-hire carrier” means:

(a) Any person who transports persons or property for hire or who publicly purports to be willing to transport persons or property for hire by motor vehicle; or

(b) Any person who leases, rents or otherwise provides a motor vehicle to the public and who in connection therewith in the regular course of business provides, procures or arranges for, directly, indirectly or by course of dealing, a driver or operator therefor.

(8) “Motor vehicle” means any self-propelled vehicle and any such vehicle in combination with any trailing units, used or physically capable of being used upon any public highway in this state in the transportation of persons or property, except vehicles operating wholly on fixed rails or tracks and electric trolley buses. “Motor vehicle” includes overdimension vehicles or vehicles permitted excessive weights pursuant to a special authorization issued by a city, county or the Department of Transportation.

(9) “Pack or load services” means services relating to the packing or loading of personal property that are performed:

(a) By a person that is in the business of performing such services;

(b) For compensation;

(c) For the purpose of moving the personal property; and

(d) By a person that does not directly or indirectly provide a motor vehicle for the movement of the property or act as an agent for a person that provides a motor vehicle for the movement of the property.

[(9)] (10) “Permit” means an authority issued to a carrier under ORS 825.102, 825.104, 825.106, 825.108 or 825.127.

[(10)] (11) “Private carrier” means any person who operates a motor vehicle over the public highways of this state for the purpose of transporting persons or property when the transportation is incidental to a primary business enterprise, other than transportation, in which such person is engaged.

[(11)] (12) “Privilege taxes” means the weight-mile tax and fees prescribed in this chapter.

[(12)] (13) “Property” includes, but is not limited to, permanent loads such as equipment, appliances, devices, or ballast that are attached to, carried on, or made a part of the vehicle and that are designed to serve some functional purpose.

[(13)] (14) “Public highway” means every street, alley, road, highway and thoroughfare in this state used by the public or dedicated or appropriated to public use.

[(14)] (15) “Safe for operation” means mechanical safety and compliance with rules regarding equipment and operation as are specified by law or by rule of the Department of Transportation.

[(15)] (16) “Transit-type motor vehicle” means any passenger-carrying vehicle that does not have a separate space for transporting baggage or express.

[(16)] (17) “Transporter” has the meaning given that term in ORS 466.005.

SECTION 2. Sections 3 to 5 of this 2003 Act are added to and made a part of ORS chapter 825.

SECTION 3. (1) Any person that offers to perform or performs pack or load services, including but not limited to a for-hire carrier of household goods issued a certificate under ORS 825.110 that performs pack or load services, must register annually with the Department of Transportation on a form provided by the department and according to rules adopted by the department.

(2) The department shall establish by rule an annual registration fee, not to exceed $100. The department may establish by rule the dates for annual renewal of registration.

(3)(a) Upon receipt of information required by the registration form, proof of compliance with section 4 of this 2003 Act, the registration fee under subsection (2) of this section and the initial application fee under ORS 825.180, the department shall issue proof of registration to the person offering to perform or performing the pack or load services.

(b) Upon receipt of information required by the registration form, proof of compliance with section 4 of this 2003 Act, and the registration fee under subsection (2) of this section, the department shall issue proof of renewal of registration to the person offering to perform or performing the pack or load services.

(4) A person may not perform or purport to perform pack or load services unless the person has registered in accordance with this section and with any rules adopted by the department. Violation of this subsection is subject to penalties as provided in ORS 825.950.

SECTION 4. (1) The Department of Transportation may not issue registration for pack or load services under section 3 of this 2003 Act unless the person offering the services has in effect a policy of liability and property damage insurance issued by an insurer authorized to transact business in this state that accords with policies, forms and manuals on file with the Director of the Department of Consumer and Business Services.

(2) The Department of Transportation may prescribe by rule minimum limits for the insurance required by subsection (1) of this section, as well as any other terms, conditions and provisions of the insurance that the department considers necessary for the indemnification of the customers of the person providing the pack or load services and for the protection of the public.

SECTION 5. (1) The Department of Transportation may impose an annual fee in an amount determined under subsection (2) of this section on each for-hire carrier of household goods to defray the costs to the department of regulating persons performing pack or load services. The department shall establish the due date of the fee by rule and shall give notice to each for-hire carrier of household goods at least 15 days prior to the due date.

(2) The fee imposed under this section on each carrier may not exceed 0.1 percent of the carrier’s gross operating revenue derived from transportation of household goods within this state in the prior calendar year, except that the fee may not be less than $100. A for-hire carrier of household goods in its first year of operation shall pay a fee of $100.

(3) The fee imposed under this section is in addition to any other fee prescribed in this chapter for for-hire carriers of household goods.

(4) A for-hire carrier of household goods shall submit with the fee required by this section a statement verified by the carrier showing the gross operating revenues of the carrier derived from transportation of household goods within this state in the prior calendar year. The department shall prescribe the form for the statement and the information that must be included and may audit the forms at any time. The department may refund any overpayment of the fee in the same manner as the department refunds other moneys collected from motor carriers.

(5) A for-hire carrier of household goods that fails to pay the fee required by this section by the due date shall pay a penalty of two percent of the amount of the fee for each month or fraction of a month that the fee is overdue. The penalty is in addition to the amount of the fee. If the department determines that action is necessary to collect unpaid fees or penalties, the department may bring such action in a court of competent jurisdiction and is entitled to recover all costs of and disbursements for the action.

SECTION 6. ORS 825.017 is amended to read:

825.017. Except as provided in ORS 825.026, this chapter does not apply to the persons or vehicles described in this section. The exemption under this section applies to the following persons and vehicles:

(1) Vehicles being used by, or under contract with, any school board, district or person responsible for the administration of elementary or secondary school activities, and engaged exclusively in transporting students or combination of students and other persons to or from school or authorized school activities, or those activities sponsored by the State Board of Higher Education. This exemption shall not be affected by the charging of a fee to cover the costs of the transportation.

(2) Vehicles being used in a taxicab operation if the vehicle:

(a) Is a passenger vehicle with a passenger seating capacity which does not exceed five;

(b) Carries passengers for hire where the destination and route traveled may be controlled by a passenger and the fare is calculated on the basis of any combination of an initial fee, distance traveled or waiting time; and

(3) Vehicles being used for the transportation of property by private carrier by means of a single vehicle or combination of vehicles with a combined weight that does not exceed 8,000 pounds.

(4) Vehicles being used in operating implements of husbandry.

(5) Vehicles being used as a hearse or ambulance.

(6) Vehicles being used over any private road or thoroughfare.

(7) Vehicles being used on any road, thoroughfare or property, other than a state highway, county road or city street, for the removal of forest products as defined in ORS 321.005, or the product of forest products converted to a form other than logs at or near the harvesting site, or when used for the construction or maintenance of the road, thoroughfare or property, pursuant to a written agreement or permit authorizing the use, construction or maintenance of the road, thoroughfare or property, with:

(a) An agency of the United States;

(b) The State Board of Forestry;

(d) A licensee of an agency named in this subsection.

(8) Vehicles being used on any county road for the removal of forest products as defined in ORS 321.005, or the products of forest products converted to a form other than logs at or near the harvesting site, if:

(a) The use is pursuant to a written agreement entered into with the State Board of Forestry, the State Forester or an agency of the United States, authorizing the owner of the motor vehicle to use the road and requiring the owner to pay for or to perform the construction or maintenance of the county road, including any operator of a motor vehicle retained to transport logs, poles and piling for the owners who are exempt under this section;

(b) The board, officer or agency that entered into the agreement or granted the permit, by contract with the county court or board of county commissioners, has assumed the responsibility for the construction or maintenance of the county road; and

(9) Vehicles being used in the transportation of persons for hire if the operation:

(a) Is performed by a nonprofit entity;

(b) Is not in competition with a regular route full-service scheduled carrier of persons that is subject to the provisions of this chapter or a service provided by a mass transit district formed under ORS chapter 267;

(d) Is providing service with regularity under a plan of operation within a radius of 40 air miles of the designated point of origin; and

(e) Is approved by the Department of Transportation as complying with paragraphs (a) to (d) of this subsection.

(10) Vehicles being used in transporting disabled persons, with or without their supervisors or assistants, to or from rehabilitation facilities or child care services if the motor vehicle is a passenger motor vehicle with a seating capacity of not more than 12 passengers. The exemption provided by this subsection applies only when the motor vehicle is operated by or under contract with any person responsible for the administration of rehabilitation facilities as defined in ORS 344.710 to 344.730 or child care services provided by a facility licensed under ORS 657A.030 and 657A.250 to 657A.450.

(11) Vehicles owned or operated by the United States or by any governmental jurisdiction within the United States except when owned or operated as a carrier for hire.

(12) Vehicles owned or operated by a mass transit district created under ORS chapter 267.

(13) Vehicles owned or operated by persons when regularly operating over a rural or star route and engaged exclusively in the transportation of United States mail under contract with, or when the person is an employee of, the Postal Service. The person may transport additional property for consideration in the vehicle over the mail route not to exceed 200 pounds in weight for any one delivery.

(14) Vehicles owned or operated by, or under contract with, a person responsible for the construction or reconstruction of a highway under contract with the Department of Transportation or with an agency of the United States when operated within the immediate construction project as described in the governmental agency contract during the construction period.

(15) Vehicles owned or operated by, or under contract with, a charitable organization when exclusively engaged in performing transportation, either one way or round trip, necessary to the operation of the charitable organization. As used in this subsection, “charitable organization” means an organization that has no capital stock and no provision for making dividends or profits, but derives its funds principally from public and private charity and holds them in trust for the promotion of the welfare of others and not for profit. Any organization claiming an exemption under this subsection shall file an affidavit with the department stating that it is organized and operated in accordance with the requirements of this subsection.

[(16) A person who provides services relating to the packing or movement of personal property if the person does not directly or indirectly provide a motor vehicle for the movement of the property and if the person does not act as an agent for any person who does provide a motor vehicle for movement of the property.]

[(17)] (16) Vehicles owned or operated by a person prior to the time the vehicle is placed in commercial operation.

[(18)] (17) Vehicles with a maximum speed that does not exceed 35 miles per hour that are designed for off-road use and that are operated on the public highways in any one calendar year a number of miles that does not exceed 15 percent of the total number of miles the vehicle is operated for that calendar year.

[(19)] (18) Passenger vehicles with a passenger seating capacity that does not exceed five when used in the transportation of new telephone books.

[(20)] (19) Vehicles being used for the transportation of persons by private carrier by means of a single vehicle or combination of vehicles with a combined weight that does not exceed 12,000 pounds.

[(21)] (20) A vehicle that is used in a limousine service operation in which the destination and route traveled may be controlled by the passenger and the fare is calculated on the basis of any combination of initial fee, distance traveled and waiting time if the vehicle:

(a) Is driven by a licensed chauffeur;

(b) Is a passenger vehicle with a passenger seating capacity that does not exceed eight;

(d) Operates on an irregular route basis.

[(22)] (21) A person transporting the person’s own commercial fishing boat if the combined weight of the vehicle, trailer and boat is 15,000 pounds or less.

[(23)] (22) Vehicles being used for the purposes of forest protection and fire suppression if the vehicles are necessary in order to comply with ORS 477.615 or 477.650 or a similar federal statute. The exemption under this subsection also applies to the vehicles described being moved to or from the work area.

[(24)] (23) Fire trucks and rescue vehicles that are designated as emergency vehicles by the Department of Transportation under ORS 801.260, while involved in emergency and related operations.

SECTION 7. ORS 825.180 is amended to read:

825.180. (1) In addition to the other fees prescribed in this chapter:

(a) A person applying for a certificate under ORS 825.110 shall pay an application fee of $300.

(b) A person applying for a permit under ORS 825.127 shall pay a fee of $50.

(d) A person applying for a change in a permit shall pay a fee of $50.

(e) A person applying for transfer of a certificate shall pay a fee of $300.

(f) A person registering under section 3 of this 2003 Act for the first time shall pay an initial application fee of $200.

[(f)] (g) A person making an application under any provision of this chapter not specified in this subsection shall pay a fee of $150 if the matter is set for a hearing.

(2) The Department of Transportation may refund the fees collected under this section if the applicant parties or their duly authorized representatives make written request therefor, if:

(a) Request for withdrawal of the application was received by the department no later than five days before the hearing date or if no hearing is required, such request must have been received prior to issuance of authority; and

(b) The department finds that:

(A) Applicant is not eligible to file application;

(B) Certificate authority is not needed for the service intended;

(D) Transferor withdraws consent for transfer of certificate.

(3) When the department fixes a time and place for a hearing as required by ORS 825.110 (1), if any person who protested fails to appear at the hearing and failed to withdraw the protest at least five days before the date of the hearing, the department may require such person to pay a sum equal to the application fee required by this section.

SECTION 8. ORS 825.326 is amended to read:

825.326. (1) Except as provided in subsection (2) of this section, all fees, taxes, charges and other sums collected by the Department of Transportation under this chapter shall be paid into the State Treasury and shall be [by the State Treasurer] placed to the credit of an account, separate and distinct from the General Fund, to be known as the Motor Carrier Account. Interest earned by the account shall be credited to the account.

(2) Notwithstanding ORS 823.991, all fees collected under ORS 825.180 (1)(f) and sections 3 and 5 of this 2003 Act, all penalties collected under ORS 825.950 for violation of section 3 of this 2003 Act and all penalties for transporting household goods without a certificate shall be paid into the State Treasury and shall be placed to the credit of an account, separate and distinct from the General Fund, to be known as the Consumer Protection Household Moves Account. Interest earned by the account shall be credited to the account. Moneys in the account are continuously appropriated to the department for purposes specified in subsection (5) of this section.

[(2)] (3) The department may purchase the necessary supplies and equipment and provide for all necessary and incidental expenses incurred by the department in administering and enforcing this chapter.

[(3)] (4) All claims, duly approved by the department, [which] that have been incurred in pursuance of law, shall be paid by warrants drawn in the manner provided by law, payable out of the Motor Carrier Account or the Consumer Protection Household Moves Account.

(5) Moneys in the Consumer Protection Household Moves Account shall be used by the department exclusively for administration and enforcement of provisions of this chapter relating to persons that provide pack or load services.

SECTION 9. ORS 825.328 is amended to read:

825.328. On the last day of each month the Department of Transportation shall identify the balance of all money in excess of sufficient working capital to accommodate the department’s operating needs remaining in the Motor Carrier Account as of the close of business on the 25th day of such month, after deducting sums disbursed by warrants drawn on the Motor Carrier Account under ORS 825.326. The department shall thereupon transfer the balance to the State Highway Fund.

SECTION 10. ORS 825.950 is amended to read:

825.950. (1)(a) Except as otherwise provided in paragraph (b) of this subsection, in addition to all other penalties provided by law, every person who violates or who procures, aids or abets in the violation of any provision of this chapter, ORS chapter 818 or 826 or any order, rule or decision of the Department of Transportation shall incur a civil penalty of not more than $100 for every such violation.

(b) In addition to all other penalties provided by law, every person who violates or who procures, aids or abets in the violation of ORS 825.100 or section 3 of this 2003 Act shall incur a civil penalty of not more than $500 for every such violation.

(2) Each [such] violation [shall be] described in this section is a separate offense and in case of a continuing violation every day’s continuance is a separate violation. Every act of commission or omission which procures, aids or abets in the violation is a violation under this section and subject to the civil penalty provided in this section.

(3) Civil penalties under this section shall be imposed in the manner provided in ORS 183.090.

(4) The Department of Transportation may reduce any civil penalty provided for in this section on such terms as the department considers proper if:

(a) The defendant admits the violations alleged in the notice and makes timely request for reduction of the penalty; or

(b) The defendant submits to the department a written request for reduction of the penalty within 15 days from the date the penalty order is served.

(5) If the amount of such penalty is not paid to the department, the Attorney General, at the request of the department, shall bring an action in the name of the State of Oregon in the Circuit Court of Marion County to recover such penalty. The action shall not be commenced until after the time has expired for an appeal from the findings, conclusions and order of the department. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise provided in this chapter.

(6) Any motor carrier of persons or of household goods found knowingly to have assessed charges for transportation service less than published in its tariffs or written contracts on file with the department may be directed to collect the undercharges from the persons liable therefor and to remit such undercharges to the department in addition to any monetary penalties imposed against the carrier for charging less than the tariff or contract prescribes.

(7) Any motor carrier of persons or of household goods found to have assessed charges for transportation service more than the rates which have been legally filed with and prescribed by the department shall refund the overcharges to the persons from whom collected. If the carrier is unable to do so, the carrier may be required to remit such overcharges to the department in addition to any monetary penalties imposed against the carrier for charging more than the applicable tariff or contract prescribes.

SECTION 11. ORS 823.991 is amended to read:

823.991. (1) Any motor carrier or railroad that fails to comply with an order or subpoena issued pursuant to ORS 823.025 shall pay a civil penalty, for each day it so fails, of not less than $50 nor more than $500.

(2) Except where a penalty is otherwise provided by law, any motor carrier or railroad shall pay a civil penalty of not less than $100 nor more than $10,000 for each time that the motor carrier or railroad:

(a) Violates any statute regarding motor carriers or railroads, as appropriate, administered by the Department of Transportation;

(b) Does any act prohibited, or fails to perform any duty enjoined upon the motor carrier or railroad;

(d) Fails to obey any judgment or decree made by any court upon the application of the department.

(3) Violation of ORS 823.029 is punishable after issuance of a final order by the department, by a civil penalty of not less than $1,000 for each offense. A penalty of not less than $500 nor more than $1,000 shall be recovered from the motor carrier or railroad for each such offense when such officer, agent or employee acted in obedience to the direction, instruction or request of the motor carrier or railroad, or any general officer thereof.

(4) Violation of ORS 823.029 is a Class A violation.

(5) Violation of ORS 823.051 is punishable, upon conviction, by a fine of not more than $100 or imprisonment for not more than 30 days, or both. Any motor carrier or railroad that knowingly permits the violation of ORS 823.051 shall forfeit, upon conviction, not more than $1,000 for each offense.

(6) In construing and enforcing this section, the act, omission or failure of any officer, agent or other person acting for or employed by any motor carrier or railroad shall in every case be deemed to be the act, omission or failure of such motor carrier or railroad. With respect to any violation of any statute administered by the department regarding motor carriers or railroads, any penalty provision applying to such a violation by a motor carrier or railroad shall apply to such a violation by any other person.

(7) Except as provided in ORS 824.019 and 825.326, and except [and] when provided by law that a penalty, fine, forfeiture or other sum be paid to the aggrieved party, all penalties, fines or forfeitures collected from persons subject to the regulatory authority of the department under ORS chapters 823, 824, 825 and 826 shall be paid into the General Fund and credited to the Motor Carrier Account if collected from a motor carrier and to the Railroad Fund created under ORS 824.014 (1) if collected from a railroad.

(8) Violation of ORS 823.105 is punishable, after issuance of a final order by the department, by a civil penalty of not more than $5,000 for each offense.

(9) Violation of ORS 823.105 is a violation punishable by a fine of not more than $5,000 for each offense.

(10) Civil penalties under this section shall be imposed in the manner provided by ORS 183.090.

SECTION 12. ORS 823.103 is amended to read:

823.103. [No] A for-hire carrier, railroad or transportation company referred to in ORS 823.101 [shall] may not provide by rule, contract, regulation or otherwise a [shorter] period for filing claims described in ORS 823.101 shorter than the following:

(1) Nine months after delivery of property or [nine months] after reasonable time for delivery has elapsed for filing of claims in writing, except that if the carrier is a for-hire carrier of household goods, three months.

(2) Two years for the institution of suits. The period for institution of suits shall be computed from the day when notice is given by the carrier to the claimant that the carrier has disallowed all or any part of the claim specified in the notice.

Approved by the Governor September 17, 2003

Filed in the office of Secretary of State September 18, 2003

Effective date January 1, 2004

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