Chapter 438 Oregon Laws 2005

AN ACT

SB 579

Relating to persons required to register with the State Marine Board; creating new provisions; and amending ORS 704.020, 704.030, 704.900 and 704.990.

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

SECTION 1. ORS 704.020 is amended to read:

704.020. (1) Any person who acts, or who offers to act, as an outfitter and guide must first register with the State Marine Board. Each registration shall be submitted annually on a form provided by the board and shall include the following information:

(a) The name, residence address, and residence telephone number of the person providing outfitting and guiding services, and all business names, addresses and telephone numbers under which outfitting and guiding services are provided.

(b) If the outfitting and guiding services are to be performed in the business name of an individual, proof of possession of a current certificate issued to the individual:

(A) By the American Red Cross upon completion of its multimedia course; or

(B) Upon completion of any equivalent medical or American Red Cross training course approved by the board.

(c) If the outfitting and guiding services are to be performed in the business name of a person other than an individual, the outfitter and guide must provide the names of all employees, agents and parties in interest who physically provide, or who directly assist in physically providing, outfitting and guiding services in Oregon, together with the affidavit of the outfitter and guide that each such employee, agent or party in interest possesses:

(A) A current certificate issued to the employee, agent or party in interest:

(i) By the American Red Cross upon completion of its multimedia course; or

(ii) Upon completion of any equivalent medical or American Red Cross training course approved by the board.

(B) A valid United States Coast Guard vessel operator license if operating a motorboat on navigable waters of the United States.

(d) A description of:

(A) The outfitting and guiding services, and any equipment, supplies, livestock and materials provided by the outfitter and guide;

(B) The geographic area in which the outfitter and guide provides the outfitting and guiding services, and any equipment, supplies, livestock and materials; and

(C) The experience of the outfitter and guide in providing the outfitting and guiding services, and equipment, supplies, livestock and materials.

(e) Proof that the outfitter and guide has liability insurance covering occurrences by the outfitter and guide, and the employees of the outfitter and guide, which result in bodily injury or property damage. Such insurance shall be not less than $300,000 combined single limit per occurrence general liability coverage.

(f) Certification by the outfitter and guide that the outfitter and guide will maintain the insurance required by paragraph (e) of this subsection continuously in full force and effect for a period of not less than one year from the date the certificate of registration described in this section is issued by the board.

(g) The affidavit of the outfitter and guide stating that for a period of not less than 24 months immediately prior to making the registration application the outfitter and guide and each person who provides or assists in directly providing outfitting and guiding services:

(A) Have not been convicted of:

(i) Any criminal offense or violation under this chapter or ORS chapter 477, 496, 497, 498, 501, 506, 508, 509 or 511 or any rule adopted pursuant thereto; or

(ii) Any violation of the wildlife laws which occurred while acting as an outfitter and guide and which resulted in court ordered revocation of the hunting or fishing license of the outfitter and guide;

(B) Have not had an outfitting and guiding license, permit or certificate revoked, suspended or canceled by another state or by an agency of the government of the United States;

(C) Have not been denied the right to apply for an outfitting and guiding license, permit or certificate by another state or by an agency of the government of the United States; and

(D) Have not been convicted of guiding without registration as required by this subsection.

[(2)(a)] (2) In addition to the requirements of subsection (1) of this section, a person who acts or offers to act as an outfitter and guide using boats that are under the direct operation of an outfitter and guide or an employee of an outfitter and guide to carry passengers on the waters of this state shall submit proof:

[(A)] (a) [Shall submit proof] That the outfitter and guide possesses a valid United States Coast Guard vessel operator license if operating a motorboat on navigable waters of the United States; and

[(B)] (b) [Shall submit proof] Of liability insurance[; and].

[(C) Shall affix to each boat used in providing outfitter and guide services an identifying decal issued by the board or other governmental agency, subject to rules of the board, showing the year, the passenger carrying capacity and such other information as the board may prescribe.]

[(b) The registration and boat decals for each outfitter and guide who uses a boat to carry passengers on the waters of this state expire on December 31 of each calendar year.]

[(c) The requirements of this subsection apply only to boats under direct operation by an outfitter and guide or an employee of an outfitter and guide.]

(3)(a) A person who registers as an outfitter and guide and who accepts deposits from clients in excess of $100 per person shall submit a bond or other financial security in the amount of $5,000 to the board at the time of registration. The bond or other financial security shall be held by the board for the benefit of clients of the outfitter and guide who pay a money deposit to the outfitter and guide in anticipation of services to be received. The bond or other financial security amount shall be released to such client or clients conditioned upon a failure of the outfitter and guide to return the deposit following cancellation of services or other failure to provide agreed upon services.

(b) The board shall release or retain all or any portion of a bond or other financial security as described in paragraph (a) of this subsection according to the provisions of ORS chapter 183.

(4) Each annual registration shall be accompanied by a fee as follows:

(a) For resident persons, $50.

(b) For nonresident persons who reside in a state that requires residents of the State of Oregon to pay a license fee, registration fee or other fee or charge in excess of $50 to act as an outfitter and guide in that state, the same fee or other charge as is charged the residents of the State of Oregon to act as an outfitter and guide in the state where the nonresident applicant resides. If the state in which such a nonresident applicant resides makes distinctions in fees or charges based on the type of outfitter and guide service performed and requires residents of the State of Oregon to pay fees or charges accordingly, the board shall make and apply those same distinctions and require the nonresident applicants to pay the corresponding fees or charges.

(5) Upon the submission to the board of the appropriate fees prescribed in this section and the registration information required by this section, the board shall issue to the applicant [an Oregon Outfitter and Guide] a certificate of registration. The board shall also issue to each registrant proof of compliance with the requirements of this section[, which the registrant must have in possession and submit for examination by any person authorized to enforce this chapter while the registrant is engaged in providing outfitting and guiding services].

(6) A person who conducts sightseeing flights [and] or other aircraft operations [are] is exempt from the provisions of this section unless the activities conducted by the person are outdoor recreational activities as defined in ORS 704.010.

(7) The board shall issue an identifying decal to outfitters and guides registering under this section that may be displayed on vehicles, pack equipment or other suitable locations where customers can see the registration decal [to outfitters and guides that do not use boats in their activities regulated under this chapter].

(8) A certificate of registration issued to an outfitter and guide under this section expires on December 31 of each calendar year.

SECTION 2. Section 3 of this 2005 Act is added to and made a part of ORS chapter 704.

SECTION 3. (1) A person who acts or offers to act as an outfitter and guide using boats to carry passengers on the waters of this state shall affix to each boat used in providing outfitter and guide services an identifying decal issued by the State Marine Board or other governmental agency, subject to rules of the board, showing the year of issuance, the passenger-carrying capacity of the boat and such other information as the board may prescribe.

(2) The boat decals for each outfitter and guide who uses a boat to carry passengers on the waters of this state expire on December 31 of each calendar year.

SECTION 4. Section 5 of this 2005 Act is added to and made a part of ORS chapter 704.

SECTION 5. An outfitter and guide who registers pursuant to ORS 704.020 shall, while the outfitter and guide is engaged in providing outfitting and guide services, hold proof of compliance with the requirements of ORS 704.020 and allow the examination of that proof of compliance by any person authorized to enforce this chapter.

SECTION 6. Section 7 of this 2005 Act is added to and made a part of ORS chapter 704.

SECTION 7. (1) A person who acts or offers to act as an outfitter and guide using boats to carry passengers on the waters of this state shall:

(a) Equip each nonmotorized boat that is under the direct operation of an outfitter and guide or an employee of an outfitter and guide to carry passengers on waters rated as class III or higher on a commonly accepted scale of river difficulty with a rescue throw bag, complete with a length of artificial fiber rope and a buoyant bag;

(b) On any section of waters rated as class III or higher on a commonly accepted scale of river difficulty, require that all persons physically providing outfitting and guiding services and all passengers wear a properly secured United States Coast Guard approved personal flotation device of a type prescribed by rules adopted by the State Marine Board; and

(c) If the outfitter and guide operates nonmotorized boats carrying passengers on any section of waters rated as class III or higher on a commonly accepted scale of river difficulty, require that all persons physically providing outfitting and guiding services:

(A) Prior to providing the services, have completed at least one trip on that section of waters in a nonmotorized boat; and

(B) Have been trained in equipment preparation and boat rigging, understanding and recognizing river characteristics and hazards, methods of scouting rapids, methods of physically guiding boats through rapids, proper client communication, how to provide paddling and safety instruction and methods of river rescue techniques, including emergency procedures and equipment recovery.

(2) Subsection (1)(b) of this section does not apply to motorized boats that are inspected by the United States Coast Guard.

SECTION 8. ORS 704.030 is amended to read:

704.030. (1) No person shall make any false statement of material fact submitted pursuant to ORS 704.020.

(2) No outfitter and guide who uses a boat to carry passengers on the waters of this state shall carry passengers in excess of the passenger capacity for which insurance is obtained pursuant to ORS 704.020.

(3) No outfitter [or] and guide shall use a boat to carry passengers on navigable waters of the United States without [the] a license [and], registration or decal required by ORS 704.020 [(2)] and section 3 of this 2005 Act.

SECTION 9. ORS 704.900 is amended to read:

704.900. (1) In addition to any other penalty provided by law, the State Marine Board may impose a civil penalty for failure to comply with ORS 704.020 or section 3, 5 or 7 of this 2005 Actor for violation of ORS 704.030.

(2) Any civil penalty under this section shall be imposed in the manner provided by ORS 183.745.

(3) Notwithstanding ORS 183.745, the person to whom the notice is addressed shall have 30 days from the date of service of the notice in which to make written application for a hearing before the board.

(4) The board shall adopt rules implementing these provisions, including a schedule of civil penalties. The civil penalty for each violation shall not exceed $500.

(5) A civil penalty imposed under this section may be remitted or reduced upon such terms and conditions as the board considers proper and consistent with the public health and safety.

(6)(a) In imposing a penalty pursuant to the schedule adopted pursuant to this section, the board shall consider the following factors:

(A) Any prior violations of ORS 704.020 or 704.030 or section 3, 5 or 7 of this 2005 Act.

(B) The immediacy and extent to which the violation threatens the public health or safety.

(b) The penalty imposed under this section may be remitted or mitigated upon such terms and conditions as the board determines to be proper and consistent with the public benefit. Upon the request of the person incurring the penalty, the board shall consider evidence of the economic and financial conditions of the person in determining whether a penalty shall be remitted or mitigated.

(7) All penalties recovered under this section shall be paid into the State Treasury and credited to the Outfitters and Guides Account.

SECTION 10. ORS 704.990 is amended to read:

704.990. (1) Failure to comply with ORS 704.020 or section 3 or 5 of this 2005 Act is a Class B misdemeanor.

(2) Violation of ORS 704.030 is a Class B misdemeanor.

SECTION 11. Sections 2 to 7 of this 2005 Act and the amendments to ORS 704.020 by section 1 of this 2005 Act apply to persons applying to the State Marine Board for registration or renewal of a registration as an outfitter and guide on or after the effective date of this 2005 Act.

Approved by the Governor July 1, 2005

Filed in the office of Secretary of State July 1, 2005

Effective date January 1, 2006

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