Chapter 2: RULES FOR DETERMINING RATES OF COMPENSATION FOR FOREST PRODUCTS HARVESTING AND HAULING SERVICES

SUMMARY: This chapter contains rules concerning the determination of rates of compensation for forest products harvesting and hauling services. These matters are governed by the provisions of chapter 18 of Title 26 of the Maine Revised Statutes ("the Act"). Proceedings under this Chapter are conducted by the Forestry Rate Proceedings Panel ("Panel") of the State Board of Arbitration and Conciliation, as established in 26 M.R.S.A. §931-B.

§ 1. Definitions. As used in these rules, the following terms have the following meanings:

1. Affiliated person. "Affiliated person" means a person in the same corporate system as a parent or member organization by virtue of common ownership, control, operation or management.

2. Association. "Association" includes an incorporated or unincorporated entity.

3. Economic control. "Economic control" means the legal right, whether through ownership, contract or otherwise, to make or influence decisions regarding the harvesting of trees and disposition in general of forest products on subject land.

4. Forest land. "Forest land" means land used primarily for growth of trees to be harvested for commercial use.

5. Forest landowner. "Forest landowner" means:

A. A person that owns directly or through affiliated persons, or possesses economic control over, more than 400,000 acres in a labor market area, which acreage constitutes more than 30% of the total land area in that labor market area; or

B. An agent or subsidiary of a person described in paragraph A if that agent or subsidiary is involved in contracting or negotiating contracts or other arrangements, written or oral, with forest products harvesters or forest products haulers.

6. Forest products harvester. "Forest products harvester" or "harvester" means a person having a place of business in this State who is engaged in harvesting trees from forest land in the State under a contract or subcontract, directly or indirectly, for a forest landowner.

7. Forest products hauler. "Forest products hauler" or "hauler" means a person having a place of business in this State who is engaged in hauling harvested trees to mills under a contract or subcontract, directly or indirectly, for a forest landowner.

8. Labor market area. "Labor market area" means an area designated as such by the United States Department of Labor, Bureau of Labor Statistics for purposes of implementing a comprehensive labor market information system.

9. Panel. "Panel" means the forestry rate proceedings panel, constituted under the State Board of Arbitration and Conciliation pursuant to section 931-B.

10. Person. "Person" includes one or more individuals, partnerships, corporations, limited liability corporations, business organizations and associations.

§ 2. Parties In Interest. The proceedings described in these rules only apply to certain forest landowners, forest product harvesters, and forest product haulers. The terms used in this paragraph are further defined in 26 M.R.S.A.§1352 and § 1 of this chapter.

§ 3. Fees and Expenses. The parties are required to share the costs for services rendered and expenses incurred by the Panel and any state cost allocation program charges. The executive director may estimate costs upon receipt of a request for services and collect those costs prior to providing the services. The executive director shall bill or reimburse the parties, as appropriate, for any difference between the estimated costs that were collected and the actual costs of providing the services. Once one party has paid its share of the estimated cost of providing the service, the matter will be scheduled.

§ 4. Executive Director. The executive director is the Executive Director of the Maine Labor Relations Board. Whenever a rule refers to the executive director, the action or responsibility may be delegated to the executive director's designee.

§ 5. Negotiated Agreements Regarding the Rates of Compensation Paid By Forest Landowners To An Individual Harvester and/or Hauler for Services. A forest landowner may negotiate and reach agreement with an individual forest products harvester or hauler over the compensation paid to the latter without having to comply with the provisions of the Act, unless there is a Panel-determined rate applicable to the service being provided, or a properly filed rate determination petition that would apply to that service is pending before the Panel at the time the contract is entered into.

§ 6. Petitions Are Formal Requests for Panel Action. Petitions are formal requests for Panel action. All petitions must be in writing, signed before a notary public or attorney-at-law (acting as a notary) and must contain a declaration by the petitioner or the petitioner's representative under penalty of perjury that its contents are true and correct to the best of the declarant's information and belief. In the alternative, the petition must be signed by an attorney on behalf of petitioner, without the need of notarization.

§ 7. Petition For Rate Determination, Including Approval of a Negotiated Rate. Upon receipt of a Petition for Rate Determination (BAC Form 2) properly filed as set out in this section, the Panel will determine the rates of compensation to be paid by a forest landowner covered by the provisions of Title 26 M.R.S.A. Chapter 18 for forest products harvesting services and/or hauling services, including reviewing rates negotiated by the parties for approval.

1. Parties in Agreement. A group, consisting of 3 or more forest products haulers or harvesters, may negotiate with a forest landowner over the rate to be paid for harvesting and/or hauling services, provided that any agreement reached must be made contingent upon Panel review and approval. Parties who have negotiated an agreement regarding the rates to be paid for harvesting services and/or hauling services shall jointly sign and file a Petition for Rate Determination with the Panel, indicating that they are seeking Panel review and approval of such agreement.

2. Parties not in agreement. A group, consisting of 3 or more forest products haulers or harvesters, may negotiate with a covered forest landowner over the rate of compensation to be paid for harvesting and/or hauling services. If the parties are unable to reach agreement on the rates to be paid for forest products harvesting and/or hauling services, either the group of haulers or harvesters or the forest landowner may petition the Panel to establish such rate.

3. Who may file petition. The forest landowner of the land for which a rate of compensation is to be determined or a person, as defined in 26 M.R.S.A. §1352(10), representing at least 3 forest products harvesters or haulers may file a Petition for Rate Determination with the Panel.

4. The contents of the petition. The original and 3 copies of the petition must be filed with the Panel. Petition forms are available from the Panel. The petition must contain the following information:

A. Forest landowner's name. The identity, including the name, address, telephone number and e-mail address, to the extent known by the petitioner, of the forest landowner who owns or possesses economic control over the land on which the rates are to apply. If the petition is filed by a person representing at least 3 harvesters or haulers, the petitioner must allege information sufficient to determine whether the respondent is a forest landowner, as defined in 26 M.R.S.A. § 1342(5) and in § 1(5) of this chapter.

B. Name of representative of forest products harvesters and/or haulers. The identity, including the name, address, telephone number, and e-mail address, to the extent known by the petitioner, of the representative of the forest products harvesters and/or haulers involved. A list of the names and addresses of the individual forest products harvesters and/or haulers involved, to the extent known by the petitioner, must be filed with the petition.

C. The petitioner's standing to file the petition. The petitioner's status as the forest landowner or as the representative of at least 3 forest products harvesters and/or haulers and include the names and addresses of all the persons represented.

D. The service for which the rate is to be determined. The petitioner shall identify whether the rate to be determined is for forest products harvesting, hauling, or both.

E. Geographic area. The geographic area in which the rate(s) will apply.

F. The proposed rate. The rate, if any, being proposed by the filing party, for the types of products and species at issue, including any rate agreed to in negotiations between forest landowners and harvesters and/or haulers.

G. Information relevant to rate-setting criteria. Information relevant to the factors set forth in § 14 of this chapter needed for the Panel to make a decision.

H. Summary of negotiations. A summary of any negotiations between the harvesters and/or haulers and the forest landowner.

I. Hearing requested. A statement as to whether the petitioner is requesting that a public hearing be held to collect information relating to the petition.

J. Other facts. Any other facts relevant to the petition or specifically requested by the Panel.

§ 8. Petitions to Change Established Rates. No petition seeking to change a rate established or approved by the Panel may be filed within one year of the issuance of the decision determining such rate, unless the Panel specified a shorter period in the decision sought to be changed. A petition to change a rate previously established or approved by the Panel must comply with the requirements set forth in § 7 of this chapter.

§ 9. Review, Amendment and Action on Petition. The executive director shall review the petition for sufficiency upon its being filed with the Panel and take action in accordance with this rule.

1. Grounds for Dismissal. The executive director shall dismiss a petition if it does not comply with the requirements of this chapter.

2. Review of Petition, Notice of Insufficiency. If the petition was filed in a timely manner but is not complete, the executive director shall serve on the petitioner a notice of errors and insufficiencies in the petition. Amendments to petitions must be made within fifteen calendar days of service of the notice of insufficiencies. Permitted amendments are effective as if made on the date the petition was filed.

3. Dismissal. Insufficient petitions which are not amended during the time period specified in paragraph 2 must be summarily dismissed by the executive director, provided that the dismissal is without prejudice.

4. Notification of Parties. If the petition is complete, the executive director shall transmit an official copy of the petition to the respondent within 24 hours. If that transmission is made by electronic means, it must be followed by a copy sent by mail. In any event, copies of correspondence sent to the respondent will be provided to the petitioner.

§ 10. Notice of Pending Petitions. The executive director shall cause to be published notice of the filing of a petition at least twice in newspapers of general circulation in the areas of the state affected by the petition. The executive director shall also provide such notice to any person who has requested to be notified of filings. Absent a determination by the Panel that extraordinary circumstances exist requiring shorter notice, the notice will be given at least 30 days before any hearing to be held and at least 30 days before the close of the comment period on the filing.

§ 11. Contents of Notice to Public. The notice required by § 10 shall contain a statement of the legal authority and jurisdiction under which the proceeding is being conducted, including reference to the specific statutory and rule provisions involved; a plain statement of the nature and purpose of the proceeding, including a description of the geographic area in which the rates are to apply and the rate(s) being proposed, if any; the names of the parties; the place, date and time of any hearing or the time within which a hearing may be requested; a solicitation of written comment from persons interested, including the deadline for the submission of such comment; a general description of the method by which the matter will be resolved; the opportunity for interested persons to participate in the proceeding; and, if a hearing has been set, a statement of the manner and time within which applications for intervention may be filed.

§ 12. Posting of Notices at MLRB Offices and on Internet. Any notice prepared under this Chapter will also be posted on the official bulletin board of the Maine Labor Relations Board and the Board's internet site.

§ 13. Petitions to Intervene. A petition to intervene is required when a third party wishes to become a party in a rate determination proceeding. A petition to intervene is not required to provide information at a Board rate determination hearing or to provide written comment in a rate determination proceeding.

1. Form and Filing for Intervention. Petitions to intervene shall meet all the requirements for valid petitions set forth in this Chapter.

2. Who Can Intervene. Persons with standing to file an initial petition, as described in § 7(3) of this Chapter, may file a petition to intervene.

3. Time of Filing. A petition to intervene in a rate determination proceeding must be filed no later than 10 calendar days after the last date of publication of the Notice of Pending Petition required by § 10 of this Chapter.

4. Review of Petition. The executive director shall administratively examine the petition to intervene in the manner set forth in § 9 of this chapter and take appropriate action, which may include granting or dismissal of the petition.

5. Notification to Parties. If the petition is complete, the executive director shall transmit an official copy of the petition to the other parties within 24 hours. If that transmission is made by electronic means, it must be followed by a copy sent by mail.

6. Withdrawal of Initial Petition. Withdrawal of the initial rate determination petition does not affect the processing of a timely-filed petition for intervention.

§ 14. Criteria for Rate Determinations. In determining a reasonable rate to be paid to the forest landowner for harvesting or hauling services or in reviewing a negotiated rate for approval, the Panel will consider, to the extent relevant, the following factors:

1. Comparable Prices. Prices or projected prices for the harvesting services or hauling services currently paid by forest landowners in Maine and in other comparable states;

2. Quantity of Products Available. The quantity of forest products available in the market area or competing areas;

3. Quantity Handled by Forest Landowner. The relationship between the quantity produced and the quantity handled by the forest landowner;

4. Harvester's or Hauler's Costs. The harvester's or hauler's costs, including, but not limited to, wages, overhead, fuel, insurance, and the cost of replacing equipment;

5. Applicable Laws. Environmental and highway laws or rules;

6. Impact on Landowner's Market Position. The impact of the rate determination on the competitive position of the landowner in the market area or competing market areas;

7. Return on Investment. A fair return on investment;

8. Particulars of the Job. The species of tree, type of machinery and method of tree harvesting involved;

9. Nature of Roads Used. The extent to which hauling is conducted on private or public roads;

10. Safety. Safety considerations;

11. Prior Agreements. Prior agreements of the parties; and

12. Traditional Factors. Any factors that are normally or traditionally taken into consideration when determining prices for the services involved.

§ 15. Written Comment. The Panel will solicit written comment submitted from persons interested in the rates of compensation for forest products harvesting and/or hauling services and will consider such comment in determining the appropriate rate or in reviewing a negotiated rate for approval in each case.

§ 16. Right to Hearing. The Panel shall conduct a public hearing on the merits of any rate determination petition upon request of any party to the proceeding.

§ 17. Conduct of Hearing. The Panel shall conduct the hearing, if a hearing is held. The executive director may order the consolidation of petitions for hearing. The Panel may require attendance at a prehearing conference by the parties or their representatives, if the Panel believes that such conference will aid in the efficient conduct of the hearing, narrow the issues to be resolved at the hearing, or allow the parties to explore opportunities for settlement.

§ 18. Witnesses and Subpoenas. A party to a proceeding before the Panel may request the attendance of witnesses voluntarily or by subpoena. If witnesses or documents are sought by subpoena, the requesting party must first make a written request to the Panel or presiding official for the issuance of the subpoena. When the subpoena is issued, it is the responsibility of the requesting party to serve the subpoena or cause it to be served on the named individual. When a witness is subpoenaed, the witness fee and transportation allowance established by 16 M.R.S.A. § 251 must be provided at the time the subpoena is served. The Panel may require by subpoena the attendance and testimony of witnesses, the production of books, records and other evidence relevant to issues raised by a rate determination petition or responses to the petition. If the Panel, on its own motion, requires the attendance of witnesses through subpoenas, the Panel will cause the subpoena to be served on the named individual and will be responsible for paying the required witness fee and transportation allowance.

§ 19. Nature of Hearing. The purpose of the hearing is to develop a full and complete factual record. Each party bears the responsibility of producing evidence to support its contentions regarding the determination of the rate of compensation at issue. All testimony offered must be taken under oath or affirmation.

§ 20. Record. The Panel shall make a record of each proceeding. The record will consist of all petitions, motions, preliminary and interlocutory rulings and orders; evidence received or considered; a statement of facts officially noticed; offers of proof, objections and rulings thereon; proposed findings and exceptions, if any; the decision of the Panel; and any staff memoranda submitted to the Panel by agency staff in connection with their consideration of the case, except memoranda of counsel to the agency.

§ 21. Hearings Recorded. The Board will record all hearings in a form susceptible to transcription. Portions of the record required in § 20 of this chapter may be included in the recording. The agency shall transcribe the recording when necessary for an appeal. The cost of producing such transcript shall be borne equally by the parties to the rate determination proceeding.

§ 22. Official Transcripts. A party to a Panel hearing seeking to have the hearing transcribed may, with prior approval of the Panel, make arrangements for transcription by a qualified court reporter and shall assume the costs of the service. If such arrangements are made and a transcript is produced, a copy must be furnished to the Panel without cost and to the other parties upon request and tender of the appropriate fee. If the transcript is agreed by the parties to be or, in appropriate cases, determined by the Panel to be the official record of the proceeding, it must be made available to the other party for inspection at a time and place determined by the Panel.

§ 23. Rules Regarding Evidence. The strict rules of evidence observed by courts do not apply in matters before the Panel. The following rules regarding evidence apply:

1. Evidence. The Panel shall admit evidence if it is the kind upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitive evidence may be excluded.

2. Rules of Privilege. The Panel shall observe the rules of privilege recognized by law.

3. Written Evidence; Exception. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

§ 24. Official Notice. The Panel may take official notice of any facts of which judicial notice could be taken, and may take official notice of technical or scientific matters within their specialized knowledge. They may also take official notice of statutes, regulations and nonconfidential agency records. Parties will be notified of the Panel's intention to take official notice and will be afforded a reasonable opportunity to contest the substance or materiality of the facts involved. Members of the Panel may utilize their experience, technical competence and specialized knowledge in evaluating the evidence presented to them.

§ 25. Rights of Parties. Any party to the hearing shall have the right to be represented by counsel or by other representative, at the party's expense, to examine and cross-examine witnesses, and to offer documentary and other evidence. Stipulations may be offered with respect to any issue. Parties may request the issuance of subpoenas. The Panel shall allow oral argument upon request, and, after consultation with the parties, may require briefs to be submitted. Any brief permitted to be filed must be filed in the original and 3 copies. A copy of any brief filed with the Panel must simultaneously be served on all parties to the matter.

§ 26. Confidential Information. In general, documents and information disclosed to the Panel are confidential, pursuant to 26 M.R.S.A. §§ 931-B, 939. In matters before the Panel, the following procedures will apply:

1. Treatment of Confidential Documents. Documents considered by the Panel in the rate determination proceeding are confidential, except where public disclosure is permitted by statute. All documents offered for admission are part of the official record of the proceeding. Such documents will be sealed and retained as non-public documents. In the event that a rate determination decision is appealed, such non-public documents will be included with the record sent to the court, subject to seal and the confidentiality order.

2. Non-Submitting Parties' Access to Confidential Documents; Protection of Confidentiality. The other parties will be granted access to confidential documents subject to an appropriate protective order. A person who has access to or receives information or a record designated confidential under this chapter shall maintain the confidentiality of the information or record and use it only for the purposes for which it was released and may not further disclose it except as authorized by the Panel at the time of the disclosure to that person.

3. Conduct of Panel Proceedings to Ensure Confidentiality. Testimony and cross-examination concerning the contents of confidential documents will be received by the Panel in closed session and any transcript of such closed sessions will be treated as a confidential document by the Panel. During the introduction of confidential information, the proceeding is open only to the Panel, the executive director, parties, parties' representatives, counsel of record and the witness testifying regarding the information, and access to the information is limited to these people. Witnesses are sequestered during the introduction of confidential information, except when offering testimony at the proceeding.

§ 27. Ex Parte Communications Prohibited. No party or other person(s) legally interested in the outcome of a Panel proceeding may communicate ex parte either directly or indirectly with any member of the Panel assigned to the case, in connection with any issue of fact, law or procedure except upon notice and opportunity for all parties to participate.

§ 28. Interested Panel Members May Not Participate. A member or alternate member of the Panel who has a financial interest in a rate determination proceeding brought before the Panel, or in any party to the rate determination proceeding, may not participate in the proceeding affecting that financial interest. Any party to a proceeding may challenge the assignment of any member of the Panel to hear a particular dispute on the grounds of bias or of personal or financial interest, direct or indirect, and may request that the member disqualify himself or herself. Such challenge must be made in good faith and must be made sufficiently in advance of the hearing so as not to result in substantial delay. The member so challenged may consult with private counsel concerning the charge and shall determine the matter as part of the record.

§ 29. Panel Decision. Within 30 days after the close of the comment period and completion of any public hearing, the Panel shall issue a decision, determining reasonable rates to be paid by the forest landowner for the services that are the subject of the petition, including a reasonable geographic applicability for the rates established. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that a decision was not made within the time required unless that party notified the Panel of its objection prior to the delivery of the decision to that party. The decision shall include findings of fact sufficient to constitute the basis of the decision and record the vote of each member of the Panel. Any member of the Panel may prepare a dissenting decision or a decision concurring in part and dissenting in part and such separate decision will be disseminated in the same manner as the majority decision.

§ 30. Appeals of Rate Determination Decisions. Rate determination decisions constitute final agency action for the purposes of Title 5 M.R.S.A., chapter 375, subchapter 7, and may be appealed pursuant to that subchapter. The Panel's decision shall notify the parties of the right to appeal to the Superior Court by filing a petition for review within the time limits and pursuant to the procedure set forth in 5 M.R.S.A. § 11002. Rates determined by the Panel are not stayed pending appeal.


STATUTORY AUTHORITY: 26 M.R.S.A. §§ 931, 931-B, 1353

EFFECTIVE DATE: October 3, 2005