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Oregon Bulletin

January 1, 2014

Department of Forestry, Chapter 629

Rule Caption: Emergency Fire Cost Committee Rules Renumbering and Rewriting

Adm. Order No.: DOF 3-2013

Filed with Sec. of State: 12-9-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 7-1-2013

Rules Adopted: 629-165-0005, 629-165-0010, 629-165-0200, 629-165-0210

Rules Repealed: 629-061-0025, 629-061-0040, 629-061-0045, 629-061-0050, 629-061-0075

Rules Ren. & Amend: 629-060-0000 to 629-160-0000, 629-060-0005 to 629-160-0005, 629-061-0000 to 629-165-0000, 629-061-0005 to 629-165-0100, 629-061-0015 to 629-165-0300, 629-061-0020 to 629-165-0305, 629-061-0035 to 629-165-0310, 629-061-0060 to 629-165-0315, 629-061-0065 to 629-165-0320

Subject: The proposed rules renumber the existing rules to add more flexibility in future rulemaking, eliminate rules that are no longer used by the committee, and reworks existing rules to mirror current operating and accounting procedures that have been instituted over time.

Rules Coordinator: Sabrina Perez—(503) 945-7210

629-160-0000

Administrative Rule Notification

Prior to the adoption, amendment, or repeal of any rule, the Emergency Fire Cost Committee shall give notice of the proposed adoption, amendment, or repeal:

(1) In the Secretary of State’s Bulletin referred to in ORS 183.360 at least 21 days prior to the effective date of the rule.

(2) By mailing or e-mailing a copy of the notice to persons on the Emergency Fire Cost Committee’s mailing list established pursuant to ORS 183.335(8), at least 28 days prior to the effective date of the rule.

(3) By e-mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days prior to the effective date of the rule; and

(4) By mailing or e-mailing, or furnishing a copy of the notice to the following persons, organizations, and publications at least 28 days prior to the effective date:

(a) Oregon Forest Industries Council;

(b) Associated Oregon Loggers;

(c) Association of Oregon Counties;

(d) Oregon Forest Resource Institute;

(e) Oregon Cattlemen’s Association;

(f) Oregon Farm Bureau Federation;

(g) Oregon Sheep Growers Association;

(h) Oregon Small Woodlands Association;

(i) Oregon State Grange;

(j) Clackamas-Marion Forest Protective Association;

(k) Coos Forest Protective Association;

(l) Douglas Forest Protective Association;

(m) East Oregon Forest Protective Association;

(n) Eastern Lane Forest Protective Association;

(o) Klamath Forest Protective Association;

(p) Linn Forest Protective Association;

(q) Northwest Oregon Forest Protective Association;

(r) Rogue Forest Protective Association;

(s) Walker Range Forest Protective Association;

(t) Western Lane Forest Protective Association;

(u) West Oregon Forest Protective Association;

(v) Western Oregon Livestock Association;

(w) Governor’s Office, Natural Resource Advisor;

(x) Legislative Fiscal Office;

(y) Oregon Department of Administrative Services (Risk Management & BAM);

(z) Oregon Department of Revenue;

(aa) The Associated Press; and

(bb) The Capitol Press Room.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 5-1982, f. & ef. 6-16-82; FB 1-1995, f. & cert. ef. 1-12-95; Renumbered from 629-060-0000 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-160-0005

Model Rules of Procedure

Pursuant to ORS 183.341, the Emergency Fire Cost Committee adopts the Attorney General’s Model Rules of Procedure, effective January 31, 2012.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 4-1982, f. & ef. 4-29-82; FB 2-1984, f. & ef. 1-6-84; FB 4-1986, f. & ef. 6-17-86; FB 1-1989, f. & cert. ef. 1-18-89; FB 1-1995, f. & cert. ef. 1-12-95; Renumbered from 629-060-0005 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0000

Definitions

The definitions set forth in ORS 477.001 are made a part of this division by this reference; and the following definitions also apply:

(1) “Administrator” means a staff member of the State Forestry Department designated by the State Forester to act as secretary of the committee and to carry out the provisions of ORS 477.440 to 477.460 in such manner as the committee shall direct.

(2) “Committee” means the Emergency Fire Cost Committee established pursuant to ORS 477.440.

(3) “District” means a forest protection district pursuant to ORS 477.225.

(4) “Emergency fire” means a fire that due to the specific circumstances of the fire, requires more suppression resources to control and extinguish than the district can reasonably provide within the approved district budget, based on declared fire season resource levels, whether or not the fire occurs during a declared fire season (see also OAR 629-165-0005).

(5) “Emergency fire suppression costs” means those fire suppression costs attributable to an emergency fire that exceed:

(a) The costs of the fire suppression response provided by the approved district budget as further described in OAR 629-165-0005; and

(b) An additional per fire or per day cost of suppression further defined in OAR 629-165-0010.

(6) “Fiscal year” means the period beginning July 1 of any year and ending June 30 of the next year.

(7) “Oregon Forest Land Protection Fund (OFLPF or the fund)” means that account established in the State Treasury as a trust fund for the purpose of equalizing emergency fire suppression costs and other listed purposes pursuant to ORS 477.750 to 477.775.

(8) “Regular fire suppression costs “ means those fire suppression costs which are annually budgeted for and incurred by a forest protection district pursuant to ORS 477.205 to 477.281.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69; FB 1-1981, f. 6-10-81, ef. 7-1-81, Renumbered from 629-044-0100; FB 1-1995, f. & cert. ef. 1-12-95; FB 3-1996, f. & cert. ef. 3-13-96; Renumbered from 629-061-0000 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0005

Emergency Fires

As defined in OAR 629-165-0000 (4), an emergency fire is a fire that due to the specific circumstances of the fire, requires more suppression resources to control and extinguish the fire than the district can reasonably provide within the approved district budget based on declared fire season resource levels, whether or not the fire occurs during a declared fire season. The following are examples of emergency fires:

(1) A fire occurs in August, when the district is at full strength. The pre-planned dispatch for the fire at this time and place (as an example) specifies two engines, six persons and a district dozer. If these forces are inadequate to suppress the fire and additional forces must be hired, it becomes an emergency fire;

(2) If a fire in the same location as in section (1) occurs in February, when the readiness resources are substantially less, the district must still suppress the fire. Hired resources from cooperators will normally be used to supplement limited district resources. The fire becomes an emergency fire when hired and regular district resources exceed the resources equivalent to the fire season pre-planned dispatch of two engines, six persons and a dozer;

(3) An emergency fire situation may occur when there are multiple fires in a district, even though none of the fires individually have exceeded the planned dispatch level, if the total effort of all the fires exceeds the district’s budgeted resource level. This situation most frequently occurs during and after widespread lightning events. Additional resources, hired to supplement regular forces in the described multiple fire situation, are emergency fire resources eligible for payment from the OFLPF.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0010

Additional Amount Not Considered Emergency Fire Suppression Costs

(1) Notwithstanding OAR 629-165-0005, it is a policy of the committee that a district is expected to pay an amount of fire suppression costs in addition to the pre-planned dispatch, before any costs are considered emergency fire suppression costs. This additional amount in most cases will be $25,000 per day or per fire as follows:

(a) If multiple fires occur on the same day within a district, only one additional amount of $25,000 may be applied to the sum of the costs of all the fires that began on that day.

(b) If any individual fire or group of fires that began on the same day (or from the same lightning storm that continues into a second day, at the discretion of the committee) burns past midnight, or the suppression action continues for multiple days, only one additional amount of $25,000 may be applied to the sum of the costs of those fires.

(c) If one fire or a group of fires begin on one day and suppression action continues for multiple days, and then a new fire or group of fires begin on a different day, an additional amount of $25,000 may be applied to each day that new fires are ignited.

(2) The additional amount described in section (1) may be modified or waived by the committee if conditions so warrant. Conditions that may warrant modification or waiver include, but are not limited to:

(a) The unencumbered balance of the fund is determined to be in excess of the reserve base established in ORS 477.760.

(b) A district requesting waiver has over-expended the regular protection budget for the year in which the waiver request is made.

(3) If the additional amounts described in section (1) of this rule directly result in an increase in a district’s annual budget greater than fifteen cents per acre on timberland or six cents on grazing land, the committee may waive that part in excess of these amounts. It is the committee’s intent that the maximum effect of section (1) of this rule on a district budget will be limited to an additional fifteen cents per acre on timberland and six cents per acre on grazing land.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0100

Deductible Amount per Acre

Emergency fire suppression costs are subject to a deductible amount based on protected acres in the district. The committee shall establish the deductible amount for each district on or before January 15 of each year. The deductible amount shall be an amount for each acre covered by the timber budget and an amount for each acre covered by the grazing budget established under ORS 477.230, but may not exceed the limit established under 477. 770.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69; FB 2-1978, f. 1-6-78, ef. 7-1-78; FB 1-1981, f. 6-10-81, ef. 7-1-81; FB 6-1982, f. 6-16-82, ef. 7-1-82, Renumbered from 629-044-0105; FB 1-1995, f. & cert. ef. 1-12-95; FB 3-1996, f. & cert. ef. 3-13-96; FB 5-1996, f. & cert. ef. 6-13-96; Renumbered from 629-061-0005 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0200

Unencumbered Balance

(1) ORS 477.760(1) requires the committee, on or about the last day of February of each year, to meet and determine the unencumbered balance of the fund as of February 16 of the same year.

(2) The meeting to determine the unencumbered balance will normally occur at the regularly scheduled meeting of the committee prior to the Board of Forestry meeting in early March.

(3) The unencumbered balance of the fund shall be calculated as the actual cash balance in the state treasury on February 16; less the best available estimate of eligible suppression cost claims for fires occurring before February 16, but not yet paid; less estimated administrative expenses through February 16, but not yet paid; less any other anticipated payments known to the committee at that time due for expenses committed prior to February 16, but not yet paid.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0210

Transfer of Funds from State Treasurer

(1) Pursuant to ORS 477.760 (2), the committee is authorized to request a transfer of funds from the State Treasurer to the OFLPF at any time and in any amount that does not cause the fund to exceed the reserve base specified in ORS 477.760 (1).

(2) To minimize the effect of repayment of transfers on the landowner community, it is the committee’s intent that the amount of transfer requested should be limited to an amount by which known and anticipated claims will exceed the sum of the cash balance in the fund and the anticipated revenues for the remainder of the fiscal year.

(3) If the monies in the OFLPF are inadequate to ensure repayment of the transfer and the interest thereon, the State Forester must increase the assessments, surcharge and harvest tax in equal proportions for the ensuing fiscal and calendar years, respectively, adequate to make repayment of the transfer:

(a) The increase in assessments in the next fiscal year will apply to:

(A) The surcharge on improved lots referred to in ORS 477.277;

(B) The OFLPF portion of the minimum assessment referred to in ORS 477.295; and

(C) The acreage assessments referred to in ORS 477.880.

(b) The increase in taxes in the next calendar year will apply to the forest products harvest tax referred to in ORS 321.015(2).

(4) Negotiations for and approval of any transfer should be completed as soon as practicable after February 16 of any year that a transfer is necessary, to allow the State Forester sufficient time to meet the requirements of ORS 477.760, requiring increases to assessment, surcharge and harvest tax rates for the ensuing fiscal and calendar years, respectively.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0300

Evidence of Necessity

When payment is claimed from the fund for emergency fire suppression costs incurred on a fire where an owner, operator or other person has an obligation to pay those costs pursuant to ORS 477.068, 477.085 or 477.120, the district warden must provide evidence to the administrator supporting the necessity of advancing payment, pending ultimate resolution. Evidence which may be acceptable to the administrator must include, but is not limited to:

(1) A statement signed by the district warden stating the entity responsible for fire suppression costs has refused to accept responsibility or is unable to pay fire costs;

(2) A notification to the administrator that fire cost recovery proceedings have been initiated against an owner, operator or other person that has an obligation to pay fire suppression costs;

(3) A statement from an authorized State Forester’s staff member or by an assistant attorney general that fire suppression costs are deemed uncollectible. This statement must include the reason for the decision; or

(4) A statement by a district warden that recovery of fire costs appears to be assured, but delays in the recovery process will make it necessary to support the district’s financial resources until costs can be processed, the responsible party is billed and payment is received.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69, Renumbered from 629-044-0115; FB 1-1995, f. & cert. ef. 1-12-95; Renumbered from 629-061-0015 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0305

Qualifications for Payment

(1) The administrator must pay only those emergency fire suppression costs as described in this rule, incurred by a district during the fiscal year, if the district has first expended for similar or other emergency fire suppression costs the deductible amount described in OAR 629-165-0100.

(2) When a fire originates in one fiscal year and continues burning in a subsequent fiscal year, all emergency fire suppression costs for that fire shall be included in the expenditures for the year in which the fire started.

(3) Emergency fire suppression costs eligible for payment by the OFLPF include, but are not limited to labor, services, transportation, supplies, reconditioning and rental equipment, and expenses incurred for the recovery of fire suppression costs.

(4) Emergency fire suppression costs, where applicable, are based on the wage rates and equipment rental rates approved by the State Forester.

(5) Notwithstanding section (3) of this rule, the committee may further limit qualifying emergency fire suppression costs, by publishing its qualifications in a form readily available to the districts, prior to the beginning of the fiscal year in which expenses are incurred.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69; FB 24, f. 6-11-71, ef. 7-11-71, Renumbered from 629-044-0120; FB 1-1995, f. & cert. ef. 1-12-95; Renumbered from 629-061-0020 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0310

Payments for Fire Suppression Costs

(1) The administrator must pay to any district an amount from the fund equal to the emergency fire suppression costs such district has qualified for under OAR 629-165-305. The payment shall be 100 percent of the itemized certified costs unless otherwise determined by the committee.

(2) In the event the administrator makes a payment under section (1) of this rule that is less than 100 percent of the itemized and certified emergency fire suppression costs, final payment must not be made until all emergency fire suppression cost claims against the fund have been submitted for the subject fiscal year.

(3) Each payment under section (1) of this rule is a conditional payment until:

(a) All emergency fire suppression cost claims against the fund have been submitted for the subject fiscal year;

(b) The administrator has audited the claims; and

(c) The committee has approved the audited claims.

(4) The district must reimburse the fund for any conditional payments that are disapproved by the committee.

(5) In addition to sections (1) to (3) of this rule, any payment made by the administrator to a claimant, shall be conditioned on proceedings being brought to recover fire suppression costs from parties liable thereto under ORS Chapter 477 or other law.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69, Renumbered from 629-044-0135; Renumbered from 629-061-0035 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0315

Collection — Approval

If a district warden or other representative of the State Forester initiates collection of fire suppression costs from a responsible party under ORS 477.068 477.085 or 477.120, prior to acceptance of any payment for such suppression costs, the district warden or forester must first secure the approval of the administrator, if:

(1) Such fire suppression costs include moneys which have been advanced by the administrator to a district from the fund;

(2) Such settlement will affect the amount otherwise payable from the fund to a district; or

(3) Such settlement will affect the amount otherwise reimbursable by a district to the fund.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69; FB 6-1982, f. 6-16-82, ef. 7-1-82, Renumbered from 629-044-0160; Renumbered from 629-061-0060 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

629-165-0320

Reimbursement to Account

Whenever a district or the forester receives payment pursuant to ORS 477.068, 477.085 or 477.120, the district shall retain an amount equal to the emergency fire suppression costs not paid by the administrator from the OFLPF, but eligible for payment, and reimburse the fund with the remainder, if any. Any such reimbursement shall in no event exceed the amount paid by the respondent.

Stat. Auth.: ORS 321, 477 & 477.770

Stats. Implemented: ORS 183.335, 183.341, 477.440 - 477.460 & 477.750 - 477.775

Hist.: FB 21, f. 9-25-69, Renumbered from 629-044-0165; Renumbered from 629-061-0065 by DOF 3-2013, f. 12-9-13, cert. ef. 1-1-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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