09- 137 C.M.R. ch. 14, § 07

Current through 2024-51, December 18, 2024

Section 137-14-07 - Allocation System

A.Goals

This regulation establishes a schedule for reviewing outfitters who hold allocations; sets forth the criteria for maintaining allocations; and establishes the process for awarding allocations that have been forfeited or returned to the Department.

B.Review of Allocations

At any time, the Department may review an outfitter's allocation for the purposes of determining whether the outfitter continues to maintain the conditions of its license, continues using its allocations productively, and continues to maintain a quality of service consistent with the public interest.

Beginning January 1, 2019, the Department will review outfitters who hold allocations according to the criteria described in (1) below. The review will be based upon the performance in meeting past allocations for each year of the preceding five-year period, except when allocations are returned to the Department, which is addressed in (C) below.

Information on the use of allocations over the preceding five-year period must be submitted by October 1 of the last year of the preceding allocation review period.

Allocation review criteria will be based on the industry average use for the five-year period in the review. The review will be based on the outfitter's best four out of five calendar year average for allocated days for the allocated river. If the industry average is 70% or greater, the review criteria percentage to maintain 100% allocations will be 70%. If the industry average falls below 70% use for the review, the criteria for the review will be the actual industry average.

If an outfitter has had allocations for less than five years, the following criteria will apply;

-An outfitter has had allocations for less than 2 years, the outfitter is exempt from the review.

-An outfitter has had allocations for 2 years, the outfitter would use the average of the best 1 year.

-An outfitter has had allocations for 3 years, the outfitter would use the average of the best 2 years.

-An outfitter has had allocations for 4 years, the outfitter would use the average of the best 3 years.

-An outfitter has had allocations for 5 years, the outfitter would use the average of the best 4 years.

1. The Department shall evaluate information submitted by outfitters according to the following criteria based on holding allocations for at least 5 years:

a. An outfitter that averages at least 70% of their previous allocation during the best 4 years of the five-year review period shall retain 100% of that allocation;

b. An outfitter that averages at least 60% of their previous allocation during the best 4 years of the five-year review period shall retain 90% of that allocation;

c. An outfitter that averages at least 50% of their previous allocation during the best 4 years of the five-year review period shall retain 80% of that allocation;

d. An outfitter that averages at least 40%of their previous allocation during the best 4 years of the five-year review period shall retain 70% of that allocation;

e. An outfitter averaging below 40% shall have their allocations reduced to the amount used, or the statutory minimum, except in situations where the commissioner has determined that extenuating circumstances resulted in the loss of the ability to meet minimum standards.

f. The commissioner may suspend taking administrative action on an outfitter based on low industry use during any five-year review of allocations determined by the Department.

Example: The average industry use during the five-year review period for allocated days on the Penobscot River Saturdays was 70% for the review period. Under Chapter 14.07 (B) (1) (a), the percentage requirement is 49%fulfillment to maintain 100% of that allocation (70% of 70% is 49%).

C.Reissuing of Allocations

Upon application and payment of all license and allocation fees, allocations which are returned to the Department as a result of the sale of a business or part thereof are transferred to the new purchaser, and will be reviewed at the end of the current five-year review period.

D.Public auction of allocations

Whenever allocations are forfeited or when new allocations become available, these allocations will be sold through a public auction process to a whitewater outfitter who is eligible by law to obtain the additional allocation and pays the appropriate fees.

E.Suspension of Allocations. The Department may temporarily suspend an outfitter's allocation within the following guidelines:

1. If an inspection of an outfitter's equipment by a warden of the Department reveals a hazard that places the health or safety of a member of the public in immediate jeopardy of serious injury, the warden may order a halt to the trip until such time as the equipment is brought into compliance with applicable regulations.

2. An outfitter has failed to pay the outfitter license fee, the quarterly allocation fees, or the use fees from prior periods.

3. An outfitter is convicted of filing a false accident report or of knowingly failing to file an accident report.

4. An outfitter is convicted of a violation of false swearing of information submitted to the Department regarding use of allocations.

5. Notwithstanding the allocation review period described above, allocations may be revoked, suspended of reduced pursuant to 12 MRSA Section12913, Subsection 4.

F.Additional Allocated Days(repealed effective August 25, 2014)

09- 137 C.M.R. ch. 14, § 07