601 KAR 1:030. Hearings.

 

      RELATES TO: KRS 281.625, 281.626, 281.630, 281.632, 281.635, 281.637, 281.640, 281.665, 281.670, 281.684, 281.690, 281.695, 281.801, 49 U.S.C. 14501(A)(2)

      STATUTORY AUTHORITY: KRS 281.600

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 281.625 requires the department to conduct hearings on applications for authority to operate motor carriers in the Commonwealth. The states' authority to regulate transporters of passengers or property is restricted by 49 USC 14501(A)(2) to intrastate transport only. This administrative regulation establishes guidelines for conducting hearings pursuant to KRS Chapter 13B and KRS 281.625.

 

      Section 1. (1) Application to be heard together. Applications shall be set for a hearing at the earliest statutorily-permissible date convenient to the cabinet.

      (2) A consolidated hearing shall be held if:

      (a) More than one (1) application has been filed seeking a certificate or permit to provide transportation services over the same route or any part thereof;

      (b) One (1) or more than one (1) application seeking the same or similar authority, has been filed prior to the issuance of notices of a hearing on any of the applications; or

      (c)1. A similar application is filed after hearing notices have been issued, but prior to the hearing date; and

      2. The hearing officer determines that consolidation would not jeopardize the rights of a party or the efficiency of the process.

      (3) Road conditions.

      (a) The cabinet may refuse to call a hearing on an application to authorize operations over a highway that, at the time of the application, has not been opened for use by the general public.

      (b) A hearing shall be called when the highway in question is open for traffic or shall be opened for traffic within sixty (60) days.

      (c) If, at a hearing called on an application, it is determined that the highway is not open for traffic and will not be opened for traffic within sixty (60) days of the date of the hearing, the cabinet may:

      1. Proceed with the hearing; or

      2. Dismiss the hearing with the provision that a hearing de novo will be called when it is determined that the road is open for traffic or will be opened for traffic within sixty (60) days.

 

      Section 2. Notice by Cabinet Regarding Application to Transport Household Goods or Passengers. (1) After the cabinet has received an application for operating authority pursuant to KRS Chapter 281 and 601 KAR 1:040, the cabinet shall send a notice of application to all known, required and interested parties.

      (2) The notice shall contain the following:

      (a) A statement that a hearing will be scheduled at a later date, convenient to the parties, if protest is filed;

      (b) A complete description of the authority sought and the matter to be heard;

      (c) The name and address of the applicant;

      (d) The docket number assigned to the matter by the cabinet;

      (e) A statement that anyone having an interest in the matter may file a protest or other proper pleading in accordance with KRS 281.265(2) and this administrative regulation;

      (f) If applicable, the name and address of the attorney representing the applicant; and

      (g) A statement that notice of protest must be filed within thirty (30) days from service of notice in order to be valid.

      (3) The cabinet shall send a notice of receipt of an application for a particular type of authority to each:

      (a) Holder of a certificate or permit granting the same or similar authority;

      (b) Other applicant for the same or similar authority; and

      (c) Person or entity designated in KRS 281.625(1)(b).

      (4)(a) If the applicant requests authority for an airport shuttle service, the cabinet shall serve notice on all airport shuttle services, limousines, and taxicabs operating in the county for which authority is sought;

      (b) If the applicant requests authority to operate a bus whether common carrier, suburban, city, industrial, or nonprofit, the cabinet shall serve notice on all taxicabs and limousines with a situs in the proposed bus service area and all buses in the state;

      (c) If the applicant requests authority to operate a common carrier limousine, the cabinet shall serve notice on all airport shuttle services, limousines and taxicabs in the county for which the certificate is sought;

      (d) If the applicant requests authority to operate a common carrier taxicab, the cabinet shall serve notice on all airport shuttle services, limousines and taxicabs with operating authority in the county for which the certificate is sought; and

      (e) If the applicant requests authority to operate a household goods carrier, the cabinet shall notify all household goods carriers.

      (5) The cabinet shall consult with the parties and schedule an administrative hearing to be held pursuant to the provisions of KRS Chapter 13B and shall send a notice of hearing pursuant to KRS 13B.050 if:

      (a) The department receives a protest or other pleading in response to the notice of application;

      (b) The department determines that a hearing is necessary even though a protest or other pleading was not received in response to the notice of application;

      (c) The department receives a request to hold a hearing on a complaint received;

      (d) The department receives a request to hold a hearing pursuant to KRS Chapter 281; or

      (e) As indicated by 601 KAR 1:095.

      (6) The notice of hearing shall include:

      (a) Information required by KRS 13B.050(3); and

      (b) A docket number assigned by the cabinet.

 

      Section 3. Notice of Change in Route. (1) A regular route bus, other than a city bus, which proposes a change in route or an abandonment of any route shall:

      (a) Give detailed notice of its proposed action to all competing and connecting carriers;

      (b) Publish once a week for three (3) consecutive weeks an advertisement in a sufficient number of newspapers of general circulation to cover the territory affected by the change sought.

      (2) The advertisements required in subsection (1) of this section shall clearly indicate the following:

      (a) The proposed change;

      (b) The proposed effective date of the change; and

      (c) That any person desiring to protest may do so by filing a protest with the cabinet in accordance with Section 4 of this administrative regulation.

      (3) The first required notice shall be published on or before the date on which the application is filed with the cabinet;

      (4) The second and third required notice shall be published during the next two (2) succeeding calendar weeks.

      (5)(a) Not later than ten (10) days subsequent to the third publication of the advertisement, the applicant shall file with the cabinet an affidavit, stating that the required notice has been given.

      (b) The affidavit shall be accompanied by a copy or copies of the advertisements.

 

      Section 4. Protests and Other Pleadings. (1) General.

      (a) All protests, pleadings, motions and other papers filed with the cabinet shall be typewritten and double-spaced on white eight and one-half (8 1/2) inches by eleven (11) inches paper, properly styled with the matter to which they are relative, and the docket number assigned thereto by the cabinet, if any.

      (b) Any protests, pleadings, motions, or other papers may be printed and, if printed, need not be double-spaced.

      (c) Pleadings, protests, motions, or other papers filed by the parties represented by an attorney shall be signed by at least one (1) attorney of record in his individual name and shall state his address.

      (d) Except when specifically provided otherwise, pleadings need not be verified or accompanied by an affidavit.

      (e) The attorney's signature shall constitute a certification that he has read the matter; that to the best of his knowledge, information, and belief the statements contained therein are true; and that it is not interposed for delay.

      (f) If the matter is not signed or is signed with the intent to defeat the purpose of this administrative regulation, it may be stricken as sham and false, and the matter may proceed as though there had been no filing.

      (g) All protests shall state the ground of the protest.

      (h) That which is not filed in conformance with the requirements of this subsection shall not be considered or accepted as a matter of record.

      (2) Filing. The cabinet shall mark, on the document, the date and time of filing a protest or any other document, in accordance with KRS 13B.080(2). If the date on which any protests, pleadings, motions or other papers shall be filed is Saturday, Sunday, or a legal holiday, the date for filing shall be the close of the next regular business day of the cabinet.

      (3) Time of filing protests. A protest shall be filed with the cabinet within thirty (30) days from the date notice of application is served except:

      (a) A protest to a time schedule change shall be filed not later than five (5) days before the effective date of the proposed time schedule change;

      (b) A protest to a proposed change in the existing tariff of carriers of household goods shall be filed not later than fifteen (15) days after the proposed tariff change is filed with the cabinet;

      (c) A protest to a proposed change in existing fares of carriers of passengers shall be filed at least ten (10) days before the proposed effective date of the proposed change.

      (4) Service of pleadings and other papers. Any person who files a protest, pleading, complaint or other paper, shall serve a copy thereof upon the applicant, respondent, or initiating party and shall certify to the cabinet that the service has been accomplished.

      (5) Withdrawal. Any person who desires to withdraw an application, protest, pleading or other paper may do so upon written notice to the cabinet and to the interested parties as soon as possible. A notice of withdrawal shall be in conformance with the requirements of this administrative regulation.

      (6) Replies to protests. If a protest to a proposed change in the existing tariff of a carrier of property is filed, the carrier requesting the proposed change may file a reply to the protest within ten (10) days of the filing of the protest.

      (7) If no protests or other pleadings are filed within the time prescribed, the cabinet may determine the case on the basis of affidavits. The procedure to be followed is set forth in 601 KAR 1:031.

 

      Section 5. Continuances. (1) All hearings shall be held on the day set in the notice of hearing issued by the cabinet. A change in the hearing date shall not be made except:

      (a) Upon agreement of all interested parties with approval of the hearing officer; or

      (b) Upon order of the hearing officer for any reasons deemed necessary or advisable.

      (2) If the continuance is granted after the original hearing notice has been served, the hearing may be reset at any time provided that notice of the new hearing date is served on all parties not less than ten (10) days' prior to the new hearing date. The ten (10) day notice may be waived by agreement of all parties.

 

      Section 6. General Practice. (1) Appearances. If an applicant or protestant fails to appear at a hearing on the application, the hearing officer shall proceed in accordance with KRS 13B.080(6). If an application is denied or dismissed pursuant to KRS 13B.080(6), a similar application by the same applicant shall not be entertained until six (6) months have elapsed.

      (2) Adjournment. The hearing may be adjourned to a future day for just cause shown, or with consent of the parties, or by order of the hearing officer.

      (3) Service on attorney. When a party has appeared by an attorney, all communications, notices, pleadings, and other formal documents shall be sent to the attorney. Service on the attorney shall be considered as service on the party. The party shall notify the cabinet and other parties of any change in attorney.

      (4) Evidence. The hearing officer shall admit evidence in accordance with KRS 13B.080 and 13B.090.

      (5) Prepared statements. Prepared sworn statements may be received in evidence, but copies thereof shall have been furnished to the hearing officer, reporter, and all parties a reasonable time before their receipt into evidence, so that any objections may be made before the statements are made a part of the record.

      (6) Exhibits. All exhibits filed during a hearing shall be furnished to each party, unless otherwise ordered by the hearing officer.

      (7) Transcript.

      (a) Recording and transcription of a hearing is governed by KRS 13B.090(6).

      (b) The cabinet shall not issue a recommendation or final order until it receives the original transcription of all hearings related to the case.

      (8) Exclusion of witnesses. Upon request of a party or on the hearing officer's own motion, witnesses may be excluded from the hearing room. Principals including owners, officers, partners, or directors may remain in the hearing room subject to the approval of the hearing officer.

      (9) Subpoenas. In accordance with KRS 13B.080(3), an applicant, protestant, or other party, who desires to summon and compel the attendance at any hearing of any witness or witnesses, or who desires the production in evidence of any books, records, papers, etc., shall request from the hearing officer a subpoena or a subpoena duces tecum or orders of personal attendance.

 

      Section 7. Briefs. (1) In accordance with KRS 13B.080, the cabinet may receive briefs:

      (a) If a party requests opportunity to submit a brief and is allowed to do so by the hearing officer; or

      (b) If the hearing officer requires the filing of briefs.

      (2) If a brief is submitted, the opposition may respond. Every brief or response shall become part of the official record of the proceeding as required by KRS 13B.130.

      (3) The time for filing of briefs and responses shall be set by the hearing officer at:

      (a) The close of the hearing; or

      (b) During the prehearing conference.

 

      Section 8. Restrictive Amendments. (1) An applicant may offer a restrictive amendment to an application prior to, during, or after any hearing held on an application.

      (2) The amendment offered shall be:

      (a) Reasonable;

      (b) Enforceable;

      (c) Consistent with the public interest; and

      (d)1. In compliance with Section 4 of this administrative regulation, if submitted in writing; or

      2. On the record, if offered during a hearing.

      (3) The Commissioner of Vehicle Regulation or a properly-designated representative of the commissioner shall accept or reject a proposed restrictive amendment.

      (4) The Commissioner of Vehicle Regulation shall provide a copy of an order accepting or denying a restrictive amendment request to the applicant, protestants, and other parties to the proceedings.

 

      Section 9. Report and Recommended Order. The hearing officer shall submit a report and recommended order in compliance with KRS 13B.110.

 

      Section 10. Exceptions and Replies Thereto. (1) A party to a hearing may, in accordance with KRS 13B.110(4), file and serve exceptions to the report and recommended order.

      (2) The exceptions shall conform to the requirements of Section 4 of this administrative regulation.

      (3) Exceptions shall consist of as many objections to the whole or any part of the report as the party filing the exception desires to make, with each objection numbered.

      (4) The party filing exceptions shall fully state the grounds for each one.

      (5) Replies to exceptions shall be filed within fifteen (15) days after service of the exceptions, if any party desires to make a reply.

      (a) The reply shall conform to the requirements of Section 4 of this administrative regulation.

      (b) The reply shall consist of a separate reply to each objection set out in the exception.

 

      Section 11. Final Order. (1) The Commissioner of Vehicle Regulation shall constitute the head of the agency for purposes of:

      (a) KRS 13B.030(1), Powers of agency head; and

      (b) KRS 13B.120, Final order.

      (2) Until the cabinet has approved a change or modification of a certificate granted by final order of the commissioner, a carrier shall operate according to the time schedule and schedule of rates, fares, and charges granted by that final order. (DMT-16; 1 Ky.R. 782; eff. 5-14-75; Am. 18 Ky.R. 2692; eff. 4-3-92; 22 Ky.R. 1720; 2295; eff. 6-6-96; 28 Ky.R. 463; 863; eff. 10-2-2001.)