UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

Columbia River Pilots, an unincorporated association.

File No. 941 0047

AGREEMENT CONTAINING CONSENT ORDER

The Federal Trade Commission, having initiated an investigation of certain acts and practices of Columbia River Pilots ("COLRIP"), and it now appearing that COLRIP, hereinafter sometimes referred to as "proposed respondent," is willing to enter into an agreement containing an order ("Agreement") to cease and desist from the use of the acts and practices being investigated and providing for other relief:

IT IS HEREBY AGREED by and between proposed respondent, by its duly authorized officers and attorneys, and counsel for the Federal Trade Commission that:

1. Proposed respondent Columbia River Pilots is an unincorporated association with its office and principal place of business located at 13225 N. Lombard, Portland, OR 97203.

2. Proposed respondent admits all the jurisdictional facts set forth in the draft of complaint here attached.

3. Proposed respondent waives:

a. any further procedural steps;

b. the requirement that the Commission's decision contain a statement of findings of fact and conclusions of law;

c. all rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this Agreement; and

d. any claim under the Equal Access to Justice Act.

4. This Agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this Agreement is accepted by the Commission it, together with the draft of complaint contemplated thereby, will be placed on the public record for a period of sixty (60) days and information with respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this Agreement and so notify the proposed respondent, in which event it will take such action as it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision, in disposition of the proceeding.

5. This Agreement is for settlement purposes only and does not constitute an admission by proposed respondent that the law has been violated as alleged in the draft of complaint here attached, or that the facts as alleged in the draft complaint, other than jurisdictional facts, are true.

6. This Agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of § 2.34 of the Commission's Rules, the Commission may, without further notice to proposed respondent, (1) issue its complaint corresponding in form and substance with the draft of complaint here attached and its decision containing the following order to cease and desist in disposition of the proceeding and (2) make information public with respect thereto. When so entered, the order shall have the same force and effect and may be altered, modified, or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery by the U.S. Postal Service of the complaint and decision containing the agreed-to order to proposed respondent's address as stated in this Agreement shall constitute service. Proposed respondent waives any right it may have to any other manner of service. The complaint may be used in construing the terms of the order, and no agreement, understanding, representation, or interpretation not contained in the order or the Agreement may be used to vary or contradict the terms of the order.

7. Proposed respondent has read the proposed complaint and order contemplated hereby. Proposed respondent understands that once the order has been issued, it will be required to file one or more compliance reports showing that it has fully complied with the order. Proposed respondent further understands that it may be liable for civil penalties in the amount provided by law for each violation of the order after the order becomes final.

ORDER

I.

IT IS ORDERED that, as used in this order, the following definitions shall apply:

A. "COLRIP" means Columbia River Pilots, its directors, officers, employees, agents and representatives, predecessors, successors, and assigns; its subsidiaries, divisions, groups and affiliates controlled by COLRIP, and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.

 

B. "Commission" means the Federal Trade Commission.

 

C. "Columbia and Willamette River Pilotage Ground" or "the Grounds" is one of the pilotage grounds designated by the State of Oregon, and refers specifically to the Columbia and Willamette Rivers and their tributaries from the lowermost dock or wharf at the Port of Astoria to the head of navigation.

 

D. "Marine pilot" means an individual licensed by the State of Oregon to assist the master of a vessel on the Grounds, but does not include a pilot trainee or apprentice.

II.

IT IS FURTHER ORDERED that COLRIP, directly, indirectly, or through any corporate or other device, in connection with its activities in or affecting commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 44, cease and desist from:

A. Imposing any restrictions or penalties of any kind on COLRIP marine pilots who leave COLRIP, or who notify COLRIP of their intention of leaving COLRIP, to provide pilotage in competition with COLRIP; provided, however, that this subparagraph does not apply to restrictions or penalties on marine pilots who have been members of COLRIP for less than five (5) years, nor does this subparagraph apply to restrictions or penalties that are imposed on a marine pilot for failure to give at least ninety (90) days’ advance notice of departure from COLRIP;

 

B. Entering into, or attempting to enter into, any agreement or understanding (other than agreements or understandings with COLRIP members, trainees or apprentices limited to performance of their pilotage duties with COLRIP and to the term of their membership, apprenticeship or training program with COLRIP), either express or implied, with any other provider or potential provider of marine pilotage on the Columbia and Willamette River Pilotage Ground:

(1) to divide, apportion or otherwise allocate customers, routes or any other aspect of the market for marine pilotage;

(2) to limit the number of marine pilots associated with any provider or potential provider of marine pilotage or otherwise restrict the amount of marine pilotage any provider or potential provider of marine pilotage may provide;

(3) to restrict the ability of any other provider or potential provider of marine pilotage to enter into exclusive dealing contracts with any customer; or

(4) to restrict the ability of any provider or potential provider of marine pilotage to submit proposals, recommendations or any other communication to the Oregon Board of Maritime Pilots.

III.

IT IS FURTHER ORDERED that COLRIP shall, within sixty (60) days after the date on which this order becomes final, amend its constitution, bylaws, standards of conduct, codes of ethics, membership rules, and any other statements of policy or agreements, to conform to the requirements of Paragraph II of this order.

IV.

IT IS FURTHER ORDERED that COLRIP, directly, indirectly, or through any corporate or other device, in connection with its activities in or affecting commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 44, shall not prevent any COLRIP marine pilot from recommending or otherwise supporting an applicant for a Certificate as a Pilot Apprentice Trainee or an applicant for a marine pilot license. Nothing in this paragraph is intended to interfere with COLRIP’s right to recommend certain applicants over others, nor to interfere with COLRIP’s obligation as a training organization to evaluate the performance of apprentices and trainees and to make recommendations about licensure.

V.

IT IS FURTHER ORDERED that COLRIP shall:

A. Within thirty (30) days after the date on which this order becomes final, distribute a copy of the complaint, the order, and the notice set out in Appendix A to the order, to each of its officers, members, marine pilot trainees, and employees, and a copy of the complaint, the order, and the notice set out in Appendix B to the order, to the Columbia River Steamship Operators Association; and

 

B. For a period of ten (10) years after the date on which this order becomes final, furnish a copy of the complaint, the order, and the notice set out in Appendix A to the order, to any new officers at the time they are elected, any new members at the time they become members, any new marine pilot trainees at the time they become trainees, and any new employees at the time they are hired.

VI.

IT IS FURTHER ORDERED that COLRIP shall:

A. Sixty (60) days after the date on which this order becomes final, annually for the next ten (10) years on the anniversary of the date this order becomes final, and at other times as the Commission may require, file a verified written report with the Commission setting forth in detail the manner and form in which the respondent has complied and is complying with Paragraphs II, III, IV and V of this order;

 

B. For a period of ten (10) years from the date this order becomes final, notify the Commission at least thirty (30) days prior to any proposed change in respondent COLRIP, such as dissolution, assignment or sale resulting in the emergence of a successor, or the creation or dissolution of subsidiaries or any other change that may affect its compliance obligations arising out of this order; and

 

C. For a period of ten (10) years after the date on which this order becomes final, notify the Commission within thirty (30) days after the respondent forms, participates in the formation of, or joins any joint venture for the provision of marine pilotage on the Columbia and Willamette River Pilotage Ground. This paragraph does not require notification when a marine pilot joins COLRIP as a member of COLRIP.

VII.

IT IS FURTHER ORDERED that, for the purpose of determining or securing compliance with this order, upon written request, respondent shall permit any duly authorized representative of the Commission:

A. Access, during office hours and in the presence of counsel, to any facilities and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of respondent relating to any matters contained in this order; and

 

B. Upon five days’ notice to respondent and without restraint or interference from it, to interview officers, directors, or employees of respondent in the presence of counsel.

VIII.

IT IS FURTHER ORDERED that this Order shall terminate twenty (20) years after the date it becomes final.

Signed this day of , 1998.

COLUMBIA RIVER PILOTS,
an unincorporated association.

By:

Captain Steve Brown
President, Columbia River Pilots

FEDERAL TRADE COMMISSION

By:

K. Shane Woods
Attorney
Seattle Regional Office

Approved: