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HomeMy WebLinkAbout20040816_917.pdf/.."""-'"'-' DECISION MEMORANDUM TO:COMMISSIONER KJELLANDER COMMISSIONER SMITH COMMISSIONER HANSEN COMMISSION SECRETARY COMMISSION STAFF FROM:DON HOWELL DATE:AUGUST 13, 2004 RE:THOMASON OUTFITTERS' COMMON CARRIER APPLICATION TO OPERATE ON WATERS OF THE STATE OF IDAHO, CASE NO. THO-O4- THE APPLICATION On July 23 , 2004, Timothy D. Thomason (through his attorney) filed an Application for Thomason Outfitters seeking authority to act as a vessel "common carrier" on the waters of the State of Idaho. As set out in his Application, Mr. Thomason proposes to operate a pontoon boat on the Snake River equipped with a dining facility that includes food and beverage service. App. at II. He proposes to conduct his operations generally between lower Salmon Falls Dam to the headwaters of CJ Strike Reservoir. He will conduct operations on a 30-foot pontoon boat powered by a 120 hp outboard motor.Id. at Ill.The Application indicates that the vessel will accommodate 14 persons including the operator. He proposes to operate year round and states that at the present time there are no operations of a similar nature. The charges for services will depend upon the length of the boat trip and the menu of food and beverages selected by each customer. Id. at VI. His Application included a Certificate of Insurance for personal injury and property damage in the amount of$l OOO OOO. Id. at VIII. Mr. Thomason is a guide licensed by the Idaho Outfitters and Guides Board. Mr. Thomason indicates that he intends to "fully comply with applicable Coast Guard regulations, as regards safe boating operations and the equipping of all persons boarding the vessel with Coast Guard approved personal floatation devices, and necessary fire-suppression devices.Id. He also states that he intends to comply with the provisions of the Idaho Safe Boating Act (codified at Idaho Code ~~ 67-7001 et seq.and the Idaho Safe Boating rules promulgated by the Idaho DECISION MEMORANDUM Department of Parks and Recreation, IDAP A 26.01.30. The Application is attached for your reVIew. Mr. Thomason has also provided a response from the United States Coast Guard Marine Safety Office in Portland. As indicated in the attached copy of an e-mail, the Coast Guard indicates that any commercial passenger vessel operation taking place up-river from river mile 450 (between Murphy and Melba) are not required to be inspected and certified by the U.S. Coast Guard. 46 C.R. ~ 175.110(b)(I). Thus, Mr. Thomason s boat would not be subject to Coast Guard inspection. STAFF ANALYSIS It is Staffs understanding that Mr. Thomason proposes to sell alcoholic beverages as part of his operation. The sale of alcoholic beverages requires a "liquor by the drink" license issued by the Idaho State Police. In particular Idaho Code ~ 23-906 provides that any person operating "any common carrier boat or boats ... desiring a license to sell liquor under the provisions of this act in any such... boats , ... shall apply to the director (of the Idaho State Police for a license." (emphasis added.! The term "common carrier" is not defined in the Liquor by the Drink Act Idaho Code ~ 23-902. However Idaho Code ~ 23-902(17) provides that all other words and phrases used in this chapter "shall be given their ordinary and commonly understood and acceptable meanings. Idaho Code ~ 61-113 provides that the term "common carrier include every corporation or person "owning, controlling, operating or managing any vessel regularly engaged in the transportation of persons or property for compensation upon the waters of this state.Idaho Code ~ 61-113(2) (emphasis added). Idaho Code ~ 61-126 provides that the term "vessel" includes "every specie of water craft, by whatsoever power operated, which is owned... for public use in the transportation of persons or property.Finally, the tenn "public utility" includes every common carrier. Idaho Code ~ 61-129. 1. Idaho Boating Safety. The purpose of the Idaho State Boating Act is to improve boater safety and to adopt certain standards for the safe operation and equipment of vessels. Idaho Code ~ 67-7001. As defined in the Safe Boating Act, a "commercial vessel" is any vessel used in the carriage of persons or property for a valuable consideration (i., compensation). The Safe Boating Act authorizes the director of the Department of Parks and Recreation to promulgate rules 1 This statute also applies to common carrier railroads and airlines. Idaho Code 9 23-906. DECISION MEMORANDUM establishing safety equipment requirements that "whenever possible" conform to the safety rules promulgated by the U.S. Coast Guard. Pursuant to the Safe Boating Act, the Idaho Department of Parks and Recreation has promulgated the Idaho Safe Boating Rules, IDAP A 26.01.30. Rule 50 requires every commercial vessel to have a Type I personal flotation device (PFD) of a suitable size for each person on board the vessel. IDAPA 26.01.30.050.01(d). Guam, Hawaii and Idaho are the only states that do not mandate PFD wear. In Idaho, a child 14 years of age and younger must wear an approved PFD. IDAP A 26.01.30.050.01 (t). Rule 75 also require certain types of fire extinguishers. 2. Outfitters and Guides Jurisdiction. In 1988, the Commission initiated a docket to determine whether it should propose administrative rules regulating vessels. In response to the Commission s Notice, it received "an outpouring" of comments primarily from licensed outfitters and guides objecting to the PUC's regulation of jet boats or commercial rafts as vessels. Order No. 21937 at 2. In addition, the Outfitters and Guides Licensing Board also urged the Commission not to promulgate any vessel rule because it stated the Board "has exclusive jurisdiction to regulate ground transportation and vessels. . . .Id. After the reviewing the Outfitters and Guides Act, the Commission decided in Order No. 21937 that the Outfitters and Guides Board has been given primary jurisdiction to regulate water transportation of licensed outfitters and guides in the performance of their licensed commercial activities. Id. at 3. The Commission observed that there was an absence of explicit legislation bestowing of exclusive jurisdiction or controlling judicial interpretation to warrant a conclusion that the Board has "exclusive jurisdiction.In particular, the Commission noted that not all commercial vessels are operated by licensed outfitters and guides. Id. In the end, the Commission declined to promulgate any administrative rules regarding vessels. STAFF RECOMMENDATION Given the apparent overlap in jurisdiction, the Staff recommends that based upon the facts set out in the Application that Thomason Outfitters be designated as a vessel common carrier. As an outfitter, Mr. Thomason is subject to the authority of the Outfitters and Guides Board and its administrative rules. In addition, his vessel operation must comply with the Idaho Safe Boating Act and Safety Rules promulgated by the Idaho Department of Parks and Recreation. His $1 million insurance policy exceeds the level of insurance ($300 000) required by the Outfitters and Guides Board. IDAP A 25.01.01.069.01. Staff further recommends that common carrier authority DECISION MEMORANDUM be issued for a period of one year with the applicant required to notify the Commission of its continuing operation on an annual basis. COMMISSION DECISION Does the Commission wish to issue an Order designating Thomason Outfitters as a vessel common carrier? Does the Commission wish to do anything else? IV~ Don Howell Vld/M:THOVO401 db DECISION MEMORANDUM JOHN A. DOERR ATTORNEY AT LAW 1031 Eastland Drive, Suite IB Twin Falls, ill 83301 Telephone: (208) 734-4034 Facsimile: (208) 734-9022 e-mail: jadlaw~onewest.net ISB #990 Attorney for Applicant. IN THE PUBLIC UTILITIES COMMISSION STATE OF IDAHO Case No. APPLICATION OF TIMOTHY D. THOMASON FOR AIJTHORITY AS COMMON CARRIER Comes now Timothy D. Thomason and applies to the Public Utilities Commission of the State of Idaho for authority as a common carrier, pursuant to I..C. ~~61-106, 61-113(2), and 61- 126. In support of his application, applicant states the following: I am a sole proprietor. My full name is Timothy D. Thomason. My business address is 09 West 100 North, Jerome, Idaho 83338. My business telephone number is 208/324-5598; my cellular phone number is 208/320-3474; my electronic address is ti1nt~thomasonoutfitters.com. My business name is Thomason Outfitters (see attached Certificate of Assumed Name). II. I propose to operate a dining facility with food and beverage service on a pontoon boat to be operated on the Snake River. From my experience in observing similar operations on reservoirs and rivers in other areas, I propose that there is a demand for such services in the intended area of operation, that such service will be frnancially successful, and that there is a public convenience and necessity for such service. There are no other operations offering similar services on the Snake River in the area in which I intend to operate. APPLICATION OF TIMOTHY B. THOMASON FOR AUTHORITY AS COMMON CARRIER - III. I intend to conduct the operation on the Snake River in areas 8 and 9 of the Outfitters and Guides Licensing Board. Area 8 is located from Lower Salmon Falls Dam downstream to the Bliss Dam; area 9 is from the Bliss Dam downstream to the headwaters of C.J. Strike Reservoir. I will conduct the operation on a 30 foot pontoon boat, Registration No. TO6149AF powered by a 120 hp. outboard motor. The vessel will accommodate 14 persons including the operator. The operation will be conducted year-round. At the present time there are no operations or utilities of a similar nature with which I am likely to compete. .1 V . A map of the proposed area of operation is attached to this application. The pontoon boat and motor are already owned by me and I anticipate no other expenses in commencing operation except cooking facilities, dining tables and chairs. I intend to commence operation of the service within 10 days after this application is granted. VI. The cost of the operation will be (1) annual maintenance of the vessel, which, based on prior experience, is minimal; (2) fuel; (3) hiring an additional operator, which will be on an as- needed basis; (4) insurance premium; (5) and food supplies, cost of preparation and service. Items (1) through (4) are expenses already incurred by me in the conduct of an outfitters and guide authority granted to me by the Outfitters and Guides Licensing Board of the State of Idaho. Item (5) will be the basic cost of food and beverage, and preparation and service thereof. Charges for the services I intend to offer will vary depending on the length of the boat trip and the menu of food and beverages selected by each customer. VII. A financial statement is attached. APPLICATION OF TIMOTHY B. THOMASON FOR AUTHORlTY AS CONIMON CARRIER - 2 VIII. The area of operation is not within the jurisdiction of the Coast Guard. A response to an inquiry by me to the Coast Guard regarding its possible jurisdiction is attached. Nonetheless, I intend to fully comply with applicable Coast Guard regulations, as regards safe boating operations and the equipping of all persons boarding the vessel with Coast Guard approved personal floatation devices, and necessary fIre-suppression devices. I intend also to comply with the provisions of the Idaho Safe Boating Act (Idaho Code ~67':'7001 et seq.) and applicable State Rules IDAPA 26.01.30. I have insured the operation; a copy of the Certificate of Insurance, providing insurance for personal inj ury and property damage in the amount of $1 000 000. \\Therefore, I respectfully request that the Public Utilities Commission grant me a certificate of authority to act as a common carrier as above provided. Dated this STATE OF IDAHO ) SSeCounty of Twin Falls) Timothy D. Thomason being fITst duly sworn, deposes and says: That he is the Applicant in the foregoing Application of Timothy D. Thomason for Authority as Common Carrier; that he has read the foregoing Application and believes the same to be true according to his best infonnation and belief. ll/~Tfutothy D. homason July, 2004. APPLICATION OF TIMOTHY B. THOMASON FOR AUTHORlTY AS COMMON CARRIER - 3 :; AUG-09:-2.13134 :.139 : 139 " .. ",.-; ':" "' .. ', " ;", "~; i/~ . .. , . '' .' :;;:. ' .. - ' Tt~I:~.4C:1..,-'~HJPP1NG CHAPTER I --( 0 AST GUARD. DEP AR TMENT OF HOl'vlELANP :;"'Sfi(i:tLtP.:T")" t('ONTlNTJED) PART 1 75--(1'ENERAL PROVISTONS-- Table of Contents Sec, 175.110 (J'~i~:e:l~~L,applk(\bility. (a) Except as in paragraph (b) of this section, this subchapter applies to each " ' \l~s ~J~5')fl:~gs th~n 1'00 gross tons that carries 150 or less p()$Sel1gers, or has overnight a(,;cq~ll modatiollS : ,: ~~" -t:Q("ff~t\br ti~s.s passengers, and that-- ; ,: ,,;' ", (:1~ r ~'; ~lfties jll ()rethai1 six passengers, including at least one for hire; ' ": :, (~J.I~'I~~,rr~re,d with a crew provided or specified by the owner or the o\vner g representative and is , , ::tc(il~f~lj:~1~,lil'9re than six passellgers~ , ; rr~i:tfs ~!l~u~~'r~d ,vith no crew provided or specified by the o\vncl' or the o"vner s representative and j ~b;yn~g loretha1' 11 passengers: or ; (4)Jf~?:'sub.11~rsjl)le vessel. carrh:--s at least 011C passenger for hire. N'ote to Sec, 17~11O:Por a vessel of les~;i1j'' 100 gross tons that can;es n\ore than 150 passengers or has overnight acco1llll1odcnions for l1),tH:e"t~)a)l' 49,passengers. see subchapter K of this chapter. ;, ," .: '::: 0' - K" ~ , --, ,", . i' , ,:! ' i:' ""' ' ", ," , , c; '" ,, --," ,, "" ,, "" "' :"/, ", , ', ,. ,JOHN A DOERR 121387.=.491322 132- ' Pag~ I of 2 , ;, :: Tio,t ~?,:;:'~':', ,' ---- ' r6~~; Set1t:, ~:~~~~t : , OSullivan. Harry C." or::HOSulllvan(g2PACNORWEST.USCG.mll::r c::ti rnt~thornasonoLJt1ltters. com;:. Wednesday, July 07. 2004 3:47 PM 46 CFR 175.11 O(b)(1) , , :TQ~hQ,m Ilrnay concern: " ' i 4'(tqf~ -115, 110 (b)( 1 ): A vassal 0 pe rati ng ex elusive Iy on inland waters that are not n aviga ~Ie. Yfatersof the/Unit~pf,$taf~i$ areno1requlred to be inspected and certificated by the United States Coast Guard: ' ,, ':' ';:; : '' ' ,. , " TI1~;U.jS~Coast Guard District Thirteen (Seattle. WA) has Jurlsdlct!on over the waters within the stateD! Idaho.The~~i~fric;offtc;e has determined that the Snake River Is only navigable up to river mite 450 at Guffy Dam ~ite t(p,~tW.~~~h:~Yrphy dn~ Melba. 10). Any commercial passenger vessel operation taking place aboye :~Yffy; :'::D:arr)trt\t~rrnUe'J450woljld net be subject to the Jlcenslng and Inspection regulations contained in 46 CFR. f::' :", I ~ , ; 1~~~W~~;~JI ~j~ pecto r J;J~SJ~G'aYi6e Safety Office , , 6:V67L\Sasin Avenue , ': ,: " f?3~.r,!t~,h~:t Qr~gQn 97217 \l,t5Jl$);J~4Q~937 4lFax (503) 240-9369 , , /h~$ii~:;~h ' p cn Of west. us cg. mil ; ,'.':,, ;'" " :, ,:.:' ," ' c , , .:, , :f' , " ..", :, '" ' :;i:;:i;;, , ' ;jb):!;ljJ!s~i~bchflpter d\)es not apply to: , ,;; ' (11 ~;tfqce3nQgraPbiC research vessel: " " ()~)')~~1()(ttfo~mingpart of a vessel's lifesaving equipment al1d that is not used for carrying passengers ::ex~~i ~*: h:~p1~rgel)cics or dul"ing emergency drj Us: itf).~'~ie~ser ~f ~l foreign counTry that is a pa!1y to the International COl1vention for the Safety of Life at:S~cli..Jf~?4:as amended (SOLAS), to whkh the United States Government is currently a paliy. and that has (1IFb;6~rda current valid saLAS Passenger Ship Safety Certificate; or 7/8/2004 ()U C.I:! 9- 2 88-1 89:10 ()M JOHI-I () DOERR 12897:0-19822 8:O--- -,., Page 2 of 2 ~: ::: ..: ', .... ',.. dh::esseL ot' a foreign country. whose government has inspection, laws approximat! ng those of the JJili IJ:St(ttes:and that by its laws accords similar privile~es to vesseb of lilc Unitt:d Stat~s, which has on bpt\rd,~ curt'cnt vnlid certificate of inspection. permitting the carrying of passen~ers. i.sst1~d by its " I.tti'Verriment, "" ,.. ' , Cr(;rJX:'i-mif), 61 FR (.)47 , Jiln 10 , J99o', 01 FR "O~~7 , M,ay 7, lQ96 , as ~ll1ellded at 61 FR 51355 , Sept. 3p. ~?971 , ':!~::, ,, ., ', '" .., .., " r ~, , ,, ,-. ,: ",,,,... ,, :,,; ,. ,, ,:::', ,, ;, ',,', ",, ", ,, ', -,::, ,: ~,, ', ''"'. ,:: ':\' t' , , ,, ",, "" ,, "' " 7/8/2004 , ," ,, ',"'"