KAPLAN.docx

FAX [phone]
Jon Kaplan, Staff Counsel
US Department of Transportation
Office of Chief Counsel
FRA
407th Street SW
Washington, DC  20590
FAX [phone]
Warren S. Derbidge, Assistant US Attorney
US Attorney's Office
PO Box 32
Boise, Idaho  83707
Re:  V-1 Oil Company
Gentlemen:
As you may know, V-1 Oil has requested that the PUC explain Dan Vickers' involvement in an attempted inspection at V-1 Oil in May 1995.  In particular, V-1 Oil's local counsel, Kent Gauchay, requested that the PUC explain its involvement in the attempted inspection of V-1 Oil.
Attached for your information and review is a draft letter explaining the PUC's participation in the FRA safety program.  Based upon my review of federal and state law, I have concluded that the PUC’s state jurisdiction is limited to the surveillance and inspection of railroad operations and property but does not extend to the inspection of shippers or manufacturers.  My conclusion is consistent with other states (e.g., Oregon and Washington) which also determined that the public utilities commissions lack statutory jurisdiction over shippers or manufacturers transporting hazardous material by rail.  See 57 Fed. Reg. 28,112-13 (June 24, 1992).  In practical terms, future PUC inspection should be limited to railroad operations and rolling stock on railroad property.  However, it is possible during future inspections that state inspectors may inspect rail cars owned or leased to private entities.  In those instances where the PUC inspector believes that there are FRA hazmat violations on “private” cars, he will refer those violations to the FRA.
If you have any suggested revisions or questions about my letter , please call me at [phone].
Sincerely yours,
Donald L. Howell, II
Deputy Attorney General
DLH/vld/L-Kaplan
Enc.