20090622Vol I Boise Telephonic Hearing.pdf

ORIGINAL
.BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO NORTHERN &
PACIFIC RAILROAD'S OBJECTION TO
THE COMMISSION'S 2009 ASSESSMENT
FEE
) CASE NO.
) INP-R-09-01
)
) TELEPHONIC HEARING
)
HEARING BEFORE
COMMISSIONER JIM D. KEMPTON (Presiding)
COMMISSIONER MARSHA H. SMITH
COMMISSIONER MACK A. REDFORD
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PLACE:Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE:June 16, 2009
VOLUME I - Pages 1 - 17
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BOISE, IDAHO 83701
208-336-9208
,e HEDRICK
COURT REPORTING
cfeM1¡ tk ¥ Cl1f(lt¡olíree 19
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2 For the Staff:
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5 For INPR:
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APPEARANCES
WELDON STUTZMAN, Esq.
Deputy Attorney General
472 West Washington
Boise, Idaho 83702
BRENT M. BURNS, Controller
IDAHO NORTHERN & PACIFIC RAILROAD
6100 Southwest Boulevard,
Suite 320
Forth Worth, Texas 76109-3985
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HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
APPEARANCES
HEDRICK COURT REPORTING
P. O. BOX 578, BOISE, ID 83701
INDEX
EXHIBITS
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1 BOISE, IDAHO, TUESDAY, JUNE 16, 2009, 10:30 A.M.
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4 (Staff Exhibit Nos. 1 and 2 were marked
5 for identification.)
6 COMMISSIONER KEMPTON: Let's go on the record.
7 It is June 16, 2009. The location is the PUC hearing room in
8 Boise, Idaho. The purpose is to conduct a hearing, and this is
9 the date and time and place for doing that by telephone
10 connection in the matter of Idaho Northern & Pacific Railroad's
11 objection to the Commission's 2009 assessment fee, specifically
12 identified as Case No. INP-R-09-01.
13 Present are Commissioners Kempton, Redford, and
14 Smith.
15 The proceedings in this case are being conducted
16 in accordance with Commission jurisdiction under Title 61,
17 Idaho Code, the Commission rules and procedures under Idaho
18 Administrative Procedures Act 31.01.01, and the Commission has
19 jurisdiction over this matter under Title 61 Idaho Code, and
20 specifically Idaho Code 61-1007 which requires a hearing in the
21 event of a fee objection.
22 There are certain parties to participate in the
23 hearing: Yourself, of course, Mr. Burns, as the objector; the
24 Staff of the Idaho PUC and the Idaho Attorney General's office,
25 and that will be Staff Attorney Weldon Stutzman. It's not a
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COLLOQUY
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1 hearing for public participation, but it is open to the public
2 if they call in on the telephone line that's identified by the
3 Commission for that purpose.
4 In the matter of appearances, Mr. Burns, you'll
5 be -- are you going to be the only one discussing this issue
6 from your office?
7 MR. BURNS: Yes, sir.
8 COMMISSIONER KEMPTON: Okay. There's certain
9 procedures on a telephonic communication that I'd like to go
10 over very briefly.
11 MR. BURNS: Okay.
12 COMMISSIONER KEMPTON: The participant -- in your
13 case, once you do the initial identification, you won't have to
14 do any other because you're the only one -- but participant
15 must identify themselves before speaking and must identify who
16 they are representing when they are first speaking, and that's
17 primarily for purposes of the recorder.
18 Only two people will be discussing at anyone
19 time. There will be no interruptions.
20 The Deputy Attorney General, Weldon Stutzman,
21 will guide the telephonic discussions from this end, and the
22 Commission may ask any questions at any time through the Chair.
23 We will have to administer an oath and I'll do
24 that, and then Deputy Attorney General Stutzman will request
25 personal information after I administer the oath.
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1 Are those instructions clear from your end?
2 MR. BURNS: Yes, sir, they are.
3 COMMMISSIONER KEMPTON: Okay. What I'd like to
4 do, first of all, is just to outline the case and then I'll go
5 ahead and swear you in, Mr. Burns, for your testimony. But I'd
6 like to have Deputy Attorney General Weldon Stutzman define the
7 case, the parameters of the case, if he would, or if he would
8 call on Mr. Hattaway to do that.
9 MR. STUTZMAN: Mr. Chairman, either way. We're
10 prepared to proceed, and I can call Mr. Hattaway to the stand
11 and he can just present our position if that's the way you'd
12 like to proceed.
13 COMMISSIONER KEMPTON: Your choice, Mr. Stutzman.
14 MR. STUTZMAN: We'll go ahead and proceed,
15 Mr. Hattaway then.
16 COMMISSIONER KEMPTON: Okay. Mr. Burns,
17 Mr. Hattaway will present testimony first as far as defining
18 the outlining parameters of the issue.
19 MR. BURNS: Okay.
MR. STUTZMAN: We'll actually call Mr. Hattaway
21 to the stand, Mr. Chairman, and have him sworn in.
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COMMISSIONER SMITH: Do you want me to swear him?
COMMISSIONER KEMPTON: Go ahead and give him the
24 oath.-25
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1 DAVID HATTAWAY,
2 produced as a witness at the instance of the Staff, being first
3 duly sworn, was examined and testified as follows:
4
5 DIRECT EXAMINATION
6
7 BY MR. STUTZMAN:
8 Q.Please state your name for the record and spell
9 your last name.
10 A.My name is David Hattaway, H-A-T-T-A-W-A-Y.
11 Q.And how are you employed?
12 A.I'm the Deputy Administrator for the Idaho Public
13 Utilities Commission.
14 Q.And as part of your job duties, do you assist the
15 Commission in determining the annual regulatory fee for
16 railroad companies?
17 A.I do.
18 Q.What is your role in that process?
A.My role? That is to determine the proportional
20 share of the Commission's operating expenses to be paid by the
21 utili ties and the railroads, the presentation of that
22 determination to the Commission for its approval, and then the
23 notification of the utilities and railroads of their assessment
24 fee and the mailing of those notifications.-25 Q.Does the Commission issue an Order in that
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HATTAWAY (Di)Staff
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1 process?
2 A.It does.
3 Q.Did the Commission issue an Order to establish
4 the regulatory assessment for railroads in 2008?
5 A.It did.
6 Q.Do you have in front of you, Mr. Hattaway, what's
7 been marked as Exhibit No.1?
8 A.I do.
Q.Do you recognize that?
A.Yes.
Q.What is that?
A.It's Order No.30538,which was issued in the
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13 case for the 2008 annual assessment.
14 COMMISSIONER KEMPTON: Mr. Burns, do you have
15 that exhibit?
16 MR. BURNS: Yes, sir, I do.
17 COMMISSIONER KEMPTON: Very well.
MR. STUTZMAN: Mr. Chairman, I'd ask that
19 Exhibit No.1 be admitted into the record.
20 COMMISSIONER KEMPTON: Considered.
21 (Staff Exhibit No. 1 was admitted into
22 evidence. )
23 Q.BY MR. STUTZMAN: Mr. Hattaway, do your duties
24 also include notifying the railroad companies of their annual
e 25 regulatory fee?
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HATTAWAY (Di)Staff
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1 A.It does.
2 Q.And describe that process for me, please.
3 A.What happens is -- is that on or before the 1st
4 of April, I collect all of the utilities' and railroads' gross
5 intrastate operating revenues for the preceeding year.
6 On or before April 15th, I determine the
7 Commission's operating expenses to be paid by the utili ties and
8 railroads. I then divide the Commission's operating expenses
9 by the cumulative gross intrastate operating revenues. I
10 determine the rates to be used to calculate the proportional
11 assessment.
12 I then present that determination to the
13 Commission for its approval.
14 The Commission then issues an Order, and I use
15 the rates established in that Order in preparing the letters to
16 go to the utilities and the railroads, informing them of their
17 annual assessment rates. I then cause the letters to be
18 copied, collated with the Order, folded, stuffed, and then
19 mailed.
20 Q.Okay. Do you have in front of you what's been
21 marked as Exhibit No.2?
A.I do.
Q.Do you recognize that?
A.Yes.
Q.And what is that?
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HATTAWAY (Di)Staff
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1 A.That's the statement for the 2008 annual
2 regulatory fee sent to Idaho Northern & Pacific Railroad.
3 COMMISSIONER KEMPTON: Mr. Burns, do you have
4 that exhibit?
5 MR. BURNS: Yes, I do.
6 MR. STUTZMAN: Mr. Chairman, I'd move that
7 Exhibi t No. 2 be admitted into the record.
8 COMMI S S I ONER KEMPTON: Moved.
9 (Staff Exhibit No. 2 was admitted into
10 evidence. )
11 Q.BY MR. STUT ZMAN : The procedure that you jus t
12 described for notifying railroad companies, was that the
13 procedure that you followed last year to notify the Northern &
14 Pacific Railroad Company of its 2008 assessment?
15 A.It is.
16 Q.Had you followed that procedure, would both the
17 Order, which is Exhibit No.1, and the letter, Exhibit No.2,
18 have been provided to the railroad company?
A.Yes.
Q.Are you reasonably certain that both the letter
21 and the Order were mailed to the railroad company?
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A.I'm reasonably certain that they were mailed.
Q.Why is that?
A.Because the address that's on the statement of
the 2008 annual regulatory fee
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HEDRICK COURT REPORTING
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HATTAWAY (Di)Staff
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1 Q.Exhibit No.2?
2 A.-- Exhibit No.2, is the address that the Postal
3 Service uses to deliver its mail. That address shows through
4 the window envelope in which the letter is put, is stuffed.
5 And so in order for the letter to get there, it would have to
6 be -- this letter would be the address that would be used.
7 Q.So if only the Order had been stuffed in the
8 envelope, would it have been possible for the Post Office to
9 deliver it to the railroad company?
10 A.No, it wouldn't.
11 Q.Did the Idaho Northern & Pacific Railroad pay its
12 2008 assessment in 2008?
13 A.No, it did not.
14 Q.When did you learn that the railroad had not paid
15 its 2008 fee?
16 A.When I was preparing the 2009 assessment.
17 Q.Did you subsequently speak with anyone at the
18 railroad company about the 2008 fee?
19 A.Yeah, I received a phone call from Mr. Burns,
20 stating that he had not been notified of this 2008 assessment
21 and that he shouldn't have to pay the interest rate.
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Q.Okay.When was that conversation?
A.On or before the 18th of May.
Q.Of what year,of this year?
A.2009.
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HATTAWAY (Di)Staff
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1 Q.Thank you. What did you tell Mr. Burns regarding
2 payment of the 2008 fee?
3 A.Well, I told him if he'd pay the 2008 and 2009
4 assessment, that I'd waive the interest payment.
5 Q.Did you later contact Mr. Burns regarding the
6 2008 fee?
7 A.I did. I left an e-mail telling him that I did
8 not have authority to waive the assessment, that it would have
9 to be a formal obj ection be filed with the Commission.
10 Q.You said, "Waive the assessment." Did you mean,
11 "Waive the interest component"?
12 A.Waive the interest component, yes.
13 Q.And is that what resulted in the letter being
14 sent to the Commission that's dated May 21, 2009, from the
15 railroad company?
16 A.Yes.
17 MR. STUTZMAN: Thank you, Mr. Chairman. That's
18 all I have.
19 COMMISSIONER KEMPTON: Thank you, Mr. Stutzman.
20 The witness is excused, or may step down.
21 (The witness left the stand.)
22 COMMISSIONER KEMPTON: And could we have a pause
23 here just for a minute, Mr. Burns? We've got an air
24 conditioner that's coming on. I don't know if it's bothering
e 25 you, but it's bothering us quite a bit. I need to get that
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HATTAWAY (Di)Staff
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i thing off.
2 (Discussion off the record.)
3 COMMISSIONER KEMPTON: Okay, Mr. Burns, you will
4 have an opportunity to question Mr. Hattaway if you so choose.
5 What I would like to do is for you to acknowledge, first of
6 all, whether that testimony was materially correct, but before
7 I do that, what I'd like to do is go ahead and swear you in and
8 get your information for the record.
9 MR. BURNS: Okay.
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11 BRENT M. BURNS,
12 produced as a telephonic witness at the instance of Idaho
13 Northern & Pacific Railroad, being first duly sworn, was
14 examined and testified as follows:
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16 COMMISSIONER KEMPTON: And, Mr. Stutzman, would
17 you go ahead and bring Mr. Burns to the stand?
18 MR. STUTZMAN: Yes.
EXAMINATION
22 BY MR. STUTZMAN:
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Q.Thank you, Mr. Burns. Good morning.
A.Good morning.
Q.Would you please state your name and spell your
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Burns
INPR
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1 last name for the record?
2 A.Brent Burns, B-U-R-N-S.
3 Q.And how are you employed?
4 A.I'm employed as corporate controller for
5 Rio Grande Pacific Corporation and through its holding company
6 for the Idaho Northern & Pacific Railroad.
7 Q.And as part of your job duties, is it your
8 responsibili ty to see that the railroad regulatory fee is paid
9 each year to the Idaho Public Utilities Commission?
10 A.Yes, it is.
11 Q.Okay. We have before us today an obj ection by
12 the railroad regarding the interest component of the 2008
13 regulatory fee, and I understand you caused that obj ection to
14 be filed?
15 A.I did.
16 Q.Would you please explain to the Commission why
17 the Railroad believes it should not be responsible for the
18 interest on the 2008 regulatory fee?
19 A.I had put a call in a phone call in after
20 receiving the Order document, the receipt, in the mail, the
21 Order documenting the 2008 fee. The cover letter was not
22 attached or had been misplaced. I put a phone call in to
23 Mr. Hattaway's office, directed to him at that time, and did
24 not receive a call back.
e 25 I subsequently called again about two to three
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Burns
INPR
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1 weeks later, and again didn' t receive a call back.
2 Then upon receiving the 2009 assessment showing
3 the interest due, I proceeded to put a phone call in, as
4 Mr. Hattaway had already indicated, and I do not have any
5 obj ections to any of his testimony as to what happened
6 subsequent to that.
7 So our obj ection to the fee is just a matter of
8 requesting or putting in a call to the Commission for a copy of
9 that invoice and never receiving a copy of it, only to receive
10 a statement a year later saying that we that the interest
11 was due.
12 Q.Okay. Are there any other facts that you believe
13 are relevant for the Commission's consideration of your -- of
14 the railroad's obj ection?
15 A.Well, the only other thing I would add to that is
16 we have -- we've never been in delinquency with the Commission
17 on any fee in prior years since its origination, which I assume
18 is prior to me coming to work in 1998. So we are not obj ecting
19 to the fees due, just the, I guess for lack of a better term,
20 the way the paper trail ended up on this situation where we
21 never were able to get a copy of the -- of the 2008 statement
22 based upon phone call transmission.
23 Q.Okay. And I understand the railroad has paid
24 both the 2008 and the 2009 fee. Is that correct?
25 A.Yes, we submitted payments -- separate
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HEDRICK COURT REPORTING
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Burns
INPR
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1 payments -- on those.
2 Q. Okay.Thank you.
3 A.Thank you.
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5 EXAMINATION
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7 BY COMMISSIONER KEMPTON:
8 Q.Mr. Burns, this is Jim Kempton.
9 A.Yes, sir.
10 Q.The exhibit number that was identified and you
11 stated that you had available
12 A.Uh-huh.
13 Q.represents the statement for the 2008 annual
14 regulatory fee?
15 A.This would be the cover letter that states our --
16 states the amount due from the Idaho Northern.
17 Q.Yes. This is the -- this is the April 25, 2008,
18 Exhibit No.2?
A.Okay.
Q.Is there, separate from the -- from the Order
21 itself, is this document not clear, in your mind, as far as the
22 requirement for your payment?
23 A.No, it's clear. Like I -- and I'm not sure I
24 made myself clear.
e 25 What we received, what I had in hand back in
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Burns (Com)
INPR
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1 April of 2008, was only a copy of the Order. We did not have a
2 copy of the cover letter stating what our fee was.
3 Q.Is that what you meant when you said that you
4 were missing the normal statement of 2008 annual regulatory
5 fee?
6 A.Yes.
7 COMMISSIONER KEMPTON: Are there other questions
8 by the Commission?
9 COMMISSIONER SMITH: No.
10 COMMISSIONER REDFORD: No.
11 (The witness left the stand.)
12 COMMISSIONER KEMPTON: Well, Mr. Burns, I think
13 the information that we have is sufficient for the Commission
14 to make a Decision on this.
15 MR. BURNS: Okay.
16 COMMISSIONER KEMPTON: There will have to be a
1 7 privately-deliberated process in which we review your statement
18 and the official statement provided by Mr. Hattaway.
MR. BURNS: Okay.
COMMISSIONER KEMPTON: And I appreciate the
21 clarification on the -- although it's in your document, in your
22 filing in your obj ection. I wasn't sure that this paper, this
23 one on April 25th noted as Exhibit No.2, actually was not
24 included with the Order, that it was somehow perhaps misplaced
e 25 or you didn't see it or whatever. At least the two don't seem
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1 to have been together in the detail that you indicate that you
2 expected to have. Is that correct?
3 MR. BURNS: Yeah. In other words -- and I think
4 Mr. Stutzman had -- we touched base earlier in acknowledging
5 that obviously this mailing got to us because the second half
6 of that document ended up on my desk. It was just the cover
7 sheet. So our only option is to pick up the phone and call and
8 say, How much do we owe?
9 And when I didn't get a return call, the first
10 comment I made to Mr. Hattaway was, Heck, I didn't even know if
11 you guys were still in business over there, if the doors were
12 still open, because I didn't get a call back.
13 So we're not obj ecting to the fact that the fee
14 was due, nor have we ever. It's just the way in which the
15 interest was assessed, not being able to get a copy of the
16 cover letter invoice.
17 COMMMISSIONER KEMPTON: Okay. Thank you,
18 Mr. Burns.
19 MR. BURNS: Okay. Thank you.
20 COMMISSIONER KEMPTON: The Commission now
21 considers all information fully submitted, and by Statute, the
22 Commission will issue an Order within 20 days, Mr. Burns.
23 MR. BURNS: Okay.
24 COMMISSIONER KEMPTON: And this hearing is
25 adj ourned. Thank you very much for working with us on this.
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COLLOQUY
e 1 AUTHENTICATION
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3
4 This is to certify that the foregoing is a
5 true and correct transcript to the best of my ability of the
6 proceedings held in the matter of Idaho Northern & Pacific
7 Railroad's objection to the Commission's 2009 assessment fee,
8 Case No. INP-R-09-01, commencing on Tuesday, June 16, 2009, at
9 the Commission Hearing Room, 472 West Washington, Boise, Idaho,
10 and the original thereof for the file of the Commission.
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WENDY N ta y Public
in and for the e of Idaho,
residing at Meridian, Idaho.
My Commission expires 2-5-2014.
Idaho CSR No. 475
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HEDRICK COURT REPORTING
[phone]
AUTHENTICATION
¿;' ~,
Offce of the Secretar
Service Date
April 25, 2008
e BEFORE THE IDAHO PUBLIC UTILITIES COMMSSION
IN THE MATTER OF THE ASSESSMENT
OF RALROAD CORPORATIONS FOR THE
SPECIAL REGULATORY FEES PAYABLE
TO THE COi\:LWSSION FOR FISCAL YEAR
2009
)
) CASE NO. F-2008-2
)
) ORDER NO. 30538
)
Durg the 2008 session, our Legislatue passed and the Governor signed Senate
Bils 1439 and 1487 appropriatig a total of $5,261,300 to the Commission for operations durng
fiscal year 2009 (July 1, 2008 to June 30, 2009). Ths appropriation represents $136,000 for
railroad activities, $5,053,400 for public utility activities, and $71,900 for pipeline safety
activities reimbursable by the federal governent.
This Order assesses the railroads their share of the total appropriation: $136,000.
The railroads have an adjusted car-over balance of $32,000 from FY 2007 expenditues and an
underfded tre-up of ($14,011). Idaho Code § 61-1008(3). Thus, the Commission is
_ authorized to assess $118,011 for FY 2009 railroad operations.
The reported gross intrastate revenues from railroad operations in Idaho totaled
$14,672,548 for calenda year 2007. Ths is an increase of $600,745 (4.27%) from last year's
reported revenues. Accordingly, the proportionate share of each railroad's fee is to be assessed
at .8043 percent (.008043) of each railroad's gross intrastate operating revenues. In no case shall
the assessed regulatory fee be less than $50. Idaho Code § 61-1004(3).
FINDINGS OF FACT
In accordance with Idaho Code §§ 61-1001 though 61-1008, the Commssion is
authorized to assess $118,011 for supervising and regulating the railroads subject to our
jursdiction.
The total reported Idaho gross intrastate revenues for all railroads for the 2007
calendar year amounts to $ 14,672,548.
The proportionate assessment for each railroad corporation is .8043 percent
(.008043) of Idaho gross operating revenue derived from intrastate railroad corporation business
for the 2007 calenda year. In no case shall the assessment be less than $50.e
,ORDER NO. 30538 1
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_ ORDER
IT is THERFORE ORDERED, except as provided in the following paragraph, that
each railroad corporation operating within the State of Idaho and subject to the jurisdiction of
this Commission shall pay to the Idaho Public Utilities Commission for the 2009 fiscal year a
special regulator! fee amounting to .8043 percent (.008043) of such railroad's gross operating
revenues derived from its intrastate business in Idaho for the 2007 calendar year.
IT is FURTHER ORDERED that if the fee thus determined shall be less than fift
dollars ($50), then such railroad corporation shall pay to the Commission the minimum of fifty
dollars ($50) as prescribed by law. See Idaho Code § 61-1004(3).
IT is FURTHER ORDERED that at least one-half of such regulatory fee shall be
paid to the Commission on or before May 15, 2008, and the remaining one-half shall be paid on
or before November 14,2008. Railroad corporations may pay their entire anual regulatory fee
no later than May 15,2008.
IT IS FURTHER ORDERED that if the payment shall not be made on or before the
due dates, the installment or portion thereof so due shall bear interes(at the rate of six percent
e (6%) per anum until such time as the full amount of the installment shall have been paid and
such delinquent payment shall be subject to an action in the name of the State for collection.
THIS IS A FINAL ORDER. Any railroad objecting to the assessment prescribed in
this Order may file an objection with the Commission pursuant to Idaho Code § 61 - 1 007 no later
than May 15,2008.
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ORDER NO. 30538 2
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ATTEST:
~Ð.~'i D, Jewelr-
C mmission Secretary. .
blslO:F-2008-2_dh
ORDER NO. 30538
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~¡f~
MARSHA H. SMITH, COMMISSIONER
3
-IDAHO
PUBLIC UTiliTIEScommission
C.L. "Butch" Otter, Governor
P.O. Box 83720, Boise, Idaho 83720-0074
April 25, 2008
Mack A. Redford, President
Marsha H. Smith, Commissioner
Jim Kempton, Commissioner .
BRENT BURNS, CONTROLLER
IDAHO NORTHERN & PACIFIC
6100 SOUTHWEST BLVD., STE 320
FORTWORTH, TX 76109-3985
Statement for 2008 Annual Regulatory Fee - Railroads
Authority: Idaho Code §§ 61-1001 and 62-611
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The Idaho Public Utilities Law requires each railroad providing servce in Idaho to pay a special
regulatory fee based upon its gross Idaho intrastate revenue for the proceeding calendar year~ Your
company reported Idaho intrastate revenue for the 2007 calendar year as $994,319.00 . Pursuant to
Idaho Code § 61 d 004 the Commission has determned that the assessment rate for the 2008 regulatory
fee is .8043 percent (.008043). The minimum reguatory fee is $50. Consequently, your company's
regulatory fee for 2008 is $7,997.31 .
The regulatory fee may be paid in equal semi-anual installments. The fist intalment of the
regulatory fee is due no later th May 15,2008. The second installment ofthe regulatory fee is due no
later than November 14, 2008. Installment payments received afer these dates shall accrue interest at
the rate authorized by law. You may also pay your entire anual regulatory fee no later than the first
installment date.
~..,.,
Please make check or money order payable to the Idaho Public Utilities Commssion. Any utility
objecting to the assessment stated above may file an objection with the Commission pursuat to Idaho
Code § 6l-lO07. . . "
Sincerely,
i/ d2.l/k~ .
David Hattaway
Administrator
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AsmntL05,doc
. Located at 472 West Washington Street, Boise, Idaho 83702
Telephone: [phone] Facsimile: [phone]