19910402.docx

Minutes of Decision Meeting
April 2, 1991 - 10:00 a.m.
In attendance:
Commissioner Joe Miller, Ralph Nelson and Marsha Smith; staff members Mike Gilmore, Tonya Clark and Myrna Walters.
Item discussed was Mike Gilmore's March 13, 1991 Decision Memorandum re:  Case No. 31.B-R-91-1 (Motor Carrier Rules).
Commissioner Miller asked if any of these rules needed discussion before we propose them?
Mike Gilmore said he was sure there would be comment on 19.
Commissioner Miller said he didn't see anything in any of those to discuss before they were proposed.
Mike Gilmore said one of the things he put in 18 and 19 was fieldmen say people plead ignorance on these.  Wouldn't hurt to put in the rule that they need to have them with them and know them.
Commissioner Miller asked - could we say something to the effect that when you accept a certificate, the acceptance carries with it surety that you have read the rules, etc., by issuance of that you are deemed to have read them, etc.?
Tonya Clark said it is a finding in the order and they certify to it in the certificate.  Could go back to the stage where they certify.
Commissioner Smith said all that needs to be done is to get that certificate to the prosecutor.
Mike Gilmore said a lot are interstate and we don't have certification on them.
Commissioner Nelson asked about interstate carriers rolling through with hazardous waste in inappropriate containers?
Commissioner Smith said in certification hearings in the past they were asked about this.
Commissioner Miller said 1 thru 18 - Don't think we need to specifically speak to them.
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Rule 19.
What are the arguments for and against drug testing?  Has the federal drug testing been challenged?
Tonya Clark said random testing has been challenged and it is on hold.  Spoke to other testing (for employment).
Commissioner Miller said this might be one to have a firm opinion on before we put it out.  Need to understand what we are doing when we propose it.
Tonya Clark explained why it was in there.  Pressure has been put on by IMTA and MCSAP.  That is the only argument for it.
Commissioner Miller asked what is the drug testing rule we are adopting?
Tonya Clark said basically it is the pre-employment drug testing requirement (mandatory).  Have to go to a doctor or a certified lab.  
How it would affect PUC would be that the paperwork would be in the file when we do a safety check.  That would have to be in the file.  Gave example of federal enforcement.
Mike Gilmore suggested you could adopt it for all carriers who have to comply with federal rules.
Explained the federal regs.  Everybody has to go through pre-employment.  Asked whats random testing?
Commissioner Smith said she liked adopting it for the interstate carriers that already have to comply.
Tonya Clark said she would say the pressure is going to come from MCSAP.
Mike Gilmore said if you are thinking of adopting it strictly for interstate it would take pressure off small operators.
**Random testing is by the carrier.
It is testing by the employers.
They are disqualified for one year (for failing test or refusing test).
Commissioner Smith asked what they were testing for?  Is it defined?
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Mike Gilmore responded - federal definition of controlled substance.
Tonya Clark said personally would like to stay out of it.
Discussed - pre-employment is sensible, and post-accident.
Commissioner Smith asked about adopting pre-employment and post-accident and leave out the others?
Mike Gilmore said yes.  Employees' assistance programs are a problem for small carriers.
Commissioner Miller said like employment system better than coercive.  Don't know what is out there.
Mike Gilmore said he did think we would be doing our carriers a favor if we required pre-employment testing and recordkeeping requirements.
**Okayed pre-employment, post-accident and record keeping.
Discussed employment assistance program.
Mike Gilmore read from the federal statutes on this.
Commissioner Nelson said he was not anxious to require that of all the carriers.
Mike Gilmore said he would rather write our own rule patterned after federal.
Commissioners agreed that was a good idea.
Commissioner Miller asked Tonya clark about material on the drug testing and advisability and legality of it.  Get us a little more educated on what we are doing here.  Better be prepared to defend ourselves.
Tonya Clark asked what material Commissioners want?
Commissioner Miller said EAP and articles on whats agreeable, not, etc.  What would also be helpful to him is:  we talk about small shipper, it might be worthwhile to have some statistics showing who makes up the intrastate group:  Are they all really small independent people, how many are there, how many are bigger guys, how many would have institutional size to comply..with what we are doing here?
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Mike Gilmore asked:  Separate carriers by gross revenue?
Tonya Clark said this year's annual report asks for more information.  Only quick check would be number of trucks.
Commissioner Miller said he would like a little bit better profile on the carriers.
Rule 22 - Certificate of Insurance.
Commissioner Smith questioned the base state registrant requirement.  Asked if only those who claim Idaho as base state is registered?
Tonya Clark said yes.
Commissioner Smith said she thought the comment should be reworded.
Tonya Clark said we are only requiring insurance on Idaho base state carriers.
Mike Gilmore will rewrite that to say only Idaho-based carriers.
Rule 23.
Commissioner Smith asked if there was a penalty on this - Page 27 of the Decision Memorandum.
Mike Gilmore said he thought it would be useful on the larger carriers.
Rule 33 -
Commissioner Smith said she didn't understand alternative 49CFR, are we making a choice?
Commissioner Miller said this rule would seem to apply to Greyhound Depot downtown.
Tonya Clark said the interstate is the problem.  When it first came up in Lewiston, they kept it open but not Coeur d'Alene.  They were closing.  Greyhound said you don't have authority.  They did cooperate somewhat.
Commissioner Nelson said he thought this was going to be tough.  If we required facility to be open certain hours, they would close it down.
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Tonya Clark said there is no incentive if they don't sell any tickets.  Am leaning toward the CFR because it is federally acceptable.  
Commissioner Miller said the only problem he had was with (b).  Questioned saying "to the extent possible".
Mike Gilmore suggested taking that phrase out.
Commissioner Nelson said if we adopt CFR and found in a situation where one of these items wasn't being complied with, we could question why isn't that possible.
Mike Gilmore said it is hard to believe there would be a place where there wouldn't be a phone available.  Why would you drop people off there?
Tonya Clark said if its somebody else's facility, they might have an overhead shelter.
Commissioner Smith suggested moving to the extent possible to a more appropriate place in the sentence.
Rest is mandatory.
Rule 37.
Okay.
Page 4 of the Decision Memo.
Things not covered by the draft.
Commissioner Miller said right today, don't know how keen he is about return to economic regulation.
Tonya Clark said she would agree today we don't have information if you want a minimum standard.  Think sometime this year, thought, we are almost obligated to get some input from the industry.  There is definitely interest in it.  In particular, small less-than-truckload people say they need protection.  Everybody's operating ratio is about 97/98%.  Tell them if they want to protest, do it.  Would at least like Commissioners to have an open mind to what they have to say.  Carriers seem to want a little more PUC regulation.  Didn't finish addressing maximum rate tariff.
Commissioner Smith said it seems information you need is if the delivery of services is adequate in areas?  How do you find that out?
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Tonya Clark suggested hearings including shippers.  Think some service has definitely dropped.  Revolving door of carriers, is that good?  Just for the overall economy, revolving door approach isn't good?
Mike Gilmore suggested contacting the Idaho Association of Cities to get that information.
Tonya Clark said Commerce does that also.  Can see it in the bus network.
Commissioner Miller said on very general terms it has to be on adequacy of service to the public.  Don't think it is our job to protect previously regulated arrears from economic adversity unless you can point out or establish that service really does suffer as a result.  Don't know if we can take on financial protection of that industry when the entire interstate arrangement is toward the competitive model as opposed to regulatory model.
Commissioner Nelson said - might look at it differently on passengers.  Emphasis is on freight, nationally.
Tonya Clark said all the states around us (Oregon and Washington) are the strongest.
Mike Gilmore said Oregon has strongest trucking presence.
Commissioner Miller said - how do you get a reliable answer to - has the Idaho experiment been profitable to Idaho?  Real question is:  Has this experiment produced real benefits?
Commissioner Smith said she didn't know who you would get to do that study.  Don't know if the data exists.
Tonya Clark said the whole argument to fend off federal preemption is that each state is unique.  So whether or not you want to compare it to federal is a question.
Mike Gilmore said for the most part we weren't forcing trucks to go under the old system.  Said his memory was there were still lots of bankruptcies in the past also.
Tonya Clark said she did look at the length of being in business in Idaho.  Think the turnover is higher now.  Don't have old annual report information.
Commissioner Smith said  - has an open mind but her focus is whether or not the public has adequate reliable service at fair rates.
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Tonya Clark said she didn't know if we can get that information through our hearing process.
Commissioner Miller asked if there haven't been studies on trucking deregulation?  Asked Tonya Clark if there was a type of study that she would want?
Tonya Clark said she could go back and look at other studies.
Commissioner Miller said - adequacy of service and access to service.
Commissioner Smith said it is misleading information.
Commissioner Miller said his thinking is the same as  Commissioner Smith's. Before we embark on this publicly would want to be pretty well prepared to know that we are going to get something out of the process.  Starting out to ask a question publicly that you can't answer ... don't know if we want to do that.
Mike Gilmore said he thought you should have predispositions before you start on this.
Commissioner Miller said the public process would be helpful but quality of that information may not be good enough to make a fundamental change of how we approach this industry.  
Commissioner Smith said she thought industry was doing a study.  Think you should look into what kind of studies should be done and how much it will cost.  Without knowing that, it is hard to see if we should tell people where to operate.
Tonya Clark asked - do we want any kind of standard, whether it is statewide, or minimum financial, or do we want to let it lie for now?
Commissioner Miller said he thought that was all involved in this.  
Commissioner Nelson said if we could get geared up, hearings later in the year would be good.
Commissioner Smith said inviting people to come forward on how the industry is operating, what are the problems they see, what is actual scope of operating, etc.
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Tonya Clark suggested coming up with a questionnaire to the carriers.
Commissioner Smith said - would like to know how the carriers think it is working.  Ask where do you actually operate, should you have an obligation to operate if its statewide?
Commissioner Miller said if we had some type of study like that in our hands, that would be the basis for opening the hearing process.  Based on this study, want to have a public process, that would put a lot more sand under our feet.  Lets think about groundwork before we launch into this.
Tonya Clark said she would work on a survey.
Commissioner Smith suggested consulting with Don Reading on the type of questions to be on a questionnaire.
Mike Gilmore will work on a drug testing rule.
**Don Reading will be contacted for help on the questionnaire.
        DATED at Boise, Idaho this       day of May, 1991.

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