19910710.docx

Minutes of Decision Meeting
July 10, 1991 - 1:30 p.m.
In attendance were:  Commissioners Joe Miller, Ralph Nelson and Marsha H. Smith and staff members Scott Woodbury, Don Howell, Terri Carlock, Tonya Clark, Brad Purdy, Jack Taylor, Gary Richardson and Myrna Walters.
Items from the July 10, 1991 Agenda were discussed as follows.
1.  Regulated Carrier Division Agenda dated July 8, 1991.
Discussed Blue Mountain.
**Will give him temporary authority.  Then hold hearing.
Mike Gilmore asked about Roadrunner.
**Will wait on this one.
2.  Don Howell's July 9, 1991 Decision Memorandum re:  Burlington Northern's Application to Eliminate Its Sandpoint Freight Agency, Case No. BN-R-91-1.
Commissioner Miller said he would suppose Commission should set a hearing.  Don't know if we want to do modified on a closure.
Discussed hearing dates. - Discussed September 11.
Don Howell asked about prefiled versus live testimony.
Commissioner Nelson said prefile would be nice but how much would we get?
Commissioner Miller asked how thorough the application was?
Don Howell responded.  Company says it is cost-savings.  Staff's concern is our contact with shippers didn't support their contention.  Spoke to hazardous materials shipping.  They did file revenue reports.
Commissioner Miller said he didn't think Commission needed prefile.  
Commissioner Smith suggested staff prefile.  Would then want railroad to respond.
Don Howell asked about a shipper survey?
Commissioner Miller asked if staff is going to take an active position?
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Commissioner Smith asked if staff was going to take position or if they were just going to do a shipper survey.  Don't need to prefile if they are not going to actively take a position.
Discussed the shipper survey.
Commissioner Miller said if staff is going to actively oppose it, prefile by August 16.
Don Howell asked about the burden of proof?  Applicant usually bears the burden.  Coeur d'Alene agency in 1985, staff didn't oppose.  You can guarantee UTIC will be there and they will oppose it.
Tonya Clark said if staff was going to take a position it would be based on shipper survey, etc.  Don't want to speak for the shipper.
Commissioner Smith said shippers should speak for themselves.
Don Howell said what we want more information on is travelling customer service.  Don't know details of that.
Commissioner Miller said Commission could require railroad to file by such and such date, then staff, then rebuttal.  Make it a real case.
Don Howell said maybe we don't need to make filing schedule now.  Can report to the Commission what our position will be.
**Could set filing dates after receipt of shipper information.
Commissioner Miller said keep this hearing date.  Maybe we should decide right now how to handle it.
Commissioner Smith said if you are going to have a real hearing, would be to get company testimony, etc.
**Decision:  set company prefile first.  Company testimony by July 31.  Staff by August 21, rebuttal by September 6.
Don Howell said he didn't think we will need full four weeks for staff.  Put intervention date 2 weeks after company has filed.
Commissioner Nelson's suggestion of putting intervention date before company filing was okayed.
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**In attendance at this time were:  Stephanie Miller, Don Oliason and Bill Eastlake.
3.  Beverly Barker's July 2, 1991 Decision Memorandum re:  Hayden Pines Excessive Water Loss Adjustment Policy.
Asked Stephanie Miller about this.
Stephanie Miller said she was not familiar with it but knew there was much negotiation by the company and staff on this.
**Approved the tariff.
4.  Keith Hessing's July 9, 1991 Decision Memorandum re:  UP&L Exit Fee - Case No. UPL-E-90-1, Order No. 23508.
Commissioner Smith moved approval.
Commissioner Nelson said language here is what he thought we intended.
Commissioner Miller said question he thought was answered was for how long new purchaser has that right.  It didn't say clearly how long you have no exit fee right.
Commissioner Nelson said you are not going to buy piece of ground after crops are planted.
Commissioner Smith said in either event, when new customer goes in to change name on account, that is the time to decide on schedule.
Commissioner Miller said our general view is first time new customer turns on, could switch from what it was previously, after that would have exit fee?
Brad Purdy said company could be contacted and have them amend language.  If customer leased the land in August, the following spring they would have option to switch rates at that time.  Following year they would not.
Commissioner Smith suggested saying "initially" be allowed.
Commissioner Miller thought something to clarify that was appropriate.  May not be big deal but it is ambiguous.  Think we all want to say - in the first season.  At the time you sign up as customer you have right to change without fee but after that you pay the fee.
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Commissioner Nelson said if it is someone from outside the area they won't know.
**Commissioner Miller asked Brad Purdy to take to the company about clarifying the language.
5.  Four Title 62 Companies have not paid their Fiscal '92 Regulatory Fee - What should next action be?
After discussion, decision was to send a strong letter requiring action in 10 days.
6. thru 9. - Security Issuance Cases - listed on Agenda.
Commissioner Nelson commented it was a lot of stock for Idaho Power.
Terri Carlock responded.  The preferred market is fairly good right now.
Commissioner Nelson said he didn't have a problem with ratios when you get done.
Moved approval of all security issuance matters - 6 thru 9.
Other Commissioner concurred.
Terri Carlock said on Citizens, will make note about the renewals - how they intend to handle it for ratemaking treatment.
Commissioner Nelson asked who buys the PPL custodials?
Terri Carlock responded - any of their customers.
10. Mike Gilmore's July 7, 1991 Decision Memorandum re:  Proposed Revision of Motor Carrier Rules-Case No. 31.B-R-91-2.
Rule 1.  Source of Authority--Applicability--Interpretation--Liberal Construction.
Commission proposed technical amendments to this rule.  No comments were received.
Commissioners adopted rule as proposed.
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Page 2 - Rule 6 - Code of Federal Regulations--Federal Register.
Technical amendments proposed - no comments received.
Rule adopted as proposed.
Rule 11.  Accident Reporting
Commissioner Nelson asked Tonya Clark what she thought of it?
Tonya Clark said she thought it should be withdrawn.  No one could remember why staff wanted it.  Can leave it as is.
Commissioner Miller asked if she thought the current rule was being complied with?
Tonya Clark said that is why we picked up on it.
Commissioner Miller asked where the $4,400 came from?
Tonya Clark said that is federal code.
After discussion was decided to leave the rule as is.
Rule 12 - Motor Carrier Safety Rating.
Went with Nugent on technical correction.
Should Commission explicitly list possible penalties for failure to maintain or upgrade to satisfactory safety rating?
Decision was - no.
Next question was:  Should the 18-day provision for petitioning for review of safety rating be clarified to say working or calendar?  Vote was 2 to 1 to clarify it by saying calendar.  
Commissioner Nelson said it means cleaner - needs no further clarification - voted no.
Page 4/5 - **Add reference to 49 C.F.R.    
Page 6 - Should an analogous paragraph be added to the Commission's Rule 12?
Yes.
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Discussed 49 C.F.C. - 385.21 requiring all motor carriers to file motor carrier identification report, which contains two kinds of information--motor carrier identification and operating information--as well as a certification that the previous two kinds of information are correct.
Discussed the two kinds of information.
Should the annual reports be expanded to address some or all operating information?
Tonya Clark said we have motor carrier identification information.
Commissioner Miller suggested leaving the annual reports in the same form.
Tonya Clark said she prefers not setting out in the rules what the annual report should require.  It changes.
**Decision was to not add requirements.
Exclude 49 C.F.R. - 385.21.
Rule 18 - Transportation of Hazardous Materials, Substances and Waste.
Question is:  Should the extensive revision of the C.F.R. parts continued in what has become known as HM-171 rulemaking be adopted by reference?
Tonya Clark said this is the latest version of the hazardous materials section.        
Commissioner Nelson said it would be easier to be consistent with the feds.
Agreed.
Rule 19 - Motor Carrier Safety Requirements
Nugent of Legislative Council correctly notes a typographical error in the adoption by reference of one of the federal rules--49 C.F.C. Part 391 is incorrectly referred to as Part 351 once in the text of adoption by reference.
Correction will be made.
Rule 21 - Insurance Requirements.
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Commission proposed technical changes to the adoption by reference of federal regulations and listing of existing insurance requirements.  No comments were received.  However, staff in reviewing the rules noticed that the existing rule and proved rule both require common and contract carriers to maintain cargo insurance for the fair market value of the cargo.  Staff therefore proposed an exception to the rule.
Discussed staff modification.
Commissioner Miller asked if the proposed staff modification was so different from original notice that it should be noticed again.  Wondered if you are going to adopt a different rule, do you need to go through another comment period, etc.
Tonya Clark said the practice has been to allow contract carriers to contract their insurance but it wasn't clear in the rules.
Commissioner Nelson asked if they would have to carry two kinds of insurance?  Isn't that confusing?
Tonya Clark asked about contracting out?
Commissioner Smith said it might get you a better rate.  
Commissioner Nelson said if he was the insurance company would want same premium all the time.  As long as the guy has a policy to cover him... if he has to check insurance before he goes out, it is a problem.
Tonya Clark said there are some common/contract dual authorities.  In most cases you would have one or the other.  Common would have cargo.  Contract would have choice of always providing cargo insurance or putting it in the contract.  Each contract could be different.  Only question for us is whether or not the shipper knew whether or not he was protected if it was in the contract.
Commissioner Miller suggested saying "implicitly stated in the contract".
Carrier could say we agreed shipper would provide.
Tonya Clark said it would have to be in the contract rule.
Suggested putting written contract instead of by contract.
Approved that.
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Rule 22 - Certificates of Insurance.
Approved as proposed.
Rule 23 - Vehicle and Carrier Identification
Adopted as proposed.
Rule 24 - Leases of Equipment.
Commissioner Miller said even though Nugent saw a problem, thought it should be left alone.
Commissioner Nelson said there is a duty.  It is in their own best interest to see that the paper work gets done.
Commissioner Miller suggested Commission could observe that the problem he perceives is not really a problem in the Commission's experience.
Decision was to not modify the rule to explicitly place the wrap-up duties on either the lessor or the lessee.
Leave as is.
Rule 26 - Tariffs.
Commissioners agreed to staff's rewording to clarify a carrier's obligation to distribute tariffs to all interested persons.
Rule 32.  Shipping Receipts, Bills of Lading, Freight bills, Statements, Passenger Tickets, Inspections and Retention of Records.
Rule adopted as proposed.
Rules 33, 36, 37, 41 and 42 were adopted as proposed.
Rule 51.  Interstate and Foreign Commerce.
Commissioner Nelson said he just didn't know on this.  Asked Tonya Clark about it.
Tonya Clark said she thought she would leave this in and not break it out into its own rule.  Rule 51 has never said much, suggest putting it all together.
Commissioner Miller asked if at this point we had promulgated anything on this rule?
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Tonya Clark said we haven't talked about the identifiers and bingo stamps before.
Thought Commission will have to do another rulemaking on this if it wasn't mentioned in the proposed.
Commissioner Miller said he thought there will have to be a new Rule 51 and go through the process on that.  at this point just have in the order that 51 will be subject of rulemaking - all others okay.
Rule 52 - System of Accounts - adopted as proposed.
Rule 55 - Base State Registrations - adopted as proposed.
Rule 17.  Controlled Substance Testing
Commissioner Nelson said on random drug testing, think we got pretty strong directive from Interim Committee.  
Commissioner Miller said we had initially proposed a different format for intrastate carriers in terms of size, etc.  Comments do seem to run in the direction that our concern about size and recordkeeping was not well placed.  They all seem to say it is easier to comply with federal system than "hybrid" Idaho system.
Commissioner Smith said yes to rule of general applicability and no to "thresholds".
Commissioner Miller commented that the thresholds didn't seem to please anyone.
Commissioner Smith said most people thought any threshold was discriminatory.
Commissioner Miller said we can make that decision but so you would have federal format for all Idaho carriers but random testing is complex question.  First question could be is it generally applicable to all registrants regardless of size?  
Other major question is whether the Idaho rule should include random testing provision which we proposed initially not to include.
With respect to random testing, had large number of comments, all of which as he understood them, were generally in favor of random testimony.
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How many companies do we have that are purely intrastate?
Tonya Clark said 550 carriers have intra.  How many operate interstate as well, don't know.
Commissioner Miller said those companies are already covered by interstate rule.
Tonya Clark said there would be a small number of intrastate only.
Commissioner Miller said when we are thinking of adopting random drug testing rule, keep in mind what we do is academic because they are already covered by federal.  There are those who are Idaho-only and they would now be covered by that rule.  Notwithstanding the comments in favor of random drug testing, think it is worthwhile to keep in mind, read Court of Appeals decision on drug testing.  Random drug testing is search and seizure and when it is done by a private... Is there a compelling state ...that compels a random test without any suspension and in order to say that that is okay, you have to say there is some compelling governmental interest that justifies the invasion.  Have hard time seeing that if we are just looking at carrier not subject to federal.  Think that public safety is clearly the reason and deterrent of drug use is important, but the justification used in the Ninth Circuit case was along the line that often times the truckers are away from hom, etc., on long hauls, there is no supervision.  As a consequence, can't observe his behavior so random is okay.  The Idaho intrastate carriers, when you have the availability of employer's observation and all these other things, wonder about the compelling government interest in random testing for that group of people.  Can see it for airline pilots, long haul truckers but have hard time seeing it for those people.
Commissioner Nelson asked about the Ninth Circuit decision?
Commissioner Miller quoted from the decision.  Said even if you can see your employee, might not be able to detect and maybe random testing is the only way to detect it.  For this little group we re talking about have hard time finding it in this record.
Commissioner Nelson said asked if you can use the argument that prior tests have shown probability of testing positive is reason for random testing?  Can you make the argument that it is an industry problem?  Does that carry any legal weight?
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Commissioner Miller said he thought it could.
Commissioner Nelson explained what he heard random testing did for you.
Commissioner Smith said she thought Commission should adopt random testing.  Her view is less on the theory of government need but more on the sense of uniformity in the rules since we in other respects have gone with the federal rule.  
Commissioner Miller said we got to the uniformity thing by our first decision.  Have all the carriers, interstate and intrastate, both already have drug testing requirements by virtue of federal rule.  If we adopt the federal rule verbatum without random testing, the effect will be the intrastate and interstate have to do random testing.  Only people that won't are people who are only intrastate.
Commissioner Smith said she couldn't think of a reason to exclude them.  What difference does state line make?  Gave example of haul.
Commissioner Miller said Commission could make another decision for those.
Commissioner Nelson said the biggest reason for that is if we don't, they won't be adopted by the Legislature.  
Tonya Clark said she had the minutes from the meeting.  Read from those.  There are some statistics available.  Only other comment, even truly intrastate carrier, if he is close to the Idaho border, once he makes a trip out of state he is out of compliance with our rules.  If he set up standards for interstate he would be covered for intra.
Don Howell said you have the other four parts of the drug testing.  You just don't have random.
Commissioner Nelson said he was now convinced legislature would think that is adequate.
Commissioner Miller said the legislators haven't had benefit of thorough study like we have.  Reason we exist is to deal with matters that require more indepth decision.
Commissioner Smith said she didn't think this decision should turn on whether or not they will approve it.  That is not a consideration for her.
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Don't want if its true you find a higher percentage under random than under periodic testing or scheduling testing, don't want Idaho to be a haven for recreational users.
Commissioner Miller said he supposed the concern about offenders migrating to that type of jurisdiction is there.  When you take into account our decision only affects intrastate registrants, am not sure how strong a worry that would be.
Commissioner Smith said if you want to convince her you will have to give her a list.  Want to see who they are.
Don Howell spoke to the Ninth Circuit decision.  Spoke to the random testing.  Explained why the five-element program.
Commissioner Miller said nothing we did to date precludes an employer from adopting a policy.
Commissioner Smith said there was testimony that they were glad to have the rule because without it they wouldn't have done it.
Commissioner Nelson said one of his real concerns is we will go through all this and we are not testing for alcohol abuses.
Tonya Clark commented - think alcohol will be in the federal regs in the future.
Commissioner Miller asked if there was any further discussion - those in favor of random testing?
Two to one - Commissioners Nelson and Smith voted affirmatively - Commissioner Miller dissented.
Recordkeeping requirements.
Commissioner Miller said he assumed this would flow from all our other decisions and we would adopt federal recordkeeping rule.
Same is true of employee assistance program.
Page 30 of Decision Memorandum - Should reasonable cause testing be required for all intrastate carriers covered by the rule?  Yes.
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Page 31 - Should post-accident testing be required by all carriers covered by the intrastate rule?  Yes.
Commissioner Nelson questioned the cost of employee assistance programs.
Commissioner Miller said we didn't receive any comments about it being too expensive and burdensome.
Commissioner Smith said on Page 33 decision - should rule be worded differently from the federal regulation - no - despite what Nugent said, would go with uniformity.
Commissioner Miller said for diplomatic purposes, would suggest Tonya Clark go over these with Nugent.
**Approved consistent wording.
EXTRA ITEM - Island Park Water.
Scott Woodbury said John Sharp, attorney for the company wants a 2 week extension for filing application for certificate.  
After brief discussion, Commissioners approved the 2 week extension.
Scott Woodbury said procedurally, since most of the customers are seasonal, what about a hearing in Inland Park?
Commissioner Smith suggested interim rates until a hearing can be held; authorize rates in effect now until hearing.
Scott Woodbury said it was the level of rates that instigated the complaint.
Commissioners approved making them subject to refund.
12. Petition from small hydro operators requesting Commission to initiate, on its own motion, a review of the variable rate currently paid to cogeneration and small power producers who are operating under the authority of pre-1991 rate orders.
Commissioner Miller said he would suggest that we accept it as a petition and have utility file answers.
**Prehearing was okayed.
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Commissioner Smith said she wondered about Mr. Ravenscroft asking Commission to initiate action.
**Prehearing conference for now.
13. Petition for Reconsideration of the Independent Energy Producers of Idaho - IPC-E-89-11, WWP-E-89-6 and PPL-E-89-3/UPL-E-89-5.
Scott Woodbury said we issued this thing knowing that procedurally we were cutting corners.  We talked about modified but because it was an increase, thought no one would complain.  Staff had looked at the numbers.  This is the first time we have updated variable and it was not clear how we were going to go about it.  Think the mistake was captioning it the way we did.  Think in the future we should give it a separate caption, separate case numbers, separate it from old avoided cost.  Actually what Peter Richardson is asking for is no more than for the Commission to back up and issue notice of application or we could view it as a notice of application and also set up scheduling for discovery or investigation.  Company made letter filing.  We are the ones that framed it as it appeared.  Don't expect any of the other developers to jump on the bankwagon.  Spoke to IdaWest.  They are the only one with contracts under those rates.  They didn't quite know what to make of Peter Richardson's petition.  They have projects now producing.  They would be opposed to any stay of the rates pending resolution.  Asked commissioners if they wanted to wait until the 7 days are up for cross petitioning before you take up these matters?
Commissioner Smith said she didn't think a decision should be made before the time is up.
Scott Woodbury said his concern is what the company has filed is just support numbers for variable cost but no  detailed discussion of the methodology.  For an initial case maybe we should require that of the company.  Tom Faull is of the opinion there are a number of ways to reach the rate and calculation of the rate and what they did was reasonable.
Commissioner Miller said if we grant reconsideration we will get a better feel for what to do in the future.  Right now is leaning toward some type of reconsideration.
Scott Woodbury asked about how to handle it procedurally?
**Will wait the 7 days.
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14.  Discussion of suit to dissolve Atlanta Power Company filed by Lynn Stevenson; going to trial in Burley on July 23.
Brad Purdy gave the background on this matter.  Asked what action the Commission wanted to take?  If the Commission were inclined, could get involved in the case or could wait for the judgement.  Concern is the Judge may not know what he is playing with.  District Court can dissolve assets so company but PUC has jurisdiction over operation of the utility.  Stevenson is after the assets.  Asked if Commissioners had concern about the district court ordering sale of the assets?  Stevenson says his intention is to buy the assets.
Commissioner Miller asked about the certificate being an asset to be distributed by the district court judge?
Don't think district court can transfer certificate without PUC authority.
Commissioner Nelson asked if Brad Purdy should go to the trial?
Brad Purdy said some type of amicus brief would be a possibility.
Commissioner Miller said the fundamental question is:  is it a general business corporation that can be dissolved under statute?
Brad Purdy said he only found 2 classifications.
Commissioner Miller said he wondered how you can dissolve a utility when it has a certificate.  Suggested getting the attorneys for the parties over here and ask them what their position is on the certificate.
Brad Purdy said his recommendation would be to get something before the judge.  would recommend you get something before him about the jurisdiction question.  This is a different beast.  It is our position that regardless of what type of judgement, keep in mind public duty.
Commissioner Miller asked what can we ask him to do?
Brad Purdy said to not sell off the diesel generator without some overriding condition that it has to generate electricity for the people.  Don't care about the corporate structure but do care about the electricity to the people.
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Commissioner Miller suggested talking to Conley Ward about our public utility obligation.
Brad Purdy said Stevenson has to prove fraud on the part of Ray in the court case.
**Decision was to contact Conley Ward to set up a meeting.
Meeting adjourned at 3:45 p.m.
        DATED at Boise, Idaho this       day of September, 1991.

PRESIDENT

COMMISSIONER

COMMISSIONER
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