19930201.docx

MINUTES OF DECISION MEETING
February 1, 1993 - 1:30 p.m.
In attendance were:
Commissioners Marsha H. Smith, Joe Miller and Ralph Nelson and staff members Mike Gilmore, Scott Woodbury, Don Howell, Gary Richardson, Tom Faull, Mary Friddle, Jim Long, Birdelle Brown, Randy Lobb, Tonya Clark and Myrna Walters.  Also in attendance was Woody Richards, Attorney at Law.
Items from the February 1, 1993 Decision Meeting Agenda were discussed as follows.
1.  Mary Friddle's January 29, 1993 Decision Memorandum re:  Hours of Service Waiver Request.
Commissioner Smith reviewed the request - said applicant points out that when there are break-up speed limits posted, he can't make two trips and be within the hours limit.  They are asking for a waiver for a 90 day period.  Said Mary Friddle suggests denying it.
Commissioner Nelson said he thought it might be an interesting experiment.  If they keep logs, it will show the speed.
Commissioner Smith asked if there would be any way to allow a 90 day waiver and actually test whether the enforcement concerns of MCSAP arise to such an extent that the waiver would not be a good idea and the other concerns raised, rise to that level also. Could it be tested?
Mary Friddle said she talked to Mike Gilmore about a pilot program without rulemaking.  Dennis Hardin could check the records.  Still have concern that if you let one carrier do it and not others, you will give them an economic advantage.
Mike Gilmore said with the reporting requirements, it may not be a competitive matter.
Commissioner Nelson asked how many companies haul for Potlatch?
Mary Friddle said she mentioned the economic advantage and they said that they all haul to different mills.
Commissioner Nelson said if we really could get a handle on what it does, it would be an interesting experiment.  Thought they could also change routes.
-2-
Mike Gilmore said you could limit it to a couple of routes and see what works out.
Commissioner Nelson spoke to Coburn run taking 7 hours.
Mary Friddle explained the routes in the decision memo.
Commissioner Nelson said he thought it would be interesting to do to see what kind of data you get.
Mike Gilmore said - so one of the conditions would be drivers being available for interviews.
Commissioner Smith said she didn't know how candid the drivers would be.
Commissioner Miller said he hadn't gotten to the level of what would be appropriate monitoring.  Initial reaction was if there could be appropriate monitoring, would be in favor of granting the 90 day waiver for a trial period.  It didn't seem to him that one additional hour of work would be a material increment as far as fatigue goes.  The anti-competitive effect didn't seem to leap right out at him, either.  By denying the request you would force the carrier into a choice of operating illegally or legally but not as efficiently.  So he thought a limited term trial basis would be okay.
Tonya Clark said she wanted to point out one thing.  They could start by wanting it for spring break-up and they could keep pushing for that extra hour year-round.  90 days does not match weight restriction time.  From a political point of view, does this play right into IMTA's hands - wanting equal regulation?
Commissioner Smith said if you had a trial and it turns out the concerns of everyone appear to not be insurmountable, seemed to her it would be logical to say when you have break-up mandated by another agency for a period of time certain, say the hours can extend by one.  Before you get to the stage of determining the perimeters, think a trial period is appropriate.
Mary Friddle said in ATA's request they ask for more.
Commissioner Nelson said we are giving them a 90 day trial period.
Tonya Clark asked - where do we want to go with this?  If there is no problem, will there be a state rule for 11 hours?
-3-
If it is limited to spring break-up, okay.  Can recognize the problem another state agency rule could make, not for other reasons.
Mary Friddle said those restrictions are changed continually.
Commissioner Nelson said the question is do we want to grant the 90 day waiver to gather information?
Tonya Clark said she didn't think Commission was going to have any data at the end of the 90 days.
Commissioner Nelson asked Tonya Clark what information she would want if she was doing this?
Tonya Clark said she could see Commissioner Smith's reasoning but to look at it and make a decision at the end and say they are good or bad depending on speed, isn't the issue.
Commissioner Nelson said the issue for him is - are they getting the two trips in 10 hours?  Is the additional hour enough to get 2 in.  Think interviewing the drivers is important.
Mike Gilmore said you could write a condition that the drivers be interviewed anonymously.
Commissioner Smith asked about the TAC reporting?
Mary Friddle said that clause could be put in the order.
Commissioner Miller said - could go back to denial of the request.  Said his initial thought was just deny it - what the big deal?  The normal things that affect your business such as weather, other carriers on the road, etc. are just part of doing business.
Tonya Clark suggested language tying it to the spring break-up.
Commissioner Smith asked if we knew from current records how long the trips take now?  Don't know if they have enough information now.
Mary Friddle said the other concern is the feds are already conducting a study on driver fatigue.
Commissioner Miller said he had come to the conclusion that normal conditions isn't reason enough for cutting back a safety rule.  If you just limit it to spring break-up, ..
-5-
it is not clear that..if you knockout all the rationale of hunters, fishers, winter storms, etc., and just limit it to break-up limits, am not sure you will actually do any good for anybody.
Commissioner Smith said she guessed that is why she would  allow a test for spring break-up time.  Would like to test that theory.  Would limit the test to the break-up period and continue to collect data when they are back to the 10 hour day.  If it turns out that under normal conditions and the 10 hour rule they don't get 2 trips anyway, then it makes no sense to change it.
Commissioner Nelson commented - assuming the safety isn't impaired.
Tom Faull also commented - said looking at overtime in the construction business, moving from 8 hour day to 10 hour day increased accidents and inefficiency.  Would say that statistically one hour has been shown to be a big deal.  Ninety days isn't enough time if it is a safety issue.
Commissioner Miller said there must be a reason for the 10 hour rule.  From his own experience, one more increment doesn't seem to be that big a deal.
Commissioner Nelson commented he thought Tonya Clark and Mary Friddle see the 90 day trial as a lifetime commitment, and he didn't.  Wouldn't mind some kind of trial to see what kind of information we will get.
Commissioner Miller said he guessed he was approaching it on  - will it increase their efficiency.  Doubt we will get anything helpful in deciding safety problems - 90 days for one trucking company to run one more hour, it will be hard to get valid information.  Is basing his judgement on the fact that one hour wouldn't mean that much.
Commissioner Nelson said we might get some indication from talking to drivers about how they feel about it.
Tonya Clark asked Mike Gilmore if we had any liability if the hours increased?
Commissioner Smith said personally she would like doing a test from beginning to end of spring break down to see if that would aid in them reaching their goal.
Mike Gilmore said - and keep records for another month when they are back on the 10 hour day.  As Mary Friddle suggested, limit it to trucks with TAC capability.  Dennis Hardin could check their records.
-5-
Mike Gilmore suggested it needs to be done by order and put it out on the Regulated Carrier Green Sheet Summary.
2.  Regulated Carrier Division Agenda dated February 1, 1993.
Approved.
3.  Union Pacific's Freight Agencies at Aberdeen and Nampa - Case No. UP-RR-91-3.
Commissioner Smith asked if Commissioners had to make some type of ruling on Mr. Mular's motion that all UP witness testimony regarding numbers in Exhibit No. 3, that was withdrawn?
Don Howell said not necessarily, when the Railroad came up with the number, it made the matter moot.
ABERDEEN -
Commissioner Miller said his general attitude is becoming the tie goes to the shipper.  There are credible shippers backed up by testimony at hearing, should err in favor of keeping the agent until the shipper is satisfied that his needs would be met by NCSC.  Said his vote was to keep Aberdeen open and close Nampa.  Would like to keep Nampa open but can't make the case for the shippers.
Commissioner Nelson said his attitude has changed the last couple of years.  Said there are some places where the agent does a credible job but in some places there is nothing for them to do (in the Aberdeen case).  Said there is only one train a week going up there.
Commissioner Smith asked if there really was only one train per week?
Don Howell said yes, except for the sugar beet train.
Commissioner Miller said the only rationale he could think of to keep Nampa open is to say the reasons why there were no shippers there was because they were lead to believe there already was no agent there, that UP intentionally structured their affairs so the Nampa agent was useless to their customers.  Think that was the case, but don't know if we have a record to get us to that place.
Commissioner Smith said she thought there were three votes to close Nampa.  Asked Commissioner Miller about why he wanted Aberdeen kept open?  Asked if we were sustainable on appeal if we made them keep Aberdeen open?
-6-
Don Howell said at least with Aberdeen you have shipper testimony, even though it is characterized as minimal.  Number of cars used would make it sustainable.  The other big thing is that the Simplot Food Group wasn't on board with the computer.  They can always petition to close it in the future.
Commissioner Miller said we are in this transition period away from agents to NCSC.  There is testimony that NCSC doesn't provide adequate service.  So in that interim time should keep agencies open.  Since that isn't the case in Aberdeen, there are still shippers that think NCSC isn't adequate, and the application is premature, if you do it that way, seems to him it would be sustainable.
**Order will be issued leaving Aberdeen open, closing Nampa.  Commissioner Nelson may dissent.
4.  Joe Cusick's January 28, 1993 Decision Memorandum re:  Lubbock Radio Paging - Exemption from IPUC Rule 9.2a. Case No. GNR-T-93-2.
Granted exemption.
5.  Scott Woodbury's January 29, 1993 Decision Memorandum re:  IPC-E-92-4 - Afton Replacement Contract.
Scott Woodbury said Commission is not being asked to approve the contract, just establish procedure.
Commissioner Miller said he wondered if staff thought anything was significant enough to buy...they are bypassing the LDC.
Scott Woodbury said he thought that was a ways down the road.
Commissioner Miller asked Scott Woodbury if from his point of view it should be viewed through cross examination or what?
Scott Woodbury said it is a significant project and the fact that this is sort of an Afton prodigy is important but doesn't know if a hearing would serve any purpose.  Think opportunity to comment is the way to go.  If someone is concerned about the issues, they can request hearing.
Discussed who the intervenors are and what their concerns area.  Litigation has already been dismissed.
**Can go out modified procedure.
-7-
**Eileen Benner was in attendance at this time.
6.  Scheduling Troy/Moscow EAS.
Mike Gilmore commented that no one was working very hard on this without a deadline.
**Hearing is to be scheduled for late March or early April.  Inland hearing will be on the same trip.
7.  Mike Gilmore's January 27, 1993 Decision Memorandum re:  Reorganization of IPUC Rules Required by the new Administrative Procedure Act.
Commissioner Miller asked if there was any feedback from staff?
Commissioner Nelson said he had a question about the school bus rules, etc.  Was Mike Gilmore saying Commission should eliminate them?
Mary Friddle said Commission doesn't have authority to regulate school buses.
Commissioner Nelson asked if these rules had been outmoded by new rules?
**Get rid of two of them - leave railroads as they are for now.
**Commission will do rewrites rather than the Administrator.
Meeting adjourned.
Dated at Boise, Idaho, this 18th day of February, 1993.
Myrna J. Walters
Commission Secretary
0140M
Attachments