26896.docx

(text box: 1)BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE TEMPORARY SUSPENSION OF MOTOR CARRIER RULES, IDAPA 31.61.01.000 ET SEQ.
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CASE NO. GNR-M-97-1
ORDER NO.  26896
The United States Court of Appeals for the District of Columbia Circuit recently issued an opinion vacating a decision of the Federal Highway Administration (FHWA) denying the claims of a Mississippi truck load carrier that the FHWA’s safety fitness rating methodology was unlawful.  The Plaintiffs in the lawsuit alleged that the FHWA’s safety rating procedures were not created according to the requirements of the 1984 Motor Carrier Safety Act (Safety Act).  The Plaintiffs pointed out that the FHWA’s methodology was not the product of notice and comment.  Rather, it was developed by government officials sometime after a December 1988 rulemaking that established provisions for enforcing the Safety Act.  Furthermore, the FHWA gave notice of changes to its rating methodology in 1994, again without public comment.  The Court of Appeals agreed with the Plaintiffs ruling that “although the FHWA has developed a method of making safety rating determinations, this method was not promulgated through notice and comment rulemaking.  Because the FHWA relied upon an improperly promulgated regulation when it determined MST safety rating, MST’s rating cannot stand.”  1997 WL 5 pa c6117129 (D.C. Cir. 1997) at p. 1.
The Commission’s Motor Carrier Rules, IDAPA 31.61.01.000 et seq., contain numerous references to safety ratings.  Rule 12 adopts the federal safety fitness rating methodology contained in 49 C.F.R. Part 385, by reference.  This is the same methodology ruled illegal by the United States Court of Appeals for the D.C. Circuit.  Because the Commission does not have its own safety fitness rating methodology and because the methodology it relies upon has been declared unlawful by a federal court, it is necessary for the Commission to temporarily suspend any and all portions of rules relying upon, enforcing or related to that federal safety fitness rating methodology.  
Attached to this Order as Appendix A, adopted herein by reference, is a copy of all those portions of the Commission’s Motor Carrier Rules pertaining to safety ratings.  Those portions of rules suspended by this Order have been marked with a strike-out.  All other Motor Carrier Rules or portions of those rules not specifically marked with a strike-out remain in full force and effect.
As an additional matter, we note that there are a number of motor carriers who are currently under order by this Commission to obtain a satisfactory safety rating by a date certain or whose motor carrier permits require that they obtain a satisfactory safety rating by a date certain or their certificate of operating authority shall be revoked.  Because of our decision to suspend all portions of the Commission’s Motor Carrier Rules pertaining to safety ratings, those carriers are hereby relieved of the requirement to obtain a satisfactory safety rating.  Nothing in this Order shall be construed, however, to relieve any motor carrier from the requirement to fully comply with all of the Commission’s Motor Carrier Rules, and portions of those rules, not suspended by this Order.
O R D E R
IT IS HEREBY ORDERED that the portions of Motor Carrier Rules marked with a strike-out in Appendix A, attached to this Order and which is incorporated herein by reference, are temporarily suspended consistent with the terms and conditions set forth above.
IT IS FURTHER ORDERED that the Commission Secretary shall serve this Order on the Idaho Department of Law Enforcement, the Idaho Transportation Department and County Sheriffs.
THIS IS AN INTERLOCUTORY ORDER.  Any person interested in this Order may file a petition for review within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order.  A petition to review may request that the Commission: (1) rescind, clarify, alter, amend; (2) stay; or (3) finalize this Interlocutory Order. After any person has petitioned for review, any other person may file a cross-petition within seven (7) days.  See  Rules 321, 322, 323.03, 324, 325 (IDAPA 31.01.01.321-325.)
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this                  day of April 1997.

DENNIS S. HANSEN, PRESIDENT

RALPH NELSON, COMMISSIONER

MARSHA H. SMITH, COMMISSIONER
ATTEST:

Myrna J. Walters
Commission Secretary
vld/O:GNR-M-97-1.bp
COMMENTS AND ANNOTATIONS
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Service Date
April 25, 1997