970904.docx

DECISION MEMORANDUM
TO:COMMISSIONER HANSEN
COMMISSIONER NELSON
COMMISSIONER SMITH
MYRNA WALTERS
TONYA CLARK
DON HOWELL
STEPHANIE MILLER
DAVE SCHUNKE
RON LAW
BOB HORTON
DAVID SCOTT
WORKING FILE
FROM:BRAD PURDY
DATE:September 4, 1997
RE:CASE NO M-8195-2.  STAFF MOTION FOR ORDER TO SHOW CAUSE AGAINST MR. LOREN TROYER, DBA SEA BREEZE TRUCKING.
On August 22, 1997, the Commission Staff filed a Motion for Order to Show to Cause against Loren Troyer, dba Sea Breeze Trucking.  The Motion is supported by the accompanying affidavit of Mr. Robert Horton who testifies that on November 15, 1995, the Commission’s Regulated Carrier division received an Application from Loren Troyer, dba Sea Breeze Trucking, for motor carrier authority.  Mr. Troyer’s Application, however, did not contain all the necessary information required by the Commission’s Motor Carrier Rules.  Consequently, the Staff sent a letter to Mr. Troyer requesting such information.  On January 2, 1996, the Commission issued Order No. 26291 granting Mr. Troyer motor carrier authority within 42 days if all the Commission requirements were met.  On January 8, 1996, the Commission Staff sent another letter to Mr. Troyer requesting five categories of information and/or documents.  On February 2, 1996, Mr. Troyer telephoned the Commission Staff indicating that he would send three of the five requested categories and request an extension of time in which to complete a compliance review.  The Staff, however, never received Mr. Troyer’s written request for an extension.  Following a subsequent conversation with Mr. Troyer, Mr. Horton testifies that he wrote a memorandum to the Commission recommending that a conditional one year permit be issued to Troyer pending the successful completion of a compliance review.
Mr. Horton further testifies that he has subsequently attempted to conduct a compliance review of Mr. Troyer’s operation on more than one occasion but that Mr. Troyer did not make himself available because of personal conflicts.  Recently, Mr. Troyer has simply not responded to Staff’s telephone calls.  Therefore, a letter was sent by Mr. Horton to Mr. Troyer setting an appointment with him to conduct the review at his personal residence.  Upon Mr. Horton’s arrival, however, no one was present at Mr. Troyer’s residence even though he had made telephone contact with Mr. Troyer’s wife at the residence several minutes before the appointed time and she offered to go get him.
According to Mr. Horton’s affidavit, Mr. Troyer also operates in the state of Oregon.  Staff recently obtained information from the Oregon Public Utilities Commission indicating that Mr. Troyer has received a number of serious violations there causing him or his vehicle to be placed out of service for operating in an unsafe condition.  Mr. Horton concludes that without the ability to conduct a compliance review, Staff cannot offer any assurance that Troyer is operating safely and otherwise complying with the Commission’s Motor Carrier Rules.
Idaho Code § 61-501 states that “the public utilities commission is hereby vested with  power and jurisdiction to supervise and regulate every public utility in the state and to do all things necessary to carry out the spirit and intent of the provisions of this act.”  Idaho Code § 61-507 provides that “the Commission shall prescribe rules and regulations for the performance of any service or the furnishings of any commodity of the character furnished or supplied by any public utility ….”  See also Coeur d’Alene v. Public Utilities Commission, 29 Idaho 508,160 P. 751 (1916).  Idaho Code § 61-807, contained within the Motor Carrier Act, provides that “the Commission is hereby vested with the power and authority, and it is hereby made its duty, to…prescribe such rules and regulations for common carriers as may be necessary to provide for adequate service and safety of operation….”  Idaho Code § 61-610 states that the Commission and its employees “shall have the right at any and all times to inspect the accounts, books, papers and documents of any public utility.”  Rule 227 of the Commission’s Rules of Procedure, IDAPA 31.01.01.000 provides the Commission Staff with the authority “to review and inspect the books, records and premises of…carriers pursuant to statute.”  The Rule notes that this right of statutory examination and audit is independent of any right of discovery in formal proceedings and may be exercised whether or not a carrier is a party to a formal proceeding before the Commission.  Finally, Rule 12.01(c) of the Commission’s Motor Carrier Rules, IDAPA 31.61.01.000 states that “safety management audits [i.e. compliance reviews] required by this Rule will be conducted at the time and date agreed to by the Commission, ISP [Idaho State Police], and of the carrier, but no later than ten (10) days after the Commission’s or ISP’s initial request.”  
Regarding the Commission’s powers of enforcement, Idaho Code § 61-808 provides the Commission with the authority, after a hearing, to suspend, revoke, alter or amend any permit issued to a motor carrier on the basis that the carrier has violated or refused to observe any of the orders, rules or regulations of the Commission or any of the laws of the state of Idaho applicable to motor carriers.  Idaho Code § 61-701 provides:
61-701.  Enforcement of Law. - It is hereby made the duty of the Commission to see that the provisions of the constitution and statutes of this state affecting public utilities, the enforcement of which is not specifically vested in some other office or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the state therefore recovered and collected and to this end it may sue in the name of the people of the state of Idaho.  …
As indicated by the certificate of service attached to Staff’s motion, the motion and the accompanying affidavit were sent to Mr. Troyer by certified mail on August 22, 1997.  Mr. Troyer never responded to Staff’s motion.  Rule 256 of the Commission’s Rules of Procedure provides opposing parties with 14 days in which to respond to a procedural or substantive motion.  Mr. Troyer’s 14 days have expired.  
Staff proposes that the Commission issue the attached Order to Show Cause directing Mr. Troyer to make his operation available for a full compliance review by a date certain.  In the event that Mr. Troyer fails to comply with the Order, the Order would further provide that Mr. Troyer’s motor carrier permit would be revoked and that he would be subject to the penal provisions contained in Chapter 7, Title 61 of the Idaho Code.
Commission Decision:
Does the Commission wish to grant Staff’s Motion for an Order to Show Cause?

Brad Purdy
cm\M:m8195.bp