28760.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

in the matter of EASTERN IDAHO RAILROAD’S PETITION FOR A REFUND OF ITS ANNUAL REGULATORY FEE FOR THE CALENDAR YEARS 1999 AND 2000. )
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CASE NO. EIR-R-01-1

ORDER NO. 28760

On January 10, 2001, Eastern Idaho Railroad filed a “request for relief of fees” in a letter from its Director of Governmental Affairs. The letter stated that the Railroad had over-reported its gross intrastate operating revenue for each of the last three years, which in turn, resulted in the overpayment of its regulatory fees to the Commission by more than $100,000. The Railroad sought a partial refund of its 1999 regulatory fee and a waiver of its 2000 regulatory fee. The Commission decided to treat the Railroad’s letter as a Petition and directed the Staff to file an Answer. On January 31, 2001, the Staff filed an Answer and on February 8, 2001, the Railroad filed a Reply. After reviewing the pleadings in this case, the Commission denies Eastern Idaho a refund of its 1999 regulatory fee but adjusts the Railroad’s 2000 regulatory fee as set out in greater detail below.
BACKGROUND
A. The Commission’s Regulatory Fees
The Commission’s operating funds are derived by assessing regulatory fees upon utilities and railroads subject to the Commission’s jurisdiction. Each year, the Legislature authorizes the Commission to expend funds necessary to regulate and supervise utilities and railroads. Idaho Code §§ 61-1001 and 62-611. Idaho Code § 61-1003 provides that on or before April 1st of each year, each railroad corporation shall report its gross operating revenues from its intrastate railroad business in Idaho for the proceeding calendar year. When all the railroads have reported their total intrastate revenues, this cumulative figure is divided by the amount the Commission expends regulating railroads. For example, for fiscal year 2002 (July 1, 2001 through June 30, 2002), the expenditure amount attributed to regulating railroads is $175,000. Order No. 28715. The railroads reported gross intrastate operating revenues of $22,925,389 for calendar year 2000. Thus, the proportionate share of each railroad’s regulatory fee is .7633 percent (.007633) of each railroad’s gross operating revenue. Id. The maximum fee for railroads shall not exceed one percent (1.00%), and the minimum fee shall be no less than $50. Idaho Code § 61-1004.
Once each railroad’s regulatory fee is determined, the Commission notifies each railroad of its regulatory fee no later than May 1st of each year. The regulatory fee may be paid to the Commission in equal semi-annual installments due May 15 and November 15. Idaho Code § 61-1005. Any railroad may object to its fee “on or before the time specified for payment of the first installment of the assessment made against it.” Idaho Code § 61-1007.
B. Undisputed Facts
1. The 1999 Fee. The following facts appear undisputed. On April 2, 1999, Eastern Idaho reported that its gross intrastate operating revenue for calendar year 1998 was $9,354,416. Staff Exh. 3. Once all the railroads had reported their revenues, the Commission calculated that the gross intrastate revenues from all railroads totaled $34,638,195 for calendar year 1998. Staff Exh. 4 (Order No. 27974).
The railroads’ share of the FY 2000 operating budget was $137,100. Id. In Order No. 27974 the Commission calculated that each railroad’s regulatory fee was to be assessed at .3958% (.003958) of each railroad’s gross intrastate operating revenues. Staff Exh. 4. Consequently, on or about April 26, 1999, Staff advised Eastern Idaho that its regulatory fee for 1999 was $37,024.78. ($9,354,416 x .003958). Staff Exh. 5. The letter further advised the Railroad that its first installment of its regulatory fee was due no later than May 15, 1999. The Railroad timely paid its first half fee in the amount of $18,512.39. Staff Exh. 6. The Railroad paid its second half of regulatory fee in November 1999 in the amount of $18,612.39. Staff Exh. 7.
2. The 2000 Fee. In a letter dated February 10, 2000, the Commission’s fiscal section asked each railroad to report its gross intrastate operating revenues for the calendar year 1999. When it returned the letter on March 15, 2000, Eastern Idaho Railroad reported that its 1999 intrastate operating revenues was $8,045,750. Staff Exh. 8. In March 2000 the Legislature authorized the Commission’s operating budget totaling approximately $4.2 million. 2000 Idaho Sess. Laws, Ch. 44. The Railroads’ portion was $137,100 (the same as 1999). See Staff Exh. 1, Order No. 28344. Based upon the reported revenues of all the railroads ($27,490,575), the Commission calculated that the assessment percentage for each railroad was .4987% (.004987).
In a letter dated April 21, 2000, Staff informed Eastern Idaho that its 2000 regulatory fee was $40,124.16 ($8,045,750 x .004987). Staff Exh. 9. This letter also advised the Railroad that its first installment of the regulatory fee was due no later than May 15, 2000. Id. On or about May 15, 2000, Eastern Idaho advised the Commission’s fiscal officer, David Hattaway, that it had significantly over-reported its gross intrastate operating revenues for calendar years 1998 and 1999. Staff Exh. 2.
As later memorialized in a letter to Mr. Hattaway dated May 19, 2000, the over-reporting of intrastate revenue was attributable to the Railroad reporting “all [interstate and intrastate] revenues generated by Eastern Idaho rather than [just] the intrastate revenue required by the Idaho Code.” Staff Exh. 10. In a letter dated May 26, 2000, the Railroad again wrote Mr. Hattaway reporting that Eastern Idaho’s “adjusted” gross intrastate revenue for 1999 was $34,710, instead of the $8.045 million originally reported. Staff Exh. 11.
On June 20, 2000, the Staff and Eastern Idaho met to discuss the Railroad’s regulatory fee and its objection to the fee. After the meeting, Staff initiated an audit of how railroads account for their gross intrastate operating revenues. Staff Auditor Alden Holm’s findings are contained in a Staff Audit Report entitled “Railroad Assessment Calculation” dated September 22, 2000. Staff Exh. 13. His report concluded that gross intrastate revenues should consist of eight standardized categories or revenue accounts established by the U.S. Surface Transportation Board (STB). A copy of the audit was forwarded to the Railroad. Staff Exh. 14.
Staff Auditor Holm then performed an audit on Eastern Idaho Railroad. Staff Exh. 12. The results of his audit are contained in an audit report entitled “Eastern Idaho Railroad Audit Report” dated December 12, 2000. Staff Exh. 15. Based upon the Staff’s understanding of “gross intrastate operating revenue,” he concluded that the Railroad had intrastate operating revenues of $752,900 for calendar year 1999 instead of the “adjusted” amount reported by Eastern Idaho of $34,710. Based upon the Staff’s calculation and the assessment rate of .4987%, he determined that the 2000 regulatory fee should be $3,754.71. Id. The audit report was furnished to the Railroad.
In a letter dated December 15, 2000, the Railroad’s Director of Government Affairs, Ed McKechnie, took exception to several of the conclusions contained in the Eastern Idaho Audit Report. Staff Exh. 16. In a letter dated December 20, 2000, Mr. Hattaway informed Mr. McKechnie of the results of Mr. Holm’s audit. Staff Exh. 17. Mr. Hattaway also enclosed another letter dated December 20 notifying the Railroad that its 2000 regulatory fee was $3,754.71. Staff Exh. 18.
C. The Railroad’s Petition
As alleged in its January 10, 2001 letter Petition, Eastern Idaho requested a partial refund of its 1999 and 2000 annual regulatory fees. The Railroad allegedly became aware that it over-reported its gross intrastate revenues for calendar years 1998 and 1999 (used to calculate the 1999 and 2000 regulatory fees, respectively) and notified the Commission’s Deputy Administrator on or about May 15, 2000. See Affidavit of David Hattaway, Staff Exh. 2. In essence, the Railroad claims that it reported its interstate gross operating revenue instead of its intrastate gross operating revenue.
The Petition repeated the Railroad’s exceptions to the Staff’s audit first noted in its letter of December 15, 2000. The Railroad also argued that federal law preempts the Commission’s regulation of the Railroad and the imposition of a fee.
The Railroad has not paid its 2000 regulatory fee but has timely contested it in this proceeding. In the interest of expediting this matter, the Railroad offered a refund compromise. Instead of waiving the 2000 regulatory fee and refunding the 1999 regulatory fee of $37,024.78, the Railroad proposed an offset. More specifically, the Railroad proposed that its recalculated 1999 and 2000 fees ($3,461.81 and $3,754.71, respectively) be offset against the 1999 regulatory fee it actually paid of $37,024.78. This would result in a refund to the Railroad of $29,808.26 ($37,024.78 - $7,216.52.) Letter Petition at 3. With this background, we now turn to the issues.

DISCUSSION AND FINDINGS OF FACT
Federal Preemption
As a threshold matter, Eastern Idaho maintains that the Commission is federally preempted from regulating it or assessing regulatory fees pursuant to the Staggers Rail Act. Because the Commission is preempted from regulating Eastern Idaho, its revenues from switching operations, railroad car repair, and real estate leasing cannot be considered to be intrastate commerce under the meaning of Idaho Code § 61-1003. Staff asserts that the Railroad has construed the Staggers Rail Act too broadly.
The Staggers Rail Act of 1980, Pub. L. No. 96-448, began the substantial economic deregulation of the railroads. Pejepscot Indust. Park v. Maine Central R.R., 215 F.3d 195 n. 7 (1st Cir. 2000). It partially deregulated the railroad industry. Pittsburgh & Lake Erie R.R. v. Railway Labor Executives’ Ass’n, 491 U.S. 490, 109 S.Ct. 2584 n. 9 (1989). The Staggers Act was intended to end “decades of Interstate Commerce Commission control over maximum rates” set by the nation’s railroads. MidAmerican Energy Co. v. Surface Transp. Bd., 169 F.3d 1099 (8th Cir. 1999). But while this Commission’s economic authority (i.e., to establish rates, charges, routes, or service) over railroads has been preempted by federal law, we find it is too broad a statement to say that the States “have no authority to regulate a railroad.” In Case No. GNR-R-97-1, the Commission found that the Interstate Commerce Commission Termination Act of 1995 preempted the Commission’s jurisdiction over the economic regulation of railroads, not all regulation. See Order No. 26971 at 7.
Although the Commission may no longer economically regulate railroad operations, the Legislature has entrusted the Commission with other important duties. These duties include: (1) conducting abandonment hearings and representing the state in abandonment proceedings before the STB pursuant to Idaho Code § 62-424; (2) promulgating and enforcing safety regulations pursuant to Idaho Code §§ 61-515 and 515A; (3) establishing clearance safety rules IDAPA 31.71.01.000 et seq.; and (4) deciding grade crossing disputes pursuant Idaho Code § 62-304. The Commission has also entered into a joint state-federal program with the Federal Railroad Administration to promote and enforce federal safety regulations relating to the transportation of hazardous materials by rail in Idaho. The Federal Railroad Safety Act (FRSA) does not prohibit states from promulgating and enforcing local safety issues and safety issues not addressed by the FRSA. Union Pacific R.R. v. California PUC, 109 F. Supp. 2d 1186 (N.D. Cal 2000). We find that the Staggers Act does not preempt the Commission’s regulation of these non-economic areas. See also Union Pacific R.R. v. Oregon PUC, 899 F.2d 854 (9th Cir. 1990).
In past cases involving assessments or fees, the Idaho Supreme Court has looked to whether the assessment or fee is reasonably related to the costs of performing the supervisory duties. There can be little doubt that imposition of railroad regulatory fees is reasonably related to the Commission’s regulation of railroads. See Kootenai County Property Ass’n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989). The statute that requires the Commission’s imposition of a regulatory fee is rationally related to its purpose. Namely, the fees defray the cost of the Commission’s various railroad programs and oversight. Idaho Code § 61-1001. The fees are allocated on a proportionate basis based upon the amount of gross intrastate operating revenues reported by each of the railroads. Idaho Code § 61-1004. Consequently, we find that the statute imposing regulatory fees is not preempted, is rationally based, and is non-discriminatory. We now turn to the imposition of the regulatory fees.
B. The 1999 Regulatory Fee
As indicated in the affidavit of Mr. Hattaway, the Railroad did not lodge an objection to its 1999 regulatory fee until on or about May 15, 2000. Staff Exh. 2 ¶ 4. This objection was not timely because it was filed after the May 15, 1999 due date for the first installment of the 1999 regulatory fee. The Staff asserts that the Commission cannot refund Eastern Idaho’s 1999 regulatory fee because: 1) the Railroad’s objection was time-barred by Idaho Code § 61-1007; and 2) there are no funds available for a refund. In its reply, Eastern Idaho asserts that the timeliness of an objection is only applicable to errors committed by the Commission, not errors committed by the railroads. As to the availability of funds, the Railroad alleges that monies are available for a refund. Because utility assessments and railroad assessments are “co-mingled” when deposited in the “public utilities commission fund” (Idaho Code § 61-1008), Eastern Idaho insists that the Commission could issue a refund from the fees collected from public utilities.
Staff’s argument that the Railroad is time barred from seeking a refund of its 1999 fee is based upon Idaho Code § 61-1007. This section provides that any claim made that the Commission’s assessment against a railroad is
erroneous, excessive, unlawful or invalid, …shall [be lodged] on or before the time specified for payment of the first installment of the assessment made against it, [by filing] with the commission its written objections to such assessment, setting out specifically the grounds upon which it claims said assessment to be erroneous, excessive, unlawful or invalid.

Idaho Code § 61-1007 (emphasis added). Staff argues Eastern Idaho did not meet the statutory requirement of timely objecting to its 1999 regulatory fee. In fact, the objection was a year too late. We agree with the Staff that the Railroad’s challenge was untimely.
It is well established that statutory interpretation begins with the words of the statute, giving the language its plain, obvious, and rationale meanings. State v. Hagerman Water Rights Owners, 130 Idaho 727, 947 P.2d 400 (1997). A statute is to be construed as a whole to give effect to the legislative intent. Corder v. Idaho Farmway, 133 Idaho 353, 986 P.2d 1019 (Ct. App. 1999). Section 61-1007 clearly provides that an objection to a utility’s fee shall be made on or before the first installment. Applying the facts to the requirements of the statute, we conclude that Eastern Idaho has not made a timely objection to its assessment.
The Railroad suggests the time for filing challenges to the assessed fee only pertains to errors committed by the Commission—not to errors committed by the reporting railroad. We find this interpretation contrary to the plain and unambiguous language of the statute. Moreover, the latter part of the statute set out an expedited schedule for deciding objections. The expedited schedule together with objecting on or before the first installment, clearly evidences the Legislature’s intent that challenges to annual assessments must be lodged and decided in a timely manner.
Having determined that the Legislature intended that objections to the fee be made on or before the date of the first payment, our inquiry is not complete. We must now examine whether this timing requirement comports with notions of Due Process. More specifically, does the requirement to file on or before the first payment provide Eastern Idaho its due process?
Both the state and federal constitutions provide that a person may not be deprived of property without due process of law. U.S. Const. Art. 14, § 1; Idaho Const. Art. I, § 13. In examining due process in this instance, we find the Idaho Supreme Court’s opinion in Owner-Operator Independent Drivers Ass’n v. Idaho PUC, instructive in answering this inquiry. 125 Idaho 401, 871 P.2d 818 (1994). As in the present case, the issue in the Owner-Operator case was the payment of regulatory fees to the Commission. The Court examined whether Idaho’s Motor Carrier Act (Idaho Code §§ 61-801 et seq., repealed 1999) provided due process to carriers challenging the payment of their motor carrier fees. Id. Relying on the United States Supreme Court opinion in McKesson v. Division of Alcoholic Beverages & Tobacco, Depart. of Business Regulations of Florida, 496 U.S. 18, 110 S.Ct. 2238 (1990), the Idaho Court held that an individual challenging the Commission’s regulatory fee must be provided an opportunity to object to the fee before (pre-deprivation) or after (post-deprivation) payment of the fee. Owner-Operator, 125 Idaho at 407-08, 871 P.2d at 824-25. Unlike the pertinent statute in Owner-Operator, however, Idaho Code § 61-1007 provides railroads with a “pre-deprivation” opportunity to challenge the Commission’s assessment of a regulatory fee.
In McKesson, the Supreme Court stated that the “availability of a pre-deprivation hearing constitutes a procedural safeguard against unlawful deprivation sufficient by itself to satisfy the Due Process Clause, and taxpayers cannot complain if they fail to avail themselves of this procedure.” 496 U.S. at 39, 110 S.Ct. at 2251. The McKesson Court also acknowledged that “States may avail themselves of a variety of procedural protections against any disruptive effects of a [fee] scheme’s invalidation, such as . . . enforcing relatively short statutes of limitation applicable to” protesting the assessment of a regulatory fee. Id. at 50, 110 S.Ct. at 2257; Owner-Operator, 125 Idaho at 407, 871 P.2 at 824 n.2.
Consequently, we find that Idaho Code § 61-1007 satisfies the requirements of due process because it provides a pre-deprivation opportunity to protest and challenge the Commission’s regulatory fee. As our Supreme Court noted approvingly, the Legislature may set relatively short periods in which to object to fees. In this instance, the statute requires that objections be made on or before the due date of the first installment. Having found that Eastern Idaho’s objection for its 1999 fee was untimely and that it was not denied due process, we need not decide Staff’s second argument that monies for a refund are not available.
C. The 2000 Fee
Based upon Eastern Idaho’s erroneous report of its intrastate revenues, the Commission initially assessed Eastern Idaho a 2000 regulatory fee of $40,124.16. Staff Exh. 9. The Railroad timely objected to this fee based upon its miscalculation of gross intrastate revenues. Given the objection, Eastern Idaho did not pay its regulatory fee while the Railroad and Staff had discussions concerning the appropriate calculation of gross intrastate revenues.
As a result of these discussions, the Commission Staff performed an audit on Eastern Idaho to verify its gross intrastate operating revenues. The Staff audit determined that the Railroad’s intrastate gross operating revenue was $752,900. Staff Exh. 15 at 1. Applying the Commission-ordered assessment percentage of .004987 to the $752,900, the Staff calculated that Eastern Idaho’s 2000 regulatory fee should be $3,754.71. Id. In its letter Petition filed January 10, 2001, the Railroad objects to the Staff’s inclusion of “Incidental Revenue” in the amount of $353,273.
1. Background: Sources of Gross Intrastate Revenue. As explained in the Staff’s audit, the various categories or revenue accounts used by the Commission to calculate gross intrastate operating revenues generally mirror the eight revenue accounts established by the STB in 49 C.F.R. § 1152.31(b). These eight revenue categories are identified as:

Account No. Revenue Souce/Activity 101
104
106
110
121
122
510
519 Freight
Switching
Demurrage
Incidental
Joint Facility-Credit
Facility-Debt
Miscellaneous Rent Income
Miscellaneous Income
Eastern Idaho raises objections to revenues the Staff included in Account Nos. 110, 510 and 519 (“Incidental Revenues”).
The Public Utilities Law defines “railroad corporation” as every corporation or person . . . owning, controlling, operating or managing any railroad for compensation within this state. Idaho Code § 61-111. The term “railroad” is defined as including
all tracks, bridges, trussels, right of way, . . . stations, tunnels, depots, . . . yards, grounds, terminals, terminal facilities, structures and equipment, and all other real estate, fixtures and personal property of every kind used in connection therewith, owned, controlled, operated or managed for public use in the transportation of persons or property.

Idaho Code § 61-110 (emphasis added). The Public Utilities Law also defines the term “transportation of property” as including “every service in connection with or incidental to the transportation of property including in particular its receipt, delivery, elevation, transfer, switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and handling. . . .” Idaho Code § 61-107 (emphasis added).
The term “gross operating intrastate revenues” is not defined in the Public Utilities Law. When construing words used in a statute, the Idaho Supreme Court assigns to them their plain and ordinary meaning unless to do so would reach an absurd result. Idaho State Tax Commission v. Beacom, 131 Idaho 569, 961 P.2d 660 (Ct. App. 1998). Black’s Law Dictionary defines the term “gross revenue” as “receipts of a business before deductions for any purpose except those items specifically exempted.” 633 (5th ed. 1979). In addition, Idaho Code § 63-3011 defines the term “gross income” as having the same meaning as defined in Section 61(a) of the Internal Revenue Code. The Tax Code defines “gross income” as
all income from whatever sources derived, including (but not limited to) the following items: compensation for services, including fees, commissions, fringe benefits, and similar items; gross income derived from business; gains derived from dealings in property; interests; rents; royalties; dividends; . . . annuities, income from life insurance and endowment contracts; pensions; income from discharge of indebtedness; distributive shares of partnership gross income; income in respect of a decedent; and income from an interest in an estate or trust.

26 U.S.C. § 61(a) (emphasis added). In discussing the concept of “gross income,” our Supreme Court has interpreted gross income as including income from any source. Henderson v. Smith, 128 Idaho 444, 915 P.2d 6 (1996) (construing the Idaho Child Support Guideline, I.R.C.P. 6(c)(6)).
2. Switching Revenue. Turning to Eastern Idaho’s first issue, the Railroad does not object to the Staff’s determination of its own “Incidental Revenue” in accounts 110, 510, and 519 totaling $353,273. Instead, the Railroad asks whether there are other companies “that are not railroads, but do contract switching” but do not pay a regulatory fee to the Commission. EIRR letter Protest at 2 ¶ 4.2. Switching is the movement or placement of cars in local, intrastate transportation. Switching may entail the pulling or spotting of cars, the arrangement of cars in a train, or the movement of cars in a yard. Switching is usually limited to pickup and delivery of cars over a short distance; it is not part of a through-line haul. Garden Spot & Northern Limited Partnership, et al., Finance Docket No. 31593, slip op. at 3 (Dec. 20, 1994), 1994 WL 705465 (I.C.C.). The Staff’s audit claimed that the Railroad received $7,358 in intrastate switching revenue in 1999.
The Staff stated in its comments that it was unaware of other companies which perform “contract switching.” Neither Staff nor Eastern Idaho has identified any non-railroad companies engaged in contract switching. While it may be true that some industries may move cars within their plants or industries, such activities are not dedicated for “public use” or performed “for compensation within this state.” Idaho Code §§ 61-110 and 61-111. More to the point, Eastern Idaho has not adequately demonstrated that Staff has miscalculated its switching revenue. Consequently, we find Eastern Idaho’s switching revenue is appropriately included as part of its gross intrastate operating revenue.
3. Car Repair Revenues. The Railroad next asks whether it is equitable for its regulatory fee to be based upon such incidental revenues if there are other companies, not railroads, that perform mechanical car repair work not regulated by the Commission. As set out in the audit report at page 2, the Staff concluded that Eastern Idaho earned $21,255 in revenue from car repair operations in 1999. Staff Exh. 15. The Staff noted that Eastern Idaho fixed railroad cars and billed the owner of those cars for the repairs.
Again, the Railroad has not questioned the calculation of its own revenue, but questioned whether there are other companies that repair rail cars but do not pay a regulatory fee to the Commission. The Railroad did not identify any car repair company. Staff stated in its comments that it was aware of one company that refurbishes locomotives in Boise. However, this company is not engaged in the “transportation of property,” hence it is not a railroad as defined in Idaho Code § 61-110. Moreover, its facilities and services are not dedicated for public use as a common carrier. Id. We find that Eastern Idaho’s car repair income clearly falls within the definition of gross operating revenue.
4. Income from Real Property and Easements. The Railroad next challenges the appropriateness of including revenues from its leasing of real property and easements located in Idaho. EIRR letter Petition at 2. The Railroad claims that it is subject to unequal treatment because the Commission does not license “real estate brokers or . . . a citizen that leases land or grants an easement.” Letter Protest at 2, ¶ 4.4.
As set out in EIRR’s audit, Staff determined that the Railroad receives significant revenue associated with the leasing of land, easements, and rights of way. For the calendar year 1999, Staff calculated the Railroad received $328,218 in miscellaneous rent income (STB Account 510). Staff Exh. 15. Staff maintained that this revenue – from real estate located in Idaho – is appropriately considered to be included in the definition of “gross operating revenue.” We agree. Rights of way, grounds, “and all other real estate . . . of every kind” is included within the definition of a “railroad” found in Idaho Code § 61-110. Consequently, we find revenues derived from Idaho real estate, easements, and rights-of-way are properly classified as gross intrastate revenue. As previously mentioned, the STB includes income from leases, rentals and easement when calculating branch line revenues. 49 C.F.R. § 1152.31 (1999).
As to the issue of unequal treatment with others that lease property, the Railroad’s argument is irrelevant. The Commission’s jurisdiction is over railroad corporations that dedicate property “for public use in the transportation of persons or property.” Idaho Code § 61-110. Real estate brokers and ordinary citizens are not engaged in public transportation as rail carriers. Thus, we dismiss Eastern Idaho’s argument.
D. Summary
In summary, the Commission finds that the assessment of regulatory fees is not preempted by federal law. The Commission further finds that Idaho Code § 61-1007 provides the Railroad with a pre-deprivation opportunity to challenge its 1999 regulatory fee but such a challenge must have been filed no later than the date the first fee payment was due. Eastern Idaho did not file a timely objection and is not entitled to a refund.
Eastern Idaho did file a timely objection to its 2000 assessment of $40,124.61. Based upon the Staff’s audit, we find that the Railroad had 1999 gross intrastate operating revenue of $752,900. This results in a 2000 regulatory fee of $3,754.71. Finally, we conclude that the Railroad has not adequately demonstrated that its intrastate incidental revenues of $353,273 from car repair, track repair, and leases of its real property and rights-of-way should not be included.
O R D E R
IT IS HEREBY ORDERED that Eastern Idaho Railroad Company’s request for a refund of its 1999 regulatory fee is denied.
IT IS FURTHER ORDERED that based on the Railroad’s challenge to its 2000 regulatory fee, the initial fee shall be adjusted to reflect the reduction of gross intrastate operating revenue to an amount of $752,900. Eastern Idaho’s 2000 regulatory fee is set at $3,754.71. This fee shall be payable in two equal installments, the first of which is due 28 days from the date of this Order. The second installment is due with the second installment of the 2001 regulatory fees, or no later than November 15, 2001.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. EIR-R-01-1 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this order or in interlocutory Orders previously issued in this Case No. EIR-R-01-1. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of June 2001.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

vld/O:EIR-R-01-01_dh
As indicated by Staff, the letter informing Eastern Idaho of its 1999 regulatory fee was misdated as April 26, 1998 instead of April 26, 1999. See Staff Answer at 3, note 1; Staff Exh. 5.
The STB’s predecessor was the Interstate Commerce Commission.

Although Eastern Idaho’s written objection was dated four days after the date for the first installment, the Company timely notified the Commission Staff of its error. Cf. Staff Exh. 10 and Staff Exh. 2 ¶ 5. For purposes of this proceeding, we shall consider the objection timely.

The Railroad’s “recalculated” fees for 1999 and 2000 do not reflect the larger assessment rates caused by the reduction in the total reported railroad revenues in the two years.

After its objection, Eastern Idaho calculated that its intrastate revenue was $34,710. Staff Exh. 11.
For incidental 1999 revenues, the Staff included car repair revenue of $21,255; track repair revenue of $3,800; and revenue from some 250 leases of railroad property for $328,218. These leases include billboard space, utility and highway easements, and other uses of real property.

See supra note 6.

ORDER NO. 28760 1

Office of the Secretary
Service Date
June 22, 2001