MINUTES OF THE SENATE COMMITTEE ON TRANSPORTATION Sixty-eighth Session May 16, 1995 The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 1:45 p.m., on Tuesday, May 16, 1995, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator William R. O'Donnell, Chairman Senator Maurice Washington, Vice Chairman Senator Lawrence E. Jacobsen Senator Jon C. Porter Senator Raymond C. Shaffer Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Joseph M. Neal, Jr. (Excused) STAFF MEMBERS PRESENT: Don O. Williams, Chief Principal Research Analyst Diane Rea, Committee Secretary OTHERS PRESENT: Daryl Capurro, Lobbyist, Motor Transport Association, Inc., Nevada Franchised Auto Dealers Association (NFADA) Jan Needham, Senate Bill Drafting Adviser, Legislative Counsel Bureau (LCB) Kimberly Guinasso, Deputy Legislative Counsel, Legislative Counsel Bureau (LCB) John Mendoza, Chairman, Public Service Commission of Nevada (PSC) Kelly Jackson, Staff Counsel, Regulatory Operation Staff, Public Service Commission of Nevada (PSC) Gene Tieman, Milne Tow Service Warren Hardy, Lobbyist, Quality Towing Galen Denio, Commissioner, Public Service Commission of Nevada (PSC) Donna Wadey-Howell, Acting Chief, Registration Division, Department of Motor Vehicles and Public Safety (DMV&PS) Pam Miller, Lobbyist, Association General Contractors Nevada Chapter Captain William Goddard, Field Operations Bureau, Nevada Highway Patrol Division (NHP), Department of Motor Vehicles and Public Safety (DMV&PS) Senator O'Donnell introduced Bill Draft Request (BDR) 43-556 (Exhibit C). Bill Draft Request 43-556: Revises provisions relating to operation of vessel while under influence of intoxicating liquor or controlled substance. SENATOR WASHINGTON MOVED TO INTRODUCE BDR 43-556. Senator O'Donnell asked for a second. BDR 43-556 died for lack of a second. Senator O'Donnell asked the committee to review their Amendment No. 433 (Exhibit D) to SENATE BILL (S.B.) 323. This amendment is to accommodate the Nevada Highway Patrol Division (NHP) and the trucking industries. SENATE BILL 323: Authorizes chief of investigation division of department of motor vehicles and public safety to appoint certain persons as investigators and to enter into certain agreements with state and local law enforcement agencies. (BDR 43-1918) Daryl Capurro, Lobbyist, Motor Transport Association, Inc., stated that he is in compliance with the amendment. SENATOR SHAFFER MOVED TO AMEND AND DO PASS S.B. 323. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS JACOBSEN AND NEAL WERE ABSENT FOR THE VOTE.) * * * * * Senator O'Donnell introduced Amendment No. 504 (Exhibit E) to Senate Bill 326. SENATE BILL 326: Revises standard for determining operation of vehicle or vessel while intoxicated. (BDR 43-1582) Senator O'Donnell asked the committee to review the amendment and said they will take a vote on it in the Thursday meeting. Senator Porter stated: I would just like to enter a few items into the record as to yesterday's sequence of events. I did note, from some of the questions by the press, as to their surprise as to why I was abstaining on this particular issue. I would like to kind of set the record straight. Starting a week ago, Friday, May 5th. On May 5th, I had a meeting in California with our company, Farmers Insurance. One the way to the meeting, I was reviewing the committee files on this particular bill. I realized at that point that there could be a potential conflict. What I did was, about 6:30 p.m. that evening, not knowing your phone number, Mr.. chairman, and not being able to reach our home office in California, because they were closed; I decided to try to find a way to have a bill proposed and passed by this committee that would be accepted by all parties concerned. About 6:30 p.m., I was able to catch Mr. (Harvey) Whittemore at home, discuss briefly that we had to find language that was acceptable to relieve some of the crises that are on our streets because of drunk driving. On Monday, I called our home office, which is in Los Angeles, California, and spoke with Mr. Mellon, who is our public affairs/public relations vice-president, to get a clarification, to see whether he felt I had a potential conflict to interest and he assured me that this legislation would have a significant impact upon our company and on the industry. With that information, I then went to the floor around 11:00 a.m. Monday. Out of courtesy I mentioned it to you, Mr. chairman, that I may have a potential conflict, and at that time, for your advice, you had recommended that I see Brenda Erdoes, from the [Legislative] Counsel Bureau to get additional information as to whether or not I would be in conflict. I am bringing this up because there was some surprise as to why I would abstain at the last moment and I am trying to set the stage that I was trying to be prudent and, in my position as a senator, these are the steps that I took. At that time, the chairman and I also discussed, about some other legislation that possibly would be passed. Knowing from the newspaper articles that this .08 [Blood Alcohol Count {BAC}] bill may fail in the committee, around 2:30 p.m., Monday afternoon, I also grabbed Senator Raggio, who was in committee government affairs with me, and I explained to him my potential problem. To explain how controversial the issue was, but yet I did not think it was prudent to act upon it. On Wednesday, around 11:00 a.m., on the floor, the chairman and I, realizing again that it would probably fail, decided that we would craft some legislation that may address those concerns and possibly using the .05 [BAC], which is currently in the statute. This would take me out of the conflict position, because we currently charge for accidents and that was going to be part of the legislation, to have the .05 [BAC] with an accident, and it would be considered a DUI [Driving Under the Influence], or something similar to that, which would again allow me to vote on something I felt was very important to the state. At that time, the chairman took the draft to the [Legislative] Counsel Bureau. That afternoon I met with Brenda Erdoes, with our [Legislative] Counsel Bureau around 4:30 p.m., [and] explained my situation. Thursday, understanding that we were having a work session Thursday afternoon, I spoke to a city attorney at Boulder City; and as some reporter said, why would you talk to him? I explained that for over 10 years I have sought his advice on all conflicts of interest or even potentials. Since I had not heard from Brenda [Erdoes], I thought I would go to that source that I have gone for so many years. Throughout the week, I'd been in discussions with Mr. Whittemore, looking for some language that may be a positive that the full committee could support. Friday afternoon, before leaving for the airport, I spoke to the chairman and asked for a copy of the amendment, which hopefully would have been prepared. I understand that it does take some time and unfortunately it was not ready. I also mentioned that it would be an opportune time for me to speak to some of the DUI folks. Sandy Heverly, who I have worked with closely for 10 years as Mayor of Boulder City, for 4 years of that; to explain some of the situations. We were in concurrence, that we did not have the language; we ought to wait for the language. At that point, it was mentioned to me that we would be taking action on the floor on Monday, which was yesterday. I, of course, discouraged that and felt we should have a public hearing that the public would know it was posted and what the language would be. At that point, I was encouraged to negotiate with Mr. Whittemore to find some particular language that would be acceptable. Sunday night, on the 14th, I had the good fortune of spending the evening at McCarran airport. Mr. Bunker was there, and he shared with me how traumatic the meeting was on Thursday and the presentation, and what a difficult bill it was going to be. He encouraged us to use our conscience and do the right thing. That really was the end of that discussion. Monday, the 15th, which was yesterday, I spoke on a bill in Senate finance around 8:30 a.m., and I spoke with the chairman. I asked to again to see the amendment, and it was not prepared yet. He asked me, at that time, if I would like to preview the presentation that [he] was going to be make at 11:00 a.m. on the floor and I unfortunately did not have time. I also asked him again if there was support for the .08 [BAC] as has been presented. If I recall properly, we both were in concurrence, that probably we did not have the votes at that time. But, he was still going to go ahead with the hearing on the floor, which I again discouraged. Also, on Monday morning, per Senator O'Donnell's direction, I did speak with Mr. Whittemore again and shared with him my/our proposal of .05 [BAC], and he shared with me that it would be appropriate to read the amendment before he could encourage that it was something that was of interest. I said that our plan was to go ahead with it anyway, but he, out of courtesy, would like to see it. Then, around 11:00 a.m., the presentation was made. Since a second was not made, I explained my potential conflict and that I did not have my opinion from LCB (Legislative Counsel Bureau) at that time, and that is when the 54-page amendment was proposed. That is really the basic sequence of events; but as far as my opinion on the abstention, good government does encourage that we analyze a situation from top to bottom and try to direct legislation that will have the largest positive impact on the state. It also means that [there are] times when there are bills that are not going to make ... is try to find ways to do the right thing and to find legislation that will affect in a positive way. The legislation that was proposed is good; the .08 [BAC], as I mentioned. It really is about the trauma of the families and the victims. It is really not about abstaining on a bill. But my challenge, as an elected official, for 6 or 7 months my opponent accused me, quite publicly, of being literally in the pockets of the insurance industry and that all my decisions would be based upon the insurance industries' direction. As I had said before, unfortunately my opponent did not check into my records, because for the past 10 years, 40 or 50 times, I have consistently abstained on any issue that even appeared to affect my income, and of course those that did. As a matter of fact, prior to then, I had also abstained on the SIIS (State Industrial Insurance System) bill because Farmers [Insurance] is in that particular market and I felt that it was prudent not to vote on that particular item. There is a few things that I mentioned at our hearing last week that I would like to reiterate. As I learned long ago, that some folks go by the book, and it is not necessarily the ethical way to go. The legal system does not always serve as a good guide, and I encourage all my compadres, who through the years of public service that you can step way over the ethical line and still be inside the law. I appreciate good government, and that is a situation where you try to bring all parties together. It is unfortunate that the Rizzo family was not aware of what was happening, and the DUI group was not aware of what was happening. This is why I encouraged that the meeting be held publicly so that input could be make. As I said, I want to enter this into the record because there was some question, and I encourage that this particular panel move ahead with positive legislation that it has this year; but I think it is important that remain on the record. Senator Porter's reply from Deputy Legislative Counsel, Eileen O'Grady, is provided for the committee (Exhibit F). Senator O'Donnell said: I am not absolutely sure of all of the times and dates of your statement, but I will say that I will never ask anyone of this committee to violate any ethic that they perceive as a violation of conscience. Ethics is something that you have. You cannot be taught ethics. You cannot learn it from a classroom. You have to have it in your heart. I appreciate that you had, what I perceived to be a real and valid conflict. Unfortunately, it happens to be on one of these emotional bills, and I want you to know that I hold no animosity, no anger or anything; because I will not ask you to violate your own conscience. I think it was appropriate for you to put those remarks on the record and I think there has been a lot of misunderstanding. I have parties from both sides who hate me. I must have done something right. I put my neck out on the line for this bill and we did not get a second when it was introduced. I went down and used one of my own BDRs to have it drafted. My neck was out on the line and I knew that there was a possibility that you may have had a conflict. In knowing that conflict, I think we had to come up ... or I at least did not want to lose the bill altogether. I wanted to have whatever we could get out of the bill. That is when I proposed the amendment. I think that I did discuss it with you, that we could go with this particular language. Unfortunate turn of events, but that is life and we will go on from here. Senator O'Donnell stated that he had asked Jan Needham to come and explain the amendment to S.B. 326. Jan Needham, Senate Bill Drafting Adviser, Legislative Counsel Bureau, (LCB), testified: Essentially, this amendment creates a new motor vehicle crime. If you are driving or are in actual physical control of any vehicle with .05 [BAC] percent or more, by weight of alcohol in your blood, but less than .10 [BAC] percent; and you have damage to some property or another person there will be a criminal penalty imposed. For the first offense, it is a simple misdemeanor. For the second offense, within 7 years, it is considered a first offense DUI and the same penalties kick in as a first offense DUI. For the third offense within 7 years, it is also a misdemeanor and you have the penalty for a second offense DUI. It goes from there, so that finally when you hit the fourth or subsequent offense in 7 years, it is punished as a felony, just like a felony DUI. The testing is just like the DUI penalties. All the other statutes that deal with revocation of licenses, for a DUI for not submitting to a breathalyser test kick in for this offense as well. It is essentially the crime that is established in this bill. It is very lengthy, but we have statutes throughout the NRS (Nevada Revised Statutes) that need to be amended to reference this new crime. Senator O'Donnell asked why it is 54 pages? Ms. Needham replied that they are very thorough. There are many statutes throughout the NRS that deal with drinking and driving that had to be referenced in the amendment in section 6. Senator O'Donnell said the amendment will be held until the next meeting. Senator O'Donnell opened the hearing on S.B. 443. He asked if anyone had a problem with him taking the agenda out of order. SENATE BILL 443: Regulates operation of tow cars. (BDR 58- 1792) Senator O'Donnell asked for a legal explanation of the bill. He said that this bill was requested by the Public Service Commission of Nevada (PSC). He had asked LCB staff to draft a legal opinion as to whether the committee is on legal grounds to do this. Kimberly Guinasso, Deputy Legislative Counsel, Legislative Counsel Bureau (LCB), testified: Basically, the concern that we have is there is some new federal legislation last year that essentially preempts the state from regulating the prices, the routes, and the services of motor carriers. The provision I am talking about is in 49 U.S.C. (United States Codes) section 11501, subsection H. It is very broad and it covers essentially the towing industry. Pretty much every aspect that you can think of, so any provision that a state would enact which would have the effect of regulating the prices, the routes, or the services that a tow car provides would be preempted under this subsection. There are some exemptions to this preemption. Those relate to safety insurance requirements. There is another exception for hazardous cargo, but that does not apply to tow cars. Basically, the biggest exception to the state regulating is matters of safety. The state may still regulate matters relating to safety for tow cars. Senator O'Donnell asked about paragraph 2 on the second page (Exhibit G). There was a bill amended in Congress and the amendment will allow the regulation of tow cars. That amendment died. He asked if that makes it specific that the federal government does not allow the regulation of tow cars? Ms. Guinasso replied that is correct. She said that she has not seen any written opinion from the PSC and she is not sure of their position. Senator O'Donnell asked if the committee is to process this bill, will they be in jeopardy of being challenged legally? Ms. Guinasso replied that her office's position is that this will open the state up to quite a bit of litigation. John Mendoza, Chairman, Public Service Commission of Nevada (PSC), testified (Exhibit H) showing a clear exemption declared by the statute that the ICC (Interstate Commerce Commission) does not have jurisdiction over that specific area of towing. The PSC's lawyers have looked through the congressional arguments and have been unable to find any reference to towing. The issue comes into reference only if the law is extended to apply to carriers of property, which are exempt. There has been no specific ruling jurisdiction on towing. Economic regulation for common carriers of property has been deregulated. With some modifications (Exhibit I), the areas that can be regulated include the area of safety, consumer protection, dispute resolution between the towing company and the individual whose property is being towed, and the property rights' issues. Senator O'Donnell asked in subsection 3, page 3 is that the language that they are using to allow this law to be passed? Mr. Mendoza stated that they are saying that the ICC has not taken jurisdiction over towing in the past. The federal government has not regulated towing. There is an exemption to towing. Mr. Mendoza stated that Nevada currently has 103 towing companies. They provide emergency towing for law enforcement and motorists, commercial towing for businesses and garages, car dealers, car rentals and the removal of vehicles parked in unauthorized locations. Only nine tow companies show any revenue from interstate operations. The towing industry is largely a state responsibility. Most vehicles towed are personal property and carry personal property. Mr. Mendoza reviewed the sections of the bill and pointed out that none of the sections relate to any federal economic regulations. He said this bill is a consumer bill, dealing with safety and the issues for control by the states; safety, size/weight, insurance and financial responsibility. He said the issue is to protect the public. Kelly Jackson, Staff Counsel, Regulatory Operations Staff, Public Service Commission of Nevada (PSC), testified this language will not be the source of any prevailing lawsuit because of "tariff" being modified by "lawful." If the position is sustained that the commission can have approval of a tariff, there will not be a lawful tariff that somebody will be in violation of. Senator O'Donnell asked if section 8 covers the private individual who does not want people parking on their property? Mr. Jackson stated that the intention of the section is to protect public parking, not private property. He said that he will have to check and see if there is another section that will cover that type of protection. The Legislature has the authority to authorize the commission to certificate these entities looking at insurance and safety. Senator O'Donnell stated that he does not want the committee to entertain language that will bring about a lawsuit. Daryl Capurro, Lobbyist, Nevada Franchised Auto Dealers Association (NFADA), testified the law that Nevada is attempting to adopt to define what regulation they have left, came from a joint Senate/House conference committee on a Thursday; was voted on by both houses the following Monday. He said the industries did not have the opportunity to voice an opinion or vote on the issues. The Federal District Court challenged Congress' right on 10th Amendment grounds to preempt the states' ability to regulate intrastate transportation. All four challenges failed. He said the Federal Court is saying that Congress has the legal right to preempt the state from regulating for economic purposes, everything except the specifically named industries that were exempted from this preemption. Those are household goods and passenger motor carriers. He recommended amendments that need to be made to the bill. Senator O'Donnell stated that there needs to be regulations, but he thinks the federal government has preempted the state. He said he will consider language that could be placed into the law providing that the federal government allows the states to regulate. Some of the language needs to be changed because it will be challenged if not. Ms. Guinasso stated Mr. Capurro had assessed the situation very much the way the LCB counsel had. Gene Tieman, Milne Tow Service, testified he is in agreement with both sides of the bill and the issue. There is no question tow companies need regulation. The tow companies introduced into Congress two amendments which are not being addressed. Until they get that, they are inviting lawsuits from both sides of the board. He said the tow companies are interested in regulation, but are not getting any support. Mr. Capurro stated that both the administration and Congress are in agreement that the ICC will probably be out of business by the end of this year, with most of their functions transferred to DMV&PS. Senator Jacobsen asked if Mr. Tieman tows any state agencies' equipment? Mr. Tieman replied that his company tows for the city, state and counties as well as the federal and municipals, both interstate and intrastate. He provided a letter (Exhibit J) spelling out the position of the U.S. Department of Transportation. Warren Hardy, Lobbyist, Quality Towing, testified that he will welcome being involved in a subcommittee to resolve the concerns dealing with this issue. He said he supports the previous testimony. Senator O'Donnell closed the hearing on S.B. 443. Senator O'Donnell opened the hearing on S.B. 442. SENATE BILL 442: Conforms state regulation of motor carriers to new federal law. (BDR 58-1946) Galen Denio, Commissioner, Public Service Commission of Nevada (PSC), testified his summary concerning S.B. 442 is provided for the committee (Exhibit K). A summary of amendments is provided for the committee (Exhibit L). He said that he had spoken with Captain Goddard prior to the meeting and they feel one section that should not be repealed is Nevada Revised Statutes (NRS) 706.736. That is dealt with in S.B. 107. If repealed that will cause the department some problems. SENATE BILL 107: Removes certain exemptions from provisions regulating motor carriers. (BDR 58-574) Mr. Jackson said that when draft material had been sent to the LCB, they had proposed repeal of NRS 706.736, with alternative language. He said that language was not picked up in the bill. The bill needs to be modified to reflect that language. Mr. Denio stated that the packet includes attachment 2, a chart which should help clarify the authority of the Department of Motor Vehicles and Public Safety (DMV&PS) and the PSC (Exhibit M). It shows the interaction investigative support that the PSC will provide to the DMV&PS in relation to hazardous materials. Senator O'Donnell asked about the deletion of the language concerning the non-profit carriers of elderly and physically or mentally handicapped persons. He questioned what that language is being replaced with? Mr. Jackson replied there were exceptions throughout the statutes, and now are in section 19. Senator O'Donnell asked if Congress's deregulation of Public Law (PL)103-305 addresses baggage handling, or is that now deregulated? Mr. Jackson replied that the PSC lost regulation of the interstate baggage handling 4 to 5 years ago. Mr. Denio stated there is an emphasis to deregulate. Mr. Jackson said the proposed legislation assumes that the state is going to try to continue to regulate, with the statutory basis coming from S.B. 443, making sure the safety is covered. Senator Jacobsen asked with the reduction in their budget, is PSC going to be able to provide the same safety Nevada has had in the past? Mr. Denio stated that PSC believes they will be able to provide a better service with the resources they have. Mr. Capurro said S.B. 442 has to pass in some form in order for Nevada to bring its law in line with the Airport Improvements Act, section 601. He recommended the committee deal with the tow car issue in S.B. 443 and it be removed from S.B. 442 as a definition under "fully regulated carrier." Safety for the tow cars should be handled in S.B. 443. He said wherever the language "tow car" appears, it should be removed. The fully- regulated carrier will refer to household goods carriers and the passenger motor carriers. Mr. Capurro questioned the definition of household goods as well as several other portions of the bill referring to fully- regulated carriers. He said several sections give the DMV&PS the authority over the non-fully-regulated carriers; everything except household goods and the passenger motor carriers. He said there will have to be regulation of safety and insurance of private motor carriers, which has never been a focus of Nevada enforcement. He said anyplace "permit" appears should be changed to "approval." That will provide the necessary options for the PSC to work with. Senator Jacobsen said if the committee does not separate the tow cars and make them a separate unit, there will always be problems. He asked for the definition of a tow car. Mr. Capurro replied that with the new towing equipment, they actually transport the vehicle on the bed of a truck. The safety rules and regulations are in place today and are designed to regulate for safety purposes all activities of non-fully regulated carriers. The tow cars can be properly handled with the language that is modified in S.B. 443. He said they really believe it should come out of S.B. 442. Senator O'Donnell stated that he would like to see two bills come out of the committee. One for the tow cars and one for everyone else. Donna Wadey-Howell, Acting Chief, Registration Division, Department of Motor Vehicles and Public Safety (DMV&PS), testified the department concurs with the suggestion to change the word "permit" to "approval." Pam Miller, Lobbyist, Association General Contractors Nevada Chapter, testified they are in support of S.B. 442 with the modifications as suggested by Mr. Capurro, particularly with the approval process through DMV&PS. She said she would like to work with a subcommittee on the language for the bill. Senator O'Donnell closed the hearing on S.B. 442. Senator O'Donnell opened the hearing on S.B. 107. Captain William Goddard, Field Operations Bureau, Nevada Highway Patrol Division (NHP), Department of Motor Vehicles and Public Safety (DMV&PS), testified there is some confusion on the bill. He submitted to the committee corrections from the PSC (Exhibit N) so that the NHP can enforce the safety regulations on the carriers. Mr. Denio concurred with Captain Goddard. Mr. Capurro recommended that S.B. 107 be processed separately. It is a clean bill and is one that is needed. Senator O'Donnell said he is going to hold S.B. 107 and see if S. B. 442 and S.B. 443 can be processed in a timely manner. There will be a subcommittee meeting Thursday from 7:00 to 9:00 p.m, and he closed the meeting on S.B. 107. Senator O'Donnell said Assembly Joint Resolution (A.J.R.) 25 is the super speed train bill and asked if the committee wants to process that bill. ASSEMBLY JOINT RESOLUTION 25: Urges President and Congress to support efforts to build and use super-speed trains which operate by magnetic levitation. (BDR R-419) SENATOR JACOBSEN MOVED TO DO PASS A.J.R. 25. SENATOR SHAFFER SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS WASHINGTON, PORTER AND NEAL WERE ABSENT FOR THE VOTE.) * * * * * Senator O'Donnell adjourned the meeting at 3:52 p.m. RESPECTFULLY SUBMITTED: Diane C. Rea, Committee Secretary APPROVED BY: Senator William R. O'Donnell, Chairman DATE: Senate Committee on Transportation May 16, 1995 Page