C07-0700Decision No. C07-0700
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
07R-255TRDOCKET NO. 07R-255TR
IN THE MATTER OF THE EMERGENCY RULES IMPLEMENTING FINGERPRINT-BASED CRIMINAL HISTORY RECORD CHECKS UNDER HOUSE BILLS 07-1065 AND 07-1249.
ORDER DENYING APPLICATION FOR REHEARING, REARGUMENT, OR RECONSIDERATION AND AMENDING EMERGENCY RULES
Mailed Date:    August 17, 2007
Adopted Date:  August 15, 2007
I.	BY THE COMMISSION
A.	Statement
1.	This matter comes before the Commission for consideration of the Application for Clarification or Modification of Portions of Decision No. C07-0565, or Alternate Application for Rehearing, Reargument, or Reconsideration by Tazco, Inc., d/b/a Sunshine Taxi (Sunshine).  We construe Sunshine’s pleading as an Application for Rehearing, Reargument, or Reconsideration (RRR) pursuant to the provisions of § 40-6-114, C.R.S.  In the Application for RRR, Sunshine requests reconsideration and modification of the emergency rules adopted in Decision No. C07-0565.  Now being duly advised, we deny the Application for RRR.  On our own motion, we amend the emergency rules adopted in Decision No. C07-0565 consistent with the discussion below.
2.	The Rules adopted in Decision No. C07-0565 implement the provisions of House Bills 07-1065 (HB 1065) and 07-1249 which, in part, require fingerprint-based checks of the criminal history of drivers for certain transportation carriers.  In particular, HB 1065 requires drivers for Article 16 carriers (motor vehicle carriers exempt from regulation as public utilities) and Article 10 taxi carriers to submit their fingerprints to the Commission.  The Commission, in turn, is required to submit those fingerprints to the Colorado Bureau of Investigation (CBI) to obtain a fingerprint-based criminal history record check of those drivers.  In Decision C07-0565, we established specific requirements for drivers submitting their fingerprints to the Commission.
3.	Sunshine raises a number of concerns relating to the rules.  First, Sunshine requests clarification that, insofar as common carriers are concerned, the rules affect only taxi drivers and not drivers of other carriers.  Sunshine points out that taxi carriers may hold certificates of public convenience and necessity authorizing other types of regulated services (e.g. charter service).  The Application for RRR suggests modifications of the rules to clarify that drivers providing other regulated services are not required to submit their fingerprints to the Commission for criminal background checks.
4.	To the extent Sunshine requests changes to the emergency rules, we deny the request as unnecessary.  With respect to passenger transportation, HB 1065 and the implementing rules clearly apply only to drivers of exempt passenger carriers (i.e. Article 16 motor vehicle carriers) and common carriers with authority to provide taxicab service.  See definitions of “driver” and “passenger carrier” in Rule 6016 (III) and (IV).  Rule 6016(b) states that the rules’ requirements apply to “passenger carriers” (i.e. Article 16 carriers and taxi carriers) and drivers for “passenger carriers.”  There should be no doubt that the fingerprint requirements do not apply to drivers providing other regulated services.  If Sunshine wishes to propose language seeking additional clarification for the rules, it should do so in the permanent rulemaking proceeding to implement HB 1065.
5.	Sunshine also requests a safe-harbor provision that would permit a person to continue to drive if fingerprint results are not received from CBI within 60 days.  At this time, we have no reason to believe that such a provision would be necessary.  Therefore, we deny this request.  Sunshine may raise this issue when the Commission considers permanent rules.
6.	Next, Sunshine objects to the Rules, especially Rules 6016(c)(V) and (VII), because they impose obligations on carriers themselves as opposed to the carriers’ drivers.  Sunshine suggests that HB 1065 does not authorize the Commission to require carriers themselves to do anything; therefore, these rules exceed the scope of the Commission’s authority.  We disagree.
7.	Notably, §§ 40-10-105.5(5) and 40-16-104.5(5) in HB 1065 empower the Commission to “promulgate rules concerning the employment of, contracting with, and retention of an individual whose criminal history record is checked” pursuant to the new legislation.  The specific rules challenged by Sunshine, in part, prohibit carriers from employing drivers who have not submitted fingerprints for a criminal history check as required by HB 1065, or whose criminal history bars such employment under the new legislation.  The rules mandate that carriers, as a condition of employment, require drivers to submit their fingerprints to the Commission for a record check every two years.  These and similar provisions are certainly within the scope of HB 1065 and the rulemaking authority delegated to the Commission by HB 1065.
8.	Finally, Sunshine raises questions such as: what if a potential driver has not been in the country long enough for a fingerprint history to exist; are subsequent fingerprint checks necessary after the initial one, etc.?  Such questions should be raised in the proceeding to adopt permanent rules.  No need exist to modify the emergency rules to address such issues at this time.
9.	For the foregoing reasons, we deny the Application for RRR.  However, on our own motion we modify the rules as discussed here.
10.	We delete the provisions in Rule 6016(c)(IV) and modify the provisions of Rules 6016(c)(III) and (d)(II).  Those provisions directed drivers, applicants, and principals, as defined, to leave empty certain fields in the official fingerprint form submitted to the Commission, or to complete those fields only after receiving instructions from the Commission’s Transportation Section.  However, information now available from the Commission or on the Commission’s website should permit the proper completion of those fields without special instructions from the Transportation Section.
11.	We also adopt the provision in new Rule 6016(c)(VIII).  Generally, the rule directs Commission Staff to make the initial determination regarding a driver’s qualifications based upon the results of a fingerprint check, and authorizes Staff to request information from a driver to assist in that determination, if necessary.  In addition, in the event Staff determines that the individual is disqualified from driving as a result of a fingerprint check, the rule permits drivers to petition the Commission to reverse Staff’s determination.  Staff’s experience in administering the emergency rules indicates that these provisions are immediately necessary.
12.	We adopt these revisions to the emergency rules in accordance with the provisions of §§ 40-2-108(2) and 24-4-103(6), C.R.S.  We find that immediate adoption of these revisions is imperative and necessary to implement the requirements of HB 07-1065 and 07-1249.  Therefore, compliance with the rulemaking requirements associated with permanent rules, pursuant to § 24-4-103, C.R.S., would be contrary to the public interest.
13.	The rules attached to this order shall be effective immediately upon the mailed date of this order and shall remain in effect for 210 days from July 3, 2007, or until permanent rules become effective, which period is less.
II.	ORDER
A.	The Commission Orders That:
1.	The Application for Clarification or Modification of Portions of Decision No. C07-0565, or Alternate Application for Rehearing, Reargument, or Reconsideration by Tazco, Inc., d/b/a Sunshine Taxi is denied.
2.	The revisions to the rules reflected in Attachment A to this decision are effective immediately on the Mailed Date of this decision, consistent with the above discussion.
3.	This Order is effective upon its Mailed Date.
B.	ADOPTED IN COMMISSIONERS’ WEEKLY MEETING
August 15, 2007.

	THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO

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Commissioners
	
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