1. law, govt and politics

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION
IN THE MATTER OF PROPOSED
)
REVISIONS TO THE RATES, TERMS AND)
CONDITIONS OF THE STATEWIDE
)
WRECKER TARIFF, AND FOR
)
AMENDMENT TO THE FUEL
)
SURCHARGE RULE, 18.3.15 NMAC,
)
TRANSPORTATION DIVISION STAFF
OF THE NEW MEXICO PUBLIC
REGULATION COMMISSION,
Petitioner.
Case No. 10-00334-TR-R
)
)
)
)
)
)
)
)
FINAL ORDER REVISING THE STATEWIDE WRECKER TARIFF AND AMENDING
RULE 18.3.15 NMAC
THIS MATTER comes before the New Mexico Public Regulation Commission
(Commission) upon the Recommended Decision issued by Hearing Examiner Ashley C.
Schannauer on June 1,2011, and the exceptions of 54 Towing Corp. (54 Towing), filed June 9,
2011. Having considered the Recommended Decision and the exceptions, as well as the record
in this case, and being fully informed in the premises,
THE COMMISSION FINDS AND CONCLUDES:
1.
The Statement of the Case, Discussion, and all Findings of Fact and Conclusions
of Law contained in the Recommended Decision (RD) are hereby incorporated by reference as if
fully set forth in this Final Order, and are ADOPTED, APPROVED, and ACCEPTED as
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 1 of 8
Findings and Conclusions of the Commission, except to the extent expressly modified or
disapproved herein.
2.
The Commission has jurisdiction over the parties and the subject matter of this
3.
The only Exceptions to the Recommended Decision were filed by 54 Towing.
case.
RULE 18.3.15 NMAC, FUEL SURCHARGE FOR WRECKER SERVICES PERFORMING
NON-CONSENSUAL TOWS (ATTACHED AS EXHIBIT I)
4.
Wreckers may charge customers a fuel surcharge based in part on a fuel
adjustment per mile. Se.._.~e Rule 18.3.15.8 (A) NMAC. The adjustment equals (the current regional
price for fuel minus $2.50) divided by 5, where $2.50 is the base cost per gallon of fuel. Thus
the lower the base cost, the more money that wreckers can charge customers. The fuel surcharge
is paid by customers in addition to the overall bill for fuel costs. Se.._~e Rule 18.3.15.8 (C) NMAC.
The surcharge takes effect only if the current price exceeds $2.50.
5. 54 Towing’s objection (Exceptions, p.2) was directed to the Notice of Proposed
Rulemaking’s (NOPR’s) change of the base fuel price from $1.45 per gallon to $3.00 per gallon.
However, the RD used a base fuel price of $2.50, not the $3.00 recommended by the
Transportation Division Staff (Staff) in the NOPR. (That is, the towing rates in the Tariff
(attached as Exhibit II) were based on an assumed base rate of $2.50, and therefore wreckers
would not be fully compensated if the surcharge’s base fuel rate were $3.00.) The objection does
not state what the base fuel price should be, but at the April 12, 2011 Hearing, 54 Towing stated
that it should remain at the current level of $1.45, which was set in May, 2008. (Fuel Surcharge
Hearing at p. 5)
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 2 of 8
6. The Commission does not grant this objection. The RD states that the base rate of
$2.50 is based on the fuel costs that are collectable under the statewide Tariff rates and the fuel
surcharge. (RD at pp. 36-37) To keep the 2008 cost of $1.45 would result in a recovery above
the actual cost of fuel.
7. The Commission has made minor stylistic changes and changes for consistency to
the version of Rule 18.3.15 that is attached to the RD.
8. The Commission should approve the amended Rule because the cost of fuel has
greatly increased since the base price of fuel was established in 2008 and because the Rule no
longer applies to motor carriers of persons.
TARIFF
9. 54 Towing’s exceptions to the Tariff.
a) 54 Towing objects to the elimination of fees for dolly, dolly mileage, tire
changes, and driveshaff removal. These items are the ~ la carte charges that
have led Staff investigators to finding many discrepancies in towing services’
billing and to their receiving many complaints. In simplifying the tariff by
setting a price that compensates towing services for the average cost of a basic
tow and allowing towing services to charge separately only for equipment and
labor not ordinarily needed to provide service, Staff will be able to focus its
resources on enforcing insurance and other registration requirements against
towing services that are currently operating without Commission authority and
placing unfair competitive pressure on legal towing services. (TR. at pp. 66-67)
The wreckers have called for better enforcement of illegal operators. (TR. p.
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 3 of 8
242) Staff included in its average cost of a tow the cost of equipment and labor
ordinarily needed to provide wrecker service and eliminated the costs of those
items as separate charges.
54 Towing admits that dollies are used in only 2% of its nonconsensual
tows. One wrecker testified that wreckers do not need to disconnect drivelines
or use dollies. (TR. p. 205) The McKinley County wreckers’ Exhibit stated that
dollies were bought with the trucks but are considered by these wreckers to be
extra equipment. However, Staff testified that extra equipment does not include
equipment that wreckers ordinarily have on their trucks. The category includes
equipment like bulldozers, items that a wrecker might have to buy or rent for an
extraordinary situation. (TR. pp. 132-34) Staff also testified that extra fees for
dollies and driveline disconnections have not been justified by any evidence.
(TR. pp. 129-30; 160) This exception should be denied.
b) 54 Towing objects to the elimination of a fee for towing services’ use of fourwheel drive vehicles. Most towing services do not use four-wheel drive tow
vehicles. (TR. p.80) They use chains when weather requires them. Staff does
not consider chains to be extra equipment. (TR p. 132) If four-wheel drive tow
vehicles are needed to recover damaged vehicles, the cost can be charged under
the extra labor & equipment category. This exception should be denied.
c) 54 Towing claims that the administrative charge per tow should be $50. The
RD recommends $25. Currently it is $10. The charge is to offset the cost of
towing services’ obtaining registered owner and lienholder data and notifying
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 4 of 8
the owner or lienholder of the vehicle’s location and of its having been towed -activities under the Commission’s jurisdiction. Such an inquiry costs $7.00
each time. Some wreckers pay an annual fee to a contractor for this service.
This charge does not include the cost of perfecting the towing service’s lien for
towing charges or proceeding to a sale of the vehicle, activities not under the
Commission’s jurisdiction. (TR. at pp. 105, 108, 122-23) This exception
should be denied.
d) 54 Towing objects to the elimination of charges for waiting time. Most of the
complaints about towing services involve the padding of waiting time, the time
a wrecker spends at a scene before being allowed to tow a vehicle. Staff
removed waiting time and included it as part of the inclusive rate for hookup
based upon Staff’s surveying and comments from the Investigative Bureau of
the Transportation Staff. The increase in the hookup rate covers the majority of
tows involving waiting time. (TR at p. 46) Staff wanted to reduce disagreements
on billing, which are hard for Staff to regulate since Staff is not actually on the
scene, and no records are kept of towing services’ arrivals and departures. (TR.
at pp. 22, 54-55)
Towing services in Albuquerque have addressed the issue with police to
coordinate the efficient movement of vehicles. Pursuant to those discussions,
towing services have asked to be called only when the vehicles are ready to be
moved or, if towing services have arrived prematurely, they leave the scene and
ask to be called when the vehicle is ready to be moved. (TR. at pp. 228-230)
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 5 of 8
54 Towing claims that the Albuquerque scenario is possible, but "in most cases
it does not happen." The objection continues: "In a situation where several hours
of waiting time is needed and in question, the [Commission’s] investigator can
verify arrival and completion times with the police dispatch as part of their [sic]
investigation process."
At the hearing, McKinley County tow operators said that almost every
nonconsensual tow involved waiting time and that investigators could verify arrival
and departure times through police dispatch records. (TR at pp. 171-72, 194) Staff
disputed this (TR at pp. 54-55) and asserted that waiting time is not a legitimate
cost. (TR. at p. 123) It is by no means clear that law enforcement makes a record
of when towing services arrive and depart. Given the potential for abuse and the
possibility of towing services making arrangements like the ones in Albuquerque,
this exception should be denied.
10.
The Commission has made minor stylistic changes and changes for
consistency to the version of the tariff that is attached to the RD.
IT IS THEREFORE ORDERED:
A. The Decretal Paragraphs contained in the Recommended Decision are
incorporated by reference as if fully set forth herein and are ADOPTED, APPROVED and
ACCEPTED as Orders of the Commission, except as expressly modified or disapproved herein.
B. 54 Towing Corp.’s exceptions are DENIED.
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 6 of 8
C. The amended Fuel Surcharge Rule, Rule 18.3.15 NMAC, attached to this
Order as Exhibit I is approved and adopted as provided herein.
D. The amended Fuel Surcharge Rule, Rule 18.3.15 NMAC, approved by this
Final Order shall be filed and published in the New Mexico Register as required by the State
Rules Act, NMSA 1978, §§ 14-4-1, et seq., and implementing rules.
E. The revised Statewide Wrecker Tariff attached to this Order as Exhibit II
is approved and adopted as provided herein.
F. This Final Order is effective immediately.
G. The Commission in this Order is waiving, in this case only, certain
procedural requirements. This is being done for efficiency and cost savings for the Commission
because of the large number of agencies and towing services on the service (mailing) list and the
lack of e-mail addresses.
H. This Final Order, along with the Rule and the Tariff, will be posted at the
Commission’s website and will be mailed to anyone requesting them.
I. A brief letter, rather than this Final Order along with the Rule and the
Tariff, will be served on all parties on the attached Certificate of Service via email if their email
addresses are known, and if not known, via regular mail. That letter will: 1. Summarize the new
rates that are announced in the Tariff and the $2.50 fuel surcharge base rate and announce when
those rates and that surcharge will become effective; 2. Announce that the Final Order, Rule, and
Tariff have been issued and that they will be posted at the Commission’s website and will be
mailed to anyone requesting them; and 3. Be promptly mailed after the filing of this Final Order.
J. After the filing of that letter, this Docket will be closed.
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 7 of 8
14th day of
ISSUED under the Seal of the Commission at Santa Fe, New Mexico, this
July, 2011.
NEW MEXICO PUBLIC REGULATION COMMISSION
I~ATRICK H. LYONS, CH~fRMAN
JEROME D. BLOCK, VICE CHAIRMAN
A. MARKS, COMMISSIONER
COMMISSIONER
T
BEN L. HA~L, COMMISSIONER
Final Order Revising Wrecker Tariff
And Amending Rule 18.3.15 NMAC
Case No. 10-00334-TR-R
Page 8 of 8
EXHIBIT I
TITLE 18
TRANSPORTATION AND HIGHWAYS
CHAPTER3
MOTOR CARRIER GENERAL PROVISIONS
PART 15
FUEL SURCHARGE FOR CO~ISSION P.,~TE RECULATED
CAP.RIERSWRECKER SERVICES PERFORMING NON-CONSENSUAL TOWS
18.3.15.1
ISSUING AGENCY: New Mexico Public Regulation Commission.
[18.3.15.1 NMAC -N, 5-15-08]
18.3.15.2
SCOPE: This rule applies to all ce~’~fic"~ted meter carrier: ef perse,.n~ a~nd wrecker services
performing non-consensual tows¯
[18.3.15.2 NMAC - N, 5-15-08; A, da~
18.3.15.3 STATUTORY AUTHORITY: NMSA 1978 Sections 8-8-4, 65-2A-4 and 65-2A-21.
[18.3.15.3 NMAC - N, 5-15-08]
18.3.15.4
DURATION: Permanent.
[18.3.15.4 NMAC - N, 5-15-08]
18.3.15.5 EFFECTIVE DATE: ~.~ay.~,~ ’~ ,w,,,~nn’~ Date unless a later date is cited at the end of a section.
[18.3.15.5 NMAC -N, 5-15-08; A date]
18.3.15.6
OBJECTIVE: The purpose of this rule is to establish a procedure providing fair and reasonable
voluntary fuel surcharges to ce~fic-~te~ meter ca~er~ ef perse,’~ "~a~ wrecker services performing non-consensual
tows.
[18.3.15.6 NMAC - N, 5-15-08; A, date]
18.3.15.7
DEFINITIONS: In addition to the definitions in 1NMSA 1978 Sections 24-10B, 65-2A-3, 65-62, and 18.3.1.7 NMAC, as used in this rule:
A. base year means the reference calendar year used as a base for determining the fuel price increase
percentage in comparison to a current reference price;
B. EIA reference price refers to the weekly gasoline or diesel fuel price for the Rocky mountain
region, as published at the United States department of energy’s official energy information administration website
at http://tonto.eia.doe.gov/oog/infogdu/gasdiesel.asp, or such other address on which that same information may be
displayed by the energy information administration in the future;
C. fuel price increase percentage is the percentage by which the current EIA weekly reference price of
fuel has risen in comparison to the base year;
D. fuel surcharge program means the procedures and requirements set forth in this rule, by which
ce~ificate~ meter carrier~ efper~ens and wrecker services performing non-consensual tows may implement limited
~ncreases ............. in their rates, reflecting the changing price of fuel, without a formal proceeding before the
commission;
E. maximum chargeable rates are highest rates that may be charged by a motor carrier under the fuel
surcharge program, pursuant to a current reference price;
F. motor carrier fuel expense percentage means the percentage derived by dividing a motor carrier’s
fuel expense attributable to a certificated service by the motor carrier’s gross revenues derived that same certificated;
G. participating motor carrier means a motor carrier of persons which has elected to participate in the
fuel surcharge program;
H.
rate increase percentage is the potential percentage increase in rates available to a particular motor
carrier.
[18¯3.15.7 NMAC - N, 5-15-08; A, date]
18.3.15.8
TOWING SERVICES PERFORMING NON-CONSENSUAL TOWS: Motor carriers
performing non-consensual towing services ~hi~h-that choose to participate in the fuel surcharge program shall
comply with the following adjustment formula:
Page I of 2
A. fuel adjustment per mile = (the current EIA reference price for diesel or gasoline fuel minus
$4-A-552.50) divided by 5, where 5 is a constant for the miles per gallon and $q-4~. $2.50 is the base cost per gallon
for fuel conclusively assumed and used in this formula for wrecker vehicles;
B. fuel surcharge = fuel adjustment per mile multiplied by total distance traveled, included both
loaded and unloaded miles;
C. the result of the "fuel adjustment".’- formula defined in this section shall be applied by participating
motor carriers as an addition to, or a~ a ~ub~act~.en from, the overall customer bill for fuel costs, as may be
applicable for EIA reference diesel or gasoline prices above an~ below $1 .d5 $2.50 per gallon;
D. the fuel adjustment shall be stated as a separate charge on the charge ticket or invoice, and shall
include the surcharge amount per mile and total miles charged for fuel.
E.
any EIA reference price below $2.50 per gallon shall not require a refund on the charge ticket or
invoice.
[18.3.15.8 NMAC - N, 5-15-08; A, date]
HISTORY of 18.3.15 NMAC: [RESERVED]
Page 2 of 2
EXHIBIT II
NEW MEXICO
PUBLIC REGULATION COMMISSION
STATEWIDE
WRECKER TARIFF
EFFECTIVE DATE
ISSUED BY:
TRANSPORTATION DIVISION
PUBLIC REGULATION COMMISSION
P.O. BOX 1269
SANTA FE, NEW MEXICO 87504-1269
(505) 827-4519 FAX (505) 827-4023
NEW MEXICO
PUBLIC REGULATION COMMISSION
STATEWIDE
WRECKER TARIFF
SCOPE:
This Tariff govems rates for nonconsensual towing between points and places in New Mexico by
wrecker, of wrecked, damaged, disabled, or abandoned motor vehicles and their cargo, and
inoperative and replacement vehicles and parts and equipment for the above-described vehicles,
vehicles the driver of which has been declared unable to drive by a duly authorized law
enforcement officer, and vehicles repossessed, confiscated or seized by any lawful authority.
ALL RULES AND REGULATIONS THAT GOVERN WRECKER SERVICES IN THE
STATE OF NEW MEXICO ARE CONTAINED IN THE PUBLIC REGULATION
COMMISSION MOTOR TRANSPORTATION RULES.
DEFINITIONS OF TERMS USED IN THIS TARIFF
AFTER HOURS means 5:00 pm to 8:00 am, Monday through Friday & Weekends.
ADMINISTRATIVE CHARGE means the total allowable fee for a wrecker service to obtain
ownership and lienholder information from the Motor Vehicle Division of any state and to send
written notification of possession of the motor vehicle by the wrecker service to the registered
owner and any lienholders.
DAY means a calendar day which begins at 12:00 midnight and ends at 11:59 pm.
DELIVERY means placing a vehicle in the actual possession of the owner or the owner’s agent.
EXTRA EQUIPMENT and LABOR means equipment which a wrecker service does not
ordinarily need to provide its authorized service and labor not ordinarily employed by the
wrecker service but which is necessary to provide adequate service in a unique or exigent
situation.
HOLIDAYS mean those days designated as legal holidays or as public holidays by the
Legislature of the State of New Mexico in NMSA 1978 Sections 12-5-1 et seq.
NONCONSENSUAL TOW means the compensated transportation of a motor vehicle by a
towing service, if such transportation is performed at the request of a law enforcement officer or
without the prior consent or authorization of the owner or operator of the motor vehicle.
NORMAL BUSINESS HOURS means nine consecutive hours from 8:00 a.m. to 5:00 p.m. on
every weekday excluding holidays.
RECOVERY is limited to the recovery of any vehicle that is overturned or off the main road or
highway in such a way that a winch would be required to reposition the vehicle before loading it.
STORAGE means the safe keeping of motor vehicles entrusted to the custody of a towing
service.
WRECKER EQUIPMENT and LABOR means equipment and labor which is employed by
the wrecker service.
2
GENERAL PROVISIONS
All rates are stated in terms of United States currency. Invoices are payable when the service is
rendered by the wrecker service, unless other arrangements have been made in advance.
Distance rates are based on the distance from point of origin to final destination, computed in
accordance with the Motor Transportation Rules. Distance rates are in addition to other charges
provided for in this tariff.
When a wrecker service is called, but not used through no fault of the wrecker service, charges
for the first mile and deadhead mileage will apply.
Rates for extra equipment are charged at a reasonable rental rate regardless of whether the
equipment is owned or rented.
Rates for extra labor apply from the time the extra labor is assigned to the wrecker service until
released from the service, either at the wrecker service’s terminal or on location if it is assigned
to another wrecker service.
A motorcycle shall be stored in a Type 2 or 3 storage facility only. Charges for storing a
motorcycle in a Type 3 storage facility shall occur only with the owner’s prior consent or if
ordered by a law enforcement officer.
Delivery of vehicles or allowing personal property to be viewed or taken by the registered owner
or lienholder after hours or on New Mexico State Holidays is optional at the discretion of the
towing service.
All bills must be itemized to show each charge for any of the items listed below.
STATEWIDE WRECKER TARIFF
CLASS A/B
First Mile/Hookup a
$100.00
Mileage (per mile), 2 to 25 miles
$5.00
25 miles and over (per mile)
$3.50
Excess Deadhead (per mile)
$3.00
Recovery (per hour subject to terms in $75.00
note below) 2
CLASS C
$150.00
$8.00
$5.00
$4.00
$150.00
CLASS D
$225.00
$15.00
$10.00
$6.00
$250.00
Extra Equipment
Reasonable cost
of rental in
Recovery
situations
Reasonable
cost of rental
in Recovery
situations
Reasonable cost
of rental
Extra Labor per hour (hour minimum)
15 minute increments after 1 st hour
$30.00
$30.00
$30.00
$10.00
$15.00
$20.00
$15.00
$20.00
$25.00
$20.00
$25.00
$30.00
DELIVERY CHARGE
After hours or NM State Holidays
$50.00
$50.00
$50.00
ADMINISTRATIVE CHARGE
$25.00
$25.00
$25.00
STORAGE CHARGES PER DAY
TYPE 1
TYPE 2
TYPE 3
$1.00 per day per Ft. exceeding 25’
"First mile/hookup" charge includes mileage less than 2 miles.
2 Recovery charges shall be calculated as follows: Hourly rate not to exceed 10 hours. Time
must be acknowledged by law enforcement officer at scene.