Current through March 20, 2024
Authority: IC 8-1-1-3
Affected: IC 8-3-1-1
Sec. 40.
(a) Rail
carriers providing transportation subject to the jurisdiction of the public
service commission of Indiana shall file with the commission an original and
one copy of the contract entered into with one or more purchasers of rail
service. The contract shall be accompanied by three copies of a summary of the
nonconfidential elements of the contract in the format specified in 170 IAC
3-1.1-44.1 through 170 IAC 3-1.1-49.1[sections 44 through 49 of this
rule]. A contract and contract summary (and amendments and
supplements) may be rejected for noncompliance with applicable statutes and
regulations.
(b) Grounds for review
of contract. Within 30 days of the filing date of a contract, the commission
may, on its own motion or on complaint, begin a proceeding to review it. Review
can be based only on allegation of violations as described in (c) below
[subsection (c)].
(c) Grounds for complaints. A contract may be
reviewed by the commission on its own motion, or upon complaint, only on the
following grounds:
(1) In the case of a
contract other than a contract for the transportation of agricultural
commodities (including forest products and paper), a complaint may be filed:
(A) by a shipper only on the grounds that the
shipper individually will be harmed because the proposed contract unduly
impairs the ability of the contracting carrier or carriers to meet common
carrier obligations under IC 8-3-1-1, or
(B) by a port only on the grounds that the
port individually will be harmed because the proposed contract will result in
unreasonable discrimination against that port.
(2) In the case of a contract for the
transportation of agricultural commodities (including forest products and
paper), in addition to the grounds for a complaint described in subdivision
(c)(1)
[subdivision (1)], a complaint may be filed by a
shipper on the grounds that the shipper individually will be harmed because:
(A) the rail carrier(s) unreasonably
discriminated by refusing to enter into a contact with the shipper for rates
and services for the transportation of the same type of commodity under similar
conditions to the contract at issue and the shipper was ready, willing and able
to enter into such a contract at a time essentially contemporaneous with the
period during which the contract was offered; or
(B) the proposed contract constitutes a
destructive competitive practice.
(3) "Unreasonable discrimination," as used in
170 IAC 3-1.1[this rule], means, when applied to agricultural
shippers, that the railroad has refused to enter into a contract with the
shipper for rates and services for the transportation of the same type of
commodity under similar conditions to the contract at issue, and that the
shipper was ready, willing, and able to enter into such contract at a time
essentially contemporaneous with the period during which the contract at issue
was offered, and when applied to a port, has the same meaning as the term under
49 U.S.C. Sec. 10741.
(4) The
definition of "agricultural commodities," "forest products," and "paper" will
be decided on a case-by-case basis.
(d) Filing and service of compalints
[sic.].
(1) A complaint
shall be filed with the Public Service Commission of Indiana, Transportation
Department, 901 State Officer Building, Indianapolis, Indiana, by the 18th day
after the filing of the contract.
(2) A reply shall be filed by the 23rd day
after the filing of the contract.
(3) An original and seven copies of each
complaint shall be filed with the commission.
(4) A copy of the complaint shall be served
on each railroad participating in the contract and replies shall be served on
complainant. Complaints shall be served by hand, express mail or other
overnight delivery service.
(5) An
appeal of a commission decision will be made in accordance with 170 IAC 1-1-1
through 170 IAC 1-1-22, subject to the following exception:
An appeal must be made at least two work days prior to the
contract approval date as set out in (f) [subsection
(f)].
(e) Commission decision upon review of
contract. Within 30 days after the date a proceeding is commenced to review a
contract upon the grounds specified in (c) [subsection (c)],
the commission shall decide whether the contract violates the provisions of 49
U.S.C. Sec. 10713. If the commission finds that the contract violates the
provision of 49 U.S.C. Sec. 10713, it will:
(1) disapprove the contract; or
(2) in the case of agricultural contracts
where the commission finds unreasonable discrimination by a carrier in
accordance with subdivision (c)(3)
[subsection (c)(3)], allow
the carriers the option to:
(A) provide rates
and services substantially similar to the contract is [sic.]
issue, with such differences in terms and conditions as are justified
by the evidence; or
(B) cancel the
contract.
(f)
Approval date of contract.
(1) If the
commission does not institute a proceeding to review the contract, it shall be
approved on the 30th day after the filing of the contract. The contract shall
be considered "expressly approved" by the commission.
(2) If the commission institutes a proceeding
to review a contract, the contract is approved:
(A) on the date the commission approves the
contract, if the date of approval is 30 or more days after the filing date of
the contract;
(B) on the 30th day
after the filing date of the contract if the commission denies the complaint
against the contract prior to the 30th day after the filing date of the
contract; or
(C) on the 60th day
after the filing date of a contract, if the commission fails to disapprove the
contract.
(g)
Limitations of rights of a rail carrier to enter into future contracts. The
commission may limit the right of a rail carrier to enter into future contracts
if the commission determines that additional contracts would impair the ability
of the rail carrier to fulfill its common carrier obligation under IC 8-3-1-1.
The commission will handle these determinations on a case-by-case basis and may
investigate either on its own initiative or upon the filing of a verified
complaint by a shipper which demonstrates that it individually had been or will
be harmed by a carrier's inability to fulfill its common carrier obligations as
a result of existing contracts.
Transferred from Department of Transportation ( 100 IAC
6-1-40 ) to Indiana Department of Transportation ( 105 IAC 5-1-40 ) by P.L.
112-1989, SECTION 5, effective July 1, 1989.