Current through Register Vol. XLI, No. 13, March 29, 2024
3.1. Commencement of Proceedings.
a. When a new individual or joint rate
(except general rate increases, inflation based increases, or fuel adjustment
surcharges filed under the provisions of 49 U.S.C. '11501(b)(6) over which the
Public Service Commission of West Virginia has no jurisdiction) or an
individual or joint classification, rule, or practice related to a rate is
filed with the Public Service Commission of West Virginia by a rail carrier the
Commission may:
1. on its own initiative,
commence an investigation proceeding, or
2. upon protest of an interested party
commence an investigation proceeding, or
3. upon protest of an interested party
commence an investigation and suspension proceeding to determine whether the
proposed rate classification, rule or practice is discriminatory, unreasonable,
or in any other way violates applicable law.
b. Rates based on limited carrier liability
may be published and filed with the Commission, without prior approval,
pursuant to 49 U.S.C. '10730. However, such rates will be subject to protest on
grounds such as unreasonableness or nonconformance with the tariff publication
requirements found in
49 CFR
1300.4(i)(11).
c. The Commission shall give reasonable
notice to interested parties before beginning a proceeding. However, the
Commission may begin the proceeding without allowing an interested party to
file an answer.
3.2.
Duration of suspension period.
a. The
Commission shall complete a proceeding commenced under Rule 3.1(1)(a) or (b) or
(c) of these Rules within five (5) months from the effective date of the
proposed rate, classification, rule or practice except that if the Commission
reports to the Interstate Commerce Commission that it cannot make a final
decision within that time and explains the reason for the delay, it may then
take an additional three (3) months to complete the proceeding and make a final
decision.
b. If the Commission does
not render a final decision within the applicable time period the rate,
classification, rule or practice shall become effective immediately or, if
already in effect, shall remain in effect.
c. However, if a railroad makes a tariff
filing to adjust an intrastate rate, rule or practice under 49 U.S.C. '11501(d)
to that of similar traffic moving in interstate commerce, and the Commission
investigates such tariff in accordance with Rule 3.1 or suspends such tariff
filing in accordance with Rule 3.3, the carrier may apply to the Interstate
Commerce Commission to review the matter if the Public Service commission of
West Virginia has not acted with finality by the 120th day after the tariff was
filed. If the carrier elects not to refer the matter to the Interstate Commerce
Commission the Public Service Commission of West Virginia may decide the issue
within five months, as provided for in Rule 3.2(a).
3.3. Grounds for suspension.
a. The Commission may not suspend a proposed
rate, classification, rule, or practice unless it appears from the specific
facts shown by the verified statement of a person that:
1. there is a substantial likelihood that the
protestant will prevail on the merits;
2. without suspension, the proposed rate
change will cause substantial injury to the protestant or the party represented
by the protestant; and
3. because
of the peculiar economic circumstances of the protestant, the provisions of
Rule 3.8 of these rules do not protect the protestant.
b. The Commission will not suspend rates upon
its own motion.
3.4.
Market dominance.
a. When the new individual
or joint rate is alleged to be unreasonably high, the Commission, within ninety
(90) days after the start of a proceeding under these rules, shall determine
whether or not the railroad proposing the rate has market dominance over the
transportation to which the rate applies.
b. If the Commission finds that:
1. the railroad proposing the rate has market
dominance over the transportation to which the rate applies, it shall then
proceed to determine whether or not the proposed rate exceeds a maximum
reasonable level for that transportation.
2. the railroad proposing the rate does not
have market dominance over the transportation to which the rate applies, it
shall make such a finding pursuant to 49 U.S.C. '10709(d).
c. A finding by the Commission that the
proposed rate has a revenue variable cost percentage which is equal to or
greater than the percentages found in 49 U.S.C. '10709 (d)(2) does not
establish a presumption that:
1. the railroad
has or does not have market dominance over such transportation, or
2. the proposed rate exceeds or does not
exceed a reasonable maximum level.
d. Evidentiary guidelines for the
determination of whether or not the railroad has market dominance over the
transportation to which the rate applies shall be found under Rule 5.
3.5. Reasonableness.
a. Except for nonferrous recyclables, the
Commission shall evaluate the reasonableness of a rate only after market
dominance has been established. Moreover, the Commission shall evaluate the
reasonableness of rates following the decisional standards applied by the
Interstate Commerce Commission in Coal Rate Guidelines, Nationwide, 1 I.C.C.2d
520 (1985); and Ex Parte No. 347 (Sub-No. 2) Rate Guidelines -- Non Coal
Proceedings (April 8, 1987). In determining whether a rate is reasonable, the
Commission shall consider among other factors, evidence of the following:
1. the amount of traffic which is transported
at revenues which do not contribute to going concern value and efforts made to
minimize such traffic;
2. the
amount of traffic which contributes only marginally to fixed costs and the
extent to which, if any, rates on such traffic can be changed to maximize the
revenues from such traffic; and
3.
the carrier's mix of rail traffic to determine whether one commodity is paying
an unreasonable share of the carrier's overall revenues.
b. The Commission will evaluate the
reasonableness of rates for nonferrous recyclables in accordance with Ex Parte
394 (Sub-No. 5), Cost Ratio for Recyclables - 1988, served September 15, 1988,
and other future adjustments to these criteria which are adopted by the
Interstate Commerce Commission.
3.6. Burden of proof.
a. General. -- The burden shall be on the
protestant to prove the matters described in Rule 3.3(a)(1)-(3) of these
rules.
b. Market dominance:
1. Jurisdiction. -- The respondent railroad
shall bear the burden of showing that the Commission lacks jurisdiction to
review the proposed rate because the rate produces a revenue variable cost
percentage that is less than the percentages found in 49 U.S.C. '10709(d)(2).
The railroad may meet its burden of proof by showing the revenue variable cost
percentage for that transportation to which the rate applies is less than the
threshold percentage cited in 49 U.S.C. '10709(d) (2). The protestant may rebut
the railroad's evidence with a showing that the revenue variable cost
percentage is equal to or greater than the threshold percentage in 49 U.S.C.
'10709 (d)(2).
2. Intramodal and
intermodal competition. -- The protestant shall bear the burden of
demonstrating that there exists no effective intramodal or intermodal
competition for the transportation to which the rate applies. Respondent
railroad may rebut the protestant's showing with evidence that effective
intramodal or intermodal competition exists.
3. Product and geographic competition. -- If
intramodal or intermodal competition is shown not to exist, the respondent
railroad shall have the burden of proving that either product or geographic
competition for the involved transportation does exist. The protestant shall
have the burden of proving that such competition is not effective.
c. Reasonableness:
1. Rate increases:
A. Protestant's burden of proof. -- A party
protesting a rate increase shall bear the burden of demonstrating its
unreasonableness if such rate:
i) is
authorized under 49 U.S.C. '10707a; and
ii) results in a revenue-variable cost
percentage for the transportation to which the rate applies that is less than
the lesser of the percentages described in clauses (i) and (ii) of
49
U.S.C. 10707 a(e)(2)(A).
B. Respondent's burden of proof. -- The
respondent railroad shall bear the burden of demonstrating the reasonableness
of a rate increase if such rate:
i) is
greater than that authorized under 49 U.S.C. '10707a, or
ii) results in a revenue variable cost
percentage for the transportation to which the rate applies that is equal to or
greater than the lesser of the percentages described in clauses (i) and (ii) of
49 U.S.C. '10707a(e)(2)(A); and
iii) the Commission initiates an
investigation under 49 U.S.C. '10707.
2. Rate Decreases. -- A party protesting a
rate decrease shall bear the burden of demonstrating that the rate does not
contribute to the going concern value of the railroad, and it therefore
unreasonably low. A party may meet its burden by making a showing that the rate
is less than the variable cost for the transportation to which the rate
applies.
3.7.
Zone of rate flexibility.
a. A rail carrier
may raise any rate pursuant to the limitations described in 49 U.S.C. '10707a.
Base rates increased by the quarterly rail cost adjustment factor will not be
investigated or suspended. In addition, a railroad may increase any rate by six
percent (6%) per annum (to a maximum of eighteen percent (18%)) over the four
(4) year period following enactment of the Staggers Act. Thereafter, railroads
not earning adequate revenues, as defined by the Interstate Commerce
Commission, may raise rates four percent (4%) per year. Neither the six percent
(6%) nor four percent (4%) increase shall be suspended. If the increase results
in a revenue to variable cost ratio that equals or exceeds one hundred ninety
percent (190%), the Commission may investigate the rate either on its own
motion or on complaint of an interested party.
b. In determining whether or not to
investigate the rate this Commission shall consider:
1. the amount of traffic which the railroad
transports at revenues which do not contribute to going concern value and
efforts made to minimize such traffic;
2. the amount of traffic which contributes
only marginally to fixed costs and the extent to which rates on such traffic
can be changed to maximize the revenues from such traffic;
3. the impact of the challenged rate on
national energy goals;
4. state and
national transportation policy; and
5. the revenue adequacy goals incorporated in
the Interstate Commerce Act.
3.8. Monetary adjustments for suspension
actions.
a. Rate increases with no
suspensions. -- In the event the Commission does not suspend but investigates a
proposed rate increase under Rule 3.3, the Commission shall require the rail
carrier to account for all amounts received under the increase until the
Commission completes its proceedings under Rule 3.2. The accounting shall
specify by whom and for whom the amounts are paid. When the Commission takes
final action, it shall require the carrier to refund to the person for whom the
amounts were paid that part of the increased rate found to be unreasonable,
plus interest at a rate equal to the average yield of marketable securities of
the United States Government having a duration of ninety (90) days, said
interest rate to be fixed on the date the Commission's order becomes
final.
b. Rate increases with
suspension. -- If a rate is suspended under Rule 3.3 and any portion of such
rate is later found to be reasonable, the carrier shall collect from each
person the transportation to which the rate applies the difference between the
original rate and the portion of the suspended rate found to be reasonable for
any services performed during the period of suspension, plus interest at a rate
equal to the average yield of marketable securities of the United States
Government having a duration of ninety (90) days, said interest rate to be
fixed on the date the Commission's order becomes final.
c. Rate decreases with suspension. -- In the
event the Commission suspends a proposed rate decrease under Rule 3.3 which is
later found to be reasonable, the rail carrier may refund any part of the
decrease found to be reasonable if the carrier makes the refund available to
each shipper who participated in the rate, in accordance with the relative
amount of such shipper's traffic transported at such rate.
d. Except as provided in subsection (e) of
this rule, when the Commission finds that a railroad shall make refunds or is
entitled to collect additional freight charges, but the amount cannot be
ascertained upon the record before it, the party entitled to the refund shall
file a statement showing details of the shipments involved in the Commission's
findings. The statement must be submitted to the carrier for verification and
certification. The Statement shall present the following information for each
shipment and grouped by routes, and accompanied by the paid freight bills or
copies thereof;
_____ Date of shipment.
_____Date of delivery or tender of delivery.
_____Date charges were paid.
_____Car initials.
_____Car number.
_____Origin.
_____Destination.
_____Route.
_____Commodity.
_____Weight.
_____Rate.
_____Amount.
_____Refund (or monies due)
on basis of Commission's decision.
______ Charges paid under subection a.
The Commission shall consider such statement in its entry of
order thereupon.
e. If the
railroad wishes to waive collection of amounts due under Rule 3.8(b) and the
amount to be collected is:
1. under two
thousand dollars ($2,000). -- Then the railroad may waive collection without
notice to the Commission, provided that the rule shall only apply once to any
person who used the original rate during the suspension period.
2. two thousand dollars ($2,000) or more. --
then the railroad shall petition the Commission for authority to waive
collection. The petition shall contain the following information:
-names and addresses of the customer for whom collection is
to be waived.
-certification that all railroads (if more than one is
involved in the movement) concur in the waiver.
-amount to be waived.
-information identifying the original case to which the rate
adjustment applies.
-a brief statement or justification for the intended
waiver.
3. Any person
wishing to protest a waiver proposed under Rule 3.8(e)(2) may do so by filing a
protest within thirty (30) days of the Commission's receipt of the petition for
waiver. The petition shall identify the investigation and suspension docket
number, shall clearly state the reasons for the objection and shall certify
that copies have been served upon all parties. Railroads shall have forty-five
(45) days to file a response to a protest.
4. If the Commission receives a letter of
protest, it will notify all parties to the proceeding and the railroad shall
not be permitted to take any further action until the Commission makes its
findings and enters its order.
5.
If no protests are received pursuant to Rule 3.8(e)(3), then the waiver of
collection shall be considered approved without further action from the
Commission. If protests are received the Commission shall issue a decision, set
the matter for hearing, or take whatever other action is warranted by the
circumstances.
3.9. Reparation based on commission findings.
-- When the Commission finds that damages are due, but that the amount cannot
be ascertained upon the record before it, the complainant shall immediately
prepare a statement showing details of the shipments on which reparations are
claimed, in accordance with Rule 3.8(d).
This statement, together with the paid freight bills on the
shipments or true copies thereof, shall then be forwarded to the carrier which
collected the charges for verification and certification as to its accuracy.
All discrepancies, duplications, or other errors in the statements shall be
adjusted by the parties and corrected agreed statements submitted to the
Commission.
This statement will be certified by all parties and submitted
to the Commission for consideration in entry of its order.