W. Va. Code R. § 150-12-6

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-12-6 - Rules, Regulations, and Requirements Relative to Complaints Against the Reasonableness of Intrastate Railroad Rates

6.1. Formal complaints - general allegations. -- A formal complaint shall be so drawn as to fully and completely advise the parties, defendant and the Commission in what respects the provisions of the Interstate Commerce Act ("the Act") have been or are being violated or will be violated, and shall set forth briefly and in plain language the facts claimed to constitute such violations. If two (2) or more sections or subsections of the Act or requirements established pursuant thereto are alleged to be violated, the facts claimed to constitute violation of one section, subsection, or requirement shall be stated separately from those claimed to constitute a violation of another section, subsection, or requirement whenever that can be done by reference or otherwise without undue repetition.

6.2. Formal complaints - when monetary relief sought.

a. A formal complaint seeking monetary relief, when permitted under the Act, shall be filed within the statutory period, and shall contain such data as will serve to identify with reasonable definiteness the shipments or transportation services in respect of which monetary relief is sought. Such complaint shall state:

1. that complainant makes claim for monetary relief;

2. the name of each individual seeking monetary relief;

3. the names of defendants against which claim is made;

4. the commodities, the rate applied, the date when the charges were paid, by whom paid, and by whom borne;

5. the period of time within which or the specific dates upon which the shipments were made, and the dates when they were delivered or tendered for delivery;

6. the points of origin and destination, either specifically or, where they are numerous, by definite indication of a defined territorial or rate group of the points of origin and destination and, if know, the routes of movement; and

7. the nature and amount of the injury sustained by each claimant.

b. If a complaint seeking the award of monetary relief contains a claim on any shipment which has been the subject of a previous informal or formal complaint to the Commission, reference to such complaint shall be given.

6.3. Formal complaints - copies. -- The original of each formal complaint, amended or supplemental formal complaint, or cross complaint, shall be accompanied by copies in sufficient number to enable the Commission to serve one upon each defendant, including each receiver or trustee, and retain seven copies in addition to the original.

6.4. Formal complaints - tariff or schedule references. -- The several rates, charges, schedules, classifications, regulations, or practices on which complaint is made shall be set out by specific reference to the tariffs or schedules in which they appear whenever that is feasible.

6.5. Formal complaints - prayers for relief.

a. Generally. -- A formal complaint in which relief is sought should contain a detailed statement of relief desired. Relief in the alternative or of several different types may be demanded, but the issues raised in the formal complaint should not be broader than those to which complainant's evidence is to be directed at the hearing.

b. Specific prayer for monetary relief. -- Except under unusual circumstances, and for good cause shown, monetary relief will not be awarded upon a complaint unless specifically prayed for, or upon a new complaint by or for the same complainant which is based upon any finding in the original proceeding.

c. Awards for monetary relief can be awarded by this Commission only insofar as the relief relates to payment(s) for rail transportation service. Claims for damage to goods during shipment must be brought in the appropriate courts having jurisdiction to award.

6.6. Amended and supplemental formal complaints. -- An amended or supplemental complaint may be tendered for filing by a complainant against a defendant or defendants named in the original complaint, stating a course of action alleged to have occurred within the statutory period immediately preceding the date of such tender, in favor of complainant and against the defendant or defendants.

6.7. Answers and cross complaints to formal complaints.

a. Generally. -- An answer may simultaneously be responsive to a formal complaint and to any amendment or supplement thereof. It shall be drawn so as to fully and completely advise the parties and the Commission of the nature of the defense and shall admit or deny specifically and in detail each material allegation of the pleading answered. An answer may embrace a detailed statement of any counter proposal which a defendant may desire to submit. Unless the issue is such that separate answers are required, answer for all defendants may be filed on their behalf by one defendant in one document, in which event the answer must show clearly the names of all defendants joining therein, and their concurrence.

b. Cross complaints. -- A cross complaint, alleging that other persons, parties to the proceeding, having violated the Interstate Commerce Act or requirements established pursuant thereto, or seeking relief against them under the Interstate Commerce Act, may be tendered for filing by a defendant with its answer.

c. Time for filing answers. -- Unless otherwise directed by the Commission, an answer to a complaint shall be filed within twenty (20) days after the date on which the complaint was served. The original and seven copies of an answer shall be filed with the Commission.

d. When issue joined. -- If any defendant answers or fails to file and serve an answer within the period specified in paragraph (c), the issue thereby is joined as to such defendant.

6.8. Satisfaction and complaint. -- If a defendant satisfies a formal complaint, either before or after answering, a statement to that effect signed by the opposing parties shall be filed (original only need be filed), setting forth when and how the complaint has been satisfied. This action should be taken as expeditiously as possible.

6.9. Signature and verification. -- The complaint, answer and other pleadings relating to a complaint proceeding shall be signed in ink and the signer's address and telephone number shall be stated.

The facts alleged in a complaint, answer or other pleadings shall be verified by the person on whose behalf it is filed. If a complaint, answer or other pleading is filed on behalf of a corporation or other organization, it shall be verified by an officer of such corporation or organization.

6.10. Certificate of service. -- Proof of service of any paper shall be by certificate of attorney, affidavit or acknowledgement.

6.11. Zone of rate flexibility. -- Base rates increased by the quarterly rail cost adjustment factor may not be found to exceed a reasonable maximum for the transportation involved. Complaints against rate increases effected under subsections (c) and (d) of 49 U.S.C. '10707a shall be considered pursuant to provisions of subsection (e) of said Section.

6.12. Market dominance.

a. The Commission shall determine within ninety (90) days of the start of a complaint proceeding whether the carrier has market dominance over the transportation to which the rate applies. If the Commission finds that the carrier has market dominance, it may then determine that rate to be unreasonable if it exceeds a reasonable maximum for that transportation. In making a determination of market dominance, the Commission shall find that the rail carrier establishing the challenged rate does not have market dominance over the transportation to which the rate applied if the rail carrier proves that the rate charged results in a revenue variable cost percentage which is less than that stated in 49 U.S.C. '10709(d)(2).

b. 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.

c. If the Commission determines that a rail carrier does not have market dominance over the transportation to which a particular rate applies, the rate established by such carrier for such transportation shall be reasonable.

6.13. Reasonable rates.

a. Rail rates shall not be established below a reasonable minimum. Any rate for transportation by a rail carrier that does not contribute to the going concern value for such carrier is presumed to be unreasonable.

b. Rail rates which equal or exceed the variable cost of providing the transportation are conclusively presumed to contribute to the going concern value of that rail carrier, and are therefore presumed not to be below a reasonable minimum.

c. In determining whether a rate is reasonable, the Commission shall consider the policy that railroads earn adequate revenues as well as 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.

6.14. Burden of proof.

a. Jurisdiction. -- The defendant railroad shall bear the burden of showing that the Commission lacks jurisdiction to review a 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 shall meet its burden of proof by showing the revenue variable cost percentage for the transportation to which the rate applies is less than the threshold percentage cited in 49 U.S.C. '10709(d)(2). A complainant may rebut the railroad's evidence with a showing that the revenue variable cost percentage is equal to or greater than the threshold percentage cited in 49 U.S.C. '10709(d)(2).

b. Reasonableness of existing rates:

1. A party complaining that an existing rate is unreasonably high shall bear the cost of proving that such rate is unreasonable.

2. A party complaining that an existing rate is unreasonably low shall bear the burden of demonstrating that the rate does not contribute to the going concern value of the carrier, and is therefore unreasonably low.

3. Savings provisions. -- Any interested party may file a complaint alleging that an intrastate railroad rate which was in effect on the effective date of the Staggers Act (October 1, 1980) is subject to market dominance under the provisions of 49 U.S.C. '10709 and is unreasonable under the provisions of 49 U.S.C. '10709a. Any rate which is not challenged in a complaint filed by March 30, 1981, or which is challenged in such a complaint but

A. the rail carrier is found not to have market dominance over the transportation to which the rate applies, or

B. the rate is found to be reasonable, shall be deemed to be lawful and may not thereafter be challenged in the Commission or in any court other than an appeal from a decision of the Commission. These provisions shall not apply to any rate under which the volume of traffic transported during the twelve (12) month period immediately preceding the effective date of the Staggers Act did not exceed five hundred (500) net tons and has increased tenfold within the three year period immediately preceding the bringing of a challenge to the reasonableness of such rate. The complainant shall bear the burden of proving that a rate in effect on October 1, 1980, as described in this section, is unreasonable.

6.15. Nonapplicability. -- Complaints shall not be entertained by the Commission to the extent that they challenge the reasonableness of the following rate adjustments:

a. general rate increases;

b. inflation-based rate increases; or c. fuel adjustment surcharges.

W. Va. Code R. § 150-12-6