W. Va. Code R. § 150-12-7

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

Section 150-12-7 - Rules, Regulations and Requirements Related to Intrastate Railroad Transportation Contracts

7.1. Definition of the term "contract."

a. a contract subject to this section is a written agreement, including any amendment, entered into by one or more rail carriers with one or more purchasers of rail services, to provide specified services under specified rates, charges and conditions.

b. A contract filed under this section shall:

1. specify that the contract is made pursuant to 49 U.S.C. '10713, and

2. be signed by duly authorized parties.

c. the term "amendment" includes written contract modifications signed by the parties.

d. An amendment is treated as a new contract. -- An amendment is lawful only if it is filed and approved in the same manner as a contract. To the extent terms affecting the lawfulness of the underlying contract are changed, remedies are revived and review is again available.

7.2. Filing and approval.

a. Rail carriers providing transportation subject to the jurisdiction of the Public Service Commission of West Virginia shall file with the Commission an original and one copy of a contract entered into with one (1) or more purchasers of intrastate rail service. The contract shall be accompanied by five (5) copies of a summary of the nonconfidential elements of the contract in the format specified in 49 CFR '1300.300 -1300.315. 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 thirty (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 an allegation of violations as described in subsection (c) below.

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 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 49 U.S.C. '11101; 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 paragraph (e)(1) of this section, 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 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 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 these rules, 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 a 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 has under 49 U.S.C. '10741.

4. The definitions for "agricultural commodities," "forest products," and "paper" will be decided on a case by case basis.

d. Filing and service of complaints:

1. A complaint shall be filed with the Commission by the 18th day after the filing date of the contract.

2. A reply shall be filed by the 23rd day after the filing of the contract.

3. An original and six (6) copies of each shall be filed with the Commission.

4. A copy of the complaint shall be served by the complainant on each railroad participating in the contract and replies shall be served on complainant by each railroad. 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 49 C.F.R. 1100.200(c), subject to the following exception:

A) An appeal must be made at least two work days prior to the contract approval date as set out in Rule 7.2(f).

e. Commission decision upon review of contract. Within thirty (30) days after the date a proceeding is commenced to review a contract upon the grounds specified in subsection (c), the Commission shall decide whether the contract violates the provisions of 49 U.S.C. '10713. If the Commission finds that the contract violates the provisions of 49 U.S.C. '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 subsection (c)(3), allow the carriers the option to:

A. provide rates and services substantially similar to the contract at 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 thirty (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. Limitation of rights of 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 obligations under 49 U.S.C. '11101. The Commission will handle these determinations on a case by case basis and may investigate either upon 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.

7.3. Common carrier responsibility.

a. The terms of a contract approved by the Commission determine completely the duties and service obligations of the parties to the contract with respect to the services provided under the contract. The contract does not affect the parties' responsibilities for any services which are not included in the contract.

b. Service under a contract approved by the Commission is deemed a separate and distinct class of service.

7.4. Enforcement.

The exclusive remedy for an alleged breach of a contract approved by the Commission shall be an action in an appropriate State Court or United States District Court, unless the parties otherwise agree in the contract.

7.5. Limitation on agricultural equipment; and relief.

a. A rail carrier may enter into contracts for the transportation of agricultural commodities (including forest products but not including wood pulp, wood chips, pulp wood, or paper) that involve the use of carrier owned or leased equipment not in excess of forty percent (40) percent of the total number of the carrier's owned or leased equipment by major car type, except as provided in paragraph (b) of this section.

b. In the case of a proposed contract between a class I carrier and a shipper originating an average of one thousand (1,000) cars or more per year during the 3 (three) year period by major car type on a particular carrier, not more than forty percent (40%) of carrier owned or leased equipment used on the average during the prior three (c) year period may be used for the contract without prior authorization by the Commission.

c. The Commission may grant relief from the limitations of paragraphs (a) and (b) of this section if:

1. A rail carrier or other party requests such relief; or the Commission on its own initiative considers granting such relief; and

2. The Commission determines that making additional equipment available does not impair the rail carrier's ability to meet its common carrier obligations under 49 U.S.C. '11101.

7.6. Size of contract filings.

All contracts, amendments, contract summaries and supplements shall be of a size 8-1/2 by 11 inches; all shall be clear, legible, and on durable paper.

7.7. Filing and availability of contract, contract amendments, contract summary and contract summary supplements.

a. A railroad or railroads entering into a contract for railroad transportation services with one (1) or more purchasers of rail service shall file with the Commission the original and one (1) copy of the contract and five (5) copies of the contract summary.

1. Contracts and contract summaries shall not be filed in the same packages with standard tariff filings.

2. The confidential contract shall not be attached to the contract summary.

3. The envelope or wrapper containing the contract and summary shall be marked "Confidential, Rail Contract."

4. A contract and summary shall be accompanied by a transmittal letter identifying the submitted documents, and the name and telephone number of a contact person.

b.

1. The contract filed under these rules will not be available for inspection by persons other than the parties to the contract and authorized Commission personnel, except by petition demonstrating a likelihood of succeeding on the merits of the complaint and that the matter complained of could not be proven without access to additional contract information. The Commission's action in any contract disclosure matter, including a petition filed under this subparagraph is subject to the limitations imposed by the West Virginia Freedom of Information Act (Chapter 29B of the West Virginia Code) and any other applicable statutes including 5 U.S.C. 522(b) and 18 U.S.C. 1905.

2. A contract and its summary may be labeled "Nonconfidential". Such a designation will permit the general public to inspect the entire contract.

c. The contract summary filed under these rules shall include the information specified in Rule 7.10 of this part. The contract summary shall be made available for inspection by the general public.

d. The contract summary filed under these rules shall not be required to be posted in any stations, but shall be made available from carriers participating in the contract upon reasonable request.

7.8. Contract and contract summary title pages.

a. The title page of every contract and amendment shall contain only the following information:

1. In the upper right corner, the contract number (see Rule 7.9).

2. In the center of the page, the issuing carrier's name, followed by the word "CONTRACT" in large print.

3. Amendments to contracts shall also show, in the upper right corner, the amendment number (see Rule 7.9).

4. A solid one-inch black border down the right side of the title page.

5. Date of issue and date to be effective.

b. The title page of every contract summary and supplement shall contain only the following information:

1. In the upper right corner, the contract summary number (see Rule 7.9).

2. In the center of the page, the issuing carrier's name, followed by the words "CONTRACT SUMMARY" in large print.

3. Date of issue and date to be effective.

4. In the center lower portion, the issuing individual's name and address.

5. Supplements to contract summaries shall also show, in the right upper corner, the supplement number (see Rule 7.9).

7.9. Contract and Contract summary numbering system.

a. Each issuing carrier shall sequentially number the contract and contract summary it issues. The contract and contract summary identification number shall include the letters "PSCWV", the industry standard alphabet code for the issuing railroad (limited to four (4) letters) the letter "C", and the sequential number, with each separated by a hyphen. The following example: The 357th contract filed by the Norfolk & Western Railway Company would have the following tariff identification number: "PSCWV-NW-C-0357".

b. Any amendment to a contract shall be reflected in a corresponding supplement to the contract summary. If the change in the contract is only in confidential matter, a statement to that effect will be made in the supplement.

c. At the carrier's option, the carrier's tariff publishing officers may reserve blocks of numbers if tariffs are issued from different departments. An index to the blocks of reserved numbers shall be filed with the Commission.

d. Contract amendments and contract summary supplements shall be sequentially numbered.

7.10. Content of contract summary.

a. Contract summaries for agricultural commodities, forest products or paper shall contain the following terms in the order named:

1. Name(s) of the participating carrier(s). A list, alphabetically arranged, of the corporate names of all carriers that are parties to the contract plus their addresses for service of complaints.

2. The commodity or commodities to be transported under the contract.

3. The duration of the contract.

4. Rail car data as specified by 49 C.F.R. 1300.313(a) (5).

5. If applicable, identification of existence (but not the terms or amount) of special features such as transit time commitments, guaranteed car supply, minimum percentage of traffic requirements, credit terms, discount, etc.

6. Rates and charges as specified in 49 U.S.C. 1300. 313(a)(6).

7. Special features as specified in 49 U.S.C. 1300. 313(a)(7).

b. The contract summary and supplements shall enumerate and have each item completed. Where the item does not pertain to the contract or amendment, the term "Not applicable" ("NA") shall be used.

c. Contract summaries for other commodities or services not involving a port shall contain the information in subsections (a)(1), (a)(2), (a)(3), and (a)(4) of this Rule. Subsection (a)(7) shall be applicable to the extent that service requirements are placed in the contract.

7.11. Availability of contract summary.

Copies of contract summaries shall be available from the Commission's Finance and Special Studies Division.

7.12. Statutory notice.

All filed contracts (and amendments) and contract summaries (and supplements) shall provide thirty (30) days notice to the public as required by 49 U.S.C. '10713(e).

7.13. Contract implementation date.

The Commission adopts the Interstate Commerce Commission's terms regarding the effective date of rail contracts, as set forth in 49 C.F.R. '1039.2. That section permits implementation of rail transportation contracts on the date filed, provided certain conditions are met.

W. Va. Code R. § 150-12-7