Section 105IAC5-1-40. Contracts; filing; complaints; review

   (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. (Indiana Department of Transportation; 105 IAC 5-1-40; filed Feb 27, 1985, 9:24 a.m.: 8 IR 777; readopted filed Nov 7, 2001, 3:20 p.m.: 25 IR 899; readopted filed Jun 14, 2007, 2:45 p.m.: 20070627-IR-105070237RFA; readopted filed Oct 2, 2013, 11:39 a.m.: 20131030-IR-105130295RFA) NOTE: 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.