W. Va. Code R. § 150-12-4

Current through Register Vol. XLI, No. 38, September 20, 2024

Section 150-12-4 - Procedural Requirements for Protests and Replies Regarding Proposed Rail Rates, Classification, Rule or Practice

4.1. Liberal construction. -- These rules shall be liberally construed to secure just, speedy and inexpensive determination of the issues presented.

4.2. Definitions.

a. "Proceeding" -- an investigation instituted by the Commission.

b. "Protestant" -- means a person opposed to any tariff or schedule becoming effective.

c. "Respondent" -- means the railroad and/or their agent against whom the protest is filed or any other person designated by the Commission to participate in the proceeding.

d. "Party" -- shall include the "Protestant" and "Respondent" or others permitted or directed by the Commission to participate in the proceeding.

e. "Pleading" -- means a protest, reply to protest, a motion or any other written comment relating to the proceeding.

f. "Person" -- shall include individuals as well as corporations, companies, associations, firms, partnerships, co-partnerships, societies, joint stock companies, or a trustee, receiver, assignee, or personal representative of another individual.

4.3. Communication.

a. The protest, reply and any other pleadings relating to the proceeding will not be considered unless made in writing and filed with the Commission.

b. All pleadings shall be addressed to: Executive Secretary, Public Service Commission of West Virginia, 201 Brooks Street, P.O. Box 812, Charleston, West Virginia 25323.

c. All pleadings relating to the proceeding must be received for filing at the Commission's office in Charleston, West Virginia, within the time limits, if any, for such filing. The date of receipt at the Commission, and not the date of deposit in the mails, is determinative.

d. If, after examination, the Commission finds that the protest, reply, or other pleading relative to the proceeding is not in substantial compliance with the provisions of these Rules:

1. The Commission may decline to accept the documents and may return them unfiled, or

2. The Commission may accept the documents for filing and advise the party tendering them of the deficiencies and require that they be corrected.

4.4. Signature and verification.

a. The protest, reply or other pleading relating to the proceeding shall be signed in ink and the signer's address and telephone number shall be stated.

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

4.5. Copies and service of documents.

a. Protest. -- The original and two copies shall be filed with the Commission and one copy shall be simultaneously served upon the publishing railroad or its publishing agent and upon other parties known by the protestant to be interested in the proceeding.

b. Reply to protest. -- The original and two copies shall be filed with the Commission and one copy shall be simultaneously served upon the protestant and upon the other parties named in the protest.

c. Pleadings. -- The original and two copies shall be filed with the Commission and one copy shall be simultaneously served upon all parties to the proceeding.

d. Certificate of service. -- When a protest, reply or pleading is filed with the Commission it shall include a certificate showing simultaneous service upon all parties to the proceeding. Such service shall be made by delivery in person, or by first class mail, certified mail, registered mail, or by express or equivalent parcel delivery service, properly addressed with charges prepaid, one copy to each party. Service upon the parties shall be by the same means of communication and class of service employed in making delivery to the Commission: Provided, however, That when delivery is made to the Commission in person, and it is not feasible to serve the other parties in person, service shall be made by first class or express mail.

4.6. Content and timing of protest.

a. Content:

1. Identification. -- The protested tariff should be identified by making reference to the name of the railroad or its publishing agent, to the Public Service Commission of West Virginia tariff number, to the specific items or particular provisions protested and to the effective date of the protested publication. Reference should also be made to the tariff and specific provisions thereof that are proposed to be superseded.

2. Grounds for suspension. -- The protest shall incorporate sufficient facts to:

A. meet the criteria for suspension as set forth in Rule 3.3, and

B. to sustain the applicable burdens of proof as set forth in Rule 3.6. Further, the protest should include any additional information that would support suspension of the proposed rate.

b. Timing. -- A protest against and a request for suspension of a tariff filed by a railroad or its publishing agent shall be received by the Commission at least:

1. ten (10) days prior to the effective date when the proposed change is to become effective upon not less than twenty (20) days notice.

2. five (5) days prior to the effective date, when the proposed change is to become effective upon not less than ten (10) days notice.

4.7. Content and timing of reply to protest.

a. Content. -- The reply should adequately identify the protested tariff. Further it shall contain sufficient facts to rebut the allegations made in the protest and to sustain the applicable burdens of proof as set forth in Rule 3.6.

b. Timing. -- A reply to a protest must be received by the Commission not later than:

1. the fourth working day prior to the effective date when the proposed change is to become effective upon not less than twenty (20) days notice.

2. the second working day prior to the effective date when the proposed change is to become effective upon not less than ten (10) days notice.

4.8. Emergency protests and replies. In emergencies, telegraphic protests and replies are acceptable, provided, that the provisions of Rules 4.3 and 4.6(a) are complied with. The telegrams shall include statements to the effect that they are copies of original protests or replies which have been signed, verified, and mailed to the Commission. The telegrams shall also indicate the method of verification (e.g., by statements sworn before a notary public). The telegrams shall also include a certification that copies either have been, or will be immediately, telegraphed to the proponent carriers or their publishing agents in the case of protests, or to the protestants in case of replies.

4.9. Nonsuspension or investigation. -- Should a protestant desire to proceed further against a tariff which is not suspended or investigated or which has been suspended and the suspension vacated and the investigation discontinued, a separate complaint should later be filed.

W. Va. Code R. § 150-12-4