105 Ind. Admin. Code 5-1-15

Current through January 8, 2025

Section 105 IAC 5-1-15 - Refund or collection; determination of commission

Authority: IC 8-1-1-3

Affected: IC 8-3-1-3; IC 8-3-1-8

Sec. 15.

(a) Refund or collection. Except as otherwise provided in paragraph (b), when the commission finds, pursuant to 170 IAC 3-1.1-13[section 13 of this rule], that a railroad shall make refunds on freight charges collected or that the railroad is entitled to collect additional freight charges, but the amount cannot be ascertained upon the record before it, the party entitled to the refund or the railroad entitled to collect additional monies, as the case may be, shall immediately prepare a statement showing details of the shipments involved in the proceedings, in accordance with the Statement of Monetary Adjustment. The statement shall not include any shipment not covered by the commission's findings.

If the shipments moved over more than one route, a separate statement shall be prepared for each route and separately numbered, except that shipments as to which the collecting carrier is in each instance the same may be listed in a single statement if grouped according to routes.

The party entitled to the refund shall submit its statement, together with the paid freight bills on the shipments, or true copies thereof, to the carrier which collected the charges, for verification and certification as to its accuracy.

If the railroads are entitled to additional monies, the carrier collecting the initial freight charges shall prepare the statement for and on behalf of the involved carriers.

All discrepancies, duplications, or other errors in the statements shall be adjusted by the parties and corrected agreed statements submitted to the commission.

The certificate shall be signed in ink by a general accounting officer of the carrier and shall cover all of the information shown in the statement.

If the carrier which collected the charges is not a respondent to the proceedings, its certificate shall be concurred in by like signature on behalf of a carrier named as a respondent in the proceeding.

Statements so prepared and certified shall be filed with the commission whereupon it shall consider entry of an order awarding refunds or collection of additional freight charges as the case may be.

(b) Petitions based on damages. Where 170 IAC 3-1.1[this rule] provides for an award of damages for violations which involve tariff errors, tariff misconstruction, or the erroneous application of demurrage charges, and a carrier is willing to pay, or to waive collection of undercharges, petitions for appropriate authority should be filed by the carrier by submitting either a letter of intent to pay reparations, a letter of intent to pay reparation and waive undercharges, or a letter of intent to waive undercharges. Such petitions must be filed within the statutory period and will be deemed the equivalent of an informal complaint and an answer admitting the matters stated in the petition. These petitions shall contain, as a minimum, the following information:

(1) The name and addresses of the complainants seeking damages.

(2) The names of the defendants against which the claim is filed.

(3) The amount of the claim.

(4) The tariff authority for both the assailed and the sought rate.

(5) The dates on which, or within which, the shipments moved and when necessary to show compliance with the statute or [sic.] limitations, the dates when the shipments were delivered or tendered for delivery.

(6) The points of origin and destination of the shipments and the routes of movements.

(7) The commodity.

(8) An admission by the carrier that the assailed rate was unreasonable, and a showing, where appropriate, that it has been removed from the tariff.

(9) A statement certifying that all defendants against which the claim is lodged concur in the intent to pay reparations or waive undercharges.

(10) Evidence to show compliance with the statute of limitations.

(11) A brief explanation of the circumstances causing the claim for damages and the precedent relied upon by the carrier in aggreeing to honor it.

If a carrier is unable to file such petition within the statutory period and the claim is not already protected from the operation of the statute by informal complaint, a letter of registration setting forth the facts may be submitted by the carrier within the statutory period. This letter will also be deemed the equivalent of an informal complaint filed on behalf of the shipper or consignee and sufficient to stay the operation of the statute. However, an appropriate letter of intent must be filed within one year following receipt by the commission of the letter of registration.

(c) Waiver of monies due to railroad:

(1) Communications-All communications shall be in writing and shall be addressed to:

Public Service Commission of Indiana

Transportation Department

901 State Office Building

Indianapolis, Indiana 46204

(2) Freight charges in excess of $2,000.

(A) Petition to waive collection of insignificant amounts-If a railroad wishes to waive collection of amounts due pursuant to 170 IAC 3-1.1-13(b)[section 13(b) of this rule], when such amounts are more than $2,000, a petition for appropriate authority may be filed by the railroad, with the commission, in the form of a letter of intent to waive insignificant amounts. The petition should contain the following information:

(i) The names and address of the customer for whom the railroad wishes to waive collection.

(ii) The names and addresses of the railroads involved in the intended waiver and a statement certifying that all railroads concur in the action.

(iii) The amount intended to be waived.

(iv) The number of the investigation and suspension docket involved, the beginning and ending dates of the suspension period, and any other pertinent tariff information.

(v) The points of origin and destination of the shipments and the routes of movement, if relevant.

(vi) A brief statement of justification for the intended waiver, including the anticipated costs of billing, collecting and/or litigating if the waiver is not permitted.

(vii) When certification is necessary pursuant to (ii) above, it should be in the following format:

The (name of the petitioning railroad) hereby certifies that it holds the written concurrence of all of the railroads named in this petition.

By its (petitioner's title)

Dated at _________ , this _____ day of _____ , 19 _____ .

__________________________________

(petitioner's signature)

(B) Public notice-Petitions to waive collection of insignificant amounts will be available by the commission for public inspection on date of receipt, in the transporation department office.

(C) Contested petitions-Any interested person as defined in 170 IAC 3-1.1-14(2)(F)[section 14(2)(F) of this rule] may protest the waiver of monies due and such protest shall be filed with the commission within 30 days of the commission's receipt of the railroad's letter of intent to waive insignificant amounts. If the protest is not filed within the 30 day period, it will not be considered as being timely filed.

The protest shall be in the form of a letter of objection and shall identify the investigation and suspension docket number, shall clearly state the reasons for objection and shall certify according to 170 IAC 3-1.1-14(5)(B)[section 14(5)(B) of this rule] that a copy of the letter of objection has been served on all parties named in the letter of intent to waive insignificant amounts.

Replies to a letter of objection shall be filed no later than the 45th day after the commission's receipt of the letter of intent to waive insignificant amounts. If the reply to the protest is not filed within the 45 day period, it will not be considered as being timely filed.

If the letter of objection is timely filed, the commission will consider the letter of intent to waive insignificant amounts as being contested. The commission will notify all parties to the proceeding that the petition is contested and the railroad shall not be allowed to take any further action until the commission conducts a hearing on the matter, makes its findings and enters an appropriate order granting or denying the petition to waive monies due. Further, the filing of a letter of deposition with the commission will not be required.

(D) Uncontested petitions-A letter of intent to waive insignificant amounts which is not contested shall be considered an order of the commission authorizing the action contemplated in the petition 45 days after the commission's receipt of the petition.

Within 30 days after the expiration of the 45 day period, the railroad filing the petition shall file a letter of disposition informing the commission of the action taken, the date of the action and the amount of monies waived.

(3) Freight charges $2,000 or less: If the amount to be waived is $2,000 or less, no petition need be filed prior to waiver of monies due, provided that this exemption may be invoked by the railroad only once for any person as defined in 170 IAC 3-1.1-14(2)(F)[section 14(2)(F) of this rule] who uses the original rate during the suspension period.

However, a letter of disposition informing the commission of the investigation and suspension docket number, the action taken, the date of the action and the amount of monies due that were waived shall be submitted to the commission within 30 days of the waiver.

105 IAC 5-1-15

Indiana Department of Transportation; 105 IAC 5-1-15; filed May 18, 1983, 2:18 p.m.: 6 IR 1207; errata, 6 IR 1455; filed Feb 27, 1985, 9:24 a.m.: 8 IR 773; 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

Readopted filed 10/4/2019, 9:49 a.m.: 20191030-IR-105190422RFA

Transferred from Department of Transportation ( 100 IAC 6-1-15) to Indiana Department of Transportation ( 105 IAC 5-1-15) by P.L. 112-1989, SECTION 5, effective July 1, 1989.