SB657: Bill Text

LRB-4796/1

ARG:lxk:rs

2005 - 2006 LEGISLATURE

2005 Senate BILL 657

March 6, 2006 - Introduced by Senator Olsen, cosponsored by Representative Townsend. Referred to Committee on Natural Resources and Transportation.

SB657,2,8 An Act to repeal 189.02 (5) and (6), 190.16 (1), (3) and (4), 192.14, 192.18, 192.255, 192.266, 192.267 and 192.268, 192.29 (1), 192.32 (1) (c), 192.42, 192.71 and 192.72, 195.05 (5) and (6), 195.08 (5), 195.08 (10), 195.17, 195.19 (1), 195.19 (3), 195.22 and 195.24 and 195.305 and 195.33; to renumber and amend 192.29 (2), 192.31 (1) and 195.39; to amend 15.79, 15.795 (1), 20.155 (2), 25.40 (1) (f) 1., 85.01 (5), 85.08 (4m) (e) 5., 85.09 (3) (a), 190.02 (5), 190.025 (2) (b), 190.16 (2), 190.16 (5), 191.17, 191.19 (1), 191.19 (3), 192.29 (title), 192.29 (4), 192.292, 192.295, 192.31 (4), 192.321, 192.33 (1), 192.52 (1), 192.53 (4) (b), 192.53 (6), 192.55 (6), 192.55 (7), chapter 195 (title), 195.02 (3), 195.02 (5), 195.03 (7), 195.03 (8), 195.03 (9), 195.03 (10), 195.03 (11), 195.03 (12), 195.03 (13), 195.03 (19), 195.04 (1), 195.04 (2), 195.04 (3), 195.041, 195.042, 195.043, 195.05 (title), 195.05 (1), 195.05 (3), 195.05 (4), 195.07 (1), 195.07 (2), 195.08 (title), 195.08 (1r), 195.08 (2), 195.08 (3), 195.08 (4), 195.08 (7), 195.08 (9), 195.08 (11), 195.10, 195.11, 195.12, 195.13, 195.14, 195.15, 195.16, 195.19 (title), 195.19 (2), 195.21, 195.26, 195.27, 195.286 (6) (title), 195.286 (7), 195.34, 195.35 (1), 195.36, 195.37 (title), 195.37 (1), 195.38, 195.50, 195.60 (title), 195.60 (1), 195.60 (2), 195.60 (3), 195.60 (4) (a), 195.60 (5), 197.10 (4), 201.01 (1), 201.01 (2), 201.13, 706.05 (2m) (b) 2. and 706.09 (3) (a); and to create 182.018 (4), 190.005, 192.005 and 195.02 (4m) of the statutes; relating to: repealing provisions that may be inconsistent with federal law of, and modernizing, chapters 189 to 192 and 195 and other provisions related to railroad regulation and providing a penalty.

Analysis by the Legislative Reference Bureau

Under federal law, the jurisdiction of various federal agencies is exclusive as to certain operational aspects of rail carriers on interstate rail networks and as to certain aspects of railroad safety. Federal law preempts state law with respect to these matters, even when the activity appears confined to this state. This bill repeals many provisions of state law that may be inconsistent with federal law and also modernizes certain provisions of state law.

In this state, the Office of Commissioner of Railroads (OCR), attached to the Public Service Commission (PSC), and the Wisconsin Department of Transportation (DOT) both have some authority over railroad operations and railroad safety in the state, but most of the state's regulatory authority over railroads resides with OCR, which is generally charged with receiving complaints, conducting hearings, and entering orders related to railroad operations and safety. DOT also has certain investigative duties with respect to OCR proceedings, as well as additional responsibilities related to development of rail transportation infrastructure and use of abandoned railroad rights-of-way.

The bill repeals the following provisions of current state law related to economic regulation of railroads, which might be found to be inconsistent with, and therefore preempted by, federal law, but retains these provisions to the extent they also apply to water carriers:

1. Providing OCR authority over railroad rates and charges, pricing discrimination or preferences, and adequacy of service.

2. Providing OCR authority to receive complaints that a railroad's rate, fare, charge, classification, practice, or service in connection with the railroad's transportation of persons or property is unreasonable or unjustly discriminatory or that service is inadequate, to direct DOT to investigate these complaints, and to hold hearings and order a reasonable rate, fare, charge, classification, practice, or service in lieu of that found to be unreasonable or unjustly discriminatory or inadequate. However, the bill entirely eliminates, for water carriers too, certain provisions relating to OCR's authority to apportion joint rates.

3. Requiring every railroad to furnish reasonably adequate service and facilities, and requiring the charges for the transportation of passengers or property or for any related service, including receiving, delivering, storing, or handling property, to be reasonable and just, and providing for OCR's authority to receive complaints and hold hearings on these matters and to determine if charges are unreasonable or unjustly discriminatory. However, the bill entirely eliminates, for water carriers too, certain provisions relating to OCR's authority over joint rates, fares, or charges.

4. Prohibiting rebates, concessions, or discrimination with respect to the transportation of property or any related service under which the property is transported at a rate less than the tariff rate.

5. Providing OCR authority to fix the time for filing railroad schedules (rate tariffs) and to prescribe forms for these schedules.

6. Requiring railroads to deliver to OCR copies of all contracts with other railroads or shippers that relate to the transportation of persons or property or any related service, if required by OCR.

7. Requiring all freight tariffs issued by any railroad relating to interstate traffic through this state to be filed with OCR and authorizing OCR to investigate all freight rates on interstate traffic affecting this state and, if they are excessive or discriminatory, allowing OCR to petition the ICC for relief.

8. Authorizing OCR to prescribe rules related to charges and operations of public elevators and warehouses on railroad grounds, and related to the furnishing of cars to shippers, the moving, loading or unloading, and weighing of cars and freight, and the testing of railroad weights and scales.

9. Requiring a common carrier receiving property for intrastate transportation to issue a bill of lading, making the carrier liable for loss of or injury to the property, and giving rights to the holder of the bill of lading.

10. Requiring OCR to gather certain financial information from railroads and include the information in a report.

11. Authorizing OCR to direct DOT to investigate complaints that railroad charges for the transportation of property or for any related service, including storage charges, are erroneous, illegal, unusual, or exorbitant, and to hold a hearing, determine what would have been a reasonable rate or charge, and order a refund.

12. Allowing a person who ships property by railroad to, within 3 years after the delivery of the property, submit to OCR expense bills or receipts showing charges paid for the transportation so that DOT may examine them to determine the correctness of weights, rates, and charges indicated on the bills or receipts and, if OCR finds any weights, rates, or charges to be incorrect, authorizing OCR to order the railroad in error to refund any over or excessive charges paid.

Current law imposes specific requirements on the issuance of securities by public service corporations, which are defined to include railroads. OCR is authorized to control the issuance of, and impose special restrictions on, railroad corporation securities, including stock and debt instruments. OCR must approve issuance of railroad securities, may determine their number, character, purpose, and issuing value, and may impose other restrictions. The ICCTA repealed federal authority previously granted to the ICC to approve railroad issuance of securities and assumption of liabilities, although exclusive federal authority still exists with respect to certain transactions, including mergers and acquisitions, between railroads. This bill excludes railroads from the definition of public service corporation for these purposes, while retaining water carriers in the definition, thereby eliminating these specific requirements as applied to railroads.

The bill repeals the following provisions of current state law related to regulation of railroad construction and facilities, which might be found to be inconsistent with, and therefore preempted by, federal law, but retains these provisions to the extent they also apply to water carriers:

1. Prohibiting a railroad from abandoning a station, removing a depot, or withdrawing agency service without obtaining approval from OCR.

2. Imposing requirements related to, and providing OCR authority over, industrial spur tracks. However, the bill retains OCR's authority to order removal of tracks that have been abandoned but physically remain in place.

3. Requiring railroads to keep and maintain adequate and suitable depots, buildings, switches, and sidetracks for freight transported by the railroads.

4. Requiring railroads to provide and maintain adequate passenger depots meeting certain standards for amenities, comfort, and hours of service.

5. Requiring multiple railroads operating in the same municipality to attempt to maintain joint passenger depots, and giving OCR authority to order railroads to construct, maintain, and operate union passenger depots.

6. Requiring railroads to provide reasonable facilities for the interchange of passenger and freight traffic, and to transfer or switch without unreasonable delay or discrimination freight or cars, between their respective lines.

7. Providing that, whenever a railroad proposes to cross or join its track with another railroad track, OCR must determine, after a hearing, whether the surface road of the proposed track is to be above, below or at grade of any tracks proposed to be crossed, and requiring OCR to fix the proportion of the expense of the crossing or joining to be paid, respectively, by the owners of the tracks.

8. Requiring every railroad to transport grain at current rates to an elevator, warehouse, or mill under specified circumstances.

9. Requiring railroads to allow siting of certain facilities for elevators or warehouses associated with the transportation of property by railroad, and providing OCR authority over siting, rates, and operations of these elevator and warehouse facilities.

10. Requiring railroads to, when possible and under certain conditions, furnish, without discriminating between shippers or places, suitable cars for the transportation of freight.

11. Requiring OCR to gather certain cost data related to railroad construction and railroad equipment and include the information in a report.

The bill also makes substantive modifications to modernize current law in the following ways:

1. The bill eliminates obsolete provisions related to a railroad's authority to move a highway in constructing a railroad over or across a highway.

2. Current law imposes certain specifications related to wires strung over railroads prior to August 1, 1949, and requires wires strung over any railroad on or after August 1, 1949 to be strung in such a way as to meet requirements of the Wisconsin state electrical code. The bill provides that these requirements do not apply to the extent they are inconsistent with federal law.

3. The bill repeals provisions relating to railroad authority with respect to certain railroad lands.

The bill repeals the following provisions of current state law related to railroad safety, which might be found to be inconsistent with, and therefore preempted by, federal law, but retains these provisions to the extent they also apply to water carriers:

1. Providing for OCR review of petitions asserting that a railroad-highway crossing is dangerous to human life and that public safety requires setting a maximum train speed at the crossing, and for OCR's authority to hold a hearing and order a maximum train speed for the crossing.

2. Requiring railroad trains or locomotives to sound the whistle or horn within specified distances of railroad-highway grade crossings but retaining such requirements with respect to ringing the engine bell.

3. Imposing requirements related to the qualifications of railroad conductors and flagmen.

4. Imposing equipment and safety requirements for cabooses.

5. Imposing lighting requirements for track cars operated at night, visibility marking requirements for engines and cars built in this state, and windshield and canopy requirements for track cars operated in this state.

6. Requiring railroads to maintain suitable telltales (arrangements of long strips of rope, wire, or other material hanging from a bar over railroad tracks to warn of an upcoming low overhead structure) wherever any part of an overhead structure is less than 23 feet above the top of a rail, except where OCR authorizes an exception. However, the bill requires telltales to the extent required under federal law and authorizes OCR, if it finds that the absence of a telltale would create an unreasonable risk of harm to the public or a railroad employee on a railroad not under the federal jurisdiction to order the installation of a telltale.

7. Requiring railroads to report to OCR all collisions, derailments, or other accidents resulting in injury to persons, equipment, or tracks, and authorizing OCR to issue rules concerning the reporting of accidents and, if public interests require, cause an investigation of any accident. However, the bill requires railroads to submit to OCR a copy of any accident or injury report provided by the railroad to the applicable federal authority.

The bill also makes substantive modifications to modernize current law in the following ways:

1. The bill prohibits any person (not just a person under the age of 17, as provided under current law), other than a railroad employee, from getting on or off a moving railroad car or train.

2. Under current law, a railroad must allow a specified amount of horizontal clearance, which varies depending on the circumstances, between any building or platform and the tracks. OCR may exempt any building or platform if it finds that such an exemption is in the public interest and will not imperil life or limb. The bill allows OCR to provide such an exemption without a hearing if no objection is made after notice is given.