AB977: Bill Text

ARG:cjs:ph

2009 - 2010 LEGISLATURE

2009 Assembly BILL 977

April 22, 2010 - Introduced by Representatives Knodl, Kerkman, Vos, Ballweg, Strachota and Tauchen, cosponsored by Senator A. Lasee. Referred to Committee on Transportation.

AB977,2,21 An Act to repeal 15.06 (1) (ar), 15.795, 20.155 (2), 20.923 (4) (e) 11., 25.40 (1) (f) 1., 86.001 (2m), chapter 189, 192.001 (2), 192.327 (4), 192.327 (5), 195.001 (2), 195.60 (7) (intro.) and 195.60 (7) (b); to renumber and amend 195.60 (7) (a); to amend 15.03, 15.79, 20.395 (2) (gq), 26.20 (3), 26.20 (10), 30.33 (1), 30.33 (2), 66.0801 (2), 84.05, 86.12 (2), 86.13 (3), 88.66 (2), 88.87 (4), 88.88 (2), 182.36 (3), 190.02 (6), 190.025 (2) (b), 190.03, 190.13, 190.16 (5), 191.001, 191.01 (2), 191.03, 191.05, 191.07, 191.09 (1), 191.09 (2), 191.10 (1), 191.10 (2), 191.10 (3), 191.11, 191.13 (2), 191.16, 191.17, 191.19 (1), 191.19 (3), 191.20, 191.21, 192.15 (14), 192.25 (3) (a), 192.27 (1), 192.29 (4), 192.31 (1) (b), 192.31 (2), 192.31 (4), 192.31 (5), 192.324, 192.327 (3), 192.327 (6), 192.327 (7), 192.33 (5), 192.34, 192.47, 192.52 (3), 192.52 (4), 192.52 (5), 192.53 (4) (a), 192.53 (4) (b), 192.53 (5) (a) (intro.), 192.53 (6), 192.55 (5), 192.56 (1), 192.56 (2), 192.56 (3), 192.56 (5), 192.56 (6), 195.03 (title), 195.03 (1), 195.03 (2), 195.03 (7), 195.03 (8), 195.03 (9), 195.03 (10), 195.03 (11), 195.03 (12), 195.03 (13), 195.03 (14), 195.03 (15), 195.03 (16), 195.03 (17), 195.03 (18), 195.03 (19), 195.03 (25), 195.03 (28), 195.03 (29), 195.03 (30) (a), 195.03 (30) (b), 195.04 (1), 195.04 (2), 195.04 (3), 195.041, 195.042, 195.043 (1), 195.043 (2), 195.044 (1), 195.044 (2), 195.045, 195.046, 195.05 (title), 195.05 (1), 195.05 (2), 195.05 (4), 195.055, 195.06, 195.07 (1), 195.07 (2), 195.08 (2), 195.08 (7), 195.08 (9), 195.10, 195.15, 195.16, 195.20, 195.21, 195.26, 195.28 (1), 195.28 (1m), 195.28 (3), 195.28 (4), 195.285 (1), 195.285 (2), 195.285 (3), 195.286 (2), 195.286 (5), 195.286 (8), 195.29 (1), 195.29 (2), 195.29 (3), 195.29 (4), 195.29 (5), 195.29 (6), 195.29 (7), 195.30 (1), 195.31, 195.32, 195.34, 195.36, 195.37 (1), 195.37 (2), 195.37 (3), 195.37 (4) (a), 195.38, 195.45 (1), 195.45 (2), 195.45 (4), 195.50 (1), 195.60 (title), 195.60 (1), 195.60 (2), 195.60 (3), 195.60 (4), 195.60 (5), 195.60 (6), 201.01 (1), 226.025 (3), 227.01 (13) (s), 227.43 (4) (b), 227.46 (2m), 227.46 (3) (intro.), 281.36 (1) (cr), 346.45 (3) (d), 350.137 (1), 350.138 (4) (c), 350.138 (9), 350.139 (5), 350.1395 (2) (b) 2., 350.1395 (2) (b) 3. (intro.), 350.1395 (4) (b), 552.23 (1) and 945.06; to repeal and recreate 190.001; and to create 20.395 (2) (gg), 25.40 (1) (a) 12m., 192.001 (1r), 195.001 (1r), 195.001 (3), 195.29 (9), 195.325 and 227.43 (1) (bk) of the statutes; relating to: eliminating the Office of the Commissioner of Railroads and transferring the office's duties to the Department of Transportation, the Department of Financial Institutions, and the Division of Hearings and Appeals in the Department of Administration, funding of railroad and water carrier regulation, and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, the Office of the Commissioner of Railroads (office) regulates railroad and water carrier activities in Wisconsin. This bill eliminates the office, effective July 1, 2011, and generally transfers its functions to the Department of Transportation (DOT), with DOT orders reviewed by the Division of Hearings and Appeals (division) in the Department of Administration. In addition, any other function of the office having the character of contested case resolution is transferred to the division. The bill also transfers certain functions of the office relating to railroad organization to the Department of Financial Institutions. The bill transfers 4.0 FTE positions to DOT.

Under current law, the office prepares assessments against railroads and water carriers for the expenses of specific investigations, appraisals, and services and, more generally, prepares annual assessments for expenditures attributable to railroad and water carrier regulation. Ninety percent of these expenses and expenditures are considered those of the office and ten percent are considered general costs of state government. Upon payment of these assessments, 90 percent of the payment is credited to the office's appropriation account. Under this bill, 100 percent of these expenses and expenditures are considered those of DOT, and 100 percent of the payment is credited to a DOT appropriation account.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB977, s. 1 Section 1. 15.03 of the statutes is amended to read:

AB977,4,4 15.03 Attachment for limited purposes. Any division, office, commission, council or board attached under this section to a department or independent agency or a specified division thereof shall be a distinct unit of that department, independent agency or specified division. Any division, office, commission, council or board so attached shall exercise its powers, duties and functions prescribed by law, including rule making, licensing and regulation, and operational planning within the area of program responsibility of the division, office, commission, council or board, independently of the head of the department or independent agency, but budgeting, program coordination and related management functions shall be performed under the direction and supervision of the head of the department or independent agency, except that with respect to the office of the commissioner of railroads, all personnel and biennial budget requests by the office of the commissioner of railroads shall be provided to the department of transportation as required under s. 189.02 (7) and shall be processed and properly forwarded by the public service commission without change except as requested and concurred in by the office of the commissioner of railroads.

AB977, s. 2 Section 2. 15.06 (1) (ar) of the statutes is repealed.

AB977, s. 3 Section 3. 15.79 of the statutes is amended to read:

AB977,4,14 15.79 Public service commission; creation. There is created a public service commission. No member of the commission may have a financial interest in a railroad, water carrier, or public utility. If any member voluntarily becomes so interested, the member's office shall become vacant. If the member involuntarily becomes so interested, the member's office shall become vacant unless the member divests himself or herself of the interest within a reasonable time. No commissioner may serve on or under any committee of a political party. Each commissioner shall hold office until a successor is appointed and qualified.

AB977, s. 4 Section 4. 15.795 of the statutes is repealed.

AB977, s. 5 Section 5. 20.155 (2) of the statutes is repealed.

AB977, s. 6 Section 6. 20.395 (2) (gg) of the statutes is created to read:

AB977,4,20 20.395 (2) (gg) Railroad and water carrier payments. From the general fund, all moneys received from railroads and water carriers under s. 195.60, for activities related to railroad and water carrier regulation under chs. 190 to 195.

AB977, s. 7 Section 7. 20.395 (2) (gq) of the statutes is amended to read:

AB977,4,25 20.395 (2) (gq) Railroad crossing improvement and protection maintenance and railroad regulation, state funds. The amounts in the schedule to pay the costs for railroad crossing protection maintenance under s. 195.28 (3) and for activities related to railroad regulation under chs. 190 to 195.

AB977, s. 8 Section 8. 20.923 (4) (e) 11. of the statutes is repealed.

AB977, s. 9 Section 9. 25.40 (1) (a) 12m. of the statutes is created to read:

AB977,5,3 25.40 (1) (a) 12m. Moneys collected under s. 195.60.

AB977, s. 10 Section 10. 25.40 (1) (f) 1. of the statutes is repealed.

AB977, s. 11 Section 11. 26.20 (3) of the statutes is amended to read:

AB977,5,19 26.20 (3) Locomotive inspector; powers. Any locomotive inspector designated by the department shall have the power to reject from service immediately any locomotive, donkey, traction, or portable engine which, in the opinion of the inspector, is deficient in adequate design, construction, or maintenance of the fire protective devices designated in sub. (2), and any such locomotive, donkey, traction, or portable engine so rejected from service shall not be returned to service until such defects have been remedied to the satisfaction of the locomotive inspector. In case of disagreement between the inspector and the owner of the locomotive, donkey, traction, or portable engine so rejected from service as to the efficiency or proper maintenance of said protective devices, then the owner of the locomotive, donkey, traction, or portable engine may appeal to the office of the commissioner of railroads division of hearings and appeals in the department of administration for a decision of said matter, but pending such decision the locomotive, donkey, traction, or portable engine shall not be returned to service.

AB977, s. 12 Section 12. 26.20 (10) of the statutes is amended to read:

AB977,6,2 26.20 (10) Appeal to office of the commissioner of railroads division of hearings and appeals. In case the department and any person operating any locomotive, donkey, or threshing engine, or any engine, boiler, or locomotive cannot agree as to the most practicable device or devices for preventing the escape of sparks, cinders, or fire from smokestacks, ash pans or fire boxes, then the same shall be determined by the office of the commissioner of railroads division of hearings and appeals in the department of administration.

AB977, s. 13 Section 13. 30.33 (1) of the statutes is amended to read:

AB977,6,17 30.33 (1) Board to have powers of railroad corporation. Any municipality operating a public harbor through a board of harbor commissioners may, through such board, construct, maintain or operate railway facilities or a harbor belt line connecting various harbor facilities with one another or with other railroads within the municipality or its vicinity. The board of harbor commissioners is granted all of the rights, powers and privileges conferred upon railroad corporations by ss. 190.02 and 190.025 (3), except such rights, powers and privileges as are conferred upon railroad corporations by s. 190.02 (9). Such facilities or belt line may be constructed, maintained or operated partly outside the corporate limits of the municipality. In constructing, maintaining or operating such facilities or belt line, the board of harbor commissioners has the powers and privileges of railroad corporations and shall be subject to the same restrictions as railroad corporations and to the supervision of the office of the commissioner of railroads department of transportation, except as to the system of accounting and the payment of wages to employees.

AB977, s. 14 Section 14. 30.33 (2) of the statutes is amended to read:

AB977,7,9 30.33 (2) Municipality may organize harbor railway corporation. Any municipality mentioned in sub. (1) may, with the consent of its board of harbor commissioners, organize a railroad corporation for the purpose of constructing, maintaining or operating a harbor belt line or may subscribe for stock in an existing railroad corporation organized for such purpose. If the municipality decides to organize a railroad corporation for such purpose, the governing body thereof may, by resolution, authorize the chief executive officer or presiding officer of such municipality to act, together with 4 citizens to be designated by the officer, as incorporators of such company. Such incorporators shall proceed to incorporate the railroad corporation in accordance with chs. 190 to 192, so far as applicable. Such harbor railroad corporation is subject to the supervisory and regulatory powers of the office of the commissioner of railroads department of transportation to the same extent as other railroad corporations. The municipality may subscribe to the stock of such harbor railroad corporation and may pay for such stock out of any funds it may lawfully have available for that purpose, including the proceeds of harbor improvement bonds.

AB977, s. 15 Section 15. 66.0801 (2) of the statutes is amended to read:

AB977,7,13 66.0801 (2) Sections 66.0803 to 66.0825 do not deprive the office of the commissioner of railroads, department of transportation or public service commission of any power under ss. 195.05 and 197.01 to 197.10 and ch. 196.

AB977, s. 16 Section 16. 84.05 of the statutes is amended to read:

AB977,8,12 84.05 Railroad crossing improvements. On a highway which the department has authority to construct and which crosses a railroad, if the department determines that the construction or reconstruction of a grade separation or the rearrangement or elimination of a grade crossing or other rearrangement of the highway or tracks is necessary in the interest of public safety or for convenience of public travel, the department shall make a plan of the construction proposed and an estimate of the cost thereof, including the cost of needed right-of-way; and shall endeavor to make an arrangement with all persons concerned as to all matters involved in the plan, including the portion of the cost of the contemplated work which the persons shall defray. If the department is unable to contract with the persons concerned as to the distribution and payment of the cost of the work or the maintenance thereof, the department shall lay the matter before the office of the commissioner of railroads, and the office of the commissioner of railroads shall review the proceedings and hold a hearing thereon in accordance with ss. 195.28 and 195.29, and shall fix the portion of the cost of the construction and of the maintenance which is to be paid by the persons or corporations concerned, and the portion of the cost, if any, to be paid by the public, which portion shall be paid from the transportation fund. The office of the commissioner of railroads department shall determine the benefits, if any, which will inure to other highways, and apportion and charge to the units of government responsible for the construction of such other highways a fair portion of the cost. If an interested party objects to the department's order under this section and requests a hearing, the department shall refer the order to the division of hearings and appeals for review as provided in s. 195.325.

AB977, s. 17 Section 17. 86.001 (2m) of the statutes is repealed.

AB977, s. 18 Section 18. 86.12 (2) of the statutes is amended to read:

AB977,8,20 86.12 (2) If a railroad company fails to comply with the resolution in sub. (1) within 30 days after service of the resolution, the county board, common council, village board or town board may file a complaint with the office department alleging the failure. The office department shall investigate and determine the matter in controversy as provided in ch. 195. An order issued by the office department under this subsection has the same effect as an order in a proceeding brought under ch. 195.

AB977, s. 19 Section 19. 86.13 (3) of the statutes is amended to read:

AB977,9,4 86.13 (3) If any railroad company fails to grade, construct, pave, surface or otherwise improve or maintain in good and safe condition for public travel as required by this section any street or highway crossing after having been notified so to do by the officer in charge thereof or of the highway improvement for 30 days after such notification, the highway authorities may file a complaint with the office department. The office department shall investigate and determine the matter in controversy as provided in ch. 195. An order issued by the office department under this subsection has the same effect as an order in a proceeding brought under ch. 195.

AB977, s. 20 Section 20. 88.66 (2) of the statutes is amended to read:

AB977,9,19 88.66 (2) Every district whose drains cross the right-of-way of a railway company is liable to such company for the reasonable cost of opening its right-of-way and also for the cost of the culverts and bridges made necessary by such drain. The drainage board shall include such costs in its cost of construction, as set forth in its report of benefits and damages, and shall award them as damages to the railway company. The bridge or culvert shall be designed by the district's engineer and the design submitted to the railway company for approval. If a dispute arises as to the adequacy of the design, either party may submit the dispute to the office of the commissioner of railroads division of hearings and appeals in the department of administration by filing with the office division of hearings and appeals a statement as to the facts involved and the nature of the dispute. The office division of hearings and appeals shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.

AB977, s. 21 Section 21. 88.87 (4) of the statutes is amended to read:

AB977,9,25 88.87 (4) If a railway company fails to comply with sub. (2), any person aggrieved thereby may file a complaint with the office of the commissioner of railroads division of hearings and appeals in the department of administration setting forth the facts. The office division of hearings and appeals shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.

AB977, s. 22 Section 22. 88.88 (2) of the statutes is amended to read:

AB977,10,10 88.88 (2) If the railway company fails to comply with sub. (1), the person aggrieved thereby may file a complaint with the office of the commissioner of railroads division of hearings and appeals in the department of administration setting forth the facts. The office division of hearings and appeals shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.

AB977, s. 23 Section 23. 182.36 (3) of the statutes is amended to read:

AB977,10,23 182.36 (3) The corporation may enter into contracts with public utilities, including and railroads, for the removal or change in location of the lines of such public utilities and railroads where the same is deemed necessary by the corporation in the construction of the project. Such contracts shall be for the payment of damages caused the utilities and railroads by the relocation of their lines. In the event the corporation and the utility or railroad are unable to reach an agreement, the public service commission in the case of a utility or the department of transportation in the case of a railroad shall direct the manner, location and time allowed for the change in the utility or railroad line and the corporation shall be liable for the reasonable costs of such change. In the event the public utility or railroad fails to comply with the order of the public service commission or department of transportation it shall be liable to the corporation for all damages occasioned by such failure.

AB977, s. 24 Section 24. Chapter 189 of the statutes is repealed.

AB977, s. 25 Section 25. 190.001 of the statutes is repealed and recreated to read:

AB977,11,2 190.001 Definition. In this chapter, "division of hearings and appeals" means the division of hearings and appeals in the department of administration.

AB977, s. 26 Section 26. 190.02 (6) of the statutes is amended to read:

AB977,11,10 190.02 (6) Railroad intersections. To cross, intersect, join or unite its railroad with any other railroad, at any point, with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections. And if the 2 corporations cannot agree upon the amount of compensation to be made therefor or the points and manner of such crossings and connections the same shall be ascertained by the office division of hearings and appeals on application of either corporation.

AB977, s. 27 Section 27. 190.025 (2) (b) of the statutes is amended to read:

AB977,11,25 190.025 (2) (b) A railroad corporation that is subject to this subsection shall have all powers conferred by law upon railroad corporations. The railroad corporation may issue, sell, pledge or otherwise dispose of its evidences of debt, at such times, in such amounts, for such considerations and upon such terms and conditions as the board of directors of the corporation shall determine, and as shall be authorized by the office department of financial institutions, or the federal surface transportation board in the case of a railroad corporation organized for the purpose of acquiring a railroad engaged in interstate commerce, or any existing railroad corporation reorganized under the act and acquiring railroad property used in interstate commerce. The evidences of debt may be convertible, at the option of the holder, into stock, and shares of stock. The shares may have a nominal or par value or, if the shares are shares of common stock, be without nominal or par value. The shares may be of such classes, with such rights and voting powers as may be expressed in the corporation's articles or any amendment thereto.

AB977, s. 28 Section 28. 190.03 of the statutes is amended to read:

AB977,12,16 190.03 Office in state; books produced. Any railroad corporation existing under the laws of this state shall produce before the office of the commissioner of railroads department of financial institutions, the legislature, or any committee of either house, or any court of record, its books of account and stock books, or so many and such parts thereof as may be required by them, or in the discretion of the office of the commissioner of railroads department of financial institutions, legislature, committee or court, transcripts from such books, or such parts thereof as may be called for, duly authenticated; and each such railroad corporation shall designate some office within this state as its principal office and inform the office of the commissioner of railroads department of financial institutions of such designation, and shall keep there or at the office of its transfer agents or registrars a list of its stockholders, giving the names and addresses of its stockholders, together with a statement of the number and class of shares of its stock held by each of them, as shown by its books. A failure or refusal to comply with any of the foregoing provisions shall be cause of forfeiture of its franchises.

AB977, s. 29 Section 29. 190.13 of the statutes is amended to read:

AB977,13,2 190.13 Report to stockholders. Every railroad corporation shall make an annual report to its stockholders of its operations for the preceding calendar year, or for its fiscal year, as the case may be, which report shall contain a balance sheet showing its assets and liabilities, its capital stock, and funded debt, and an income account showing its operating revenues, operating expenses, gross and net income, as the result of its traffic or business operations, and such other information in respect of its affairs as the board of directors shall deem advisable. A copy of each such report shall be kept on file in its principal office in this state, shall be mailed to each stockholder whose post-office address is known and shall be filed with the office of the commissioner of railroads department of financial institutions.

AB977, s. 30 Section 30. 190.16 (5) of the statutes is amended to read:

AB977,13,11 190.16 (5) Removal, when. When a spur track has been abandoned, as defined in s. 85.09, the office department of transportation or the division of hearings and appeals, after hearing held upon notice to all parties interested and for good cause shown, may order the removal of the track except that, if no objection has been filed with the office department of transportation or the division of hearings and appeals within 20 days from the original notice, the office department of transportation or the division of hearings and appeals may without hearing authorize the removal of the track.

AB977, s. 31 Section 31. 191.001 of the statutes is amended to read:

AB977,13,14 191.001 Definition. In this chapter, "office" "department" means the office of the commissioner of railroads department of transportation.

AB977, s. 32 Section 32. 191.01 (2) of the statutes is amended to read:

AB977,13,21 191.01 (2) Construction, certificate from office department prerequisite. No railroad corporation shall begin the construction of any proposed line of railroad in this state until it shall have obtained from the office department a certificate that public convenience and a necessity require the construction of the railroad, and the certificate shall constitute the license from this state to the company to build its proposed railroad.

AB977, s. 33 Section 33. 191.03 of the statutes is amended to read:

AB977,14,3 191.03 Articles; publication prerequisite to certificate. No railroad corporation shall make application for a certificate unless it has caused a copy of its corporate articles to be published as a class 2 notice, under ch. 985, in each county in which the railroad is proposed to be located within 6 months next prior to the time of making such application, and files satisfactory proof thereof with the office department.

AB977, s. 34 Section 34. 191.05 of the statutes is amended to read:

AB977,14,9 191.05 Maps and profiles with application; changes. Complete maps and profiles of the proposed railroad shall be filed with the application for a certificate of convenience and necessity. The office department may permit errors, omissions or defects in the application, maps and profiles to be supplied or corrected, and permit changes in the proposed route to be made.

AB977, s. 35 Section 35. 191.07 of the statutes is amended to read:

AB977,14,19 191.07 Hearing of applicants; notice. Upon receiving such application the office department shall set a time and place for a hearing, which time shall not be less than 3 weeks nor more than 8 weeks from the date of filing the application, and the place shall be at the city of Madison, or at some place along the line of the proposed railroad, if the office department deems the latter more convenient, and shall give to the applicant notice thereof, which notice shall be published by the applicant, as a class 2 notice, under ch. 985, in each county in which the railroad, extension or branch is proposed to be located, and proof of such publication shall be filed with the office department.

AB977, s. 36 Section 36. 191.09 (1) of the statutes is amended to read:

AB977,15,3 191.09 (1) Before the office department. The provisions of ch. 195 relating to the subpoenaing of witnesses, the production of books, documents and papers, the administration of oaths, punishment for disobedience of an order of the office of the commissioner of railroads department, or of a subpoena, or for refusal of a witness to be sworn or to testify, witness fees, taking depositions, the keeping of a record of the proceedings, the taking of testimony, transcribing the evidence, or relating to the procedure before the office department not inconsistent with this chapter shall apply to all proceedings under this chapter.

AB977, s. 37 Section 37. 191.09 (2) of the statutes is amended to read:

AB977,15,6 191.09 (2) Court review of orders. Orders of the office department under this chapter shall be subject to review in the manner provided in ch. 227.

AB977, s. 38 Section 38. 191.10 (1) of the statutes is amended to read:

AB977,15,20 191.10 (1) Issuance, filing, recording, condemnation. If the office of the commissioner of railroads department finds that the proposed railroad would be a public convenience and that a necessity requires its construction, the office of the commissioner of railroads department shall enter an order to that effect and issue to the applicant a certificate that public convenience and a necessity require the construction of the railroad as proposed. The certificate shall be filed in the office of the department of financial institutions and the department of financial institutions shall approve the map showing the route of the railroad. The applicant shall record the map certified by the office of the commissioner of railroads department in the office of the register of deeds in each county in which the railroad shall be located. The filing of the certificate with the department of financial institutions and the recording of the map, as above provided, are conditions precedent to the right of the applicant to institute condemnation proceedings.

AB977, s. 39 Section 39. 191.10 (2) of the statutes is amended to read: