105 IAC 5-1-11 - Burden of proof

Authority: IC 8-1-1-3

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

Sec. 11.

(a) General-The burden shall be on the protestant to prove the matters described in 170 IAC 3-1.1-8[section 8 of this rule].

(b) Market Dominance:

(1) Jurisdiction-The respondent railroad shall bear the burden of showing that the commission lacks jurisdiction to review the proposed rate because the rate produces a revenue-variable cost percentage that is less than the percentages found in 49 U.S.C. Sec. 10709(d)(2). The railroad may meet its burden of proof by showing the revenue-variable cost percentage for that transportation to which the rate applies is less than the threshold percentage cited in 49 U.S.C. Sec. 10707(d)(2). The protestant may rebut the railroad's evidence with a showing that the revenue-variable cost percentage is equal to or greater than the threshold percentage in 49 U.S.C. Sec. 10709(d)(2).

(2) Intramodal and intermodal competition-The protestant shall bear the burden of demonstrating that there exists no effective intramodal or intermodal competition for the transportation to which the rate applied. Respondent railroad may rebut the protestant's showing with evidence that effective intramodal or intermodal competition exists.

(3) Product and geographic competition-If intramodal and intermodal competition is shown not to exist, the respondent railroad shall have the burden of proving that either product or geographic competition for the involved transportation does exist. The protestant shall then have the burden of proving that such competition is not effective.

(c) Reasonableness:

(1) Rate increases:

(A) Protestant's burden of proof-A party protesting a rate increase shall bear the burden of demonstrating its unreasonableness if such rate:

(i) is authorized under 49 U.S.C. Sec. 10707 a ; and

(ii) results in a revenue-variable cost percentage for the transportation to which the rate applied that is less than the lesser of the percentages described in clauses (i) and (ii) of 49 U.S.C. Sec. 10707a(e)(2)(A).

(B) Respondent's burden of proof-The respondent railroad shall bear the burden of demonstrating the reasonableness of a rate increase if such rate:

(i) is greater than that authorized under 49 U.S.C. Sec. 10707a, or

(ii) results in a revenue-variable cost percentage for the transportation to which the rate applied that is equal to or greater than the lesser of the percentage described in clauses (i) and (ii) of the 49 U.S.C. Sec. 10707a(e)(2)(A); and

(iii) it is subjected to an investigation by the commission under 49 U.S.C. Sec. 10707.

(2) Rate decreases-A party protesting a rate decrease shall bear the burden of demonstrating that the rate does not contribute to the going concern value of the railroad, and is therefore unreasonably low.

Notes

105 IAC 5-1-11

Indiana Department of Transportation; 105 IAC 5-1-11; filed May 18, 1983, 2:18 p.m.: 6 IR 1204; filed Feb 27, 1985, 9:24 a.m.: 8 IR 770; 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 6-1-11) to Indiana Department of Transportation (105 IAC 5-1-11) by P.L. 112-1989, SECTION 5, effective July 1, 1989.