WEST virginia legislature

2016 regular session

Committee Substitute

for

House Bill 4186

By Delegates Cadle, Cooper, Foster, Ambler, Howell, Butler, Householder, Moffatt, Smith, R., Westfall and Hamrick

[Originating in the Committee on Government Organization, February 3, 2016]

A BILL to amend and reenact §29A-1-3 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto a new section, designated  §24A-2-2b, all  relating to the Public Service Commission; establishing a complaint review process; setting forth burden of proof on carrier; developing a process for aggrieved parties to recover charges; establishing factors for commission to consider whether charges are fair, just, and reasonable; providing commission authority to establish civil penalties for violations; prohibiting indemnification in certain instances; requiring carriers to list rates on invoices; authorizing commission to suspend or revoke operating authority; providing limited rule-making authority to the commission as it relates to Common Carriers by Motor Vehicles; sunsetting the rule and providing for its reauthorization; and providing for a legislative audit.

Be it enacted by the Legislature of West Virginia:

That §29A-1-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §24A-2-2b, all to read as follows:

CHAPTER 24A. COMMERCIAL MOTOR CARRIERS

ARTICLE 2.  COMMON CARRIERS BY MOTOR VEHICLES.

§24A-2-2b. Rule-making authority; establishing rates for recovering, towing, hauling, carrying, or storing wrecked or disabled vehicles complaint process; and describing penalties.

(a) On or before July 1, 2016, the Commission shall propose Legislative Rules for public comment, in compliance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this article.

(b) The Legislative Rules promulgated pursuant to the provision of this section shall describe:

(1) The methodology the Commission shall use to establish fair, effective, and reasonable rates that may be charged for the recovering, towing, hauling, carrying, or storing of wrecked or disabled vehicles. 

(2) Factors determining the fair, effective, and reasonable rates levied by a carrier for recovering, towing, hauling, carrying, or storing a wrecked or disabled vehicle, the commission shall consider, but shall not be limited to:

(A) Tow vehicle(s) and special equipment required to complete recovery/tow;

(B) Total time to complete recovery/tow;

(C) Number of regular and extra employees required to complete recovery/tow;

(D) Location of vehicle recovered/towed;

(E) Materials or cargo involved in recovery/tow;

(F) Comparison with reasonable prices in the region;

(G) Weather conditions; and

(H) Any other relevant information having a direct effect on the pricing of the recovery, towing, and storage of a recovered or towed vehicle.

(3) The process for filing a complaint, the review and investigation process to ensure it is fair, effective, and timely: Provided, That in any formal complaint against a carrier relating to a third-party tow, the burden of proof to show that the carrier’s charges are just, fair, and reasonable shall be upon the carrier.

(4) The process for aggrieved parties to recover the cost, from the carrier, for the charge or charges levied by a carrier for recovering, towing, hauling, carrying, or storing a wrecked or disabled vehicle where the commission determines that such charge or charges are not otherwise just, fair, or reasonable.

(5) The civil penalties that shall be imposed upon carriers who violate any provisions of this article.  Any civil penalties imposed by the commission shall be used by the commission to implement and enforce this article. And

(6) The process to review existing maximum statewide wrecker rates and special rates for the use of special equipment in towing and recovery work to ensure that rates are just, fair, and reasonable: Provided, That the commission shall generally disapprove hourly and flat rates for ancillary equipment.

(c) No carrier regulated under this article shall be indemnified for any or all damages arising from the recovery, towing, hauling, carrying, or storing of any wrecked or disabled motor vehicle if the damages are a result of the negligence or intentional acts of the carrier.

(d) Except as authorized by law enforcement officers, no towing service shall engage in the removal of a commercial motor vehicle that requires a commercial driver’s license to operate the vehicle under its own power on a highway. 

(e) All carriers regulated under this article shall list their approved rates, fares, and charges on every invoice provided to an owner, operator, or insurer of a wrecker or disabled motor vehicle. 

(f) For any carrier that violates any provision of this article, including for refusal or failure to comply with any penalty imposed by the commission pursuant to this section, the commission is authorized to suspend or revoke the operating authority of such carrier and, in coordination with appropriate entities, remove such carrier from any wrecker rotation list for a period of time as determined by the commission.      

(g) The Legislative Rules promulgated pursuant to this article shall sunset on July 1, 2021, unless reauthorized by the West Virginia Legislature.

(h) On or before December 31, 2020, the Legislative Auditor shall review the rules promulgated by the Public Service Commission under this section.  The audit shall evaluate the rate-making policy for reasonableness, the complaint process for timeliness, the penalties for effectiveness, and any other metrics the Legislative Auditor deems appropriate.  The Legislative Auditor may recommend that the rule be reauthorized, reauthorized with amendment, or repealed.

CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.

ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.

'29A-1-3. Application of chapter; limitations.

(a) The provisions of this chapter do not apply in any respect whatever to executive orders of the Governor, which orders to the extent otherwise lawful shall be effective according to their terms: Provided, That the executive orders shall be admitted to record in the State Register when and to the extent the Governor deems suitable and shall be included therein by the Secretary of State when tendered by the Governor.

(b) Except as to requirements for filing in the State Register, and with the Legislature or its rule-making review committee, provided in this chapter or other law, the provisions of this chapter do not apply in any respect whatever to the West Virginia Board of Probation and Parole, the Public Service Commission, the Board of Public Works sitting as such and the Secondary Schools Activities Commission: Provided, That rules of such agencies shall be filed in the State Register in the form prescribed by this chapter and be effective no sooner than sixty consecutive days after being so filed: Provided, however, That the rules promulgated by the state colleges and universities shall only be filed with the higher education governing boards: Provided further, That such agencies may promulgate emergency rules in conformity with section fifteen, article three of this chapter: And provided further, That the Public Service Commission is not exempt from the provisions of this Chapter regarding Legislative Rules related to Common Carriers by Motor Vehicles as provided for in Article Two, Chapter Twenty-four A.

(c) The provisions of this chapter do not apply to rules relating to or contested cases involving the conduct of inmates or other persons admitted to public institutions, the open seasons and the bag, creel, size, age, weight and sex limits with respect to the wildlife in this state, the conduct of persons in military service or the receipt of public assistance. Such rules shall be filed in the State Register in the form prescribed by this chapter and be effective upon filing.

(d) Nothing herein shall be construed to affect, limit or expand any express and specific exemption from this chapter contained in any other statute relating to a specific agency, but such exemptions shall be construed and applied in accordance with the provisions of this chapter to effectuate any limitations on such exemptions contained in any such other statute.

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.