GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	2 

SENATE BILL 971
Public Utilities Committee Substitute Adopted 6/18/92

Short Title:  Railroad Transfer/Ferries.	(Public)
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Sponsors:
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Referred to:  
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May 27, 1992

A BILL TO BE ENTITLED
AN ACT TO TRANSFER RAILROAD SUPERVISION AND RAILROAD SAFETY SUPERVISION FROM THE NORTH CAROLINA UTILITIES COMMISSION TO THE DEPARTMENT OF TRANSPORTATION AND TO CEASE REGULATION OF PRIVATE FERRY SERVICES WHICH ARE REGULATED BY THE NATIONAL PARK SERVICE.
The General Assembly of North Carolina enacts:
Section 1.  The statutory authority, powers, duties, and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and purchasing, of the Rail Safety Section of the Transportation Division of the North Carolina Utilities Commission, is transferred to the Department of Transportation.
Sec. 2.  G.S. 62-3(6) reads as rewritten:
"(6)	‘Common carrier' means any person which holds itself out to the general public to engage in transportation of persons or property for compensation by any mode except rail, including transportation by bus, truck, boat or any other conveyance except train, and except as exempted in G.S. 62-260."
Sec. 3.  G.S. 62-3(9) reads as rewritten:
"(9)	‘Contract carrier' means any person, except a rail carrier, which under an individual contract or agreement with another person and with such additional persons as may be approved by the Utilities Commission, engages in the transportation of persons or property for compensation, except as exempted in G.S. 62-260."
Sec. 4.  G.S. 62-3(22) reads as rewritten:
"(22)	‘Private carrier' means any person, except a rail carrier, not included in the definitions of common carrier or contract carrier, which transports in intrastate commerce in its own vehicle or vehicles property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or when such transportation is purely an incidental adjunct to some other established private business owned and operated by such person other than the transportation of property for compensation."
Sec. 5.  G.S. 62-3(23) reads as rewritten:
"(23)	a.	‘Public utility' means a person, whether organized under the laws of this State or under the laws of any other state or country, now or hereafter owning or operating in this State equipment or facilities for:
1.	Producing, generating, transmitting, delivering or furnishing electricity, piped gas, steam or any other like agency for the production of light, heat or power to or for the public for compensation; provided, however, that the term ‘public utility' shall not include persons who construct or operate an electric generating facility, the primary purpose of which facility is for such person's own use and not for the primary purpose of producing electricity, heat, or steam for sale to or for the public for compensation.
2.	Diverting, developing, pumping, impounding, distributing or furnishing water to or for the public for compensation, or operating a public sewerage system for compensation; provided, however, that the term ‘public utility' shall not include any person or company whose sole operation consists of selling water to less than 10 residential customers, except that any person or company which constructs a water system in a subdivision with plans for 10 or more lots and which holds itself out by contracts or other means at the time of said construction to serve an area containing more than 10 residential building lots shall be a public utility at the time of such planning or holding out to serve such 10 or more building lots, without regard to the number of actual customers connected;
3.	Transporting persons or property by street, suburban or interurban bus for the public for compensation;
4.	Transporting persons or property by motor vehicles, or any other form of transportation or express service for the public for compensation, except motor carriers exempted in G.S. 62-260, except rail carriers, and except carriers by air;
5.	Transporting or conveying gas, crude oil or other fluid substance by pipeline for the public for compensation;
6.	Conveying or transmitting messages or communications by telephone or telegraph, or any other means of transmission, where such service is offered to the public for compensation.
b.	The term ‘public utility' shall for rate-making purposes include any person producing, generating or furnishing any of the foregoing services to another person for distribution to or for the public for compensation.
c.	The term ‘public utility' shall include all persons affiliated through stock ownership with a public utility doing business in this State as parent corporation or subsidiary corporation as defined in G.S. 55-2 to such an extent that the Commission shall find that such affiliation has an effect on the rates or service of such public utility.
d.	The term ‘public utility,' except as otherwise expressly provided in this Chapter, shall not include a municipality, an authority organized under the North Carolina Water and Sewer Authorities Act, electric or telephone membership corporation or nonprofit water membership or consumer-owned corporations financed by the Farmers Home Administration, the United States Department of Housing and Urban Development, or any similar or successor federal financing agency, provided, that (i) any such financing administration, department or agency exercise substantial control over and regulation of any such corporation's rates and terms and conditions of service, and (ii) the members or consumer-owners of any such corporation, pursuant to the corporation's articles of incorporation and bylaws, shall elect the governing board of the corporation; or any person not otherwise a public utility who furnishes such service or commodity only to himself, his employees or tenants when such service or commodity is not resold to or used by others; provided, however, that any person other than a nonprofit organization serving only its members, who distributes or provides utility service to his employees or tenants by individual meters or by other coin-operated devices with a charge for metered or coin-operated utility service shall be a public utility within the definition and meaning of this Chapter with respect to the regulation of rates and provisions of service rendered through such meter or coin-operated device imposing such separate metered utility charge. If any person conducting a public utility shall also conduct any enterprise not a public utility, such enterprise is not subject to the provisions of this Chapter.  A water or sewer system owned by a homeowners' association that provides water or sewer service only to members or leaseholds of members is not subject to the provisions of this Chapter.
e.	The term ‘public utility' shall include the University of North Carolina insofar as said University supplies telephone service, electricity or water to the public for compensation from the University Enterprises defined in G.S. 116-41.1(9).
f.	The term ‘public utility' shall include the Town of Pineville insofar as said town supplies telephone services to the public for compensation. The territory to be served by the Town of Pineville in furnishing telephone services, subject to the Public Utilities Act, shall include the town limits as they exist on May 8, 1973, and shall also include the area proposed to be annexed under the town's ordinance adopted May 3, 1971, until January 1, 1975.
g. 	The term ‘public utility' shall not include a hotel, motel, time share or condominium complex operated primarily to serve transient occupants, which imposes charges to occupants for local, long-distance, or wide area telecommunication services when such calls are completed through the use of facilities provided by a public utility, and provided further that the local services received are rated in accordance with the provisions of G.S. 62-110(d) and the applicable charges for telephone calls are prominently displayed in each area where occupant rooms are located."
Sec. 6.  G.S. 62-41 reads as rewritten:
"§ 62-41.  To investigate accidents involving public utilities; to promote general safety program.
The Commission may conduct a program of accident prevention and public safety covering all public utilities with special emphasis on highway safety and transport safety and may investigate the causes of any accident on a highway involving a public utility. Any information obtained upon such investigation shall be reduced to writing and a report thereof filed in the office of the Commission, which shall be subject to public inspection but such report shall not  be admissible in evidence in any civil or criminal proceeding arising from such accident. The Commission may adopt reasonable rules and regulations for the safety of the public as affected by public utilities and the safety of public utility employees. The Commission shall cooperate with and coordinate its activities for public utilities with similar programs of the Division of Motor Vehicles, the Insurance Department, the Industrial Commission and other organizations engaged in the promotion of highway safety and employee safety."
Sec. 7.  G.S. 62-300(a) reads as rewritten:
"(a)	The Commission shall receive and collect the following fees and charges in accordance with the classification of utilities as provided in rules and regulations of the Commission, and no others:
(1) 	Twenty-five dollars ($25.00) with each notice of appeal to the Court of Appeals or the Supreme Court, and with each notice of application for a writ of certiorari.
(2) 	With each application for a new certificate or new permit for motor carrier rights, the fee shall be two hundred fifty dollars ($250.00) when filed by Class 1 motor carriers, one hundred dollars ($100.00) when filed by Class 2 motor carriers, and twenty-five dollars ($25.00) when filed by Class 3 motor carriers, and twenty-five dollars ($25.00) as filing fee for any amendment thereto so as to extend or enlarge the scope of operations thereunder, and twenty-five dollars ($25.00) for each broker who applies for a brokerage license under the provisions of this Chapter.
(3) 	With each application for a general increase in rates, fares and charges and for each filing of a tariff which seeks general increases in rates, fares and charges, the fee will be five hundred dollars ($500.00) for Class A utilities and Class 1 motor carriers, two hundred fifty dollars ($250.00) for Class B utilities and Class 2 motor carriers, one hundred dollars ($100.00) for Class C utilities and twenty-five dollars ($25.00) for Class D utilities and Class 3 motor carriers; provided that in the case of an application or tariff for a general increase in rates filed by a tariff agent for more than one carrier, the applicable fee shall be the highest fee prescribed for any motor carrier included in the application or tariff. This fee shall not apply to applications for adjustments in particular rates, fares, or charges for the purpose of eliminating inequities, preferences or discriminations or to applications to adjust rates and charges based solely on the increased cost of fuel used in the generation or production of electric power.
(4) 	One hundred dollars ($100.00) with each application by motor carrier of passengers for the abandonment or permanent or temporary discontinuance of transportation service previously authorized in a certificate.
(5) 	With each application for a certificate of public convenience and necessity or for any amendment thereto so as to extend or enlarge the scope of operations thereunder, the fee shall be two hundred fifty dollars ($250.00) for Class A utilities, one hundred dollars ($100.00) for Class B utilities, and twenty-five dollars ($25.00) for Class C and D utilities and twenty-five dollars ($25.00) for any other person seeking a certificate of public convenience and necessity.
(5a)	With each application by a bus company for an original certificate of authority or for any amendment thereto or to an existing certificate of public convenience and necessity so as to extend or enlarge the scope of operations thereunder the fee shall be two hundred fifty dollars ($250.00).
(6)	With each application for approval of the issuance of securities or for the approval of any sale, lease, hypothecation, lien, or other transfer of any property or operating rights of any carrier or public utility over which  the Commission has jurisdiction, the fee shall be two hundred fifty dollars ($250.00) for Class A utilities and Class 1 motor carriers, one hundred dollars ($100.00) for Class B utilities and Class 2 motor carriers, and twenty-five dollars ($25.00) for Class C and D utilities and  Class 3 motor carriers; provided, that in the case of sales, leases and transfers between two or more carriers or utilities, the applicable fee shall be the highest fee prescribed for any party to the transaction.
(7) 	Ten dollars ($10.00) with each application, petition, or complaint not embraced in (2) through (6) of this section, wherein such application, petition, or complaint seeks affirmative relief against a carrier or public utility over which the Commission has jurisdiction. This fee shall not apply to applications for adjustments in particular rates, fares or charges for the purpose of eliminating inequities, preferences or discriminations; nor shall this fee apply to applications, petitions, or complaints made by any county, city or town; nor shall this fee apply to applications or petitions made by individuals seeking service or relief from a public utility.
(8) 	Repealed by Session Laws 1985, c. 454, s. 18.
(9) 	One dollar ($1.00) for each page (8 1/2 x 11 inches) of transcript of testimony, but not less than five dollars ($5.00) for any such transcript.
(10)	Twenty cents (20¢) for each page of copies of papers, orders, certificates or other records, but not less than one dollar ($1.00) for any such order or record, plus five dollars ($5.00) for formal certification of any such paper, order or record.
(11), (12) Repealed by Session Laws 1985, c. 454, s. 18."
Sec. 8.  G.S. 40A-3(a) reads as rewritten:
"(a)	Private Condemnors. – For the public use or benefit, the persons or organizations listed below shall have the power of eminent domain and may acquire by purchase or condemnation property for the stated purposes and other works which are authorized by law.
(1)	Corporations, bodies politic or persons have the power of eminent domain for the construction of railroads, power generating facilities, substations, switching stations, microwave towers, roads, alleys, access railroads, turnpikes, street railroads, plank roads, tramroads, canals, telegraphs, telephones, electric power lines, electric lights, public water supplies, public sewerage systems, flumes, bridges, and pipelines or mains originating in North Carolina for the transportation of petroleum products, coal, gas, limestone or minerals. Land condemned for any liquid pipelines shall:
a.	Not be less than 50 feet nor more than 100 feet in width; and
b.	Comply with the provisions of G.S. 62-190(b).
The width of land condemned for any natural gas pipelines shall not be more than 100 feet.
(2)	School committees or boards of trustees or of directors of any corporation holding title to real estate upon which any private educational institution is situated, have the power of eminent domain in order to obtain a pure and adequate water supply for such institution.
(3)	Franchised motor vehicle carriers or union bus station companies organized by authority of the Utilities Commission, have the power of eminent domain for the purpose of constructing and operating union bus stations: Provided, that this subdivision shall not apply to any city or town having a population of less than 60,000.
(4)	Any railroad company has the power of eminent domain for the purposes of: constructing union depots; maintaining, operating, improving or straightening lines or of altering its location; constructing double tracks; constructing and maintaining new yards and terminal facilities or enlarging its yard or terminal facilities; connecting two of its lines already in operation not more than six miles apart; or constructing an industrial siding ordered by the Department of Transportation as provided in G.S. 136-203.
The width of land condemned for any single or double track railroad purpose shall be not less than 80 feet nor more than 100 feet, except where the road may run through a town, where it may be of less width, or where there may be deep cuts or high embankments, where it may be of greater width.
No rights granted or acquired under this subsection shall in any way destroy or abridge the rights of the State to regulate or control any railroad company or to regulate foreign corporations doing business in this State. Whenever it is necessary for any railroad company doing business in this State to cross the street or streets in a town or city in order to carry out the orders of the Department of Transportation to construct an industrial siding, the power is hereby conferred upon such railroad company to occupy such street or streets of any such town or city within the State. Provided, license so to do be first obtained from the board of aldermen, board of commissioners, or other governing authorities of such town or city.
No such condemnor shall be allowed to have condemned to its use, without the consent of the owner, his burial ground, usual dwelling house and yard, kitchen and garden, unless condemnation of such property is expressly authorized by statute.
The power of eminent domain shall be exercised by private condemnors under the procedures of Article 2 of this Chapter."
Sec. 9.  G.S. 160A-195 reads as rewritten:
"§ 160A-195.  Regulating speed of trains.
A city may by ordinance regulate the speed at which railroad trains may be operated within the corporate limits. Any such ordinance shall be filed with the Department of Transportation as required by G.S. 136-210."
Sec. 10.  G.S. 136-17.2 reads as rewritten:
"§ 136-17.2.  Members of the Board of Transportation represent entire State.
The chairman and members of the Board of Transportation shall represent the entire State in transportation matters and not represent any particular person, persons, or area.  The Board shall, from time to time, provide that one or more of its members or representatives shall publicly hear any person or persons concerning transportation matters in each of said geographic areas of the State."
Sec. 11.  G.S. 136-18 is amended by adding a new subdivision to read:
"(30)	The Department of Transportation shall have and exercise such general power and authority to supervise and control the railroads of the State as may be necessary to carry out the laws providing for their regulation, and all other powers and duties as may be necessary or incident to the proper discharge of its duties."
Sec. 12.  Article 11 of Chapter 62 of the General Statutes, G.S. 62-220 to G.S. 62-247, is recodified as Article 15 of Chapter 136 of the General Statutes, G.S. 136-191 to G.S. 136-219. G.S. 62-192 is recodified as G.S. 136-220 and included within Article 15.  G.S. 62-319 is recodified as G.S. 136-221 and included within Article 15. G.S. 62-322 is recodified as G.S. 136-222 and included within Article 15.  The Revisor of Statutes shall change any references to "the Commission”to "the Department of Transportation”and shall change the reference to "G.S. 62-238.1(b)”in G.S. 62-239, recodified as G.S. 136-211, to "G.S. 136-210".
The following table serves as a locator for the statutes recodified by this section:
Original Section Number	Recodified Section Number
G.S. 62-220	G.S. 136-191
G.S. 62-221	G.S. 136-192
G.S. 62-222	G.S. 136-193
G.S. 62-223	G.S. 136-194
G.S. 62-224	G.S. 136-195
G.S. 62-225	G.S. 136-196
G.S. 62-226	G.S. 136-197
G.S. 62-227	G.S. 136-198
G.S. 62-228	G.S. 136-199
G.S. 62-229	G.S. 136-200
G.S. 62-230	G.S. 136-201
G.S. 62-231	G.S. 136-202
G.S. 62-232	G.S. 136-203
G.S. 62-233	G.S. 136-204
G.S. 62-234	G.S. 136-205
G.S. 62-235	G.S. 136-206
G.S. 62-236	G.S. 136-207
G.S. 62-237	G.S. 136-208
G.S. 62-238	G.S. 136-209
G.S. 62-238.1	G.S. 136-210
G.S. 62-239	G.S. 136-211
G.S. 62-240	G.S. 136-212
G.S. 62-241	G.S. 136-213
G.S. 62-242	G.S. 136-214
G.S. 62-243	G.S. 136-215
G.S. 62-244	G.S. 136-216
G.S. 62-245	G.S. 136-217
G.S. 62-246	G.S. 136-218
G.S. 62-247	G.S. 136-219
G.S. 62-192	G.S. 136-220
G.S. 62-319	G.S. 136-221
G.S. 62-322	G.S. 136-222.
Sec. 13.  Article 15 of Chapter 136 of the General Statutes, as created by Section 12 of this act, is amended by adding a new section to read:
"§ 136-190.  Power to make and enforce rules for railroads.
(a)	The Department of Transportation shall administer and enforce the provisions of this Article, and may adopt rules needed to accomplish the administration and enforcement of the provisions of this Article."
Sec. 14.  Article 15 of Chapter 136 of the General Statutes, as created by Section 12 of this act, is amended by adding a new section to read:
"§ 136-222.  Tickets; conduct of passengers.
The provisions of G.S. 62-149, 62-150, and 62-151, regarding the use of tickets and the conduct of passengers on common carriers, apply to railroads regulated under this Article."
Sec. 15.  G.S. 62-235, as recodified as G.S. 136-205 by Section 12 of this act, reads as rewritten:
"§ 136-205.  Department of Transportation to inspect railroads as to equipment and facilities, and to require repair.
(a)	The Department of Transportation is empowered and directed, from time to time, to carefully examine into and inspect the condition of each railroad, its equipment and facilities, in regard to the safety and convenience of the public and the railroad employees; and if any are found by it to be unsafe, it shall at once notify and require the railroad company to put the same in repair.
(b)	The Department of Transportation may conduct a program of accident prevention and public safety covering all railroads and may investigate the cause of any railroad accident.  In order to facilitate this program, any railroad involved in an accident that must be reported to the Federal Railroad Administration shall also notify the Department of Transportation of the occurrence of the accident."
Sec. 16.  G.S. 62-236, as recodified as G.S. 136-206 by Section 12 of this act, reads as rewritten:
"§ 136-206.  To require installation and maintenance of railroad traffic signal and control systems, block signal systems, and safety devices; automatic signals at railroad intersections.
(a)	The Department of Transportation may require any railroad company to install and put in operation and maintain upon the whole or any part of its road an appropriate system of railroad signals and controls, a block signal system, or any other reasonable safety device, but no railroad company shall be required to install a block system upon any part of its road unless at least eight trains each way per day are operated on that part.
(b)	The Department of Transportation may require, when public safety demands, where two or more railroads cross each other at a common grade, or any railroad crosses any stream or harbor by means of a bridge, to install and maintain such a system of interlocking, block, automatic, or automatic block signals as will render it safe for engines and trains to pass over such crossings or bridge without stopping, and to apportion the cost of installation and maintenance between said railroads as may be just and proper."
Sec. 17.  The Department of Transportation shall submit a railroad safety report each quarter to the Joint Legislative Highway Oversight Committee.  The report shall include the number of railroad inspections performed, the number and nature of any violations found, and the number and amount of any fines issued.
Sec. 18.  G.S. 62-3(23) is amended by adding a new subparagraph to read:
“h.	The term ‘public utility' shall not include a person who transports persons or property to or from Cape Lookout National Seashore pursuant to an agreement with the National Park Service of the United States Department of the Interior, provided the agreement regulates rates, times of operation, routes, service, and safety of the transportation service."
Sec. 19.  This section of this act is effective upon ratification.  Section 18 of this act becomes effective January 1, 1993.  Sections 1 through 17 of this act become effective July 1, 1992, and expire June 30, 1993.