W. Va. Code R. § 150-18-2

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-18-2 - Procedures For Carrier Access

2.1. Carrier Access by Agreement. If two or more rail carriers enter into an access agreement, the parties may, but are not required to, file that agreement with the Commission. Service may begin under that agreement when authorized by the Interstate Commerce Act and the regulations and orders of the Interstate Commerce Commission.

2.2. Carrier Access by Authority.

2.2.1. A rail carrier that has requested the use of access facilities of another rail carrier but which has been unable to reach an access agreement with the rail carrier owning the access facilities may file with the Commission an application for a shipper access order.

2.2.2. An application for access authority shall be supported by sworn affidavits, including the affidavit of the accessing carrier's chief executive or operating officer, and shall contain:

(a) a certification by the accessing carrier that it has made a good faith effort to negotiate an access agreement with the accessed carrier, and a summary of the efforts it has made to enter into such an agreement;

(b) a description of the accessing carrier's proposed operations and of the access facilities it is seeking to use;

(c) a certification that in using the access facilities the accessing carrier will comply with the accessed carrier's operating rules, and with all state and federal safety and environmental laws and regulations; and

(d) a confidentiality agreement meeting the standards of section 5.2.2. of these regulations.

2.2.3. The accessing carrier shall serve a copy of the application on the accessed carrier.

2.2.4. Within thirty (30) days of service of the application for access authority, or such additional time as the Commission for good cause allows, the accessed carrier shall file with the Commission and serve on the accessing carrier a response to the application which shall:

(a) set forth in detail its exceptions to the application;

(b) propose specific alternative provisions to those portions of the application to which it takes exception;

(c) set forth a detailed statement of the reasons for its exceptions to the application and of the reasons for its proposed alternatives;

(d) propose a schedule of access charges for the use of the access facilities sought by the accessing carrier calculated in accordance with these regulations;

(e) contain traffic data covering the most recent three (3) preceding years for each shipper originating or terminating traffic on the access facilities, and traffic data showing the volume

(f) be supported by sworn affidavits, including the affidavit of the accessed carrier's chief executive or chief operating officer.

2.2.5. Exceptions shall be directed to the operational feasibility of making the access facilities available to the accessing carrier to perform the services described in the application. Adequacy of service over the access facilities by the accessed carrier or the economic impact on the accessed carrier of operations by the accessing carrier shall not constitute grounds for exception. If the accessed carrier takes exception to all or part of the accessing carrier's proposal, it shall propose specific alternatives to the access facilities specified by the accessing carrier, that provide at least the same extent and quality of access and at no greater cost as the facilities requested by the accessing carrier, within the limits of operational feasibility.

2.2.6. The accessing carrier may file a reply within thirty (30) days of service of the accessed carrier's response which shall be supported by sworn affidavits, including the affidavit of the accessing carrier's chief executive or chief operating officer. If the accessing carrier contests any of the access charges proposed by the accessed carrier, it shall propose its own schedule or schedules of such charges.

2.2.7. The Commission may submit to the accessing carrier and to the accessed carrier written questions regarding any matter material to the issuance of an access authority under these regulations , which shall be answered in writing under oath within the time established by the Commission.

2.2.8. If the application, the response, the reply, the affidavits in support, and the sworn answers to the Commission's written questions establish that there exists a disputed issue of fact material to the issuance of an access authority under these regulations, the Commission will permit the accessing carrier, the accessed carrier, the Commission's Staff and any intervenor to take depositions on oral examination for the purpose of cross-examining the opposing party's affiants. The depositions shall be filed with the Commission and, together with the application, the response, the reply, the affidavits in support, and the sworn answers to the Commission's written questions shall constitute the record on which the Commission will base its decision unless modified as herein provided.

2.2.9. The Commission may modify the procedures for developing the record on which to consider an application for a carrier access authority, to include, but not limited to, oral proceedings.

2.2.10. If the Commission finds that the accessing carrier's use of the access facilities will not unduly interfere with the accessed carrier's own operations, and if the Commission further finds that the accessing carrier has complied with these regulations, it shall issue an access authority directing the accessed carrier to permit the accessing carrier to use the access facilities identified in the access authority, under the terms and conditions set forth in the access authority.

2.2.11. The access authority shall contain

(a) a requirement that the accessing carrier obtain appropriate federal operating authority or exemption from the Interstate Commerce Commission before exercising its rights under the access authority;

(b) a designation of the access facilities the accessing carrier can use and any limitations or conditions on such use; and

(c) a schedule of access charges.

2.2.12. The Commission will select either the schedule of access charges proposed by the accessed carrier or the schedule proposed by the accessing carrier, and will make only such prorata adjustments to the selected schedule of charges as are necessary to ensure that the accessed carrier can recover the fixed costs of the access facilities. The Commission will not change the relative distribution of access charges in the schedule of access charges it selects and will not devise its own schedule of access charges.

W. Va. Code R. § 150-18-2