W. Va. Code R. § 150-19-2

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

Section 150-19-2 - Procedures for Shipper Access

2.1. Shipper Access by Agreement. If a shipper and one (1) or more rail carriers enter into an access agreement, the parties shall jointly file with the Commission (a) a notice of such agreement that states its duration, identifies the access facilities to be used by the shipper, and describes the nature of the shipper's proposed operations using the access facilities, and (b) a copy of that part of the access agreement describing the operating relationship between the accessing shipper and the accessed carrier or carriers. The parties may file the entire agreement but are not required to do so.

2.2. Shipper Access by Order.

2.2.1. A shipper that has requested the use of access facilities located in the State of West Virginia but which has been unable to reach an access agreement with the rail carrier or carriers owning or controlling those access facilities may file with the Commission an application for a shipper access order.

2.2.2. An application for a shipper access order shall be supported by sworn affidavits, including the affidavit of the accessing shipper's chief executive officer, and shall contain:

(a) a certification by the accessing shipper 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 shipper's proposed operations and a detailed specification 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 specification of the access charge methodology to be used to compute access charges.

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

2.2.4. Notice to other shippers.

2.2.4.1. Within ten (10) days of service of the application the accessed carrier shall provide to each shipper on the access facilities designated by the accessing shipper that has used rail service over the access facilities within the six (6) preceding months (a) a notice that an application has been filed for shipper access, (b) a general description of the access facilities being requested, and (c) the name and address of the accessing shipper.

2.2.4.2. Each shipper located on the access facilities that has used rail service over the access facilities within the six (6) preceding months may request the accessing shipper to provide it with a copy of the application for a shipper access order. Within ten (10) days of receiving the request the accessing shipper shall provide to the requesting shipper a copy of its shipper access application.

2.2.5. Shipper Intervention.

2.2.5.1. Shippers located on the access facilities which are the subject of a shipper access application may petition the Commission for leave to intervene in the shipper access order proceedings.

2.2.5.2. For good cause shown, the Commission may permit other shippers to intervene and may establish substantive and procedural limitations on the intervenor to ensure orderly and expeditious processing of the application for a shipper access order.

2.2.6. Accessed carrier response.

2.2.6.1. Within thirty (30) days of service of the application on the accessed carrier, or within such additional time as the Commission for good cause allows, the accessed carrier shall file with the Commission 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 an access charge for the use of the access facilities sought by the accessing shipper calculated in accordance with these regulations using the access charge methodology specified by the accessing shipper; and

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

2.2.6.2. Exceptions shall be directed to the operational feasibility of making the access facilities available to the accessing shipper 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 shipper shall not constitute grounds for exception. If the accessed carrier takes exception to all or part of the accessing shipper's proposal, it shall propose specific alternatives to the access facilities specified by the accessing shipper, that provide at least the same extent and quality of access at no greater cost as the facilities requested by the accessing shipper, within the limits of operational feasibility.

2.2.7. The accessed carrier shall serve a copy of its response and supporting affidavits on the accessing shipper, and each intervening shipper, and once the accessing shipper has executed a confidentiality agreement, the accessed carrier shall supply the accessing shipper copies of all workpapers supporting its exceptions and access charge proposals.

2.2.8. The accessing shipper and each intervening shipper 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 or intervening shipper's chief executive or operating officer.

2.2.9. The Commission may propound written interrogatories to the accessing shipper, the intervening shippers and to the accessed carrier regarding any matter material to the issuance of a shipper access order under these regulations, which shall be answered under oath and in writing by the chief person as directed by the Commission within the time established by the Commission.

2.2.10. 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 a shipper access order under these regulations, the Commission will permit the accessing shipper, the accessed carrier, the Commission's Staff and any intervenor to take depositions upon oral examination for the purpose of cross-examining the opposing party's supporting affiants. The depositions shall be filed with the Commission, and, together with the application, the response, the reply and the answers to the Commission's written questions shall constitute the record on which the Commission will base its decision unless modified as herein provided.

2.2.11. The Commission may modify the procedures for developing the record on which to consider an application for a shipper access order, to include, but not limited to, requiring oral proceedings.

2.2.12. If the Commission finds that the accessing shipper'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 shipper has complied with these regulations, it will issue a shipper access order directing the accessed carrier to permit the accessing shipper to use the access facilities identified in the Order under the terms and conditions set forth in the Order.

W. Va. Code R. § 150-19-2