West Virginia Code of State Rules › Agency 150 - Public Service Commission › Title 150 - EXEMPT LEGISLATIVE RULE PUBLIC SERVICE COMMISSION › Series 150-18 - Carrier Access To Lines And Facilities Of Other Carriers › Section 150-18-2 - Procedures For Carrier Access

Current through Register Vol. XLI, No. 28, July 12, 2024
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.