West Virginia Code of State Rules
Agency 150 - Public Service Commission
Title 150 - EXEMPT LEGISLATIVE RULE PUBLIC SERVICE COMMISSION
Series 150-19 - Shippers Access To Lines And Facilities Of Rail Carriers
Section 150-19-2 - Procedures for Shipper Access
Universal Citation: 150 WV Code of State Rules 150-19-2
Current through Register Vol. XLI, No. 13, March 29, 2024
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.
Disclaimer: These regulations may not be the most recent version. West Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
