Committee Substitute
House Bill 4212 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4212
(By Delegates
Miley, Barker, Boggs, Caputo,
Fleischauer, Fragale, Marshall, Martin, Morgan,
D. Poling and M. Poling
)
(Originating in the Committee on the Judiciary)
[February 16, 2010]
A BILL to amend and reenact §24-3-3b of the Code of West Virginia,
1931, as amended, relating to railroad safety; and requiring
the Public Service Commission to undertake additional
rulemaking pertaining the safety requirements for railway
walkways.
Be it enacted by the Legislature of West Virginia:
That §24-3-3b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO
REGULATIONS OF COMMISSION.
§24-3-3b. Access to privately owned railroad track and adjoining
facilities.
(a) The Legislature finds that article eleven, section nine of
the West Virginia Constitution declares railroads in this state to
be public highways free to all persons for the transportation of their persons and property, under such regulations as shall be
prescribed by the Legislature. It is the policy of this state to
protect and promote the economic well-being of its citizens and
toward that end to assure the availability of rail transportation
services. It is the purpose of this section to promote such vital
goals by all available means not in conflict with authority
exercised by the federal government in the area of rail
transportation.
(b) Rail carriers owning rail tracks located within the borders
of this state shall provide open access to such tracks, together
with all reasonable, necessary and proper operating facilities for
the transportation of passengers and goods to other rail carriers
including private carriers transporting their own goods: Provided,
That where both the accessed and accessing carrier are negotiating
a contract with any person for the transportation of passengers or
goods, the accessed carrier shall have has the right of first
refusal on such the contract. The accessed carrier and the
accessing carrier shall jointly agree upon a reasonable fee for such
the access. If the parties cannot reach an agreement on a
reasonable access fee, the Public Service Commission shall set a fee
pursuant to the provisions of subsection (c) of this section, after
taking into consideration the factors set forth in said subsection
(c) and giving such weight to each as it may deem considers
appropriate.
(c) The commission shall promulgate regulations rules providing for the establishment and payment of reasonable access fees to the
accessed carrier by the accessing carrier and the orderly, efficient
and safe utilization of accessed rails and facilities. In
establishing access fees, the commission shall consider: The
capital investment made by the accessed carrier; a reasonable rate
of return thereon; depreciation; costs involved in tract maintenance
and operation; the necessary use of the accessed carrier's employees
and facilities; any loss of employment or wages by employees of the
accessed carrier that might reasonably be anticipated because of the
activities of the accessing carrier; other reasonable and necessary
expenses incurred by the accessed carrier; and the accessing
carrier's usage of the accessed track and facilities in relation to
the total use of such track and facilities.
(d) Except as required for safety and efficient operation, no
a carrier providing access under this section may not require the
use of its facilities by an accessing carrier.
(e) Rail carriers seeking access under this section shall
comply with all applicable interstate commerce commission rules and
regulations.
(f) All safety regulations of the federal railroad
administration are applicable to rail carriers seeking access under
this section, unless waived by the Public Service Commission.
(g) The Legislature finds that the maintenance of inadequate
walkways along railroads in areas where railroad employees are
regularly required to walk on poses a particular occupational or safety hazard is of particular local concern. As technology has
changed to improve the safety of the rail system, railroad employees
are now regularly required to walk along more terrain than they were
when the rules were originally promulgated. In view of the above,
the Legislature finds it reasonable and appropriate to direct the
commission to revisit its promulgated rules pertaining to railroad
walkway safety, on or before July 1, 2010. The commission shall
consider current practices and how those affect existing rules
relating to the construction, reconstruction and maintenance of
walkways adjacent to railroad trackage. In reviewing these rules,
the commission shall consider whether additional or more specific
safety requirements are reasonable and appropriate for areas where
employees are regularly required to walk in the performance of their
duties, both inside and outside a railyard, including areas located
along passing sidings, bridges or viaducts or other track locations
where detectors have been placed to detect a defect or dragging
equipment. Notwithstanding the commissions pending case NO.10-0190-
RR-GI, the Legislature finds that there is no federal court
precedent on this matter binding upon the federal districts
encompassing this state, and that the Commission is hereby directed
pursuant to the provisions of this subsection
, to undertake this
inquiry as herein provided, absent any determination regarding the
question of federal preemption of state regulation of these
walkways.
(g) (h) No A rail carrier owning railtracks in the State of West Virginia shall may not discontinue or abandon use of such
trackage without first obtaining authority from the commission to
do so, unless the same be is done under uniform rules and
regulations filed by such the rail carrier with the Public Service
Commission and approved by said the commission.