Committee Substitute House Bill 4212 History

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HB4212 SUB


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:

§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.
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