W. Va. Code R. § 150-18-5

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

Section 150-18-5 - Miscellaneous Provisions

5.1. Modification of access agreement or access authority.

5.1.1. Modification by agreement.

5.1.1.1. An accessing carrier and an accessed carrier that have agreed to modifications in the access authority governing the use of access facilities shall jointly file such proposed modifications with the Commission, together with an explanation of the purpose and effect of the proposed modifications.

5.1.1.2. The Commission may submit written questions to the applicants which shall be answered in writing and under oath within the time established by the Commission.

5.1.1.3. The Commission may request public comments on the proposed modification.

5.1.1.4. The Commission shall issue an order approving the proposed modification if it finds the modification to be in the public interest and consistent with the purposes of these regulations.

5.1.1.5. The Commission's order shall not relieve the applicants of the need to obtain any required federal regulatory approval prior to implementing the proposed modification.

5.1.2. Modification by order.

5.1.2.1. An accessing carrier or an accessed carrier may file with the Commission a petition requesting the issuance of an order modifying a previously issued carrier access authority or a previously negotiated carrier access agreement.

5.1.2.2. The petition shall set forth the proposed modification, the reasons therefor, and the efforts that the petitioner has made to obtain an agreement with respect to the modifications proposed.

5.1.2.3. The petition shall be supported by affidavits, including the affidavit of the petitioner's chief executive or chief operating officer.

5.1.2.4. The petition and the supporting affidavits and workpapers shall be served upon all other parties to the agreement or authority that the petitioner is requesting be modified.

5.1.2.5. Within thirty (30) days of service of the petition, each party to the agreement or authority to be modified may file with the Commission a response to the petition, stating its objections to the proposed modification, its reasons therefor, proposed alternative modifications, and its reasons therefor.

5.1.2.6. The response shall be supported by affidavits, including the affidavit of the respondent's chief executive or chief operating officer.

5.1.2.7. The response and the supporting affidavits and workpapers shall be served on the petitioner and all other parties to the agreement or authority to be modified.

5.1.2.8. The commission may submit written questions to the petitioner and to the responding parties which shall be answered under oath and in writing.

5.1.2.9. If the Commission determines that there is a disputed issue of fact material to the issuance of a modification order, it may permit the parties to take the depositions on oral examination of the opposing party's affiants for the purpose of cross-examination. The depositions shall be filed with the Commission and, together with the petition, the response, 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.

5.1.2.10. The Commission may modify the procedures for developing the record on which to consider a petition for modification of a carrier access authority or carrier access agreement, to include, but not limited to, requiring oral proceedings.

5.1.2.11. The Commission will issue an order modifying or denying modification of the access agreement, or access authority.

5.1.2.12. The Commission will not, by order, except in extraordinary circumstances modify any access agreement or access authority that was modified by order within the twelve (12) months preceding the filing of the petition for modification.

5.1.2.13. The Commission will not issue a modification order:

a) in which the Commission constructs its own schedule of carrier access charges; or

b) which authorized or requires any person to take any action without prior Interstate Commerce Commission approval, if such approval is properly required by federal law or regulation.

5.1.2.14. The Commission's order shall not relieve any party of the need to obtain any exemption from the Interstate Commerce Commission for any acts permitted or prohibited by the modification order where such approval (or exemption) requires federal regulatory approval prior to implementing the modification approved by the Commission.

5.2. Confidentiality Agreements.

5.2.1. A person requesting or opposing the issuance or modification by the Commission of any access authority or access agreement under these regulations shall execute an agreement meeting the criteria of this subpart.

5.2.2. The agreement shall provide, inter alia, that:

(a) the signatory party will not disclose to any person not a party to the proceeding, or to any party to the proceeding that has not executed a confidentiality agreement, any information supplied to it by any other party to the proceeding which that party has designated as confidential commercial information concerning itself, its customers, or any other party to the proceeding or its customers;

(b) the signatory party agrees to pay damages to any person, whether or not a party to the proceeding or a signatory of a confidentiality agreement, that is injured in its business or property by the signatory party's disclosure of confidential commercial information in violation of the agreement;

(c) that the damages in the event of such disclosure will be measured by the lost profits resulting from disclosure of the confidential commercial information which shall be conclusively presumed to be at least $10,000 (ten thousand dollars); and

(d) that if the signatory party is found to have made a disclosure in breech of the agreement, it will pay to the injured person, in addition to the presumptive or actual damages determined, the costs of suit and a reasonable attorney's fee.

5.2.3. The signatory party shall serve a copy of the confidentiality agreement on each party to the proceeding, the Commission, and on each shipper concerning which the party has received or will receive confidential commercial information from another party to the proceeding; provided, however, that the confidentiality agreement need not be served on any shipper whose traffic does not originate or terminate on the access facilities in question in the proceeding.

5.2.4. If any party to a proceeding under these regulations fails or refuses to execute a confidentiality agreement, that party shall not be entitled to receive from any other party or from the Commission any materials containing confidential commercial information, but the Commission may decide the issues before it as if such party had received such information.

5.3. Definitions. As used in these regulations, the following terms shall have the meanings set forth below:

5.3.1. "Access Agreement" means an agreement between an accessing carrier and an accessed carrier that permits the accessing carrier to use access facilities owned by the accessed carrier, and contains the conditions of such use and a provision for an access charge for use of such facilities.

5.3.2. "Access Authority" means an order issued by the Commission authorizing an accessing carrier to use access facilities of an accessed carrier and establishing the terms and conditions for such use.

5.3.3. "Access Facilities" means track, switches, signal equipment, communications equipment and any other facilities necessary and appropriate to move trains from one or more points on the lines of the accessed carrier designated by the accessing carrier, including the premises of a shipper or shippers, to any other point on the lines of the accessed carrier designated by the accessing carrier, including such facilities as are necessary to move trains from the lines of the accessed carrier to the lines of another carrier.

5.3.4. "Accessed Carrier" means a carrier by railroad subject to the jurisdiction of the Interstate Commerce Commission that is the subject of a request for access facilities that is being processed under these regulations.

5.3.5. "Accessing Carrier" means a carrier by railroad subject to the jurisdiction of the Interstate Commerce Commission, or a person that intends to become a carrier by railroad subject to the jurisdiction of the Interstate Commerce Commission, that has made a request for access facilities pursuant to these regulations.

5.3.6. "Application" means an application for access authority made pursuant to these regulations.

5.3.7. "Commission" means the Public Service Commission of West Virginia.

5.3.8. "Confidentiality Agreement" means a confidentiality agreement meeting the requirements of these regulations.

5.3.9. "Workpapers" means documentation necessary to understand the means of calculation of a number that is contained in an affidavit or filing made with the Commission pursuant to these regulations, and includes inter alia accounting work sheets, computer output, listings of computer programs used to analyze data, traffic data.

5.4. Contracts.

5.4.1. If an accessing carrier has negotiated a contract with a shipper for transportation of goods from or to a point located on an access facility, and if the accessed carrier has engaged in good faith negotiations with the shipper for a contract to transport the same goods between the same end points, the accessed carrier shall have the right, as a condition to any access authority issued under these regulations, to assume the contract negotiated by the accessing carrier.

5.4.2. Before an accessing carrier may file a contract with Interstate Commerce Commission for transportation of goods from or to a point located on an access facility it shall present such contract to the accessed carrier which shall have three (3) business days to notify the shipper and the accessing carrier that it is able to transport the goods between the same end points and to satisfy all other terms of the contract and has elected to assume the contract.

5.4.3. An accessed carrier that elects to assume a contract shall notify the accessing carrier and the shipper in writing and thereafter shall be bound by each term of the contract and entitled to the benefits of the contract to the same extent as if it had signed the agreement.

5.4.4. This section does not relieve the accessed carrier of the obligation to file the contract with the Interstate Commerce Commission.

5.5. Labor Protection Expenses.

5.5.1. If an accessed carrier anticipates that it will incur labor protection expenses imposed pursuant to the Interstate Commerce Act as a result of the operations of an accessing carrier, it may seek as an additional traffic-sensitive cost of access chargeable to the accessing carrier, an amount equal to the anticipated labor protection expense it will incur.

5.5.2. Amounts collected by the accessed carrier under paragraph 5.5.1. shall be deposited in an interest bearing escrow account, and shall not be commingled with the accessed carrier's other funds.

5.5.3. At the end of each twelve (12) month period following Interstate Commerce Commission authorization of operations by the accessing carrier, the accessed carrier shall prepare a report and accounting showing whether it has incurred labor protection expenses as a direct consequence of the operations of the accessing carrier and the amount of such expenses. Any lump sum severance payment made by the accessed carrier to its employees shall be prorated over six (6) years. The report and accounting shall be served on the accessing carrier and shall be filed with the Commission. The report and accounting shall be supported by sworn affidavits.

5.5.4. The accessing carrier shall file any exceptions and a statement of reasons for such exceptions with the Commission and serve them on the accessed carrier within thirty (30) days of service of the report and accounting, and the accessed carrier may reply thereto within fifteen (15) days, filing its reply with the commission and serving it on the accessing carrier. Exceptions and Replies shall be supported by sworn affidavits.

5.5.5. The Commission will issue an order determining the amount of labor protection payments paid by the accessed carrier as a direct consequence of the operations of the accessing carrier and authorizing the accessed carrier to draw from the escrow account an amount equal to the lesser of (a) the amount of such payments established in the order, or (b) the amount in the account. The balance of the escrow account existing as of the date of the accessed carrier's report and accounting after subtracting the authorized distribution to the accessed carrier shall be returned to the accessing carrier.

5.5.6. If the balance in the escrow account at the end of each twelve (12) month period exceeds one hundred ten percent (110%) of the labor protection expenses incurred during such period and allowed by the Commission, the Commission may order a reduction in the traffic-sensitive charge designed to cover labor protection costs. If the escrowed funds available are insufficient to cover the accessed carrier's labor protection expenses incurred in any twelve (12) month period, the Commission may order an increase in the traffic-sensitive charge, if it finds that the accessed carrier has taken reasonable measures to minimize its labor protection expenses, and the shortfall may be recovered by the accessed carrier at the end of the following twelve (12) month period.

5.5.7. Any agreement between the accessing and the accessed carrier with respect to labor protection payments, either in an access agreement or supplementary to access authority issued under these regulations shall supersede the provisions of this section if the parties agree.

W. Va. Code R. § 150-18-5