W. Va. Code R. § 150-19-5

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

Section 150-19-5 - Miscellaneous Provisions

5.1. Modification of Access Agreement or Shipper Access Order.

5.1.1. Modification by agreement.

5.1.1.1. An accessing shipper and an accessed carrier that have agreed to modifications in a shipper access order governing the use of access facilities shall jointly file such proposed modications 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. An accessing shipper and an accessed carrier that have agreed to modifications in a shipper access agreement shall file such notice and parts of the modification agreement as are required of initial agreements by these regulations.

5.1.2. Modification by Order.

5.1.2.1. For good cause shown, an accessing shipper or accessed carrier may file with the Commission a petition requesting the issuance of an order modifying a previously issued shipper access order or an access agreement that the parties have voluntarily filed with the Commission.

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 officer, or if the petition is filed by the accessed carrier, it may be supported by the affidavit of the 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 order which the petitioner is requesting be modified, except that confidential information shall be served only after the party has executed a confidentiality agreement, and that traffic data regarding specific shippers shall not be supplied to an accessing shipper except with the consent of the shipper in question.

5.1.2.5. Within thirty (30) days of service of the petition, each party to the agreement or order may file with the Commission and serve on the petitioner and other parties to the agreement or order a response to the petition, together with supporting affidavits and workpapers, stating its objections to the proposed modification, its reasons therefor: Provided, however, That confidential information shall be served only after a party has executed a confidentiality agreement, and further provide that traffic data regarding specific shippers shall not be supplied to an accessing shipper except with the consent of the shipper in question.

5.1.2.6. The response shall be supported by affidavits, including the affidavit of the respondent's chief executive officer, or if the respondent is the accessed carrier, the supporting affidavit may be that of the chief operating officer.

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

5.1.2.8. 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.

5.1.2.9. 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, 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 order.

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

5.2. Confidentiality Agreements.

5.2.1. A person requesting or opposing the issuance by the Commission of any access order (or modification thereof) under these regulations shall execute an agreement meeting the criteria of this sub-part.

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. 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 ten thousand dollars ($10,000); and

d. 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 the confidentiality agreement on each party to the proceeding, the Commission, and on each shipper concerning which the party is to receive or has received 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 shipper and an accessed carrier that permits the accessing shipper 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 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 shipper to any other point on the lines of the accessed carrier designated by the accessing shipper, including such facilities as are necessary to move trains from the lines of the accessed carrier to the lines of another carrier.

5.3.3. "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 in a proceeding under these regulations.

5.3.4. "Accessing Shipper" means a person that is not a carrier by railroad subject to the jurisdiction of the Interstate Commerce Commission that requests the use of access facilities for the purpose of moving its own traffic.

5.3.5. "Application" means an application for an access order made pursuant to these regulations.

5.3.6. "Avoidable Cost" for purposes of these regulations shall mean those costs that will not be incurred by the accessed carrier if it does not provide specified service. For this purpose, all costs associated with providing train service, such as locomotive and equipment capital and maintenance expense, train crews, fuel, and track maintenance expenses incurred as a direct consequence of the operation of trains shall be treated as avoidable costs.

5.3.7. "Bulk Commodities" means all commodities carried in open or covered hopper cars and all commodities carried in tank cars.

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

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

5.3.10. "Depreciated Current Cost" means the depreciated current cost of the access facilities needed to serve the accessing shipper or the stand alone cost group of which the accessing shipper is a part, calculated in accordance with the Interstate Commerce Commission's decision in Coal Rate Guidelines--Nationwide, Ex Parte 347 (Sub. No. 1).

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

5.3.12. "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, and traffic data.

W. Va. Code R. § 150-19-5