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 150-19-5 - Miscellaneous Provisions
Universal Citation: 150 WV Code of State Rules 150-19-5
Current through Register Vol. XLI, No. 13, March 29, 2024
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.
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