II 

109TH CONGRESS 

2D SESSION S. 2921 

To amend title 49, United States Code, to enhance competition among and 

between rail carriers in order to ensure efficient rail service and reasonable rail rates, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 22, 2006 

Mr. REID (for Mr. DAYTON) introduced the following bill; which was read 

twice and referred to the Committee on Commerce, Science, and Transportation 

A BILL 

To amend title 49, United States Code, to enhance competition among and between rail carriers in order to ensure 

efficient rail service and reasonable rail rates, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; AMENDMENT OF TITLE 49, 

4 UNITED STATES CODE. 

5 (a) SHORT TITLE.—This Act may be cited as the 

6 ‘‘Railroad Competition Act of 2006’’. 

7 (b) AMENDMENT OF TITLE 49, UNITED STATES

8 CODE.—Except as otherwise expressly provided, whenever 


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1 in this Act an amendment or repeal is expressed in terms 

2 of an amendment to, or a repeal of, a section or other 

3 provision, the reference shall be considered to be made to 

4 a section or other provision of title 49, United States 

5 Code. 

6 TITLE I—RAIL TRANSPOR7 TATION COMPETITION 

8 SEC. 101. CLARIFICATION OF RAIL TRANSPORTATION POL9 ICY. 

10 Section 10101 is amended— 

11 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

12 ‘‘In regulating’’; and 

13 (2) by adding at the end the following: 

14 ‘‘(b) PRIMARY OBJECTIVES.—The primary objectives 

15 of the rail transportation policy of the United States are— 

16 ‘‘(1) to promote effective competition among 

17 rail carriers at origins and destinations; 

18 ‘‘(2) to maintain reasonable rates in the ab19 sence of effective competition; and 

20 ‘‘(3) to maintain consistent and efficient rail 

21 transportation service for shippers, including the 

22 timely provision of rail cars requested by shippers.’’. 

23 SEC. 102. REQUIREMENT FOR RATE QUOTES. 

24 Section 11101(a) is amended— 

25 (1) by inserting ‘‘(1)’’ after ‘‘(a)’’; and 


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1 (2) by adding at the end of subsection (a) the 

2 following: 

3 ‘‘(2) Upon the request of a shipper, a rail carrier 

4 shall establish a rate for transportation and provide serv5 ice requested by the shipper between any two points on 

6 the system of that carrier where traffic originates, termi7 nates, or may reasonably be interchanged. A carrier shall 

8 establish a rate and provide service upon such request 

9 without regard to— 

10 ‘‘(A) the location of the movement on the rail 

11 system, including terminal areas; 

12 ‘‘(B) whether the rate established is for only 

13 part of a movement between a point of origin and 

14 a destination; 

15 ‘‘(C) whether the shipper has made arrange16 ments for transportation for any other part of that 

17 movement; or 

18 ‘‘(D) whether the shipper has a contract with 

19 any rail carrier for part or all of its transportation 

20 needs over the route of movement, in which case the 

21 rate established by the carrier shall not apply to 

22 transportation covered by the contract.’’. 


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1 SEC. 103. ELIMINATION OF BARRIERS TO COMPETITION BE2 TWEEN CLASS I CARRIERS AND CLASS II AND 

3 CLASS III RAIL CARRIERS. 

4 (a) RESTRICTION ON APPROVAL OR EXEMPTION OF

5 RAIL CARRIERS’ ACTIVITIES BY SURFACE TRANSPOR6 TATION BOARD.—Section 10901 is amended by adding at 

7 the end the following: 

8 ‘‘(e)(1) The Board may not issue under this section 

9 a certificate authorizing an activity described in subsection 

10 (a), or exempt from the applicability of this section under 

11 section 10502 such an activity, that involves a transfer 

12 of interest in a line of railroad, from a Class I rail carrier 

13 to a Class II or a Class III rail carrier, if the activity 

14 directly or indirectly would result in— 

15 ‘‘(A) a restriction of the ability of the Class II 

16 or Class III rail carrier to interchange traffic with 

17 other carriers; or 

18 ‘‘(B) a restriction of competition between or 

19 among rail carriers in the region affected by the ac20 tivity in a manner or to an extent that would violate 

21 antitrust laws of the United States (notwithstanding 

22 any exemption from the applicability of antitrust 

23 laws that is provided under section 10706 of this 

24 title or any other provision of law). 

25 ‘‘(2) Any party to an activity referred to in paragraph 

26 (1) that has been carried out, or any rail shipper affected 


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1 by such an activity, may request that the Board review 

2 the activity to determine whether the activity has resulted 

3 in a restriction described in that paragraph. If, upon re4 view of the activity, the Board determines that the activity 

5 resulted in such a restriction and the restriction has been 

6 in effect for at least 10 years, the Board shall declare the 

7 restriction to be unlawful and terminate the restriction un8 less the Board finds that the termination of the restriction 

9 would materially impair the ability of an affected rail car10 rier to provide service to the public or would otherwise 

11 be inconsistent with the public interest. 

12 ‘‘(3) In this subsection: 

13 ‘‘(A) The term ‘antitrust laws’ has the meaning 

14 given that term in subsection (a) of the first section 

15 of the Clayton Act (15 U.S.C. 12(a)), except that 

16 such term also means section 5 of the Federal Trade 

17 Commission Act (15 U.S.C. 45) to the extent that 

18 such section 5 applies to unfair methods of competi19 tion. 

20 ‘‘(B) The terms ‘Class I rail carrier’, ‘Class II 

21 rail carrier’, and ‘Class III rail carrier’ mean, re22 spectively, a rail carrier classified under regulations 

23 of the Board as a Class I rail carrier, Class II rail 

24 carrier, and Class III rail carrier.’’. 


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1 (b) APPLICABILITY TO PREVIOUSLY APPROVED OR

2 EXEMPTED ACTIVITIES.—Paragraph (2) of section 

3 10901(e) of title 49, United States Code (as added by sub4 section (a)), shall apply with respect to any activity re5 ferred to in that paragraph for which the Surface Trans6 portation Board issued a certificate authorizing the activ7 ity under section 10901 of such title, or exempted the ac8 tivity from the necessity for such a certificate under sec9 tion 10502 of such title, before, on, or after the date of 

10 the enactment of this Act. 

11 SEC. 104. RECIPROCAL SWITCHING ON COMPETITIVE 

12 TERMS. 

13 Section 11102(c) is amended— 

14 (1) by striking ‘‘may require’’ in paragraph (1) 

15 and inserting ‘‘shall require’’; 

16 (2) by striking ‘‘may establish’’ in paragraph 

17 (1) inserting ‘‘shall establish’’; and 

18 (3) by adding at the end the following: 

19 ‘‘(3) In making any finding for the purposes of the 

20 first sentence of paragraph (1), the Board may not require 

21 that there be evidence of anticompetitive conduct by a rail 

22 carrier from which access is sought.’’. 

23 SEC. 105. AREAS OF INADEQUATE RAIL COMPETITION. 

24 (a) DESIGNATION AND REMEDIES.— 


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1 (1) IN GENERAL.—Chapter 105 is amended by 

2 adding at the end the following: 

3 ‘‘§ 10503. Areas of inadequate rail competition 

4 ‘‘(a) DESIGNATION.—The Board shall designate any 

5 State or part of a State as an area of inadequate rail com6 petition after finding either of the grounds set forth in 

7 subsection (b). An area of inadequate rail competition may 

8 be limited to be composed of the facilities of a group of 

9 shippers or receivers of one or more specific commodities 

10 within a geographic area. 

11 ‘‘(b) GROUNDS FOR DESIGNATION.—The grounds for 

12 designating a State or part of a State as an area of inad13 equate rail competition are as follows: 

14 ‘‘(1) The State or part of a State encompasses 

15 a significant number of rail shipping origins and 

16 destinations that are served exclusively by only one 

17 Class I railroad. 

18 ‘‘(2) A significant number of the persons that 

19 ship by rail or receive rail shipments in the State or 

20 part of a State— 

21 ‘‘(A) usually find it necessary to pay rates 

22 for the rail shipments that exceed the rates nec23 essary to yield recovery by the rail carrier of 

24 180 percent of revenue-variable costs, as deterVerDate Aug 31 2005 11:16 May 30, 2006 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2921.IS S2921

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1 mined under standards applied in the adminis2 tration of section 10707(d); or 

3 ‘‘(B) has experienced competitive disadvan4 tage in the marketplace or other economic ad5 versity because of high cost or poor quality of 

6 rail service in the State or part of a State, as 

7 the case may be. 

8 ‘‘(c) AUTHORIZED PETITIONERS.—The following per9 sons may petition the Board for a designation of a State 

10 or part of a State as an area of inadequate rail competi11 tion: 

12 ‘‘(1) The Governor from the State. 

13 ‘‘(2) A Member of Congress from the State. 

14 ‘‘(3) As provided in section 10504, the Rail 

15 Customer Advocate of the Department of Agri16 culture and any State official referred to in sub17 section (a)(2) of such section. 

18 ‘‘(d) ACTIONS.—Upon designating a State or a part 

19 of a State as an area of inadequate rail competition, the 

20 Board shall attempt to resolve, within 60 days after the 

21 date of the designation, the conditions described in sub22 section (b) that justify the designation. In addition to pro23 viding other remedies authorized by law, the Board may, 

24 when requested in a petition, order any of the following 

25 actions: 


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1 ‘‘(1) Provision of reciprocal switching and ac2 cess to tracks of another rail carrier beyond the lim3 its specified in section 11102(a) of this title. 

4 ‘‘(2) Haulage transportation of railroad cars by 

5 a rail carrier to or from facilities that such carrier 

6 alone physically serves on behalf of another rail car7 rier, for a fee prescribed by the Board. 

8 ‘‘(3) Regarding rates on any rail segments 

9 within or connected to the area of inadequate rail 

10 competition on which rail service is susceptible to 

11 delay or interruption due to traffic congestion— 

12 ‘‘(A) expedited review of the reasonable13 ness of the rates under section 10701(d)(3); or 

14 ‘‘(B) expedited final offer arbitration of 

15 the reasonableness of the rates under section 

16 11708(e). 

17 ‘‘(4) Expedited review, under section 

18 10701(d)(3), of the reasonableness of— 

19 ‘‘(A) increases in rates or other charges; 

20 and 

21 ‘‘(B) new transportation service tariffs. 

22 ‘‘(5) Expedited review of whether a rate violates 

23 the prohibition against discriminatory rates con24 tained in section 10741, without regard to sub25 section (b)(2) of such section. 


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1 ‘‘(e) LIMITATIONS AND CONDITIONS APPLICABLE TO

2 SPECIFIC REMEDIES.— 

3 ‘‘(1) In the case of a petition for an order for 

4 reciprocal switching or access to tracks of another 

5 rail carrier under subsection (d)(1), the Board may 

6 not require that there be evidence of anticompetitive 

7 conduct by a rail carrier as a prerequisite for order8 ing such action. 

9 ‘‘(2) In the case of a petition for expedited re10 view of rates or final offer arbitration of rates under 

11 subsection (d)(3)— 

12 ‘‘(A) the Board or arbitrator or panel of 

13 arbitrators, as the case may be, shall accord, 

14 with respect to rail transportation of a specific 

15 commodity, significant persuasive weight to evi16 dence comparing— 

17 ‘‘(i) rates charged for rail transpor18 tation of various quantities of that com19 modity within the area of inadequate rail 

20 competition; and 

21 ‘‘(ii) rates charged for rail transpor22 tation of similar quantities of that com23 modity or any similar commodity or com24 modities in areas where there is competiVerDate Aug 31 2005 11:16 May 30, 2006 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2921.IS S2921

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1 tion among rail carriers for shipments of 

2 such commodity or commodities; and 

3 ‘‘(B) the Board or arbitrator or panel of 

4 arbitrators, as the case may be, shall not apply 

5 the stand-alone cost test that the Board applies 

6 in determining the reasonableness of rates re7 viewed in cases not involving rail service in an 

8 area of inadequate rail competition. 

9 ‘‘(3) In the case of a petition for expedited re10 view, under subsection (d)(4), of an increase of a 

11 rate or other charge or the imposition of a new serv12 ice tariff by a rail carrier— 

13 ‘‘(A) the rail carrier shall have the burden 

14 of proving the reasonableness of the increase or 

15 tariff charge; and 

16 ‘‘(B) the Board shall consider any evidence 

17 comparing— 

18 ‘‘(i) the increased rate or other 

19 charge, or the tariff charge, as the case 

20 may be; and 

21 ‘‘(ii) corresponding rates, other 

22 charges, or new service tariff charges, re23 spectively, imposed for rail transportation 

24 in areas where there is a significant level 

25 of competition among the rail carriers.’’. 


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1 (2) CLERICAL AMENDMENT.—The chapter anal2 ysis for chapter 105 is amended by inserting after 

3 the item relating to section 10502 the following: 

‘‘10503. Areas of inadequate rail competition’’. 

4 (b) STUDY AND REPORT ON AREAS OF INADEQUATE

5 RAIL COMPETITION.— 

6 (1) STUDY REQUIRED.—The Rail Customer Ad7 vocate of the Department of Agriculture shall carry 

8 out a study of the process provided under section 

9 10503 of title 49, United States Code (as added by 

10 subsection (a)), for challenging and remedying con11 ditions described in subsection (b) of such section in 

12 States and parts of States designated under such 

13 section as areas of inadequate rail competition inso14 far as such conditions adversely affect rail shippers 

15 of agricultural or forestry commodities and products. 

16 (2) FINDINGS ON EFFECTIVENESS OF PROC17 ESS.—The Rail Customer Advocate shall make find18 ings, on the basis of the study under paragraph (1), 

19 regarding the effectiveness of the process for rem20 edying the conditions studied, particularly in the 

21 case of customers that ship agricultural or forestry 

22 commodities and products by rail in annual volumes 

23 of 1,500 rail cars or less. 

24 (3) REPORT.—Not later than 3 years after the 

25 date of the enactment of this Act, the Rail Customer 


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1 Advocate shall submit to Congress a report on the 

2 results of the study under paragraph (1), including 

3 the findings required under paragraph (2). 

4 TITLE II—RAIL SERVICE 

5 SEC. 201. RAIL SERVICE. 

6 (a) PUBLIC NOTICE.—The Board shall, within 7 days 

7 after receipt of a formal or informal complaint by the 

8 Board or any Member or staff of the Board, post on the 

9 Board’s internet web site information identifying the rail10 road in question, the general geographic area of the cus11 tomer’s movement, a general description of the service 

12 complaint, the date upon which the service problem oc13 curred and the date notice of the service complaint was 

14 made to the Board, any Member or staff of the Board. 

15 The Board shall not identify the rail customer, unless the 

16 customer has consented in writing to the release of this 

17 information. When and if the service complaint is resolved, 

18 whether or not by action of the Board or any Member 

19 or staff of the Board, the Board shall amend the informa20 tion posted to indicate that the service complaint has been 

21 resolved, the means of its resolution, and the date of its 

22 resolution. 

23 (b) ANNUAL REPORT TO CONGRESS.—The Board 

24 shall, by March 15th of each year, file with Congress, and 

25 post on its internet web site, a comprehensive report on 


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1 the service complaints received in the previous calendar 

2 year for each Class I railroad, including all of the informa3 tion posted for such service complaints on the internet web 

4 site of the Board. 

5 (c) TIME LIMIT ON PETITIONS FOR INJUNCTIVE RE6 LIEF.—Section 721 is amended by adding at the end the 

7 following: 

8 ‘‘(f) TIME LIMIT ON PETITIONS FOR INJUNCTIVE

9 RELIEF.—If a complaint is filed and injunctive or similar 

10 relief is sought within 20 days after the publication of a 

11 new or revised rail rate, rule, or practice, based on an alle12 gation of unlawfulness other than an allegation that a rate 

13 level is not reasonable within the meaning of section 

14 10701(d) of this title, the Board shall determine whether 

15 or not to grant the requested relief within 90 days of re16 ceiving the request. If the moving party establishes that 

17 the rule of practice complained of is unlawful per se, there 

18 shall be a strong presumption of irreparable harm regard19 less of the availability of monetary relief. If the Board de20 nies injunctive or similar relief based in whole or in part 

21 on the absence of irreparable harm due to the availability 

22 of adequate monetary relief, then the Board may award 

23 requested monetary damages to the complaining party if 

24 that party prevails in its complaint.’’. 


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1 TITLE III—REASONABLE RATES 

2 FOR CAPTIVE RAIL CUSTOMERS 

3 SEC. 301. ARBITRATION OF CERTAIN RAIL RATE, SERVICE, 

4 AND OTHER DISPUTES. 

5 (a) IN GENERAL.— 

6 (1) AUTHORITY.—Chapter 117 is amended by 

7 adding at the end the following: 

8 ‘‘§ 11708. Arbitration of certain rail rate, service, and 

9 other disputes 

10 ‘‘(a) ELECTION OF ARBITRATION.—A dispute de11 scribed in subsection (b) shall be submitted for resolution 

12 by arbitration upon the election of any party to the dispute 

13 that is not a rail carrier. 

14 ‘‘(b) COVERED DISPUTES.— 

15 ‘‘(1) IN GENERAL.—Except as provided in para16 graph (2), subsection (a) applies to any dispute be17 tween a party described in subsection (a) and a rail 

18 carrier that— 

19 ‘‘(A) arises under section 10701(c), 

20 10701(d), 10702, 10704(a)(1), 10707, 10741, 

21 10745, 10746, 11101(a), 11102, 11121, 11122, 

22 or 11706 of this title; and 

23 ‘‘(B) involves— 

24 ‘‘(i) the payment of money; 


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1 ‘‘(ii) a rate or charge imposed by the 

2 rail carrier; or 

3 ‘‘(iii) transportation or other service 

4 by the rail carrier. 

5 ‘‘(2) EXCEPTION.—Subsection (a) does not 

6 apply to a dispute if the resolution of the dispute 

7 would necessarily involve the promulgation of regula8 tions generally applicable to all rail carriers. 

9 ‘‘(c) ARBITRATION PROCEDURES.—The Secretary of 

10 Transportation shall prescribe in regulations the proce11 dures for the resolution of disputes submitted for arbitra12 tion under subsection (a). The regulations shall include 

13 the following: 

14 ‘‘(1) Procedures, including time limits, for the 

15 selection of an arbitrator or panel of arbitrators for 

16 a dispute from among arbitrators listed on the ros17 ter of arbitrators established and maintained by the 

18 Secretary under subsection (d)(1). 

19 ‘‘(2) Policies, requirements, and procedures for 

20 the compensation of each arbitrator for a dispute to 

21 be paid by the parties to the dispute. 

22 ‘‘(3) Procedures for expedited arbitration of a 

23 dispute, including procedures for discovery author24 ized in the exercise of discretion by the arbitrator or 

25 panel of arbitrators. 


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1 ‘‘(d) SELECTION OF ARBITRATORS.— 

2 ‘‘(1) IN GENERAL.—The Secretary of Transpor3 tation shall establish, maintain, and revise as nec4 essary a roster of arbitrators who— 

5 ‘‘(A) are experienced in transportation or 

6 economic issues within the jurisdiction of the 

7 Board or issues similar to those issues; 

8 ‘‘(B) satisfy requirements for neutrality 

9 and other qualification requirements prescribed 

10 by the Secretary; 

11 ‘‘(C) consent to serve as arbitrators under 

12 this section; and 

13 ‘‘(D) are not officers or employees of the 

14 United States. 

15 ‘‘(2) SMALLER DISPUTES.—For a dispute in16 volving an amount not in excess of $1,000,000, the 

17 regulations under subsection (c) shall provide for ar18 bitration by a single arbitrator who— 

19 ‘‘(A) is selected by the parties to the dis20 pute; or 

21 ‘‘(B) if the parties cannot agree, is selected 

22 by the Secretary from among the arbitrators 

23 listed on the roster of arbitrators under para24 graph (1). 

25 ‘‘(3) LARGER DISPUTES.— 


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1 ‘‘(A) For a dispute involving an amount in 

2 excess of $1,000,000, the regulations under 

3 subsection (c) shall provide for arbitration by a 

4 panel of three arbitrators selected as follows: 

5 ‘‘(i) One arbitrator selected by the 

6 party electing the arbitration. 

7 ‘‘(ii) One arbitrator selected by the 

8 rail carrier or all of the rail carriers who 

9 are parties to the dispute, as the case may 

10 be. 

11 ‘‘(iii) One arbitrator selected by the 

12 two arbitrators selected under clauses (i) 

13 and (ii). 

14 ‘‘(B) If a selection of an arbitrator is not 

15 made under clause (ii) or (iii) of subparagraph 

16 (A) within the time limits prescribed in the reg17 ulations, then the Secretary shall select the ar18 bitrator from among the arbitrators listed on 

19 the roster of arbitrators under paragraph (1). 

20 ‘‘(e) DISPUTES OVER RATES OR CHARGES.— 

21 ‘‘(1) LIMITATION.—The requirements of this 

22 subsection apply to a dispute submitted under this 

23 section concerning a rate or charge imposed by a rail 

24 carrier. 

25 ‘‘(2) AWARDS.— 


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1 ‘‘(A) Subject to subparagraph (B), the de2 cision of an arbitrator or panel of arbitrators in 

3 a dispute on an issue described in paragraph 

4 (1) shall be the final offer of one of the parties 

5 to the dispute. 

6 ‘‘(B) A decision under subparagraph (A) 

7 may not provide for a rate for transportation by 

8 a rail carrier that would result in a revenue9 variable cost percentage for such transportation 

10 that is less than 180 percent, as determined 

11 under standards applied in the administration 

12 of section 10707(d). 

13 ‘‘(3) RATE AND CHARGE DISPUTES.—If the 

14 party electing arbitration of a dispute described in 

15 paragraph (1) seeks compensation for damages in16 curred by the party as a result of a specific rate or 

17 charge imposed by a rail carrier for the transpor18 tation of items for the party and the party alleges 

19 an amount of damages that does not exceed 

20 $500,000 for any year as a result of the imposition 

21 of the specific rate or charge, the arbitrator, in mak22 ing a decision on the dispute, shall consider the 

23 rates or charges, respectively, that are imposed by 

24 rail carriers for the transportation of similar items 

25 under similar circumstances in rail transportation 


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1 markets where there is effective competition, as de2 termined under standards applied by the Board in 

3 the administration of section 10707(a). 

4 ‘‘(f) TIME FOR ISSUANCE OF ARBITRATION DECI5 SION.—Notwithstanding any other provision of this sub6 title limiting the time for the taking of an action under 

7 this subtitle, the arbitrator or panel of arbitrators for a 

8 dispute submitted for resolution under this section shall 

9 issue a final decision on the dispute within the maximum 

10 period after the date on which the arbitrator or panel is 

11 selected to resolve the dispute under this section, as fol12 lows: 

13 ‘‘(1) In the case of a dispute involving 

14 $1,000,000 or less, 120 days. 

15 ‘‘(2) In the case of a dispute involving more 

16 than $1,000,000, 180 days. 

17 ‘‘(g) AUTHORIZED RELIEF.—A decision of an arbi18 trator or panel of arbitrators under this section shall grant 

19 relief in either or both of the following forms: 

20 ‘‘(1) Monetary damages, to the extent author21 ized to be provided by the Board in such a dispute 

22 under this subtitle. 

23 ‘‘(2) An order that requires specific perform24 ance under any applicable law, including any law 

25 limiting rates to reasonable rates, for any period not 


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1 in excess of 2 years beginning on the date of the de2 cision. 

3 ‘‘(h) JUDICIAL CONFIRMATION AND REVIEW.—The 

4 following provisions of title 9 shall apply to an arbitration 

5 decision issued in a dispute under this section: 

6 ‘‘(1) Section 9 (relating to confirmation of an 

7 award in an arbitration decision), which shall be ap8 plied as if the parties had entered into an agreement 

9 under title 9 to submit the dispute to the arbitration 

10 and had provided in that agreement for a judgment 

11 of an unspecified court to be entered on the award 

12 made pursuant to the arbitration. 

13 ‘‘(2) Section 10 (relating to judicial vacation of 

14 an award in an arbitration decision).’’. 

15 (2) CLERICAL AMENDMENT.—The chapter anal16 ysis for chapter 117 is amended by inserting after 

17 the item relating to section 11707 the following: The 

18 table of sections at the beginning of such chapter is 

19 amended by inserting after the item relating to sec20 tion 11707 the following: 

‘‘11708. Arbitration of certain rail rate, service, and other disputes’’. 

21 (b) TIME FOR IMPLEMENTING CERTAIN REQUIRE22 MENTS.—Not later than 180 days after the date of the 

23 enactment of this Act, the Secretary of Transportation 

24 shall promulgate regulations, prescribe a roster of arbitra25 tors, and complete any other action that is necessary for 


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1 the implementation of section 11708 of title 49, United 

2 States Code (as added by subsection (a)). 

3 SEC. 302. FILING FEES ON PETITIONS FOR CAPTIVE RATE 

4 RELIEF. 

5 Section 721 is amended by adding at the end the fol6 lowing: 

7 ‘‘(f) LIMITATION ON FEES.—The Board may not 

8 charge a fee for the filing of a complaint, protest, or other 

9 request for relief in an amount greater than fees charged 

10 by district courts of the United States for a comparable 

11 filing.’’. 

12 SEC. 303. RATE REASONABLENESS. 

13 Section 10701(d) is amended by adding at the end 

14 the following: 

15 ‘‘(4)(A) Not later than one year after the date of en16 actment of the Railroad Competition Act of 2006, the 

17 Board shall adopt an alternative method for determining 

18 the reasonableness of rail rates using the railroad’s actual 

19 costs, including a portion of fixed costs and an adequate 

20 return on equity. The method shall permit a final deter21 mination within nine months of filing a complaint, shall 

22 ensure that necessary cost, financial and operational infor23 mation is available, and shall not require excessive litiga24 tion costs. 


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1 ‘‘(B) The Board may not, on or after the date of en2 actment of that Act, use any method for determining the 

3 reasonableness of challenged rail rates based on the costs 

4 of a hypothetical competitor, except in a proceeding pend5 ing on the date of enactment of that Act or where the 

6 complainant so elects. The simplified and expedited meth7 od for determining the reasonableness of challenged rail 

8 rates provided for in paragraph (3) shall remain available 

9 at the election of qualifying complainants. 

10 ‘‘(C) The Board shall adopt a method for applying 

11 the ‘phasing constraint’ in its existing rail rate method 

12 so that it can be practically administered without substan13 tial litigation-related costs in any proceeding involving a 

14 challenge to a rail rate in which the Board determines that 

15 the phasing constraint applies. 

16 ‘‘(5) Upon a challenge made by a shipper to the rea17 sonableness of any rate established by a rail carrier in ac18 cordance with subsection (c) or section 11101(a), the 

19 Board shall determine the reasonableness of the rate with20 out regard to whether— 

21 ‘‘(A) the rate is for part of a movement between 

22 a point of origin and a destination; 

23 ‘‘(B) the shipper has made arrangements for 

24 transportation for any other part of that movement; 

25 or 


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1 ‘‘(C) the shipper currently has a contract with 

2 a rail carrier for any part of the rail traffic involved, 

3 except that any rate prescribed by the Board shall 

4 not apply to transportation covered by such a con5 tract.’’. 

6 TITLE IV—MISCELLANEOUS 

7 SEC. 401. RAIL CUSTOMER ADVOCATE IN THE DEPART8 MENT OF AGRICULTURE. 

9 (a) PARTICIPATION OF RAIL CUSTOMER ADVOCATE

10 IN STB PROCEEDINGS.— 

11 (1) AUTHORITY AND RESPONSIBILITIES.— 

12 Chapter 105, as amended by section 105 of this Act, 

13 is further amended by adding at the end the fol14 lowing: 

15 ‘‘§ 10504. Participation of Rail Customer Advocate in 

16 Board proceedings 

17 ‘‘(a) AUTHORITY.—The following persons are author18 ized to petition the Board for an exercise of authority of 

19 the Board regarding rail transportation of any agricul20 tural or forestry commodity or product, and to participate 

21 in any proceeding of the Board regarding rail transpor22 tation of such a commodity or product: 

23 ‘‘(1) The Rail Customer Advocate of the De24 partment of Agriculture. 


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1 ‘‘(2) Any official of the government of a State 

2 whose functions are the same as or similar to the 

3 functions of the Rail Customer Advocate of the De4 partment of Agriculture. 

5 ‘‘(b) CONSIDERATION OF PRESENTATIONS BY ADVO6 CATE.— 

7 ‘‘(1) The Board shall accord significant persua8 sive weight to any material evidence, proposal, or 

9 view that is presented by an official referred to in 

10 subsection (a) with respect to rail transportation of 

11 an agricultural or forestry commodity or product. 

12 ‘‘(2) In disposing of any matter before the 

13 Board in which an official referred to in subsection 

14 (a) has participated under the authority of such sub15 section, the Board shall present in writing a detailed 

16 explanation of any disagreement of the Board with 

17 matters presented to the Board by that official.’’. 

18 (2) CLERICAL AMENDMENT.—The chapter anal19 ysis for chapter 105, as amended by section 105, is 

20 further amended by inserting after the item relating 

21 to section 10503 the following: 

‘‘10504. Participation of Rail Customer Advocate in Board proceedings’’. 

22 (b) ESTABLISHMENT AND DUTIES.— 

23 (1) IN GENERAL.—Subtitle I of title II of the 

24 Department of Agriculture Reorganization Act of 


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1 1994 (7 U.S.C. 7005) is amended by adding at the 

2 end the following: 

3 ‘‘SEC. 286. RAIL CUSTOMER ADVOCATE. 

4 ‘‘(a) ESTABLISHMENT OF OFFICE.—There is estab5 lished within the Department an Office of Rail Customer 

6 Advocacy. 

7 ‘‘(b) RAIL CUSTOMER ADVOCATE.— 

8 ‘‘(1) APPOINTMENT.—The Secretary shall ap9 point the Rail Customer Advocate. 

10 ‘‘(2) HEAD OF OFFICE.—The Rail Customer 

11 Advocate is the head of the Office of Rail Customer 

12 Advocacy. 

13 ‘‘(c) FUNCTIONS.—The Rail Customer Advocate has 

14 the following functions: 

15 ‘‘(1) PARTICIPATION IN STB PROCEEDINGS.— 

16 To participate as a party in proceedings of the Sur17 face Transportation Board on petitions for action by 

18 the Board regarding the regulation of rail transpor19 tation of agricultural or forestry commodities or 

20 products, and to initiate any such action. 

21 ‘‘(2) COMPILATION OF INFORMATION.—To col22 lect, compile, and maintain information regarding 

23 the cost and efficiency of rail transportation of agri24 cultural commodities and products and forestry com25 modities and products. 


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1 ‘‘(3) STUDIES.—To perform studies regarding 

2 rail transportation of agricultural commodities and 

3 products and forestry commodities and products. 

4 ‘‘(d) ACCESS TO STB INFORMATION.—To carry out 

5 the functions under subsection (c), the Rail Customer Ad6 vocate shall have access to information, including data7 bases, of the Surface Transportation Board.’’. 

8 (2) CONFORMING AMENDMENTS.—Section 

9 296(b) of the Department of Agriculture Reorga10 nization Act of 1994 (7 U.S.C. 7014(b)) is amend11 ed— 

12 (A) by striking ‘‘or’’ after the semicolon in 

13 paragraph (4); 

14 (B) by striking ‘‘218.’’ in paragraph (5) 

15 and inserting ‘‘218; or’’; and 

16 (C) by adding at the end the following: 

17 ‘‘(6) the establishment of the Office of Rail 

18 Consumer Advocacy of the Department under sec19 tion 286.’’. 

20 SEC. 402. STUDY OF COMPETITION AMONG RAIL CARRIERS. 

21 (a) REQUIREMENT FOR STUDY.—Chapter 101 is 

22 amended by adding at the end the following: 


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1 ‘‘§ 10103. Study of rail carrier competition and proc2 esses of the Board 

3 ‘‘(a) REQUIREMENT FOR STUDY.—Within 2 years 

4 after the date of enactment of the Railroad Competition 

5 Act of 2006, the Secretary of Transportation shall conduct 

6 a comprehensive study of rail carrier competition and the 

7 processes of the Board, after consulting with the Depart8 ment of Justice, the Department of Energy, the Depart9 ment of Defense, the Department of Agriculture, rail 

10 users and railroads. The study shall include an assessment 

11 of— 

12 ‘‘(1) the availability of effective competitive op13 tions among and between rail carriers; 

14 ‘‘(2) the effectiveness of the processes of the 

15 Board, including the process used for determining 

16 the reasonableness of rates of rail carriers; 

17 ‘‘(3) the availability to rail users of effective 

18 regulatory dispute resolution options; 

19 ‘‘(4) the Board’s implementation of the Rail20 road Competition Act of 2006; and 

21 ‘‘(5) the overall level of rail-to-rail competition 

22 in serving rail users in the United States. 

23 ‘‘(b) REPORT TO CONGRESS.—Not later than Novem24 ber 15 of the year in which the study is conducted under 

25 subsection (a), the Secretary shall submit a report on the 


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1 results of the study to Congress. The report shall in2 clude— 

3 ‘‘(1) the Secretary’s assessment of the overall 

4 level of rail-to-rail competition in the rail carrier in5 dustry in the United States; 

6 ‘‘(2) the markets that have limited rail-to-rail 

7 competition; 

8 ‘‘(3) recommendations for enhancing rail-to-rail 

9 competition, particularly in markets identified as 

10 having limited rail-to-rail competition; 

11 ‘‘(4) an assessment of the Board’s performance 

12 of its purpose to promote and enhance competition 

13 among and between railroads by— 

14 ‘‘(A) implementing the provisions and poli15 cies of the Railroad Competition Act of 2006; 

16 ‘‘(B) addressing complaints regarding 

17 rates, charges, and service; and 

18 ‘‘(C) promulgating regulations of general 

19 applicability or taking other actions; 

20 ‘‘(5) recommendations for modification of any 

21 of the decisions of the Board (or decisions of the 

22 former Interstate Commerce Commission continuing 

23 in effect) or for modification of the general authority 

24 or jurisdiction of the Board; and 


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1 ‘‘(6) any other findings, analyses, assessments, 

2 and recommendations that result from the study. 

3 ‘‘(c) UPDATES.—The Secretary shall update the 

4 study every 3 years after the initial study is completed 

5 and report the results to the Congress.’’. 

6 (b) CLERICAL AMENDMENT.—The chapter analysis 

7 for chapter 101 is amended by inserting after the item 

8 relating to section 10102 the following: 

‘‘10103. Periodic study of rail carrier competition and processes of the Board’’. 

Æ 


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