II 

110TH CONGRESS 

1ST SESSION S. 953 

To amend title 49, United States Code, to ensure competition in the rail 

industry, enable rail customers to obtain reliable rail service, and provide 

those customers with a reasonable process for challenging rate and service disputes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 21, 2007 

Mr. ROCKEFELLER (for himself, Mr. CRAIG, Mr. DORGAN, Mr. VITTER, Ms. 

KLOBUCHAR, Mr. TESTER, Ms. LANDRIEU, Mr. CRAPO, Mr. BAUCUS, 

and Ms. CANTWELL) 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 ensure competition 

in the rail industry, enable rail customers to obtain reliable rail service, and provide those customers with a 

reasonable process for challenging rate and service disputes. 

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; TABLE OF CONTENTS. 

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

5 ‘‘Railroad Competition and Service Improvement Act of 

6 2007’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References to title 49, United States Code. 

TITLE I—ENSURING COMPETITION IN THE RAIL INDUSTRY 

Sec. 101. Clarification of rail transportation policy and directives for implementation. 

Sec. 102. Requirement for railroads to provide rates for transportation. 

Sec. 103. Elimination of barriers to competition between class I, class II, and 

class III rail carriers. 

Sec. 104. Reciprocal switching. 

Sec. 105. Areas of inadequate rail competition. 

TITLE II—IMPROVING SERVICE TO RAIL CUSTOMERS 

Sec. 201. Rail service. 

Sec. 202. Railroad obligation to serve. 

Sec. 203. Damages due to the failure of timely delivery. 

Sec. 204. Rail customer advocate. 

TITLE III—PROVIDING ACCESS TO A REASONABLE RATE 

PROCESS 

Sec. 301. Rights of rail customers. 

Sec. 302. Improvement of rate reasonableness standard. 

Sec. 303. Filing fees on petitions for captive rate relief. 

Sec. 304. Arbitration of certain rail rate, service, and other disputes. 

TITLE IV—AUTHORITY TO INVESTIGATE 

Sec. 401. Authority of board to investigate and suspend certain railroad actions. 

3 SEC. 2. REFERENCES TO TITLE 49, UNITED STATES CODE. 

4 Except as otherwise expressly provided, whenever in 

5 this Act an amendment or repeal is expressed in terms 

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

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

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

9 Code. 


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1 TITLE I—ENSURING COMPETI2 TION IN THE RAIL INDUSTRY 

3 SEC. 101. CLARIFICATION OF RAIL TRANSPORTATION POL4 ICY AND DIRECTIVES FOR IMPLEMENTATION. 

5 Section 10101 is amended— 

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

7 ‘‘In’’; and 

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

9 ‘‘(b) IMPLEMENTATION DIRECTIVES.—In imple10 menting subtitle IV, the Board shall— 

11 ‘‘(1) ensure, to the maximum extent possible, 

12 effective competition among rail carriers at origins 

13 and destinations; 

14 ‘‘(2) ensure reasonable rates for rail customers 

15 in the absence of competition; and 

16 ‘‘(3) ensure consistent, efficient, and reliable 

17 rail transportation service for rail customers, includ18 ing the timely provision of rail cars requested by rail 

19 customers.’’. 

20 SEC. 102. REQUIREMENT FOR RAILROADS TO PROVIDE 

21 RATES FOR TRANSPORTATION. 

22 Section 11101(a) is amended— 

23 (1) by inserting ‘‘(1)’’ after ‘‘(A)’’; 

24 (2) by striking ‘‘A rail carrier shall not’’ and in25 serting the following: 


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1 ‘‘(3) A rail carrier may not’’; and 

2 (3) by inserting after paragraph (1) the fol3 lowing: 

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

5 shall establish a rate for transportation and provide serv6 ice requested by the shipper between any 2 points on the 

7 system of that carrier at which traffic originates, termi8 nates, or may reasonably be interchanged. A carrier shall 

9 establish a rate and provide service upon such request 

10 without regard to— 

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

12 system, including terminal areas; 

13 ‘‘(B) whether the rate established is for part of 

14 a movement between a point of origin and a destina15 tion; 

16 ‘‘(C) whether the shipper has made arrange17 ments for transportation for any other part of that 

18 movement; or 

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

20 any rail carrier for part or all of its transportation 

21 needs over the route of movement.’’. 


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1 SEC. 103. ELIMINATION OF BARRIERS TO COMPETITION BE2 TWEEN CLASS I, CLASS II, AND CLASS III RAIL 

3 CARRIERS. 

4 (a) IN GENERAL.—Section 10901 is amended by 

5 adding at the end the following: 

6 ‘‘(e)(1) The Board may not issue a certificate author7 izing an activity described in subsection (a), section 

8 10902, or section 11323, or exempt a person, a class of 

9 persons, a transaction, or a service from the applicability 

10 of this section with respect to such an activity under sec11 tion 10502, if the activity involves a transfer of interest 

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

13 II or Class III rail carrier, and the activity would directly 

14 or indirectly— 

15 ‘‘(A) restrict or limit the ability of the Class II 

16 or Class III rail carrier to interchange traffic with 

17 other rail carriers; 

18 ‘‘(B) restrict or limit competition of rail car19 riers in the region affected by the activity in a man20 ner that would violate antitrust laws of the United 

21 States (notwithstanding any exemption from the ap22 plicability of antitrust laws that is provided under 

23 section 10706 or any other provision of law); or 

24 ‘‘(C) require higher per car interchange rates 

25 for Class II or Class III rail carriers to interchange 

26 traffic with other rail carriers. 


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1 ‘‘(2) Any party to an activity described in paragraph 

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

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

4 the activity to determine whether the activity has resulted 

5 in a restriction described in that paragraph. If the Board 

6 determines, upon review of the activity, that the activity 

7 resulted in such a restriction, the Board shall declare the 

8 restriction to be unlawful and terminate the restriction un9 less the Board determines that the termination of the re10 striction would materially impair the ability of an affected 

11 rail carrier to provide service to the public or would other12 wise be inconsistent with the public interest. 

13 ‘‘(3) In this subsection, the term ‘antitrust laws’ has 

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

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

16 such term also means section 5 of the Federal Trade Com17 mission Act (15 U.S.C. 45) to the extent that section 5 

18 applies to unfair methods of competition.’’. 

19 (b) APPLICABILITY.—Paragraph (2) of section 

20 10901(e), as added by subsection (a), shall apply with re21 spect to any activity referred to in that paragraph for 

22 which the Surface Transportation Board issued a certifi23 cate authorizing the activity under section 10502 before, 

24 on, or after the date of enactment of this Act. 


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1 SEC. 104. RECIPROCAL SWITCHING. 

2 Section 11102(c) is amended— 

3 (1) in paragraph (1)— 

4 (A) by striking ‘‘may require’’ and insert5 ing ‘‘shall require’’; 

6 (B) by striking ‘‘where it finds’’ and in7 serting ‘‘if the Board determines’’; 

8 (C) by striking ‘‘where such’’ and inserting 

9 ‘‘if such’’; and 

10 (D) by striking the second sentence and in11 serting the following: ‘‘The rail carriers enter12 ing into such an agreement shall establish the 

13 conditions and compensation applicable to such 

14 agreement. If the rail carriers cannot agree 

15 upon such conditions and compensation within 

16 a reasonable period of time, the Board shall es17 tablish such conditions and compensation.’’; and 

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

19 ‘‘(3) In making any finding under paragraph (1), the 

20 Board may not require evidence of anticompetitive conduct 

21 by a rail carrier from which access is sought.’’. 

22 SEC. 105. AREAS OF INADEQUATE RAIL COMPETITION. 

23 (a) DESIGNATION AND REMEDIES.— 

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

25 adding at the end the following: 


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1 ‘‘§ 10503. Areas of inadequate rail competition 

2 ‘‘(a) IN GENERAL.—The Board shall designate any 

3 State or substantial part of a State as an area of inad4 equate rail competition after finding that— 

5 ‘‘(1) the State or substantial part of the State 

6 encompasses rail shipping origins and destinations 

7 that are served exclusively by 1 Class I railroad; and 

8 ‘‘(2) persons that ship by rail or receive rail 

9 shipments in the State or substantial part of the 

10 State— 

11 ‘‘(A) pay rates for the rail shipments that 

12 exceed the rates necessary to yield recovery by 

13 the rail carrier of 180 percent of revenue-vari14 able costs, as determined under standards ap15 plied in the administration of section 10707(d); 

16 or 

17 ‘‘(B) have experienced competitive dis18 advantage in the marketplace or other economic 

19 adversity because of high cost or poor quality of 

20 rail service in the State, or in a substantial part 

21 of the State. 

22 ‘‘(b) SPECIFIC COMMODITIES.—An area of inad23 equate rail competition may be composed of the facilities 

24 of a group of shippers or receivers of 1 or more specific 

25 commodities within a geographic area. 


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1 ‘‘(c) AUTHORIZED PETITIONERS.—A Governor of a 

2 State is authorized to petition the Board for a designation 

3 of the State, or of a substantial part of the State, as an 

4 area of inadequate rail competition. 

5 ‘‘(d) ACTIONS.—Not later than 60 days after desig6 nating a State, or substantial part of a State, as an area 

7 of inadequate rail competition, the Board shall resolve the 

8 conditions described in subsection (a) that justify the des9 ignation. In taking such action, the Board may not require 

10 rates lower than those necessary to yield recovery of 180 

11 percent of revenue-variable costs. In addition to providing 

12 other remedies authorized by law, the Board may order 

13 any of the following actions: 

14 ‘‘(1) Provision of reciprocal switching as pro15 vided for in section 11102(c) and terminal trackage 

16 rights beyond the limits specified in section 

17 11102(a). 

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

19 a rail carrier to or from facilities that such carrier 

20 physically serves on behalf of another rail carrier, 

21 for a fee prescribed by the Board. 

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

23 within or connected to the area of inadequate rail 

24 competition on which rail service is susceptible to 


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1 delay or interruption due to traffic congestion, expe2 dited final offer arbitration under section 11708(e). 

3 ‘‘(4) Expedited review of whether a rate violates 

4 the prohibition against discriminatory rates con5 tained in section 10741, without regard to sub6 section (b)(2) of such section. 

7 ‘‘(e) PROCEDURES.—In the case of a petition for an 

8 order for reciprocal switching or terminal trackage rights 

9 under subsection (d)(1), the Board may not require that 

10 there be evidence of anticompetitive conduct by a rail car11 rier as a prerequisite for ordering such action.’’. 

12 (2) CLERICAL AMENDMENT.—The table of sec13 tions at the beginning of chapter 105 is amended by 

14 adding at the end the following new item: 

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

15 (b) STUDY ON AREAS OF INADEQUATE RAIL COM16 PETITION.—Not later than 1 year after the date of the 

17 enactment of this Act, the Rail Customer Advocate of the 

18 Department of Transportation shall— 

19 (1) review the effectiveness of the procedures 

20 under section 10503 for challenging and remedying 

21 conditions adversely affecting rail shippers of agri22 cultural and forestry commodities and products, in23 cluding commodities and products shipped by rail in 

24 annual volumes of 1,500 rail cars or less, and the 

25 applicability of such procedures for ameliorating rail 


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1 rate and service problems, in areas of inadequate 

2 rail competition; and 

3 (2) report the results of the study to Congress, 

4 including any recommendations that the Rail Cus5 tomer Advocate may have for improving the proce6 dures. 

7 TITLE II—IMPROVING SERVICE 

8 TO RAIL CUSTOMERS 

9 SEC. 201. RAIL SERVICE. 

10 (a) PUBLIC NOTICE.— 

11 (1) IN GENERAL.—Not later than 7 days after 

12 receipt by the Surface Transportation Board, or any 

13 member or staff of the Board, of a complaint from 

14 a customer about rail service, the Board shall post 

15 a description of the complaint on the Board’s Inter16 net website, including— 

17 (A) information identifying the railroad or 

18 railroads providing the service that is the sub19 ject of the complaint; 

20 (B) the general geographic area of the cus21 tomer’s movement; 

22 (C) the date upon which the service prob23 lem occurred; and 


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1 (D) the date notice of the complaint was 

2 made to the Board or any member or staff of 

3 the Board. 

4 (2) The Internet posting shall identify the rail 

5 customer only upon the written consent of the rail 

6 customer. Not later than 5 days after the date the 

7 complaint is resolved, the Board shall update the in8 formation posted on the Board’s Internet website to 

9 indicate that the complaint has been resolved, the 

10 means of its resolution, and the date of its resolu11 tion. 

12 (b) ANNUAL REPORT TO CONGRESS.— 

13 (1) IN GENERAL.—Not later than March 15, 

14 2008, and annually thereafter, the Surface Trans15 portation Board shall submit to Congress a report 

16 regarding the service complaints received by the 

17 Board, or any member or staff of the Board, in the 

18 previous calendar year for each Class I railroad. 

19 (2) CONTENTS.—Each report submitted under 

20 paragraph (1) shall include a description of each 

21 service complaint, including— 

22 (A) information identifying the railroad in 

23 question; 

24 (B) the geographic area of the customer’s 

25 movements; 


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1 (C) the date on which the service problem 

2 occurred; 

3 (D) the date notice of the service com4 plaint was made to the Board, or any member 

5 or staff of the Board; and 

6 (E) the date of, and a detailed description 

7 of, the resolution of the complaint. 

8 (3) PUBLICATION.—A copy of the report sub9 mitted under paragraph (1) shall be posted on the 

10 Board’s Internet website. 

11 (c) TIME LIMITS ON PETITIONS FOR INJUNCTIVE

12 RELIEF.—Section 721(b) is amended— 

13 (1) by redesignating paragraphs (1) through 

14 (4) as subparagraphs (A) through (D); 

15 (2) by inserting ‘‘(1)’’ before ‘‘The Board 

16 may’’; and 

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

18 ‘‘(2)(A) If, not later than 20 days after the publica19 tion of a new or revised rail rate, rule, or practice, a com20 plaint is filed, and injunctive or similar relief is sought, 

21 based on an allegation of unlawfulness (other than an alle22 gation that a rate level is not reasonable within the mean23 ing of section 10701(d)), the Board, not later than 90 

24 days after receiving such a complaint, shall determine, 


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1 based on applicable law, whether or not to grant the relief 

2 sought. 

3 ‘‘(B) If the party requesting relief establishes that the 

4 rule or practice involved in the complaint is unlawful per 

5 se, there shall be a strong presumption of irreparable 

6 harm regardless of the availability of monetary relief. 

7 ‘‘(C) The Board may not deny injunctive or similar 

8 relief based in whole or in part on the absence of irrep9 arable harm due to the availability of adequate monetary 

10 relief unless monetary damages have been awarded to the 

11 complaining party.’’. 

12 SEC. 202. RAILROAD OBLIGATION TO SERVE. 

13 Section 11101(a) is amended by inserting ‘‘The 

14 transportation provided shall be reliable and efficient.’’ 

15 after ‘‘on reasonable request.’’. 

16 SEC. 203. DAMAGES DUE TO THE FAILURE OF TIMELY DE17 LIVERY. 

18 Section 11704(b) is amended by inserting ‘‘, includ19 ing damages due to the failure of timely delivery’’ after 

20 ‘‘violation of this part’’. 

21 SEC. 204. RAIL CUSTOMER ADVOCATE. 

22 (a) AMENDMENT.—Subchapter II of chapter 7 is 

23 amended— 

24 (1) by redesignating section 727 as section 728; 

25 and 


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1 (2) by inserting after section 726 the following: 

2 ‘‘§ 727. Office of Rail Customer Advocacy 

3 ‘‘(a) IN GENERAL.—There is established, within the 

4 Department of Transportation, the Office of Rail Cus5 tomer Advocacy. 

6 ‘‘(b) RAIL CUSTOMER ADVOCATE.—The Office of 

7 Rail Customer Advocacy shall be headed by the Rail Cus8 tomer Advocate, who shall be appointed in the competitive 

9 service by the Secretary of Transportation, in consultation 

10 with the Secretary of Agriculture. 

11 ‘‘(c) DUTIES AND POWERS OF RAIL CUSTOMER AD12 VOCATE.—The Rail Customer Advocate shall— 

13 ‘‘(1) accept rail customer complaints; 

14 ‘‘(2) participate as a party in proceedings of the 

15 Board on petitions for action by the Board regard16 ing the regulation of rail transportation, and may 

17 initiate such an action; 

18 ‘‘(3) collect, compile, and maintain information 

19 regarding the cost and efficiency of rail transpor20 tation; and 

21 ‘‘(4) carry out other duties and powers pre22 scribed by the Board. 

23 ‘‘(d) ACCESS TO INFORMATION.—The Rail Customer 

24 Advocate shall have access to information, including dataVerDate Aug 31 2005 00:49 Mar 24, 2007 Jkt 059200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S953.IS S953

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1 bases, of the Board to carry out the duties and powers 

2 under subsection (c).’’. 

3 (b) CLERICAL AMENDMENT.—The table of sections 

4 at the beginning of chapter 7 is amended by striking the 

5 item relating to section 727 and inserting the following: 

‘‘727. Office of Rail Customer Advocacy. 

‘‘728. Definitions.’’. 

6 TITLE III—PROVIDING ACCESS 

7 TO A REASONABLE RATE 

8 PROCESS 

9 SEC. 301. RIGHTS OF RAIL CUSTOMERS. 

10 (a) IN GENERAL.—Chapter 107 is amended by in11 serting before section 10701 the following: 

12 ‘‘§ 10700. Rights of rail customers 

13 ‘‘Rail customers that are subject to railroad market 

14 dominance shall have a right of access to a process main15 tained by the Board for determining if the rate in question 

16 is reasonable. The Board shall ensure that the process is 

17 accessible by all affected rail customers and is cost effec18 tive.’’. 

19 (b) CLERICAL AMENDMENT.—The table of sections 

20 for chapter 107 is amended by inserting before the item 

21 relating to section 10701 the following: 

‘‘10700. Rights of rail customers.’’. 


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1 SEC. 302. IMPROVEMENT OF RATE REASONABLENESS 

2 STANDARD. 

3 (a) IN GENERAL.—Section 10701(d) is amended by 

4 adding at the end the following: 

5 ‘‘(4)(A) Not later than 1 year after the date of the 

6 enactment of this paragraph, the Board shall adopt a 

7 method for determining the reasonableness of rail rates 

8 based on the railroad’s actual costs, including a portion 

9 of fixed costs and an adequate return on debt and equity. 

10 The method adopted— 

11 ‘‘(i) shall permit a final determination not later 

12 than 9 months after a complaint is filed; 

13 ‘‘(ii) shall ensure that necessary cost and oper14 ational information is available to the complainant; 

15 ‘‘(iii) shall not require excessive litigation costs; 

16 and 

17 ‘‘(iv) shall require, upon a showing by the ship18 per of market dominance (as defined in section 

19 10707), that the rail carrier prove that the chal20 lenged rate is reasonable. 

21 ‘‘(B) The Board may not use any method for deter22 mining the reasonableness of rail rates based on the costs 

23 of a hypothetical competitor, except that, in any rate rea24 sonableness proceeding filed before the method required 

25 under subparagraph (A) is adopted, the complaint, upon 

26 the election of the complainant, shall be decided based on 


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1 applicable rate standards in effect on the date of the filing, 

2 including small shipper rate guidelines. 

3 ‘‘(C) The Board shall adopt a method under this 

4 paragraph that applies the ‘phasing constraint’ in its ex5 isting rail rate method so that it can be practically admin6 istered without substantial litigation-related costs in any 

7 proceeding involving a challenge to a rail rate in which 

8 the Board determines that the phasing constraint applies. 

9 ‘‘(5) Upon receiving notification of a challenge made 

10 by a shipper to the reasonableness of any rate established 

11 by a rail carrier, the Board shall determine the reasonable12 ness of the rate without regard to— 

13 ‘‘(A) whether the rate is for part of a movement 

14 between a point of origin and a destination; 

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

17 movement; or 

18 ‘‘(C) any other contract the shipper has with a 

19 rail carrier for any part of the rail traffic involved.’’. 

20 (b) DEFINITION OF MARKET DOMINANCE.—Section 

21 10707(a) is amended to read as follows: 

22 ‘‘(a) In this section, ‘market dominance’ exists if a 

23 complainant shipper demonstrates that the challenged rate 

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1 portation to which the rate applies that is not less than 

2 180 percent.’’. 

3 SEC. 303. 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. 304. ARBITRATION OF CERTAIN RAIL RATE, SERVICE, 

13 AND OTHER DISPUTES. 

14 (a) IN GENERAL.—Chapter 117 is amended by add15 ing at the end the following: 

16 ‘‘§ 11708. Arbitration of certain rail rate, service, and 

17 other disputes 

18 ‘‘(a) ELECTION OF ARBITRATION.—A dispute de19 scribed in subsection (b) shall be submitted for resolution 

20 by arbitration upon the election of any party to the dis21 pute. 

22 ‘‘(b) COVERED DISPUTES.—(1) Except as provided 

23 in paragraph (2), subsection (a) shall apply to any dispute 

24 between a party and a rail carrier that— 


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1 ‘‘(A) arises under section 10701(c), 10701(d), 

2 10702, 10704(a)(1), 10707, 10741, 10745, 10746, 

3 11101(a), 11102, 11121, 11122, or 11706; 

4 ‘‘(B) involves the transportation of any agricul5 tural product, including timber, paper, and fertilizer; 

6 and 

7 ‘‘(C) involves— 

8 ‘‘(i) the payment of money; 

9 ‘‘(ii) a rate or charge imposed by the rail 

10 carrier; or 

11 ‘‘(iii) transportation or other service by the 

12 rail carrier. 

13 ‘‘(2) Subsection (a) shall not apply to a dispute if 

14 the resolution of the dispute would necessarily involve the 

15 promulgation of regulations generally applicable to all rail 

16 carriers. 

17 ‘‘(c) ARBITRATION PROCEDURES.—Not later than 1 

18 year after the effective date of this section, the Board shall 

19 promulgate regulations governing voluntary arbitration 

20 that are consistent with the provisions of this section. 

21 Such modifications shall include the following: 

22 ‘‘(1) Arbitration shall be mandatory if either 

23 party elects arbitration in lieu of filing a formal or 

24 informal complaint before the Board. Challenges to 

25 the reasonableness of rail rates or charges may not 


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1 be subjected to arbitration at the sole election of a 

2 rail carrier imposing such rates or charges. 

3 ‘‘(2) Arbitration shall be before an administra4 tive law judge of the Board, or arranged for by the 

5 Board, unless the parties to the arbitration each se6 lect an arbitrator and the 2 selected arbitrators 

7 agree on a third arbitrator from a list of neutral ar8 bitrators maintained by the Board. 

9 ‘‘(3) Disputes concerning rates and charges 

10 shall not be considered or decided using any method 

11 based on stand-alone cost, the costs of a hypothetical 

12 competitor, or in reliance on precedent adopting or 

13 applying such methods. 

14 ‘‘(4) Standards for rate reasonableness devel15 oped under section 10701(d)(3) shall apply in arbi16 tration under this section. The arbitrator or arbitra17 tors shall adopt the final offer of 1 of the parties, 

18 without amendment or compromise, if such position 

19 is consistent with this section. 

20 ‘‘(5) A rate may not be prescribed in an arbi21 tration if such rate would result in a revenue-vari22 able cost percentage below 180 percent or if market 

23 dominance is not found. A rate prescription may not 

24 remain in effect for longer than 5 years after the 


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1 date on which the arbitrator’s decision becomes 

2 final. 

3 ‘‘(6) If a party to arbitration under this section 

4 seeks damages from a rail carrier that do not exceed 

5 $500,000 per year based on a claim of excessive 

6 rates or charges, the arbitrator shall consider evi7 dence of rates or charges on comparable shipments. 

8 ‘‘(7) Decisions issued in arbitration under this 

9 section shall not be subject to appeal to the Board 

10 unless all parties to the arbitration agree to such ap11 peal. Appeals to a court, or to the Board if both par12 ties agree to Board review, shall be based on a clear 

13 error standard, and consistency with the require14 ments of this section.’’. 

15 (b) CLERICAL AMENDMENT.—The table of sections 

16 at the beginning of chapter 117 is amended by adding at 

17 the end the following: 

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

18 TITLE IV—AUTHORITY TO 

19 INVESTIGATE 

20 SEC. 401. AUTHORITY OF BOARD TO INVESTIGATE AND SUS21 PEND CERTAIN RAILROAD ACTIONS. 

22 Section 11701(a) is amended to read as follows: 

23 ‘‘(a)(1) The Board may begin an investigation under 

24 this part on its own initiative. If the Board finds that a 


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1 rail carrier is violating this part, the Board shall take ap2 propriate action to compel compliance with this part. 

3 ‘‘(2) If the Board receives a complaint alleging that 

4 a rail carrier may be violating this part, the Board shall 

5 initiate an investigation. 

6 ‘‘(3) If the alleged violation under paragraph (2) ap7 plies to more than 1 person, the Board has substantial 

8 reason to believe that the allegations in the complaint are 

9 likely to have merit, and, if the allegations prove to have 

10 merit, it will be difficult to make complete restitution for 

11 the damage, the Board— 

12 ‘‘(A) shall suspend the rail carrier activity in 

13 question; and 

14 ‘‘(B) may not revoke such suspension unless the 

15 rail carrier justifies the practice to the satisfaction 

16 of the Board.’’. 

Æ 


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