PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 803

Public Law 104–88

104th Congress

An Act

To abolish the Interstate Commerce Commission, to amend subtitle IV of title

49, United States Code, to reform economic regulation of transportation, and

for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘ICC Termination Act of 1995’’.

(b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Effective date.

TITLE I—ABOLITION OF INTERSTATE COMMERCE COMMISSION

Sec. 101. Abolition.

Sec. 102. Rail provisions.

Sec. 103. Motor carrier, water carrier, and freight forwarder provisions.

Sec. 104. Miscellaneous motor carrier provisions.

Sec. 105. Creditability of annual leave for purposes of meeting minimum eligibility

requirements for an immediate annuity. Sec. 106. Pipeline carrier provisions.

TITLE II—SURFACE TRANSPORTATION BOARD

Sec. 201. Title 49 amendment.

Sec. 202. Reorganization.

Sec. 203. Transfer of assets and personnel.

Sec. 204. Saving provisions.

Sec. 205. References.

TITLE III—CONFORMING AMENDMENTS

Subtitle A—Amendments to United States Code

Sec. 301. Title 5 amendments.

Sec. 302. Title 11 amendments.

Sec. 303. Title 18 amendments.

Sec. 304. Internal Revenue Code of 1986 amendments.

Sec. 305. Title 28 amendments.

Sec. 306. Title 31 amendments.

Sec. 307. Title 39 amendments.

Sec. 308. Title 49 amendments.

Subtitle B—Other Amendments

Sec. 311. Agricultural Adjustment Act of 1938 amendments.

Sec. 312. Animal Welfare Act amendment.

Sec. 313. Federal Election Campaign Act of 1971 amendments.

Sec. 314. Fair Credit Reporting Act amendment.

Sec. 315. Equal Credit Opportunity Act amendment.

Sec. 316. Fair Debt Collection Practices Act amendment.

Sec. 317. National Trails System Act amendments.

Sec. 318. Clayton Act amendments.

Sec. 319. Inspector General Act of 1978 amendment.

Sec. 320. Energy Policy Act of 1992 amendments.

49 USC 101 note.

ICC Termination

Act of 1995.

Government

organization.

Dec. 29, 1995

[H.R. 2539]

109 STAT. 804 PUBLIC LAW 104–88—DEC. 29, 1995

Sec. 321. Merchant Marine Act, 1920, amendments.

Sec. 322. Railway Labor Act amendments.

Sec. 323. Railroad Retirement Act of 1974 amendments.

Sec. 324. Railroad Unemployment Insurance Act amendments.

Sec. 325. Emergency Rail Services Act of 1970 amendments.

Sec. 326. Alaska Railroad Transfer Act of 1982 amendments.

Sec. 327. Regional Rail Reorganization Act of 1973 amendments.

Sec. 328. Milwaukee Railroad Restructuring Act amendment.

Sec. 329. Rock Island Railroad Transition and Employee Assistance Act

amendments.

Sec. 330. Railroad Revitalization and Regulatory Reform Act of 1976 amendments.

Sec. 331. Northeast Rail Service Act of 1981 amendments.

Sec. 332. Conrail Privatization Act amendment.

Sec. 333. Migrant and Seasonal Agricultural Worker Protection Act amendments.

Sec. 334. Federal Aviation Administration Authorization Act of 1994.

Sec. 335. Termination of certain maritime authority.

Sec. 336. Armored Car Industry Reciprocity Act of 1993 amendments.

Sec. 337. Labor Management Relations Act, 1947 amendment.

Sec. 338. Inlands Waterway Revenue Act of 1978 amendment.

Sec. 339. Noise Control Act of 1972 amendment.

Sec. 340. Fair Labor Standards Act of 1938 amendment.

TITLE IV—MISCELLANEOUS PROVISIONS

Sec. 401. Certain commercial space launch activities.

Sec. 402. Destruction of motor vehicles or motor vehicle facilities; wrecking trains.

Sec. 403. Violation of grade-crossing laws and regulations.

Sec. 404. Miscellaneous title 23 amendments.

Sec. 405. Technical amendments.

Sec. 406. Fiber drum packaging.

Sec. 407. Noncontiguous domestic trade study.

Sec. 408. Federal Highway Administration rulemaking.

SEC. 2. EFFECTIVE DATE.

Except as otherwise provided in this Act, this Act shall take

effect on January 1, 1996.

TITLE I—ABOLITION OF INTERSTATE

COMMERCE COMMISSION

SEC. 101. ABOLITION.

The Interstate Commerce Commission is abolished.

SEC. 102. RAIL PROVISIONS.

(a) AMENDMENT.—Subtitle IV of title 49, United States Code,

is amended to read as follows:

‘‘SUBTITLE IV—INTERSTATE

TRANSPORTATION

‘‘PART A—RAIL

‘‘CHAPTER Sec.

‘‘101. GENERAL PROVISIONS .......................................................................... 10101

‘‘105. JURISDICTION .......................................................................................... 10501

‘‘107. RATES ......................................................................................................... 10701

‘‘109. LICENSING ................................................................................................ 10901

‘‘111. OPERATIONS ............................................................................................. 11101

‘‘113. FINANCE .................................................................................................... 11301

‘‘115. FEDERAL-STATE RELATIONS ............................................................... 11501

‘‘117. ENFORCEMENT: INVESTIGATIONS, RIGHTS, AND REMEDIES .... 11701

‘‘119. CIVIL AND CRIMINAL PENALTIES ...................................................... 11901

‘‘PART B—MOTOR CARRIERS, WATER CARRIERS, BROKERS, AND FREIGHT

FORWARDERS

‘‘CHAPTER Sec.

‘‘131. GENERAL PROVISIONS .......................................................................... 13101

49 USC 701 note.

49 USC 701 note.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 805

‘‘CHAPTER Sec.

‘‘133. ADMINISTRATIVE PROVISIONS ........................................................... 13301

‘‘135. JURISDICTION .......................................................................................... 13501

‘‘137. RATES AND THROUGH ROUTES .......................................................... 13701

‘‘139. REGISTRATION ......................................................................................... 13901

‘‘141. OPERATIONS OF CARRIERS .................................................................. 14101

‘‘143. FINANCE .................................................................................................... 14301

‘‘145. FEDERAL-STATE RELATIONS ............................................................... 14501

‘‘147. ENFORCEMENT; INVESTIGATIONS; RIGHTS; REMEDIES ............. 14701

‘‘149. CIVIL AND CRIMINAL PENALTIES ...................................................... 14901

‘‘PART C—PIPELINE CARRIERS

‘‘CHAPTER Sec.

‘‘151. GENERAL PROVISIONS .......................................................................... 15101

‘‘153. JURISDICTION .......................................................................................... 15301

‘‘155. RATES AND TARIFFS .............................................................................. 15501

‘‘157. OPERATIONS OF CARRIERS .................................................................. 15701

‘‘159. ENFORCEMENT: INVESTIGATIONS, RIGHTS, AND REMEDIES .... 15901

‘‘161. CIVIL AND CRIMINAL PENALTIES ...................................................... 16101

‘‘PART A—RAIL

‘‘CHAPTER 101—GENERAL PROVISIONS

‘‘Sec.

‘‘10101. Rail transportation policy.

‘‘10102. Definitions.

‘‘§ 10101. Rail transportation policy

‘‘In regulating the railroad industry, it is the policy of the United States Government—

‘‘(1) to allow, to the maximum extent possible, competition

and the demand for services to establish reasonable rates for

transportation by rail; ‘‘(2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair and

expeditious regulatory decisions when regulation is required; ‘‘(3) to promote a safe and efficient rail transportation

system by allowing rail carriers to earn adequate revenues,

as determined by the Board;

‘‘(4) to ensure the development and continuation of a sound

rail transportation system with effective competition among

rail carriers and with other modes, to meet the needs of the

public and the national defense;

‘‘(5) to foster sound economic conditions in transportation

and to ensure effective competition and coordination between

rail carriers and other modes;

‘‘(6) to maintain reasonable rates where there is an absence

of effective competition and where rail rates provide revenues

which exceed the amount necessary to maintain the rail system

and to attract capital;

‘‘(7) to reduce regulatory barriers to entry into and exit

from the industry;

‘‘(8) to operate transportation facilities and equipment without detriment to the public health and safety; ‘‘(9) to encourage honest and efficient management of railroads;

‘‘(10) to require rail carriers, to the maximum extent practicable, to rely on individual rate increases, and to limit the

use of increases of general applicability; ‘‘(11) to encourage fair wages and safe and suitable working

conditions in the railroad industry;

109 STAT. 806 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(12) to prohibit predatory pricing and practices, to avoid

undue concentrations of market power, and to prohibit unlawful

discrimination;

‘‘(13) to ensure the availability of accurate cost information

in regulatory proceedings, while minimizing the burden on

rail carriers of developing and maintaining the capability of

providing such information;

‘‘(14) to encourage and promote energy conservation; and

‘‘(15) to provide for the expeditious handling and resolution

of all proceedings required or permitted to be brought under

this part.

‘‘§ 10102. Definitions

‘‘In this part—

‘‘(1) ‘Board’ means the Surface Transportation Board;

‘‘(2) ‘car service’ includes (A) the use, control, supply, movement, distribution, exchange, interchange, and return of locomotives, cars, other vehicles, and special types of equipment

used in the transportation of property by a rail carrier, and

(B) the supply of trains by a rail carrier;

‘‘(3) ‘control’, when referring to a relationship between persons, includes actual control, legal control, and the power to

exercise control, through or by (A) common directors, officers,

stockholders, a voting trust, or a holding or investment company, or (B) any other means;

‘‘(4) ‘person’, in addition to its meaning under section 1

of title 1, includes a trustee, receiver, assignee, or personal

representative of a person;

‘‘(5) ‘rail carrier’ means a person providing common carrier

railroad transportation for compensation, but does not include

street, suburban, or interurban electric railways not operated

as part of the general system of rail transportation;

‘‘(6) ‘railroad’ includes—

‘‘(A) a bridge, car float, lighter, ferry, and intermodal

equipment used by or in connection with a railroad;

‘‘(B) the road used by a rail carrier and owned by

it or operated under an agreement; and

‘‘(C) a switch, spur, track, terminal, terminal facility,

and a freight depot, yard, and ground, used or necessary

for transportation;

‘‘(7) ‘rate’ means a rate or charge for transportation;

‘‘(8) ‘State’ means a State of the United States and the

District of Columbia;

‘‘(9) ‘transportation’ includes—

‘‘(A) a locomotive, car, vehicle, vessel, warehouse,

wharf, pier, dock, yard, property, facility, instrumentality,

or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and

‘‘(B) services related to that movement, including

receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange

of passengers and property; and

‘‘(10) ‘United States’ means the States of the United States

and the District of Columbia.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 807

‘‘CHAPTER 105—JURISDICTION

‘‘Sec.

‘‘10501. General jurisdiction.

‘‘10502. Authority to exempt rail carrier transportation.

‘‘§ 10501. General jurisdiction

‘‘(a)(1) Subject to this chapter, the Board has jurisdiction over transportation by rail carrier that is— ‘‘(A) only by railroad; or

‘‘(B) by railroad and water, when the transportation is under common control, management, or arrangement for a

continuous carriage or shipment.

‘‘(2) Jurisdiction under paragraph (1) applies only to transpor- tation in the United States between a place in—

‘‘(A) a State and a place in the same or another State

as part of the interstate rail network;

‘‘(B) a State and a place in a territory or possession of

the United States;

‘‘(C) a territory or possession of the United States and

a place in another such territory or possession;

‘‘(D) a territory or possession of the United States and

another place in the same territory or possession;

‘‘(E) the United States and another place in the United

States through a foreign country; or

‘‘(F) the United States and a place in a foreign country.

‘‘(b) The jurisdiction of the Board over—

‘‘(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules

(including car service, interchange, and other operating rules),

practices, routes, services, and facilities of such carriers; and

‘‘(2) the construction, acquisition, operation, abandonment,

or discontinuance of spur, industrial, team, switching, or side

tracks, or facilities, even if the tracks are located, or intended

to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies

provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under

Federal or State law.

‘‘(c)(1) In this subsection—

‘‘(A) the term ‘local governmental authority’—

‘‘(i) has the same meaning given that term by section

5302(a) of this title; and

‘‘(ii) includes a person or entity that contracts with

the local governmental authority to provide transportation

services; and

‘‘(B) the term ‘mass transportation’ means transportation

services described in section 5302(a) of this title that are provided by rail.

‘‘(2) Except as provided in paragraph (3), the Board does not

have jurisdiction under this part over mass transportation provided

by a local governmental authority.

‘‘(3)(A) Notwithstanding paragraph (2) of this subsection, a

local governmental authority, described in paragraph (2), is subject

to applicable laws of the United States related to—

‘‘(i) safety;

‘‘(ii) the representation of employees for collective bargaining; and

109 STAT. 808 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(iii) employment, retirement, annuity, and unemployment

systems or other provisions related to dealings between employees and employers.

‘‘(B) The Board has jurisdiction under sections 11102 and 11103

of this title over transportation provided by a local governmental

authority only if the Board finds that such governmental authority

meets all of the standards and requirements for being a rail carrier

providing transportation subject to the jurisdiction of the Interstate

Commerce Commission that were in effect immediately before the

effective date of the ICC Termination Act of 1995. The enactment

of the ICC Termination Act of 1995 shall neither expand nor contract coverage of employees and employers by the Railway Labor

Act, the Railroad Retirement Act of 1974, the Railroad Retirement

Tax Act, and the Railroad Unemployment Insurance Act.

‘‘§ 10502. Authority to exempt rail carrier transportation

‘‘(a) In a matter related to a rail carrier providing transportation

subject to the jurisdiction of the Board under this part, the Board,

to the maximum extent consistent with this part, shall exempt

a person, class of persons, or a transaction or service whenever

the Board finds that the application in whole or in part of a

provision of this part—

‘‘(1) is not necessary to carry out the transportation policy

of section 10101 of this title; and

‘‘(2) either—

‘‘(A) the transaction or service is of limited scope; or

‘‘(B) the application in whole or in part of the provision

is not needed to protect shippers from the abuse of market

power.

‘‘(b) The Board may, where appropriate, begin a proceeding

under this section on its own initiative or on application by the

Secretary of Transportation or an interested party. The Board shall,

within 90 days after receipt of any such application, determine

whether to begin an appropriate proceeding. If the Board decides

not to begin a class exemption proceeding, the reasons for the

decision shall be published in the Federal Register. Any proceeding

begun as a result of an application under this subsection shall

be completed within 9 months after it is begun.

‘‘(c) The Board may specify the period of time during which

an exemption granted under this section is effective.

‘‘(d) The Board may revoke an exemption, to the extent it

specifies, when it finds that application in whole or in part of

a provision of this part to the person, class, or transportation

is necessary to carry out the transportation policy of section 10101

of this title. The Board shall, within 90 days after receipt of a

request for revocation under this subsection, determine whether

to begin an appropriate proceeding. If the Board decides not to

begin a proceeding to revoke a class exemption, the reasons for

the decision shall be published in the Federal Register. Any proceeding begun as a result of a request under this subsection shall

be completed within 9 months after it is begun.

‘‘(e) No exemption order issued pursuant to this section shall

operate to relieve any rail carrier from an obligation to provide

contractual terms for liability and claims which are consistent with

the provisions of section 11706 of this title. Nothing in this subsection or section 11706 of this title shall prevent rail carriers

from offering alternative terms nor give the Board the authority

Federal Register,

publication.

Federal Register,

publication.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 809

to require any specific level of rates or services based upon the

provisions of section 11706 of this title.

‘‘(f) The Board may exercise its authority under this section

to exempt transportation that is provided by a rail carrier as part

of a continuous intermodal movement.

‘‘(g) The Board may not exercise its authority under this section

to relieve a rail carrier of its obligation to protect the interests

of employees as required by this part.

‘‘CHAPTER 107—RATES

‘‘SUBCHAPTER I—GENERAL AUTHORITY

‘‘Sec.

‘‘10701. Standards for rates, classifications, through routes, rules, and practices.

‘‘10702. Authority for rail carriers to establish rates, classifications, rules, and practices.

‘‘10703. Authority for rail carriers to establish through routes.

‘‘10704. Authority and criteria: rates, classifications, rules, and practices prescribed

by Board. ‘‘10705. Authority: through routes, joint classifications, rates, and divisions prescribed by Board. ‘‘10706. Rate agreements: exemption from antitrust laws.

‘‘10707. Determination of market dominance in rail rate proceedings.

‘‘10708. Rail cost adjustment factor.

‘‘10709. Contracts.

‘‘SUBCHAPTER II—SPECIAL CIRCUMSTANCES

‘‘10721. Government traffic.

‘‘10722. Car utilization.

‘‘SUBCHAPTER III—LIMITATIONS

‘‘10741. Prohibitions against discrimination by rail carriers.

‘‘10742. Facilities for interchange of traffic.

‘‘10743. Liability for payment of rates.

‘‘10744. Continuous carriage of freight.

‘‘10745. Transportation services or facilities furnished by shipper.

‘‘10746. Demurrage charges.

‘‘10747. Designation of certain routes by shippers.

‘‘SUBCHAPTER I—GENERAL AUTHORITY

‘‘§ 10701. Standards for rates, classifications, through routes,

rules, and practices

‘‘(a) A through route established by a rail carrier must be

reasonable. Divisions of joint rates by rail carriers must be made

without unreasonable discrimination against a participating carrier

and must be reasonable.

‘‘(b) A rail carrier providing transportation subject to the jurisdiction of the Board under this part may not discriminate in its

rates against a connecting line of another rail carrier providing

transportation subject to the jurisdiction of the Board under this

part or unreasonably discriminate against that line in the distribution of traffic that is not routed specifically by the shipper.

‘‘(c) Except as provided in subsection (d) of this section and

unless a rate is prohibited by a provision of this part, a rail

carrier providing transportation subject to the jurisdiction of the

Board under this part may establish any rate for transportation

or other service provided by the rail carrier.

‘‘(d)(1) If the Board determines, under section 10707 of this

title, that a rail carrier has market dominance over the transportation to which a particular rate applies, the rate established by

such carrier for such transportation must be reasonable.

109 STAT. 810 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) In determining whether a rate established by a rail carrier

is reasonable for purposes of this section, the Board shall give

due consideration to—

‘‘(A) the amount of traffic which is transported at revenues

which do not contribute to going concern value and the efforts

made to minimize such traffic;

‘‘(B) the amount of traffic which contributes only marginally

to fixed costs and the extent to which, if any, rates on such

traffic can be changed to maximize the revenues from such

traffic; and

‘‘(C) the carrier’s mix of rail traffic to determine whether

one commodity is paying an unreasonable share of the carrier’s

overall revenues,

recognizing the policy of this part that rail carriers shall earn

adequate revenues, as established by the Board under section

10704(a)(2) of this title.

‘‘(3) The Board shall, within one year after the effective date

of this paragraph, complete the pending Interstate Commerce

Commission non-coal rate guidelines proceeding to establish a simplified and expedited method for determining the reasonableness

of challenged rail rates in those cases in which a full stand-alone

cost presentation is too costly, given the value of the case.

‘‘§ 10702. Authority for rail carriers to establish rates, classifications, rules, and practices

‘‘A rail carrier providing transportation or service subject to

the jurisdiction of the Board under this part shall establish reasonable—

‘‘(1) rates, to the extent required by section 10707, divisions

of joint rates, and classifications for transportation and service

it may provide under this part; and

‘‘(2) rules and practices on matters related to that transportation or service.

‘‘§ 10703. Authority for rail carriers to establish through

routes

‘‘Rail carriers providing transportation subject to the jurisdiction of the Board under this part shall establish through routes

(including physical connections) with each other and with water

carriers providing transportation subject to chapter 137, shall establish rates and classifications applicable to those routes, and shall

establish rules for their operation and provide—

‘‘(1) reasonable facilities for operating the through route;

and

‘‘(2) reasonable compensation to persons entitled to compensation for services related to the through route.

‘‘§ 10704. Authority and criteria: rates, classifications, rules,

and practices prescribed by Board

‘‘(a)(1) When the Board, after a full hearing, decides that a

rate charged or collected by a rail carrier for transportation subject

to the jurisdiction of the Board under this part, or that a classification, rule, or practice of that carrier, does or will violate this

part, the Board may prescribe the maximum rate, classification,

rule, or practice to be followed. The Board may order the carrier

to stop the violation. When a rate, classification, rule, or practice

is prescribed under this subsection, the affected carrier may not

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 811

publish, charge, or collect a different rate and shall adopt the

classification and observe the rule or practice prescribed by the

Board.

‘‘(2) The Board shall maintain and revise as necessary standards and procedures for establishing revenue levels for rail carriers

providing transportation subject to its jurisdiction under this part

that are adequate, under honest, economical, and efficient management, to cover total operating expenses, including depreciation and

obsolescence, plus a reasonable and economic profit or return (or

both) on capital employed in the business. The Board shall make

an adequate and continuing effort to assist those carriers in attaining revenue levels prescribed under this paragraph. Revenue levels

established under this paragraph should—

‘‘(A) provide a flow of net income plus depreciation adequate

to support prudent capital outlays, assure the repayment of

a reasonable level of debt, permit the raising of needed equity

capital, and cover the effects of inflation; and

‘‘(B) attract and retain capital in amounts adequate to

provide a sound transportation system in the United States.

‘‘(3) On the basis of the standards and procedures described

in paragraph (2), the Board shall annually determine which rail

carriers are earning adequate revenues.

‘‘(b) The Board may begin a proceeding under this section

only on complaint. A complaint under subsection (a) of this section

must be made under section 11701 of this title, but the proceeding

may also be in extension of a complaint pending before the Board.

‘‘(c) In a proceeding to challenge the reasonableness of a rate,

the Board shall make its determination as to the reasonableness

of the challenged rate—

‘‘(1) within 9 months after the close of the administrative

record if the determination is based upon a stand-alone cost

presentation; or

‘‘(2) within 6 months after the close of the administrative

record if the determination is based upon the methodology

adopted by the Board pursuant to section 10701(d)(3).

‘‘(d) Within 9 months after the effective date of the ICC Termination Act of 1995, the Board shall establish procedures to ensure

expeditious handling of challenges to the reasonableness of railroad

rates. The procedures shall include appropriate measures for avoiding delay in the discovery and evidentiary phases of such proceedings and exemption or revocation proceedings, including appropriate

sanctions for such delay, and for ensuring prompt disposition of

motions and interlocutory administrative appeals.

‘‘§ 10705. Authority: through routes, joint classifications,

rates, and divisions prescribed by Board

‘‘(a)(1) The Board may, and shall when it considers it desirable

in the public interest, prescribe through routes, joint classifications,

joint rates, the division of joint rates, and the conditions under

which those routes must be operated, for a rail carrier providing

transportation subject to the jurisdiction of the Board under this

part.

‘‘(2) The Board may require a rail carrier to include in a

through route substantially less than the entire length of its railroad

and any intermediate railroad operated with it under common

management or control if that intermediate railroad lies between

the terminals of the through route only when—

109 STAT. 812 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(A) required under section 10741, 10742, or 11102 of this

title;

‘‘(B) inclusion of those lines would make the through route

unreasonably long when compared with a practicable alternative through route that could be established; or

‘‘(C) the Board decides that the proposed through route

is needed to provide adequate, and more efficient or economic,

transportation.

The Board shall give reasonable preference, subject to this subsection, to the rail carrier originating the traffic when prescribing

through routes.

‘‘(b) The Board shall prescribe the division of joint rates to

be received by a rail carrier providing transportation subject to

its jurisdiction under this part when it decides that a division

of joint rates established by the participating carriers under section

10703 of this title, or under a decision of the Board under subsection

(a) of this section, does or will violate section 10701 of this title.

‘‘(c) If a division of a joint rate prescribed under a decision

of the Board is later found to violate section 10701 of this title,

the Board may decide what division would have been reasonable

and order adjustment to be made retroactive to the date the complaint was filed, the date the order for an investigation was made,

or a later date that the Board decides is justified. The Board

may make a decision under this subsection effective as part of

its original decision.

‘‘§ 10706. Rate agreements: exemption from antitrust laws

‘‘(a)(1) In this subsection—

‘‘(A) the term ‘affiliate’ means a person controlling, controlled by, or under common control or ownership with another

person and ‘ownership’ refers to equity holdings in a business

entity of at least 5 percent;

‘‘(B) the term ‘single-line rate’ refers to a rate or allowance

proposed by a single rail carrier that is applicable only over

its line and for which the transportation (exclusive of terminal

services by switching, drayage or other terminal carriers or

agencies) can be provided by that carrier; and

‘‘(C) the term ‘practicably participates in the movement’

shall have such meaning as the Board shall by regulation

prescribe.

‘‘(2)(A) A rail carrier providing transportation subject to the

jurisdiction of the Board under this part that is a party to an

agreement of at least 2 rail carriers that relates to rates (including

charges between rail carriers and compensation paid or received

for the use of facilities and equipment), classifications, divisions,

or rules related to them, or procedures for joint consideration,

initiation, publication, or establishment of them, shall apply to

the Board for approval of that agreement under this subsection.

The Board shall approve the agreement only when it finds that

the making and carrying out of the agreement will further the

transportation policy of section 10101 of this title and may require

compliance with conditions necessary to make the agreement further that policy as a condition of its approval. If the Board approves

the agreement, it may be made and carried out under its terms

and under the conditions required by the Board, and the Sherman

Act (15 U.S.C. 1, et seq.), the Clayton Act (15 U.S.C. 12, et seq.),

the Federal Trade Commission Act (15 U.S.C. 41, et seq.), sections

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 813

73 and 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), and

the Act of June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a) do not

apply to parties and other persons with respect to making or carrying out the agreement. However, the Board may not approve or

continue approval of an agreement when the conditions required

by it are not met or if it does not receive a verified statement

under subparagraph (B) of this paragraph.

‘‘(B) The Board may approve an agreement under subparagraph

(A) of this paragraph only when the rail carriers applying for

approval file a verified statement with the Board. Each statement

must specify for each rail carrier that is a party to the agreement—

‘‘(i) the name of the carrier;

‘‘(ii) the mailing address and telephone number of its headquarter’s office; and

‘‘(iii) the names of each of its affiliates and the names,

addresses, and affiliates of each of its officers and directors

and of each person, together with an affiliate, owning or controlling any debt, equity, or security interest in it having a value

of at least $1,000,000.

‘‘(3)(A) An organization established or continued under an

agreement approved under this subsection shall make a final disposition of a rule or rate docketed with it by the 120th day after

the proposal is docketed. Such an organization may not—

‘‘(i) permit a rail carrier to discuss, to participate in agreements related to, or to vote on single-line rates proposed by

another rail carrier, except that for purposes of general rate

increases and broad changes in rates, classifications, rules,

and practices only, if the Board finds at any time that the

implementation of this clause is not feasible, it may delay

or suspend such implementation in whole or in part;

‘‘(ii) permit a rail carrier to discuss, to participate in agreements related to, or to vote on rates related to a particular

interline movement unless that rail carrier practicably participates in the movement; or

‘‘(iii) if there are interline movements over two or more

routes between the same end points, permit a carrier to discuss,

to participate in agreements related to, or to vote on rates

except with a carrier which forms part of a particular single

route. If the Board finds at any time that the implementation

of this clause is not feasible, it may delay or suspend such

implementation in whole or in part.

‘‘(B)(i) In any proceeding in which a party alleges that a rail

carrier voted or agreed on a rate or allowance in violation of

this subsection, that party has the burden of showing that the

vote or agreement occurred. A showing of parallel behavior does

not satisfy that burden by itself.

‘‘(ii) In any proceeding in which it is alleged that a carrier

was a party to an agreement, conspiracy, or combination in violation

of a Federal law cited in subsection (a)(2)(A) of this section or

of any similar State law, proof of an agreement, conspiracy, or

combination may not be inferred from evidence that two or more

rail carriers acted together with respect to an interline rate or

related matter and that a party to such action took similar action

with respect to a rate or related matter on another route or traffic.

In any proceeding in which such a violation is alleged, evidence

of a discussion or agreement between or among such rail carrier

and one or more other rail carriers, or of any rate or other action

109 STAT. 814 PUBLIC LAW 104–88—DEC. 29, 1995

resulting from such discussion or agreement, shall not be admissible

if the discussion or agreement— ‘‘(I) was in accordance with an agreement approved under paragraph (2) of this subsection; or

‘‘(II) concerned an interline movement of the rail carrier,

and the discussion or agreement would not, considered by itself,

violate the laws referred to in the first sentence of this clause.

In any proceeding before a jury, the court shall determine whether

the requirements of subclause (I) or (II) are satisfied before allowing

the introduction of any such evidence.

‘‘(C) An organization described in subparagraph (A) of this

paragraph shall provide that transcripts or sound recordings be

made of all meetings, that records of votes be made, and that

such transcripts or recordings and voting records be submitted

to the Board and made available to other Federal agencies in

connection with their statutory responsibilities over rate bureaus,

except that such material shall be kept confidential and shall not

be subject to disclosure under section 552 of title 5, United States

Code.

‘‘(4) Notwithstanding any other provision of this subsection,

one or more rail carriers may enter into an agreement, without

obtaining prior Board approval, that provides solely for compilation,

publication, and other distribution of rates in effect or to become

effective. The Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act

(15 U.S.C. 12 et seq.), the Federal Trade Commission Act (15

U.S.C. 41 et seq.), sections 73 and 74 of the Wilson Tariff Act

(15 U.S.C. 8 and 9), and the Act of June 19, 1936 (15 U.S.C.

13, 13a, 13b, 21a) shall not apply to parties and other persons

with respect to making or carrying out such agreement. However,

the Board may, upon application or on its own initiative, investigate

whether the parties to such an agreement have exceeded its scope,

and upon a finding that they have, the Board may issue such

orders as are necessary, including an order dissolving the agreement, to ensure that actions taken pursuant to the agreement

are limited as provided in this paragraph.

‘‘(5)(A) Whenever two or more shippers enter into an agreement

to discuss among themselves that relates to the amount of compensation such shippers propose to be paid by rail carriers providing

transportation subject to the jurisdiction of the Board under this

part, for use by such rail carriers of rolling stock owned or leased

by such shippers, the shippers shall apply to the Board for approval

of that agreement under this paragraph. The Board shall approve

the agreement only when it finds that the making and carrying

out of the agreement will further the transportation policy set

forth in section 10101 of this title and may require compliance

with conditions necessary to make the agreement further that policy

as a condition of approval. If the Board approves the agreement,

it may be made and carried out under its terms and under the

terms required by the Board, and the antitrust laws set forth

in paragraph (2) of this subsection do not apply to parties and

other persons with respect to making or carrying out the agreement.

The Board shall approve or disapprove an agreement under this

paragraph within one year after the date application for approval

of such agreement is made.

‘‘(B) If the Board approves an agreement described in subparagraph (A) of this paragraph and the shippers entering into such

agreement and the rail carriers proposing to use rolling stock owned

Records.

Confidentiality.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 815

or leased by such shippers, under payment by such carriers or

under a published allowance, are unable to agree upon the amount

of compensation to be paid for the use of such rolling stock, any

party directly involved in the negotiations may require that the

matter be settled by submitting the issues in dispute to the Board.

The Board shall render a binding decision, based upon a standard

of reasonableness and after taking into consideration any past

precedents on the subject matter of the negotiations, no later than

90 days after the date of the submission of the dispute to the

Board.

‘‘(C) Nothing in this paragraph shall be construed to change

the law in effect prior to the effective date of the Staggers Rail

Act of 1980 with respect to the obligation of rail carriers to utilize

rolling stock owned or leased by shippers.

‘‘(b) The Board may require an organization established or

continued under an agreement approved under this section to maintain records and submit reports. The Board may inspect a record

maintained under this section.

‘‘(c) The Board may review an agreement approved under subsection (a) of this section and shall change the conditions of approval

or terminate it when necessary to comply with the public interest

and subsection (a). The Board shall postpone the effective date

of a change of an agreement under this subsection for whatever

period it determines to be reasonably necessary to avoid unreasonable hardship.

‘‘(d) The Board may begin a proceeding under this section

on its own initiative or on application. Action of the Board under

this section—

‘‘(1) approving an agreement;

‘‘(2) denying, ending, or changing approval;

‘‘(3) prescribing the conditions on which approval is

granted; or

‘‘(4) changing those conditions,

has effect only as related to application of the antitrust laws referred

to in subsection (a) of this section.

‘‘(e)(1) The Federal Trade Commission, in consultation with

the Antitrust Division of the Department of Justice, shall prepare

periodically an assessment of, and shall report to the Board on—

‘‘(A) possible anticompetitive features of—

‘‘(i) agreements approved or submitted for approval

under subsection (a) of this section; and

‘‘(ii) an organization operating under those agreements;

and

‘‘(B) possible ways to alleviate or end an anticompetitive

feature, effect, or aspect in a manner that will further the

goals of this part and of the transportation policy of section

10101 of this title.

‘‘(2) Reports received by the Board under this subsection shall

be published and made available to the public under section 552(a)

of title 5.

‘‘§ 10707. Determination of market dominance in rail rate

proceedings

‘‘(a) In this section, ‘market dominance’ means an absence of

effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies.

Reports.

109 STAT. 816 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(b) When a rate for transportation by a rail carrier providing

transportation subject to the jurisdiction of the Board under this

part is challenged as being unreasonably high, the Board shall

determine whether the rail carrier proposing the rate has market

dominance over the transportation to which the rate applies. The

Board may make that determination on its own initiative or on

complaint. A finding by the Board that the rail carrier does not

have market dominance is determinative in a proceeding under

this part related to that rate or transportation unless changed

or set aside by the Board or set aside by a court of competent

jurisdiction.

‘‘(c) When the Board finds in any proceeding that a rail carrier

proposing or defending a rate for transportation has market dominance over the transportation to which the rate applies, it may

then determine that rate to be unreasonable if it exceeds a reasonable maximum for that transportation. However, a finding of market

dominance does not establish a presumption that the proposed

rate exceeds a reasonable maximum.

‘‘(d)(1)(A) In making a determination under this section, the

Board shall find that the rail carrier establishing the challenged

rate does not have market dominance over the transportation to

which the rate applies if such rail carrier proves that the rate

charged results in a revenue-variable cost percentage for such

transportation that is less than 180 percent.

‘‘(B) For purposes of this section, variable costs for a rail carrier

shall be determined only by using such carrier’s unadjusted costs,

calculated using the Uniform Rail Costing System cost finding

methodology (or an alternative methodology adopted by the Board

in lieu thereof) and indexed quarterly to account for current wage

and price levels in the region in which the carrier operates, with

adjustments specified by the Board. A rail carrier may meet its

burden of proof under this subsection by establishing its variable

costs in accordance with this paragraph, but a shipper may rebut

that showing by evidence of such type, and in accordance with

such burden of proof, as the Board shall prescribe.

‘‘(2) A finding by the Board that a rate charged by a rail

carrier results in a revenue-variable cost percentage for the

transportation to which the rate applies that is equal to or greater

than 180 percent does not establish a presumption that—

‘‘(A) such rail carrier has or does not have market dominance over such transportation; or

‘‘(B) the proposed rate exceeds or does not exceed a reasonable maximum.

‘‘§ 10708. Rail cost adjustment factor

‘‘(a) The Board shall, as often as practicable, but in no event

less often than quarterly, publish a rail cost adjustment factor

which shall be a fraction, the numerator of which is the latest

published Index of Railroad Costs (which index shall be compiled

or verified by the Board, with appropriate adjustments to reflect

the change in composition of railroad costs, including the quality

and mix of material and labor) and the denominator of which

is the same index for the fourth quarter of every fifth year, beginning with the fourth quarter of 1992.

‘‘(b) The rail cost adjustment factor published by the Board

under subsection (a) of this section shall take into account changes

in railroad productivity. The Board shall also publish a similar

Publication.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 817

index that does not take into account changes in railroad

productivity.

‘‘§ 10709. Contracts

‘‘(a) One or more rail carriers providing transportation subject

to the jurisdiction of the Board under this part may enter into

a contract with one or more purchasers of rail services to provide

specified services under specified rates and conditions.

‘‘(b) A party to a contract entered into under this section shall

have no duty in connection with services provided under such

contract other than those duties specified by the terms of the

contract.

‘‘(c)(1) A contract that is authorized by this section, and

transportation under such contract, shall not be subject to this

part, and may not be subsequently challenged before the Board

or in any court on the grounds that such contract violates a provision of this part.

‘‘(2) The exclusive remedy for any alleged breach of a contract

entered into under this section shall be an action in an appropriate

State court or United States district court, unless the parties otherwise agree. This section does not confer original jurisdiction on

the district courts of the United States based on section 1331

or 1337 of title 28, United States Code.

‘‘(d)(1) A summary of each contract for the transportation of

agricultural products (including grain, as defined in section 3 of

the United States Grain Standards Act (7 U.S.C. 75) and products

thereof) entered into under this section shall be filed with the

Board, containing such nonconfidential information as the Board

prescribes. The Board shall publish special rules for such contracts

in order to ensure that the essential terms of the contract are

available to the general public.

‘‘(2) Documents, papers, and records (and any copies thereof)

relating to a contract described in subsection (a) shall not be subject

to the mandatory disclosure requirements of section 552 of title

5.

‘‘(e) Any lawful contract between a rail carrier and one or

more purchasers of rail service that was in effect on the effective

date of the Staggers Rail Act of 1980 shall be considered a contract

authorized by this section.

‘‘(f) A rail carrier that enters into a contract as authorized

by this section remains subject to the common carrier obligation

set forth in section 11101, with respect to rail transportation not

provided under such a contract.

‘‘(g)(1) No later than 30 days after the date of filing of a

summary of a contract under this section, the Board may, on

complaint, begin a proceeding to review such contract on the

grounds described in this subsection.

‘‘(2)(A) A complaint may be filed under this subsection—

‘‘(i) by a shipper on the grounds that such shipper individually will be harmed because the proposed contract unduly

impairs the ability of the contracting rail carrier or carriers

to meet their common carrier obligations to the complainant

under section 11101 of this title; or

‘‘(ii) by a port only on the grounds that such port individually will be harmed because the proposed contract will result

in unreasonable discrimination against such port.

Publication.

Public

information.

Rules.

109 STAT. 818 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(B) In addition to the grounds for a complaint described in

subparagraph (A) of this paragraph, a complaint may be filed by

a shipper of agricultural commodities on the grounds that such

shipper individually will be harmed because—

‘‘(i) the rail carrier has unreasonably discriminated by

refusing to enter into a contract with such shipper for rates

and services for the transportation of the same type of commodity under similar conditions to the contract at issue, and that

shipper was ready, willing, and able to enter into such a contract at a time essentially contemporaneous with the period

during which the contract at issue was offered; or

‘‘(ii) the proposed contract constitutes a destructive competitive practice under this part.

In making a determination under clause (ii) of this subparagraph,

the Board shall consider the difference between contract rates and

published single car rates.

‘‘(C) For purposes of this paragraph, the term ‘unreasonable

discrimination’ has the same meaning as such term has under

section 10741 of this title.

‘‘(3)(A) Within 30 days after the date a proceeding is commenced

under paragraph (1) of this subsection, or within such shorter

time period after such date as the Board may establish, the Board

shall determine whether the contract that is the subject of such

proceeding is in violation of this section.

‘‘(B) If the Board determines, on the basis of a complaint

filed under paragraph (2)(B)(i) of this subsection, that the grounds

for a complaint described in such paragraph have been established

with respect to a rail carrier, the Board shall, subject to the provisions of this section, order such rail carrier to provide rates and

service substantially similar to the contract at issue with such

differentials in terms and conditions as are justified by the evidence.

‘‘(h)(1) Any rail carrier may, in accordance with the terms

of this section, enter into contracts for the transportation of agricultural commodities (including forest products, but not including wood

pulp, wood chips, pulpwood or paper) involving the utilization of

carrier owned or leased equipment not in excess of 40 percent

of the capacity of such carrier’s owned or leased equipment by

major car type (plain boxcars, covered hopper cars, gondolas and

open top hoppers, coal cars, bulkhead flatcars, pulpwood rackcars,

and flatbed equipment, including TOFC/COFC).

‘‘(2) The Board may, on request of a rail carrier or other

party or on its own initiative, grant such relief from the limitations

of paragraph (1) of this subsection as the Board considers appropriate, if it appears that additional equipment may be made available without impairing the rail carrier’s ability to meet its common

carrier obligations under section 11101 of this title.

‘‘(3)(A) This subsection shall cease to be effective after September 30, 1998.

‘‘(B) Before October 1, 1997, the National Grain Car Council

and the Railroad-Shipper Transportation Advisory Council shall

make recommendations to Congress on whether to extend the

effectiveness of or otherwise modify this subsection.

Termination

date.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 819

‘‘SUBCHAPTER II—SPECIAL CIRCUMSTANCES

‘‘§ 10721. Government traffic

‘‘A rail carrier providing transportation or service for the United

States Government may transport property or individuals for the

United States Government without charge or at a rate reduced

from the applicable commercial rate. Section 3709 of the Revised

Statutes (41 U.S.C. 5) does not apply when transportation for

the United States Government can be obtained from a rail carrier

lawfully operating in the area where the transportation would be

provided.

‘‘§ 10722. Car utilization

‘‘In order to encourage more efficient use of freight cars, notwithstanding any other provision of this part, rail carriers shall

be permitted to establish premium charges for special services

or special levels of services not otherwise applicable to the movement. The Board shall facilitate development of such charges so

as to increase the utilization of equipment.

‘‘SUBCHAPTER III—LIMITATIONS

‘‘§ 10741. Prohibitions against discrimination by rail carriers

‘‘(a)(1) A rail carrier providing transportation or service subject

to the jurisdiction of the Board under this part may not subject

a person, place, port, or type of traffic to unreasonable discrimination.

‘‘(2) For purposes of this section, a rail carrier engages in

unreasonable discrimination when it charges or receives from a

person a different compensation for a service rendered, or to be

rendered, in transportation the rail carrier may perform under

this part than it charges or receives from another person for

performing a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances.

‘‘(b) This section shall not apply to—

‘‘(1) contracts described in section 10709 of this title;

‘‘(2) rail rates applicable to different routes; or

‘‘(3) discrimination against the traffic of another carrier

providing transportation by any mode.

‘‘(c) Differences between rates, classifications, rules, and practices of rail carriers do not constitute a violation of this section

if such differences result from different services provided by rail

carriers.

‘‘§ 10742. Facilities for interchange of traffic

‘‘A rail carrier providing transportation subject to the jurisdiction of the Board under this part shall provide reasonable, proper,

and equal facilities that are within its power to provide for the

interchange of traffic between, and for the receiving, forwarding,

and delivering of passengers and property to and from, its respective

line and a connecting line of another rail carrier or of a water

carrier providing transportation subject to chapter 137.

‘‘§ 10743. Liability for payment of rates

‘‘(a)(1) Liability for payment of rates for transportation for

a shipment of property by a shipper or consignor to a consignee

109 STAT. 820 PUBLIC LAW 104–88—DEC. 29, 1995

other than the shipper or consignor, is determined under this subsection when the transportation is provided by a rail carrier under

this part. When the shipper or consignor instructs the rail carrier

transporting the property to deliver it to a consignee that is an

agent only, not having beneficial title to the property, the consignee

is liable for rates billed at the time of delivery for which the

consignee is otherwise liable, but not for additional rates that

may be found to be due after delivery if the consignee gives written

notice to the delivering carrier before delivery of the property—

‘‘(A) of the agency and absence of beneficial title; and

‘‘(B) of the name and address of the beneficial owner of

the property if it is reconsigned or diverted to a place other

than the place specified in the original bill of lading.

‘‘(2) When the consignee is liable only for rates billed at the

time of delivery under paragraph (1) of this subsection, the shipper

or consignor, or, if the property is reconsigned or diverted, the

beneficial owner, is liable for those additional rates regardless of

the bill of lading or contract under which the property was transported. The beneficial owner is liable for all rates when the property

is reconsigned or diverted by an agent but is refused or abandoned

at its ultimate destination if the agent gave the rail carrier in

the reconsignment or diversion order a notice of agency and the

name and address of the beneficial owner. A consignee giving the

rail carrier, and a reconsignor or diverter giving a rail carrier,

erroneous information about the identity of the beneficial owner

of the property is liable for the additional rates.

‘‘(b) Liability for payment of rates for transportation for a

shipment of property by a shipper or consignor, named in the

bill of lading as consignee, is determined under this subsection

when the transportation is provided by a rail carrier under this

part. When the shipper or consignor gives written notice, before

delivery of the property, to the line-haul rail carrier that is to

make ultimate delivery—

‘‘(1) to deliver the property to another party identified

by the shipper or consignor as the beneficial owner of the

property; and

‘‘(2) that delivery is to be made to that party on payment

of all applicable transportation rates;

that party is liable for the rates billed at the time of delivery

and for additional rates that may be found to be due after delivery

if that party does not pay the rates required to be paid under

paragraph (2) of this subsection on delivery. However, if the party

gives written notice to the delivering rail carrier before delivery

that the party is not the beneficial owner of the property and

gives the rail carrier the name and address of the beneficial owner,

then the party is not liable for those additional rates. A shipper,

consignor, or party to whom delivery is made that gives the delivering rail carrier erroneous information about the identity of the

beneficial owner, is liable for the additional rates regardless of

the bill of lading or contract under which the property was transported. This subsection does not apply to a prepaid shipment of

property.

‘‘(c)(1) A rail carrier may bring an action to enforce liability

under subsection (a) of this section. That rail carrier must bring

the action during the period provided in section 11705(a) of this

title or by the end of the 6th month after final judgment against

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 821

it in an action against the consignee, or the beneficial owner named

by the consignee or agent, under that section. ‘‘(2) A rail carrier may bring an action to enforce liability under subsection (b) of this section. That carrier must bring the

action during the period provided in section 11705(a) of this title

or by the end of the 6th month after final judgment against it

in an action against the shipper, consignor, or other party under

that section.

‘‘§ 10744. Continuous carriage of freight

‘‘A rail carrier providing transportation or service subject to

the jurisdiction of the Board under this part may not enter a

combination or arrangement to prevent the carriage of freight from

being continuous from the place of shipment to the place of destination whether by change of time schedule, carriage in different

cars, or by other means. The carriage of freight by those rail

carriers is considered to be a continuous carriage from the place

of shipment to the place of destination when a break of bulk,

stoppage, or interruption is not made in good faith for a necessary

purpose, and with the intent of avoiding or unnecessarily interrupting the continuous carriage or of evading this part.

‘‘§ 10745. Transportation services or facilities furnished by

shipper

‘‘A rail carrier providing transportation or service subject to

the jurisdiction of the Board under this part may establish a charge

or allowance for transportation or service for property when the

owner of the property, directly or indirectly, furnishes a service

related to or an instrumentality used in the transportation or

service. The Board may prescribe the maximum reasonable charge

or allowance a rail carrier subject to its jurisdiction may pay for

a service or instrumentality furnished under this section. The Board

may begin a proceeding under this section on its own initiative

or on application.

‘‘§ 10746. Demurrage charges

‘‘A rail carrier providing transportation subject to the jurisdiction of the Board under this part shall compute demurrage charges,

and establish rules related to those charges, in a way that fulfills

the national needs related to—

‘‘(1) freight car use and distribution; and

‘‘(2) maintenance of an adequate supply of freight cars

to be available for transportation of property.

‘‘§ 10747. Designation of certain routes by shippers

‘‘(a)(1) When a person delivers property to a rail carrier for

transportation subject to the jurisdiction of the Board under this

part, the person may direct the rail carrier to transport the property

over an established through route. When competing rail lines constitute a part of the route, the person shipping the property may

designate the lines over which the property will be transported.

The designation must be in writing. A rail carrier may be directed

to transport property over a particular through route when—

‘‘(A) there are at least 2 through routes over which the

property could be transported;

‘‘(B) a through rate has been established for transportation

over each of those through routes; and

109 STAT. 822 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(C) the rail carrier is a party to those routes and rates. ‘‘(2) A rail carrier directed to route property transported under paragraph (1) of this subsection must issue a through bill of lading

containing the routing instructions and transport the property

according to the instructions. When the property is delivered to

a connecting rail carrier, that rail carrier must also receive and

transport it according to the routing instructions and deliver it

to the next succeeding rail carrier or consignee according to the

instructions.

‘‘(b) The Board may prescribe exceptions to the authority of

a person to direct the movement of traffic under subsection (a)

of this section.

‘‘CHAPTER 109—LICENSING

‘‘Sec.

‘‘10901. Authorizing construction and operation of railroad lines.

‘‘10902. Short line purchases by Class II and Class III rail carriers.

‘‘10903. Filing and procedure for application to abandon or discontinue.

‘‘10904. Offers of financial assistance to avoid abandonment and discontinuance.

‘‘10905. Offering abandoned rail properties for sale for public purposes.

‘‘10906. Exception.

‘‘10907. Railroad development.

‘‘§ 10901. Authorizing construction and operation of railroad

lines

‘‘(a) A person may—

‘‘(1) construct an extension to any of its railroad lines;

‘‘(2) construct an additional railroad line;

‘‘(3) provide transportation over, or by means of, an

extended or additional railroad line; or

‘‘(4) in the case of a person other than a rail carrier,

acquire a railroad line or acquire or operate an extended or

additional railroad line,

only if the Board issues a certificate authorizing such activity

under subsection (c).

‘‘(b) A proceeding to grant authority under subsection (a) of

this section begins when an application is filed. On receiving the

application, the Board shall give reasonable public notice, including

notice to the Governor of any affected State, of the beginning

of such proceeding.

‘‘(c) The Board shall issue a certificate authorizing activities

for which such authority is requested in an application filed under

subsection (b) unless the Board finds that such activities are

inconsistent with the public convenience and necessity. Such certificate may approve the application as filed, or with modifications,

and may require compliance with conditions (other than labor

protection conditions) the Board finds necessary in the public

interest.

‘‘(d)(1) When a certificate has been issued by the Board under

this section authorizing the construction or extension of a railroad

line, no other rail carrier may block any construction or extension

authorized by such certificate by refusing to permit the carrier

to cross its property if—

‘‘(A) the construction does not unreasonably interfere with

the operation of the crossed line;

‘‘(B) the operation does not materially interfere with the

operation of the crossed line; and

Certificate.

Notice.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 823

‘‘(C) the owner of the crossing line compensates the owner

of the crossed line.

‘‘(2) If the parties are unable to agree on the terms of operation

or the amount of payment for purposes of paragraph (1) of this

subsection, either party may submit the matters in dispute to

the Board for determination. The Board shall make a determination

under this paragraph within 120 days after the dispute is submitted

for determination.

‘‘§ 10902. Short line purchases by Class II and Class III rail

carriers

‘‘(a) A Class II or Class III rail carrier providing transportation

subject to the jurisdiction of the Board under this part may acquire

or operate an extended or additional rail line under this section

only if the Board issues a certificate authorizing such activity

under subsection (c).

‘‘(b) A proceeding to grant authority under subsection (a) of

this section begins when an application is filed. On receiving the

application, the Board shall give reasonable public notice of the

beginning of such proceeding.

‘‘(c) The Board shall issue a certificate authorizing activities

for which such authority is requested in an application filed under

subsection (b) unless the Board finds that such activities are

inconsistent with the public convenience and necessity. Such certificate may approve the application as filed, or with modifications,

and may require compliance with conditions (other than labor

protection conditions) the Board finds necessary in the public

interest.

‘‘(d) The Board shall require any Class II rail carrier which

receives a certificate under subsection (c) of this section to provide

a fair and equitable arrangement for the protection of the interests

of employees who may be affected thereby. The arrangement shall

consist exclusively of one year of severance pay, which shall not

exceed the amount of earnings from railroad employment of the

employee during the 12-month period immediately preceding the

date on which the application for such certificate is filed with

the Board. The amount of such severance pay shall be reduced

by the amount of earnings from railroad employment of the

employee with the acquiring carrier during the 12-month period

immediately following the effective date of the transaction to which

the certificate applies. The parties may agree to terms other than

as provided in this subsection. The Board shall not require such

an arrangement from a Class III rail carrier which receives a

certificate under subsection (c) of this section.

‘‘§ 10903. Filing and procedure for application to abandon

or discontinue

‘‘(a)(1) A rail carrier providing transportation subject to the

jurisdiction of the Board under this part who intends to—

‘‘(A) abandon any part of its railroad lines; or

‘‘(B) discontinue the operation of all rail transportation

over any part of its railroad lines,

must file an application relating thereto with the Board. An

abandonment or discontinuance may be carried out only as authorized under this chapter.

Certificate.

Notice.

109 STAT. 824 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) When a rail carrier providing transportation subject to

the jurisdiction of the Board under this part files an application,

the application shall include—

‘‘(A) an accurate and understandable summary of the rail

carrier’s reasons for the proposed abandonment or discontinuance;

‘‘(B) a statement indicating that each interested person

is entitled to make recommendations to the Board on the future

of the rail line; and

‘‘(C)(i) a statement that the line is available for subsidy

or sale in accordance with section 10904 of this title, (ii) a

statement that the rail carrier will promptly provide to each

interested party an estimate of the annual subsidy and minimum purchase price, calculated in accordance with section

10904 of this title, and (iii) the name and business address

of the person who is authorized to discuss the subsidy or

sale terms for the rail carrier.

‘‘(3) The rail carrier shall—

‘‘(A) send by certified mail notice of the application to

the chief executive officer of each State that would be directly

affected by the proposed abandonment or discontinuance;

‘‘(B) post a copy of the notice in each terminal and station

on each portion of a railroad line proposed to be abandoned

or over which all transportation is to be discontinued;

‘‘(C) publish a copy of the notice for 3 consecutive weeks

in a newspaper of general circulation in each county in which

each such portion is located;

‘‘(D) mail a copy of the notice, to the extent practicable,

to all shippers that have made significant use (as designated

by the Board) of the railroad line during the 12 months preceding the filing of the application; and

‘‘(E) attach to the application filed with the Board an

affidavit certifying the manner in which subparagraphs (A)

through (D) of this paragraph have been satisfied, and certifying

that subparagraphs (A) through (D) have been satisfied within

the most recent 30 days prior to the date the application

is filed.

‘‘(b)(1) Except as provided in subsection (d), abandonment and

discontinuance may occur as provided in section 10904.

‘‘(2) The Board shall require as a condition of any abandonment

or discontinuance under this section provisions to protect the

interests of employees. The provisions shall be at least as beneficial

to those interests as the provisions established under sections

11326(a) and 24706(c) of this title.

‘‘(c)(1) In this subsection, the term ‘potentially subject to

abandonment’ has the meaning given the term in regulations of

the Board. The regulations may include standards that vary by

region of the United States and by railroad or group of railroads.

‘‘(2) Each rail carrier shall maintain a complete diagram of

the transportation system operated, directly or indirectly, by the

rail carrier. The rail carrier shall submit to the Board and publish

amendments to its diagram that are necessary to maintain the

accuracy of the diagram. The diagram shall—

‘‘(A) include a detailed description of each of its railroad

lines potentially subject to abandonment; and

Publication.

Certification.

Publication.

Newspapers.

Notice.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 825

‘‘(B) identify each railroad line for which the rail carrier

plans to file an application to abandon or discontinue under

subsection (a) of this section.

‘‘(d) A rail carrier providing transportation subject to the jurisdiction of the Board under this part may—

‘‘(1) abandon any part of its railroad lines; or

‘‘(2) discontinue the operation of all rail transportation

over any part of its railroad lines;

only if the Board finds that the present or future public convenience

and necessity require or permit the abandonment or discontinuance.

In making the finding, the Board shall consider whether the

abandonment or discontinuance will have a serious, adverse impact

on rural and community development.

‘‘(e) Subject to this section and sections 10904 and 10905 of

this title, if the Board—

‘‘(1) finds public convenience and necessity, it shall—

‘‘(A) approve the application as filed; or

‘‘(B) approve the application with modifications and

require compliance with conditions that the Board finds

are required by public convenience and necessity; or

‘‘(2) fails to find public convenience and necessity, it shall

deny the application.

‘‘§ 10904. Offers of financial assistance to avoid abandonment

and discontinuance

‘‘(a) In this section—

‘‘(1) the term ‘avoidable cost’ means all expenses that would

be incurred by a rail carrier in providing transportation that

would not be incurred if the railroad line over which the

transportation was provided were abandoned or if the transportation were discontinued. Expenses include cash inflows foregone and cash outflows incurred by the rail carrier as a result

of not abandoning or discontinuing the transportation. Cash

inflows foregone and cash outflows incurred include—

‘‘(A) working capital and required capital expenditure;

‘‘(B) expenditures to eliminate deferred maintenance;

‘‘(C) the current cost of freight cars, locomotives, and

other equipment; and

‘‘(D) the foregone tax benefits from not retiring properties from rail service and other effects of applicable Federal and State income taxes; and

‘‘(2) the term ‘reasonable return’ means—

‘‘(A) if a rail carrier is not in reorganization, the cost

of capital to the rail carrier, as determined by the Board;

and

‘‘(B) if a rail carrier is in reorganization, the mean

cost of capital of rail carriers not in reorganization, as

determined by the Board.

‘‘(b) Any rail carrier which has filed an application for abandonment or discontinuance shall provide promptly to a party considering an offer of financial assistance and shall provide concurrently

to the Board—

‘‘(1) an estimate of the annual subsidy and minimum purchase price required to keep the line or a portion of the line

in operation;

109 STAT. 826 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) its most recent reports on the physical condition of

that part of the railroad line involved in the proposed abandonment or discontinuance;

‘‘(3) traffic, revenue, and other data necessary to determine

the amount of annual financial assistance which would be

required to continue rail transportation over that part of the

railroad line; and

‘‘(4) any other information that the Board considers necessary to allow a potential offeror to calculate an adequate

subsidy or purchase offer.

‘‘(c) Within 4 months after an application is filed under section

10903, any person may offer to subsidize or purchase the railroad

line that is the subject of such application. Such offer shall be

filed concurrently with the Board. If the offer to subsidize or purchase is less than the carrier’s estimate stated pursuant to subsection (b)(1), the offer shall explain the basis of the disparity,

and the manner in which the offer is calculated.

‘‘(d)(1) Unless the Board, within 15 days after the expiration

of the 4-month period described in subsection (c), finds that one

or more financially responsible persons (including a governmental

authority) have offered financial assistance regarding that part

of the railroad line to be abandoned or over which all rail transportation is to be discontinued, abandonment or discontinuance may

be carried out in accordance with section 10903.

‘‘(2) If the Board finds that such an offer or offers of financial

assistance has been made within such period, abandonment or

discontinuance shall be postponed until—

‘‘(A) the carrier and a financially responsible person have

reached agreement on a transaction for subsidy or sale of

the line; or

‘‘(B) the conditions and amount of compensation are established under subsection (f).

‘‘(e) Except as provided in subsection (f)(3), if the rail carrier

and a financially responsible person (including a governmental

authority) fail to agree on the amount or terms of the subsidy

or purchase, either party may, within 30 days after the offer is

made, request that the Board establish the conditions and amount

of compensation.

‘‘(f)(1) Whenever the Board is requested to establish the conditions and amount of compensation under this section—

‘‘(A) the Board shall render its decision within 30 days;

‘‘(B) for proposed sales, the Board shall determine the

price and other terms of sale, except that in no case shall

the Board set a price which is below the fair market value

of the line (including, unless otherwise mutually agreed, all

facilities on the line or portion necessary to provide effective

transportation services); and

‘‘(C) for proposed subsidies, the Board shall establish the

compensation as the difference between the revenues attributable to that part of the railroad line and the avoidable cost

of providing rail freight transportation on the line, plus a

reasonable return on the value of the line.

‘‘(2) The decision of the Board shall be binding on both parties,

except that the person who has offered to subsidize or purchase

the line may withdraw his offer within 10 days of the Board’s

decision. In such a case, the abandonment or discontinuance may

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 827

be carried out immediately, unless other offers are being considered

pursuant to paragraph (3) of this subsection. ‘‘(3) If a rail carrier receives more than one offer to subsidize

or purchase, it shall select the offeror with whom it wishes to

transact business, and complete the subsidy or sale agreement,

or request that the Board establish the conditions and amount

of compensation before the 40th day after the expiration of the

4-month period described in subsection (c). If no agreement on

subsidy or sale is reached within such 40-day period and the Board

has not been requested to establish the conditions and amount

of compensation, any other offeror whose offer was made within

the 4-month period described in subsection (c) may request that

the Board establish the conditions and amount of compensation.

If the Board has established the conditions and amount of compensation, and the original offer has been withdrawn, any other

offeror whose offer was made within the 4-month period described

in subsection (c) may accept the Board’s decision within 20 days

after such decision, and the Board shall require the carrier to

enter into a subsidy or sale agreement with such offeror, if such

subsidy or sale agreement incorporates the Board’s decision.

‘‘(4)(A) No purchaser of a line or portion of line sold under

this section may transfer or discontinue service on such line prior

to the end of the second year after consummation of the sale,

nor may such purchaser transfer such line, except to the rail carrier

from whom it was purchased, prior to the end of the fifth year

after consummation of the sale.

‘‘(B) No subsidy arrangement approved under this section shall

remain in effect for more than one year, unless otherwise mutually

agreed by the parties.

‘‘(g) Upon abandonment of a railroad line under this chapter,

the obligation of the rail carrier abandoning the line to provide

transportation on that line, as required by section 11101(a), is

extinguished.

‘‘§ 10905. Offering abandoned rail properties for sale for public purposes

‘‘When the Board approves an application to abandon or discontinue under section 10903, the Board shall find whether the

rail properties that are involved in the proposed abandonment

or discontinuance are appropriate for use for public purposes,

including highways, other forms of mass transportation, conservation, energy production or transmission, or recreation. If the Board

finds that the rail properties proposed to be abandoned are appropriate for public purposes and not required for continued rail operations, the properties may be sold, leased, exchanged, or otherwise

disposed of only under conditions provided in the order of the

Board. The conditions may include a prohibition on any such disposal for a period of not more than 180 days after the effective

date of the order, unless the properties have first been offered,

on reasonable terms, for sale for public purposes.

‘‘§ 10906. Exception

‘‘Notwithstanding section 10901 and subchapter II of chapter

113 of this title, and without the approval of the Board, a rail

carrier providing transportation subject to the jurisdiction of the

Board under this part may enter into arrangements for the joint

ownership or joint use of spur, industrial, team, switching, or side

109 STAT. 828 PUBLIC LAW 104–88—DEC. 29, 1995

tracks. The Board does not have authority under this chapter

over construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks.

‘‘§ 10907. Railroad development

‘‘(a) In this section, the term ‘financially responsible person’

means a person who—

‘‘(1) is capable of paying the constitutional minimum value

of the railroad line proposed to be acquired; and

‘‘(2) is able to assure that adequate transportation will

be provided over such line for a period of not less than 3

years.

Such term includes a governmental authority but does not include

a Class I or Class II rail carrier.

‘‘(b)(1) When the Board finds that—

‘‘(A)(i) the public convenience and necessity require or permit the sale of a particular railroad line under this section;

or

‘‘(ii) a railroad line is on a system diagram map as required

under section 10903 of this title, but the rail carrier owning

such line has not filed an application to abandon such line

under section 10903 of this title before an application to purchase such line, or any required preliminary filing with respect

to such application, is filed under this section; and

‘‘(B) an application to purchase such line has been filed

by a financially responsible person,

the Board shall require the rail carrier owning the railroad line

to sell such line to such financially responsible person at a price

not less than the constitutional minimum value.

‘‘(2) For purposes of this subsection, the constitutional minimum

value of a particular railroad line shall be presumed to be not

less than the net liquidation value of such line or the going concern

value of such line, whichever is greater.

‘‘(c)(1) For purposes of this section, the Board may determine

that the public convenience and necessity require or permit the

sale of a railroad line if the Board determines, after a hearing

on the record, that—

‘‘(A) the rail carrier operating such line refuses within

a reasonable time to make the necessary efforts to provide

adequate service to shippers who transport traffic over such

line;

‘‘(B) the transportation over such line is inadequate for

the majority of shippers who transport traffic over such line;

‘‘(C) the sale of such line will not have a significantly

adverse financial effect on the rail carrier operating such line;

‘‘(D) the sale of such line will not have an adverse effect

on the overall operational performance of the rail carrier operating such line; and

‘‘(E) the sale of such line will be likely to result in improved

railroad transportation for shippers that transport traffic over

such line.

‘‘(2) In a proceeding under this subsection, the burden of proving

that the public convenience and necessity require or permit the

sale of a particular railroad line is on the person filing the application to acquire such line. If the Board finds under this subsection

that the public convenience and necessity require or permit the

sale of a particular railroad line, the Board shall concurrently

Notification.

Federal Register,

publication.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 829

notify the parties of such finding and publish such finding in

the Federal Register. ‘‘(d) In the case of any railroad line subject to sale under subsection (a) of this section, the Board shall, upon the request

of the acquiring carrier, require the selling carrier to provide to

the acquiring carrier trackage rights to allow a reasonable interchange with the selling carrier or to move power equipment or

empty rolling stock between noncontiguous feeder lines operated

by the acquiring carrier. The Board shall require the acquiring

carrier to provide the selling carrier reasonable compensation for

any such trackage rights.

‘‘(e) The Board shall require, to the maximum extent practicable, the use of the employees who would normally have performed work in connection with a railroad line subject to a sale

under this section.

‘‘(f) In the case of a railroad line which carried less than

3,000,000 gross ton miles of traffic per mile in the preceding calendar year, whenever a purchasing carrier under this section petitions the Board for joint rates applicable to traffic moving over

through routes in which the purchasing carrier may practicably

participate, the Board shall, within 30 days after the date such

petition is filed and pursuant to section 10705(a) of this title,

require the establishment of reasonable joint rates and divisions

over such route.

‘‘(g)(1) Any person operating a railroad line acquired under

this section may elect to be exempt from any of the provisions

of this part, except that such a person may not be exempt from

the provisions of chapter 107 of this title with respect to transportation under a joint rate.

‘‘(2) The provisions of paragraph (1) of this subsection shall

apply to any line of railroad which was abandoned during the

18-month period immediately prior to October 1, 1980, and was

subsequently purchased by a financially responsible person.

‘‘(h) If a purchasing carrier under this section proposes to

sell or abandon all or any portion of a purchased railroad line,

such purchasing carrier shall offer the right of first refusal with

respect to such line or portion thereof to the carrier which sold

such line under this section. Such offer shall be made at a price

equal to the sum of the price paid by such purchasing carrier

to such selling carrier for such line or portion thereof and the

fair market value (less deterioration) of any improvements made,

as adjusted to reflect inflation.

‘‘(i) Any person operating a railroad line acquired under this

section may determine preconditions, such as payment of a subsidy,

which must be met by shippers in order to obtain service over

such lines, but such operator must notify the shippers on the

line of its intention to impose such preconditions.

‘‘CHAPTER 111—OPERATIONS

‘‘SUBCHAPTER I—GENERAL REQUIREMENTS

‘‘Sec.

‘‘11101. Common carrier transportation, service, and rates.

‘‘11102. Use of terminal facilities.

‘‘11103. Switch connections and tracks.

‘‘SUBCHAPTER II—CAR SERVICE

‘‘11121. Criteria.

Applicability.

109 STAT. 830 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘11122. Compensation and practice.

‘‘11123. Situations requiring immediate action to serve the public.

‘‘11124. War emergencies; embargoes imposed by carriers.

‘‘SUBCHAPTER III—REPORTS AND RECORDS

‘‘11141. Definitions.

‘‘11142. Uniform accounting system.

‘‘11143. Depreciation charges.

‘‘11144. Records: form; inspection; preservation.

‘‘11145. Reports by rail carriers, lessors, and associations.

‘‘SUBCHAPTER IV—RAILROAD COST ACCOUNTING

‘‘11161. Implementation of cost accounting principles.

‘‘11162. Rail carrier cost accounting system.

‘‘11163. Cost availability.

‘‘11164. Accounting and cost reporting.

‘‘SUBCHAPTER I—GENERAL REQUIREMENTS

‘‘§ 11101. Common carrier transportation, service, and rates

‘‘(a) A rail carrier providing transportation or service subject

to the jurisdiction of the Board under this part shall provide the

transportation or service on reasonable request. A rail carrier shall

not be found to have violated this section because it fulfills its

reasonable commitments under contracts authorized under section

10709 of this title before responding to reasonable requests for

service. Commitments which deprive a carrier of its ability to

respond to reasonable requests for common carrier service are not

reasonable.

‘‘(b) A rail carrier shall also provide to any person, on request,

the carrier’s rates and other service terms. The response by a

rail carrier to a request for the carrier’s rates and other service

terms shall be—

‘‘(1) in writing and forwarded to the requesting person

promptly after receipt of the request; or

‘‘(2) promptly made available in electronic form.

‘‘(c) A rail carrier may not increase any common carrier rates

or change any common carrier service terms unless 20 days have

expired after written or electronic notice is provided to any person

who, within the previous 12 months—

‘‘(1) has requested such rates or terms under subsection

(b); or

‘‘(2) has made arrangements with the carrier for a shipment

that would be subject to such increased rates or changed terms.

‘‘(d) With respect to transportation of agricultural products,

in addition to the requirements of subsections (a), (b), and (c),

a rail carrier shall publish, make available, and retain for public

inspection its common carrier rates, schedules of rates, and other

service terms, and any proposed and actual changes to such rates

and service terms. For purposes of this subsection, agricultural

products shall include grain as defined in section 3 of the United

States Grain Standards Act (7 U.S.C. 75) and all products thereof,

and fertilizer.

‘‘(e) A rail carrier shall provide transportation or service in

accordance with the rates and service terms, and any changes

thereto, as published or otherwise made available under subsection

(b), (c), or (d).

‘‘(f) The Board shall, by regulation, establish rules to implement

this section. The regulations shall provide for immediate disclosure

and dissemination of rates and service terms, including classificaRegulations.

Publication.

Public

information.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 831

tions, rules, and practices, and their effective dates. Final regulations shall be adopted by the Board not later than 180 days after

the effective date of the ICC Termination Act of 1995.

‘‘§ 11102. Use of terminal facilities

‘‘(a) The Board may require terminal facilities, including mainline tracks for a reasonable distance outside of a terminal, owned

by a rail carrier providing transportation subject to the jurisdiction

of the Board under this part, to be used by another rail carrier

if the Board finds that use to be practicable and in the public

interest without substantially impairing the ability of the rail carrier owning the facilities or entitled to use the facilities to handle

its own business. The rail carriers are responsible for establishing

the conditions and compensation for use of the facilities. However,

if the rail carriers cannot agree, the Board may establish conditions

and compensation for use of the facilities under the principle

controlling compensation in condemnation proceedings. The compensation shall be paid or adequately secured before a rail carrier

may begin to use the facilities of another rail carrier under this

section.

‘‘(b) A rail carrier whose terminal facilities are required to

be used by another rail carrier under this section is entitled to

recover damages from the other rail carrier for injuries sustained

as the result of compliance with the requirement or for compensation for the use, or both as appropriate, in a civil action, if it

is not satisfied with the conditions for use of the facilities or

if the amount of the compensation is not paid promptly.

‘‘(c)(1) The Board may require rail carriers to enter into reciprocal switching agreements, where it finds such agreements to

be practicable and in the public interest, or where such agreements

are necessary to provide competitive rail service. The rail carriers

entering into such an agreement shall establish the conditions

and compensation applicable to such agreement, but, if the rail

carriers cannot agree upon such conditions and compensation within

a reasonable period of time, the Board may establish such conditions

and compensation.

‘‘(2) The Board may require reciprocal switching agreements

entered into by rail carriers pursuant to this subsection to contain

provisions for the protection of the interests of employees affected

thereby.

‘‘(d) The Board shall complete any proceeding under subsection

(a) or (b) within 180 days after the filing of the request for relief.

‘‘§ 11103. Switch connections and tracks

‘‘(a) On application of the owner of a lateral branch line of

railroad, or of a shipper tendering interstate traffic for transportation, a rail carrier providing transportation subject to the jurisdiction of the Board under this part shall construct, maintain, and

operate, on reasonable conditions, a switch connection to connect

that branch line or private side track with its railroad and shall

furnish cars to move that traffic to the best of its ability without

discrimination in favor of or against the shipper when the connection—

‘‘(1) is reasonably practicable;

‘‘(2) can be made safely; and

‘‘(3) will furnish sufficient business to justify its construction and maintenance.

109 STAT. 832 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(b) If a rail carrier fails to install and operate a switch connection after application is made under subsection (a) of this section,

the owner of the lateral branch line of railroad or the shipper

may file a complaint with the Board under section 11701 of this

title. The Board shall investigate the complaint and decide the

safety, practicability, justification, and compensation to be paid

for the connection. The Board may direct the rail carrier to comply

with subsection (a) of this section only after a full hearing.

‘‘SUBCHAPTER II—CAR SERVICE

‘‘§ 11121. Criteria

‘‘(a)(1) A rail carrier providing transportation subject to the

jurisdiction of the Board under this part shall furnish safe and

adequate car service and establish, observe, and enforce reasonable

rules and practices on car service. The Board may require a rail

carrier to provide facilities and equipment that are reasonably

necessary to furnish safe and adequate car service if the Board

decides that the rail carrier has materially failed to furnish that

service. The Board may begin a proceeding under this paragraph

when an interested person files an application with it. The Board

may act only after a hearing on the record and an affirmative

finding, based on the evidence presented, that— ‘‘(A) providing the facilities or equipment will not materially

and adversely affect the ability of the rail carrier to provide

safe and adequate transportation;

‘‘(B) the amount spent for the facilities or equipment,

including a return equal to the rail carrier’s current cost of

capital, will be recovered; and

‘‘(C) providing the facilities or equipment will not impair

the ability of the rail carrier to attract adequate capital.

‘‘(2) The Board may require a rail carrier to file its car service

rules with the Board.

‘‘(b) The Board may designate and appoint agents and agencies

to make and carry out its directions related to car service and

matters under sections 11123 and 11124(a)(1) of this title.

‘‘(c) The Board shall consult, as it considers necessary, with

the National Grain Car Council on matters within the charter

of that body.

‘‘§ 11122. Compensation and practice

‘‘(a) The regulations of the Board on car service shall encourage

the purchase, acquisition, and efficient use of freight cars. The

regulations may include—

‘‘(1) the compensation to be paid for the use of a locomotive,

freight car, or other vehicle;

‘‘(2) the other terms of any arrangement for the use by

a rail carrier of a locomotive, freight car, or other vehicle

not owned by the rail carrier using the locomotive, freight

car, or other vehicle, whether or not owned by another carrier,

shipper, or third person; and

‘‘(3) sanctions for nonobservance.

‘‘(b) The rate of compensation to be paid for each type of

freight car shall be determined by the expense of owning and

maintaining that type of freight car, including a fair return on

its cost giving consideration to current costs of capital, repairs,

materials, parts, and labor. In determining the rate of compensaSafety.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 833

tion, the Board shall consider the transportation use of each type

of freight car, the national level of ownership of each type of

freight car, and other factors that affect the adequacy of the national

freight car supply.

‘‘§ 11123. Situations requiring immediate action to serve the

public

‘‘(a) When the Board determines that shortage of equipment,

congestion of traffic, unauthorized cessation of operations, or other

failure of traffic movement exists which creates an emergency situation of such magnitude as to have substantial adverse effects on

shippers, or on rail service in a region of the United States, or

that a rail carrier providing transportation subject to the jurisdiction of the Board under this part cannot transport the traffic

offered to it in a manner that properly serves the public, the

Board may, to promote commerce and service to the public, for

a period not to exceed 30 days—

‘‘(1) direct the handling, routing, and movement of the

traffic of a rail carrier and its distribution over its own or

other railroad lines;

‘‘(2) require joint or common use of railroad facilities;

‘‘(3) prescribe temporary through routes; or

‘‘(4) give directions for—

‘‘(A) preference or priority in transportation;

‘‘(B) embargoes; or

‘‘(C) movement of traffic under permits.

‘‘(b)(1) Except with respect to proceedings under paragraph

(2) of this subsection, the Board may act under this section on

its own initiative or on application without regard to subchapter

II of chapter 5 of title 5.

‘‘(2) Rail carriers may establish between themselves the terms

of compensation for operations, and use of facilities and equipment,

required under this section. When rail carriers do not agree on

the terms of compensation under this section, the Board may establish the terms for them. The Board may act under subsection

(a) before conducting a proceeding under this paragraph.

‘‘(3) When a rail carrier is directed under this section to operate

the lines of another rail carrier due to that carrier’s cessation

of operations, compensation for the directed operations shall derive

only from revenues generated by the directed operations.

‘‘(c)(1) The Board may extend any action taken under subsection

(a) of this section beyond 30 days if the Board finds that a transportation emergency described in subsection (a) continues to exist.

Action by the Board under subsection (a) of this section may not

remain in effect for more than 240 days beyond the initial 30-

day period.

‘‘(2) The Board may not take action under this section that

would—

‘‘(A) cause a rail carrier to operate in violation of this

part; or

‘‘(B) impair substantially the ability of a rail carrier to

serve its own customers adequately, or to fulfill its common

carrier obligations.

‘‘(3) A rail carrier directed by the Board to take action under

this section is not responsible, as a result of that action, for debts

of any other rail carrier.

109 STAT. 834 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(d) In carrying out this section, the Board shall require, to

the maximum extent practicable, the use of employees who would

normally have performed work in connection with the traffic subject

to the action of the Board.

‘‘§ 11124. War emergencies; embargoes imposed by carriers

‘‘(a)(1) When the President, during time of war or threatened

war, notifies the Board that it is essential to the defense and

security of the United States to give preference or priority to the

movement of certain traffic, the Board shall direct that preference

or priority be given to that traffic. ‘‘(2) When the President, during time of war or threatened

war, demands that preference and precedence be given to the

transportation of troops and material of war over all other traffic,

all rail carriers providing transportation subject to the jurisdiction

of the Board under this part shall adopt every means within their

control to facilitate and expedite the military traffic.

‘‘(b) An embargo imposed by any such rail carrier does not

apply to shipments consigned to agents of the United States Government for its use. The rail carrier shall deliver those shipments

as promptly as possible.

‘‘SUBCHAPTER III—REPORTS AND RECORDS

‘‘§ 11141. Definitions

‘‘In this subchapter—

‘‘(1) the terms ‘rail carrier’ and ‘lessor’ include a receiver

or trustee of a rail carrier and lessor, respectively;

‘‘(2) the term ‘lessor’ means a person owning a railroad

that is leased to and operated by a carrier providing transportation subject to the jurisdiction of the Board under this part;

and

‘‘(3) the term ‘association’ means an organization maintained by or in the interest of a group of rail carriers providing

transportation or service subject to the jurisdiction of the Board

under this part that performs a service, or engages in activities,

related to transportation under this part.

‘‘§ 11142. Uniform accounting system

‘‘The Board may prescribe a uniform accounting system for

classes of rail carriers providing transportation subject to the jurisdiction of the Board under this part. To the maximum extent

practicable, the Board shall conform such system to generally

accepted accounting principles, and shall administer this subchapter

in accordance with such principles.

‘‘§ 11143. Depreciation charges

‘‘The Board shall, for a class of rail carriers providing transportation subject to its jurisdiction under this part, prescribe, and

change when necessary, those classes of property for which depreciation charges may be included under operating expenses and a

rate of depreciation that may be charged to a class of property.

The Board may classify those rail carriers for purposes of this

section. A rail carrier for whom depreciation charges and rates

of depreciation are in effect under this section for any class of

property may not—

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 835

‘‘(1) charge to operating expenses a depreciation charge

on a class of property other than that prescribed by the Board; ‘‘(2) charge another rate of depreciation; or

‘‘(3) include other depreciation charges in operating

expenses.

‘‘§ 11144. Records: form; inspection; preservation

‘‘(a) The Board may prescribe the form of records required

to be prepared or compiled under this subchapter—

‘‘(1) by rail carriers and lessors, including records related

to movement of traffic and receipts and expenditures of money;

and

‘‘(2) by persons furnishing cars to or for a rail carrier

providing transportation subject to the jurisdiction of the Board

under this part to the extent related to those cars or that

service.

‘‘(b) The Board, or an employee designated by the Board, may

on demand and display of proper credentials—

‘‘(1) inspect and examine the lands, buildings, and equipment of a rail carrier or lessor; and

‘‘(2) inspect and copy any record of—

‘‘(A) a rail carrier, lessor, or association;

‘‘(B) a person controlling, controlled by, or under common control with a rail carrier if the Board considers

inspection relevant to that person’s relation to, or transaction with, that rail carrier; and

‘‘(C) a person furnishing cars to or for a rail carrier

if the Board prescribed the form of that record.

‘‘(c) The Board may prescribe the time period during which

operating, accounting, and financial records must be preserved by

rail carriers, lessors, and persons furnishing cars.

‘‘§ 11145. Reports by rail carriers, lessors, and associations

‘‘(a) The Board may require—

‘‘(1) rail carriers, lessors, and associations, or classes of

them as the Board may prescribe, to file annual, periodic,

and special reports with the Board containing answers to questions asked by it; and ‘‘(2) a person furnishing cars to a rail carrier to file reports

with the Board containing answers to questions about those

cars.

‘‘(b)(1) An annual report shall contain an account, in as much

detail as the Board may require, of the affairs of the rail carrier,

lessor, or association for the 12-month period ending on December

31 of each year. ‘‘(2) An annual report shall be filed with the Board by the

end of the third month after the end of the year for which the

report is made unless the Board extends the filing date or changes

the period covered by the report. The annual report and, if the

Board requires, any other report made under this section, shall

be made under oath.

‘‘SUBCHAPTER IV—RAILROAD COST ACCOUNTING

‘‘§ 11161. Implementation of cost accounting principles

‘‘The Board shall periodically review its cost accounting rules

and shall make such changes in those rules as are required to

109 STAT. 836 PUBLIC LAW 104–88—DEC. 29, 1995

achieve the regulatory purposes of this part. The Board shall insure

that the rules promulgated under this section are the most efficient

and least burdensome means by which the required information

may be developed for regulatory purposes. To the maximum extent

practicable, the Board shall conform such rules to generally accepted

accounting principles.

‘‘§ 11162. Rail carrier cost accounting system

‘‘(a) Each rail carrier shall have and maintain a cost accounting

system that is in compliance with the rules promulgated by the

Board under section 11161 of this title. A rail carrier may, after

notifying the Board, make modifications in such system unless,

within 60 days after the date of notification, the Board finds such

modifications to be inconsistent with the rules promulgated by

the Board under section 11161 of this title.

‘‘(b) For purposes of determining whether the cost accounting

system of a rail carrier is in compliance with the rules promulgated

by the Board, the Board shall have the right to examine and

make copies of any documents, papers, or records of such rail

carrier relating to compliance with such rules. Such documents,

papers, and records (and any copies thereof) shall not be subject

to the mandatory disclosure requirements of section 552 of title

5.

‘‘§ 11163. Cost availability

‘‘As required by the rules of the Board governing discovery

in Board proceedings, rail carriers shall make relevant cost data

available to shippers, States, ports, communities, and other

interested parties that are a party to a Board proceeding in which

such data are required.

‘‘§ 11164. Accounting and cost reporting

‘‘To obtain expense and revenue information for regulatory

purposes, the Board may promulgate reasonable rules for rail carriers providing transportation subject to the jurisdiction of the

Board under this part, prescribing expense and revenue accounting

and reporting requirements consistent with generally accepted

accounting principles uniformly applied to such carriers. Such

requirements shall be cost effective and compatible with and not

duplicative of the managerial and responsibility accounting requirements of those carriers.

‘‘CHAPTER 113—FINANCE

‘‘SUBCHAPTER I—EQUIPMENT TRUSTS AND SECURITY INTERESTS

‘‘Sec.

‘‘11301. Equipment trusts: recordation; evidence of indebtedness.

‘‘SUBCHAPTER II—COMBINATIONS

‘‘11321. Scope of authority.

‘‘11322. Limitation on pooling and division of transportation or earnings.

‘‘11323. Consolidation, merger, and acquisition of control.

‘‘11324. Consolidation, merger, and acquisition of control: conditions of approval.

‘‘11325. Consolidation, merger, and acquisition of control: procedure.

‘‘11326. Employee protective arrangements in transactions involving rail carriers.

‘‘11327. Supplemental orders.

‘‘11328. Restrictions on officers and directors.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 837

‘‘SUBCHAPTER I—EQUIPMENT TRUSTS AND SECURITY

INTERESTS

‘‘§ 11301. Equipment trusts: recordation; evidence of indebtedness

‘‘(a) A mortgage (other than a mortgage under chapter 313 of title 46), lease, equipment trust agreement, conditional sales

agreement, or other instrument evidencing the mortgage, lease,

conditional sale, or bailment of or security interest in vessels, railroad cars, locomotives, or other rolling stock, or accessories used

on such railroad cars, locomotives, or other rolling stock (including

superstructures and racks), intended for a use related to interstate

commerce shall be filed with the Board in order to perfect the

security interest that is the subject of such instrument. An assignment of a right or interest under one of those instruments and

an amendment to that instrument or assignment including a

release, discharge, or satisfaction of any part of it shall also be

filed with the Board. The instrument, assignment, or amendment

must be in writing, executed by the parties to it, and acknowledged

or verified under Board regulations. When filed under this section,

that document is notice to, and enforceable against, all persons.

A document filed under this section does not have to be filed,

deposited, registered, or recorded under another law of the United

States, a State (or its political subdivisions), or territory or possession of the United States, related to filing, deposit, registration,

or recordation of those documents. This section does not change

chapter 313 of title 46.

‘‘(b) The Board shall maintain a system for recording each document filed under subsection (a) of this section and mark each

of them with a consecutive number and the date and hour of

their recordation. The Board shall maintain and keep open for

public inspection an index of documents filed under that subsection.

That index shall include the name and address of the principal

debtors, trustees, guarantors, and other parties to those documents

and may include other facts that will assist in determining the

rights of the parties to those transactions.

‘‘(c) The Board may to the greatest extent practicable perform

its functions under this section through contracts with private

sector entities.

‘‘(d) A mortgage, lease, equipment trust agreement, conditional

sales agreement, or other instrument evidencing the mortgage,

lease, conditional sale, or bailment of or security interest in vessels,

railroad cars, locomotives, or other rolling stock, or accessories

used on such railroad cars, locomotives, or other rolling stock

(including superstructures and racks), or any assignment thereof,

which—

‘‘(1) is duly constituted under the laws of a country other

than the United States; and

‘‘(2) relates to property that bears the reporting marks

and identification numbers of any person domiciled in or corporation organized under the laws of such country,

shall be recognized with the same effect as having been filed under

this section.

‘‘(e) Interests with respect to which documents are filed or

recognized under this section are deemed perfected in all jurisdictions, and shall be governed by applicable State or foreign law

in all matters not specifically governed by this section.

Public

information.

109 STAT. 838 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(f) The Board shall collect, maintain, and keep open for public

inspection a railway equipment register consistent with the manner

and format maintained by the Interstate Commerce Commission

as of the effective date of the ICC Termination Act of 1995.

‘‘SUBCHAPTER II—COMBINATIONS

‘‘§ 11321. Scope of authority

‘‘(a) The authority of the Board under this subchapter is exclusive. A rail carrier or corporation participating in or resulting

from a transaction approved by or exempted by the Board under

this subchapter may carry out the transaction, own and operate

property, and exercise control or franchises acquired through the

transaction without the approval of a State authority. A rail carrier,

corporation, or person participating in that approved or exempted

transaction is exempt from the antitrust laws and from all other

law, including State and municipal law, as necessary to let that

rail carrier, corporation, or person carry out the transaction, hold,

maintain, and operate property, and exercise control or franchises

acquired through the transaction. However, if a purchase and sale,

a lease, or a corporate consolidation or merger is involved in the

transaction, the carrier or corporation may carry out the transaction

only with the assent of a majority, or the number required under

applicable State law, of the votes of the holders of the capital

stock of that corporation entitled to vote. The vote must occur

at a regular meeting, or special meeting called for that purpose,

of those stockholders and the notice of the meeting must indicate

its purpose.

‘‘(b) A power granted under this subchapter to a carrier or

corporation is in addition to and changes its powers under its

corporate charter and under State law. Action under this subchapter

does not establish or provide for establishing a corporation under

the laws of the United States.

‘‘§ 11322. Limitation on pooling and division of transportation or earnings

‘‘(a) A rail carrier providing transportation subject to the jurisdiction of the Board under this part may not agree or combine

with another of those rail carriers to pool or divide traffic or services

or any part of their earnings without the approval of the Board

under this section or section 11123 of this title. The Board may

approve and authorize the agreement or combination if the rail

carriers involved assent to the pooling or division and the Board

finds that a pooling or division of traffic, services, or earnings—

‘‘(1) will be in the interest of better service to the public

or of economy of operation; and

‘‘(2) will not unreasonably restrain competition.

‘‘(b) The Board may impose conditions governing the pooling

or division and may approve and authorize payment of a reasonable

consideration between the rail carriers.

‘‘(c) The Board may begin a proceeding under this section

on its own initiative or on application.

‘‘§ 11323. Consolidation, merger, and acquisition of control

‘‘(a) The following transactions involving rail carriers providing

transportation subject to the jurisdiction of the Board under this

Public

information.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 839

part may be carried out only with the approval and authorization

of the Board:

‘‘(1) Consolidation or merger of the properties or franchises

of at least 2 rail carriers into one corporation for the ownership,

management, and operation of the previously separately owned

properties.

‘‘(2) A purchase, lease, or contract to operate property of

another rail carrier by any number of rail carriers.

‘‘(3) Acquisition of control of a rail carrier by any number

of rail carriers.

‘‘(4) Acquisition of control of at least 2 rail carriers by

a person that is not a rail carrier.

‘‘(5) Acquisition of control of a rail carrier by a person

that is not a rail carrier but that controls any number of

rail carriers.

‘‘(6) Acquisition by a rail carrier of trackage rights over,

or joint ownership in or joint use of, a railroad line (and

terminals incidental to it) owned or operated by another rail

carrier.

‘‘(b) A person may carry out a transaction referred to in subsection (a) of this section or participate in achieving the control

or management, including the power to exercise control or management, in a common interest of more than one of those rail carriers,

regardless of how that result is reached, only with the approval

and authorization of the Board under this subchapter. In addition

to other transactions, each of the following transactions are considered achievements of control or management:

‘‘(1) A transaction by a rail carrier that has the effect

of putting that rail carrier and person affiliated with it, taken

together, in control of another rail carrier.

‘‘(2) A transaction by a person affiliated with a rail carrier

that has the effect of putting that rail carrier and persons

affiliated with it, taken together, in control of another rail

carrier.

‘‘(3) A transaction by at least 2 persons acting together

(one of whom is a rail carrier or is affiliated with a rail carrier)

that has the effect of putting those persons and rail carriers

and persons affiliated with any of them, or with any of those

affiliated rail carriers, taken together, in control of another

rail carrier.

‘‘(c) A person is affiliated with a rail carrier under this subchapter if, because of the relationship between that person and

a rail carrier, it is reasonable to believe that the affairs of another

rail carrier, control of which may be acquired by that person,

will be managed in the interest of the other rail carrier.

‘‘§ 11324. Consolidation, merger, and acquisition of control:

conditions of approval

‘‘(a) The Board may begin a proceeding to approve and authorize

a transaction referred to in section 11323 of this title on application

of the person seeking that authority. When an application is filed

with the Board, the Board shall notify the chief executive officer

of each State in which property of the rail carriers involved in

the proposed transaction is located and shall notify those rail carriers. The Board shall hold a public hearing unless the Board

determines that a public hearing is not necessary in the public

interest.

Notification.

109 STAT. 840 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(b) In a proceeding under this section which involves the

merger or control of at least two Class I railroads, as defined

by the Board, the Board shall consider at least—

‘‘(1) the effect of the proposed transaction on the adequacy

of transportation to the public;

‘‘(2) the effect on the public interest of including, or failing

to include, other rail carriers in the area involved in the proposed transaction;

‘‘(3) the total fixed charges that result from the proposed

transaction;

‘‘(4) the interest of rail carrier employees affected by the

proposed transaction; and

‘‘(5) whether the proposed transaction would have an

adverse effect on competition among rail carriers in the affected

region or in the national rail system.

‘‘(c) The Board shall approve and authorize a transaction under

this section when it finds the transaction is consistent with the

public interest. The Board may impose conditions governing the

transaction, including the divestiture of parallel tracks or requiring

the granting of trackage rights and access to other facilities. Any

trackage rights and related conditions imposed to alleviate anticompetitive effects of the transaction shall provide for operating

terms and compensation levels to ensure that such effects are

alleviated. When the transaction contemplates a guaranty or

assumption of payment of dividends or of fixed charges or will

result in an increase of total fixed charges, the Board may approve

and authorize the transaction only if it finds that the guaranty,

assumption, or increase is consistent with the public interest. The

Board may require inclusion of other rail carriers located in the

area involved in the transaction if they apply for inclusion and

the Board finds their inclusion to be consistent with the public

interest.

‘‘(d) In a proceeding under this section which does not involve

the merger or control of at least two Class I railroads, as defined

by the Board, the Board shall approve such an application unless

it finds that—

‘‘(1) as a result of the transaction, there is likely to be

substantial lessening of competition, creation of a monopoly,

or restraint of trade in freight surface transportation in any

region of the United States; and

‘‘(2) the anticompetitive effects of the transaction outweigh

the public interest in meeting significant transportation needs.

In making such findings, the Board shall, with respect to any

application that is part of a plan or proposal developed under

section 333(a)–(d) of this title, accord substantial weight to any

recommendations of the Attorney General.

‘‘(e) No transaction described in section 11326(b) may have

the effect of avoiding a collective bargaining agreement or shifting

work from a rail carrier with a collective bargaining agreement

to a rail carrier without a collective bargaining agreement.

‘‘(f)(1) To the extent provided in this subsection, a proceeding

under this subchapter relating to a transaction involving at least

one Class I rail carrier shall not be considered an adjudication

required by statute to be determined on the record after opportunity

for an agency hearing, for the purposes of subchapter II of chapter

5 of title 5, United States Code.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 841

‘‘(2) Ex parte communications, as defined in section 551(14)

of title 5, United States Code, shall be permitted in proceedings

described in paragraph (1) of this subsection, subject to the requirements of paragraph (3) of this subsection.

‘‘(3)(A) Any member or employee of the Board who makes

or receives a written ex parte communication concerning the merits

of a proceeding described in paragraph (1) shall promptly place

the communication in the public docket of the proceeding.

‘‘(B) Any member or employee of the Board who makes or

receives an oral ex parte communication concerning the merits

of a proceeding described in paragraph (1) shall promptly place

a written summary of the oral communication in the public docket

of the proceeding.

‘‘(4) Nothing in this subsection shall be construed to require

the Board or any of its members or employees to engage in any

ex parte communication with any person. Nothing in this subsection

or any other law shall be construed to limit the authority of the

members or employees of the Board, in their discretion, to note

in the docket or otherwise publicly the occurrence and substance

of an ex parte communication.

‘‘§ 11325. Consolidation, merger, and acquisition of control:

procedure

‘‘(a) The Board shall publish notice of the application under

section 11324 in the Federal Register by the end of the 30th

day after the application is filed with the Board. However, if the

application is incomplete, the Board shall reject it by the end

of that period. The order of rejection is a final action of the Board.

The published notice shall indicate whether the application

involves—

‘‘(1) the merger or control of at least two Class I railroads,

as defined by the Board, to be decided within the time limits

specified in subsection (b) of this section;

‘‘(2) transactions of regional or national transportation

significance, to be decided within the time limits specified in

subsection (c) of this section; or

‘‘(3) any other transaction covered by this section, to be

decided within the time limits specified in subsection (d) of

this section.

‘‘(b) If the application involves the merger or control of two

or more Class I railroads, as defined by the Board, the following

conditions apply:

‘‘(1) Written comments about an application may be filed

with the Board within 45 days after notice of the application

is published under subsection (a) of this section. Copies of

such comments shall be served on the Attorney General and

the Secretary of Transportation, who may decide to intervene

as a party to the proceeding. That decision must be made

by the 15th day after the date of receipt of the written comments, and if the decision is to intervene, preliminary comments

about the application must be sent to the Board by the end

of the 15th day after the date of receipt of the written

comments.

‘‘(2) The Board shall require that applications inconsistent

with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in

Federal Register,

publication.

109 STAT. 842 PUBLIC LAW 104–88—DEC. 29, 1995

the transaction, be filed with it by the 90th day after publication

of notice under that subsection.

‘‘(3) The Board must conclude evidentiary proceedings by

the end of 1 year after the date of publication of notice under

subsection (a) of this section. The Board must issue a final

decision by the 90th day after the date on which it concludes

the evidentiary proceedings.

‘‘(c) If the application involves a transaction other than the

merger or control of at least two Class I railroads, as defined

by the Board, which the Board has determined to be of regional

or national transportation significance, the following conditions

apply:

‘‘(1) Written comments about an application, including comments of the Attorney General and the Secretary of Transportation, may be filed with the Board within 30 days after notice

of the application is published under subsection (a) of this

section.

‘‘(2) The Board shall require that applications inconsistent

with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in

the transaction, be filed with it by the 60th day after publication

of notice under that subsection.

‘‘(3) The Board must conclude any evidentiary proceedings

by the 180th day after the date of publication of notice under

subsection (a) of this section. The Board must issue a final

decision by the 90th day after the date on which it concludes

the evidentiary proceedings.

‘‘(d) For all applications under this section other than those

specified in subsections (b) and (c) of this section, the following

conditions apply:

‘‘(1) Written comments about an application, including comments of the Attorney General and the Secretary of Transportation, may be filed with the Board within 30 days after notice

of the application is published under subsection (a) of this

section.

‘‘(2) The Board must conclude any evidentiary proceedings

by the 105th day after the date of publication of notice under

subsection (a) of this section. The Board must issue a final

decision by the 45th day after the date on which it concludes

the evidentiary proceedings.

‘‘§ 11326. Employee protective arrangements in transactions

involving rail carriers

‘‘(a) Except as otherwise provided in this section, when approval

is sought for a transaction under sections 11324 and 11325 of

this title, the Board shall require the rail carrier to provide a

fair arrangement at least as protective of the interests of employees

who are affected by the transaction as the terms imposed under

section 5(2)(f) of the Interstate Commerce Act before February

5, 1976, and the terms established under section 24706(c) of this

title. Notwithstanding this part, the arrangement may be made

by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction

must require that the employees of the affected rail carrier will

not be in a worse position related to their employment as a result

of the transaction during the 4 years following the effective date

of the final action of the Board (or if an employee was employed

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 843

for a lesser period of time by the rail carrier before the action

became effective, for that lesser period).

‘‘(b) When approval is sought under sections 11324 and 11325

for a transaction involving one Class II and one or more Class

III rail carriers, there shall be an arrangement as required under

subsection (a) of this section, except that such arrangement shall

be limited to one year of severance pay, which shall not exceed

the amount of earnings from the railroad employment of that

employee during the 12-month period immediately preceding the

date on which the application for approval of such transaction

is filed with the Board. The amount of such severance pay shall

be reduced by the amount of earnings from railroad employment

of that employee with the acquiring carrier during the 12-month

period immediately following the effective date of the transaction.

The parties may agree to terms other than as provided in this

subsection.

‘‘(c) When approval is sought under sections 11324 and 11325

for a transaction involving only Class III rail carriers, this section

shall not apply.

‘‘§ 11327. Supplemental orders

‘‘When cause exists, the Board may make appropriate orders

supplemental to an order made in a proceeding under sections

11322 through 11326 of this title.

‘‘§ 11328. Restrictions on officers and directors

‘‘(a) A person may hold the position of officer or director of

more than one rail carrier only when authorized by the Board.

The Board may authorize a person to hold the position of officer

or director of more than one of those carriers when public or

private interests will not be adversely affected.

‘‘(b) This section shall not apply to an individual holding the

position of officer or director only of Class III rail carriers.

‘‘CHAPTER 115—FEDERAL-STATE RELATIONS

‘‘Sec.

‘‘11501. Tax discrimination against rail transportation property.

‘‘11502. Withholding State and local income tax by rail carriers.

‘‘§ 11501. Tax discrimination against rail transportation

property

‘‘(a) In this section—

‘‘(1) the term ‘assessment’ means valuation for a property

tax levied by a taxing district;

‘‘(2) the term ‘assessment jurisdiction’ means a geographical

area in a State used in determining the assessed value of

property for ad valorem taxation;

‘‘(3) the term ‘rail transportation property’ means property,

as defined by the Board, owned or used by a rail carrier

providing transportation subject to the jurisdiction of the Board

under this part; and

‘‘(4) the term ‘commercial and industrial property’ means

property, other than transportation property and land used

primarily for agricultural purposes or timber growing, devoted

to a commercial or industrial use and subject to a property

tax levy.

Severance pay.

109 STAT. 844 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(b) The following acts unreasonably burden and discriminate

against interstate commerce, and a State, subdivision of a State,

or authority acting for a State or subdivision of a State may not

do any of them:

‘‘(1) Assess rail transportation property at a value that

has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other

commercial and industrial property in the same assessment

jurisdiction has to the true market value of the other commercial and industrial property.

‘‘(2) Levy or collect a tax on an assessment that may

not be made under paragraph (1) of this subsection.

‘‘(3) Levy or collect an ad valorem property tax on rail

transportation property at a tax rate that exceeds the tax

rate applicable to commercial and industrial property in the

same assessment jurisdiction.

‘‘(4) Impose another tax that discriminates against a rail

carrier providing transportation subject to the jurisdiction of

the Board under this part.

‘‘(c) Notwithstanding section 1341 of title 28 and without regard

to the amount in controversy or citizenship of the parties, a district

court of the United States has jurisdiction, concurrent with other

jurisdiction of courts of the United States and the States, to prevent

a violation of subsection (b) of this section. Relief may be granted

under this subsection only if the ratio of assessed value to true

market value of rail transportation property exceeds by at least

5 percent the ratio of assessed value to true market value of

other commercial and industrial property in the same assessment

jurisdiction. The burden of proof in determining assessed value

and true market value is governed by State law. If the ratio of

the assessed value of other commercial and industrial property

in the assessment jurisdiction to the true market value of all

other commercial and industrial property cannot be determined

to the satisfaction of the district court through the random-sampling

method known as a sales assessment ratio study (to be carried

out under statistical principles applicable to such a study), the

court shall find, as a violation of this section—

‘‘(1) an assessment of the rail transportation property at

a value that has a higher ratio to the true market value

of the rail transportation property than the assessed value

of all other property subject to a property tax levy in the

assessment jurisdiction has to the true market value of all

other commercial and industrial property; and

‘‘(2) the collection of an ad valorem property tax on the

rail transportation property at a tax rate that exceeds the

tax ratio rate applicable to taxable property in the taxing

district.

‘‘§ 11502. Withholding State and local income tax by rail

carriers

‘‘(a) No part of the compensation paid by a rail carrier providing

transportation subject to the jurisdiction of the Board under this

part to an employee who performs regularly assigned duties as

such an employee on a railroad in more than one State shall

be subject to the income tax laws of any State or subdivision

of that State, other than the State or subdivision thereof of the

employee’s residence.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 845

‘‘(b) A rail carrier withholding pay from an employee under subsection (a) of this section shall file income tax information

returns and other reports only with the State and subdivision

of residence of the employee.

‘‘CHAPTER 117—ENFORCEMENT: INVESTIGATIONS,

RIGHTS, AND REMEDIES

‘‘Sec.

‘‘11701. General authority.

‘‘11702. Enforcement by the Board.

‘‘11703. Enforcement by the Attorney General.

‘‘11704. Rights and remedies of persons injured by rail carriers.

‘‘11705. Limitation on actions by and against rail carriers.

‘‘11706. Liability of rail carriers under receipts and bills of lading.

‘‘11707. Liability when property is delivered in violation of routing instructions.

‘‘§ 11701. General authority

‘‘(a) Except as otherwise provided in this part, the Board may

begin an investigation under this part only on complaint. If the

Board finds that a rail carrier is violating this part, the Board

shall take appropriate action to compel compliance with this part.

‘‘(b) A person, including a governmental authority, may file

with the Board a complaint about a violation of this part by a

rail carrier providing transportation or service subject to the jurisdiction of the Board under this part. The complaint must state

the facts that are the subject of the violation. The Board may

dismiss a complaint it determines does not state reasonable grounds

for investigation and action. However, the Board may not dismiss

a complaint made against a rail carrier providing transportation

subject to the jurisdiction of the Board under this part because

of the absence of direct damage to the complainant.

‘‘(c) A formal investigative proceeding begun by the Board under

subsection (a) of this section is dismissed automatically unless

it is concluded by the Board with administrative finality by the

end of the third year after the date on which it was begun.

‘‘§ 11702. Enforcement by the Board

‘‘The Board may bring a civil action—

‘‘(1) to enjoin a rail carrier from violating sections 10901

through 10906 of this title, or a regulation prescribed or order

or certificate issued under any of those sections;

‘‘(2) to enforce subchapter II of chapter 113 of this title

and to compel compliance with an order of the Board under

that subchapter; and

‘‘(3) to enforce an order of the Board, except a civil action

to enforce an order for the payment of money, when it is

violated by a rail carrier providing transportation subject to

the jurisdiction of the Board under this part.

‘‘§ 11703. Enforcement by the Attorney General

‘‘(a) The Attorney General may, and on request of the Board

shall, bring court proceedings to enforce this part, or a regulation

or order of the Board or certificate issued under this part, and

to prosecute a person violating this part or a regulation or order

of the Board or certificate issued under this part.

‘‘(b) The United States Government may bring a civil action

on behalf of a person to compel a rail carrier providing transportation subject to the jurisdiction of the Board under this part

Reports.

109 STAT. 846 PUBLIC LAW 104–88—DEC. 29, 1995

to provide that transportation to that person in compliance with

this part at the same rate charged, or on conditions as favorable

as those given by the rail carrier, for like traffic under similar

conditions to another person.

‘‘§ 11704. Rights and remedies of persons injured by rail

carriers

‘‘(a) A person injured because a rail carrier providing transportation or service subject to the jurisdiction of the Board under

this part does not obey an order of the Board, except an order

for the payment of money, may bring a civil action in a United

States District Court to enforce that order under this subsection.

‘‘(b) A rail carrier providing transportation subject to the jurisdiction of the Board under this part is liable for damages sustained

by a person as a result of an act or omission of that carrier

in violation of this part. A rail carrier providing transportation

subject to the jurisdiction of the Board under this part is liable

to a person for amounts charged that exceed the applicable rate

for the transportation.

‘‘(c)(1) A person may file a complaint with the Board under

section 11701(b) of this title or bring a civil action under subsection

(b) of this section to enforce liability against a rail carrier providing

transportation subject to the jurisdiction of the Board under this

part.

‘‘(2) When the Board makes an award under subsection (b)

of this section, the Board shall order the rail carrier to pay the

amount awarded by a specific date. The Board may order a rail

carrier providing transportation subject to the jurisdiction of the

Board under this part to pay damages only when the proceeding

is on complaint. The person for whose benefit an order of the

Board requiring the payment of money is made may bring a civil

action to enforce that order under this paragraph if the rail carrier

does not pay the amount awarded by the date payment was ordered

to be made.

‘‘(d)(1) When a person begins a civil action under subsection

(b) of this section to enforce an order of the Board requiring the

payment of damages by a rail carrier providing transportation

subject to the jurisdiction of the Board under this part, the text

of the order of the Board must be included in the complaint.

In addition to the district courts of the United States, a State

court of general jurisdiction having jurisdiction of the parties has

jurisdiction to enforce an order under this paragraph. The findings

and order of the Board are competent evidence of the facts stated

in them. Trial in a civil action brought in a district court of the

United States under this paragraph is in the judicial district—

‘‘(A) in which the plaintiff resides;

‘‘(B) in which the principal operating office of the rail

carrier is located; or

‘‘(C) through which the railroad line of that carrier runs.

In a civil action under this paragraph, the plaintiff is liable for

only those costs that accrue on an appeal taken by the plaintiff.

‘‘(2) All parties in whose favor the award was made may be

joined as plaintiffs in a civil action brought in a district court

of the United States under this subsection and all the rail carriers

that are parties to the order awarding damages may be joined

as defendants. Trial in the action is in the judicial district in

which any one of the plaintiffs could bring the action against

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 847

any one of the defendants. Process may be served on a defendant

at its principal operating office when that defendant is not in

the district in which the action is brought. A judgment ordering

recovery may be made in favor of any of those plaintiffs against

the defendant found to be liable to that plaintiff.

‘‘(3) The district court shall award a reasonable attorney’s fee

as a part of the damages for which a rail carrier is found liable

under this subsection. The district court shall tax and collect that

fee as a part of the costs of the action.

‘‘§ 11705. Limitation on actions by and against rail carriers

‘‘(a) A rail carrier providing transportation or service subject

to the jurisdiction of the Board under this part must begin a

civil action to recover charges for transportation or service provided

by the carrier within 3 years after the claim accrues.

‘‘(b) A person must begin a civil action to recover overcharges

under section 11704(b) of this title within 3 years after the claim

accrues, whether or not a complaint is filed under section

11704(c)(1).

‘‘(c) A person must file a complaint with the Board to recover

damages under section 11704(b) of this title within 2 years after

the claim accrues.

‘‘(d) The limitation period under subsection (b) of this section

is extended for 6 months from the time written notice is given

to the claimant by the rail carrier of disallowance of any part

of the claim specified in the notice if a written claim is given

to the rail carrier within that limitation period. The limitation

periods under subsections (b) and (c) of this section are extended

for 90 days from the time the rail carrier begins a civil action

under subsection (a) of this section to recover charges related to

the same transportation or service, or collects (without beginning

a civil action under that subsection) the charge for that transportation or service if that action is begun or collection is made within

the appropriate period.

‘‘(e) A person must begin a civil action to enforce an order

of the Board against a rail carrier for the payment of money

within one year after the date the order required the money to

be paid.

‘‘(f) This section applies to transportation for the United States

Government. The time limitations under this section are extended,

as related to transportation for or on behalf of the United States

Government, for 3 years from the date of—

‘‘(1) payment of the rate for the transportation or service

involved;

‘‘(2) subsequent refund for overpayment of that rate; or

‘‘(3) deduction made under section 3726 of title 31, whichever is later.

‘‘(g) A claim related to a shipment of property accrues under

this section on delivery or tender of delivery by the rail carrier.

‘‘§ 11706. Liability of rail carriers under receipts and bills

of lading

‘‘(a) A rail carrier providing transportation or service subject

to the jurisdiction of the Board under this part shall issue a receipt

or bill of lading for property it receives for transportation under

this part. That rail carrier and any other carrier that delivers

the property and is providing transportation or service subject

Courts.

109 STAT. 848 PUBLIC LAW 104–88—DEC. 29, 1995

to the jurisdiction of the Board under this part are liable to the

person entitled to recover under the receipt or bill of lading. The

liability imposed under this subsection is for the actual loss or

injury to the property caused by—

‘‘(1) the receiving rail carrier;

‘‘(2) the delivering rail carrier; or

‘‘(3) another rail carrier over whose line or route the property is transported in the United States or from a place in

the United States to a place in an adjacent foreign country

when transported under a through bill of lading.

Failure to issue a receipt or bill of lading does not affect the

liability of a rail carrier. A delivering rail carrier is deemed to

be the rail carrier performing the line-haul transportation nearest

the destination but does not include a rail carrier providing only

a switching service at the destination.

‘‘(b) The rail carrier issuing the receipt or bill of lading under

subsection (a) of this section or delivering the property for which

the receipt or bill of lading was issued is entitled to recover from

the rail carrier over whose line or route the loss or injury occurred

the amount required to be paid to the owners of the property,

as evidenced by a receipt, judgment, or transcript, and the amount

of its expenses reasonably incurred in defending a civil action

brought by that person.

‘‘(c)(1) A rail carrier may not limit or be exempt from liability

imposed under subsection (a) of this section except as provided

in this subsection. A limitation of liability or of the amount of

recovery or representation or agreement in a receipt, bill of lading,

contract, or rule in violation of this section is void.

‘‘(2) A rail carrier of passengers may limit its liability under

its passenger rate for loss or injury of baggage carried on trains

carrying passengers.

‘‘(3) A rail carrier providing transportation or service subject

to the jurisdiction of the Board under this part may establish

rates for transportation of property under which—

‘‘(A) the liability of the rail carrier for such property is

limited to a value established by written declaration of the

shipper or by a written agreement between the shipper and

the carrier; or

‘‘(B) specified amounts are deducted, pursuant to a written

agreement between the shipper and the carrier, from any claim

against the carrier with respect to the transportation of such

property.

‘‘(d)(1) A civil action under this section may be brought in

a district court of the United States or in a State court.

‘‘(2)(A) A civil action under this section may only be brought—

‘‘(i) against the originating rail carrier, in the judicial district in which the point of origin is located;

‘‘(ii) against the delivering rail carrier, in the judicial district in which the principal place of business of the person

bringing the action is located if the delivering carrier operates

a railroad or a route through such judicial district, or in the

judicial district in which the point of destination is located;

and

‘‘(iii) against the carrier alleged to have caused the loss

or damage, in the judicial district in which such loss or damage

is alleged to have occurred.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 849

‘‘(B) In this section, ‘judicial district’ means (i) in the case

of a United States district court, a judicial district of the United

States, and (ii) in the case of a State court, the applicable geographic

area over which such court exercises jurisdiction.

‘‘(e) A rail carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against

it under this section and a period of less than 2 years for bringing

a civil action against it under this section. The period for bringing

a civil action is computed from the date the carrier gives a person

written notice that the carrier has disallowed any part of the

claim specified in the notice. For the purposes of this subsection—

‘‘(1) an offer of compromise shall not constitute a disallowance of any part of the claim unless the carrier, in writing,

informs the claimant that such part of the claim is disallowed

and provides reasons for such disallowance; and

‘‘(2) communications received from a carrier’s insurer shall

not constitute a disallowance of any part of the claim unless

the insurer, in writing, informs the claimant that such part

of the claim is disallowed, provides reasons for such disallowance, and informs the claimant that the insurer is acting on

behalf of the carrier.

§ ‘‘11707. Liability when property is delivered in violation

of routing instructions

‘‘(a)(1) When a rail carrier providing transportation subject

to the jurisdiction of the Board under this part diverts or delivers

property to another rail carrier in violation of routing instructions

in the bill of lading, both of those rail carriers are jointly and

severally liable to the rail carrier that was deprived of its right

to participate in hauling that property for the total amount of

the rate it would have received if it participated in hauling the

property.

‘‘(2) A rail carrier is not liable under paragraph (1) of this

subsection when it diverts or delivers property in compliance with

an order or regulation of the Board.

‘‘(3) A rail carrier to whom property is transported is not

liable under this subsection if it shows that it had no notice of

the routing instructions before transporting the property. The burden of proving lack of notice is on that rail carrier. ‘‘(b) The court shall award a reasonable attorney’s fee to the

plaintiff in a judgment against the defendant rail carrier under

subsection (a) of this section. The court shall tax and collect that

fee as a part of the costs of the action.

‘‘CHAPTER 119—CIVIL AND CRIMINAL PENALTIES

‘‘Sec.

‘‘11901. General civil penalties.

‘‘11902. Interference with railroad car supply.

‘‘11903. Record keeping and reporting violations.

‘‘11904. Unlawful disclosure of information.

‘‘11905. Disobedience to subpoenas.

‘‘11906. General criminal penalty when specific penalty not provided.

‘‘11907. Punishment of corporation for violations committed by certain individuals.

‘‘11908. Relation to other Federal criminal penalties.

‘‘§ 11901. General civil penalties

‘‘(a) Except as otherwise provided in this section, a rail carrier

providing transportation subject to the jurisdiction of the Board

Courts.

109 STAT. 850 PUBLIC LAW 104–88—DEC. 29, 1995

under this part, an officer or agent of that rail carrier, or a receiver,

trustee, lessee, or agent of one of them, knowingly violating this

part or an order of the Board under this part is liable to the

United States Government for a civil penalty of not more than

$5,000 for each violation. Liability under this subsection is incurred

for each distinct violation. A separate violation occurs for each

day the violation continues.

‘‘(b) A rail carrier providing transportation subject to the jurisdiction of the Board under this part, or a receiver or trustee of

that rail carrier, violating a regulation or order of the Board under

section 11124(a)(2) or (b) of this title is liable to the United States

Government for a civil penalty of $500 for each violation and

for $25 for each day the violation continues.

‘‘(c) A person knowingly authorizing, consenting to, or permitting a violation of sections 10901 through 10906 of this title or

of a requirement or a regulation under any of those sections, is

liable to the United States Government for a civil penalty of not

more than $5,000.

‘‘(d) A rail carrier, receiver, or operating trustee violating an

order or direction of the Board under section 11123 or 11124(a)(1)

of this title is liable to the United States Government for a civil

penalty of at least $100 but not more than $500 for each violation

and for $50 for each day the violation continues.

‘‘(e)(1) A person required under subchapter III of chapter 111

of this title to make, prepare, preserve, or submit to the Board

a record concerning transportation subject to the jurisdiction of

the Board under this part that does not make, prepare, preserve,

or submit that record as required under that subchapter, is liable

to the United States Government for a civil penalty of $500 for

each violation.

‘‘(2) A rail carrier providing transportation subject to the jurisdiction of the Board under this part, and a lessor, receiver, or

trustee of that rail carrier, violating section 11144(b)(1) of this

title, is liable to the United States Government for a civil penalty

of $100 for each violation.

‘‘(3) A rail carrier providing transportation subject to the jurisdiction of the Board under this part, a lessor, receiver, or trustee

of that rail carrier, a person furnishing cars, and an officer, agent,

or employee of one of them, required to make a report to the

Board or answer a question that does not make the report or

does not specifically, completely, and truthfully answer the question,

is liable to the United States Government for a civil penalty of

$100 for each violation.

‘‘(4) A separate violation occurs for each day a violation under

this subsection continues.

‘‘(f) Trial in a civil action under subsections (a) through (e)

of this section is in the judicial district in which the rail carrier

has its principal operating office or in a district through which

the railroad of the rail carrier runs.

‘‘§ 11902. Interference with railroad car supply

‘‘(a) A person that offers or gives anything of value to another

person acting for or employed by a rail carrier providing transportation subject to the jurisdiction of the Board under this part

intending to influence an action of that other person related to

supply, distribution, or movement of cars, vehicles, or vessels used

in the transportation of property, or because of the action of that

Records.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 851

other person, shall be fined not more than $1,000, imprisoned

for not more than 2 years, or both.

‘‘(b) A person acting for or employed by a rail carrier providing

transportation subject to the jurisdiction of the Board under this

part that solicits, accepts, or receives anything of value—

‘‘(1) intending to be influenced by it in an action of that

person related to supply, distribution, or movement of cars,

vehicles, or vessels used in the transportation of property;

or

‘‘(2) because of the action of that person,

shall be fined not more than $1,000, imprisoned for not more

than 2 years, or both.

‘‘§ 11903. Record keeping and reporting violations

‘‘A person required to make a report to the Board, or make,

prepare, or preserve a record, under subchapter III of chapter

111 of this title about transportation subject to the jurisdiction

of the Board under this part that knowingly and willfully—

‘‘(1) makes a false entry in the report or record;

‘‘(2) destroys, mutilates, changes, or by another means falsifies the record;

‘‘(3) does not enter business related facts and transactions

in the record;

‘‘(4) makes, prepares, or preserves the record in violation

of a regulation or order of the Board; or

‘‘(5) files a false report or record with the Board,

shall be fined not more than $5,000, imprisoned for not more

than 2 years, or both.

‘‘§ 11904. Unlawful disclosure of information

‘‘(a) A—

‘‘(1) rail carrier providing transportation subject to the

jurisdiction of the Board under this part, or an officer, agent,

or employee of that rail carrier, or another person authorized

to receive information from that rail carrier, that knowingly

discloses to another person, except the shipper or consignee;

or

‘‘(2) a person who solicits or knowingly receives,

information described in subsection (b) without the consent of the

shipper or consignee shall be fined not more than $1,000.

‘‘(b) The information referred to in subsection (a) is information

about the nature, kind, quantity, destination, consignee, or routing

of property tendered or delivered to that rail carrier for transportation provided under this part, or information about the contents

of a contract authorized under section 10709 of this title, that

may be used to the detriment of the shipper or consignee or may

disclose improperly, to a competitor, the business transactions of

the shipper or consignee.

‘‘(c) This part does not prevent a rail carrier providing transportation subject to the jurisdiction of the Board under this part

from giving information—

‘‘(1) in response to legal process issued under authority

of a court of the United States or a State;

‘‘(2) to an officer, employee, or agent of the United States

Government, a State, or a territory or possession of the United

States; or

109 STAT. 852 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(3) to another rail carrier or its agent to adjust mutual traffic accounts in the ordinary course of business.

‘‘(d) An employee of the Board delegated to make an inspection or examination under section 11144 of this title who knowingly

discloses information acquired during that inspection or examination, except as directed by the Board, a court, or a judge of that

court, shall be fined not more than $500, imprisoned for not more

than 6 months, or both.

‘‘(e) A person that knowingly discloses confidential data made available to such person under section 11163 of this title by a

rail carrier providing transportation subject to the jurisdiction of

the Board under this part shall be fined not more than $50,000.

‘‘§ 11905. Disobedience to subpoenas

‘‘A person not obeying a subpoena or requirement of the Board to appear and testify or produce records shall be fined at least

$100 but not more than $5,000, imprisoned for not more than

one year, or both.

‘‘§ 11906. General criminal penalty when specific penalty not provided

‘‘When another criminal penalty is not provided under this chapter, a rail carrier providing transportation subject to the jurisdiction of the Board under this part, and when that rail carrier

is a corporation, a director or officer of the corporation, or a receiver,

trustee, lessee, or person acting for or employed by the corporation

that, alone or with another person, willfully violates this part

or an order prescribed under this part, shall be fined not more

than $5,000. The person may be imprisoned for not more than

2 years in addition to being fined under this section. A separate

violation occurs each day a violation of this title continues.

‘‘§ 11907. Punishment of corporation for violations committed by certain individuals

‘‘An act or omission that would be a violation of this part

if committed by a director, officer, receiver, trustee, lessee, agent,

or employee of a rail carrier providing transportation or service

subject to the jurisdiction of the Board under this part that is

a corporation is also a violation of this part by that corporation.

The penalties of this chapter apply to that violation. When acting

in the scope of their employment, the actions and omissions of

individuals acting for or employed by that rail carrier are considered

to be the actions and omissions of that rail carrier as well as

that individual.

‘‘§ 11908. Relation to other Federal criminal penalties

‘‘Notwithstanding section 3571 of title 18, United States Code, the criminal penalties provided for in this chapter are the exclusive

criminal penalties for violations of this part.’’.

(b) CONFORMING AMENDMENT.—The item relating to subtitle

IV in the table of subtitles of title 49, United States Code, is

amended by striking ‘‘Commerce’’ and inserting in lieu thereof ‘‘Transportation’’.

SEC. 103. MOTOR CARRIER, WATER CARRIER, AND FREIGHT FORWARDER PROVISIONS.

Subtitle IV of title 49, United States Code, is further amended

by adding at the end the following:

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 853

‘‘PART B—MOTOR CARRIERS, WATER CARRIERS, BROKERS,

AND FREIGHT FORWARDERS

‘‘CHAPTER 131—GENERAL PROVISIONS

‘‘Sec.

‘‘13101. Transportation policy.

‘‘13102. Definitions.

‘‘13103. Remedies as cumulative.

‘‘§ 13101. Transportation policy

‘‘(a) IN GENERAL.—To ensure the development, coordination,

and preservation of a transportation system that meets the

transportation needs of the United States, including the United

States Postal Service and national defense, it is the policy of the

United States Government to oversee the modes of transportation

and—

‘‘(1) in overseeing those modes—

‘‘(A) to recognize and preserve the inherent advantage

of each mode of transportation;

‘‘(B) to promote safe, adequate, economical, and efficient transportation;

‘‘(C) to encourage sound economic conditions in

transportation, including sound economic conditions among

carriers;

‘‘(D) to encourage the establishment and maintenance

of reasonable rates for transportation, without unreasonable discrimination or unfair or destructive competitive

practices;

‘‘(E) to cooperate with each State and the officials

of each State on transportation matters; and

‘‘(F) to encourage fair wages and working conditions

in the transportation industry;

‘‘(2) in overseeing transportation by motor carrier, to promote competitive and efficient transportation services in order

to—

‘‘(A) encourage fair competition, and reasonable rates

for transportation by motor carriers of property;

‘‘(B) promote efficiency in the motor carrier transportation system and to require fair and expeditious decisions

when required;

‘‘(C) meet the needs of shippers, receivers, passengers,

and consumers;

‘‘(D) allow a variety of quality and price options to

meet changing market demands and the diverse requirements of the shipping and traveling public;

‘‘(E) allow the most productive use of equipment and

energy resources;

‘‘(F) enable efficient and well-managed carriers to earn

adequate profits, attract capital, and maintain fair wages

and working conditions;

‘‘(G) provide and maintain service to small communities

and small shippers and intrastate bus services;

‘‘(H) provide and maintain commuter bus operations;

‘‘(I) improve and maintain a sound, safe, and competitive privately owned motor carrier system;

‘‘(J) promote greater participation by minorities in the

motor carrier system;

109 STAT. 854 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(K) promote intermodal transportation;

‘‘(3) in overseeing transportation by motor carrier of passengers—‘‘(A) to cooperate with the States on transportation

matters for the purpose of encouraging the States to exercise intrastate regulatory jurisdiction in accordance with

the objectives of this part;

‘‘(B) to provide Federal procedures which ensure that

intrastate regulation is exercised in accordance with this

part; and

‘‘(C) to ensure that Federal reform initiatives enacted

by section 31138 and the Bus Regulatory Reform Act of

1982 are not nullified by State regulatory actions; and

‘‘(4) in overseeing transportation by water carrier, to

encourage and promote service and price competition in the

noncontiguous domestic trade.

‘‘(b) ADMINISTRATION TO CARRY OUT POLICY.—This part shall

be administered and enforced to carry out the policy of this section

and to promote the public interest.

‘‘§ 13102. Definitions

‘‘In this part, the following definitions shall apply:

‘‘(1) BOARD.—The term ‘Board’ means the Surface Transportation Board.

‘‘(2) BROKER.—The term ‘broker’ means a person, other

than a motor carrier or an employee or agent of a motor

carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement,

or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.

‘‘(3) CARRIER.—The term ‘carrier’ means a motor carrier,

a water carrier, and a freight forwarder.

‘‘(4) CONTRACT CARRIAGE.—The term ‘contract carriage’

means—

‘‘(A) for transportation provided before the effective

date of this section, service provided pursuant to a permit

issued under section 10923, as in effect on the day before

the effective date of this section; and

‘‘(B) for transportation provided on or after such date,

service provided under an agreement entered into under

section 14101(b).

‘‘(5) CONTROL.—The term ‘control’, when referring to a relationship between persons, includes actual control, legal control,

and the power to exercise control, through or by—

‘‘(A) common directors, officers, stockholders, a voting

trust, or a holding or investment company, or

‘‘(B) any other means.

‘‘(6) FOREIGN MOTOR CARRIER.—The term ‘foreign motor

carrier’ means a person (including a motor carrier of property

but excluding a motor private carrier)—

‘‘(A)(i) that is domiciled in a contiguous foreign country;

or

‘‘(ii) that is owned or controlled by persons of a contiguous foreign country; and

‘‘(B) in the case of a person that is not a motor carrier

of property, that provides interstate transportation of property by motor vehicle under an agreement or contract

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 855

entered into with a motor carrier of property (other than

a motor private carrier or a motor carrier of property

described in subparagraph (A)).

‘‘(7) FOREIGN MOTOR PRIVATE CARRIER.—The term ‘foreign

motor private carrier’ means a person (including a motor private

carrier but excluding a motor carrier of property)—

‘‘(A)(i) that is domiciled in a contiguous foreign country;

or

‘‘(ii) that is owned or controlled by persons of a contiguous foreign country; and

‘‘(B) in the case of a person that is not a motor private

carrier, that provides interstate transportation of property

by motor vehicle under an agreement or contract entered

into with a person (other than a motor carrier of property

or a motor private carrier described in subparagraph (A)).

‘‘(8) FREIGHT FORWARDER.—The term ‘freight forwarder’

means a person holding itself out to the general public (other

than as a pipeline, rail, motor, or water carrier) to provide

transportation of property for compensation and in the ordinary

course of its business—

‘‘(A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments;

‘‘(B) assumes responsibility for the transportation from

the place of receipt to the place of destination; and

‘‘(C) uses for any part of the transportation a carrier

subject to jurisdiction under this subtitle.

The term does not include a person using transportation of

an air carrier subject to part A of subtitle VII.

‘‘(9) HIGHWAY.—The term ‘highway’ means a road, highway,

street, and way in a State.

‘‘(10) HOUSEHOLD GOODS.—The term ‘household goods’, as

used in connection with transportation, means personal effects

and property used or to be used in a dwelling, when a part

of the equipment or supply of such dwelling, and similar property if the transportation of such effects or property is—

‘‘(A) arranged and paid for by the householder, including transportation of property from a factory or store when

the property is purchased by the householder with intent

to use in his or her dwelling, or

‘‘(B) arranged and paid for by another party.

‘‘(11) HOUSEHOLD GOODS FREIGHT FORWARDER.—The term

‘household goods freight forwarder’ means a freight forwarder

of one or more of the following items: household goods, unaccompanied baggage, or used automobiles.

‘‘(12) MOTOR CARRIER.—The term ‘motor carrier’ means

a person providing motor vehicle transportation for compensation.

‘‘(13) MOTOR PRIVATE CARRIER.—The term ‘motor private

carrier’ means a person, other than a motor carrier, transporting property by motor vehicle when—

‘‘(A) the transportation is as provided in section 13501

of this title;

‘‘(B) the person is the owner, lessee, or bailee of the

property being transported; and

109 STAT. 856 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.

‘‘(14) MOTOR VEHICLE.—The term ‘motor vehicle’ means

a vehicle, machine, tractor, trailer, or semitrailer propelled

or drawn by mechanical power and used on a highway in

transportation, or a combination determined by the Secretary,

but does not include a vehicle, locomotive, or car operated

only on a rail, or a trolley bus operated by electric power

from a fixed overhead wire, and providing local passenger

transportation similar to street-railway service. ‘‘(15) NONCONTIGUOUS DOMESTIC TRADE.—The term ‘noncontiguous domestic trade’ means transportation subject to

jurisdiction under chapter 135 involving traffic originating in

or destined to Alaska, Hawaii, or a territory or possession

of the United States.

‘‘(16) PERSON.—The term ‘person’, in addition to its meaning under section 1 of title 1, includes a trustee, receiver,

assignee, or personal representative of a person. ‘‘(17) SECRETARY.—The term ‘Secretary’ means the Sec- retary of Transportation. ‘‘(18) STATE.—The term ‘State’ means the 50 States of

the United States and the District of Columbia.

‘‘(19) TRANSPORTATION.—The term ‘transportation’

includes—

‘‘(A) a motor vehicle, vessel, warehouse, wharf, pier,

dock, yard, property, facility, instrumentality, or equipment

of any kind related to the movement of passengers or

property, or both, regardless of ownership or an agreement

concerning use; and ‘‘(B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in

transit, refrigeration, icing, ventilation, storage, handling,

packing, unpacking, and interchange of passengers and

property.

‘‘(20) UNITED STATES.—The term ‘United States’ means the

States of the United States and the District of Columbia.

‘‘(21) VESSEL.—The term ‘vessel’ means a watercraft or

other artificial contrivance that is used, is capable of being

used, or is intended to be used, as a means of transportation

by water.

‘‘(22) WATER CARRIER.—The term ‘water carrier’ means a

person providing water transportation for compensation.

‘‘§ 13103. Remedies as cumulative

‘‘Except as otherwise provided in this part, the remedies provided under this part are in addition to remedies existing under

another law or common law.

‘‘CHAPTER 133—ADMINISTRATIVE PROVISIONS

‘‘Sec.

‘‘13301. Powers.

‘‘13302. Intervention.

‘‘13303. Service of notice in proceedings.

‘‘13304. Service of process in court proceedings.

‘‘§ 13301. Powers

‘‘(a) GENERAL POWERS OF SECRETARY.—Except as otherwise

specified, the Secretary shall carry out this part. Enumeration

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 857

of a power of the Secretary in this part does not exclude another

power the Secretary may have in carrying out this part. The Secretary may prescribe regulations in carrying out this part. ‘‘(b) OBTAINING INFORMATION.—The Secretary may obtain from

carriers providing, and brokers for, transportation and service subject to this part, and from persons controlling, controlled by, or

under common control with those carriers or brokers to the extent

that the business of that person is related to the management

of the business of that carrier or broker, information the Secretary

decides is necessary to carry out this part.

‘‘(c) SUBPOENA POWER.—

‘‘(1) BY SECRETARY.—The Secretary may subpoena witnesses and records related to a proceeding under this part

from any place in the United States, to the designated place

of the proceeding. If a witness disobeys a subpoena, the Secretary, or a party to a proceeding under this part, may petition

a court of the United States to enforce that subpoena.

‘‘(2) ENFORCEMENT.—The district courts of the United States

have jurisdiction to enforce a subpoena issued under this section. Trial is in the district in which the proceeding is conducted. The court may punish a refusal to obey a subpoena

as a contempt of court.

‘‘(d) TESTIMONY OF WITNESSES.—

‘‘(1) PROCEDURE FOR TAKING TESTIMONY.—In a proceeding

under this part, the Secretary may take the testimony of a

witness by deposition and may order the witness to produce

records. A party to a proceeding pending under this part may

take the testimony of a witness by deposition and may require

the witness to produce records at any time after a proceeding

is at issue on petition and answer.

‘‘(2) SUBPOENA.—If a witness fails to be deposed or to

produce records under paragraph (1) of this subsection, the

Secretary may subpoena the witness to take a deposition,

produce the records, or both.

‘‘(3) DEPOSITIONS.—A deposition may be taken before a

judge of a court of the United States, a United States magistrate

judge, a clerk of a district court, or a chancellor, justice, or

judge of a supreme or superior court, mayor or chief magistrate

of a city, judge of a county court, or court of common pleas

of any State, or a notary public who is not counsel or attorney

of a party or interested in the proceeding.

‘‘(4) NOTICE OF DEPOSITION.—Before taking a deposition,

reasonable notice must be given in writing by the party or

the attorney of that party proposing to take a deposition to

the opposing party or the attorney of record of that party,

whoever is nearest. The notice shall state the name of the

witness and the time and place of taking the deposition.

‘‘(5) TRANSCRIPT.—The testimony of a person deposed under

this subsection shall be taken under oath. The person taking

the deposition shall prepare, or cause to be prepared, a transcript of the testimony taken. The transcript shall be subscribed

by the deponent.

‘‘(6) FOREIGN COUNTRY.—The testimony of a witness who

is in a foreign country may be taken by deposition before

an officer or person designated by the Secretary or agreed

on by the parties by written stipulation filed with the Secretary.

A deposition shall be filed with the Secretary promptly.

109 STAT. 858 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(e) WITNESS FEES.—Each witness summoned before the Secretary or whose deposition is taken under this section and the

individual taking the deposition are entitled to the same fees and

mileage paid for those services in the courts of the United States.

‘‘(f) POWERS OF BOARD.—For those provisions of this part that

are specified to be carried out by the Board, the Board shall have

the same powers as the Secretary has under this section.

‘‘§ 13302. Intervention

‘‘Under regulations of the Secretary, reasonable notice of, and

an opportunity to intervene and participate in, a proceeding under

this part related to transportation subject to jurisdiction under

subchapter I of chapter 135 shall be given to interested persons.

‘‘§ 13303. Service of notice in proceedings

‘‘(a) AGENTS FOR SERVICE OF PROCESS.—A carrier, a broker,

or a freight forwarder providing transportation or service subject

to jurisdiction under chapter 135 shall designate, in writing, an

agent by name and post office address on whom service of notices

in a proceeding before, and of actions of, the Secretary may be

made.

‘‘(b) FILING WITH STATE.—A motor carrier providing transportation under this part shall also file the designation with the

appropriate authority of each State in which it operates. The designation may be changed at any time in the same manner as

originally made.

‘‘(c) NOTICE.—A notice to a motor carrier, freight forwarder,

or broker shall be served personally or by mail on the motor

carrier, freight forwarder, or broker or on its designated agent.

Service by mail on the designated agent shall be made at the

address filed for the agent. When notice is given by mail, the

date of mailing is considered to be the time when the notice is

served. If a motor carrier, freight forwarder, or broker does not

have a designated agent, service may be made by posting a copy

of the notice at the headquarters of the Department of Transportation.

‘‘§ 13304. Service of process in court proceedings

‘‘(a) DESIGNATION OF AGENT.—A motor carrier or broker providing transportation subject to jurisdiction under chapter 135, including a motor carrier or broker operating within the United States

while providing transportation between places in a foreign country

or between a place in one foreign country and a place in another

foreign country, shall designate an agent in each State in which

it operates by name and post office address on whom process

issued by a court with subject matter jurisdiction may be served

in an action brought against that carrier or broker. The designation

shall be in writing and filed with the Department of Transportation

and each State in which the carrier operates may require that

an additional designation be filed with it. If a designation under

this subsection is not made, service may be made on any agent

of the carrier or broker within that State.

‘‘(b) CHANGE.—A designation under this section may be changed

at any time in the same manner as originally made.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 859

‘‘CHAPTER 135—JURISDICTION

‘‘SUBCHAPTER I—MOTOR CARRIER TRANSPORTATION

‘‘Sec.

‘‘13501. General jurisdiction.

‘‘13502. Exempt transportation between Alaska and other States.

‘‘13503. Exempt motor vehicle transportation in terminal areas.

‘‘13504. Exempt motor carrier transportation entirely in one State.

‘‘13505. Transportation furthering a primary business.

‘‘13506. Miscellaneous motor carrier transportation exemptions.

‘‘13507. Mixed loads of regulated and unregulated property.

‘‘13508. Limited authority over cooperative associations.

‘‘SUBCHAPTER II—WATER CARRIER TRANSPORTATION

‘‘13521. General jurisdiction.

‘‘SUBCHAPTER III—FREIGHT FORWARDER SERVICE

‘‘13531. General jurisdiction.

‘‘SUBCHAPTER IV—AUTHORITY TO EXEMPT

‘‘13541. Authority to exempt transportation or services.

‘‘SUBCHAPTER I—MOTOR CARRIER TRANSPORTATION

‘‘§ 13501. General jurisdiction

‘‘The Secretary and the Board have jurisdiction, as specified

in this part, over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property,

or both, are transported by motor carrier—

‘‘(1) between a place in—

‘‘(A) a State and a place in another State;

‘‘(B) a State and another place in the same State

through another State;

‘‘(C) the United States and a place in a territory or

possession of the United States to the extent the transportation is in the United States;

‘‘(D) the United States and another place in the United

States through a foreign country to the extent the transportation is in the United States; or

‘‘(E) the United States and a place in a foreign country

to the extent the transportation is in the United States;

and

‘‘(2) in a reservation under the exclusive jurisdiction of

the United States or on a public highway.

‘‘§ 13502. Exempt transportation between Alaska and other

States

‘‘To the extent that transportation by a motor carrier between

a place in Alaska and a place in another State under section

13501 is provided in a foreign country—

‘‘(1) neither the Secretary nor the Board has jurisdiction

to impose a requirement over conduct of the motor carrier

in the foreign country conflicting with a requirement of that

country; but ‘‘(2) the motor carrier, as a condition of providing transportation in the United States, shall comply, with respect to all

transportation provided between Alaska and the other State,

with the requirements of this part related to rates and practices

applicable to the transportation.

109 STAT. 860 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘§ 13503. Exempt motor vehicle transportation in terminal

areas

‘‘(a) TRANSPORTATION BY CARRIERS.— ‘‘(1) IN GENERAL.—Neither the Secretary nor the Board has jurisdiction under this subchapter over transportation by

motor vehicle provided in a terminal area when the transportation—

‘‘(A) is a transfer, collection, or delivery;

‘‘(B) is provided by— ‘‘(i) a rail carrier subject to jurisdiction under chapter 105;

‘‘(ii) a water carrier subject to jurisdiction under subchapter II of this chapter; or ‘‘(iii) a freight forwarder subject to jurisdiction under subchapter III of this chapter; and

‘‘(C) is incidental to transportation or service provided

by the carrier or freight forwarder that is subject to jurisdiction under chapter 105 of this title or under subchapter

II or III of this chapter.

‘‘(2) APPLICABILITY OF OTHER PROVISIONS.—Transportation exempt from jurisdiction under paragraph (1) of this subsection

is subject to jurisdiction under chapter 105 when provided

by such a rail carrier, under subchapter II of this chapter

when provided by such a water carrier, and under subchapter

III of this chapter when provided by such a freight forwarder.

‘‘(b) TRANSPORTATION BY AGENT.— ‘‘(1) IN GENERAL.—Except to the extent provided by para- graph (2) of this subsection, neither the Secretary nor the

Board has jurisdiction under this subchapter over transportation by motor vehicle provided in a terminal area when

the transportation— ‘‘(A) is a transfer, collection, or delivery; and

‘‘(B) is provided by a person as an agent or under

other arrangement for— ‘‘(i) a rail carrier subject to jurisdiction under chapter 105 of this title;

‘‘(ii) a motor carrier subject to jurisdiction under

this subchapter;

‘‘(iii) a water carrier subject to jurisdiction under

subchapter II of this chapter; or

‘‘(iv) a freight forwarder subject to jurisdiction

under subchapter III of this chapter.

‘‘(2) TREATMENT OF TRANSPORTATION BY PRINCIPAL.—

Transportation exempt from jurisdiction under paragraph (1)

of this subsection is considered transportation provided by the

carrier or service provided by the freight forwarder for whom

the transportation was provided and is subject to jurisdiction

under chapter 105 of this title when provided for such a rail

carrier, under this subchapter when provided for such a motor

carrier, under subchapter II of this chapter when provided

for such a water carrier, and under subchapter III of this

chapter when provided for such a freight forwarder.

‘‘§ 13504. Exempt motor carrier transportation entirely in

one State

‘‘Neither the Secretary nor the Board has jurisdiction under

this subchapter over transportation, except transportation of houseVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00058 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 861

hold goods, by a motor carrier operating solely within the State

of Hawaii. The State of Hawaii may regulate transportation exempt

from jurisdiction under this section and, to the extent provided

by a motor carrier operating solely within the State of Hawaii,

transportation exempt under section 13503 of this title.

‘‘§ 13505. Transportation furthering a primary business

‘‘(a) IN GENERAL.—Neither the Secretary nor the Board has

jurisdiction under this part over the transportation of property

by motor vehicle when—

‘‘(1) the property is transported by a person engaged in

a business other than transportation; and

‘‘(2) the transportation is within the scope of, and furthers

a primary business (other than transportation) of the person.

‘‘(b) CORPORATE FAMILIES.—

‘‘(1) IN GENERAL.—Neither the Secretary nor the Board

has jurisdiction under this part over transportation of property

by motor vehicle for compensation provided by a person who

is a member of a corporate family for other members of such

corporate family.

‘‘(2) DEFINITION.—In this section, ‘corporate family’ means

a group of corporations consisting of a parent corporation and

all subsidiaries in which the parent corporation owns directly

or indirectly a 100 percent interest.

‘‘§ 13506. Miscellaneous motor carrier transportation exemptions

‘‘(a) IN GENERAL.—Neither the Secretary nor the Board has

jurisdiction under this part over—

‘‘(1) a motor vehicle transporting only school children and

teachers to or from school;

‘‘(2) a motor vehicle providing taxicab service and having

a capacity of not more than 6 passengers and not operated

on a regular route or between specified places;

‘‘(3) a motor vehicle owned or operated by or for a hotel

and only transporting hotel patrons between the hotel and

the local station of a carrier;

‘‘(4) a motor vehicle controlled and operated by a farmer

and transporting—

‘‘(A) the farmer’s agricultural or horticultural commodities and products; or

‘‘(B) supplies to the farm of the farmer;

‘‘(5) a motor vehicle controlled and operated by a cooperative association (as defined by section 15(a) of the Agricultural

Marketing Act (12 U.S.C. 1141j(a)) or by a federation of cooperative associations if the federation has no greater power or

purposes than a cooperative association, except that if the

cooperative association or federation provides transportation

for compensation between a place in a State and a place in

another State, or between a place in a State and another

place in the same State through another State—

‘‘(A) for a nonmember that is not a farmer, cooperative

association, federation, or the United States Government,

the transportation (except for transportation otherwise

exempt under this subchapter)—

‘‘(i) shall be limited to transportation incidental

to the primary transportation operation of the cooperaVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00059 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
109 STAT. 862 PUBLIC LAW 104–88—DEC. 29, 1995

tive association or federation and necessary for its

effective performance; and

‘‘(ii) may not exceed in each fiscal year 25 percent

of the total transportation of the cooperative association or federation between those places, measured by

tonnage; and

‘‘(B) the transportation for all nonmembers may not

exceed in each fiscal year, measured by tonnage, the total

transportation between those places for the cooperative

association or federation and its members during that fiscal

year;

‘‘(6) transportation by motor vehicle of—

‘‘(A) ordinary livestock;

‘‘(B) agricultural or horticultural commodities (other

than manufactured products thereof);

‘‘(C) commodities listed as exempt in the Commodity

List incorporated in ruling numbered 107, March 19, 1958,

Bureau of Motor Carriers, Interstate Commerce Commission, other than frozen fruits, frozen berries, frozen vegetables, cocoa beans, coffee beans, tea, bananas, or hemp,

or wool imported from a foreign country, wool tops and

noils, or wool waste (carded, spun, woven, or knitted);

‘‘(D) cooked or uncooked fish, whether breaded or not,

or frozen or fresh shellfish, or byproducts thereof not

intended for human consumption, other than fish or shellfish that have been treated for preserving, such as canned,

smoked, pickled, spiced, corned, or kippered products; and

‘‘(E) livestock and poultry feed and agricultural seeds

and plants, if such products (excluding products otherwise

exempt under this paragraph) are transported to a site

of agricultural production or to a business enterprise

engaged in the sale to agricultural producers of goods used

in agricultural production;

‘‘(7) a motor vehicle used only to distribute newspapers;

‘‘(8)(A) transportation of passengers by motor vehicle

incidental to transportation by aircraft;

‘‘(B) transportation of property (including baggage) by

motor vehicle as part of a continuous movement which, prior

or subsequent to such part of the continuous movement, has

been or will be transported by an air carrier or (to the extent

so agreed by the United States and approved by the Secretary)

by a foreign air carrier; or

‘‘(C) transportation of property by motor vehicle in lieu

of transportation by aircraft because of adverse weather conditions or mechanical failure of the aircraft or other causes due

to circumstances beyond the control of the carrier or shipper;

‘‘(9) the operation of a motor vehicle in a national park

or national monument;

‘‘(10) a motor vehicle carrying not more than 15 individuals

in a single, daily roundtrip to commute to and from work;

‘‘(11) transportation of used pallets and used empty shipping containers (including intermodal cargo containers), and

other used shipping devices (other than containers or devices

used in the transportation of motor vehicles or parts of motor

vehicles);

‘‘(12) transportation of natural, crushed, vesicular rock to

be used for decorative purposes;

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 863

‘‘(13) transportation of wood chips;

‘‘(14) brokers for motor carriers of passengers, except as

provided in section 13904(d); or

‘‘(15) transportation of broken, crushed, or powdered glass.

‘‘(b) EXEMPT UNLESS OTHERWISE NECESSARY.—Except to the

extent the Secretary or Board, as applicable, finds it necessary

to exercise jurisdiction to carry out the transportation policy of

section 13101, neither the Secretary nor the Board has jurisdiction

under this part over—

‘‘(1) transportation provided entirely in a municipality, in

contiguous municipalities, or in a zone that is adjacent to,

and commercially a part of, the municipality or municipalities,

except—

‘‘(A) when the transportation is under common control,

management, or arrangement for a continuous carriage

or shipment to or from a place outside the municipality,

municipalities, or zone; or

‘‘(B) that in transporting passengers over a route

between a place in a State and a place in another State,

or between a place in a State and another place in the

same State through another State, the transportation is

exempt from jurisdiction under this part only if the motor

carrier operating the motor vehicle also is lawfully providing intrastate transportation of passengers over the entire

route under the laws of each State through which the

route runs;

‘‘(2) transportation by motor vehicle provided casually, occasionally, or reciprocally but not as a regular occupation or

business, except when a broker or other person sells or offers

for sale passenger transportation provided by a person authorized to transport passengers by motor vehicle under an application pending, or registration issued, under this part; or

‘‘(3) the emergency towing of an accidentally wrecked or

disabled motor vehicle.

‘‘§ 13507. Mixed loads of regulated and unregulated property

‘‘A motor carrier of property providing transportation exempt

from jurisdiction under paragraph (6), (8), (11), (12), or (13) of

section 13506(a) may transport property under such paragraph

in the same vehicle and at the same time as property which the

carrier is authorized to transport under a registration issued under

section 13902(a). Such transportation shall not affect the unregulated status of such exempt property or the regulated status of

the property which the carrier is authorized to transport under

such registration.

‘‘§ 13508. Limited authority over cooperative associations

‘‘(a) IN GENERAL.—Notwithstanding section 13506(a)(5), any cooperative association (as defined by section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a))) or a federation of cooperative associations shall prepare and maintain such records relating

to transportation provided by such association or federation, in

such form as the Secretary or the Board may require by regulation

to carry out the provisions of such section 13506(a)(5). The Secretary

or the Board, or an employee designated by the Secretary or the

Board, may on demand and display of proper credentials—

Records.

109 STAT. 864 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(1) inspect and examine the lands, buildings, and equipment of such association or federation; and

‘‘(2) inspect and copy any record of such association or

federation.

‘‘(b) REPORTS.—Notwithstanding section 13506(a)(5), the Secretary or the Board may require a cooperative association or federation of cooperative associations described in subsection (a) of this

section to file reports with the Secretary or the Board containing

answers to questions about transportation provided by such association or federation.

‘‘(c) ENFORCEMENT.—The Secretary or the Board may bring

a civil action to enforce subsections (a) and (b) of this section

or a regulation or order of the Secretary or the Board issued

under this section, when violated by a cooperative association or

federation of cooperative associations described in subsection (a).

‘‘(d) REPORTING PENALTIES.—

‘‘(1) IN GENERAL.—A person required to make a report

to the Secretary or the Board, answer a question, or maintain

a record under this section, or an officer, agent, or employee

of that person, that—

‘‘(A) does not make the report;

‘‘(B) does not specifically, completely, and truthfully

answer the question; or

‘‘(C) does not maintain the record in the form and

manner prescribed under this section;

is liable to the United States for a civil penalty of not more

than $500 for each violation and for not more than $250 for

each additional day the violation continues.

‘‘(2) VENUE.—Trial in a civil action under paragraph (1)

shall be in the judicial district in which—

‘‘(A) the cooperative association or federation of

cooperative associations has its principal office;

‘‘(B) the violation occurred; or

‘‘(C) the offender is found.

Process in the action may be served in the judicial district

of which the offender is an inhabitant or in which the offender

may be found.

‘‘(e) EVASION PENALTIES.—A person, or an officer, employee,

or agent of that person, that by any means knowingly and willfully

tries to evade compliance with the provisions of this section shall

be fined at least $200 but not more than $500 for the first violation

and at least $250 but not more than $2,000 for a subsequent

violation.

‘‘(f) RECORDKEEPING PENALTIES.—A person required to make

a report, answer a question, or maintain a record under this section,

or an officer, agent, or employee of that person, that—

‘‘(1) willfully does not make that report;

‘‘(2) willfully does not specifically, completely, and truthfully answer that question in 30 days from the date that the

question is required to be answered;

‘‘(3) willfully does not maintain that record in the form

and manner prescribed;

‘‘(4) knowingly and willfully falsifies, destroys, mutilates,

or changes that report or record;

‘‘(5) knowingly and willfully files a false report or record

under this section;

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 865

‘‘(6) knowingly and willfully makes a false or incomplete

entry in that record about a business-related fact or transaction;

or

‘‘(7) knowingly and willfully maintains a record in violation

of a regulation or order issued under this section;

shall be fined not more than $5,000.

‘‘SUBCHAPTER II—WATER CARRIER TRANSPORTATION

‘‘§ 13521. General jurisdiction

‘‘(a) GENERAL RULES.—The Secretary and the Board have jurisdiction over transportation insofar as water carriers are concerned—

‘‘(1) by water carrier between a place in a State and a

place in another State, even if part of the transportation is

outside the United States;

‘‘(2) by water carrier and motor carrier from a place in

a State to a place in another State; except that if part of

the transportation is outside the United States, the Secretary

only has jurisdiction over that part of the transportation provided—

‘‘(A) by motor carrier that is in the United States;

and

‘‘(B) by water carrier that is from a place in the United

States to another place in the United States; and

‘‘(3) by water carrier or by water carrier and motor carrier

between a place in the United States and a place outside

the United States, to the extent that—

‘‘(A) when the transportation is by motor carrier, the

transportation is provided in the United States;

‘‘(B) when the transportation is by water carrier to

a place outside the United States, the transportation is

provided by water carrier from a place in the United States

to another place in the United States before transshipment

from a place in the United States to a place outside the

United States; and

‘‘(C) when the transportation is by water carrier from

a place outside the United States, the transportation is

provided by water carrier from a place in the United States

to another place in the United States after transshipment

to a place in the United States from a place outside the

United States.

‘‘(b) DEFINITIONS.—In this section, the terms ‘State’ and ‘United

States’ include the territories and possessions of the United States.

‘‘SUBCHAPTER III—FREIGHT FORWARDER SERVICE

‘‘§ 13531. General jurisdiction

‘‘(a) IN GENERAL.—The Secretary and the Board have jurisdiction, as specified in this part, over service that a freight forwarder

undertakes to provide, or is authorized or required under this

part to provide, to the extent transportation is provided in the

United States and is between—

‘‘(1) a place in a State and a place in another State, even

if part of the transportation is outside the United States;

‘‘(2) a place in a State and another place in the same

State through a place outside the State; or

109 STAT. 866 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(3) a place in the United States and a place outside the

United States.

‘‘(b) EXEMPTION OF CERTAIN AIR CARRIER SERVICE.—Neither

the Secretary nor the Board has jurisdiction under subsection (a)

of this section over service undertaken by a freight forwarder using

transportation of an air carrier subject to part A of subtitle VII

of this title.

‘‘SUBCHAPTER IV—AUTHORITY TO EXEMPT

‘‘§ 13541. Authority to exempt transportation or services

‘‘(a) IN GENERAL.—In any matter subject to jurisdiction under

this part, the Secretary or the Board, as applicable, shall exempt

a person, class of persons, or a transaction or service from the

application, in whole or in part, of a provision of this part, or

use this exemption authority to modify the application of a provision

of this part as it applies to such person, class, transaction, or

service, when the Secretary or Board finds that the application

of that provision—

‘‘(1) is not necessary to carry out the transportation policy

of section 13101;

‘‘(2) is not needed to protect shippers from the abuse of

market power or that the transaction or service is of limited

scope; and

‘‘(3) is in the public interest.

‘‘(b) INITIATION OF PROCEEDING.—The Secretary or Board, as

applicable, may, where appropriate, begin a proceeding under this

section on the Secretary’s or Board’s own initiative or on application

by an interested party.

‘‘(c) PERIOD OF EXEMPTION.—The Secretary or Board, as

applicable, may specify the period of time during which an exemption granted under this section is effective.

‘‘(d) REVOCATION.—The Secretary or Board, as applicable, may

revoke an exemption, to the extent specified, on finding that application of a provision of this part to the person, class, or transportation

is necessary to carry out the transportation policy of section 13101.

‘‘(e) LIMITATIONS.—

‘‘(1) IN GENERAL.—The exemption authority under this section may not be used to relieve a person from the application

of, and compliance with, any law, rule, regulation, standard,

or order pertaining to cargo loss and damage, insurance, safety

fitness, or activities approved under section 13703 or 14302

or not terminated under section 13907(d)(2).

‘‘(2) WATER CARRIERS.—The Secretary or Board, as

applicable, may not exempt a water carrier from the application

of, or compliance with, section 13701 or 13702 for transportation

in the non-contiguous domestic trade.

‘‘(f) CONTINUATION OF CERTAIN EXISTING EXEMPTIONS FOR

WATER CARRIERS.—The Secretary or Board, as applicable, shall

not regulate or exercise jurisdiction under this part over the

transportation by water carrier in the non-contiguous domestic

trade of any cargo or type of cargo or service which was not

subject to regulation by, or under the jurisdiction of, either the

Federal Maritime Commission or Interstate Commerce Commission

under Federal law in effect on November 1, 1995.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 867

‘‘CHAPTER 137—RATES AND THROUGH

ROUTES

‘‘Sec.

‘‘13701. Requirements for reasonable rates, classifications, through routes, rules, and practices for certain transportation. ‘‘13702. Tariff requirement for certain transportation.

‘‘13703. Certain collective activities; exemption from antitrust laws.

‘‘13704. Household goods rates—estimates; guarantees of service.

‘‘13705. Requirements for through routes among motor carriers of passengers.

‘‘13706. Liability for payment of rates.

‘‘13707. Payment of rates.

‘‘13708. Billing and collecting practices.

‘‘13709. Procedures for resolving claims involving unfiled, negotiated transportation

rates.

‘‘13710. Additional billing and collecting practices.

‘‘13711. Alternative procedure for resolving undercharge disputes.

‘‘13712. Government traffic.

‘‘13713. Food and grocery transportation.

‘‘§ 13701. Requirements for reasonable rates, classifications,

through routes, rules, and practices for certain

transportation

‘‘(a) REASONABLENESS.— ‘‘(1) CERTAIN HOUSEHOLD GOODS TRANSPORTATION; JOINT

RATES INVOLVING WATER TRANSPORTATION.—A rate, classification, rule, or practice related to transportation or service provided by a carrier subject to jurisdiction under chapter 135

for transportation or service involving— ‘‘(A) a movement of household goods,

‘‘(B) a rate for a movement by or with a water carrier in noncontiguous domestic trade, or ‘‘(C) rates, rules, and classifications made collectively by motor carriers under agreements approved pursuant

to section 13703,

must be reasonable.

‘‘(2) THROUGH ROUTES AND DIVISIONS OF JOINT RATES.— Through routes and divisions of joint rates for such transportation or service must be reasonable.

‘‘(b) PRESCRIPTION BY BOARD FOR VIOLATIONS.—When the Board

finds it necessary to stop or prevent a violation of subsection (a),

the Board shall prescribe the rate, classification, rule, practice,

through route, or division of joint rates to be applied for such

transportation or service.

‘‘(c) FILING OF COMPLAINT.—A complaint that a rate, classification, rule, or practice in noncontiguous domestic trade violates

subsection (a) may be filed with the Board. ‘‘(d) ZONE OF REASONABLENESS.— ‘‘(1) IN GENERAL.—For purposes of this section, a rate or

division of a motor carrier for service in noncontiguous domestic

trade or water carrier for port-to-port service in that trade

is reasonable if the aggregate of increases and decreases in

any such rate or division is not more than 7.5 percent above,

or more than 10 percent below, the rate or division in effect

1 year before the effective date of the proposed rate or division. ‘‘(2) ADJUSTMENTS TO THE ZONE.—The percentage specified in paragraph (1) shall be increased or decreased, as the case

may be, by the percentage change in the Producers Price Index,

as published by the Department of Labor, that has occurred

during the most recent 1-year period before the date the rate

or division in question first took effect.

109 STAT. 868 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(3) DETERMINATIONS AFTER COMPLAINT.—The Board shall

determine whether any rate or division of a carrier or service

in noncontiguous domestic trade which is not within the range

described in paragraph (1) is reasonable if a complaint is filed

under subsection (c) or section 13702(b)(6).

‘‘(4) REPARATIONS.—Upon a finding of violation of subsection (a), the Board shall award reparations to the complaining shipper or shippers in an amount equal to all sums assessed

and collected that exceed the determined reasonable rate, division, rate structure, or tariff. Upon complaint from any governmental agency or authority and upon a finding or violation

of subsection (a), the Board shall make such orders as are

just and shall require the carrier to return, to the extent

practicable, to shippers all amounts plus interest, which the

Board finds to have been assessed and collected in violation

of subsection (a).

‘‘§ 13702. Tariff requirement for certain transportation

‘‘(a) IN GENERAL.—Except when providing transportation for

charitable purposes without charge, a carrier subject to jurisdiction

under chapter 135 may provide transportation or service that is—

‘‘(1) in noncontiguous domestic trade, except with regard

to bulk cargo, forest products, recycled metal scrap, waste

paper, and paper waste; or

‘‘(2) for movement of household goods;

only if the rate for such transportation or service is contained

in a tariff that is in effect under this section. The carrier may

not charge or receive a different compensation for the transportation

or service than the rate specified in the tariff, whether by returning

a part of that rate to a person, giving a person a privilege, allowing

the use of a facility that affects the value of that transportation

or service, or another device. A rate contained in a tariff shall

be stated in money of the United States.

‘‘(b) TARIFF REQUIREMENTS FOR NONCONTIGUOUS DOMESTIC

TRADE.—

‘‘(1) FILING.—A carrier providing transportation or service

described in subsection (a)(1) shall publish and file with the

Board tariffs containing the rates established for such transportation or service. The carriers shall keep such tariffs available

for public inspection. The Board shall prescribe the form and

manner of publishing, filing, and keeping tariffs available for public inspection under this subsection.

‘‘(2) CONTENTS.—The Board may prescribe any specific

information and charges to be identified in a tariff, but at

a minimum tariffs must identify plainly—

‘‘(A) the carriers that are parties to it;

‘‘(B) the places between which property will be transported;

‘‘(C) terminal charges if a carrier provides transportation or service subject to jurisdiction under subchapter

III of chapter 135;

‘‘(D) privileges given and facilities allowed; and

‘‘(E) any rules that change, affect, or determine any

part of the published rate.

‘‘(3) INLAND DIVISIONS.—A carrier providing transportation

or service described in subsection (a)(1) under a joint rate

for a through movement shall not be required to state sepaRegulations.

Publication.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 869

rately or otherwise reveal in tariff filings the inland divisions

of that through rate. ‘‘(4) TIME-VOLUME RATES.—Rates in tariffs filed under this

subsection may vary with the volume of cargo offered over

a specified period of time.

‘‘(5) CHANGES.—The Board may permit carriers to change

rates, classifications, rules, and practices without filing complete tariffs under this subsection that cover matter that is

not being changed when the Board finds that action to be

consistent with the public interest. Those carriers may either—

‘‘(A) publish new tariffs that incorporate changes, or

‘‘(B) plainly indicate the proposed changes in the tariffs

then in effect and make the tariffs as changed available

for public inspection.

‘‘(6) COMPLAINTS.—A complaint that a rate or related rule

or practice maintained in a tariff under this subsection violates

section 13701(a) may be submitted to the Board for resolution.

‘‘(c) TARIFF REQUIREMENTS FOR HOUSEHOLD GOODS CARRIERS.—

‘‘(1) IN GENERAL.—A carrier providing transportation

described in subsection (a)(2) shall maintain rates and related

rules and practices in a published tariff. The tariff must be

available for inspection by the Board and be made available

for inspection by shippers upon reasonable request.

‘‘(2) NOTICE OF AVAILABILITY.—A carrier that maintains

a tariff under this subsection may not enforce the provisions

of the tariff unless the carrier has given notice that the tariff

is available for inspection in its bill of lading or by other

actual notice to individuals whose shipments are subject to

the tariff.

‘‘(3) REQUIREMENTS.—A carrier that maintains a tariff

under this subsection is bound by the tariff except as otherwise

provided in this part. A tariff that does not comply with this

subsection may not be enforced against any individual shipper.

‘‘(4) INCORPORATION BY REFERENCE.—A carrier may incorporate by reference the rates, terms, and other conditions of

a tariff in agreements covering the transportation of household

goods.

‘‘(5) COMPLAINTS.—A complaint that a rate or related rule

or practice maintained in a tariff under this subsection violates

section 13701(a) may be submitted to the Board for resolution.

‘‘(d) INVALIDATION.—The Board may invalidate a tariff prepared

by a carrier or carriers under this section if that tariff violates

this section or a regulation of the Board carrying out this section.

‘‘§ 13703. Certain collective activities; exemption from antitrust laws

‘‘(a) AGREEMENTS.—

‘‘(1) AUTHORITY TO ENTER.—A motor carrier providing

transportation or service subject to jurisdiction under chapter

135 may enter into an agreement with one or more such carriers

to establish—

‘‘(A) through routes and joint rates;

‘‘(B) rates for the transportation of household goods;

‘‘(C) classifications;

‘‘(D) mileage guides;

‘‘(E) rules;

‘‘(F) divisions;

109 STAT. 870 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(G) rate adjustments of general application based on

industry average carrier costs (so long as there is no discussion of individual markets or particular single-line rates);

or

‘‘(H) procedures for joint consideration, initiation, or

establishment of matters described in subparagraphs (A)

through (G).

‘‘(2) SUBMISSION OF AGREEMENT TO BOARD; APPROVAL.—

An agreement entered into under subsection (a) may be submitted by any carrier or carriers that are parties to such agreement

to the Board for approval and may be approved by the Board

only if it finds that such agreement is in the public interest.

‘‘(3) CONDITIONS.—The Board may require compliance with

reasonable conditions consistent with this part to assure that

the agreement furthers the transportation policy set forth in

section 13101.

‘‘(4) INDEPENDENTLY ESTABLISHED RATES.—Any carrier

which is a party to an agreement under paragraph (1) is not,

and may not be, precluded from independently establishing

its own rates, classification, and mileages or from adopting

and using a noncollectively made classification or mileage guide.

‘‘(5) INVESTIGATIONS.—

‘‘(A) REASONABLENESS.—The Board may suspend and

investigate the reasonableness of any rate, rule, classification, or rate adjustment of general application made pursuant to an agreement under this section.

‘‘(B) ACTIONS NOT IN THE PUBLIC INTEREST.—The Board

may investigate any action taken pursuant to an agreement

approved under this section. If the Board finds that the

action is not in the public interest, the Board may take

such measures as may be necessary to protect the public

interest with regard to the action, including issuing an

order directing the parties to cease and desist or modify

the action.

‘‘(6) EFFECT OF APPROVAL.—If the Board approves the

agreement or renews approval of the agreement, it may be

made and carried out under its terms and under the conditions

required by the Board, and the antitrust laws, as defined in

the first section of the Clayton Act (15 U.S.C. 12), do not

apply to parties and other persons with respect to making

or carrying out the agreement.

‘‘(b) RECORDS.—The Board may require an organization established or continued under an agreement approved under this section

to maintain records and submit reports. The Board, or its delegate,

may inspect a record maintained under this section, or monitor

any organization’s compliance with this section.

‘‘(c) REVIEW.—The Board may review an agreement approved

under this section, on its own initiative or on request, and shall

change the conditions of approval or terminate it when necessary

to protect the public interest. Action of the Board under this

section—

‘‘(1) approving an agreement,

‘‘(2) denying, ending, or changing approval,

‘‘(3) prescribing the conditions on which approval is

granted, or

‘‘(4) changing those conditions,

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 871

has effect only as related to application of the antitrust laws referred

to in subsection (a).

‘‘(d) EXPIRATION OF APPROVALS; RENEWALS.—Subject to sub- section (c), approval of an agreement under subsection (a) shall

expire 3 years after the date of approval unless renewed under

this subsection. The approval may be renewed upon request of

the parties to the agreement if such parties resubmit the agreement

to the Board, the agreement is unchanged, and the Board approves

such renewal. The Board shall approve the renewal unless it finds

that the renewal is not in the public interest. Parties to the agreement may continue to undertake activities pursuant to the previously approved agreement while the renewal request is pending.

‘‘(e) EXISTING AGREEMENTS.—Agreements approved under

former section 10706(b) and in effect on the day before the effective

date of this section shall be treated for purposes of this section

as approved by the Board under this section beginning on such

effective date.

‘‘(f) LIMITATIONS ON STATUTORY CONSTRUCTION.—

‘‘(1) UNDERCHARGE CLAIMS.—Nothing in this section shall

serve as a basis for any undercharge claim.

‘‘(2) OBLIGATION OF SHIPPER.—Nothing in this title, the

ICC Termination Act of 1995, or any amendments or repeals

made by such Act shall be construed as creating any obligation

for a shipper based solely on a classification that was on file

with the Interstate Commerce Commission or elsewhere on

the day before the effective date of this section.

‘‘(g) INDUSTRY STANDARD GUIDES.—

‘‘(1) IN GENERAL.—

‘‘(A) PUBLIC AVAILABILITY.—Routes, rates, classifications, mileage guides, and rules established under agreements approved under this section shall be published and

made available for public inspection upon request.

‘‘(B) PARTICIPATION OF CARRIERS.—

‘‘(i) IN GENERAL.—A motor carrier of property

whose routes, rates, classifications, mileage guides,

rules, or packaging are determined or governed by

publications established under agreements approved

under this section must participate in the determining

or governing publication for such provisions to apply.

‘‘(ii) POWER OF ATTORNEY.—The motor carrier of

property shall issue a power of attorney to the publishing agent and, upon its acceptance, the agent shall

issue a written certification to the motor carrier affirming its participation in the governing publication, and

the certification shall be made available for public

inspection.

‘‘(2) MILEAGE LIMITATION.—No carrier subject to jurisdiction

under subchapter I or III of chapter 135 may enforce collection

of its mileage rates unless such carrier—

‘‘(A) is a participant in a publication of mileages formulated under an agreement approved under this section;

or

‘‘(B) uses a publication of mileage (other than a publication described in subparagraph (A)) that can be examined

by any interested person upon reasonable request.

‘‘(h) SINGLE LINE RATE DEFINED.—In this section, the term

‘single line rate’ means a rate, charge, or allowance proposed by

Publication.

109 STAT. 872 PUBLIC LAW 104–88—DEC. 29, 1995

a single motor carrier that is applicable only over its line and

for which the transportation can be provided by that carrier.

‘‘§ 13704. Household goods rates—estimates; guarantees of

service

‘‘(a) IN GENERAL.—

‘‘(1) AUTHORITY.—Subject to the provisions of paragraph

(2) of this subsection, a motor carrier providing transportation

of household goods subject to jurisdiction under subchapter

I of chapter 135 may establish a rate for the transportation

of household goods which is based on the carrier’s written,

binding estimate of charges for providing such transportation.

‘‘(2) NONPREFERENTIAL; NONPREDATORY.—Any rate established under this subsection must be available on a

nonpreferential basis to shippers and must not result in charges

to shippers which are predatory.

‘‘(b) RATES FOR GUARANTEED SERVICE.—

‘‘(1) AUTHORITY.—Subject to the provisions of paragraph

(2) of this subsection, a motor carrier providing transportation

of household goods subject to jurisdiction under subchapter

I of chapter 135 may establish rates for the transportation

of household goods which guarantee that the carrier will pick

up and deliver such household goods at the times specified

in the contract for such services and provide a penalty or

per diem payment in the event the carrier fails to pick up

or deliver such household goods at the specified time. The

charges, if any, for such guarantee and penalty provision may

vary to reflect one or more options available to meet a particular

shipper’s needs.

‘‘(2) AUTHORITY OF SECRETARY TO REQUIRE NONGUARANTEED

SERVICE RATES.—Before a carrier may establish a rate for any

service under paragraph (1) of this subsection, the Secretary

may require such carrier to have in effect and keep in effect,

during any period such rate is in effect under paragraph (1),

a rate for such service which does not guarantee the pick

up and delivery of household goods at the times specified in

the contract for such services and which does not provide a

penalty or per diem payment in the event the carrier fails

to pick up or deliver household goods at the specified time.

‘‘§ 13705. Requirements for through routes among motor carriers of passengers

‘‘(a) ESTABLISHMENT; REASONABLENESS.—A motor carrier

providing transportation of passengers subject to jurisdiction under

subchapter I of chapter 135 shall establish through routes with

other carriers of the same type and shall establish individual and

joint rates applicable to them. Such through route must be

reasonable.

‘‘(b) PRESCRIBED BY BOARD.—When the Board finds it necessary

to enforce the requirements of this section, the Board may prescribe

through routes and the conditions under which those routes must

be operated for motor carriers providing transportation of passengers subject to jurisdiction under subchapter I of chapter 135.

‘‘§ 13706. Liability for payment of rates

‘‘(a) LIABILITY OF CONSIGNEE.—Liability for payment of rates

for transportation for a shipment of property by a shipper or conVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00070 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 873

signor to a consignee other than the shipper or consignor, is determined under this section when the transportation is provided by

motor carrier under this part. When the shipper or consignor

instructs the carrier transporting the property to deliver it to a

consignee that is an agent only, not having beneficial title to the

property, the consignee is liable for rates billed at the time of

delivery for which the consignee is otherwise liable, but not for

additional rates that may be found to be due after delivery if

the consignee gives written notice to the delivering carrier before

delivery of the property—

‘‘(1) of the agency and absence of beneficial title; and

‘‘(2) of the name and address of the beneficial owner of

the property if it is reconsigned or diverted to a place other

than the place specified in the original bill of lading.

‘‘(b) LIABILITY OF BENEFICIAL OWNER.—When the consignee

is liable only for rates billed at the time of delivery under subsection

(a), the shipper or consignor, or, if the property is reconsigned

or diverted, the beneficial owner is liable for those additional rates

regardless of the bill of the lading or contract under which the

property was transported. The beneficial owner is liable for all

rates when the property is reconsigned or diverted by an agent

but is refused or abandoned at its ultimate destination if the agent

gave the carrier in the reconsignment or diversion order a notice

of agency and the name and address of the beneficial owner. A

consignee giving the carrier erroneous information about the identity of the beneficial owner of the property is liable for the additional

rates.

‘‘§ 13707. Payment of rates

‘‘(a) TRANSFER OF POSSESSION UPON PAYMENT.—Except as provided in subsection (b), a carrier providing transportation or service

subject to jurisdiction under this part shall give up possession

at the destination of the property transported by it only when

payment for the transportation or service is made.

‘‘(b) EXCEPTIONS.—

‘‘(1) REGULATIONS.—Under regulations of the Secretary

governing the payment for transportation and service and

preventing discrimination, those carriers may give up possession at destination of property transported by them before

payment for the transportation or service. The regulations of

the Secretary may provide for weekly or monthly payment

for transportation provided by motor carriers and for periodic

payment for transportation provided by water carriers.

‘‘(2) EXTENSIONS OF CREDIT TO GOVERNMENTAL ENTITIES.—

Such a carrier (including a motor carrier being used by a

household goods freight forwarder) may extend credit for

transporting property for the United States Government, a

State, a territory or possession of the United States, or a

political subdivision of any of them.

‘‘§ 13708. Billing and collecting practices

‘‘(a) DISCLOSURE.—A motor carrier subject to jurisdiction under

subchapter I of chapter 135 shall disclose, when a document is

presented or electronically transmitted for payment to the person

responsible directly to the motor carrier for payment or agent

of such responsible person, the actual rates, charges, or allowances

for any transportation service and shall also disclose, at such time,

109 STAT. 874 PUBLIC LAW 104–88—DEC. 29, 1995

whether and to whom any allowance or reduction in charges is

made.

‘‘(b) FALSE OR MISLEADING INFORMATION.—No person may cause

a motor carrier to present false or misleading information on a

document about the actual rate, charge, or allowance to any party

to the transaction.

‘‘(c) ALLOWANCES FOR SERVICES.—When the actual rate, charge,

or allowance is dependent upon the performance of a service by

a party to the transportation arrangement, such as tendering a

volume of freight over a stated period of time, the motor carrier

shall indicate in any document presented for payment to the person

responsible directly to the motor carrier that a reduction, allowance,

or other adjustment may apply.

‘‘§ 13709. Procedures for resolving claims involving unfiled,

negotiated transportation rates

‘‘(a) TRANSPORTATION PROVIDED AT RATES OTHER THAN LEGAL

TARIFF RATES.—

‘‘(1) IN GENERAL.—When a claim is made by a motor carrier

of property (other than a household goods carrier) providing

transportation subject to jurisdiction under subchapter II of

chapter 105 (as in effect on the day before the effective date

of this section) or subchapter I of chapter 135, by a freight

forwarder (other than a household goods freight forwarder),

or by a party representing such a carrier or freight forwarder

regarding the collection of rates or charges for such transportation in addition to those originally billed and collected by

the carrier or freight forwarder for such transportation, the

person against whom the claim is made may elect to satisfy

the claim under the provisions of subsection (b), (c), or (d),

upon showing that—

‘‘(A) the carrier or freight forwarder is no longer

transporting property or is transporting property for the

purpose of avoiding the application of this section; and

‘‘(B) with respect to the claim—

‘‘(i) the person was offered a transportation rate

by the carrier or freight forwarder other than that

legally on file at the time with the Board or with

the Interstate Commerce Commission, as required, for

the transportation service;

‘‘(ii) the person tendered freight to the carrier or

freight forwarder in reasonable reliance upon the

offered transportation rate;

‘‘(iii) the carrier or freight forwarder did not properly or timely file with the Board or with the Interstate

Commerce Commission, as required, a tariff providing

for such transportation rate or failed to enter into

an agreement for contract carriage;

‘‘(iv) such transportation rate was billed and collected by the carrier or freight forwarder; and

‘‘(v) the carrier or freight forwarder demands additional payment of a higher rate filed in a tariff.

‘‘(2) FORUM.—If there is a dispute as to the showing under

paragraph (1)(A), such dispute shall be resolved by the court

in which the claim is brought. If there is a dispute as to

the showing under paragraph (1)(B), such dispute shall be

resolved by the Board. Pending the resolution of any such

Courts.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 875

dispute, the person shall not have to pay any additional compensation to the carrier or freight forwarder. ‘‘(3) EFFECT OF SATISFACTION OF CLAIMS.—Satisfaction of

the claim under subsection (b), (c), or (d) shall be binding

on the parties, and the parties shall not be subject to chapter

119 of this title, as such chapter was in effect on the day

before the effective date of this section, or chapter 149.

‘‘(b) CLAIMS INVOLVING SHIPMENTS WEIGHING 10,000 POUNDS

OR LESS.—A person from whom the additional legally applicable

and effective tariff rate or charges are sought may elect to satisfy

the claim if the shipments each weighed 10,000 pounds or less,

by payment of 20 percent of the difference between the carrier’s

applicable and effective tariff rate and the rate originally billed

and paid. In the event that a dispute arises as to the rate that

was legally applicable to the shipment, such dispute shall be

resolved by the Board.

‘‘(c) CLAIMS INVOLVING SHIPMENTS WEIGHING MORE THAN

10,000 POUNDS.—A person from whom the additional legally

applicable and effective tariff rate or charges are sought may elect

to satisfy the claim if the shipments each weighed more than

10,000 pounds, by payment of 15 percent of the difference between

the carrier’s applicable and effective tariff rate and the rate originally billed and paid. In the event that a dispute arises as to

the rate that was legally applicable to the shipment, such dispute

shall be resolved by the Board.

‘‘(d) CLAIMS INVOLVING PUBLIC WAREHOUSEMEN.—Notwithstanding subsections (b) and (c), a person from whom the additional

legally applicable and effective tariff rate or charges are sought

may elect to satisfy the claim by payment of 5 percent of the

difference between the carrier’s applicable and effective tariff rate

and the rate originally billed and paid if such person is a public

warehouseman. In the event that a dispute arises as to the rate

that was legally applicable to the shipment, such dispute shall

be resolved by the Board.

‘‘(e) EFFECTS OF ELECTION.—When a person from whom additional legally applicable freight rates or charges are sought does

not elect to use the provisions of subsection (b), (c) or (d), the

person may pursue all rights and remedies existing under this

part or, for transportation provided before the effective date of

this section, all rights and remedies that existed under this title

on the day before such effective date.

‘‘(f) STAY OF ADDITIONAL COMPENSATION.—When a person proceeds under this section to challenge the reasonableness of the

legally applicable freight rate or charges being claimed by a carrier

or freight forwarder in addition to those already billed and collected,

the person shall not have to pay any additional compensation

to the carrier or freight forwarder until the Board has made a

determination as to the reasonableness of the challenged rate as

applied to the freight of the person against whom the claim is

made.

‘‘(g) NOTIFICATION OF ELECTION.—

‘‘(1) GENERAL RULE.—A person must notify the carrier or

freight forwarder as to its election to proceed under subsection

(b), (c), or (d). Except as provided in paragraphs (2), (3), and

(4), such election may be made at any time.

‘‘(2) DEMANDS FOR PAYMENT INITIALLY MADE AFTER DECEMBER 3, 1993.—If the carrier or freight forwarder or party repVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00073 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
109 STAT. 876 PUBLIC LAW 104–88—DEC. 29, 1995

resenting such carrier or freight forwarder initially demands

the payment of additional freight charges after December 3,

1993, and notifies the person from whom additional freight

charges are sought of the provisions of subsections (a) through

(f) at the time of the making of such initial demand, the

election must be made not later than the later of—

‘‘(A) the 60th day following the filing of an answer

to a suit for the collection of such additional legally

applicable freight rate or charges, or

‘‘(B) March 5, 1994.

‘‘(3) PENDING SUITS FOR COLLECTION MADE BEFORE DECEMBER 4, 1993.—If the carrier or freight forwarder or party representing such carrier or freight forwarder has filed, before

December 4, 1993, a suit for the collection of additional freight

charges and notifies the person from whom additional freight

charges are sought of the provisions of subsections (a) through

(f), the election must be made not later than the 90th day

following the date on which such notification is received.

‘‘(4) DEMANDS FOR PAYMENT MADE BEFORE DECEMBER 4,

1993.—If the carrier or freight forwarder or party representing

such carrier or freight forwarder has demanded the payment

of additional freight charges, and has not filed a suit for the

collection of such additional freight charges, before December

4, 1993, and notifies the person from whom additional freight

charges are sought of the provisions of subsections (a) through

(f), the election must be made not later than the later of—

‘‘(A) the 60th day following the filing of an answer

to a suit for the collection of such additional legally

applicable freight rate or charges, or

‘‘(B) March 5, 1994.

‘‘(h) CLAIMS INVOLVING SMALL-BUSINESS CONCERNS, CHARITABLE ORGANIZATIONS, AND RECYCLABLE MATERIALS.—

‘‘(1) IN GENERAL.—Notwithstanding subsections (b), (c), and

(d), a person from whom the additional legally applicable and

effective tariff rate or charges are sought shall not be liable

for the difference between the carrier’s applicable and effective

tariff rate and the rate originally billed and paid—

‘‘(A) if such person qualifies as a small-business concern

under the Small Business Act (15 U.S.C. 631 et seq.),

‘‘(B) if such person is an organization which is described

in section 501(c)(3) of the Internal Revenue Code of 1986

and exempt from tax under section 501(a) of such Code,

or

‘‘(C) if the cargo involved in the claim is recyclable

materials.

‘‘(2) RECYCLABLE MATERIALS DEFINED.—In this subsection,

the term ‘recyclable materials’ means waste products for

recycling or reuse in the furtherance of recognized pollution

control programs.

‘‘§ 13710. Additional billing and collecting practices

‘‘(a) MISCELLANEOUS PROVISIONS.—

‘‘(1) INFORMATION RELATING TO BASIS OF RATE.—A motor

carrier of property (other than a motor carrier providing

transportation in noncontiguous domestic trade) shall provide

to the shipper, on request of the shipper, a written or electronic

copy of the rate, classification, rules, and practices, upon which

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 877

any rate applicable to its shipment or agreed to between the

shipper and carrier is based.

‘‘(2) REASONABLENESS OF RATES; COLLECTING ADDITIONAL

CHARGES.—When the applicability or reasonableness of the

rates and related provisions billed by a motor carrier is challenged by the person paying the freight charges, the Board

shall determine whether such rates and provisions are reasonable under section 13701 or applicable based on the record

before it.

‘‘(3) BILLING DISPUTES.—

‘‘(A) INITIATED BY MOTOR CARRIERS.—In those cases

where a motor carrier (other than a motor carrier providing

transportation of household goods or in noncontiguous

domestic trade) seeks to collect charges in addition to those

billed and collected which are contested by the payor, the

carrier may request that the Board determine whether

any additional charges over those billed and collected must

be paid. A carrier must issue any bill for charges in addition

to those originally billed within 180 days of the receipt

of the original bill in order to have the right to collect

such charges.

‘‘(B) INITIATED BY SHIPPERS.—If a shipper seeks to contest the charges originally billed or additional charges subsequently billed, the shipper may request that the Board

determine whether the charges billed must be paid. A

shipper must contest the original bill or subsequent bill

within 180 days of receipt of the bill in order to have

the right to contest such charges.

‘‘(4) VOIDING OF CERTAIN TARIFFS.—Any tariff on file with

the Interstate Commerce Commission on August 26, 1994, and

not required to be filed after that date is null and void beginning

on that date. Any tariff on file with the Interstate Commerce

Commission on the effective date of this section and not

required to be filed after that date is null and void beginning

on that date.

‘‘(b) RESOLUTION OF DISPUTES OVER STATUS OF COMMON CARRIER OR CONTRACT CARRIER.—If a motor carrier (other than a

motor carrier providing transportation of household goods) that

was subject to jurisdiction under subchapter II of chapter 105,

as in effect on the day before the effective date of this section,

and that had authority to provide transportation as both a motor

common carrier and a motor contract carrier and a dispute arises

as to whether certain transportation that was provided prior to

the effective date of this section was provided in its common carrier

or contract carrier capacity and the parties are not able to resolve

the dispute consensually, the Board shall resolve the dispute.

‘‘§ 13711. Alternative procedure for resolving undercharge

disputes

‘‘(a) GENERAL RULE.—It shall be an unreasonable practice for

a motor carrier of property (other than a household goods carrier)

providing transportation subject to jurisdiction under subchapter

I of chapter 135 or, before the effective date of this section, to

have provided transportation that was subject to jurisdiction under

subchapter II of chapter 105, as in effect on the day before the

effective date of this section, a freight forwarder (other than a

household goods freight forwarder), or a party representing such

109 STAT. 878 PUBLIC LAW 104–88—DEC. 29, 1995

a carrier or freight forwarder to attempt to charge or to charge

for a transportation service the difference between (1) the applicable

rate that was lawfully in effect pursuant to a tariff that was

filed in accordance with this chapter or, with respect to transportation provided before the effective date of this section, in accordance with chapter 107, as in effect on the date the transportation

was provided, by the carrier or freight forwarder applicable to

such transportation service, and (2) the negotiated rate for such

transportation service if the carrier or freight forwarder is no longer

transporting property between places described in section 13501(1)

or is transporting property between places described in section

13501(1) for the purpose of avoiding application of this section.

‘‘(b) JURISDICTION OF BOARD.—

‘‘(1) DETERMINATION.—The Board shall have jurisdiction

to make a determination of whether or not attempting to charge

or the charging of a rate by a motor carrier or freight forwarder

or party representing a motor carrier or freight forwarder is

an unreasonable practice under subsection (a). If the Board

determines that attempting to charge or the charging of the

rate is an unreasonable practice under subsection (a), the carrier, freight forwarder, or party may not collect the difference

described in subsection (a) between the applicable rate and

the negotiated rate for the transportation service.

‘‘(2) FACTORS TO CONSIDER.—In making a determination

under paragraph (1), the Board shall consider—

‘‘(A) whether the person was offered a transportation

rate by the carrier or freight forwarder or party other

than that legally on file with the Interstate Commerce

Commission or the Board, as required, at the time of the

movement for the transportation service;

‘‘(B) whether the person tendered freight to the carrier

or freight forwarder in reasonable reliance upon the offered

transportation rate;

‘‘(C) whether the carrier or freight forwarder did not

properly or timely file with the Interstate Commerce

Commission or the Board, as required, a tariff providing

for such transportation rate or failed to enter into an

agreement for contract carriage;

‘‘(D) whether the transportation rate was billed and

collected by the carrier or freight forwarder; and

‘‘(E) whether the carrier or freight forwarder or party

demands additional payment of a higher rate filed in a

tariff.

‘‘(c) STAY OF ADDITIONAL COMPENSATION.—When a person proceeds under this section to challenge the reasonableness of the

practice of a motor carrier, freight forwarder, or party described

in subsection (a) to attempt to charge or to charge the difference

described in subsection (a) between the applicable rate and the

negotiated rate for the transportation service in addition to those

charges already billed and collected for the transportation service,

the person shall not have to pay any additional compensation

to the carrier, freight forwarder, or party until the Board has

made a determination as to the reasonableness of the practice

as applied to the freight of the person against whom the claim

is made.

‘‘(d) TREATMENT.—Subsection (a) is an exception to the requirements of section 13702 and, for transportation provided before

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 879

the effective date of this section, to the requirements of sections

10761(a) and 10762, as in effect on the day before such effective

date, as such sections relate to a filed tariff rate and other general

tariff requirements.

‘‘(e) NONAPPLICABILITY OF NEGOTIATED RATE DISPUTE RESOLUTION PROCEDURE.—If a person elects to seek enforcement of subsection (a) with respect to a rate for a transportation or service,

section 13709 shall not apply to such rate.

‘‘(f) DEFINITIONS.—In this section, the term ‘‘negotiated rate’’

means a rate, charge, classification, or rule agreed upon by a

motor carrier or freight forwarder and a shipper through negotiations pursuant to which no tariff was lawfully and timely filed

and for which there is written evidence of such agreement.

‘‘(g) APPLICABILITY TO PENDING CASES.—This section shall apply

to all cases and proceedings pending on the effective date of this

section.

‘‘§ 13712. Government traffic

‘‘A carrier providing transportation or service for the United

States Government may transport property or individuals for the

United States Government without charge or at a rate reduced

from the applicable commercial rate. Section 3709 of the Revised

Statutes (41 U.S.C. 5) does not apply when transportation for

the United States Government can be obtained from a carrier

lawfully operating in the area where the transportation would be

provided.

‘‘§ 13713. Food and grocery transportation

‘‘(a) CERTAIN COMPENSATION PROHIBITED.—Notwithstanding

any other provision of law, it shall not be unlawful for a seller

of food and grocery products using a uniform zone delivered pricing

system to compensate a customer who picks up purchased food

and grocery products at the shipping point of the seller if such

compensation is available to all customers of the seller on a nondiscriminatory basis and does not exceed the actual cost to the

seller of delivery to such customer.

‘‘(b) SENSE OF CONGRESS.—It is the sense of the Congress

that any savings accruing to a customer by reason of compensation

permitted by subsection (a) of this section should be passed on

to the ultimate consumer.

‘‘CHAPTER 139—REGISTRATION

‘‘Sec.

‘‘13901. Requirement for registration.

‘‘13902. Registration of motor carriers.

‘‘13903. Registration of freight forwarders.

‘‘13904. Registration of brokers.

‘‘13905. Effective periods of registration.

‘‘13906. Security of motor carriers, brokers, and freight forwarders.

‘‘13907. Household goods agents.

‘‘13908. Registration and other reforms.

‘‘§ 13901. Requirement for registration

‘‘A person may provide transportation or service subject to

jurisdiction under subchapter I or III of chapter 135 or be a broker

for transportation subject to jurisdiction under subchapter I of

that chapter, only if the person is registered under this chapter

to provide the transportation or service.

109 STAT. 880 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘§ 13902. Registration of motor carriers

‘‘(a) MOTOR CARRIER GENERALLY.—

‘‘(1) IN GENERAL.—Except as provided in this section, the

Secretary shall register a person to provide transportation subject to jurisdiction under subchapter I of chapter 135 of this

title as a motor carrier if the Secretary finds that the person

is willing and able to comply with—

‘‘(A) this part and the applicable regulations of the

Secretary and the Board;

‘‘(B) any safety regulations imposed by the Secretary

and the safety fitness requirements established by the Secretary under section 31144; and

‘‘(C) the minimum financial responsibility requirements

established by the Secretary pursuant to sections 13906

and 31138.

‘‘(2) CONSIDERATION OF EVIDENCE; FINDINGS.—The Secretary shall consider and, to the extent applicable, make findings on, any evidence demonstrating that the registrant is

unable to comply with the requirements of subparagraph (A),

(B), or (C) of paragraph (1).

‘‘(3) WITHHOLDING.—If the Secretary determines that any

registrant under this section does not meet the requirements

of paragraph (1), the Secretary shall withhold registration.

‘‘(4) LIMITATION ON COMPLAINTS.—The Secretary may hear

a complaint from any person concerning a registration under

this subsection only on the ground that the registrant fails

or will fail to comply with this part, the applicable regulations

of the Secretary and the Board, the safety regulations of the

Secretary, or the safety fitness or minimum financial responsibility requirements of paragraph (1) of this subsection.

‘‘(b) MOTOR CARRIERS OF PASSENGERS.—

‘‘(1) REGISTRATION OF PRIVATE RECIPIENTS OF GOVERNMENTAL ASSISTANCE.—The Secretary shall register under subsection (a)(1) a private recipient of governmental assistance

to provide special or charter transportation subject to jurisdiction under subchapter I of chapter 135 as a motor carrier

of passengers if the Secretary finds that the recipient meets

the requirements of subsection (a)(1), unless the Secretary finds,

on the basis of evidence presented by any person objecting

to the registration, that the transportation to be provided pursuant to the registration is not in the public interest.

‘‘(2) REGISTRATION OF PUBLIC RECIPIENTS OF GOVERNMENTAL ASSISTANCE.—

‘‘(A) CHARTER TRANSPORTATION.—The Secretary shall

register under subsection (a)(1) a public recipient of governmental assistance to provide special or charter transportation subject to jurisdiction under subchapter I of chapter

135 as a motor carrier of passengers if the Secretary finds

that—

‘‘(i) the recipient meets the requirements of subsection (a)(1); and

‘‘(ii)(I) no motor carrier of passengers (other than

a motor carrier of passengers which is a public recipient of governmental assistance) is providing, or is willing to provide, the transportation; or

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 881

‘‘(II) the transportation is to be provided entirely

in the area in which the public recipient provides regularly scheduled mass transportation services.

‘‘(B) REGULAR-ROUTE TRANSPORTATION.—The Secretary

shall register under subsection (a)(1) a public recipient

of governmental assistance to provide regular-route

transportation subject to jurisdiction under subchapter I

of chapter 135 as a motor carrier of passengers if the

Secretary finds that the recipient meets the requirements

of subsection (a)(1), unless the Secretary finds, on the basis

of evidence presented by any person objecting to the registration, that the transportation to be provided pursuant

to the registration is not in the public interest.

‘‘(C) TREATMENT OF CERTAIN PUBLIC RECIPIENTS.—Any

public recipient of governmental assistance which is providing or seeking to provide transportation of passengers subject to jurisdiction under subchapter I of chapter 135 shall,

for purposes of this part, be treated as a person which

is providing or seeking to provide transportation of passengers subject to such jurisdiction.

‘‘(3) INTRASTATE TRANSPORTATION BY INTERSTATE CARRIERS.—A motor carrier of passengers that is registered by

the Secretary under subsection (a) is authorized to provide

regular-route transportation entirely in one State as a motor

carrier of passengers if such intrastate transportation is to

be provided on a route over which the carrier provides interstate

transportation of passengers.

‘‘(4) PREEMPTION OF STATE REGULATION REGARDING CERTAIN

SERVICE.—No State or political subdivision thereof and no interstate agency or other political agency of 2 or more States

shall enact or enforce any law, rule, regulation, standard or

other provision having the force and effect of law relating

to the provision of pickup and delivery of express packages,

newspapers, or mail in a commercial zone if the shipment

has had or will have a prior or subsequent movement by bus

in intrastate commerce and, if a city within the commercial

zone, is served by a motor carrier of passengers providing

regular-route transportation of passengers subject to jurisdiction under subchapter I of chapter 135.

‘‘(5) JURISDICTION OVER CERTAIN INTRASTATE TRANSPORTATION.—Subject to section 14501(a), any intrastate transportation authorized by this subsection shall be treated as

transportation subject to jurisdiction under subchapter I of

chapter 135 until such time as the carrier takes such action

as is necessary to establish under the laws of such State rates,

rules, and practices applicable to such transportation, but in

no case later than the 30th day following the date on which

the motor carrier of passengers first begins providing transportation entirely in one State under this paragraph.

‘‘(6) SPECIAL OPERATIONS.—This subsection shall not apply

to any regular-route transportation of passengers provided

entirely in one State which is in the nature of a special

operation.

‘‘(7) SUSPENSION OR REVOCATION.—Intrastate transportation authorized under this subsection may be suspended or

revoked by the Secretary under section 13905 of this title

at any time.

109 STAT. 882 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(8) DEFINITIONS.—In this subsection, the following definitions apply:

‘‘(A) PUBLIC RECIPIENT OF GOVERNMENTAL ASSISTANCE.—The term ‘public recipient of governmental assistance’ means—

‘‘(i) any State,

‘‘(ii) any municipality or other political subdivision

of a State,

‘‘(iii) any public agency or instrumentality of one

or more States and municipalities and political subdivisions of a State,

‘‘(iv) any Indian tribe,

‘‘(v) any corporation, board, or other person owned

or controlled by any entity described in clause (i), (ii),

(iii), or (iv), and

which before, on, or after the effective date of this subsection received governmental assistance for the purchase

or operation of any bus.

‘‘(B) PRIVATE RECIPIENT OF GOVERNMENT ASSISTANCE.—

The term ‘private recipient of government assistance’

means any person (other than a person described in subparagraph (A)) who before, on, or after the effective date

of this paragraph received governmental financial assistance in the form of a subsidy for the purchase, lease,

or operation of any bus.

‘‘(c) RESTRICTIONS ON MOTOR CARRIERS DOMICILED IN OR

OWNED OR CONTROLLED BY NATIONALS OF A CONTIGUOUS FOREIGN

COUNTRY.—

‘‘(1) PREVENTION OF DISCRIMINATORY PRACTICES.—If the

President, or the delegate thereof, determines that an act,

policy, or practice of a foreign country contiguous to the United

States, or any political subdivision or any instrumentality of

any such country is unreasonable or discriminatory and burdens

or restricts United States transportation companies providing,

or seeking to provide, motor carrier transportation to, from,

or within such foreign country, the President or such delegate

may—

‘‘(A) seek elimination of such practices through consultations; or

‘‘(B) notwithstanding any other provision of law, suspend, modify, amend, condition, or restrict operations,

including geographical restriction of operations, in the

United States by motor carriers of property or passengers

domiciled in such foreign country or owned or controlled

by persons of such foreign country.

‘‘(2) EQUALIZATION OF TREATMENT.—Any action taken under

paragraph (1)(A) to eliminate an act, policy, or practice shall

be so devised so as to equal to the extent possible the burdens

or restrictions imposed by such foreign country on United States

transportation companies.

‘‘(3) REMOVAL OR MODIFICATION.—The President, or the

delegate thereof, may remove or modify in whole or in part

any action taken under paragraph (1)(A) if the President or

such delegate determines that such removal or modification

is consistent with the obligations of the United States under

a trade agreement or with United States transportation policy.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 883

‘‘(4) PROTECTION OF EXISTING OPERATIONS.—Unless and

until the President, or the delegate thereof, makes a determination under paragraph (1) or (3), nothing in this subsection

shall affect—

‘‘(A) operations of motor carriers of property or passengers domiciled in any contiguous foreign country or

owned or controlled by persons of any contiguous foreign

country permitted in the commercial zones along the United

States-Mexico border as such zones were defined on the

day before the effective date of this section; or

‘‘(B) any existing restrictions on operations of motor

carriers of property or passengers domiciled in any contiguous foreign country or owned or controlled by persons

of any contiguous foreign country or any modifications

thereof pursuant to section 6 of the Bus Regulatory Reform

Act of 1982.

‘‘(5) PUBLICATION; COMMENT.—Unless the President, or the

delegate thereof, determines that expeditious action is required,

the President shall publish in the Federal Register any determination under paragraph (1) or (3), together with a description

of the facts on which such a determination is based and any

proposed action to be taken pursuant to paragraph (1)(B) or

(3), and provide an opportunity for public comment.

‘‘(6) DELEGATION TO SECRETARY.—The President may delegate any or all authority under this subsection to the Secretary,

who shall consult with other agencies as appropriate. In accordance with the directions of the President, the Secretary may

issue regulations to enforce this subsection.

‘‘(7) CIVIL ACTIONS.—Either the Secretary or the Attorney

General may bring a civil action in an appropriate district

court of the United States to enforce this subsection or a

regulation prescribed or order issued under this subsection.

The court may award appropriate relief, including injunctive

relief.

‘‘(8) LIMITATION ON STATUTORY CONSTRUCTION.—This subsection shall not be construed as affecting the requirement

for all foreign motor carriers and foreign motor private carriers

operating in the United States to comply with all applicable

laws and regulations pertaining to fitness, safety of operations,

financial responsibility, and taxes imposed by section 4481 of

the Internal Revenue Code of 1986.

‘‘(d) TRANSITION RULE.—

‘‘(1) IN GENERAL.—Pending the implementation of the rulemaking required by section 13908, the Secretary may register

a person under this section—

‘‘(A) as a motor common carrier if such person would

have been issued a certificate to provide transportation

as a motor common carrier under this subtitle on the

day before the effective date of this section; and

‘‘(B) as a motor contract carrier if such person would

have been issued a permit to provide transportation as

a motor contract carrier under this subtitle on such day.

‘‘(2) DEFINITIONS.—In this subsection, the terms ‘motor

common carrier’ and ‘motor contract carrier’ have the meaning

such terms had under section 10102 as such section was in

effect on the day before the effective date of this section.

Federal Register,

publication.

109 STAT. 884 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(e) MOTOR CARRIER DEFINED.—In this section and sections

13905 and 13906, the term ‘motor carrier’ includes foreign motor

private carriers.

‘‘§ 13903. Registration of freight forwarders

‘‘(a) IN GENERAL.—The Secretary shall register a person to

provide service subject to jurisdiction under subchapter III of chapter 135 as a freight forwarder if the Secretary finds that the

person is fit, willing, and able to provide the service and to comply

with this part and applicable regulations of the Secretary and

the Board.

‘‘(b) REGISTRATION AS CARRIER REQUIRED.—The freight forwarder may provide transportation as the carrier itself only if

the freight forwarder also has registered to provide transportation

as a carrier under this chapter.

‘‘§ 13904. Registration of brokers

‘‘(a) IN GENERAL.—The Secretary shall register, subject to section 13906(b), a person to be a broker for transportation of property

subject to jurisdiction under subchapter I of chapter 135, if the

Secretary finds that the person is fit, willing, and able to be a

broker for transportation and to comply with this part and

applicable regulations of the Secretary.

‘‘(b) REGISTRATION AS CARRIER REQUIRED.—

‘‘(1) IN GENERAL.—The broker may provide the transportation itself only if the broker also has been registered to

provide the transportation as a motor carrier under this

chapter.

‘‘(2) LIMITATION.—This subsection does not apply to a motor

carrier registered under this chapter or to an employee or

agent of the motor carrier to the extent the transportation

is to be provided entirely by the motor carrier, with other

registered motor carriers, or with rail or water carriers.

‘‘(c) REGULATIONS TO PROTECT SHIPPERS.—Regulations of the

Secretary applicable to brokers registered under this section shall

provide for the protection of shippers by motor vehicle.

‘‘(d) BOND AND INSURANCE.—The Secretary may impose on brokers for motor carriers of passengers such requirements for bonds

or insurance or both as the Secretary determines are needed to

protect passengers and carriers dealing with such brokers.

‘‘§ 13905. Effective periods of registration

‘‘(a) PERSON HOLDING ICC AUTHORITY.—Any person having

authority to provide transportation or service as a motor carrier,

freight forwarder, or broker under this title, as in effect on the

day before the effective date of this section, shall be deemed, for

purposes of this part, to be registered to provide such transportation

or service under this part.

‘‘(b) IN GENERAL.—Except as otherwise provided in this part,

each registration issued under section 13902, 13903, or 13904 shall

be effective from the date specified by the Secretary and shall

remain in effect for such period as the Secretary determines appropriate by regulation.

‘‘(c) SUSPENSION, AMENDMENTS, AND REVOCATIONS.—On

application of the registrant, the Secretary may amend or revoke

a registration. On complaint or on the Secretary’s own initiative

and after notice and an opportunity for a proceeding, the Secretary

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 885

may suspend, amend, or revoke any part of the registration of

a motor carrier, broker, or freight forwarder for willful failure

to comply with this part, an applicable regulation or order of the

Secretary or of the Board, or a condition of its registration.

‘‘(d) PROCEDURE.—Except on application of the registrant, the

Secretary may revoke a registration of a motor carrier, freight

forwarder, or broker, only after—

‘‘(1) the Secretary has issued an order to the registrant

under section 14701 requiring compliance with this part, a

regulation of the Secretary, or a condition of the registration;

and

‘‘(2) the registrant willfully does not comply with the order

for a period of 30 days.

‘‘(e) EXPEDITED PROCEDURE.—

‘‘(1) PROTECTION OF SAFETY.—Without regard to subchapter

II of chapter 5 of title 5, the Secretary may suspend the registration of a motor carrier, a freight forwarder, or a broker for

failure to comply with safety requirements of the Secretary

or the safety fitness requirements pursuant to section 13904(c),

13906, or 31144, of this title, or an order or regulation of

the Secretary prescribed under those sections.

‘‘(2) IMMINENT HAZARD TO PUBLIC HEALTH.—Without regard

to subchapter II of chapter 5 of title 5, the Secretary may

suspend a registration of a motor carrier of passengers if the

Secretary finds that such carrier has been conducting unsafe

operations which are an imminent hazard to public health

or property.

‘‘(3) NOTICE; PERIOD OF SUSPENSION.—The Secretary may

suspend under this subsection the registration only after giving

notice of the suspension to the registrant. The suspension

remains in effect until the registrant complies with those

applicable sections or, in the case of a suspension under paragraph (2), until the Secretary revokes such suspension.

‘‘§ 13906. Security of motor carriers, brokers, and freight forwarders

‘‘(a) MOTOR CARRIER REQUIREMENTS.—

‘‘(1) LIABILITY INSURANCE REQUIREMENT.—The Secretary

may register a motor carrier under section 13902 only if the

registrant files with the Secretary a bond, insurance policy,

or other type of security approved by the Secretary, in an

amount not less than such amount as the Secretary prescribes

pursuant to, or as is required by, sections 31138 and 31139,

and the laws of the State or States in which the registrant

is operating, to the extent applicable. The security must be

sufficient to pay, not more than the amount of the security,

for each final judgment against the registrant for bodily injury

to, or death of, an individual resulting from the negligent

operation, maintenance, or use of motor vehicles, or for loss

or damage to property (except property referred to in paragraph

(3) of this subsection), or both. A registration remains in effect

only as long as the registrant continues to satisfy the security

requirements of this paragraph.

‘‘(2) AGENCY REQUIREMENT.—A motor carrier shall comply

with the requirements of sections 13303 and 13304. To protect

the public, the Secretary may require any such motor carrier

to file the type of security that a motor carrier is required

109 STAT. 886 PUBLIC LAW 104–88—DEC. 29, 1995

to file under paragraph (1) of this subsection. This paragraph

only applies to a foreign motor private carrier and foreign

motor carrier operating in the United States to the extent

that such carrier is providing transportation between places

in a foreign country or between a place in one foreign country

and a place in another foreign country.

‘‘(3) TRANSPORTATION INSURANCE.—The Secretary may

require a registered motor carrier to file with the Secretary

a type of security sufficient to pay a shipper or consignee

for damage to property of the shipper or consignee placed

in the possession of the motor carrier as the result of transportation provided under this part. A carrier required by law

to pay a shipper or consignee for loss, damage, or default

for which a connecting motor carrier is responsible is subrogated, to the extent of the amount paid, to the rights of

the shipper or consignee under any such security.

‘‘(b) BROKER REQUIREMENTS.—The Secretary may register a

person as a broker under section 13904 only if the person files

with the Secretary a bond, insurance policy, or other type of security

approved by the Secretary to ensure that the transportation for

which a broker arranges is provided. The registration remains

in effect only as long as the broker continues to satisfy the security

requirements of this subsection.

‘‘(c) FREIGHT FORWARDER REQUIREMENTS.—

‘‘(1) LIABILITY INSURANCE.—The Secretary may register a

person as a freight forwarder under section 13903 of this title

only if the person files with the Secretary a bond, insurance

policy, or other type of security approved by the Secretary.

The security must be sufficient to pay, not more than the

amount of the security, for each final judgment against the

freight forwarder for bodily injury to, or death of, an individual,

or loss of, or damage to, property (other than property referred

to in paragraph (2) of this subsection), resulting from the negligent operation, maintenance, or use of motor vehicles by or

under the direction and control of the freight forwarder when

providing transfer, collection, or delivery service under this

part.

‘‘(2) FREIGHT FORWARDER INSURANCE.—The Secretary may

require a registered freight forwarder to file with the Secretary

a bond, insurance policy, or other type of security approved

by the Secretary sufficient to pay, not more than the amount

of the security, for loss of, or damage to, property for which

the freight forwarder provides service.

‘‘(3) EFFECTIVE PERIOD.—The freight forwarder’s registration remains in effect only as long as the freight forwarder

continues to satisfy the security requirements of this subsection.

‘‘(d) TYPE OF INSURANCE.—The Secretary may determine the

type and amount of security filed under this section. A motor

carrier may submit proof of qualifications as a self-insurer to satisfy

the security requirements of this section. The Secretary shall adopt

regulations governing the standards for approval as a self-insurer.

Motor carriers which have been granted authority to self-insure

as of the effective date of this section shall retain that authority

unless, for good cause shown and after notice and an opportunity

for a hearing, the Secretary finds that the authority must be revoked.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 887

‘‘(e) NOTICE OF CANCELLATION OF INSURANCE.—The Secretary

shall issue regulations requiring the submission to the Secretary

of notices of insurance cancellation sufficiently in advance of actual

cancellation so as to enable the Secretary to promptly revoke the

registration of any carrier or broker after the effective date of

the cancellation.

‘‘(f) FORM OF ENDORSEMENT.—The Secretary shall also prescribe

the appropriate form of endorsement to be appended to policies

of insurance and surety bonds which will subject the insurance

policy or surety bond to the full security limits of the coverage

required under this section.

‘‘§ 13907. Household goods agents

‘‘(a) CARRIERS RESPONSIBLE FOR AGENTS.—Each motor carrier

providing transportation of household goods shall be responsible

for all acts or omissions of any of its agents which relate to the

performance of household goods transportation services (including

accessorial or terminal services) and which are within the actual

or apparent authority of the agent from the carrier or which are

ratified by the carrier.

‘‘(b) STANDARD FOR SELECTING AGENTS.—Each motor carrier

providing transportation of household goods shall use due diligence

and reasonable care in selecting and maintaining agents who are

sufficiently knowledgeable, fit, willing, and able to provide adequate

household goods transportation services (including accessorial and

terminal services) and to fulfill the obligations imposed upon them

by this part and by such carrier.

‘‘(c) ENFORCEMENT.—

‘‘(1) COMPLAINT.—Whenever the Secretary has reason to

believe from a complaint or investigation that an agent providing household goods transportation services (including accessorial and terminal services) under the authority of a motor

carrier providing transportation of household goods has violated

section 14901(e) or 14912 or is consistently not fit, willing,

and able to provide adequate household goods transportation

services (including accessorial and terminal services), the Secretary may issue to such agent a complaint stating the charges

and containing notice of the time and place of a hearing which

shall be held no later than 60 days after service of the complaint

to such agent.

‘‘(2) RIGHT TO DEFEND.—The agent shall have the right

to appear at such hearing and rebut the charges contained

in the complaint.

‘‘(3) ORDER.—If the agent does not appear at the hearing

or if the Secretary finds that the agent has violated section

14901(e) or 14912 or is consistently not fit, willing, and able

to provide adequate household goods transportation services

(including accessorial and terminal services), the Secretary may

issue an order to compel compliance with the requirement

that the agent be fit, willing, and able. Thereafter, the Secretary

may issue an order to limit, condition, or prohibit such agent

from any involvement in the transportation or provision of

services incidental to the transportation of household goods

if, after notice and an opportunity for a hearing, the Secretary

finds that such agent, within a reasonable time after the date

of issuance of a compliance order under this section, but in

Regulations.

109 STAT. 888 PUBLIC LAW 104–88—DEC. 29, 1995

no event less than 30 days after such date of issuance, has

willfully failed to comply with such order. ‘‘(4) HEARING.—Upon filing of a petition with the Secretary

by an agent who is the subject of an order issued pursuant

to the second sentence of paragraph (3) of this subsection

and after notice, a hearing shall be held with an opportunity

to be heard. At such hearing, a determination shall be made

whether the order issued pursuant to paragraph (3) of this

subsection should be rescinded.

‘‘(5) COURT REVIEW.—Any agent adversely affected or

aggrieved by an order of the Secretary issued under this subsection may seek relief in the appropriate United States court

of appeals as provided by and in the manner prescribed in

chapter 158 of title 28, United States Code.

‘‘(d) LIMITATION ON APPLICABILITY OF ANTITRUST LAWS.—

‘‘(1) IN GENERAL.—The antitrust laws, as defined in the

first section of the Clayton Act (15 U.S.C. 12), do not apply

to discussions or agreements between a motor carrier providing

transportation of household goods and its agents (whether or

not an agent is also a carrier) related solely to—

‘‘(A) rates for the transportation of household goods

under the authority of the principal carrier;

‘‘(B) accessorial, terminal, storage, or other charges

for services incidental to the transportation of household

goods transported under the authority of the principal

carrier;

‘‘(C) allowances relating to transportation of household

goods under the authority of the principal carrier; and

‘‘(D) ownership of a motor carrier providing transportation of household goods by an agent or membership on

the board of directors of any such motor carrier by an

agent.

‘‘(2) BOARD REVIEW.—The Board, upon its own initiative

or request, shall review any activities undertaken under paragraph (1) and shall modify or terminate the activity if necessary

to protect the public interest.

‘‘(e) DEFINITIONS.—In this section, the following definitions

apply:

‘‘(1) HOUSEHOLD GOODS.—The term ‘household goods’ has

the meaning such term had under section 10102(11) of this

title, as in effect on the day before the effective date of this

section.

‘‘(2) TRANSPORTATION.—The term ‘transportation’ means

transportation that would be subject to the jurisdiction of the

Interstate Commerce Commission under subchapter II of chapter 105 of this title, as in effect on the day before such effective

date, if such subchapter were still in effect.

‘‘§ 13908. Registration and other reforms

‘‘(a) REGULATIONS REPLACING CERTAIN PROGRAMS.—The Secretary, in cooperation with the States, and after notice and opportunity for public comment, shall issue regulations to replace the

current Department of Transportation identification number system, the single State registration system under section 14504, the

registration system contained in this chapter, and the financial

responsibility information system under section 13906 with a single,

on-line, Federal system. The new system shall serve as a clearingVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00086 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 889

house and depository of information on and identification of all

foreign and domestic motor carriers, brokers, and freight forwarders, and others required to register with the Department as

well as information on safety fitness and compliance with required

levels of financial responsibility. In issuing the regulations, the

Secretary shall consider whether or not to integrate the requirements of section 13304 into the new system and may integrate

such requirements into the new system.

‘‘(b) FACTORS TO BE CONSIDERED.—In conducting the rulemaking under subsection (a), the Secretary shall, at a minimum,

consider the following factors:

‘‘(1) Funding for State enforcement of motor carrier safety

regulations.

‘‘(2) Whether the existing single State registration system

is duplicative and burdensome.

‘‘(3) The justification and need for collecting the statutory

fee for such system under section 14504(c)(2)(B)(iv).

‘‘(4) The public safety.

‘‘(5) The efficient delivery of transportation services.

‘‘(6) How, and under what conditions, to extend the registration system to motor private carriers and to carriers exempt

under sections 13502, 13503, and 13506.

‘‘(c) FEE SYSTEM.—The Secretary may establish, under section

9701 of title 31, a fee system for registration and filing evidence

of financial responsibility under the new system under subsection

(a). Fees collected under the fee system shall cover the costs of

operating and upgrading the registration system, including all

personnel costs associated with the system. Fees collected under

this subsection may be credited to the Department of Transportation

appropriations account for purposes for which such fees are collected, and shall be available for expenditure until expended.

‘‘(d) STATE REGISTRATION PROGRAMS.—If the Secretary determines that no State should require insurance filings or collect

fees for such filings (including filings and fees authorized under

section 14504), the Secretary may prevent any State or political

subdivision thereof, or any political authority of 2 or more States,

from imposing any insurance filing requirements or fees that are

for the same purposes as filings or fees the Secretary requires

under the new system under subsection (a). The Secretary may

not take any action pursuant to this subsection unless—

‘‘(1) fees that will be collected by the Secretary under

subsection (c) and distributed in each fiscal year to the States

will provide each State with at least as much revenue as

that State received in fiscal year 1995 under section 11506,

as in effect on the day before the effective date of this section;

and

‘‘(2) all States will receive from the distribution of such

fees a minimum apportionment.

‘‘(e) DEADLINE FOR CONCLUSION; MODIFICATIONS.—Not later

than 24 months after the effective date of this section, the

Secretary—

‘‘(1) shall conclude the rulemaking under this section;

‘‘(2) may implement such changes under this section as

the Secretary considers appropriate and in the public interest;

and

‘‘(3) shall transmit to Congress a report on any findings

of the rulemaking and the changes being implemented under

Reports.

109 STAT. 890 PUBLIC LAW 104–88—DEC. 29, 1995

this section, together with such recommendations for legislative

language necessary to conform this part to such changes.

‘‘CHAPTER 141—OPERATIONS OF CARRIERS

‘‘SUBCHAPTER I—GENERAL REQUIREMENTS

‘‘Sec.

‘‘14101. Providing transportation and service.

‘‘14102. Leased motor vehicles.

‘‘14103. Loading and unloading motor vehicles.

‘‘14104. Household goods carrier operations.

‘‘SUBCHAPTER II—REPORTS AND RECORDS

‘‘14121. Definitions.

‘‘14122. Records: form; inspection; preservation.

‘‘14123. Financial reporting.

‘‘SUBCHAPTER I—GENERAL REQUIREMENTS

‘‘§ 14101. Providing transportation and service

‘‘(a) ON REASONABLE REQUEST.—A carrier providing transportation or service subject to jurisdiction under chapter 135 shall

provide the transportation or service on reasonable request. In

addition, a motor carrier shall provide safe and adequate service,

equipment, and facilities.

‘‘(b) CONTRACTS WITH SHIPPERS.—

‘‘(1) IN GENERAL.—A carrier providing transportation or

service subject to jurisdiction under chapter 135 may enter

into a contract with a shipper, other than for the movement

of household goods described in section 13102(10)(A), to provide

specified services under specified rates and conditions. If the

shipper and carrier, in writing, expressly waive any or all

rights and remedies under this part for the transportation

covered by the contract, the transportation provided under the

contract shall not be subject to the waived rights and remedies

and may not be subsequently challenged on the ground that

it violates the waived rights and remedies. The parties may

not waive the provisions governing registration, insurance, or

safety fitness. ‘‘(2) REMEDY FOR BREACH OF CONTRACT.—The exclusive

remedy for any alleged breach of a contract entered into under

this subsection shall be an action in an appropriate State

court or United States district court, unless the parties otherwise agree.

‘‘§ 14102. Leased motor vehicles

‘‘(a) GENERAL AUTHORITY OF SECRETARY.—The Secretary may

require a motor carrier providing transportation subject to jurisdiction under subchapter I of chapter 135 that uses motor vehicles

not owned by it to transport property under an arrangement with

another party to—

‘‘(1) make the arrangement in writing signed by the parties

specifying its duration and the compensation to be paid by

the motor carrier;

‘‘(2) carry a copy of the arrangement in each motor vehicle

to which it applies during the period the arrangement is in

effect;

‘‘(3) inspect the motor vehicles and obtain liability and

cargo insurance on them; and

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 891

‘‘(4) have control of and be responsible for operating those

motor vehicles in compliance with requirements prescribed by

the Secretary on safety of operations and equipment, and with

other applicable law as if the motor vehicles were owned by

the motor carrier.

‘‘(b) RESPONSIBLE PARTY FOR LOADING AND UNLOADING.—The

Secretary shall require, by regulation, that any arrangement,

between a motor carrier of property providing transportation subject

to jurisdiction under subchapter I of chapter 135 and any other

person, under which such other person is to provide any portion

of such transportation by a motor vehicle not owned by the carrier

shall specify, in writing, who is responsible for loading and unloading the property onto and from the motor vehicle.

‘‘§ 14103. Loading and unloading motor vehicles

‘‘(a) SHIPPER RESPONSIBLE FOR ASSISTING.—Whenever a shipper

or receiver of property requires that any person who owns or operates a motor vehicle transporting property in interstate commerce

(whether or not such transportation is subject to jurisdiction under

subchapter I of chapter 135) be assisted in the loading or unloading

of such vehicle, the shipper or receiver shall be responsible for

providing such assistance or shall compensate the owner or operator

for all costs associated with securing and compensating the person

or persons providing such assistance.

‘‘(b) COERCION PROHIBITED.—It shall be unlawful to coerce or

attempt to coerce any person providing transportation of property

by motor vehicle for compensation in interstate commerce (whether

or not such transportation is subject to jurisdiction under subchapter I of chapter 135) to load or unload any part of such property

onto or from such vehicle or to employ or pay one or more persons

to load or unload any part of such property onto or from such

vehicle; except that this subsection shall not be construed as making

unlawful any activity which is not unlawful under the National

Labor Relations Act or the Act of March 23, 1932 (47 Stat. 70;

29 U.S.C. 101 et seq.), commonly known as the Norris-LaGuardia

Act.

‘‘§ 14104. Household goods carrier operations

‘‘(a) GENERAL REGULATORY AUTHORITY.—

‘‘(1) PAPERWORK MINIMIZATION.—The Secretary may issue

regulations, including regulations protecting individual shippers, in order to carry out this part with respect to the transportation of household goods by motor carriers subject to jurisdiction under subchapter I of chapter 135. The regulations and

paperwork required of motor carriers providing transportation

of household goods shall be minimized to the maximum extent

feasible consistent with the protection of individual shippers.

‘‘(2) PERFORMANCE STANDARDS.— ‘‘(A) IN GENERAL.—Regulations of the Secretary protecting individual shippers shall include, where appropriate,

reasonable performance standards for the transportation

of household goods subject to jurisdiction under subchapter

I of chapter 135.

‘‘(B) FACTORS TO CONSIDER.—In establishing performance standards under this paragraph, the Secretary shall

take into account at least the following—

Regulations.

109 STAT. 892 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(i) the level of performance that can be achieved

by a well-managed motor carrier transporting household goods;

‘‘(ii) the degree of harm to individual shippers

which could result from a violation of the regulation;

‘‘(iii) the need to set the level of performance at

a level sufficient to deter abuses which result in harm

to consumers and violations of regulations;

‘‘(iv) service requirements of the carriers;

‘‘(v) the cost of compliance in relation to the

consumer benefits to be achieved from such compliance;

and

‘‘(vi) the need to set the level of performance at

a level designed to encourage carriers to offer service

responsive to shipper needs.

‘‘(3) LIMITATIONS ON STATUTORY CONSTRUCTION.—Nothing

in this section shall be construed to limit the Secretary’s authority to require reports from motor carriers providing transportation of household goods or to require such carriers to provide

specified information to consumers concerning their past

performance.

‘‘(b) ESTIMATES.—

‘‘(1) AUTHORITY TO PROVIDE WITHOUT COMPENSATION.—

Every motor carrier providing transportation of household goods

subject to jurisdiction under subchapter I of chapter 135, upon

request of a prospective shipper, may provide the shipper with

an estimate of charges for transportation of household goods

and for the proposed services. The Secretary shall not prohibit

any such carrier from charging a prospective shipper for providing a written, binding estimate for the transportation and proposed services.

‘‘(2) APPLICABILITY OF ANTITRUST LAWS.—Any charge for

an estimate of charges provided by a motor carrier to a shipper

for transportation of household goods subject to jurisdiction

under subchapter I of chapter 135 shall be subject to the

antitrust laws, as defined in the first section of the Clayton

Act (15 U.S.C. 12).

‘‘(c) FLEXIBILITY IN WEIGHING SHIPMENTS.—The Secretary shall

issue regulations that provide motor carriers providing transportation of household goods subject to jurisdiction under subchapter

I of chapter 135 with the maximum possible flexibility in weighing

shipments, consistent with assurance to the shipper of accurate

weighing practices. The Secretary shall not prohibit such carriers

from backweighing shipments or from basing their charges on the

reweigh weights if the shipper observes both the tare and gross

weighings (or, prior to such weighings, waives in writing the opportunity to observe such weighings) and such weighings are performed

on the same scale.

‘‘SUBCHAPTER II—REPORTS AND RECORDS

‘‘§ 14121. Definitions

‘‘In this subchapter, the following definitions apply:

‘‘(1) CARRIER AND BROKER.—The terms ‘carrier’ and ‘broker’

include a receiver or trustee of a carrier and broker,

respectively.

Regulations.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 893

‘‘(2) ASSOCIATION.—The term ‘association’ means an

organization maintained by or in the interest of a group of

carriers or brokers providing transportation or service subject

to jurisdiction under chapter 135 that performs a service, or

engages in activities, related to transportation under this part.

‘‘§ 14122. Records: form; inspection; preservation

‘‘(a) FORM OF RECORDS.—The Secretary or the Board, as

applicable, may prescribe the form of records required to be prepared or compiled under this subchapter by carriers and brokers,

including records related to movement of traffic and receipts and

expenditures of money.

‘‘(b) RIGHT OF INSPECTION.—The Secretary or Board, or an

employee designated by the Secretary or Board, may on demand

and display of proper credentials—

‘‘(1) inspect and examine the lands, buildings, and equipment of a carrier or broker; and

‘‘(2) inspect and copy any record of—

‘‘(A) a carrier, broker, or association; and

‘‘(B) a person controlling, controlled by, or under common control with a carrier if the Secretary or Board, as

applicable, considers inspection relevant to that person’s

relation to, or transaction with, that carrier.

‘‘(c) PERIOD FOR PRESERVATION OF RECORDS.—The Secretary

or Board, as applicable, may prescribe the time period during which

operating, accounting, and financial records must be preserved by

carriers and brokers.

‘‘§ 14123. Financial reporting

‘‘(a) REPORTS.—

‘‘(1) ANNUAL REPORTS.—The Secretary shall require Class

I and Class II motor carriers to file with the Secretary annual

financial and safety reports, the form and substance of which

shall be prescribed by the Secretary; except that, at a minimum,

such reports shall include balance sheets and income statements.

‘‘(2) OTHER REPORTS.—The Secretary may require motor

carriers, freight forwarders, brokers, lessors, and associations,

or classes of them as the Secretary may prescribe, to file quarterly, periodic, or special reports with the Secretary and to

respond to surveys concerning their operations.

‘‘(b) MATTERS TO BE COVERED.—In determining the matters

to be covered by any reports to be filed under subsection (a),

the Secretary shall consider—

‘‘(1) safety needs;

‘‘(2) the need to preserve confidential business information

and trade secrets and prevent competitive harm;

‘‘(3) private sector, academic, and public use of information

in the reports; and

‘‘(4) the public interest.

‘‘(c) EXEMPTIONS.—

‘‘(1) FROM FILING.—The Secretary may exempt upon good

cause shown any party from the financial reporting requirements of subsection (a). Any request for such exemption must

demonstrate, at a minimum, that an exemption is required

to avoid competitive harm and preserve confidential business

information that is not otherwise publicly available.

109 STAT. 894 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) FROM PUBLIC RELEASE.— ‘‘(A) IN GENERAL.—The Secretary shall allow, upon request, a filer of a report under subsection (a) that is

not a publicly held corporation or that is not subject to

financial reporting requirements of the Securities and

Exchange Commission, an exemption from the public

release of such report.

‘‘(B) PROCEDURE.—After a request under subparagraph

(A) and notice and opportunity for comment but no event

later than 90 days after the date of such request, the

Secretary shall approve such request if the Secretary finds

that the exemption requested is necessary to avoid competitive harm and to avoid the disclosure of information that

qualifies as a trade secret or privileged or confidential

information under section 552(b)(4) of title 5.

‘‘(C) USE OF DATA FOR INTERNAL DOT PURPOSES.—If

an exemption is granted under this paragraph, nothing

shall prevent the Secretary from using data from reports

filed under this subsection for internal purposes of the

Department of Transportation or including such data in

aggregate industry statistics released for publication if such

inclusion would not render the filer’s data readily identifiable.

‘‘(D) PENDING REQUESTS.—The Secretary shall not

release publicly the report of a carrier making a request

under subparagraph (A) while such request is pending.

‘‘(3) PERIOD OF EXEMPTIONS.—Exemptions granted under

this subsection shall be for 3-year periods.

‘‘(d) STREAMLINING AND SIMPLIFICATION.—The Secretary shall

streamline and simplify, to the maximum extent practicable, any

reporting requirements the Secretary imposes under this section.

‘‘CHAPTER 143—FINANCE

‘‘Sec.

‘‘14301. Security interests in certain motor vehicles.

‘‘14302. Pooling and division of transportation or earnings.

‘‘14303. Consolidation, merger, and acquisition of control of motor carriers of passengers.

‘‘§ 14301. Security interests in certain motor vehicles

‘‘(a) DEFINITIONS.—In this section, the following definitions

apply:

‘‘(1) MOTOR VEHICLE.—The term ‘motor vehicle’ means a

truck of rated capacity (gross vehicle weight) of at least 10,000

pounds, a highway tractor of rated capacity (gross combination

weight) of at least 10,000 pounds, a property-carrying trailer

or semitrailer with at least one load-carrying axle of at least

10,000 pounds, or a motor bus with a seating capacity of at

least 10 individuals.

‘‘(2) LIEN CREDITOR.—The term ‘lien creditor’ means a creditor having a lien on a motor vehicle and includes an assignee

for benefit of creditors from the date of assignment, a trustee

in a case under title 11 from the date of filing of the petition

in that case, and a receiver in equity from the date of appointment of the receiver.

‘‘(3) SECURITY INTEREST.—The term ‘security interest’

means an interest (including an interest established by a condiVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00092 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 895

tional sales contract, mortgage, equipment trust, or other lien

or title retention contract, or lease) in a motor vehicle when

the interest secures payment or performance of an obligation. ‘‘(4) PERFECTION.—The term ‘perfection’, as related to a

security interest, means taking action (including public filing,

recording, notation on a certificate of title, and possession of

collateral by the secured party), or the existence of facts,

required under law to make a security interest enforceable

against general creditors and subsequent lien creditors of a

debtor, but does not include compliance with requirements

related only to the establishment of a valid security interest

between the debtor and the secured party.

‘‘(b) REQUIREMENTS FOR PERFECTION OF SECURITY INTEREST.—

A security interest in a motor vehicle owned by, or in the possession

and use of, a carrier registered under section 13902 of this title

and owing payment or performance of an obligation secured by

that security interest is perfected in all jurisdictions against all

general, and subsequent lien, creditors of, and all persons taking

a motor vehicle by sale (or taking or retaining a security interest

in a motor vehicle) from, that carrier when—

‘‘(1) a certificate of title is issued for a motor vehicle under

a law of a jurisdiction that requires or permits indication,

on a certificate or title, of a security interest in the motor

vehicle if the security interest is indicated on the certificate;

‘‘(2) a certificate of title has not been issued and the law

of the State where the principal place of business of that

carrier is located requires or permits public filing or recording

of, or in relation to, that security interest if there has been

such a public filing or recording; and

‘‘(3) a certificate of title has not been issued and the security

interest cannot be perfected under paragraph (2) of this subsection, if the security interest has been perfected under the

law (including the conflict of laws rules) of the State where

the principal place of business of that carrier is located.

‘‘§ 14302. Pooling and division of transportation or earnings

‘‘(a) APPROVAL REQUIRED.—A carrier providing transportation

subject to jurisdiction under subchapter I of chapter 135 may not

agree or combine with another such carrier to pool or divide traffic

or services or any part of their earnings without the approval

of the Board under this section.

‘‘(b) STANDARDS FOR APPROVAL.—The Board may approve and

authorize an agreement or combination between or among motor

carriers of passengers, or between a motor carrier of passengers

and a rail carrier of passengers if the carriers involved assent

to the pooling or division and the Board finds that a pooling or

division of traffic, services, or earnings—

‘‘(1) will be in the interest of better service to the public

or of economy of operation; and

‘‘(2) will not unreasonably restrain competition.

‘‘(c) PROCEDURE.—

‘‘(1) APPLICATION.—Any motor carrier of property may

apply to the Board for approval of an agreement or combination

with another such carrier to pool or divide traffic or any services

or any part of their earnings by filing such agreement or

combination with the Board not less than 50 days before its

effective date.

109 STAT. 896 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) DETERMINATION OF IMPORTANCE AND RESTRAINT ON

COMPETITION.—Prior to the effective date of the agreement

or combination, the Board shall determine whether the agreement or combination is of major transportation importance

and whether there is substantial likelihood that the agreement

or combination will unduly restrain competition. If the Board

determines that neither of these 2 factors exists, it shall, prior

to such effective date and without a hearing, approve and

authorize the agreement or combination, under such rules and

regulations as the Board may issue, and for such consideration

between such carriers and upon such terms and conditions

as shall be found by the Board to be just and reasonable.

‘‘(3) HEARING.—If the Board determines either that the

agreement or combination is of major transportation importance

or that there is substantial likelihood that the agreement or

combination will unduly restrain competition, the Board shall

hold a hearing concerning whether the agreement or combination will be in the interest of better service to the public

or of economy in operation and whether it will unduly restrain

competition and shall suspend operation of such agreement

or combination pending such hearing and final decision thereon.

After such hearing, the Board shall indicate to what extent

it finds that the agreement or combination will be in the

interest of better service to the public or of economy in operation

and will not unduly restrain competition and if assented to

by all the carriers involved, shall to that extent, approve and

authorize the agreement or combination, under such rules and

regulations as the Board may issue, and for such consideration

between such carriers and upon such terms and conditions

as shall be found by the Board to be just and reasonable.

‘‘(4) SPECIAL RULES FOR HOUSEHOLD GOODS CARRIERS.—

In the case of an application for Board approval of an agreement

or combination between a motor carrier providing transportation of household goods and its agents to pool or divide

traffic or services or any part of their earnings, such agreement

or combination shall be presumed to be in the interest of

better service to the public and of economy in operation and

not to restrain competition unduly if the practices proposed

to be carried out under such agreement or combination are

the same as or similar to practices carried out under agreements and combinations between motor carriers providing

transportation of household goods to pool or divide traffic or

service of any part of their earnings approved by the Interstate

Commerce Commission before the effective date of this section.

‘‘(5) STREAMLINING AND SIMPLIFYING.—The Board shall

streamline, simplify, and expedite, to the maximum extent

practicable, the process (including any paperwork) for submission and approval of applications under this section for agreements and combinations between motor carriers providing

transportation of household goods and their agents.

‘‘(d) CONDITIONS.—The Board may impose conditions governing

the pooling or division and may approve and authorize payment

of a reasonable consideration between the carriers.

‘‘(e) INITIATION OF PROCEEDING.—The Board may begin a

proceeding under this section on its own initiative or on application.

‘‘(f) EFFECT OF APPROVAL.—A carrier may participate in an

arrangement approved by or exempted by the Board under this

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 897

section without the approval of any other Federal, State, or municipal body. A carrier participating in an approved or exempted

arrangement is exempt from the antitrust laws and from all other

law, including State and municipal law, as necessary to let that

person carry out the arrangement.

‘‘(g) CONTINUATION OF EXISTING AGREEMENTS.—Any agreements in operation under the provisions of this title on the effective

date of this section that are succeeded by this section shall remain

in effect until further order of the Board.

‘‘(h) DEFINITIONS.—In this section, the following definitions

apply:

‘‘(1) HOUSEHOLD GOODS.—The term ‘household goods’ has

the meaning such term had under section 10102(11) of this

title, as in effect on the day before the effective date of this

section.

‘‘(2) TRANSPORTATION.—The term ‘transportation’ means

transportation that would be subject to the jurisdiction of the

Interstate Commerce Commission under subchapter II of chapter 105 of this title, as in effect on the day before such effective

date, if such subchapter were still in effect.

‘‘§ 14303. Consolidation, merger, and acquisition of control

of motor carriers of passengers

‘‘(a) APPROVAL REQUIRED.—The following transactions involving

motor carriers of passengers subject to jurisdiction under subchapter

I of chapter 135 may be carried out only with the approval of

the Board:

‘‘(1) Consolidation or merger of the properties or franchises

of at least 2 carriers into one operation for the ownership,

management, and operation of the previously separately owned

properties.

‘‘(2) A purchase, lease, or contract to operate property of

another carrier by any number of carriers.

‘‘(3) Acquisition of control of a carrier by any number of

carriers.

‘‘(4) Acquisition of control of at least 2 carriers by a person

that is not a carrier.

‘‘(5) Acquisition of control of a carrier by a person that

is not a carrier but that controls any number of carriers.

‘‘(b) STANDARD FOR APPROVAL.—The Board shall approve and

authorize a transaction under this section when it finds the transaction is consistent with the public interest. The Board shall consider at least the following:

‘‘(1) The effect of the proposed transaction on the adequacy

of transportation to the public.

‘‘(2) The total fixed charges that result from the proposed

transaction.

‘‘(3) The interest of carrier employees affected by the proposed transaction.

The Board may impose conditions governing the transaction.

‘‘(c) DETERMINATION OF COMPLETENESS OF APPLICATION.—

Within 30 days after the date on which an application is filed

under this section, the Board shall either publish a notice of the

application in the Federal Register or reject the application if it

is incomplete.

Federal Register,

publication.

109 STAT. 898 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(d) COMMENTS.—Written comments about an application may

be filed with the Board within 45 days after the date on which

notice of the application is published under subsection (c).

‘‘(e) DEADLINES.—The Board shall conclude evidentiary proceedings by the 240th day after the date on which notice of the application is published under subsection (c). The Board shall issue a

final decision by the 180th day after the conclusion of the evidentiary proceedings. The Board may extend a time period under

this subsection; except that the total of all such extensions with

respect to any application shall not exceed 90 days.

‘‘(f) EFFECT OF APPROVAL.—A carrier or corporation participating in or resulting from a transaction approved by the Board under

this section, or exempted by the Board from the application of

this section pursuant to section 13541, may carry out the transaction, own and operate property, and exercise control or franchises

acquired through the transaction without the approval of a State

authority. A carrier, corporation, or person participating in the

approved or exempted transaction is exempt from the antitrust

laws and from all other law, including State and municipal law,

as necessary to let that person carry out the transaction, hold,

maintain, and operate property, and exercise control or franchises

acquired through the transaction.

‘‘(g) LIMITATION ON APPLICABILITY.—This section shall not apply

to transactions involving carriers whose aggregate gross operating

revenues were not more than $2,000,000 during a period of 12

consecutive months ending not more than 6 months before the

date of the agreement of the parties.

‘‘(h) APPLICABILITY OF CERTAIN PROVISIONS.—When the Board

approves and authorizes a transaction under this section in which

a person not a carrier providing transportation subject to jurisdiction under subchapter I of chapter 135 acquires control of at least

1 carrier subject to such jurisdiction, the person is subject, as

a carrier, to the following provisions of this title that apply to

the carrier being acquired by that person, to the extent specified

by the Board: sections 504(f), 14121–14123, 14901(a), and 14907.

‘‘(i) INTERIM APPROVAL.—Pending determination of an application filed under this section, the Board may approve, for a period

of not more than 180 days, the operation of the properties sought

to be acquired by the person proposing in the application to acquire

those properties, when it appears that failure to do so may result

in destruction of or injury to those properties or substantially interfere with their future usefulness in providing adequate and continuous service to the public. Transportation provided by a motor carrier

under a grant of approval under this subsection is subject to this

part.

‘‘(j) SUPPLEMENTAL ORDERS.—When cause exists, the Board

may issue appropriate orders supplemental to an order made in

a proceeding under this section.

‘‘CHAPTER 145—FEDERAL-STATE RELATIONS

‘‘Sec.

‘‘14501. Federal authority over intrastate transportation.

‘‘14502. Tax discrimination against motor carrier transportation property.

‘‘14503. Withholding State and local income tax by certain carriers.

‘‘14504. Registration of motor carriers by a State.

‘‘14505. State tax.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 899

‘‘§ 14501. Federal authority over intrastate transportation

‘‘(a) MOTOR CARRIERS OF PASSENGERS.—No State or political

subdivision thereof and no interstate agency or other political

agency of 2 or more States shall enact or enforce any law, rule,

regulation, standard, or other provision having the force and effect

of law relating to scheduling of interstate or intrastate transportation (including discontinuance or reduction in the level of service)

provided by motor carrier of passengers subject to jurisdiction under

subchapter I of chapter 135 of this title on an interstate route

or relating to the implementation of any change in the rates for

such transportation or for any charter transportation except to

the extent that notice, not in excess of 30 days, of changes in

schedules may be required. This subsection shall not apply to intrastate commuter bus operations.

‘‘(b) FREIGHT FORWARDERS AND BROKERS.—

‘‘(1) GENERAL RULE.—Subject to paragraph (2) of this subsection, no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States

shall enact or enforce any law, rule, regulation, standard, or

other provision having the force and effect of law relating

to intrastate rates, intrastate routes, or intrastate services of

any freight forwarder or broker.

‘‘(2) CONTINUATION OF HAWAII’S AUTHORITY.—Nothing in

this subsection and the amendments made by the Surface

Freight Forwarder Deregulation Act of 1986 shall be construed

to affect the authority of the State of Hawaii to continue to

regulate a motor carrier operating within the State of Hawaii.

‘‘(c) MOTOR CARRIERS OF PROPERTY.—

‘‘(1) GENERAL RULE.—Except as provided in paragraphs

(2) and (3), a State, political subdivision of a State, or political

authority of 2 or more States may not enact or enforce a

law, regulation, or other provision having the force and effect

of law related to a price, route, or service of any motor carrier

(other than a carrier affiliated with a direct air carrier covered

by section 41713(b)(4)) or any motor private carrier, broker,

or freight forwarder with respect to the transportation of property.

‘‘(2) MATTERS NOT COVERED.—Paragraph (1)—

‘‘(A) shall not restrict the safety regulatory authority

of a State with respect to motor vehicles, the authority

of a State to impose highway route controls or limitations

based on the size or weight of the motor vehicle or the

hazardous nature of the cargo, or the authority of a State

to regulate motor carriers with regard to minimum

amounts of financial responsibility relating to insurance

requirements and self-insurance authorization;

‘‘(B) does not apply to the transportation of household

goods; and

‘‘(C) does not apply to the authority of a State or

a political subdivision of a State to enact or enforce a

law, regulation, or other provision relating to the price

of for-hire motor vehicle transportation by a tow truck,

if such transportation is performed without the prior consent or authorization of the owner or operator of the motor

vehicle.

‘‘(3) STATE STANDARD TRANSPORTATION PRACTICES.—

109 STAT. 900 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(A) CONTINUATION.—Paragraph (1) shall not affect any

authority of a State, political subdivision of a State, or

political authority of 2 or more States to enact or enforce

a law, regulation, or other provision, with respect to the

intrastate transportation of property by motor carriers,

related to—

‘‘(i) uniform cargo liability rules,

‘‘(ii) uniform bills of lading or receipts for property

being transported,

‘‘(iii) uniform cargo credit rules,

‘‘(iv) antitrust immunity for joint line rates or

routes, classifications, mileage guides, and pooling, or

‘‘(v) antitrust immunity for agent-van line operations (as set forth in section 13907),

if such law, regulation, or provision meets the requirements

of subparagraph (B).

‘‘(B) REQUIREMENTS.—A law, regulation, or provision

of a State, political subdivision, or political authority meets

the requirements of this subparagraph if—

‘‘(i) the law, regulation, or provision covers the

same subject matter as, and compliance with such

law, regulation, or provision is no more burdensome

than compliance with, a provision of this part or a

regulation issued by the Secretary or the Board under

this part; and

‘‘(ii) the law, regulation, or provision only applies

to a carrier upon request of such carrier.

‘‘(C) ELECTION.—Notwithstanding any other provision

of law, a carrier affiliated with a direct air carrier through

common controlling ownership may elect to be subject to

a law, regulation, or provision of a State, political subdivision, or political authority under this paragraph.

‘‘(4) NONAPPLICABILITY TO HAWAII.—This subsection shall

not apply with respect to the State of Hawaii.

‘‘§ 14502. Tax discrimination against motor carrier transportation property

‘‘(a) DEFINITIONS.—In this section, the following definitions

apply:

‘‘(1) ASSESSMENT.—The term ‘assessment’ means valuation

for a property tax levied by a taxing district.

‘‘(2) ASSESSMENT JURISDICTION.—The term ‘assessment

jurisdiction’ means a geographical area in a State used in

determining the assessed value of property for ad valorem

taxation.

‘‘(3) MOTOR CARRIER TRANSPORTATION PROPERTY.—The term

‘motor carrier transportation property’ means property, as

defined by the Secretary, owned or used by a motor carrier

providing transportation in interstate commerce whether or

not such transportation is subject to jurisdiction under subchapter I of chapter 135.

‘‘(4) COMMERCIAL AND INDUSTRIAL PROPERTY.—The term

‘commercial and industrial property’ means property, other than

transportation property and land used primarily for agricultural

purposes or timber growing, devoted to a commercial or industrial use, and subject to a property tax levy.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 901

‘‘(b) ACTS BURDENING INTERSTATE COMMERCE.—The following

acts unreasonably burden and discriminate against interstate commerce and a State, subdivision of a State, or authority acting

for a State or subdivision of a State may not do any of them:

‘‘(1) EXCESSIVE VALUATION OF PROPERTY.—Assess motor carrier transportation property at a value that has a higher ratio

to the true market value of the motor carrier transportation

property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction

has to the true market value of the other commercial and

industrial property.

‘‘(2) TAX ON ASSESSMENT.—Levy or collect a tax on an

assessment that may not be made under paragraph (1).

‘‘(3) AD VALOREM TAX.—Levy or collect an ad valorem property tax on motor carrier transportation property at a tax

rate that exceeds the tax rate applicable to commercial and

industrial property in the same assessment jurisdiction.

‘‘(c) JURISDICTION.—

‘‘(1) IN GENERAL.—Notwithstanding section 1341 of title

28 and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has

jurisdiction, concurrent with other jurisdiction of courts of the

United States and the States, to prevent a violation of subsection (b) of this section.

‘‘(2) LIMITATION IN RELIEF.—Relief may be granted under

this subsection only if the ratio of assessed value to true market

value of motor carrier transportation property exceeds, by at

least 5 percent, the ratio of assessed value to true market

value of other commercial and industrial property in the same

assessment jurisdiction.

‘‘(3) BURDEN OF PROOF.—The burden of proof in determining assessed value and true market value is governed by State

law.

‘‘(4) VIOLATION.—If the ratio of the assessed value of other

commercial and industrial property in the assessment jurisdiction to the true market value of all other commercial and

industrial property cannot be determined to the satisfaction

of the district court through the random-sampling method

known as a sales assessment ratio study (to be carried out

under statistical principles applicable to such a study), the

court shall find, as a violation of this section—

‘‘(A) an assessment of the motor carrier transportation

property at a value that has a higher ratio to the true

market value of the motor carrier transportation property

than the assessment value of all other property subject

to a property tax levy in the assessment jurisdiction has

to the true market value of all such other property; and

‘‘(B) the collection of ad valorem property tax on the

motor carrier transportation property at a tax rate that

exceeds the tax ratio rate applicable to taxable property

in the taxing district.

‘‘§ 14503. Withholding State and local income tax by certain

carriers

‘‘(a) SINGLE STATE TAX WITHHOLDING.—

‘‘(1) IN GENERAL.—No part of the compensation paid by

a motor carrier providing transportation subject to jurisdiction

109 STAT. 902 PUBLIC LAW 104–88—DEC. 29, 1995

under subchapter I of chapter 135 or by a motor private carrier

to an employee who performs regularly assigned duties in 2

or more States as such an employee with respect to a motor

vehicle shall be subject to the income tax laws of any State

or subdivision of that State, other than the State or subdivision

thereof of the employee’s residence.

‘‘(2) EMPLOYEE DEFINED.—In this subsection, the term

‘employee’ has the meaning given such term in section 31132.

‘‘(b) SPECIAL RULES.—

‘‘(1) CALCULATION OF EARNINGS.—In this subsection, an

employee is deemed to have earned more than 50 percent

of pay in a State or subdivision of that State in which the

time worked by the employee in the State or subdivision is

more than 50 percent of the total time worked by the employee

while employed during the calendar year.

‘‘(2) WATER CARRIERS.—A water carrier providing transportation subject to jurisdiction under subchapter II of chapter

135 shall file income tax information returns and other reports

only with—

‘‘(A) the State and subdivision of residence of the

employee (as shown on the employment records of the

carrier); and

‘‘(B) the State and subdivision in which the employee

earned more than 50 percent of the pay received by the

employee from the carrier during the preceding calendar

year.

‘‘(3) APPLICABILITY TO SAILORS.—This subsection applies

to pay of a master, officer, or sailor who is a member of

the crew on a vessel engaged in foreign, coastwise, intercoastal,

or noncontiguous trade or in the fisheries of the United States.

‘‘(c) FILING OF INFORMATION.—A motor and motor private carrier withholding pay from an employee under subsection (a) of

this section shall file income tax information returns and other

reports only with the State and subdivision of residence of the

employee.

‘‘§ 14504. Registration of motor carriers by a State

‘‘(a) DEFINITIONS.—In this section, the terms ‘standards’ and

‘amendments to standards’ mean the specification of forms and

procedures required by regulations of the Secretary to prove the

lawfulness of transportation by motor carrier referred to in section

13501.

‘‘(b) GENERAL RULE.—The requirement of a State that a motor

carrier, providing transportation subject to jurisdiction under subchapter I of chapter 135 and providing transportation in that State,

must register with the State is not an unreasonable burden on

transportation referred to in section 13501 when the State registration is completed under standards of the Secretary under subsection

(c). When a State registration requirement imposes obligations in

excess of the standards of the Secretary, the part in excess is

an unreasonable burden.

‘‘(c) SINGLE STATE REGISTRATION SYSTEM.—

‘‘(1) IN GENERAL.—The Secretary shall maintain standards

for implementing a system under which—

‘‘(A) a motor carrier is required to register annually

with only one State by providing evidence of its Federal

registration under chapter 139;

Reports.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 903

‘‘(B) the State of registration shall fully comply with

standards prescribed under this section; and

‘‘(C) such single State registration shall be deemed

to satisfy the registration requirements of all other States.

‘‘(2) SPECIFIC REQUIREMENTS.—

‘‘(A) EVIDENCE OF FEDERAL REGISTRATION; PROOF OF

INSURANCE; PAYMENT OF FEES.—Under the standards of

the Secretary implementing the single State registration

system described in paragraph (1) of this subsection, only

a State acting in its capacity as registration State under

such single State system may require a motor carrier registered by the Secretary under this part—

‘‘(i) to file and maintain evidence of such Federal

registration;

‘‘(ii) to file satisfactory proof of required insurance

or qualification as a self-insurer;

‘‘(iii) to pay directly to such State fee amounts

in accordance with the fee system established under

subparagraph (B)(iv) of this paragraph, subject to

allocation of fee revenues among all States in which

the carrier operates and which participate in the single

State registration system; and

‘‘(iv) to file the name of a local agent for service

of process.

‘‘(B) RECEIPTS; FEE SYSTEM.—The standards of the Secretary—

‘‘(i) shall require that the registration State issue

a receipt, in a form prescribed under the standards,

reflecting that the carrier has filed proof of insurance

as provided under subparagraph (A)(ii) of this paragraph and has paid fee amounts in accordance with

the fee system established under clause (iv) of this

subparagraph;

‘‘(ii) shall require that copies of the receipt issued

under clause (i) of this subparagraph be kept in each

of the carrier’s commercial motor vehicles;

‘‘(iii) shall not require decals, stamps, cab cards,

or any other means of registering or identifying specific

vehicles operated by the carrier;

‘‘(iv) shall establish a fee system for the filing

of proof of insurance as provided under subparagraph

(A)(ii) of this paragraph that—

‘‘(I) is based on the number of commercial

motor vehicles the carrier operates in a State and

on the number of States in which the carrier operates;

‘‘(II) minimizes the costs of complying with

the registration system; and

‘‘(III) results in a fee for each participating

State that is equal to the fee, not to exceed $10

per vehicle, that such State collected or charged

as of November 15, 1991; and

‘‘(v) shall not authorize the charging or collection

of any fee for filing and maintaining evidence of Federal registration under subparagraph (A)(i) of this

paragraph.

109 STAT. 904 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(C) PROHIBITED FEES.—The charging or collection of

any fee under this section that is not in accordance with

the fee system established under subparagraph (B)(iv) of

this paragraph shall be deemed to be a burden on interstate

commerce.

‘‘(D) LIMITATION ON PARTICIPATION BY STATES.—Only

a State which, as of January 1, 1991, charged or collected

a fee for a vehicle identification stamp or number under

part 1023 of title 49, Code of Federal Regulations, shall

be eligible to participate as a registration State under

this subsection or to receive any fee revenue under this

subsection.

‘‘§ 14505. State tax

‘‘A State or political subdivision thereof may not collect or

levy a tax, fee, head charge, or other charge on—

‘‘(1) a passenger traveling in interstate commerce by motor

carrier;

‘‘(2) the transportation of a passenger traveling in interstate

commerce by motor carrier;

‘‘(3) the sale of passenger transportation in interstate commerce by motor carrier; or

‘‘(4) the gross receipts derived from such transportation.

‘‘CHAPTER 147—ENFORCEMENT;

INVESTIGATIONS; RIGHTS; REMEDIES

‘‘Sec.

‘‘14701. General authority.

‘‘14702. Enforcement by the regulatory authority.

‘‘14703. Enforcement by the Attorney General.

‘‘14704. Rights and remedies of persons injured by carriers or brokers.

‘‘14705. Limitation on actions by and against carriers.

‘‘14706. Liability of carriers under receipts and bills of lading.

‘‘14707. Private enforcement of registration requirement.

‘‘14708. Dispute settlement program for household goods carriers.

‘‘14709. Tariff reconciliation rules for motor carriers of property.

‘‘§ 14701. General authority

‘‘(a) INVESTIGATIONS.—The Secretary or the Board, as

applicable, may begin an investigation under this part on the Secretary’s or the Board’s own initiative or on complaint. If the Secretary or Board, as applicable, finds that a carrier or broker is

violating this part, the Secretary or Board, as applicable, shall

take appropriate action to compel compliance with this part. If

the Secretary finds that a foreign motor carrier or foreign motor

private carrier is violating chapter 139, the Secretary shall take

appropriate action to compel compliance with that chapter. The

Secretary or Board, as applicable, may take action under this subsection only after giving the carrier or broker notice of the investigation and an opportunity for a proceeding. ‘‘(b) COMPLAINTS.—A person, including a governmental authority, may file with the Secretary or Board, as applicable, a complaint

about a violation of this part by a carrier providing, or broker

for, transportation or service subject to jurisdiction under this part

or a foreign motor carrier or foreign motor private carrier providing

transportation registered under section 13902 of this title. The

complaint must state the facts that are the subject of the violation.

The Secretary or Board, as applicable, may dismiss a complaint

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 905

that it determines does not state reasonable grounds for investigation and action.

‘‘(c) DEADLINE.—A formal investigative proceeding begun by the Secretary or Board under subsection (a) of this section is dismissed automatically unless it is concluded with administrative

finality by the end of the 3d year after the date on which it

was begun.

‘‘§ 14702. Enforcement by the regulatory authority

‘‘(a) IN GENERAL.—The Secretary or the Board, as applicable,

may bring a civil action—

‘‘(1) to enforce section 14103 of this title; or

‘‘(2) to enforce this part, or a regulation or order of the

Secretary or Board, as applicable, when violated by a carrier

or broker providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 of this title

or by a foreign motor carrier or foreign motor private carrier

providing transportation registered under section 13902 of this

title.

‘‘(b) VENUE.—In a civil action under subsection (a)(2) of this

section—

‘‘(1) trial is in the judicial district in which the carrier,

foreign motor carrier, foreign motor private carrier, or broker

operates;

‘‘(2) process may be served without regard to the territorial

limits of the district or of the State in which the action is

instituted; and

‘‘(3) a person participating with a carrier or broker in

a violation may be joined in the civil action without regard

to the residence of the person.

‘‘(c) STANDING.—The Board, through its own attorneys, may

bring or participate in any civil action involving motor carrier

undercharges.

‘‘§ 14703. Enforcement by the Attorney General

‘‘The Attorney General may, and on request of either the Secretary or the Board shall, bring court proceedings—

‘‘(1) to enforce this part or a regulation or order of the

Secretary or Board or terms of registration under this part;

and

‘‘(2) to prosecute a person violating this part or a regulation

or order of the Secretary or Board or term of registration

under this part.

‘‘§ 14704. Rights and remedies of persons injured by carriers

or brokers

‘‘(a) IN GENERAL.—

‘‘(1) ENFORCEMENT OF ORDER.—A person injured because

a carrier or broker providing transportation or service subject

to jurisdiction under chapter 135 does not obey an order of

the Secretary or the Board, as applicable, under this part,

except an order for the payment of money, may bring a civil

action to enforce that order under this subsection. A person

may bring a civil action for injunctive relief for violations of

sections 14102 and 14103.

‘‘(2) DAMAGES FOR VIOLATIONS.—A carrier or broker providing transportation or service subject to jurisdiction under chapVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00103 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
109 STAT. 906 PUBLIC LAW 104–88—DEC. 29, 1995

ter 135 is liable for damages sustained by a person as a result

of an act or omission of that carrier or broker in violation

of this part.

‘‘(b) LIABILITY AND DAMAGES FOR EXCEEDING TARIFF RATE.—

A carrier providing transportation or service subject to jurisdiction

under chapter 135 is liable to a person for amounts charged that

exceed the applicable rate for transportation or service contained

in a tariff in effect under section 13702.

‘‘(c) ELECTION.—

‘‘(1) COMPLAINT TO DOT OR BOARD; CIVIL ACTION.—A person

may file a complaint with the Board or the Secretary, as

applicable, under section 14701(b) or bring a civil action under

subsection (b) to enforce liability against a carrier or broker

providing transportation or service subject to jurisdiction under

chapter 135.

‘‘(2) ORDER OF DOT OR BOARD.—

‘‘(A) IN GENERAL.—When the Board or Secretary, as

applicable, makes an award under subsection (b) of this

section, the Board or Secretary, as applicable, shall order

the carrier to pay the amount awarded by a specific date.

The Board or Secretary, as applicable, may order a carrier

or broker providing transportation or service subject to

jurisdiction under chapter 135 to pay damages only when

the proceeding is on complaint.

‘‘(B) ENFORCEMENT BY CIVIL ACTION.—The person for

whose benefit an order of the Board or Secretary requiring

the payment of money is made may bring a civil action

to enforce that order under this paragraph if the carrier

or broker does not pay the amount awarded by the date

payment was ordered to be made.

‘‘(d) PROCEDURE.—

‘‘(1) IN GENERAL.—When a person begins a civil action

under subsection (b) of this section to enforce an order of

the Board or Secretary requiring the payment of damages by

a carrier or broker providing transportation or service subject

to jurisdiction under chapter 135 of this title, the text of the

order of the Board or Secretary must be included in the complaint. In addition to the district courts of the United States,

a State court of general jurisdiction having jurisdiction of the

parties has jurisdiction to enforce an order under this paragraph. The findings and order of the Board or Secretary are

competent evidence of the facts stated in them. Trial in a

civil action brought in a district court of the United States

under this paragraph is in the judicial district in which the

plaintiff resides or in which the principal operating office of

the carrier or broker is located. In a civil action under this

paragraph, the plaintiff is liable for only those costs that accrue

on an appeal taken by the plaintiff.

‘‘(2) PARTIES.—All parties in whose favor the award was

made may be joined as plaintiffs in a civil action brought

in a district court of the United States under this subsection

and all the carriers that are parties to the order awarding

damages may be joined as defendants. Trial in the action is

in the judicial district in which any one of the plaintiffs could

bring the action against any one of the defendants. Process

may be served on a defendant at its principal operating office

when that defendant is not in the district in which the action

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 907

is brought. A judgment ordering recovery may be made in

favor of any of those plaintiffs against the defendant found

to be liable to that plaintiff.

‘‘(e) ATTORNEY’S FEES.—The district court shall award a reasonable attorney’s fee under this section. The district court shall tax

and collect that fee as part of the costs of the action.

‘‘§ 14705. Limitation on actions by and against carriers

‘‘(a) IN GENERAL.—A carrier providing transportation or service

subject to jurisdiction under chapter 135 must begin a civil action

to recover charges for transportation or service provided by the

carrier within 18 months after the claim accrues.

‘‘(b) OVERCHARGES.—A person must begin a civil action to

recover overcharges within 18 months after the claim accrues. If

the claim is against a carrier providing transportation subject to

jurisdiction under chapter 135 and an election to file a complaint

with the Board or Secretary, as applicable, is made under section

14704(c)(1), the complaint must be filed within 3 years after the

claim accrues.

‘‘(c) DAMAGES.—A person must file a complaint with the Board

or Secretary, as applicable, to recover damages under section

14704(b) within 2 years after the claim accrues.

‘‘(d) EXTENSIONS.—The limitation periods under subsection (b)

of this section are extended for 6 months from the time written

notice is given to the claimant by the carrier of disallowance of

any part of the claim specified in the notice if a written claim

is given to the carrier within those limitation periods. The limitation

periods under subsections (b) and (c) of this section are extended

for 90 days from the time the carrier begins a civil action under

subsection (a) to recover charges related to the same transportation

or service, or collects (without beginning a civil action under that

subsection) the charge for that transportation or service if that

action is begun or collection is made within the appropriate period.

‘‘(e) PAYMENT.—A person must begin a civil action to enforce

an order of the Board or Secretary against a carrier within 1

year after the date of the order.

‘‘(f) GOVERNMENT TRANSPORTATION.—This section applies to

transportation for the United States Government. The time limitations under this section are extended, as related to transportation

for or on behalf of the United States Government, for 3 years

from the later of the date of—

‘‘(1) payment of the rate for the transportation or service

involved;

‘‘(2) subsequent refund for overpayment of that rate; or

‘‘(3) deduction made under section 3726 of title 31.

‘‘(g) ACCRUAL DATE.—A claim related to a shipment of property

accrues under this section on delivery or tender of delivery by

the carrier.

‘‘§ 14706. Liability of carriers under receipts and bills of

lading

‘‘(a) GENERAL LIABILITY.—

‘‘(1) MOTOR CARRIERS AND FREIGHT FORWARDERS.—A carrier

providing transportation or service subject to jurisdiction under

subchapter I or III of chapter 135 shall issue a receipt or

bill of lading for property it receives for transportation under

this part. That carrier and any other carrier that delivers

Claims.

Courts.

109 STAT. 908 PUBLIC LAW 104–88—DEC. 29, 1995

the property and is providing transportation or service subject

to jurisdiction under subchapter I or III of chapter 135 or

chapter 105 are liable to the person entitled to recover under

the receipt or bill of lading. The liability imposed under this

paragraph is for the actual loss or injury to the property caused

by (A) the receiving carrier, (B) the delivering carrier, or (C)

another carrier over whose line or route the property is transported in the United States or from a place in the United

States to a place in an adjacent foreign country when transported under a through bill of lading and, except in the case

of a freight forwarder, applies to property reconsigned or

diverted under a tariff under section 13702. Failure to issue

a receipt or bill of lading does not affect the liability of a

carrier. A delivering carrier is deemed to be the carrier performing the line-haul transportation nearest the destination but

does not include a carrier providing only a switching service

at the destination.

‘‘(2) FREIGHT FORWARDER.—A freight forwarder is both the

receiving and delivering carrier. When a freight forwarder provides service and uses a motor carrier providing transportation

subject to jurisdiction under subchapter I of chapter 135 to

receive property from a consignor, the motor carrier may execute the bill of lading or shipping receipt for the freight forwarder with its consent. With the consent of the freight

forwarder, a motor carrier may deliver property for a freight

forwarder on the freight forwarder’s bill of lading, freight bill,

or shipping receipt to the consignee named in it, and receipt

for the property may be made on the freight forwarder’s delivery

receipt.

‘‘(b) APPORTIONMENT.—The carrier issuing the receipt or bill

of lading under subsection (a) of this section or delivering the

property for which the receipt or bill of lading was issued is entitled

to recover from the carrier over whose line or route the loss or

injury occurred the amount required to be paid to the owners

of the property, as evidenced by a receipt, judgment, or transcript,

and the amount of its expenses reasonably incurred in defending

a civil action brought by that person.

‘‘(c) SPECIAL RULES.—

‘‘(1) MOTOR CARRIERS.—

‘‘(A) SHIPPER WAIVER.—Subject to the provisions of

subparagraph (B), a carrier providing transportation or

service subject to jurisdiction under subchapter I or III

of chapter 135 may, subject to the provisions of this chapter

(including with respect to a motor carrier, the requirements

of section 13710(a)), establish rates for the transportation

of property (other than household goods described in section

13102(10)(A)) under which the liability of the carrier for

such property is limited to a value established by written

or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would

be reasonable under the circumstances surrounding the

transportation.

‘‘(B) CARRIER NOTIFICATION.—If the motor carrier is

not required to file its tariff with the Board, it shall provide

under section 13710(a)(1) to the shipper, on request of

the shipper, a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 909

to a shipment, or agreed to between the shipper and the

carrier, is based. The copy provided by the carrier shall

clearly state the dates of applicability of the rate, classification, rules, or practices.

‘‘(C) PROHIBITION AGAINST COLLECTIVE ESTABLISHMENT.—No discussion, consideration, or approval as to

rules to limit liability under this subsection may be undertaken by carriers acting under an agreement approved

pursuant to section 13703.

‘‘(2) WATER CARRIERS.—If loss or injury to property occurs

while it is in the custody of a water carrier, the liability of

that carrier is determined by its bill of lading and the law

applicable to water transportation. The liability of the initial

or delivering carrier is the same as the liability of the water

carrier.

‘‘(d) CIVIL ACTIONS.—

‘‘(1) AGAINST DELIVERING CARRIER.—A civil action under

this section may be brought against a delivering carrier in

a district court of the United States or in a State court. Trial,

if the action is brought in a district court of the United States

is in a judicial district, and if in a State court, is in a State

through which the defendant carrier operates.

‘‘(2) AGAINST CARRIER RESPONSIBLE FOR LOSS.—A civil

action under this section may be brought against the carrier

alleged to have caused the loss or damage, in the judicial

district in which such loss or damage is alleged to have

occurred.

‘‘(3) JURISDICTION OF COURTS.—A civil action under this

section may be brought in a United States district court or

in a State court.

‘‘(4) JUDICIAL DISTRICT DEFINED.—In this section, ‘judicial

district’ means—

‘‘(A) in the case of a United States district court, a

judicial district of the United States; and

‘‘(B) in the case of a State court, the applicable

geographic area over which such court exercises jurisdiction.

‘‘(e) MINIMUM PERIOD FOR FILING CLAIMS.—

‘‘(1) IN GENERAL.—A carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing

a claim against it under this section and a period of less

than 2 years for bringing a civil action against it under this

section. The period for bringing a civil action is computed

from the date the carrier gives a person written notice that

the carrier has disallowed any part of the claim specified in

the notice.

‘‘(2) SPECIAL RULES.—For the purposes of this subsection—

‘‘(A) an offer of compromise shall not constitute a disallowance of any part of the claim unless the carrier, in

writing, informs the claimant that such part of the claim

is disallowed and provides reasons for such disallowance;

and

‘‘(B) communications received from a carrier’s insurer

shall not constitute a disallowance of any part of the claim

unless the insurer, in writing, informs the claimant that

such part of the claim is disallowed, provides reason for

109 STAT. 910 PUBLIC LAW 104–88—DEC. 29, 1995

such disallowance, and informs the claimant that the

insurer is acting on behalf of the carrier. ‘‘(f) LIMITING LIABILITY OF HOUSEHOLD GOODS CARRIERS TO

DECLARED VALUE.—A carrier or group of carriers subject to jurisdiction under subchapter I or III of chapter 135 may petition the

Board to modify, eliminate, or establish rates for the transportation

of household goods under which the liability of the carrier for

that property is limited to a value established by written declaration

of the shipper or by a written agreement.

‘‘(g) MODIFICATIONS AND REFORMS.—

‘‘(1) STUDY.—The Secretary shall conduct a study to determine whether any modifications or reforms should be made

to the loss and damage provisions of this section, including

those related to limitation of liability by carriers.

‘‘(2) FACTORS TO CONSIDER.—In conducting the study, the

Secretary, at a minimum, shall consider—

‘‘(A) the efficient delivery of transportation services;

‘‘(B) international and intermodal harmony;

‘‘(C) the public interest; and

‘‘(D) the interest of carriers and shippers.

‘‘(3) REPORT.—Not later than 12 months after the effective

date of this section, the Secretary shall submit to Congress

a report on the results of the study, together with any recommendations of the Secretary (including legislative recommendations) for implementing modifications or reforms

identified by the Secretary as being appropriate.

‘‘§ 14707. Private enforcement of registration requirement

‘‘(a) IN GENERAL.—If a person provides transportation by motor

vehicle or service in clear violation of section 13901–13904 or 13906,

a person injured by the transportation or service may bring a

civil action to enforce any such section. In a civil action under

this subsection, trial is in the judicial district in which the person

who violated that section operates.

‘‘(b) PROCEDURE.—A copy of the complaint in a civil action

under subsection (a) shall be served on the Secretary and a certificate of service must appear in the complaint filed with the court.

The Secretary may intervene in a civil action under subsection

(a). The Secretary may notify the district court in which the action

is pending that the Secretary intends to consider the matter that

is the subject of the complaint in a proceeding before the Secretary.

When that notice is filed, the court shall stay further action pending

disposition of the proceeding before the Secretary.

‘‘(c) ATTORNEY’S FEES.—In a civil action under subsection (a),

the court may determine the amount of and award a reasonable

attorney’s fee to the prevailing party. That fee is in addition to

costs allowable under the Federal Rules of Civil Procedure.

‘‘§ 14708. Dispute settlement program for household goods

carriers

‘‘(a) OFFERING SHIPPERS ARBITRATION.—As a condition of registration under section 13902 or 13903, a carrier providing transportation of household goods subject to jurisdiction under subchapter

I or III of chapter 135 must agree to offer in accordance with

this section to shippers of household goods arbitration as a means

of settling disputes between such carriers and shippers of household

goods concerning damage or loss to the household goods transported.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 911

‘‘(b) ARBITRATION REQUIREMENTS.— ‘‘(1) PREVENTION OF SPECIAL ADVANTAGE.—The arbitration

that is offered must be designed to prevent a carrier from

having any special advantage in any case in which the claimant

resides or does business at a place distant from the carrier’s

principal or other place of business.

‘‘(2) NOTICE OF ARBITRATION PROCEDURE.—The carrier must

provide the shipper an adequate notice of the availability of

neutral arbitration, including a concise easy-to-read, accurate

summary of the arbitration procedure, any applicable costs,

and disclosure of the legal effects of election to utilize arbitration. Such notice must be given to persons for whom household

goods are to be transported by the carrier before such goods

are tendered to the carrier for transportation.

‘‘(3) PROVISION OF FORMS.—Upon request of a shipper, the

carrier must promptly provide such forms and other information

as are necessary for initiating an action to resolve a dispute

under arbitration.

‘‘(4) INDEPENDENCE OF ARBITRATOR.—Each person authorized to arbitrate or otherwise settle disputes must be independent of the parties to the dispute and must be capable, as

determined under such regulations as the Secretary may issue,

to resolve such disputes fairly and expeditiously. The carrier

must ensure that each person chosen to settle the disputes

is authorized and able to obtain from the shipper or carrier

any material and relevant information to the extent necessary

to carry out a fair and expeditious decisionmaking process.

‘‘(5) APPORTIONMENT OF COSTS.—No shipper may be

charged more than half of the cost for instituting an arbitration

proceeding that is brought under this section. In the decision,

the arbitrator may determine which party shall pay the cost

or a portion of the cost of the arbitration proceeding, including

the cost of instituting the proceeding.

‘‘(6) REQUESTS.—The carrier must not require the shipper

to agree to utilize arbitration prior to the time that a dispute

arises. If the dispute involves a claim for $1,000 or less and

the shipper requests arbitration, such arbitration shall be binding on the parties. If the dispute involves a claim for more

than $1,000 and the shipper requests arbitration, such arbitration shall be binding on the parties only if the carrier agrees

to arbitration.

‘‘(7) ORAL PRESENTATION OF EVIDENCE.—The arbitrator may

provide for an oral presentation of a dispute concerning

transportation of household goods by a party to the dispute

(or a party’s representative), but such oral presentation may

be made only if all parties to the dispute expressly agree

to such presentation and the date, time, and location of such

presentation.

‘‘(8) DEADLINE FOR DECISION.—The arbitrator must, as

expeditiously as possible but at least within 60 days of receipt

of written notification of the dispute, render a decision based

on the information gathered; except that, in any case in which

a party to the dispute fails to provide in a timely manner

any information concerning such dispute which the person settling the dispute may reasonably require to resolve the dispute,

the arbitrator may extend such 60-day period for a reasonable

period of time. A decision resolving a dispute may include

109 STAT. 912 PUBLIC LAW 104–88—DEC. 29, 1995

any remedies appropriate under the circumstances, including

repair, replacement, refund, reimbursement for expenses, and

compensation for damages.

‘‘(c) LIMITATION ON USE OF MATERIALS.—Materials and information obtained in the course of a decision making process to settle

a dispute by arbitration under this section may not be used to

bring an action under section 14905.

‘‘(d) ATTORNEY’S FEES TO SHIPPERS.—In any court action to

resolve a dispute between a shipper of household goods and a

carrier providing transportation or service subject to jurisdiction

under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, the shipper shall be

awarded reasonable attorney’s fees if—

‘‘(1) the shipper submits a claim to the carrier within

120 days after the date the shipment is delivered or the date

the delivery is scheduled, whichever is later;

‘‘(2) the shipper prevails in such court action; and

‘‘(3)(A) a decision resolving the dispute was not rendered

through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension

of such period under such subsection; or

‘‘(B) the court proceeding is to enforce a decision rendered

through arbitration under this section and is instituted after

the period for performance under such decision has elapsed.

‘‘(e) ATTORNEY’S FEES TO CARRIERS.—In any court action to

resolve a dispute between a shipper of household goods and a

carrier providing transportation, or service subject to jurisdiction

under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, such carrier may be

awarded reasonable attorney’s fees by the court only if the shipper

brought such action in bad faith—

‘‘(1) after resolution of such dispute through arbitration

under this section; or

‘‘(2) after institution of an arbitration proceeding by the

shipper to resolve such dispute under this section but before—

‘‘(A) the period provided under subsection (b)(8) for

resolution of such dispute (including, if applicable, an

extension of such period under such subsection) ends; and

‘‘(B) a decision resolving such dispute is rendered.

‘‘(f) LIMITATION OF APPLICABILITY TO COLLECT-ON-DELIVERY

TRANSPORTATION.—The provisions of this section shall apply only

in the case of collect-on-delivery transportation of household goods.

‘‘(g) REVIEW BY SECRETARY.—Not later than 18 months after

the effective date of this section, the Secretary shall complete a

review of the dispute settlement program established under this

section. If, after notice and opportunity for comment, the Secretary

determines that changes are necessary to such program to ensure

the fair and equitable resolution of disputes under this section,

the Secretary shall implement such changes and transmit a report

to Congress on such changes.

‘‘§ 14709. Tariff reconciliation rules for motor carriers of

property

‘‘Subject to review and approval by the Board, motor carriers

subject to jurisdiction under subchapter I of chapter 135 (other

than motor carriers providing transportation of household goods)

and shippers may resolve, by mutual consent, overcharge and

Reports.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 913

under-charge claims resulting from incorrect tariff provisions or

billing errors arising from the inadvertent failure to properly and

timely file and maintain agreed upon rates, rules, or classifications

in compliance with section 13702 or, with respect to transportation

provided before the effective date of this section, sections 10761

and 10762, as in effect on the day before the effective date of

this section. Resolution of such claims among the parties shall

not subject any party to the penalties for departing from a tariff.

‘‘CHAPTER 149—CIVIL AND CRIMINAL

PENALTIES

Sec.

‘‘14901. General civil penalties.

‘‘14902. Civil penalty for accepting rebates from carrier.

‘‘14903. Tariff violations.

‘‘14904. Additional rate violations.

‘‘14905. Penalties for violations of rules relating to loading and unloading motor vehicles.

‘‘14906. Evasion of regulation of carriers and brokers.

‘‘14907. Recordkeeping and reporting violations.

‘‘14908. Unlawful disclosure of information.

‘‘14909. Disobedience to subpoenas.

‘‘14910. General civil penalty when specific penalty not provided.

‘‘14911. Punishment of corporation for violations committed by certain individuals.

‘‘14912. Weight-bumping in household goods transportation.

‘‘14913. Conclusiveness of rates in certain prosecutions.

‘‘14914. Civil penalty procedures.

‘‘§ 14901. General civil penalties

‘‘(a) REPORTING AND RECORDKEEPING.—A person required to

make a report to the Secretary or the Board, answer a question,

or make, prepare, or preserve a record under this part concerning

transportation subject to jurisdiction under subchapter I or III

of chapter 135 or transportation by a foreign carrier registered

under section 13902, or an officer, agent, or employee of that person

that—

‘‘(1) does not make the report;

‘‘(2) does not specifically, completely, and truthfully answer

the question;

‘‘(3) does not make, prepare, or preserve the record in

the form and manner prescribed;

‘‘(4) does not comply with section 13901; or

‘‘(5) does not comply with section 13902(c);

is liable to the United States for a civil penalty of not less than

$500 for each violation and for each additional day the violation

continues; except that, in the case of a person who is not registered

under this part to provide transportation of passengers, or an

officer, agent, or employee of such person, that does not comply

with section 13901 with respect to providing transportation of passengers, the amount of the civil penalty shall not be less than

$2,000 for each violation and for each additional day the violation

continues.

‘‘(b) TRANSPORTATION OF HAZARDOUS WASTES.—A person subject to jurisdiction under subchapter I of chapter 135, or an officer,

agent, or employee of that person, and who is required to comply

with section 13901 of this title but does not so comply with respect

to the transportation of hazardous wastes as defined by the Environmental Protection Agency pursuant to section 3001 of the Solid

Waste Disposal Act (but not including any waste the regulation

109 STAT. 914 PUBLIC LAW 104–88—DEC. 29, 1995

of which under the Solid Waste Disposal Act has been suspended

by Congress) shall be liable to the United States for a civil penalty

not to exceed $20,000 for each violation.

‘‘(c) FACTORS TO CONSIDER IN DETERMINING AMOUNT.—In determining and negotiating the amount of a civil penalty under subsection (a) or (d) concerning transportation of household goods,

the degree of culpability, any history of prior such conduct, the

degree of harm to shipper or shippers, ability to pay, the effect

on ability to do business, whether the shipper has been adequately

compensated before institution of the proceeding, and such other

matters as fairness may require shall be taken into account.

‘‘(d) PROTECTION OF HOUSEHOLD GOODS SHIPPERS.—If a carrier

providing transportation of household goods subject to jurisdiction

under subchapter I or III of chapter 135 or a receiver or trustee

of such carrier fails or refuses to comply with any regulation issued

by the Secretary or the Board relating to protection of individual

shippers, such carrier, receiver, or trustee is liable to the United

States for a civil penalty of not less than $1,000 for each violation

and for each additional day during which the violation continues.

‘‘(e) VIOLATION RELATING TO TRANSPORTATION OF HOUSEHOLD

GOODS.—Any person that knowingly engages in or knowingly

authorizes an agent or other person—

‘‘(1) to falsify documents used in the transportation of

household goods subject to jurisdiction under subchapter I or

III of chapter 135 which evidence the weight of a shipment;

or

‘‘(2) to charge for accessorial services which are not performed or for which the carrier is not entitled to be compensated

in any case in which such services are not reasonably necessary

in the safe and adequate movement of the shipment;

is liable to the United States for a civil penalty of not less than

$2,000 for each violation and of not less than $5,000 for each

subsequent violation. Any State may bring a civil action in the

United States district courts to compel a person to pay a civil

penalty assessed under this subsection.

‘‘(f) VENUE.—Trial in a civil action under subsections (a)

through (e) of this section is in the judicial district in which—

‘‘(1) the carrier or broker has its principal office;

‘‘(2) the carrier or broker was authorized to provide

transportation or service under this part when the violation

occurred;

‘‘(3) the violation occurred; or

‘‘(4) the offender is found.

Process in the action may be served in the judicial district of

which the offender is an inhabitant or in which the offender may

be found.

‘‘(g) BUSINESS ENTERTAINMENT EXPENSES.—

‘‘(1) IN GENERAL.—Any business entertainment expense

incurred by a water carrier providing transportation subject

to this part shall not constitute a violation of this part if

that expense would not be unlawful if incurred by a person

not subject to this part.

‘‘(2) COST OF SERVICE.—Any business entertainment

expense subject to paragraph (1) that is paid or incurred by

a water carrier providing transportation subject to this part

shall not be taken into account in determining the cost of

service or the rate base for purposes of section 13702.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 915

‘‘§ 14902. Civil penalty for accepting rebates from carrier

‘‘A person— ‘‘(1) delivering property to a carrier providing transpor- tation or service subject to jurisdiction under chapter 135 for

transportation under this part or for whom that carrier will

transport the property as consignor or consignee for that person

from a State or territory or possession of the United States

to another State or possession, territory, or to a foreign country;

and

‘‘(2) knowingly accepting or receiving by any means a rebate or offset against the rate for transportation for, or service

of, that property contained in a tariff required under section

13702;

is liable to the United States for a civil penalty in an amount

equal to 3 times the amount of money that person accepted or

received as a rebate or offset and 3 times the value of other

consideration accepted or received as a rebate or offset. In a civil

action under this section, all money or other consideration received

by the person during a period of 6 years before an action is brought

under this section may be included in determining the amount

of the penalty, and if that total amount is included, the penalty

shall be 3 times that total amount.

‘‘§ 14903. Tariff violations

‘‘(a) CIVIL PENALTY FOR UNDERCHARGING AND OVERCHARGING.— A person that offers, grants, gives, solicits, accepts, or receives

by any means transportation or service provided for property by

a carrier subject to jurisdiction under chapter 135 at a rate different

than the rate in effect under section 13702 is liable to the United

States for civil penalty of not more than $100,000 for each violation. ‘‘(b) GENERAL CRIMINAL PENALTY.—A carrier providing

transportation or service subject to jurisdiction under chapter 135

or an officer, director, receiver, trustee, lessee, agent, or employee

of a corporation that is subject to jurisdiction under that chapter,

that willfully does not observe its tariffs as required under section

13702, shall be fined under title 18 or imprisoned not more than

2 years, or both.

‘‘(c) ACTIONS OF AGENTS AND EMPLOYEES.—When acting in

the scope of their employment, the actions and omissions of persons

acting for or employed by a carrier or shipper that is subject

to this section are considered to be the actions and omissions

of that carrier or shipper as well as that person.

‘‘(d) VENUE.—Trial in a criminal action under this section is

in the judicial district in which any part of the violation is committed or through which the transportation is conducted.

‘‘§ 14904. Additional rate violations

‘‘(a) REBATES BY AGENTS.—A person, or an officer, employee,

or agent of that person, that—

‘‘(1) offers, grants, gives, solicits, accepts, or receives a

rebate for concession, in violation of a provision of this part

related to motor carrier transportation subject to jurisdiction

under subchapter I of chapter 135; or

‘‘(2) by any means assists or permits another person to

get transportation that is subject to jurisdiction under that

subchapter at less than the rate in effect for that transportation

under section 13702,

109 STAT. 916 PUBLIC LAW 104–88—DEC. 29, 1995

is liable to the United States for a civil penalty of $200 for the

first violation and $250 for a subsequent violation.

‘‘(b) UNDERCHARGING.—

‘‘(1) FREIGHT FORWARDER.—A freight forwarder providing

service subject to jurisdiction under subchapter III of chapter

135, or an officer, agent, or employee of that freight forwarder,

that assists a person in getting, or willingly permits a person

to get, service provided under that subchapter at less than

the rate in effect for that service under section 13702, is liable

to the United States for a civil penalty of not more than

$500 for the first violation and not more than $2,000 for a

subsequent violation.

‘‘(2) OTHERS.—A person that by any means gets, or

attempts to get, service provided under subchapter III of chapter 135 at less than the rate in effect for that service under

section 13702, is liable to the United States for a civil penalty

of not more than $500 for the first violation and not more

than $2,000 for a subsequent violation.

‘‘§ 14905. Penalties for violations of rules relating to loading

and unloading motor vehicles

‘‘(a) CIVIL PENALTIES.—Whoever knowingly authorizes, consents

to, or permits a violation of subsection (a) or (b) of section 14103

or who knowingly violates subsection (a) of such section is liable

to the United States for a civil penalty of not more than $10,000

for each violation.

‘‘(b) CRIMINAL PENALTIES.—Whoever knowingly violates section

14103(b) of this title shall be fined under title 18 or imprisoned

not more than 2 years, or both.

‘‘§ 14906. Evasion of regulation of carriers and brokers

‘‘A person, or an officer, employee, or agent of that person,

that by any means tries to evade regulation provided under this

part for carriers or brokers is liable to the United States for a

civil penalty of $200 for the first violation and at least $250 for

a subsequent violation.

‘‘§ 14907. Recordkeeping and reporting violations

‘‘A person required to make a report to the Secretary or the

Board, as applicable, answer a question, or make, prepare, or preserve a record under this part about transportation subject to

jurisdiction under subchapter I or III of chapter 135, or an officer,

agent, or employee of that person, that—

‘‘(1) does not make that report;

‘‘(2) does not specifically, completely, and truthfully answer

that question in 30 days from the date the Secretary or Board,

as applicable, requires the question to be answered;

‘‘(3) does not make, prepare, or preserve that record in

the form and manner prescribed;

‘‘(4) falsifies, destroys, mutilates, or changes that report

or record;

‘‘(5) files a false report or record;

‘‘(6) makes a false or incomplete entry in that record about

a business related fact or transaction; or

‘‘(7) makes, prepares, or preserves a record in violation

of an applicable regulation or order of the Secretary or Board;

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 917

is liable to the United States for a civil penalty of not more than

$5,000.

‘‘§ 14908. Unlawful disclosure of information

‘‘(a) DISCLOSURE OF SHIPMENT AND ROUTING INFORMATION.—

‘‘(1) VIOLATIONS.—A carrier or broker providing transportation subject to jurisdiction under subchapter I, II, or III

of chapter 135 or an officer, receiver, trustee, lessee, or

employee of that carrier or broker, or another person authorized

by that carrier or broker to receive information from that

carrier or broker may not disclose to another person, except

the shipper or consignee, and a person may not solicit, or

receive, information about the nature, kind, quantity, destination, consignee, or routing of property tendered or delivered

to that carrier or broker for transportation provided under

this part without the consent of the shipper or consignee if

that information may be used to the detriment of the shipper

or consignee or may disclose improperly to a competitor the

business transactions of the shipper or consignee.

‘‘(2) PENALTY.—A person violating paragraph (1) of this

subsection is liable to the United States for a civil penalty

of not more than $2,000.

‘‘(b) LIMITATION ON STATUTORY CONSTRUCTION.—This part does

not prevent a carrier or broker providing transportation subject

to jurisdiction under chapter 135 from giving information—

‘‘(1) in response to legal process issued under authority

of a court of the United States or a State;

‘‘(2) to an officer, employee, or agent of the United States

Government, a State, or a territory or possession of the United

States; or

‘‘(3) to another carrier or its agent to adjust mutual traffic

accounts in the ordinary course of business.

‘‘§ 14909. Disobedience to subpoenas

‘‘Whoever does not obey a subpoena or requirement of the

Secretary or the Board to appear and testify or produce records

shall be fined under title 18 or imprisoned not more than 1 year,

or both.

‘‘§ 14910. General civil penalty when specific penalty not provided

‘‘When another civil penalty is not provided under this chapter,

a person that violates a provision of this part or a regulation

or order prescribed under this part, or a condition of a registration

under this part related to transportation that is subject to jurisdiction under subchapter I or III of chapter 135 or a condition of

a registration of a foreign motor carrier or foreign motor private

carrier under section 13902, is liable to the United States for

a civil penalty of $500 for each violation. A separate violation

occurs each day the violation continues.

‘‘§ 14911. Punishment of corporation for violations committed

by certain individuals

‘‘An act or omission that would be a violation of this part

if committed by a director, officer, receiver, trustee, lessee, agent,

or employee of a carrier providing transportation or service subject

to jurisdiction under chapter 135 that is a corporation is also

109 STAT. 918 PUBLIC LAW 104–88—DEC. 29, 1995

a violation of this part by that corporation. The penalties of this

chapter apply to that violation. When acting in the scope of their

employment, the actions and omissions of individuals acting for

or employed by that carrier are considered to be the actions and

omissions of that carrier as well as that individual.

‘‘§ 14912. Weight-bumping in household goods transportation

‘‘(a) WEIGHT-BUMPING DEFINED.—For the purposes of this section, ‘weight-bumping’ means the knowing and willful making or

securing of a fraudulent weight on a shipment of household goods

which is subject to jurisdiction under subchapter I or III of chapter

135.

‘‘(b) PENALTY.—Whoever has been found to have committed

weight-bumping shall be fined under title 18 or imprisoned not

more than 2 years, or both.

‘‘§ 14913. Conclusiveness of rates in certain prosecutions

‘‘When a carrier publishes or files a particular rate under

section 13702 or participates in such a rate, the published or

filed rate is conclusive proof against that carrier, its officers, and

agents that it is the legal rate for that transportation or service

in a proceeding begun under section 14902 or 14903. A departure,

or offer to depart, from that published or filed rate is a violation

of those sections.

‘‘§ 14914. Civil penalty procedures

‘‘(a) IN GENERAL.—After notice and an opportunity for a hear- ing, a person found by the Surface Transportation Board to have

violated a provision of law that the Board carries out or a regulation

prescribed under that law by the Board that is related to transportation which occurs under subchapter II of chapter 135 for which

a civil penalty is provided, is liable to the United States for the

civil penalty provided. The amount of the civil penalty shall be

assessed by the Board by written notice. In determining the amount

of the penalty, the Board shall consider the nature, circumstances,

extent, and gravity of the prohibited acts committed and, with

respect to the violator, the degree of culpability, any history of

prior offenses, ability to pay, and other matters that justice requires. ‘‘(b) COMPROMISE.—The Board may compromise, modify, or remit, with or without consideration, a civil penalty until the assessment is referred to the Attorney General. ‘‘(c) COLLECTION.—If a person fails to pay an assessment of a civil penalty after it has become final, the Board may refer

the matter to the Attorney General for collection in an appropriate

district court of the United States.

‘‘(d) REFUNDS.—The Board may refund or remit a civil penalty collected under this section if—

‘‘(1) application has been made for refund or remission

of the penalty within 1 year from the date of payment; and ‘‘(2) the Board finds that the penalty was unlawfully, improperly, or excessively imposed.’’.

SEC. 104. MISCELLANEOUS MOTOR CARRIER PROVISIONS.

(a) GRANTS TO STATES.—Section 31102(b)(1) of title 49, United

States Code, is amended—

(1) by striking ‘‘and’’ at the end of subparagraph (O);

(2) by striking the period at the end of subparagraph (P)

and inserting in lieu thereof ‘‘; and’’; and

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 919

(3) by adding at the end the following:

‘‘(Q) ensures that the State will cooperate in the enforcement of registration and financial responsibility requirements

under sections 31140 and 31146, or regulations issued thereunder.’’

(b) TRANSPORT VEHICLES FOR OFF-ROAD, COMPETITION

VEHICLES.—Section 31111(b)(1) of such title is amended—

(1) by striking ‘‘or’’ at the end of subparagraph (C);

(2) by striking the period at the end of subparagraph (D)

and inserting in lieu thereof a semicolon and ‘‘or’’; and

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

‘‘(E) imposes a limitation of less than 46 feet on the distance

from the kingpin to the center of the rear axle on trailers

used exclusively or primarily in connection with motorsports

competition events.’’.

(c) MULTIPLE INSURERS.—Section 31138(c) of such title is

amended by adding at the end the following new paragraph:

‘‘(3) A motor carrier may obtain the required amount of financial

responsibility from more than one source provided the cumulative

amount is equal to the minimum requirements of this section.’’.

(d) MINIMUM FINANCIAL RESPONSIBILITY REQUIREMENTS WITH

RESPECT TO CERTAIN TRANSPORTATION SERVICE.—Section 31138(e)

is amended—

(1) by striking ‘‘or’’ at the end of paragraph (2);

(2) by striking the period at the end of paragraph (3)

and inserting in lieu thereof ‘‘; or’’; and

(3) by adding at the end the following:

‘‘(4) providing transportation service within a transit service area under an agreement with a Federal, State, or local

government funded, in whole or in part, with a grant under

section 5307, 5310, or 5311, including transportation designed

and carried out to meet the special needs of elderly individuals

and individuals with disabilities; except that, in any case in

which the transit service area is located in more than 1 State,

the minimum level of financial responsibility for such motor

vehicle will be at least the highest level required for any of

such States.’’.

(e) TRANSPORTERS OF PROPERTY.—Section 31139(e) of such title

is amended by adding at the end the following:

‘‘(3) A motor carrier may obtain the required amount of financial

responsibility from more than one source provided the cumulative

amount is equal to the minimum requirements of this section.’’.

(f) COMMERCIAL MOTOR VEHICLE DEFINED.—Section 31132(1)

of such title is amended—

(1) by redesignating subparagraph (C) as subparagraph

(D); and

(2) by striking subparagraph (B) and inserting in lieu

thereof the following:

‘‘(B) is designed or used to transport passengers for

compensation, but excluding vehicles providing taxicab

service and having a capacity of not more than 6 passengers

and not operated on a regular route or between specified

places;

‘‘(C) is designed or used to transport more than 15

passengers, including the driver, and is not used to transport passengers for compensation; or’’.

109 STAT. 920 PUBLIC LAW 104–88—DEC. 29, 1995

(g) SAFETY FITNESS OF OWNERS AND OPERATORS.—Section

31144 of such title is amended—

(1) in the first sentence of subsection (a) by striking ‘‘In

cooperation with the Interstate Commerce Commission, the’’

and inserting in lieu thereof ‘‘The’’;

(2) in such sentence by striking ‘‘sections 10922 and 10923’’

and inserting in lieu thereof ‘‘section 13902’’;

(3) in subsection (a)(1)(C) by striking ‘‘and the Commission’’;

and

(4) by striking subsection (b) and inserting in lieu thereof

the following:

‘‘(b) FINDINGS AND ACTION ON REGISTRATIONS.—The Secretary

shall find that a person seeking to register as a motor carrier

is unfit if such person does not meet the safety fitness requirements

established under subsection (a) and shall not register such person.’’.

(h) SELF-INSURANCE RULES.—The Secretary of Transportation

shall continue to enforce the rules and regulations of the Interstate

Commerce Commission, as in effect on July 1, 1995, governing

the qualifications for approval of a motor carrier as a self-insurer,

until such time as the Secretary finds it in the public interest

to revise such rules. The revised rules must provide for—

(1) continued ability of motor carriers to qualify as selfinsurers; and

(2) the continued qualification of all carriers then so qualified under the terms and conditions set by the Interstate Commerce Commission or Secretary at the time of qualification.

SEC. 105. CREDITABILITY OF ANNUAL LEAVE FOR PURPOSES OF

MEETING MINIMUM ELIGIBILITY REQUIREMENTS FOR AN

IMMEDIATE ANNUITY.

(a) IN GENERAL.—An employee of the Interstate Commerce

Commission who is separated from Government service pursuant

to the abolition of that agency under section 101 shall, upon appropriate written application, be given credit, for purposes of determining eligibility for and computing the amount of any annuity under

subchapter III of chapter 83 or chapter 84 of title 5, United States

Code, for accrued annual leave standing to such employee’s credit

at the time of separation.

(b) LIMITATION AND OTHER CONDITIONS.—Any regulations necessary to carry out this section shall be prescribed by the Office

of Personnel Management. Such regulations shall include provisions—

(1) defining the types of leave for which credit may be

given under this section (such definition to be similar to the

corresponding provisions of the regulations under section

351.608(c)(2) of title 5 of the Code of Federal Regulations,

as in effect on the date of the enactment of this Act);

(2) limiting the amount of accrued annual leave which

may be used for the purposes specified in subsection (a) to

the minimum period of time necessary in order to permit such

employee to attain first eligibility for an immediate annuity

under section 8336, 8412, or 8414 of title 5, United States

Code (in a manner similar to the corresponding provisions

of the regulations referred to in paragraph (1));

(3) under which contributions (or arrangements for the

making of contributions) shall be made so that—

Regulations.

5 USC 8332 note.

49 USC 13906

note.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 921

(A) employee contributions for any period of leave for which retirement credit may be obtained under this section

shall be made by the employee; and (B) Government contributions with respect to such

period shall similarly be made by the Interstate Commerce

Commission or other appropriate officer or entity (out of

appropriations otherwise available for such contributions);

and

(4) under which subsection (a) shall not apply with respect to an employee who declines a reasonable offer of employment

in another position in the Department of Transportation made

under this Act or any amendment made by this Act.

(c) EXTINGUISHMENT OF ELIGIBILITY FOR LUMP-SUM PAYMENT.— A lump-sum payment under section 5551 of title 5, United States

Code, shall not be payable with respect to any leave for which

retirement credit is obtained under this section.

SEC. 106. PIPELINE CARRIER PROVISIONS.

(a) AMENDMENT TO TITLE 49.—Subtitle IV of title 49, United

States Code, is further amended by adding at the end the following:

‘‘PART C—PIPELINE CARRIERS

‘‘CHAPTER 151—GENERAL PROVISIONS

‘‘CHAPTER 151—GENERAL PROVISIONS

‘‘Sec.

‘‘15101. Transportation policy.

‘‘15102. Definitions.

‘‘15103. Remedies as cumulative.

‘‘§ 15101. Transportation policy

‘‘(a) IN GENERAL.—To ensure the development, coordination,

and preservation of a transportation system that meets the

transportation needs of the United States, including the national

defense, it is the policy of the United States Government to oversee

of the modes of transportation and in overseeing those modes— ‘‘(1) to recognize and preserve the inherent advantage of each mode of transportation; ‘‘(2) to promote safe, adequate, economical, and efficient

transportation; ‘‘(3) to encourage sound economic conditions in transpor- tation, including sound economic conditions among carriers; ‘‘(4) to encourage the establishment and maintenance of reasonable rates for transportation without unreasonable

discrimination or unfair or destructive competitive practices; ‘‘(5) to cooperate with each State and the officials of each

State on transportation matters; and ‘‘(6) to encourage fair wages and working conditions in the transportation industry.

‘‘(b) ADMINISTRATION TO CARRY OUT POLICY.—This part shall

be administered and enforced to carry out the policy of this section.

‘‘§ 15102. Definitions

‘‘In this part— ‘‘(1) BOARD.—The term ‘Board’ means the Surface Transportation Board.

‘‘(2) PIPELINE CARRIER.—The term ‘pipeline carrier’ means

a person providing pipeline transportation for compensation.

109 STAT. 922 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(3) RATE.—The term ‘rate’ means a rate or charge for

transportation.

‘‘(4) STATE.—The term ‘State’ means a State of the United

States and the District of Columbia.

‘‘(5) TRANSPORTATION.—The term ‘transportation’

includes—

‘‘(A) property, facilities, instrumentalities, or equipment of any kind related to the movement of property,

regardless of ownership or an agreement concerning use;

and

‘‘(B) services related to that movement, including

receipt, delivery, transfer in transit, storage, handling, and

interchange of property.

‘‘(6) UNITED STATES.—The term ‘United States’ means the

States of the United States and the District of Columbia.

‘‘§ 15103. Remedies as cumulative

‘‘Except as otherwise provided in this part, the remedies provided under this part are in addition to remedies existing under

another law or common law.

‘‘CHAPTER 153—JURISDICTION

‘‘CHAPTER 153—JURISDICTION

‘‘Sec.

‘‘15301. General pipeline jurisdiction.

‘‘15302. Authority to exempt pipeline carrier transportation.

‘‘§ 15301. General pipeline jurisdiction

‘‘(a) IN GENERAL.—The Board has jurisdiction over transportation by pipeline, or by pipeline and railroad or water, when

transporting a commodity other than water, gas, or oil. Jurisdiction

under this subsection applies only to transportation in the United

States between a place in—

‘‘(1) a State and a place in another State;

‘‘(2) the District of Columbia and another place in the

District of Columbia;

‘‘(3) a State and a place in a territory or possession of

the United States;

‘‘(4) a territory or possession of the United States and

a place in another such territory or possession;

‘‘(5) a territory or possession of the United States and

another place in the same territory or possession;

‘‘(6) the United States and another place in the United

States through a foreign country; or

‘‘(7) the United States and a place in a foreign country.

‘‘(b) NO JURISDICTION OVER INTRASTATE TRANSPORTATION.—

The Board does not have jurisdiction under subsection (a) over

the transportation of property, or the receipt, delivery, storage,

or handling of property, entirely in a State (other than the District

of Columbia) and not transported between a place in the United

States and a place in a foreign country except as otherwise provided

in this part.

‘‘(c) PROTECTION OF STATES POWERS.—This part does not affect

the power of a State, in exercising its police power, to require

reasonable intrastate transportation by carriers providing transportation subject to the jurisdiction of the Board under this chapter

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 923

unless the State requirement is inconsistent with an order of the

Board issued under this part or is prohibited under this part.

‘‘§ 15302. Authority to exempt pipeline carrier transportation

‘‘(a) IN GENERAL—In a matter related to a pipeline carrier

providing transportation subject to jurisdiction under this chapter,

the Board shall exempt a person, class of persons, or a transaction

or service when the Board finds that the application, in whole

or in part, of a provision of this part—

‘‘(1) is not necessary to carry out the transportation policy

of section 15101; and

‘‘(2) either (A) the transaction or service is of limited scope,

or (B) the application, in whole or in part, of the provision

is not needed to protect shippers from the abuse of market

power.

‘‘(b) INITIATION OF PROCEEDING.—The Board may, where appropriate, begin a proceeding under this section on its own initiative

or an interested party.

‘‘(c) PERIOD OF EXEMPTION.—The Board may specify the period

of time during which an exemption granted under this section

is effective.

‘‘(d) REVOCATION.—The Board may revoke an exemption, to

the extent it specifies, when it finds that application, in whole

or in part, of a provision of this part to the person, class, or

transportation is necessary to carry out the transportation policy

of section 15101.

‘‘CHAPTER 155—RATES

‘‘Sec.

‘‘15501. Standards for pipeline rates, classifications, through routes, rules, and practices.

‘‘15502. Authority for pipeline carriers to establish rates, classifications, rules, and

practices.

‘‘15503. Authority and criteria: rates, classifications, rules, and practices prescribed

by Board.

‘‘15504. Government traffic.

‘‘15505. Prohibition against discrimination by pipeline carriers.

‘‘15506. Facilities for interchange of traffic.

‘‘§ 15501. Standards for pipeline rates, classifications,

through routes, rules, and practices

‘‘(a) REASONABLENESS.—A rate, classification, rule, or practice

related to transportation or service provided by a pipeline carrier

subject to this part must be reasonable. A through route established

by such a carrier must be reasonable.

‘‘(b) NONDISCRIMINATION.—A pipeline carrier providing

transportation subject to this part may not discriminate in its

rates against a connecting line of any other pipeline, rail, or water

carrier providing transportation subject to this subtitle or unreasonably discriminate against that line in the distribution of traffic

that is not routed specifically by the shipper.

‘‘§ 15502. Authority for pipeline carriers to establish rates,

classifications, rules, and practices

‘‘A pipeline carrier providing transportation or service subject

to this part shall establish—

‘‘(1) rates and classifications for transportation and service

it may provide under this part; and

109 STAT. 924 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(2) rules and practices on matters related to that transportation or service.

‘‘§ 15503. Authority and criteria: rates, classifications, rules,

and practices prescribed by Board

‘‘(a) IN GENERAL.—When the Board, after a full hearing, decides

that a rate charged or collected by a pipeline carrier for transportation subject to this part, or that a classification, rule, or practice

of that carrier, does or will violate this part, the Board may prescribe the rate, classification, rule, or practice to be followed. In

prescribing the rate, classification, rule, or practice, the Board may

utilize rate reasonableness procedures that provide an effective

simulation of a market-based price for a stand alone pipeline.

The Board may order the carrier to stop the violation. When a

rate, classification, rule, or practice is prescribed under this subsection, the affected carrier may not publish, charge, or collect

a different rate and shall adopt the classification and observe the

rule or practice prescribed by the Board.

‘‘(b) FACTORS TO CONSIDER.—When prescribing a rate, classification, rule, or practice for transportation or service by a pipeline

carrier, the Board shall consider, among other factors—

‘‘(1) the effect of the prescribed rate, classification, rule,

or practice on the movement of traffic by that carrier;

‘‘(2) the need for revenues that are sufficient, under honest,

economical, and efficient management, to let the carrier provide

that transportation or service; and

‘‘(3) the availability of other economic transportation alternatives.

‘‘(c) PROCEEDING.—The Board may begin a proceeding under

this section on complaint. A complaint under this section must

contain a full statement of the facts and the reasons for the complaint and must be made under oath.

‘‘§ 15504. Government traffic

‘‘A pipeline carrier providing transportation or service for the

United States Government may transport property for the United

States Government without charge or at a rate reduced from the

applicable commercial rate. Section 3709 of the Revised Statutes

(41 U.S.C. 5) does not apply when transportation for the United

States Government can be obtained from a carrier lawfully operating in the area where the transportation would be provided.

‘‘§ 15505. Prohibition against discrimination by pipeline carriers

A pipeline carrier providing transportation or service subject

to this part may not subject a person, place, port, or type of

traffic to unreasonable discrimination.

‘‘§ 15506. Facilities for interchange of traffic

‘‘A pipeline carrier providing transportation subject to this part

shall provide reasonable, proper, and equal facilities that are within

its power to provide for the interchange of traffic between, and

for the receiving, forwarding, and delivering of property to and

from, its respective line and a connecting line of a pipeline, rail,

or water carrier under this subtitle.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 925

‘‘CHAPTER 157—OPERATIONS OF CARRIERS

‘‘CHAPTER 157—OPERATIONS OF CARRIERS

‘‘SUBCHAPTER A—GENERAL REQUIREMENTS

‘‘Sec.

‘‘15701. Providing transportation and service.

‘‘SUBCHAPTER B—OPERATIONS OF CARRIERS

‘‘15721. Definitions.

‘‘15722. Records: form; inspection; preservation.

‘‘15723. Reports by carriers, lessors, and associations.

‘‘SUBCHAPTER A—GENERAL REQUIREMENTS

‘‘§ 15701. Providing transportation and service

‘‘(a) SERVICE ON REASONABLE REQUEST.—A pipeline carrier

providing transportation or service under this part shall provide

the transportation or service on reasonable request.

‘‘(b) RATES AND OTHER TERMS.—A pipeline carrier shall also

provide to any person, on request, the carrier’s rates and other

service terms. The response by a pipeline carrier to a request

for the carrier’s rates and other service terms shall be—

‘‘(1) in writing and forwarded to the requesting person

promptly after receipt of the request; or

‘‘(2) promptly made available in electronic form.

‘‘(c) LIMITATION ON RATE INCREASES AND CHANGES TO SERVICE

TERMS.—A pipeline carrier may not increase any common carrier

rates or change any common carrier service terms unless 20 days

have expired after written or electronic notice is provided to any

person who, within the previous 12 months—

‘‘(1) has requested such rates or terms under subsection

(b); or

‘‘(2) has made arrangements with the carrier for a shipment

that would be subject to such increased rates or changed terms.

‘‘(d) PROVISION OF SERVICE.—A pipeline carrier shall provide

transportation or service in accordance with the rates and service

terms, and any changes thereto, as published or otherwise made

available under subsection (b) or (c).

‘‘(e) REGULATIONS.—The Board shall, by regulation, establish

rules to implement this section. The regulations shall provide for

immediate disclosure and dissemination of rates and service terms,

including classifications, rules, and practices, and their effective

dates. The regulations may modify the 20-day period specified in

subsection (c). Final regulations shall be adopted by the Board

not later than 180 days after the effective date of this section.

‘‘SUBCHAPTER B—OPERATIONS OF CARRIERS

‘‘§ 15721. Definitions

‘‘In this subchapter, the following definitions apply:

‘‘(1) CARRIER, LESSOR.—The terms ‘carrier’ and ‘lessor’

include a receiver or trustee of a pipeline carrier and lessor,

respectively.

‘‘(2) LESSOR.—The term ‘lessor’ means a person owning

a pipeline that is leased to and operated by a carrier providing

transportation under this part.

‘‘(3) ASSOCIATION.—The term ‘association’ means an

organization maintained by or in the interest of a group of

109 STAT. 926 PUBLIC LAW 104–88—DEC. 29, 1995

pipeline carriers that performs a service, or engages in activities, related to transportation under this part.

‘‘§ 15722. Records: form; inspection; preservation

‘‘(a) FORM OF RECORDS.—The Board may prescribe the form

of records required to be prepared or compiled under this subchapter

by pipeline carriers and lessors, including records related to movement of traffic and receipts and expenditures of money.

‘‘(b) INSPECTION.—The Board, or an employee designated by

the Board, may on demand and display of proper credentials—

‘‘(1) inspect and examine the lands, buildings, and equipment of a pipeline carrier or lessor; and

‘‘(2) inspect and copy any record of—

‘‘(A) a pipeline carrier, lessor, or association; and

‘‘(B) a person controlling, controlled by, or under common control with a pipeline carrier if the Board considers

inspection relevant to that person’s relation to, or transaction with, that carrier.

‘‘(c) PRESERVATION PERIOD.—The Board may prescribe the time

period during which operating, accounting, and financial records

must be preserved by pipeline carriers and lessors.

‘‘§ 15723. Reports by carriers, lessors, and associations

‘‘(a) FILING OF REPORTS.—The Board may require pipeline carriers, lessors, and associations, or classes of them as the Board

may prescribe, to file annual, periodic, and special reports with

the Board containing answers to questions asked by it.

‘‘(b) UNDER OATH.—Any report under this section shall be made

under oath.

‘‘CHAPTER 159—ENFORCEMENT: INVESTIGATIONS,

RIGHTS, AND REMEDIES

‘‘CHAPTER 159—ENFORCEMENT: INVESTIGATIONS, RIGHTS, AND

REMEDIES

‘‘Sec.

‘‘15901. General authority.

‘‘15902. Enforcement by the Board.

‘‘15903. Enforcement by the Attorney General.

‘‘15904. Rights and remedies of persons injured by certain carriers.

‘‘15905. Limitation on actions by and against pipeline carriers.

‘‘15906. Liability of pipeline carriers under receipts and bills of lading.

‘‘15907. Liability when property is delivered in violation of routing instructions.

‘‘§ 15901. General authority

‘‘(a) INVESTIGATION; COMPLIANCE ORDER.—Except as otherwise

provided in this part, the Board may begin an investigation under

this part only on complaint. If the Board finds that a pipeline

carrier is violating this part, the Board shall take appropriate

action to compel compliance with this part. The Board shall provide

the carrier notice of the investigation and an opportunity for a

proceeding.

‘‘(b) COMPLAINT.—A person, including a governmental authority, may file with the Board a complaint about a violation of this

part by a pipeline carrier providing transportation or service subject

to this part. The complaint must state the facts that are the

subject of the violation. The Board may dismiss a complaint it

determines does not state reasonable grounds for investigation and

action. However, the Board may not dismiss a complaint made

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 927

against a pipeline carrier providing transportation subject to this

part because of the absence of direct damage to the complainant. ‘‘(c) AUTOMATIC DISMISSAL.—A formal investigative proceeding begun by the Board under subsection (a) is dismissed automatically

unless it is concluded by the Board with administrative finality

by the end of the 3d year after the date on which it was begun.

‘‘§ 15902. Enforcement by the Board

‘‘The Board may bring a civil action to enforce an order of

the Board, except a civil action to enforce an order for the payment

of money, when it is violated by a pipeline carrier providing

transportation subject to this part.

‘‘§ 15903. Enforcement by the Attorney General

‘‘(a) ON BEHALF OF BOARD.—The Attorney General may, and

on request of the Board shall, bring court proceedings to enforce

this part or a regulation or order of the Board and to prosecute

a person violating this part or a regulation or order of the Board

issued under this part.

‘‘(b) ON BEHALF OF OTHERS.—The United States Government

may bring a civil action on behalf of a person to compel a pipeline

carrier providing transportation or service subject to this part to

provide that transportation or service to that person in compliance

with this part at the same rate charged, or on conditions as favorable as those given by the carrier, for like traffic under similar

conditions to another person.

‘‘§ 15904. Rights and remedies of persons injured by pipeline

carriers

‘‘(a) ENFORCEMENT OF ORDERS.—A person injured because a

pipeline carrier providing transportation or service subject to this

part does not obey an order of the Board, except an order for

the payment of money, may bring a civil action to enforce that

order under this subsection.

‘‘(b) LIABILITY OF CARRIER.—

‘‘(1) EXCESSIVE CHARGES.—A pipeline carrier providing

transportation subject to this part is liable to a person for

amounts charged that exceed the applicable rate for the

transportation.

‘‘(2) DAMAGES.—A pipeline carrier providing transportation

subject to this part is liable for damages sustained by a person

as a result of an act or omission of that carrier in violation

of this part.

‘‘(c) COMPLAINTS.—

‘‘(1) FILING.—A person may file a complaint with the Board

under section 11501(b) or bring a civil action under subsection

(b) to enforce liability against a pipeline carrier providing

transportation subject to this part.

‘‘(2) PAYMENT DEADLINE.—When the Board makes an award

under subsection (b), the Board shall order the carrier to pay

the amount awarded by a specific date. The Board may order

a carrier providing transportation subject to this part to pay

damages only when the proceeding is on complaint. The person

for whose benefit an order of the Board requiring the payment

of money is made may bring a civil action to enforce that

order under this paragraph if the carrier does not pay the

amount awarded by the date payment was ordered to be made.

109 STAT. 928 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘(d) CIVIL ACTIONS.— ‘‘(1) COMPLAINT.—When a person begins a civil action under subsection (b) to enforce an order of the Board requiring the

payment of damages by a pipeline carrier providing transportation subject to this part, the text of the order of the Board

must be included in the complaint. In addition to the district

courts of the United States, a State court of general jurisdiction

having jurisdiction of the parties has jurisdiction to enforce

an order under this paragraph. The findings and order of the

Board are competent evidence of the facts stated in them.

Trial in a civil action brought in a district court of the United

States under this paragraph is in the judicial district in which

the plaintiff resides or in which the principal operating office

of the carrier is located. In a civil action under this paragraph,

the plaintiff is liable for only those costs that accrue on an

appeal taken by the plaintiff.

‘‘(2) ATTORNEY’S FEES.—The district court shall award a

reasonable attorney’s fee as a part of the damages for which

a carrier is found liable under this subsection. The district

court shall tax and collect that fee as a part of the costs

of the action.

‘‘§ 15905. Limitation on actions by and against pipeline carriers

‘‘(a) IN GENERAL.—A pipeline carrier providing transportation

or service subject to this part must begin a civil action to recover

charges for transportation or service provided by the carrier within

3 years after the claim accrues.

‘‘(b) OVERCHARGES.—A person must begin a civil action to

recover overcharges under section 15904(b)(1) within 3 years after

the claim accrues. If an election to file a complaint with the Board

is made under section 15904(c)(1), the complaint must be filed

within 3 years after the claim accrues.

‘‘(c) DAMAGES.—A person must file a complaint with the Board

to recover damages under section 15904(b)(2) within 2 years after

the claim accrues.

‘‘(d) EXTENSIONS.—The limitation periods under subsection (b)

are extended for 6 months from the time written notice is given

to the claimant by the carrier of disallowance of any part of the

claim specified in the notice if a written claim is given to the

carrier within those limitation periods. The limitation periods under

subsection (b) and the 2-year period under subsection (c) are

extended for 90 days from the time the carrier begins a civil

action under subsection (a) to recover charges related to the same

transportation or service, or collects (without beginning a civil action

under that subsection) the charge for that transportation or service

if that action is begun or collection is made within the appropriate

period.

‘‘(e) PAYMENT.—A person must begin a civil action to enforce

an order of the Board against a carrier for the payment of money

within one year after the date the order required the money to

be paid.

‘‘(f) GOVERNMENT TRANSPORTATION.—This section applies to

transportation for the United States Government. The time limitations under this section are extended, as related to transportation

for or on behalf of the United States Government, for 3 years

from the date of—

Claims.

Courts.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 929

‘‘(1) payment of the rate for the transportation or service

involved,

‘‘(2) subsequent refund for overpayment of that rate, or

‘‘(3) deduction made under section 3726 of title 31,

whichever is later.

‘‘(g) ACCRUAL DATE.—A claim related to a shipment of property

accrues under this section on delivery or tender of delivery by

the carrier.

‘‘§ 15906. Liability of pipeline carriers under receipts and

bills of lading

‘‘(a) GENERAL LIABILITY.—A pipeline carrier providing transportation or service subject to this part shall issue a receipt or bill

of lading for property it receives for transportation under this

part. That carrier and any other carrier that delivers the property

and is providing transportation or service subject to jurisdiction

under this part are liable to the person entitled to recover under

the receipt or bill of lading. The liability imposed under this subsection is for the actual loss or injury to the property caused

by the carrier over whose line or route the property is transported

in the United States or from a place in the United States to

a place in an adjacent foreign country when transported under

a through bill of lading. Failure to issue a receipt or bill of lading

does not affect the liability of a carrier.

‘‘(b) APPORTIONMENT.—The carrier issuing the receipt or bill

of lading under subsection (a) or delivering the property for which

the receipt or bill of lading was issued is entitled to recover from

the carrier over whose line or route the loss or injury occurred

the amount required to be paid to the owners of the property,

as evidenced by a receipt, judgment, or transcript, and the amount

of its expenses reasonably incurred in defending a civil action

brought by that person.

‘‘(c) CIVIL ACTIONS.—A civil action under this section may be

brought against a delivering carrier in a district court of the United

States or in a State court. Trial, if the action is brought in a

district court of the United States is in a judicial district, and

if in a State court, is in a State, through which the defendant

carrier operates a line or route.

‘‘(d) MINIMUM PERIOD FOR FILING CLAIMS.—A pipeline carrier

may not provide by rule, contract, or otherwise, a period of less

than 9 months for filing a claim against it under this section

and a period of less than 2 years for bringing a civil action against

it under this section. The period for bringing a civil action is

computed from the date the carrier gives a person written notice

that the carrier has disallowed any part of the claim specified

in the notice. For the purposes of this subsection—

‘‘(1) an offer of compromise shall not constitute a disallowance of any part of the claim unless the carrier, in writing,

informs the claimant that such part of the claim is disallowed

and provides reasons for such disallowance; and

‘‘(2) communications received from a carrier’s insurer shall

not constitute a disallowance of any part of the claim unless

the insurer, in writing, informs the claimant that such part

of the claim is disallowed, provides reasons for such disallowance, and informs the claimant that the insurer is acting on

behalf of the carrier.

109 STAT. 930 PUBLIC LAW 104–88—DEC. 29, 1995

‘‘CHAPTER 161—CIVIL AND CRIMINAL PENALTIES

‘‘CHAPTER 161—CIVIL AND CRIMINAL PENALTIES

‘‘Sec.

‘‘16101. General civil penalties.

‘‘16102. Recordkeeping and reporting violations.

‘‘16103. Unlawful disclosure of information.

‘‘16104. Disobedience to subpenas.

‘‘16105. General criminal penalty when specific penalty not provided.

‘‘16106. Punishment of corporation for violations committed by certain individuals.

‘‘§ 16101. General civil penalties

‘‘(a) GENERAL.—Except as otherwise provided in this section,

a pipeline carrier providing transportation subject to this part,

an officer or agent of that carrier, or a receiver, trustee, lessee,

or agent of one of them, knowingly violating this part or an order

of the Board under this part is liable to the United States for

a civil penalty of not more than $5,000 for each violation. Liability

under this subsection is incurred for each distinct violation. A

separate violation occurs for each day the violation continues. ‘‘(b) RECORDKEEPING AND REPORTING.— ‘‘(1) RECORDS.—A person required under chapter 157 to

make, prepare, preserve, or submit to the Board a record

concerning transportation subject to this part that does not

make, prepare, preserve, or submit that record as required

under that chapter, is liable to the United States for a civil

penalty of $500 for each violation. ‘‘(2) INSPECTION.—A carrier providing transportation subject to this part, and a lessor, receiver, or trustee of that

carrier, violating section 15722, is liable to the United States

for a civil penalty of $100 for each violation. ‘‘(3) REPORTS.—A carrier providing transportation subject

to the jurisdiction of the Board under this part, a lessor,

receiver, or trustee of that carrier, and an officer, agent, or

employee of one of them, required to make a report to the

Board or answer a question that does not make the report

or does not specifically, completely, and truthfully answer the

question, is liable to the United States for a civil penalty

of $100 for each violation.

‘‘(4) CONTINUED VIOLATION.—A separate violation occurs

for each day violation under this subsection continues.

‘‘(d) VENUE.—Trial in a civil action under this section is in

the judicial district in which the carrier has its principal operating

office.

‘‘§ 16102. Recordkeeping and reporting violations

‘‘A person required to make a report to the Board, or make,

prepare, or preserve a record, under chapter 157 about transportation subject to this part that knowingly and willfully—

‘‘(1) makes a false entry in the report or record,

‘‘(2) destroys, mutilates, changes, or by another means falsifies the record,

‘‘(3) does not enter business related facts and transactions

in the record,

‘‘(4) makes, prepares, or preserves the record in violation

of a regulation or order of the Board, or ‘‘(5) files a false report or record with the Board,

shall be fined under title 18 or imprisoned not more than 2 years,

or both.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 931

‘‘§ 16103. Unlawful disclosure of information

‘‘(a) GENERAL PROHIBITION.—A pipeline carrier providing transportation subject to this part, or an officer, agent, or employee

of that carrier, or another person authorized to receive information

from that carrier, that knowingly discloses to another person, except

the shipper or consignee, or a person who solicits or knowingly

receives information about the nature, kind, quantity, destination,

consignee, or routing of property tendered or delivered to that

carrier for transportation provided under this part without the

consent of the shipper or consignee, if that information may be

used to the detriment of the shipper or consignee or may disclose

improperly, to a competitor the business transactions of the shipper

or consignee, is liable to the United States for a civil penalty

of not more than $1,000.

‘‘(b) LIMITATION ON STATUTORY CONSTRUCTION.—This part does

not prevent a pipeline carrier providing transportation under this

part from giving information—

‘‘(1) in response to legal process issued under authority

of a court of the United States or a State;

‘‘(2) to an officer, employee, or agent of the United States

Government, a State, or a territory or possession of the United

States; or

‘‘(3) to another carrier or its agent to adjust mutual traffic

accounts in the ordinary course of business.

‘‘(c) BOARD EMPLOYEE.—An employee of the Board delegated

to make an inspection or examination under section 15722 who

knowingly discloses information acquired during that inspection

or examination, except as directed by the Board, a court, or a

judge of that court, shall be fined under title 18 or imprisoned

for not more than 6 months, or both.

‘‘§ 16104. Disobedience to subpenas

‘‘Whoever does not obey a subpena or requirement of the Board

to appear and testify or produce records shall be fined under title

18 or imprisoned not more than 1 year, or both.

‘‘§ 16105. General criminal penalty when specific penalty not

provided

‘‘When another criminal penalty is not provided under this

chapter, a pipeline carrier providing transportation subject to this

part, and when that carrier is a corporation, a director or officer

of the corporation, or a receiver, trustee, lessee, or person acting

for or employed by the corporation that, alone or with another

person, willfully violates this part or an order prescribed under

this part, shall be fined under title 18 or imprisoned not more

than 2 years, or both. A separate violation occurs each day a

violation of this part continues.

‘‘§ 16106. Punishment of corporation for violations committed

by certain individuals

‘‘An act or omission that would be a violation of this subtitle

if committed by a director, officer, receiver, trustee, lessee, agent,

or employee of a pipeline carrier providing transportation or service

subject to this part that is a corporation is also a violation of

this part by that corporation. The penalties of this chapter apply

to that violation. When acting in the scope of their employment,

the actions and omissions of individuals acting for or employed

109 STAT. 932 PUBLIC LAW 104–88—DEC. 29, 1995

by that carrier are considered to be the actions and omissions

of that carrier as well as that individual.’’.

(b) GAO REPORT.—Within 3 years after the effective date of

this Act, the Comptroller General shall transmit to the Committee

on Commerce, Science, and Transportation of the Senate and the

Committee on Transportation and Infrastructure of the House of

Representatives a report regarding the impact of regulations under

part C of title 49, United States Code, on the competitiveness

of pipelines and recommend whether to continue, revise, or sunset

such regulations. Congress shall take into account the findings

of this report when considering the Board’s reauthorization.

TITLE II—SURFACE TRANSPORTATION

BOARD

SEC. 201. TITLE 49 AMENDMENT.

(a) AMENDMENT.—Subtitle I of title 49, United States Code,

is amended by adding at the end the following new chapter:

‘‘CHAPTER 7—SURFACE TRANSPORTATION BOARD

‘‘SUBCHAPTER I—ESTABLISHMENT

‘‘Sec.

‘‘701. Establishment of Board.

‘‘702. Functions.

‘‘703. Administrative provisions.

‘‘704. Annual report.

‘‘705. Authorization of appropriations.

‘‘706. Reporting official action.

‘‘SUBCHAPTER II—ADMINISTRATIVE

‘‘721. Powers.

‘‘722. Board action.

‘‘723. Service of notice in Board proceedings.

‘‘724. Service of process in court proceedings.

‘‘725. Administrative support.

‘‘726. Railroad-Shipper Transportation Advisory Council.

‘‘727. Definitions.

‘‘SUBCHAPTER I—ESTABLISHMENT

‘‘§ 701. Establishment of Board

‘‘(a) ESTABLISHMENT.—There is hereby established within the

Department of Transportation the Surface Transportation Board.

‘‘(b) MEMBERSHIP.—(1) The Board shall consist of 3 members,

to be appointed by the President, by and with the advice and

consent of the Senate. Not more than 2 members may be appointed

from the same political party.

‘‘(2) At any given time, at least 2 members of the Board shall

be individuals with professional standing and demonstrated knowledge in the fields of transportation or transportation regulation,

and at least one member shall be an individual with professional

or business experience (including agriculture) in the private sector.

‘‘(3) The term of each member of the Board shall be 5 years

and shall begin when the term of the predecessor of that member

ends. An individual appointed to fill a vacancy occurring before

the expiration of the term for which the predecessor of that individual was appointed, shall be appointed for the remainder of that

President.

49 USC 15101

note.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 933

term. When the term of office of a member ends, the member

may continue to serve until a successor is appointed and qualified,

but for a period not to exceed one year. The President may remove

a member for inefficiency, neglect of duty, or malfeasance in office.

‘‘(4) On the effective date of this section, the members of the

Interstate Commerce Commission serving unexpired terms on the

date of the enactment of the ICC Termination Act of 1995 shall

become members of the Board, to serve for a period of time equal

to the remainder of the term for which they were originally

appointed to the Interstate Commerce Commission. Any member

of the Interstate Commerce Commission whose term expires on

December 31, 1995, shall become a member of the Board, subject

to paragraph (3).

‘‘(5) No individual may serve as a member of the Board for

more than 2 terms. In the case of an individual who becomes

a member of the Board pursuant to paragraph (4), or an individual

appointed to fill a vacancy occurring before the expiration of the

term for which the predecessor of that individual was appointed,

such individual may not be appointed for more than one additional

term.

‘‘(6) A member of the Board may not have a pecuniary interest

in, hold an official relation to, or own stock in or bonds of, a

carrier providing transportation by any mode and may not engage

in another business, vocation, or employment.

‘‘(7) A vacancy in the membership of the Board does not impair

the right of the remaining members to exercise all of the powers

of the Board. The Board may designate a member to act as Chairman during any period in which there is no Chairman designated

by the President.

‘‘(c) CHAIRMAN.—(1) There shall be at the head of the Board

a Chairman, who shall be designated by the President from among

the members of the Board. The Chairman shall receive compensation at the rate prescribed for level III of the Executive Schedule

under section 5314 of title 5.

‘‘(2) Subject to the general policies, decisions, findings, and

determinations of the Board, the Chairman shall be responsible

for administering the Board. The Chairman may delegate the powers granted under this paragraph to an officer, employee, or office

of the Board. The Chairman shall—

‘‘(A) appoint and supervise, other than regular and fulltime employees in the immediate offices of another member,

the officers and employees of the Board, including attorneys

to provide legal aid and service to the Board and its members,

and to represent the Board in any case in court;

‘‘(B) appoint the heads of offices with the approval of the

Board;

‘‘(C) distribute Board business among officers and employees and offices of the Board;

‘‘(D) prepare requests for appropriations for the Board and

submit those requests to the President and Congress with

the prior approval of the Board; and

‘‘(E) supervise the expenditure of funds allocated by the

Board for major programs and purposes.

‘‘§ 702. Functions

‘‘Except as otherwise provided in the ICC Termination Act

of 1995, or the amendments made thereby, the Board shall perform

President.

109 STAT. 934 PUBLIC LAW 104–88—DEC. 29, 1995

all functions that, immediately before the effective date of such

Act, were functions of the Interstate Commerce Commission or

were performed by any officer or employee of the Interstate Commerce Commission in the capacity as such officer or employee.

‘‘§ 703. Administrative provisions

‘‘(a) EXECUTIVE REORGANIZATION.—Chapter 9 of title 5, United

States Code, shall apply to the Board in the same manner as

it does to an independent regulatory agency, and the Board shall

be an establishment of the United States Government.

‘‘(b) OPEN MEETINGS.—For purposes of section 552b of title

5, United States Code, the Board shall be deemed to be an agency.

‘‘(c) INDEPENDENCE.—In the performance of their functions, the

members, employees, and other personnel of the Board shall not

be responsible to or subject to the supervision or direction of any

officer, employee, or agent of any other part of the Department

of Transportation.

‘‘(d) REPRESENTATION BY ATTORNEYS.—Attorneys designated by

the Chairman of the Board may appear for, and represent the

Board in, any civil action brought in connection with any function

carried out by the Board pursuant to this chapter or subtitle IV

or as otherwise authorized by law.

‘‘(e) ADMISSION TO PRACTICE.—Subject to section 500 of title

5, the Board may regulate the admission of individuals to practice

before it and may impose a reasonable admission fee.

‘‘(f) BUDGET REQUESTS.—In each annual request for appropriations by the President, the Secretary of Transportation shall identify

the portion thereof intended for the support of the Board and

include a statement by the Board—

‘‘(1) showing the amount requested by the Board in its

budgetary presentation to the Secretary and the Office of

Management and Budget; and

‘‘(2) an assessment of the budgetary needs of the Board.

‘‘(g) DIRECT TRANSMITTAL TO CONGRESS.—The Board shall

transmit to Congress copies of budget estimates, requests, and

information (including personnel needs), legislative recommendations, prepared testimony for congressional hearings, and comments

on legislation at the same time they are sent to the Secretary

of Transportation. An officer of an agency may not impose conditions

on or impair communications by the Board with Congress, or a

committee or Member of Congress, about the information.

‘‘§ 704. Annual report

‘‘The Board shall annually transmit to the Congress a report

on its activities.

‘‘§ 705. Authorization of appropriations

‘‘There are authorized to be appropriated for the activities

of the Board—

‘‘(1) $8,421,000 for fiscal year 1996;

‘‘(2) $12,000,000 for fiscal year 1997; and

‘‘(3) $12,000,000 for fiscal year 1998.

‘‘§ 706. Reporting official action

‘‘(a) REPORTS ON PROCEEDINGS.—The Board shall make a written report of each proceeding conducted on complaint or on its

own initiative and furnish a copy to each party to that proceeding.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 935

The report shall include the findings, conclusions, and the order

of the Board and, if damages are awarded, the findings of fact

supporting the award. The Board may have its reports published

for public use. A published report of the Board is competent evidence

of its contents.

‘‘(b) SPECIAL RULES FOR MATTERS RELATED TO RAIL CARRIERS.—

(1) When action of the Board in a matter related to a rail carrier

is taken by the Board, an individual member of the Board, or

another individual or group of individuals designated to take official

action for the Board, the written statement of that action (including

a report, order, decision and order, vote, notice, letter, policy statement, or regulation) shall indicate—

‘‘(A) the official designation of the individual or group taking the action;

‘‘(B) the name of each individual taking, or participating

in taking, the action; and

‘‘(C) the vote or position of each participating individual.

‘‘(2) If an individual member of a group taking an official

action referred to in paragraph (1) does not participate in it, the

written statement of the action shall indicate that the member

did not participate. An individual participating in taking an official

action is entitled to express the views of that individual as part

of the written statement of the action. In addition to any publication

of the written statement, it shall be made available to the public

under section 552(a) of title 5.

‘‘SUBCHAPTER II—ADMINISTRATIVE

‘‘§ 721. Powers

‘‘(a) IN GENERAL.—The Board shall carry out this chapter and

subtitle IV. Enumeration of a power of the Board in this chapter

or subtitle IV does not exclude another power the Board may

have in carrying out this chapter or subtitle IV. The Board may

prescribe regulations in carrying out this chapter and subtitle IV.

‘‘(b) INQUIRIES, REPORTS, AND ORDERS.—The Board may—

‘‘(1) inquire into and report on the management of the

business of carriers providing transportation and services subject to subtitle IV;

‘‘(2) inquire into and report on the management of the

business of a person controlling, controlled by, or under common

control with those carriers to the extent that the business

of that person is related to the management of the business

of that carrier;

‘‘(3) obtain from those carriers and persons information

the Board decides is necessary to carry out subtitle IV; and

‘‘(4) when necessary to prevent irreparable harm, issue

an appropriate order without regard to subchapter II of chapter

5 of title 5.

‘‘(c) SUBPOENA WITNESSES.—(1) The Board may subpoena witnesses and records related to a proceeding of the Board from any

place in the United States, to the designated place of the proceeding.

If a witness disobeys a subpoena, the Board, or a party to a

proceeding before the Board, may petition a court of the United

States to enforce that subpoena.

‘‘(2) The district courts of the United States have jurisdiction

to enforce a subpoena issued under this section. Trial is in the

Courts.

109 STAT. 936 PUBLIC LAW 104–88—DEC. 29, 1995

district in which the proceeding is conducted. The court may punish

a refusal to obey a subpoena as a contempt of court. ‘‘(d) DEPOSITIONS.—(1) In a proceeding, the Board may take

the testimony of a witness by deposition and may order the witness

to produce records. A party to a proceeding pending before the

Board may take the testimony of a witness by deposition and

may require the witness to produce records at any time after

a proceeding is at issue on petition and answer.

‘‘(2) If a witness fails to be deposed or to produce records

under paragraph (1), the Board may subpoena the witness to take

a deposition, produce the records, or both.

‘‘(3) A deposition may be taken before a judge of a court of

the United States, a United States magistrate judge, a clerk of

a district court, or a chancellor, justice, or judge of a supreme

or superior court, mayor or chief magistrate of a city, judge of

a county court, or court of common pleas of any State, or a notary

public who is not counsel or attorney of a party or interested

in the proceeding.

‘‘(4) Before taking a deposition, reasonable notice must be given

in writing by the party or the attorney of that party proposing

to take a deposition to the opposing party or the attorney of record

of that party, whoever is nearest. The notice shall state the name

of the witness and the time and place of taking the deposition.

‘‘(5) The testimony of a person deposed under this subsection

shall be taken under oath. The person taking the deposition shall

prepare, or cause to be prepared, a transcript of the testimony

taken. The transcript shall be subscribed by the deponent.

‘‘(6) The testimony of a witness who is in a foreign country

may be taken by deposition before an officer or person designated

by the Board or agreed on by the parties by written stipulation

filed with the Board. A deposition shall be filed with the Board

promptly.

‘‘(e) WITNESS FEES.—Each witness summoned before the Board

or whose deposition is taken under this section and the individual

taking the deposition are entitled to the same fees and mileage

paid for those services in the courts of the United States.

‘‘§ 722. Board action

‘‘(a) EFFECTIVE DATE OF ACTIONS.—Unless otherwise provided

in subtitle IV, the Board may determine, within a reasonable time,

when its actions, other than an action ordering the payment of

money, take effect.

‘‘(b) TERMINATING AND CHANGING ACTIONS.—An action of the

Board remains in effect under its own terms or until superseded.

The Board may change, suspend, or set aside any such action

on notice. Notice may be given in a manner determined by the

Board. A court of competent jurisdiction may suspend or set aside

any such action.

‘‘(c) RECONSIDERING ACTIONS.—The Board may, at any time

on its own initiative because of material error, new evidence, or

substantially changed circumstances—

‘‘(1) reopen a proceeding;

‘‘(2) grant rehearing, reargument, or reconsideration of an

action of the Board; or

‘‘(3) change an action of the Board.

An interested party may petition to reopen and reconsider an action

of the Board under this subsection under regulations of the Board.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 937

‘‘(d) FINALITY OF ACTIONS.—Notwithstanding subtitle IV, an

action of the Board under this section is final on the date on

which it is served, and a civil action to enforce, enjoin, suspend,

or set aside the action may be filed after that date.

‘‘§ 723. Service of notice in Board proceedings

‘‘(a) DESIGNATION OF AGENT.—A carrier providing transportation subject to the jurisdiction of the Board under subtitle IV

shall designate an agent in the District of Columbia, on whom

service of notices in a proceeding before, and of actions of, the

Board may be made.

‘‘(b) FILING AND CHANGING DESIGNATIONS.—A designation

under subsection (a) shall be in writing and filed with the Board.

The designation may be changed at any time in the same manner

as originally made.

‘‘(c) SERVICE OF NOTICE.—Except as otherwise provided, notices

of the Board shall be served on its designated agent at the office

or usual place of residence in the District of Columbia of that

agent. A notice of action of the Board shall be served immediately

on the agent or in another manner provided by law. If that carrier

does not have a designated agent, service may be made by posting

the notice in the office of the Board.

‘‘(d) SPECIAL RULE FOR RAIL CARRIERS.—In a proceeding involving the lawfulness of classifications, rates, or practices of a rail

carrier that has not designated an agent under this section, service

of notice of the Board on an attorney in fact for the carrier constitutes service of notice on the carrier.

‘‘§ 724. Service of process in court proceedings

‘‘(a) DESIGNATION OF AGENT.—A carrier providing transportation subject to the jurisdiction of the Board under subtitle IV

shall designate an agent in the District of Columbia on whom

service of process in an action before a district court may be made.

Except as otherwise provided, process in an action before a district

court shall be served on the designated agent of that carrier at

the office or usual place of residence in the District of Columbia

of that agent. If the carrier does not have a designated agent,

service may be made by posting the notice in the office of the

Board.

‘‘(b) CHANGING DESIGNATION.—A designation under this section

may be changed at any time in the same manner as originally

made.

‘‘§ 725. Administrative support

‘‘The Secretary of Transportation shall provide administrative

support for the Board.

‘‘§ 726. Railroad-Shipper Transportation Advisory Council

‘‘(a) ESTABLISHMENT; MEMBERSHIP.—There is established the

Railroad-Shipper Transportation Advisory Council (in this section

referred to as the ‘Council’) to be composed of 19 members, of

which 15 members shall be appointed by the Chairman of the

Board, after recommendation from rail carriers and shippers, within

60 days after the date of enactment of the ICC Termination Act

of 1995. The members of the Council shall be appointed as follows:

‘‘(1) The members of the Council shall be appointed from

among citizens of the United States who are not regular fullVerDate 05-JAN-96 03:32 Jan 24, 1996 Jkt 029139 PO 00088 Frm 00135 Fmt 6580 Sfmt 6581 PUBL88.104 apps06
109 STAT. 938 PUBLIC LAW 104–88—DEC. 29, 1995

time employees of the United States and shall be selected

for appointment so as to provide as nearly as practicable a

broad representation of the various segments of the railroad

and rail shipper industries.

‘‘(2) Nine of the members shall be appointed from senior

executive officers of organizations engaged in the railroad and

rail shipping industries, which 9 members shall be the voting

members of the Council. Council action and Council positions

shall be determined by a majority vote of the members present.

A majority of such voting members shall constitute a quorum.

Of such 9 voting members—

‘‘(A) at least 4 shall be representative of small shippers

(as determined by the Chairman); and

‘‘(B) at least 4 shall be representative of Class II or

III railroads.

‘‘(3) The remaining 6 members of the Council shall serve

in a nonvoting advisory capacity only, but shall be entitled

to participate in Council deliberations. Of the remaining members—

‘‘(A) 3 shall be representative of Class I railroads;

and

‘‘(B) 3 shall be representative of large shipper organizations (as determined by the Chairman).

‘‘(4) The Secretary of Transportation and the members

of the Board shall serve as ex officio, nonvoting members of

the Council. The Council shall not be subject to the Federal

Advisory Committee Act. A list of the members appointed to

the Council shall be forwarded to the Chairmen and ranking

members of the Committee on Commerce, Science, and

Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.

‘‘(5) Each ex officio member of the Council may designate

an alternate, who shall serve as a member of the Council

whenever the ex officio member is unable to attend a meeting

of the Council. Any such designated alternate shall be selected

from individuals who exercise significant decision-making

authority in the Federal agency involved.

‘‘(b) TERM OF OFFICE.—The members of the Council shall be

appointed for a term of office of 3 years, except that of the members

first appointed—

‘‘(1) 5 members shall be appointed for terms of 1 year;

and

‘‘(2) 5 members shall be appointed for terms of 2 years,

as designated by the Chairman at the time of appointment. Any

member appointed to fill a vacancy occurring before the expiration

of the term for which the member’s predecessor was appointed

shall be appointed only for the remainder of such term. A member

may serve after the expiration of his term until his successor

has taken office. Vacancies on the Council shall be filled in the

same manner in which the original appointments were made. No

member of the Council shall be eligible to serve in excess of two

consecutive terms.

‘‘(c) ELECTION AND DUTIES OF OFFICERS.—The Council Chairman and Vice Chairman and other appropriate officers of the Council shall be elected by and from the voting members of the Council.

The Council Chairman shall serve as the Council’s executive officer

and shall direct the administration of the Council, assign officer

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 939

and committee duties, and shall be responsible for issuing and

communicating the reports, policy positions and statements of the

Council. In the event that the Council Chairman is unable to

serve, the Vice Chairman shall act as Council Chairman.

‘‘(d) EXPENSES.—(1) The members of the Council shall receive

no compensation for their services as such, but upon request by

the Council Chairman, based on a showing of significant economic

burden, the Secretary of Transportation or the Chairman of the

Board, to the extent provided in advance in appropriation Acts,

may provide reasonable and necessary travel expenses for such

individual Council members from Department or Board funding

sources in order to foster balanced representation on the Council.

‘‘(2) Upon request by the Council Chairman, the Secretary

or Chairman of the Board, to the extent provided in advance in

appropriations Acts, may pay the reasonable and necessary

expenses incurred by the Council in connection with the coordination of Council activities, announcement and reporting of meetings,

and preparation of such Council documents as are required or

permitted by this section.

‘‘(3) The Council may solicit and use private funding for its

activities, subject to this subsection.

‘‘(4) Prior to making any Federal funding requests, the Council

Chairman shall undertake best efforts to fund such activities privately unless the Council Chairman determines that such private

funding would create a conflict of interest, or the appearance

thereof, or is otherwise impractical. The Council Chairman shall

not request funding from any Federal agency without providing

written justification as to why private funding would create any

such conflict or appearance, or is otherwise impractical.

‘‘(5) To enable the Council to carry out its functions—

‘‘(A) the Council Chairman may request directly from any

Federal agency such personnel, information, services, or facilities, on a compensated or uncompensated basis, as the Council

Chairman determines necessary to carry out the functions of

the Council;

‘‘(B) each Federal agency may, in its discretion, furnish

the Council with such information, services, and facilities as

the Council Chairman may request to the extent permitted

by law and within the limits of available funds; and

‘‘(C) each Federal agency may, in its discretion, detail to

temporary duty with the Council, such personnel as the Council

Chairman may request for carrying out the functions of the

Council, each such detail to be without loss of seniority, pay,

or other employee status.

‘‘(e) MEETINGS.—The Council shall meet at least semi-annually

and shall hold other meetings at the call of the Council Chairman.

Appropriate Federal facilities, where available, may be used for

such meetings. Whenever the Council, or a committee of the Council,

considers matters that affect the jurisdictional interests of Federal

agencies that are not represented on the Council, the Council Chairman may invite the heads of such agencies, or their designees,

to participate in the deliberations of the Council.

‘‘(f) FUNCTIONS AND DUTIES; ANNUAL REPORT.—(1) The Council

shall advise the Secretary, the Chairman, the Committee on Commerce, Science, and Transportation of the Senate, and the Committee on Transportation and Infrastructure of the House of

Representatives with respect to rail transportation policy issues

109 STAT. 940 PUBLIC LAW 104–88—DEC. 29, 1995

it considers significant, with particular attention to issues of importance to small shippers and small railroads, including car supply,

rates, competition, and effective procedures for addressing legitimate shipper and other claims.

‘‘(2) To the extent the Council addresses specific grain car

issues, it shall coordinate such activities with the National Grain

Car Council. The Secretary and Chairman shall cooperate with

the Council to provide research, technical and other reasonable

support in developing any reports and policy statements required

or authorized by this subsection.

‘‘(3) The Council shall endeavor to develop within the private

sector mechanisms to prevent, or identify and effectively address,

obstacles to the most effective and efficient transportation system

practicable.

‘‘(4) The Council shall prepare an annual report concerning

its activities and the results of Council efforts to resolve industry

issues, and propose whatever regulatory or legislative relief it

considers appropriate. The Council shall include in the annual

report such recommendations as it considers appropriate with

respect to the performance of the Secretary and Chairman under

this chapter, and with respect to the operation and effectiveness

of meetings and industry developments relating to the Council’s

efforts, and such other information as it considers appropriate.

Such annual reports shall be reviewed by the Secretary and Chairman, and shall include the Secretary’s and Chairman’s views or

comments relating to—

‘‘(A) the accuracy of information therein;

‘‘(B) Council efforts and reasonableness of Council positions

and actions; and

‘‘(C) any other aspects of the Council’s work as they may

consider appropriate.

The Council may prepare other reports or develop policy statements

as the Council considers appropriate. An annual report shall be

submitted for each fiscal year and shall be submitted to the Secretary and Chairman within 90 days after the end of the fiscal

year. Other such reports and statements may be submitted as

the Council considers appropriate.

‘‘§ 727. Definitions

‘‘All terms used in this chapter that are defined in subtitle

IV shall have the meaning given those terms in that subtitle.’’.

(b) TABLE OF CHAPTERS AMENDMENT.—The table of chapters

of subtitle I of title 49, United States Code, is amended by adding

at the end the following new item:

‘‘7. SURFACE TRANSPORTATION BOARD ................................................. 701’’.

SEC. 202. REORGANIZATION.

The Chairman of the Surface Transportation Board (in this

Act referred to as the ‘‘Board’’) may allocate or reallocate any

function of the Board, consistent with this title and subchapter

I of chapter 7, as amended by section 201 of this title, among

the members or employees of the Board, and may establish, consolidate, alter, or discontinue in the Board any organizational entities

that were entities of the Interstate Commerce Commission, as the

Chairman considers necessary or appropriate.

49 USC 701 note.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 941

SEC. 203. TRANSFER OF ASSETS AND PERSONNEL.

(a) TO BOARD.—Except as otherwise provided in this Act and

the amendments made by this Act, those personnel, property, and

records employed, used, held, available, or to be made available

in connection with a function transferred to the Board by this

Act shall be transferred to the Board for use in connection with

the functions transferred, and unexpended balances of appropriations, allocations, and other funds of the Interstate Commerce

Commission shall also be transferred to the Board. Such unexpended balances, allocations, and other funds, together with any

unobligated balances from user fees collected by the Commission

during fiscal year 1996, may be used to pay for the closedown

of the Commission and severance costs for Commission personnel,

regardless of whether those costs are incurred at the Commission

or at the Board.

(b) TO SECRETARY.—Except as otherwise provided in this Act

and the amendments made by this Act, those personnel, property,

and records employed, used, held, available, or to be made available

in connection with a function transferred to the Secretary by this

Act shall be transferred to the Secretary for use in connection

with the functions transferred.

(c) SEPARATED EMPLOYEES.—Notwithstanding all other laws

and regulations, the Department of Transportation shall place all

Interstate Commerce Commission employees separated from the

Commission as a result of this Act on the DOT reemployment

priority list (competitive service) or the priority employment list

(excepted service).

SEC. 204. SAVING PROVISIONS.

(a) LEGAL DOCUMENTS.—All orders, determinations, rules, regulations, permits, grants, loans, contracts, agreements, certificates,

licenses, and privileges—

(1) that have been issued, made, granted, or allowed to

become effective by the Interstate Commerce Commission, any

officer or employee of the Interstate Commerce Commission,

or any other Government official, or by a court of competent

jurisdiction, in the performance of any function that is transferred by this Act or the amendments made by this Act; and

(2) that are in effect on the effective date of such transfer

(or become effective after such date pursuant to their terms

as in effect on such effective date),

shall continue in effect according to their terms until modified,

terminated, superseded, set aside, or revoked in accordance with

law by the Board, any other authorized official, a court of competent

jurisdiction, or operation of law. The Board shall promptly rescind

all regulations established by the Interstate Commerce Commission

that are based on provisions of law repealed and not substantively

reenacted by this Act.

(b) PROCEEDINGS.—(1) The provisions of this Act shall not affect

any proceedings or any application for any license pending before

the Interstate Commerce Commission at the time this Act takes

effect, insofar as those functions are retained and transferred by

this Act; but such proceedings and applications, to the extent that

they relate to functions so transferred, shall be continued. Orders

shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as

if this Act had not been enacted; and orders issued in any such

49 USC 701 note.

49 USC 701 note.

109 STAT. 942 PUBLIC LAW 104–88—DEC. 29, 1995

proceedings shall continue in effect until modified, terminated,

superseded, or revoked by a duly authorized official, by a court

of competent jurisdiction, or by operation of law. Nothing in this

subsection shall be deemed to prohibit the discontinuance or modification of any such proceeding under the same terms and conditions

and to the same extent that such proceeding could have been

discontinued or modified if this Act had not been enacted.

(2) The Board and the Secretary are authorized to provide

for the orderly transfer of pending proceedings from the Interstate

Commerce Commission.

(3)(A) Except as provided in subparagraphs (B) and (C), in

the case of a proceeding under a provision of law repeal, and

not reenacted, by this Act such proceeding shall be terminated.

(B) Any proceeding involving a pipeline carrier under subtitle

IV of title 49, United States Code, shall be continued to be heard

by the Board under such subtitle, as in effect on the day before

the effective date of this section, until completion of such proceeding.

(C) Any proceeding involving the merger of a motor carrier

property under subtitle IV of title 49, United States Code, shall

continue to be heard by the Board under such subtitle, as in

effect on the day before the effective date of this section, until

completion of such proceeding.

(4) Any proceeding with respect to any tariff, rate charge,

classification, rule, regulation, or service that was pending under

the Intercoastal Shipping Act, 1933 or the Shipping Act, 1916

before the Federal Maritime Commission on November 1, 1995,

shall continue to be heard until completion or issuance of a final

order thereon under all applicable laws in effect as of November

1, 1995.

(c) SUITS.—(1) This Act shall not affect suits commenced before

the date of the enactment of this Act, except as provided in paragraphs (2) and (3). In all such suits, proceeding shall be had,

appeals taken, and judgments rendered in the same manner and

with the same effect as if this Act had not been enacted.

(2) Any suit by or against the Interstate Commerce Commission

begun before the effective date of this Act shall be continued,

insofar as it involves a function retained and transferred under

this Act, with the Board (to the extent the suit involves functions

transferred to the Board under this Act) or the Secretary (to the

extent the suit involves functions transferred to the Secretary under

this Act) substituted for the Commission.

(3) If the court in a suit described in paragraph (1) remands

a case to the Board or the Secretary, subsequent proceedings related

to such case shall proceed in accordance with applicable law and

regulations as in effect at the time of such subsequent proceedings.

(d) CONTINUANCE OF ACTIONS AGAINST OFFICERS.—No suit,

action, or other proceeding commenced by or against any officer

in his official capacity as an officer of the Interstate Commerce

Commission shall abate by reason of the enactment of this Act.

No cause of action by or against the Interstate Commerce Commission, or by or against any officer thereof in his official capacity,

shall abate by reason of enactment of this Act.

(e) EXERCISE OF AUTHORITIES.—Except as otherwise provided

by law, an officer or employee of the Board may, for purposes

of performing a function transferred by this Act or the amendments

made by this Act, exercise all authorities under any other provision

of law that were available with respect to the performance of

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 943

that function to the official responsible for the performance of

the function immediately before the effective date of the transfer

of the function under this Act or the amendments made by this

Act.

SEC. 205. REFERENCES.

Any reference to the Interstate Commerce Commission in any

other Federal law, Executive order, rule, regulation, or delegation

of authority, or any document of or pertaining to the Interstate

Commerce Commission or an officer or employee of the Interstate

Commerce Commission, is deemed to refer to the Board, a member

or employee of the Board, or the Secretary, as appropriate.

TITLE III—CONFORMING AMENDMENTS

Subtitle A—Amendments to United States

Code

SEC. 301. TITLE 5 AMENDMENTS.

(a) COMPENSATION FOR POSITIONS AT LEVEL III.—Section 5314

of title 5, United States Code, is amended by striking ‘‘Chairman,

Interstate Commerce Commission.’’ and inserting in lieu thereof

‘‘Chairman, Surface Transportation Board.’’.

(b) COMPENSATION FOR POSITIONS AT LEVEL IV.—Section 5315

of title 5, United States Code, is amended by striking ‘‘Members,

Interstate Commerce Commission.’’ and inserting in lieu thereof

‘‘Members, Surface Transportation Board.’’.

SEC. 302. TITLE 11 AMENDMENTS.

Subchapter IV of chapter 11 of title 11, United States Code,

is amended—

(1) by striking section 1162 and inserting in lieu thereof

the following:

‘‘§ 1162. Definition

‘‘In this subchapter, ‘Board’ means the ‘Surface Transportation

Board’.’’; and

(2) by striking ‘‘Commission’’ each place it appears and

inserting in lieu thereof ‘‘Board’’.

SEC. 303. TITLE 18 AMENDMENTS.

Title 18, United States Code, is amended—

(1) in section 921(a)(27) by striking ‘‘10102’’ and inserting

in lieu thereof ‘‘13102’’; and

(2) in section 6001(1) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’.

SEC. 304. INTERNAL REVENUE CODE OF 1986 AMENDMENTS.

(a) SECTION 168.—Section 168(g)(4)(B)(i) of the Internal Revenue Code of 1986 is amended by striking ‘‘domestic railroad corporation providing transportation subject to subchapter I of chapter

105’’ and inserting in lieu thereof ‘‘rail carrier subject to part

A of subtitle IV’’.

(b) SECTION 281.—Subparagraphs (A) and (B) of section

281(d)(1) of such Code are each amended by striking ‘‘domestic 26 USC 281.

26 USC 168.

11 USC 1164,

1170, 1172.

49 USC 701 note.

109 STAT. 944 PUBLIC LAW 104–88—DEC. 29, 1995

railroad corporations providing transportation subject to subchapter

I of chapter 105’’ and inserting in lieu thereof ‘‘rail carriers subject

to part A of subtitle IV’’.

(c) SECTION 354.—Section 354(c) of such Code is amended by

striking ‘‘or approved by the Interstate Commerce Commission

under subchapter IV of chapter 113 of title 49,’’.

(d) SECTION 3231.—Section 3231 of such Code is amended—

(1) in subsection (a) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’; and

(2) in subsection (g) by striking ‘‘an express carrier, sleeping

car carrier, or rail carrier providing transportation subject to

subchapter I of chapter 105’’ and inserting in lieu thereof ‘‘a

rail carrier subject to part A of subtitle IV’’.

(e) SECTION 7701.—Section 7701(a) of such Code is amended—

(1) in paragraph (33)(B) by striking ‘‘Federal Power

Commission’’ and inserting in lieu thereof ‘‘Federal Energy

Regulatory Commission’’;

(2) in paragraph (33)(C)(i) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’;

(3) in paragraph (33)(C)(ii) by striking ‘‘Interstate Commerce Commission’’ and inserting in lieu thereof ‘‘Federal

Energy Regulatory Commission’’;

(4) in paragraph (33)(F) by striking ‘‘common carrier’’ and

all that follows through ‘‘1933’’ and inserting in lieu thereof

‘‘a water carrier subject to jurisdiction under subchapter II

of chapter 135 of title 49’’;

(5) in paragraph (33)(G) by striking ‘‘railroad corporation

subject to subchapter I of chapter 105’’ and inserting in lieu

thereof ‘‘rail carrier subject to part A of subtitle IV’’; and

(6) in paragraph (33)(H) by striking ‘‘subchapter I of chapter 105’’ and inserting in lieu thereof ‘‘part A of subtitle IV’’.

SEC. 305. TITLE 28 AMENDMENTS.

(a) CHAPTER 85.—Chapter 85 of title 28, United States Code,

is amended—

(1) in the section heading to section 1336 by striking ‘‘Interstate Commerce Commission’s’’ and inserting in lieu thereof

‘‘Surface Transportation Board’s’’;

(2) in section 1336 by striking ‘‘Interstate Commerce

Commission’’ each place it appears and inserting in lieu thereof

‘‘Surface Transportation Board’’;

(3) in section 1337 by striking ‘‘11707’’ each place it appears

and inserting in lieu thereof ‘‘11706 or 14706’’; and

(4) in the item relating to section 1336 of the table of

sections by striking ‘‘Interstate Commerce Commission’s’’ and

inserting in lieu thereof ‘‘Surface Transportation Board’s’’.

(b) SECTION 1445.—Section 1445(b) of such title is amended—

(1) by striking ‘‘common’’; and

(2) by striking ‘‘11707’’ and inserting in lieu thereof ‘‘11706

or 14706’’.

(c) CHAPTER 157 AMENDMENTS.—

(1) IN GENERAL.—Chapter 157 of such title is amended—

(A) by striking ‘‘INTERSTATE COMMERCE

COMMISSION’’ in the chapter heading and inserting in

lieu thereof ‘‘SURFACE TRANSPORTATION BOARD’’;

26 USC 7701.

26 USC 3231.

26 USC 354.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 945

(B) by striking ‘‘Commission’s’’ in the section heading to section 2321 and inserting in lieu thereof ‘‘Board’s’’;

(C) by striking ‘‘Interstate Commerce Commission’’ each place it appears and inserting in lieu thereof ‘‘Surface

Transportation Board’’; (D) in section 2323 by striking ‘‘Commission’’ the sec- ond and third places it appears and inserting in lieu thereof

‘‘Board’’; and

(E) in the item relating to section 2321 of the table of sections by striking ‘‘Commission’s’’ and inserting in

lieu thereof ‘‘Board’s’’.

(2) TABLE OF CHAPTERS.—The item relating to chapter 157 in the table of chapters of such title is amended by striking

‘‘Interstate Commerce Commission’’ and inserting in lieu

thereof ‘‘Surface Transportation Board’’.

(d) CHAPTER 158 AMENDMENTS.—Chapter 158 of such title is

amended—

(1) in section 2341(3)(A) by striking ‘‘the Interstate Commerce Commission,’’;

(2) by striking ‘‘and’’ at the end of section 2341(3)(C);

(3) by striking the period at the end of section 2341(3)(D) and inserting in lieu thereof ‘‘; and’’; (4) by inserting at the end of section 2341(3) the following new subparagraph: ‘‘(E) the Board, when the order was entered by the Surface Transportation Board.’’;

(5) in section 2342(3)(A) by striking ‘‘41, or 43’’ and insert- ing in lieu thereof ‘‘or 41’’; (6) by inserting ‘‘or pursuant to part B or (C) of subtitle IV of title 49’’ before the semicolon at the end of section

2342(3)(A);

(7) in section 2342(3)(B)—

(A) by striking clauses (i) and (iii); and

(B) by redesignating clauses (ii), (iv), and (v) as clauses (i), (ii), and (iii), respectively; and

(8) by striking paragraph (5) of section 2342 and inserting in lieu thereof the following: ‘‘(5) all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this

title;’’.

SEC. 306. TITLE 31 AMENDMENTS.

Section 3726(b) of title 31, United States Code, is amended—

(1) in paragraph (1) by striking ‘‘on file with the Interstate Commerce Commission,’’ and inserting in lieu thereof ‘‘under

title 49 or on file with’’;

(2) in paragraph (1) by striking ‘‘or’’ at the end;

(3) by redesignating paragraph (2) as paragraph (3);

(4) by inserting after paragraph (1) the following new paragraph:

‘‘(2) a lawfully quoted rate subject to the jurisdiction of

the Surface Transportation Board; or’’; and

(5) in paragraph (3), as redesignated by paragraph (4)

of this section, by striking ‘‘sections 10721–10724’’ and inserting

in lieu thereof ‘‘sections 10721, 13712, and 15504’’.

SEC. 307. TITLE 39 AMENDMENTS.

Title 39, United States Code, is amended—

28 USC 2321,

2323.

109 STAT. 946 PUBLIC LAW 104–88—DEC. 29, 1995

(1) in section 5005(a)(4) by striking ‘‘5201(7)’’ and inserting

in lieu thereof ‘‘5201(6)’’;

(2) in section 5005(b)(3) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’; and

(3) by striking paragraph (1) of section 5201 and inserting

in lieu thereof the following:

‘‘(1) ‘Board’ means the Surface Transportation Board;’’;

(4) in section 5201(2) by striking ‘‘a motor common carrier,

or express carrier’’ and inserting in lieu thereof ‘‘or a motor

carrier’’;

(5) in section 5201(4)—

(A) by striking ‘‘common’’; and

(B) by striking ‘‘permit’’ and inserting in lieu thereof

‘‘registration’’;

(6) in section 5201(5)—

(A) by striking ‘‘common’’ each place it appears;

(B) by striking ‘‘10102(14)’’ and inserting in lieu thereof

‘‘13102(12)’’; and

(C) by striking ‘‘certificate of public convenience and

necessity’’ and inserting in lieu thereof ‘‘registration’’;

(7) by striking paragraph (6) of section 5201;

(8) in section 5201 by redesignating paragraphs (7) and

(8) as paragraphs (6) and (7), respectively;

(9) in section 5201(6), as so redesignated, by striking ‘‘certificate of public convenience and necessity’’ and inserting in

lieu thereof ‘‘certificate or registration’’;

(10) in section 5203(f) by striking ‘‘motor common carrier’’

each place it appears and inserting in lieu thereof ‘‘motor

carrier’’;

(11) in the section heading to section 5207 by striking

‘‘Interstate Commerce Commission’’ and inserting in lieu

thereof ‘‘Surface Transportation Board’’;

(12) in sections 5208(a) and 5215(a) by striking ‘‘Commission’s’’ and inserting in lieu thereof ‘‘Board’s’’;

(13) in section 5215(a) by striking ‘‘motor common carrier’’

and inserting in lieu thereof ‘‘motor carrier’’;

(14) in chapter 52 by striking ‘‘Commission’’ each place

it appears and inserting in lieu thereof ‘‘Board’’; and

(15) in the item relating to section 5207 of the table of

sections of chapter 52, by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’.

SEC. 308. TITLE 49 AMENDMENTS.

(a) SECTION 302.—Section 302(a) of title 49, United States

Code, is amended by striking ‘‘10101a’’ and inserting in lieu thereof

‘‘13101’’.

(b) SECTION 333.—Section 333 of such title is amended—

(1) in subsection (c)(2) by striking ‘‘11910(a)(1)’’ and inserting in lieu thereof ‘‘11904’’; and

(2) in subsection (e)—

(A) by striking ‘‘11343(a)’’ and inserting in lieu thereof

‘‘11323(a)’’; and

(B) by striking ‘‘11344(b)’’ and inserting in lieu thereof

‘‘11324(b)’’.

39 USC 5201,

5203, 5207–5209,

5212, 5215.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 947

(c) CHAPTER 5.—Subchapter I of chapter 5 of such title is

amended—

(1) by striking ‘‘DUTIES’’ the first place it appears in

the subchapter heading; and

(2) in section 501(a)(1) by striking ‘‘section 10102’’ and

inserting in lieu thereof ‘‘sections 10102 and 13102’’.

(d) SECTION 5102.—Section 5102(7) of such title is amended—

(1) by striking ‘‘common’’;

(2) by striking ‘‘motor contract carrier,’’; and

(3) by striking ‘‘10102’’ and inserting in lieu thereof ‘‘13102’’.

(e) SECTION 5333.—Section 5333(b)(3) of such title is amended

by striking ‘‘11347’’ and inserting in lieu thereof ‘‘11326’’.

(f) CHAPTER 221.—Chapter 221 of such title is amended—

(1) in section 22101(a) by striking ‘‘subchapter I of chapter

105’’ and inserting in lieu thereof ‘‘part A of subtitle IV’’;

(2) in section 22101(a)(1) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’;

(3) in section 22103(b)(1) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’;

(4) in section 22107(c)—

(A) by striking ‘‘Interstate Commerce Commission’’ and

inserting in lieu thereof ‘‘Surface Transportation Board’’;

and

(B) by striking ‘‘Commission’’ the second place it

appears and inserting in lieu thereof ‘‘Board’’; and

(5) in section 22107(d) by striking ‘‘subchapter I of chapter

105’’ and inserting in lieu thereof ‘‘part A of subtitle IV’’.

(g) SECTION 24301.—Section 24301 of such title is amended—

(1) in subsection (c)—

(A) by striking ‘‘Subtitle IV’’ in paragraph (1) and

inserting in lieu thereof ‘‘Part A of subtitle IV’’;

(B) by striking ‘‘sections 10721–10724 of this title

apply’’ in paragraph (2)(A) and inserting in lieu thereof

‘‘section 10721 of this title applies’’; and

(C) by striking ‘‘Interstate Commerce Commission

under any provision of subtitle IV of this title applicable

to a carrier subject to subchapter I of chapter 105’’ in

paragraph (2)(B) and inserting in lieu thereof ‘‘Surface

Transportation Board under part A of subtitle IV’’; and

(2) in subsection (d) by striking ‘‘common carrier subject

to subchapter I of chapter 105’’ and inserting in lieu thereof

‘‘rail carrier subject to part A of subtitle IV’’.

(h) SECTION 24501.—Section 24501(b) of such title is amended

by striking ‘‘subchapter I of chapter 105’’ and inserting in lieu

thereof ‘‘part A of subtitle IV’’.

(i) SECTION 24705.—Section 24705 of such title is amended

by striking subsection (d).

(j) SECTIONS 30103 AND 30166.—Sections 30103(a) and 30106(d)

of such title are each amended by striking ‘‘subchapter II of chapter

105’’ each place it appears and inserting in lieu thereof ‘‘subchapter

I of chapter 135’’.

(k) CHAPTER 315.—Chapter 315 of such title is amended—

(1) in section 31501(2) by striking ‘‘10102’’ and inserting

in lieu thereof ‘‘13102’’;

49 USC 30166.

109 STAT. 948 PUBLIC LAW 104–88—DEC. 29, 1995

(2) in section 31501(3)(A) by striking ‘‘10521(a)’’ and inserting in lieu thereof ‘‘13501’’; (3) in section 31502(a)(1) by striking ‘‘10521 and 10522’’

by inserting in lieu thereof ‘‘13501 and 13502’’; and

(4) in section 31503(a) by striking ‘‘subchapter II of chapter

105’’ and inserting in lieu thereof ‘‘subchapter I of chapter

135’’.

(l) SECTIONS 41309 AND 41502.—Sections 41309(b)(2)(A) and

41502 of such title are each amended by striking ‘‘common’’ each

place it appears.

(m) SECTION 60115.—Section 60115(b)(4)(A) of such title is

amended by striking ‘‘(referred to in section 10344(f) of this title)’’.

Subtitle B—Other Amendments

SEC. 311. AGRICULTURAL ADJUSTMENT ACT OF 1938 AMENDMENTS.

Section 201 of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1291) is amended—

(1) by striking ‘‘Interstate Commerce Commission’’ each

place it appears and inserting in lieu thereof ‘‘Surface Transportation Board’’;

(2) by striking ‘‘Commission’’ each place it appears (other than a place to which paragraph (1) applies) and inserting

in lieu thereof ‘‘Board’’; and

(3) by striking ‘‘Commission’s’’ in subsection (b) and inserting in lieu thereof ‘‘Board’s’’.

SEC. 312. ANIMAL WELFARE ACT AMENDMENT.

Section 15(a) of the Animal Welfare Act (7 U.S.C. 2145(a))

is amended by striking ‘‘Interstate Commerce Commission’’ and

inserting in lieu thereof ‘‘Surface Transportation Board’’.

SEC. 313. FEDERAL ELECTION CAMPAIGN ACT OF 1971 AMENDMENTS.

Section 401 of the Federal Election Campaign Act of 1971

is amended—

(1) by striking ‘‘Interstate Commerce Commission shall

each promulgate, within ninety days after the date of enactment

of this Act’’ and inserting in lieu thereof ‘‘Surface Transportation Board shall each maintain’’; and

(2) by inserting ‘‘or Board’’ after ‘‘or such Commission’’.

SEC. 314. FAIR CREDIT REPORTING ACT AMENDMENT.

Section 621(b)(4) of the Fair Credit Reporting Act (15 U.S.C. 1681s(b)(4)) is amended by striking ‘‘Interstate Commerce Commission with respect to any common carrier subject to those Acts’’

and inserting in lieu thereof ‘‘Secretary of Transportation, with

respect to all carriers subject to the jurisdiction of the Surface

Transportation Board’’.

SEC. 315. EQUAL CREDIT OPPORTUNITY ACT AMENDMENT.

Section 704(a)(4) of the Equal Credit Opportunity Act (15 U.S.C.

1691c(a)(4)) is amended by striking ‘‘Interstate Commerce Commission with respect to any common carrier subject to those Acts’’

and inserting in lieu thereof ‘‘Secretary of Transportation, with

respect to all carriers subject to the jurisdiction of the Surface

Transportation Board’’.

2 USC 451.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 949

SEC. 316. FAIR DEBT COLLECTION PRACTICES ACT AMENDMENT.

Section 814(b)(4) of the Fair Debt Collection Practices Act (15

U.S.C. 1692l(b)(4)) is amended by striking ‘‘Interstate Commerce

Commission with respect to any common carrier subject to those

Acts’’ and inserting in lieu thereof ‘‘Secretary of Transportation,

with respect to all carriers subject to the jurisdiction of the Surface

Transportation Board’’.

SEC. 317. NATIONAL TRAILS SYSTEM ACT AMENDMENTS.

The National Trails System Act is amended—

(1) in section 8(d)—

(A) by striking ‘‘Chairman of the Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Chairman of

the Surface Transportation Board’’; and

(B) by striking ‘‘Commission’’ the second place it

appears and inserting in lieu thereof ‘‘Board’’; and

(2) in section 9(b) by striking ‘‘Interstate Commerce

Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’.

SEC. 318. CLAYTON ACT AMENDMENTS.

The Clayton Act is amended—

(1) in section 7 (15 U.S.C. 18)—

(A) by striking ‘‘Interstate Commerce Commission’’ and

inserting in lieu thereof ‘‘Surface Transportation Board’’;

and

(B) by inserting ‘‘, Board,’’ after ‘‘vesting such power

in such Commission’’;

(2) in section 11(a) (15 U.S.C. 21(a)) by striking ‘‘Interstate

Commerce Commission where applicable to common carriers

subject to the Interstate Commerce Act, as amended’’ and

inserting in lieu thereof ‘‘Surface Transportation Board where

applicable to common carriers subject to jurisdiction under

subtitle IV of title 49, United States Code’’; and

(3) in section 16 (15 U.S.C. 22) by striking ‘‘in equity

for injunctive relief’’ and all that follows through ‘‘Interstate

Commerce Commission’’ and inserting in lieu thereof ‘‘for

injunctive relief against any common carrier subject to the

jurisdiction of the Surface Transportation Board under subtitle

IV of title 49, United States Code’’.

SEC. 319. INSPECTOR GENERAL ACT OF 1978 AMENDMENT.

Section 8G(a)(2) of the Inspector General Act of 1978 (5 U.S.C.

App.) is amended by striking ‘‘the Interstate Commerce Commission,’’.

SEC. 320. ENERGY POLICY ACT OF 1992 AMENDMENTS.

Subsections (a) and (d) of section 1340 of the Energy Policy Act of 1992 (42 U.S.C. 13369 (a) and (d)) are each amended by

striking ‘‘Interstate Commerce Commission’’ and inserting in lieu

thereof ‘‘Surface Transportation Board’’.

SEC. 321. MERCHANT MARINE ACT, 1920, AMENDMENTS.

The Merchant Marine Act, 1920, is amended—

(1) in section 8 (46 U.S.C. App. 867)—

(A) by striking ‘‘Interstate Commerce Commission’’

both places it appears and inserting in lieu thereof ‘‘Surface

Transportation Board’’; and

15 USC 26.

16 USC 1248.

16 USC 1247.

109 STAT. 950 PUBLIC LAW 104–88—DEC. 29, 1995

(B) by striking ‘‘commission’’ and inserting in lieu thereof ‘‘Board’’;

(2) in section 27A (46 U.S.C. App. 883–1) by striking ‘‘com- mon or contract’’ and all that follows through ‘‘, which otherwise’’ and inserting in lieu thereof ‘‘carrier subject to jurisdiction

under subchapter II of chapter 135 of title 49, United States

Code, which otherwise’’; and

(3) in section 28 (46 U.S.C. App. 884)— (A) by striking ‘‘common’’;

(B) by striking ‘‘Interstate Commerce Commission’’ and inserting in lieu thereof ‘‘Surface Transportation Board’’;

and

(C) by striking ‘‘commission’’ each place it appears and inserting in lieu thereof ‘‘Board’’.

SEC. 322. RAILWAY LABOR ACT AMENDMENTS.

Section 1 of the Railway Labor Act (45 U.S.C. 151) is amended— (1) in the first paragraph by striking ‘‘express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act’’ and inserting in lieu thereof ‘‘railroad

subject to the jurisdiction of the Surface Transportation Board’’; (2) in the first and fifth paragraphs by striking ‘‘Interstate

Commerce Commission’’ each place it appears and inserting

in lieu thereof ‘‘Surface Transportation Board’’; and

(3) in the fifth paragraph by striking ‘‘Commission’’ the

second and fourth places it appears and inserting in lieu thereof

‘‘Board’’.

SEC. 323. RAILROAD RETIREMENT ACT OF 1974 AMENDMENTS.

Section 1 of the Railroad Retirement Act of 1974 (45 U.S.C.

231) is amended—

(1) by striking subsection (a)(1)(i) and inserting in lieu

thereof the following: ‘‘(i) any carrier by railroad subject to the jurisdiction of

the Surface Transportation Board under part A of subtitle

IV of title 49, United States Code;’’;

(2) in subsection (a)(2)(ii) by striking ‘‘Interstate Commerce

Commission is hereby authorized and directed upon request

of the Board’’ and inserting in lieu thereof ‘‘Surface Transportation Board is hereby authorized and directed upon request

of the Railroad Retirement Board’’; and

(3) in subsection (o) by inserting ‘‘the Surface Transportation Board,’’ after ‘‘the Interstate Commerce Commission,’’.

SEC. 324. RAILROAD UNEMPLOYMENT INSURANCE ACT AMENDMENTS.

The Railroad Unemployment Insurance Act is amended—

(1) in section 1(a) (45 U.S.C. 351(a)) by striking ‘‘Interstate

Commerce Commission is hereby authorized and directed upon

request of the Board’’ and inserting in lieu thereof ‘‘Surface

Transportation Board is hereby authorized and directed upon

request of the Railroad Retirement Board’’;

(2) by striking paragraph (b) of such section 1 and inserting

in lieu thereof the following:

‘‘(b) The term ‘carrier’ means a railroad subject to the jurisdiction of the Surface Transportation Board under part A of subtitle

IV of title 49, United States Code.’’; and

(3) by striking ‘‘Interstate Commerce Commission, adjusted,

as determined by the Board’’ in section 2(h)(3) (45 U.S.C.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 951

352(h)(3)) and inserting in lieu thereof ‘‘Surface Transportation

Board, adjusted, as determined by the Railroad Retirement

Board’’.

SEC. 325. EMERGENCY RAIL SERVICES ACT OF 1970 AMENDMENTS.

The Emergency Rail Services Act of 1970 is amended—

(1) in section 2 (45 U.S.C. 661)—

(A) by striking paragraph (2) and inserting in lieu

thereof the following:

‘‘(2) ‘Board’ means the Surface Transportation Board.’’; and

(B) in paragraph (3) by striking ‘‘common carrier by

railroad subject to part I of the Interstate Commerce Act

(49 U.S.C. 1–27)’’ and inserting in lieu thereof ‘‘rail carrier

subject to part A of subtitle IV of title 49, United States

Code’’;

(2) in section 3—

(A) by striking ‘‘the provisions of section 5 of the Interstate Commerce Act’’ in subsection (b)(4) and inserting

in lieu thereof ‘‘subchapter II of chapter 113 of title 49,

United States Code’’; and

(B) by striking ‘‘Commission’’ each place it appears

and inserting in lieu thereof ‘‘Board’’; and

(3) in section 6(a) (45 U.S.C. 665(a)) by striking ‘‘Interstate

Commerce Commission’’ and inserting in lieu thereof ‘‘Board’’.

SEC. 326. ALASKA RAILROAD TRANSFER ACT OF 1982 AMENDMENTS.

Section 608 of the Alaska Railroad Transfer Act of 1982 (45

U.S.C. 1207) is amended—

(1) by striking ‘‘the jurisdiction of the Interstate Commerce

Commission under chapter 105’’ in subsection (a)(1) and inserting in lieu thereof ‘‘part A’’; and

(2) by striking ‘‘the jurisdiction of the Interstate Commerce

Commission under chapter 105’’ in subsection (c) and inserting

in lieu thereof ‘‘part A’’.

SEC. 327. REGIONAL RAIL REORGANIZATION ACT OF 1973 AMENDMENTS.

The Regional Rail Reorganization Act of 1973 is amended—

(1) in section 102(15) (45 U.S.C. 702(15)) by striking ‘‘common carrier by railroad as defined in section 1(3) of part I

of the Interstate Commerce Act (49 U.S.C. 1(3))’’ and inserting

in lieu thereof ‘‘rail carrier subject to part A of subtitle IV

of title 49, United States Code’’;

(2) in section 301(b) (45 U.S.C. 741(b)) by striking ‘‘common

carrier by railroad under section 1(3) of the Interstate Commerce Act (49 U.S.C. 1(3))’’ and inserting in lieu thereof ‘‘rail

carrier subject to part A of subtitle IV of title 49, United

States Code’’;

(3) in section 304 (45 U.S.C. 744)—

(A) by striking ‘‘205(d)(6) of this Act’’ in subsection

(a)(2)(B) and inserting in lieu thereof ‘‘10362(b)(6) of title

49, United States Code’’;

(B) by striking ‘‘Interstate Commerce Act’’ and inserting in lieu thereof ‘‘part A of subtitle IV of title 49, United

States Code’’;

(C) in subsection (d)(3)—

109 STAT. 952 PUBLIC LAW 104–88—DEC. 29, 1995

(i) by striking ‘‘this title,’’ and all that follows through ‘‘(A) shall take’’ and inserting in lieu thereof

‘‘this title, the Commission shall take’’; and

(ii) by striking ‘‘this subsection; and’’ and all that

follows through ‘‘205(d)(6) of this Act’’ and inserting

in lieu thereof ‘‘this subsection’’;

(D) in subsection (e)(4)—

(i) by striking ‘‘and under regulations issued by

the Office pursuant to section 205(d)(5) of this Act’’

in subparagraph (A); and

(ii) by striking ‘‘and regulations issued by the

Office pursuant to section 205(d)(5) of this Act’’ in

subparagraph (C);

(E) in subsection (e)(5)—

(i) by striking ‘‘and under regulations issued by

the Office pursuant to section 205(d)(5) of this Act’’

in subparagraph (A); and

(ii) by striking ‘‘and under regulations issued by

the Office pursuant to section 205(d)(5) of this Act’’

in subparagraph (B);

(F) in subsection (e)(7)(A) by striking ‘‘and under regulations issued by the Office pursuant to section 205(d)(5)

of this Act’’; and

(G) in subsection (g) by striking ‘‘the Interstate Commerce Act’’ and inserting in lieu thereof ‘‘part A of subtitle

IV of title 49, United States Code’’;

(4) in section 308 (45 U.S.C. 748)—

(A) by striking ‘‘10905(d)–(f)’’ in subsection (d)(1) and

inserting in lieu thereof ‘‘10904’’; and

(B) by striking ‘‘10903(b)(2)’’ in subsection (f) and

inserting in lieu thereof ‘‘10903(b)(3)’’; and

(5) by inserting after section 712 the following new section:

‘‘CLASS II RAILROADS RECEIVING FEDERAL ASSISTANCE

‘‘SEC. 713. The Surface Transportation Board shall impose no

labor protection conditions in approving an application under section

10902 of title 49, United States Code, when the application involves

a Class II rail carrier which—

‘‘(1) is headquartered in a State, and operates in at least

one State, with a population of less than 1,000,000 persons,

as determined by the 1990 census; and

‘‘(2) has, as of January 1, 1996, been a recipient of repayable

Federal Railroad Administration assistance in excess of

$5,000,000.’’.

SEC. 328. MILWAUKEE RAILROAD RESTRUCTURING ACT AMENDMENT.

Section 18 of the Milwaukee Railroad Restructuring Act (45

U.S.C. 916) is repealed.

SEC. 329. ROCK ISLAND RAILROAD TRANSITION AND EMPLOYEE

ASSISTANCE ACT AMENDMENTS.

The Rock Island Railroad Transition and Employee Assistance

Act is amended—

(1) in section 104(a) (45 U.S.C. 1003(a)) by striking ‘‘section

11125 of title 49, United States Code, or’’; and

(2) by striking section 120 (45 U.S.C. 1015).

49 USC 797l.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 953

SEC. 330. RAILROAD REVITALIZATION AND REGULATORY REFORM

ACT OF 1976 AMENDMENTS.

The Railroad Revitalization and Regulatory Reform Act of 1976

is amended—

(1) in section 102(7) (45 U.S.C. 802(7)) by striking ‘‘common

carrier by railroad or express, as defined in section 1(3) of

the Interstate Commerce Act (49 U.S.C. 1(3))’’ and inserting

in lieu thereof ‘‘rail carrier subject to part A of subtitle IV

of title 49, United States Code’’;

(2) in section 505(a)(3) (45 U.S.C. 825(a)(3))—

(A) by striking ‘‘A financially responsible person (as

defined in section 10910(a)(1) of title 49, United States

Code)’’ and inserting in lieu thereof ‘‘(A) A financially

responsible person’’; and

(B) by inserting at the end the following new subparagraph:

‘‘(B) For purposes of this paragraph, the term ‘financially

responsible person’ means a person who (i) is capable of paying

the constitutional minimum value of the railroad line proposed

to be acquired, and (ii) is able to assure that adequate transportation will be provided over such line for a period of not less

than 3 years. Such term includes a governmental authority but

does not include a class I or class II rail carrier.’’;

(3) in section 509(b) (45 U.S.C. 829(b)) by striking paragraph (2); and

(4) in section 510 (45 U.S.C. 830) by striking ‘‘the provisions

of section 20a of the Interstate Commerce Act (49 U.S.C. 20a),

nor’’.

SEC. 331. NORTHEAST RAIL SERVICE ACT OF 1981 AMENDMENTS.

The Northeast Rail Service Act of 1981 is amended in section

1164 (45 U.S.C. 1112) by striking ‘‘11344 or 11345’’ each place

it appears and inserting in lieu thereof ‘‘11324 or 11325’’.

SEC. 332. CONRAIL PRIVATIZATION ACT AMENDMENT.

Section 4036 of the Conrail Privatization Act (45 U.S.C. 1344)

is amended by striking ‘‘(19)’’.

SEC. 333. MIGRANT AND SEASONAL AGRICULTURAL WORKER

PROTECTION ACT AMENDMENTS.

Section 401(b)(2)(C) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1841(b)(2)(C)) is amended by

striking ‘‘part II of the Interstate Commerce Act (49 U.S.C. 301

et seq.), or any successor provision of’’ and inserting in lieu thereof

‘‘part B of’’.

SEC. 334. FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT

OF 1994.

Section 601(d) of the Federal Aviation Administration

Authorization Act of 1994 (Public Law 103–305) is repealed.

SEC. 335. TERMINATION OF CERTAIN MARITIME AUTHORITY.

(a) REPEAL OF INTERCOASTAL SHIPPING ACT, 1933.—The

Intercoastal Shipping Act, 1933 (46 U.S.C. App. 843 et seq.) is

repealed effective September 30, 1996.

(b) REPEAL OF PROVISIONS OF SHIPPING ACT, 1916.—The following provisions of the Shipping Act, 1916 are repealed effective

September 30, 1996:

Effective date.

Effective date.

49 USC 10521

note.

109 STAT. 954 PUBLIC LAW 104–88—DEC. 29, 1995

(1) Section 3 (46 U.S.C. App. 804).

(2) Section 14 (46 U.S.C. App. 812).

(3) Section 15 (46 U.S.C. App. 814).

(4) Section 16 (46 U.S.C. App. 815).

(5) Section 17 (46 U.S.C. App. 816).

(6) Section 18 (46 U.S.C. App. 817).

(7) Section 19 (46 U.S.C. App. 818).

(8) Section 20 (46 U.S.C. App. 819).

(9) Section 21 (46 U.S.C. App. 820).

(10) Section 22 (46 U.S.C. App. 821).

(11) Section 23 (46 U.S.C. App. 822).

(12) Section 24 (46 U.S.C. App. 823).

(13) Section 25 (46 U.S.C. App. 824).

(14) Section 27 (46 U.S.C. App. 826).

(15) Section 29 (46 U.S.C. App. 828).

(16) Section 30 (46 U.S.C. App. 829).

(17) Section 31 (46 U.S.C. App. 830).

(18) Section 32 (46 U.S.C. App. 831).

(19) Section 33 (46 U.S.C. App. 832).

(20) Section 35 (46 U.S.C. App. 833a).

(21) Section 43 (46 U.S.C. App. 841a).

(22) Section 45 (46 U.S.C. App. 841c).

(c) CONFORMING AMENDMENTS.—

(1) MERCHANT MARINE ACT, 1936.—Section 204(a) of the

Merchant Marine Act, 1936 (46 U.S.C. App. 1114(a)) is amended

by striking ‘‘the Intercoastal Shipping Act, 1933,’’.

(2) SHIPPING ACT OF 1984.—Section 5(e) of the Shipping

Act of 1984 (46 U.S.C. App. 1704(e)) is amended—

(A) by striking ‘‘This Act, the Shipping Act, 1916, and

the Intercoastal Shipping Act, 1933,’’ and inserting ‘‘This

Act and the Shipping Act, 1916’’; and

(B) by striking ‘‘this Act, the Shipping Act, 1916, or

the Intercoastal Shipping Act, 1933,’’ and inserting ‘‘this

Act or the Shipping Act, 1916’’.

SEC. 336. ARMORED CAR INDUSTRY RECIPROCITY ACT OF 1993

AMENDMENTS.

Section 5(2) of the Armored Car Industry Reciprocity Act of

1993 (15 U.S.C. 5904) is amended—

(1) by striking ‘‘subchapter II of chapter 105’’ and inserting

in lieu thereof ‘‘subchapter I of chapter 135’’; and

(2) by striking ‘‘holding the appropriate certificate, permit,

or license issued under subchapter II of chapter 109’’ and

inserting in lieu thereof ‘‘is registered under chapter 139’’.

SEC. 337. LABOR MANAGEMENT RELATIONS ACT, 1947 AMENDMENT.

Section 302(b)(2) of the Labor Management Relations Act, 1947

(29 U.S.C. 186(b)(2)) is amended by striking the parenthetical

phrase and inserting in lieu thereof ‘‘(as defined in section 13102

of title 49, United States Code)’’.

SEC. 338. INLANDS WATERWAY REVENUE ACT OF 1978 AMENDMENT.

Section 205(f)(1) of the Inlands Waterway Revenue Act of 1978

(33 U.S.C. 1803(f)(1)) is amended by striking ‘‘as set forth’’ and

all that follows through the period at the end and inserting in

lieu thereof ‘‘as set forth in sections 10101 and 13101 of title

49, United States Code.’’.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 955

SEC. 339. NOISE CONTROL ACT OF 1972 AMENDMENT.

Section 18(d) of the Noise Control Act of 1972 (42 U.S.C.

4917(d)) is amended to read as follows:

‘‘(d) For purposes of this section, the term ‘motor carrier’

includes a motor carrier and motor private carrier as those terms

are defined in section 13102 of title 49, United States Code.’’.

SEC. 340. FAIR LABOR STANDARDS ACT OF 1938 AMENDMENT.

Section 13(b)(2) of the Fair Labor Standards Act of 1938 (29

U.S.C. 213(b)(2)) is amended by striking ‘‘common carrier by rail

and subject to the provisions of part I of the Interstate Commerce

Act’’ and inserting in lieu thereof ‘‘rail carrier subject to part A

of subtitle IV of title 49, United States Code’’.

TITLE IV—MISCELLANEOUS

PROVISIONS

SEC. 401. CERTAIN COMMERCIAL SPACE LAUNCH ACTIVITIES.

The licensing of a launch vehicle or launch site operator (includ- ing any amendment, extension, or renewal of the license) under

chapter 701 of title 49, United States Code, shall not be considered

a major Federal action for purposes of section 102(C) of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332(C)) if— (1) the Department of the Army has issued a permit for

the activity; and (2) the Army Corps of Engineers has found that the activity

has no significant impact.

SEC. 402. DESTRUCTION OF MOTOR VEHICLES OR MOTOR VEHICLE

FACILITIES; WRECKING TRAINS.

(a) DESTRUCTION OF MOTOR VEHICLES OR MOTOR VEHICLE

FACILITIES.—Section 33 of title 18, United States Code, is

amended—

(1) by inserting ‘‘(a)’’ before ‘‘Whoever’’ the first place it

appears; and

(2) by adding at the end the following:

‘‘(b) Whoever is convicted of a violation of subsection (a) involving a motor vehicle that, at the time the violation occurred, carried

high-level radioactive waste (as that term is defined in section

2(12) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(12)))

or spent nuclear fuel (as that term is defined in section 2(23)

of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(23))),

shall be fined under this title and imprisoned for any term of

years not less than 30, or for life.’’.

(b) WRECKING TRAINS.—Section 1992 of such title is amended—

(1) by inserting ‘‘(a)’’ before ‘‘Whoever’’ the first place it

appears;

(2) by inserting ‘‘(b)’’ before ‘‘Whoever is convicted’’;

(3) striking ‘‘any such crime, which’’ and inserting ‘‘a violation of subsection (a) that’’;

(4) by inserting after the paragraph beginning ‘‘Whoever

is convicted’’ the following:

‘‘Whoever is convicted of any such violation involving a train

that, at the time the violation occurred, carried high-level radioactive waste (as that term is defined in section 2(12) of the Nuclear

Waste Policy Act of 1982 (42 U.S.C. 10101(12))) or spent nuclear

42 USC 4332

note.

109 STAT. 956 PUBLIC LAW 104–88—DEC. 29, 1995

fuel (as that term is defined in section 2(23) of the Nuclear Waste

Policy Act of 1982 (42 U.S.C. 10101(23))), shall be fined under

this title and imprisoned for any term or years not less than

30, or for life.’’; and

(5) by inserting ‘‘(c)’’ before ‘‘A judgment’’.

SEC. 403. VIOLATION OF GRADE-CROSSING LAWS AND REGULATIONS.

(a) FEDERAL REGULATIONS.—Section 31310 of title 49, United

States Code, is amended by adding at the end thereof the following:

‘‘(h) GRADE-CROSSING VIOLATIONS.—

‘‘(1) SANCTIONS.—The Secretary shall issue regulations

establishing sanctions and penalties relating to violations, by

persons operating commercial motor vehicles, of laws and regulations pertaining to railroad-highway grade crossings.

‘‘(2) MINIMUM REQUIREMENTS.—The regulations issued

under paragraph (1) shall, at a minimum, require that—

‘‘(A) the penalty for a single violation is not less than

a 60-day disqualification of the driver’s commercial driver’s

license; and

‘‘(B) any employer that knowingly allows, permits,

authorizes, or requires an employee to operate a commercial

motor vehicle in violation of such a law or regulation shall

be subject to a civil penalty of not more than $10,000.’’.

(b) DEADLINE.—The initial regulations required under section

31310(h) of title 49, United States Code, shall be issued not later

than 1 year after the date of the enactment of this Act.

(c) STATE REGULATIONS.—Section 31311(a) of title 49, United

States Code, is amended by adding at the end thereof the following:

‘‘(18) The State shall adopt and enforce regulations prescribed by the Secretary under section 31310(h) of this title.’’.

SEC. 404. MISCELLANEOUS TITLE 23 AMENDMENTS.

Section 127 of title 23, United States Code, is amended by

adding at the end the following:

‘‘(g) OPERATION OF CERTAIN SPECIALIZED HAULING VEHICLES

ON CERTAIN PENNSYLVANIA HIGHWAYS.—If the segment of United

States Route 220 between Bedford and Bald Eagle, Pennsylvania,

is designated as part of the Interstate System, the single axle

weight, tandem axle weight, gross vehicle weight, and bridge formula limits set forth in subsection (a) shall not apply to that

segment with respect to the operation of any vehicle which could

have legally operated on that segment before the date of the enactment of this subsection.’’.

SEC. 405. TECHNICAL AMENDMENTS.

(a) NHS DESIGNATION ACT.—Effective November 28, 1995, the

National Highway System Designation Act of 1995 (Public Law

104–59) is amended—

(1) in section 312(b) (109 Stat. 584) by striking ‘‘of such

title’’ and inserting in lieu thereof ‘‘of title 23, United States

Code’’;

(2) in section 319(b)(3) (109 Stat. 589) by striking ‘‘at the

end’’ and inserting in lieu thereof ‘‘after paragraph (3)’’;

(3) in section 332(a)(1)(C)(iii) (109 Stat. 596) by inserting

closing quotation marks after ‘‘Mexico’’;

(4) in section 336(1) (109 Stat. 602)—

(A) by striking ‘‘for’’ each place it appears; and

23 USC 149.

23 USC 127.

Effective date.

49 USC 31310

note.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 957

(B) by inserting ‘‘for’’ after ‘‘million’’ each place it

appears; and

(5) by inserting closing quotation marks and a period after

the period at the end of section 337(c)(1)(B) (109 Stat. 603).

(b) TITLE 23.—Section 149(b) of title 23, United States Code,

is amended—

(1) by inserting ‘‘or’’ after the semicolon at the end of

paragraph (3); and

(2) by striking ‘‘; or’’ at the end of paragraph (4) and

inserting a period.

(c) ISTEA.—Section 1069(v) of the International Surface

Transportation Efficiency Act of 1991 (105 Stat. 2010) is amended

by striking the period at the end of the first sentence.

SEC. 406. FIBER DRUM PACKAGING.

(a) IN GENERAL.—In the administration of chapter 51 of title

49, United States Code, the Secretary of Transportation shall issue

a final rule within 60 days after the date of the enactment of

this Act authorizing the continued use of fiber drum packaging

with a removable head for the transportation of liquid hazardous

materials with respect to those liquid hazardous materials transported by such drums pursuant to regulations in effect on September 30, 1991, if—

(1) the packaging is in compliance with regulations of the

Secretary under the Hazardous Materials Transportation Act

as in effect on September 30, 1991; and

(2) the packaging will not be used for the transportation

of hazardous materials that include materials which are poisonous by inhalation or materials in Packing Groups I and II.

(b) EXPIRATION.—The regulation referred to in subsection (a)

shall expire on the later of September 30, 1997, or the date on

which funds are authorized to be appropriated to carry out chapter

51 of title 49, United States Code (relating to transportation of

hazardous materials), for fiscal years beginning after September

30, 1997.

(c) STUDY.—

(1) IN GENERAL.—Within 90 days after the date of the

enactment of this Act, the Secretary shall contract with the

National Academy of Sciences to conduct a study—

(A) to determine whether the requirements of section

5103(b) of title 49, United States Code (relating to regulations for safe transportation), as they pertain to fiber drum

packaging with a removable head can be met for the

transportation of liquid hazardous materials (with respect

to those liquid hazardous materials transported by such

drums pursuant to regulations in effect on September 30,

1991) with standards (including fiber drum industry standards set forth in a June 8, 1992, exemption application

submitted to the Department of Transportation), other than

the performance-oriented packaging standards adopted

under docket number HM–181 contained in part 178 of

title 49, Code of Federal Regulations; and

(B) to determine whether a packaging standard (including such fiber drum industry standards), other than such

performance-oriented packaging standards, will provide an

equal or greater level of safety for the transportation of

Contracts.

Rules.

49 USC 5103

note.

16 USC 1261.

109 STAT. 958 PUBLIC LAW 104–88—DEC. 29, 1995

liquid hazardous materials than would be provided if such

performance-oriented packaging standards were in effect.

(2) COMPLETION.—The study shall be completed before

March 1, 1997 and shall be transmitted to the Committee

on Commerce, Science, and Transportation of the Senate and

the Transportation and Infrastructure Committee of the House

of Representatives.

(d) SECRETARIAL ACTION.—By September 30, 1997, the Secretary shall issue final regulations to determine what standards

should apply to fiber drum packaging with a removable head for

transportation of liquid hazardous materials (with respect to those

liquid hazardous materials transported by such drums pursuant

to regulations in effect on September 30, 1991) after September

30, 1997. In issuing such regulations, the Secretary shall give

full and substantial consideration to the results of the study conducted in subsection (c).

SEC. 407. NONCONTIGUOUS DOMESTIC TRADE STUDY.

Within 6 months after the effective date of this Act, the Secretary of Transportation shall transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a study that analyzes each of the noncontiguous domestic

trades, including analyzing—

(1) carrier competition in both regulated and unregulated

portions of those trades;

(2) rate structures in those trades;

(3) the impact of tariff filing on carrier pricing;

(4) the problems of parallel pricing and its impact on competition in the domestic trades;

(5) the impact on domestic cargo pricing of foreign cargo

services;

(6) whether additional protections are needed to protect

shippers from the abuse of market power; and

(7) the extent to which statutory or regulatory changes

should be made to further the transportation policy of section

13101 of title 49, United States Code.

SEC. 408. FEDERAL HIGHWAY ADMINISTRATION RULEMAKING.

(a) ADVANCE NOTICE.—The Federal Highway Administration

shall issue an advance notice of proposed rulemaking dealing with

a variety of fatigue-related issues pertaining to commercial motor

vehicle motor vehicle safety (including 8 hours of continuous sleep

after 10 hours of driving, loading and unloading operations, automated and tamper-proof recording devices, rest and recovery cycles,

fatigue and stress in longer combination vehicles, fitness for duty,

and other appropriate regulatory and enforcement countermeasures

for reducing fatigue-related incidents and increasing driver alertness) not later than March 1, 1996.

49 USC 31136

note.

Regulations.

PUBLIC LAW 104–88—DEC. 29, 1995 109 STAT. 959

LEGISLATIVE HISTORY—H.R. 2539 (S. 1396):

HOUSE REPORTS: Nos. 104–311 (Comm. on Transportation and Infrastructure)

and 104–422 (Comm. of Conference).

SENATE REPORTS: No. 104–176 accompanying S. 1396 (Comm. on Commerce,

Science, and Transportation).

CONGRESSIONAL RECORD, Vol. 141 (1995):

Nov. 14, considered and passed House.

Nov. 28, considered and passed Senate, amended, in lieu of S. 1396.

Dec. 21, Senate agreed to conference report.

Dec. 22, House agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 31 (1995):

Dec. 29, Presidential statement.

Æ

(b) RULEMAKING.—The Federal Highway Administration shall

issue a notice of proposed rulemaking dealing with such issues

within 1 year after issuance of the advance notice under subsection

(a) is published and shall issue a final rule dealing with those

issues within 2 years after the last day of such 1-year period.

Approved December 29, 1995.