II

106TH CONGRESS

1ST SESSION S. 747

To amend title 49, United States Code, to promote rail competition, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 25, 1999

Mrs. HUTCHISON introduced the following bill; which was read twice and

referred to the Committee on Commerce, Science, and Transportation

A BILL

To amend title 49, United States Code, to promote rail

competition, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Surface Transpor5 tation Board Reauthorization and Improvement Act of

6 1999’’.

7 SEC. 2. PROMOTION OF COMPETITION WITHIN THE RAIL

8 INDUSTRY.

9 Section 10101 of title 49, United States Code, is

10 amended by—
2

S 747 IS

1 (1) redesignating paragraphs (1) through (7) as

2 paragraphs (2) through (8);

3 (2) inserting before paragraph (2), as redesig4 nated, the following:

5 ‘‘(1) to encourage and promote effective com6 petition within the rail industry;’’;

7 (3) striking ‘‘revenues,’’ in paragraph (4), as

8 redesignated, and inserting ‘‘revenues to ensure ap9 propriate rail infrastructure,’’;

10 (4) redesignating paragraphs (8) through (15)

11 as paragraphs (10) through (17); and

12 (5) inserting before paragraph (10), as redesig13 nated, the following:

14 ‘‘(9) to discourage artificial barriers to inter15 change and car supply which can impede competition

16 between shortline, regional, and Class I carriers and

17 block effective rail service to shippers;’’.

18 SEC. 3. EXTENSION OF TIME LIMIT ON EMERGENCY SERV19 ICE ORDERS.

20 Section 11123 of title 49, United States Code, is

21 amended by—

22 (1) striking ‘‘30’’ in subsection (a) and insert23 ing ‘‘60’’;

24 (2) striking ‘‘30’’ in subsection (c)(1) and in25 serting ‘‘60’’; and
3

S 747 IS

1 (3) adding at the end of subsection (c) the fol2 lowing:

3 ‘‘(4) The Board may provide up to 2 exten4 sions, totalling not more than 180 days, of the 240-

5 day period under paragraph (1).’’

6 SEC. 4. PROCEDURAL RELIEF FOR SMALL RATE CASES.

7 (a) DISCOVERY LIMITED.—Section 10701(d) of title

8 49, United States Code, is amended by—

9 (1) inserting ‘‘(A)’’ in paragraph (3) before

10 ‘‘The Board’’; and

11 (2) adding at the end thereof the following:

12 ‘‘(B) Unless the Board finds that there is

13 a compelling need to permit discovery in a par14 ticular proceeding, discovery shall not be per15 mitted in a proceeding handled under the guide16 lines established under subparagraph (A).’’.

17 (b) ADMINISTRATIVE RELIEF.—Not later than 180

18 days after the date of enactment of this Act, the Surface

19 Transportation Board shall—

20 (1) review the rules and procedures applicable

21 to rate complaints and other complaints filed with

22 the Board by small shippers;

23 (2) identify any such rules or procedures that

24 are unduly burdensome to small shippers; and
4

S 747 IS

1 (3) take such action, including rulemaking, as

2 is appropriate to reduce or eliminate the aspects of

3 the rules and procedures that the Board determines

4 under paragraph (2) to be unduly burdensome to

5 small shippers.

6 (c) LEGISLATIVE RELIEF.—The Board shall notify

7 the Committee on Commerce, Science, and Transportation

8 of the Senate and the Committee on Transportation and

9 Infrastructure of the House of Representatives if the

10 Board determines that additional changes in the rules and

11 procedures described in subsection (b) are appropriate and

12 require commensurate changes in statutory law. In mak13 ing that notification, the Board shall make recommenda14 tions concerning those changes.

15 SEC. 5. CODIFICATION OF MARKET DOMINANCE RELIEF.

16 Section 10707(d)(1)(A) of title 49, United States

17 Code, is amended by adding at the end thereof the fol18 lowing: ‘‘In making a determination under this section, the

19 Board may not consider evidence of product or geographic

20 competition.’’.

21 SEC. 6. RAIL REVENUE ADEQUACY DETERMINATIONS.

22 (a) Section 10101(3) of title 49, United States Code,

23 is amended by striking ‘‘revenues, as determined by the

24 Board;’’ and inserting ‘‘revenues;’’.
5

S 747 IS

1 (b) Section 10701(d)(2) of title 49, United States

2 Code, is amended by striking ‘‘revenues, as established by

3 the Board under section 10704(a)(2) of this title.’’ and

4 inserting ‘‘revenues.’’.

5 (c) Section 10701(d) of title 49, United States Code,

6 is amended by adding at the end thereof the following:

7 ‘‘(4) To facilitate the process by which the

8 Board gives due consideration to the policy that rail

9 carriers shall earn adequate revenues, the Board

10 shall convene a 3-member panel of outside experts to

11 make recommendations as to an appropriate meth12 odology by which the adequacy of a carrier’s reve13 nues should be considered. The panel shall issue a

14 report containing its recommendations within 270

15 days after the date of enactment of the Surface

16 Transportation Board Amendments of 1999.’’.

17 SEC. 7. BOTTLENECK RATES.

18 (a) THROUGH ROUTES.—Section 10703 of title 49,

19 United States Code, is amended—

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

21 ‘‘Rail carriers’’; and

22 (2) adding at the end thereof the following:

23 ‘‘(b) CONNECTING CARRIERS.—When a shipper and

24 rail carrier enter into a contract under section 10709 for

25 transportation that would require a through route with a
6

S 747 IS

1 connecting carrier and there is no reasonable alternative

2 route that could be constructed without participation of

3 that connecting carrier, the connecting carrier shall, upon

4 request, establish a through route and a rate that can be

5 used in conjunction with transportation provided pursuant

6 to the contract, unless the connecting carrier shows that—

7 ‘‘(1) the interchange requested is not operation8 ally feasible; or

9 ‘‘(2) the through route would significantly im10 pair the connecting carrier’s ability to serve its other

11 traffic. The connecting carrier shall establish a rate

12 and through route within 21 days unless the Board

13 has made a determination that the connecting car14 rier is likely to prevail in its claim under paragraph

15 (1) or (2).’’.

16 (b) BOARD’S AUTHORITY TO PRESCRIBE DIVISION

17 OF JOINT RATES.—Section 10705(b) of title 49, United

18 States Code, is amended by striking ‘‘The Board shall’’

19 and inserting ‘‘Except as provided in section 10703(b), the

20 Board shall’’.

21 (c) COMPLAINTS.—Section 11701 of title 49, United

22 States Code, is amended—

23 (1) by redesignating subsection (c) as sub24 section (d); and
7

S 747 IS

1 (2) by inserting after subsection (b) the fol2 lowing:

3 ‘‘(c) Where transportation over a portion of a through

4 route is governed by a contract under section 10709, a

5 rate complaint must be limited to the rates that apply to

6 the portion of the through route not governed by such a

7 contract.’’.

8 SEC. 8. SIMPLIFIED DISPUTE RESOLUTION.

9 Within 180 days after the date of enactment of this

10 Act, the Surface Transportation Board shall promulgate

11 regulations adopting a simplified dispute resolution mech12 anism with the following features:

13 (1) IN GENERAL.—The simplified dispute reso14 lution mechanism will utilize expedited arbitration

15 with a minimum of discovery and may be used to de16 cide disputes between parties involving any matter

17 subject to the jurisdiction of the Board, other than

18 rate reasonableness cases that would be decided

19 under constrained market pricing principles.

20 (2) APPLICABLE STANDARDS.—Arbitrators will

21 apply existing legal standards.

22 (3) MANDATORY IF REQUESTED.—Use of the

23 simplified dispute resolution mechanism is required

24 whenever at least one party to the dispute requests.
8

S 747 IS

1 (4) 90-DAY TURNAROUND.—Arbitrators will

2 issue their decisions within 90 days after being ap3 pointed.

4 (5) PAYMENT OF COSTS.—Each party will pay

5 its own costs, and the costs of the arbitration and

6 other administrative costs of arbitration will be

7 shared equally between and among the parties.

8 (6) DECISIONS PRIVATE; NOT PRECEDEN9 TIAL.—Except as otherwise provided by the Board,

10 decisions will remain private and will not constitute

11 binding precedent.

12 (7) DECISIONS BINDING AND ENFORCEABLE.—

13 Except as otherwise provided in paragraph (8), deci14 sions will be binding and enforceable by the Board.

15 (8) RIGHT TO APPEAL.—Any party will have an

16 unqualified right to appeal any decision to the

17 Board, in which case the Board will decide the mat18 ter de novo. In making its decision, the Board may

19 consider the decision of the arbitrator and any evi20 dence and other material developed during the arbi21 tration.

22 (9) MUTUAL MODIFICATION.—Any procedure or

23 regulation adopted by the Board with respect to the

24 simplified dispute resolution may be modified or
9

S 747 IS

1 eliminated by mutual agreement of all parties to the

2 dispute.

3 SEC. 9. PROMOTION OF COMPETITIVE RAIL SERVICE OP4 TIONS.

5 Section 11324 of title 49, United States Code, is

6 amended—

7 (1) by striking ‘‘and’’ in paragraph (4) of sub8 section (b);

9 (2) by striking ‘‘system.’’ in paragraph (5) of

10 subsection (b) and inserting ‘‘system; and’’;

11 (3) by adding at the end of subsection (b) the

12 following:

13 ‘‘(6) means and methods to encourage and ex14 pand competition between and among rail carriers in

15 the affected region or the national rail system.’’; and

16 (4) by inserting after the second sentence in

17 subsection (c) the following: ‘‘The Board may im18 pose conditions to encourage and expand competition

19 between and among rail carriers in the affected re20 gion or the national rail system, if such conditions

21 do not cause substantial harm to the benefits of the

22 transaction to the affected carriers or the public.’’.
10

S 747 IS

1 SEC. 10. CLARIFICATION OF STB AUTHORITY TO GRANT

2 TEMPORARY ACCESS RELIEF.

3 (a) Section 10705 of title 49, United States Code,

4 is amended by adding at the end thereof the following:

5 ‘‘(d) The Board may grant temporary relief under

6 this section when the Board finds it necessary and appro7 priate to do so to remedy inadequate service. The author8 ity provided in this section is in addition to the authority

9 of the Board to provide temporary relief under sections

10 11102 and 11123 of this title.’’.

11 (b) Section 11102 of title 49, United States Code,

12 is amended by adding at the end thereof the following:

13 ‘‘(e) The Board may grant temporary relief under

14 subsections (a) and (c) when the Board finds it necessary

15 and appropriate to do so to remedy inadequate service.

16 The authority provided in this section is in addition to

17 the authority of the Board to provide temporary relief

18 under sections 10705 and 11123 of this title.’’.

19 (c) Section 11123 of title 49, United States Code,

20 is amended by adding at the end thereof the following:

21 ‘‘(e) The authority provided in this section is in addi22 tion to the authority of the Board to provide temporary

23 relief under sections 10705 and 11102 of this title.’’.

24 SEC. 11. HOUSEHOLD GOODS COLLECTIVE ACTIVITIES.

25 Section 13703(d) of title 49, United States Code,

26 is amended by inserting ‘‘(other than an agreement affect-
11

S 747 IS

1 ing only the transportation of household goods, as defined

2 on December 31, 1995)’’ after ‘‘agreement’’ in the first

3 sentence.

4 SEC. 12. AUTHORIZATION LEVELS.

5 There are authorized to be appropriated to the Sur6 face Transportation Board $16,000,000 for fiscal year

7 1999, $17,000,000 for fiscal year 2000, $17,555,000 for

8 fiscal year 2001, and $18,129,000 for fiscal year 2002.

9 SEC. 13. CHAIRMAN DESIGNATED WITH SENATE CONFIRMA10 TION.

11 Section 701(c)(1) of title 49, United States Code, is

12 amended by striking ‘‘President’’ and inserting ‘‘Presi13 dent, by and with the advice and consent of the Senate,’’.

Æ