II

105TH CONGRESS

2D SESSION S. 2164

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

for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 11, 1998

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 Amendments of 1998’’.

6 SEC. 2. PROMOTION OF COMPETITION WITHIN THE RAIL

7 INDUSTRY.

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

9 amended by—
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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) redesignating paragraphs (9) through (16)

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

9 (4) inserting before paragraph (10), as redesig10 nated, the following:

11 ‘‘(9) to discourage artificial barriers to inter12 change and car supply which can impede competition

13 between shortline, regional, and Class I carriers and

14 block effective rail service to shippers.’’.

15 SEC. 3. EXTENSION OF TIME LIMIT ON EMERGENCY SERV16 ICE ORDERS.

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

18 amended by—

19 (1) striking ‘‘30’’ in subsection (a) and insert20 ing ‘‘60’’;

21 (2) striking ‘‘30’’ in subsection (c)(1) and in22 serting ‘‘60’’;

23 (3) striking the second sentence of subsection

24 (c)(1) and inserting the following: ‘‘An action taken

25 by the Board under subsection (a) of this section
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1 may not remain in effect longer than 18 months (in2 cluding the initial 60-day period), unless the Board

3 requests an extension under paragraph (4).’’; and

4 (4) adding at the end of subsection (c) the fol5 lowing:

6 ‘‘(4) The Board may request up to 2 exten7 sions, of not more than 6 months each, of the 18-

8 month period under subsection (a) by submitting to

9 the Congress a request in writing for such an exten10 sion, together with an explanation of the reasons for

11 the request. Such a requested extension goes into ef12 fect unless disapproved by the Congress by concur13 rent resolution. Any other extension requested by

14 the Board will not go into effect unless the Congress

15 approves it under the procedure established by sec16 tion 4 of the Surface Transportation Amendments of

17 1998.’’.

18 SEC. 4. APPROVAL PROCEDURE.

19 (a) IN GENERAL.—Within 90 days (not counting any

20 day on which either House is not in session) after a re21 quest for a third or subsequent extension is submitted to

22 the House of Representatives and the Senate by the Sur23 face Transportation Board under section 11123(c)(4) of

24 title 49, United States Code, an approval resolution shall

25 be introduced in the House by the Majority Leader of the
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1 House, for himself and the Minority Leader of the House,

2 or by Members of the House designated by the Majority

3 Leader and Minority Leader of the House; and shall be

4 introduced in the Senate by the Majority Leader of the

5 Senate, for himself and the Minority Leader of the Senate,

6 or by Members of the Senate designated by the Majority

7 Leader and Minority Leader of the Senate. The approval

8 resolution shall be held at the desk at the request of the

9 Presiding Officers of the respective Houses.

10 (b) CONSIDERATION IN THE HOUSE OF REPRESENT11 ATIVES.—

12 (1) CONSIDERATION OF APPROVAL RESOLU13 TION.—After an approval resolution is introduced, it

14 is in order to move that the House resolve into the

15 Committee of the Whole House on the State of the

16 Union for consideration of the resolution. All points

17 of order against the resolution and against consider18 ation of the resolution are waived. The motion is

19 highly privileged. A motion to reconsider the vote by

20 which the motion is agreed to or disagreed to shall

21 not be in order. During consideration of the resolu22 tion in the Committee of the Whole, the first reading

23 of the resolution shall be dispensed with. General de24 bate shall proceed, shall be confined to the resolu25 tion, and shall not exceed one hour equally divided
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1 and controlled by a proponent and an opponent of

2 the resolution. The resolution shall be considered as

3 read for amendment under the five-minute rule.

4 Only one motion to rise shall be in order, except if

5 offered by the manager. No amendment to the reso6 lution is in order. Consideration of the resolution

7 shall not exceed one hour excluding time for re8 corded votes and quorum calls. At the conclusion of

9 the consideration of the resolution, the Committee

10 shall rise and report the resolution to the House.

11 The previous question shall be considered as ordered

12 on the resolution to final passage without interven13 ing motion. A motion to reconsider the vote on pas14 sage of the resolution shall not be in order.

15 (2) APPEALS OF RULINGS.—Appeals from deci16 sion of the Chair regarding application of the rules

17 of the House of Representatives to the procedure re18 lating to an approval resolution shall be decided

19 without debate.

20 (3) CONSIDERATION OF MORE THAN ONE AP21 PROVAL RESOLUTION.—It shall not be in order to

22 consider under this subsection more than one ap23 proval resolution under this section, except for con24 sideration of a similar Senate resolution (unless the

25 House has already rejected an approval resolution)
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1 or more than one motion to discharge described in

2 paragraph (1) with respect to an approval resolu3 tion.

4 (c) CONSIDERATION IN THE SENATE.—

5 (1) REFERRAL AND REPORTING.—An approval

6 resolution introduced in the Senate shall be placed

7 directly and immediately on the Calendar.

8 (2) IMPLEMENTING RESOLUTION FROM

9 HOUSE.—When the Senate receives from the House

10 of Representatives an approval resolution, the reso11 lution shall not be referred to committee and shall

12 be placed on the Calendar.

13 (3) CONSIDERATION OF SINGLE APPROVAL RES14 OLUTION.—After the Senate has proceeded to the

15 consideration of an approval resolution under this

16 subsection, then no other approval resolution origi17 nating in that same House shall be subject to the

18 procedures set forth in this subsection.

19 (4) MOTION NONDEBATABLE.—A motion to

20 proceed to consideration of an approval resolution

21 under this subsection shall not be debatable. It shall

22 not be in order to move to reconsider the vote by

23 which the motion to proceed was adopted or re24 jected, although subsequent motions to proceed may

25 be made under this paragraph.
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1 (5) LIMIT ON CONSIDERATION.—

2 (A) After no more than 2 hours of consid3 eration of an approval resolution, the Senate

4 shall proceed, without intervening action or de5 bate (except as permitted under paragraph (9)),

6 to vote on the final disposition thereof to the

7 exclusion of all motions, except a motion to re8 consider or table.

9 (B) The time for debate on the approval

10 resolution shall be equally divided between the

11 Majority Leader and the Minority Leader or

12 their designees.

13 (6) NO MOTION TO RECOMMIT.—A motion to

14 recommit an approval resolution shall not be in

15 order.

16 (7) DISPOSITION OF SENATE RESOLUTION.—If

17 the Senate has read for the third time an approval

18 resolution that originated in the Senate, then it shall

19 be in order at any time thereafter to move to pro20 ceed to the consideration of an approval resolution

21 for the same special message received from the

22 House of Representatives and placed on the Cal23 endar pursuant to paragraph (2), strike all after the

24 enacting clause, substitute the text of the Senate ap25 proval resolution, agree to the Senate amendment,
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1 and vote on final disposition of the House approval

2 resolution, all without any intervening action or de3 bate.

4 (8) CONSIDERATION OF HOUSE MESSAGE.—

5 Consideration in the Senate of all motions, amend6 ments, or appeals necessary to dispose of a message

7 from the House of Representatives on an approval

8 resolution shall be limited to not more than 1 hour.

9 Debate on each motion or amendment shall be lim10 ited to 30 minutes. Debate on any appeal or point

11 of order that is submitted in connection with the dis12 position of the House message shall be limited to 15

13 minutes. Any time for debate shall be equally divided

14 and controlled by the proponent and the majority

15 manager, unless the majority manager is a pro16 ponent of the motion, amendment, appeal, or point

17 of order, in which case the minority manager shall

18 be in control of the time in opposition.

19 (d) DEFINITIONS.—For purposes of this section—

20 (1) APPROVAL RESOLUTION.—The term ‘‘ap21 proval resolution’’ means only a concurrent resolu22 tion of either House of Congress which is introduced

23 as provided in subsection (a) with respect to the ap24 proval of a request from the Surface Transportation
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1 Board under section 11123(a)(4) of title 49, United

2 States Code.

3 (e) RULES OF HOUSE OF REPRESENTATIVES AND

4 SENATE.—This section is enacted by the Congress—

5 (1) as an exercise of the rulemaking power of

6 the House of Representatives and the Senate, re7 spectively, and as such they are deemed a part of

8 the rules of each House, respectively, but applicable

9 only with respect to the procedure to be followed in

10 that House in the case of approval resolutions de11 scribed in subsection (c); and they supersede other

12 rules only to the extent that they are inconsistent

13 therewith; and

14 (2) with full recognition of the constitutional

15 right of either House to change the rules (so far as

16 relating to the procedure of that House) at any time,

17 in the same manner and to the same extent as in

18 the case of any other rule of that House.

19 SEC. 5. PROCEDURAL RELIEF FOR SMALL RATE CASES.

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

21 49, United States Code, is amended by—

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

23 ‘‘The Board’’; and

24 (2) adding at the end thereof the following:
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1 ‘‘(B) Unless the Board finds that there is a compel2 ling need to permit discovery in a particular proceeding,

3 discovery shall not be permitted in a proceeding handled

4 under the guidelines established under subparagraph

5 (A).’’.

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

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

8 Transportation Board shall—

9 (1) review the rules and procedures applicable

10 to rate complaints and other complaints filed with

11 the Board by small shippers;

12 (2) identify any such rules or procedures that

13 are unduly burdensome to small shippers; and

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

15 is appropriate to reduce or eliminate the aspects of

16 the rules and procedures that the Board determines

17 under paragraph (2) to be unduly burdensome to

18 small shippers.

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

20 the Committee on Commerce, Science, and Transportation

21 of the Senate and the Committee on Transportation and

22 Infrastructure of the House of Representatives if the

23 Board determines that additional changes in the rules and

24 procedures described in subsection (b) are appropriate and

25 require commensurate changes in statutory law. In mak-
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1 ing that notification, the Board shall make recommenda2 tions concerning those changes.

3 SEC. 6. MARKET DOMINANCE STANDARD.

4 The Surface Transportation Board shall complete a

5 rulemaking, as outlined in STB Ex Parte No. 575, to de6 termine whether and to what extent it should consider

7 product and geographic competition in making market

8 dominance determinations.

9 SEC. 7. REVENUE ADEQUACY.

10 The Surface Transportation Board shall reexamine,

11 as outlined in STB Ex Parte No. 575, its standards and

12 procedures for determining adequate railroad revenue lev13 els under section 10704(a)(2) of title 49, United States

14 Code. In carrying out its reexamination, the Board is di15 rected to seek recommendations of a panel of three disin16 terested economists on the proper standards to apply. The

17 panel shall submit its report and recommendations simul18 taneously to the Surface Transportation Board and to the

19 Senate Committee on Commerce, Science, and Transpor20 tation and the House Committee on Transportation and

21 Infrastructure.

22 SEC. 8. BOTTLENECK RATES.

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

24 United States Code, is amended—
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1 (1) inserting ‘‘(a) IN GENERAL.—’’ before

2 ‘‘Rail carriers’’; and

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

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

5 rail carrier enter into a contract under section 10709 for

6 transportation that would require a through route with a

7 connecting carrier and there is no reasonable alternative

8 route that could be constructed without participation of

9 that connecting carrier, the connecting carrier shall, upon

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

11 used in conjunction with transportation provided pursuant

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

13 ‘‘(1) the interchange requested is not operation14 ally feasible; or

15 ‘‘(2) the through route would significantly im16 pair the connecting carrier’s ability to serve its other

17 traffic.

18 The connecting carrier shall establish a rate and through

19 route within 21 days unless the Board has made a deter20 mination that the connecting carrier is likely to prevail

21 in its claim under paragraph (1) or (2).’’.

22 (b) BOARD’S AUTHORITY TO PRESCRIBE DIVISION

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

24 States Code, is amended by striking ‘‘The Board shall’’
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1 and inserting ‘‘Except as provided in section 10703(b), the

2 Board shall’’.

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

4 States Code, is amended—

5 (1) by redesignating subsection (c) as sub6 section (d); and

7 (2) by inserting after subsection (b) the follow8 ing:

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

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

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

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

13 contract.’’.

14 SEC. 9. SIMPLIFIED DISPUTE RESOLUTION.

15 Within 180 days after the date of enactment of this

16 Act, the Surface Transportation Board shall promulgate

17 regulations adopting a simplified dispute resolution mech18 anism with the following features:

19 (1) IN GENERAL.—The simplified dispute reso20 lution mechanism will utilize expedited arbitration

21 with a minimum of discovery and may be used to de22 cide disputes between parties involving any matter

23 subject to the jurisdiction of the Board, other than

24 rate reasonableness cases that would be decided

25 under constrained market pricing principles.
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1 (2) APPLICABLE STANDARDS.—Arbitrators will

2 apply existing legal standards.

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

4 simplified dispute resolution mechanism is required

5 whenever at least one party to the dispute requests.

6 (4) 90-DAY TURNAROUND.—Arbitrators will

7 issue their decisions within 90 days after being ap8 pointed.

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

10 its own costs, and the costs of the arbitrator and

11 other administrative costs of arbitration will be

12 shared equally between and among the parties.

13 (6) DECISIONS PRIVATE; NOT PRECEDEN14 TIAL.—Except as otherwise provided by the Board,

15 decisions will remain private and will not constitute

16 binding precedent.

17 (7) DECISIONS BINDING AND ENFORCEABLE.—

18 Except as otherwise provided in paragraph (8), deci19 sions will be binding and enforceable by the Board.

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

21 unqualified right to appeal any decision to the

22 Board, in which case the Board will decide the mat23 ter de novo. In making its decision, the Board may

24 consider the decision of the arbitrator and any evi-
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1 dence and other material developed during the arbi2 tration.

3 (9) MUTUAL MODIFICATION.—Any procedure or

4 regulation adopted by the Board with respect to the

5 simplified dispute resolution may be modified or

6 eliminated by mutual agreement of all parties to the

7 dispute.

8 SEC. 10. PROMOTION OF COMPETITIVE RAIL SERVICE OP9 TIONS.

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

11 amended—

12 (1) by striking ‘‘and’’ in paragraph (4) of sub13 section (b);

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

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

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

17 following:

18 ‘‘(6) means and methods to encourage and ex19 pand competition between and among rail carriers in

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

21 (4) by inserting after the second sentence in

22 subsection (c) the following: ‘‘The Board may im23 pose conditions to encourage and expand competition

24 between and among rail carriers in the affected re25 gion or the national rail system, provided that such
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1 conditions do not cause substantial harm to the ben2 efits of the transaction to the affected carriers or the

3 public.’’.

4 SEC. 11. HOUSEHOLD GOODS COLLECTIVE ACTIVITIES.

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

6 amended by inserting ‘‘(other than an agreement affecting

7 only the transportation of household goods, as defined on

8 December 31, 1995)’’ after ‘‘agreement’’ in the first sen9 tence.

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