H. R. 2539
One Hundred Fourth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the fourth day of January, one thousand nine hundred and ninety-five
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 Termi-
nation 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.
H. R. 2539—2
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
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‘‘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 with-
out detriment to the public health and safety;
‘‘(9) to encourage honest and efficient management of rail-
roads;
‘‘(10) to require rail carriers, to the maximum extent prac-
ticable, 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;
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‘‘(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, move-
ment, distribution, exchange, interchange, and return of loco-
motives, 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 per-
sons, 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 com-
pany, 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 pas-
sengers or property, or both, by rail, regardless of owner-
ship or an agreement concerning use; and
‘‘(B) services related to that movement, including
receipt, delivery, elevation, transfer in transit, refrigera-
tion, 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.
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‘‘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 pro-
vided 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 transpor-
tation 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 pro-
vided 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 bargain-
ing; and
H. R. 2539—6
‘‘(iii) employment, retirement, annuity, and unemployment
systems or other provisions related to dealings between employ-
ees 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 con-
tract 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 proceed-
ing 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 sub-
section or section 11706 of this title shall prevent rail carriers
from offering alternative terms nor give the Board the authority
H. R. 2539—7
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 prac-
tices.
‘‘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 pre-
scribed 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 juris-
diction 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 distribu-
tion 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 transpor-
tation to which a particular rate applies, the rate established by
such carrier for such transportation must be reasonable.
H. R. 2539—8
‘‘(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 sim-
plified 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, classi-
fications, rules, and practices
‘‘A rail carrier providing transportation or service subject to
the jurisdiction of the Board under this part shall establish reason-
able—
‘‘(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 transpor-
tation or service.
‘‘§ 10703. Authority for rail carriers to establish through
routes
‘‘Rail carriers providing transportation subject to the jurisdic-
tion 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 estab-
lish 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 com-
pensation 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 classifica-
tion, 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
H. R. 2539—9
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 stand-
ards 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 manage-
ment, 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 attain-
ing 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 Termi-
nation 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 avoid-
ing delay in the discovery and evidentiary phases of such proceed-
ings 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—
H. R. 2539—10
‘‘(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 alter-
native 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 sub-
section, 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 com-
plaint 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, con-
trolled 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 fur-
ther 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
H. R. 2539—11
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 carry-
ing 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 head-
quarter’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 control-
ling 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 dis-
position 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 agree-
ments 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 agree-
ments related to, or to vote on rates related to a particular
interline movement unless that rail carrier practicably partici-
pates 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
H. R. 2539—12
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 agree-
ment, 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 com-
pensation 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 subpara-
graph (A) of this paragraph and the shippers entering into such
agreement and the rail carriers proposing to use rolling stock owned