IIA
104TH CONGRESS
1ST SESSION
H. R. 2539
IN THE SENATE OF THE UNITED STATES
NOVEMBER 15, 1995
Received; read twice and referred to the Committee on Commerce, Science,
and Transportation
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 Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘ICC Termination Act
of 1995’’.
TITLE I—ABOLITION OF INTER-
STATE COMMERCE COMMIS-
SION
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
‘‘103.
JURISDICTION ........................................................................
10301
‘‘105.
RATES .......................................................................................
10501
‘‘107.
LICENSING ..............................................................................
10701
‘‘109.
OPERATIONS ..........................................................................
10901
‘‘111.
FINANCE ..................................................................................
11101
‘‘113.
FEDERAL-STATE RELATIONS ...........................................
11301
‘‘115.
ENFORCEMENT: INVESTIGATIONS, RIGHTS, AND
REMEDIES.
11501
‘‘117.
CIVIL AND CRIMINAL PENALTIES ...................................
11701
‘‘PART B—MOTOR CARRIERS, WATER CARRIERS, BROKERS, AND
FREIGHT FORWARDERS
‘‘CHAPTER
Sec.
‘‘131.
GENERAL PROVISIONS ........................................................
13101
‘‘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; REM-
EDIES.
14701
‘‘149.
CIVIL AND CRIMINAL PENALTIES ...................................
14901
‘‘PART A—RAIL
‘‘CHAPTER 101—GENERAL PROVISIONS
‘‘Sec.
‘‘10101. Rail transportation policy.
‘‘10102. Definitions.
‘‘10103. Remedies are exclusive.
‘‘§ 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 regu-
latory control over the rail transportation system
and to require fair and expeditious regulatory deci-
sions when regulation is required;
‘‘(3) to promote a safe and efficient rail trans-
portation system by allowing rail carriers to earn
adequate revenues, as determined by the Panel;
‘‘(4) to ensure the development and continu-
ation of a sound rail transportation system with ef-
fective 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 nec-
essary 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 manage-
ment of railroads;
‘‘(10) to require rail carriers, to the maximum
extent practicable, to rely on individual rate in-
creases, 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;
‘‘(12) 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 mini-
mizing the burden on rail carriers of developing and
maintaining the capability of providing such infor-
mation; and
‘‘(14) to encourage and promote energy con-
servation.
‘‘§ 10102. Definitions
‘‘In this part—
‘‘(1) ‘car service’ includes (A) the use, control,
supply, movement, distribution, exchange, inter-
change, and return of locomotives, cars, other vehi-
cles, 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;
‘‘(2) ‘control’, when referring to a relationship
between persons, includes actual control, legal con-
trol, 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;
‘‘(3) ‘Panel’ means the Transportation Adju-
dication Panel;
‘‘(4) ‘person’, in addition to its meaning under
section 1 of title 1, includes a trustee, receiver, as-
signee, or personal representative of a person;
‘‘(5) ‘rail carrier’ means a person providing
common carrier railroad transportation for com-
pensation, 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, termi-
nal facility, and a freight depot, yard, and
ground, used or necessary for transportation;
‘‘(7) ‘rate’ means a rate, fare, 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, yard, prop-
erty, facility, instrumentality, or equipment of
any kind related to the movement of passengers
or property, or both, by rail, regardless of own-
ership or an agreement concerning use; and
‘‘(B) services related to that movement, in-
cluding 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.
‘‘§10103. Remedies are exclusive
‘‘Except as otherwise provided in this part, the rem-
edies provided under this part with respect to regulation
of rail transportation are exclusive and preempt the rem-
edies provided under Federal or State law.
‘‘CHAPTER 103—JURISDICTION
‘‘Sec.
‘‘10301. General jurisdiction.
‘‘10302. Authority to exempt rail carrier transportation.
‘‘§ 10301. General jurisdiction
‘‘(a)(1) Subject to this chapter and other law, the
Panel has jurisdiction over transportation by rail carrier
that is—
‘‘(A) only by railroad; or
‘‘(B) by railroad and water, when the transpor-
tation is under common control, management, or ar-
rangement for a continuous carriage or shipment.
‘‘(2) Jurisdiction under paragraph (1) applies only to
transportation in the United States between a place in—
‘‘(A) a State and a place in the same or an-
other State;
‘‘(B) a State and a place in a territory or pos-
session of the United States;
‘‘(C) a territory or possession of the United
States and a place in another such territory or pos-
session;
‘‘(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 Panel over—
‘‘(1) transportation by rail carriers, and the
remedies provided in this part with respect to rates,
classifications, rules (including car service, inter-
change, 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, en-
tirely in one State,
is exclusive.
‘‘(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 con-
tracts 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 Panel
does not have jurisdiction under this part over mass trans-
portation provided by a local governmental authority.
‘‘(3)(A) Notwithstanding paragraph (2) of this sub-
section, a local governmental authority, described in para-
graph (2), is subject to applicable laws of the United
States related to—
‘‘(i) safety;
‘‘(ii) the representation of employees for collec-
tive bargaining; and
‘‘(iii) employment retirement, annuity, and un-
employment systems or other provisions related to
dealings between employees and employers.
‘‘(B) The Panel has jurisdiction under sections 10902
and 10903 of this title over mass transportation provided
by a local governmental authority. The enactment of the
ICC Termination Act of 1995 shall have no effect on
which employees and employers are covered by the Rail-
way Labor Act, the Railroad Retirement Act of 1974, the
Railroad Retirement Tax Act, and the Railroad Unem-
ployment Insurance Act.
‘‘§ 10302. Authority to exempt rail carrier transpor-
tation
‘‘(a) In a matter related to a rail carrier providing
transportation subject to the jurisdiction of the Panel
under this part, the Panel, to the maximum extent consist-
ent with this part, shall exempt a person, class of persons,
or a transaction or service whenever the Panel finds that
the application of a provision of this part—
‘‘(1) is not necessary to carry out the transpor-
tation policy of section 10101 of this title; and
‘‘(2) either—
‘‘(A) the transaction or service is of limited
scope; or
‘‘(B) the application of the provision is not
needed to protect shippers from the abuse of
market power.
‘‘(b) The Panel may, where appropriate, begin a pro-
ceeding under this section on its own initiative or on appli-
cation by the Secretary of Transportation or an interested
party. The Panel shall, within 90 days after receipt of any
such application, determine whether to begin an appro-
priate proceeding. If the Panel decides not to begin a pro-
ceeding, 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 one year after it is begun.
‘‘(c) The Panel may specify the period of time during
which an exemption granted under this section is effective.
‘‘(d) The Panel may revoke an exemption, to the ex-
tent it specifies, when it finds that application of a provi-
sion of this part to the person, class, or transportation
is necessary to carry out the transportation policy of sec-
tion 10101 of this title. The Panel shall, within 90 days
after receipt of a request for revocation under this sub-
section, determine whether to begin an appropriate pro-
ceeding. If the Panel decides not to begin a proceeding,
the reasons for the decision shall be published in the Fed-
eral Register. Any proceeding begun as a result of a re-
quest under this subsection shall be completed within one
year after it is begun.
‘‘(e) No exemption order issued pursuant to this sec-
tion shall operate to relieve any rail carrier from an obliga-
tion to provide contractual terms for liability and claims
which are consistent with the provisions of section 11506
of this title. Nothing in this subsection or section 11506
of this title shall prevent rail carriers from offering alter-
native terms nor give the Panel the authority to require
any specific level of rates or services based upon the provi-
sions of section 11506 of this title.
‘‘(f) The Panel may exercise its authority under this
section to exempt transportation that is provided by a rail
carrier.
‘‘(g) The Panel may not exercise its authority under
this section to relieve a rail carrier of its obligation to pro-
tect the interests of employees as required by this part.
‘‘CHAPTER 105—RATES
‘‘SUBCHAPTER I—GENERAL AUTHORITY
‘‘Sec.
‘‘10501. Standards for rates, classifications, through routes, rules, and prac-
tices.
‘‘10502. Authority for rail carriers to establish rates, classifications, rules, and
practices.
‘‘10503. Authority for rail carriers to establish through routes.
‘‘10504. Authority and criteria: rates, classifications, rules, and practices pre-
scribed by Panel.
‘‘10505. Authority: through routes, joint classifications, rates, and divisions pre-
scribed by Panel.
‘‘10506. Rate agreements: exemption from antitrust laws.
‘‘10507. Determination of market dominance in rail rate proceedings.
‘‘10508. Rail cost adjustment factor.
‘‘10509. Contracts.
‘‘SUBCHAPTER II—SPECIAL CIRCUMSTANCES
‘‘10521. Government traffic.
‘‘10522. Emergency rates.
‘‘10523. Car utilization.
‘‘SUBCHAPTER III—LIMITATIONS
‘‘10541. Prohibitions against discrimination by rail carriers.
‘‘10542. Facilities for interchange of traffic.
‘‘10543. Continuous carriage of freight.
‘‘10544. Transportation services or facilities furnished by shipper.
‘‘10545. Demurrage charges.
‘‘10546. Designation of certain routes by shippers.
‘‘SUBCHAPTER I—GENERAL AUTHORITY
‘‘§ 10501. 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 Panel under this part may not
discriminate in its rates against a connecting line of an-
other rail carrier providing transportation subject to the
jurisdiction of the Panel 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 sec-
tion and unless a rate is prohibited by a provision of this
part, a rail carrier providing transporation subject to the
jurisdiction of the Panel under this part may establish any
rate for transportation or other service provided by the
rail carrier.
‘‘(d)(1) If the Panel determines, under section 10507
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.
‘‘(2) In determining whether a rate established by a
rail carrier is reasonable for purposes of this section, the
Panel 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 deter-
mine whether one commodity is paying an unreason-
able share of the carrier’s overall revenues,
recognizing the policy of this part that rail carriers shall
earn adequate revenues, as established by the Panel under
section 10504(a)(2) of this title.
‘‘(3) The Panel shall, within one year after the date
of the enactment of this paragraph, complete the pending
Interstate Commerce Commission non-coal rate guidelines
proceeding.
‘‘§ 10502. Authority for rail carriers to establish rates,
classifications, rules, and practices
‘‘A rail carrier providing transportation or service
subject to the jurisdiction of the Panel under this part
shall establish reasonable—
‘‘(1) rates, to the extent required by section
10507, 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.
‘‘§ 10503. Authority for rail carriers to establish
through routes
‘‘Rail carriers providing transportation subject to the
jurisdiction of the Panel under this part shall establish
through routes with each other, shall establish rates and
classifications applicable to those routes, and shall estab-
lish rules for their operation and provide—
‘‘(1) reasonable facilities for operating the
through route; and
‘‘(2) reasonable compensation to persons enti-
tled to compensation for services related to the
through route.
‘‘§ 10504. Authority and criteria: rates, classifications,
rules, and practices prescribed by Panel
‘‘(a)(1) When the Panel, after a full hearing, decides
that a rate charged or collected by a rail carrier for trans-
portation subject to the jurisdiction of the Panel under
this part, or that a classification, rule, or practice of that
carrier does or will violate this part, the Panel may pre-
scribe the maximum rate, classification, rule, or practice
to be followed. The Panel 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 prac-
tice prescribed by the Panel.
‘‘(2) The Panel shall maintain and revise as nec-
essary 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 obso-
lescence, plus a reasonable and economic profit or return
(or both) on capital employed in the business. The Panel
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 deprecia-
tion adequate to support prudent capital outlays, as-
sure 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 ade-
quate to provide a sound transportation system in
the United States.
‘‘(3) On the basis of the standards and procedures
described in paragraph (2), the Panel shall annually deter-
mine which rail carriers are earning adequate revenues.
‘‘(b) The Panel may begin a proceeding under this
section on its own initiative or on complaint. A complaint
under subsection (a) of this section must be made under
section 11501 of this title, but the proceeding may also
be in extension of a complaint pending before the Panel.
‘‘§ 10505. Authority: through routes, joint classifica-
tions, rates, and divisions prescribed by
Panel
‘‘(a)(1) The Panel 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 transpor-
tation subject to the jurisdiction of the Panel under this
part.
‘‘(2) The Panel 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 intermedi-
ate railroad lies between the terminals of the through
route only when—
‘‘(A) required under sections 10541, 10542, or
10902 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 Panel decides that the proposed
through route is needed to provide adequate, and
more efficient or economic, transportation.
The Panel shall give reasonable preference, subject to this
subsection, to the rail carrier originating the traffic when
prescribing through routes.
‘‘(b) The Panel shall prescribe the division of joint
rates to be received by a rail carrier providing transpor-
tation subject to its jurisdiction under this part when it
decides that a division of joint rates established by the
participating carriers under section 10503 of this title, or
under a decision of the Panel under subsection (a) of this
section, does or will violate section 10501 of this title.
‘‘(c) If a division of a joint rate prescribed under a
decision of the Panel is later found to violate section
10501 of this title, the Panel 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 Panel decides is justified. The Panel may
make a decision under this subsection effective as part of
its original decision.
‘‘§ 10506. Rate agreements: exemption from antitrust
laws
‘‘(a)(1) In this subsection—
‘‘(A) the term ‘affiliate’ means a person control-
ling, controlled by, or under common control or own-
ership with another person and ‘ownership’ refers to
equity holdings in a business entity of at least 5 per-
cent;
‘‘(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 trans-
portation (exclusive of terminal services by switch-
ing, 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 Panel
shall by regulation prescribe.
‘‘(2)(A) A rail carrier providing transportation sub-
ject to the jurisdiction of the Panel 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
Panel for approval of that agreement under this sub-
section. The Panel 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 nec-
essary to make the agreement further that policy as a con-
dition of its approval. If the Panel approves the agree-
ment, it may be made and carried out under its terms
and under the conditions required by the Panel, 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 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 par-
ties and other persons with respect to making or carrying
out the agreement. However, the Panel 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 veri-
fied statement under subparagraph (B) of this paragraph.
‘‘(B) The Panel may approve an agreement under
subparagraph (A) of this paragraph only when the rail
carriers applying for approval file a verified statement
with the Panel. 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 offi-
cers 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 partici-
pate 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 Panel 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 partici-
pate in agreements related to, or to vote on rates re-
lated 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 re-
lated to, or to vote on rates except with a carrier
which forms part of a particular single route. If the
Panel 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 com-
bination 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 al-
leged, evidence of a discussion or agreement between or
among such rail carrier and one or more other rail car-
riers, or of any rate or other action resulting from such
discussion or agreement, shall not be admissible if the dis-
cussion or agreement—
‘‘(I) was in accordance with an agreement ap-
proved 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 satis-
fied 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 vot-
ing records be submitted to the Panel and made available
to other Federal agencies in connection with their statu-
tory 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 sub-
section, one or more rail carriers may enter into an agree-
ment, without obtaining prior Panel approval, that pro-
vides solely for compilation, publication, and other dis-
tribution 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 Panel may, upon applica-
tion or on its own initiative, investigate whether the par-
ties to such an agreement have exceeded its scope, and
upon a finding that they have, the Panel 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 Panel under this part, for use by
such rail carriers of rolling stock owned or leased by such
shippers, the shippers shall apply to the Panel for approval
of that agreement under this paragraph. The Panel shall
approve the agreement only when it finds that the making
and carrying out of the agreement will further the trans-
portation 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 ap-
proval. If the Panel approves the agreement, it may be
made and carried out under its terms and under the terms
required by the Panel, 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 Panel 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 Panel approves an agreement described
in subparagraph (A) of this paragraph and the shippers
entering into such agreement and the rail carriers propos-
ing to use rolling stock owned or leased by such shippers,
under payment by such carriers or under a published al-
lowance, are unable to agree upon the amount of com-
pensation 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 dis-
pute to the Panel. The Panel shall render a binding deci-
sion, based upon a standard of reasonableness and after
taking into consideration any past precedents on the sub-
ject matter of the negotiations, no later than 90 days after
the date of the submission of the dispute to the Panel.
‘‘(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 Panel may require an organization estab-
lished or continued under an agreement approved under
this section to maintain records and submit reports. The
Panel may inspect a record maintained under this section.
‘‘(c) The Panel 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
Panel shall postpone the effective date of a change of an
agreement under this subsection for whatever period it de-
termines to be reasonably necessary to avoid unreasonable
hardship.
‘‘(d) The Panel may begin a proceeding under this
section on its own initiative or on application. Action of
the Panel under this section—
‘‘(1) approving an agreement;
‘‘(2) denying, ending, or changing approval;
‘‘(3) prescribing the conditions on which ap-
proval 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) The Panel shall review each agreement approved
under subsection (a) of this section periodically, but at
least once every 3 years—
‘‘(1) to determine whether the agreement or an
organization established or continued under one of
those agreements still complies with the require-
ments of that subsection and the public interest; and
‘‘§ 10507. 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.
‘‘(b) When a rate for transportation by a rail carrier
providing transportation subject to the jurisdiction of the
Panel under this part is challenged as being unreasonably
high, the Panel shall determine, within 90 days after the
start of a proceeding, whether the rail carrier proposing
the rate has market dominance over the transportation to
which the rate applies. The Panel may make that deter-
mination on its own initiative or on complaint. A finding
by the Panel 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 Panel or set aside by a court of com-
petent jurisdiction.
‘‘(c) When the Panel finds in any proceeding that a
rail carrier proposing or defending a rate for transpor-
tation 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 pro-
posed rate exceeds a reasonable maximum.
‘‘(d)(1)(A) In making a determination under this sec-
tion, the Panel 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 car-
rier’s unadjusted costs, calculated using the Uniform Rail
Costing System cost finding methodology (or an alter-
native methodology adopted by the Panel 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 Panel. A rail carrier
may meet its burden of proof under this subsection by es-
tablishing its variable costs in accordance with this para-
graph, but a shipper may rebut that showing by evidence
of such type, and in accordance with such burden of proof,
as the Panel shall prescribe.
‘‘(2) A finding by the Panel 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 mar-
ket dominance over such transportation; or
‘‘(B) the proposed rate exceeds or does not ex-
ceed a reasonable maximum.
‘‘§ 10508. Rail cost adjustment factor
‘‘(a) The Panel shall, as often as practicable, but in
no event less often than quarterly, publish a rail cost ad-
justment 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 Panel,
with appropriate adjustments to reflect the change in com-
position 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
Panel under subsection (a) of this section shall take into
account changes in railroad productivity. The Panel shall
also publish a similar index that does not take into ac-
count changes in railroad productivity.
‘‘§ 10509. Contracts
‘‘(a) One or more rail carriers providing transpor-
tation subject to the jurisdiction of the Panel under this
part may enter into a contract with one or more pur-
chasers 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 pro-
vided 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 sub-
ject to this part, and may not be subsequently challenged
before the Panel 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 ac-
tion in an appropriate State court or United States dis-
trict court, unless the parties otherwise agree. The district
courts of the United States shall not have jurisdiction pur-
suant to this section based on section 1331 or 1337 of
title 28, United States Code.
‘‘(d)(1) A summary of each contract for the transpor-
tation of agricultural commodities entered into under this
section shall be filed with the Panel, containing such
nonconfidential information as the Panel prescribes. The
Panel 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 require-
ments 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 au-
thorized by this section remains subject to the common
carrier obligation set forth in section 10901, with respect
to rail transportation not provided under such a contract.
‘‘(g) The Panel shall implement by regulation admin-
istrative complaint remedies substantively equivalent to
the provisions of section 10713 of this title, as in effect
before the date of the enactment of the ICC Termination
Act of 1995, with regard to contracts for the transpor-
tation of agricultural commodities. Such regulations shall
be adopted no later than 90 days after the date of the
enactment of the ICC Termination Act of 1995.
‘‘SUBCHAPTER II—SPECIAL CIRCUMSTANCES
‘‘§ 10521. Government traffic
‘‘A rail 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 rail carrier lawfully operating in the area
where the transportation would be provided.
‘‘§ 10522. Emergency rates
‘‘(a) The Panel may authorize a rail carrier providing
transportation or service subject to its jurisdiction under
this part to give reduced rates for service and transpor-
tation of property to or from an area in the United States
to provide relief during emergencies. When the Panel
takes action under this subsection, it must—
‘‘(1) define the area of the United States in
which the reduced rates will apply;
‘‘(2) specify the period during which the re-
duced rates are to be in effect; and
‘‘(3) define the class of persons entitled to the
reduced rates.
‘‘(b) The Panel may specify those persons entitled to
reduced rates by reference to those persons designated as
being in need of relief by the United States Government
or by a State government authorized to assist in providing
relief during the emergency. The Panel may act under this
section without regard to subchapter II of chapter 5 of
title 5.
‘‘§ 10523. 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 other-
wise applicable to the movement. The Panel shall facilitate
development of such charges so as to increase the utiliza-
tion of equipment.
‘‘SUBCHAPTER III—LIMITATIONS
‘‘§ 10541. Prohibitions against discrimination by rail
carriers
‘‘(a)(1) A rail carrier providing transportation or
service subject to the jurisdiction of the Panel under this
part may not subject a person, place, port, or type of traf-
fic to unreasonable discrimination.
‘‘(2) For purposes of this section, a rail carrier en-
gages in unreasonable discrimination when it charges or
receives from a person a different compensation for a serv-
ice rendered, or to be rendered, in transportation the rail
carrier may perform under this part than it charges or