H. R. 2539—13
or leased by such shippers, under payment by such carriers or
under a published allowance, are unable to agree upon the amount
of compensation to be paid for the use of such rolling stock, any
party directly involved in the negotiations may require that the
matter be settled by submitting the issues in dispute to the Board.
The Board shall render a binding decision, based upon a standard
of reasonableness and after taking into consideration any past
precedents on the subject matter of the negotiations, no later than
90 days after the date of the submission of the dispute to the
Board.
‘‘(C) Nothing in this paragraph shall be construed to change
the law in effect prior to the effective date of the Staggers Rail
Act of 1980 with respect to the obligation of rail carriers to utilize
rolling stock owned or leased by shippers.
‘‘(b) The Board may require an organization established or
continued under an agreement approved under this section to main-
tain records and submit reports. The Board may inspect a record
maintained under this section.
‘‘(c) The Board may review an agreement approved under sub-
section (a) of this section and shall change the conditions of approval
or terminate it when necessary to comply with the public interest
and subsection (a). The Board shall postpone the effective date
of a change of an agreement under this subsection for whatever
period it determines to be reasonably necessary to avoid unreason-
able hardship.
‘‘(d) The Board may begin a proceeding under this section
on its own initiative or on application. Action of the Board under
this section—
‘‘(1) approving an agreement;
‘‘(2) denying, ending, or changing approval;
‘‘(3) prescribing the conditions on which approval is
granted; or
‘‘(4) changing those conditions,
has effect only as related to application of the antitrust laws referred
to in subsection (a) of this section.
‘‘(e)(1) The Federal Trade Commission, in consultation with
the Antitrust Division of the Department of Justice, shall prepare
periodically an assessment of, and shall report to the Board on—
‘‘(A) possible anticompetitive features of—
‘‘(i) agreements approved or submitted for approval
under subsection (a) of this section; and
‘‘(ii) an organization operating under those agreements;
and
‘‘(B) possible ways to alleviate or end an anticompetitive
feature, effect, or aspect in a manner that will further the
goals of this part and of the transportation policy of section
10101 of this title.
‘‘(2) Reports received by the Board under this subsection shall
be published and made available to the public under section 552(a)
of title 5.
‘‘§ 10707. Determination of market dominance in rail rate
proceedings
‘‘(a) In this section, ‘market dominance’ means an absence of
effective competition from other rail carriers or modes of transpor-
tation for the transportation to which a rate applies.
H. R. 2539—14
‘‘(b) When a rate for transportation by a rail carrier providing
transportation subject to the jurisdiction of the Board under this
part is challenged as being unreasonably high, the Board shall
determine whether the rail carrier proposing the rate has market
dominance over the transportation to which the rate applies. The
Board may make that determination on its own initiative or on
complaint. A finding by the Board that the rail carrier does not
have market dominance is determinative in a proceeding under
this part related to that rate or transportation unless changed
or set aside by the Board or set aside by a court of competent
jurisdiction.
‘‘(c) When the Board finds in any proceeding that a rail carrier
proposing or defending a rate for transportation has market domi-
nance over the transportation to which the rate applies, it may
then determine that rate to be unreasonable if it exceeds a reason-
able maximum for that transportation. However, a finding of market
dominance does not establish a presumption that the proposed
rate exceeds a reasonable maximum.
‘‘(d)(1)(A) In making a determination under this section, the
Board shall find that the rail carrier establishing the challenged
rate does not have market dominance over the transportation to
which the rate applies if such rail carrier proves that the rate
charged results in a revenue-variable cost percentage for such
transportation that is less than 180 percent.
‘‘(B) For purposes of this section, variable costs for a rail carrier
shall be determined only by using such carrier’s unadjusted costs,
calculated using the Uniform Rail Costing System cost finding
methodology (or an alternative methodology adopted by the Board
in lieu thereof) and indexed quarterly to account for current wage
and price levels in the region in which the carrier operates, with
adjustments specified by the Board. A rail carrier may meet its
burden of proof under this subsection by establishing its variable
costs in accordance with this paragraph, but a shipper may rebut
that showing by evidence of such type, and in accordance with
such burden of proof, as the Board shall prescribe.
‘‘(2) A finding by the Board that a rate charged by a rail
carrier results in a revenue-variable cost percentage for the
transportation to which the rate applies that is equal to or greater
than 180 percent does not establish a presumption that—
‘‘(A) such rail carrier has or does not have market domi-
nance over such transportation; or
‘‘(B) the proposed rate exceeds or does not exceed a reason-
able maximum.
‘‘§ 10708. Rail cost adjustment factor
‘‘(a) The Board shall, as often as practicable, but in no event
less often than quarterly, publish a rail cost adjustment factor
which shall be a fraction, the numerator of which is the latest
published Index of Railroad Costs (which index shall be compiled
or verified by the Board, with appropriate adjustments to reflect
the change in composition of railroad costs, including the quality
and mix of material and labor) and the denominator of which
is the same index for the fourth quarter of every fifth year, begin-
ning with the fourth quarter of 1992.
‘‘(b) The rail cost adjustment factor published by the Board
under subsection (a) of this section shall take into account changes
in railroad productivity. The Board shall also publish a similar
H. R. 2539—15
index that does not take into account changes in railroad
productivity.
‘‘§ 10709. Contracts
‘‘(a) One or more rail carriers providing transportation subject
to the jurisdiction of the Board under this part may enter into
a contract with one or more purchasers of rail services to provide
specified services under specified rates and conditions.
‘‘(b) A party to a contract entered into under this section shall
have no duty in connection with services provided under such
contract other than those duties specified by the terms of the
contract.
‘‘(c)(1) A contract that is authorized by this section, and
transportation under such contract, shall not be subject to this
part, and may not be subsequently challenged before the Board
or in any court on the grounds that such contract violates a provi-
sion of this part.
‘‘(2) The exclusive remedy for any alleged breach of a contract
entered into under this section shall be an action in an appropriate
State court or United States district court, unless the parties other-
wise agree. This section does not confer original jurisdiction on
the district courts of the United States based on section 1331
or 1337 of title 28, United States Code.
‘‘(d)(1) A summary of each contract for the transportation of
agricultural products (including grain, as defined in section 3 of
the United States Grain Standards Act (7 U.S.C. 75) and products
thereof) entered into under this section shall be filed with the
Board, containing such nonconfidential information as the Board
prescribes. The Board shall publish special rules for such contracts
in order to ensure that the essential terms of the contract are
available to the general public.
‘‘(2) Documents, papers, and records (and any copies thereof)
relating to a contract described in subsection (a) shall not be subject
to the mandatory disclosure requirements of section 552 of title
5.
‘‘(e) Any lawful contract between a rail carrier and one or
more purchasers of rail service that was in effect on the effective
date of the Staggers Rail Act of 1980 shall be considered a contract
authorized by this section.
‘‘(f) A rail carrier that enters into a contract as authorized
by this section remains subject to the common carrier obligation
set forth in section 11101, with respect to rail transportation not
provided under such a contract.
‘‘(g)(1) No later than 30 days after the date of filing of a
summary of a contract under this section, the Board may, on
complaint, begin a proceeding to review such contract on the
grounds described in this subsection.
‘‘(2)(A) A complaint may be filed under this subsection—
‘‘(i) by a shipper on the grounds that such shipper individ-
ually will be harmed because the proposed contract unduly
impairs the ability of the contracting rail carrier or carriers
to meet their common carrier obligations to the complainant
under section 11101 of this title; or
‘‘(ii) by a port only on the grounds that such port individ-
ually will be harmed because the proposed contract will result
in unreasonable discrimination against such port.
H. R. 2539—16
‘‘(B) In addition to the grounds for a complaint described in
subparagraph (A) of this paragraph, a complaint may be filed by
a shipper of agricultural commodities on the grounds that such
shipper individually will be harmed because—
‘‘(i) the rail carrier has unreasonably discriminated by
refusing to enter into a contract with such shipper for rates
and services for the transportation of the same type of commod-
ity under similar conditions to the contract at issue, and that
shipper was ready, willing, and able to enter into such a con-
tract at a time essentially contemporaneous with the period
during which the contract at issue was offered; or
‘‘(ii) the proposed contract constitutes a destructive competi-
tive practice under this part.
In making a determination under clause (ii) of this subparagraph,
the Board shall consider the difference between contract rates and
published single car rates.
‘‘(C) For purposes of this paragraph, the term ‘unreasonable
discrimination’ has the same meaning as such term has under
section 10741 of this title.
‘‘(3)(A) Within 30 days after the date a proceeding is commenced
under paragraph (1) of this subsection, or within such shorter
time period after such date as the Board may establish, the Board
shall determine whether the contract that is the subject of such
proceeding is in violation of this section.
‘‘(B) If the Board determines, on the basis of a complaint
filed under paragraph (2)(B)(i) of this subsection, that the grounds
for a complaint described in such paragraph have been established
with respect to a rail carrier, the Board shall, subject to the provi-
sions of this section, order such rail carrier to provide rates and
service substantially similar to the contract at issue with such
differentials in terms and conditions as are justified by the evidence.
‘‘(h)(1) Any rail carrier may, in accordance with the terms
of this section, enter into contracts for the transportation of agricul-
tural commodities (including forest products, but not including wood
pulp, wood chips, pulpwood or paper) involving the utilization of
carrier owned or leased equipment not in excess of 40 percent
of the capacity of such carrier’s owned or leased equipment by
major car type (plain boxcars, covered hopper cars, gondolas and
open top hoppers, coal cars, bulkhead flatcars, pulpwood rackcars,
and flatbed equipment, including TOFC/COFC).
‘‘(2) The Board may, on request of a rail carrier or other
party or on its own initiative, grant such relief from the limitations
of paragraph (1) of this subsection as the Board considers appro-
priate, if it appears that additional equipment may be made avail-
able without impairing the rail carrier’s ability to meet its common
carrier obligations under section 11101 of this title.
‘‘(3)(A) This subsection shall cease to be effective after Septem-
ber 30, 1998.
‘‘(B) Before October 1, 1997, the National Grain Car Council
and the Railroad-Shipper Transportation Advisory Council shall
make recommendations to Congress on whether to extend the
effectiveness of or otherwise modify this subsection.
H. R. 2539—17
‘‘SUBCHAPTER II—SPECIAL CIRCUMSTANCES
‘‘§ 10721. Government traffic
‘‘A rail carrier providing transportation or service for the United
States Government may transport property or individuals for the
United States Government without charge or at a rate reduced
from the applicable commercial rate. Section 3709 of the Revised
Statutes (41 U.S.C. 5) does not apply when transportation for
the United States Government can be obtained from a rail carrier
lawfully operating in the area where the transportation would be
provided.
‘‘§ 10722. Car utilization
‘‘In order to encourage more efficient use of freight cars, not-
withstanding any other provision of this part, rail carriers shall
be permitted to establish premium charges for special services
or special levels of services not otherwise applicable to the move-
ment. The Board shall facilitate development of such charges so
as to increase the utilization of equipment.
‘‘SUBCHAPTER III—LIMITATIONS
‘‘§ 10741. Prohibitions against discrimination by rail carriers
‘‘(a)(1) A rail carrier providing transportation or service subject
to the jurisdiction of the Board under this part may not subject
a person, place, port, or type of traffic to unreasonable discrimina-
tion.
‘‘(2) For purposes of this section, a rail carrier engages in
unreasonable discrimination when it charges or receives from a
person a different compensation for a service rendered, or to be
rendered, in transportation the rail carrier may perform under
this part than it charges or receives from another person for
performing a like and contemporaneous service in the transpor-
tation of a like kind of traffic under substantially similar cir-
cumstances.
‘‘(b) This section shall not apply to—
‘‘(1) contracts described in section 10709 of this title;
‘‘(2) rail rates applicable to different routes; or
‘‘(3) discrimination against the traffic of another carrier
providing transportation by any mode.
‘‘(c) Differences between rates, classifications, rules, and prac-
tices of rail carriers do not constitute a violation of this section
if such differences result from different services provided by rail
carriers.
‘‘§ 10742. Facilities for interchange of traffic
‘‘A rail carrier providing transportation subject to the jurisdic-
tion of the Board under this part shall provide reasonable, proper,
and equal facilities that are within its power to provide for the
interchange of traffic between, and for the receiving, forwarding,
and delivering of passengers and property to and from, its respective
line and a connecting line of another rail carrier or of a water
carrier providing transportation subject to chapter 137.
‘‘§ 10743. Liability for payment of rates
‘‘(a)(1) Liability for payment of rates for transportation for
a shipment of property by a shipper or consignor to a consignee
H. R. 2539—18
other than the shipper or consignor, is determined under this sub-
section when the transportation is provided by a rail carrier under
this part. When the shipper or consignor instructs the rail carrier
transporting the property to deliver it to a consignee that is an
agent only, not having beneficial title to the property, the consignee
is liable for rates billed at the time of delivery for which the
consignee is otherwise liable, but not for additional rates that
may be found to be due after delivery if the consignee gives written
notice to the delivering carrier before delivery of the property—
‘‘(A) of the agency and absence of beneficial title; and
‘‘(B) of the name and address of the beneficial owner of
the property if it is reconsigned or diverted to a place other
than the place specified in the original bill of lading.
‘‘(2) When the consignee is liable only for rates billed at the
time of delivery under paragraph (1) of this subsection, the shipper
or consignor, or, if the property is reconsigned or diverted, the
beneficial owner, is liable for those additional rates regardless of
the bill of lading or contract under which the property was trans-
ported. The beneficial owner is liable for all rates when the property
is reconsigned or diverted by an agent but is refused or abandoned
at its ultimate destination if the agent gave the rail carrier in
the reconsignment or diversion order a notice of agency and the
name and address of the beneficial owner. A consignee giving the
rail carrier, and a reconsignor or diverter giving a rail carrier,
erroneous information about the identity of the beneficial owner
of the property is liable for the additional rates.
‘‘(b) Liability for payment of rates for transportation for a
shipment of property by a shipper or consignor, named in the
bill of lading as consignee, is determined under this subsection
when the transportation is provided by a rail carrier under this
part. When the shipper or consignor gives written notice, before
delivery of the property, to the line-haul rail carrier that is to
make ultimate delivery—
‘‘(1) to deliver the property to another party identified
by the shipper or consignor as the beneficial owner of the
property; and
‘‘(2) that delivery is to be made to that party on payment
of all applicable transportation rates;
that party is liable for the rates billed at the time of delivery
and for additional rates that may be found to be due after delivery
if that party does not pay the rates required to be paid under
paragraph (2) of this subsection on delivery. However, if the party
gives written notice to the delivering rail carrier before delivery
that the party is not the beneficial owner of the property and
gives the rail carrier the name and address of the beneficial owner,
then the party is not liable for those additional rates. A shipper,
consignor, or party to whom delivery is made that gives the deliver-
ing rail carrier erroneous information about the identity of the
beneficial owner, is liable for the additional rates regardless of
the bill of lading or contract under which the property was trans-
ported. This subsection does not apply to a prepaid shipment of
property.
‘‘(c)(1) A rail carrier may bring an action to enforce liability
under subsection (a) of this section. That rail carrier must bring
the action during the period provided in section 11705(a) of this
title or by the end of the 6th month after final judgment against
H. R. 2539—19
it in an action against the consignee, or the beneficial owner named
by the consignee or agent, under that section.
‘‘(2) A rail carrier may bring an action to enforce liability
under subsection (b) of this section. That carrier must bring the
action during the period provided in section 11705(a) of this title
or by the end of the 6th month after final judgment against it
in an action against the shipper, consignor, or other party under
that section.
‘‘§ 10744. Continuous carriage of freight
‘‘A rail carrier providing transportation or service subject to
the jurisdiction of the Board under this part may not enter a
combination or arrangement to prevent the carriage of freight from
being continuous from the place of shipment to the place of destina-
tion whether by change of time schedule, carriage in different
cars, or by other means. The carriage of freight by those rail
carriers is considered to be a continuous carriage from the place
of shipment to the place of destination when a break of bulk,
stoppage, or interruption is not made in good faith for a necessary
purpose, and with the intent of avoiding or unnecessarily interrupt-
ing the continuous carriage or of evading this part.
‘‘§ 10745. Transportation services or facilities furnished by
shipper
‘‘A rail carrier providing transportation or service subject to
the jurisdiction of the Board under this part may establish a charge
or allowance for transportation or service for property when the
owner of the property, directly or indirectly, furnishes a service
related to or an instrumentality used in the transportation or
service. The Board may prescribe the maximum reasonable charge
or allowance a rail carrier subject to its jurisdiction may pay for
a service or instrumentality furnished under this section. The Board
may begin a proceeding under this section on its own initiative
or on application.
‘‘§ 10746. Demurrage charges
‘‘A rail carrier providing transportation subject to the jurisdic-
tion of the Board under this part shall compute demurrage charges,
and establish rules related to those charges, in a way that fulfills
the national needs related to—
‘‘(1) freight car use and distribution; and
‘‘(2) maintenance of an adequate supply of freight cars
to be available for transportation of property.
‘‘§ 10747. Designation of certain routes by shippers
‘‘(a)(1) When a person delivers property to a rail carrier for
transportation subject to the jurisdiction of the Board under this
part, the person may direct the rail carrier to transport the property
over an established through route. When competing rail lines con-
stitute a part of the route, the person shipping the property may
designate the lines over which the property will be transported.
The designation must be in writing. A rail carrier may be directed
to transport property over a particular through route when—
‘‘(A) there are at least 2 through routes over which the
property could be transported;
‘‘(B) a through rate has been established for transportation
over each of those through routes; and
H. R. 2539—20
‘‘(C) the rail carrier is a party to those routes and rates.
‘‘(2) A rail carrier directed to route property transported under
paragraph (1) of this subsection must issue a through bill of lading
containing the routing instructions and transport the property
according to the instructions. When the property is delivered to
a connecting rail carrier, that rail carrier must also receive and
transport it according to the routing instructions and deliver it
to the next succeeding rail carrier or consignee according to the
instructions.
‘‘(b) The Board may prescribe exceptions to the authority of
a person to direct the movement of traffic under subsection (a)
of this section.
‘‘CHAPTER 109—LICENSING
‘‘Sec.
‘‘10901. Authorizing construction and operation of railroad lines.
‘‘10902. Short line purchases by Class II and Class III rail carriers.
‘‘10903. Filing and procedure for application to abandon or discontinue.
‘‘10904. Offers of financial assistance to avoid abandonment and discontinuance.
‘‘10905. Offering abandoned rail properties for sale for public purposes.
‘‘10906. Exception.
‘‘10907. Railroad development.
‘‘§ 10901. Authorizing construction and operation of railroad
lines
‘‘(a) A person may—
‘‘(1) construct an extension to any of its railroad lines;
‘‘(2) construct an additional railroad line;
‘‘(3) provide transportation over, or by means of, an
extended or additional railroad line; or
‘‘(4) in the case of a person other than a rail carrier,
acquire a railroad line or acquire or operate an extended or
additional railroad line,
only if the Board issues a certificate authorizing such activity
under subsection (c).
‘‘(b) A proceeding to grant authority under subsection (a) of
this section begins when an application is filed. On receiving the
application, the Board shall give reasonable public notice, including
notice to the Governor of any affected State, of the beginning
of such proceeding.
‘‘(c) The Board shall issue a certificate authorizing activities
for which such authority is requested in an application filed under
subsection (b) unless the Board finds that such activities are
inconsistent with the public convenience and necessity. Such certifi-
cate may approve the application as filed, or with modifications,
and may require compliance with conditions (other than labor
protection conditions) the Board finds necessary in the public
interest.
‘‘(d)(1) When a certificate has been issued by the Board under
this section authorizing the construction or extension of a railroad
line, no other rail carrier may block any construction or extension
authorized by such certificate by refusing to permit the carrier
to cross its property if—
‘‘(A) the construction does not unreasonably interfere with
the operation of the crossed line;
‘‘(B) the operation does not materially interfere with the
operation of the crossed line; and
H. R. 2539—21
‘‘(C) the owner of the crossing line compensates the owner
of the crossed line.
‘‘(2) If the parties are unable to agree on the terms of operation
or the amount of payment for purposes of paragraph (1) of this
subsection, either party may submit the matters in dispute to
the Board for determination. The Board shall make a determination
under this paragraph within 120 days after the dispute is submitted
for determination.
‘‘§ 10902. Short line purchases by Class II and Class III rail
carriers
‘‘(a) A Class II or Class III rail carrier providing transportation
subject to the jurisdiction of the Board under this part may acquire
or operate an extended or additional rail line under this section
only if the Board issues a certificate authorizing such activity
under subsection (c).
‘‘(b) A proceeding to grant authority under subsection (a) of
this section begins when an application is filed. On receiving the
application, the Board shall give reasonable public notice of the
beginning of such proceeding.
‘‘(c) The Board shall issue a certificate authorizing activities
for which such authority is requested in an application filed under
subsection (b) unless the Board finds that such activities are
inconsistent with the public convenience and necessity. Such certifi-
cate may approve the application as filed, or with modifications,
and may require compliance with conditions (other than labor
protection conditions) the Board finds necessary in the public
interest.
‘‘(d) The Board shall require any Class II rail carrier which
receives a certificate under subsection (c) of this section to provide
a fair and equitable arrangement for the protection of the interests
of employees who may be affected thereby. The arrangement shall
consist exclusively of one year of severance pay, which shall not
exceed the amount of earnings from railroad employment of the
employee during the 12-month period immediately preceding the
date on which the application for such certificate is filed with
the Board. The amount of such severance pay shall be reduced
by the amount of earnings from railroad employment of the
employee with the acquiring carrier during the 12-month period
immediately following the effective date of the transaction to which
the certificate applies. The parties may agree to terms other than
as provided in this subsection. The Board shall not require such
an arrangement from a Class III rail carrier which receives a
certificate under subsection (c) of this section.
‘‘§ 10903. Filing and procedure for application to abandon
or discontinue
‘‘(a)(1) A rail carrier providing transportation subject to the
jurisdiction of the Board under this part who intends to—
‘‘(A) abandon any part of its railroad lines; or
‘‘(B) discontinue the operation of all rail transportation
over any part of its railroad lines,
must file an application relating thereto with the Board. An
abandonment or discontinuance may be carried out only as author-
ized under this chapter.
H. R. 2539—22
‘‘(2) When a rail carrier providing transportation subject to
the jurisdiction of the Board under this part files an application,
the application shall include—
‘‘(A) an accurate and understandable summary of the rail
carrier’s reasons for the proposed abandonment or discontinu-
ance;
‘‘(B) a statement indicating that each interested person
is entitled to make recommendations to the Board on the future
of the rail line; and
‘‘(C)(i) a statement that the line is available for subsidy
or sale in accordance with section 10904 of this title, (ii) a
statement that the rail carrier will promptly provide to each
interested party an estimate of the annual subsidy and mini-
mum purchase price, calculated in accordance with section
10904 of this title, and (iii) the name and business address
of the person who is authorized to discuss the subsidy or
sale terms for the rail carrier.
‘‘(3) The rail carrier shall—
‘‘(A) send by certified mail notice of the application to
the chief executive officer of each State that would be directly
affected by the proposed abandonment or discontinuance;
‘‘(B) post a copy of the notice in each terminal and station
on each portion of a railroad line proposed to be abandoned
or over which all transportation is to be discontinued;
‘‘(C) publish a copy of the notice for 3 consecutive weeks
in a newspaper of general circulation in each county in which
each such portion is located;
‘‘(D) mail a copy of the notice, to the extent practicable,
to all shippers that have made significant use (as designated
by the Board) of the railroad line during the 12 months preced-
ing the filing of the application; and
‘‘(E) attach to the application filed with the Board an
affidavit certifying the manner in which subparagraphs (A)
through (D) of this paragraph have been satisfied, and certifying
that subparagraphs (A) through (D) have been satisfied within
the most recent 30 days prior to the date the application
is filed.
‘‘(b)(1) Except as provided in subsection (d), abandonment and
discontinuance may occur as provided in section 10904.
‘‘(2) The Board shall require as a condition of any abandonment
or discontinuance under this section provisions to protect the
interests of employees. The provisions shall be at least as beneficial
to those interests as the provisions established under sections
11326(a) and 24706(c) of this title.
‘‘(c)(1) In this subsection, the term ‘potentially subject to
abandonment’ has the meaning given the term in regulations of
the Board. The regulations may include standards that vary by
region of the United States and by railroad or group of railroads.
‘‘(2) Each rail carrier shall maintain a complete diagram of
the transportation system operated, directly or indirectly, by the
rail carrier. The rail carrier shall submit to the Board and publish
amendments to its diagram that are necessary to maintain the
accuracy of the diagram. The diagram shall—
‘‘(A) include a detailed description of each of its railroad
lines potentially subject to abandonment; and
H. R. 2539—23
‘‘(B) identify each railroad line for which the rail carrier
plans to file an application to abandon or discontinue under
subsection (a) of this section.
‘‘(d) A rail carrier providing transportation subject to the juris-
diction of the Board under this part may—
‘‘(1) abandon any part of its railroad lines; or
‘‘(2) discontinue the operation of all rail transportation
over any part of its railroad lines;
only if the Board finds that the present or future public convenience
and necessity require or permit the abandonment or discontinuance.
In making the finding, the Board shall consider whether the
abandonment or discontinuance will have a serious, adverse impact
on rural and community development.
‘‘(e) Subject to this section and sections 10904 and 10905 of
this title, if the Board—
‘‘(1) finds public convenience and necessity, it shall—
‘‘(A) approve the application as filed; or
‘‘(B) approve the application with modifications and
require compliance with conditions that the Board finds
are required by public convenience and necessity; or
‘‘(2) fails to find public convenience and necessity, it shall
deny the application.
‘‘§ 10904. Offers of financial assistance to avoid abandonment
and discontinuance
‘‘(a) In this section—
‘‘(1) the term ‘avoidable cost’ means all expenses that would
be incurred by a rail carrier in providing transportation that
would not be incurred if the railroad line over which the
transportation was provided were abandoned or if the transpor-
tation were discontinued. Expenses include cash inflows fore-
gone and cash outflows incurred by the rail carrier as a result
of not abandoning or discontinuing the transportation. Cash
inflows foregone and cash outflows incurred include—
‘‘(A) working capital and required capital expenditure;
‘‘(B) expenditures to eliminate deferred maintenance;
‘‘(C) the current cost of freight cars, locomotives, and
other equipment; and
‘‘(D) the foregone tax benefits from not retiring prop-
erties from rail service and other effects of applicable Fed-
eral and State income taxes; and
‘‘(2) the term ‘reasonable return’ means—
‘‘(A) if a rail carrier is not in reorganization, the cost
of capital to the rail carrier, as determined by the Board;
and
‘‘(B) if a rail carrier is in reorganization, the mean
cost of capital of rail carriers not in reorganization, as
determined by the Board.
‘‘(b) Any rail carrier which has filed an application for abandon-
ment or discontinuance shall provide promptly to a party consider-
ing an offer of financial assistance and shall provide concurrently
to the Board—
‘‘(1) an estimate of the annual subsidy and minimum pur-
chase price required to keep the line or a portion of the line
in operation;
H. R. 2539—24
‘‘(2) its most recent reports on the physical condition of
that part of the railroad line involved in the proposed abandon-
ment or discontinuance;
‘‘(3) traffic, revenue, and other data necessary to determine
the amount of annual financial assistance which would be
required to continue rail transportation over that part of the
railroad line; and
‘‘(4) any other information that the Board considers nec-
essary to allow a potential offeror to calculate an adequate
subsidy or purchase offer.
‘‘(c) Within 4 months after an application is filed under section
10903, any person may offer to subsidize or purchase the railroad
line that is the subject of such application. Such offer shall be
filed concurrently with the Board. If the offer to subsidize or pur-
chase is less than the carrier’s estimate stated pursuant to sub-
section (b)(1), the offer shall explain the basis of the disparity,
and the manner in which the offer is calculated.
‘‘(d)(1) Unless the Board, within 15 days after the expiration
of the 4-month period described in subsection (c), finds that one
or more financially responsible persons (including a governmental
authority) have offered financial assistance regarding that part
of the railroad line to be abandoned or over which all rail transpor-
tation is to be discontinued, abandonment or discontinuance may
be carried out in accordance with section 10903.
‘‘(2) If the Board finds that such an offer or offers of financial
assistance has been made within such period, abandonment or
discontinuance shall be postponed until—
‘‘(A) the carrier and a financially responsible person have
reached agreement on a transaction for subsidy or sale of
the line; or
‘‘(B) the conditions and amount of compensation are estab-
lished under subsection (f).
‘‘(e) Except as provided in subsection (f)(3), if the rail carrier
and a financially responsible person (including a governmental
authority) fail to agree on the amount or terms of the subsidy
or purchase, either party may, within 30 days after the offer is
made, request that the Board establish the conditions and amount
of compensation.
‘‘(f)(1) Whenever the Board is requested to establish the condi-
tions and amount of compensation under this section—
‘‘(A) the Board shall render its decision within 30 days;
‘‘(B) for proposed sales, the Board shall determine the
price and other terms of sale, except that in no case shall
the Board set a price which is below the fair market value
of the line (including, unless otherwise mutually agreed, all
facilities on the line or portion necessary to provide effective
transportation services); and
‘‘(C) for proposed subsidies, the Board shall establish the
compensation as the difference between the revenues attrib-
utable to that part of the railroad line and the avoidable cost
of providing rail freight transportation on the line, plus a
reasonable return on the value of the line.
‘‘(2) The decision of the Board shall be binding on both parties,
except that the person who has offered to subsidize or purchase
the line may withdraw his offer within 10 days of the Board’s
decision. In such a case, the abandonment or discontinuance may
H. R. 2539—25
be carried out immediately, unless other offers are being considered
pursuant to paragraph (3) of this subsection.
‘‘(3) If a rail carrier receives more than one offer to subsidize
or purchase, it shall select the offeror with whom it wishes to
transact business, and complete the subsidy or sale agreement,
or request that the Board establish the conditions and amount
of compensation before the 40th day after the expiration of the
4-month period described in subsection (c). If no agreement on
subsidy or sale is reached within such 40-day period and the Board
has not been requested to establish the conditions and amount
of compensation, any other offeror whose offer was made within
the 4-month period described in subsection (c) may request that
the Board establish the conditions and amount of compensation.
If the Board has established the conditions and amount of com-
pensation, and the original offer has been withdrawn, any other
offeror whose offer was made within the 4-month period described
in subsection (c) may accept the Board’s decision within 20 days
after such decision, and the Board shall require the carrier to
enter into a subsidy or sale agreement with such offeror, if such
subsidy or sale agreement incorporates the Board’s decision.
‘‘(4)(A) No purchaser of a line or portion of line sold under
this section may transfer or discontinue service on such line prior
to the end of the second year after consummation of the sale,
nor may such purchaser transfer such line, except to the rail carrier
from whom it was purchased, prior to the end of the fifth year
after consummation of the sale.
‘‘(B) No subsidy arrangement approved under this section shall
remain in effect for more than one year, unless otherwise mutually
agreed by the parties.
‘‘(g) Upon abandonment of a railroad line under this chapter,
the obligation of the rail carrier abandoning the line to provide
transportation on that line, as required by section 11101(a), is
extinguished.
‘‘§ 10905. Offering abandoned rail properties for sale for pub-
lic purposes
‘‘When the Board approves an application to abandon or dis-
continue under section 10903, the Board shall find whether the
rail properties that are involved in the proposed abandonment
or discontinuance are appropriate for use for public purposes,
including highways, other forms of mass transportation, conserva-
tion, energy production or transmission, or recreation. If the Board
finds that the rail properties proposed to be abandoned are appro-
priate for public purposes and not required for continued rail oper-
ations, the properties may be sold, leased, exchanged, or otherwise
disposed of only under conditions provided in the order of the
Board. The conditions may include a prohibition on any such dis-
posal for a period of not more than 180 days after the effective
date of the order, unless the properties have first been offered,
on reasonable terms, for sale for public purposes.
‘‘§ 10906. Exception
‘‘Notwithstanding section 10901 and subchapter II of chapter
113 of this title, and without the approval of the Board, a rail
carrier providing transportation subject to the jurisdiction of the
Board under this part may enter into arrangements for the joint
ownership or joint use of spur, industrial, team, switching, or side
H. R. 2539—26
tracks. The Board does not have authority under this chapter
over construction, acquisition, operation, abandonment, or dis-
continuance of spur, industrial, team, switching, or side tracks.
‘‘§ 10907. Railroad development
‘‘(a) In this section, the term ‘financially responsible person’
means a person who—
‘‘(1) is capable of paying the constitutional minimum value
of the railroad line proposed to be acquired; and
‘‘(2) is able to assure that adequate transportation will
be provided over such line for a period of not less than 3
years.
Such term includes a governmental authority but does not include
a Class I or Class II rail carrier.
‘‘(b)(1) When the Board finds that—
‘‘(A)(i) the public convenience and necessity require or per-
mit the sale of a particular railroad line under this section;
or
‘‘(ii) a railroad line is on a system diagram map as required
under section 10903 of this title, but the rail carrier owning
such line has not filed an application to abandon such line
under section 10903 of this title before an application to pur-
chase such line, or any required preliminary filing with respect
to such application, is filed under this section; and
‘‘(B) an application to purchase such line has been filed
by a financially responsible person,
the Board shall require the rail carrier owning the railroad line
to sell such line to such financially responsible person at a price
not less than the constitutional minimum value.
‘‘(2) For purposes of this subsection, the constitutional minimum
value of a particular railroad line shall be presumed to be not
less than the net liquidation value of such line or the going concern
value of such line, whichever is greater.
‘‘(c)(1) For purposes of this section, the Board may determine
that the public convenience and necessity require or permit the
sale of a railroad line if the Board determines, after a hearing
on the record, that—
‘‘(A) the rail carrier operating such line refuses within
a reasonable time to make the necessary efforts to provide
adequate service to shippers who transport traffic over such
line;
‘‘(B) the transportation over such line is inadequate for
the majority of shippers who transport traffic over such line;
‘‘(C) the sale of such line will not have a significantly
adverse financial effect on the rail carrier operating such line;
‘‘(D) the sale of such line will not have an adverse effect
on the overall operational performance of the rail carrier operat-
ing such line; and
‘‘(E) the sale of such line will be likely to result in improved
railroad transportation for shippers that transport traffic over
such line.
‘‘(2) In a proceeding under this subsection, the burden of proving
that the public convenience and necessity require or permit the
sale of a particular railroad line is on the person filing the applica-
tion to acquire such line. If the Board finds under this subsection
that the public convenience and necessity require or permit the
sale of a particular railroad line, the Board shall concurrently
H. R. 2539—27
notify the parties of such finding and publish such finding in
the Federal Register.
‘‘(d) In the case of any railroad line subject to sale under
subsection (a) of this section, the Board shall, upon the request
of the acquiring carrier, require the selling carrier to provide to
the acquiring carrier trackage rights to allow a reasonable inter-
change with the selling carrier or to move power equipment or
empty rolling stock between noncontiguous feeder lines operated
by the acquiring carrier. The Board shall require the acquiring
carrier to provide the selling carrier reasonable compensation for
any such trackage rights.
‘‘(e) The Board shall require, to the maximum extent prac-
ticable, the use of the employees who would normally have per-
formed work in connection with a railroad line subject to a sale
under this section.
‘‘(f) In the case of a railroad line which carried less than
3,000,000 gross ton miles of traffic per mile in the preceding cal-
endar year, whenever a purchasing carrier under this section peti-
tions the Board for joint rates applicable to traffic moving over
through routes in which the purchasing carrier may practicably
participate, the Board shall, within 30 days after the date such
petition is filed and pursuant to section 10705(a) of this title,
require the establishment of reasonable joint rates and divisions
over such route.
‘‘(g)(1) Any person operating a railroad line acquired under
this section may elect to be exempt from any of the provisions
of this part, except that such a person may not be exempt from
the provisions of chapter 107 of this title with respect to transpor-
tation under a joint rate.
‘‘(2) The provisions of paragraph (1) of this subsection shall
apply to any line of railroad which was abandoned during the
18-month period immediately prior to October 1, 1980, and was
subsequently purchased by a financially responsible person.
‘‘(h) If a purchasing carrier under this section proposes to
sell or abandon all or any portion of a purchased railroad line,
such purchasing carrier shall offer the right of first refusal with
respect to such line or portion thereof to the carrier which sold
such line under this section. Such offer shall be made at a price
equal to the sum of the price paid by such purchasing carrier
to such selling carrier for such line or portion thereof and the
fair market value (less deterioration) of any improvements made,
as adjusted to reflect inflation.
‘‘(i) Any person operating a railroad line acquired under this
section may determine preconditions, such as payment of a subsidy,
which must be met by shippers in order to obtain service over
such lines, but such operator must notify the shippers on the
line of its intention to impose such preconditions.
‘‘CHAPTER 111—OPERATIONS
‘‘SUBCHAPTER I—GENERAL REQUIREMENTS
‘‘Sec.
‘‘11101. Common carrier transportation, service, and rates.
‘‘11102. Use of terminal facilities.
‘‘11103. Switch connections and tracks.
‘‘SUBCHAPTER II—CAR SERVICE
‘‘11121. Criteria.
H. R. 2539—28
‘‘11122. Compensation and practice.
‘‘11123. Situations requiring immediate action to serve the public.
‘‘11124. War emergencies; embargoes imposed by carriers.
‘‘SUBCHAPTER III—REPORTS AND RECORDS
‘‘11141. Definitions.
‘‘11142. Uniform accounting system.
‘‘11143. Depreciation charges.
‘‘11144. Records: form; inspection; preservation.
‘‘11145. Reports by rail carriers, lessors, and associations.
‘‘SUBCHAPTER IV—RAILROAD COST ACCOUNTING
‘‘11161. Implementation of cost accounting principles.
‘‘11162. Rail carrier cost accounting system.
‘‘11163. Cost availability.
‘‘11164. Accounting and cost reporting.
‘‘SUBCHAPTER I—GENERAL REQUIREMENTS
‘‘§ 11101. Common carrier transportation, service, and rates
‘‘(a) A rail carrier providing transportation or service subject
to the jurisdiction of the Board under this part shall provide the
transportation or service on reasonable request. A rail carrier shall
not be found to have violated this section because it fulfills its
reasonable commitments under contracts authorized under section
10709 of this title before responding to reasonable requests for
service. Commitments which deprive a carrier of its ability to
respond to reasonable requests for common carrier service are not
reasonable.
‘‘(b) A rail carrier shall also provide to any person, on request,
the carrier’s rates and other service terms. The response by a
rail carrier to a request for the carrier’s rates and other service
terms shall be—
‘‘(1) in writing and forwarded to the requesting person
promptly after receipt of the request; or
‘‘(2) promptly made available in electronic form.
‘‘(c) A rail carrier may not increase any common carrier rates
or change any common carrier service terms unless 20 days have
expired after written or electronic notice is provided to any person
who, within the previous 12 months—
‘‘(1) has requested such rates or terms under subsection
(b); or
‘‘(2) has made arrangements with the carrier for a shipment
that would be subject to such increased rates or changed terms.
‘‘(d) With respect to transportation of agricultural products,
in addition to the requirements of subsections (a), (b), and (c),
a rail carrier shall publish, make available, and retain for public
inspection its common carrier rates, schedules of rates, and other
service terms, and any proposed and actual changes to such rates
and service terms. For purposes of this subsection, agricultural
products shall include grain as defined in section 3 of the United
States Grain Standards Act (7 U.S.C. 75) and all products thereof,
and fertilizer.
‘‘(e) A rail carrier shall provide transportation or service in
accordance with the rates and service terms, and any changes
thereto, as published or otherwise made available under subsection
(b), (c), or (d).
‘‘(f) The Board shall, by regulation, establish rules to implement
this section. The regulations shall provide for immediate disclosure
and dissemination of rates and service terms, including classifica-
H. R. 2539—29
tions, rules, and practices, and their effective dates. Final regula-
tions shall be adopted by the Board not later than 180 days after
the effective date of the ICC Termination Act of 1995.
‘‘§ 11102. Use of terminal facilities
‘‘(a) The Board may require terminal facilities, including main-
line tracks for a reasonable distance outside of a terminal, owned
by a rail carrier providing transportation subject to the jurisdiction
of the Board under this part, to be used by another rail carrier
if the Board finds that use to be practicable and in the public
interest without substantially impairing the ability of the rail car-
rier owning the facilities or entitled to use the facilities to handle
its own business. The rail carriers are responsible for establishing
the conditions and compensation for use of the facilities. However,
if the rail carriers cannot agree, the Board may establish conditions
and compensation for use of the facilities under the principle
controlling compensation in condemnation proceedings. The com-
pensation shall be paid or adequately secured before a rail carrier
may begin to use the facilities of another rail carrier under this
section.
‘‘(b) A rail carrier whose terminal facilities are required to
be used by another rail carrier under this section is entitled to
recover damages from the other rail carrier for injuries sustained
as the result of compliance with the requirement or for compensa-
tion for the use, or both as appropriate, in a civil action, if it
is not satisfied with the conditions for use of the facilities or
if the amount of the compensation is not paid promptly.
‘‘(c)(1) The Board may require rail carriers to enter into recip-
rocal switching agreements, where it finds such agreements to
be practicable and in the public interest, or where such agreements
are necessary to provide competitive rail service. The rail carriers
entering into such an agreement shall establish the conditions
and compensation applicable to such agreement, but, if the rail
carriers cannot agree upon such conditions and compensation within
a reasonable period of time, the Board may establish such conditions
and compensation.
‘‘(2) The Board may require reciprocal switching agreements
entered into by rail carriers pursuant to this subsection to contain
provisions for the protection of the interests of employees affected
thereby.
‘‘(d) The Board shall complete any proceeding under subsection
(a) or (b) within 180 days after the filing of the request for relief.
‘‘§ 11103. Switch connections and tracks
‘‘(a) On application of the owner of a lateral branch line of
railroad, or of a shipper tendering interstate traffic for transpor-
tation, a rail carrier providing transportation subject to the jurisdic-
tion of the Board under this part shall construct, maintain, and
operate, on reasonable conditions, a switch connection to connect
that branch line or private side track with its railroad and shall
furnish cars to move that traffic to the best of its ability without
discrimination in favor of or against the shipper when the connec-
tion—
‘‘(1) is reasonably practicable;
‘‘(2) can be made safely; and
‘‘(3) will furnish sufficient business to justify its construc-
tion and maintenance.
H. R. 2539—30
‘‘(b) If a rail carrier fails to install and operate a switch connec-
tion after application is made under subsection (a) of this section,
the owner of the lateral branch line of railroad or the shipper
may file a complaint with the Board under section 11701 of this
title. The Board shall investigate the complaint and decide the
safety, practicability, justification, and compensation to be paid
for the connection. The Board may direct the rail carrier to comply
with subsection (a) of this section only after a full hearing.
‘‘SUBCHAPTER II—CAR SERVICE
‘‘§ 11121. Criteria
‘‘(a)(1) A rail carrier providing transportation subject to the
jurisdiction of the Board under this part shall furnish safe and
adequate car service and establish, observe, and enforce reasonable
rules and practices on car service. The Board may require a rail
carrier to provide facilities and equipment that are reasonably
necessary to furnish safe and adequate car service if the Board
decides that the rail carrier has materially failed to furnish that
service. The Board may begin a proceeding under this paragraph
when an interested person files an application with it. The Board
may act only after a hearing on the record and an affirmative
finding, based on the evidence presented, that—
‘‘(A) providing the facilities or equipment will not materially
and adversely affect the ability of the rail carrier to provide
safe and adequate transportation;
‘‘(B) the amount spent for the facilities or equipment,
including a return equal to the rail carrier’s current cost of
capital, will be recovered; and
‘‘(C) providing the facilities or equipment will not impair
the ability of the rail carrier to attract adequate capital.
‘‘(2) The Board may require a rail carrier to file its car service
rules with the Board.
‘‘(b) The Board may designate and appoint agents and agencies
to make and carry out its directions related to car service and
matters under sections 11123 and 11124(a)(1) of this title.
‘‘(c) The Board shall consult, as it considers necessary, with
the National Grain Car Council on matters within the charter
of that body.
‘‘§ 11122. Compensation and practice
‘‘(a) The regulations of the Board on car service shall encourage
the purchase, acquisition, and efficient use of freight cars. The
regulations may include—
‘‘(1) the compensation to be paid for the use of a locomotive,
freight car, or other vehicle;
‘‘(2) the other terms of any arrangement for the use by
a rail carrier of a locomotive, freight car, or other vehicle
not owned by the rail carrier using the locomotive, freight
car, or other vehicle, whether or not owned by another carrier,
shipper, or third person; and
‘‘(3) sanctions for nonobservance.
‘‘(b) The rate of compensation to be paid for each type of
freight car shall be determined by the expense of owning and
maintaining that type of freight car, including a fair return on
its cost giving consideration to current costs of capital, repairs,
materials, parts, and labor. In determining the rate of compensa-
H. R. 2539—31
tion, the Board shall consider the transportation use of each type
of freight car, the national level of ownership of each type of
freight car, and other factors that affect the adequacy of the national
freight car supply.
‘‘§ 11123. Situations requiring immediate action to serve the
public
‘‘(a) When the Board determines that shortage of equipment,
congestion of traffic, unauthorized cessation of operations, or other
failure of traffic movement exists which creates an emergency situa-
tion of such magnitude as to have substantial adverse effects on
shippers, or on rail service in a region of the United States, or
that a rail carrier providing transportation subject to the jurisdic-
tion of the Board under this part cannot transport the traffic
offered to it in a manner that properly serves the public, the
Board may, to promote commerce and service to the public, for
a period not to exceed 30 days—
‘‘(1) direct the handling, routing, and movement of the
traffic of a rail carrier and its distribution over its own or
other railroad lines;
‘‘(2) require joint or common use of railroad facilities;
‘‘(3) prescribe temporary through routes; or
‘‘(4) give directions for—
‘‘(A) preference or priority in transportation;
‘‘(B) embargoes; or
‘‘(C) movement of traffic under permits.
‘‘(b)(1) Except with respect to proceedings under paragraph
(2) of this subsection, the Board may act under this section on
its own initiative or on application without regard to subchapter
II of chapter 5 of title 5.
‘‘(2) Rail carriers may establish between themselves the terms
of compensation for operations, and use of facilities and equipment,
required under this section. When rail carriers do not agree on
the terms of compensation under this section, the Board may estab-
lish the terms for them. The Board may act under subsection
(a) before conducting a proceeding under this paragraph.
‘‘(3) When a rail carrier is directed under this section to operate
the lines of another rail carrier due to that carrier’s cessation
of operations, compensation for the directed operations shall derive
only from revenues generated by the directed operations.
‘‘(c)(1) The Board may extend any action taken under subsection
(a) of this section beyond 30 days if the Board finds that a transpor-
tation emergency described in subsection (a) continues to exist.
Action by the Board under subsection (a) of this section may not
remain in effect for more than 240 days beyond the initial 30-
day period.
‘‘(2) The Board may not take action under this section that
would—
‘‘(A) cause a rail carrier to operate in violation of this
part; or
‘‘(B) impair substantially the ability of a rail carrier to
serve its own customers adequately, or to fulfill its common
carrier obligations.
‘‘(3) A rail carrier directed by the Board to take action under
this section is not responsible, as a result of that action, for debts
of any other rail carrier.
H. R. 2539—32
‘‘(d) In carrying out this section, the Board shall require, to
the maximum extent practicable, the use of employees who would
normally have performed work in connection with the traffic subject
to the action of the Board.
‘‘§ 11124. War emergencies; embargoes imposed by carriers
‘‘(a)(1) When the President, during time of war or threatened
war, notifies the Board that it is essential to the defense and
security of the United States to give preference or priority to the
movement of certain traffic, the Board shall direct that preference
or priority be given to that traffic.
‘‘(2) When the President, during time of war or threatened
war, demands that preference and precedence be given to the
transportation of troops and material of war over all other traffic,
all rail carriers providing transportation subject to the jurisdiction
of the Board under this part shall adopt every means within their
control to facilitate and expedite the military traffic.
‘‘(b) An embargo imposed by any such rail carrier does not
apply to shipments consigned to agents of the United States Govern-
ment for its use. The rail carrier shall deliver those shipments
as promptly as possible.
‘‘SUBCHAPTER III—REPORTS AND RECORDS
‘‘§ 11141. Definitions
‘‘In this subchapter—
‘‘(1) the terms ‘rail carrier’ and ‘lessor’ include a receiver
or trustee of a rail carrier and lessor, respectively;
‘‘(2) the term ‘lessor’ means a person owning a railroad
that is leased to and operated by a carrier providing transpor-
tation subject to the jurisdiction of the Board under this part;
and
‘‘(3) the term ‘association’ means an organization main-
tained by or in the interest of a group of rail carriers providing
transportation or service subject to the jurisdiction of the Board
under this part that performs a service, or engages in activities,
related to transportation under this part.
‘‘§ 11142. Uniform accounting system
‘‘The Board may prescribe a uniform accounting system for
classes of rail carriers providing transportation subject to the juris-
diction of the Board under this part. To the maximum extent
practicable, the Board shall conform such system to generally
accepted accounting principles, and shall administer this subchapter
in accordance with such principles.
‘‘§ 11143. Depreciation charges
‘‘The Board shall, for a class of rail carriers providing transpor-
tation subject to its jurisdiction under this part, prescribe, and
change when necessary, those classes of property for which deprecia-
tion charges may be included under operating expenses and a
rate of depreciation that may be charged to a class of property.
The Board may classify those rail carriers for purposes of this
section. A rail carrier for whom depreciation charges and rates
of depreciation are in effect under this section for any class of
property may not—
H. R. 2539—33
‘‘(1) charge to operating expenses a depreciation charge
on a class of property other than that prescribed by the Board;
‘‘(2) charge another rate of depreciation; or
‘‘(3) include other depreciation charges in operating
expenses.
‘‘§ 11144. Records: form; inspection; preservation
‘‘(a) The Board may prescribe the form of records required
to be prepared or compiled under this subchapter—
‘‘(1) by rail carriers and lessors, including records related
to movement of traffic and receipts and expenditures of money;
and
‘‘(2) by persons furnishing cars to or for a rail carrier
providing transportation subject to the jurisdiction of the Board
under this part to the extent related to those cars or that
service.
‘‘(b) The Board, or an employee designated by the Board, may
on demand and display of proper credentials—
‘‘(1) inspect and examine the lands, buildings, and equip-
ment of a rail carrier or lessor; and
‘‘(2) inspect and copy any record of—
‘‘(A) a rail carrier, lessor, or association;
‘‘(B) a person controlling, controlled by, or under com-
mon control with a rail carrier if the Board considers
inspection relevant to that person’s relation to, or trans-
action with, that rail carrier; and
‘‘(C) a person furnishing cars to or for a rail carrier
if the Board prescribed the form of that record.
‘‘(c) The Board may prescribe the time period during which
operating, accounting, and financial records must be preserved by
rail carriers, lessors, and persons furnishing cars.
‘‘§ 11145. Reports by rail carriers, lessors, and associations
‘‘(a) The Board may require—
‘‘(1) rail carriers, lessors, and associations, or classes of
them as the Board may prescribe, to file annual, periodic,
and special reports with the Board containing answers to ques-
tions asked by it; and
‘‘(2) a person furnishing cars to a rail carrier to file reports
with the Board containing answers to questions about those
cars.
‘‘(b)(1) An annual report shall contain an account, in as much
detail as the Board may require, of the affairs of the rail carrier,
lessor, or association for the 12-month period ending on December
31 of each year.
‘‘(2) An annual report shall be filed with the Board by the
end of the third month after the end of the year for which the
report is made unless the Board extends the filing date or changes
the period covered by the report. The annual report and, if the
Board requires, any other report made under this section, shall
be made under oath.
‘‘SUBCHAPTER IV—RAILROAD COST ACCOUNTING
‘‘§ 11161. Implementation of cost accounting principles
‘‘The Board shall periodically review its cost accounting rules
and shall make such changes in those rules as are required to
H. R. 2539—34
achieve the regulatory purposes of this part. The Board shall insure
that the rules promulgated under this section are the most efficient
and least burdensome means by which the required information
may be developed for regulatory purposes. To the maximum extent
practicable, the Board shall conform such rules to generally accepted
accounting principles.
‘‘§ 11162. Rail carrier cost accounting system
‘‘(a) Each rail carrier shall have and maintain a cost accounting
system that is in compliance with the rules promulgated by the
Board under section 11161 of this title. A rail carrier may, after
notifying the Board, make modifications in such system unless,
within 60 days after the date of notification, the Board finds such
modifications to be inconsistent with the rules promulgated by
the Board under section 11161 of this title.
‘‘(b) For purposes of determining whether the cost accounting
system of a rail carrier is in compliance with the rules promulgated
by the Board, the Board shall have the right to examine and
make copies of any documents, papers, or records of such rail
carrier relating to compliance with such rules. Such documents,
papers, and records (and any copies thereof) shall not be subject
to the mandatory disclosure requirements of section 552 of title
5.
‘‘§ 11163. Cost availability
‘‘As required by the rules of the Board governing discovery
in Board proceedings, rail carriers shall make relevant cost data
available to shippers, States, ports, communities, and other
interested parties that are a party to a Board proceeding in which
such data are required.
‘‘§ 11164. Accounting and cost reporting
‘‘To obtain expense and revenue information for regulatory
purposes, the Board may promulgate reasonable rules for rail car-
riers providing transportation subject to the jurisdiction of the
Board under this part, prescribing expense and revenue accounting
and reporting requirements consistent with generally accepted
accounting principles uniformly applied to such carriers. Such
requirements shall be cost effective and compatible with and not
duplicative of the managerial and responsibility accounting require-
ments of those carriers.
‘‘CHAPTER 113—FINANCE
‘‘SUBCHAPTER I—EQUIPMENT TRUSTS AND SECURITY INTERESTS
‘‘Sec.
‘‘11301. Equipment trusts: recordation; evidence of indebtedness.
‘‘SUBCHAPTER II—COMBINATIONS
‘‘11321. Scope of authority.
‘‘11322. Limitation on pooling and division of transportation or earnings.
‘‘11323. Consolidation, merger, and acquisition of control.
‘‘11324. Consolidation, merger, and acquisition of control: conditions of approval.
‘‘11325. Consolidation, merger, and acquisition of control: procedure.
‘‘11326. Employee protective arrangements in transactions involving rail carriers.
‘‘11327. Supplemental orders.
‘‘11328. Restrictions on officers and directors.
H. R. 2539—35
‘‘SUBCHAPTER I—EQUIPMENT TRUSTS AND SECURITY
INTERESTS
‘‘§ 11301. Equipment trusts: recordation; evidence of indebt-
edness
‘‘(a) A mortgage (other than a mortgage under chapter 313
of title 46), lease, equipment trust agreement, conditional sales
agreement, or other instrument evidencing the mortgage, lease,
conditional sale, or bailment of or security interest in vessels, rail-
road cars, locomotives, or other rolling stock, or accessories used
on such railroad cars, locomotives, or other rolling stock (including
superstructures and racks), intended for a use related to interstate
commerce shall be filed with the Board in order to perfect the
security interest that is the subject of such instrument. An assign-
ment of a right or interest under one of those instruments and
an amendment to that instrument or assignment including a
release, discharge, or satisfaction of any part of it shall also be
filed with the Board. The instrument, assignment, or amendment
must be in writing, executed by the parties to it, and acknowledged
or verified under Board regulations. When filed under this section,
that document is notice to, and enforceable against, all persons.
A document filed under this section does not have to be filed,
deposited, registered, or recorded under another law of the United
States, a State (or its political subdivisions), or territory or posses-
sion of the United States, related to filing, deposit, registration,
or recordation of those documents. This section does not change
chapter 313 of title 46.
‘‘(b) The Board shall maintain a system for recording each
document filed under subsection (a) of this section and mark each
of them with a consecutive number and the date and hour of
their recordation. The Board shall maintain and keep open for
public inspection an index of documents filed under that subsection.
That index shall include the name and address of the principal
debtors, trustees, guarantors, and other parties to those documents
and may include other facts that will assist in determining the
rights of the parties to those transactions.
‘‘(c) The Board may to the greatest extent practicable perform
its functions under this section through contracts with private
sector entities.
‘‘(d) A mortgage, lease, equipment trust agreement, conditional
sales agreement, or other instrument evidencing the mortgage,
lease, conditional sale, or bailment of or security interest in vessels,
railroad cars, locomotives, or other rolling stock, or accessories
used on such railroad cars, locomotives, or other rolling stock
(including superstructures and racks), or any assignment thereof,
which—
‘‘(1) is duly constituted under the laws of a country other
than the United States; and
‘‘(2) relates to property that bears the reporting marks
and identification numbers of any person domiciled in or cor-
poration organized under the laws of such country,
shall be recognized with the same effect as having been filed under
this section.
‘‘(e) Interests with respect to which documents are filed or
recognized under this section are deemed perfected in all jurisdic-
tions, and shall be governed by applicable State or foreign law
in all matters not specifically governed by this section.
H. R. 2539—36
‘‘(f) The Board shall collect, maintain, and keep open for public
inspection a railway equipment register consistent with the manner
and format maintained by the Interstate Commerce Commission
as of the effective date of the ICC Termination Act of 1995.
‘‘SUBCHAPTER II—COMBINATIONS
‘‘§ 11321. Scope of authority
‘‘(a) The authority of the Board under this subchapter is exclu-
sive. A rail carrier or corporation participating in or resulting
from a transaction approved by or exempted by the Board under
this subchapter may carry out the transaction, own and operate
property, and exercise control or franchises acquired through the
transaction without the approval of a State authority. A rail carrier,
corporation, or person participating in that approved or exempted
transaction is exempt from the antitrust laws and from all other
law, including State and municipal law, as necessary to let that
rail carrier, corporation, or person carry out the transaction, hold,
maintain, and operate property, and exercise control or franchises
acquired through the transaction. However, if a purchase and sale,
a lease, or a corporate consolidation or merger is involved in the
transaction, the carrier or corporation may carry out the transaction
only with the assent of a majority, or the number required under
applicable State law, of the votes of the holders of the capital
stock of that corporation entitled to vote. The vote must occur
at a regular meeting, or special meeting called for that purpose,
of those stockholders and the notice of the meeting must indicate
its purpose.
‘‘(b) A power granted under this subchapter to a carrier or
corporation is in addition to and changes its powers under its
corporate charter and under State law. Action under this subchapter
does not establish or provide for establishing a corporation under
the laws of the United States.
‘‘§ 11322. Limitation on pooling and division of transpor-
tation or earnings
‘‘(a) A rail carrier providing transportation subject to the juris-
diction of the Board under this part may not agree or combine
with another of those rail carriers to pool or divide traffic or services
or any part of their earnings without the approval of the Board
under this section or section 11123 of this title. The Board may
approve and authorize the agreement or combination if the rail
carriers involved assent to the pooling or division and the Board
finds that a pooling or division of traffic, services, or earnings—
‘‘(1) will be in the interest of better service to the public
or of economy of operation; and
‘‘(2) will not unreasonably restrain competition.
‘‘(b) The Board may impose conditions governing the pooling
or division and may approve and authorize payment of a reasonable
consideration between the rail carriers.
‘‘(c) The Board may begin a proceeding under this section
on its own initiative or on application.
‘‘§ 11323. Consolidation, merger, and acquisition of control
‘‘(a) The following transactions involving rail carriers providing
transportation subject to the jurisdiction of the Board under this
H. R. 2539—37
part may be carried out only with the approval and authorization
of the Board:
‘‘(1) Consolidation or merger of the properties or franchises
of at least 2 rail carriers into one corporation for the ownership,
management, and operation of the previously separately owned
properties.
‘‘(2) A purchase, lease, or contract to operate property of
another rail carrier by any number of rail carriers.
‘‘(3) Acquisition of control of a rail carrier by any number
of rail carriers.
‘‘(4) Acquisition of control of at least 2 rail carriers by
a person that is not a rail carrier.
‘‘(5) Acquisition of control of a rail carrier by a person
that is not a rail carrier but that controls any number of
rail carriers.
‘‘(6) Acquisition by a rail carrier of trackage rights over,
or joint ownership in or joint use of, a railroad line (and
terminals incidental to it) owned or operated by another rail
carrier.
‘‘(b) A person may carry out a transaction referred to in sub-
section (a) of this section or participate in achieving the control
or management, including the power to exercise control or manage-
ment, in a common interest of more than one of those rail carriers,
regardless of how that result is reached, only with the approval
and authorization of the Board under this subchapter. In addition
to other transactions, each of the following transactions are consid-
ered achievements of control or management:
‘‘(1) A transaction by a rail carrier that has the effect
of putting that rail carrier and person affiliated with it, taken
together, in control of another rail carrier.
‘‘(2) A transaction by a person affiliated with a rail carrier
that has the effect of putting that rail carrier and persons
affiliated with it, taken together, in control of another rail
carrier.
‘‘(3) A transaction by at least 2 persons acting together
(one of whom is a rail carrier or is affiliated with a rail carrier)
that has the effect of putting those persons and rail carriers
and persons affiliated with any of them, or with any of those
affiliated rail carriers, taken together, in control of another
rail carrier.
‘‘(c) A person is affiliated with a rail carrier under this sub-
chapter if, because of the relationship between that person and
a rail carrier, it is reasonable to believe that the affairs of another
rail carrier, control of which may be acquired by that person,
will be managed in the interest of the other rail carrier.
‘‘§ 11324. Consolidation, merger, and acquisition of control:
conditions of approval
‘‘(a) The Board may begin a proceeding to approve and authorize
a transaction referred to in section 11323 of this title on application
of the person seeking that authority. When an application is filed
with the Board, the Board shall notify the chief executive officer
of each State in which property of the rail carriers involved in
the proposed transaction is located and shall notify those rail car-
riers. The Board shall hold a public hearing unless the Board
determines that a public hearing is not necessary in the public
interest.
H. R. 2539—38
‘‘(b) In a proceeding under this section which involves the
merger or control of at least two Class I railroads, as defined
by the Board, the Board shall consider at least—
‘‘(1) the effect of the proposed transaction on the adequacy
of transportation to the public;
‘‘(2) the effect on the public interest of including, or failing
to include, other rail carriers in the area involved in the pro-
posed transaction;
‘‘(3) the total fixed charges that result from the proposed
transaction;
‘‘(4) the interest of rail carrier employees affected by the
proposed transaction; and
‘‘(5) whether the proposed transaction would have an
adverse effect on competition among rail carriers in the affected
region or in the national rail system.
‘‘(c) The Board shall approve and authorize a transaction under
this section when it finds the transaction is consistent with the
public interest. The Board may impose conditions governing the
transaction, including the divestiture of parallel tracks or requiring
the granting of trackage rights and access to other facilities. Any
trackage rights and related conditions imposed to alleviate anti-
competitive effects of the transaction shall provide for operating
terms and compensation levels to ensure that such effects are
alleviated. When the transaction contemplates a guaranty or
assumption of payment of dividends or of fixed charges or will
result in an increase of total fixed charges, the Board may approve
and authorize the transaction only if it finds that the guaranty,
assumption, or increase is consistent with the public interest. The
Board may require inclusion of other rail carriers located in the
area involved in the transaction if they apply for inclusion and
the Board finds their inclusion to be consistent with the public
interest.
‘‘(d) In a proceeding under this section which does not involve
the merger or control of at least two Class I railroads, as defined
by the Board, the Board shall approve such an application unless
it finds that—
‘‘(1) as a result of the transaction, there is likely to be
substantial lessening of competition, creation of a monopoly,
or restraint of trade in freight surface transportation in any
region of the United States; and
‘‘(2) the anticompetitive effects of the transaction outweigh
the public interest in meeting significant transportation needs.
In making such findings, the Board shall, with respect to any
application that is part of a plan or proposal developed under
section 333(a)–(d) of this title, accord substantial weight to any
recommendations of the Attorney General.
‘‘(e) No transaction described in section 11326(b) may have
the effect of avoiding a collective bargaining agreement or shifting
work from a rail carrier with a collective bargaining agreement
to a rail carrier without a collective bargaining agreement.
‘‘(f)(1) To the extent provided in this subsection, a proceeding
under this subchapter relating to a transaction involving at least
one Class I rail carrier shall not be considered an adjudication
required by statute to be determined on the record after opportunity
for an agency hearing, for the purposes of subchapter II of chapter
5 of title 5, United States Code.
H. R. 2539—39
‘‘(2) Ex parte communications, as defined in section 551(14)
of title 5, United States Code, shall be permitted in proceedings
described in paragraph (1) of this subsection, subject to the require-
ments of paragraph (3) of this subsection.
‘‘(3)(A) Any member or employee of the Board who makes
or receives a written ex parte communication concerning the merits
of a proceeding described in paragraph (1) shall promptly place
the communication in the public docket of the proceeding.
‘‘(B) Any member or employee of the Board who makes or
receives an oral ex parte communication concerning the merits
of a proceeding described in paragraph (1) shall promptly place
a written summary of the oral communication in the public docket
of the proceeding.
‘‘(4) Nothing in this subsection shall be construed to require
the Board or any of its members or employees to engage in any
ex parte communication with any person. Nothing in this subsection
or any other law shall be construed to limit the authority of the
members or employees of the Board, in their discretion, to note
in the docket or otherwise publicly the occurrence and substance
of an ex parte communication.
‘‘§ 11325. Consolidation, merger, and acquisition of control:
procedure
‘‘(a) The Board shall publish notice of the application under
section 11324 in the Federal Register by the end of the 30th
day after the application is filed with the Board. However, if the
application is incomplete, the Board shall reject it by the end
of that period. The order of rejection is a final action of the Board.
The published notice shall indicate whether the application
involves—
‘‘(1) the merger or control of at least two Class I railroads,
as defined by the Board, to be decided within the time limits
specified in subsection (b) of this section;
‘‘(2) transactions of regional or national transportation
significance, to be decided within the time limits specified in
subsection (c) of this section; or
‘‘(3) any other transaction covered by this section, to be
decided within the time limits specified in subsection (d) of
this section.
‘‘(b) If the application involves the merger or control of two
or more Class I railroads, as defined by the Board, the following
conditions apply:
‘‘(1) Written comments about an application may be filed
with the Board within 45 days after notice of the application
is published under subsection (a) of this section. Copies of
such comments shall be served on the Attorney General and
the Secretary of Transportation, who may decide to intervene
as a party to the proceeding. That decision must be made
by the 15th day after the date of receipt of the written com-
ments, and if the decision is to intervene, preliminary comments
about the application must be sent to the Board by the end
of the 15th day after the date of receipt of the written
comments.
‘‘(2) The Board shall require that applications inconsistent
with an application, notice of which was published under sub-
section (a) of this section, and applications for inclusion in
H. R. 2539—40
the transaction, be filed with it by the 90th day after publication
of notice under that subsection.
‘‘(3) The Board must conclude evidentiary proceedings by
the end of 1 year after the date of publication of notice under
subsection (a) of this section. The Board must issue a final
decision by the 90th day after the date on which it concludes
the evidentiary proceedings.
‘‘(c) If the application involves a transaction other than the
merger or control of at least two Class I railroads, as defined
by the Board, which the Board has determined to be of regional
or national transportation significance, the following conditions
apply:
‘‘(1) Written comments about an application, including com-
ments of the Attorney General and the Secretary of Transpor-
tation, may be filed with the Board within 30 days after notice
of the application is published under subsection (a) of this
section.
‘‘(2) The Board shall require that applications inconsistent
with an application, notice of which was published under sub-
section (a) of this section, and applications for inclusion in
the transaction, be filed with it by the 60th day after publication
of notice under that subsection.
‘‘(3) The Board must conclude any evidentiary proceedings
by the 180th day after the date of publication of notice under
subsection (a) of this section. The Board must issue a final
decision by the 90th day after the date on which it concludes
the evidentiary proceedings.
‘‘(d) For all applications under this section other than those
specified in subsections (b) and (c) of this section, the following
conditions apply:
‘‘(1) Written comments about an application, including com-
ments of the Attorney General and the Secretary of Transpor-
tation, may be filed with the Board within 30 days after notice
of the application is published under subsection (a) of this
section.
‘‘(2) The Board must conclude any evidentiary proceedings
by the 105th day after the date of publication of notice under
subsection (a) of this section. The Board must issue a final
decision by the 45th day after the date on which it concludes
the evidentiary proceedings.
‘‘§ 11326. Employee protective arrangements in transactions
involving rail carriers
‘‘(a) Except as otherwise provided in this section, when approval
is sought for a transaction under sections 11324 and 11325 of
this title, the Board shall require the rail carrier to provide a
fair arrangement at least as protective of the interests of employees
who are affected by the transaction as the terms imposed under
section 5(2)(f) of the Interstate Commerce Act before February
5, 1976, and the terms established under section 24706(c) of this
title. Notwithstanding this part, the arrangement may be made
by the rail carrier and the authorized representative of its employ-
ees. The arrangement and the order approving the transaction
must require that the employees of the affected rail carrier will
not be in a worse position related to their employment as a result
of the transaction during the 4 years following the effective date
of the final action of the Board (or if an employee was employed
H. R. 2539—41
for a lesser period of time by the rail carrier before the action
became effective, for that lesser period).
‘‘(b) When approval is sought under sections 11324 and 11325
for a transaction involving one Class II and one or more Class
III rail carriers, there shall be an arrangement as required under
subsection (a) of this section, except that such arrangement shall
be limited to one year of severance pay, which shall not exceed
the amount of earnings from the railroad employment of that
employee during the 12-month period immediately preceding the
date on which the application for approval of such transaction
is filed with the Board. The amount of such severance pay shall
be reduced by the amount of earnings from railroad employment
of that employee with the acquiring carrier during the 12-month
period immediately following the effective date of the transaction.
The parties may agree to terms other than as provided in this
subsection.
‘‘(c) When approval is sought under sections 11324 and 11325
for a transaction involving only Class III rail carriers, this section
shall not apply.
‘‘§ 11327. Supplemental orders
‘‘When cause exists, the Board may make appropriate orders
supplemental to an order made in a proceeding under sections
11322 through 11326 of this title.
‘‘§ 11328. Restrictions on officers and directors
‘‘(a) A person may hold the position of officer or director of
more than one rail carrier only when authorized by the Board.
The Board may authorize a person to hold the position of officer
or director of more than one of those carriers when public or
private interests will not be adversely affected.
‘‘(b) This section shall not apply to an individual holding the
position of officer or director only of Class III rail carriers.
‘‘CHAPTER 115—FEDERAL-STATE RELATIONS
‘‘Sec.
‘‘11501. Tax discrimination against rail transportation property.
‘‘11502. Withholding State and local income tax by rail carriers.
‘‘§ 11501. Tax discrimination against rail transportation
property
‘‘(a) In this section—
‘‘(1) the term ‘assessment’ means valuation for a property
tax levied by a taxing district;
‘‘(2) the term ‘assessment jurisdiction’ means a geographical
area in a State used in determining the assessed value of
property for ad valorem taxation;
‘‘(3) the term ‘rail transportation property’ means property,
as defined by the Board, owned or used by a rail carrier
providing transportation subject to the jurisdiction of the Board
under this part; and
‘‘(4) the term ‘commercial and industrial property’ means
property, other than transportation property and land used
primarily for agricultural purposes or timber growing, devoted
to a commercial or industrial use and subject to a property
tax levy.
H. R. 2539—42
‘‘(b) The following acts unreasonably burden and discriminate
against interstate commerce, and a State, subdivision of a State,
or authority acting for a State or subdivision of a State may not
do any of them:
‘‘(1) Assess rail transportation property at a value that
has a higher ratio to the true market value of the rail transpor-
tation property than the ratio that the assessed value of other
commercial and industrial property in the same assessment
jurisdiction has to the true market value of the other commer-
cial and industrial property.
‘‘(2) Levy or collect a tax on an assessment that may
not be made under paragraph (1) of this subsection.
‘‘(3) Levy or collect an ad valorem property tax on rail
transportation property at a tax rate that exceeds the tax
rate applicable to commercial and industrial property in the
same assessment jurisdiction.
‘‘(4) Impose another tax that discriminates against a rail
carrier providing transportation subject to the jurisdiction of
the Board under this part.
‘‘(c) Notwithstanding section 1341 of title 28 and without regard
to the amount in controversy or citizenship of the parties, a district
court of the United States has jurisdiction, concurrent with other
jurisdiction of courts of the United States and the States, to prevent
a violation of subsection (b) of this section. Relief may be granted
under this subsection only if the ratio of assessed value to true
market value of rail transportation property exceeds by at least
5 percent the ratio of assessed value to true market value of
other commercial and industrial property in the same assessment
jurisdiction. The burden of proof in determining assessed value
and true market value is governed by State law. If the ratio of
the assessed value of other commercial and industrial property
in the assessment jurisdiction to the true market value of all
other commercial and industrial property cannot be determined
to the satisfaction of the district court through the random-sampling
method known as a sales assessment ratio study (to be carried
out under statistical principles applicable to such a study), the
court shall find, as a violation of this section—
‘‘(1) an assessment of the rail transportation property at
a value that has a higher ratio to the true market value
of the rail transportation property than the assessed value
of all other property subject to a property tax levy in the
assessment jurisdiction has to the true market value of all
other commercial and industrial property; and
‘‘(2) the collection of an ad valorem property tax on the
rail transportation property at a tax rate that exceeds the
tax ratio rate applicable to taxable property in the taxing
district.
‘‘§ 11502. Withholding State and local income tax by rail
carriers
‘‘(a) No part of the compensation paid by a rail carrier providing
transportation subject to the jurisdiction of the Board under this
part to an employee who performs regularly assigned duties as
such an employee on a railroad in more than one State shall
be subject to the income tax laws of any State or subdivision
of that State, other than the State or subdivision thereof of the
employee’s residence.
H. R. 2539—43
‘‘(b) A rail carrier withholding pay from an employee under
subsection (a) of this section shall file income tax information
returns and other reports only with the State and subdivision
of residence of the employee.
‘‘CHAPTER 117—ENFORCEMENT: INVESTIGATIONS,
RIGHTS, AND REMEDIES
‘‘Sec.
‘‘11701. General authority.
‘‘11702. Enforcement by the Board.
‘‘11703. Enforcement by the Attorney General.
‘‘11704. Rights and remedies of persons injured by rail carriers.
‘‘11705. Limitation on actions by and against rail carriers.
‘‘11706. Liability of rail carriers under receipts and bills of lading.
‘‘11707. Liability when property is delivered in violation of routing instructions.
‘‘§ 11701. General authority
‘‘(a) Except as otherwise provided in this part, the Board may
begin an investigation under this part only on complaint. If the
Board finds that a rail carrier is violating this part, the Board
shall take appropriate action to compel compliance with this part.
‘‘(b) A person, including a governmental authority, may file
with the Board a complaint about a violation of this part by a
rail carrier providing transportation or service subject to the juris-
diction of the Board under this part. The complaint must state
the facts that are the subject of the violation. The Board may
dismiss a complaint it determines does not state reasonable grounds
for investigation and action. However, the Board may not dismiss
a complaint made against a rail carrier providing transportation
subject to the jurisdiction of the Board under this part because
of the absence of direct damage to the complainant.
‘‘(c) A formal investigative proceeding begun by the Board under
subsection (a) of this section is dismissed automatically unless
it is concluded by the Board with administrative finality by the
end of the third year after the date on which it was begun.
‘‘§ 11702. Enforcement by the Board
‘‘The Board may bring a civil action—
‘‘(1) to enjoin a rail carrier from violating sections 10901
through 10906 of this title, or a regulation prescribed or order
or certificate issued under any of those sections;
‘‘(2) to enforce subchapter II of chapter 113 of this title
and to compel compliance with an order of the Board under
that subchapter; and
‘‘(3) to enforce an order of the Board, except a civil action
to enforce an order for the payment of money, when it is
violated by a rail carrier providing transportation subject to
the jurisdiction of the Board under this part.
‘‘§ 11703. Enforcement by the Attorney General
‘‘(a) The Attorney General may, and on request of the Board
shall, bring court proceedings to enforce this part, or a regulation
or order of the Board or certificate issued under this part, and
to prosecute a person violating this part or a regulation or order
of the Board or certificate issued under this part.
‘‘(b) The United States Government may bring a civil action
on behalf of a person to compel a rail carrier providing transpor-
tation subject to the jurisdiction of the Board under this part
H. R. 2539—44
to provide that transportation to that person in compliance with
this part at the same rate charged, or on conditions as favorable
as those given by the rail carrier, for like traffic under similar
conditions to another person.
‘‘§ 11704. Rights and remedies of persons injured by rail
carriers
‘‘(a) A person injured because a rail carrier providing transpor-
tation or service subject to the jurisdiction of the Board under
this part does not obey an order of the Board, except an order
for the payment of money, may bring a civil action in a United
States District Court to enforce that order under this subsection.
‘‘(b) A rail carrier providing transportation subject to the juris-
diction of the Board under this part is liable for damages sustained
by a person as a result of an act or omission of that carrier
in violation of this part. A rail carrier providing transportation
subject to the jurisdiction of the Board under this part is liable
to a person for amounts charged that exceed the applicable rate
for the transportation.
‘‘(c)(1) A person may file a complaint with the Board under
section 11701(b) of this title or bring a civil action under subsection
(b) of this section to enforce liability against a rail carrier providing
transportation subject to the jurisdiction of the Board under this
part.
‘‘(2) When the Board makes an award under subsection (b)
of this section, the Board shall order the rail carrier to pay the
amount awarded by a specific date. The Board may order a rail
carrier providing transportation subject to the jurisdiction of the
Board under this part to pay damages only when the proceeding
is on complaint. The person for whose benefit an order of the
Board requiring the payment of money is made may bring a civil
action to enforce that order under this paragraph if the rail carrier
does not pay the amount awarded by the date payment was ordered
to be made.
‘‘(d)(1) When a person begins a civil action under subsection
(b) of this section to enforce an order of the Board requiring the
payment of damages by a rail carrier providing transportation
subject to the jurisdiction of the Board under this part, the text
of the order of the Board must be included in the complaint.
In addition to the district courts of the United States, a State
court of general jurisdiction having jurisdiction of the parties has
jurisdiction to enforce an order under this paragraph. The findings
and order of the Board are competent evidence of the facts stated
in them. Trial in a civil action brought in a district court of the
United States under this paragraph is in the judicial district—
‘‘(A) in which the plaintiff resides;
‘‘(B) in which the principal operating office of the rail
carrier is located; or
‘‘(C) through which the railroad line of that carrier runs.
In a civil action under this paragraph, the plaintiff is liable for
only those costs that accrue on an appeal taken by the plaintiff.
‘‘(2) All parties in whose favor the award was made may be
joined as plaintiffs in a civil action brought in a district court
of the United States under this subsection and all the rail carriers
that are parties to the order awarding damages may be joined
as defendants. Trial in the action is in the judicial district in
which any one of the plaintiffs could bring the action against
H. R. 2539—45
any one of the defendants. Process may be served on a defendant
at its principal operating office when that defendant is not in
the district in which the action is brought. A judgment ordering
recovery may be made in favor of any of those plaintiffs against
the defendant found to be liable to that plaintiff.
‘‘(3) The district court shall award a reasonable attorney’s fee
as a part of the damages for which a rail carrier is found liable
under this subsection. The district court shall tax and collect that
fee as a part of the costs of the action.
‘‘§ 11705. Limitation on actions by and against rail carriers
‘‘(a) A rail carrier providing transportation or service subject
to the jurisdiction of the Board under this part must begin a
civil action to recover charges for transportation or service provided
by the carrier within 3 years after the claim accrues.
‘‘(b) A person must begin a civil action to recover overcharges
under section 11704(b) of this title within 3 years after the claim
accrues, whether or not a complaint is filed under section
11704(c)(1).
‘‘(c) A person must file a complaint with the Board to recover
damages under section 11704(b) of this title within 2 years after
the claim accrues.
‘‘(d) The limitation period under subsection (b) of this section
is extended for 6 months from the time written notice is given
to the claimant by the rail carrier of disallowance of any part
of the claim specified in the notice if a written claim is given
to the rail carrier within that limitation period. The limitation
periods under subsections (b) and (c) of this section are extended
for 90 days from the time the rail carrier begins a civil action
under subsection (a) of this section to recover charges related to
the same transportation or service, or collects (without beginning
a civil action under that subsection) the charge for that transpor-
tation or service if that action is begun or collection is made within
the appropriate period.
‘‘(e) A person must begin a civil action to enforce an order
of the Board against a rail carrier for the payment of money
within one year after the date the order required the money to
be paid.
‘‘(f) This section applies to transportation for the United States
Government. The time limitations under this section are extended,
as related to transportation for or on behalf of the United States
Government, for 3 years from the date of—
‘‘(1) payment of the rate for the transportation or service
involved;
‘‘(2) subsequent refund for overpayment of that rate; or
‘‘(3) deduction made under section 3726 of title 31, which-
ever is later.
‘‘(g) A claim related to a shipment of property accrues under
this section on delivery or tender of delivery by the rail carrier.
‘‘§ 11706. Liability of rail carriers under receipts and bills
of lading
‘‘(a) A rail carrier providing transportation or service subject
to the jurisdiction of the Board under this part shall issue a receipt
or bill of lading for property it receives for transportation under
this part. That rail carrier and any other carrier that delivers
the property and is providing transportation or service subject
H. R. 2539—46
to the jurisdiction of the Board under this part are liable to the
person entitled to recover under the receipt or bill of lading. The
liability imposed under this subsection is for the actual loss or
injury to the property caused by—
‘‘(1) the receiving rail carrier;
‘‘(2) the delivering rail carrier; or
‘‘(3) another rail carrier over whose line or route the prop-
erty is transported in the United States or from a place in
the United States to a place in an adjacent foreign country
when transported under a through bill of lading.
Failure to issue a receipt or bill of lading does not affect the
liability of a rail carrier. A delivering rail carrier is deemed to
be the rail carrier performing the line-haul transportation nearest
the destination but does not include a rail carrier providing only
a switching service at the destination.
‘‘(b) The rail carrier issuing the receipt or bill of lading under
subsection (a) of this section or delivering the property for which
the receipt or bill of lading was issued is entitled to recover from
the rail carrier over whose line or route the loss or injury occurred
the amount required to be paid to the owners of the property,
as evidenced by a receipt, judgment, or transcript, and the amount
of its expenses reasonably incurred in defending a civil action
brought by that person.
‘‘(c)(1) A rail carrier may not limit or be exempt from liability
imposed under subsection (a) of this section except as provided
in this subsection. A limitation of liability or of the amount of
recovery or representation or agreement in a receipt, bill of lading,
contract, or rule in violation of this section is void.
‘‘(2) A rail carrier of passengers may limit its liability under
its passenger rate for loss or injury of baggage carried on trains
carrying passengers.
‘‘(3) A rail carrier providing transportation or service subject
to the jurisdiction of the Board under this part may establish
rates for transportation of property under which—
‘‘(A) the liability of the rail carrier for such property is
limited to a value established by written declaration of the
shipper or by a written agreement between the shipper and
the carrier; or
‘‘(B) specified amounts are deducted, pursuant to a written
agreement between the shipper and the carrier, from any claim
against the carrier with respect to the transportation of such
property.
‘‘(d)(1) A civil action under this section may be brought in
a district court of the United States or in a State court.
‘‘(2)(A) A civil action under this section may only be brought—
‘‘(i) against the originating rail carrier, in the judicial dis-
trict in which the point of origin is located;
‘‘(ii) against the delivering rail carrier, in the judicial dis-
trict in which the principal place of business of the person
bringing the action is located if the delivering carrier operates
a railroad or a route through such judicial district, or in the
judicial district in which the point of destination is located;
and
‘‘(iii) against the carrier alleged to have caused the loss
or damage, in the judicial district in which such loss or damage
is alleged to have occurred.
H. R. 2539—47
‘‘(B) In this section, ‘judicial district’ means (i) in the case
of a United States district court, a judicial district of the United
States, and (ii) in the case of a State court, the applicable geographic
area over which such court exercises jurisdiction.
‘‘(e) A rail carrier may not provide by rule, contract, or other-
wise, a period of less than 9 months for filing a claim against
it under this section and a period of less than 2 years for bringing
a civil action against it under this section. The period for bringing
a civil action is computed from the date the carrier gives a person
written notice that the carrier has disallowed any part of the
claim specified in the notice. For the purposes of this subsection—
‘‘(1) an offer of compromise shall not constitute a disallow-
ance of any part of the claim unless the carrier, in writing,
informs the claimant that such part of the claim is disallowed
and provides reasons for such disallowance; and
‘‘(2) communications received from a carrier’s insurer shall
not constitute a disallowance of any part of the claim unless
the insurer, in writing, informs the claimant that such part
of the claim is disallowed, provides reasons for such disallow-
ance, and informs the claimant that the insurer is acting on
behalf of the carrier.
§ ‘‘11707. Liability when property is delivered in violation
of routing instructions
‘‘(a)(1) When a rail carrier providing transportation subject
to the jurisdiction of the Board under this part diverts or delivers
property to another rail carrier in violation of routing instructions
in the bill of lading, both of those rail carriers are jointly and
severally liable to the rail carrier that was deprived of its right
to participate in hauling that property for the total amount of
the rate it would have received if it participated in hauling the
property.
‘‘(2) A rail carrier is not liable under paragraph (1) of this
subsection when it diverts or delivers property in compliance with
an order or regulation of the Board.
‘‘(3) A rail carrier to whom property is transported is not
liable under this subsection if it shows that it had no notice of
the routing instructions before transporting the property. The bur-
den of proving lack of notice is on that rail carrier.
‘‘(b) The court shall award a reasonable attorney’s fee to the
plaintiff in a judgment against the defendant rail carrier under
subsection (a) of this section. The court shall tax and collect that
fee as a part of the costs of the action.
‘‘CHAPTER 119—CIVIL AND CRIMINAL PENALTIES
‘‘Sec.
‘‘11901. General civil penalties.
‘‘11902. Interference with railroad car supply.
‘‘11903. Record keeping and reporting violations.
‘‘11904. Unlawful disclosure of information.
‘‘11905. Disobedience to subpoenas.
‘‘11906. General criminal penalty when specific penalty not provided.
‘‘11907. Punishment of corporation for violations committed by certain individuals.
‘‘11908. Relation to other Federal criminal penalties.
‘‘§ 11901. General civil penalties
‘‘(a) Except as otherwise provided in this section, a rail carrier
providing transportation subject to the jurisdiction of the Board
H. R. 2539—48
under this part, an officer or agent of that rail carrier, or a receiver,
trustee, lessee, or agent of one of them, knowingly violating this
part or an order of the Board under this part is liable to the
United States Government for a civil penalty of not more than
$5,000 for each violation. Liability under this subsection is incurred
for each distinct violation. A separate violation occurs for each
day the violation continues.
‘‘(b) A rail carrier providing transportation subject to the juris-
diction of the Board under this part, or a receiver or trustee of
that rail carrier, violating a regulation or order of the Board under
section 11124(a)(2) or (b) of this title is liable to the United States
Government for a civil penalty of $500 for each violation and
for $25 for each day the violation continues.
‘‘(c) A person knowingly authorizing, consenting to, or permit-
ting a violation of sections 10901 through 10906 of this title or
of a requirement or a regulation under any of those sections, is
liable to the United States Government for a civil penalty of not
more than $5,000.
‘‘(d) A rail carrier, receiver, or operating trustee violating an
order or direction of the Board under section 11123 or 11124(a)(1)
of this title is liable to the United States Government for a civil
penalty of at least $100 but not more than $500 for each violation
and for $50 for each day the violation continues.
‘‘(e)(1) A person required under subchapter III of chapter 111
of this title to make, prepare, preserve, or submit to the Board
a record concerning transportation subject to the jurisdiction of
the Board under this part that does not make, prepare, preserve,
or submit that record as required under that subchapter, is liable
to the United States Government for a civil penalty of $500 for
each violation.
‘‘(2) A rail carrier providing transportation subject to the juris-
diction of the Board under this part, and a lessor, receiver, or
trustee of that rail carrier, violating section 11144(b)(1) of this
title, is liable to the United States Government for a civil penalty
of $100 for each violation.
‘‘(3) A rail carrier providing transportation subject to the juris-
diction of the Board under this part, a lessor, receiver, or trustee
of that rail carrier, a person furnishing cars, and an officer, agent,
or employee of one of them, required to make a report to the
Board or answer a question that does not make the report or
does not specifically, completely, and truthfully answer the question,
is liable to the United States Government for a civil penalty of
$100 for each violation.
‘‘(4) A separate violation occurs for each day a violation under
this subsection continues.
‘‘(f) Trial in a civil action under subsections (a) through (e)
of this section is in the judicial district in which the rail carrier
has its principal operating office or in a district through which
the railroad of the rail carrier runs.
‘‘§ 11902. Interference with railroad car supply
‘‘(a) A person that offers or gives anything of value to another
person acting for or employed by a rail carrier providing transpor-
tation subject to the jurisdiction of the Board under this part
intending to influence an action of that other person related to
supply, distribution, or movement of cars, vehicles, or vessels used
in the transportation of property, or because of the action of that
H. R. 2539—49
other person, shall be fined not more than $1,000, imprisoned
for not more than 2 years, or both.
‘‘(b) A person acting for or employed by a rail carrier providing
transportation subject to the jurisdiction of the Board under this
part that solicits, accepts, or receives anything of value—
‘‘(1) intending to be influenced by it in an action of that
person related to supply, distribution, or movement of cars,
vehicles, or vessels used in the transportation of property;
or
‘‘(2) because of the action of that person,
shall be fined not more than $1,000, imprisoned for not more
than 2 years, or both.
‘‘§ 11903. Record keeping and reporting violations
‘‘A person required to make a report to the Board, or make,
prepare, or preserve a record, under subchapter III of chapter
111 of this title about transportation subject to the jurisdiction
of the Board under this part that knowingly and willfully—
‘‘(1) makes a false entry in the report or record;
‘‘(2) destroys, mutilates, changes, or by another means fal-
sifies the record;
‘‘(3) does not enter business related facts and transactions
in the record;
‘‘(4) makes, prepares, or preserves the record in violation
of a regulation or order of the Board; or
‘‘(5) files a false report or record with the Board,
shall be fined not more than $5,000, imprisoned for not more
than 2 years, or both.
‘‘§ 11904. Unlawful disclosure of information
‘‘(a) A—
‘‘(1) rail carrier providing transportation subject to the
jurisdiction of the Board under this part, or an officer, agent,
or employee of that rail carrier, or another person authorized
to receive information from that rail carrier, that knowingly
discloses to another person, except the shipper or consignee;
or
‘‘(2) a person who solicits or knowingly receives,
information described in subsection (b) without the consent of the
shipper or consignee shall be fined not more than $1,000.
‘‘(b) The information referred to in subsection (a) is information
about the nature, kind, quantity, destination, consignee, or routing
of property tendered or delivered to that rail carrier for transpor-
tation provided under this part, or information about the contents
of a contract authorized under section 10709 of this title, that
may be used to the detriment of the shipper or consignee or may
disclose improperly, to a competitor, the business transactions of
the shipper or consignee.
‘‘(c) This part does not prevent a rail carrier providing transpor-
tation subject to the jurisdiction of the Board under this part
from giving information—
‘‘(1) in response to legal process issued under authority
of a court of the United States or a State;
‘‘(2) to an officer, employee, or agent of the United States
Government, a State, or a territory or possession of the United
States; or
H. R. 2539—78
‘‘§ 13902. Registration of motor carriers
‘‘(a) MOTOR CARRIER GENERALLY.—
‘‘(1) IN GENERAL.—Except as provided in this section, the
Secretary shall register a person to provide transportation sub-
ject to jurisdiction under subchapter I of chapter 135 of this
title as a motor carrier if the Secretary finds that the person
is willing and able to comply with—
‘‘(A) this part and the applicable regulations of the
Secretary and the Board;
‘‘(B) any safety regulations imposed by the Secretary
and the safety fitness requirements established by the Sec-
retary under section 31144; and
‘‘(C) the minimum financial responsibility requirements
established by the Secretary pursuant to sections 13906
and 31138.
‘‘(2) CONSIDERATION
OF
EVIDENCE; FINDINGS.—The Sec-
retary shall consider and, to the extent applicable, make find-
ings on, any evidence demonstrating that the registrant is
unable to comply with the requirements of subparagraph (A),
(B), or (C) of paragraph (1).
‘‘(3) WITHHOLDING.—If the Secretary determines that any
registrant under this section does not meet the requirements
of paragraph (1), the Secretary shall withhold registration.
‘‘(4) LIMITATION ON COMPLAINTS.—The Secretary may hear
a complaint from any person concerning a registration under
this subsection only on the ground that the registrant fails
or will fail to comply with this part, the applicable regulations
of the Secretary and the Board, the safety regulations of the
Secretary, or the safety fitness or minimum financial respon-
sibility requirements of paragraph (1) of this subsection.
‘‘(b) MOTOR CARRIERS OF PASSENGERS.—
‘‘(1) REGISTRATION
OF
PRIVATE
RECIPIENTS
OF
GOVERN-
MENTAL ASSISTANCE.—The Secretary shall register under sub-
section (a)(1) a private recipient of governmental assistance
to provide special or charter transportation subject to jurisdic-
tion under subchapter I of chapter 135 as a motor carrier
of passengers if the Secretary finds that the recipient meets
the requirements of subsection (a)(1), unless the Secretary finds,
on the basis of evidence presented by any person objecting
to the registration, that the transportation to be provided pursu-
ant to the registration is not in the public interest.
‘‘(2) REGISTRATION
OF
PUBLIC
RECIPIENTS
OF
GOVERN-
MENTAL ASSISTANCE.—
‘‘(A) CHARTER TRANSPORTATION.—The Secretary shall
register under subsection (a)(1) a public recipient of govern-
mental assistance to provide special or charter transpor-
tation subject to jurisdiction under subchapter I of chapter
135 as a motor carrier of passengers if the Secretary finds
that—
‘‘(i) the recipient meets the requirements of sub-
section (a)(1); and
‘‘(ii)(I) no motor carrier of passengers (other than
a motor carrier of passengers which is a public recipi-
ent of governmental assistance) is providing, or is will-
ing to provide, the transportation; or
H. R. 2539—144
(1) in section 5005(a)(4) by striking ‘‘5201(7)’’ and inserting
in lieu thereof ‘‘5201(6)’’;
(2) in section 5005(b)(3) by striking ‘‘Interstate Commerce
Commission’’ and inserting in lieu thereof ‘‘Surface Transpor-
tation Board’’; and
(3) by striking paragraph (1) of section 5201 and inserting
in lieu thereof the following:
‘‘(1) ‘Board’ means the Surface Transportation Board;’’;
(4) in section 5201(2) by striking ‘‘a motor common carrier,
or express carrier’’ and inserting in lieu thereof ‘‘or a motor
carrier’’;
(5) in section 5201(4)—
(A) by striking ‘‘common’’; and
(B) by striking ‘‘permit’’ and inserting in lieu thereof
‘‘registration’’;
(6) in section 5201(5)—
(A) by striking ‘‘common’’ each place it appears;
(B) by striking ‘‘10102(14)’’ and inserting in lieu thereof
‘‘13102(12)’’; and
(C) by striking ‘‘certificate of public convenience and
necessity’’ and inserting in lieu thereof ‘‘registration’’;
(7) by striking paragraph (6) of section 5201;
(8) in section 5201 by redesignating paragraphs (7) and
(8) as paragraphs (6) and (7), respectively;
(9) in section 5201(6), as so redesignated, by striking ‘‘cer-
tificate of public convenience and necessity’’ and inserting in
lieu thereof ‘‘certificate or registration’’;
(10) in section 5203(f) by striking ‘‘motor common carrier’’
each place it appears and inserting in lieu thereof ‘‘motor
carrier’’;
(11) in the section heading to section 5207 by striking
‘‘Interstate Commerce Commission’’ and inserting in lieu
thereof ‘‘Surface Transportation Board’’;
(12) in sections 5208(a) and 5215(a) by striking ‘‘Commis-
sion’s’’ and inserting in lieu thereof ‘‘Board’s’’;
(13) in section 5215(a) by striking ‘‘motor common carrier’’
and inserting in lieu thereof ‘‘motor carrier’’;
(14) in chapter 52 by striking ‘‘Commission’’ each place
it appears and inserting in lieu thereof ‘‘Board’’; and
(15) in the item relating to section 5207 of the table of
sections of chapter 52, by striking ‘‘Interstate Commerce
Commission’’ and inserting in lieu thereof ‘‘Surface Transpor-
tation Board’’.
SEC. 308. TITLE 49 AMENDMENTS.
(a) SECTION 302.—Section 302(a) of title 49, United States
Code, is amended by striking ‘‘10101a’’ and inserting in lieu thereof
‘‘13101’’.
(b) SECTION 333.—Section 333 of such title is amended—
(1) in subsection (c)(2) by striking ‘‘11910(a)(1)’’ and insert-
ing in lieu thereof ‘‘11904’’; and
(2) in subsection (e)—
(A) by striking ‘‘11343(a)’’ and inserting in lieu thereof
‘‘11323(a)’’; and
(B) by striking ‘‘11344(b)’’ and inserting in lieu thereof
‘‘11324(b)’’.