Rates (Rail)

§ 10701

TITLE 49—TRANSPORTATION

Section 10524, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1363; Pub. L. 96–296, § 9, July 1, 1980, 94 Stat. 798, related
to Commission jurisdiction over transportation furthering a primary business. See section 13505 of this
title.
Section 10525, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1363; Pub. L. 96–258, § 1(4), June 3, 1980, 94 Stat. 425; Pub.
L. 97–261, § 30, Sept. 20, 1982, 96 Stat. 1128, related to exempt motor carrier transportation entirely in one
State. See section 13504 of this title.
Section 10526, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1364; Pub. L. 96–258, § 1(5), June 3, 1980, 94 Stat. 425; Pub.
L. 96–296, §§ 7, 21(a), 24(a), July 1, 1980, 94 Stat. 797, 812,
814; Pub. L. 96–454, § 11(a), Oct. 15, 1980, 94 Stat. 2023;
Pub. L. 97–261, § 14(d), Sept. 20, 1982, 96 Stat. 1114; Pub.
L. 97–377, § 152, Dec. 21, 1982, 96 Stat. 1918; Pub. L. 97–449,
§ 5(g)(1), Jan. 12, 1983, 96 Stat. 2442; Pub. L. 98–216, § 2(8),
Feb. 14, 1984, 98 Stat. 5; Pub. L. 98–554, title II, § 227(c),
Oct. 30, 1984, 98 Stat. 2852; Pub. L. 103–272, § 4(j)(17), July
5, 1994, 108 Stat. 1369, related to miscellaneous motor
carrier transportation exemptions. See section 13506 of
this title.
Section 10527, added Pub. L. 96–296, § 16(a), July 1,
1980, 94 Stat. 810; amended Pub. L. 103–272, § 5(m)(16),
July 5, 1994, 108 Stat. 1377, related to written contracts
pertaining to certain interstate movements by motor
vehicle.
Section 10528, added Pub. L. 96–296, § 21(b)(1), July 1,
1980, 94 Stat. 812; amended Pub. L. 96–454, § 11(b), Oct. 15,
1980, 94 Stat. 2023; Pub. L. 103–272, § 5(m)(17), July 5, 1994,
108 Stat. 1377, related to mixed loads of regulated and
unregulated property. See section 13507 of this title.
Section 10529, added Pub. L. 96–296, § 24(b)(1), July 1,
1980, 94 Stat. 814; amended Pub. L. 103–272, § 5(m)(18),
July 5, 1994, 108 Stat. 1377, related to authority of Commission over cooperative associations. See section 13508
of this title.
Section 10530, added Pub. L. 98–554, title II, § 226(a)(1),
Oct. 30, 1984, 98 Stat. 2848; amended Pub. L. 99–514, § 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–690, title IX,
§ 9111(a)–(f), Nov. 18, 1988, 102 Stat. 4531–4533; Pub. L.
103–272, § 4(j)(18), (o), July 5, 1994, 108 Stat. 1369, 1371, related to certificates of registration for certain foreign
carriers. See section 13902 of this title.
Section 10531, added Pub. L. 103–272, § 3(1), July 5, 1994,
108 Stat. 1360, related to mass transportation exemption from Commission jurisdiction.
Section 10541, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1365, related to jurisdiction of Commission over transportation by water carriers. See section 13521 of this
title.
Section 10542, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1366; Pub. L. 98–89, § 3(b), Aug. 26, 1983, 97 Stat. 599; Pub.
L. 98–216, § 2(9), (10), Feb. 14, 1984, 98 Stat. 5; Pub. L.
103–272, § 5(m)(19), July 5, 1994, 108 Stat. 1377, related to
exemption of transportation by water carriers of commodities in bulk from Commission jurisdiction.
Section 10543, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1367, related to exemption of certain incidental water
transportation from jurisdiction of Commission.
Section 10544, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1368; Pub. L. 96–258, § 1(6), June 3, 1980, 94 Stat. 425; Pub.
L. 97–449, § 5(g)(2), Jan. 12, 1983, 96 Stat. 2443; Pub. L.
98–216, § 2(11), Feb. 14, 1984, 98 Stat. 5; Pub. L. 103–272,
§ 5(m)(19), July 5, 1994, 108 Stat. 1377, related to exemption of certain miscellaneous water carrier transportation from Commission jurisdiction.
Section 10561, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1369; Pub. L. 99–521, § 6(c), Oct. 22, 1986, 100 Stat. 2994;
Pub. L. 103–272, § 5(m)(20), July 5, 1994, 108 Stat. 1377, related to jurisdiction of Commission over services of
household goods freight forwarders. See section 13531 of
this title.
A prior section 10562, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1369; Pub. L. 97–449, § 5(g)(3), Jan. 12, 1983, 96 Stat.
2443, related to exempt freight forwarder service, prior
to repeal by Pub. L. 99–521, §§ 6(d)(1), 15, Oct. 22, 1986, 100
Stat. 2994, 2999, effective 60 days after Oct. 22, 1986.

Page 290

CHAPTER 107—RATES
SUBCHAPTER I—GENERAL AUTHORITY
Sec.

10701.

Standards for rates, classifications, through
routes, rules, and practices.
10702.
Authority for rail carriers to establish rates,
classifications, rules, and practices.
10703.
Authority for rail carriers to establish
through routes.
10704.
Authority and criteria: rates, classifications,
rules, and practices prescribed by Board.
10705.
Authority: through routes, joint classifications, rates, and divisions prescribed by
Board.
10706.
Rate agreements: exemption from antitrust
laws.
10707.
Determination of market dominance in rail
rate proceedings.
10708.
Rail cost adjustment factor.
10709.
Contracts.
SUBCHAPTER II—SPECIAL CIRCUMSTANCES
10721.
10722.

Government traffic.
Car utilization.
SUBCHAPTER III—LIMITATIONS

10741.

Prohibitions against discrimination by rail
carriers.
Facilities for interchange of traffic.
Liability for payment of rates.
Continuous carriage of freight.
Transportation services or facilities furnished
by shipper.
Demurrage charges.
Designation of certain routes by shippers.

10742.
10743.
10744.
10745.
10746.
10747.

SUBCHAPTER I—GENERAL AUTHORITY
§ 10701. Standards for rates, classifications,
through routes, rules, and practices
(a) A through route established by a rail carrier must be reasonable. Divisions of joint rates
by rail carriers must be made without unreasonable discrimination against a participating carrier and must be reasonable.
(b) A rail carrier providing transportation subject to the jurisdiction of the Board under this
part may not discriminate in its rates against a
connecting line of another rail carrier providing
transportation subject to the jurisdiction of the
Board under this part or unreasonably discriminate against that line in the distribution of traffic that is not routed specifically by the shipper.
(c) Except as provided in subsection (d) of this
section and unless a rate is prohibited by a provision of this part, a rail carrier providing transportation subject to the jurisdiction of the
Board under this part may establish any rate for
transportation or other service provided by the
rail carrier.
(d)(1) If the Board determines, under section
10707 of this title, that a rail carrier has market
dominance over the transportation to which a
particular rate applies, the rate established by
such carrier for such transportation must be
reasonable.
(2) In determining whether a rate established
by a rail carrier is reasonable for purposes of
this section, the Board shall give due consideration to—
(A) the amount of traffic which is transported at revenues which do not contribute to
going concern value and the efforts made to
minimize such traffic;

Page 291

§ 10704

TITLE 49—TRANSPORTATION

(B) the amount of traffic which contributes
only marginally to fixed costs and the extent
to which, if any, rates on such traffic can be
changed to maximize the revenues from such
traffic; and
(C) the carrier’s mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier’s overall revenues,
recognizing the policy of this part that rail carriers shall earn adequate revenues, as established by the Board under section 10704(a)(2) of
this title.
(3) The Board shall, within one year after January 1, 1996, complete the pending Interstate
Commerce Commission non-coal rate guidelines
proceeding to establish a simplified and expedited method for determining the reasonableness of challenged rail rates in those cases in
which a full stand-alone cost presentation is too
costly, given the value of the case.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 809; amended Pub. L. 104–287,
§ 5(22), Oct. 11, 1996, 110 Stat. 3390.)
PRIOR PROVISIONS
Prior sections 10701 and 10701a were omitted in the
general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).
Section 10701, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1371; Pub. L. 96–296, § 13(a), July 1, 1980, 94 Stat. 803;
Pub. L. 96–448, title II, § 201(b)(1), (2), Oct. 14, 1980, 94
Stat. 1899, 1900; Pub. L. 97–261, § 9(a), Sept. 20, 1982, 96
Stat. 1109; Pub. L. 103–180, § 2(a), (b), (g), Dec. 3, 1993, 107
Stat. 2044, 2047, 2049, related to standards for rates,
classifications, through routes, rules, and practices.
See sections 10701, 13701, 13709, and 15501 of this title.
Section 10701a, added Pub. L. 96–448, title II, § 201(a),
Oct. 14, 1980, 94 Stat. 1898; amended Pub. L. 103–272,
§ 4(j)(19), July 5, 1994, 108 Stat. 1369, related to standards
for rates for rail carriers. See section 10701 of this title.
AMENDMENTS
1996—Subsec. (d)(3). Pub. L. 104–287 substituted ‘‘January 1, 1996’’ for ‘‘the effective date of this paragraph’’.
EFFECTIVE DATE
Chapter effective Jan. 1, 1996, except as otherwise
provided in Pub. L. 104–88, see section 2 of Pub. L.
104–88, set out as a note under section 701 of this title.
ABOLITION OF INTERSTATE COMMERCE COMMISSION
Interstate Commerce Commission abolished by section 101 of Pub. L. 104–88, set out as a note under section 701 of this title.

§ 10702. Authority for rail carriers to establish
rates, classifications, rules, and practices
A rail carrier providing transportation or
service subject to the jurisdiction of the Board
under this part shall establish reasonable—
(1) rates, to the extent required by section
10707, divisions of joint rates, and classifications for transportation and service it may
provide under this part; and
(2) rules and practices on matters related to
that transportation or service.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 810.)
PRIOR PROVISIONS
A prior section 10702, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1372; Pub. L. 103–180, § 6(a), Dec. 3, 1993, 107 Stat.

2050; Pub. L. 103–311, title II, § 206(a), Aug. 26, 1994, 108
Stat. 1684, related to authority for carriers to establish
rates, classifications, rules, and practices, prior to the
general amendment of this subtitle by Pub. L. 104–88,
§ 102(a). See sections 10702 and 15502 of this title.

§ 10703. Authority for rail carriers to establish
through routes
Rail carriers providing transportation subject
to the jurisdiction of the Board under this part
shall establish through routes (including physical connections) with each other and with
water carriers providing transportation subject
to chapter 137, shall establish rates and classifications applicable to those routes, and shall
establish rules for their operation and provide—
(1) reasonable facilities for operating the
through route; and
(2) reasonable compensation to persons entitled to compensation for services related to
the through route.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 810.)
PRIOR PROVISIONS
A prior section 10703, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1372; Pub. L. 96–296, § 22(a), (h), July 1, 1980, 94
Stat. 812, 814; Pub. L. 97–449, § 5(g)(5), Jan. 12, 1983, 96
Stat. 2443; Pub. L. 98–216, § 2(11), Feb. 14, 1984, 98 Stat.
5; Pub. L. 99–521, § 7(a), Oct. 22, 1986, 100 Stat. 2994; Pub.
L. 103–272, § 5(m)(21), July 5, 1994, 108 Stat. 1377, related
to authority for carriers to establish through routes,
prior to the general amendment of this subtitle by Pub.
L. 104–88, § 102(a). See sections 10703 and 13705 of this
title.

§ 10704. Authority and criteria: rates, classifications, rules, and practices prescribed by
Board
(a)(1) When the Board, after a full hearing, decides that a rate charged or collected by a rail
carrier for transportation subject to the jurisdiction of the Board under this part, or that a
classification, rule, or practice of that carrier,
does or will violate this part, the Board may
prescribe the maximum rate, classification,
rule, or practice to be followed. The Board may
order the carrier to stop the violation. When a
rate, classification, rule, or practice is prescribed under this subsection, the affected carrier may not publish, charge, or collect a different rate and shall adopt the classification and
observe the rule or practice prescribed by the
Board.
(2) The Board shall maintain and revise as necessary standards and procedures for establishing
revenue levels for rail carriers providing transportation subject to its jurisdiction under this
part that are adequate, under honest, economical, and efficient management, to cover total
operating expenses, including depreciation and
obsolescence, plus a reasonable and economic
profit or return (or both) on capital employed in
the business. The Board shall make an adequate
and continuing effort to assist those carriers in
attaining revenue levels prescribed under this
paragraph. Revenue levels established under this
paragraph should—
(A) provide a flow of net income plus depreciation adequate to support prudent capital
outlays, assure the repayment of a reasonable
level of debt, permit the raising of needed eq-

§ 10705

TITLE 49—TRANSPORTATION

uity capital, and cover the effects of inflation;
and
(B) attract and retain capital in amounts
adequate to provide a sound transportation
system in the United States.
(3) On the basis of the standards and procedures described in paragraph (2), the Board shall
annually determine which rail carriers are earning adequate revenues.
(b) The Board may begin a proceeding under
this section only on complaint. A complaint
under subsection (a) of this section must be
made under section 11701 of this title, but the
proceeding may also be in extension of a complaint pending before the Board.
(c) In a proceeding to challenge the reasonableness of a rate, the Board shall make its determination as to the reasonableness of the
challenged rate—
(1) within 9 months after the close of the administrative record if the determination is
based upon a stand-alone cost presentation; or
(2) within 6 months after the close of the administrative record if the determination is
based upon the methodology adopted by the
Board pursuant to section 10701(d)(3).
(d) Within 9 months after January 1, 1996, the
Board shall establish procedures to ensure expeditious handling of challenges to the reasonableness of railroad rates. The procedures shall include appropriate measures for avoiding delay in
the discovery and evidentiary phases of such
proceedings and exemption or revocation proceedings, including appropriate sanctions for
such delay, and for ensuring prompt disposition
of motions and interlocutory administrative appeals.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 810; amended Pub. L. 104–287,
§ 5(23), Oct. 11, 1996, 110 Stat. 3390.)

Page 292

the entire length of its railroad and any intermediate railroad operated with it under common
management or control if that intermediate
railroad lies between the terminals of the
through route only when—
(A) required under section 10741, 10742, or
11102 of this title;
(B) inclusion of those lines would make the
through route unreasonably long when compared with a practicable alternative through
route that could be established; or
(C) the Board decides that the proposed
through route is needed to provide adequate,
and more efficient or economic, transportation.
The Board shall give reasonable preference, subject to this subsection, to the rail carrier originating the traffic when prescribing through
routes.
(b) The Board shall prescribe the division of
joint rates to be received by a rail carrier providing transportation subject to its jurisdiction
under this part when it decides that a division of
joint rates established by the participating carriers under section 10703 of this title, or under a
decision of the Board under subsection (a) of
this section, does or will violate section 10701 of
this title.
(c) If a division of a joint rate prescribed under
a decision of the Board is later found to violate
section 10701 of this title, the Board may decide
what division would have been reasonable and
order adjustment to be made retroactive to the
date the complaint was filed, the date the order
for an investigation was made, or a later date
that the Board decides is justified. The Board
may make a decision under this subsection effective as part of its original decision.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 811.)

PRIOR PROVISIONS

PRIOR PROVISIONS

A prior section 10704, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1373; Pub. L. 96–296, § 13(b), July 1, 1980, 94 Stat.
803; Pub. L. 96–448, title II, § 205(b), Oct. 14, 1980, 94 Stat.
1906; Pub. L. 97–261, § 9(b), Sept. 20, 1982, 96 Stat. 1109;
Pub. L. 99–521, § 7(b), Oct. 22, 1986, 100 Stat. 2994, related
to authority and criteria for rates, classifications,
rules, and practices prescribed by Interstate Commerce
Commission, prior to the general amendment of this
subtitle by Pub. L. 104–88, § 102(a). See sections 10704,
13701, and 15503 of this title.

Prior sections 10705 and 10705a were omitted in the
general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).
Section 10705, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1375; Pub. L. 96–296, § 22(b)–(g), July 1, 1980, 94 Stat. 813;
Pub. L. 96–448, title II, § 218, Oct. 14, 1980, 94 Stat. 1925;
Pub. L. 97–449, § 5(g)(4), Jan. 12, 1983, 96 Stat. 2443, related to authority for through routes, joint classifications, rates, and divisions prescribed by Interstate
Commerce Commission. See sections 10705 and 13701 of
this title.
Section 10705a, added Pub. L. 96–448, title II,
§ 217(a)(1), Oct. 14, 1980, 94 Stat. 1916; amended Pub. L.
103–272, § 4(j)(20), July 5, 1994, 108 Stat. 1369, related to
joint rate surcharges and cancellations.

AMENDMENTS
1996—Subsec. (d). Pub. L. 104–287 substituted ‘‘January 1, 1996’’ for ‘‘the effective date of the ICC Termination Act of 1995’’.

§ 10705. Authority: through routes, joint classifications, rates, and divisions prescribed by
Board
(a)(1) The Board may, and shall when it considers it desirable in the public interest, prescribe through routes, joint classifications, joint
rates, the division of joint rates, and the conditions under which those routes must be operated, for a rail carrier providing transportation
subject to the jurisdiction of the Board under
this part.
(2) The Board may require a rail carrier to include in a through route substantially less than

§ 10706. Rate agreements: exemption from antitrust laws
(a)(1) In this subsection—
(A) the term ‘‘affiliate’’ means a person controlling, controlled by, or under common control or ownership with another person and
‘‘ownership’’ refers to equity holdings in a
business entity of at least 5 percent;
(B) the term ‘‘single-line rate’’ refers to a
rate or allowance proposed by a single rail carrier that is applicable only over its line and
for which the transportation (exclusive of terminal services by switching, drayage or other

Page 293

TITLE 49—TRANSPORTATION

terminal carriers or agencies) can be provided
by that carrier; and
(C) the term ‘‘practicably participates in the
movement’’ shall have such meaning as the
Board shall by regulation prescribe.
(2)(A) A rail carrier providing transportation
subject to the jurisdiction of the Board under
this part that is a party to an agreement of at
least 2 rail carriers that relates to rates (including charges between rail carriers and compensation paid or received for the use of facilities and
equipment), classifications, divisions, or rules
related to them, or procedures for joint consideration, initiation, publication, or establishment of them, shall apply to the Board for approval of that agreement under this subsection.
The Board shall approve the agreement only
when it finds that the making and carrying out
of the agreement will further the transportation
policy of section 10101 of this title and may require compliance with conditions necessary to
make the agreement further that policy as a
condition of its approval. If the Board approves
the agreement, it may be made and carried out
under its terms and under the conditions required by the Board, and the Sherman Act (15
U.S.C. 1, et seq.), the Clayton Act (15 U.S.C. 12,
et seq.), the Federal Trade Commission Act (15
U.S.C. 41, et seq.), sections 73 and 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), and the Act of
June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a) do not
apply to parties and other persons with respect
to making or carrying out the agreement. However, the Board may not approve or continue approval of an agreement when the conditions required by it are not met or if it does not receive
a verified statement under subparagraph (B) of
this paragraph.
(B) The Board may approve an agreement
under subparagraph (A) of this paragraph only
when the rail carriers applying for approval file
a verified statement with the Board. Each statement must specify for each rail carrier that is a
party to the agreement—
(i) the name of the carrier;
(ii) the mailing address and telephone number of its headquarter’s office; and
(iii) the names of each of its affiliates and
the names, addresses, and affiliates of each of
its officers and directors and of each person,
together with an affiliate, owning or controlling any debt, equity, or security interest in it
having a value of at least $1,000,000.
(3)(A) An organization established or continued under an agreement approved under this
subsection shall make a final disposition of a
rule or rate docketed with it by the 120th day
after the proposal is docketed. Such an organization may not—
(i) permit a rail carrier to discuss, to participate in agreements related to, or to vote on
single-line rates proposed by another rail carrier, except that for purposes of general rate
increases and broad changes in rates, classifications, rules, and practices only, if the
Board finds at any time that the implementation of this clause is not feasible, it may delay
or suspend such implementation in whole or in
part;
(ii) permit a rail carrier to discuss, to participate in agreements related to, or to vote

§ 10706

on rates related to a particular interline
movement unless that rail carrier practicably
participates in the movement; or
(iii) if there are interline movements over
two or more routes between the same end
points, permit a carrier to discuss, to participate in agreements related to, or to vote on
rates except with a carrier which forms part of
a particular single route. If the Board finds at
any time that the implementation of this
clause is not feasible, it may delay or suspend
such implementation in whole or in part.
(B)(i) In any proceeding in which a party alleges that a rail carrier voted or agreed on a
rate or allowance in violation of this subsection,
that party has the burden of showing that the
vote or agreement occurred. A showing of parallel behavior does not satisfy that burden by itself.
(ii) In any proceeding in which it is alleged
that a carrier was a party to an agreement, conspiracy, or combination in violation of a Federal
law cited in subsection (a)(2)(A) of this section
or of any similar State law, proof of an agreement, conspiracy, or combination may not be
inferred from evidence that two or more rail
carriers acted together with respect to an interline rate or related matter and that a party to
such action took similar action with respect to
a rate or related matter on another route or
traffic. In any proceeding in which such a violation is alleged, evidence of a discussion or agreement between or among such rail carrier and
one or more other rail carriers, or of any rate or
other action resulting from such discussion or
agreement, shall not be admissible if the discussion or agreement—
(I) was in accordance with an agreement approved under paragraph (2) of this subsection;
or
(II) concerned an interline movement of the
rail carrier, and the discussion or agreement
would not, considered by itself, violate the
laws referred to in the first sentence of this
clause.
In any proceeding before a jury, the court shall
determine whether the requirements of subclause (I) or (II) are satisfied before allowing the
introduction of any such evidence.
(C) An organization described in subparagraph
(A) of this paragraph shall provide that transcripts or sound recordings be made of all meetings, that records of votes be made, and that
such transcripts or recordings and voting
records be submitted to the Board and made
available to other Federal agencies in connection with their statutory responsibilities over
rate bureaus, except that such material shall be
kept confidential and shall not be subject to disclosure under section 552 of title 5, United
States Code.
(4) Notwithstanding any other provision of
this subsection, one or more rail carriers may
enter into an agreement, without obtaining
prior Board approval, that provides solely for
compilation, publication, and other distribution
of rates in effect or to become effective. The
Sherman Act (15 U.S.C. 1 et seq.), the Clayton
Act (15 U.S.C. 12 et seq.), the Federal Trade
Commission Act (15 U.S.C. 41 et seq.), sections 73

§ 10706

TITLE 49—TRANSPORTATION

and 74 of the Wilson Tariff Act (15 U.S.C. 8 and
9), and the Act of June 19, 1936 (15 U.S.C. 13, 13a,
13b, 21a) shall not apply to parties and other persons with respect to making or carrying out
such agreement. However, the Board may, upon
application or on its own initiative, investigate
whether the parties to such an agreement have
exceeded its scope, and upon a finding that they
have, the Board may issue such orders as are
necessary, including an order dissolving the
agreement, to ensure that actions taken pursuant to the agreement are limited as provided in
this paragraph.
(5)(A) Whenever two or more shippers enter
into an agreement to discuss among themselves
that relates to the amount of compensation such
shippers propose to be paid by rail carriers providing transportation subject to the jurisdiction
of the Board under this part, for use by such rail
carriers of rolling stock owned or leased by such
shippers, the shippers shall apply to the Board
for approval of that agreement under this paragraph. The Board shall approve the agreement
only when it finds that the making and carrying
out of the agreement will further the transportation policy set forth in section 10101 of this
title and may require compliance with conditions necessary to make the agreement further
that policy as a condition of approval. If the
Board approves the agreement, it may be made
and carried out under its terms and under the
terms required by the Board, and the antitrust
laws set forth in paragraph (2) of this subsection
do not apply to parties and other persons with
respect to making or carrying out the agreement. The Board shall approve or disapprove an
agreement under this paragraph within one year
after the date application for approval of such
agreement is made.
(B) If the Board approves an agreement described in subparagraph (A) of this paragraph
and the shippers entering into such agreement
and the rail carriers proposing to use rolling
stock owned 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 October 1, 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 maintain records
and submit reports. The Board may inspect a
record maintained under this section.
(c) The Board may review an agreement approved under subsection (a) of this section and
shall change the conditions of approval or terminate it when necessary to comply with the
public interest and subsection (a). The Board

Page 294

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 unreasonable 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.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 812; amended Pub. L. 104–287,
§ 5(24), Oct. 11, 1996, 110 Stat. 3390.)
REFERENCES IN TEXT
The Sherman Act, referred to in subsec. (a)(2)(A), (4),
is act July 2, 1890, ch. 647, 26 Stat. 209, as amended,
which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this
Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables.
The Clayton Act, referred to in subsec. (a)(2)(A), (4),
is act Oct. 15, 1914, ch. 323, 38 Stat. 730, as amended,
which is classified generally to sections 12, 13, 14 to 19,
21, and 22 to 27 of Title 15 and sections 52 and 53 of Title
29, Labor. For further details and complete classification of this Act to the Code, see References in Text
note set out under section 12 of Title 15 and Tables.
The Federal Trade Commission Act, referred to in
subsec. (a)(2)(A), (4), is act Sept. 26, 1914, ch. 311, 38
Stat. 717, as amended, which is classified generally to
subchapter I (§ 41 et seq.) of chapter 2 of Title 15. For
complete classification of this Act to the Code, see section 58 of Title 15 and Tables.
Sections 73 and 74 of the Wilson Tariff Act, referred
to in subsec. (a)(2)(A), (4), are sections 73 and 74 of act
Aug. 27, 1894, ch. 349, 28 Stat. 570, which enacted sections 8 and 9, respectively, of Title 15.
Act of June 19, 1936, referred to in subsec. (a)(2)(A),
(4), is act June 19, 1936, ch. 592, 49 Stat. 1526, popularly
known as the Robinson-Patman Anti-discrimination
Act and also as the Robinson-Patman Price Discrimination Act, which enacted sections 13a, 13b, and 21a of
Title 15 and amended section 13 of Title 15. For complete classification of this Act to the Code, see Short
Title note set out under section 13 of Title 15 and
Tables.
PRIOR PROVISIONS
A prior section 10706, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1377; Pub. L. 96–258, § 1(7), June 3, 1980, 94 Stat. 426;

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§ 10709

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Pub. L. 96–296, § 14(a), (c), (d), July 1, 1980, 94 Stat. 803,
808; Pub. L. 96–448, title II, § 219(a)–(e), 224(b), Oct. 14,
1980, 94 Stat. 1926–1929; Pub. L. 97–261, § 10(a)–(d), Sept.
20, 1982, 96 Stat. 1109, 1110; Pub. L. 98–216, § 2(12), Feb. 14,
1984, 98 Stat. 5; Pub. L. 99–521, § 7(c), Oct. 22, 1986, 100
Stat. 2995, related to exemption from antitrust laws of
rate agreements, prior to the general amendment of
this subtitle by Pub. L. 104–88, § 102(a). See sections
10706 and 13703 of this title.
AMENDMENTS
1996—Subsec. (a)(5)(C). Pub. L. 104–287 substituted
‘‘October 1, 1980,’’ for ‘‘the effective date of the Staggers Rail Act of 1980’’.

§ 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 transportation
for the transportation to which a rate applies.
(b) When a rate for transportation by a rail
carrier providing transportation subject to the
jurisdiction of the 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 dominance over
the transportation to which the rate applies, it
may then determine that rate to be unreasonable if it exceeds a reasonable maximum for that
transportation. However, a finding of market
dominance does not establish a presumption
that the 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 dominance over such transportation;
or
(B) the proposed rate exceeds or does not exceed a reasonable maximum.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 815.)
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 10709 of this title prior to the general
amendment of this subtitle by Pub. L. 104–88, § 102(a).
Prior sections 10707 and 10707a were omitted in the
general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).
Section 10707, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1380; Pub. L. 96–448, title II, § 207, Oct. 14, 1980, 94 Stat.
1907; Pub. L. 103–272, § 4(j)(21), July 5, 1994, 108 Stat. 1369,
related to investigation and suspension of new rail carrier rates, classifications, rules, and practices.
Section 10707a, added Pub. L. 96–448, title II, § 203(a),
Oct. 14, 1980, 94 Stat. 1901; amended Pub. L. 103–272,
§ 4(j)(22), July 5, 1994, 108 Stat. 1369, related to zone of
rail carrier flexibility.

§ 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, beginning
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
index that does not take into account changes in
railroad productivity.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 816.)
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 10712 of this title prior to the general
amendment of this subtitle by Pub. L. 104–88, § 102(a).
A prior section 10708, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1382; Pub. L. 96–296, § 11, July 1, 1980, 94 Stat. 801;
Pub. L. 97–261, §§ 11, 12(a), Sept. 20, 1982, 96 Stat. 1112,
1113; Pub. L. 99–521, § 7(d), Oct. 22, 1986, 100 Stat. 2995, related to investigation and suspension of new nonrail
carrier rates, classifications, rules, and practices, prior
to the general amendment of this subtitle by Pub. L.
104–88, § 102(a).

§ 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

§ 10709

TITLE 49—TRANSPORTATION

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 provision 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 otherwise 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 October 1, 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 individually 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 individually will be harmed because the
proposed contract will result in unreasonable
discrimination against such port.
(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
commodity under similar conditions to the
contract at issue, and that shipper was ready,

Page 296

willing, and able to enter into such a contract
at a time essentially contemporaneous with
the period during which the contract at issue
was offered; or
(ii) the proposed contract constitutes a destructive competitive 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 provisions 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 agricultural 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 appropriate, if it appears that additional equipment
may be made available 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 September 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.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 817; amended Pub. L. 104–287,
§ 5(24), Oct. 11, 1996, 110 Stat. 3390.)
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 10713 of this title prior to the general
amendment of this subtitle by Pub. L. 104–88, § 102(a).
Prior sections 10709 to 10713 were omitted in the general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).

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TITLE 49—TRANSPORTATION

Section 10709, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1382; Pub. L. 96–448, title II, § 202, Oct. 14, 1980, 94 Stat.
1900, related to determination of market dominance in
rail carrier rate proceedings. See section 10707 of this
title.
Section 10710, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1383, related to elimination of discrimination against
recyclable materials.
Section 10711, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1383, related to effect of former sections 10701(a), (b),
10707, 10709, 10727, and 10728 of this title on rail rates
and practices.
Section 10712, added Pub. L. 96–448, title II, § 206(a),
Oct. 14, 1980, 94 Stat. 1906, related to inflation-based
rate increases.
Section 10713, added Pub. L. 96–448, title II, § 208(a),
Oct. 14, 1980, 94 Stat. 1908; amended Pub. L. 97–468, title
V, § 502, Jan. 14, 1983, 96 Stat. 2552; Pub. L. 99–509, title
IV, § 4051, Oct. 21, 1986, 100 Stat. 1910, related to contracts between rail carriers and purchasers of rail services. See section 10709 of this title.
AMENDMENTS
1996—Subsec. (e). Pub. L. 104–287 substituted ‘‘October
1, 1980,’’ for ‘‘the effective date of the Staggers Rail Act
of 1980’’.

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.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 819.)
PRIOR PROVISIONS
A prior section 10721, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1383; Pub. L. 96–454, § 10(b), Oct. 15, 1980, 94 Stat.
2022; Pub. L. 103–272, § 5(m)(22), July 5, 1994, 108 Stat.
1378, related to Government traffic, prior to the general
amendment of this subtitle by Pub. L. 104–88, § 102(a).
See sections 10721, 13712, and 15504 of this title.

§ 10722. Car utilization
In order to encourage more efficient use of
freight cars, notwithstanding any other provision of this part, rail carriers shall be permitted
to establish premium charges for special services or special levels of services not otherwise
applicable to the movement. The Board shall facilitate development of such charges so as to increase the utilization of equipment.
(Added Pub. L. 104–88, title I, § 102(a), Dec. 29,
1995, 109 Stat. 819.)
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 10734 of this title prior to the general
amendment of this subtitle by Pub. L. 104–88, § 102(a).
Prior sections 10722 to 10726 were omitted in the general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).
Section 10722, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1384; Pub. L. 97–261, § 29(a), (b), Sept. 20, 1982, 96 Stat.
1128; Pub. L. 99–521, § 7(e), Oct. 22, 1986, 100 Stat. 2995, related to special passenger rates.

§ 10741

Section 10723, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1385; Pub. L. 97–261, § 29(c), Sept. 20, 1982, 96 Stat. 1128;
Pub. L. 102–54, § 13(s), June 13, 1991, 105 Stat. 282; Pub.
L. 102–240, title IV, § 4011, Dec. 18, 1991, 105 Stat. 2156, related to transportation for charitable purposes.
Section 10724, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1386, related to rates for emergency transportation.
Section 10725, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1387; Pub. L. 99–521, § 7(f), Oct. 22, 1986, 100 Stat. 2995, related to special freight forwarder rates.
Section 10726, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1387; Pub. L. 96–448, title II, § 220, Oct. 14, 1980, 94 Stat.
1928, related to long and short haul transportation.
A prior section 10727, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1388, authorized the Interstate Commerce Commission to maintain standards and procedures to permit seasonal, regional, or peak-period demand rates
and required the Commission to submit an annual report to Congress on implementation of those rates and
recommendations for additional legislation needed to
make it easier to establish those rates, prior to repeal
by Pub. L. 96–448, title II, § 209, title VII, § 710(a), Oct. 14,
1980, 94 Stat. 1910, 1966, effective Oct. 1, 1980.
A prior section 10728, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1388, related to separate rates for distinct rail
services, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a).
A prior section 10729, Pub. L. 95–473, Oct. 17, 1978, 92
Stat. 1389, authorized rail carrier to establish rate,
classification, rule, or practice requiring total capital
investment of at least $1,000,000 to implement upon notice to Interstate Commerce Commission and opportunity for Commission proceeding and final decision
within 180 days after notice and provided that Commission could not suspend or set aside any rate that became final for period of five years but could revise rate
to level equal to variable costs of providing transportation when Commission found level then in effect reduced going concern of carrier, prior to repeal by Pub.
L. 96–448, title II, § 210(a), title VII, § 710(a), Oct. 14, 1980,
94 Stat. 1910, 1966, effective Oct. 1, 1980.
Prior sections 10730 to 10735 were omitted in the general amendment of this subtitle by Pub. L. 104–88,
§ 102(a).
Section 10730, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1389; Pub. L. 96–296, § 12, July 1, 1980, 94 Stat. 802; Pub.
L. 96–448, title II, § 211(a), (b), Oct. 14, 1980, 94 Stat. 1911;
Pub. L. 99–521, § 7(g), Oct. 22, 1986, 100 Stat. 2995, related
to rates and liability based on value.
Section 10731, Pub. L. 95–473, Oct. 17, 1978, 92 Stat.
1389; Pub. L. 96–448, title II, § 204, Oct. 14, 1980, 94 Stat.
1905; Pub. L. 103–272, § 4(j)(23), July 5, 1994, 108 Stat. 1369,
related to investigation of discriminatory rail rates for
transportation of recyclable or recycled materials.
Section 10732, added Pub. L. 96–296, § 8(a), July 1, 1980,
94 Stat. 798; amended Pub. L. 100–690, title IX, § 9113,
Nov. 18, 1988, 102 Stat. 4535, related to food and grocery
transportation. See section 13713 of this title.
Section 10733, added Pub. L. 96–296, § 32(a), July 1,
1980, 94 Stat. 824, related to rates for transportation of
recyclable materials.
Section 10734, added Pub. L. 96–448, title II, § 225(a),
Oct. 14, 1980, 94 Stat. 1930, related to car utilization. See
section 10722 of this title.
Another prior section 10734 was renumbered section
10735 of this title.
Section 10735, added Pub. L. 96–454, § 4(a), Oct. 15, 1980,
94 Stat. 2012, § 10734; renumbered § 10735, Pub. L. 98–554,
title II, § 227(b)(1), Oct. 30, 1984, 98 Stat. 2852; amended
Pub. L. 103–272, § 5(m)(23), July 5, 1994, 108 Stat. 1378, related to household goods rates, estimates, and guarantees of service. See section 13704 of this title.

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