skip to main content

S. 1946 (96th): Staggers Rail Act of 1980


The text of the bill below is as of Oct 14, 1980 (Passed Congress).


PUBLIC LAW 96-448—OCT. 14, 1980                                   94 STAT. 1895
Public Law 96-448
96th Congress
                                        An Act
        To reform the economic r^nilation of railroads* and for otiher purposes.      Oct. 14, 1980
                                                                                       [S. 1946]
 Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,                  I S f ilso^'^
                                                                                    49 u s e 10101
                                   SHOBT TITLB                                      note.
  SECTION 1. This Act may be cited as the "Staggers Rail Act of 1980".
                               TABLE OF CONTENTS
Sec. 1. Short title.
Sea 2. Findings.
Sec. 3. Goals.
                    TITLE I-RAIL TRANSPORTATION POLICY
Sec. 101. Rail transportation policy.
         TITLE n—RAILROAD RATES AND INTERCARRIER PRACTICES
Sea    201. Regulation of railroad rates.
Sec.   202. Determination of market dominance.
Sec.   203. Zone of rate flexibilily.
Sec.   204. Transportation of recyclable materials.
Sec.   205. Rate r^ulation proceedings adequate revenues.
Sec.   206. Inflation-based rate increases.
Sec.   207. Investigation and suspension of ratea
Sec    208. Contracts.
Se&    209. Demand sensitive rates.
Sec.   210. Phaseout of capital incentive rates.
Sec.   211. Permissive limited liability ratea
Sec.   212. Rate discrimination.
Sec.   213. Exemption.
Sec.   214. Intrastate rates.
Sec.   215. Business entertainment expenses.
Sec.   216. Efficient marketing.
Sec.   217. Compensatory joint rate relief.
Sec.   218. Expedited division of revenues proceedings.
Sec.   219. Rate bureaus.
Sec.   220. Long and short haul transportation.
Sec.   221. Raihoad entry.
Sec.   222. Service during periods of peak demand.
Sec.   223. Reciprocal switching.
Sec.   224. Car service compensation.
Sec.   225. Car utilization.
Sec.   226. Car service orders for exigent circumstances.
Sec.   227. Employee protection.
Sec.   228. Mergers and other transactions.
Sec.   229. Savings provisions.
                 TITLE m—RAILROAD COST DETERMINATIONS
Sec. 301. Uniform accounting system.
Sec. 302. Railroad cost accounting.
Sec. 303. Civil penalties for violations of accounting principles provisions.

94 STAT. 1896 PUBLIC LAW 96-448—OCT. 14, 1980 TITLE IV-RAILROAD MODERNIZATION ASSISTANCE Sec. 401. Feeder railroad development program. Sec. 402. Abandounent. Sec. 403. Conversion of abandoned railroad rights-of-way. Sec. 404. Extension of redeemable preference share financing. Sec. 405. Financing. Sec. 406. Tremsaction assisttmce. Sec. 407. Electrification loan guarantees. Sec. 408. Amendment to the R^onal Rail Reorganization Act of 1973. Sec. 409. Federal assistance report. TITLE V-CONRAIL TITLE V LABOR PROTECTION Sec. 501. Monthly displacement allowance. Sec. 502. Duration of monthly displacement allowance. Sec. 503. Training and transfer. Sec. 504. Payment, audit, and report. Sec. 505. Railroad hiring. Sec. 506. Single collective-bargaining agreement. Sec. 507. Employee protection payments. Sec. 508. Technical amendments. TITLE VI—EXPEDITED SUPPLEMENTAL TRANSACTION PROPOSALS Sec. 601. Expedited supplemental transaction proposals. TITLE Vn—MISCELLANEOUS PROVISIONS Sec. 701. Rock Island and Milwaukee Railroads amendments. Sec. 702. Loan guarantees. Sec. 703. Conrail studies and emergency funding. Sec. 704. USRA authorization of appropriations. Sec. 705. Feeder line rehabilitation study. Sec. 706. Effect on pending matters. Sec. 707. Construction of amendments. Sec. 708. Surplus property. Sec. 709. Study of Alaska railroad rates. Sec. 710. Effective dates. FINDINGS 49 use 10101a SEC. 2. The Congress hereby finds that— ^°^- (1) historically, railroads were the essential factor in the national transportation system; (2) the enactment of the Interstate Commerce Act was essen- tial to prevent an abuse of monopoly power by railroads and to establish and maintain a national railroad network; (3) today, most transportation within the United States is competitive; (4) many of the Government regulations affecting railroads have become unnecessary and inefficient; (5) nearly two-thirds of the Nation's intercity freight is trans- ported by modes of transportation other than railroad; (6) earnings by the railroad industry are the lowest of any transportation mode and are insufficient to generate funds for necessary capital improvements; (7) by 1985, there will be a capital shortfall within the railroad industry of between $16,000,000,000 and $20,000,000,000; (8) failure to achieve increased earnings within the railroad industry will result in either further deterioration of the rail system or the necessity for additional Federal subsidy; and (9) modernization of economic regulation for the railroad industry with a greater reliance on the marketplace is essential
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1897 in order to achieve maximum utilization of railroads to save energy and combat inflation. GOALS SEC. 3. The purpose of this Act is to provide for the restoration, 49 use loioia maintenance, and improvement of the physical facilities and finan- ^°^- cial stability of the rail system of the United States. In order to achieve this purpose, it is hereby declared that the goals of this Act are— (1) to assist the railroads of the Nation in rehabilitating the rail system in order to meet the demands of interstate commerce and the national defense; (2) to reform Federal regulatory policy so as to preserve a safe, adequate, economical, efficient, and financially stable rail system; (3) to assist the rail system to remain viable in the private sector of the economy; (4) to provide a regulatory process that balances the needs of carriers, shippers, and the public; and (5) to assist in the rehabilitation and financing of the rail system. TITLE I—RAIL TRANSPORTATION POLICY RAIL TRANSPORTATION POUCY SEC. 101. (a) Chapter 101 of title 49, United States Code, is amended by inserting after section 10101 the following new section: "§ 10101a. Rail transportation policy 49 u s e 10101a. "In regulating the railroad industry, it is the policy of the United States Government— "(1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for trans- portation by rail; "(2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair £ind expedi- tious regulatory decisions when regulation is required; "(3) to promote a safe and efficient rail transportation system by allowing rail carriers to earn adequate revenues, as deter- mined by the Interstate Commerce Commission; "(4) to ensure the development and continuation of a sound rail transportation system with effective competition among rail carriers and with other modes, to meet the needs of the public and the national defense; "(5) to foster sound economic conditions in transportation and to ensure effective competition and coordination between rail carriers and other modes; "(6) to maintain reasonable rates where there is an absence of effective competition and where rail rates provide revenues which exceed the amount necessary to maintain the rail system and to attract capital; "(7) to reduce regulatory barriers to entry into and exit from the industry; "(8) to operate transportation facilities and equipment without detriment to the public health and safety;
94 STAT. 1898 PUBLIC LAW 96-448—OCT. 14, 1980 "(9) to cooperate with the States on transportation matters to assure that intrastate regulatory jurisdiction is exercised in accordance with the standards established in this subtitle; "(10) to encourage honest and efficient management of rail- roads and, in particular, the elimination of noncompensatory rates for rail transportation; "(11) to require rail carriers, to the maximum extent practica- ble, to rely on individual rate increases, and to limit the use of increases of general applicability; "(12) to encourage fair wages and safe and suitable working conditions in the railroad industry; "(13) to prohibit predatory pricing and practices, to avoid undue concentrations of market power and to prohibit unlawful discrimination; "(14) to ensure the availability of accurate cost information in regulatory proceedings, while minimizing the burden on rail carriers of developing and maintaining the capability of provid- ing such information; and "(15) to encourage and promote energy conservation.". (b) Section 10101(a) of title 49, United States Code, is amended by striking out "To ensure" and inserting in lieu thereof "Except where policy has an impact on rail carriers, in which case the principles of Ante, p. 1897. section 10101a of this title shall govern, to ensure". (c) The section analysis of chapter 101 of title 49, United States Code, is amended by inserting after the item relating to section 10101 the following new item: "lOlOla. Rail transportation policy.". TITLE II—RAILROAD RATES AND INTER-CARRIER PRACTICES REGULATION OF RAILROAD RATES SEC. 201. (a) Subchapter I of chapter 107 of title 49, United States Code, is amended by inserting after section 10701 the following new section: 49 use 10701a. "§ 10701a. Standards for rates for rail carriers "(a) Except as provided in subsection Qy) or (c) of this section and unless a rate is prohibited by a provision of this title, a rail carrier providing transportation subject to the jurisdiction of the Interstate 49 u s e 10501. Commerce Commission under subchapter I of chapter 105 of this title may establish any rate for transportation or other service provided by the carrier. "(bXl) If the Commission determines, under section 10709 of this 49 u s e 10709. title, that a rail carrier has market dominance over the transporta- tion to which a particular rate applies, the rate established by such carrier for such transportation must be reasonable. "(2) In any proceeding to determine the reasonableness of a rate described in paragraph (1) of this subsection— "(A) the shipper challenging such rate shall have the burden of proving that such rate is not reasonable if^ "(i) such rate (I) is authorized under section 10707a of this title, and (II) results in a revenue-variable cost percentage for the transportation to which the rate applies that is less than the lesser of the percentages described in clauses (i) and Post, p. 1901. (ii) of section 10707a(eX2)(A) of this title; or
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1899 "(ii) such rate does not meet the description set forth in clause (i) of this subparagraph, but the Commission does not begin an investigation proceeding under section 10707 of this 49 u s e 10707. title to determine whether such rate is reasonable; and "(B) the rail carrier establishing the challenged rate shall have the burden of proving that such rate is reasonable if— "(i) such rate (I) is greater than that authorized under section 10707a of this title, or (II) results in a revenue- Post, p. 1901. variable cost percentage for the transportation to which the rate applies that is equal to or greater than the lesser of the percentages described in clauses (i) and (ii) of section 10707a(eX2)(A) of this title; and "(ii) the Commission begins an investigation proceeding under section 10707 of this title to determine whether such rate is reasonable. "(3) In determining whether a rate established by a rail carrier is reasonable for purposes of this section, the Commission shall recog- nize the policy of this title that rail carriers shall earn adequate revenues, as established by the Commission under section 10704(a)(2) of this title. Post, p. 1906. "(cXl) A rate for transportation or other service provided by a rail carrier subject to the jurisdiction of the Commission under sub- chapter I of chapter 105 of this title may not be established below a 49 u s e 10501. reasonable minimum. Any rate for transportation by such a rail carrier that does not contribute to the going concern value of such carrier is presumed to be not reasonable. A rate that contributes to the going concern value of such carrier is conclusively presumed not to be below a reasonable minimum. "(2) A rate for transportation by a rail carrier that equals or exceeds the variable cost of providing the transportation is conclu- sively presumed to contribute to the going concern value of such rail carrier. "(3)(A) Upon the filing of a complaint alleging that a rate is in violation of this subsection, the Commission shall take final action thereon by the 90th day after the date such complaint is filed. "(B) If the Commission determines, based on the record after opportunity for a hearing, that a rate is in violation of this subsection, the Commission shall order such rate to be raised, but only to the minimum level required by this subsection. The complainant shall have the burden of proving that such rate is in violation of this subsection. "(4XA) For purposes of this subsection, variable costs shall be determined under formulas or procedures prescribed or certified by the Commission. "(B) In the determination of variable costs for purposes of mini- mum rate regulation, the Commission shall, on application of the rail carrier proposing the rate, determine only the costs of such carrier and only those costs of the specific service in question unless the specific information is not available. The Commission may not include in such variable costs an expense that does not vary directly with the level of transportation provided under the proposed rate. . ObXD Section 10701(a) of title 49, United States Code, is amended— (A) by inserting "(other than a rail rate)" immediately after "A rate" in the first sentence; (B) by inserting "(including a rail carrier)" immediately after "such a carrier" in the second sentence thereof; and (C) by inserting "(including rail carriers)" immediately after "those carriers" in the third sentence thereof.
94 STAT. 1900 PUBLIC LAW 96-448—OCT. 14, 1980 Repeal. (2) Section 10701(b) of title 49, United States Code, is repealed. (3) The section anedysis of chapter 107 of title 49, United States Code, is amended by inserting immediately below the item relating to section 10701 the following new item: "10701a. Standards for rates for rail carriers.". DETERMINATION OF MARKET DOMINANCE SEC. 202. Section 10709 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: Definitions. "(dXl) In this subsection— "(A) 'fixed and variable cost' means all cost incurred by r£ul carriers in the transportation of freight, but limiting the return on equity capital to a rate equal to the embedded cost of debt. "(BXi) 'cost recovery percentage' means the lowest revenue- variable cost percentage which, if all movements that produced revenues resulting in revenue-variable cost percentages in excess of the cost recovery percentage are deemed to have produced only revenues resulting in the cost recovery percentage, would pro- duce revenues which would be equal, when combined with total revenues produced by all other traffic transported by rail carrier, to the total fixed and variable cost of the transportation of all traffic by rail carrier. "(ii) for purposes of determining the cost recovery percentage only, 'revenue-variable cost percentage' means the quotient, expressed as a percentage figure, obtained by dividing the total revenues produced by the transportation of all traffic received by rail carriers for rail transportation by the total variable cost of such transportation. "(2) In making a determination under this section, the Commission 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— "(A) 160 percent during the period beginning on the effective Ante, p. 1895. date of the Staggers Rail Act of 1980 and ending September 30, 1981; "(B) 165 percent during the period beginning October 1,1981, and ending September 30,1982; "(C) 170 percent during the period beginning October 1,1982, and ending September 30,1983; "(D) 175 percent or the cost recovery percentage, whichever is less, during the period beginning October 1, 1983, and ending September 30,1984; and "(E) the cost recovery percentage, during each 12-month period beginning on or after October 1,1984. C!ost recovery For purposes of subparagraphs (D) and (E) of this paragraph, the cost percentage. recovery percentage shall in no event be less than a revenue-variable cost percentage of 170 percent or more than a revenue-variable cost percentage of 180 percent. Revenue- "(3) For purposes of determining the revenue-variable cost percent- variable cost age for a particular transportation, variable costs shall be determined percentage. Ante, p. 1916. pursuant to section 10705a(mXl) of this title, with adjustments specified by the Commission. A rail carrier may meet its burden of proof under this subsection by establishing its vsiriable costs in accordance with such section 10705a(mXl)> but a shipper may rebut
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1901 that showing by evidence of such t5T)e, and in accordance with such burden of proof, as the Commission shall prescribe. "(4) A finding by the Commission that a rate charged by a rail carrier results in a revenue-variable cost percentage for the transpor- tation to which the rate applies that is equal to or greater than the applicable percentage under paragraph (2) of this subsection 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. "(5XA) Within 180 days after the effective date of the Staggers Rail Cost recovery Act of 1980 and on an annual basis thereafter, the Commission shall percentages. Ante, p. 1895. determine the cost recovery percentage for the transportation of all traffic received by rail carriers. The Commission shall make such determination after considering each individual revenue-variable cost percentage resulting from the revenues and costs of a valid and reliable statistical sample of all movements of commodities trans- ported by class I rail carriers during the most recent calendar year for which such information is available. "(B) If, on the basis of calculations under subparagraph (A) of this paragraph, the Commission determines that revenues earned by all class I rail carriers during the previous calendar year do not exceed the fixed and variable costs of such carriers, then the cost recovery percentage for purposes of this section shall be deemed to be equal to the cost recovery percentage last determined by the Commission. "(C) The Commission shall, in its annual report submitted to the Congress under section 10311 of this title, set forth the cost recovery 49 use I03ii percentage determined for that year under subparagraph (A) of this paragraph.". ZONE OF RATE FLEXIBIUTY SEC. 203. (a) Subchapter I of chapter 107 of title 49, United States Code, is amended by inserting after section 10707 the following new section: "§ 10707a. Zone of rail carrier rate flexibility 49 u s e 10707a. "(a) In this section— "(1)(A) 'base rate' means, with respect to the transportation of "Base rate." a particular commodity (i) for the 24-month period beginning on October 1, 1980, the rate in effect on October 1, 1980, (ii) for the 24-month period beginning on October 1,1982, the rate in effect on October 1, 1982, and (iii) for the 5-year period beginning on October 1, 1984, and for each subsequent 5-year period, the rate in effect on the first day of the applicable 5-year period. "(B) If no rate exists for the transportation of a particular commodity on October 1, 1980, the base rate for the transporta- tion of such commodity shall be the rate established by the rail carrier (divided by the latest rail cost adjustment factor pub- lished by the Commission), unless such rate is found to be unreasonable by the Commission, in which case the base rate shall be the rate authorized by the Commission (divided by the latest rail cost adjustment factor published by the Commission). "(2)(A) 'adjusted base rate' means the base rate for the trans- "Adjusted base portation of a particular commodity multiplied by the latest rail rate." cost adjustment factor published by the Commission pursuant to this paragraph. "(B) Commencing with the fourth quarter of 1980, the Commis- Rail cost adjustment sion shall, as often £is practicable but in no event less often than factor.
94 STAT. 1902 PUBLIC LAW 96-448—OCT. 14, 1980 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 Commission, with appropriate adjustments to reflect the cnang- ing 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 1980, or for the fourth quarter of 1982 or for the fourth quarter of every fifth year thereafter, as appropriate. Rate increase. "0>)(1) Except as provided in paragraph (2) of this subsection, a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 49 u s e 10501. of this title may increase any rate over which the Commission has 49 u s e 10709. jurisdiction under section 10709 of this title so long as the increased rate is not greater than the adjusted base rate for the transportation involved, plus any rate increases implemented under subsection (c) or (d) of this section. "(2) A rate increase authorized under this subsection may not be found to exceed a reasonable maximum for the transportation involved. "(3) A rail carrier majr not increase a rate under this subsection to the extent that the cost increases to such carrier due to inflation are recovered through (A) general rate increases pursuant to section 49 u s e 10706. 10706 of this title, or (B) inflation-based rate increases under section 49 u s e 10712. 10712 of this title applicable to that rate. "(cXl) During the 12-month period beginning on the effective date Ante, p. 1895. of the Staggers Rail Act of 1980 and during each of the 3 succeeding 12-month periods, a rail carrier may, in addition to rate increases authorized under subsection Qj) of this section, increase any rate over which the Commission has jurisdiction under section 10709 of this title by an annual amount of not more than 6 percent of the adjusted base rate, except that in no event shall the total increase under this subsection result in a rate which is more than 118 percent of the adiusted base rate. (2)(A) If any portion of a rate increase under this subsection is not implemented in the year in which it is authorized, such portion may, except as provided in subparagraph (B) of this paragraph, be imple- mented only in the next succeeding year. "(B) If any portion of the total rate increase authorized under this subsection is not implemented by the end of the 4-year period beginning on the effective date of the Staggers Rail Act of 1980, such portion may be implemented in the next 2 succeeding years, except that in no event may a rail carrier increase a rate under this subsection or under subsection (d) of this section in either of such 2 succeeding years by an annual amount of more than 10 percent of the adiusted base rate. (dXD Except as provided in paragraph (3) of this subsection, during the 12-month period beginning on October 1,1984, and during each succeeding 12-month period, a rail carrier may, in addition to rate increases under subsection (b) of this section, increase any rate over which the Commission has jurisdiction under section 10709 of this title by an annual amount of not more than 4 percent of the adiusted base rate. (2) No portion of any rate increase under this subsection which is not implemented in the year in which it is authorized may be implemented in any other year. (3)(A) The provisions of this subsection shall not apply to a rail carrier proposing to increase a single line rate if such carrier earns
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1903 adequate revenues, as determined by the Commission under section 10704(a)(2) of this title. Post, p. 1906. "(B) The Commission shall, after a hearing on the record, prescribe Joint rates, such rules with respect to joint rates as necessary to ensure that rail rules. carriers which earn adequate revenues, as determined under section 10704(a)(2) of this title, do not receive the rate increases authorized by this subsection unless the Commission determines that it is unable to prescribe such rules without precluding rail carriers not earning adequate revenues from receiving the rate increases authorized under this subsection. "(e)(1) Notwithstanding the provisions of section 10707 of this title, 49 u s e 10707. in the case of any rate increase by a rail carrier that is authorized under subsection (c) or (d) of this section— "(A)(i) the Commission may not suspend such rate increase pending final Commission action; and "(ii) except as provided in p a r ^ r a p h (2) of this subsection, the Commission may not begin an investigation proceeding under section 10707 of this title with respect to the reasonableness of such rate increase; but "(B) an interested party may file a complaint under section 11701(b) of this title alleging that such rate increase violates the 49 u s e 11701. provisions of this subtitle. In considering any complaint challenging a rate increase that is authorized under subsection (c) of this section and that results in a revenue-variable cost percentage that is less than the lesser of the percentages described in clauses (i) and (ii) of paragraph (2)(A), the Commission shall, in determining the reasonableness of such rate increase, give due consideration to whether the carrier proposing the rate increase has attained adequate revenues, as determined by the Commission under section 10704(a)(2) of this title, giving regard to preventing a carrier with adequate revenues from realizing excessive profits on the traffic involved and also the policy of bringing to an adequate level the revenues of carriers not having an adequate revenue level. "(2)(A) If a rate increase authorized under this section in any year results in a revenue-variable cost percentage for the transportation to which the rate applies that is equal to or greater than— "(i) 20 percentage points above the revenue-variable cost per- centage applicable in that year under section 10709(d) of this title; or Ante, p. 1900. "(ii) a revenue-variable cost percentage of 190 percent, whichever is less, the Commission may, on its own initiative, or on complaint of an interested party, begin an investigation proceeding to determine whether the proposed rate increase violates this subtitle. "(B) In determining whether to investigate or not to investigate any proposed rate increase that results in a revenue-variable cost percent- age for the transportation to which the rate applies that is equal to or greater than the lesser of the percentages described in clauses (i) and (ii) of subparagraph (A) of this paragraph (without regard to whether such rate increase is authorized under this section), the Commission shall set forth its reasons therefor, giving due consideration to the following factors: "(i) the amount of traffic which is transported at revenues which do not contribute to going concern value and efforts made to minimize such traffic; "(ii) 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 79-194 O—81—pt. 2 40 : QL3
94 STAT. 1904 PUBLIC LAW 96-448—OCT. 14, 1980 "(iii) the impact of the proposed rate or rate increase on the attainment of the national energy goals and the rail transporta- Ante, p. 1897. tion policy under section 10101a of this title, taking into account the railroads' role as a primary source of energy transportation and the need for a sound rail transportation system in accord- ance with the revenue adequacy goals of section 10704 of this 49 u s e 10704. title. This subparagraph shall not be construed to change existing law with regard to the nonreviewability of such determination. "(C) In determining whether a rate is reasonable, the Commission shall consider, among other factors, evidence of the following: "(i) the amount of traffic which is transported at revenues which do not contribute to going concern value and efforts made to minimize such traffic; "(ii) 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 "(iii) the carrier's mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier's overall revenues. "(f) In any proceeding under this section, evidence of the underly- ing rail carrier rate is admissible. "(g) A finding by the Commission that a rate increase exceeds the increase authorized under this section does not establish a presump- tion that (1) the rail carrier proposing such rate increase has or does not have market dominance over the transportation to which the rate applies, or (2) the proposed rate exceeds or does not exceed a reasonable maximum. "(h) The authority of the Commission to determine and prescribe reasonable rules, classifications, and practices may not be used, directly or indirectly, to limit the rates which rail carriers are otherwise authorized to establish under this subtitle.". Ot)) The section analysis of chapter 107 of title 49, United States Code, is amended by inserting immediately after the item relating to section 10707 the following new item: "10707a. Zone of rail carrier rate flexibility.". Rail carrier rate (c)(1) Any rail carrier rate which increased over 70 percent between increases. 1976 and 1979 inclusive for the transportation, in shipper owned 49 u s e 10707a equipment over a distance exceeding 1,550 miles between points note. within the United States, of coal pursuant to a tariff calling for an annual volume of more than 2,000,000 tons per year purchased by a municipally owned utility for the generation of electric power under a 20-year purchase agreement entered into by such utility in the year 1974 shall not be increased so long as coal is purchased under such original agreement, except that— (A) during the period beginning October 1, 1980, and ending September 30, 1987, the Interstate Commerce Commission may permit increases in such rate which result in a revenue-variable cost percentage of not more than 162 percent; and (B) after October 1, 1987, such rate shall be subject to section Ante, p. 1898. 10701a of title 49, United States Code, and related provisions of such title governing regulation of rail carrier rates, except that until such rate results in a revenue-variable cost percentage that is equal to or greater than the revenue-variable cost percentage Ante, p. 1900. applicable under section 10709(d) of such title, such rate may not be increased more than 4 percent, in addition to inflation, in any year.
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1905 (2) Neither the provisions of this subsection nor any rate subject to this subsection shall be admissible as evidence or considered in any way in any proceeding involving any other rail carrier rate that is commenced to determine market dominance under section 10709 of title 49, United States Code, or to determine reasonableness under section 10701a of such title. Ante, p. 1898. TRANSPORTATION OF RECYCLABLE MATERIALS SEC. 204. Section 10731 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: "(e) Notwithstanding any other provision of this title or any other law, within 90 days after the effective date of the Staggers Rail Act of 1980, all rail carriers providing transportation subject to the jurisdic- tion of the Commission under subchapter I of chapter 105 of this title 49 u s e 10501. shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials, other than recyclable or recycled iron or steel, at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to- variable cost ratio that rail carriers would be required to realize, under honest, economical, and efficient management, in order to cover total operating expenses, including depreciation and obsoles- cence, plus a reasonable and economic profit or return (or both) on capital employed in the business sufficient to attract and retain capital in amounts adequate to provide a sound transportation system in the United States. As long as any such rate equals or exceeds such average revenue-to-variable cost ratio established by the Commission, such rate shall not be required to bear any further rate increase. The Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this subsection.". RATE REGULATION PROCEEDINGS; ADEQUATE REVENUES SEC. 205. (aXl) The Interstate Commerce Commission shall com- 49 u s e 10701a note. mence a proceeding for purposes of determining whether, and to what extent, product competition should be considered in proceedings under subtitle IV of title 49, United States Code, to determine the 49 u s e 10101. reasonableness of rail carrier rates. The Commission shall complete its proceeding under this subsection within 230 days after the effective date of this Act. (2XA) For purposes of this subsection, the term "product competi- "Product tion" means the availability to a consignee, at a competitive delivered competition." cost and in sufficient quantities, of products or commodities which are of the same tjrpe as the commodity or product to which the rate in question applies, without regard to whether such products or com- modities are available from the same or a different origin as those to which the rate applies. (B) In determining the availability of alternative sources of a particular commodity for purposes of this subsection, such commod- ity must be capable, by reason of similar specifications, of being effectively utilized by the consignee. (C) In determining the availability of alternative sources of coal for purposes of this subsection, such coal must be capable, by reason of similar specifications such as Btu's, sulfur content, and ash content, of being effectively utilized by the consignee. (D) For purposes of this subsection, any coal imported in the United States for the generation of electricity by utilities sh^l not be taken
94 STAT. 1906 PUBLIC LAW 96-448—OCT. 14, 1980 into account in the determination of whether coal is available to a consignee from another source. (3)(A) Nothing in this subsection shall be construed as requiring the Commission to modify its standards for the determination of the reasonableness of rail carrier rates under existing law and procedures. "Market (B) Nothing in this subsection shall be construed as altering the dominance." meaning, use, or interpretation by the Commission, the courts, or any party of the term "market dominance", as defined in section 10709(a) of title 49, United States Code. The enactment of this subsection shall not be considered by the Commission in any proceeding, or by any court on an appeal from that or any other proceeding, to determine the proper scope of the term "market dominance" or whether there is market dominance over the transportation to which any particular rate applies. (b)(1) Section 10704(a)(2) of title 49, United States Code, is amended by inserting "and revise as necessary" immediately after "shall maintain". (2) Section 10704(a) of title 49, United States Code, is amended by adding at the end thereof the following new paragraphs: "(3) The Commission shall conclude a proceeding under paragraph (2) of this subsection within 180 days after the effective date of the Ante, p. 1895. Staggers Rail Act of 1980 and thereafter as necessary. "(4) On the basis of the standards and procedures under paragraph (2) of this subsection, the Commission shall, within 180 days after the effective date of the Staggers Rail Act of 1980 and on an annual basis thereafter, determine which rail carriers are earning adequate revenues.". INFLATION-BASED RATE INCREASES SEC. 206. (a) Subchapter I of chapter 107 of title 49, United States Code, is amended by adding at the end thereof the following new section: 49 use 10712 "§ 10712. Inflation-based rate increases "(a) The Commission may, on a quarterly basis and consistent with Ante, p. 1897. the rail transportation policy set forth in section lOlOla of this title, prescribe a percentage rate increase or rate index for rail carriers in order to compensate for inflationary cost increases. Such percentage rate increase or rate index may be applicable on an industry-wide, territory-wide, or carrier-by-carrier basis. "(b) Within 60 days after the date the Commission prescribes a percentage rate increase or rate index under subsection (a) of this section, each rail carrier or group of rail carriers shall notify the Commission of any rate or group of rates which such carrier or carriers intend to be excluded from the application of such percent- age rate increase or rate index. Percentage rate "(c) For purposes of this section, a percentage rate index may index. permit rate increases within a specified range to allow carriers to recover a total revenue increase specified by the Commission as necessary to compensate for inflationary cost increases.". (b) The section analysis for chapter 107 of title 49, United States Code, is amended by inserting immediately after the item relating to section 10711 the following new item: "10712. Inflation-based rate increases.".
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1907 INVESTIGATION AND SUSPiSNSION OF RATES SEC. 207. (a) Section 10707(b)(1) of title 49, United States Code, is amended to read as follows: "(b)(1) The Commission must complete a proceeding under this section and make its final decision by the end of the 5th month after the rate, classification, rule, or practice was to become effective, except that if the Commission reports to the Congress by the end of such 5th month that it cannot make a final decision by that time and explains the reason for the delay, it may take an additional 3 months to complete the proceeding and make its final decision. If the Commission does not reach a final decision within the applicable time period, the rate, classification, rule, or practice— "(A) is effective at the end of that time period; or "(B) if already in effect at the end of that time period, remains in effect.". (b) Section 10707(c) of title 49, United States Code, is amended to read as follows: "(c)(1) The Commission may not suspend a proposed rate, classifica- tion, rule, or practice during the course of a Commission proceeding under this section unless it appears from the specific facts shown by the verified statement of a person that— "(A) it is substantially likely that the protestant will prevail on the merits; "(B) without suspension, the proposed rate change will cause substantial injury to the protestant or the party represented by the protestant; and "(C) because of the peculiar economic circumstances of the protestant, the provisions of subsection (d) of this section do not protect the protestant. "(2) The burden shall be on the protestant to prove the matters described in paragraph (1) (A), (B), and (C) of this subsection.". (c) Section 10707(d) of title 49, United States Code, is amended to read as follows: "(d)(1) If the Commission does not suspend a proposed rate increase under subsection (c) of this section, the Commission shall require the rail carrier to account for all amounts received under the increase until the Commission completes its proceedings under subsection (b) of this section. The accounting shall specify by whom and for whom the amounts are paid. When the Commission takes final action, it shall require the carrier to refund to the person for whom the amounts were paid that part of the increased rate found to be unreasonable, plus interest at a rate equal to the average yield (on the date the statement is filed) of marketable securities of the United States Government having a duration of 90 days. "(2) If a rate is suspended under subsection (c) of this section and any portion of such rate is later found to be reasonable under this title, the carrier shall collect from each person using the transporta- tion to which the rate applies the difference between the original rate and the portion of the suspended rate found to be reasonable for any services performed during the period of suspension, plus interest at a rate equal to the average yield (on the date the statement is filed) of marketable securities of the United States Government having a duration of 90 days, except that this paragraph shall not apply to general rate increases under section 10706 of this title. 49 USC 10706. "(3) If any portion of a proposed rate decrease is suspended under subsection (c) of this section and later found to be reasonable under this title, the rail carrier may refund any part of the portion of the
94 STAT. 1908 PUBLIC LAW 96-448—OCT. 14, 1980 decrease found to comply with this title if the carrier makes the refund available to each shipper who participated in the rate, in accordance with the relative amount of such shipper's traffic trans- ported at such rate. "(4) Notwithstanding the provisions of section 10741 or section 49 u s e 10741, 10761 of this title, the Commission shall, by rule, establish standards 10761. and procedures permitting a rail carrier to waive the collection of amounts due under this subsection if such amounts are not significant.". Repeal. (d) Section 10707(e) of title 49, United States Code, is repealed. CONTRACTS SEC. 208. (a) Subchapter I of chapter 107 of title 49, United States Code, as amended by this Act, is further amended by adding at the end thereof the following new section: 49 u s e 10713. "§ 10713. Contracts "(a) One or more rail carriers providing transportation subject to the jurisdiction of the Interstate Commerce Commission under sub- 49 u s e 10501. chapter I of chapter 105 of this title may enter into a contract with one or more purchasers of rail services to provide specified services under specified rates and conditions. Such a rail carrier may not enter into a contract with purchasers of rail service except as provided in this section. "(b) Each contract entered into under this section shall be filed with the Commission, together with a summary of the contract containing such nonconfidential information as the Commission Special tariff prescribes. The Commission shall publish special tariff rules for such rules. contracts in order to assure that the essential terms of the contract are available to the general public in tariff format. Approval. "(c) A contract filed under this section shall be approved by the Commission, as provided in subsection (e) of this section, unless the Commission determines in a proceeding under subsection (d) of this section that such contract is in violation of this section. Review. "(d)(1) No later than 30 days after the date of filing of a contract under this section, the Commission may, on its own initiative or on complaint, begin a proceeding to review such contract on the grounds described in this subsection. eomplaint filing. "(2)(A) In the case of a contract other than a contract for the transportation of agricultural commodities (including forest products and paper), a complaint may be filed— '^'(i) by a shipper only on the grounds that such shipper individually will be harmed because the proposed contract unduly impairs the ability of the contracting carrier or carriers to meet their common carrier obligations to the complainant 49 u s e 11101. 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. Agricultural "(B) In the case of a contract for the transportation of agricultural commodities. commodities (including forest products and paper), in addition to the grounds for a complaint described in subparagraph (A) of this paragraph, a complaint may be filed by a shipper 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
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1909 similar conditions to the contract at issue, and that shipper was ready, 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 competi- tive practice under this subtitle. In making a determination under clause (ii) of this subparagraph, the Commission shall consider the difference between contract rates and published single car rates. "(C) For purposes of this paragraph, the term 'unreasonable dis- "Unreasonable crimination* has the same meaning as such term has under section discrimination.' 10741 of this title. 49 u s e 10741. "(3XA) 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 Commission may establish, the Commis- sion shall determine whether the contract that is the subject of such proceeding is in violation of this section. "(B) If the (Dommission determines, on the basis of a complaint filed Rates and under paragraph (2XBXi) of this subsection, that the grounds for a service. complEiint described in such paragraph have been established with respect to a carrier, the Commission shall, subject to the provisions of this section, order such carrier to provide rates and service substan- tially similar to the contract at issue with such differentials in terms and conditions as are justified by the evidence. "(e) Approval of a contract filed under this section shall be Effective dates. effective— "(1) on the date the Commission expressly approves such contract, but in no event before the end of the 30-day period beginning on the date such contract is filed or after the end of the 60-day period beginning on such date; or "(2) if the Commission has not disapproved such contract by the end of the 60-day period beginning on the date such contract is filed, at the end of such 60-day period. "(f) The Commission may limit the right of a rail carrier to enter Future into future contracts under this section following a determination contracts. that additional contracts would impair the ability of the rail carrier to fulfill its common carrier obligations under section 11101 of this title. 49 u s e 11101. "(g) The C!ommission may not require a rail carrier to violate the terms of a contract that has been approved under this section, except to the extent necessary to comply with section 11128 of this title. 49 u s e 11128. "(h) 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. "(iXD A contract that is approved by the Commission under this section, and transportation under such contract, shall not be subject to this subtitle, and may not be subsequently challenged before the Commission or in any court on the grounds that such contract violates a provision of this subtitle. "(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. "(j) The provisions of this section shall not affect the status of any lawful contract between a rail carrier and one or more purchasers of rail service that is in effect on the effective date of the Staggers Rail Act of 1980. Any such contract shall hereafter have the same force Ante, p. 1895. and effect as if it had been entered into in accordance with the
94 STAT. 1910 PUBLIC LAW 96-448—OCT. 14, 1980 provisions of this section. Nothing in this section shall affect the rights of the parties to challenge the existence of such a contract. Agricultural "(kXl) Any rail carrier may, in accordance with the terms of this commodities, transportation. section, enter into contracts for the transportation of agricultural commodities (including forest products and 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), except that in the case of a proposed contract between a class I carrier and a shipper originating an average of 1,000 cars or more per year during the prior 3-year period by major car type on a particular carrier, not more than 40 percent of carrier owned or leased equipment utilized on the average during the prior 3-year period may be used for such contract without prior authorization by the Commission. "(2) The Commission 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 Commission considers appro- priate, if it appears that additional equipment may be made available without impairing the rail carriers ability to meet its common 49 u s e 11101. carrier obligations under section 11101 of this title. "(1) Service under a contract approved under this section shall be deemed to be a separate and distinct class of service, and the equipment used in the fulfillment of such a contract shall not be 49 u s e 11123. subject to car service decisions under section 11123 of this title, Railroad "(m) The Commission shall establish a railroad contract rate contract rate advisonr service. The advisory service shall— advisory service. (1) compile and disseminate to interested parties nonconfiden- tial summaries of the provisions of individual contract informa- tion relating to the provisions of contracts entered into under this section with regard to various goods, items, and commodities covered by such contracts; "(2) provide the Commission and interested parties with advice regarding contracts; and (3) assess the impact on competition among shippers of variations between contract rates for various shipments and the published single car rates, and submit a report on such impact to the Congress not later than 90 days after the effective date of the Ante, p. 1895. Staggers Rail Act of 1980.". (b) The section analysis for chapter 107 of title 49, United States Code, is amended by inserting immediately after the item relating to section 10712, as added by this Act, the following new item: "10713. Contracts.". DEMAND SENSITIVE RATES Repeal. SEC. 209. Section 10727 of title 49, United States Code, and the item relating to such section in the section analysis for chapter 107 of such title, are repealed. PHASEOUT OP CAPITAL INCENTIVE RATES Repeal. SEC. 210. (a) Section 10729 of title 49, United States Code, and the item relating to such section in the section analysis of chapter 107 of such title, are repealed. 49 u s e 10729 (b) Notwithstanding any other provision of law, any rate estab- note. lished by a rail carrier under section 10729 of title 49, United States
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1911 Code, prior to the effective date of this Act shall remain in effect in accordance with its terms, but for no longer than 5 years after the date it became effective, unless the parties otherwise agree. However, Rate revision. the Interstate Commerce Commission may, during the period such a rate is in effect, order such rate revised to a level equal to the incremental cost of providing the transportation if the Commission finds that the level then in effect reduces the going concern value of the rail carrier. PERMISSIVE UMITED LIABILITY RATES SEC. 211. (a) Section 10730(a) of title 49, United States Code, is amended by inserting "and excluding any rail carrier" immediately after "motor common carrier of property'. (b) Section 10730 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: "(c) A rail carrier providing transportation or service subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title may establish rates for transportation of property under 49 u s e 10501. which the liability of the 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, and may provide in such written declaration or agreement for specified amounts to be deducted from any claim against the carrier for loss or damage to the property or for delay in the transportation of such property.". (c) Section 11707(d) of title 49, United States Code, is amended— (1) by inserting "(1)" immediately after "(d)"; (2) by inserting "(other than a rail carrier)" immediately after "delivering carrier"; and (3) by adding at the end thereof the following new paragraph: "(2)(A) A civil action under this section may only be brought— "(i) against the originating rail carrier, in the judicial district in which the point of origin is located; "(ii) against the delivering rail carrier, in the judicial district 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. "(B) A civil action under this section may be brought in a United States district court or in a State court. "(C) In this section, 'judicial district' means (i) in the case of a "Judicial United States district court, a judicial district of the United States, district." and (ii) in the case of a State court, the applicable geographic area over which such court exercises jurisdiction. . (d) Within one year after the effective date of this Act, the Attorney Investigation; General and the Interstate Commerce Commission shall independ- report to Congress. ently investigate whether rail carriers should continue to be subject 49 u s e 11707 to section 11707 of title 49, United States Code, and submit a report to note. the Congress setting forth recommendations to Congress for appro- priate legislative action. Each such investigation shall address the foUowing issues: (1) Whether, in the case of traffic with respect to which rail carriers do not have market dominance, such carriers should be
94 STAT. 1912 PUBLIC LAW 96-448—OCT. 14, 1980 subject to any higher level of liability for loss and damage than they are willing to agree to with the shippers of such traffic. (2) Whether, in the case of traffic with respect to which rail carriers have market dominance, such carriers should be subject to any greater liability than would be imposed under a statutory comparative negligence standard. (3) Whether liability for damage to rail traffic should be determined under a no-fault liability system and what shippers should bear the cost of such a system. (4) Whether venue in cases arising from rail carrier liability for damages to traffic should be further limited. (5) Whether rail carrier property damage cases should be subject to laws other than Federal law. (6) Whether the right to claims should be limited to either the shipper or receiver of property. (7) Whether maximum time limits should be imposed on the filing of claims with rail carriers and the courts. (8) Whether the prevailing party in a claims proceeding should be awarded attorneys fees in order to limit needless litigation. (9) Whether excessive attorneys fees are awarded in cases under section 11707 of title 49, United States Code. (10) Whether claimants should be able to recover damages in excess of the market value of the commodity transported unless liability for special or consequential damages is agreed to by the carrier in unity. RATE DISCRIMINATION SEC. 212. Section 10741 of title 49, United States Code, is amended by striking out subsection (e) and inserting in lieu thereof the following new subsections: "(e) Differences between rates, classifications, rules, and practices of rail carriers providing transportation subject to the jurisdiction of 49 use 10501. the Commission under subchapter I of chapter 105 of this title do not constitute a violation of this section if such differences result from different services provided by rail carriers. "(f) This section shall not apply to— Ante, p. 1908. "(1) contracts approved under section 10713 of this title, other than as provided in subsection (dX2)(AXii) and (d)(2)(B) of such section; "(2) surcharges or cancellations under section 10705a of this title; "(3) separate rates for distinct rail services under section 10728 49 use 10728. of this title; "(4) rail rates applicable to different routes; or 49 use 10751. "(5) expenses authorized under section 10751 of this title, except that with respect to rates described in paragraphs (2), (3), and (4), nothing in this subsection shall affect the authority of the Commission under this section with respect to rate relationships between ports or within the same port.". EXEMPTION SEC. 213. Section 10505 of title 49, United States Code, is amended to read as follows:
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1913 "§ 10505. Authority to exempt rail carrier transportation "(a) In a matter related to a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under this subchapter, the Commission shall exempt a person, class of persons, or a transaction or service when the Commission finds that the application of a provision of this subtitle— "(1) is not necessary to carry out the transportation policy of section 10101a of this title; and Ante, p. 1897. "(2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power. "(b) The Commission may, where appropriate, begin a proceeding under this section on its own initiative or on application by the Secretary of Transportation or an interested party. "(c) The Commission may specify the period of time during which an exemption granted under this section is effective. "(d) The Commission may revoke an exemption, to the extent it Exemption specifies, when it finds that application of a provision of this subtitle revocation. to the person, class, or transportation is necessary to carry out the transportation policy of section 10101a of this title. "(e) No exemption order issued pursuant to this section shall Liability and operate to relieve any rail carrier from an obligation to provide claims. contractual terms for liability and claims which are consistent with the provisions of section 11707 of this title. Nothing in this subsection 49 u s e 11707. or section 11707 of this title shall prevent rail carriers from offering alternative terms nor give the Commission the authority to require any specific level of rates or services based upon the provisions of section 11707 of this title. "(f) The Commission may exercise its authority under this section to exempt transportation that is provided by a rail carrier as a part of a continuous intermodal movement. "(g) The Commission may not exercise its authority under this Intermodal section (1) to authorize intermoded ownership that is otherwise ownership, prohibition. prohibited by this title, or (2) to relieve a carrier of its obligation to protect the interests of employees as required by this subtitle." INTRASTATE RATES SEC. 214. (a) Section 11501(a) of title 49, United States Code, is amended— (1) by striking out paragraph (2). (2) by striking out "(aXl) and inserting in lieu thereof "(a)"; (3) by striking out "subchapter I or IV and inserting in lieu thereof "subchapter IV"; and (4) by redesignating subparagraphs (A) and (B) as paragraphs (1) and (2), respectively. (b) Section 11501 of title 49, United States Code, is amended by redesignating subsections (b) and (c) as subsections (d) and (e), respectively, and by inserting immediately after subsection (a) the following new subsections: "(bXD A State authority may only exercise jurisdiction over intra- state transportation provided by a rail carrier providing transporta- tion subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title if such State authority exercises such 49 use 10501. jurisdiction exclusively in accordance with the provisions of this subtitle. "(2) Within 120 days after the effective date of the Staggers Rail Act of 1980, each State authority exercising jurisdiction over intrastate Ante, p. 1895.
94 STAT. 1914 PUBLIC LAW 96-448—OCT. 14, 1980 rates, classifications, rules, and practices for intrastate transporta- tion described in paragraph (1) of this subsection shall submit to the Commission the standards and procedures (including timing require- ments) used by such State authority in exercising such jurisdiction. "(3XA) Within 90 days after receipt of the intrastate regulatory rate standards and procedures of a State authority under paragraph (2) of this subsection, the Commission shall certify such State authori- ty for purposes of this subsection if the Commission determines that such standards and procedures are in accordance with the standards and procedures applicable to regulation of rail carriers by the Certification Commission under this title. If the Commission determines that such denial. standards and procedures are not in such accordance, it shall deny certification to such State authority, and such State authority may resubmit new standards and procedures to the Commission for review in accordance with this subsection. "(B) The standards and procedures existing in each State on the Ante, p. 1895. effective date of the Staggers Rail Act of 1980 for the exercise of jurisdiction over intrastate rail rates, classifications, rules, and practices shall be deemed to be certified by the Commission from that date until the date an initial determination is made by the Commis- sion under subparagraph (A) of this paragraph. "(4)(A) Any State authority which is certified by the Commission under this subsection may use its standards and procedures in exercising jurisdiction over intrastate rail rates, classifications, rules, and practices during the 5-year period commencing on the date of such certification. Any State authority which is denied certification or which does not seek certification may not exercise any jurisdiction over intrastate rates, classifications, rules, and practices until it receives certification under this subsection. "(B) Any intrastate transportation provided by a rail carrier in a State which may not exercise jurisdiction over an intrastate rate, classification, rule, or practice of that carrier due to a denial of certification under this subsection shall be deemed to be transporta- tion subject to the jurisdiction of the Commission under subchapter I 49 u s e 10501. of chapter 105 of this title. 5-year "(5)(A) Certification of a State authority under this subsection is certification period. valid for the 5-year period beginning on the date of such certification. Prior to the expiration of such 5-year period, the State authority shall resubmit its intrastate regulatory standards procedures to the Commission for subsequent certification in accordance with this subsection. "(B) During any 5-year certification period, a State may not change its certified standards and procedures without notifying and receiv- ing express approval from the Commission. '(6) Notwithstanding any other provision of this subtitle, a State authority may not exercise any jurisdiction over general rate in- 49 u s e 10706. creases under section 10706 of this title, inflation-based rate increases Ante, p. 1906. under section 10712 of this title, or fuel adjustment surcharges approved by the Commission. *(c) Any rail carrier providing transportation subject to the juris- diction of the Commission under subchapter I of chapter 105 of this title may petition the Commission to review the decision of any State authority, in any administrative proceeding in which the lawfulness of an intrastate rate, classification, rule, or practice is determined, on the grounds that the standards and procedures applied by the State were not in accordance with the provisions of this subtitle. The Commission shall take final action on any such petition within 30 days after the date it is received. If the Commission determines that
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1915 the standards and procedures were not in accordance with the provisions of this subtitle, its order shall determine and authorize the carrier to establish the appropriate rate, classification, rule, or practice.". (c)(1) Section 11501(d)(2) of title 49, United States Code, as redesig- nated by subsection (b) of this section, is amended by inserting "and chapter 107 of this title" immediately before the period at the end of the first sentence. (2) Section 10103(a) of title 49, United States Code, is amended by striking out "The" and inserting in lieu thereof "Except EIS otherwise provided in this subtitle, the". (3) Section 10501(a)(2) of title 49, United States Code, is amended by inserting "such jurisdiction is not limited by subsection (b) of this section or the extent" immediately after "to the extent". (4) Section 10501(c) of title 49, United States Code, is amended by inserting "(1) the transportation is deemed to be subject to the jurisdiction of the Commission pursuant to section 11501(b)(4)(B) of this title, or (2)" immediately after "unless". Ante, p. 1913. (5) Section 10501 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: "(d) The jurisdiction of the Commission and of State authorities (to the extent such authorities are authorized to administer the stand- ards and procedures of this title pursuant to this section and section 11501(b) of this title) over transportation by rail carriers, and the remedies provided in this title with respect to the rates, classifica- tions, rules, and practices of such carriers, is exclusive.". BUSINESS ENTERTAINMENT EXPENSES SEC. 215. Section 10751 of title 49, United States Code, is amended by striking out "(other than transportation by rail)" in subsections (a) and (b). (b) The provisions of section 10751 of title 49, United States Code, as 49 u s e 10751 amended by subsection (a) of this section, shall apply to any expense note. of the type described in subsection (a) of such section 10751 that was incurred prior to the effective date of this Act (other than an expense with respect to which a penalty was paid pursuant to section 10761 of such title 49) or that is incurred on or after such effective date. 49 use 10761 EFFICIENT MARKETING SEC. 216. (a) Section 10762(c)(3) of title 49, United States Code, is amended by striking out the second sentence and inserting in lieu thereof the following: "In the case of a carrier other than a rail carrier, a proposed rate change or a new or reduced rate may not become effective for 30 days after the notice is published, filed, and held open as required under subsections (a) and (b) of this section. In the case of a rail carrier, a proposed rate change resulting in an increased rate or a new rate shall not become effective for 20 days after the notice is published and a proposed rate change resulting in a reduced rate shall not become effective for 10 days after the notice is published, except that a contract authorized under section 10713 of this title shall become effective in accordance with the provisions of ^"^^' P- 1908. such section.". (b) Section 10762(d)(1) of title 49, United States Code, is amended by striking out "30-day" and inserting in lieu thereof "notice".
94 STAT. 1916 PUBLIC LAW 96-448—OCT. 14, 1980 COMPENSATORY JOINT RATE RELIEF SEC. 217. (aXD Chapter 107 of title 49, United States Code, is amended by inserting after section 10705 the following new section: 49 use 10705a. "§ 10705a. Joint rate surcharges and cancellations "(aXlXA) Except as provided in subparagraph (B) of this paragraph, a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 49 use 10501. 105 of this title may publish and apply a surcharge increasing or decreasing the through charge applicable to any movement between points designated by the surcharging carrier subject to a joint rate. Such a surcharge may be applied without the concurrence of the other carriers that are party in such joint rate. "(B) A carrier earning adequate revenues, as determined under Ante, p. 1906. section 10704(aX2) of this title, may not apply such a surcharge to any movement on a line operated by such carrier which carried more than 3,000,000 gross ton miles of traffic per mile in the preceding calendar year. "(C) Any surcharge applied pursuant to this subsection must be applied in equal dollar amounts to the movement subject to the surcharge over all routes between the points designated by the surcharging carrier which such carrier participates in under the joint rate involved, and when the surcharge increases the through charges, under any of such carrier's single line rates between the same points. "(2XA) Whenever a rail carrier applies a surcharge increasing a through charge pursuant to paragraph (1) of this subsection, any other rail carrier that participates in any movement subject to such surcharge may cancel the application of such surcharge to any route participated in by such other carrier, if such carrier makes the demonstration described in subparagraph (B) of this paragraph. "(B) A rail carrier may cancel the application of a surcharge under this paragraph if such carrier demonstrates to the Commission that the surcharging carrier's share of the revenues, at the time the surcharge was filed with the Commission, from its participation in the movement over the route involved would have been equal to or greater than 110 percent of its variable costs of providing service over such route, under either— "(i) the applicable joint rate in effect at the time the surcharge was filed with the Commission, without the surcharge; "(ii) a new rate division increasing the share of the surcharging carrier; "(iii) a new higher lawful rate published by the canceling carrier; or "(iv) a new, lesser surcharge which shall be prescribed by the Commission upon and in conformity with the request of the carrier proposing to cancel the surcharge. Any such prescribed surcharge shall, in conjunction with the surcharging carrier's division of the joint rate in effect on the date the original surcharge was filed with the Commission, provide the carrier proposing the original surcharge revenues equal to or greater than 110 percent of such surcharging carrier s variable cost of providing service over such route. "(CXi) The canceling tariff shall only become effective if the rail carrier proposing to cancel the application of the surcharge makes the demonstration described in subparagraph (B) of this paragraph, "(ii) If the demonstration described in clause (i) of this subpara- graph is made on the basis of the applicable joint rate in effect at the
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1917 time the surcharge was filed with the Commission, without the surcharge, the tariff shall become effective on one day's notice after such determination is made. "(iii) If the demonstration described in clause (i) of this subpara- graph is made on the basis of a new rate, division, or surcharge prescribed pursuant to subparagraph (B)(iv) of this paragraph, the tariff shall become effective on the date such new rate, division, or surcharge becomes effective. "(D) The remedy available to a rail carrier canceling the applica- tion of a surcharge under this paragraph shall be in addition to any other remedy available to such carrier under this chapter. "(3)(A) The Commission may cancel the application of a surcharge to a route to which such surcharge applies if a shipper moving traffic over such route demonstrates to the Commission that— "(i) there is no competitive alternative to such route for the movement of the traffic involved that is not subject to such surcharge; and "(ii) the surcharging carrier's share of the revenues from its participation in the movement over the route to which such surcharge applies, under the applicable joint rate in effect at the time the surcharge was filed with the Commission, with the surcharge, would be greater than 110 percent of its variable cost of providing service over such route. "(B) If the Commission cemcels the application of a surcharge to a Surcharge level, particular route pursuant to subparagraph (A) of this paragraph, the determination. Commission shall determine the level of surcharge which, in conjunc- tion with the surcharging carrier's division of the joint rate in effect at the time the surcharge was filed with the Commission, would equal 110 percent of the surcharging carrier's variable cost of providing service over such route, and shall authorize such carrier immediately to apply such a surcharge without any further proceedings under this subsection. "(4) A rail carrier may not apply a surcharge under this subsection unless, for the one-year period preceding the surcharge, such carrier has concurred in all rate increases of general applicability applicable to the joint rate to which such surcharge applies and agreed to by all other carriers that are party to such joint rate. "(5) A rail carrier may not apply a surcharge under this subsection increasing a through charge applicable to a particular movement more than once each calendar year. "(6) Notwithstanding any other provision of this subsection, a rail Total charges, carrier may, by tariff, reduce the total charges applicable to a reduction. movement over any specific joint line or single line route or routes in which such carrier participates, if such reduction does not lower the total charges applicable to such movement to a level that is less than the lowest total charges applicable to the same movement over a competing route. Any such reduction may be made without the concurrence of any other rail carrier, and shall be borne solely by the carrier reducing the charge. Nothing in this paragraph shall be construed to limit the right of a carrier to reduce rates over routes not in direct competition between the same points with routes to which it has applied a surcharge. "(b)(1) Notwithstanding subsection (a) of this section— "(A) a rail carrier not earning adequate revenues, as deter- mined under section 10704(a)(2) of this title, may publish and Ante, p. 1906. apply a surcharge applicable to traffic originating or terminating upon any of its lines that carried less than 3,000,000 gross ton
94 STAT. 1918 PUBLIC LAW 96-448—OCT. 14, 1980 miles of traffic per mile in the most recent calendar year for which traffic data is available; and "(B) a rail carrier earning adequate revenues, as so deter- mined, may publish and apply a surcharge applicable to traffic originating or terminating upon any of its lines that carried less than 1,000,000 gross ton miles of trsiffic per mile in such most recent calendar year. Such a surcharge may be applied without the concurrence of any rail carrier. Any such surcharge may be allocated, subject to the provi- sions of paragraph (4) of this subsection, in different amounts among different movements between different origins and destinations, and shall accrue solely to the surcharging carrier. "(2) A rail carrier may apply a surcharge under this subsection if, prior to the application of such surcharge, that portion of the charges applicable to traffic to and from the line to which the surcharge applies and accruing to the surcharging carrier does not provide such carrier revenues adequate to cover— "(A) 110 percent of such carrier's variable cost of transporting the traffic involved to or from such line; plus "(B) 100 percent of such carrier's reasonably expected costs of continuing to operate such line, which shall include all costs necessary to sustain service on the line. The Commission shall, within 120 days after the effective date of the Ante, p. 1895. Staggers Rail Act of 1980, complete a proceeding to define the term 'reasonably expected costs' as used in subparagraph (B) of this paragraph. In the interim, the term shall be construed in accordance with Rail Services Planning Office subsidy standards. Shipper petition. "(3XA) Upon petition of a shipper located upon a line to which a surcharge under this subsection is applied, the Commission may cancel the application of a surcharge under this subsection if such shipper demonstrates to the Commission that, after application of the surcharge, the surcharging carrier's revenues from all traffic origi- nating or terminating upon the line to which the surcharge applies exceed 110 percent of such carrier's variable cost of transporting all traffic to or from such line plus such carrier's reasonably expected costs of continuing to operate such line. "(B)(i) A rail carrier's revenue from all traffic originating or terminating upon a line shedl be presumed to exceed 110 percent of its variable cost of transporting all traffic to or from such line plus its reasonably expected costs of continuing to operate such line if the complaining shipper demonstrates that the carrier is earning rev- enues from all traffic originating or terminating upon such line that result in a revenue-variable cost percentage that is equal to or greater than the revenue-variable cost percentage applicable in that year Ante, p. 1900. under section 10709(d) of this title. "(ii) A surcharging carrier may rebut the presumption set forth in clause (i) of this subparagraph by demonstrating to the Commission that its reasonably expected costs for operating the line to which the surcharge applies exceed the percentage of variable cost set forth in such clause (i). "(C) Upon a finding by the Commission that application of the surcharge will produce revenues in excess of 110 percent of the surcharging carrier's variable cost of transporting traffic to or from the line plus its reasonably expected costs for operating the line, the Commission shall determine the level of surcharge which would produce revenues equal to such figure and shall authorize such carrier immediately to apply such surcharges as will generate such
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1919 revenues without any further proceedings, subject only to the right of a shipper to proceed under par£igraph (4) of this subsection. "(4)(A) A rail carrier may not apply a surcharge under this subsection that results in any shipper being required to bear more than a reasonable proportion of the reasonably expected costs of continuing to operate the line to which such surcharge applies. "(B) Upon complaint of a shipper, the Commission shall determine Shipper complaint. whether the shipper is being required to bear more than a reasonable proportion of the costs described in subparagraph (A) of this paragraph. "(C) If the Commission finds that a complaining shipper is being required to bear more than a reasonable proportion of the costs described in subparagraph (A) of this paragraph, the Commission may reallocate the surcharge among the traffic originating or termi- nating on the line to which the surcharge applies, but may not order relief which would result in the surcharging carrier earning revenues less than those which the carrier would have earned had the surcharge been applied as filed. "(5) A shipper may, in a single complaint, seek relief under Relief. paragraphs (3) and (4) of this subsection. In any such complaint, the Commission shall first determine the right to relief under paragraph (3) and shall grant such relief as is appropriate under such paragraph. "(6) In any proceeding brought before the Commission challenging the application or amount of a surcharge under this subsection, whether the surcharge is claimed to violate this subsection or some other provision of this chapter, the Commission shall not suspend the application of any such surcharge unless the person filing the verified statement required by section 10707(c) of this title, in addition to the Ante, p. 1907. matters required by such section, also makes the demonstration required by paragraph (3)(A) of this subsection. If the demonstration required by such paragraph (3)(A) is made, the Commission may suspend the application of only so much of the surcharge as will produce revenues in excess of the amount so demonstrated. "(c)(1) Notwithstanding any other provision of this title, any prior agreement in effect on the effective date of the Staggers Rail Act of 1980, or any requirement of the Commission, a rail carrier may Ante, p. 1895. cancel the application of a joint rate to a through route in which it participates, without the concurrence of any other rail carrier that is a party to such joint rate, unless another rail carrier that participates in such through route or a shipper that has no competitive alterna- tive to such route makes the demonstration described in parsigraph (2) of this subsection. "(2) The application of a joint rate to a through route may not be canceled under this subsection if a rail carrier that participates in such through route or a shipper that h£is no competitive alternative to such route from an origin or destination served by such route demonstrates to the Commission that the canceling carrier's share of the revenues, under the joint rate in effect at the time the application of the joint rate is canceled, is equal to or greater than— "(A) 110 percent of the canceling carrier's variable cost of providing service over such route; or "(B) such lesser percent of the canceling carrier's variable cost as such carrier earns over a competing through route to which application of the joint rate has not been canceled, or over a competing single line route. 79-194 O—81—pt. 2 41: QL3
94 STAT. 1920 PUBLIC LAW 96-448—OCT. 14, 1980 "(3) When a complaining party is unable to make the demonstra- tion required by paragraph (2) of this subsection, the Commission may suspend the tariff canceling the joint rate only if^ "(A) a complaining carrier publishes a new rate division or a new higher lawful rate which increases the canceling carrier's share of the revenues over such route to the amount calculated under paragraph (2)(A) or (2)(B) of this subsection, whichever is less; or "(B) a complaining carrier or shipper petitions the Commission and the Commission imposes a surcharge, in conformity with such petition, upon the joint rate which will accrue solely to the canceling carrier and which, in conjunction with the canceling carrier's division of the joint rate in effect on the date the tariff canceling the joint rate W£is filed, will provide the canceling carrier revenues equal to or greater than 110 percent of its variable cost of providing service over such route. Unless a new rate, division, or surcharge described in this paragraph becomes effective within 120 days after the proposed effective date of the rate cancellation, the canceling tariff shall, nevertheless, become effective. "(4) If the demonstration described in paragraph (2) is made or a new rate, division, or surcharge described in paragraph (3) becomes effective, the tariff canceling the joint rate shall be considered by the 49 u s e 10705. Commission in accordance with section 10705 of this title. The existing joint rate or the new rate, division, or surcharge, shall remain in effect during the pendency of the Commission's consideration. "(5) Whenever the application of a joint rate to a through route is canceled under this subsection and a rate other than a joint rate is or has been published by the canceling carrier to apply to such route, such rate shall thereafter apply in lieu of all other rates (except joint rates subsequently agreed to by such carrier) and any through rate of which such rate is a factor shall divide as the separate factors of such rate are made. "(6) Nothing in this subsection shall be construed to limit the authority of the Commission under section 10705(a) of this title to prescribe joint rates which provide a rail carrier participating in such joint rate revenues equal to or greater than 110 percent of its variable cost of providing service over each route to which such rate applies. Increased or "(d)(1) Except as provided in paragraph (2) of this subsection, any decreased increase or decrease in revenue resulting from the application of a revenues. surcharge under subsection (a) of this section, or from the cancella- tion of the application of a joint rate under subsection (c) of this section, shall accrue solely to or be borne solely by the carrier applying the surcharge or canceling the application of the joint rate, as the case may be. "(2) Whenever a class III rail carrier which participates in a through route to which a surcharge has been applied under subsec- tion (a) of this section by a carrier operating in the same rate territory as such class III carrier demonstrates to the Commission that the application of such surcharge to such route provides, in the absence of any increase in the joint rate in effect on the date the surcharge was filed with the Commission, revenues from traffic moving over such route to such surcharging carrier in excess of 110 percent of its variable costs over such route, such surcharging carrier shall, from the date of such demonstration, share those revenues from such route, from the surcharge and the applicable joint rate in effect on the date the surcharge was filed with the Commission, in excess of
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1921 110 percent of its variable costs with all class III rail carriers in the same rate territory participating in such route, on the basis of their existing divisions of the joint rate to which the surcharge applies. "(eXD Except as provided in paragraph (2) of this subsection, whenever a rail carrier proposes to apply a surcharge under subsec- tion (a) of this section or to cancel the application of a joint rate under subsection (c) of this section and another rail carrier subsequently agrees to a new rate division or a new lawful rate that increases the surcharging or canceling carrier's share of the total through charges for a movement over a particular through route subject to a joint rate, such other rail carrier shall also agree to any other new rate division and new lawful rate— "(A) that is proposed within 120 days after the date of the first agreement; and "(B) that increases the surcheurging or canceling carrier's share of the total through charges for movements over a competing through route subject to such joint rate. "(2) A rail carrier shgdl not be required to agree under this subsection to £uiy proposed new division or new rate which would— "(A) reduce such carrier's share of the total through charges for a movement over any through route to less than (i) 110 percent of its variable costs of providing service over such route, or (ii) such lesser percent of its variable costs as such carrier earns from such movement over a competing through route with respect to which such carrier has agreed to a new division or rate; (B) increase the surcharging or canceling carrier's share of the total through charges for a movement over any through route to an amount in excess of 110 percent of its variable costs of providing service over such route; "(C) reduce such carrier's share of the total through charges for a movement over any through route by a dollar amount in excess of the greatest dollar reduction which such carrier has agreed to make, for purposes of increasing the surcharging or canceling carrier's share, to its share of the total through charges for a movement over any competing through route; or "(D) reduce such carrier's share of the total through charges for a movement over any through route in an amount in excess of such carrier's pro rata share (based on established divisions for movements over such route) of the increase of the surcharging or canceling carrier's share of the total through charges for move- ments over such route. "(f) A rail carrier appl3dng a surcharge or canceling the application Tariff filing. of a joint rate under this section shall file a tariff with the Commis- sion in accordance with section 10762 of this title. Such a tariff may 49 use 10762 not become effective until the expiration of the 45-day period (or such longer period as the filing carrier specifies) beginning on the date such tariff is filed. "(gXD Any rail rate to which a surcharge is applied under this section shall be subject to section 10701a and 10709 of this title, and Ante, p. 1898. any such surcharge shall constitute a rate increase for purposes of 49 u s e 10709. such sections. "(2) For purposes of rate regulation under section 10701a of this title— "(A) only the rgdl carrier proposing a surcharge under this section shall be required to defend such surcharge; and "(B) the reasonableness of the surcharge and the revenues received by the rail carrier proposing the surcharge under the joint rate to which the surcharge applies shall be determined
94 STAT. 1922 PUBLIC LAW 96-448—OCT. 14, 1980 without regard to amount received and services performed by other rail carriers that are party to such joint rate. "(3) Except as provided in subsection (i), (j), or (k) of this section, if the appHcation of a surcharge or the cancellation of the application of a joint rate under this section is found to constitute a violation of any provision of this title, such violation shall not be ordered remedied in any manner which— "(A) requires the carrier applying a surcharge under subsec- tion (a) of this section or canceling the application of a joint rate under subsection (c) of this section to provide service over any rate under a rate that provides revenues to such carrier that are less than 110 percent of its variable costs of providing such service; or "(B) which requires the carrier applying a surcharge under subsection 0^) of this section to provide service over the route to which such surcharge applies in a manner that provides rev- enues to such carrier that are less than 110 percent of such carrier's variable cost of transporting the traffic involved to or from the line to which the surcharge applies, plus such carrier's reasonably expected costs of providing service over such line. Variable costs "(h) Within 5 days after the request of a rail carrier participating in and revenues, a joint rate subject to a surcharge or cancellation under this section, a determination. shipper moving traffic over a route to which such surcharge or cancellation applies, or an affected port, the Commission shall make available to such carrier, shipper, or port the Commission's determi- nation of the variable costs and revenues, over the route or routes to which the surcharge or cancellation applies, of the carrier applying the surcharge or canceling the application of the joint rate. Investigation. "(i)(l) Whenever a class III rail carrier, in a protest filed with the Commission, makes a prima facie showing that the application of a surcharge under subsection (a) of this section or the cancellation of the application of a joint rate under subsection (c) of this section will have an adverse effect on competition, the Commission shall investi- Rescinding gate such protest. If, on the basis of such investigation, the Commis- order. sion finds that the protested surcharge or cancellation is or is intended to be anticompetitive, the Commission shall, within 30 days after the date such protest is filed, enter an order rescinding such surcharge or cancellation, and may, on presentation of an adequate record, prescribe new joint rates or divisions of joint rates. "(2) No order prescribed under this subsection shall require a carrier to provide service over any route under a rate which provides revenues less than 110 percent of the variable cost of providing such service unless the Commission determines that the public interest requires a lesser revenue to variable cost ratio to avoid anticompeti- tive action and to preserve service on the route involved. "(j)(l) Any class III rail carrier which originates or terminates traffic subject to the application of a surcharge under subsection (a) of this section or the cancellation of the application of a joint rate under subsection (c) of this section may protest such surcharge or cancella- tion whenever— "(A) such surcharge or cancellation affects the sole remaining route available to that carrier for that traffic; and "(B)(i) such carrier demonstrates that alternative transporta- tion is available or that a shipper dependent on that carrier will suffer significant market loss because of such surcharge or cancellation; or "(ii) such surcharge or cancellation, alone or when considered in conjunction with other surcharges or cancellations affecting
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1923 the carrier, is likely to unduly impair a carrier's ability to earn an adequate rate of return. "(2XA) The Commission may, after an investigation on the basis of a protest under this subsection, prescribe a lesser surcharge or a different division of the joint rate. The Commission shall grant the surcharging or canceling carrier revenues not less than 110 percent of its variable cost of the movement involved, unless it determines that the public interest requires a lesser revenue to variable cost ratio to preserve service on the route involved. Any action by the Commis- sion based on a protest under this subsection shall be taken within 30 davs after the date such protest is filed. (B) If the Commission prescribes a different division of a joint rate under this paragraph, the Commission shall, upon petition of the surcharging or canceling carrier or the protesting class III rail carrier, reopen the proceeding in which such division WEIS prescribed to reconsider whether such prescribed division is reasonable. If, on the basis of such reconsideration, the Commission determines that such division is not reasonable, it shall prescribe a new, reasonable division of the joint rate to which the surcharge or cancellation applied. (kXl) Upon the complaint of a class III rail carrier which origi- Rail carrier nates or terminates traffic subject to the application of a surcharge investigation. f"^Swir under subsection (a) of this section or the cancellation of the applica- tion of a joint rate under subsection (c) of this section that such surcharge or cancellation will result in differences or greater differ- ences in rates, including any surcharges, for the traffic to which the surcharge or cancellation applies over different routes in which the surcharging or canceling carrier participates— "(A) from a single origin point to destination points within a 75 mile direct radius from the destination point on such class III rail carrier; or "(B) to a single destination point from origin points within a 75 mile direct radius from the origin point on such class III rail carrier, the Commission shall investigate such complaint and shall, within 30 days after the date such complaint is filed, take such actions, including rescinding surcharges or cancellations or prescribing new joint rates or surcharges, as it determines are required to eliminate such differences in rates, unless it finds that such actions are not warranted by the public interest in ensuring effective competition among rail carriers or in the preservation of rail service on the route involved. "(2) No action taken by the Commission under this subsection shall require a carrier to provide service over any route under a rate which provides a revenue to variable cost ratio over such route less than that provided under the joint rate to which the surcharge or cancella- tion was applied or less than 110 percent, whichever is greater, unless the Commission determines that the public interest in ensuring effective competition among rail carriers or in preserving service over such route warrants requiring the surcharging or canceling carrier to provide service at a lesser revenue to variable cost ratio. "(3) Notwithstanding subsection (mXD of this section, if, in a proceeding under this subsection or under subsection (i) or (j) of this section, the Commission considers whether to require the revenues of a carrier applying a surcharge under subsection (a) of this section or canceling the application of a joint rate under subsection (c) of this section to be less than 110 percent of its variable costs (as calculated using the Commission's Rail Form A cost finding methodology), such
94 STAT. 1924 PUBLIC LAW 96-448—OCT. 14, 1980 surcharging or canceling carrier may prove its actual variable costs on the basis of evidence other than unadjusted costs calculated using such Rail Form A cost finding methodology. Such evidence shall be prepared in accordance with generally accepted accounting principles. New "(1) Whenever the application of a joint rate to a through route is compensatory canceled under subsection (c) of this section, the Commission shall, through rate. upon petition by a class II or III rail carrier participating in such route, prescribe a new compensatory through rate or rates over such route within 30 days after the date such petition is filed. Variable costs "(m) For purposes of this section— and revenue share. "(1) variable costs for a class I rail carrier shall be determined only by using such carrier's unadjusted costs, calculated using the Commission's Rail Form A cost finding methodology (or an alternative methodology adopted by the Commission in lieu thereof) and indexed quarterly to account for current wage and price levels in the region in which the carrier operates; "(2) variable costs for a rail carrier other than class I shall be presumed to be the average variable costs of all class I rail carriers in the region in which such carrier operates (as deter- mined under paragraph (1) of this subsection) unless a rail carrier rebuts such presumption with other proof of variable costs; and "(3) at the option of a carrier applying a surcharge or canceling the application of a joint rate under this section, revenue share may be determined by reference to past revenue settlements actually made in the most recent calendar year by connecting lines. "(n) Surcharges applied under subsection (a) or (c) of this section and cancellations under subsection (c) of this section shall not be 49 u s e 10726. subject to the provisions of section 10726 (a)(lXB) of this title. "(o) The Special Counsel of the Commission may, consistent with Ante, p. 1897. the rail transportation policy in section 10101a of this title, provide assistance to class III rail carriers and small businesses in preparing actions under this section. "(p)(l) The authority to apply a surcharge under subsection (a) of this section, and (except as provided in paragraph (2)) the authority to cancel such a surcharge, shall expire 3 years after the effective date Ante, p. 1895. of the Staggers Rail Act of 1980 unless extended for one additional year by the Commission upon petition of any rail carrier and for good cause shown. "(2) Any surcharge lawfully applied under subsection (a) of this section shall remain in effect in accordance with its terms following the expiration of the provisions of this section. Any such surcharge applied during the 45-day period immediately preceding the date of the expiration of the provisions of this section shall, notwithstanding such expiration, be subject to cancellation under subsection (a)(2) or (aX3) of this section during the 45-day period beginning on the date such surcharge is applied.'. (2) The section analysis of chapter 107 of title 49, United States Code, is amended by inserting immediately after the item relating to section 10705 the following new item: "10705a. Joint rate surcharges and cancellations.". 49 u s e 10705a (b) For purposes of section 10705a of title 49, United States Code, note. the Interstate Commerce Commission shall classify all rail carriers Ante, p. 1916. on the basis of revenues, shall from time to time review its regula- tions setting forth revenue-based classifications for rail carriers, and
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1925 shall make appropriate changes in such regulations in order to reflect inflation. The Commission shall not reclassify switching and termi- nal carriers, or any other rail carriers not classified on the basis of revenues on the effective date of this Act, for any purpose other than for purposes of such section 10705a. Ante, p. 1916. (c)(1) The Interstate Commerce Commission shall include in its Report to Congress. annual report to the Congress under section 10311 of title 49, United 49 u s e 10311 States Code, a report with respect to the application of surcharges note. and the cancellation of the application of joint rates by the Consoli- dated Rail Corporation and other rail carriers, during the preceding year, under section 10705a of title 49, United States Code. Each such Ante, p. 1916. report shall include— Contents. (A) an analysis of the effect of application of surcharges and the cancellation of the application of joint rates under such section 10705a on shippers, ports, class II and class III rail carriers, railroad employees, and other elements of the rail system; (B)(i) the number of surcharges applied by the Consolidated Rail Corporation and all other rail carriers under such section 10705a and the amount of revenue received by the Corporation and all other rail carriers from the application of such sur- charges, (ii) the number of surcharges applied by the Corporation and all other rail carriers that were canceled under the proce- dures of such section 10705a, and (iii) the number of cancellations of the application of a joint rate by the Corporation and all other rail carriers under such section 10705a; and (C) an analysis of the operation of the remedies made available to class III rail carriers under subsections (i), (j), and (k) of such section 10705a and to class II and class III rail carriers under subsection (1) of such section 10705a. (2) The Interstate Commerce Commission shall, within 2 years Report to after the effective date of this Act, submit a report to the Congress Congress. with respect to whether the provisions of section 10705a of title 49, 49 u s e 10705a note. United States Code, have adequately addressed the joint rate prob- Ante, p. 1916. lems of rail carriers. The report shall include such recommendations with respect to such joint rate problems as the Commission considers necessary and appropriate. EXPEDITED DIVISION OF REVENUES PROCEEDINGS SEC. 218. (a) Section 10705(f)(1) of title 49, United States Code, is amended to read as follows: "(f)(1)(A) The Commission may begin a proceeding under subsection (a) or (b) of this section on its own initiative or on complaint. The Commission must complete all evidentiary proceedings to adjust the division of joint rates for transportation by a rail carrier within 9 months after the complaint is filed if the proceeding is brought on complaint or within 18 months after the commencement of a proceed- ing on the initiative of the Commission. The Commission must take final action by the 180th day after completion of the evidentiary proceedings, except that— "(i) when the proceeding involves a railroad in reorganization or a contention that the divisions at issue do not cover the variable costs of handling the traffic, the Commission shall give the proceedings preference over all other proceedings and shall take final action at the earliest practicable time, which in no event may exceed 100 days after the completion of the eviden- tiary proceedings; and
94 STAT. 1926 PUBLIC LAW 96-448—OCT. 14, 1980 "(ii) in all cases other than those specified in clause (i) of this subparagraph, the Commission may decide to extend such a proceeding to permit its fair and expeditious completion, but whenever the Commission decides to extend a proceeding pursu- ant to this clause, it must report its reasons to Congress. "(B) The provisions of this paragraph imposing time limitations upon Commission action shall not apply to any division proceeding involving a joint rate participated in by a class III rail carrier. , (b) Section 10705(f)(1) of title 49, United States Code, as amended by subsection (a) of this section, is further amended— (1) by striking out subparagraph (B); (2) by striking out "(A)" immediately before "The Commis- sion"; (3) by striking out "(i)" and inserting in lieu thereof "(A)"; (4) by striking out "(ii)" and inserting in lieu thereof "(B)"; and (5) by striking out "clause (i) of this subparagraph" and inserting in lieu thereof "subparagraph (A) of this paragraph". RATE BUREAUS SEC. 219. (a) Section 10706(a)(1) of title 49, United States Code, is amended by adding at the end thereof the following new subpara- graph: "(C) 'practicably participates in that movement' shall have such meaning as the Commission shall by regulation prescribe.", (b) Section 10706(a)(2)(A) of title 49, United States Code, is amended— (1) by inserting "publication," immediately after "initiation," in the first sentence; and (2) by striking out "section 10101" in the second sentence and inserting in lieu thereof "section 10101a". (c)(1) Section 10706(a)(3)(A) of title 49, United States Code, is amended to read as follows: "(3)(A) An organization established or continued under an agree- ment 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 agree- ments related to, or to vote on single line rates proposed by another rail carrier, except that for purposes of general rate increases and broad tariff changes only, if the Commission finds at any time that the implementation of this clause is not feasible, it may delay or suspend such implementation in whole or in part; "(ii) permit a rail carrier to discuss, to participate in agree- ments related to, or to vote on rates related to a particular interline movement unless that rail carrier practicably partici- pates in that 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. This clause shall take effect on January 1, 1984, or on such earlier date as the Commission determines. If the (Commission 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.". (2) Section 10706(a)(3)(B) of title 49, United States Code, is amended to read as follows:
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1927 "(B) Until January 1, 1984, subparagraph (A)(ii) and (A)(iii) of this paragraph do not apply to— "(i) general rate increases to cover inflationary cost increases, or general rate decreases, for joint rates if the agreement gives shippers, under specified procedures, at least 15 days notice of the proposal and an opportunity to present comments on it before a tariff containing the increases or decreases is filed with the Commission; or "(ii) broad tariff changes that are of at legist substantially general application throughout the area where the changes will apply, except single line rates where subparagraph (A)(i) of this paragraph prohibits the participation of carriers with single line rates. If the Commission finds at any time that the implementation of this subparagraph is not feasible, it may delay or suspend such implemen- tation in whole or in part.". (3) Section 10706(a)(3)(C) of title 49, United States Code, is amended— (A) by inserting "(i)" immediately after "(C)"; and (B) by adding at the end thereof the following new clause: "(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 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 carrier and one or more other 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 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 shedl determine whether the requirements of clause (I) or (II) are satisfied before allowing the introduction of any such evidence.". (4) Section 10706(a)(3) of title 49, United States Code, is amended by adding at the end thereof the following new subparagraph: "(D) An organization described in subparagraph (A) of this para- Records. graph 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 Commission and made available to other Federal agencies in connection with their statutory responsibilities over rate bureaus, except that such mate- rial shall be kept confidential and shall not be subject to disclosure under section 552 of title 5, United States Code.". (d) Section 10706(a) of title 49, United States Code, is amended by adding at the end thereof the following new paragraph: "(4) Notwithstanding any other provision of this subsection, one or more rail carriers may enter into an agreement, without obtaining prior Commission 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
94 STAT. 1928 PUBLIC LAW 96-448—OCT. 14, 1980 seq.), sections 73 and 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), and the Act of June 19,1936, as amended (15 U.S.C. 13,13a, 13b, 21a) shall not apply to parties and other persons with respect to making or Investigation. carrying out such agreement. However, the Commission 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 Commission 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.". (e) Section 10706(iXlXB) of title 49, United States Code, is amended 49 u s e 10101. by striking out "section 10101" and inserting in lieu thereof "section Ante, p. 1897. 10101a". 49 u s e 10706 (f) The Interstate Commerce Commission may not take any action note. with respect to the elimination of general rate increases or decreases prior to April 1,1982. 49 u s e 10706 (g) The Interstate Commerce Commission shall require rail carrier note. members of a rate bureau to provide the employees of such rate bureau who are affected by the amendments made by this section with fair arrangements no less protective of the interests of such employees than those established pursuant to section 11347 of title "Employees." 49, United States Code. For purposes of this subsection, the term "employees" does not include any individual serving as president, vice-president, secretary, treasurer, comptroller, counsel, member of the board of directors, or any other person performing such functions. LONG AND SHORT HAUL TRANSPORTATION Repeal. SEC. 220. Section 10726(c) of title 49, United States Code, is repealed. RAILROAD ENTRY SEC. 221. (a) Section 10901(a) of title 49, United States Code, is amended by striking "will be enhanced by" and inserting in lieu thereof "permit". (b) Section 10901 of title 49, United States Code, is further amended by adding at the end thereof the following new subsections: "(dXD Where a rail carrier has been issued a certificate of public convenience and necessity by the Commission authorizing the con- struction or extension of a railroad line, no other rail carrier may block such construction or extension 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 (C) the owner of the crossing line compensates the owner of the crossed line. "(2) If the carriers are unable to agree on the terms of operation or the amount of payment for purposes of paragraph (1) of this subsec- tion, either party may submit the matters in dispute to the Commis- sion for determination. "(e) The Commission may require any rail carrier proposing both to construct and operate a new railroad line pursuant to this section to provide a fair and equitable arrangement for the protection of the interests of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than 49 u s e 11347. those established pursuant to section 11347 of this title.".
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1929 SERVICE DURING PERIODS OF PEAK DEMAND SEC. 222. Section 11101(a) of title 49, United States Code, is amended by adding at the end thereof the following new sentence: "A rail carrier shall not be found to have violated this section because it fulfills its commitments under contracts approved under section 10713 of this title before responding to reasonable requests for Ante, p. 1908. service.". RECIPROCAL SWITCHING SEC. 223. Section 11103 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: "(c)(1) The Commission may require rail carriers to enter into reciprocal 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 carriers enter- ing into such an agreement shall establish the conditions and compensation applicable to such agreement, but, if the carriers cannot agree upon such conditions and compensation within a reasonable period of time, the Commission may establish such condi- tions and compensation. "(2) The Commission 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.". CAR S E R V I C E COMPENSATION SEC. 224. (a)(1) Section 11122(b)(2) of title 49, United States Code, is Repeal. (2) Section 11122(b)(1) of title 49, United States Code, is amended by striking out "(1)" immediately before "The rate". (b) Section i0706(a) of title 49, United States Code, as amended by this Act, is further amended by adding at the end thereof the following new paragraph: "(5)(A) Whenever two or more shippers enter into an agreement to discuss among themselves that relates to the amount of compensa- tion such shippers propose to be paid by rail carriers providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title, for use by such rail carriers of 49 USC 10501. rolling stock owned or leased by such shippers, the shippers shall apply to the Commission for approval of that agreement under this paragraph. The Commission 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 10101a of this title and may require compliance with conditions necessary to make Ante, p. 1897. the agreement further that policy as a condition of approval. If the Commission approves the agreement, it may be made and carried out under its terms and under the terms required by the Commission, 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 Commission shall approve or disap- prove an agreement under this paragraph within one year after the date application for approval of such agreement is made. "(B) If the Commission approves an agreement described in subpar- agraph (A) of this paragraph and the shippers entering into such agreement and the rail carriers proposing to use rolling stock owned
94 STAT. 1930 PUBLIC LAW 96-448—OCT. 14, 1980 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 Commission. The Commission shall render a binding decision, based upon a standard of reasonableness and after taking into consideration any past prece- dents on the subject matter of the negotiations, no later than 90 days after the date of the submission of the dispute to the Commission. "(C) Nothing in this paragraph shall be construed to change the law Ante, p. 1895. 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.". CAR UTIUZATION SEC. 225. (a) Subchapter II of chapter 107 of title 49, United States Code, is amended by inserting at the end thereof the following new section: 49 use 10734. «§ 10734. Car utilization "In order to encourage more efficient use of freight cars, notwith- standing any other provision of this subtitle, rail carriers shall be permitted to establish tariffs containing premium charges for special services or special levels of services not provided in any tariff otherwise applicable to the movement. The Commission shall facili- tate development of such tariffs so as to increase the utilization of equipment.'. Ot>) The section analysis of chapter 107 of title 49, United States Code, is amended by inserting immediately after the item relating to section 10731 the following new item: "10734. Car utilization.". CAR SERVICE ORDERS FOR EXIGENT CIRCUMSTANCES SEC. 226. Section 11123(a) of title 49, United States Code, is amended to read as follows: "(a)(1) When the Interstate Commerce Commission finds that a shortage of equipment, congestion of traffic, or other failure in traffic movement exists which creates an emergency situation of such magnitude as to have substantial adverse effects on rail service in the United States or a substantial region of the United States, the Commission may, for a period not to exceed thirty days— "(A) suspend any car service rule or practice; "(B) take action during the emergency to promote service in the interest of the public and of commerce regardless of the ownership (as between carriers) of a locomotive, car, or other vehicle on terms of compensation the carriers establish between themselves, subject to subsection Ot)X2) of this section; "(C) require joint or common use of facilities, on terms of compensation the carriers establish between themselves, subject to subsection Ot))(2) of this section, when that action will best meet the emergency and serve the public interest; and "(D) give directions for preference or priority in transporta- tion, embargoes, or movement of traffic under permits. Commission "(2) The Commission may extend any action taken under para- action, graph (1) of this subsection beyond the thirty-day period provided in extension.
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1931 such paragraph only if the full Commission, after a hearing, certifies that a transportation emergency exists. "(3) In carrying out the provisions of this subsection, the Commis- sion shall require, to the maximum extent practicable, the use of the employees who would normally have performed work in connection with the traffic subject to the action of the Commission.". EMPLOYEE PROTECTION SEC. 227. (a) Section 1170 of title 11, United States Code, is amended Railroad line by adding at the end thereof the following new subsection: abandonments. "(e)(1) In authorizing any abandonment of a railroad line under this section, the court shall require the rail carrier to provide a fair arrangement at least as protective of the interests of employees as that established under section 11347 of title 49. "(2) Nothing in this subsection shall be deemed to affect the priorities or timing of payment of employee protection which might have existed in the absence of this subsection. . (b) Section 1172 of title 11, United States Code, is amended by adding at the end thereof the following new subsection: "(cXl) In approving an application under subsection (b) of this section, the Commission shsdl require the rail carrier to provide a fair arrangement at least as protective of the interests of employees as that established under section 11347 of title 49. "(2) Nothing in this subsection shall be deemed to affect the priorities or timing of payment of employee protection which might have existed in the absence of this subsection. . MERGERS AND OTHER TRANSACTIONS SEC. 228. (a) Section 11344(b) of title 49, United States Code, is Applications. amended— (1) by inserting immediately after "section" the following: "which involves the merger or control of at least two class I railroads, as defined by the Commission"; and (2) by adding at the end thereof the following new paragraph: "(5) whether the proposed transaction would have an adverse effect on competition among rail carriers in the affected region.". (b) Section 11344 of title 49, United States (!)ode, is amended by adding at the end thereof the following new subsection: "(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 Commission, the C!ommission 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 Commission shall, with respect to any application that is part of a plan or proposal developed under section 5 (a)-(d) of the Department of Transportation Act (49 U.S.C. 1654 (a)-(d)), accord substantial weight to any recommendations of the Secretary of Transportation.". (c) Section 11344 of title 49, United States Code, as amended by this Act, is further amended by adding at the end thereof the following new subsection:
94 STAT. 1932 PUBLIC LAW 96-448—OCT. 14, 1980 "(e) A rail carrier, or a person controlled by or affiliated with a rail carrier, together with one or more affected shippers, may apply for approval under this subsection of a transaction for the purpose of providing motor carrier transportation prior or subsequent to rail transportation to serve inadequately served shippers located on a railroad other than the applicant carrier. Such application shall be approved hy^ the Commission if the applicants demonstrate presently impaired rail service and inadequate motor common carrier service which results in the serious failure of the rail carrier serving the shippers to meet the rail equipment or transportation schedules of shippers or seriously to fail otherwise to provide adequate normal rail services required by shippers and which shippers would reasonably expect the rail carrier to provide. The Commission shall approve or disapprove applications under this subsection within 30 days after receipt of such application. The Commission shall approve applica- tions which are not protested by interested parties within 30 days following receipt of such application.". (d) Section 11345 of title 49, United States Code, is amended to read as follows: Applications. "§11345. Consolidation, merger, and acquisition of control: rail 49 u s e 11345. carrier procedure "(a) If a rail carrier providing transportation subject to the jurisdic- tion of the Interstate Commerce Commission under subchapter I of 49 u s e 10501. chapter 105 of this title is involved in a proposed transaction under 49 u s e 11343, section 11343 of this title, this section and section 11344 of this title 11344. also apply to the transaction. The Commission shall publish notice of Publication in Federal the application in the Federal Register by the end of the 30th day Register. after the application is filed with the Commission and after a certified copy of it is furnished to the Secretary of Transportation. However, if the application is incomplete, the Commission shall reject it by the end of that period. The order of rejection is a final action of the 49 u s e 10327. Commission under section 10327 of this title. 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 Commission, to be decided within the time limits specified in subsection (b) of this section; "(2) transactions of regional or national transportation signifi- cance, 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. "(h) If the application involves the merger or control of two or more class I railroads, as defined by the Commission: eomments. "(1) Written comments about an application may be filed with the Commission 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 Secretary of Transportation and the Attorney General, each of whom 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 comments, and if the decision is to intervene, preliminary comments about the appli- cation must be sent to the Commission by the end of the 15th day after the date of receipt of the written comments. "(2) The Commission shall require that applications inconsist- ent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it and given to the Secretary of
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1933 Transportation by the 90th day after publication of notice under that subsection. "(3) The Commission must conclude evidentiary proceedings Evidentiary by the end of the 24th month after the date of publication of proceedings. notice under subsection (a) of this section. The Commission must issue a final decision by the 180th 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 Commission, which the Commission has determined to be of regional or national transportation significance: "(1) Written comments about an application may be filed with Comments. the Commission within 30 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Secretary of Transportation and the Attorney General, each of whom 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 comments, and if the decision is to intervene, preliminary comments about the appli- cation must be sent to the Commission by the end of the 15th day after the date of receipt of the written comments. "(2) The Commission shall require that applications inconsist- ent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it and given to the Secretary of Transportation by the 60th day after publication of notice under that subsection. "(3) The Commission must conclude any evidentiary proceed- Evidentiary ings by the 180th day after the date of publication of notice under proceedings. subsection (a) of this section. The Commission 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: "(1) Written comments about an application may be filed with Comments. the Commission within 30 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Secretary of Transportation and the Attorney General, each of v/hom may decide to intervene £is a party to the proceeding. That decision must be made by the 15th day after the date of receipt of the written comments, and if the decision is to intervene, preliminary comments about the appli- cation must be sent to the Commission by the end of the 15th day after the date of receipt of the written comments. "(2) The Commission must conclude any evidentiary proceed- Evidentiary ings by the 105th day after the date of publication of notice under proceedings. subsection (a) of this section. The Commission must issue a final decision by the 45th day after the date on which it concludes the evidentiary proceedings. "(e) If the Commission does not issue a decision that is a final action Notice to under section 10327 of this title, it shall send written notice to Congress. Congress that a decision was not issued and the reasons why it was 49 u s e 10327. not issued. "(f) The Commission may waive the requirement that an initial Waiver. decision be made under section 10327 of this title and make a final decision itself when it determines that action is required for the timely execution of its functions under this subchapter or that an 49 u s e 11341. application governed by this section is of major transportation
94 STAT. 1934 PUBLIC LAW 96-448—OCT. 14, 1980 importance. The decision of the Commission under this subsection is 49 u s e 10327. a final action under section 10327 of this title.". Adjudication. (e) Any application filed or pending on the effective date of this Act 49 u s e 11343 under section 11343, 11344, or 11345 of title 49, United States Code, note. Ante, p. 1932. before the Secretary of Transportation, the Interstate Commerce Commission, or any court shall be adjudicated or determined as if this Act had not been enacted. SAVINGS PROVISIONS Rate SEC. 229. (a) Any rate that is in effect on the effective date of this complaints. 49 u s e 10701a Act for transportation by a rail carrier providing transportation note. subject to the jurisdiction of the Interstate Commerce Commission 49 u s e 10501. under subchapter I of chapter 105 of title 49, United States Code, may, during the 180-day period beginning on such effective date, be challenged in a complaint filed with the Interstate Commerce Com- mission by any interested party alleging that the rail carrier has market dominance over the transportation to which the rate applies, 49 u s e 10709. as determined under section 10709 of such title, and that the rate is Ante, p. 1898. not reasonable under section 10701a of such title. Ob) Any rate described in subsection (a) of this section— (1) which is not challenged in a complaint filed within the 180- day period provided in such subsection; or (2) which is challenged in such a complaint, but (A) the rail carrier is found not to have market dominance over the transpor- tation to which the rate applies, or (B) the rate is found to be reasonable, shall be deemed to be lawful and may not thereafter be challenged in the Commission or in any court (other than on appeal from a decision of the Commission). (c) The provisions of this section shall not apply to any rate under which the volume of traffic moved during the 12-month period immediately preceding the effective date of this Act did not exceed 500 net tons and has increased tenfold within the 3-year period immediately preceding the bringing of a challenge to the reasonable- ness of such rate. (d) The burden of proof in any proceeding under this section shall be on the complainant. TITLE III-RAILROAD COST DETERMINATIONS UNIFORM ACCOUNTING SYSTEM SEC. 301. Section 11142 of title 49, United States Code, is amended to read as follows: 49 u s e 11142. "§11142. Uniform accounting system "The Interstate Commerce Commission may prescribe a uniform accounting system for classes of carriers providing, and brokers for, transportation subject to the jurisdiction of the Commission under 49 u s e 10521, subchapters II, III, and IV of chapter 105 of this title.". 10541, 10561. RAILROAD COST ACCOUNTING SEC. 302. (a) Chapter 111 of title 49, United States Code, is amended by adding at the end thereof the following new subchapter:
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1935 "SUBCHAPTER IV—RAILROAD COST ACCOUNTING "§11161. Railroad Accounting Principles Board Establishment. 49 u s e 11161. "(a)(1) There is established a Railroad Accounting Principles Board which shall be within and responsible to the legislative branch of the Federal Government. "(2) The Board shall be composed of the Comptroller General of the Membership. United States, who shall serve as chairman, and six members to be appointed by the Comptroller General. (3) The Comptroller General shall appoint members of the Board from among persons who are well qualified for such position by virtue of experience in or knowledge of rate regulation, accounting, or cost determinations. Of the members of the Board so appointed— "(A) one shall be from the accounting profession; "(B) one shall be from the railroad industry; "(C) one shall be a representative of major rail shippers; "(D) one shall be from the Interstate Commerce Commission; "(E) one shall be a representative of small rail shippers; and "(F) one shall be from the economics profession. "(4) The term of office of each appointed member of the Board shall be three years, except that any member appointed to fill a vacancy in the Board shall serve for the remainder of the term for which his predecessor was appointed. "(5) The Board shall not act in the absence of a quorum, which shall consist of three members. "(b) Each appointed member of the Board shall receive compensa- Compensation. tion at a rate equal to Vaeo of the rate prescribed for level IV of the Executive Schedule, under section 5315 of title 5, for each day (including traveltime) in which he is engaged in the actual perform- ance of duties vested in the Board. "(c)(1) The Board may utilize personnel from the Federal Govern- Advisory ment, with the consent of the head of the appropriate Federal committees; staff services. department or agency, or appoint individuals from private life, to serve on advisory committees or to provide the staff services neces- sary to assist the Board in carrsdng out its functions and responsibil- ities under this subchapter. "(2) Individuals appointed by the Board under this subsection may be appointed without regard to the provisions of title 5 governing appointments in the competitive service, and may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title, relating to classification and General Schedule pay 5 u s e 5101 et rates. seq., 5331. "(d) All Federal departments and agencies are authorized to cooperate with the Board and to furnish information, appropriate personnel (with or without reimbursement), and such financial and other assistance as may be agreed upon by the Board and the Federal department or agency involved. '(e) Members and employees of the Board and all other individuals Confidential appointed under this subsection having or having had access to information. information in the possession of the Board shall be subject to the provisions of section 1905 of title 18. "(f) The Board shall cease to exist three years after the effective Termination. date of the Staggers Rail Act of 1980. Ante, p. 1895. "§11162. Cost accounting principles 49 u s e 11162. "(a) Within two years after the effective date of the Staggers Rail Act of 1980, the Railroad Accounting Principles Board shall establish, ^nte, p. 1895 for rail carriers providing transportation subject to the jurisdiction of 79-194 O—81—pt. 2 42 : QL3
94 STAT. 1936 PUBLIC LAW 96-448—OCT. 14, 1980 the Interstate Commerce Commission under subchapter I of chapter 49 u s e 10501. 105 of this title, principles governing the determination of economi- cally accurate railroad costs directly and indirectly associated with particular movements of goods, including the variable costs asso- ciated with particular movements of goods or such other costs as the Board believes most accurately represent the economic costs of such movements. Such principles shall govern the determination of all railroad costs for specific regulatory proceedings under this title. "(b) In developing cost accounting principles under this section, the Board shall take into account the following considerations: "(1) The specific regulatory purposes for which railroad costs are required. "(2) The degree of accuracy of the cost information which is needed to meet regulatory purposes. "(3) The existing capability and the probable future capability of rail carriers to provide such information and the relative benefits and costs of requiring development of additional capability. "(4) The means by which the degree of economic accuracy required can be obtained at the least possible expense and with the least possible information reporting. "(5) The means by which the confidentiality of such costs can best be maintained while meeting the need for such information in regulatory proceedings. Cost information "(c) The cost accounting principles established by the Board shall disclosure. require that cost information be reported or disclosed only for the essential regulatory purposes defined by the Board. Rules. "§11163. Implementation of cost accounting principles 49 u s e 11163. "Upon the establishment of cost accounting principles by the Railroad Accounting Principles Board under section 11162 of this title, the Interstate Commerce Commission shall promptly promul- Review. gate rules to implement and enforce such principles. Not less than once every five years after the promulgation of the original rules, the Commission shall review the principles of the Board and shall, by rule, make such changes in such principles as are required to achieve the regulatory purposes of this title and the goals of this subchapter. The Commission 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. 49 use 11164. "§ 11164. Certification of rail carrier cost accounting systems "(a) Within 180 days after the effective date of the Staggers Rail Ante, p. 1895. Act of 1980, each rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under sub- 49 use 10501. chapter I of chapter 105 of this title shall file with the Commission a request for preliminary certification of its cost accounting system. The Commission shall grant such preliminary certification if it determines that the cost accounting system of such rail carrier is in compliance with the accounting standards of the Commission in effect on the day prior to the effective date of the Staggers Rail Act of 1980. "(b)(1) As soon as practicable, but not later than 9 months, after the promulgation of rules by the Commission under section 11163 of this title, each rail carrier described in subsection (a) of this section shall file with the Commission a request for final certification of its cost accounting system developed to comply with this section.
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1937 "(2) Within 90 days, or such additional time as the Commission finds necessary, after a rail carrier files its request for final certifica- tion under paragraph (1) of this subsection, the Commission shall grant such final certification to such carrier if the Commission determines that the cost accounting system of such carrier is in compliance with the rules promulgated by the Commission under section 11163 of this title. If the Commission denies such final certification, the rail carrier shall revise its cost accounting system and file a new request for certification within 90 days after the date of such denial. The Commission shall thereupon grant final certifica- tion if it determines that such cost accounting system, as revised, is in compliance with such rules. If the Commission again denies final certification to the rail carrier, the Commission shall prescribe a cost accounting system which such carrier shall adopt within a reasonable time and which shall be considered a finally certified cost accounting system for purposes of this section. "(c) Each rail carrier shall have and maintain a cost accounting system that is in compliance with the rules promulgated by the Commission under section 11163 of this title. "(d)(1) Certification under this section that the cost accounting system of a rail carrier is in compliance with the rules promulgated by the Commission under section 11163 of this title shall be valid until the promulgation of new rules by the Commission. "(2) After the cost accounting system of a rail carrier is certified Cost accounting under this section, such rail carrier may, after notifying the Commis- systems, modification. sion, make modifications in such system unless, within 60 days after the date of notification, the Commission finds such modifications to be inconsistent with the rules promulgated by the Commission under section 11163 of this title. "(e) For purposes of determining whether the cost accounting Compliance system of a rail carrier is in compliance with the rules promulgated determination. by the Commission, the Commission 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. "§11165. Cost availability 49 USC 11165. "As required by the rules of the Interstate Commerce Commission governing discovery in Commission proceedings, rail carriers shall make relevant cost data available to shippers. States, ports, commu- nities, and other interested parties that are a party to a Commission proceeding in which such data is required. "§ 11166. Accounting and cost reporting Rules. 49 USC 11166. "(a) To obtain expense and revenue information for regulatory purposes, the Interstate Commerce Commission may promulgate reasonable rules for rail carriers providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title, prescribing expense and revenue accounting and report- 49 USC 10501 ing 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 requirements of those carriers. To the extent such rules are required solely to provide expense and revenue information necessary for determining railroad costs in regulatory proceedings pursuant to this title, such rules shall be promulgated in accordance with the cost accounting principles
94 STAT. 1938 PUBLIC LAW 96-448—OCT. 14, 1980 established by the Railroad Accounting Principles Board under section 11162 of this title. Reports. "(b) Any reports required by the rules established by the Commis- sion under this section shall include only information considered necessary for disclosure under the cost accounting principles estab- lished by the Board or under generally accepted accounting princi- ples or the requirements of the Securities and Exchange Commission. Submittal to "§11167. Report Congress. 49 u s e 11167. "The Railroad Accounting Principles Board shall, within 2 years Ante, p. 1895. after the effective date of the Staggers Rail Act of 1980, submit to the Congress a report setting forth any recommendations of the Board for appropriate legislative or administrative action in order to integrate the cost accounting principles and the cost accounting system certifi- cation process under this subchapter into existing rail carrier rate regulation under this title, including determinations under section 49 u s e 10709. 10709 of this title. 49 u s e 11168. "§11168. Authorization of appropriations "There are authorized to be appropriated to carry out the provi- sions of this subchapter not to exceed $1,000,000 for the fiscal year ending September 30,1981, not to exceed $1,000,000 for the fiscal year ending September 30,1982, and not to exceed $1,000,000 for the fiscal year ending September 30,1983.". Qy) The analysis of chapter 111 of title 49, United States Code, is amended by adding at the end thereof the following: "SUBCHAPTER IV—RAILROAD COST ACCOUNTING "11161. Railroad Accounting Principles Board. "11162. Cost accounting principles. "11163. Implementation of cost accounting principles. "11164. Certification of rail carrier cost accounting systems. "11165. Cost avaUabUity. "11166. Accounting and cost reporting. "11167. Report. "11168. Authorization of appropriations.". CIVIL PENALTIES FOR VIOLATIONS OF ACCOUNTING PRINCIPLES PROVISIONS SEC. 303. (a)(1) Chapter 119 of title 49, United States Code, is amended by inserting immediately after section 11913 the following new section: 49 use 11913a. "§ 11913a. Accounting principles violations "Any rail carrier providing transportation subject to the jurisdic- tion of the Interstate Commerce Commission under subchapter I of 49 u s e 10501. chapter 105 of this title that fails to obtain final certification of its Ante, p. 1936. cost accounting system under section 11164(b) of this title shall be fined not less than $50,000.". (2) The section analysis of chapter 119 of title 49, United States Code, is amended by inserting immediately after the item relating to section 11913 the following new item: "11913a. Accounting principles violations.". Confidential (b) Section 11910 of title 49, United States Code, is amended by data, disclosure. adding at the end thereof the following new subsection: "(d) A person that knowingly discloses confidential data made Ante, p. 1937. available to such person under section 11165 of this title by a rail carrier providing transportation subject to the jurisdiction of the
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1939 Commission under subchapter I of chapter 105 of this title shall be 49 use 10501. fined not more than $50,000.". TITLE IV—RAILROAD MODERNIZATION ASSISTANCE FEEDER RAILROAD DEVELOPMENT PROGRAM SEC. 401. (a) Subchapter I of chapter 109 of title 49, United States Code, is amended by adding at the end thereof the following new section: "§ 10910. Railroad development 49 use 10910. "(a) In this section— Definitions. "(1) 'financially responsible person' means a person who (A) is capable of pajdng the constitutional minimum value of the railroad line proposed to be acquired, and (B) 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 government authority but does not include a class I or a class II rail carrier. "(2) 'railroad line' means (A) during the 3-year period begin- ning on the effective date of the Staggers Rail Act of 1980, a line Ante, p. 1895. of railroad which carried less than 3,000,000 gross ton miles of traffic per mile in the preceding calendar year, and (B) after the end of such 3-year period, any line of railroad. "(b)(1) When the Interstate Commerce Commission finds that— Railroad lines, "(A)(i) the public convenience and necessity require or permit sale. the sale of a particular railroad line under this section; or "(ii) a railroad line has been placed on a system diagram map as required under section 10904 of this title, but the rail carrier 49 USe 10904 owning such line has not filed an application to abandon such line under sections 10903 and 10904 of this title; and 49 u s e 10903. "(B) an application to purchase such line has been filed, in accordance with regulations required under subsection (k) of this section, by a financially responsible person, the Commission 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, but shall not include the cost of providing a protective arrangement under subsection (j) of this section. "(c)(1) For purposes of this section, the Commission may determine that the public convenience and necessity require or permit the sale of a railroad line if the Commission 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 ade- quate 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 operating such line; and
94 STAT. 1940 PUBLIC LAW 96-448—OCT. 14, 1980 "(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 application to Publication in acquire such line. If the Commission finds under this subsection that Federal the public convenience and necessity require or permit the sale of a Register. particular railroad line, the Commission shall concurrently notify the parties of such finding and publish such finding in the Federal Register. Trackage rights. "(d) In the case of any railroad line subject to sale under subsection (a) of this section, the Commission shall, upon the request of the acquiring carrier, require the selling carrier to provide to the acquir- ing carrier trackage rights to allow a reasonable interchange with the selling carrier or to move power equipment or empty rolling stock between noncontiguous feeder lines operated by the acquiring carrier. The Commission shall require the acquiring carrier to provide the selling carrier reasonable compensation for any such trackage rights. "(e) The Commission shall require, to the meiximum extent practi- cable, the use of the employees who would normally have performed work in connection with a railroad line subject to a sale under this section. Joint rates. "(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 calendar year, whenever a purchasing carrier under this section petitions the Commission for joint rates applicable to traffic moving over through routes in which the purchasing carrier may practicably participate, the Commission shall, within 30 days after the date such petition is 49 u s e 10705. filed and pursuant to section 10705(a) of this title, require the establishment of reasonable joint rates and divisions over such route. Exemptions. "(g)(1) Any person operating a railroad line acquired under this section may elect to be exempt from any of the provisions of this title, except that such a person may not be exempt from the provisions of 49 u s e 10701 et chapter 107 of this title with respect to transportation under a joint seq. 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 the effective date of the Staggers Rail Act of Ante, p. 1895. 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 deteriora- tion) of any improvements made, as adjusted to reflect inflation. Preconditions "(i) Any person operating a railroad line acquired under this for shippers. 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. Employee "(j) In the case of any railroad line sold pursuant to this section, the interests, Commission shall require the selling carrier to provide a fair arrange- protection.
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1941 ment at least as protective of the interests of employees as that established under section 11347 of this title. 49 u s e 11347. "(k) The Commission shall, within 60 days after the effective date of Regulations and procedures. the Staggers Rail Act of 1980, prescribe such regulations and proce- Ante, p. 1895. dures as may be necessary to carry out the provisions of this section.", Ot)) The section analysis of chapter 109 of title 49, United States Code, is amended by adding immediately after the item relating to section 10909 the following new item: "10910. Railroad development.". ABANDONMENT SEC. 402. (a)(1) Section 10903(b)(1) of title 49, United States Code, is amended by striking out the first sentence. (2) Section 10903(c) of title 49, United States Code, is repealed. (b)(1) Section 10904(a) of title 49, United States Code, is amended— (A) by striking out "at least 60" and all that follows through "effective" in paragraph (1); (B) by striking out "and" at the end of paragraph (2)(A); (C) by striking out the period at the end of paragraph (2)(B) and inserting in lieu thereof , and"; (D) by adding at the end of paragraph (2) the following new subparagraph: "(C)(i) a statement that the line is available for subsidy or sale in accordance with section 10905 of this title, (ii) a statement that Post, p. 1942. the carrier will promptly provide to each interested party an estimate of the subsidy and minimum purchase price required to keep the line in operation, calculated in accordance with section 10905 of this title, and (iii) the name and business address of the person who is authorized to discuss sale or subsidy terms for the carrier."; and (E) by inserting immediately before the period at the end of paragraph (3XE) the following: ", and certifying that clauses (A)-(D) have been satisfied within the most recent 30 days prior to the date the application is filed". (2) Section 10904(b) of title 49, United States Code, is amended to read as follows: "(b) If no protest is received within 30 days after the application is filed, the Commission shall find that the public convenience and necessity require or permit the abandonment or discontinuance. In Certificate. such a case, the Commission shall, within 45 days after the applica- tion is filed, issue a certificate which permits the abandonment or discontinuance to occur within 75 days after the application is filed.". (3) Section 10904(c) of title 49, United States Code, is amended to Protests. read as follows: "(c)(1) If a protest is received within 30 days after the application is filed, the Commission shall, within 45 days after the application is filed, determine whether an investigation is needed to assist in determining what disposition to make of the application. "(2) If the Commission decides that no investigation is to be undertaken, the Commission shall, within 75 days after the applica- tion is filed, decide whether the present or future public convenience and necessity require or permit the abandonment or discontinuance, taking into consideration the application of the rail carrier and any materials submitted by protestants. If the Commission finds that the Certificate. present or future public convenience and necessity require or permit the abandonment, it shall, within 90 days after the date of applica-
94 STAT. 1942 PUBLIC LAW 96-448—OCT. 14, 1980 tion, issue a certificate which permits the abandonment or discon- tinuance to occur within 120 days after the application is filed. Investigation. "(3) If the Commission decides that an investigation should be undertaken under this section, the investigation must be completed within 135 days, and an initial decision must be rendered within 165 days, after the date the application is filed. Thirty days after such decision, the initial decision shall become the final decision of the Commission unless, during the interim, the Commission decides to hear appeals. If an initial decision is appealed and considered by the Commission, the Commission shall issue a final decision within 255 days after the date of application. Whenever the Commission decides upon investigation that the present or future public convenience and necessity require or permit the abandonment or discontinuance of rail service, it shall, within 15 days of the final decision, issue a certificate which permits the abandonment or discontinuance to occur within 75 days of the date of the final decision. "(4) The effective date of any certificate which permits abandon- ment or discontinuance may be stayed by the Commission pursuant Infra. to the provisions of section 10905 of this title.". (4) Section 10904 of title 49, United States Code, is amended by redesignating subsection (d) as subsection (e), and by inserting imme- diately after subsection (c) the following new subsection: "(d)(1) The burden is on the person applying for the certificate to prove that the present or future public convenience and necessity require or permit the abandonment or discontinuance. "(2) For applications approved by the Secretary of Transportation as part of a plan or proposal under section 5(a)-(d) of the Department of Transportation Act (49 U.S.C. 1654(a)-(d)), the Commission shall consider whether any detriment from the abandonment or discon- tinuance exceeds the transportation benefit from the plan or proposal as a whole.". Waiver. (5) Section 10904(e) of title 49, United States Code, as redesignated by paragraph (4) of this subsection, is amended by inserting immedi- ately before the period at the end thereof the following: ", except that the requirement of such description or identification in such diagram may be waived by the Commission if the application was approved by the Secretary of Transportation as part of a plan or proposal under section 5(a)-(d) of the Department of Transportation Act (49 U.S.C. 1654(a)-(d)), or the application is filed by a railroad in bankruptcy". (c) Section 10905 of title 49, United States Code, is amended to read as follows: 49 use 10905. "§ 10905. Offers of flnancial assistance to avoid abandonment and discontinuance Definitions. "(a) In this section— "(1) '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 transportation were discontin- ued. Expenses include cash inflows foregone 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
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1943 "(D) the foregone tax benefits from not retiring properties from rail service and other effects of applicable Federal and State income taxes. "(2) 'reasonable return' means— "(A) if a rail carrier is not in reorganization, the cost of capital to the rail carrier, as determined by the Interstate Commerce Commission; and "(B) if a rail carrier is in reorganization, the mean cost of capital of rail carriers not in reorganization, as determined by the Commission. "(b) Any rail carrier which has filed an application for a certificate of abandonment or discontinuance shall provide promptly to a party considering an offer of financial assistance and shall provide concur- rently to the Commission— "(1) an estimate of the annual subsidy and minimum purchase price required to keep the line or a portion of the line in operation; "(2) its most recent reports on the physical condition of that part of the railroad line involved in the proposed abandonment 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 rsdlroad line; and "(4) any other information that the Commission may deem necessary to allow a potential offeror to calculate an adequate subsidy or purchase offer. "(c) When the Commission finds under section 10903 of this title Publication in that the public convenience and necessity require or permit abandon- Federal ment or discontinuance of a particular railroad line, it shall, concur- Register. 49 u s e 10903. rently with service of the decision upon the parties, publish the finding in the Federal Register. Within 10 days following the publica- Subsidy or tion, any person may offer to pay the carrier a subsidy or offer to purchase offer. purchase the line. Such offer shall be filed concurrently with the Commission. If the offer to subsidize or purchase the line is less than the carrier's estimate provided under subsection (b)(1) of this section, the offer shall explain the basis of the disparity, and the manner in which the offer of subsidy or purchase is calculated. "(d) If, within 15 days after the publication required in subsection Abandonment or (c) of this section, the Commission finds that— discontinuance, postponement. "(1) a financially responsible person (including a government authority) has offered financial assistance to enable the rail transportation to be continued over that part of the railroad line to be abandoned or over which all rail transportation is to be discontinued; and "(2) it is likely that the assistance would be equal to— "(A) the difference between the revenues attributable 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; or "(B) the acquisition cost of that part of the railroad line; the Commission shall postpone the issuance of a certificate authoriz- ing abandonment or discontinuance in accordance with subsections (e) and (f) of this section. "(e) If the carrier and a person offering financial assistance enter into an agreement which will provide continued rail service, the Commission shall postpone the issuance of the certificate for so long as the agreement, or an extension or modification of the agreement.
94 STAT. 1944 PUBLIC LAW 96-448—OCT. 14, 1980 is in effect. If the carrier and a person offering to purchase a line enter into an agreement which will provide continued rail service, the Commission shall approve the transaction and dismiss the appli- cation for abandonment or discontinuance. If the carrier and a financially responsible person (including a government 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 Commission establish the conditions and amount of compensation. If no agreement is reached within 30 days after the offer is made and neither party requests that the Commission establish the conditions and amount of compensation during that same period, the Commis- sion shall immediately issue a certificate authorizing the abandon- ment or discontinuance, Subsidy or "(f)(1) Whenever the Commission is requested to establish the purchase terms, conditions and amount of compensation under this section— establishment. "(A) the Commission shall render its decision within 60 days; "(B) where subsidy has been offered, the Commission shall determine the amount and terms of subsidy based on the avoid- able cost of providing continued rail transportation, plus a reasonable return on the value of the line; and "(C) where an offer of purchase has been made in order to continue rail service on the line, the Commission shall determine the price and other terms of sale. In no case shall the Commission 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). "(2) The decision of the Commission 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 Commission's decision. In such a case, the Commission shall immedi- ately issue a certificate authorizing the abandonment or discontinu- ance, unless other offers are being considered pursuant to paragraph (3) of this subsection. "(3) If a carrier receives more than one offer to purchase or subsidize, it shall select the offeror with whom it wishes to transact business, and complete the sale or subsidy agreement, or request that the Commission establish the conditions and amount of compensation prior to the 40th day after the date on which notice was published under subsection (c) of this section. If no agreement on subsidy or sale is reached within the 40-day period and the Commission has not been requested to establish the conditions and amount of compensation, any other offeror may request that the Commission establish the conditions and amount of compensation. If the Commission has established the conditions and amount of compensation and the original offer has been withdrawn, any other offeror may accept the Commission's decision within 20 days of such decision, and the Commission shall require the carrier to enter into a sale or subsidy agreement with such offeror, if such sale or agreement incorporates the Commission's decision. Service "(4) No purchaser of a line or portion of line sold under this section discontinuance may transfer or discontinue service on such line prior to the end of or transfer, prohibition. the second year after consummation of the sale, nor may such purchaser transfer such line, except to the carrier from whom it was purchased, prior to the end of the fifth year after consummation of the sale. Subsidy "(5) Any subsidy provided under this section may be discontinued discontinuance. on notice of 60 days. Unless, within such 60-day period, another
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1945 financially responsible party enters into a subsidy agreement at least as beneficial to the carrier as that which was or was to be discontin- ued, the Commission shall, at the carrier's request, immediately issue a certificate authorizing the abandonment or discontinuance of service on the line.". CONVERSION OF ABANDONED RAILROAD RIGHTS-OF-WAY SEC. 403. Section 809(d) of the Railroad Revitalization and Regula- 49 u s e 10906 tory Reform Act of 1976 is amended— note. (1) by inserting "(1)" immediately before the first sentence thereof; and (2) by adding at the end thereof the following new paragraph: "(2) There are authorized to be appropriated, for the purposes of Appropriation carrjdng out the provisions of subsection (bX2) of this section, not to authorization. exceed an aggregate amount of $10,000,000 for the fiscal years 1981, 1982, and 1983. Such sums are authorized to remain available until expended. Notwithstsmding the provisions of subsection (b)(2) of this section, the Federal share for each grant made from the funds authorized to be appropriated pursuant to this paragraph may not exceed 80 percent of the total cost of any project.". EXTENSION OF REDEEMABLE PREFERENCE SHARE FINANCING SEC. 404. Sections 505(e), 507(a), 507(d), and 509 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825(e), 827(a), 827(d), and 829) are each amended by striking out "September 30,1980" wherever it appears and inserting in lieu thereof Septem- ber 30,1982" in each such place. FINANCING SEC. 405. (aXl) Section 505(dX3) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825(dX3)) is amended by Post, p. 1947. striking out "$700,000,000" and mserting in lieu thereof "$1,400,000,000". (2) Sections 507(a) and 509 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 827(a) and 829) are each amended by striking out "$600,000,000" and inserting in lieu thereof "$1,400,000,000". (bXD Section 509 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 829) is amended by inserting "(a)^' immediately after "SEC. 509." and by adding at the end thereof the following new subsection: "(bXD Not more than $200,000,000 of the funds received by the Funds transfer. Secretary of Transportation from amounts appropriated under sub- section (a) of this section shall be transferred by the Secretary to the United States Railway Association for use by the Association in accordance with section 216(bX3) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 726(b)(3)). Such funds shall be transferred Post, p. 1946. immediately upon the finding by the Finance Committee under such section 216(bX3). "(2) Not less than 5 percent of the funds received by the Secretary Purchase or of Transportation from amounts appropriated under subsection (a) rehabilitation. (excluding funds transferred under paragraph (1) of this subsection) shall be available for the purchase or rehabilitation of railroad lines acquired under section 10910 of title 49, United States Code, except Ante, p. 1939. that no such funds shall be available for the purchase or rehabilita-
94 STAT. 1946 PUBLIC LAW 96-448—OCT. 14, 1980 tion of such a railroad line unless such purchase or rehabilitation is consistent with the rail plan (as defined under section 5 of the 49 u s e 1654. Department of Transportation Act) of the State in which such line is located. Appropriation "(3) Of the funds authorized to be appropriated under this section authorization. (other than funds described in paragraphs (1) and (2) of this subsec- tion) not more than $180,000,000 are authorized to be appropriated in fiscal year 1981.". Work force (2) Section 216(b) of the Regional Rail Reorganization Act of 1973 reduction. (45 U.S.C. 726(b)) is amended by adding at the end thereof the following new paragraph: "(3)(A) Amounts transferred to the Association pursuant to section 5090t))(l) of the Railroad Revitalization and Regulatory Reform Act of Ante, p. 1945. 1976 may be used to purchase series A preferred stock of the Corporation to provide for the implementation by the Corporation of a program to reduce the Corporation's work force, if the Finance Committee finds that the implementation of such program will result in substantial savings to the United States. "(B) An employee who ceases to be an employee £is a result of the reduction of work force under a program implemented pursuant to this paragraph shall not, by reason of so ceasing to be an employee, or by reason of any work or employment entered into after so ceasing to be an employee, lose such employee's current connection with the railroad industry for the purposes of the Railroad Retirement Act of 45 u s e 231t. 1974.". Financial (c)(1) Section 505(a) of the Railroad Revitalization and Regulatory assistance. Reform Act of 1976 (45 U.S.C. 725(a)) is amended— 45 u s e 825. (A) by inserting "(1)" immediately before "Any railroad"; and (B) by adding at the end thereof the following new paragraphs: "(2) An employee or employee-shipper group may apply to the Secretary for financial assistance pursuant to subsection (b)(3) of this section. "(3) A financially responsible person (as defined in section Ante, p. 1939. 10910(a)(1) of title 49, United States Code) may apply to the Secretary for financial assistance from funds made available pursuant to Ante, p. 1945. section 509(b)(2) of this title.". (2) Section 505(b) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825(b)) is amended by adding at the end thereof the following new paragraph: "(3) The Secretary may approve applications to provide financial assistance to any employee or employee-shipper ownership group formed pursuant to a plan for the purchase or rehabilitation of a line or lines of railroad or of rail facilities which are considered to be in the public interest. The Secretary shall not use more than 20 percent of the total funds available under this section for such financial assistance. In considering the allocation of available funds and priority of eligible projects under this subsection, the Secretary shall consider the availability of viable alternatives to the ownership or rehabilitation by the eligible employee-shipper group for the continu- ation of rail service. Projects with no such alternative shall receive highest priority.". (3) Sections 506 through 509 of the Railroad Revitalization and Ante, p. 1945. Regulatory Reform Act of 1976 (45 U.S.C. 826 through 829) are amended by— (A) inserting "employee or employer-shipper group" immedi- ately after "railroad wherever it appears; (B) inserting "employee or employee-shipper groups" immedi- ately after "railroads" wherever it appears; and
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1947 (C) inserting "employee or employee-shipper group's" immedi- ately after "railroad's" wherever it appears. (4) Section 505(d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825(d)) is amended by redesignating Ante, p. 1945. paragraph (3) as paragraph (4) and by inserting after paragraph (2) the following new paragraph: "(3) In the case of a Government authority that applies for financial assistance from funds made available pursuant to section 509(b)(2) for Ante, p. 1945. the purchase or rehabilitation of railroad lines purchased under section 10910 of title 49, United States Code, financing pursuant to ^"^e- P 1939. this section shall be in the form of purchase by the Secretary of bonds or other debt obligations issued for such purpose by such Government authority.". (5) Paragraph (4) of section 505(d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 725(d)), as redesignated by 45 use 825. this subsection, is amended by inserting ", bonds, and other debt obligations" immediately after "trustee certificates". (d) Section 501 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 821), as amended, is further amended by- (1) striking out "and" at the end of paragraph (7); (2) inserting "acquisition or sale of assets or securities," imme- diately after "merger," in paragraph (8); (3) striking out the period at the end of paragraph (8) and inserting in lieu thereof a semicolon; and (4) adding at the end thereof the following new paragraphs: Definitions. "(9) 'consolidation' means the combination of separate rail facilities and the abandonment of the excess facilities, except that such term does not include the combination by a single railroad of multiple tracks into fewer tracks where the tracks do not constitute separate physical and operating lines of railroad; and "(10) 'coordination' means the combination of rail freight traffic flows through the use of joint facilities arrangements or internally that result in a reduction of service on at least one facility and includes arrangements for joint use of tracks or other facilities and the acquisition or sale of assets.". (e) The first sentence of section 511(a) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 831(a)) is amended by inserting immediately after "equipment" the following: "(which includes but is not limited to computerized car management systems)". TRANSACTION ASSISTANCE SEC. 406. Section 505(h) of the Railroad Revitalization and Regula- tory Reform Act of 1976 (45 U.S.C. 825(h)) is amended by adding at the end thereof the following new paragraphs: "(5) Financial assistance made available under paragraph (1)(B) of this subsection may be used to purchase, for purposes of rail banking, properties of the Milwaukee Railroad located in the State of Montana with respect to which an interest in future rail common carrier operations has been evidenced. "(6) Applications for rail banking shall be treated equally with other applications for transaction assistance."
94 STAT. 1948 PUBLIC LAW 96-448—OCT. 14, 1980 ELECTRIFICATION LOAN GUARANTEES SEC. 407. Section 211(i) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 721(i)) is amended— (1) by inserting "or any other railroad" immediately after "the Corporation" the first place it appears; (2) by inserting "or such railroad" immediately after "the Corporation" the second and third places it appears; and (3) by inserting immediately after the first sentence the follow- ing new sentences: "Upon application by the Corporation or by any railroad in reorganization in the region which receives a loan under section 211(a) of this Act, the Secretary shall, pursu- ant to the provisions of and within the obligational limitations 45 use 831-833. contained in sections 511 through 513 of such Act, guarantee obligations of the Corporation or such railroad for purposes of making capital improvements to coal export facilities.". AMENDMENT TO THE REGIONAL RAIL REORGANIZATION ACT OF 1973 SEC. 408. (a) The second sentence of section 211(d) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 721(d)) is amended by inserting "is not required to make the findings with respect to subsections (e)(3) and (f) and" immediately after "the Association" the first place it appears. (b) Section 211(d)(2) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 721(d)(2)) is amended by striking out "$4,000,000" and inserting in lieu thereof "$7,500,000". (c) The last sentence of section 211(d) of the Regional Rail Reorgani- zation Act of 1973 (45 U.S.C. 721(d)) is amended by striking out "1980" and inserting in lieu thereof "1981". FEDERAL ASSISTANCE REPORT Submittal to SEC. 409. Within 90 days after the end of each fiscal year, the 49'ifsr^ifi'i4 Secretary of Transportation shall submit a report to the Congress listing the specific Federal assistance provided the railroad industry during such fiscal year. Each such report shall set forth the reasons for each Federal loan or grant and explain the way in which such loan or grant contributed to the overall goal of providing a safe and efficient transportation system. TITLE V—CONRAIL TITLE V LABOR PROTECTION MONTHLY DISPLACEMENT ALLOWANCE Pay rate. SEC. 501. Section 505(b) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 7750))) is amended to read as follows: "(b) MONTHLY DISPLACEMENT ALLOWANCE.—A protected employee shall be paid a monthly displacement allowance for any calendar month within the period identified in subsection (c) of this section in which the employee is deprived of employment or adversely affected with respect to such employee's compensation, in accordance with the following provisions: "(1)(A) Effective on the effective date of the Staggers Rail Act Ante, p. 1895. of 1980, the protected rate of pay of a protected nonoperating employee (other than a maintenance-of-way employee) who has been deprived of employment or adversely affected with respect to such employee's compensation shall be based on the rate of pay of the position held by the employee on September 1,1979, or
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1949 if the employee held no position on that date, the rate of pay of the last position held by the employee prior to that date. A guaranteed hourly rate of pay will be computed for each protected employee, based on the rate described in the preceding sentence, and will be (i) the actual hourly rate for hourly rated employees, (ii) the daily rate divided by 8 for daily rated employ- ees, and (iii) the monthly rate divided by the working days in the claim month, further divided by 8, in the case of monthly rated employees. For employees occupying relief positions, the guaran- tee shall be computed on the basis of the weighted average daily rate of the positions relieved. Extra list employees will be guaranteed the extra list rate. "(B) In the event a protected employee's position is abolished or such employee is displaced and is thereby required to occupy a position paying an hourly rate that is less than such employee's guaranteed hourly rate, the protected employee shall be paid the difference between the hourly rate of pay of the position such employee is occupying and his guaranteed hourly rate for all hours included in the straight time work schedule of such employee's position for the month of claim, less any time lost on account of voluntary absences other than vacations. Hours worked in excess of the straight time work schedule shall be paid in addition to the guarantee at the rate applicable to the position occupied, as provided for in the applicable collective bargaining agreement. "(C) For any month or portion thereof in which a protected employee is deprived of employment, the protected employee shall be paid such employee's guaranteed hourly rate for the number of hours such employee would have worked in the straight time work schedule of such employee's previously held position. "(D) Notwithstanding the provision that the protected rate shall be the rate of the position held on or immediately preceding September 1, 1979, if a protected employee becomes the perma- nent incumbent of a higher rated position and is not disqualified therefrom, the higher rate shall become such employee's protected rate. "(2) Notwithstanding paragraph (1) of this subsection, effective on the effective date of the Staggers Rail Act of 1980, a protected Ante, p. 1895. maintenance-of-way employee shall be afforded his average monthly compensation, which is defined as the total compensa- tion received by such employee during the 12 months immedi- ately preceding January 1,1975, divided by his total time paid for during that period and multiplied by 174 or by his average monthly time paid for, whichever is less, and adjusted to reflect subsequent general wage increases. If a protected employee is deprived of employment or if the employee's straight-time com- pensation in his current position is less in any month than the employee's average monthly compensation, the employee shall be paid the difference between his straight-time earnings, if any, and 80 percent of the average monthly compensation, less any time lost on account of voluntary absences other than vacations. If, at the close of the calendar year, the sum of the protected employee's annual straight-time compensation, monthly dis- placement allowance payments and offsets applicable pursuant to this title is less than the employee's average monthly compen- sation multiplied by 12, the employee shall receive an additional payment representing the difference. If in the previous calendar
94 STAT. 1950 PUBLIC LAW 96-448—OCT. 14, 1980 year an employee has received displacement allowance pay- ments in excess of his annual entitlement, the excess payments shall be recovered from any current or future entitlement to monetary benefits afforded by this title, exclusive of benefits 45 use 775. afforded by section 505(g) of this title. "(3) Effective on the effective date of the Staggers Rail Act of Ante, p. 1895. 1980 a protected operating employee (as defined in Interstate Commerce Commission classifications 107 through 128) who has been deprived of employment or adversely affected with respect to such employee's compensation shall be afforded his average monthly compensation computed in accordance with this subsec- tion as in effect prior to such effective date, but subject to a maximum amount equal to one-twelfth of the average annual earnings of all employees in the Interstate Commerce Commis- sion classification, computed by cumulating the employee earn- ings reported to the Commission by the Corporation on a monthly basis for calendar year 1977 for the Interstate Com- merce Commission classification of operating service in which such employee performed the preponderance of such employee's work in calendar year 1974, increased by applicable general wage increases. If the employee performed no operating service in 1974, the Interstate Commerce Commission classification shall be determined by the preponderance of such employee's operat- ing service in an immediately preceding calendar year. If the average monthly compensation of a protected operating employee exceeds the maximum amount described in the first sentence of this paragraph, the average monthly compensation of the employee will be reduced to such maximum amount for purposes of computing such employee's monthly displacement allowance, if any. If the average monthly compensation of a protected operating employee is less than such maximum amount, the average monthly compensation of the employee will be used to compute such employee's monthly displacement allowance, if any. If a protected employee is deprived of employment, or if the employee is adversely affected with respect to his compensation such that the compensation in such employee's current position is less in any month than the average monthly compensation of the employee or such maxi- mum amount, whichever is less, the employee shall be paid 75 per centum of the difference between such employee's earnings, if any, and the lesser figure, minus any time lost on account of voluntary absences other than vacations. If at the close of the calendar year the sum of the protected employee's annual earnings, monthly displacement allowance payments, and offsets applicable pursuant to this title is less than such employee's average monthly compensation subject to the maximum amount and multiplied by 12, the employee shall receive an additional payment representing the difference. In the computation of the annual payment, if during the calendar year an employee haj been force assigned to, or has been required to exercise seniority to, a position in an Interstate Commerce Commission classifica- tion with a lesser maximum amount than the maximum amount applicable to such employee's 1974 Interstate Commerce Com- mission classification, such employee shall be paid the difference without credit being taken for compensation earned by virtue of actual working hours in the calendar year in excess of the number of hours paid for in such employee's average monthly compensation multiplied by 12 or such employee's annual 1977
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1951 maximum amount, whichever is less. An employee's compensa- tion for purposes of this subsection shall not include savings sharing productivity payments received pursuant to paragraph (t) of the Crew Consist Agreement between the Corporation and the United Transportation Union dated September 8,1978. If, in the previous calendar year, an employee has received displace- ment allowance payments in excess of such employee's annual entitlement, the excess pa5maents shall be recovered from any current or future entitlement to monetary benefits afforded by this title, exclusive of benefits afforded by subsection (g) of this section. "(4) Effective on the effective date of the Staggers Rail Act of 1980, a protected noncontract employee who has been deprived of Ante, p. 1895. employment or adversely affected with respect to such em- ployee's compensation shall retain his average monthly com- pensation and monthly displacement allowance computed in accordance with this subsection as in effect prior to such effective date. In the event such noncontract employee exercises or has exercised seniority in a craft or class of operating employees, such employee's entitlement to a monthly displacement allow- ance and fringe benefits, and such employee's eligibility for transfer, shall be the same as the entitlement and eligibility of other protected employees in the craft or class in which seniority is exercised. In the event such noncontract employee exercises or has exercised seniority in a craft or class of nonoperating employees, the entitlement of such employee to a monthly displacement allowance and fringe benefits, and such employee s eligibility for transfer, shall be consistent with the entitlement and eligibility of other protected employees in the craft or class in which seniority is exercised, except that the protected rate of pay shall be based on the rate of pay of the position first obtained through the exercise of seniority, rather than the rate of any position held on or prior to September 1,1979. "(5) Notwithstanding the preceding provisions of this subsec- tion, employees who, prior to September 1,1979, accepted trans- fer to positions requiring a change of residence pursuant to subsection (d) of this section, shall retain their average monthly compensation and monthly displacement allowance computed in accordance with this subsection prior to the effective date of the Staggers Rail Act of 1980. "(6) In determining compensation in a protected employee's current employment, such employee shall be treated as occupy- ing the position producing the highest rate of pay to which such employee's qualifications and seniority entitle the employee under the applicable collective bargaining agreement and which does not require a change in residence. A protected operating employee will be considered to be occupying the position produc- ing the highest rate of pay if the employee occupies a position producing compensation equal to such employee's average monthly compensation, subject to the maximum amount. "(7) With respect to a protected employee who has been deprived of employment, the monthly displacement allowance shall be reduced by (A) the full amount of any unemployment compensation benefits received by such employee, and (B) an amount equivalent to any outside earnings of such employee. "(8) A protected employee's average monthly compensation or protected rate of pay shall be adjusted from time to time thereafter to reflect subsequent general wage increases. 79-194 O—81—pt. 2 43 : QL3
94 STAT. 1952 PUBLIC LAW 96-448—OCT. 14, 1980 "(9) The average monthly compensation or protected rate of pay provided by this section shall in no event exceed $2,500 in any month, except that such amount shall be adjusted to reflect general wage increases subsequent to April 1,1976. "(10) A protected employee and his representative shall be furnished with such employee's protected rate of pay, or average monthly compensation and average monthly time paid for, subject to the maximum amount, computed in accordance with the terms of this subsection. Each protected employee who has been deprived of employment or his representative and the employer shall agree upon a procedure by which the employee shall keep the employer currently informed of the unemploy- ment compensation benefits received by such employee and the earnings of such employee in employment other than with such employer. (11) In the case of a supplemental transaction— "(A) with respect to an employee described in paragraph (1) of this subsection who was not employed on September 1, 1979, the protected rate of pay of such employee shall be based on the rate of pay of the position held by such employee on the first day of the first month after September 1979 in which such employee was employed; "(B) with respect to an employee described in paragraph (2) of this subsection who was not employed during the 12 months immediately preceding January 1,1975, the average monthly compensation of such employee shall be determined on the basis of the first 12-month period after January 1, 1974, during which such employee was employed; and "(C) with respect to an employee described in paragraph (3) of this subsection— "(i) if such employee was employed during the 12 months immediately preceding January 1, 1975, the average monthly compensation of such employee shall be determined on the basis of such 12-month period; and "(ii) if such employee was not employed during the 12 months immediately preceding January 1, 1975, the preponderance of work of such employee shall be de- termined on the basis of the first 12-month period after January 1, 1974, during which such employee was employed.". DURATION OF MONTHLY DISPLACEMENT ALLOWANCE SEC. 502. Section 505(c) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(c)) is amended to read as follows: "(c) DURATION OF MONTHLY DISPLACEMENT ALLOWANCE.—The monthly displacement allowance provided for in subsection (b) of this section shall, in the case of a protected employee with 5 or more years of service on the effective date of this Act, continue until the attainment of age 65 by such employee, and shall, in the case of a protected employee who has less than 5 years of service on such date, continue for a period equal to the employee's total prior years of service, except that such monthly displacement allowance— "(1) shall terminate upon the protected employee's death, retirement, resignation, or dismissal for cause; "(2) shall not be paid with respect to any period of disciplinary suspension for cause, failure to work due to illness or disability, voluntary furlough, or failure to retain or obtain a position
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1953 available to the employee by the exercise of such employee's seniority rights in accordance with the provisions of this section; "(3) shall not be paid to a protected employee deprived of employment with respect to any period of failure to work due to strike, fire, flood, snowstorm, hurricane, earthquake, tornado, or other similar natural occurrence that causes a suspension of operations in whole or in part and precludes performance of the work which would be performed by the incumbents of the positions to be abolished or the work which would be performed by the employees involved in the force reductions (but the payment of monthly displacement allowances shall be resumed upon termination of the emergency); and "(4) shall not be paid with respect to any month that com- mences after the effective date of the Staggers Rail Act of 1980 Ante, p. 1895. for which the employee has failed to make a claim for such allowance within 3 full calendar months (unless otherwise agreed upon by the employee or his representative and the employer) after the last day of the month for which such allowance is sought, except that such 3-month limit shall not apply to any claim which is the subject of or is based upon an arbitration decision issued pursuant to section 507 of this title. 45 USC 777. Unless otherwise agreed upon by the employee or his representative and the employer, the entitlement of an employee to an allowance shall be approved or denied within 150 days after the claim therefor is made if such claim is filed during the 12-month period beginning on the effective date of the Staggers Rail Act of 1980, and within 90 days after the claim therefor is made if such claim is filed after such 12- month period. Any claim not approved or denied at the expiration of the time limits described in the preceding sentence shall be deemed approved.". TRAINING AND TRANSFER SEC. 503. (a)(1) Section 505(d) (1) and (3) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(d) (1) and (3)) are each amended by inserting "or other employers with emplovees protected under this section" immediately after "Corporation wherever it appears. (2) Section 505(d)(1) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(d)(1)) is amended by inserting "or the system of other employers with employees protected under this section" immediately after Corporation's system". (3) Section 505(d)(2) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(d)(2)) is amended by adding at the end thereof the following new sentence: "Notwithstanding any other provision of this subsection, a protected employee of the National Railroad Passenger Corporation shall not be required to transfer to a location outside the seniority district of such protected employee.". (b) Section 505(d)(4) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(d)(4)) is amended by striking out "Transfers" and inserting in lieu thereof "Except as provided in paragraph (5) of this subsection, transfers". (c) Section 505(d) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(d)(4)), as amended, is further amended by adding at the end thereof the following new paragraph: "(5) In the case of a marine craft or class on the Corporation's system, or in the craft or class of a Penn Truck Lines, Incorporated, employee, transfers to vacancies requiring a change in residence shall be subject to the following:
94 STAT. 1954 PUBLIC LAW 96-448—OCT. 14, 1980 "(A) The vacancy shall be first ofiered to the junior qualified protected employee or employees deprived of employment in the seniority district where the vacancy exists, and each such employee shall have 20 days to elect one of the options set forth in paragraph (1) of this subsection. The Corporation shall deter- mine the number of junior qualified protected employees de- prived of employment (not to exceed four employees per offer) who will be included in the offer of transfer. The vacancy will be awarded to the most junior qualified protected employee who accepts transfer. Other qualified protected employees who have accepted the transfer will retain their status as employees deprived of employment. Employees junior to the acceptor who have elected one of the options set forth in paragraph (1) of this subsection shall retain the option. If the vacancy is not filled, it may be again offered in inverse seniority order to remaining qualified protected employee(s) deprived of employment (not to exceed four employees per offer) in the seniority district. "(B) If there are no qualified protected employees deprived of employment in the seniority district where the vacancy exists, the vacancy may be offered in inverse seniority order to qualified protected employees deprived of employment (not to exceed four employees per offer) on the system, in accordance with the procedure in subparagraph (A) of this paragraph. Employees offered transfer pursuant to this paragraph will be afforded 30 days to elect one of the options set forth in paragraph (1) of this subsection. "(C) The provisions of this paragraph shall not prevent the adoption of other procedures pursuant to an agreement made by the Corporation and representatives of the class or craft of employees involved. "(D) When no bona fide vacancies exist in such craft or class, the Corporation may offer such employee comparable employ- ment for which the employee is qualified, or for which the employee can be trained, in another craft or class. The Corpora- tion shall first attempt to locate a comparable position in a seniority district which encompasses the employee's last work location, and if successful, a transfer notice may be tendered pursuant to subparagraph (A) of this paragraph. If no such position exists, the Corporation may tender the employee a transfer notice involving a position elsewhere on the system pursuant to subparagraph (B) of this paragraph. In the event it is necessary to train an employee after such employee's acceptance of a position pursuant to this paragraph, such training shall be provided by the Corporation at no cost to the employee.". (d) Section 505(i)(l) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 775(i)(l)) is amended by adding at the end thereof the following new sentences: "The Corporation may simultaneously offer a position to not more than 4 protected noncontract employees. The position shall be given to the protected employee accepting transfer whom the Corporation considers to be best qualified for the particular position involved. Other protected employees who have accepted the transfer shall retain their previous status. Employees who have elected a voluntary suspension of employment at their home location in lieu of protective benefits or a severance of employment shall retain the option elected.".
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1955 PAYMENT, AUDIT, AND REPORT SEC. 504. Section 509 of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 779) is amended to read as follows: PAYMENT, AUDIT, AND REPORT "SEC. 509. (a) PAYMENT.—The Corporation, the Association (where applicable), replacement operators, and acquiring railroads, as the case may be, shall be responsible for the actual payment of all allowances, expenses, and costs provided protected employees pursu- ant to the provisions of this title. The Corporation, the Association (where applicable), replacement operators, and acquiring railroads shall then be reimbursed for the actual amounts paid to, or for the benefit of, protected employees, pursuant to the provisions of this title (including such amounts paid by the employer prior to the effective date of the Staggers Rail Act of 1980 and training costs Ante, p. 1895. incurred by the Corporation pursuant to section 505(d)(4)(D) of this 45 u s e 775. title), other than provisions with respect to employee pension bene- fits, not to exceed an aggregate sum of $485,000,000, by the Railroad Retirement Board, upon certification to such Board in such detail as the Board may reasonably require, by the Corporation, the Associ- ation (where applicable), replacements operators, and acquiring rail- roads, of the amounts paid such employees, except that the aggregate amount of reimbursements made by the Board for the payment of monthly displacement allowances in the period after the effective date of the Staggers Rail Act of 1980 shall not exceed $180,000,000. There is authorized to be appropriated to the Secretary annually such Appropriation sums as may be required to meet the obligations payable under this authorization. title, not to exceed the aggregate sum of $485,000,000. Upon the exhaustion of such authorization, the Corporation, the Association (where applicable), replacement operators, and acquiring railroads shall retain responsibility for the pajonent of benefits otherwise reimbursable under this title, but they shall not be reimbursed therefor. There is further authorized to be appropriated to the Secretary such sums as may be necessary to provide for additional administrative expenses to be incurred by the Railroad Retirement Board in the performance of its functions under this section. Appro- priations authorized under this section may be allocated by the Secretary to the Railroad Retirement Board. "(b) AUDIT.—Beginning October 1, 1980, the Association shall conduct a program audit of the payment of benefits pursuant to this title and shall evaluate the effectiveness of the provisions of this title in improving the Corporation's management of certain protected employees in its workforce who are entitled to receive monthly displacement allowances. Such audits and evaluations shall be con- ducted in accordance with such rules and regulations as the Associ- ation may prescribe. The representatives of the Association shall Records, have access to all books, accounts, records, reports, files, and other accessibility. papers, things, or property belonging to, or in use by or in connection with, the Corporation, replacement operators, acquiring railroads, or the Railroad Retirement Board which pertain to the benefits pro- vided protected employees pursuant to this title and which are necessary to facilitate such audit and evaluation. "(c) REPORT.—The Association shall transmit to the. Congress and Transmittal to the President, not later than 90 days after the end of each fiscal year, Congress and the President. a comprehensive and detailed report on the payment of benefits under this title and the effectiveness of the provisions of this title in
94 STAT. 1956 PUBLIC LAW 96-448—OCT. 14, 1980 improving the Corporation's management of certain protected employees in its workforce who are entitled to receive monthly displacement allowances.". RAILROAD HIRING SEC. 505. Title V of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 771 et seq.) is amended by adding at the end thereof the following new section: "RAILROAD HIRING 45 use 780. "SEC. 510. Any protected employee of the Corporation and any employee of the Corporation who is separated or furloughed from his employment with the Corporation (other than for cause) shall, unless found to be less qualified than other applicants, have the first right of hire by any other railroad that is subject to regulation by the Commission for any vacancy that is not covered by (1) an affirmative action plan, or a hiring plan designed to eliminate discrimination, that is required by Federal or State statute, regulation, or Executive order, or by the order of a Federal court or agency, or (2) a permissible voluntary affirmative action plan. For purposes of this section, a railroad shall not be considered to be hiring new employees when it recalls any of its own furloughed employees.". SINGLE COLLECTIVE-BARGAINING AGREEMENT SEC. 506. Section 504(d) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 774(d)) is amended to read as follows: "(d) N E W COLLECTIVE-BARGAINING AGREEMENTS.—Not later than 60 days after the effective date of any conveyance pursuant to the provisions of this Act, the representatives of the various classes of crafts of the employees of a railroad in reorganization involved in a conveyance and representatives of the Corporation shall commence negotiation of a new single collective-bargaining agreement for each class and craft of employees covering the rate of pay, rules, and working conditions of employees who are employees of the Corpora- tion. Such collective-bargaining agreement shall include appropriate provisions concerning rates of pay, rules, and working conditions, but shall not include any provisions for job stabilization resulting from any transaction effected pursuant to this Act which may exceed or conflict with those established herein. Negotiations with respect to such single collective-bargaining agreement, and any successor thereto, shall be conducted systemwide.". EMPLOYEE PROTECTION PAYMENTS 45 use 779 SEC. 507. Notwithstanding any other provision of law, the "°*® Consolidated Rail Corporation and other employers with employees protected under the provisions of title V of the Regional Rail 45 use 771. Reorganization Act of 1973 shall, until the effective date of this Act, continue to make payments for employee protection under such Act in accordance with the provisions of such Act which were in effect on January 1, 1979. Notwithstanding any other provision of law, such Corporation and employers shall be reimbursed for such payments in accordance with the provisions of section 509(a) of the Regional Rail Ante, p. 1955. Reorganization Act of 1973 (45 U.S.C. 779(a)).
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1957 TECHNICAL AMENDMENTS SEC. 508. (aXD The item relating to section 509 in the table of contents of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 701 et seq.) is amended to read as follows: "Sec. 509. Payment, audit, and report.". (2) The table of contents of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 701 et seq.) is amended by inserting immediately after the item relating to section 509 the following new item: "Sec. 510. Railroad hiring.". (b) Section 102(16) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 702(16)) is amended to read as follows: "(16) 'Secretary' means the Secretary of Transportation or the "Secretary." designated representative of the Secretary;". (c) Section 201 of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 711) is amended— (1) by amending subsection (dX2) to read as follows: "(2) three Government members, who shall be (A) the Secre- United States tary, acting directly or at any time through the Deputy Secretary Railway Association, of Transportation, the General Counsel of the Department of Board of Transportation, the Federal Railroad Administrator, or the Directors. Deputy Administrator of the Federal Railroad Administration, (B) the Secretary of the Treasury, acting directly or at any time through an officer of the Department of the Treasury who has been appointed with the advise and consent of the Senate, and (C) the Chairman of the Commission, acting directly or at any time through the Vice Chairman of the Commission; and"; (2) striking out "through their respective Deputy Secretaries" from the first sentence of subsection (i) and inserting in lieu thereof "in the case of the Secretary, through the Deputy Secretary of Transportation, the General Counsel of the Depart- ment of Transportation, the Federal Railroad Administrator, or the Deputy Administrator of the Federal Railroad Admin- istration, and, in the case of the Secretary of the Treeisury, through an officer of the Department of the Treasury who has been appointed with the advise and consent of the Senate"; and (3) by striking out the first sentence of subsection (jX4). (d) Section 501 of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 771) is amended— (1) in paragraph (6), by inserting immediately after "disabil- ity," the following: "failure to work due to strike, fire, flood, snowstorm, hurricane, earthquake, tornado, or other similar natural occurrence that causes a suspension of operations in whole or in part and precludes performance of the work which would be performed by the incumbents of the positions to be abolished or the work which would be performed by the employ- ees involved in the force reductions,"; and (2) by striking out "and" at the end of paragraph (10), by striking out the period at the end of paragraph (11) and inserting in lieu thereof '; and", and by adding at the end thereof the following new paragraph: "(12) 'compensation' means earnings in employment subject to "Compensation.' the Railroad Retirement Act.". 48 Stat. 1283. (e) Section 507 of the Regional Rail Reorganization Act of 1973 (45 45 use 201-208 U.S.C. 777) is amended by inserting ", section 5090)), or section "°^^^ 509(c)" immediately after "section 504(d)".
94 STAT. 1958 PUBLIC LAW 96-448—OCT. 14, 1980 (f) The first sentence of section 403(d)(1) of the Rail Passenger Service Act (45 U.S.C. 563(d)(1)) is amended by striking out "if such State" and all that follows through "service". TITLE VI—EXPEDITED SUPPLEMENTAL TRANSACTION PROPOSALS EXPEDITED SUPPLEMENTAL TRANSACTION PROPOSALS SEC. 601. (a) Section 305 of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 745) is amended by adding at the end thereof the following new subsection: Rail properties "(f) EXPEDITED PROPOSALS.—(1) Within 240 days after the effective in Connecticut date of the Staggers Rail Act of 1980, the Secretary, after providing and Rhode Island, transfer. an opportunity for comments from interested parties, shall deter- Ante, p. 1895. mine whether to initiate a proposal for a supplemental transaction under this section for the transfer of all rail properties of the Corporation in the States of Connecticut and Rhode Island to another Conditions. railroad in the region, If the Secretary determines that— "(A) the proposed transferee railroad is financially and oper- ationally capable of assuming the freight operations and freight service obligations of the Corporation on a financially self- sustaining basis; "(B) the proposed transfer would promote the establishment and retention of a financially self-sustaining rail system in the States of Connecticut and Rhode Island adequate to meet the needs of such States; and "(C) the proposed transfer is consistent with the goals set forth 45 u s e 716. in section 206(a)(8) of this Act, the Secretary shall develop such a proposal and m ^ , after providing the Association, the Commission, and the States of Connecticut and Rhode Island an opportunity to review and comment on such pro- posal, petition the special court for an order to carry out such proposal. Price "(2) The Secretary shall establish a fair and equitable price for any establishment. rail properties transferred pursuant to a proposal developed under this subsection. "(3) If the special court determines that a proposal developed under this subsection is fair and equitable, meets the requirements of this subsection, and is in the public interest, it shall issue such orders as may be necessary to carry out such proposal. The provisions of paragraphs (2)-(6) of subsection (d) of this section shall apply to the determination of the special court under this subsection, except that the standards for such determination shall be those set forth in this paragraph. Agreement. "(4) In complying with the requirements of subsection (dX7) of this section with respect to the application of the provisions of title V of 45 u s e 771. this Act to supplemental transactions, the parties to an expedited supplemental transaction under this subsection and the representa- tives of the employees affected thereby shall enter into a new 45 u s e 778. agreement pursuant to section 508 of this Act and shall not be bound by the terms of any agreement executed under such section 508 and Ante, p. 1895. in effect on the date of enactment of the Staggers Rail Act of 1980.". (b) Section 102(19) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 702(19)) is amended by striking out ^, within 6 years after the date on which the special court orders conveyances of rail properties to the Corporation".
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1959 TITLE VII—MISCELLANEOUS PROVISIONS ROCK ISLAND AND MILWAUKEE RAILROADS AMENDMENTS SEC. 701. (a)(l} The Rock Island Railroad Transition and Employee 45 USC lOOi Assistance Act (45 U.S.C. 1001 et seq.) is amended by redesignating ^°^- section 124 as section 125 and by inserting immediately after section ^"^e. P 409. 123 the following new section: "JUDICIAL REVIEW "SEC. 124. (a) Notwithstanding any other provision of law, any 45 use 1018. appeal from— "(1) any decision of the bankruptcy court with respect to the constitutionality of any provision of this Act; and "(2) any decision of the court having jurisdiction over the reorganization of the Milwaukee Railroad with respect to the constitutionality of the Milwaukee Railroad Restructuring Act (45 U.S.C. 901 et seq.), shall be taken to the United States Court of Appeals for the Seventh Circuit. "(b) If appeals are taken from decisions described in subsection (a) of this section involving section 106 or 110 of this title or section 9 or Ante, pp. 40i, 15 of the Milwaukee Railroad Restructuring Act, the court of appeals 45^usc 908 914 shall determine such appeals in a consolidated proceeding, sitting en banc, and shall render a final decision no later than 60 days after the date the last such appeal is filed. "(c) Nothing in this Act or in the Milwaukee Railroad Restructur- ing Act (45 U.S.C. 901 et seq.) shall limit the right of any person to commence an action in the United States Court of Claims under section 1491 of title 28, United States Code (commonly referred to as the Tucker Act).". (2) Section 110(e) of the Rock Island Railroad Transition and Employee Assistance Act (45 U.S.C. 1008(e)) is amended by inserting Ante, p. 403. "to employees" immediately after "liability". (3) Section 15(e) of the Milwaukee Railroad Restructuring Act (45 U.S.C. 914(E)) is amended by inserting "to employees" immediately after "liability". 0))(1) Section 106 of the Rock Island Railroad Transition and Employee Assistance Act (45 U.S.C. 1005) is amended to read as Ante, p. 401. follows: "EMPLOYEE PROTECTION AGREEMENTS "SEC. 106. (a) No later than 5 days after the date of enactment of the Staggers Rail Act of 1980, in order to avoid disruption of rail service Ante, p. 1895. and undue displacement of employees, the Rock Island Railroad and labor organizations representing the employees of such railroad with the assistance of the National Mediation Board, may enter into an agreement providing protection for employees of such railroad who are adversely affected as a result of a reduction in service by such railroad. Such employee protection may include, but need not be limited to, employee relocation incentive compensation, moving expenses, and separation allowances. "(b) If the Rock Island Railroad and the labor organizations representing the employees of such railroad are unable to enter into an employee protection agreement under subsection (a) of this section within 5 days after the date of enactment of the Staggers Rail Act of
94 STAT. 1960 PUBLIC LAW 96-448—OCT. 14, 1980 1980, the matter shall be immediately submitted to the Commission. The Commission shall impose upon the parties by appropriate order a fair and equitable arrangement with respect to employee protection no later than 15 days after the date of enactment of the Staggers Rail Ante, p. 1895. Act of 1980, unless the Rock Island Railroad, and the authorized representatives of its employees have by then entered into a labor "Fair and protection agreement. For purposes of this subsection, the term 'fair equitable." and equitable' means no less protective of the interests of employees than protection established by and pursuant to section 9 of the Milwaukee Railroad Restructuring Act (45 U.S.C. 908), subject to the Ante, p. 403. limitations set forth in section 110 of this title. "(c) If an employee protection arrangement is imposed by the Commission under subsection (b) of this section, the bankruptcy court shall immediately authorize and direct the Rock Island Railroad trustee to, and the Rock Island Railroad trustee and the labor organizations representing the employees of the railroad shall, imme- diately implement such arrangement. "(d) Any order of the Commission under subsection (b) of this section and any order of the bankruptcy court under subsection (c) of this section may be appealed only to the United States Court of Appeals for the Seventh Circuit. Any such appeal to such court of appeals shall be filed within 5 days after the date of entry of the order of the Commission or the bankruptcy court, as the case may be, and such court of appeals shall finally determine such appeal within 60 days after the date such appeal is filed. Employee "(e)(1) Any claim of an employee for benefits and allowances under benefits and an employee protection agreement or arrangement entered into allowances. under this section shall be filed with the Board in such time and manner as the Board by regulation shall prescribe. The Board shall determine the amount for which such employee is eligible under such agreement or arrangement and shall certify such amount to the Rock Island Railroad for pajrment. "(2) Benefits and allowances under such agreement or arrange- ment entered into this section shall be paid by the Rock Island Railroad from its own assets or in accordance with section 110 of this title, and claims of employees for such benefits and allowances shall be treated as administrative expenses of the estate of the Rock Island Railroad. "(f) The first sentence of section 7(bX'7) of the Railroad Retirement Act of 1974 (45 U.S.C. 231f[b)(7)) is amended by striking out "Milwau- kee Railroad Restructuring Act" and inserting in lieu thereof ", the Milwaukee Railroad Restructuring Act, and the Rock Island Railroad Transition and Employee Assistance Act.". (2) Section 108(a) of the Rock Island Railroad Transition and Ante, p. 402. Employee Assistance Act (45 U.S.C. 1007(a)) is amended by inserting immediately before the period at the end thereof the following: "(other than as provided in the agreement entered into in Washing- ton, District of Columbia, on March 4,1980, entitled 'Labor Protective Agreement Between Railroads Parties Hereto Involved in Midwest Rail Restructuring and Employees of Such Railroads Represented by the Rail Labor Organizations Operating Through the Railway Labor Executives' Association')". (3) Section 103(5) of the Rock Island Railroad Transition and Ante, p. 399. Employee Assistance Act (45 U.S.C. 1002(5)) is amended by inserting immediately before the period at the end thereof the following: ", the estate of such Company in its reorganization proceeding, or the trustee appointed in such proceeding".
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1961 (c)(1) Section 7 of the Milwaukee Railroad Restructuring Act (45 U.S.C. 906) is amended by adding at the end thereof the following new subsection: "(h)(1) All obligations to the United States or any agency or instrumentality of the United States incurred pursuant to this section by the Milwaukee Railroad or the trustee of the property of the Milwaukee Railroad shall be waived and canceled when— "(A) the Milwaukee Railroad is reorganized as an operating rail carrier; or "(B) substantially all of the Milwaukee Railroad is purchased. "(2) For purposes of this subsection, substantially all of the Milwau- kee Railroad shall be considered as having been purchased when (A) more than 50 percent of the rail system operated by the Milwaukee Railroad on the date of enactment of the Staggers Rail Act of 1980 has ^«^e, p. 1895. been purchased, and (B) more than 50 percent of the employees employed by the Milwaukee Railroad on such date of enactment have obtained employment with other rail carriers.". (2) Section 14 of the Milwaukee Railroad Restructuring Act (45 U.S.C. 913) is amended by redesignating subsection (d) as subsection (e) and by inserting after subsection (c) the following new subsection: "(d) There are authorized to be appropriated $15,000,000 for pur- Appropriation poses of providing transaction assistance in accordance with section authorization. 505(h)(1) (A) and (B) of the Railroad Revitalization and Regulatory Reform Act of 1976.". Ante, p. 404. (d) Section 505(h) of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825(h)) is amended— (1) in paragraph dXA), by striking out "$25,000,000" and inserting in lieu thereof "$38,000,000"; (2) in paragraph (IXB), by striking out "$18,000,000" and inserting in lieu thereof "$27,000,000"; and (3) by amending paragraph (4) to read as follows: "(4) This subsection shall apply to (A) purchase offers submitted to the Trustee of the Rock Island Railroad Estate and filed with the Commission prior to September 15, 1980 (or such other time as the Secretary considers appropriate), and (B) purchase applications filed with the Commission prior to September 15,1980 (or such other time as the Secretary considers appropriate) and approved by the court having jurisdiction over the reorganization of the Rock Island Rail- road or the Milwaukee Railroad, as the case may be, and by the Commission.". LOAN GUARANTEES SEC. 702. (a) To promote competition in the transportation of coal, Powder River the Secretary of Transportation shall, no later than 75 days after the Coal Region, Mont, and Wyo. date of the issuance of the final environmental impact statement 45 u s e 831 note. with respect to the loan application, take final action on any applica- tion for loan guarantees, under section 511 of the Railroad Revitaliza- tion and Regulatory Reform Act of 1976, to be used in connection with 45 u s e 831. joint ownership, construction, or rehabilitation of any facilities (including support facilities) for a second rail carrier to serve the Powder River (5oal Region in Montana and Wyoming. (b)(1) The Secretary of Transportation shall review the proposed ehicago and Chicago and North Western connector line route and shall not Northwestern connector line approve any route which requires the use of any agricultural land route, review. unless (A) there is no feasible and prudent alternative to the use of such land, and (B) the proposed route construction plan requires all possible planning to minimize harm to such agricultural land result-
94 STAT. 1962 PUBLIC LAW 96-448—OCT. 14, 1980 ing from such use. The Secretary of Transportation may not other- wise disapprove a proposed route for the Chicago and North Western line under the authority of this subsection. This review of a proposed route shall be conducted within 90 days sifter the final action specified in subsection (a) of this section. Private grade (2)(A) The Secretary shall review the use of any agricultural land crossings. used in any route for newly constructed line and shall require, to the maximum extent prudent and feasible, that such railroad provide a private grade crossing for the convenience of each landowner whose agricultural holdings are divided by such newly constructed line when the Secretary finds that such division of property will cause a substantial disruption to the agricultural use of such land. The owners of such property shall file a request for such grade crossing with the Secretarj?^ within 180 days of the final determination of the route. The finding of the Secretary under this subsection shall be final. (B) The Secretary shall render a decision on each request for grade crossing under this paragraph within 180 days of its receipt. Such review shall not require the delay of construction of new line under subsection (a) of this section. Claims and (c)(1) Notwithstanding any other provision of law, the actions of judicial review, ^j^g Secretary of Transportation taken pursuant to subsections (a) and 0^) of this section shall not be subject to judicial review except as provided in this section. (2) A claim alleging the invalidity of this section may be brought no later than the 60th day following the date a final action is taken pursuant to subsections (a) and (b) of this section. (3) A claim challenging an action of the Secretary of Transporta- tion under subsection (a) or (b) of this section may be brought only on use prec. title 1. the grounds that such action will deny rights under the Constitution of the United States, is arbitrary, capricious, or an abuse of discre- tion, exceeds statutory jurisdiction, authority, or limitations, or is short of statutory right. Such a claim may be brought not later than the 60th day following the date of such action. (4) A claim under paragraph (2) or (3) shall be barred unless prior to the expiration of such time limits, a complaint is filed in the United States Court of Appeals for the District of Columbia acting as a special court. Such court shall have exclusive jurisdiction to deter- mine such proceeding in accordance with the procedures hereinafter provided, and no other court of the United States, of any State, territory, or possession of the United States, or of the District of Columbia, shall have jurisdiction of any such claim in any proceeding instituted prior to or on or after the date of enactment of this Act. Hearing. (5) Any such proceeding shall be assigned for hearing and completed at the earliest possible date, and to the greatest extent practical shall take precedence over all other matters pending on the docket of the court at that time, and shall be expedited in every way by such court, and such court shall render its decision relative to any claim within 90 days from the date such claim is brought unless such court determines that a longer period is required to satisfy require- ments of the Constitution of the United States. (d) Notwithstanding any other provision of law, the Secretary shall take the final action described in subsection (a) of this section without regard to the consent, or lack thereof, of any Committee of the Congress. CONRAIL STUDIES AND EMERGENCY FUNDING Definitions. SEC. 703. (a) For purposes of this section, the term- 45 u s e 747 note.
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1963 (1) "Association" means the United States Railway Associ- ation; (2) "Commission" means the Interstate Commerce Commis- sion; (3) "Corporation" means the ConsoHdated Rail Corporation; (4) "rail properties" means assets or rights owned, leased, or otherwise controlled by the Corporation which are used or useful in rail transportation service; (5) "region" has the meaning given such term in section 101(15) of the Regional Rail Reorganization Act of 1973; and 45 use 702. (6) "Secretary" means the Secretary of Transportation. ObXD No later than April 1,1980, the Association and the Corpora- Report to tion shall each submit a report to the Congress analyzing the impact, Congress. upon the Corporation, rail service in the region, railroad employees, the economy of the region, and other rail carriers in the region and elsewhere, and the Federal budget, of— (A) no further Federal funding for the Corporation; (B) continued Federal funding of the rail system of the Corpo- ration as it is presently structured; and (C) future Federal funding of the Corporation to the extent necessary to preserve rail service in the region which can be self- supporting, without undue interim disruption of operations which will be maintained. (2) Each report submitted under paragraph (1) of this subsection shall contain a description, under each of the Federal funding alternatives set forth in subsection (a) of this section, of the lines of the Corporation which would be maintained, the lines of the Corpora- tion which would be abandoned, and the lines which would be transferred. (3) Each report submitted under paragraph (1) of this subsection shall also include specific recommendations with respect to— (A) future projected funding requirements of the Corporation; (B) future structure and activities of the Corporation in the region; (C) any legislative action needed with respect to the matters described in subparagraphs (A) and (B) of this paragraph; and (D) any other matters which the Association or the Corpora- tion considers appropriate. The specific recommendations submitted under this paragraph shall set forth alternatives for the Congress to consider in the event it determines that modification of such recommendations is appropriate. (4) In developing recommendations in accordance with this subsec- tion, the Association and the Corporation shall identify measures designed to ensure a financially self-sustaining rail system in the region. The recommendations shall be based on analyses of rail properties which might be proposed for abandonment or transfer to another railroad or qualified person and proposed operating efficien- cies which could improve the Corporation's revenue-to-cost ratio. (5) In developing recommendations under this subsection, the Association and the Corporation shall each analyze and consider— (A) projections of the Corporation's future traffic, revenues, operating costs, and capital requirements; (B) rail properties which might be proposed for abandonment or transfer to another railroad or qualified person, taking into account the potential impact of changes in the regulatory environment;
94 STAT. 1964 PUBLIC LAW 96-448—OCT. 14, 1980 (C) the impact on communities served by lines proposed for abandonment or transfer; (D) proposed operating efficiencies which could improve the Corporation's revenue-to-cost ratio; (E) the impact on the Corporation of proposed mergers by connecting or competing railroads; (F) employee motivation and labor productivity programs and a projection of labor protection costs which could result from the recommendations; (G) the future capital structure of the Corporation; and (H) any other factors identified by the Association as relevant to the recommendations required to be developed and submitted pursuant to this section. (6)(A) The Association and the Corporation shall, on the date of submission of their recommendations to the Congress under this subsection, transmit copies of such recommendations to the Secre- tary, the Commission, and the Governor of each State that could be affected by such recommendations. Upon request, the Association and the Corporation shall furnish a copy of their recommendations to any interested person. Publication in (B) As soon as practicable after submission of their recommenda- Federal tions to the Congress, the Association and the Corporation shall Register. publish in the Federal Register a summary of such recommendations and invite interested parties to comment on such recommendations. Comments, (7) The Commission shall, no later than May 1,1981, submit to the submittal to Congress its comments on the reports of the Association, the Secre- Congress. Recommenda- tary, and the Corporation under this subsection. tions, submittal (8) Not later than April 1, 1981, the Secretary shall submit to the to Congress. Congress his recommendations with respect to the future structure and operations of the Corporation. Not later than May 1, 1981, the Secretary shall submit to the Congress his comments and recommen- dations with respect to the reports of the Association and the Corporation under this subsection, and shall msike any changes in his recommendations that he determines are necessary. (9) The antitrust laws, as defined in section 601(a)(3) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 791(a)(3)), shall not apply to any action taken by the Association or the Secretary prior to May 1,1981, in accordance with and under the authority of the provisions of this subsection. Analysis, (c) The Corporation shall, no later than March 15, 1981, submit to submittal to the Congress an analysis of the effects upon the Corporation and its Congress. employees of alternative changes in labor agreements and related operational changes. Such report shall include an analysis of any Federal funding that will be required. (d) The Corporation shall, no later than January 15,1981, submit to the Association its projections of the benefits to the Corporation of Ante, p. 1895. the Staggers Rail Act of 1980, its projections of changes needed in the structure of the rail system of the Corporation including properties which may be abandoned or transferred, and other projections of potential savings or increased revenues to the Corporation. (e) Section 216(b) of the Regional Rail Reorganization Act of 1973 Ante, p. 1946. (45 U.S.C. 726(b)), as amended by this Act, is further amended by adding at the end thereof the following new paragraph: "(4) Purchases of up to $329,000,000 of a series A preferred stock shall be made by the Association, subject to the availability of appropriations, as required and requested by the Corporation, if the Finance Committee makes an affirmative finding that the Corpora- tion has taken appropriate action to eliminate losses on light density
PUBLIC LAW 96-448—OCT. 14, 1980 94 STAT. 1965 lines and other lines which are unprofitable. Such action shall include the imposition of surcharges on such lines, the abandonment of such lines, and the transfer of such lines.". (f)(1) Section 216(a) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 726(a)) is amended by striking out "$2,300,000,000" and inserting in lieu thereof "$2,629,000,000". (2) Section 216(g) of such Act (45 U.S.C. 726(g)) is amended by striking out "$8,300,000,000" and inserting in lieu thereof "$3,629,000,000". (3) Section 210(e) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 720(e)) is amended by inserting immediately after "section" in the first sentence thereof the following: "or under subsection (a) of section 306 of this Act". USRA AUTHORIZATION OF APPROPRIATIONS SEC. 704. Section 214(c) of the Regional Rail Reorganization Act of 1973 (45 U.S.C. 724(c)) is amended to read as follows: "(c) ASSOCIATION.—For the fiscal year ending September 30, 1981, there are authorized to be appropriated to the Association for purposes of carrying out its administrative expenses under this Act such sums as are necessary, not to exceed $30,000,000. Sums appropri- ated under this subsection are authorized to remain available until expended.". FEEDER LINE REHABILITATION STUDY SEC. 705. (a) The Secretary of Transportation and the Secretary of Report to the Treasury shall jointly submit to the Congress, within 9 months of Congress. the effective date of this Act, a comprehensive report on the antici- pated effect (including the loss of revenue to the Federal Treasury) of amending section 103 of the Internal Revenue Code of 1954 to provide 26 USC 103. an exemption from taxation for obligations incurred in connection with the rehabilitation of railroad feeder lines. Such report shall also include such criteria as may be necessary to prevent the abuse of such special tax status. (b) For purposes of this section, railroad feeder line rehabilitation includes the acquisition, construction, reconstruction, or erection of any feeder line roadbed, track, trestle, depot, switching, and signaling equipment, or any other rail equipment (other than rolling stock). EFFECT ON PENDING MATTERS SEC. 706. In the case of any proposal docketed with a rate bureau 49 USC 10706 prior to the effective date of this Act which is or becomes the subject note. of an application or proceeding before the Interstate Commerce Commission, such application or proceeding shall be determined as if this Act had not been enacted, and the antitrust immunity provided in section 10706(b) of title 49, United States Code, resulting from approval of such agreement shall continue in effect. CONSTRUCTION OF AMENDMENTS SEC. 707. With respect to the relationship between water carriers 49 USC 10706 and rail carriers, none of the amendments made by this Act shall be note. construed to make lawful (1) any competitive practice that is unfair, destructive, predatory, or otherwise undermines competition and that was unlawful on the effective date of this Act, or (2) any other
94 STAT. 1966 PUBLIC LAW 96-448—OCT. 14, 1980 competitive practice that is unfair, destructive, predatory, or other- wise undermines competition. SURPLUS PROPERTY Consolidated SEC. 708. Notwithstanding any other provision of law, the Consoli- Rail Corporation, dated Rail Corporation shdl be considered a Federal agency for the contract sole purpose of Department of the Army Regulations 735-5, para- authority. graph 1-16. Such Corporation may enter into a contract under the authori^ granted by this section only when it determines that the safely ofthe public so requires. STUDY OF ALASKA RAILROAD RATES SEC. 709. Within 6 months after the effective date of this Act, the Interstate Commerce Ck)mmission shall commence and complete a study to determine whether the rates charged by the Alaska Railroad pursuant to ICC-ARR Freight Tariffs 4108 and 4109 (as supple- mented by supplements 1-4) would, if such rates had been entered into after the effective date of this Act, have constituted a violation of Ante, p. 1898. section 10701a(cXl) of title 49, United States Code, as amended by this Act. To the extent feasible, such study shall be coordinated with the study by the State of Alaska in progress on the effective date of this Act. EFFECTIVE DATES 49 u s e 10101 SEC. 710. (a) Except as provided in subsections (b), (c), and (d) of this note. section, the provisions of this Act and the amendments made by this Act shall take effect on October 1,1980. (b) Section 206 of this Act shall take effect on January 1, 1981. (c) Section 218(b) of this Act shall take effect on October 1,1983. (d) Section 701 of this Act shall take effect on the date of enactment of this Act. Approved October 14, 1980. LEGISLATIVE HISTORY: HOUSE REPORTS: No. 96-1035 accompanying H.R. 7235 (Comm. on Interstate and Foreign Commerce) and No. 96-1430 (Comm. of Conference). SENATE REPORT No. 96-470 (Comm. on Commerce, Science, and Transportation). CONGRESSIONAL RECORD, Vol. 126 (1980): Apr. 1, considered and passed Senate. Apr. 3, Senate considered and agreed to an amendment. June 25, 26, 30, July 2, 24, Sept. 5, 9, H.R. 7235 considered and passed House; passage vacated and S. 1946, amended, passed in lieu. Sept. 18, Senate agreed to House amendment with amendments. Sept. 30, House and Senate agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 16, No. 42: Oct. 14, Presidential statement.