49 U.S.C. § 10707 — Determination of market dominance in

Page 427 TITLE 49—TRANSPORTATION § 10707 ber 1, 1980, with respect to the obligation of rail carriers to utilize rolling stock owned or leased by shippers. (b) The Board may require an organization es- tablished or continued under an agreement ap- proved under this section to maintain records and submit reports. The Board may inspect a record maintained under this section. (c) The Board may review an agreement ap- proved under subsection (a) of this section and shall change the conditions of approval or ter- minate it when necessary to comply with the public interest and subsection (a). The Board shall postpone the effective date of a change of an agreement under this subsection for what- ever period it determines to be reasonably nec- essary to avoid unreasonable hardship. (d) The Board may begin a proceeding under this section on its own initiative or on applica- tion. Action of the Board under this section— (1) approving an agreement; (2) denying, ending, or changing approval; (3) prescribing the conditions on which ap- proval is granted; or (4) changing those conditions, has effect only as related to application of the antitrust laws referred to in subsection (a) of this section. (e)(1) The Federal Trade Commission, in con- sultation with the Antitrust Division of the De- partment of Justice, shall prepare periodically an assessment of, and shall report to the Board on— (A) possible anticompetitive features of— (i) agreements approved or submitted for approval under subsection (a) of this section; and (ii) an organization operating under those agreements; and (B) possible ways to alleviate or end an anti- competitive feature, effect, or aspect in a manner that will further the goals of this part and of the transportation policy of section 10101 of this title. (2) Reports received by the Board under this subsection shall be published and made available to the public under section 552(a) of title 5. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 812; amended Pub. L. 104–287, § 5(24), Oct. 11, 1996, 110 Stat. 3390.) Editorial Notes REFERENCES IN TEXT The Sherman Act, referred to in subsec. (a)(2)(A), (4), is act July 2, 1890, ch. 647, 26 Stat. 209, which is classi- fied to sections 1 to 7 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables. The Clayton Act, referred to in subsec. (a)(2)(A), (4), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, which is classi- fied generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15 and sections 52 and 53 of Title 29, Labor. For further details and complete classification of this Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables. The Federal Trade Commission Act, referred to in subsec. (a)(2)(A), (4), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15. For complete clas- sification of this Act to the Code, see section 58 of Title 15 and Tables. Sections 73 and 74 of the Wilson Tariff Act, referred to in subsec. (a)(2)(A), (4), are sections 73 and 74 of act Aug. 27, 1894, ch. 349, 28 Stat. 570, which enacted sec- tions 8 and 9, respectively, of Title 15. Act of June 19, 1936, referred to in subsec. (a)(2)(A), (4), is act June 19, 1936, ch. 592, 49 Stat. 1526, popularly known as the Robinson-Patman Anti-discrimination Act and also as the Robinson-Patman Price Discrimi- nation Act, which enacted sections 13a, 13b, and 21a of Title 15 and amended section 13 of Title 15. For com- plete classification of this Act to the Code, see Short Title note set out under section 13 of Title 15 and Ta- bles. PRIOR PROVISIONS A prior section 10706, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1377; Pub. L. 96–258, § 1(7), June 3, 1980, 94 Stat. 426; Pub. L. 96–296, § 14(a), (c), (d), July 1, 1980, 94 Stat. 803, 808; Pub. L. 96–448, title II, § 219(a)–(e), 224(b), Oct. 14, 1980, 94 Stat. 1926–1929; Pub. L. 97–261, § 10(a)–(d), Sept. 20, 1982, 96 Stat. 1109, 1110; Pub. L. 98–216, § 2(12), Feb. 14, 1984, 98 Stat. 5; Pub. L. 99–521, § 7(c), Oct. 22, 1986, 100 Stat. 2995, related to exemption from antitrust laws of rate agreements, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). See sections 10706 and 13703 of this title. AMENDMENTS 1996—Subsec. (a)(5)(C). Pub. L. 104–287 substituted ‘‘October 1, 1980,’’ for ‘‘the effective date of the Stag- gers Rail Act of 1980’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10707. Determination of market dominance in rail rate proceedings (a) In this section, ‘‘market dominance’’ means an absence of effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies. (b) When a rate for transportation by a rail carrier providing transportation subject to the jurisdiction of the Board under this part is chal- lenged as being unreasonably high, the Board shall determine whether the rail carrier pro- posing the rate has market dominance over the transportation to which the rate applies. The Board may make that determination on its own initiative or on complaint. A finding by the Board that the rail carrier does not have market dominance is determinative in a proceeding under this part related to that rate or transpor- tation unless changed or set aside by the Board or set aside by a court of competent jurisdic- tion. (c) When the Board finds in any proceeding that a rail carrier proposing or defending a rate for transportation has market dominance over the transportation to which the rate applies, it may then determine that rate to be unreason- able if it exceeds a reasonable maximum for that transportation. However, a finding of market dominance does not establish a presumption that the proposed rate exceeds a reasonable maximum. (d)(1)(A) In making a determination under this section, the Board shall find that the rail carrier Page 428 TITLE 49—TRANSPORTATION § 10708 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-vari- able cost percentage for such transportation that is less than 180 percent. (B) For purposes of this section, variable costs for a rail carrier shall be determined only by using such carrier’s unadjusted costs, calculated using the Uniform Rail Costing System cost finding methodology (or an alternative method- ology adopted by the Board in lieu thereof) and indexed quarterly to account for current wage and price levels in the region in which the car- rier operates, with adjustments specified by the Board. A rail carrier may meet its burden of proof under this subsection by establishing its variable costs in accordance with this para- graph, but a shipper may rebut that showing by evidence of such type, and in accordance with such burden of proof, as the Board shall pre- scribe. (2) A finding by the Board that a rate charged by a rail carrier results in a revenue-variable cost percentage for the transportation to which the rate applies that is equal to or greater than 180 percent does not establish a presumption that— (A) such rail carrier has or does not have market dominance over such transportation; or (B) the proposed rate exceeds or does not ex- ceed a reasonable maximum. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 815.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10709 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Prior sections 10707 and 10707a were omitted in the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Section 10707, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1380; Pub. L. 96–448, title II, § 207, Oct. 14, 1980, 94 Stat. 1907; Pub. L. 103–272, § 4(j)(21), July 5, 1994, 108 Stat. 1369, related to investigation and suspension of new rail car- rier rates, classifications, rules, and practices. Section 10707a, added Pub. L. 96–448, title II, § 203(a), Oct. 14, 1980, 94 Stat. 1901; amended Pub. L. 103–272, § 4(j)(22), July 5, 1994, 108 Stat. 1369, related to zone of rail carrier flexibility. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10708. Rail cost adjustment factor (a) The Board shall, as often as practicable, but in no event less often than quarterly, pub- lish a rail cost adjustment factor which shall be a fraction, the numerator of which is the latest published Index of Railroad Costs (which index shall be compiled or verified by the Board, with appropriate adjustments to reflect the change in composition of railroad costs, including the quality and mix of material and labor) and the denominator of which is the same index for the fourth quarter of every fifth year, beginning with the fourth quarter of 1992. (b) The rail cost adjustment factor published by the Board under subsection (a) of this section shall take into account changes in railroad pro- ductivity. The Board shall also publish a similar index that does not take into account changes in railroad productivity. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 816.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10712 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). A prior section 10708, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1382; Pub. L. 96–296, § 11, July 1, 1980, 94 Stat. 801; Pub. L. 97–261, §§ 11, 12(a), Sept. 20, 1982, 96 Stat. 1112, 1113; Pub. L. 99–521, § 7(d), Oct. 22, 1986, 100 Stat. 2995, re- lated to investigation and suspension of new nonrail carrier rates, classifications, rules, and practices, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10709. Contracts (a) One or more rail carriers providing trans- portation subject to the jurisdiction of the Board under this part may enter into a contract with one or more purchasers of rail services to provide specified services under specified rates and conditions. (b) A party to a contract entered into under this section shall have no duty in connection with services provided under such contract other than those duties specified by the terms of the contract. (c)(1) A contract that is authorized by this sec- tion, and transportation under such contract, shall not be subject to this part, and may not be subsequently challenged before the Board or in any court on the grounds that such contract vio- lates a provision of this part. (2) The exclusive remedy for any alleged breach of a contract entered into under this sec- tion shall be an action in an appropriate State court or United States district court, unless the parties otherwise agree. This section does not confer original jurisdiction on the district courts of the United States based on section 1331 or 1337 of title 28, United States Code. (d)(1) A summary of each contract for the transportation of agricultural products (includ- ing grain, as defined in section 3 of the United States Grain Standards Act (7 U.S.C. 75) and products thereof) entered into under this section shall be filed with the Board, containing such nonconfidential information as the Board pre- scribes. The Board shall publish special rules for such contracts in order to ensure that the essen- tial terms of the contract are available to the general public. (2) Documents, papers, and records (and any copies thereof) relating to a contract described