49 U.S.C. § 11123 — Situations requiring immediate action to

Page 445 TITLE 49—TRANSPORTATION § 11123 (3) sanctions for nonobservance. (b) The rate of compensation to be paid for each type of freight car shall be determined by the expense of owning and maintaining that type of freight car, including a fair return on its cost giving consideration to current costs of capital, repairs, materials, parts, and labor. In determining the rate of compensation, the Board shall consider the transportation use of each type of freight car, the national level of ownership of each type of freight car, and other factors that affect the adequacy of the national freight car supply. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 832.) Editorial Notes PRIOR PROVISIONS A prior section 11122, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1421; Pub. L. 96–448, title II, § 224(a), Oct. 14, 1980, 94 Stat. 1929, related to use of and compensation for freight cars, 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. § 11123. Situations requiring immediate action to serve the public (a) When the Board determines that shortage of equipment, congestion of traffic, unauthor- ized cessation of operations, failure of existing commuter rail passenger transportation oper- ations caused by a cessation of service by the National Railroad Passenger Corporation, or other failure of traffic movement exists which creates an emergency situation of such mag- nitude as to have substantial adverse effects on shippers, or on rail service in a region of the United States, or that a rail carrier providing transportation subject to the jurisdiction of the Board under this part cannot transport the traf- fic offered to it in a manner that properly serves the public, the Board may, to promote com- merce and service to the public, for a period not to exceed 30 days— (1) direct the handling, routing, and move- ment of the traffic of a rail carrier and its dis- tribution over its own or other railroad lines; (2) require joint or common use of railroad facilities; (3) prescribe temporary through routes; (4) give directions for— (A) preference or priority in transpor- tation; (B) embargoes; or (C) movement of traffic under permits; or (5) in the case of a failure of existing freight or commuter rail passenger transportation op- erations caused by a cessation of service by the National Railroad Passenger Corporation, direct the continuation of the operations and dispatching, maintenance, and other necessary infrastructure functions related to the oper- ations. (b)(1) Except with respect to proceedings under paragraph (2) of this subsection, the Board may act under this section on its own initiative or on application without regard to subchapter II of chapter 5 of title 5. (2) Rail carriers may establish between them- selves the terms of compensation for operations, and use of facilities and equipment, required under this section. When rail carriers do not agree on the terms of compensation under this section, the Board may establish the terms for them. The Board may act under subsection (a) before conducting a proceeding under this para- graph. (3)(A) Except as provided in subparagraph (B), when a rail carrier is directed under this section to operate the lines of another rail carrier due to that carrier’s cessation of operations, com- pensation for the directed operations shall de- rive only from revenues generated by the di- rected operations. (B) In the case of a failure of existing freight or commuter rail passenger transportation oper- ations caused by a cessation of service by the National Railroad Passenger Corporation, the Board shall provide funding to fully reimburse the directed service provider for its costs associ- ated with the activities directed under sub- section (a), including the payment of increased insurance premiums. The Board shall order com- plete indemnification against any and all claims associated with the provision of service to which the directed rail carrier may be exposed. (c)(1) The Board may extend any action taken under subsection (a) of this section beyond 30 days if the Board finds that a transportation emergency described in subsection (a) continues to exist. Action by the Board under subsection (a) of this section may not remain in effect for more than 240 days beyond the initial 30-day pe- riod. (2) The Board may not take action under this section that would— (A) cause a rail carrier to operate in viola- tion of this part; or (B) impair substantially the ability of a rail carrier to serve its own customers adequately, or to fulfill its common carrier obligations. (3) A rail carrier directed by the Board to take action under this section is not responsible, as a result of that action, for debts of any other rail carrier. (4) In the case of a failure of existing freight or commuter rail passenger transportation oper- ations caused by cessation of service by the Na- tional Railroad Passenger Corporation, the Board may not direct a rail carrier to undertake activities under subsection (a) to continue such operations unless— (A) the Board first affirmatively finds that the rail carrier is operationally capable of con- ducting the directed service in a safe and effi- cient manner; and (B) the funding for such directed service re- quired by subparagraph (B) of subsection (b)(3) is provided in advance in appropriations Acts. (d) In carrying out this section, the Board shall require, to the maximum extent prac- ticable, the use of employees who would nor- mally have performed work in connection with the traffic subject to the action of the Board. Page 446 TITLE 49—TRANSPORTATION § 11124 1 See References in Text note below. (e) For purposes of this section, the National Railroad Passenger Corporation and any entity providing commuter rail passenger transpor- tation shall be considered rail carriers subject to the Board’s jurisdiction. (f) For purposes of this section, the term ‘‘commuter rail passenger transportation’’ has the meaning given that term in section 24102(4).1 (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 833; amended Pub. L. 108–199, div. F, title I, § 150(1), Jan. 23, 2004, 118 Stat. 302.) Editorial Notes REFERENCES IN TEXT Section 24102 of this title, referred to in subsec. (f), was subsequently amended, and section 24102(4) no longer defines ‘‘commuter rail passenger transpor- tation’’. However, such term is defined elsewhere in that section. PRIOR PROVISIONS A prior section 11123, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1422; Pub. L. 96–448, title II, § 226, Oct. 14, 1980, 94 Stat. 1930, related to situations requiring immediate action, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). AMENDMENTS 2004—Subsec. (a). Pub. L. 108–199, § 150(1)(A)(i), in- serted ‘‘failure of existing commuter rail passenger transportation operations caused by a cessation of service by the National Railroad Passenger Corpora- tion,’’ after ‘‘cessation of operations,’’ in introductory provisions. Subsec. (a)(5). Pub. L. 108–199, § 150(1)(A)(ii)–(iv), added par. (5). Subsec. (b)(3). Pub. L. 108–199, § 150(1)(B), designated existing provisions as subpar. (A), substituted ‘‘Except as provided in subparagraph (B), when’’ for ‘‘When’’, and added subpar. (B). Subsec. (c)(4). Pub. L. 108–199, § 150(1)(C), added par. (4). Subsecs. (e), (f). Pub. L. 108–199, § 150(1)(D), added sub- secs. (e) and (f). 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. § 11124. War emergencies; embargoes imposed by carriers (a)(1) When the President, during time of war or threatened war, notifies the Board that it is essential to the defense and security of the United States to give preference or priority to the movement of certain traffic, the Board shall direct that preference or priority be given to that traffic. (2) When the President, during time of war or threatened war, demands that preference and precedence be given to the transportation of troops and material of war over all other traffic, all rail carriers providing transportation subject to the jurisdiction of the Board under this part shall adopt every means within their control to facilitate and expedite the military traffic. (b) An embargo imposed by any such rail car- rier does not apply to shipments consigned to agents of the United States Government for its use. The rail carrier shall deliver those ship- ments as promptly as possible. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 834.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 11128 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Prior sections 11124 to 11128 were omitted in the gen- eral amendment of this subtitle by Pub. L. 104–88, § 102(a). Section 11124, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1422, related to rerouting traffic on failure of rail car- rier to serve the public. Section 11125, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1423; Pub. L. 98–216, § 2(15), Feb. 14, 1984, 98 Stat. 5; Pub. L. 103–272, § 5(m)(28), July 5, 1994, 108 Stat. 1378, related to directed rail transportation. Section 11126, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1424; Pub. L. 103–272, § 5(m)(29), July 5, 1994, 108 Stat. 1378, related to distribution of coal cars. Section 11127, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1424; Pub. L. 99–521, § 9(b)(1), (2), Oct. 22, 1986, 100 Stat. 2997, related to service of household goods freight for- warders. Section 11128, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1425, related to war emergencies and embargoes im- posed by carriers. See section 11124 of this title. 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. SUBCHAPTER III—REPORTS AND RECORDS § 11141. Definitions In this subchapter— (1) the terms ‘‘rail carrier’’ and ‘‘lessor’’ in- clude a receiver or trustee of a rail carrier and lessor, respectively; (2) the term ‘‘lessor’’ means a person owning a railroad that is leased to and operated by a carrier providing transportation subject to the jurisdiction of the Board under this part; and (3) the term ‘‘association’’ means an organi- zation maintained by or in the interest of a group of rail carriers providing transportation or service subject to the jurisdiction of the Board under this part that performs a service, or engages in activities, related to transpor- tation under this part. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 834.) Editorial Notes PRIOR PROVISIONS A prior section 11141, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1425; Pub. L. 99–521, § 9(c), Oct. 22, 1986, 100 Stat. 2997, defined terms for purposes of former sections 11141 to 11145 of this title, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). See sections 11141, 14121, and 15721 of this title. 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.