[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1233 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 1233

  To improve the efficiency and reliability of rail transportation by 
  reforming the Surface Transportation Board, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 25, 2017

  Ms. Baldwin (for herself and Mr. Franken) introduced the following 
 bill; which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
  To improve the efficiency and reliability of rail transportation by 
  reforming the Surface Transportation Board, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Rail Shipper Fairness Act of 2017''.

SEC. 2. IMPROVING RAIL SERVICE.

    (a) Common Carrier Obligations.--Section 11101(a) of title 49, 
United States Code, is amended by inserting ``, as necessary for the 
efficient and reliable transportation based on the shipper's reasonable 
service requirements,'' after ``the transportation or service''.
    (b) Emergency Service Orders.--Section 11123(b) of such title is 
amended by adding at the end the following:
    ``(4) The Board may issue emergency service orders that include 
shipments moving under contract if such shipments are part of a 
regional service order issued in accordance with this section.''.
    (c) Reports.--Section 11145(a) of such title is amended--
            (1) in paragraph (1), by striking ``and'' at the end;
            (2) by redesignating paragraph (2) as paragraph (3); and
            (3) by inserting after paragraph (1) the following:
            ``(2) reports, service plans, or other documents that cover 
        shipments moving under contract if such shipments are part of a 
        general report, service plan, or other document that generally 
        covers the geographic area or commodity; and''.
    (d) Equitable Relief; Damages.--Section 11704 of such title is 
amended--
            (1) in subsection (a), by inserting ``or subjected to 
        inadequate or deficient service'' after ``injured'';
            (2) by amending subsection (b) to read as follows:
    ``(b) A rail carrier providing transportation subject to the 
jurisdiction of the Board under this part is liable--
            ``(1) for damages sustained by a person as a result of an 
        act or omission of that carrier in violation of this part;
            ``(2) to a person for amounts charged to that person that 
        exceed the applicable rate for the transportation; and
            ``(3) to a person for damages or equitable relief as a 
        result of inadequate or deficient service in violation of this 
        part.''; and
            (3) in subsection (c), by adding at the end the following:
    ``(3) The Board may order a rail carrier to pay damages or to 
provide equitable relief, as appropriate, to a person subjected to 
inadequate or deficient service as a result of a violation of this part 
by that carrier.''.
    (e) Civil Penalties.--Section 11901 of such title is amended--
            (1) in subsection (a), by striking ``$5,000'' and inserting 
        ``$25,000'';
            (2) in subsection (c), by striking ``$5,000'' and inserting 
        ``$25,000''; and
            (3) in subsection (e), by striking ``$100'' each place such 
        term appears and inserting ``$1,000''.

SEC. 3. IMPROVING RAIL COMPETITION.

    (a) Rail Transportation Policy.--Section 10101 of title 49, United 
States Code, is amended--
            (1) by redesignating paragraphs (14) and (15) as paragraphs 
        (15) and (16), respectively; and
            (2) by inserting after paragraph (13) the following:
            ``(14) to provide for and promote the protection of the 
        shipping public;''.
    (b) Rates.--Section 10705 of such title is amended by adding at the 
end the following:
    ``(d) Shippers may obtain rates to or from any interchange points 
of two or more rail carriers.''.
    (c) Market Dominance.--Section 10707 of such title is amended--
            (1) in subsection (a)--
                    (A) by striking ``In this section, `market 
                dominance' means'' and inserting the following:
    ``(a) In this section:
            ``(1) `effective competition' only includes modes of 
        transportation with existing and supporting infrastructure; and
            ``(2) `market dominance' means''; and
            (2) in subsection (b)--
                    (A) by inserting ``A rail carrier could have market 
                dominance even in circumstances in which a shipper is 
                served by two carriers.'' after ``the rate applies.''; 
                and
                    (B) by striking ``rate or transportation'' and 
                inserting ``rate for transportation''.
    (d) Terminal Facilities.--Section 11102(c) of such title is amended 
to read as follows:
    ``(c)(1) Except as provided in paragraph (2), the Board shall 
require a Class I rail carrier to enter into a competitive switching 
agreement if a shipper or receiver, or a group of shippers or 
receivers, files a petition with the Board that demonstrates, to the 
satisfaction of the Board, that--
            ``(A) the facilities of the shipper or receiver for whom 
        such switching is sought are served by rail only by a single, 
        Class I rail carrier; and
            ``(B) subject to paragraph (3), there is, or can be a 
        working interchange between--
                    ``(i) the Class I rail carrier serving the shipper 
                or receiver for whom such switching is sought; and
                    ``(ii) another rail carrier within a reasonable 
                distance of the facilities of such shipper or receiver.
    ``(2) Competitive switching may not be imposed under this 
subsection if--
            ``(A) either rail carrier between which such switching is 
        to be established demonstrates that the proposed switching is 
        not feasible or is unsafe; or
            ``(B) the presence of reciprocal switching will unduly 
        restrict the ability of a rail carrier to serve its own 
        shippers.
    ``(3) The requirement set forth in paragraph (1)(B) is satisfied if 
each facility of the shipper or receiver for which competitive 
switching is sought is--
            ``(A) within the boundaries of a terminal of the Class I 
        rail carrier; or
            ``(B) within a 100-mile radius of an interchange between 
        the Class I rail carrier and another carrier at which rail cars 
        are regularly switched.''.

SEC. 4. IMPROVING REASONABLE RATE STANDARDS.

    (a) Benchmark-Based Rate Reasonableness Standard.--Section 10701(d) 
of title 49, United States Code, is amended by adding at the end the 
following:
    ``(4)(A) Not later than 90 days after the date of the enactment of 
this paragraph, the Board shall initiate a rulemaking proceeding to 
develop a methodology for determining the reasonableness of challenged 
rail rates based on competitive rate benchmarking that predicts a 
competitive rate level based upon econometric models.
    ``(B) Rather than utilizing its existing Three-Benchmark 
Methodology, the Board shall develop a methodology that considers 
competitive markets or a proxy of such markets.
    ``(C) In determining the reasonableness of a challenged rate under 
the new benchmarking methodology developed under this paragraph, the 
Board shall presume that a rate above the benchmark rate level is 
unreasonable unless the rail carrier proves that the margin above the 
competitive rate benchmark is necessary to allow the rail carrier to 
earn adequate revenues.
    ``(D) Relief under the new benchmarking method shall have no 
monetary limit, but any rate prescription set by the Board shall remain 
in effect not less than 5 years.
    ``(E) The Board's rulemaking under this paragraph shall set a 
standard procedural schedule for such cases, subject to necessary 
adjustments in particular adjudications, which may not exceed 365 
days.''.
    (b) Stand-Alone Cost Cases.--Section 10702 of such title is 
amended--
            (1) by inserting ``(a)'' before ``A rail carrier''; and
            (2) by adding at the end the following:
    ``(b)(1) The Board shall prohibit a rail carrier providing 
transportation subject to the jurisdiction of the Board under this part 
to change the challenged rate for providing such transportation to rail 
customers while a maximum reasonable rate case brought by such rail 
customers is pending before the Board.
    ``(2) A rail customer may file a maximum reasonable rate case with 
the Board after the date that is 2 years before the date on which a 
common carrier shipment rate is anticipated to begin.
    ``(3) The Board may not use cross-subsidy tests in deciding stand-
alone cost cases.
    ``(4) The Board shall use a market-based revenue divisions 
methodology in deciding stand-alone cost cases.
    ``(5) In a stand-alone cost case, if the Board determines that the 
rail carrier is revenue adequate, the rail carrier shall have the 
burden of proof to demonstrate that the railroad carrier is charging a 
reasonable rate.''.
    (c) Conforming Amendment.--Section 10704 of such title is amended--
            (1) by striking subsection (c); and
            (2) by redesignating subsection (d) as subsection (c).
    (d) Market Dominance.--Section 10707 of such title, as amended by 
section 3(c), is further amended--
            (1) in subsection (d)(1)(B), by adding at the end the 
        following ``A shipper may introduce movement-specific Uniform 
        Rail Costing System cost calculations.''; and
            (2) by adding at the end the following:
    ``(e) In making a determination under this section, the Board may 
not utilize a qualitative analysis in which the Board attempts to 
identify any feasible transportation alternatives that could be used by 
the shipper.''.

SEC. 5. PROTECTIONS FROM UNREASONABLE PRACTICES.

    Section 10701 of title 49, United States Code, is amended by adding 
at the end the following:
    ``(e)(1) A rail carrier providing transportation subject to the 
jurisdiction of the Board under this part may not use an index when 
establishing fuel surcharges.
    ``(2) Any fuel surcharges imposed by the rail carrier shall be 
directly accounted for by changes to the carrier's actual fuel prices. 
The carrier's fuel surcharge may not be greater than the amount 
necessary to recover the carrier's incremental fuel cost increases.
    ``(3) The Board is authorized to require any rail carrier to report 
actual fuel prices as necessary to carry out the purposes of this 
subsection.
    ``(4) A shipper may challenge a fuel surcharge as an unreasonable 
practice under section 10702(2) if such charges, as applied to that 
shipper, exceed the carrier's incremental fuel costs.''.

SEC. 6. REVENUE ADEQUACY.

    (a) Elimination of Revenue Adequacy Test.--Section 10704(a) of 
title 49, United States Code, is amended by striking paragraph (3).
    (b) Railroad Cost of Capital.--Section 10704(a) of such title, as 
amended by subsection (a), is further amended by adding at the end the 
following:
    ``(3) In calculating a rail carrier's cost of capital, the Board 
shall multiply the value of the capital by the sum of--
            ``(A) the current annual yield on a 10-year United States 
        Treasury Bond; and
            ``(B) a prospective market risk premium, which shall not 
        exceed 5 percent per year.''.
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