[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4961 Introduced in Senate (IS)]
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116th CONGRESS
2d Session
S. 4961
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
December 3, 2020
Ms. Baldwin 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 2020''.
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 from the unreasonable exercise of market
power;''.
(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 2 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 2 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
the Rail Shipper Fairness Act of 2020, 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 and 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 1
year.''.
(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
from increasing 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(d)(1)(B) of such title is
amended by adding at the end the following ``A shipper may introduce
movement-specific Uniform Rail Costing System cost calculations.''.
SEC. 5. PROTECTIONS FROM UNREASONABLE PRACTICES.
Section 10701 of title 49, United States Code, as amended by
section 4(a), is further 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. REPLACEMENT OF REVENUE ADEQUACY TEST.
Section 10704(a)(3) of title 49, United States Code, is amended to
read as follows:
``(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.''.
SEC. 7. GAO STUDY ON CHANGES IN FREIGHT RAILROAD OPERATING AND
SCHEDULING PRACTICES.
(a) Study.--The Comptroller General of the United States shall
conduct a study of the impact on freight rail shippers, Amtrak,
commuter railroads, railroad employees, and other affected parties of
changes in freight railroad operating and scheduling practices as a
result of the implementation of the precision scheduled railroading
model.
(b) Contents.--The study conducted pursuant to subsection (a) shall
examine--
(1) the impacts of the precision scheduled railroading
model on the operation of longer trains;
(2) the safety impacts of the reduction in workforce,
including occupational injury rates, impacts to inspection
frequencies and repair quality, and changes in workforce
demands;
(3) the elimination or downsizing of yards, repair
facilities, and other operational facilities;
(4) increases in demurrage or accessorial charges or other
costs to shippers;
(5) capital expenditures for rail infrastructure; and
(6) the effect of changes to dispatching practices and
locations of dispatching centers on--
(A) the on-time performance of passenger trains;
and
(B) the quality and reliability of service to
freight shippers.
(c) Report.--Not later than 1 year after the date of the enactment
of this Act, the Comptroller General of the United States shall submit
a report to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Transportation and Infrastructure of
the House of Representatives summarizing the results of the study
conducted pursuant subsection (a), including recommendations for
addressing any negative impacts of precision scheduled railroading on
freight shippers or passenger railroads.
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