property between Alaska or Hawaii and the other 48 States.

HISTORICAL AND REVISION NOTES-Continued

A through route and a rate, classification, rule, or practice related to a through route with a water common carrier referred to in this subparagraph is subject to the provisions of this subtitle governing the type of carrier establishing the rate, classification, rule, or practice.

(E) A freight forwarder may enter into contracts with a rail carrier or with a water common carrier providing transportation subject to the Shipping Act, 1916 (46 U.S.C. 801 et seq.) or the Intercoastal Shipping Act, 1933 (46 U.S.C. 843-848). Not later than 180 days after the date of enactment of this subparagraph, the Commission shall promulgate regulations implementing the provisions of this subparagraph.

(b) A carrier providing transportation subject to the jurisdiction of the Commission under subchapter I, II (insofar as motor carriers of property are concerned), or III of chapter 105 of this title that establishes a through route with another carrier under this section shall establish rules for its operation and provide

(1) reasonable facilities for operating the through route; and

(2) reasonable compensation to persons entitled to compensation for services related to the through route.

(Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1372; Pub. L. 96-296, § 22(a), (h), July 1, 1980, 94 Stat. 812, 814; Pub. L. 97-449, § 5(g)(5), Jan. 12, 1983, 96 Stat. 2443.)

Revised Section

10703(a) (1), (2).

10703(a) (3).

HISTORICAL AND REVISION NOTES

Source (U.S. Code)

49:1(4) (1st

sentence related to through routes).

49:905(b) (1st sentence 1st-43d words).

49:316(a) (1st-24th and 45th-59th words).

Source (Statutes at Large)

Feb. 4, 1887, ch. 104, § 1(4) (1st sentence related to through routes and 2d sentence less last cl.), 24 Stat. 379; June 29, 1906, ch. 3591, § 1, 34 Stat. 584; Feb. 28, 1920, ch. 91, § 400, 41 Stat. 474; Aug. 9, 1935, ch. 498, 1, 49 Stat. 543; restated Sept. 18, 1940, ch. 722, § 2(c), 54 Stat. 900. Feb. 4, 1887, ch. 104, 24 Stat. 379, § 305(b) (less 4th sentence); added Sept. 18. 1940, ch. 722, § 201, 54 Stat. 934; Aug. 24, 1962, Pub. L. 87-595, 2, 76 Stat. 398. Feb. 4, 1887, ch. 104, 24 Stat. 379, § 216(a) (1st-24th, 45th-59th words), (c) (less 2d sentence); added Aug. 9, 1935, ch. 498, § 1, 49 Stat. 558; Aug. 24, 1962, Pub. L. 87-595, 1, 76 Stat. 397.

sentence 1st-43d words, 2d, 3d, and 4th sentences).

The section consolidates and restates the source provisions for clarity. In subsection (a), the words "under subchapter I of chapter 105 of this title" are substituted for "subject to this chapter" to conform to the revised title. The words "providing transportation subject to the jurisdiction of the Interstate Commerce Commission" are substituted for "subject to chapter 12" to conform to the revised title. The word "rates" is substituted for "rates, fares, charges" in view of the definition of "rate" in section 10102 of the revised title.

In subsection (b), the words "establish rules for its operation" are substituted for "and to make reasonable rules and regulations with respect to their oper ation" from 49:1(4) for clarity, and the word "reasonable" is omitted in view of section 10701 of the revised title. The words "for services related to the through route" are substituted for "those entitled thereto❞ for clarity.

REFERENCES IN TEXT

The Shipping Act, 1916, referred to in subsec. (a)(4)(E), is act Sept. 7, 1916, ch. 451, 39 Stat. 728, as amended, which is classified principally to chapter 23 (§ 801 et seq.) of Title 46, Shipping. For complete clas sification of this Act to the Code, see section 842 of Title 46 and Tables.

The Intercoastal Shipping Act, 1933, referred to in subsec. (a)(4)(D)(ii), (E), is act Mar. 3, 1933, ch. 199, 47 Stat. 1425, as amended, which is classified generally to chapter 23A (§ 843 et seq.) of Title 46. For complete classification of this Act to the Code, see section 848 of Title 46 and Tables.

The date of enactment of this subparagraph, referred to in subsec. (a)(4)(E), is the date of enactment of Pub. L. 96-296, which was approved July 1, 1980.

AMENDMENTS

1983-Subsec. (a)(4)(D)(ii). Pub. L. 97-449 substituted "section 1 of the Shipping Act, 1916 (46 U.S.C. 801) or the Intercoastal Shipping Act, 1933 (46 U.S.C. 843-848)" for "section 801 or sections 843-848 of title 46".

1980-Subsec. (a)(4)(E). Pub. L. 96-296, § 22(h), added subpar. (E).

Subsec. (b). Pub. L. 96-296, § 22(a), inserted ", II (insofar as motor carriers of property are concerned)," following "subchapter I".

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10705, 11126 of this title.

§ 10704. Authority and criteria: rates, classifications, rules, and practices prescribed by Interstate Commerce Commission

(a)(1) When the Interstate Commerce Commission, after a full hearing, decides that a rate charged or collected by a carrier for transportation subject to the jurisdiction of the Commis sion under subchapter I of chapter 105 of this title, or that a classification, rule, or practice of that carrier, does or will violate this subtitle, the Commission may prescribe the rate (includ ing a maximum or minimum rate, or both), classification, rule, or practice to be followed.

The Commission may order the carrier to stop the violation. When a rate, classification, rule, or practice is prescribed under this subsection, the affected carrier may not publish, charge, or collect a different rate and shall adopt the classification and observe the rule or practice prescribed by the Commission.

(2) The Commission shall maintain and revise as necessary standards and procedures for establishing revenue levels for rail carriers providing transportation subject to its jurisdiction under that subchapter that are adequate, under honest, economical, and efficient management, to cover total operating expenses, including depreciation and obsolescence, plus a reasonable and economic profit or return (or both) on capital employed in the business. The Commission shall make an adequate and continuing effort to assist those carriers in attaining revenue levels prescribed under this paragraph. However, a rate, classification, rule, or practice of a rail carrier may be maintained at a particular level to protect the traffic of another carrier or mode of transportation only if the Commission finds that the rate or classification, or rule or practice related to it, reduces or would reduce the going concern value of the carrier charging the rate. Revenue levels established under this paragraph should

(A) provide a flow of net income plus depreciation adequate to support prudent capital outlays, assure the repayment of a reasonable level of debt, permit the raising of needed equity capital, and cover the effects of inflation; and

(B) attract and retain capital in amounts adequate to provide a sound transportation system in the United States.

(3) The Commission shall conclude a proceeding under paragraph (2) of this subsection within 180 days after the effective date of the 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.

(b)(1) When the Commission decides that a rate charged or collected by

(A) a motor common carrier for providing transportation subject to its jurisdiction under subchapter II of chapter 105 of this title by itself, with another motor common carrier, with a rail, express, or water common carrier, or any of them;

(B) a water common carrier for providing transportation subject to its jurisdiction under subchapter III of chapter 105 of this title; or

(C) a freight forwarder for providing service subject to its jurisdiction under subchapter IV of chapter 105 of this title;

or that a classification, rule, or practice of that carrier, does or will violate this chapter, the Commission shall prescribe the rate (including a maximum or minimum rate, or both), classification, rule, or practice to be followed.

(2)(A) When prescribing a rate, classification, rule, or practice for transportation or service by common carriers other than by rail carrier, the Commission shall consider, among other factors, the effect of the prescribed rate, classification, rule, or practice on the movement of traffic by that carrier.

(B) When prescribing a rate, classification, rule, or practice for transportation or service by common carriers other than by rail carrier or motor carrier, the Commission shall consider, among other factors, the need for revenues that are sufficient, under honest, economical, and efficient management, to let the carrier provide that transportation or service.

(3) If the carrier is a motor or water common carrier or a freight forwarder, the Commission shall also consider the need, in the public interest, of adequate and efficient transportation or service by that carrier at the lowest cost consistent with providing that transportation or service.

(4) If the carrier is a motor common carrier or a freight forwarder, the Commission shall also consider the inherent advantages of transportation by motor common carrier or the inherent nature of freight forwarding, respectively.

(c)(1) When the Commission finds that a minimum rate of a contract carrier for transportation subject to the jurisdiction of the Commission under subchapter II or III of chapter 105 of this title, or a rule or practice related to the rate or the value of the service under it, violates this chapter or the transportation policy of section 10101 of this title, the Commission may prescribe the minimum rate, rule, or practice for the carrier that is desirable in the public interest and will promote that policy. In prescribing the rate, the Commission may not give a motor or water contract carrier an advantage or preference in competition with a motor or water common carrier, respectively, if an advantage or preference is unreasonable or inconsistent with the public interest and the transportation policy of section 10101 of this

title.

(2) When prescribing a minimum rate, or rule or practice related to a rate, for a contract carrier, the Commission shall consider

(A) the cost of the transportation provided by the carrier; and

(B) the effect of a prescribed minimum rate, or rule or practice, on the movement of traffic by that carrier.

(d) In a proceeding involving competition between carriers of different modes of transportation subject to this subtitle, except rail carriers, the Commission, in determining whether a rate is less than a reasonable minimum rate, shall consider the facts and circumstances involved in moving the traffic by the mode of carrier to which the rate is applicable. Subject to the transportation policy of section 10101 of this title, rates of a carrier may not be maintained at a particular level to protect the traffic of another mode of transportation.

(e) In a proceeding involving a proposed increase or decrease in rail carrier rates, the Commission shall specifically consider allegations

Page 854

that the increase or decrease would (1) change the rate relationships between commodities, ports, places, regions, areas, or other particular descriptions of traffic (without regard to previous Commission consideration or approval of those relationships), and (2) have a significant adverse effect on the competitive position of shippers or consignees served by the rail carrier proposing the increase or decrease. The Commission shall investigate to determine whether the change or effect violates this subtitle when it finds that those allegations are substantially supported on the record. The investigation may be made either before or after the proposed increase or decrease becomes effective and either in that proceeding or in another proceeding.

(f) The Commission may begin a proceeding under this section on its own initiative or on complaint. A complaint under subsection (a) of this section must be made under section 11701 of this title, but the proceeding may also be in extension of a complaint pending before the Commission. A complaint under subsection (c) of this section must contain a full statement of the facts and the reasons for the complaint and must be made under oath.

(Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1373; Pub. L. 96-296, § 13(b), July 1, 1980, 94 Stat. 803; Pub. L. 96-448, title II, § 205(b), Oct. 14, 1980, 94 Stat. 1906; Pub. L. 97-261, § 9(b), Sept. 20, 1982, 96 Stat. 1109.)

Source (Statutes at Large)

Feb. 4, 1887, ch. 104, § 15(1), 24 Stat. 384; June 29, 1906, ch. 3591, 4, 34 Stat. 589; June 18, 1910, ch. 309, § 12, 36 Stat. 551; restated Feb. 28, 1920, ch. 91, § 418, 41 Stat. 484; June 19, 1934, ch. 652, 602(b), 48 Stat. 1102; Aug. 9, 1935, ch. 498, § 1, 49 Stat. 543; Sept. 18, 1940, ch. 722, 10(a), 54 Stat. 911.

Feb. 4, 1887, ch. 104, 24 Stat. 379, § 15a(1)-(5); added Feb. 28, 1920, ch. 91, § 422, 41 Stat. 488; June 16, 1933, ch. 91, 205, 48 Stat. 220; Aug. 12, 1958, Pub. L. 85-625, 6, 72 Stat. 572; Feb. 5, 1976, Pub. L. 94-210, §§ 203(b), 205, 90 Stat. 39, 41.

Feb. 4, 1887, ch. 104, 24 Stat. 379, 216(e) (2d sentence less 2d cl., and less proviso), (1); added Aug. 9, 1935, ch. 498, § 1, 49 Stat. 558, 560; Sept. 18, 1940, ch. 722, § 22(d), 54 Stat. 924. Feb. 4, 1887, ch. 104, 24 Stat. 379, § 307(b), (f), (h); added Sept. 18, 1940, ch. 722, §201, 54 Stat. 937-939. Feb. 4, 1887, ch. 104, 24 Stat. 379, § 406(b), (d); added May 16, 1942, ch. 318, § 1, 56 Stat. 288.

Feb. 4, 1887, ch. 104, 24 Stat. 379, § 218(b); added Aug. 9, 1935, ch. 498, § 1, 49 Stat. 562; restated Sept. 18, 1940, ch. 722, 23(b), 54 Stat. 925.

10704(d)

10704(e)

between 2d and 3d commas, and less last

sentence).

49:15a(3).

49:15a(5).

10704(f)..... 49:15(1) (words

between 2d and

5th commas). 49:316(e) (2d sentence words between 2d and 3d commas). 49:318(b) (1st sentence words between 2d and 3d commas and last sentence). 49:907(b) (words between 2d and 3d commas), (h) (1st sentence words between 2d and 3d commas and last sentence). 49:1006(b) (words between 2d and 3d commas).

In this section, the text of 49:15a(1) is omitted as unnecessary in view of the definition of "rate" in section 10102 of the revised title and incorporation of the words "classification, rule, . . . practice" in the section. The word "rule" is substituted for "regulation" when referring to carriers for consistency. The words "indi. vidual and joint rate" are omitted as included in the word "rate".

In subsection (a)(1), the word "decides" is substitut ed for "is of the opinion" as being more appropriate. The word "demanded" is omitted as surplus. The word "transportation" is substituted for "the transportation of persons or property, as defined in section 1 of this title" for consistency in view of the definition of "transportation" in section 10102 of this title. The words "does or will violate this subtitle" are substitut ed for "is or will be unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this chapter" for clarity since the criteria for lawfulness are consolidated in this chapter and in chapter 119 of the revised title. The word "may" is substituted for "is authorized and empowered" as being more appropriate. The words "to determine" are omitted as surplus. The words "just and reasonable" are omitted as unnecessary in view of section 10701 of the revised title. The word "stop" is substituted for "cease and desist" to eliminate redundancy. The words "to the extent to which the Commission finds that the same does or will exist" are omitted as surplus since section 10321 of the revised title requires the Commission to carry out the subtitle. The words "or in excess of the maximum or less than the minimum so prescribed" are omitted as unnecessary in view of the restatement of section 49:15(1) in this subsection.

In subsection (a)(2), the words "for rail carriers" are substituted for "With respect to common carriers by railroad" for consistency. The words after the 2d comma and before the beginning parentheses in 49:15a(4) are omitted as executed. The word "main tain" is substituted for "and thereafter revise and maintain" to eliminate redundancy. The word "reasonable" is substituted for "fair, reasonable" as being inclusive. See the revision note to section 10101 of the revised title. The words "maintained at" are substitut ed for "be held up to" for clarity.

In subsection (b)(2), the words "after hearing" are omitted as unnecessary in view of subchapter II of chapter 103 of the revised title and subchapter II of

chapter 5 of title 5. The words "lawful... thereafter to be made effective" are omitted as surplus. The words "when prescribing" are substituted for "In the exercise of its power to prescribe" for clarity. The words "just and reasonable" are omitted as unnecessary. The words "shall consider" are substituted for "shall give due consideration to" for clarity. The words between the 1st and last semicolons in 49:15a(2) (1st sentence) are omitted as repealed by section 205 of the Railroad Revitalization and Regulatory Reform Act of 1976 (90 Stat. 41).

In subsection (c), the words "transportation policy of section 10101 of this title" are substituted for "national transportation policy declared in this Act" for consistency. The word "violates" is substituted for "contravenes" and "in contravention" as being more appropriate. The words "as in its judgment may be❞ are omitted as surplus. The word "necessary" is omitted as surplus.

In subsection (d), the words "maintained at" are substituted for "held up to" for clarity. The word "unreasonable" is substituted for "undue" for clarity. See the revision note to section 10101 of the revised title. The last sentence of 49:15a(3) is omitted as unnecessary in view of the restatement.

In subsection (e), the word "places" is substituted for "points" for consistency. The words "without regard to" are substituted for "whether or not" for clarity. The words "rail carrier" are substituted for "railroad" for clarity. The words "to determine whether the change or effect violates this subtitle" are substituted for "lawfulness of such change or effect" for consistency.

REFERENCES IN TEXT

The effective date of the Staggers Rail Act of 1980, referred to in subsec. (a)(3) and (4), probably means Oct. 1, 1980, the general effective date of Pub. L. 96-448. See section 710 of Pub. L. 96-448, set out as an Effective Date of 1980 Amendment note under section 10101 of this title.

AMENDMENTS

1982-Subsec. (b)(2)(B). Pub. L. 97-261 struck out "of property" after "motor carrier".

1980-Subsec. (a)(2). Pub. L. 96-448, § 205(b)(1), inserted "and revise as necessary" following "shall maintain".

Subsec. (a)(3), (4). Pub. L. 96-448, § 205(b)(2), added pars. (3) and (4).

Subsec. (b)(2). Pub. L. 96-296 revised par. (2) to exclude from the provisions of subpar. (B) motor carriers of property.

EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-261 effective on the 60th day after Sept. 20, 1982, see section 31(a) of Pub. L. 97-261, set out as a note under section 10101 of this title.

EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96-448 effective Oct. 1, 1980, see section 710(a) of Pub. L. 96-448, set out as a note under section 10101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10701a, 10705a, 107078, 11705 of this title.

§ 10705. Authority: through routes, joint classifications, rates, and divisions prescribed by Interstate Commerce Commission

(a)(1) The Interstate Commerce Commission may, and shall when it considers it desirable in the public interest, prescribe through routes, joint classifications, joint rates (including maximum or minimum rates or both), the division of

joint rates, and the conditions under which those routes must be operated, for a common carrier providing transportation subject to the jurisdiction of the Commission under subchapter I, II (except a motor common carrier of property), or III of chapter 105 of this title. When one of the carriers on a through route is a water carrier, the Commission shall prescribe a differential between an all-rail rate and a joint rate related to the water carrier if the differential is justified.

(2) The Commission may require a rail carrier to include in a through route substantially less than the entire length of its railroad and any intermediate railroad operated with it under common management or control if that intermediate railroad lies between the terminals of the through route only when

(A) required under section 10741-10744 or 11103 of this title;

(B) one of the carriers is a water carrier;

(C) inclusion of those lines would make the through route unreasonably long when compared with a practicable alternative through route that could be established; or

(D) the Commission decides that the proposed through route is needed to provide adequate, and more efficient or economic, transportation.

The Commission shall give reasonable preference, subject to this subsection, to the rail carrier originating the traffic when prescribing through routes.

(3) The Commission may not prescribe

(A) a through route, classification, practice, or rate between a street electric passenger railway not engaged in the general business of transporting freight in addition to its passenger and express business and (i) a rail carrier of a different character, or (ii) a water common carrier; or

(B) a through route or joint rate applicable to it to assist a participating carrier to meet its financial needs.

(b)(1) The Interstate Commerce Commission may, and shall when it considers it desirable in the public interest, prescribe through routes, joint classifications, joint rates (including maximum or minimum rates or both), the division of joint rates, and the conditions under which those routes must be operated, for a motor common carrier of property providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title with another such carrier or with a water common carrier of property.

(2) The Commission may not require a motor common carrier of property, without its consent, to include in a through route substantially less than the entire length of its route and the route of any intermediate carrier which is operated in conjunction and under common management or control with such motor common carrier of property which lies between the termini of such proposed through routes (A) unless inclusion of such routes would make the through route unreasonably circuitous as compared with another practicable through route which could otherwise be established, or (B)

unless the Commission finds that the through route proposed to be established is needed in order to provide adequate, more efficient, or more economic transportation. In prescribing through routes the Commission shall, so far as is consistent with the public interest, and subject to the preceding sentence, give reasonable preference to the carrier which originates the traffic.

(c) The Commission shall prescribe the division of joint rates to be received by a carrier providing transportation subject to its jurisdiction under chapter 105 of this title when it decides that a division of joint rates established by the participating carriers under section 10703 of this title, or under a decision of the Commission under subsection (a) or (b) of this section, does or will violate section 10701 of this title. When prescribing the division of joint rates of a rail carrier, water carrier, or motor common carrier of property under this subsection, the Commission shall consider

(1) the efficiency with which the carriers concerned are operated;

(2) the amount of revenue required by the carriers to pay their operating expenses and taxes and receive a fair return on the property held and used for transportation;

(3) the importance of the transportation to the public;

(4) whether a particular participating carrier is an originating, intermediate, or delivering line; and

(5) other circumstances that ordinarily, without regard to the mileage traveled, entitle one carrier to a different proportion of a rate than another carrier.

(d) If a division of a joint rate prescribed under a decision of the Commission is later found to violate section 10701 of this title, the Commission may decide what division would have been reasonable and order adjustment to be made retroactive to the date the complaint was filed, the date the order for an investigation was made, or a later date that the Commission decides is justified. The Commission may make a decision under this paragraph effective as part of its original decision.

(e) When the Commission suspends, for investigation, a tariff of a rail carrier, water common carrier, or motor common carrier of property that would cancel a through route, joint rate, or classification without the consent of all carriers that are parties to it or without authorization of the Commission, the carrier proposing the cancellation has the burden of proving that cancellation is consistent with the public interest without regard to subsection (a)(2) of this section. In determining whether a cancellation involving a rail carrier is consistent with the public interest, the Commission shall, to the extent applicable—–

(1) compare the distance traveled and the average transportation time and expense required using (A) the through route, and (B) alternative routes, between the places served by the through route;

(2) consider any reduction in energy consumption that may result from cancellation; and

Page 856

(3) consider the overall impact of cancellation on the shippers and carriers that are affected by it.

(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 proceeding 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 evidentiary proceedings; and

(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 pursuant 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.

(2) When a carrier begins a proceeding to adjust the division of joint rates for transportation by a rail carrier under this section by filing a complaint with the Commission, the carrier must also file all of the evidence in support of its position with the complaint and, during the course of the proceeding may only file rebuttal or reply evidence unless otherwise ordered by the Commission.

(3) When the Commission receives a notice of intent to begin a proceeding to adjust the division of joint rates for transportation by a rail carrier under this section, the Commission shall allow the party filing the notice the same right to discovery that a party would have on filing a complaint under this section.

(g) When there is a shortage of equipment, congestion of traffic, or other emergency declared by the Commission, it may prescribe temporary through routes that are desirable in the public interest on its own initiative or on application without regard to subsection (f) of this section, subchapter II of chapter 103 of this title, and subchapter II of chapter 5 of title

5.

(h) Any motor common carrier of property who is a party to a through route and joint rate, whether established by such carrier under section 10703 of this title or prescribed by the Commission under subsection (b) of this section, shall promptly pay divisions or make interline settlements, as the case may be, with