(C) because of the peculiar economic circumstances of the protestant, the provisions of subsection (d) of this section do not protect the protestant.

(2) The burden shall be on the protestant to prove the matters described in paragraph (1)(A), (B), and (C) of this subsection.

(d)(1) If the Commission does not suspend a proposed rate increase under subsection (c) of this section, the Commission shall require the rail carrier to account for all amounts received under the increase until the Commission completes its proceedings under subsection (b) of this section. The accounting shall specify by whom and for whom the amounts are paid. When the Commission takes final action, it shall require the carrier to refund to the person for whom the amounts were paid that part of the increased rate found to be unreasonable, plus interest at a rate equal to the average yield (on the date the statement is filed) of marketable securities of the United States Government having a duration of 90 days.

(2) If a rate is suspended under subsection (c) of this section and any portion of such rate is later found to be reasonable under this title,' the carrier shall collect from each person using the transportation to which the rate applies the difference between the original rate and the portion of the suspended rate found to be reasonable for any services performed during the period of suspension, plus interest at a rate equal to the average yield (on the date the statement is filed) of marketable securities of the United States Government having a duration of 90 days, except that this paragraph shall not apply to general rate increases under section 10706 of this title.

(3) If any portion of a proposed rate decrease is suspended under subsection (c) of this section and later found to be reasonable under this title, the rail carrier may refund any part of the portion of the decrease found to comply with this title if the carrier makes the refund available to each shipper who participated in the rate, in accordance with the relative amount of such shipper's traffic transported at such rate.

(4) Notwithstanding the provisions of section 10741 or section 10761 of this title, the Commission shall, by ruie, establish standards and procedures permitting a rail carrier to waive the collection of amounts due under this subsection if such amounts are not significant.

(Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1380; Pub. L. 96-448, title II, § 207, Oct. 14, 1980, 94 Stat. 1907.)

HISTORICAL AND REVISION NOTES

In 49:15(8), the words after the 4th comma in subsection (b), subsections (c) and (d) (last sentence) are omitted from the restatement as executed, effective January 1, 1978.

In subsection (a), the word "schedule" is omitted for consistency. The word "rate" is substituted for "rates, fare, or charge" in view of the definition of "rate" in section 10102 of the revised title. The words "provid ing transportation subject to its jurisdiction under subchapter I of chapter 105 of this title" are added to conform to the revision. The word "proceeding" is substituted for "hearing" in view of subchapter II of chapter 5 of title 5. The words "to determine whether violates this section" are substituted for "concerning the lawfulness" for consistency.

In subsection (b), the words "may take an additional 3 months" are substituted for "shall be made not later than 10 months after" for consistency.

In subsection (c), the words "Pursuant to subdivision (d)" are omitted as unnecessary. The words "facts required under paragraph (1) (A) and (B) of this subsec tion" are substituted for "matters set forth in clauses (i) and (ii) of this subdivision" for clarity.

In subsection (d), the words "When any part of a rate decrease is suspended" are substituted for "With respect to any proposed decreased rate, fare, or charge which is suspended" for clarity. The words "comply with this title" are substituted for "lawful" for clarity and consistency.

In subsection (e), the word "reasonable" is substituted for "just and reasonable" for consistency. See the revision note to section 10101 of the revised title.

[Subsections (c) and (d) (last sentence) of 49:15(8), which were omitted from the restatement as executed (see first par. of Historical and Revision Notes above), were amended by Pub. L. 95-607, title IV, § 401, Nov. 8, 1978, 92 Stat. 3067, and later repealed effective July 1, 1980, by Pub. L. 96-258, § 3(c), June 3, 1980, 94 Stat. 428.]

AMENDMENTS

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10701a, 10705a, 10707a, 10709, 10711, 11126 of this title.

§ 10707a. Zone of rail carrier rate flexibility

(a) In this section

(1)(A) "base rate" means, with respect to the transportation of a particular commodity (i) for the 24-month period beginning on October 1, 1980, the rate in effect on October 1, 1980, (ii) for the 24-month period beginning on October 1, 1982, the rate in effect on October 1, 1982, and (iii) for the 5-year period beginning on October 1, 1984, and for each subsequent 5-year period, the rate in effect on the first day of the applicable 5-year period. (B) If no rate exists for the transportation of a particular commodity on October 1, 1980, the base rate for the transportation of such commodity shall be the rate established by the rail carrier (divided by the latest rail cost adjustment factor published by the Commission), unless such rate is found to be unreasonable by the Commission, in which case the base rate shall be the rate authorized by the Commission (divided by the latest rail cost adjustment factor published by the Commission).

(2)(A) “adjusted base rate” means the base rate for the transportation of a particular commodity multiplied by the latest rail cost adjustment factor published by the Commission pursuant to this paragraph.

(B) Commencing with the fourth quarter of 1980, the Commission shall, as often as practicable but in no event less often than quarterly, publish 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 Commission, with appropriate adjustments to reflect the changing 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 1980, or for the fourth quarter of 1982 or for the fourth quarter of every fifth year thereafter, as appropriate.

(b)(1) Except as provided in paragraph (2) of this subsection, a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title may increase any rate over which the Commission has jurisdiction under section 10709 of this title so long as the increased rate is not greater than the adjusted base rate for the transportation involved, plus any rate increases implemented under subsection (c) or (d) of this section.

(2) A rate increase authorized under this subsection may not be found to exceed a reasonable maximum for the transportation involved. (3) A rail carrier may not increase a rate under this subsection to the extent that the cost increases to such carrier due to inflation are recovered through (A) general rate increases pursuant to section 10706 of this title, or (B) inflation-based rate increases under section 10712 of this title applicable to that rate. (c)(1) During the 12-month period beginning on the effective date of the Staggers Rail Act of

1980 and during each of the 3 succeeding 12month periods, a rail carrier may, in addition to rate increases authorized under subsection (b) of this section, increase any rate over which the Commission has jurisdiction under section 10709 of this title by an annual amount of not more than 6 percent of the adjusted base rate, except that in no event shall the total increase under this subsection result in a rate which is more than 118 percent of the adjusted base rate.

(2)(A) If any portion of a rate increase under this subsection is not implemented in the year in which it is authorized, such portion may, except as provided in subparagraph (B) of this paragraph, be implemented only in the next succeeding year.

(B) If any portion of the total rate increase authorized under this subsection is not implemented by the end of the 4-year period beginning on the effective date of the Staggers Rail Act of 1980, such portion may be implemented in the next 2 succeeding years, except that in no event may a rail carrier increase a rate under this subsection or under subsection (d) of this section in either of such 2 succeeding years by an annual amount of more than 10 percent of the adjusted base rate.

(d)(1) Except as provided in paragraph (3) of this subsection, during the 12-month period beginning on October 1, 1984, and during each succeeding 12-month period, a rail carrier may, in addition to rate increases under subsection (b) of this section, increase any rate over which the Commission has jurisdiction under section 10709 of this title by an annual amount of not more than 4 percent of the adjusted base rate. (2) No portion of any rate increase under this subsection which is not implemented in the year in which it is authorized may be implemented in any other year.

(3)(A) The provisions of this subsection shall not apply to a rail carrier proposing to increase a single line rate if such carrier earns adequate revenues, as determined by the Commission under section 10704(a)(2) of this title.

(B) The Commission shall, after a hearing on the record, prescribe such rules with respect to joint rates as necessary to ensure that rail carriers which earn adequate revenues, as determined under section 10704(a)(2) of this title, do not receive the rate increases authorized by this subsection unless the Commission determines that it is unable to prescribe such rules without precluding rail carriers not earning adequate revenues from receiving the rate increases authorized under this subsection.

(e)(1) Notwithstanding the provisions of section 10707 of this title, in the case of any rate increase by a rail carrier that is authorized under subsection (c) or (d) of this section

(A)(i) the Commission may not suspend such rate increase pending final Commission action; and

(ii) except as provided in paragraph (2) of this subsection, the Commission may not begin an investigation proceeding under section 10707 of this title with respect to the reasonableness of such rate increase; but

§ 10707a

(B) an interested party may file a complaint under section 11701(b) of this title alleging that such rate increase violates the provisions of this subtitle.

In considering any complaint challenging a rate increase that is authorized under subsection (c) of this section and that results in a revenuevariable cost percentage that is less than the lesser of the percentages described in clauses (i) and (ii) of paragraph (2)(A), the Commission shall, in determining the reasonableness of such rate increase, give due consideration to whether the carrier proposing the rate increase has attained adequate revenues, as determined by the Commission under section 10704(a)(2) of this title, giving regard to preventing a carrier with adequate revenues from realizing excessive profits on the traffic involved and also the policy of bringing to an adequate level the revenues of carriers not having an adequate revenue level.

(2)(A) If a rate increase authorized under this section in any year results in a revenue-variable cost percentage for the transportation to which the rate applies that is equal to or greater than

(i) 20 percentage points above the revenuevariable cost percentage applicable in that year under section 10709(d) of this title; or

(ii) a revenue-variable cost percentage of 190 percent,

whichever is less, the Commission may, on its own initiative, or on complaint of an interested party, begin an investigation proceeding to determine whether the proposed rate increase violates this subtitle.

(B) In determining whether to investigate or not to investigate any proposed rate increase that results in a revenue-variable cost percentage for the transportation to which the rate applies that is equal to or greater than the lesser of the percentages described in clauses (i) and (ii) of subparagraph (A) of this paragraph (without regard to whether such rate increase is authorized under this section), the Commission shall set forth its reasons therefor, giving due consideration to the following factors:

(i) the amount of traffic which is transported at revenues which do not contribute to going concern value and efforts made to minimize such traffic;

(ii) the amount of traffic which contributes only marginally to fixed costs and the extent to which, if any, rates on such traffic can be changed to maximize the revenues from such traffic; and

(iii) the impact of the proposed rate or rate increase on the attainment of the national energy goals and the rail transportation policy under section 10101a of this title, taking into account the railroads' role as a primary source of energy transportation and the need for a sound rail transportation system in accordance with the revenue adequacy goals of section 10704 of this title. This subparagraph shall not be construed to change existing law with regard to the nonreviewability of such determination.

(C) In determining whether a rate is reasonable, the Commission shall consider, among other factors, evidence of the following:

(i) the amount of traffic which is transported at revenues which do not contribute to going concern value and efforts made to minimize such traffic;

(ii) the amount of traffic which contributes only marginally to fixed costs and the extent to which, if any, rates on such traffic can be changed to maximize the revenues from such traffic; and

(iii) the carrier's mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier's overall revenues.

(f) In any proceeding under this section, evidence of the underlying rail carrier rate is admissible.

(g) A finding by the Commission that a rate increase exceeds the increase authorized under this section does not establish a presumption that (1) the rail carrier proposing such rate increase has or does not have market dominance over the transportation to which the rate applies, or (2) the proposed rate exceeds or does not exceed a reasonable maximum.

(h) The authority of the Commission to determine and prescribe reasonable rules, classifi cations, and practices may not be used, directly or indirectly, to limit the rates which rail carriers are otherwise authorized to establish under this subtitle.

(Added Pub. L. 96-448, title II, § 203(a), Oct. 14, 1980, 94 Stat. 1901.)

REFERENCES IN TEXT

The effective date of the Staggers Rail Act of 1980, referred to in subsec. (c)(1) and (2)(B), 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.

EFFECTIVE DATE

Section effective Oct. 1, 1980, see section 710(a) of Pub. L. 96-448, set out as an Effective Date of 1980 Amendment note under section 10101 of this title. RESTRICTION ON INCREASE OF RAIL CARRIER RATE FOR TRANSPORTATION OF COAL; CONDITIONS; EXCEPTIONS; INADMISSIBILITY AS EVIDENCE IN PROCEEDING TO DETERMINE MARKET DOMINANCE OR REASONABLENESS OF RATE

Section 203(c) of Pub. L. 96-448, provided that:

"(1) Any rail carrier rate which increased over 70 percent between 1976 and 1979 inclusive for the transportation, in shipper owned equipment over a distance exceeding 1,550 miles between points within the United States, of coal pursuant to a tariff calling for an annual volume of more than 2,000,000 tons per year purchased by a municipally owned utility for the generation of electric power under a 20-year purchase agreement entered into by such utility in the year 1974 shall not be increased so long as coal is purchased under such original agreement, except that

"(A) during the period beginning October 1, 1980, and ending September 30, 1987, the Interstate Commerce Commission may permit increases in such rate which result in a revenue-variable cost percentage of not more than 162 percent; and

"(B) after October 1, 1987, such rate shall be subject to section 10701a of title 49, United States Code, and related provisions of such title governing regula tion of rail carrier rates, except that until such rate results in a revenue-variable cost percentage that is

equal to or greater than the revenue-variable cost percentage applicable under section 10709(d) of such title, such rate may not be increased more than 4 percent, in addition to inflation, in any year.

"(2) Neither the provisions of this subsection nor any rate subject to this subsection shall be admissible as evidence or considered in any way in any proceeding involving any other rail carrier rate that is commenced to determine market dominance under section 10709 of title 49, United States Code, or to determine reasonableness under section 10701a of such title."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 10701a of this title.

§ 10708. Investigation and suspension of new nonrail carrier rates, classifications, rules, and practices (a)(1) The Interstate Commerce Commission may begin a proceeding to determine the lawfulness of a proposed rate, classification, rule, or practice immediately, on its own initiative or on application of an interested party when

(A) a new individual or joint rate or individual or joint classification, rule, or practice affecting a rate is filed with the Commission by a common carrier, other than a rail carrier, under this subtitle; or

(B) a new or reduced rate or rule or practice that causes a reduction of a rate is filed with the Commission by a contract carrier under this subtitle.

(2) The Commission must give reasonable notice before beginning a proceeding under this section but may act without allowing an interested carrier to file an answer or other formal pleading in response to its decision to begin the proceeding. The Commission may take whatever final action on a rate, classification, rule, or practice under this section, after a full hearing (whether completed before or after the rate, classification, rule, or practices goes into effect), as it could in a proceeding begun after a rate, classification, rule, or practice became effective.

(b) Pending final Commission action in a proceeding under subsection (a) of this section, the Commission may suspend the proposed rate, classification, rule, or practice at any time for not more than 7 months beyond the time it would otherwise go into effect by (1) delivering to each affected carrier, and (2) filing with the proposed rate, classification, rule, or practice, a statement of reasons for the suspension. If the Commission does not take final action during the suspension period, the proposed rate, classification, rule, or practice is effective at the end of that period. However, if an increase in a rate for, or related to, transportation of property by an express, sleeping car, or pipeline carrier becomes effective under this subsection, the Commission may require the interested carrier to account for all amounts received under it and specify by whom and on whose behalf those amounts were paid. When the Commission takes final action, it may require the carrier to refund, with interest, to the persons on whose behalf those amounts were paid, the part of the increased rate found to be in violation of this subtitle.

(c) In a proceeding under this section, the burden is on the carrier proposing the changed

rate, classification, rule, or practice to prove that the change is reasonable. The Commission shall give proceedings under this section preference over all other proceedings related to that type of carrier pending before it and make its decision at the earliest practical time.

(d)(1) Notwithstanding any other provision of this title, the Commission may not investigate, suspend, revise, or revoke any rate proposed by a motor common carrier of property or freight forwarder on the grounds that such rate is unreasonable on the basis that it is too high or too low if

(A) the carrier notifies the Commission that it wishes to have the rate considered pursuant to this subsection; and

(B) the aggregate of increases and decreases in any such rate is not more than 10 percent above the rate in effect one year prior to the effective date of the proposed rate, nor more than 10 percent below the lesser of the rate in effect on July 1, 1980 (or, in the case of any rate which a carrier first establishes after July 1, 1980, for a service not provided by such carrier on such date, such rate on the date such rate first becomes effective), or the rate in effect one year prior to the effective date of the proposed rate.

(2) The Commission, by rule, may increase the percentages specified in paragraph (1)(B) of this subsection for any group of motor common carriers of property or freight forwarders if it finds that

(A) there is sufficient actual and potential competition to regulate rates; and

(B) there are benefits to (i) carriers or freight forwarders, (ii) shippers, and (iii) the public from further rate flexibility;

except that the Commission may not increase such percentages by more than 5 percentage points during any one-year period.

(3)(A) In determining, pursuant to paragraph (1)(B) of this subsection, whether the aggregate of increases and decreases in a proposed rate that is to take effect on or before the 730th day following the date of enactment of this paragraph is more than 10 percent (or such other percentage as the Commission may establish under paragraph (2) of this subsection) above the rate in effect one year prior to the effective date of the proposed rate, general rate increases obtained in the one-year period prior to the effective date of the proposed rate shall not be included in such aggregate, except to the extent that such general rate increases exceed 5 percent of the rate in effect one year prior to the effective date of the proposed rate.

(B) In the case of a proposed rate that is to take effect after the 730th day following the date of enactment of this paragraph, the percentage which first appears in paragraph (1)(B) of this subsection (relating to the upper limit of the zone of ratemaking freedom), or such other percentage as the Commission may establish under paragraph (2) of this subsection in lieu of such percentage, shall be increased or decreased, as the case may be, by the percentage change in the Producers Price Index, as published by the Department of Labor, that has oc

curred during the one-year period prior to the effective date of the proposed rate.

(4) Notwithstanding any other provision of this title, the Commission may not investigate, suspend, revise, or revoke any single-line rate proposed by a motor common carrier of passengers, or joint rate proposed by one or more such carriers, applicable to any transportation (other than special or charter transportation) on the grounds that such rate is unreasonable on the basis that it is too high or too low if—

(A) the carrier or carriers notify the Commission that they wish to have the rate considered pursuant to this subsection; and

(B) the aggregate of increases and decreases in any such rate is not more than 10 percent above the rate in effect one year prior to the effective date of the proposed rate, nor more than 20 percent below the lesser of the rate in effect on the effective date of this paragraph (or, in case of any rate which the carrier or carriers first establish after such date for a service not provided by the carrier or carriers on such date, such rate on the date such rate first becomes effective), or the rate in effect one year prior to the effective date of the proposed rate.

(5) One year after the effective date of this paragraph, the first and second percentages specified in paragraph (4)(B) of this subsection shall change to 15 percent and 25 percent, respectively. Two years after the effective date, the first and second percentages specified in paragraph (4)(B) of this subsection shall change to 20 percent and 30 percent, respectively.

(6) Any rate implemented by a carrier pursuant to this subsection shall be subject to the antitrust laws, as defined in the first section of the Clayton Act (15 U.S.C. 12), except that the docketing and publication of such rate by the carrier under section 10706(b) of this title shall not be construed as a violation of the antitrust laws. Evidence that any motor common carrier of passengers established pursuant to this subsection a joint or single-line rate applicable to transportation over any route which is the same as or similar to a joint rate applicable to transportation over such route which such carrier together with one or more other motor common carriers of passengers established pursuant to this subsection shall not be in and of itself sufficient to establish a violation of any such antitrust law. Nothing in this subsection shall limit the Commission's authority to suspend and investigate proposed rates on the basis that such rates may violate the provisions of section 10741 of this title or constitute predatory practices in contravention of the transportation policy set forth in section 10101(a) of this title.

(e) Notwithstanding any other provision of this title, 3 years after the effective date of this subsection, the Commission may not investigate, suspend, revise, or revoke any rate proposed by a motor common carrier of passengers on the grounds that such rate is unreasonable on the basis that it is too high or too low, unless the proposed rate is established collectively in accordance with the procedures of an agreement approved by the Commission under

section 10706(b) of this title. In publishing and filing a tariff under section 10762 of this title, the carrier shall disclose whether such rate is the result of collective ratemaking procedures pursuant to an agreement approved by the Commission under section 10706(b) of this title.

(f) Notwithstanding any other provision of this title, an interested party may file a complaint under section 11701 of this title challenging the reasonableness of a rate filed under this section by a motor carrier of passengers. Any such complaint proceeding shall be finally determined by the Commission no later than 90 days after the filing of the complaint.

(g) Notwithstanding any other provision of this title, the Commission may not investigate, suspend, revise, or revoke any rate proposed by a motor common carrier of passengers applicable to special or charter transportation. Nothing in this subsection shall limit the Commission's authority to suspend and investigate proposed rates on the basis that such rates constitute predatory practices in contravention of the transportation policy set forth in section 10101(a) of this title.

(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.)

Feb. 4, 1887, ch. 104, 24 Stat. 379, 15(7); added June 18, 1910, ch. 309, § 12, 36 Stat. 552; Feb. 28, 1920, ch. 91, $418, 41 Stat. 486; restated Mar. 4, 1927, ch. 510, § 2, 44 Stat. 1447; Aug. 9, 1935, ch. 498, 1, 49 Stat. 543; Sept. 18, 1940, ch. 722, § 10(c), 54 Stat. 912; Feb. 5, 1976, Pub. L. 94-210, 202(eX1), 90 Stat. 36. Feb. 4, 1887, ch. 104, 24 Stat. 379,216(g) (less proviso); added Aug. 9, 1935, ch. 498, § 1, 49 Stat. 559; Sept. 18, 1940, ch. 722, § 22(c), 54 Stat. 924; June 29, 1938, ch. 811, 16, 52 Stat. 240. Feb. 4, 1887, ch. 104, 24 Stat. 379, 218(c) (less proviso); added Aug. 9, 1935, ch. 498, §1, 49 Stat. 562; restated Sept. 18, 1940, ch. 722, § 23(c), 54 Stat. 926. Feb. 4, 1887, ch. 104, 24 Stat. 379, 307(g) (less proviso), (i) (less proviso); added Sept. 18, 1940, ch. 722, 201, 54 Stat. 938. Feb. 4, 1887, ch. 104, 24 Stat. 379,406(e) (less proviso); added May 16, 1942, ch. 318, 1, 56 Stat. 288.

The section restates and consolidates the source provisions for clarity. The word "schedule" is omitted as unnecessary. The word "rate" is substituted for "rate, fare, or charge" in view of the definition of "rate" in section 10102 of this revised title. The word "may" is substituted for "shall have, and it is given, authority," for clarity. The words "without complaint... if it so orders" are omitted as surplus. The words "begin a proceeding" are substituted for "to enter upon a hear ing" in view of subchapter II of chapter 5 of title 5. The words "suspend the proposed rate, classification, rule, or practice" are substituted for "suspend the operation of schedule and defer the use of such rate,