
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 49USC10707]

 
                        TITLE 49--TRANSPORTATION
 
                 SUBTITLE IV--INTERSTATE TRANSPORTATION
 
                              PART A--RAIL
 
                           CHAPTER 107--RATES
 
                     SUBCHAPTER I--GENERAL AUTHORITY
 
Sec. 10707. Determination of market dominance in rail rate 
        proceedings
        
    (a) In this section, ``market dominance'' means an absence of 
effective competition from other rail carriers or modes of 
transportation for the transportation to which a rate applies.
    (b) When a rate for transportation by a rail carrier providing 
transportation subject to the jurisdiction of the Board under this part 
is challenged as being unreasonably high, the Board shall determine 
whether the rail carrier proposing the rate has market dominance over 
the transportation to which the rate applies. The Board may make that 
determination on its own initiative or on complaint. A finding by the 
Board that the rail carrier does not have market dominance is 
determinative in a proceeding under this part related to that rate or 
transportation unless changed or set aside by the Board or set aside by 
a court of competent jurisdiction.
    (c) When the Board finds in any proceeding that a rail carrier 
proposing or defending a rate for transportation has market dominance 
over the transportation to which the rate applies, it may then determine 
that rate to be unreasonable if it exceeds a reasonable maximum for that 
transportation. However, a finding of market dominance does not 
establish a presumption that the proposed rate exceeds a reasonable 
maximum.
    (d)(1)(A) In making a determination under this section, the Board 
shall find that the rail carrier establishing the challenged rate does 
not have market dominance over the transportation to which the rate 
applies if such rail carrier proves that the rate charged results in a 
revenue-variable cost percentage for such transportation that is less 
than 180 percent.
    (B) For purposes of this section, variable costs for a rail carrier 
shall be determined only by using such carrier's unadjusted costs, 
calculated using the Uniform Rail Costing System cost finding 
methodology (or an alternative methodology adopted by the Board in lieu 
thereof) and indexed quarterly to account for current wage and price 
levels in the region in which the carrier operates, with adjustments 
specified by the Board. A rail carrier may meet its burden of proof 
under this subsection by establishing its variable costs in accordance 
with this paragraph, but a shipper may rebut that showing by evidence of 
such type, and in accordance with such burden of proof, as the Board 
shall prescribe.
    (2) A finding by the Board that a rate charged by a rail carrier 
results in a revenue-variable cost percentage for the transportation to 
which the rate applies that is equal to or greater than 180 percent does 
not establish a presumption that--
        (A) such rail carrier has or does not have market dominance over 
    such transportation; or
        (B) the proposed rate exceeds or does not exceed a reasonable 
    maximum.

(Added Pub. L. 104-88, title I, Sec. 102(a), Dec. 29, 1995, 109 Stat. 
815.)


                            Prior Provisions

    Provisions similar to those in this section were contained in 
section 10709 of this title prior to the general amendment of this 
subtitle by Pub. L. 104-88, Sec. 102(a).
    Prior sections 10707 and 10707a were omitted in the general 
amendment of this subtitle by Pub. L. 104-88, Sec. 102(a).
    Section 10707, Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1380; Pub. L. 
96-448, title II, Sec. 207, Oct. 14, 1980, 94 Stat. 1907; Pub. L. 103-
272, Sec. 4(j)(21), July 5, 1994, 108 Stat. 1369, related to 
investigation and suspension of new rail carrier rates, classifications, 
rules, and practices.
    Section 10707a, added Pub. L. 96-448, title II, Sec. 203(a), Oct. 
14, 1980, 94 Stat. 1901; amended Pub. L. 103-272, Sec. 4(j)(22), July 5, 
1994, 108 Stat. 1369, related to zone of rail carrier flexibility.

                  Section Referred to in Other Sections

    This section is referred to in sections 10701, 10702 of this title.
