U.S. Code » Title 49 » Subtitle SUBTITLE IV— INTERSTATE TRANSPORTATION › Part PART A— RAIL › Chapter CHAPTER 107— RATES › Subchapter SUBCHAPTER I— GENERAL AUTHORITY

49 U.S.C. § 10707

Determination of market dominance in rail rate proceedings

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(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, § 102(a), Dec. 29, 1995, 109 Stat. 815.)Editorial NotesPrior 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, § 102(a).

Prior sections 10707 and 10707a were omitted in the general amendment of this subtitle by Pub. L. 104–88, § 102(a).

Section 10707, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1380; Pub. L. 96–448, title II, § 207, Oct. 14, 1980, 94 Stat. 1907; Pub. L. 103–272, § 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, § 203(a), Oct. 14, 1980, 94 Stat. 1901; amended Pub. L. 103–272, § 4(j)(22), July 5, 1994, 108 Stat. 1369, related to zone of rail carrier flexibility.

Statutory Notes and Related SubsidiariesEffective Date

Section effective Jan. 1, 1996, except as otherwise provided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title.

Notes of Decisions
Cited in 68 cases, 1979–2014 · leading case: Burlington N. R.R. Co. v. Surface Transp. Bd. & the United States of Am., West Texas Utils. Co., Intervenor, 75 F.3d 685 (D.C. Cir. 1996).
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Burlington N. R.R. Co. v. Surface Transp. Bd. & the United States of Am., West Texas Utils. Co., Intervenor, 75 F.3d 685 (D.C. Cir. 1996). · cites it 4× “The Commission went on to argue that because of the sharp time limits imposed by former 49 U.S.C. § 10707 (b) on its power to suspend a newly filed rate, its expansive reading of former.”
BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770 (D.C. Cir. 2008). · cites it 2× “See 49 U.S.C. § 10707 (d)(1)(B); Adoption of the Uniform R.”
S. Pac. Transp. Co., Cross-Appellees v. San Antonio, Texas, Acting by & Through Its City Pub. Serv. Bd., Cross-Appellant, 748 F.2d 266 (5th Cir. 1984). · cites it 2× “” 49 U.S.C. § 10707 (d)(1). In addition, in 1980, the Staggers Rail Act, supra, added a “reverse refund” provision, allowing a carrier to recover damages plus prejudgment- interest when the I.”
Carolina, Clinchfield & Ohio Ry. v. Interstate Com. Comm'n, 593 F.2d 1305 (D.C. Cir. 1979). · cites it 8× “, all interstate rates) and permit filing under § 15(8), codified as 49 U.S.C. § 10707 . Petitioners’ analysis of the statute’s “plain language” is straightforward and, we think, wrong.”
W. Coal Traffic League & Its Members v. United States of Am. & Interstate Com. Comm'n, 694 F.2d 378 (5th Cir. 1983). · cites it 2× “Chairman O’Neal noted that “between October, 1978 [the effective date of the market dominance rules] and December, 1978, the Commission precluded only 15 rate increases from taking effect out of several thousand filed and 267 protested [under what is now 49 U.S.C. § 10707 ].”…”
Cleveland-Cliffs Iron Co. v. Interstate Com. Comm'n, 664 F.2d 568 (6th Cir. 1981). · cites it 5× “This was the last day of the ICC’s ten-month statutory deadline under 49 U.S.C. § 10707 (b)(1) (1979 Supp. III) for issuing a final decision.”
Towns of Concord, Norwood, & Wellesley, Massachusetts v. Fed. Energy Regulatory Comm'n, Boston Edison Co., Intervenor, 955 F.2d 67 (D.C. Cir. 1992). “For instance, the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 10707 (d)(1), "provides that a refund is mandatory where the (ICC] finds a rate to be unreasonable after it allows a rate increase to become effective pending its investigation.”
Burlington N. Inc. v. United States, 459 U.S. 131 (1982). “1907, 49 U. S. C. § 10707 (d)(2) (1976 ed., Supp.”
Mississippi Valley Gas Co. v. Fed. Energy Regulatory Comm'n, 659 F.2d 488 (5th Cir. 1981). “1337 at 49 U.S.C. § 10707 , not to suspend or investigate a proposed rate.”
BNSF Ry. Co. v. Surface Transp. Bd., 604 F.3d 602 (D.C. Cir. 2010). “Under MMM, the parties calculate the revenue-to-variable cost ("R/VC”) needed to cover the SARR’s total costs in one year to determine the Benchmark R/VC Ratio. The Board then compares the Benchmark R/VC Ratio to the actual R/VC ratio for each shipper in the traffic group on the…”
CSX Transp., Inc. v. Surface Transp. Bd., 774 F.3d 25 (D.C. Cir. 2014). “1983); see 49 U.S.C. § 10707 (c). CSX may well emerge victorious from the rate reasonableness phase, leaving nothing for them to appeal.”
Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445 (6th Cir. 1988). · cites it 2× “49 U.S.C. § 10707 (a). If the ICC fails to reject the proposed tariff within the applicable notice period the tariff automatically becomes effective.”
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— 49 U.S.C. § 10707(d)(1)(A) — 1 case
Ass'n of Am. Railroads v. Surface Transp. Bd., 146 F.3d 942 (D.C. Cir. 1998).
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