,,ii #aaeth ,,congress #ast ,session ,s4 #abcc ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #be1 #bjag,ms4 ,baldwin 7for herself and ,mr4 ,franken7 introduced the following bill2 which was read twice and referred to the ,committee on ,commerce1 ,science1 and ,transportation ,a ,,bill ,to improve the efficiency and reliability of rail transportation by reforming the ,surface ,transportation ,board1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,rail ,shipper ,fairness ,act of #bjag4 #b4 ,improving rail service 7a7 ,common carrier obligations ,section #aaaja7;a7 of title #di1 ,united ,states ,code1 is amended by inserting 1 as necessary for the efficient and reliable transportation based on the shipper's reasonable service requirements1 after the transportation or service4 7b7 ,emergency service orders ,section #aaabc7;b7 of such title is amended by adding at the end the following3 7#d7 ,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 section4 4 7c7 ,reports ,section #aaade7;a7 of such title is amended-- 7#a7 in paragraph 7#a71 by striking and at the end2 7#b7 by redesignating paragraph 7#b7 as paragraph 7#c72 and 7#c7 by inserting after paragraph 7#a7 the following3 7#b7 reports1 service plans1 or other documents that cover shipments moving under contract if such shipments are part of a general report1 service plan1 or other document that generally covers the geographic area or commodity2 and 4 7d7 ,equitable relief2 damages ,section #aagjd of such title is amended-- 7#a7 in subsection 7a71 by inserting or subjected to inadequate or deficient service after injured2 7#b7 by amending subsection 7b7 to read as follows3 7b7 ,a rail carrier providing transportation subject to the jurisdiction of the ,board under this part is liable-- 7#a7 for damages sustained by a person as a result of an act or omission of that carrier in violation of this part2 7#b7 to a person for amounts charged to that person that exceed the applicable rate for the transportation2 and 7#c7 to a person for damages or equitable relief as a result of inadequate or deficient service in violation of this part4 2 and 7#c7 in subsection 7c71 by adding at the end the following3 7#c7 ,the ,board may order a rail carrier to pay damages or to provide equitable relief1 as appropriate1 to a person subjected to inadequate or deficient service as a result of a violation of this part by that carrier4 4 7e7 ,civil penalties ,section #aaija of such title is amended-- 7#a7 in subsection 7a71 by striking #e1jjj and inserting #be1jjj2 7#b7 in subsection 7c71 by striking #e1jjj and inserting #be1jjj2 and 7#c7 in subsection 7e71 by striking #ajj each place such term appears and inserting #a1jjj4 #c4 ,improving rail competition 7a7 ,rail transportation policy ,section #ajaja of title #di1 ,united ,states ,code1 is amended-- 7#a7 by redesignating paragraphs 7#ad7 and 7#ae7 as paragraphs 7#ae7 and 7#af71 respectively2 and 7#b7 by inserting after paragraph 7#ac7 the following3 7#ad7 to provide for and promote the protection of the shipping public2 4 7b7 ,rates ,section #ajgje of such title is amended by adding at the end the following3 7d7 ,shippers may obtain rates to or from any interchange points of two or more rail carriers4 4 7c7 ,market dominance ,section #ajgjg of such title is amended-- 7#a7 in subsection 7a7-- 7,a7 by striking ,in this section1 market dominance means and inserting the following3 7a7 ,in this section3 7#a7 effective competition only includes modes of transportation with existing and supporting infrastructure2 and 7#b7 market dominance means 2 and 7#b7 in subsection 7b7-- 7,a7 by inserting ,a rail carrier could have market dominance even in circumstances in which a shipper is served by two carriers4 after the rate applies42 and 7,b7 by striking rate or transportation and inserting rate for transportation4 7d7 ,terminal facilities ,section #aaajb7;c7 of such title is amended to read as follows3 7c7 7#a7 ,except as provided in paragraph 7#b71 the ,board shall require a ,class ,i rail carrier to enter into a competitive switching agreement if a shipper or receiver1 or a group of shippers or receivers1 files a petition with the ,board that demonstrates1 to the satisfaction of the ,board1 that-- 7,a7 the facilities of the shipper or receiver for whom such switching is sought are served by rail only by a single1 ,class ,i rail carrier2 and 7,b7 subject to paragraph 7#c71 there is1 or can be a working interchange between-- 7i7 the ,class ,i rail carrier serving the shipper or receiver for whom such switching is sought2 and 7ii7 another rail carrier within a reasonable distance of the facilities of such shipper or receiver4 7#b7 ,competitive switching may not be imposed under this subsection if-- 7,a7 either rail carrier between which such switching is to be established demonstrates that the proposed switching is not feasible or is unsafe2 or 7,b7 the presence of reciprocal switching will unduly restrict the ability of a rail carrier to serve its own shippers4 7#c7 ,the requirement set forth in paragraph 7#a77;,b7 is satisfied if each facility of the shipper or receiver for which competitive switching is sought is-- 7,a7 within the boundaries of a terminal of the ,class ,i rail carrier2 or 7,b7 within a #ajj-mile radius of an interchange between the ,class ,i rail carrier and another carrier at which rail cars are regularly switched4 4 #d4 ,improving reasonable rate standards 7a7 ,benchmark-,based rate reasonableness standard ,section #ajgja7;d7 of title #di1 ,united ,states ,code1 is amended by adding at the end the following3 7#d7 7,a7 ,not later than #ij days after the date of the enactment of this paragraph1 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 models4 7,b7 ,rather than utilizing its existing ,three-,benchmark ,methodology1 the ,board shall develop a methodology that considers competitive markets or a proxy of such markets4 7,c7 ,in determining the reasonableness of a challenged rate under the new benchmarking methodology developed under this paragraph1 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 revenues4 7,d7 ,relief under the new benchmarking method shall have no monetary limit1 but any rate prescription set by the ,board shall remain in effect not less than #e years4 7,e7 ,the ,board's rulemaking under this paragraph shall set a standard procedural schedule for such cases1 subject to necessary adjustments in particular adjudications1 which may not exceed #cfe days4 4 7b7 ,stand-,alone cost cases ,section #ajgjb of such title is amended-- 7#a7 by inserting 7a7 before ,a rail carrier2 and 7#b7 by adding at the end the following3 7b7 7#a7 ,the ,board shall prohibit a rail carrier providing transportation subject to the jurisdiction of the ,board under this part to change 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 ,board4 7#b7 ,a rail customer may file a maximum reasonable rate case with the ,board after the date that is #b years before the date on which a common carrier shipment rate is anticipated to begin4 7#c7 ,the ,board may not use cross-subsidy tests in deciding stand-alone cost cases4 7#d7 ,the ,board shall use a market-based revenue divisions methodology in deciding stand-alone cost cases4 7#e7 ,in a stand-alone cost case1 if the ,board determines that the rail carrier is revenue adequate1 the rail carrier shall have the burden of proof to demonstrate that the railroad carrier is charging a reasonable rate4 4 7c7 ,conforming amendment ,section #ajgjd of such title is amended-- 7#a7 by striking subsection 7c72 and 7#b7 by redesignating subsection 7d7 as subsection 7c74 7d7 ,market dominance ,section #ajgjg of such title1 as amended by section #c7;c71 is further amended-- 7#a7 in subsection 7d77#a77;,b71 by adding at the end the following ,a shipper may introduce movement-specific ,uniform ,rail ,costing ,system cost calculations42 and 7#b7 by adding at the end the following3 7e7 ,in making a determination under this section1 the ,board may not utilize a qualitative analysis in which the ,board attempts to identify any feasible transportation alternatives that could be used by the shipper4 4 #e4 ,protections from unreasonable practices ,section #ajgja of title #di1 ,united ,states ,code1 is amended by adding at the end the following3 7e7 7#a7 ,a rail carrier providing transportation subject to the jurisdiction of the ,board under this part may not use an index when establishing fuel surcharges4 7#b7 ,any fuel surcharges imposed by the rail carrier shall be directly accounted for by changes to the carrier's actual fuel prices4 ,the carrier's fuel surcharge may not be greater than the amount necessary to recover the carrier's incremental fuel cost increases4 7#c7 ,the ,board is authorized to require any rail carrier to report actual fuel prices as necessary to carry out the purposes of this subsection4 7#d7 ,a shipper may challenge a fuel surcharge as an unreasonable practice under section #ajgjb7b7 if such charges1 as applied to that shipper1 exceed the carrier's incremental fuel costs4 4 #f4 ,revenue adequacy 7a7 ,elimination of revenue adequacy test ,section #ajgjd7;a7 of title #di1 ,united ,states ,code1 is amended by striking paragraph 7#c74 7b7 ,railroad cost of capital ,section #ajgjd7;a7 of such title1 as amended by subsection 7a71 is further amended by adding at the end the following3 7#c7 ,in calculating a rail carrier's cost of capital1 the ,board shall multiply the value of the capital by the sum of-- 7,a7 the current annual yield on a #aj-year ,united ,states ,treasury ,bond2 and 7,b7 a prospective market risk premium1 which shall not exceed #e percent per year4 4