94 STAT. 1900 Repeal.
PUBLIC LAW 96-448—OCT. 14, 1980
(2) Section 10701(b) of title 49, United States Code, is repealed. (3) The section anedysis of chapter 107 of title 49, United States Code, is amended by inserting immediately below the item relating to section 10701 the following new item: "10701a. Standards for rates for rail carriers.". DETERMINATION OF MARKET DOMINANCE
Definitions.
Ante, p. 1895.
C!ost recovery percentage.
Revenuevariable cost percentage. Ante, p. 1916.
SEC. 202. Section 10709 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: "(d)(l) In this subsection— "(A) 'fixed and variable cost' means all cost incurred by r£ul carriers in the transportation of freight, but limiting the return on equity capital to a rate equal to the embedded cost of debt. "(B)(i) 'cost recovery percentage' means the lowest revenuevariable cost percentage which, if all movements that produced revenues resulting in revenue-variable cost percentages in excess of the cost recovery percentage are deemed to have produced only revenues resulting in the cost recovery percentage, would produce revenues which would be equal, when combined with total revenues produced by all other traffic transported by rail carrier, to the total fixed and variable cost of the transportation of all traffic by rail carrier. "(ii) for purposes of determining the cost recovery percentage only, 'revenue-variable cost percentage' means the quotient, expressed as a percentage figure, obtained by dividing the total revenues produced by the transportation of all traffic received by rail carriers for rail transportation by the total variable cost of such transportation. "(2) In making a determination under this section, the Commission 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— "(A) 160 percent during the period beginning on the effective date of the Staggers Rail Act of 1980 and ending September 30, 1981; "(B) 165 percent during the period beginning October 1, 1981, and ending September 30, 1982; "(C) 170 percent during the period beginning October 1, 1982, and ending September 30, 1983; "(D) 175 percent or the cost recovery percentage, whichever is less, during the period beginning October 1, 1983, and ending September 30, 1984; and "(E) the cost recovery percentage, during each 12-month period beginning on or after October 1, 1984. For purposes of subparagraphs (D) and (E) of this paragraph, the cost recovery percentage shall in no event be less than a revenue-variable cost percentage of 170 percent or more than a revenue-variable cost percentage of 180 percent. "(3) For purposes of determining the revenue-variable cost percentage for a particular transportation, variable costs shall be determined pursuant to section 10705a(m)(l) of this title, with adjustments specified by the Commission. A rail carrier may meet its burden of proof under this subsection by establishing its vsiriable costs in accordance with such section 10705a(m)(l)> but a shipper may rebut
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