§11324 — Title 49 Transportation | U.S. Code

Summary

The Board can start a review when someone asks to approve a railroad merger, takeover, or control change. When an application is filed, the Board must tell the chief executive officer (governor) of every State where the railroads have property and must tell the rail carriers involved. The Board will hold a public hearing unless it decides one is not needed in the public interest. For deals that merge or change control of at least two Class I railroads (the largest railroads, as the Board defines), the Board must look at five things: whether transportation service will stay adequate, whether other nearby carriers should be included, the deal’s total fixed charges, the effect on affected railroad employees, and whether competition will be hurt. The Board must approve a deal only if it is consistent with the public interest. It can add conditions, such as forcing the sale of parallel tracks or requiring trackage rights and access to facilities, and those conditions must have fair operating terms and pay to fix any anticompetitive problems. If the deal includes guarantees, taking on payment of dividends or fixed charges, or will raise total fixed charges, the Board can approve it only if that is also in the public interest. For deals that do not involve at least two Class I railroads, the Board must approve unless the transaction is likely to greatly reduce competition or create a monopoly and those harms outweigh the need to meet important transportation needs. No deal may be used to avoid a collective bargaining agreement or shift work from a carrier with such an agreement to one without. For cases involving at least one Class I carrier, the review is not treated as a formal court‑like hearing under a certain administrative law, so private communications with Board members are allowed, but any written communications or written summaries of oral communications must be put promptly into the case’s public docket; the Board does not have to engage in such communications.

Title 49, §11324

Transportation — Source: USLM XML via OLRC

(a)The Board may begin a proceeding to approve and authorize a transaction referred to in section 11323 of this title on application of the person seeking that authority. When an application is filed with the Board, the Board shall notify the chief executive officer of each State in which property of the rail carriers involved in the proposed transaction is located and shall notify those rail carriers. The Board shall hold a public hearing unless the Board determines that a public hearing is not necessary in the public interest.

(b)In a proceeding under this section which involves the merger or control of at least two Class I railroads, as defined by the Board, the Board shall consider at least—

(1)the effect of the proposed transaction on the adequacy of transportation to the public;

(2)the effect on the public interest of including, or failing to include, other rail carriers in the area involved in the proposed transaction;

(3)the total fixed charges that result from the proposed transaction;

(4)the interest of rail carrier employees affected by the proposed transaction; and

(5)whether the proposed transaction would have an adverse effect on competition among rail carriers in the affected region or in the national rail system.

(c)The Board shall approve and authorize a transaction under this section when it finds the transaction is consistent with the public interest. The Board may impose conditions governing the transaction, including the divestiture of parallel tracks or requiring the granting of trackage rights and access to other facilities. Any trackage rights and related conditions imposed to alleviate anticompetitive effects of the transaction shall provide for operating terms and compensation levels to ensure that such effects are alleviated. When the transaction contemplates a guaranty or assumption of payment of dividends or of fixed charges or will result in an increase of total fixed charges, the Board may approve and authorize the transaction only if it finds that the guaranty, assumption, or increase is consistent with the public interest. The Board may require inclusion of other rail carriers located in the area involved in the transaction if they apply for inclusion and the Board finds their inclusion to be consistent with the public interest.

(d)In a proceeding under this section which does not involve the merger or control of at least two Class I railroads, as defined by the Board, the Board shall approve such an application unless it finds that—

(1)as a result of the transaction, there is likely to be substantial lessening of competition, creation of a monopoly, or restraint of trade in freight surface transportation in any region of the United States; and

(2)the anticompetitive effects of the transaction outweigh the public interest in meeting significant transportation needs.

(e)No transaction described in section 11326(b) may have the effect of avoiding a collective bargaining agreement or shifting work from a rail carrier with a collective bargaining agreement to a rail carrier without a collective bargaining agreement.

(f)(1)To the extent provided in this subsection, a proceeding under this subchapter relating to a transaction involving at least one Class I rail carrier shall not be considered an adjudication required by statute to be determined on the record after opportunity for an agency hearing, for the purposes of subchapter II of chapter 5 of title 5, United States Code.

(2)Ex parte communications, as defined in section 551(14) of title 5, United States Code, shall be permitted in proceedings described in paragraph (1) of this subsection, subject to the requirements of paragraph (3) of this subsection.

(3)(A)Any member or employee of the Board who makes or receives a written ex parte communication concerning the merits of a proceeding described in paragraph (1) shall promptly place the communication in the public docket of the proceeding.

(B)Any member or employee of the Board who makes or receives an oral ex parte communication concerning the merits of a proceeding described in paragraph (1) shall promptly place a written summary of the oral communication in the public docket of the proceeding.

(4)Nothing in this subsection shall be construed to require the Board or any of its members or employees to engage in any ex parte communication with any person. Nothing in this subsection or any other law shall be construed to limit the authority of the members or employees of the Board, in their discretion, to note in the docket or otherwise publicly the occurrence and substance of an ex parte communication.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in section 11344 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a).

Statutory Notes and Related Subsidiaries

Effective 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.

§11324 Consolidation, merger, and acquisition of control: conditions of approval