49 U.S.C. § 10903 — Filing and procedure for application to

Page 434 TITLE 49—TRANSPORTATION § 10902 Board shall give reasonable public notice, in- cluding notice to the Governor of any affected State, of the beginning of such proceeding. (c) The Board shall issue a certificate author- izing activities for which such authority is re- quested in an application filed under subsection (b) unless the Board finds that such activities are inconsistent with the public convenience and necessity. Such certificate may approve the application as filed, or with modifications, and may require compliance with conditions (other than labor protection conditions) the Board finds necessary in the public interest. (d)(1) When a certificate has been issued by the Board under this section authorizing the con- struction or extension of a railroad line, no other rail carrier may block any construction or extension authorized by such certificate by re- fusing to permit the carrier to cross its property if— (A) the construction does not unreasonably interfere with the operation of the crossed line; (B) the operation does not materially inter- fere with the operation of the crossed line; and (C) the owner of the crossing line com- pensates the owner of the crossed line. (2) If the parties are unable to agree on the terms of operation or the amount of payment for purposes of paragraph (1) of this subsection, either party may submit the matters in dispute to the Board for determination. The Board shall make a determination under this paragraph within 120 days after the dispute is submitted for determination. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 822.) Editorial Notes PRIOR PROVISIONS A prior section 10901, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1402; Pub. L. 96–448, title II, § 221, Oct. 14, 1980, 94 Stat. 1928, related to authorizing construction and op- eration of railroad lines, prior to the general amend- ment 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 pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10902. Short line purchases by Class II and Class III rail carriers (a) A Class II or Class III rail carrier providing transportation subject to the jurisdiction of the Board under this part may acquire or operate an extended or additional rail line under this sec- tion only if the Board issues a certificate au- thorizing such activity under subsection (c). (b) A proceeding to grant authority under sub- section (a) of this section begins when an appli- cation is filed. On receiving the application, the Board shall give reasonable public notice of the beginning of such proceeding. (c) The Board shall issue a certificate author- izing activities for which such authority is re- quested in an application filed under subsection (b) unless the Board finds that such activities are inconsistent with the public convenience and necessity. Such certificate may approve the application as filed, or with modifications, and may require compliance with conditions (other than labor protection conditions) the Board finds necessary in the public interest. (d) The Board shall require any Class II rail carrier which receives a certificate under sub- section (c) of this section to provide a fair and equitable arrangement for the protection of the interests of employees who may be affected thereby. The arrangement shall consist exclu- sively of one year of severance pay, which shall not exceed the amount of earnings from railroad employment of the employee during the 12- month period immediately preceding the date on which the application for such certificate is filed with the Board. The amount of such sever- ance pay shall be reduced by the amount of earnings from railroad employment of the em- ployee with the acquiring carrier during the 12- month period immediately following the effec- tive date of the transaction to which the certifi- cate applies. The parties may agree to terms other than as provided in this subsection. The Board shall not require such an arrangement from a Class III rail carrier which receives a cer- tificate under subsection (c) of this section. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 823.) Editorial Notes PRIOR PROVISIONS A prior section 10902, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1403, related to authorizing action by rail carriers to provide adequate, efficient, and safe facilities. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10903. Filing and procedure for application to abandon or discontinue (a)(1) A rail carrier providing transportation subject to the jurisdiction of the Board under this part who intends to— (A) abandon any part of its railroad lines; or (B) discontinue the operation of all rail transportation over any part of its railroad lines, must file an application relating thereto with the Board. An abandonment or discontinuance may be carried out only as authorized under this chapter. (2) When a rail carrier providing transpor- tation subject to the jurisdiction of the Board under this part files an application, the applica- tion shall include— (A) an accurate and understandable sum- mary of the rail carrier’s reasons for the pro- posed abandonment or discontinuance; (B) a statement indicating that each inter- ested person is entitled to make recommenda- tions to the Board on the future of the rail line; and (C)(i) a statement that the line is available for subsidy or sale in accordance with section Page 435 TITLE 49—TRANSPORTATION § 10903 1 See References in Text note below. 10904 of this title, (ii) a statement that the rail carrier will promptly provide to each inter- ested party an estimate of the annual subsidy and minimum purchase price, calculated in ac- cordance with section 10904 of this title, and (iii) the name and business address of the per- son who is authorized to discuss the subsidy or sale terms for the rail carrier. (3) The rail carrier shall— (A) send by certified mail notice of the appli- cation to the chief executive officer of each State that would be directly affected by the proposed abandonment or discontinuance; (B) post a copy of the notice in each ter- minal and station on each portion of a rail- road line proposed to be abandoned or over which all transportation is to be discontinued; (C) publish a copy of the notice for 3 con- secutive weeks in a newspaper of general cir- culation in each county in which each such portion is located; (D) mail a copy of the notice, to the extent practicable, to all shippers that have made significant use (as designated by the Board) of the railroad line during the 12 months pre- ceding the filing of the application; and (E) attach to the application filed with the Board an affidavit certifying the manner in which subparagraphs (A) through (D) of this paragraph have been satisfied, and certifying that subparagraphs (A) through (D) have been satisfied within the most recent 30 days prior to the date the application is filed. (b)(1) Except as provided in subsection (d), abandonment and discontinuance may occur as provided in section 10904. (2) The Board shall require as a condition of any abandonment or discontinuance under this section provisions to protect the interests of employees. The provisions shall be at least as beneficial to those interests as the provisions es- tablished under sections 11326(a) and 24706(c) 1 of this title before May 31, 1998. (c)(1) In this subsection, the term ‘‘potentially subject to abandonment’’ has the meaning given the term in regulations of the Board. The regu- lations may include standards that vary by re- gion of the United States and by railroad or group of railroads. (2) Each rail carrier shall maintain a complete diagram of the transportation system operated, directly or indirectly, by the rail carrier. The rail carrier shall submit to the Board and pub- lish amendments to its diagram that are nec- essary to maintain the accuracy of the diagram. The diagram shall— (A) include a detailed description of each of its railroad lines potentially subject to aban- donment; and (B) identify each railroad line for which the rail carrier plans to file an application to abandon or discontinue under subsection (a) of this section. (d) A rail carrier providing transportation sub- ject to the jurisdiction of the Board under this part may— (1) abandon any part of its railroad lines; or (2) discontinue the operation of all rail transportation over any part of its railroad lines; only if the Board finds that the present or future public convenience and necessity require or per- mit the abandonment or discontinuance. In making the finding, the Board shall consider whether the abandonment or discontinuance will have a serious, adverse impact on rural and community development. (e) Subject to this section and sections 10904 and 10905 of this title, if the Board— (1) finds public convenience and necessity, it shall— (A) approve the application as filed; or (B) approve the application with modifica- tions and require compliance with condi- tions that the Board finds are required by public convenience and necessity; or (2) fails to find public convenience and ne- cessity, it shall deny the application. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 823; amended Pub. L. 112–141, div. C, title II, § 32932(b), July 6, 2012, 126 Stat. 829.) Editorial Notes REFERENCES IN TEXT Section 24706(c) of this title, referred to in subsec. (b)(2), was repealed by Pub. L. 105–134, title I, § 142(a), Dec. 2, 1997, 111 Stat. 2576, effective 180 days after Dec. 2, 1997. PRIOR PROVISIONS A prior section 10903, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1403; Pub. L. 96–448, title IV, § 402(a), Oct. 14, 1980, 94 Stat. 1941; Pub. L. 98–216, § 2(14), Feb. 14, 1984, 98 Stat. 5; Pub. L. 103–272, § 5(m)(24), July 5, 1994, 108 Stat. 1378, related to authorizing abandonment and discontinu- ance of railroad lines and rail transportation. AMENDMENTS 2012—Subsec. (b)(2). Pub. L. 112–141 substituted ‘‘24706(c) of this title before May 31, 1998’’ for ‘‘24706(c) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways. EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. RAILROAD BRANCHLINE ABANDONMENTS BY BURLINGTON NORTHERN RAILROAD IN NORTH DAKOTA Pub. L. 97–102, title IV, § 402, Dec. 23, 1981, 95 Stat. 1465, as amended by Pub. L. 102–143, title III, § 343, Oct. 28, 1991, 105 Stat. 948, provided that: ‘‘Notwithstanding any other provision of law or of this Act, none of the funds provided in this or any other Act shall hereafter be used by the Interstate Commerce Commission to ap- prove railroad branchline abandonments in the State of North Dakota by the entity generally known as the Burlington Northern Railroad, or its agents or assign- ees, in excess of a total of 350 miles, except that exempt abandonments and discontinuances that are effec- tuated pursuant to section 1152.50 of title 49 of the Code Page 436 TITLE 49—TRANSPORTATION § 10904 of Federal Regulations after the date of enactment of the Department of Transportation and Related Agen- cies Appropriations Act, 1992 [Oct. 28, 1991], shall not apply toward such 350-mile limit: Provided, That this section shall be in lieu of section 311 (amendment num- bered 93) as set forth in the conference report and the joint explanatory statement of the committee of con- ference on the Department of Transportation and Re- lated Agencies Appropriations Act, 1982 (H.R. 4209), filed in the House of Representatives on November 13, 1981 (H. Rept. No. 97–331).’’ [Section 311 of H.R. 4209 is section 311 of Pub. L. 97–102, title III, Dec. 23, 1981, 95 Stat. 1460, which is not classified to the Code.] Similar provisions were contained in Pub. L. 97–92, title IV, § 115, Dec. 15, 1981, 95 Stat. 1196. [Interstate Commerce Commission abolished and functions of Commission transferred, except as other- wise provided in Pub. L. 104–88, to Surface Transpor- tation Board effective Jan. 1, 1996, by section 1302 of this title, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of this title. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appro- priate, see section 205 of Pub. L. 104–88, set out as a note under section 1301 of this title.] § 10904. Offers of financial assistance to avoid abandonment and discontinuance (a) In this section— (1) the term ‘‘avoidable cost’’ means all ex- penses that would be incurred by a rail carrier in providing transportation that would not be incurred if the railroad line over which the transportation was provided were abandoned or if the transportation were discontinued. Ex- penses include cash inflows foregone and cash outflows incurred by the rail carrier as a re- sult of not abandoning or discontinuing the transportation. Cash inflows foregone and cash outflows incurred include— (A) working capital and required capital expenditure; (B) expenditures to eliminate deferred maintenance; (C) the current cost of freight cars, loco- motives, and other equipment; and (D) the foregone tax benefits from not re- tiring properties from rail service and other effects of applicable Federal and State in- come taxes; and (2) the term ‘‘reasonable return’’ means— (A) if a rail carrier is not in reorganiza- tion, the cost of capital to the rail carrier, as determined by the Board; and (B) if a rail carrier is in reorganization, the mean cost of capital of rail carriers not in reorganization, as determined by the Board. (b) Any rail carrier which has filed an applica- tion for abandonment or discontinuance shall provide promptly to a party considering an offer of financial assistance and shall provide concur- rently to the Board— (1) an estimate of the annual subsidy and minimum purchase price required to keep the line or a portion of the line in operation; (2) its most recent reports on the physical condition of that part of the railroad line in- volved in the proposed abandonment or dis- continuance; (3) traffic, revenue, and other data necessary to determine the amount of annual financial assistance which would be required to con- tinue rail transportation over that part of the railroad line; and (4) any other information that the Board considers necessary to allow a potential offer- or to calculate an adequate subsidy or pur- chase offer. (c) Within 4 months after an application is filed under section 10903, any person may offer to subsidize or purchase the railroad line that is the subject of such application. Such offer shall be filed concurrently with the Board. If the offer to subsidize or purchase is less than the carrier’s estimate stated pursuant to subsection (b)(1), the offer shall explain the basis of the disparity, and the manner in which the offer is calculated. (d)(1) Unless the Board, within 15 days after the expiration of the 4-month period described in subsection (c), finds that one or more finan- cially responsible persons (including a govern- mental authority) have offered financial assist- ance regarding that part of the railroad line to be abandoned or over which all rail transpor- tation is to be discontinued, abandonment or discontinuance may be carried out in accord- ance with section 10903. (2) If the Board finds that such an offer or of- fers of financial assistance has been made within such period, abandonment or discontinuance shall be postponed until— (A) the carrier and a financially responsible person have reached agreement on a trans- action for subsidy or sale of the line; or (B) the conditions and amount of compensa- tion are established under subsection (f). (e) Except as provided in subsection (f)(3), if the rail carrier and a financially responsible per- son (including a governmental authority) fail to agree on the amount or terms of the subsidy or purchase, either party may, within 30 days after the offer is made, request that the Board estab- lish the conditions and amount of compensation. (f)(1) Whenever the Board is requested to es- tablish the conditions and amount of compensa- tion under this section— (A) the Board shall render its decision with- in 30 days; (B) for proposed sales, the Board shall deter- mine the price and other terms of sale, except that in no case shall the Board set a price which is below the fair market value of the line (including, unless otherwise mutually agreed, all facilities on the line or portion nec- essary to provide effective transportation services); and (C) for proposed subsidies, the Board shall establish the compensation as the difference between the revenues attributable to that part of the railroad line and the avoidable cost of providing rail freight transportation on the line, plus a reasonable return on the value of the line. (2) The decision of the Board shall be binding on both parties, except that the person who has offered to subsidize or purchase the line may withdraw his offer within 10 days of the Board’s decision. In such a case, the abandonment or discontinuance may be carried out immediately, unless other offers are being considered pursu- ant to paragraph (3) of this subsection.