49 U.S.C. § 11325 — Consolidation, merger, and acquisition of

Page 452 TITLE 49—TRANSPORTATION § 11325 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 applica- tion unless it finds that— (1) as a result of the transaction, there is likely to be substantial lessening of competi- tion, 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 trans- action outweigh the public interest in meeting significant transportation needs. In making such findings, the Board shall, with respect to any application that is part of a plan or proposal developed under section 333(a)–(d) of this title, accord substantial weight to any rec- ommendations of the Attorney General. (e) No transaction described in section 11326(b) may have the effect of avoiding a collective bar- gaining 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 sub- section, a proceeding under this subchapter re- lating to a transaction involving at least one Class I rail carrier shall not be considered an ad- judication 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 com- munication concerning the merits of a pro- ceeding described in paragraph (1) shall prompt- ly 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 communica- tion concerning the merits of a proceeding de- scribed 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 con- strued to require the Board or any of its mem- bers 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 em- ployees of the Board, in their discretion, to note in the docket or otherwise publicly the occur- rence and substance of an ex parte communica- tion. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 839.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained 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 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. § 11325. Consolidation, merger, and acquisition of control: procedure (a) The Board shall publish notice of the appli- cation under section 11324 in the Federal Reg- ister by the end of the 30th day after the appli- cation is filed with the Board. However, if the application is incomplete, the Board shall reject it by the end of that period. The order of rejec- tion is a final action of the Board. The published notice shall indicate whether the application in- volves— (1) the merger or control of at least two Class I railroads, as defined by the Board, to be decided within the time limits specified in subsection (b) of this section; (2) transactions of regional or national transportation significance, to be decided within the time limits specified in subsection (c) of this section; or (3) any other transaction covered by this section, to be decided within the time limits specified in subsection (d) of this section. (b) If the application involves the merger or control of two or more Class I railroads, as de- fined by the Board, the following conditions apply: (1) Written comments about an application may be filed with the Board within 45 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Attor- ney General and the Secretary of Transpor- tation, who may decide to intervene as a party to the proceeding. That decision must be made by the 15th day after the date of receipt of the written comments, and if the decision is to in- tervene, preliminary comments about the ap- plication must be sent to the Board by the end of the 15th day after the date of receipt of the written comments. (2) The Board shall require that applications inconsistent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it by the 90th day after publication of notice under that sub- section. (3) The Board must conclude evidentiary proceedings by the end of 1 year after the date of publication of notice under subsection (a) of this section. The Board must issue a final de- cision by the 90th day after the date on which it concludes the evidentiary proceedings. (c) If the application involves a transaction other than the merger or control of at least two Class I railroads, as defined by the Board, which the Board has determined to be of regional or national transportation significance, the fol- lowing conditions apply: (1) Written comments about an application, including comments of the Attorney General and the Secretary of Transportation, may be filed with the Board within 30 days after no- Page 453 TITLE 49—TRANSPORTATION § 11327 1 See References in Text note below. tice of the application is published under sub- section (a) of this section. (2) The Board shall require that applications inconsistent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it by the 60th day after publication of notice under that sub- section. (3) The Board must conclude any evidentiary proceedings by the 180th day after the date of publication of notice under subsection (a) of this section. The Board must issue a final de- cision by the 90th day after the date on which it concludes the evidentiary proceedings. (d) For all applications under this section other than those specified in subsections (b) and (c) of this section, the following conditions apply: (1) Written comments about an application, including comments of the Attorney General and the Secretary of Transportation, may be filed with the Board within 30 days after no- tice of the application is published under sub- section (a) of this section. (2) The Board must conclude any evidentiary proceedings by the 105th day after the date of publication of notice under subsection (a) of this section. The Board must issue a final de- cision by the 45th day after the date on which it concludes the evidentiary proceedings. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 841.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 11345 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 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. § 11326. Employee protective arrangements in transactions involving rail carriers (a) Except as otherwise provided in this sec- tion, when approval is sought for a transaction under sections 11324 and 11325 of this title, the Board shall require the rail carrier to provide a fair arrangement at least as protective of the in- terests of employees who are affected by the transaction as the terms imposed under section 5(2)(f) of the Interstate Commerce Act before February 5, 1976, and the terms established under section 24706(c) 1 of this title. Notwith- standing this part, the arrangement may be made by the rail carrier and the authorized rep- resentative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Board (or if an employee was employed for a lesser period of time by the rail carrier before the action became effective, for that lesser period). (b) When approval is sought under sections 11324 and 11325 for a transaction involving one Class II and one or more Class III rail carriers, there shall be an arrangement as required under subsection (a) of this section, except that such arrangement shall be limited to one year of sev- erance pay, which shall not exceed the amount of earnings from the railroad employment of that employee during the 12-month period im- mediately preceding the date on which the ap- plication for approval of such transaction is filed with the Board. The amount of such sever- ance pay shall be reduced by the amount of earnings from railroad employment of that em- ployee with the acquiring carrier during the 12- month period immediately following the effec- tive date of the transaction. The parties may agree to terms other than as provided in this subsection. (c) When approval is sought under sections 11324 and 11325 for a transaction involving only Class III rail carriers, this section shall not apply. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 842.) Editorial Notes REFERENCES IN TEXT Section 5(2)(f) of the Interstate Commerce Act, re- ferred to in subsec. (a), was classified to section 5(2)(f) of former Title 49, Transportation, prior to repeal and reenactment as section 11347 of this title by Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1439. Section 11347 of this title was subsequently omitted in the general amend- ment of this subtitle by Pub. L. 104–88, § 102(a). Section 24706(c) of this title, referred to in subsec. (a), was repealed by Pub. L. 105–134, title I, § 142(a), Dec. 2, 1997, 111 Stat. 2576. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 11347 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 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. § 11327. Supplemental orders When cause exists, the Board may make ap- propriate orders supplemental to an order made in a proceeding under sections 11322 through 11326 of this title. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 843.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 11351 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a).