49 U.S.C. § 10906 — Exception

Page 437 TITLE 49—TRANSPORTATION § 10906 (3) If a rail carrier receives more than one offer to subsidize or purchase, it shall select the offeror with whom it wishes to transact busi- ness, and complete the subsidy or sale agree- ment, or request that the Board establish the conditions and amount of compensation before the 40th day after the expiration of the 4-month period described in subsection (c). If no agree- ment on subsidy or sale is reached within such 40-day period and the Board has not been re- quested to establish the conditions and amount of compensation, any other offeror whose offer was made within the 4-month period described in subsection (c) may request that the Board es- tablish the conditions and amount of compensa- tion. If the Board has established the conditions and amount of compensation, and the original offer has been withdrawn, any other offeror whose offer was made within the 4-month period described in subsection (c) may accept the Board’s decision within 20 days after such deci- sion, and the Board shall require the carrier to enter into a subsidy or sale agreement with such offeror, if such subsidy or sale agreement incor- porates the Board’s decision. (4)(A) No purchaser of a line or portion of line sold under this section may transfer or dis- continue service on such line prior to the end of the second year after consummation of the sale, nor may such purchaser transfer such line, ex- cept to the rail carrier from whom it was pur- chased, prior to the end of the fifth year after consummation of the sale. (B) No subsidy arrangement approved under this section shall remain in effect for more than one year, unless otherwise mutually agreed by the parties. (g) Upon abandonment of a railroad line under this chapter, the obligation of the rail carrier abandoning the line to provide transportation on that line, as required by section 11101(a), is extinguished. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 825.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10905 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). A prior section 10904, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1404; Pub. L. 96–448, title IV, § 402(b), Oct. 14, 1980, 94 Stat. 1941; Pub. L. 98–216, § 2(4), Feb. 14, 1984, 98 Stat. 5, related to filing and procedure for applications to abandon or discontinue railroad lines or rail transpor- tation, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). See section 10903 of this title. 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. § 10905. Offering abandoned rail properties for sale for public purposes When the Board approves an application to abandon or discontinue under section 10903, the Board shall find whether the rail properties that are involved in the proposed abandonment or discontinuance are appropriate for use for public purposes, including highways, other forms of mass transportation, conservation, energy pro- duction or transmission, or recreation. If the Board finds that the rail properties proposed to be abandoned are appropriate for public pur- poses and not required for continued rail oper- ations, the properties may be sold, leased, ex- changed, or otherwise disposed of only under conditions provided in the order of the Board. The conditions may include a prohibition on any such disposal for a period of not more than 180 days after the effective date of the order, unless the properties have first been offered, on reason- able terms, for sale for public purposes. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 827.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10906 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). A prior section 10905, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1405; Pub. L. 96–448, title IV, § 402(c), Oct. 14, 1980, 94 Stat. 1942; Pub. L. 103–272, § 4(j)(26), July 5, 1994, 108 Stat. 1369, related to offers of financial assistance to avoid abandonment and discontinuance, prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). See section 10904 of this title. 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. § 10906. Exception Notwithstanding section 10901 and subchapter II of chapter 113 of this title, and without the approval of the Board, a rail carrier providing transportation subject to the jurisdiction of the Board under this part may enter into arrange- ments for the joint ownership or joint use of spur, industrial, team, switching, or side tracks. The Board does not have authority under this chapter over construction, acquisition, oper- ation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 827.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10907 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). A prior section 10906, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1406, related to offering abandoned rail properties for sale for public purposes, prior to the general amend- ment of this subtitle by Pub. L. 104–88, § 102(a). See sec- tion 10905 of this title. 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. Page 438 TITLE 49—TRANSPORTATION § 10907 § 10907. Railroad development (a) In this section, the term ‘‘financially re- sponsible person’’ means a person who— (1) is capable of paying the constitutional minimum value of the railroad line proposed to be acquired; and (2) is able to assure that adequate transpor- tation will be provided over such line for a pe- riod of not less than 3 years. Such term includes a governmental authority but does not include a Class I or Class II rail carrier. (b)(1) When the Board finds that— (A)(i) the public convenience and necessity require or permit the sale of a particular rail- road line under this section; or (ii) a railroad line is on a system diagram map as required under section 10903 of this title, but the rail carrier owning such line has not filed an application to abandon such line under section 10903 of this title before an ap- plication to purchase such line, or any re- quired preliminary filing with respect to such application, is filed under this section; and (B) an application to purchase such line has been filed by a financially responsible person, the Board shall require the rail carrier owning the railroad line to sell such line to such finan- cially responsible person at a price not less than the constitutional minimum value. (2) For purposes of this subsection, the con- stitutional minimum value of a particular rail- road line shall be presumed to be not less than the net liquidation value of such line or the going concern value of such line, whichever is greater. (c)(1) For purposes of this section, the Board may determine that the public convenience and necessity require or permit the sale of a railroad line if the Board determines, after a hearing on the record, that— (A) the rail carrier operating such line re- fuses within a reasonable time to make the necessary efforts to provide adequate service to shippers who transport traffic over such line; (B) the transportation over such line is inad- equate for the majority of shippers who trans- port traffic over such line; (C) the sale of such line will not have a sig- nificantly adverse financial effect on the rail carrier operating such line; (D) the sale of such line will not have an ad- verse effect on the overall operational per- formance of the rail carrier operating such line; and (E) the sale of such line will be likely to re- sult in improved railroad transportation for shippers that transport traffic over such line. (2) In a proceeding under this subsection, the burden of proving that the public convenience and necessity require or permit the sale of a par- ticular railroad line is on the person filing the application to acquire such line. If the Board finds under this subsection that the public con- venience and necessity require or permit the sale of a particular railroad line, the Board shall concurrently notify the parties of such finding and publish such finding in the Federal Register. (d) In the case of any railroad line subject to sale under subsection (a) of this section, the Board shall, upon the request of the acquiring carrier, require the selling carrier to provide to the acquiring carrier trackage rights to allow a reasonable interchange with the selling carrier or to move power equipment or empty rolling stock between noncontiguous feeder lines oper- ated by the acquiring carrier. The Board shall require the acquiring carrier to provide the sell- ing carrier reasonable compensation for any such trackage rights. (e) The Board shall require, to the maximum extent practicable, the use of the employees who would normally have performed work in connec- tion with a railroad line subject to a sale under this section. (f) In the case of a railroad line which carried less than 3,000,000 gross ton miles of traffic per mile in the preceding calendar year, whenever a purchasing carrier under this section petitions the Board for joint rates applicable to traffic moving over through routes in which the pur- chasing carrier may practicably participate, the Board shall, within 30 days after the date such petition is filed and pursuant to section 10705(a) of this title, require the establishment of rea- sonable joint rates and divisions over such route. (g)(1) Any person operating a railroad line ac- quired under this section may elect to be ex- empt from any of the provisions of this part, ex- cept that such a person may not be exempt from the provisions of chapter 107 of this title with respect to transportation under a joint rate. (2) The provisions of paragraph (1) of this sub- section shall apply to any line of railroad which was abandoned during the 18-month period im- mediately prior to October 1, 1980, and was sub- sequently purchased by a financially responsible person. (h) If a purchasing carrier under this section proposes to sell or abandon all or any portion of a purchased railroad line, such purchasing car- rier shall offer the right of first refusal with re- spect to such line or portion thereof to the car- rier which sold such line under this section. Such offer shall be made at a price equal to the sum of the price paid by such purchasing carrier to such selling carrier for such line or portion thereof and the fair market value (less deterio- ration) of any improvements made, as adjusted to reflect inflation. (i) Any person operating a railroad line ac- quired under this section may determine pre- conditions, such as payment of a subsidy, which must be met by shippers in order to obtain serv- ice over such lines, but such operator must no- tify the shippers on the line of its intention to impose such preconditions. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 828.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 10910 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Prior sections 10907 to 10910 and 10921 to 10936 were omitted in the general amendment of this subtitle by Pub. L. 104–88, § 102(a).