
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 49USC11324]

 
                        TITLE 49--TRANSPORTATION
 
                 SUBTITLE IV--INTERSTATE TRANSPORTATION
 
                              PART A--RAIL
 
                          CHAPTER 113--FINANCE
 
                       SUBCHAPTER II--COMBINATIONS
 
Sec. 11324. Consolidation, merger, and acquisition of control: 
        conditions of approval
        
    (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.

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 
recommendations of the Attorney General.
    (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.

(Added Pub. L. 104-88, title I, Sec. 102(a), Dec. 29, 1995, 109 Stat. 
839.)


                            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, Sec. 102(a).

                  Section Referred to in Other Sections

    This section is referred to in sections 333, 11325, 11326, 11327 of 
this title; title 45 section 1112.
