---
kind: "range"
citation: "49 U.S.C. §§ 11322–11326"
title: "49"
from: "11322"
to: "11326"
count: 5
release: "119-102"
url: "https://uscodex.org/usc/49/11322..11326"
---

# §11322. Limitation on pooling and division of transportation or earnings

- (a) A [rail carrier](/usc/49/10102.md?p=5) providing [transportation](/usc/49/10102.md?p=9) subject to the jurisdiction of the [Board](/usc/49/10102.md?p=1) under this part may not agree or combine with another of those [rail carriers](/usc/49/10102.md?p=5) to pool or divide traffic or services or any part of their earnings without the approval of the [Board](/usc/49/10102.md?p=1) under this section or [section 11123 of this title](/usc/49/11123.md). The [Board](/usc/49/10102.md?p=1) may approve and authorize the agreement or combination if the [rail carriers](/usc/49/10102.md?p=5) involved assent to the pooling or division and the [Board](/usc/49/10102.md?p=1) finds that a pooling or division of traffic, services, or earnings—
  - (1) will be in the interest of better service to the public or of economy of operation; and
  - (2) will not unreasonably restrain competition.
- (b) The [Board](/usc/49/10102.md?p=1) may impose conditions governing the pooling or division and may approve and authorize payment of a reasonable consideration between the [rail carriers](/usc/49/10102.md?p=5).
- (c) The [Board](/usc/49/10102.md?p=1) may begin a proceeding under this section on its own initiative or on application.

# §11323. Consolidation, merger, and acquisition of control

- (a) The following transactions involving [rail carriers](/usc/49/10102.md?p=5) providing [transportation](/usc/49/10102.md?p=9) subject to the jurisdiction of the [Board](/usc/49/10102.md?p=1) under this part may be carried out only with the approval and authorization of the [Board](/usc/49/10102.md?p=1):
  - (1) Consolidation or merger of the properties or franchises of at least 2 [rail carriers](/usc/49/10102.md?p=5) into one corporation for the ownership, management, and operation of the previously separately owned properties.
  - (2) A purchase, lease, or contract to operate property of another [rail carrier](/usc/49/10102.md?p=5) by any number of [rail carriers](/usc/49/10102.md?p=5).
  - (3) Acquisition of control of a [rail carrier](/usc/49/10102.md?p=5) by any number of [rail carriers](/usc/49/10102.md?p=5).
  - (4) Acquisition of control of at least 2 [rail carriers](/usc/49/10102.md?p=5) by a person that is not a [rail carrier](/usc/49/10102.md?p=5).
  - (5) Acquisition of control of a [rail carrier](/usc/49/10102.md?p=5) by a person that is not a [rail carrier](/usc/49/10102.md?p=5) but that controls any number of [rail carriers](/usc/49/10102.md?p=5).
  - (6) Acquisition by a [rail carrier](/usc/49/10102.md?p=5) of trackage rights over, or joint ownership in or joint use of, a [railroad](/usc/49/10102.md?p=6) line (and terminals incidental to it) owned or operated by another [rail carrier](/usc/49/10102.md?p=5).
- (b) A person may carry out a transaction referred to in [subsection (a)](#a) of this section or participate in achieving the control or management, including the power to exercise control or management, in a common interest of more than one of those [rail carriers](/usc/49/10102.md?p=5), regardless of how that result is reached, only with the approval and authorization of the [Board](/usc/49/10102.md?p=1) under this subchapter. In addition to other transactions, each of the following transactions are considered achievements of control or management:
  - (1) A transaction by a [rail carrier](/usc/49/10102.md?p=5) that has the effect of putting that [rail carrier](/usc/49/10102.md?p=5) and person affiliated with it, taken together, in control of another [rail carrier](/usc/49/10102.md?p=5).
  - (2) A transaction by a person affiliated with a [rail carrier](/usc/49/10102.md?p=5) that has the effect of putting that [rail carrier](/usc/49/10102.md?p=5) and persons affiliated with it, taken together, in control of another [rail carrier](/usc/49/10102.md?p=5).
  - (3) A transaction by at least 2 persons acting together (one of whom is a [rail carrier](/usc/49/10102.md?p=5) or is affiliated with a [rail carrier](/usc/49/10102.md?p=5)) that has the effect of putting those persons and [rail carriers](/usc/49/10102.md?p=5) and persons affiliated with any of them, or with any of those affiliated [rail carriers](/usc/49/10102.md?p=5), taken together, in control of another [rail carrier](/usc/49/10102.md?p=5).
- (c) A person is affiliated with a [rail carrier](/usc/49/10102.md?p=5) under this subchapter if, because of the relationship between that person and a [rail carrier](/usc/49/10102.md?p=5), it is reasonable to believe that the affairs of another [rail carrier](/usc/49/10102.md?p=5), control of which may be acquired by that person, will be managed in the interest of the other [rail carrier](/usc/49/10102.md?p=5).

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

- (a) The [Board](/usc/49/10102.md?p=1) may begin a proceeding to approve and authorize a transaction referred to in [section 11323 of this title](/usc/49/11323.md) on application of the person seeking that authority. When an application is filed with the [Board](/usc/49/10102.md?p=1), the [Board](/usc/49/10102.md?p=1) shall notify the chief executive officer of each [State](/usc/49/10102.md?p=8) in which property of the [rail carriers](/usc/49/10102.md?p=5) involved in the proposed transaction is located and shall notify those [rail carriers](/usc/49/10102.md?p=5). The [Board](/usc/49/10102.md?p=1) shall hold a public hearing unless the [Board](/usc/49/10102.md?p=1) 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](/usc/49/10102.md?p=6), as defined by the [Board](/usc/49/10102.md?p=1), the [Board](/usc/49/10102.md?p=1) shall consider at least—
  - (1) the effect of the proposed transaction on the adequacy of [transportation](/usc/49/10102.md?p=9) to the public;
  - (2) the effect on the public interest of including, or failing to include, other [rail carriers](/usc/49/10102.md?p=5) 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](/usc/49/10102.md?p=5) employees affected by the proposed transaction; and
  - (5) whether the proposed transaction would have an adverse effect on competition among [rail carriers](/usc/49/10102.md?p=5) in the affected region or in the national rail system.
- (c) The [Board](/usc/49/10102.md?p=1) shall approve and authorize a transaction under this section when it finds the transaction is consistent with the public interest. The [Board](/usc/49/10102.md?p=1) 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](/usc/49/10102.md?p=1) may approve and authorize the transaction only if it finds that the guaranty, assumption, or increase is consistent with the public interest. The [Board](/usc/49/10102.md?p=1) may require inclusion of other [rail carriers](/usc/49/10102.md?p=5) located in the area involved in the transaction if they apply for inclusion and the [Board](/usc/49/10102.md?p=1) 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](/usc/49/10102.md?p=6), as defined by the [Board](/usc/49/10102.md?p=1), the [Board](/usc/49/10102.md?p=1) 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](/usc/49/10102.md?p=9) in any region of the [United States](/usc/49/10102.md?p=10); and
  - (2) the anticompetitive effects of the transaction outweigh the public interest in meeting significant [transportation](/usc/49/10102.md?p=9) needs.

  In making such findings, the [Board](/usc/49/10102.md?p=1) shall, with respect to any application that is part of a plan or proposal developed under [section 333(a)–(d)](/usc/49/333.md?p=a..d) of this title, accord substantial weight to any recommendations of the Attorney General.

- (e) No transaction described in [section 11326(b)](/usc/49/11326.md?p=b) may have the effect of avoiding a collective bargaining agreement or shifting work from a [rail carrier](/usc/49/10102.md?p=5) with a collective bargaining agreement to a [rail carrier](/usc/49/10102.md?p=5) 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](/usc/49/10102.md?p=5) shall not be considered an adjudication required by statute to be determined on the record after opportunity for an [agency](/usc/49/114.md?p=n-2-A-i) hearing, for the purposes of subchapter II of [chapter 5](/usc/5/chptI-ch5.md) of title 5, United States Code.
  - (2) Ex parte communications, as defined in [section 551(14) of title 5](/usc/5/551.md?p=14), 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](/usc/49/10102.md?p=1) who makes or receives a written ex parte communication concerning the merits of a proceeding described in [paragraph (1)](#f-1) shall promptly place the communication in the public docket of the proceeding.
    - (B) Any member or employee of the [Board](/usc/49/10102.md?p=1) who makes or receives an oral ex parte communication concerning the merits of a proceeding described in [paragraph (1)](#f-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](/usc/49/10102.md?p=1) 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](/usc/49/10102.md?p=1), in their discretion, to note in the docket or otherwise publicly the occurrence and substance of an ex parte communication.

# §11325. Consolidation, merger, and acquisition of control: procedure

- (a) The [Board](/usc/49/10102.md?p=1) shall publish notice of the application under [section 11324](/usc/49/11324.md) in the Federal Register by the end of the 30th day after the application is filed with the [Board](/usc/49/10102.md?p=1). However, if the application is incomplete, the [Board](/usc/49/10102.md?p=1) shall reject it by the end of that period. The order of rejection is a final action of the [Board](/usc/49/10102.md?p=1). The published notice shall indicate whether the application involves—
  - (1) the merger or control of at least two Class I [railroads](/usc/49/10102.md?p=6), as defined by the [Board](/usc/49/10102.md?p=1), to be decided within the time limits specified in [subsection (b)](#b) of this section;
  - (2) transactions of regional or national [transportation](/usc/49/10102.md?p=9) significance, to be decided within the time limits specified in [subsection (c)](#c) of this section; or
  - (3) any other transaction covered by this section, to be decided within the time limits specified in [subsection (d)](#d) of this section.
- (b) If the application involves the merger or control of two or more Class I [railroads](/usc/49/10102.md?p=6), as defined by the [Board](/usc/49/10102.md?p=1), the following conditions apply:
  - (1) Written comments about an application may be filed with the [Board](/usc/49/10102.md?p=1) within 45 days after notice of the application is published under [subsection (a)](#a) of this section. Copies of such comments shall be served on the Attorney General and the Secretary of [Transportation](/usc/49/10102.md?p=9), 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 intervene, preliminary comments about the application must be sent to the [Board](/usc/49/10102.md?p=1) by the end of the 15th day after the date of receipt of the written comments.
  - (2) The [Board](/usc/49/10102.md?p=1) shall require that applications inconsistent with an application, notice of which was published under [subsection (a)](#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 subsection.
  - (3) The [Board](/usc/49/10102.md?p=1) must conclude evidentiary proceedings by the end of 1 year after the date of publication of notice under [subsection (a)](#a) of this section. The [Board](/usc/49/10102.md?p=1) must issue a final decision 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](/usc/49/10102.md?p=6), as defined by the [Board](/usc/49/10102.md?p=1), which the [Board](/usc/49/10102.md?p=1) has determined to be of regional or national [transportation](/usc/49/10102.md?p=9) significance, the following conditions apply:
  - (1) Written comments about an application, including comments of the Attorney General and the Secretary of [Transportation](/usc/49/10102.md?p=9), may be filed with the [Board](/usc/49/10102.md?p=1) within 30 days after notice of the application is published under [subsection (a)](#a) of this section.
  - (2) The [Board](/usc/49/10102.md?p=1) shall require that applications inconsistent with an application, notice of which was published under [subsection (a)](#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 subsection.
  - (3) The [Board](/usc/49/10102.md?p=1) must conclude any evidentiary proceedings by the 180th day after the date of publication of notice under [subsection (a)](#a) of this section. The [Board](/usc/49/10102.md?p=1) must issue a final decision 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)](#b) and [(c)](#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](/usc/49/10102.md?p=9), may be filed with the [Board](/usc/49/10102.md?p=1) within 30 days after notice of the application is published under [subsection (a)](#a) of this section.
  - (2) The [Board](/usc/49/10102.md?p=1) must conclude any evidentiary proceedings by the 105th day after the date of publication of notice under [subsection (a)](#a) of this section. The [Board](/usc/49/10102.md?p=1) must issue a final decision by the 45th day after the date on which it concludes the evidentiary proceedings.

# §11326. Employee protective arrangements in transactions involving rail carriers

- (a) Except as otherwise provided in this section, when approval is sought for a transaction under sections [11324](/usc/49/11324.md) and [11325](/usc/49/11325.md) of this title, the [Board](/usc/49/10102.md?p=1) shall require the [rail carrier](/usc/49/10102.md?p=5) to provide a fair arrangement at least as protective of the interests 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)](/usc/49/24706.md?p=c)[^1] of this title. Notwithstanding this part, the arrangement may be made by the [rail carrier](/usc/49/10102.md?p=5) and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected [rail carrier](/usc/49/10102.md?p=5) 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](/usc/49/10102.md?p=1) (or if an employee was employed for a lesser period of time by the [rail carrier](/usc/49/10102.md?p=5) before the action became effective, for that lesser period).
- (b) When approval is sought under sections [11324](/usc/49/11324.md) and [11325](/usc/49/11325.md) for a transaction involving one Class II and one or more Class III [rail carriers](/usc/49/10102.md?p=5), there shall be an arrangement as required under [subsection (a)](#a) of this section, except that such arrangement shall be limited to one year of severance pay, which shall not exceed the amount of earnings from the [railroad](/usc/49/10102.md?p=6) employment of that employee during the 12-month period immediately preceding the date on which the application for approval of such transaction is filed with the [Board](/usc/49/10102.md?p=1). The amount of such severance pay shall be reduced by the amount of earnings from [railroad](/usc/49/10102.md?p=6) employment of that employee with the acquiring carrier during the 12-month period immediately following the effective 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](/usc/49/11324.md) and [11325](/usc/49/11325.md) for a transaction involving only Class III [rail carriers](/usc/49/10102.md?p=5), this section shall not apply.