49 CFR Part 1180 — Railroad Acquisition, Control, Merger, Consolidation Project, Trackage Rights, and Lease Procedures

PART 1180—RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 1321, 10502, 11323-11325. Subpart A—General Acquisition Procedures Source: 47 FR 9844, Mar. 8, 1982, unless otherwise noted. Redesignated at 47 FR 49592, Nov. 1, 1982. § 1180.0 Scope and purpose. (a) General. Major, significant, minor, exempt. major significant minor (b) Waiver. [66 FR 32583, June 15, 2001] § 1180.1 General policy statement for merger or control of at least two Class I railroads. (a) General. (b) Consolidation criteria. (c) Public interest considerations. (1) Potential benefits. (2) Potential harm. (i) Reduction of competition. (ii) Harm to essential services. (iii) Transitional service problems. (iv) Enhanced competition. (d) Conditions. (e) Employee protection. (f) Environment and safety. et seq. (2) During the environmental review process, railroad applicants have negotiated agreements with affected communities, including groups of communities and other entities such as state and local agencies. The Board encourages voluntary agreements of this nature because they can be extremely helpful and effective in addressing specific local and regional environmental and safety concerns, including the sharing of costs associated with mitigating merger-related environmental impacts. Generally, these privately negotiated solutions between an applicant railroad and some or all of the communities along particular rail corridors or other appropriate entities are more effective, and in some cases more far-reaching, than any environmental mitigation options the Board could impose unilaterally. Therefore, when such agreements are submitted to it, the Board generally will impose these negotiated agreements as conditions to approved mergers, and these agreements generally will substitute for specific local and site-specific environmental mitigation for a community that otherwise would be imposed. Moreover, to encourage and give effect to negotiated solutions whenever possible, the opportunity to negotiate agreements will remain available throughout the oversight process to replace local and site-specific environmental mitigation imposed by the agency. The Board will require compliance with the terms of all negotiated agreements submitted to it during oversight by imposing appropriate environmental conditions to replace the local and site-specific mitigation previously imposed. (3) Applicants will be required to work with the Federal Railroad Administration, on a case-by-case basis, to formulate Safety Integration Plans (SIPs) to ensure that safe operations are maintained throughout the merger implementation process. As part of the environmental review process, applicants will be required to submit: (i) A SIP and (ii) Evidence about potentially blocked grade crossings as a result of merger-related traffic increases or operational changes. (g) Oversight. (h) Service assurance and operational monitoring. (2) The Board will conduct significant post-approval operational monitoring to help ensure that service levels after a merger are reasonable and adequate. (3) The Board also will require applicants to establish problem resolution teams and specific procedures for problem resolution to ensure that any unanticipated post-merger problems related to service or any other transportation matters, including claims, are promptly addressed. These teams should include representatives of all appropriate employee categories. Also, the Board envisions the establishment of a Service Council made up of shippers, railroads, passenger service representatives, ports, rail labor, and other interested parties to provide an ongoing forum for the discussion of implementation issues. (4) Loss and damage claims handling. (5) Service failure claims. (6) Alternative rail service. (i) Cumulative impacts and crossover effects. (j) Inclusion of other carriers. (k) Transnational and other informational issues. (2) The Board will consult with relevant officials, as appropriate, to ensure that any conditions it imposes on an approved transaction are consistent with the North American Free Trade Agreement and other pertinent international agreements to which the United States is a party. In addition, the Board will cooperate with those Canadian and Mexican agencies charged with approval and oversight of a proposed transnational railroad combination. (l) National defense. (m) Public participation. [66 FR 32583, June 15, 2001, as amended at 83 FR 15080, Apr. 9, 2018] § 1180.2 Types of transactions. Transactions proposed under 49 U.S.C. 11323 involving more than one common carrier by railroad are of four types: Major, significant, minor, exempt. (a) A major (b) A significant (1) That the transaction clearly will not have any anticompetitive effects, or (2) That any anticompetitive effects of the transaction will clearly be outweighed by the transaction's anticipated contribution to the public interest in meeting significant transportation needs.

A transaction not involving the control or merger of two or more class I railroads is significant if neither such determination can clearly be made. (c) A minor major, significant, exempt (d) A transaction is exempt if it is within one of the nine categories described in paragraphs (d)(1) through (9) of this section.

The Board has found that its prior review and approval of these transactions is not necessary to carry out the rail transportation policy of 49 U.S.C. 10101; and is of limited scope or unnecessary to protect shippers from market abuse. See 49 U.S.C. 10502. A notice must be filed to use one of these class exemptions. The procedures are set out in § 1180.4(g). These class exemptions do not relieve a carrier of its statutory obligation to protect the interests of employees. See 49 U.S.C. 10502(g) and 11326. The enumeration of the following categories of transactions as exempt does not preclude a carrier from seeking an exemption of specific transactions not falling into these categories. (1) Acquisition of a line of railroad which would not constitute a major market extension where the Board has found that the public convenience and necessity permit abandonment. (2) Acquisition or continuance in control of a nonconnecting carrier or one of its lines where (i) the railroads would not connect with each other or any railroads in their corporate family, (ii) the acquisition or continuance in control is not part of a series of anticipated transactions that would connect the railroads with each other or any railroad in their corporate family, and (iii) the transaction does not involve a class I carrier. (3) Transactions within a corporate family that do not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside the corporate family. (4) Renewal of leases and any other matters where the Board has previously authorized the transaction, and only an extension in time is involved. (5) Joint projects involving the relocation of a line of railroad which does not disrupt service to shippers. (6) Reincorporation in a different State. (7) Acquisition of trackage rights and renewal of trackage rights by a rail carrier over lines owned or operated by any other rail carrier or carriers that are: (i) based on written agreements, and (ii) not filed or sought in responsive applications in rail consolidation proceedings. (8) Acquisition of temporary trackage rights by a rail carrier over lines owned or operated by any other rail carrier or carriers that are: {i} based on written agreements, {ii} not filed or sought in responsive applications in rail consolidation proceedings, {iii} for overhead operations only, and {iv} scheduled to expire on a specific date not to exceed 1 year from the effective date of the exemption. If the operations contemplated by the exemption will not be concluded within the 1-year period, the parties may, prior to expiration of the period, file a request for a renewal of the temporary rights for an additional period of up to 1 year, including the reason(s) therefor. Rail carriers acquiring temporary trackage rights need not seek authority from the Board to discontinue the trackage rights as of the expiration date specified under 49 CFR 1180.4(g)(1)(ii). All transactions under this paragraph (d)(8) will be subject to applicable statutory labor protective conditions. (9) Acquisition of emergency temporary trackage rights by a rail carrier over lines owned or operated by any other rail carrier or carriers that are: {i} Based on written agreements, {ii} not filed or sought in responsive applications in rail consolidation proceedings, {iii} for overhead operations only, {iv} scheduled to expire on a specific date not to exceed three months from the effective date of the exemption, and {v} sought in response to an unforeseen track outage and expected to last more than seven days where there is no reasonable alternative to maintain pre-outage levels of service. If during the exemption period, the outage is resolved and use of the temporary emergency trackage rights ceases to be necessary to maintain service at pre-outage levels, the rail carrier must file a notice stating that the outage has been resolved and that use of the trackage rights has ceased and identifying the date on which use of the trackage rights ceased. Such a notice should be filed within 5 business days of the date on which use of the trackage rights ceased. The emergency temporary trackage rights authority expires upon the official filing date of the notice. If the operations contemplated by the exemption will not be concluded within the initial exemption period, the rail carrier may, prior to expiration of the period, file a request for a renewal of the temporary rights for an additional period of up to 3 months, including the reason(s) therefor. Rail carriers acquiring temporary trackage rights need not seek authority from the Board to discontinue the trackage rights as of the expiration date specified under § 1180.4(g)(1)(ii). All transactions under this paragraph (d)(9) will be subject to applicable statutory labor protective conditions. [47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, and amended at 50 FR 15751, Apr. 22, 1985; 51 FR 24669, July 8, 1986; 58 FR 63104, Nov. 30, 1993; 62 FR 9716, Mar. 4, 1997; 68 FR 28140, May 23, 2003; 86 FR 68930, Dec. 6, 2021] § 1180.3 Definitions. (a) Applicant. applicant not (1) In minor (2) In responsive applications, a primary applicant. (b) Applicant carriers. applicant carriers (c) Major market extension. Burlington Northern, Inc.—Control & Merger—St. L., (d) Petition for clarification. (e) Petition for waiver. (f) Primary application. (g) Railroad. (h) Responsive applications. (i) Transferee. (1) The acquiring corporation in a control proceeding, (2) The surviving corporation in a merger, (3) The resulting corporation in a consolidation, (4) The leasee in a lease, (5) The purchaser in an acquisition, and (6) The grantee of trackage rights in a trackage rights proceeding. (j) Transferor. (1) The corporation acquired in a control proceeding, (2) The merging corporation in a merger, (3) All corporations to be consolidated in a consolidation, (4) The lessor in a lease, (5) The seller in an acquisition, and (6) The grantor of trackage rights in a trackage rights proceeding. [47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, as amended at 62 FR 9716, Mar. 4, 1997; 62 FR 28376, May 23, 1997; 66 FR 32586, June 15, 2001; 81 FR 8856, Feb. 23, 2016] § 1180.4 Procedures. (a) General. major significant minor (2) Each party to a proceeding shall choose a unique acronym of four letters or less for itself. It shall number each document filed in the proceeding consecutively, prefixed by its acronym. (3) Any document filed with the Board (including applications, pleadings, etc.) shall be promptly furnished to interested persons on request, unless subject to a protective order. At any time, the Board may require the submission of additional copies of any document previously filed by any party to the proceeding. (b) Prefiling notification. major significant (i) Briefly describe the transaction, (ii) Indicate the year to be used for the impact analysis, (iii) Indicate the approximate filing date of the application, and (iv) Indicate why the transaction is major significant. (2) The Board will publish a notice in the Federal Register (i) A brief description of the transaction, (ii) The year to be used for the impact analysis, (iii) The approximate filing date, (iv) A determination that the transaction is major, significant, minor, (v) A statement of any additional information which must be filed with the application in order for the application to be considered complete. (3) A prefiling notice may be amended to indicate a change in the anticipated filing date. (4) Prefiling notification. (i) A proposed procedural schedule. Federal Register (ii) A proposed draft protective order. (iii) A statement of waybill availability for major transactions. (iv) Applicants may also propose the use of a voting trust at this stage, or at a later stage, if that becomes necessary. In each proceeding involving a major transaction, applicants contemplating the use of a voting trust must explain how the trust would insulate them from an unlawful control violation and why their proposed use of the trust, in the context of their impending control application, would be consistent with the public interest. Following a brief period of public comment and replies by applicants, the Board will issue a decision determining whether applicants may establish and use the trust. (c) Application. (2) Filing requirements. (ii) The application shall be filed with Chief of Case Administration, Office of Chief Counsel, Surface Transportation Board, Washington, DC 20423-0001. (iii) Each copy of the application shall conform in all respects to the original and shall be complete in itself except that the signature in the copies may be stamped or typed and the notarial seal may be omitted. In like manner, where certified copies of documents are filed with the application, conformed copies thereof, showing certification in stamped or typewritten form, will be sufficient to accompany the additional copies of the application. (iv) All applications required to be filed with the Board or served on designated persons shall include all exhibits, except as otherwise specifically noted. Information from other documents may be incorporated by reference in the application. However, the documents must have been filed with the Board within three years prior to filing of the application, the information must be up to date, and applicant must be prepared to supply copies of this information to interested persons on specific request. (v) The applicant shall submit such additional information to support its application as the Board may require. (vi) Applicant shall file concurrently all directly related applications, e.g., (vii) The application shall contain a certificate of service indicating that all persons designated in § 1180.4(c)(5) have been served with a copy of the application. (3) In a major significant (4) The application and all exhibits shall be considered part of the evidentiary record upon acceptance. Any portion of an application and exhibits will remain subject to motions to strike. However, no motion need be made to have the application and exhibits admitted to the evidentiary record. If a major significant (5) Service. The applicant shall serve a conformed copy of an application filed under these procedures by first-class mail upon: (i) The Governor (or Executive Officer), Public Service Commission, and the Department of Transportation of each State in which any part of the properties of the applicant carriers involved in the proposed transaction is situated; (ii) The Secretary of the United States Department of Transportation (Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. (iii) The Attorney General of the United States; (iv) The Federal Trade Commission; and (v) In major significant Federal Register. (6) Application format. (ii) If any material required in the application would lend itself to being placed in an appendix, this should be done. The appendix and application shall be tabulated and cross-referenced in an index for ease in locating and referring to the information. The appendixes shall be in the same sequence as the information required by these procedures. If certain information required in the application is not applicable, provide an explanation. The application should be bound, and it may be bound in more than one volume. If an application is more than one volume, the cover of each volume should be in a different color. The pages in each volume shall begin with 1, and be sequentially numbered. (iii) The Board's Office of Chief Counsel will provide informal opinions and interpretations, which are not binding on the Board, regarding the format of or information to be included in the application. (iv) All filing, service, or other requirements of these procedures must be complied with when filing the application. Copies of the application filed with the Board shall be marked in red “Railroad Consolidation Application” on the transmittal envelope or package. (v) The application shall conform to the typographical specifications of § 1104.2. (vi) The information and data required of any applicant may be consolidated with the information and data required of the affiliated applicant carriers. (7) Acceptance or rejection of an application. (i) The Board shall accept a complete application no later than 30 days after the application is filed with the Board by publishing a notice in the Federal Register. major significant minor (ii) The Board shall reject an incomplete application by serving a decision no later than 30 days after the application is filed with the Board. The decision shall explain specifically why the application was incomplete. A revised application may be submitted, incorporating portions of the prior application by reference. The resubmission or refiling of an application shall be considered a de novo (8) The application must present a prima facie prima facie Railroad Consolidation Procedures, (d) Responsive applications. (2) An inconsistent application will be classified as a major, significant, or minor transaction as provided in § 1180.2(a) through (c). The fee for an inconsistent application will be the fee for the type of transaction involved. See 49 CFR 1002.2(f)(38) through (41). The fee for any other type of responsive application is the fee for the particular type of proceeding set forth in 49 CFR 1002.2(f). (3) Each responsive application filed and accepted for consideration will automatically be consolidated with the primary application for consideration. (e) Evidentiary proceeding. (2) The evidentiary proceeding will be completed: (i) Within 1 year after the primary application is accepted for a major (ii) Within 180 days for a significant (iii) Within 105 days for a minor (3) A final decision on the primary application and on all consolidated cases will be issued: (i) Within 90 days after the conclusion of the evidentiary proceeding for a major (ii) Within 90 days for a significant (iii) Within 45 days for a minor (4) The Secretary of Transportation may propose modifications to any transaction and shall have standing to appear before the Board in support of any such proposed modification. (f) Waiver or clarification. (2) Except as otherwise provided in the procedural schedule adopted by the Board in any particular proceeding, petitions for waiver or clarification must be filed at least 45 days before the application is filed. (3) No replies to a petition for waiver will be permitted, except where a proceeding involving the same parties and a related transaction is pending before us. 1 1 Itel Corp.—Control-Green Bay and W. R. Co., (4) A waiver or clarification granted to any applicant in a proceeding shall apply to any other party to the proceeding unless otherwise indicated. (5) All petitions for waiver or clarification must specify the sections for which waiver or clarification is sought and give the specific reasons why each waiver or clarification is necessary. (g) Notice of exemption. (i) All notices filed under § 1180.2(d) shall contain the information required in § 1180.6(a)(1)(i) through (iii), (a)(5) and (6), and (a)(7)(ii), and indicate the level of labor protection to be imposed. (ii) Notices filed under §§ 1180.2(d)(7), 1180.2(d)(8), or 1180.2(d)(9) shall also contain the following information: (A) The name of the tenant railroad; (B) The name of the landlord railroad; (C) A description of the trackage rights, including a description of the track. For notices under § 1180.2(d)(8) and (9), the notice must state that the trackage rights are overhead rights. For notices under § 1180.2(d)(7), the notice must state whether the trackage rights are local or overhead; (D) The date the trackage rights transaction is proposed to be consummated; (E) The date temporary trackage rights will expire, if applicable; and (F) For notices under § 1180.2(d)(9), a description of the situation resulting in the outage in sufficient detail to allow the Board to determine an emergency exits, including, to the extent possible, the nature of the event that caused the unforeseen outage, the location of the outage, the date that the emergency situation occurred, the date the outage was discovered, and the expected duration of the outage. (iii) Except for notices filed under § 1180.2(d)(9), the Board shall publish a notice of exemption in the Federal Register Federal Register. (iv) If the notice contains false or misleading information that is brought to the Board's attention, the Board shall summarily revoke the exemption for that carrier and require divestiture. (v) The filing of a petition to revoke under 49 U.S.C. 10502(d) does not stay the effectiveness of an exemption. Except for notices filed under § 1180.2(d)(9), stay petitions must be filed at least 7 days before the exemption becomes effective. For notices filed under § 1180.2(d)(9), stay petitions should be filed as soon as possible before the exemption becomes effective. (vi) Other exemptions that may be relevant to a proposal under this provision are codified at 49 CFR part 1150, subpart D, which governs transactions under 49 U.S.C. 10901. (2) Some transactions may be subject to environmental review pursuant to the Board's environmental rules at 49 CFR part 1105. (3)(i) Except for notices filed under § 1180.2(d)(7), § 1180.2(d)(8), or § 1180.2(d)(9), the filing party must certify whether a proposed acquisition or operation of a rail line involves a provision or agreement that may limit future interchange with a third-party connecting carrier, whether by outright prohibition, per-car penalty, adjustment in the purchase price or rental, positive economic inducement, or other means (“interchange commitment”). If such a provision or agreement exists, the following additional information must be provided (the information in paragraphs (g)(4)(i)(B), (D), and (G) of this section may be filed with the Board under 49 CFR 1104.14(a) and will be kept confidential without need for the filing of an accompanying motion for a protective order under 49 CFR 1104.14(b)): (A) The existence of that provision or agreement and identification of the affected interchange points; and (B) A confidential, complete version of the document(s) containing or addressing that provision or agreement; (C) A list of shippers that currently use or have used the line in question within the last two years; (D) The aggregate number of carloads those shippers specified in paragraph (g)(4)(i)(C) of this section originated or terminated (confidential); (E) A certification that the filing party has provided notice of the proposed transaction and interchange commitment to the shippers identified in paragraph (g)(4)(i)(C) of this section; (F) A list of third party railroads that could physically interchange with the line sought to be acquired or leased; (G) An estimate of the difference between the sale or lease price with and without the interchange commitment (confidential); (H) A change in the case caption so that the existence of an interchange commitment is apparent from the case title. (ii) To obtain information about an interchange commitment for use in a proceeding before the Board, a shipper or other affected party may be granted access to the confidential documents filed pursuant to § 1180.4(g)(4)(i) of this section by filing, and serving upon the petitioner, a “Motion for Access to Confidential Documents,” containing: (A) An explanation of the party's need for the information; and (B) An appropriate draft protective order and confidentiality undertaking(s) that will ensure that the documents are kept confidential. (iii) Deadlines. (B) The Board will rule on a Motion for Access within 30 days after the motion is filed. (C) Parties must produce the relevant documents within 5 days of receipt of a Board approved, signed confidentiality agreement. (h) Official notice. (1) Annual STB Form R-1 Reports submitted by rail carriers. (2) Quarterly Commodity Statistics submitted by rail carriers. (3) STB Monthly Labor Statistics. (4) Quarterly Financial Statements of Rail Carriers. (5) All other reports submitted to the STB under oath. (6) Annual 1-percent Waybill Sample. (7) Federal Reserve Board Production Statistics. (8) AAR compilations of bad order ratios, equipment ownership and repair statistics, and freight car order figures. [47 FR 9844, Mar. 8, 1982] Editorial Note: For Federal Register www.govinfo.gov. § 1180.5 [Reserved] § 1180.6 Supporting information. (a) All applications filed under 49 U.S.C. 11323 shall show in the title the names of the applicants and the nature of the proposed transaction. Beneath the title indicate the name, title, business address, and telephone number of the person(s) to whom correspondence with respect to the application should be addressed. The following information shall be included in all applications: (1) A description of the proposed transaction, including appropriate references to any supporting exhibits and statements contained in the application and discussing the following: (i) A brief summary of the proposed transaction, the name of applicants, their business address, telephone number, and the name of the counsel to whom questions regarding the transaction can be addressed. (ii) The proposed time schedule for consummation of the proposed transaction. (iii) The purpose sought to be accomplished by the proposed transaction, e.g., operating economies, eliminating excess facilities, improving service, or improving the financial viability of the applicants. (iv) The nature and amount of any new securities or other financial arrangements. (2) A detailed discussion of the public interest justifications in support of the application, indicating how the proposed transaction is consistent with the public interest, with particular regard to the relevant statutory criteria, including (i) The effect of the transaction on inter- and intramodal competition, including a description of the relevant markets (see § 1180.7). Include a discussion of whether, as a result of the transaction, there is likely to be any lessening of competition, creation of a monopoly, or restraint of trade in freight surface transportation in any region of the United States. (ii) The financial consideration involved in the proposed transaction, and any economies, to be effected in operations, and any increase in traffic, revenues, earnings available for fixed charges, and net earnings, expected to result from the consummation of the proposed transaction. (iii) The effect of the increase, if any, of total fixed charges resulting from the proposed transaction. (iv) The effect of the proposed transaction upon the adequacy of transportation service to the public, as measured by the continuation of essential transportation services by applicants and other carriers. (v) The effect of the proposed transaction upon applicant carriers' employees (by class or craft), the geographic points where the impact will occur, the time frame of the impact (for at least 3 years after consolidation), and whether any employee protection agreements have been reached. (vi) The effect of inclusion (or lack of inclusion) in the proposed transaction of other railroads in the territory, under 49 U.S.C. 11324. (3) Any other supporting or descriptive statements applicants deem material. (4) An opinion of applicants' counsel that the transaction meets the requirements of the law and will be legally authorized and valid, if approved by the Board. This should include specific references to any pertinent provisions of applicants' bylaws or charter or articles of incorporation. 2 2 (5) A list of the State(s) in which any part of the property of each applicant carrier is situated. (6) Map (exhibit 1). Submit a general or key map indicating clearly, in separate colors or otherwise, the line(s) of applicant carriers in their true relations to each other, short line connections, other rail lines in the territory, and the principal geographic points in the region traversed. If a geographically limited transaction is proposed, a map detailing the transaction should also be included. In addition to the map accompanying each application, 20 unbound copies of the map shall be filed with the Board. (7) Explanation of the transaction. (i) Describe the nature of the transaction (e.g., merger, control, purchase, trackage rights), the significant terms and conditions, and the consideration to be paid (monetary or otherwise). (ii) Agreement (exhibit 2). Submit a copy of any contract or other written instrument entered into, or proposed to be entered into, pertaining to the proposed transaction. 3 3 (iii) If a consolidation or merger is proposed, indicate: (A) The name of the company resulting from the consolidation or merger; (B) the State or territory under the laws of which the consolidated company is to be formed or the merged company is to file its certificate of amendment; (C) the capitalization proposed for the resulting company; and (D) the amount and character of capital stock and other securities to be issued. (iv) Court order (exhibit 3). If a trustee, receiver, assignee, or personal representative of the real party in interest is an applicant, submit a certified copy of the order, if any, of the court having jurisdiction, authorizing the contemplated action. (v) State whether the property involved in the proposed transaction includes all the property of the applicant carriers and, if not, describe what property is included in the proposed transaction. (vi) Briefly describe the principal routes and termini of the lines involved, the principal points of interchange on the routes, and the amount of main-line mileage and branch line mileage involved. (vii) State whether any governmental financial assistance is involved in the proposed transaction and, if so, the form, amount, source, and application of such financial assistance. (8) Environmental data (exhibit 4). Submit information and data with respect to environmental matters prepared in accordance with 49 CFR part 1105. In major and significant transaction, applicants shall, as soon as possible, and no later than the filing of a notice of intent, consult with the Board's Office of Environmental Analysis for the proper format of the environmental report. (b) In a major (1) Form 10-K (exhibit 6). (2) Form S-4 (exhibit 7). (3) Change in control (exhibit 8). (4) Annual reports (exhibit 9). (5) Issues (exhibit 10). Submit a discussion of any other issues relevant to the transaction. (6) Corporate chart (exhibit 11). (7) If applicant is not a carrier, indicate (i) the type of business in which it is engaged, (ii) the length of time so engaged, and (iii) its present and prospective activities which have or may have a relation to transportation subject to 49 U.S.C. Subtitle IV. (8) Intercorporate or financial relationships. (9) Employee impact exhibit. Effects on Applicant Carriers' Employees Current Location Jobs Classification Jobs Transferred to Jobs Abolished Jobs Created Year (10) Conditions to mitigate and offset merger-related harms. (i) Applicants must explain how they would preserve competitive options for shippers and for Class II and III rail carriers. At a minimum, applicants must explain how they would preserve the use of major existing gateways, the potential for build-outs or build-ins, and the opportunity to enter into contracts for one segment of a movement as a means of gaining the right separately to pursue rate relief for the remainder of the movement. (ii) Applicants should explain how the transaction and conditions they propose would enhance competition and improve service. (11) Calculating public benefits. (12) Downstream merger applications. (ii) Applicants are expected to discuss whether any conditions imposed on an approval of their proposed merger would have to be altered, or any new conditions imposed, if the Board should approve additional future rail mergers. (13) Purpose of the proposed transaction. (c) In a significant [47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, and amended at 50 FR 15751, Apr. 22, 1985; 56 FR 41806, Aug. 3, 1991; 57 FR 28641, June 26, 1992; 58 FR 63104, Nov. 30, 1993; 62 FR 9717, Mar. 4, 1997; 64 FR 53269, Oct. 1, 1999; 66 FR 32587, June 15, 2001; 83 FR 15080, Apr. 9, 2018] § 1180.7 Market analyses. (a) For major significant (b) For major (1) The anticipated effects of the transaction on traffic patterns, market concentrations, and/or transportation alternatives available to the shipping public. Consistent with § 1180.6(b)(10), these would incorporate a detailed examination of any competition-enhancing aspects of the transaction and of the specific measures proposed by applicants to preserve existing levels of competition and essential services; (2) Actual and projected market shares of originated and terminated traffic by railroad for each major point on the combined system. Applicants may define points as individual stations or as larger areas (such as Bureau of Economic Analysis statistical areas or U.S. Department of Agriculture Crop Reporting Districts) as relevant and indicate the extent of switching access and availability of terminal belt railroads. Applicants should list points where the number of serving railroads would drop from two to one and from three to two, respectively, as a result of the proposed transaction (both before and after applying proposed remedies for competitive harm); (3) Actual and projected market shares of revenues and traffic volumes for major interregional or corridor flows by major commodity group. Origin/destination areas should be defined at relevant levels of aggregation for the commodity group in question. The data should be broken down by mode and (for the railroad portion) by single-line and interline routings (showing gateways used); (4) For each major commodity group, an analysis of traffic flows indicating patterns of geographic competition or product competition across different railroad systems, showing actual and projected revenues and traffic volumes; (5) Maps and other graphic displays where helpful in illustrating the analyses in this section; (6) An explicit delineation of the projected impacts of the transaction on the ability of various network links (including Class II and Class III rail carriers and ports) to participate in the competitive process and to sustain essential services; and (7) Supporting data for the analyses in this section, such as the basis for projections of changes in traffic patterns, including shipper surveys and econometric or other statistical analyses. If not made part of the application, applicants shall make these data available in a repository for inspection by other parties or otherwise supply these data on request, for example, electronically. Access to confidential information will be subject to protective order. For information drawn from publicly available published sources, detailed citations will suffice. (8) If necessary, an explanation as to how the lack of reliable and consistent data has limited applicants' ability to satisfy any of the requirements in this paragraph (b). (c) For significant It is important to note that these types of studies are neither limiting nor all-inclusive. [66 FR 32588, June 15, 2001] § 1180.8 Operational data. (a) Applications for major (1) A Safety Integration Plan, prepared in consultation with the Federal Railroad Administration, to ensure that safe operations would be maintained throughout the merger implementation process. (2) Information on what measures they plan to take to address potentially blocked crossings as a result of merger-related changes in operations or increases in rail traffic. (b) For major significant (1) The patterns of service on the properties, including the proposed principal routes, proposed consolidations of main-line operations, and the anticipated traffic density and general categories of traffic (including numbers of trains) on all main and secondary lines in the system. Identify all yards expected to have an increase in activity greater than 20 percent. Changes in operations may be summarized in a pro forma (2) If commuter or other passenger services are operated over the lines of applicant carriers, detail any impacts anticipated on such services, including delays which may be occasioned because a line is scheduled to handle increased traffic due to route consolidations. (3) The anticipated equipment requirements of the proposed system, including locomotives, rolling stock by type, and maintenance-of-way equipment; plans for acquisition and retirement of equipment; projected improvements in equipment utilization and their relation to operating changes; and how these will lead to the financial and service benefits described in the summary. (4) A description of the effect of any deferred maintenance or delayed capital improvements on any road or equipment properties involved, the schedule for eliminating such deferrals, details of general system rehabilitation including rehabilitation relating to the transaction (including proposed yard and terminal modifications), and how these activities will lead to the service improvements or operating economies anticipated from the transaction. (5) Density charts (exhibit 14). Gross ton-mile traffic density charts shall be filed for applicant carriers containing a map geographically showing those lines handling 1 million gross ton-miles per mile road or more per year and respective densities, expressed in gross ton-miles per year, in each direction, in segments of such lines between major freight yards and terminals, including major intramodal and intermodal interchange points, using the corporate or political subdivision name of the points shown as well as the railroad station name. The mileage of each segment of line shall be provided, and should be shown on the chart. Data shown in the density chart shall be for the latest available full calendar year preceding the filing of the application. At applicants' option data may be shown on the density chart or an explanatory list. (c) For minor (1) Traffic level density on lines proposed for joint operations. (2) Impacts on commuter or other passenger service operated over a line which is to be downgraded, eliminated, or operated on a consolidated basis. (3) Operating economies, which include, but are not limited to, estimated savings. (4) Any anticipated discontinuances or abandonments. [47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, as amended at 66 FR 32589, June 15, 2001] § 1180.9 Financial information. The following information shall be provided for major (a) Pro forma pro forma (1) In the first (2) In the second (3) In the third pro forma (4) In the fourth 4 4 first second third pro forma The transferor shall file a balance sheet similar to the one filed by the transferee, with the second If the parent company (if any) of the transferee or transferor is affected, a similar balance sheet shall be filed for each. All adjustments to these balance sheets shall be supported in footnotes to the appropriate balance sheet. Each adjustment and elimination shall be properly footnoted and fully explained. A pro forma balance sheet shall be submitted for the number of years following consummation necessary to effect the operating plan. (b) Pro forma pro forma 5 pro forma 5 pro forma (1) in the first column, transferee's actual income statement on a corporate entity basis for the year indicated in the impact analysis in exhibit 12; (2) in the second (3) in the third (4) in the fourth column, a compilation of the first three columns into a pro forma 6 6 first second third pro forma The transferor shall file an income statement similar to the one filed by the transferee, with the second column reflecting the adjustments resulting from the sale. If the parent company (if any) of the transferor or transferee is affected, a similar statement shall be filed for each. All adjustments to these income statements shall be supported in footnotes to the appropriate income statements. The adjustments are to be supported by a statement explaining the basis used in determining the estimated changes in revenues, expenses, and net income appearing in the third (c) Sources and application of funds (exhibit 18). Transferor's and transferee's statement of sources and application of funds for the current year, and a forecast 7 8 7 8 pro forma pro forma (d) Property encumbrance (exhibit 19). If any of the property covered by the application is encumbered and applicant has agreed to assume obligation or liability in respect thereof, submit: (1) A description of the property encumbered. (2) Amount of encumbrance and full description thereof, including maturity, interest rate, and other terms and conditions. (3) Amount of encumbrance assumed or to be assumed by applicant. (e) The Board will incorporate by reference the current balance sheets and income statements of Class I railroads which are on file with the Board. Class II and Class III railroads, and non-carrier entities shall submit balance sheets (exhibit 20) and income statements (exhibit 21) covering a period ending within 6 months before the application is filed. [47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, and amended at 58 FR 63104, Nov. 30, 1993; 62 FR 9717, Mar. 4, 1997; 64 FR 53269, Oct. 1, 1999] § 1180.10 Service assurance plans. For major (a) Integration of operations. (b) Coordination of freight and passenger operations. (c) Yard and terminal operations. (d) Infrastructure improvements. (e) Information technology systems. (f) Customer service. (g) Labor. (h) Training. (i) Contingency plans for merger-related service disruptions. (j) Timetable. (k) Benchmarking. (1) Corridor performance benchmarking. (2) Yard and terminal benchmarking Terminal dwell. (ii) On time originations by major yard. (3) System benchmarking. (ii) Average train velocity, by train type. (iii) Locomotive fleet size and applicable bad order ratios. (iv) Passenger train performance for commuter and intercity passenger services. [66 FR 32589, June 15, 2001] § 1180.11 Transnational and other informational requirements. (a) For applicants whose systems include operations in Canada or Mexico, applicants must explain how cooperation with the Federal Railroad Administration would be maintained to address potential impacts on operations within the United States of operations or events elsewhere on their systems. (b) All applicants must assess whether any restrictions or preferences under foreign or domestic law or policies could affect their commercial decisions, and discuss any ownership restrictions applicable to them. [66 FR 32590, June 15, 2001] Subpart B—Transfer or Operation of Lines of Railroads in Reorganization § 1180.20 Procedures. (a) Transactions under 11 U.S.C. 1172, for the transfer or operation of lines of bankrupt railroads under a plan of reorganization are governed by the following procedures: (1) If the buyer or operator is not a carrier, the Notice of Exemption procedures in subpart D of part 1150 of this title. (2) If the buyer or operator is a carrier, either: (i) The application procedures in subpart A of this part; or, (ii) The procedures in part 1121 of this title for a petition to exempt the transaction from prior approval requirements of 49 U.S.C. 11323 et seq. (b) The Board will establish or modify its existing procedures and deadlines as necessary in each proceeding to comply with appropriate orders of the Bankruptcy Court. (c) Under 11 U.S.C. 1172(c)(1), the Board is required to provide affected employees with adequate protection. The Board will impose the minimum levels required by 49 U.S.C. 11326, unless a need is shown for greater levels of protection. (d) All applications, notices, and petitions for exemption within the scope of § 1180.20(a) shall advise the Board that the proposed transaction involves the transfer or operation of lines in reorganization. [57 FR 57112, Dec. 3, 1992; 57 FR 61585, Dec. 28, 1992, as amended at 62 FR 9717, Mar. 4, 1997]

Related documents

• 49 CFR Part 1251 — Railroad Service Data Reporting#512032
• 49 CFR Part 1201 — Railroad Companies#512019
• 43 CFR Part 2630 — Railroad Grants#510112
• 49 CFR Part 174 — Carriage by Rail#511743
• 49 CFR Part 1182 — Purchase, Merger, and Control of Motor Passenger Carriers#512015