§10904. Filing and procedure for applications to abandon or discontinue

(a)(1) An application for a certificate of abandonment or discontinuance under section 10903 of this title, and a notice of intent to abandon or discontinue, must be filed with the Interstate Commerce Commission.

(2) When a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title files an application and notice of intent, the notice shall include-

(A) an accurate and understandable summary of the rail carrier's application and the reasons for the proposed abandonment or discontinuance;

(B) a statement indicating that each interested person is entitled to recommend to the Commission that it approve, deny, or take other action concerning the application; and

(C)(i) a statement that the line is available for subsidy or sale in accordance with section 10905 of this title, (ii) a statement that the carrier will promptly provide to each interested party an estimate of the subsidy and minimum purchase price required to keep the line in operation, calculated in accordance with section 10905 of this title, and (iii) the name and business address of the person who is authorized to discuss sale or subsidy terms for the carrier.

(3) The rail carrier shall-

(A) send by certified mail a copy of the notice of intent to the chief executive officer of each State that would be directly affected by the proposed abandonment or discontinuance;

(B) post a copy of the notice in each terminal and station on each portion of a railroad line proposed to be abandoned or over which all transportation is to be discontinued;

(C) publish a copy of the notice for 3 consecutive weeks in a newspaper of general circulation in each county in which each such portion is located;

(D) mail a copy of the notice, to the extent practicable, to all shippers that have made significant use (as designated by the Commission) of the railroad line during the 12 months preceding the filing of the application; and

(E) attach to the notice filed with the Commission an affidavit certifying the manner in which clauses (A)–(D) of this paragraph have been satisfied, and certifying that clauses (A)–(D) have been satisfied within the most recent 30 days prior to the date the application is filed.

(b) If no protest is received within 30 days after the application is filed, the Commission shall find that the public convenience and necessity require or permit the abandonment or discontinuance. In such a case, the Commission shall, within 45 days after the application is filed, issue a certificate which permits the abandonment or discontinuance to occur within 75 days after the application is filed.

(c)(1) If a protest is received within 30 days after the application is filed, the Commission shall, within 45 days after the application is filed, determine whether an investigation is needed to assist in determining what disposition to make of the application.

(2) If the Commission decides that no investigation is to be undertaken, the Commission shall, within 75 days after the application is filed, decide whether the present or future public convenience and necessity require or permit the abandonment or discontinuance, taking into consideration the application of the rail carrier and any materials submitted by protestants. If the Commission finds that the present or future public convenience and necessity require or permit the abandonment, it shall, within 90 days after the date of application, issue a certificate which permits the abandonment or discontinuance to occur within 120 days after the application is filed.

(3) If the Commission decides that an investigation should be undertaken under this section, the investigation must be completed within 135 days, and an initial decision must be rendered within 165 days, after the date the application is filed. Thirty days after such decision, the initial decision shall become the final decision of the Commission unless, during the interim, the Commission decides to hear appeals. If an initial decision is appealed and considered by the Commission, the Commission shall issue a final decision within 255 days after the date of application. Whenever the Commission decides upon investigation that the present or future public convenience and necessity require or permit the abandonment or discontinuance of rail service, it shall, within 15 days of the final decision, issue a certificate which permits the abandonment or discontinuance to occur within 75 days of the date of the final decision.

(4) The effective date of any certificate which permits abandonment or discontinuance may be stayed by the Commission pursuant to the provisions of section 10905 of this title.

(d)(1) The burden is on the person applying for the certificate to prove that the present or future public convenience and necessity require or permit the abandonment or discontinuance.

(2) For applications approved by the Secretary of Transportation as part of a plan or proposal under section 333(a)–(d) of this title, the Commission shall consider whether any detriment from the abandonment or discontinuance exceeds the transportation benefit from the plan or proposal as a whole.

(e)(1) In this subsection, "potentially subject to abandonment" has the meaning given the term in regulations of the Commission. The regulations may include standards that vary by region of the United States and by railroad or group of railroads.

(2) Each rail carrier shall maintain a complete diagram of the transportation system operated, directly or indirectly, by the carrier. The carrier shall submit to the Commission and publish amendments to its diagram that are necessary to maintain the accuracy of the diagram. The diagram shall-

(A) include a detailed description of each of its railroad lines potentially subject to abandonment; and

(B) identify each railroad line for which the carrier plans to file an application for a certificate under subsection (a) of this section.

(3) If an application for a certificate is opposed by-

(A) a shipper or other person that has made significant use (as determined by the Commission) of the railroad line involved in the proposed abandonment or discontinuance during the 12-month period before the filing of the application for a certificate; or

(B) a State or political subdivision of a State in which any part of the railroad line is located;

the Commission may issue a certificate under section 10903 of this title only if the railroad line has been described and identified in the diagram or amendment to the diagram of the rail carrier that was submitted to the Commission at least 4 months before the date on which the application was filed, except that the requirement of such description or identification in such diagram may be waived by the Commission if the application was approved by the Secretary of Transportation as part of a plan or proposal under section 333(a)–(d) of this title, or the application is filed by a railroad in bankruptcy.

( 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 .)

Historical and Revision Notes
Pub. L. 95–473

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
10904(a)(1)	49:1a(1) (less 1st and last sentences).	Feb. 4, 1887, ch. 104, 24 Stat. 379 , §1a(1) (less 1st and last sentences), (2), (3), (5); added Feb. 5, 1976, Pub. L. 94–210, §802, 90 Stat. 127 , 128.
10904(a)(2)	49:1a(2)(b).
10904(a)(3)	49:1a(2)(a).
10904(b)	49:1a(3) (last sentence).
10904(c)	49:1a(3) (less last sentence).
10904(d)	49:1a(5).

In subsection (a)(1), the words in the second sentence of 49:1a(1) following "such abandonment or discontinuance" are omitted as unnecessary in view of section 10321(a) of the revised title giving the Commission general authority to carry out the subtitle and prescribe regulations.

In subsection (a)(2)(B), the word "deny" is substituted for "disapprove" for consistency.

In subsection (a)(3)(D), the words "in its discretion" are omitted as surplus.

In subsection (c)(1), the words before the first comma are substituted for "60-day period" for clarity and consistency with subsection (a)(1). The words "begin an investigation" are substituted for "cause an investigation to be conducted" in view of the authority of the Commission under section 10305 of the revised title to delegate authority to conduct proceedings. The words "be issued and" are omitted as unnecessary.

In subsection (c)(2), the words "shall act under section 10903(b) of this title" are substituted for "shall issue such a certificate, in accordance with this section" as being more precise.

In subsection (d)(2), the words "shall maintain a complete diagram" are substituted for "shall, within 180 days after the date of promulgation of regulations by the Commission pursuant to this section, prepare, submit to the Commission, and publish" since the deleted words are executed. The words "full and" are omitted as surplus. The words "in accordance with regulations of the Commission" are omitted as unnecessary in view of section 10321(a) of the revised title giving the Commission general authority to carry out the subtitle and prescribe regulations.

In subsection (d)(3), the words "application for a certificate is opposed" are substituted for "abandonment or discontinuance is opposed" for clarity and consistency. The words "in its discretion" are omitted as surplus.

Pub. L. 98–216

This amends cross-references in sections 10904(d)(2) and (e)(3) and 11344(d) of title 49 affected by the codification of subtitle I of title 49 by section 1 of the Act of January 12, 1983 ( Pub. L. 97–449, 96 Stat. 2413 ).

Amendments

1984-Subsecs. (d)(2), (e)(3). Pub. L. 98–216 substituted "section 333(a)–(d) of this title" for "section 5(a)–(d) of the Department of Transportation Act (49 U.S.C. 1654(a)–(d))".

1980-Subsec. (a)(1). Pub. L. 96–448, §402(b)(1)(A), struck out "at least 60 days before the day on which the abandonment or discontinuance is to become effective" after "Commission".

Subsec. (a)(2)(C). Pub. L. 96–448, §402(b)(1)(B)–(D), added subpar. (C).

Subsec. (a)(3)(E). Pub. L. 96–448, §402(b)(1)(E), inserted ", and certifying that clauses (A)–(D) have been satisfied within the most recent 30 days prior to the date the application is filed" after "have been satisfied".

Subsec. (b). Pub. L. 96–448, §402(b)(2), substituted provision authorizing the Commission, if no protest is received within 30 days after the application is filed, to find that the public convenience and necessity require or permit abandonment or discontinuance and within 45 days after the application is filed, issue a certificate which permits abandonment or discontinuance to occur within 75 days after the application is filed for provision placing the burden on the person applying for the certificate to prove that the present or future public convenience and necessity require or permit the abandonment or discontinuance. See subsec. (d)(1) of this section.

Subsec. (c). Pub. L. 96–448, §402(b)(3), substituted provision authorizing the Commission, if a protest is received within 30 days after the application is filed, to determine, within 45 days after the application is filed, whether an investigation is needed to assist in determining the disposition of the application, specifying time limitations and procedures to be followed by the Commission if the Commission determines that no investigation is to be undertaken or that an investigation should be undertaken, and providing that the effective date of any certificate which permits abandonment or discontinuance may be stayed by the Commission pursuant to section 10905 of this title for provision authorizing the Commission, during the period between the date the application is filed through the day immediately before the proposed date the abandonment or discontinuance becomes effective, to begin, on petition or on its own initiative, an investigation, including public hearings, with the order to conduct the investigation served on the affected rail carrier not later than the 5th day before the proposed effective date of the abandonment or discontinuance and providing that if an investigation is not conducted, the Commission act under section 10903(b) of this title by the day immediately before the proposed effective date of the abandonment or discontinuance or if an investigation is conducted, the Commission postpone, for a reasonable period of time necessary to complete the investigation, the proposed effective date of any part of the abandonment or discontinuance.

Subsec. (d). Pub. L. 96–448, §402(b)(4), added subsec. (d). Former subsec. (d) redesignated (e).

Subsecs. (d), (e). Pub. L. 96–448, §402(b)(4), (5), added subsec. (d), redesignated former subsec. (d) as (e), and in subsec. (e) inserted ", except that the requirement of such description or identification in such diagram may be waived by the Commission if the application was approved by the Secretary of Transportation as part of a plan or proposal under section 5(a)–(d) of the Department of Transportation Act (49 U.S.C. 1654(a)–(d)), or the application is filed by a railroad in bankruptcy" after "application was filed".

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–448 effective Oct. 1, 1980, see section 710(a) of Pub. L. 96–448, set out as a note under section 10101 of this title.

Section Referred to in Other Sections

This section is referred to in sections 10903, 10907, 10910, 11505, 11702, 11901 of this title.