§11344. Consolidation, merger, and acquisition of control: general procedure and conditions of approval

(a) The Interstate Commerce Commission may begin a proceeding to approve and authorize a transaction referred to in section 11343 of this title on application of the person seeking that authority. When an application is filed with the Commission, the Commission shall notify the chief executive officer of each State in which property of the carriers involved in the proposed transaction is located and shall notify those carriers. If a motor carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title is involved in the transaction, the Commission must notify the persons specified in section 10328(b) of this title. The Commission shall hold a public hearing when a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of that chapter is involved in the transaction unless the Commission determines that a public hearing is not necessary in the public interest.

(b)(1) In a proceeding under this section which involves the merger or control of at least two class I railroads, as defined by the Commission, the Commission shall consider at least the following:

(A) the effect of the proposed transaction on the adequacy of transportation to the public.

(B) the effect on the public interest of including, or failing to include, other rail carriers in the area involved in the proposed transaction.

(C) the total fixed charges that result from the proposed transaction.

(D) the interest of carrier employees affected by the proposed transaction.

(E) whether the proposed transaction would have an adverse effect on competition among rail carriers in the affected region.

(2) In a proceeding under this section which involves only carriers of passengers providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter II of chapter 105 of this title, the Commission shall consider at least the following:

(A) the effect of the proposed transaction on the adequacy of transportation to the public.

(B) the effect on the public interest of including, or failing to include, other rail carriers in the area involved in the proposed transaction.

(C) the total fixed charges that result from the proposed transaction.

(D) the interest of carrier employees affected by the proposed transaction.

(c) The Commission shall approve and authorize a transaction under this section when it finds the transaction is consistent with the public interest. The Commission may impose conditions governing the transaction. 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 Commission may approve and authorize the transaction only if it finds that the guaranty, assumption, or increase is consistent with the public interest. When a rail carrier, or a person controlled by or affiliated with a rail carrier, is an applicant and the transaction involves a motor carrier, the Commission may approve and authorize the transaction only if it finds that the transaction is consistent with the public interest, will enable the rail carrier to use motor carrier transportation to public advantage in its operations, and will not unreasonably restrain competition. When a rail carrier is involved in the transaction, the Commission may require inclusion of other rail carriers located in the area involved in the transaction if they apply for inclusion and the Commission 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 Commission, the Commission 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 Commission 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 Secretary of Transportation. The provisions of this subsection do not apply to any proceeding under this section which involves only carriers of passengers providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title.

(e) A rail carrier, or a person controlled by or affiliated with a rail carrier, together with one or more affected shippers, may apply for approval under this subsection of a transaction for the purpose of providing motor carrier transportation prior or subsequent to rail transportation to serve inadequately served shippers located on a railroad other than the applicant carrier. Such application shall be approved by the Commission if the applicants demonstrate presently impaired rail service and inadequate motor common carrier service which results in the serious failure of the rail carrier serving the shippers to meet the rail equipment or transportation schedules of shippers or seriously to fail otherwise to provide adequate normal rail services required by shippers and which shippers would reasonably expect the rail carrier to provide. The Commission shall approve or disapprove applications under this subsection within 30 days after receipt of such application. The Commission shall approve applications which are not protested by interested parties within 30 days following receipt of such application.

( Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1436 ; Pub. L. 96–448, title II, §228(a)–(c), Oct. 14, 1980, 94 Stat. 1931 ; Pub. L. 97–261, §21(f), (g), Sept. 20, 1982, 96 Stat. 1123 ; 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)
11344(a)	49:5(2)(b) (less last sentence).	Feb. 4, 1887, ch. 104, §5(2)(b)–(e), 24 Stat. 380 ; Feb. 28, 1920, ch. 91, §407, 41 Stat. 480 ; June 10, 1921, ch. 20, §1, 42 Stat. 27 ; June 19, 1934, ch. 652, §602(b), 48 Stat. 1102 ; Aug. 9, 1935, ch. 498, §1, 49 Stat. 543 ; restated Sept. 18, 1940, ch. 722, §7, 54 Stat. 907 ; Aug. 2, 1949, ch. 379, §3, 63 Stat. 485 .
11344(b)	49:5(2)(c).
11344(c)	49:5(2)(b) (last sentence), (d), (e).

In subsection (a), the words "may begin a proceeding" are substituted for "and shall afford reasonable opportunity for interested parties to be heard. If the Commission shall consider it necessary in order to determine whether the findings specified below may properly be made, it shall set said application for public hearing;" for clarity and consistency in view of subchapter II of chapter 5 of title 5 and section 10327 of the revised title. The words "referred to in section 11343 of this title" are substituted for "under subdivision (a) of this paragraph" for consistency. The words "when an application is filed" are substituted for "shall present an application" for clarity. The words "and shall notify those carriers" are substituted for "and also such carriers and the applicant or applicants" for clarity and to eliminate redundancy since the applicant is on notice by filing the application.

In subsection (b), the words "In a proceeding under this section" are substituted for "In passing upon any proposed transaction under the provisions of this paragraph" for clarity. The words "at least" are substituted for "among others" for clarity. The word "area" is substituted for "territory" as being more appropriate.

In subsection (c), the words "The Commission shall . . . when it finds . . . may impose conditions governing the transaction" are substituted for "If the Commission finds, subject to such terms and conditions and such modifications as it shall find to be just and reasonable" for clarity. The word "conditions" is substituted for "terms and conditions" to eliminate redundancy. The words "just and reasonable" are omitted in view of the words "the transaction is consistent with the public interest" and in view of section 706 of title 5. The words "such modifications" are omitted as unnecessary in view of the restatement. The words "the proposed transaction is within the scope of subdivision (a) of this paragraph" are omitted as unnecessary in view of the restatement. The words "enter an order" are omitted as unnecessary in view of subchapter II of chapter 5 of title 5. The words "upon the terms and conditions, and with the modifications, so found to be just and reasonable" are omitted as surplus. The words "When a rail carrier" are substituted for "Provided, That if a carrier by railroad subject to this chapter" for clarity. The words "within the meaning of paragraph (6) of this section" are omitted as unnecessary in view of the restatement. The words "in the case of any such proposed" are omitted as surplus. The words "only if it finds" are substituted for "shall not enter such an order unless it finds" for clarity. The words "transaction is consistent" are substituted for "transaction proposed will be consistent" for clarity. The word "unreasonably" is substituted for "unduly" for clarity. The words "When a rail carrier is involved in the transaction, the Commission may" are substituted for "The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction" for clarity. The words "upon equitable terms" are omitted in view of the words "finds . . . inclusion to be consistent with the public interest" and in view of section 706 of title 5. The words "if they apply for inclusion" are substituted for "upon petition by such railroad or railroads requesting such inclusion" for clarity.

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-Subsec. (d). 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))".

1982-Subsec. (b). Pub. L. 97–261, §21(f), redesignated existing provisions as par. (1) and former pars. (1) through (5) as subpars. (A) through (E), respectively, and added par. (2).

Subsec. (d). Pub. L. 97–261, §21(g), inserted provision that this subsection does not apply to any proceeding under this section which involves only carriers of passengers providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title.

1980-Subsec. (b). Pub. L. 96–448, §228(a), inserted in provision preceding par. (1) "which involves the merger or control of at least two class I railroads, as defined by the Commission" after "this section" and added par. (5).

Subsecs. (d), (e). Pub. L. 96–448, §228(b), (c), added subsecs. (d) and (e).

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–261 effective on 60th day after Sept. 20, 1982, see section 31(a) of Pub. L. 97–261, set out as a note under section 10101 of this title.

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.

Savings Provision

Pub. L. 99–570, title III, §3403, Oct. 27, 1986, 100 Stat. 3207–102 , provided that: "In any proceeding under section 11344 of title 49, United States Code, involving an application by a rail carrier (or a person controlled by or affiliated with a rail carrier) to acquire a motor carrier, the Interstate Commerce Commission, and any Federal court reviewing action of the Commission, shall follow the standards set forth in the Commission decision in Ex Parte No. 438 if the applicant rail carrier, between July 20, 1984, and September 30, 1986 (1) filed an application with the Commission to acquire a motor carrier, (2) entered into a contract or signed a letter of intent to acquire a motor carrier, or (3) made a public tender offer to acquire a motor carrier."

Applications filed or pending on Oct. 1, 1980, under this section, before the Secretary of Transportation, the Interstate Commerce Commission, or any court to be adjudicated or determined as if Pub. L. 96–448 had not been enacted, see section 228(e) of Pub. L. 96–448, set out as a note under section 11343 of this title.

Section Referred to in Other Sections

This section is referred to in sections 333, 11321, 11345, 11345a, 11346, 11347, 11348, 11351, 11912 of this title; title 45 sections 1112, 1322.