§11345. Consolidation, merger, and acquisition of control: rail carrier procedure

(a) If a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title is involved in a proposed transaction under section 11343 of this title, this section and section 11344 of this title also apply to the transaction. The Commission shall publish notice of the application in the Federal Register by the end of the 30th day after the application is filed with the Commission and after a certified copy of it is furnished to the Secretary of Transportation. However, if the application is incomplete, the Commission shall reject it by the end of that period. The order of rejection is a final action of the Commission under section 10327 of this title. The published notice shall indicate whether the application involves-

(1) the merger or control of at least two class I railroads, as defined by the Commission, to be decided within the time limits specified in subsection (b) of this section;

(2) transactions of regional or national transportation significance, to be decided within the time limits specified in subsection (c) of this section; or

(3) any other transaction covered by this section, to be decided within the time limits specified in subsection (d) of this section.

(b) If the application involves the merger or control of two or more class I railroads, as defined by the Commission:

(1) Written comments about an application may be filed with the Commission within 45 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Secretary of Transportation and the Attorney General, each of whom 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 Commission by the end of the 15th day after the date of receipt of the written comments.

(2) The Commission shall require that applications inconsistent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it and given to the Secretary of Transportation by the 90th day after publication of notice under that subsection.

(3) The Commission must conclude evidentiary proceedings by the end of the 24th month after the date of publication of notice under subsection (a) of this section. The Commission must issue a final decision by the 180th 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, as defined by the Commission, which the Commission has determined to be of regional or national transportation significance:

(1) Written comments about an application may be filed with the Commission within 30 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Secretary of Transportation and the Attorney General, each of whom 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 Commission by the end of the 15th day after the date of receipt of the written comments.

(2) The Commission shall require that applications inconsistent with an application, notice of which was published under subsection (a) of this section, and applications for inclusion in the transaction, be filed with it and given to the Secretary of Transportation by the 60th day after publication of notice under that subsection.

(3) The Commission must conclude any evidentiary proceedings by the 180th day after the date of publication of notice under subsection (a) of this section. The Commission 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) and (c) of this section:

(1) Written comments about an application may be filed with the Commission within 30 days after notice of the application is published under subsection (a) of this section. Copies of such comments shall be served on the Secretary of Transportation and the Attorney General, each of whom 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 Commission by the end of the 15th day after the date of receipt of the written comments.

(2) The Commission must conclude any evidentiary proceedings by the 105th day after the date of publication of notice under subsection (a) of this section. The Commission must issue a final decision by the 45th day after the date on which it concludes the evidentiary proceedings.

(e) If the Commission does not issue a decision that is a final action under section 10327 of this title, it shall send written notice to Congress that a decision was not issued and the reasons why it was not issued.

(f) The Commission may waive the requirement that an initial decision be made under section 10327 of this title and make a final decision itself when it determines that action is required for the timely execution of its functions under this subchapter or that an application governed by this section is of major transportation importance. The decision of the Commission under this subsection is a final action under section 10327 of this title.

( Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1436 ; Pub. L. 96–448, title II, §228(d), Oct. 14, 1980, 94 Stat. 1932 .)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
11345(a)	49:5(2)(g)(i).	Feb. 4, 1887, ch. 104, 24 Stat. 379 , §5(2)(g), (h); added Feb. 5, 1976, Pub. L. 94–210, §402(b), 90 Stat. 62 .
11345(b)	49:5(2)(g)(ii), (iii).
11345(c)	49:5(2)(g)(iv).
11345(d)	49:5(2)(g)(v), (vi), and (2d sentence).
11345(e)	49:5(2)(g) (less (i)–(vi) and 2d sentence).
11345(f)	49:5(2)(h).

In the section, the introductory language before 49:5(2)(g)(i) is used throughout for clarity in view of the restatement.

In subsection (a), the words "is a final action of the Commission under section 10327 of this title" are substituted for "which order shall be deemed to be final under the provisions of section 17 of this title" for clarity.

In subsection (b), the words "Written comments . . . may be filed" are substituted for "provide that written comments on an application . . . may be filed" for clarity. The words "That decision must be made by the 15th day after" are substituted for "shall be afforded 15 days following the date" for clarity.

In subsection (c), the words "in whole or in part" are omitted as surplus. The word "given" is substituted for "furnished" as being more appropriate.

In subsection (d), the words "does not issue" are substituted for "fails to issue" as being more precise. The words "final action under section 10327 of this title" are substituted for "which is final within the meaning of section 17 of this title" for consistency. The words "send written notice to Congress" are substituted for "notify the Congress in writing" for clarity.

In subsection (e), the words "waive the requirement that an initial decision be made under section 10327 of this title and make a final decision itself" are substituted for "it may order that the case be referred directly (without an initial decision by a division, individual Commissioner, board, or administrative law judge) to the full Commission for a decision" for consistency and clarity in view of section 10327 of the revised title. The word "due" is omitted as surplus.

In subsection (f), the words "rail carrier" are substituted for "carrier by railroad" for consistency. The words "may appear" are substituted for "shall have standing to appear" for clarity.

Amendments

1980-Subsec. (a). Pub. L. 96–448 inserted provision directing that the published notice indicate whether the application involves the merger or control of at least two class I railroads, to be decided within the time limits specified in subsec. (b) of this section, transactions of regional or national transportation significance, to be decided within the time limits specified in subsec. (c) of this section, or any other transaction covered by this section, to be decided within the time limits specified in subsec. (d) of this section.

Subsec. (b). Pub. L. 96–448 designated existing provision as par. (1), substituted "such comments" for "those comments", inserted introductory provision relating to the application involving the merger of two or more class I railroads, and added pars. (2) and (3).

Subsec. (c). Pub. L. 96–448 designated existing provision as par. (2), substituted "60th day after publication" for "90th day after publication", inserted introductory provision relating to the application involving a transaction other than the merger or control of at least two class I railroads which the Commission has determined to be of regional or national transportation significance, and added pars. (1) and (3).

Subsec. (d). Pub. L. 96–448 substituted provision that for all applications under this section, other than those specified in subsecs. (b) and (c) of this section, written comments may be filed with the Commission within 30 days after notice of the application is published, with copies of the comments served on the Secretary of Transportation and Attorney General, with opportunity for each to intervene within a specified period and that the Commission must conclude any evidentiary proceedings by the 105th day after publication of notice and must issue a final decision by the 45th day after the date on which it concludes the evidentiary proceedings for provision that the Commission conclude evidentiary proceedings by the 240th day after the date of publication, unless the application involved the merger or control of at least 2 class I railroads, in which case the evidentiary proceedings must be concluded by the end of the 24th month after date of publication, the Commission issue a final decision by the 180th day after the date it concludes the evidentiary proceedings, and if the Commission does not issue a decision that is a final action under section 10327 of this title, it send written notice to Congress that the decision was not issued and the reason why it was not issued. See subsec. (e) of this section.

Subsec. (e). Pub. L. 96–448 designated as subsec. (e) provision of former subsec. (d) of this section that if the Commission does not issue a decision that is a final action under section 10327 of this title, it send written notice to Congress that a decision was not issued and reasons why it was not issued. Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 96–448 redesignated former subsec. (e) as (f). Former subsec. (f), which provided that the Secretary of Transportation propose changes in transactions governed by this section when a rail carrier was involved and appear before the Commission to support those changes, was struck out.

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

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 11346, 11347, 11348, 11351, 11912 of this title; title 45 section 1112.