§11362. Criteria for approval and authority

(a) A carrier may apply to the Interstate Commerce Commission for approval and authority to make a change under this subchapter. To approve a proposed change, the Commission must find that the proposed change-

(1) is within the scope of section 11361 of this title;

(2) will be in the public interest;

(3) will be in the best interests of the carrier, of each class of its stockholders, and of the holders of each class of the carrier's obligations that are affected by the change; and

(4) will not be against the interests of a creditor of the carrier who is not affected by the change.

If the change involves an issuance of securities, the Commission must also make the findings required under section 11301(d)(1) of this title.

(b)(1) The Commission shall begin a proceeding under this section on receipt of an application but may require an applicant to get assurances of assent to the change from the holders of the outstanding shares of the securities that will be affected by the change before continuing with the proceeding. The Commission may determine the percentage of the principal amount or number of those shares needed to establish assurance of assent to the change. A class of securities is considered to be affected by a proposed change only if the change is proposed to a part of that class or to a part of an instrument under which that class was issued or by which it is secured. However, if a proposed change is to an instrument under which at least 2 classes of securities were issued and are outstanding or secured by that instrument, only those classes to which the change is related are considered to be affected. The Commission shall divide the securities to be affected by a proposed change under this subchapter into reasonable classes for purposes of this subchapter.

(2) On receipt of an application of a carrier under this section the Commission shall notify, and file a copy of the application with, the chief executive officer of each State in which that carrier operates. The appropriate authorities of those States are entitled to be admitted as parties to a proceeding under this section to represent the rights and interests of their people and States.

(c) The carrier must give notice of the proceeding to the holders of the class of securities affected. The Commission may direct the carrier to give notice to other persons the Commission determines to have an interest in the proceeding. The carrier may give notice under this subsection only after it gets assurances of assent when they are required under this section.

(d) The Commission may impose conditions governing the proposed change. The Commission may determine the effective date for a change it approves and authorizes under this subchapter and may allow it to become effective on publication of a declaration to that effect by the carrier. After an application is approved, the Commission may change a condition imposed and impose supplemental requirements for good cause shown subject to the requirements of this subchapter.

( Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1441 .)

In subsection (a), the words "A carrier may apply" are substituted for "the carrier seeking authority therefor shall, pursuant to such rules and regulations as the Commission shall prescribe, present an application to the Commission" for clarity and to eliminate redundancy in view of section 10321(a) of the revised title that gives the Commission the general power to prescribe regulations to carry out the revised title. The words "To approve a proposed change, the Commission must find" are substituted for "If the Commission, after hearing . . . shall find that" for clarity. The words "after hearing" are omitted from the sentence in view of subchapter II of chapter 5 of title 5. The word "If" is substituted for "in any case where" for clarity. The words "not inconsistent with paragraph (1) of this section" are omitted as surplus.

In subsection (b)(1), the words "on receipt of an application" are substituted for "Upon presentation of any such application" for clarity. The words "Commission shall begin a proceeding" are substituted for "the Commission shall set such application for public hearing" for clarity in view of subchapter II of chapter 5 of title 5. The words "but may require an applicant" are substituted for "may, in its discretion, but need not" to eliminate redundancy. The words "to get" are substituted for "to secure" for clarity. The word "change" is substituted for "alteration or modification" for consistency. The words "before continuing with the proceeding" are substituted for "as a condition precedent to further consideration" for clarity. The words "The Commission may determine" are substituted for "as the Commission shall in its discretion determine" for clarity. The words "For the purposes of this section" are omitted as unnecessary in view of the restatement. The words "is considered" are substituted for "shall be deemed" for clarity. The word "part" is substituted for "provision" for consistency. The words "under which" are substituted for "pursuant to which" for clarity. The words "However, if" are substituted for "Provided, That in any case where" for clarity. The words "at least 2" are substituted for "more than one" for clarity. The words "were issued and are outstanding" are substituted for "shall have been issued and be outstanding" for clarity. The words "only those classes to which the change is related are considered to be affected" are substituted for "any alteration or modification proposed as to any provision of such instrument which does not relate to all of the classes of securities issued thereunder, shall be deemed to affect only the class or classes of securities to which such alteration or modification is related" for clarity. The words "under this subchapter" are substituted for "for the purposes of this section" to conform to the revised title. The word "reasonable" is substituted for "just and reasonable" for clarity. See the revision note to section 10101 of the revised title. The words "as it shall determine" are omitted as unnecessary in view of subchapter II of chapter 5 of title 5.

In subsection (b)(2), the text of the source provision is omitted and the relevant part of 49:20a(6) is added for clarity. The words "chief executive officer" are substituted for "Governor" since the District of Columbia is included in the definition of "State" in section 10102 of the revised title.

In subsection (c), the words "shall set such application for public hearing" are omitted as unnecessary in view of the restatement. The words "The carrier must give notice of the proceeding" are substituted for "the carrier shall give reasonable notice of such hearing" for clarity and to eliminate the qualification "reasonable" since the Commission may prescribe the manner in which notice is given. The words "The carrier may give notice under this subsection only after it gets assurances of assent when they are required under this section" are substituted for "If the Commission shall not require the applicant to secure any such assurances, or when such assurances, as the Commission may require shall have been secured . . . [the carrier shall give . . . notice]" for clarity. The words "in such manner, by mail, advertisement, or otherwise, as the Commission may find practicable and may direct" are omitted as unnecessary in view of the restatement.

In subsection (d), the words "impose conditions governing" are substituted for "subject to such terms and conditions and with such amendments as it shall determine" for clarity. The words "just and reasonable" are omitted as unnecessary in view of the criteria for approval under the revised section and in view of section 706 of title 5. The words "The Commission may determine" are substituted for "Such order shall make provisions as to" for clarity. The words "the effective date" are substituted for "the time when . . . shall become and be binding" for clarity. The word "binding" is omitted from the sentence in view of subchapter II of chapter 103 of the revised title. The words "may allow" are substituted for "which may be" for clarity. The last sentence is substituted for 49:20b(8) (last sentence) for clarity in view of subchapter II of chapter 5 of title 5 and subchapter II of chapter 103 of the revised title.

Section Referred to in Other Sections

This section is referred to in section 11363 of this title.