text:
Page:United States Statutes at Large Volume 92 Part 2.djvu/140

 92 STAT. 1420

49 USC 11104.

Ante, p. 1359.

Filing of complaints, Post, p. 1449 Hearing, 49 USC 11105. .^,, "r

49 USC 11106.

Ante, p. 1361.

49 USC 11107.

PUBLIC LAW 95-473—OCT. 17, 1978

Commission may establish conditions and compensation for use of the facilities under the principle controlling compensation in condemnation proceedings. The compensation shall be paid or adequately secured before a carrier may begin to use the facilities of another carrier under this section. (b) A rail carrier whose terminal facilities are required to be used by another carrier under this section is entitled to recover damages from the other carrier for injuries sustained as the result of compliance with the requirement or for compensation for the use, or both, as appropriate, in a civil action, if it is not satisfied with the conditions for use of the facilities or if the amount of the compensation is not paid promptly. § 11104. Switch connections and tracks (a) On application of the owner of a lateral branch line of railroad, or of a shipper tendering interstate traffic for transportation, a common carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title shall construct, maintain, and operate, on reasonable conditions, a switch connection to connect that branch line or private side track with its railroad and shall furnish cars to move that traffic to the best of its ability without discrimination in favor of or against the shipper when the connection— (1) is reasonably practicable; (2) can be made safely; and (3) will furnish sufficient business to justify its construction and maintenance. (b) If a common carrier fails to install and operate a switch connection after application is made under subsection (a) of this section, the owner of the lateral branch line of railroad or the shipper may file a complaint with the Commission under section 11701 of this title. The Commission shall investigate the complaint and decide the safety, practicability, justification, and compensation to be paid for the conneotion. The Commission may direct the common carrier to comply with subsection (a) of this section only after a full hearing. § 11105. Protective services A rail or express carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title may arrange for a person to furnish to or for the carrier a protective sennce against heat or cold for property transported by it subject to that jurisdiction only when the Commission finds the arrangement to be reasonable and in the public interest. § 11106. Identification of motor vehicles (a) The Interstate Commerce Commission may— (1) issue and require the display of an identification plate on a motor vehicle used in transportation subject to its jurisdiction under subchapter II of chapter 105 of this title; and (2) require the carrier to pay the reasonable cost of the plate. (b) A carrier may use an identification plate only as authorized by the Commission. § 11107. Leased motor vehicles Except as provided in section 11101(c) of this title, the Interstate Commerce Commission may require a motor carrier providing transportation subject to the jurisdiction of the Commission under sub-

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Page:United States Statutes at Large Volume 92 Part 2.djvu/141

 PUBLIC LAW 95-473—OCT. 17, 1978 chapter II of chapter 105 of this title that uses motor vehicles not owned by it to transport property under an arrangement with another party to— (1) make the arrangement in writing signed by the parties specifying its duration and the compensation to be paid by the motor carrier; (2) carry a copy of the arrangement in each motor vehicle to which it applies during the period the arrangement is in effect; (3) inspect the motor vehicles and obtain liability and cargo insurance on them; and (4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary of Transportation on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier. § 11108. Water carriers subject to unreasonable discrimination in foreign transportation (a) The Interstate Commerce Commission may relieve a water carrier providing transportation subject to the jurisdiction of the Commission under subchapter III of chapter 105 of this title, from the requirements of this subtitle when a rate, rule, or practice established by a person providing water transportation to or from a port in a foreign country in competition with that carrier unreasonably discriminates against that carrier. The Commission may relieve that carrier to the extent and for the period of time necessary to end or ease the discrimination if the relief is in the public interest and consistent with the transportation policy of section 10101 of this title. (b) The Commission may begin a proceeding under this section on its own initiative or on application.

92 STAT. 1421 Ante, p. 1361.

49 USC 11108.

Ante, p. 1365.

Ante, p. 1337. Proceedings,

SUBCHAPTER II—CAR SERVICE § 11121. Criteria (a) A rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title shall furnish safe and adequate car service and establish, observe, and enforce reasonable rules and practices on car service. The Commission may—• (1) require a rail carrier to file its car service rules with the Commission; and (2) require that carrier to incorporate those rules in its tariffs. (b) The Commission may designate and appoint agents and agencies to make and carry out its directions related to car service and matters under sections 11123-11125, 11127, and 11128(a)(1) of this title. § 11122. Compensation and practice (a) The regulations of the Interstate Commerce Commission on car service shall encourage the purchase, acquisition, and efficient use of freight cars. The regulations may include— (1) the compensation to be paid for the use of a locomotive, freight car, or other vehicle; (2) the other terms of any arrangement for the use by a rail carrier of a locomotive, freight car, or other vehicle not owned by the rail carrier using the locomotive, freight car, or other vehicle, whether or not owned by another carrier, shipper, or third person; and

49 USC 11121. Ante, p. 1359.

49 USC 11122. Regulations,

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Page:United States Statutes at Large Volume 92 Part 2.djvu/142

 92 STAT. 1422

49 USC 11123.

Ante, p. 1345. 5 USC 551.

49 USC 11124.

Ante, p. 1359.

PUBLIC LAW 95-473—OCT. 17, 1978 (3) sanctions for nonobservance. (b)(1) The rate of compensation to be paid for each type of freight car shall be determined by the expense of owning and maintaining that type of freight car, including a fair return on its cost giving consideration to current costs of capital, repairs, materials, parts, and labor. In determining the rate of compensation, the Commission shall consider the transportation use of each type of freight car, the national level of ownership of each type of freight car, and other factors that affect the adequacy of the national freight car supply. (2) The Commission may increase a rate of compensation determined under paragraph (1) of this subsection by an incentive element only when the Commission finds that the supply of a type of freight car is inadequate and an incentive element will compensate freight car owners, contribute to sound car service practices (including efficient utilization and distribution of cars), and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and national defense. The Commission may exempt that incentive element from the compensation to be paid by a carrier or group of carriers when the Commission finds that exemption is in the national interest. § 11123. Situations requiring immediate action (a) When the Interstate Commerce Commission considers that a shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in a section of the United States, the Commission may— (1) suspend any car service rule or practice; (2) take action during the emergency to promote service in the interest of the public and of commerce regardless of the ownership (as between carriers) of a locomotive, car, or other vehicle on terms of compensation the carriers establish between themselves subject to subsection (b)(2) of this section; (3) require joint or common use of terminals, including mainline tracks for a reasonable distance outside of those terminals, on terms of compensation the carriers establish between themselves, subject to subsection (b)(2) of this section, when that action will best meet the emergency and serve the public interest; and (4) give directions for preference or priority in transportation, embargoes, or movement of traffic under permits. (b)(1) Except as provided in paragraph (2) of this subsection, the Commission may act under this section on its own initiative or on application without regard to subchapter II of chapter 103 of this title and subchapter II of chapter 5 of title 5. (2) When the carriers do not agree on terms of compensation under subsection (a)(2) of this section or on terms for joint or common use of terminals under subsection (a)(3) of this section, the Commission may establish for them in a later proceeding terms of compensation the Commission finds to be reasonable. § 11124. Rerouting traffic on failure of rail carrier to serve the public (a) When the Interstate Commerce Commission considers that a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title cannot transport the traffic offered to it in a manner that properly serves the public, the Commission may direct the handling, routing, and movement of the traffic of that carrier and its distribution over other rail-

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Page:United States Statutes at Large Volume 92 Part 2.djvu/143

 PUBLIC LAW 95-473—OCT. 17, 1978 road lines to promote commerce and service to the public. Subject to subsection (b)(2) of this section, the carriers may establish the terms of compensation between themselves. (b)(1) Except as provided in paragraph (2) of this subsection, the Commission may act under this section on its own initiative or on application without regard to subchapter II of chapter 103 of this title and subchapter II of chapter 5 of title 5. (2) When the carriers do not agree on the terms of compensation under this section, the Commission may establish the terms for them in a later proceeding. § 11125. Directed rail transportation (a) When a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title cannot transport the traffic offered to it because— (1) its cash position makes its continuing operation impossible; (2) transportation has been discontinued under court order; or (3) it has discontinued transportation without obtaining a required certificate under section 10903 of this title; the Commission may direct the handling, routing, and movement of the traffic available to that carrier and its distribution over the railroad lines of that carrier by another carrier to promote service in the interest of the public and of commerce. Subject to subsection (b) of this section, the Commission may act without regard to subchapter II of chapter 103 of this title and subchapter II of chapter 5 of title 5. (b)(1) Action of the Commission under subsection (a) of this section may not remain in effect for more than 60 days. However, the Commission may extend that period for an additional designated period of not more than 180 days if cause exists. (2) The Commission may not take action that would— (A) cause a directed carrier to operate in violation of section 421 of title 45; or (B) impair substantially the ability of a directed carrier to serve its own patrons adequately, or to meet its outstanding common carrier obligations. (3) A directed carrier is not responsible, because of the direction of the (yommission, for the debts of the other carrier. (4) A directed carrier shall hire the employees of the other carrier, to the extent that they previously provided that transportation for the other carrier, and assume the existing employment obligations and practices of the other carrier for those employees including agreements governing rate of pay, rules and working conditions, and employee protective conditions for the period during which the action of the Commission is effective. (5) A directed carrier may apply to the Commission for payment of an amount equal to the amount by which (A) the total expenses of that carrier incurred in or attributable to the handling, routing, and moving the traffic over the lines of the other carrier for the period during which the action of the Commission is effective, including renting or leasing necessary equipment and an allocation of common expenses, overhead, and a reasonable profit, exceed (B) the direct revenues from handling, routing, and moving that traffic over the lines of the other carrier during that period. The carrier must submit a current record of those total expenses to the Commission, The Commission shall certify promptly, to the Secretary of the Treasury, the amount to be paid. The Secretary shall pay that amount by the 90th

92 STAT. 1423

Ante, p. 1345. 5 USC 551 et seq.

49 USC 11125. Ante, p. 1359.

45 USC 421. Debts,

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Page:United States Statutes at Large Volume 92 Part 2.djvu/144

 92 STAT. 1424

PUBLIC LAW 95-473—OCT. 17, 1978

day after the end of the period during which the direction of the Commission is effective, and funds are authorized to be appropriated for Audit. that payment. The Commission may audit any such record. 49 USC 11126. § 11126. Distribution of coal cars (a) Subject to subsection (b) of this section, a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Ante, p. 1359. Commission under subchapter I of chapter 105 of this title shall make a reasonable distribution of cars for transportation of coal among the coal mines served by it whether the mines are located on its line or are customarily dependent on it for car supply. If the supply of available cars does not equal the requirements of the mines, the carrier shall maintain and apply reasonable ratings of the mines and count each car furnished to or used by a mine for transportation of coal against that •'** mine. However, coal cars supplied by shippers or receivers are deemed not to be a part of the carrier's fleet and are not counted in determining a question about distribution or car count under subsection (b) of this section or section 10102, 10501, 10701-10703, 10707, 10721(b), 10722 (c) - (d), 1 0 7 2 3 (a) - (b)(1), 10724(a), 10741-10744, 10746, 10749, 10750, Ante, pp. 1338, 10901, 10902, 10907, 11101, 11103-11105, 11121-11125, 11127, 11128(a) 1.79'ISn ^1)' 11501(c), 11505(a), 1 1 7 0 2 (a)(1), 11703, 1 1901 (d) - (e)(2), 138311386 •^^^^^' -^^^^^' ^'^^^^^ 11^^'^' ll^l'"^' "^ 1191^' "* ^^is title. 1390 1391' ('^) (1) ^^ ^^^^ subsection, "unit-train service" means the movement 1393' 1394' of ^ single shipment of coal of at least 4,500 tons, tendered to one 1402^ 1403,.Po5f, carrier, on one bill of lading, at one origin, on one day, and destined pp. 1444, 1448, to one consignee, at one plant, at one destination, over one route. 1450, 1455, (2) Unit-train service and non-unit-train service are deemed to be 1457, 1459, separate and distinct classes of service. A distinction shall be made 1464. "Unit train between them and between the cars used in each class of service. A Service." question about the reasonableness of, or discrimination in, the distribution of cars shall be determined within each class and not between them, notwithstanding a section referred to in subsection (a) of this section. 49 USC 11127. § 11127. Service of f r e i g h t for w a r d e r s (a)(1) W h e n the Interstate Commerce Commission considers that a shortage of equipment, congestion of traffic, or other emergency requires immediate action at a place in the United States, the Commission may— (A) suspend any service, equipment, or facilities requirement applicable to a freight forwarder under the jurisdiction of the Commission under subchapter IV of chapter 105 of this title; (B) take action to promote transportation in the interest of the public and of commerce; and (C) give directions for preference or priority in transportation, embargoes, or movement of traffic under permits. (2) W h e n the Commission considers that any such freight forwarder cannot properly serve the public by providing service for the traffic offered it, the Commission may require the handling, routing, and movement of that traffic in another manner to promote conmierce and service to the public. W h e n the equipment or facilities of another freight forwarder are required to be used, the freight forwarders may establish terms of compensation between themselves subject to subsection (b)(2) of this section. (b)(1) Except as provided in paragraph (2) of this subsection, the Commission may act under this section on its own initiative or on

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Page:United States Statutes at Large Volume 92 Part 2.djvu/145

 PUBLIC LAW 95-473—OCT. 17, 1978 application without regard to subchapter II of chapter 103 of this title and subchapter II of chapter 5 of title 5. (2) Wlien the freight forwarders do not agree on the terms of compensation under this section, the Commission may establish the terms for them in a later proceeding. §11128. War emergencies; embargoes imposed by carriers (a)(1) When the President, during time of war or threatened war, certifies to the Interstate Commerce Commission that it is essential to the defense and security of the United States to give preference or priority to the movement of certain traffic, the Commission shall direct that preference or priority be given to that traffic under sections 11123 (a)(4) and 11127(a)(1)(C) of this title. (2) When the President, during time of war or threatened war, demands that preference and precedence be given to the transportation of troops and material of war over all other traffic, all carriers providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title shall adopt every means within their control to facilitate and expedite the military traffic. (b) An embargo imposed by any such carrier does not apply to shipments consigned to agents of the United States Government for its use. The carrier shall deliver those shipments as promptly as possible.

92 STAT. 1425 Ante, p. 1345. Ante, p. 1361.

49 USC 11128.

Ante, p. 1359

SUBCHAPTER III—REPORTS AND RECORDS § 11141. Definitions In this subchapter— (1) "carrier", "broker", and "lessor" include a receiver or trustee of a carrier (except a freight forwarder), broker, and lessor, respectively. (2) "lessor" means a person owning a railroad, water line, or a pipeline that is leased to and operated by a carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title, and a person leasing a right to operate as a motor carrier or water carrier to another. (3) "association" means an organization maintained— (A) by or in the interest of a group of carriers (except water carriers) or brokers providing transportation or service subject to the jurisdiction of the Commission under chapter 105 of this title that performs a service, or engages m activities, related to transportation under this subtitle; or (B) only by water carriers providing transportation subject to the jurisdiction of the Commission under subchapter III of chapter 105 of this title that engages in activities related to the fixing of rates, publication of classifications, or filing of tariffs by water carriers. § 11142. Uniform accounting systems (a) The Interstate Commerce Commission shall prescribe, for rail carriers providing transportation subject to this subtitle, a uniform cost and revenue accounting and reporting system (1) under generally accepted accounting principles uniformly applied to those carriers and (2) after consideration of appropriate economic principles. To the extent possible, the system shall be cost effective, without duplication, and compatible with the present and desired managerial and responsi-

39-194 O—80—pt. 2

10: QL3

49 USC 11141.

-^ - -"

-

Ante, p. 1358.

Ante, p. 1365. 49 USC 11142.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/146

 92 STAT. 1426

PUBLIC LAW 95-473—OCT. 17, 1978

bility accounting requirements of those carriers. The Commission may prescribe a uniform accounting system for classes of carriers providing, and brokers for, transportation subject to the jurisdiction of the Commission under subchapters II, III, and IV of chapter 105 of this Ante, pp. 1361, title. 1365, 1369. (b)(1) To obtain the most accurate cost and revenue information about light density railroad lines, main line operations, factors used to establish rates, and other regulatory areas of responsibility, the Commission shall identify and define, for each facet of rail transportation— (A) operating and nonoperating revenue accounts; (B) direct cost accounts for determining fixed and variable costs for materials, labor, and overhead components of operating expenses and the assignment of those costs to various functions, services, or activities, including maintenance-of-way, maintenance of equipment (locomotive and car), transportation (train, yard and station, and accessorial services), and general and adminis.vx.hl ai trative expenses; and (C) indirect cost accounts for determining fixed, common, joint, and constant costs, including the cost of capital, and the method for the assignment of those costs to various functions, services, or activities. (2) Reports required under the rail accounting system must include information considered appropriate for disclosure under generally accepted accounting principles or the requirements of the Commission 'ii ' or of the Securities and Exchange Commission. To the extent possible, the Interstate Commerce Commission should require that information be reported or disclosed only for essential regulatory purposes including rate change requests, abandonment of facilities requests, responsibility for peaks in demand, cost of service, and issuance of securities. Review. (3) The Commission shall review the rail accounting system periodically, but at least once every 5th year after 1977, and revise the system as necessary to conform it to generally accepted accounting principles compatible with the managerial and responsibility accounting requirements of those carriers and to keep it m compliance with this section. 49 USC 11143. § 11143. Depreciation charges The Interstate Commerce Commission shall, for a class of carriers providing transportation subject to its jurisdiction under subchapter Ante, p. 1359. I or III of chapter 105 of this title, and may, for a class of carriers providing transportation subject to its jurisdiction under subchapter II of that chapter, prescribe, and change when necessary, those classes of property for which depreciation charges may be included .J under operating expenses and a rate of depreciation that may be charged to a class of property. The Commission may classify those carriers for purposes of this section. A carrier for whom depreciation charges and rates of depreciation are in effect under this section for any class of property may not— (1) charge to operating expenses a depreciation charge on a class of property other than that prescribed by the Commission; (2) charge another rate of depreciation; or (3) include other depreciation charges in operating expenses. 49 USC 11144. §11144. Records: form; inspection; preservation (a) The Interstate Commerce Commission may prescribe the form

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Page:United States Statutes at Large Volume 92 Part 2.djvu/147

 PUBLIC LAW 95-473—OCT. 17, 1978 of records required to be prepared or compiled under this subchapter— (1) by carriers, brokers, and lessors, including records related to movement of traffic and receipts and expenditures of money; and (2) by persons furnishing cars or protective service against heat or cold to or for a rail or express carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title to the extent related to those cars or that service. (b) The Commission, or an employee designated by the Commission, may on demand and display of proper credentials— (1) inspect and examine the lands, buildings, and equipment of a carrier, broker, or lessor; and (2) inspect and copy any record of— (A) a carrier, broker, lessor, or association; (B) a person controlling, controlled by, or under common control with a carrier if the Commission considers inspection relevant to that person's relation to, or transaction with, that carrier; and (C) a person furnishing cars or protective service against heat or cold to or for a ran or express carrier if the Commission prescribed the form of that record. (c) The Commission, or an employee designated by the Commission, may, during normal business hours, inspect and copy any record related to motor vehicle transportation of a cooperative association or federation of cooperative associations required to notify the Commission under section 10526(a)(5) of this title. However, the Commission may not prescribe the form of records to be maintained by a cooperative association or federation of cooperative associations. (d) The Commission may prescribe the time period during which operating, accounting, and financial records must be preserved by carriers, brokers, lessors, and persons furnishing cars or protective services. § 11145. Reports by carriers, lessors, and associations (a) The Interstate Commerce Commission may require— (1) carriers, brokers, lessors, and associations, or classes of them as the Commission may prescribe, to file annual, periodic, and special reports with the Commission containing answers to questions asked by it; and (2) a person furnishing cars or protective services against heat or cold to a rail or express carrier providing transportation subject to this subtitle, to file reports with the Commission containing answers to questions about those cars or services. (b)(1) An annual report shall contain an account, in as much detail as the Commission may require, of the affairs of the carrier, broker, lessor, or association for the 12-month period ending on the 31st day of December of each year. However, when an annual report is made by a motor carrier, a broker, or a lessor or an association maintained by or interested in one of them, the person making the report may elect to make it for the 13-month period accounting year ending at the close of one of the last 7 days of each calendar year if the books of the person making the report are kept by that person on the basis of that accounting year.

92 STAT. 1427

Ante, p. 1359.

^»*e» P- 1364.

49 USC 11145.

Annual report,

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Page:United States Statutes at Large Volume 92 Part 2.djvu/148

 PUBLIC LAW 95-473—OCT. 17, 1978

92 STAT. 1428

(2) An annual report shall be filed with the Commission by the end of the 3d month after the end of the year for which the report is made unless the Commission extends the filing date or changes the period covered by the report. The annual report and, if the Commission requires, any other report made under this section, shall be made under oath. -^ ^ CHAPTER 113—FINANCE SUBCHAPTER I—CARRIER SECURITIES, EQUIPMENT TRUSTS, AND SECURITY INTERESTS Sec.

11301.

Authority of certain carriers to issue securities and assume obligations and liabilities. 11302. Issuance of securities and assumption of obligations and liabilities by motor carriers. 11S03. Equipment t r u s t s: recordation; evidence of indebtedness. 11304. Security interests in certain motor vehicles.

SUBCHAPTER II—OWNERSHIP 11321. 11322. 11323.

Limitation on ownership of certain water carriers. Restrictions on officers and directors. Limitation on ownership of other carriers by freight forwarders.

SUBCHAPTER III—COMBINATIONS 11341. Scope of authority. 11342. Limitation on pooling and division of transportation or earnings. 11343. Consolidation, merger, and acquisition of control. 11.344. Consolidation, merger, and acquisition of control: general procedure and conditions of approval. 11345. Consolidation, merger, and acquisition of control: rail carrier procedure. 11346. Consolidation, merger, and acquisition of control: expedited rail carrier procedure. 11347. Employee protective arrangements in transactions involving rail carriers. 11348. Interstate Commerce Commission authority over noncarrier that acquires control of carrier. 11349. Temporary operating approval for transactions involving motor and water carriers. 11350. Responsibility of the Secretary of Transportation in certain transactions.

SUBCHAPTER IV—FINANCIAL STRUCTURE 11361. Scope of authority: changes in financial structure. 11362. Criteria for approval and authority. 11363. Assent of holders of securities and certain other instruments. 11364. Procedure. 11365. Effect of change on other persons. 11366. Reports. 11367. Application of other laws. ,lt;<<|y5

SUBCHAPTER I—CARRIER SECURITIES, EQUIPMENT TRUSTS, AND SECURITY INTERESTS 49 USC 11301.

"Carrier.' Ante, p. 1359.

§11301. Authority of certain carriers to issue securities and assume obligations and liabilities (a) In this section— (1) "carrier" means a rail or sleeping car carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title

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Page:United States Statutes at Large Volume 92 Part 2.djvu/149

 PUBLIC LAW 95-473—OCT. 17, 1978

92 STAT. 1429

(except a street, suburban, or interurban electric railway not operated as a part of a general railroad system of transportation), and a corporation organized to provide transportation by rail carrier subject to that subchapter. (2) "security" means a share of capital stock, a bond, or other "Security evidence of interest in, or indebtedness of, a carrier. (b)(1) Subject to subchapter I of chapter 2A, chapter 2B, and sub- Issuance of chapter I of chapter 2D of title 15, the Commission has exclusive juris- securities. diction to approve the issuance of securities by a carrier and the as- 15 USC 77a, 78a, sumption of an obligation or liability related to the securities of 8 0 a - l. another person by a carrier. A carrier may not issue securities or assume those obligations or liabilities without the approval of the Commission. No other approval is required. A security issued or obligation or liability assumed by a carrier in violation of this subsection or in violation of a condition prescribed by the Commission under subsection (d) of this section is void. However, a security or obligation issued or assumed under authority of this section is not void for failure to comply with a procedural requirement of this section or other matter preceding entry of the order of the Commission. (2) Paragraph (1) of this subsection does not apply to notes issued by a carrier if the notes mature not more than 2 years after their date of issue and total (with all then outstanding notes having a maturity of not more than 2 years) not more than 5 percent of the par value of the then outstanding securities of that carrier. If the securities do not have a par value, the par value of those securities is the fair market value on the date of issue. Paragraph (1) of this subsection applies to a subsequent funding of notes referred to in this paragraph. (c)(1) A carrier issuing notes referred to in subsection (b)(2) of this section shall file a certificate of notification with the Commission by the end of the 10th day after they are issued. That notification must include substantially the same matter required by the Commission for an application for authority to issue other securities. (2) A carrier that pledges, repledges, or otherwise disposes of a security referred to in an application for authority or a certificate of notification under this section as pledged or held unencumbered in the treasury of that carrier shall file a certificate of notification with the Commission by the end of the 10th day after it disposes of the security. (d)(1) The Commission may begin a proceeding under this section Proceedings. on application of a carrier. Before taking final action, the Commission must investigate the purpose and use of the securities issue or assumption and the proceeds from it. The Commission may approve any part of the application and may require the carrier to comply with apI)ropriate conditions. After an application is approved under this section, the Commission may change a condition previously imposed or use that may be made of the securities or proceeds for good cause shown subject to the requirements of this section. The Commission may approve an application under this section only when it finds that the securities issue or assumption— (A) is for a lawful object within the corporate purpose of the carrier and reasonably appropriate for that purpose; (B) is compatible with the public interest; (C) is appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier; and

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Page:United States Statutes at Large Volume 92 Part 2.djvu/150

 92 STAT. 1430

Reports to Interstate Commerce Commission.

49 USC 11302.

Ante, p. 1361.

49 USC 11303.

PUBLIC LAW 95-473—OCT. 17, 1978 (D) will not impair the financial ability of the carrier to provide the service. (2) An application or certificate must be made under oath and signed and filed for the carrier by a designated executive officer who knows the matters stated in the application or certificate. On receipt of an application of a carrier under this section, the Commission shall have a copy of the application served on 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. (e) The Commission shall require a carrier that issues securities, including notes, under this section to submit reports to it. The reports must identify the disposition of those securities and the application of the proceeds from their disposition. (f) This section does not imply a guaranty or obligation of those securities by the United States Government. This section does not apply to securities issued or obligations or liabilities assumed by the United States Government, a State, or an instrumentality or political subdivision of one of them. § 11302. Issuance of securities and assumption of obligations and liabilities by motor carriers (a) Except as provided in this section, section 11301 of this title applies to— (1) motor carriers providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter II of chapter 105 of this title; (2) corporations organized to provide transportation as carriers subject to the jurisdiction of the Commission under that subchapter; and (3) corporations authorized by the Commission to acc[uire control of at least one motor carrier subject to its jurisdiction under that subchapter. (b) Section 11301 of this title does not apply when the total value of capital stock (or principal amount of other securities to be issued) and the value of capital stock and principal amount of other securities then outstanding is not more than $1,000,000, or to notes of a maturity of not more than 2 years that aggregate not more than $200,000. Notes that, with other outstanding notes of a maturity of not more than 2 years, aggregate that amount may be issued without regard to the percentage limitations applicable under section 11301 (b)(2) of this title. The value of capital stock having no par value is the fair market value on the date of issue of that stock, and the value of capital stock that has a par value is the fair market value on the date of issue or the par value, whichever is greater. (c) This section does not apply to the United States Government, a State, or an instrumentality or political subdivision of one of them. § 11303. Equipment trusts: recordation; evidence of indebtedness (a) A mortgage (other than a mortgage under the Ship Mortgage Act, 1920), lease, equipment trust agreement, conditional sales agreement, or other instrument evidencing the mortgage, lease, conditional sale, or bailment of railroad cars, locomotives, or other rolling stock or vessels, intended for a use related to interstate commerce may be filed with the Interstate Commerce Commission. An assignment of a right or interest under one of those instruments and an amendment to that

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Page:United States Statutes at Large Volume 92 Part 2.djvu/151

 PUBLIC LAW 95-473—OCT. 17, 1978 instrument or assignment including a release, discharge, or satisfaction of any part of it may also be filed with the Commission. The instrument, assi^ment, or amendment must be in writing, executed by the piarties to it, and acknowledged or verified under Commission regulations. When filed under this section, that document is notice to, and enforceable against, all persons. A document filed under this section does not have to be filed, deposited, registered, or recorded under another law of the United States, a State (or its political subdivisions), or territory or possession of the United States, related to filing, deposit, registration, or recordation of those documents. This section does not change the Ship Mortgage Act, 1920. (b) The Commission shall maintain a system for recording each document filed under subsection (a) of this section and mark each of them with a consecutive number and the date and hour of their recordation. The Commission shall maintain and keep open for public inspection an index of documents filed under that subsection. That index shall include the name and address of the principal debtors, trustees, guarantors, and other parties to those documents and may include other facts that will assist in determining the rights of the parties to those transactions. § 11304. Security interests in certain motor vehicles (a) In this section— (1) "motor vehicle" means a truck of rated capacity (gross vehicle weight) of at least 10,000 pounds, a highway tractor of rated capacity (gross combination weight) of at least 10,000 pounds, a property-carrying trailer or semitrailer with at least one load-carrying axle of at least 10,000 pounds, or a motor bus with a seating capacity of at least 10 individuals. (2) "lien creditor" means a creditor having a lien on a motor vehicle and includes an assignee for benefit of creditors from the date of assi^ment, a trustee in bankruptcy from the date of filing of the petition in bankruptcy, and a receiver in equity from the date of appointment of the receiver. (3) "security interest" means an interest (including an interest established by a conditional sales contract, mortgage, equipment trust, or other lien or title retention contract, or lease) in a motor vehicle when the interest secures payment or performance of an obligation. (4) "perfection", as related to a security interest, means taking action (including public filing, recording, notation on a certificate of title, and possession of collateral by the secured party), or the existence of facts, required under law to make a security interest enforceable against general creditors and subsequent lien creditors of a debtor, but does not include compliance with requirements related only to the establishment of a valid security interest between the debtor and the secured party. (b) A security interest in a motor vehicle owned by, or in the possession and use of, a carrier having a certificate or permit issued under section 10922 or 10923 of this title and owing payment or performance of an obligation secured by that security interest is perfected in all jurisdictions against all general, and subsequent lien, creditors of, and all persons taking a motor vehicle by sale (or taking or retaining a security interest in a motor vehicle) from, that carrier when— (1) a certificate of title is issued for a motor vehicle under a law of a jurisdiction that requires or permits indication, on a

92 STAT. 1431

46 USC 984. Record system.

49 USC 11304. Definitions.

.aajTisE

Ante, pp. 1409, 1410.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/152

 92 STAT. 1432

PUBLIC LAW 95-473—OCT. 17, 1978 certificate or title, of a security interest in the motor vehicle if the security interest is indicated on the certificate; (2) a certificate of title has not been issued and the law of the State where the principal place of business of that carrier is located requires or permits public filing or recording of, or in relation to, that security interest if there has been such a public filing or recording; and (3) a certificate of title has not been issued and the security interest cannot be perfected under paragraph (2) of this subsection, if the security interest has been perfected under the law (including the conflict of laws rules) of the State where the principal place of business of that carrier is located. (c) This section does not affect a security interest perfected before January 1, 1959. SUBCHAPTER II—OWNERSHIP

Ante, p. 1359.

Hearing.

mi^-

§ 11321. Limitation on ownership of certain water carriers (a)(1) Notwithstanding sections 11343 and 11344 of this title, a carrier, or a person controlling, controlled by, or under common control with a rail, express, sleeping car, or pipeline carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title may not own, operate, control, or have an interest in a water common carrier or vessel carrying property or passengers on a water route with which it does or may compete for traffic. (2) The Commission may decide, after a full hearing, questions of fact related to competition or the possibility of competition under this subsection on application of a carrier. A carrier may file an application to determine whether an existing service violates this subsection and may request permission to continue operation of a vessel or that action be taken under subsection (b) of this section. The Commission may begin a proceeding under this subsection on its own initiative or on application of a shipper to investigate the operation of a vessel used by a carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of that chapter if the carrier has not applied to the Commission and had the question of competition or the possibility of competition determined under this subsection. (b) Notwithstanding subsection (a) of this section, the Commission may authorize a carrier providing transportation subject to the jurisdiction of the Commission under that subchapter to own, operate, control, or have an interest in a water common carrier or vessel that is not operated through the Panama Canal and with which the carrier does or may compete for traffic when the Commission finds that ownership, operation, control, or interest will still allow that water common carrier or vessel to be operated in the public interest advantageously to interstate commerce and that it will still allow competition, without reduction, on the water route in question. However, section 11343 of this title also applies to a transaction or interest under this subsection if the transaction or interest is within the scope of that section. The Commission may begin a proceeding under this subsection on application of a carrier. An authorization under this subsection is not necessary for a carrier that obtained an order of extension before

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Page:United States Statutes at Large Volume 92 Part 2.djvu/153

 PUBLIC LAW 95-473—OCT. 17, 1978 September 18, 1940, under section 5(21) of the Interstate Commerce Act (37 Stat. 567), as amended, if the order is still in effect. (c) The Commission may take action under this section only after a full hearing. An order entered as a result of the action may be conditioned on giving security for the payment of an amount of money or the discharge of an obligation that is required to be paid or discharged under that order. § 11322. Restrictions on officers and directors (a) A person may hold the position of officer or director of more than one carrier as defined in section 11301(a)(1) of this title only when authorized by the Interstate Commerce Commission. The (Commission may authorize a person to hold the position of officer or director of more than one of those carriers when public or private interests will not be adversely affected. (b) An officer or director of a carrier referred to in subsection (a) of this section may not— (1) receive, for the benefit of that officer or director, a thing of value in relation to the negotiation, hypothecation, or sale of a security issued or to be issued by that carrier; (2) share in the proceeds from the negotiation, hypothecation, or sale of a security issued or to be issued by that carrier; or (3) participate in making or paying dividends of an operating carrier from funds included in a capital account. § 11323. Limitation on ownership of other carriers by freight forwarders (a) A freight forwarder, or a person controlling, controlled by, or under common control with a freight forwarder, providing service subject to the jurisdiction of the Interstate Commerce Commission under subchapter IV of chapter 105 of this title, may not acquire control of a carrier providing transportation subject to the jurisdiction of the Commission under subchapter I, II, or III of that chapter. However, this subsection does not prohibit a carrier providing transportation under subchapter I, II, or III of chapter 105 from acquiring control of another such carrier under subchapter III of this chapter but subject to section 11321. (b^ A director, officer, employee, or agent of a common carrier providing transportation subject to the jurisdiction of the Commission under subchapter I, II, or III of chapter 105 of this title or a person controlling, controlled by, or under common control with one of those carriers, may not, for that person's pecuniary benefit, own, lease, control, or hold stock in a freight forwarder providing service subject to the jurisdiction of the Commission under subchapter IV of that chapter. However, this subsection does not prohibit the holding of a director's qualifying shares of stock from which no personal pecuniary benefit is derived by the holder. (c) This subtitle does not prohibit a common carrier providing transportation subject to the jurisdiction of the Commission under subchapter I, II, or III of chapter 105 of this title or a person controlling, controlled by, or under common control with one of those carriers from controlling a freight forwarder. When that control exists, a rate, classification, rule, or practice of one of those carriers may not be found to be unlawful because of the relationship.

92 STAT. 1433 49 USC 5.

49 USC 11322.

49 USC 11323.

Ante, p. 1369. Ante, pp. 1359, 1361, 1365.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/154

 92 STAT. 1434

PUBLIC LAW 95-473—OCT. 17, 1978 SUBCHAPTER III—COMBINATIONS

49 USC 11341.

49 USC 11342.

Ante, pp. 1359, 1361, 1365.

Proceedings. 49 USC 11343.

§ 11341. Scope of authority (a) The authority of the Interstate Commerce Commission under this subchapter is exclusive. A carrier or corporation participating in or resulting from a transaction approved by the Commission under this subchapter may carry out the transaction, own and operate property, and exercise control or franchises acquired through the transaction without the approval of a State authority. A carrier, corporation, or person participating in that transaction is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let that person carry out the transaction, hold, maintain, and operate property, and exercise control or franchises acquired through the transaction. However, if a purchase and sale, a lease, or a corporate consolidation or merger is involved in the transaction, the carrier or corporation may carry out the transaction only with the assent of a majority, or the number required under applicable State law, of the votes of the holders of the capital stock of that corporation entitled to vote. The vote must occur at a regular meeting, or special meeting called for that purpose, of those stockholders and the notice of the meeting must indicate its purpose. (b) A power g r a n t ^ under this subchapter to a carrier or corporation is in addition to and changes its powers under its corporate charter and under State law. Action under this subchapter does not establish or provide for establishing a corporation under the laws of the United States. § 11342. Limitation on pooling and division of transportation or earnings (a) A common carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I, II, or III of chapter 105 of this title may not agree or combine with another of those carriers to pool or divide traffic or services or any part of their earnings without the approval of the Commission under this section or sections 11124 and 11125 of this title. The Commission may approve and authorize the agreement or combination if the carriers involved assent to the pooling or division and the Commission finds that a pooling or division of traffic, services, or earnings— (1) will be in the interest of better service to the public or of economy of operation; and (2) will not unreasonably restrain competition. (b) The Commission may impose conditions governing the pooling or division and may approve and authorize payment of a reasonable consideration between the carriers. (c) This section affects an agreement or combination filed with the Commission before March 19, 1941, to which a water common carrier providing transportation subject to the jurisdiction of the Commission under subchapter III of chapter 105 of this title is a party only when the Commission determines that the agreement or combination does not meet the requirements for approval and authorization under subsection (a) of this section. (d) The Commission may begin a proceeding under this section on its own initiative or on application. § 11343. Consolidation, merger, and acquisition of control (a) The following transactions involving carriers providing transportation subject to the jurisdiction of the Interstate Commerce Com«

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Page:United States Statutes at Large Volume 92 Part 2.djvu/155

 PUBLIC LAW 95-473—OCT. 17, 1978

92 STAT. 1435

mission under subchapter I (except a pipeline carrier), II, or III of chapter 105 of this title may be carried out only with the approval Ante, pp. 1359, and authorization of the Commission: 1361, 1365. (1) consolidation or merger of the properties or franchises of at least 2 carriers into one corporation for the ownership, management, and operation of the previously separately owned properties. (2) a purchase, lease, or contract to operate property of another carrier by any number of carriers. (3) acquisition of control of a carrier by any number of carriers. (4) acquisition of control of at least 2 carriers by a person that is not a carrier. (5) acquisition of control of a carrier by a person that is not ,•,4, *. a carrier but that controls any number of carriers. (6) acquisition by a rail carrier of trackage rights over, or ..;M joint ownership in or joint use of, a railroad line (and terminals incidental to it) owned or operated by another rail carrier. ..;x (b) A person may carry out a transaction referred to in subsection (a) of this section or participate in achieving the control or management, including the power to exercise control or management, in a common interest of more than one of those carriers, regardless of how that result is reached, only with the approval and authorization of the Commission under this subchapter. In addition to other transactions, each of the following transactions are considered achievements of control or management: (1) A transaction by a carrier has the effect of putting that carrier and persons affiliated with it, taken together, in control of another carrier. (2) A transaction by a person affiliated with a carrier has the effect of putting that carrier and persons affiliated with it, taken together, in control of another carrier. (3) A transaction by at least 2 persons acting together (one of whom is a carrier or is affiliated with a carrier) has the effect of putting those persons and carriers and persons affiliated with any of them, or with any of those affiliated carriers, taken together, in control of another carrier. (c) A person is affiliated with a carrier under this subchapter if, because of the relationship between that person and a carrier, it is reasonable to believe that the affairs of another carrier, control of which may be acquired by that person, will be managed in the interest of the other carrier. (d)(1) Approval and authorization by the Commission are not required if the only parties to a transaction referred to in subsection (a) of this section are motor carriers providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title and the aggregate gross operating revenues of those carriers were not more than $300,000 during a period of 12 consecutive months ending not more than 6 months before the date of the agreement of the parties covering the transaction. However, the approval ^,,,., and authorization of the Commission is required when a motor carrier that is controlled by or affiliated with a carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of that chapter is a party to the transaction. (2) The approval and authorization of the Commission are not required if the only parties to a transaction referred to in subsection (a) of this section are street, suburban, or interurban electric railways

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text:
Page:United States Statutes at Large Volume 92 Part 2.djvu/156

 92 STAT. 1436

49 USC 11344.

Notification.

Ante, p. 1361. Hearing. Ante, p. 1359.

49 USC 11345.

Notice, publication in Federal Register.

PUBLIC LAW 95-473—OCT. 17, 1978

that are not controlled by or under common control with a carrier that is operated as part of a general railroad system of transportation. §11344. Consolidation, merger, and acquisition of control: gen< eral procedure.and conditions of approval (a) The Interstate Commerce Commission may be^in 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 s!hall 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) In a proceeding under this section, the Commission shall consider at least the following: (1) the effect of the proposed transaction on the adequacy of transportation to the public. (2) the effect on the public interest of including, or failing to include, other rail carriers in the area involved in the proposed transaction. (3) the total fixed charges that result from the proposed transaction. (4) 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. §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 1 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

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Page:United States Statutes at Large Volume 92 Part 2.djvu/157

 PUBLIC LAW 95-473—OCT. 17, 1978 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. (b) 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 those 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. (c) 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. (d) The Commission must conclude evidentiary proceedings by the 240th day after the date of publication of notice under subsection (a) of this section. However, if the application involves the merger or control of at least 2 class I railroads, as defined by the Commission, it 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 it concludes the evidentiary proceedings. 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 reason why it was not issued. (e) 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. (f) The Secretary of Transportation may propose changes in transactions governed by this section when a rail carrier is involved. The Secretary may appear before the Commission to support those changes. §11346. Consolidation, merger, and acquisition of control: expedited rail carrier procedure (a) A rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title or the Secretary of Transportation may apply, before January 1, 1982, for authority for and approval of a merger, consolidation, unification or coordination project (as described in section 1654(c) of this title), joint use of tracks or other facilities, or acquisition or sale of assets involving one of those rail carriers, under this section instead of sections 11344 and 11345 of this title. The Secretary may apply under this section only when the parties to the application that are rail carriers providing transportation subject to the jurisdiction of the Commission under subchapter I of that chapter consent to an application by the Secretary, A rail carrier may apply under

92 STAT. 1437

. /fe'! Ante, p. 1348. Filing comments.

Evidentiary proceedings,

Waiver,

49 USC 11346.

Ante, p. 1359.

,

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Page:United States Statutes at Large Volume 92 Part 2.djvu/158

 92 STAT. 1438

Notice.

Panel; recommended decisions.

Written views to the panel. Availability to public.

PUBLIC LAW 95-473—OCT. 17, 1978 this section only if it sent the proposed transaction to the Secretary for a report under section 11350 of this title at least 6 months before applying under this section. (b) When the Commission notifies persons required to receive notice that an application has been filed under this section, the Commission must include in the notice a copy of the application, a summary of the proposed transaction, and the applicant's reasons and public interest justification for the transaction. When the Commission notifies the Secretary of Transportation that an application has been filed under this section, the Commission shall also request the report of the Secretary prepared under section 11350 of this title. By the 10th day after receiving an application under this section, the Commission shall send notice of the proposed transaction to— (1) the chief executive officer of each State that may be affected by the execution or implementation of the proposed transaction; (2) the Attorney General; (3) the Secretary of Labor; and (4) the Secretary of Transportation (unless the Secretary is the applicant under subsection (a) of this section). (c) The Commission shall designate a panel of the Commission to make a recommended decision on each application under this section. The panel must begin a proceeding by the 90th day after the date the Commission receives the application, complete the proceeding by the 180th day after the application is referred to it, and give its recommended decision and certify the record to the entire Commission by the 90th day after the proceeding is completed. The panel may use employees appointed under section 3105 of title 5 and the Rail Services Planning Office in conducting the proceeding, evaluating the application and comments received about it, and determining whether it is in the public interest to approve and authorize the transaction under the last sentence of subsection (d) of this section. To carry out this subsection, the panel may make rules and rulings to avoid unnecessary costs and delay. In making its recommended decision, the panel shall— (1) request the views of the Secretary of Transportation about the effect of the transaction on the national transportation policy, as stated by the Secretary, and consider the report submitted under section 11350 of this title; (2) request the views of the Attorney General about the effect of the transaction on competition; and (3) request the views of the Secretary of Labor about the effect of the transaction on rail carrier employees, particularly whether the proposal contains adequate employee protection provisions. The Secretaries and the Attorney General shall send their written views to the panel. Those statements are available to the public under section 552(a) of title 5. (d) When the recommended decision and record of a proceeding under this section are certified to the entire Commission, it must hear oral argument on the matter certified to it and make a final decision by the 120th day after receiving the recommended decision and record. The Commission may extend a time period under subsection (c) of this section or under this subsection but must make its final decision by the end of the 2d year after receipt of the application by the Commission. The Commission shall consider the report of the Secretary of Transportation under section 11350 of this title in making

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Page:United States Statutes at Large Volume 92 Part 2.djvu/159

 PUBLIC LAW 95-473—OCT. 17, 1978 its final decision. The final decision must be accompanied by a written opinion stating the reasons for the Commission action. The Commission may— (1) approve the transaction if the Commission determines the transaction is in the public interest; (2) approve the transaction with conditions and modifications that it determines are in the public interest; or (3) disapprove the transaction if it determines the transaction is not in the public interest. § 11347. Employee protective arrangements in transactions involving rail carriers When a rail carrier is involved in a transaction for which approval is sought under sections 11344 and 11345 or section 11346 of this title, the Interstate Commerce Commission shall rec[uire the carrier to provide a fair arrangement at least as protective of the interests of employees who are affected by the transaction as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. Notwithstanding this subtitle, the arrangement may be made by the rail carrier and the authorized representative of its employees. The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission (or if an employee was employed for a lesser period of time by the carrier before the action became effective, for that lesser period). § 11348. Interstate Commerce Commission authority over noncarrier that acquires control of carrier (a) When the Interstate Commerce Commission approves and authorizes a transaction under sections 11344 and 11345 of this title in which a person not a carrier providing transportation subject to the jurisdiction of the Commission under chapter 105 of this title acquires control of at least one carrier subject to the jurisdiction of the Commission, the person is subject, as a carrier, to the following provisions of this title that apply to the carrier being acquired by that person, to the extent specified by the Commission: section 10764, subchapter III of chapter 111, and sections 11301, 11302, 11709, 11711, 11901(f), (h)(1), 11909 (a)(l), (b), and 11911(a). (b) When a person subject to sections 11301, 11302, 11322, 11709, and 11911 of this title because of acquiring control of a carrier, applies to the Commission for authority to issue securities or assume obligations or liabilities under those sections, the Commission may authorize the issue or assumption only when it finds the issue or assumption— (1) is consistent with the proper performance of public transportation by the carrier that is controlled by that person; (2) will not impair the ability of the carrier to provide public transportation; and (3) is consistent with the public interest in other respects. § 11349. Temporary operating approval for transactions involving motor and water carriers (a) Pending determination of an application filed with the Interstate Commerce Commission under this subchapter for approval of a consolidation or merger of the properties of at least 2 motor carriers

92 STAT. 1439

49 USC 11347.

"*<•'•''-

i-^"' -'•

'^

"^^ USC 11348.

^t.,,

.4nte, p. 1397.

49 USC 11349.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/160

 92 STAT. 1440

Alv

Ante, p. 1345. 5 USC 551. 49 USC 11350. Publication in Federal Register. Ante, p. 1359.

.m-S

Study.

PUBLIC LAW 95-473—OCT. 17, 1978 or at least 2 water carriers, or of a purchase, lease, or contract to operate the properties of at least one motor carrier or at least one water carrier, the Commission may approve, for a period of not more than 180 days, the operation of the properties sought to be acquired by the person proposing in the application to acquire those properties. The Commission may approve operation of motor carrier properties when it appears that failure to grant the approval may result in destruction of or injury to those motor carrier properties the person is seeking to acquire, or substantially interfere with their future usefulness in providing adequate and continuous service to the public. The Commission may approve the operation of water carrier properties only for good cause shown. (b) The Commission may take action under subsection (a) of this section without regard to subchapter II of chapter 103 of this title and subchapter II of chapter 5 of title 5. Transportation provided by a motor carrier under a grant of approval under this section is subject to this subtitle. §11350. Responsibility of the Secretary of Transportation in certain transactions (a) When a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title sends a proposed transaction to the Secretary of Transportation under section 11346(a) of this title or the Secretary develops a proposed transaction for submission to the Commission under that section, the Secretary shall publish a summary and a detailed account of the transaction in the Federal Register and give notice of the transaction to the Attorney General and to the chief executive officer of each State in which property of a rail carrier involved in the transaction is located. The Secretary shall initiate an informal proceeding on the proposed transaction under section 553 of title 5. (b) By the 10th day after an application is submitted to the Commission under section 11346 of this title, the Secretary shall complete and send to the Commission a study of the proposed transaction about— (1) the needs of rail transportation in the geographical area affected by the transaction; (2) the effect of the transaction on competition in rail transportation and other modes of transportation in the geographical area affected by the transaction; (3) the environmental impact of the transaction and of alternative choices of action; (4) the effect of the transaction on employment; (5) the coelt of rehabilitation and modernization of track, equipment, and other facilities, with a comparison of the potential savings or losses from other possible choices of action; (6) the rationalization of the rail system; (7) the impact of the transaction on shippers, consumers, and rail carrier employees; (8) the effect of the transaction on communities in the geographical area affected by the transaction and on geographical areas contiguous to the affected areas; and (9) whether the proposed transaction will improve rail service.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/161

 PUBLIC LAW 95-473—OCT. 17, 1978

92 STAT. 1441

SUBCHAPTER IV—FINANCIAL STRUCTURE § 11361. Scope of authority: changes in financial structure 49 USC 11361. (a) The authority of the Interstate Commerce Commission to act under this subchapter is exclusive. The Commission may approve and authorize a carrier, as defined in section 11301(a)(1) of this title, to change (1) a part of a class of its securities, as defined in section 11301 (a)(2) of this title, or (2) a part of an instrument under which a class of its securities is issued or a class of its obligations is secured. When a change is approved and authorized by the Commission under this subchapter, the carrier may carry out the change notwithstanding an express provision in the affected instrument or a State law and without getting other approval from the Commission or from a State ' authority. A person participating in carrying out a change that is approved and authorized under this subchapter is exempt from all other law, including State and municipal law, as necessary to let that person carry out the change. (b) The Commission may not approve an application filed under this section by a carrier that is in equity receivership or reorganization under section 205 of title 11. (c) A power granted to a carrier under this subchapter changes its powers under its corporate charter and under State law. (d) This subchapter does not affect the negotiability of a security of a carrier or of the obligation of a carrier that assumed liability related to a security. This subchapter does not apply to an equipmenttrust certificate under which a carrier is obligated, to an evidence of indebtedness of a carrier the payment of which is secured solely by ' •"•.• ^^ equipment, or to another instrument under which that equipmenttrust certificate or evidence of indebtedness was issued or by which either of them is secured. § 11362. Criteria for approval and authority 49 USC 11362. (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

39-194 O—80—pt. 2

11: QL3

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Page:United States Statutes at Large Volume 92 Part 2.djvu/162

 92 STAT. 1442

.ihK

Notice.

49 USC 11363.

PUBLIC LAW 95-473—OCT. 17, 1978 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 tor good cause shown subject to the requirements of this subchapter. §11363. Assent of holders of securities and certain other instruments (a)(1) After making the findings required under section 11362(a.) of this title, the Commission may approve and authorize the change if it is assented to by the holders of at least 75 percent of the aggregate principal amount or number of outstanding shares of each class of securities affected by the change. The Commission may increase the percentage required for assent under this subsection for a class of shares when an increase is in the public interest and— (A) 75 percent of the shares in that class are held by less than 25 security holders; or (B) that class is entitled to vote for the election of directors of the carrier and the Commission determines that the assent of at least 25 percent of the security holders of that class are controlled by the carrier or a person controlling the carrier. (2) The carrier may withdraw its application after the Commission makes the findings required under section 11362(a) of this title. If the application is not withdrawn, the Commission must require the carrier to submit the proposed change, with conditions imposed by the Commission, to the holders of each class of its securities affected by the change for their assent or rejection. (b)(1) In determining the percentage of outstanding securities when making a finding under section 11362(a) of this title, a security that secures an evidence of indebtedness of the carrier or of a company controlling or controlled by the carrier is considered to be outstanding unless the Commission determines that the proposed change does not materially affect the interest of the holder of that evidence of indebtedness. When that security is considered to be outstanding, assent to a proposed change may be given, notwithstanding another instrument, only—

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Page:United States Statutes at Large Volume 92 Part 2.djvu/163

 PUBLIC LAW 95-473—OCT. 17, 1978

92 STAT. 1443

(A) if the security is pledged as security under an instrument
 * , under which an evidence of indebtedness was issued and is outstanding, by the holder of a majority of the principal amount of

the evidence of indebtedness; or ' (B) if the security secures an evidence of indebtedness not issued under an instrument under which an evidence of indebtedness was issued, by the holder of the evidence of indebtedness. (2) In addition to a submission required under subsection (a) of this section, the Commission shall require the carrier to submit a proposed change to a security referred to in this subsection, with requirements imposed by the Commission, to the holder of the evidence of indebtedness referred to in paragraph (1)(A) and (B) of this subsection as appropriate, for assent or rejection. A carrier is not required

to submit the change to the trustee of the instrument referred to in that paragraph. (c) If the Commission determines that the assent of the holder of a security not entitled to vote for the election of directors of the carrier or an evidence of indebtedness is in the control of the carrier or of a person controlling the carrier, that security or evidence of indebtedness is not considered to be outstanding. § 11364 Procedure 49 USC 11364. (a) The Commission may prescribe the manner in which assents, assurances of assent, or rejections of the security holders may be solic^'' ' '--= " ited whether the solicitation is made before or after the Commission approves and authorizes the proposed change. (b) The Commission may approve a bank or trust company, incorporated under the law of the United States or a State, that is a member of the Federal Reserve System and has a capital and surplus of at least $2,000,000, to receive assents and revocations of assents from security holders. The Commission may require the security holders to send those assents and revocations to that bank or trust company. That bank or trust company shall certify the result of the submission to the Commission. The Commission may relj'^ on that certification as conclusive evidence in determining the result of that submission. § 11365. Effect of change on other persons 49 USC 11365. (a) When a change becomes effective under this subchapter, the change is binding on, and changes the rights of— (1) each holder of a security of the carrier of each class affected by the change; and (2) a trustee or other party to an instrument under which a class of securities has been issued or by which it is secured. (b) An authorization and approval of a change under this subchapter is authority for, and approval of, a corresponding change of the obligation of another carrier that assumed liability related to that class of securities if that carrier consents to the change in writing. When consent is given, the corresponding change becomes effective when the change of the class of securities or instrument becomes binding. A person who is liable or obligated on a class of securities issued by a carrier is a carrier with respect to that class for the purposes of this subchapter. § 11366. Reports 49 USC 11366. A carrier receiving approval and authorization to make a change under this subchapter shall report the action taken by it in making that change to the Interstate Commerce Commission. The Commission may require periodic or special reports.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/164

 92 STAT. 1444 49 USC 11367.

15 USC 77a.

PUBLIC LAW 95-473—OCT. 17, 1978 § 11367. Application of other laws ' ' (a) Section 78n(a) of title 15 does not apply to a solicitation related to a proposed change under this subchapter. (b) If the Interstate Commerce Commission finds an issuance of a security, that is an interest in a railroad equipment trust as defined in section 77c(a)(6) of title 15, under this subchapter complies with section 11301 of this title, it is considered to be an issuance subject to section 11301 within the meaning of section 77c(a)(6) of title 15. Section 77e of that title does not apply to the issuance, sale, or exchange of certificates of deposit representing securities of, or claims against, a carrier that are issued by committees in proceedings under this subchapter. Those certificates and transactions under this subchapter are exempt from subchapter I of chapter 2A of title 15. CHAPTER 115—FEDERAL-STATE RELATIONS Sec.

49 USC 11501.

Ante, pp. 1359, 1369.

11501. Interstate Commerce Commission authority over intrastate transportation. 11502. Conferences and joint hearings with State authorities. 11503. Tax discrimination against rail transportation property. 11504. Withholding State and local income tax by certain carriers. 11505. State action to enjoin rail carriers from certain actions. 11506. Registration of motor carriers by a State. 11507. Prison-made property governed by State law. §11501. Interstate Commerce Commission authority over intrastate transportation (a)(1) The Interstate Commerce Commission shall prescribe the rate, classification, rule, or practice for transportation or service provided by a carrier subject to the jurisdiction of the Commission under subchapter I or IV of chapter 105 of this title when the Commission finds that a rate, classification, rule, or practice of a State causes— (A) between persons or localities in intrastate commerce and in interstate and foreign commerce, unreasonable discrimination against those persons or localities in interstate or foreign commerce; or (B) unreasonable discrimination against or imposes an unreasonable burden on interstate or foreign commerce. (2) The Commission may make a finding under this subsection involving a carrier providing transportation subject to its jurisdiction under subchapter I of chapter 105 of this title without separating interstate and intrastate property, revenues, and expenses, and without considering the total operations, or their results, of a carrier or group of carriers operating entirely in one State. (b)(1) The Commission has exclusive authority to prescribe an intrastate rate for transportation provided by a rail carrier subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title when— (^A) a rail carrier files with an appropriate State authority a change in an intrastate rate, or a change in a classifiction, rule, or practice that has the effect of changing an intrastate rate, that adjusts the rate to the rate charged on similar traffic moving in interstate or foreign commerce; and (B) the State authority does not act finally on the change by the 120th day after it was filed. (2) When a rail carrier files an application with the Commission under this subsection, the Commission shall prescribe the intrastate rate under the standards of subsection (a) of this section. Notice of the application shall be served on the State authority.

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Page:United States Statutes at Large Volume 92 Part 2.djvu/165

 PUBLIC LAW 95-473—OCT. 17, 1978 (c) The Commission may take action under this section only after a full hearing. Action of the Commission under this section supersedes State law or action taken under State law in conflict with the action of the Commission. § 11502. Conferences and joint hearings with State authorities (a)(1) In carrying out this subtitle as it applies to a class of persons providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under subchapter I, III, or IV of chapter 105 of this title, the Commission may— (A) confer and hold joint hearings with the State authorities having regulatory jurisdiction of that class when the conference or hearing is related to an investigation of the relationship between rate structures and practices of carriers providing transportation or service subject to the jurisdiction of the State authorities and of the Commission, and the Commission may take action as a result of the investigation that may affect the ratemaking authority of a State; and (B) cooperate with and use the services, records, and facilities of the State authorities. (2) In carrying out this subtitle as it applies to motor carriers and brokers providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, the Commission may— (A) confer and hold joint hearings with State authorities; (B) cooperate with and use the services, records, and facilities of State authorities; and (C) make cooperative agreements with a State to enforce the economic laws and regulations of a State and the United States concerning highway transportation. (b) When an investigation under this subtitle involving a common carrier providing transportation or service subject to the jurisdiction of the Commission under subchapter I or IV of chapter 105 of this title, is about a rate, classification, rule, or practice of a State, the Commission shall notify the interested State of the proceeding before disposing of the issue. (c) When a representative of a State authority sits with the Commission in an investigation about a carrier subject to the jurisdiction of the Commission under subchapter I or III of chapter 105 of this title, the representative may be given an allowance for travel and subsistence expenses. The Commission may determine the amount of the allowance. § 11503. Tax discrimination against rail transportation property (a) In this section— (1) "assessment" means valuation for a property tax levied by a taxing district. (2) "assessment jurisdiction" means a geographical area in a State used in determining the assessed value of property for ad valorem taxation. (3) "rail transportation property" means property, as defined by the Interstate Commerce Commission, owned or used by a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title. (4) "commercial and industrial property" means property, other than transportation property and land used primarily for

92 STAT. 1445 Hearing,

49 USC 11502.

Ante, pp. 1359, 1^65, 1369.

Ante, p. 1361.

Travel and subsistence allowances.

49 USC 11503. Definitions.

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Page:Folk-lore - A Quarterly Review. Volume 10, 1899.djvu/484

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Page:United States Statutes at Large Volume 92 Part 2.djvu/166

 92 STAT. 1446 Mcr*v.'

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49 USC 11504.

PUBLIC LAW 95-473—OCT. 17, 1978 agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy. (b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: (1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property, (2) levy or collect a tax oil an assessment that may not be made under clause (1) of this subsection. (3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. (4) impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of this title. (c) Notwithstanding section 1341 of title 28 and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has jurisdiction, concurrent with other jurisdiction of courts of the United States and the States, to prevent a violation of subsection (b) of this section. Belief may be granted under this subsection only if the ratio of assessed value to true market value of rail transportation property exceeds by at least 5 percent, the ratio of assessed value to true market value of other commercial and industrial property in the same assessment jurisdiction. The burden of proof in determining assessed value and true market value is governed by State law. If the ratio of the assessed value of other commercial and industrial property in the assessment jurisdiction to the true market value of all other commercial and industrial property cannot be determined to the satisfaction of the district court through the randomsampling method known as a sales assessment ratio study (to be carried out under statistical principles applicable to such a study), the court shall find, as a violation of this section— (1) an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has to the true market value of all other commercial and industrial property; and (2) the collection of an ad valorem property tax on the rail transportation property at a tax rate that exceeds the tax ratio rate applicable to taxable property in the taxing district. § 11504. Withholding State and local income tax by certain carriers (a)(1) In this subsection, an employee is deemed to have earned more than 50 percent of pay in a State or subdivision of a State if the employee— (A) performs regularly assigned duties on a locomotive, car, or other track-borne vehicle in at least 2 States and the mileage

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Page:United States Statutes at Large Volume 92 Part 2.djvu/167

 PUBLIC LAW 95-473—OCT. 17, 1978 traveled in one State or subdivision of that State is more than 50 percent of the total mileage traveled by the employee while employed during the calendar year; or (B) is engaged principally in maintaining roadways, signals, communications, and structures or in operating motortrucks from railroad terminals in at least 2 States and the percent of the time worked by the employee in one State or subdivision of that State is more than 50 percent of the total time worked by the employee while employed during the calendar year. (2) A rail, express, or sleeping car carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title shall withhold from the pay of an employee referred to in paragraph (1) of this subsection only income tax required to be withheld by the laws of a State, or subdivision of that State— (A) in which the employee earns more than 50 percent of the pay received by the employee from the carrier; or (B) that is the residence of the employee (as shown on the employment records of the carrier), if the employee did not earn in one State or subdivision more than 50 percent of the pay received by the employee from the carrier during the preceding calendar year. (b)(1) In this subsection— (A) "State" includes a State, territory, or possession of the United States, and the Commonwealth of Puerto Rico. (B) an employee is deemed to have earned more than 50 percent of pay in a State or subdivision of a State in which the mileage traveled by the employee in that State or subdivision is more than 50 percent of the total mileage traveled by the employee while employed during the calendar year. (2) A motor carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title and a motor private carrier shall withhold from the pay of an employee having regularly assigned duties on a motor vehicle in at least 2 States, only income tax required to be withheld by the laws of a State, or subdivision of that State— (A) in which the employee earns more than 50 percent of the pay received by the employee from the carrier; or (B) that is the residence of the employee (as shown on the employment records of the carrier), if the employee did not earn in one State or subdivision more than 50 percent of the pay received by the employee from the carrier during the preceding calendar year, (c)(1) In this subsection, an employee is deemed to have earned more than 50 percent of pay in a State or subdivision of that S'^ate in which the time worked by the employee in the State or subdivision is more than 50 percent of the total time worked by the employee while employed during the calendar year. (2) A water carrier providing transportation subject to the jurisdiction of the Commission under subchapter III of chapter 105 of this title or a water carrier or class of water carriers providing transportation on inland or coastal waters under an exemption under this subtitle shall file income tax information returns and other reports only with— (A) the State and subdivision of residence of the employee (as shown on the employment records of the carrier); and

92 STAT. 1447

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Ante, p. 1359.

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"State."

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Ante, p. 1365.

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