fined in section 1 (3) ), and where the aggregate number of motor vehicles owned, leased, controlled, or operated by such parties, for purposes of transportation subject to part II, does not exceed twenty. Nothing in this section shall be construed to require the approval or authorization of the Commission in the case of a transaction within the scope of paragraph (2) where the only parties to the transaction are street, suburban, or interurban electric railways none of which is controlled by or under common control with any carrier which is operated as part of a general steam railroad system of transportation. Sec. 5 63 Stat. 486. ban, interrailways. Street, subur urban, electric 54 Stat. 908. exclusive and Authority plenary. Carrier may carry into ef fect authorized transaction. ization unnecessary. (11) The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power (with the assent, in the case of a purchase and sale, a lease, a corporate consolidation, or a corporate merger, of a majority, unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote of the capital stock of such corporation at a regular meeting of such stockholders, the notice of such meeting to include such purpose, or at a special meeting thereof called for such purpose) to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without State authorinvoking any approval under State authority; and any carriers or other corporations, and their officers and employees and any other persons, participating in a transaction approved or authorized under the provisions of this section shall be and they are hereby relieved from the operation of the antitrust laws and of all other restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved or provided for in accordance with the terms and conditions, if any, imposed by the Commission, and to hold, maintain, and operate any properties and exercise any control or franchises acquired through such transaction. Nothing in this section shall be construed to create or provide for the creation, directly or indirectly, of a Federal corporation, but any power granted by this section to any carrier or other corporation shall relief from Federal or operation of State laws. Federal corpothereby created. rations not Sec. 5 -powers addit.nal to those under State charter or laws. 54 Stat. 909. Separability clause. 54 Stat. 909. 63 Stat. 486. "Carrier" defined. 37 Stat. 566. 54 Stat. 909. Prohibited carrier interest in common carrier by water. -competition for traffic. Each day separate offense. 37 Stat. 566. 54 Stat. 909. Determination of fact of competition. -application. be deemed to be in addition to and in modification of its powers under its corporate charter or under the laws of any State. (12) If any provision of the foregoing paragraphs of this section, or the application thereof to any person or circumstances, is held invalid, the other provisions of such paragraphs, and the application of such provision to any other person or circumstances, shall not be affected thereby. NOTE.-Separability provisions, part II, § 227; part III, § 323; part IV, § 422. (13) As used in paragraphs (2) to (12), inclusive, the term "carrier" means a carrier by railroad and an express company and a sleeping-car company, subject to this part; and a motor carrier subject to part II; and a water carrier subject to part III. (14) Notwithstanding the provisions of paragraph (2), from and after the 1st day of July 1914, it shall be unlawful for any carrier, as defined in section 1 (3), or (after the date of the enactment of this amendatory section) any person controlling, controlled by, or under common control with, such a carrier to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which such carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense. NOTE. The last three paragraphs of § 5, (14), (15), (16), and §6 (11), (12) and parts of the Panama Canal Act, § 11 (d), 49 U. S. C. § 51, procedure, and § 11, 15 U. S. C. § 31, violators of antitrust laws, are to be considered together. (15) Jurisdiction is hereby conferred on the Commission to determine questions of fact, arising under paragraph (14), as to the competition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application order. Sec. 5 may be filed for the purpose of determining whether any existing service is in violation of such paragraph and may pray for an order permitting the continuance of prayer for any vessel or vessels already in operation, or may pray for an order under the provisions of paragraph (16). The Commission may on its own motion or the application of any shipper institute proceedings to inquire into the operation of any vessel in use by any railroad or other carrier which has not applied to the Commission and had the question of competition or the possibility of competition determined as herein provided. In all such Finality of cases the order of said Commission shall be final. NOTE.-See note to par. (14), this section, supra. Inquiry into application operation when not made. order. 54 Stat. 909. f ownership. lease, opera Authorization tion or control. Findings, effect upon operation in public in terest. (16) Notwithstanding the provisions of paragraph (14), the Commission shall have authority, upon application of any carrier, as defined in section 1 (3), and after hearing, by order to authorize such carrier to own or acquire ownership of, to lease or operate, to have or acquire control of, or to have or acquire an interest in, a common carrier by water or vessel, not operated through the Panama Canal, with which the applicant does or may compete for traffic, if the Commission shall find that the continuance or acquisition of such ownership, lease, operation, control, or interest will not prevent such common carrier by water or vessel from being operated in the interest of the public and with advantage to the convenience and commerce of the people, and that it will not exclude, prevent, or reduce competition on the route by water under consideration: Provided, That if the transaction or interest sought to be entered into, continued, or acquired is within the scope of paragraph (2) (a), Applicability the provisions of paragraph (2) shall be applicable thereto in addition to the provisions of this paragraph: And provided further, That no such authorization shall be necessary if the carrier having the ownership, lease, operation, control, or interest has, prior to the date this section as amended becomes effective, obtained an order of extension under the provisions of paragraph (21) of this section, as in effect prior to such date, and such order is still in effect. effect on comwater route. petition on of sec. 5 (2). Saving clause, when order of extension obtained. Sec. 5a 62 Stat. 472. "Carrier" defined. "Antitrust laws" defined. approval of agreements. AGREEMENTS BETWEEN CARRIERS SEC. 5a. [June 17, 1948.] [49 U. S. C. § 5b.] (A) The term "carrier" means any common carrier subject to part I, II, or III, or any freight forwarder subject to part IV, of this Act; and (B) The term "antitrust laws" has the meaning assigned to such term in section 1 of the Act entitled "An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes", approved October 15, 1914. (2) Any carrier party to an agreement between or among two or more carriers relating to rates, fares, classifications, divisions, allowances, or charges (including charges between carriers and compensation paid or received for the use of facilities and equipment), or rules and regulations pertaining thereto, or procedures for the joint consideration, initiation or establishment thereof, may, under such rules and regulations as the Commission may prescribe, apply to the Commission for approval of Application for the agreement, and the Commission shall by order approve any such agreement (if approval thereof is not prohibited by paragraph (4), (5), or (6)) if it finds that, by reason of furtherance of the national transportation policy declared in this Act, the relief provided in paragraph (9) should apply with respect to the making and carrying out of such agreement; otherwise the application shall be denied. The approval of the Commission shall be granted only upon such terms and conditions as the Commission may prescribe as necessary to enable it to grant its approval in accordance with the standard above set forth in this paragraph. Terms and conditions of approval. Accounts, records, files, inspection. (3) Each conference, bureau, committee, or other organization established or continued pursuant to any agreement approved by the Commission under the provisions of this section shall maintain such accounts, records, files, and memoranda and shall submit to the Commission such reports, as may be prescribed by the Commission, and all such accounts, records, files, and memoranda shall be subject to inspection by the Commission or its duly authorized representatives. (4) The Commission shall not approve under this section any agreement between or among carriers of differ Sec. 5a ent classes unless it finds that such agreement is of the character described in paragraph (2) of this section and is limited to matters relating to transportation under joint rates or over through routes; and for purposes of this paragraph carriers by railroad, express companies, and sleeping-car companies are carriers of one class; Carriers of pipe-line companies are carriers of one class; carriers classes. by motor vehicle are carriers of one class; carriers by water are carriers of one class; and freight forwarders are carriers of one class. (5) The Commission shall not approve under this section any agreement which it finds is an agreement with respect to a pooling, division, or other matter or transaction, to which section 5 of this Act is applicable. different Pooling, (6) The Commission shall not approve under this section any agreement which establishes a procedure for the determination of any matter through joint consideration unless it finds that under the agreement there is accorded to each party the free and unrestrained right to take independent action either before or after any determina- action. tion arrived at through such procedure. Independent Investigation. modified or terminated. (7) The Commission is authorized, upon complaint or upon its own initiative without complaint, to investigate and determine whether any agreement previously approved by it under this section, or terms and conditions upon which such approval was granted, is not or are not. in conformity with the standard set forth in paragraph (2), or whether any such terms and conditions are not necessary for purposes of conformity with such standard, and, after such investigation, the Commission shall by order terminate or modify its approval of such agreement if it finds such action necessary to insure conformity with Approval such standard, and shall modify the terms and conditions upon which such approval was granted to the extent it finds necessary to insure conformity with such standard or to the extent to which it finds such terms and conditions not necessary to insure such conformity. The effective date of any order terminating or modifying Effective date. approval, or modifying terms and conditions, shall be postponed for such period as the Commission determines to be reasonably necessary to avoid undue hardship. (8) No order shall be entered under this section except after interested parties have been afforded reasonable opportunity for hearing. Hearing. |