In mid March the Board declared a moratorium on further railroad merger activities until it could adopt new rules governing approval proceedings. The agency said it would issue new rules in 15 months. The announcement came after 4 days of hearings triggered by the announcement that BNSF and CN would merge.
The railroads asked for a stay of the Board decision, arguing that it does not have authority to temporarily decline new merger filings. They also maintained that the action was not lawful since it was not issued after formal rulemaking procedures.
In denying the stay, the Board found that the law permits it to put a temporary hold on new merger applications while it makes changes to its rules.
"BNSF and CN seek the opportunity to file their application. . .now so that they can have their announced proposal (and presumably only their announced proposal) proceed under our old rules (or some interim rules that are acceptable to them) while new rules are developed and the issue of our authority to delay new filings is litigated," the Board said.
"But other railroads have indicated that they will seek to make strategic responses once a BN/CN application is filed, and any such proposals should be treated under the same rules that govern BNSF and CN."