solely under $20. Moreover, neither the questioned "Formal Demand For Examination of Records" served on plaintiff railroad by authorized Commission auditors, pursuant to $20 (5), nor the counterclaim filed by the United States purported to rely on $12 (1). Therefore, since carrier's budget forecast materials sought to be inspected are not "other documents" within $20 (5), the Formal Demand for forecast materials was not within the authority of the Commission or its representatives under that section, and the counterclaim asserted by the United States fails to state a claim on which relief can be granted. Plaintiff's motion for summary judgment granted.-Burlington Northern, Inc. v. Interstate Commerce Commission, 323 F. Supp. 273 (275-76, 278-79). $15 (7). COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS

In General

4. Transportation subjects which may be considered; in general. Respondent railroads contention that the Commission lacks jurisdiction over proposed schedule provisions cancelling absorption of wharfage at indicated Gulf and South Atlantic ports is rejected as such cancellations are of specific amounts of wharfage absorption published in respondents' tariffs filed with the Commission and directly affect charges paid by the public to carriers subject to our jurisdiction for transportation of property.Cancellation of Wharfage Absorption, 335 I.C.C. 477 (520-22).

Procedure

35. Burden of proof upon the hearing; in general.-Inasmuch as respondent railroads propose schedules cancelling specific amounts of wharfage absorption at indicated Gulf and South Atlantic ports which would directly affect charges paid by the public to carriers for transportation of property, the burden of proving any such changes in rates or charges to be just and reasonable is upon the respondents.-Cancellation of Wharfage Absorption, 335 I.C.C. 477 (522).

Where respondent railroads have shown their proposed proportional rates on multiple-car shipments of canned foodstuffs from the Pacific coast to points east of the Rocky Mountains to be just and reasonable from the standpoint of their own revenue requirements, protestant's carrier which claims an inherent advantage of cost has the burden of proving the existence of such advantage.-Canned Foodstuffs, Pacific Coast to the East, 335 I.C.C. 612 (631).

50. Evidence; generally.-In suspension proceeding on proposed revisions in fares applicable to interstate passenger service on the New Haven division of the respondent railroad a cost analysis having any probative value is not feasible at present as numerous arbitrary allocations, lacking in factual support, would be required. Lawfulness of proposed fares must be measured by comparisons with fares charged for similar services under substantially same transportation conditions and such other criteria as are pertinent.-Penn Central Fare Revision-1969, 335 I.C.C. 720 (731-32).

Particular Justifications for Changes

70. Cost of service.-See Penn Central Fare Revision-1969 case, $15 (7), n. 50 above.

§17 (5) .

FINDINGS, ETC., OF COMMISSIONER OR BOARD; ACCOMPANYING STATEMENT AND
RECOMMENDED ORDER; COPIES TO PARTIES; EXCEPTIONS; RECOMMENDED ORDER
AS COMMISSION'S ORDER

10. Reopening on Commission's own motion.-Applicant in instant case instituted a civil action (C.A. No. 70-397, Empire Fuel v. U.S.) in Oregon district court claiming, in essence, that denial of its application was due to the fact that its application was erroneously considered under the wrong standard, i.e., that developed in 103 M.C.C. 318. Therefore, Commission reopened this proceeding on its own motion for further processing under modified procedure, for purpose of according the parties a further opportunity to introduce additional evidence and for consideration and disposition on the record as made after the expiration of the time period for filing of verified statements. No additional evidence was submitted by the parties. Commission shall reconsider the application anew.-Empire Fuel & Transfer Co., Common Carrier Applic., 113 M.C.C. 38 (39)*.

$17 (6).

REHEARING, REARGUMENT, OR RECONSIDERATION OF DECISIONS, ORDERS,
AND REQUIREMENTS

10. Rehearing; reconsideration.-A request for additional hearings is addressed to the sound discretion of the Commission and the denial of a petition for rehearing based on a claim that the record is stale does not constitute an abuse of administrative discretion. Although the record would be considered stale, and plaintiffs through proper exercise of their rights contributed to delay in the decision, all the procedures in the Commission proceeding, and the court action, take time and no criticism of any person for exercising legal rights is implied; thus, as a practical matter there seems to be no way to avoid a so-called stale record in a case of such long complex However, decisions must be made and the Commission denied motions for further hearings and entered its decision and order; and in so doing there was no abuse of discretion. Commission's decision affirmed.-Carolina Freight Carriers Corp. v. United States, 323 F. Supp. 1290 (1297-98)*.

nature.

Commission reopened instant proceeding as it is well settled that Commission has continuing jurisdiction over its orders and is empowered to reconsider and to rescind or modify its orders at any time, even if, as herein, they are administratively final as defined by rule 101 (a) (2) of General

Rules of Practice, for purpose of correcting an error or injustice. However, an administratively final proceeding is ripe for court review, and the aggrieved party has such recourse if it chooses.-Braswell Motor Freight Lines, Inc., Extension, 112 M.C.C. 558 (566-67)*.

The prior report misconstrued the nature of the application and con sidered it as one seeking Kingpak-type authority. Applicant contended on pet tion and before the court that the application was not based upon past services for exempt freight forwarders. Commission (Appellate Division 1) reopen the matter to apply the usual standards of public convenience and necessity.Empire Fuel & Transfer Co., Common Carrier Applic., 113 M.C.C. 38 (43)*.

$20 (3). UNIFORM SYSTEM OF ACCOUNTS

24. Depreciation accounting.-The Commission approved an amendment to part 1204 of the uniform system of accounts for pipeline companies requiri such companies to record the purchase of a pipeline carrier for depreciation accounting at no more than the original cost when the purchase price exceeds both $250,000 and the original cost. Order entered without prejudice to petitions for relief by particular carriers.-System of Accounts for Pipeline Companies, 335 I.C.C. 459 (464).

6. In general.-Where a pipeline carrier is acquired in whole or in part by purchase of another pipeline carrier, the cost of reproduction new less depreciation would be generally equivalent to the fair market value of acquired depreciable property.-System of Accounts for Pipeline Companies, 335 I.C.C. 459 (463).

$20 (5).

FORMS OF ACCOUNTS, RECORDS, AND MEMORANDA; ACCESS TO RECORDS, ETC.,
BY COMMISSION OR AGENTS

31. In general.-In view of interpretation of $20, as it then stoo in 236 U.S. 318, legislative history surrounding subsequent amendments theret and general context of the section, the court concludes that amendment of $20 (5) did not expand the Commission's inspection powers to catagories of doc ments not related to prescribed or authorized accounting and corporate record of a carrier, and that "other documents" therein means other documents which would assist an auditor to understand an entry on records prescribed by the Commission. Therefore, since rail carrier's budget forecast materials sought to be inspected clearly are not accounts, books, records, etc., and cannot be deemed "other documents" within meaning of $20 (5), the statute does not authorize the Commission to inspect the budget forecast materials described in its Formal Demand for Examination of Records. Plaintiff's motion for summary judgment granted.-Burlington Northern, Inc. v. Interstate Commerce Commission, 323 F. Supp. 273 (277-79).

33. Accounts, records, and other papers subject to inspection.— To bring budget forecast materials described in "Formal Demand for Examinatio of Records," which was served on plaintiff railroad by auditors acting for the Commission, within the scope of amended $20 (5), they would have to be deemed "other documents" within the meaning thereof, such materials clearly not being "accounts, books, records, memoranda [or] correspondence." However since the amendment of $20 (5) did not expand the Commission's inspection

powers to catagories of documents not related to the prescribed or authorized accounting and corporate records of a carrier, and the term "other documents" therein means other documents providing background material which would assist an auditor to understand an entry on records prescribed by the Commission, the budget forecast materials in issue are not subject to inspection by the Commission under $20 (5). Plaintiff's motion for summary judgment granted.—Burlington Northern, Inc. v. Interstate Commerce Commission, 323 F. Supp. 273 (277-79).

§203 (a) (10). INTERSTATE COMMERCE

PART II

5. Interstate commerce defined.

Between State points: Less-than-truckload shipments between points

in the same State but which traverse roads in an adjoining State are in interstate commerce, irregardless of shipper's intent that shipment should be of an intrastate character only.-Applicable Rates on Intrastate Shipments, 335 I.C.C. 472 (475)*.

§203 (a) (15). CONTRACT CARRIER DEFINED

1.

Contract carrier defined.-Proposed operations by applicant found to be contract carriage as applicant proposes to provide a service peculiarly tailored to supporting shippers' demonstrated needs. Although this is the seventh shipper served by applicant, which number approaches the maximum permitted (see 91 M.C.C. 691), such fact does not alter applicant's contract carrier status. However, applicant is hereby admonished that the inclusion of an additional shipper may result in a finding that applicant holds itself out to serve the general public.-P-N-J Kornacker, Inc., Extension-Malt Beverages, 112 M.C.C. 580 (586)*.

$203 (a) (18). BROKER DEFINED

1. Broker defined.-Operations by defendant as a broker in arranging for the transportation of passengers at New York, N.Y., pursuant to a license limited territorially to that point, and as a purported "agent-employee" of affiliated motor carriers at points beyond the scope of the license, found to be inconsistent. "Agent-employee of a carrier" within the meaning of the exclusion to $203 (a) (18) of the Act is construed as virtually synonymous with "employee," and as requiring a continuity and character of service such that individual claiming status as such is part of the individual normal organization of the carrier served. When a carrier makes use of the facilities or personnel of a broker as its agent to promote, advance, or intercede in its arranging for charter tours, it would be an unusual situation where it could be claimed, with substantiation, that the broker is not engaged in brokerage operations by such intervention.-Manhattan Transit Co. v. Inter-City Tours, Inc., 113 M.C.C. 102 (108).

$203 (b). VEHICLES EXCEPTED FROM OPERATION OF LAW

45. Operation by or for agricultural cooperative associations.Under the $203 (55) exemption, an agricultural cooperative's transportation for "nonmembers who are neither farmers, cooperatives nor associations thereof" is limited in two ways: (1) to 15 percent of its total annual interstate tonnage and (2) to the "incidental and necessary" standard of the statute. Therefore, since the United States is specified as a nonmember, and since it is not included in description "farmers, cooperatives nor associations thereof," defendant cooperative's transportation for the Government is subject to the 15-percent limitation; and defendants concede that, if the 15-percent limitation is applicable, then the statutory "incidental and necessary" limitation also applies to such transportation. Furthermore, as applied to defendants in instant injunction proceeding, $203 (b5) does not violate their constitutional protections of due process and equal protection of the laws.-Interstate Commerce Commission v. Big Sky Farmers & Ranch. Mkg. Coop. of Montana, 321 F. Supp. 79 (82-3)*.

$204 (a) (1). POWERS AND DUTIES OF COMMISSION, GENERALLY

21. Reports, generally; contents; proof.-See Annual Reports of Motor Carriers of Property, $220 (a), n. 5.

$204 (a) (6). ADMINISTRATION

2. Construction and interpretation.-Commission has authority to make a general finding of public convenience and necessity in appropriate rulemaking proceedings, with interested persons thereafter filing individual applications (see 110 M.C.C. 730). The emergency transportation situation described herein necessitates such a finding and, as consideration of each carrier's situation is unduly burdensome and would create delay contrary to the public interest, special procedures are hereby promulgated to enable affected carriers to operate under one special certificate of public convenience and necessity.-Special Relief for Motor Carriers, 112 M.C.C. 323 (326-29).

7. Classification of carriers; commodity basis.-See Transit Homes, Inc., Extension-Buildings (Idaho) case, §207 (a), n. 25 Public need.

Automobiles: Protestant's claim that its authority to transport automobiles and "parts thereof" authorizes transportation of parts independently of the basic commodity specified found not valid. The modification of protestant's certificate in 1968 by moving the phrase "parts thereof" was for the sole purpose of rendering the commodity descriptions therein more sensible and readable and had no effect on the meaning of the phrase at issue.-Kenosha Auto Transport Corp. Ext.-Seat Cabs, 112 M.C.C. 244 (247-49)*.