Investigation--Procedure 58. Quantum and character of evidence.-There is no basis of record herein to determine total increase in revenue which will be produced by sought intrastate increases. Such information, along with financial and economic data of carriers deemed necessary to certify sought increases under national Wage and Price Stabilization Program are lacking. Accordingly, Commission concludes that evidence is insufficient to meet criteria for rate increases required under $300.16 of Price Commission regulations and Commission will not order sought increases until these criteria are met.-Mississippi Intrastate Rail Frt. Rates & Charges, 1969, 341 I.C.C. 69 (78). 62. Order prescribing intrastate rate or practice.--Commission found that the unlawfulness caused by unduly low and unjustly discriminatory Mississippi intrastate rates on certain commodities, with specified exceptions, should be removed by permitting application to these intrastate rates the increases on like interstate traffic which Commission authorized in Ex Parte No. 259. However, an order effectuating the foregoing findings will not be entered unless and until respondents show that involved increases meet the criteria for rate increases under regulations of the national Wage and Price Stabilization Program. --Mississippi Intrastate Rail Frt. Rates & Charges, 1969, 341 I.C.C. 69 (77-80). $14 (1). REPORTS OF INVESTIGATIONS BY COMMISSION 1. The report; requisites.--In action to enjoin and set aside Commission order, insofar as it concludes that proposal to increase waterborne charge at western ports was not shown to be just and reasonable, challenged order is supported by findings in the report that (1) testimony presented by the carriers was inconclusive, (2) current application of the waterborne charge weakened the justification for proposed increase, and (3) the western carriers presented no clear and precise representative cost evidence showing a need for additional revenues. While the Commission may not find merely that the carriers failed to meet their burden of proof, its determination in considered case necessarily was required to be phrased in negative terms; and where the ultimate finding is in negative form, it is required only that the report contain sufficient basic findings of fact to warrant a reviewing court to conclude that the Commission did not act without rational grounds. The Commission's report contains adequate findings to support its order; complaint dismissed.--Atchison, T. & S.F. Ry. v. United States, 334 F. Supp. 651 (653-54, 655)*. $15 (7). COMMISSION TO DETERMINE LAWFULNESS OF NEW RATES; SUSPENSION; REFUNDS 35. Procedure Burden of proof upon the hearing; in general.--The basic issue before the Commission was whether the single-car (100 ton) rate on kaolin clay, applied to traffic moving in minimum shipments of 500 tons at one time under the multicar rate, was shown to be just and reasonable. This relational aspect of respondents' burden of proof is implicit in the term "changed rate" is used in $15 (7) of the Act. And while respondents' rationale, that there vas no competitive necessity for retention of a discount rate and that there vas no cost savings experienced by them in the movement of large volumes of clay at one time as opposed to single-car shipments, traditionally has provided a basis for disapproval to multicar rates when initially filed, such was not the case here.-Clay, Points in Georgia to Savannah & Port Wentworth, 340 I.C.C. 377 (383-84)*. Although the evidence supported the respondents' contention that elimination of the multicar rate, with a consequent 50-cent increase in the rate, would not significantly impede the export clay movement, the proposed cancellation was denied, since carriers seeking cancellation must also show the existence of circumstances or conditions by virtue of which they could not reasonably be expected to achieve cost savings normally inherent in multiple-car service. Absent this requirement shippers and others who benefit from and have come to rely upon multicar rates whenever, due to cessation of competitive pressure or other reasons, carriers lose interest in continuing the high degree of operational efficiency required to effect such savings.--Id., pp. 385-86*. 50. Evidence; generally.--Protestants argued that the absence of evidence of the financial and operating results of other participants to the joint rates in issue requires disapproval of the required increases. However, the Commission held that since the respondents were the predominant carriers in the Alaskan trade under consideration, the operating and financial data shown by them constitute an adequate representation of the entire trade.-Increased Rates and Charges, the Alaska Railroad, 340 I.C.C. 129 (162). While a showing that most livestock shipments are handled at a financial loss, standing alone, does not justify a discontinuance of the service, it must be accorded substantial weight. See also, $15 (7), n. 77.-Cancellation of CRI&P & Soo Line Rates--Livestock, 340 I.C.C. 463 (467)*. Since the Commission determined in 297 I.C.C. 505 that the competition in the movement of produce traffic and the unstable economic conditions in the industry require consideration of the total transportation cost to the shipper and the effect upon the movement of the traffic in determining whether increases are just and reasonable, respondents' assumption that the consumer rather than the producer would be affected by the proposed increase could not be accepted. Further, respondents failed effectively to rebut protestants' contention that the increased charges would price the western shippers out of the eastern market. Denied.--Mechanical Protective Serv. of Perishables-Nationwide, 340 I.C.C. 470 (500). The cost evidence was not a clear and precise representation demonstrating a need for additional revenues; the absence of reliable data establishing unit costs and revenue and expense data requires a finding that respondents failed to meet the burden of showing that proposed mechanical protective service charges were just and reasonable.--Id., pp. 501-02. Particular Justifications for Changes 65. Reasonableness of the proposed rates.--The Commission consistently has prescribed that a strike reimbursement should be based on the applicable per diem charge plus an additive to cover incidental expenses resulting from a car being held because of strike interference. The just and reasonable additive, as established in Chrysler Corp. v. New York Central R. Co., 234 I.C.C. 755 (762), is 20 percent. Since the current charge of $3.29 per car-day, increased by 20 percent, provides for a total charge of $3.95, and the present strike rate is $4 per day, proposed increased demurrage assessed against cars detained due to strikes was found not shown to be just and reasonable.--Strike Demurrage Charge, Nationwide, 340 I.C.C. 179 (188) 68. Rate comparisons.--Proposed tariffs reflected an increase in rates and in waterborne charges on TOFC and COFC movements between inland points and Pacific Coast ports, which was not justified by the rate comparisons of record. No rates or charges exceeding present levels were established as reasonable by the evidence adduced.--Containerized Freight, From and To Pacific Coast, 340 I.C.C. 388 (403). Proposed tariffs encompassed less service than was presently available to shippers; service under the "outer container" rule, whereby a shipper with a rail siding may receive free truck delivery of containers and trailers which cannot be loaded and unloaded while on flatcars, would be eliminated. A lessening of service cannot support an increase in rates and charges, and since the evidence provided no justification for reductions in service, the reductions themselves could not be permitted.--Id., pp. 402-03. 70. Cost of service.--Even assuming that the complainants' cost studies were completely valid in showing that the assailed rates exceed fully distributed costs, it could not thereby be concluded that the rates exceed a maximum reasonable level. The fact that rates substantially exceed the fully distributed cost of service does not establish that they are in excess of maximum reasonable rates. [General Motors Corp. v. New York Central R. Co., 311 I.C.C. 622, 625, affirmed in General Motors Corporation v. U.S., 207 F. Supp. 641.]--Public Serv. Com. of N. Dak. v. Great Northern Ry. Co., 340 I.C.C. 739 (750). When many rates are established at a level less than full cost to meet competition, others, not affected by competition, must return more than full cost if the carriers are to earn sufficient revenue to continue to provide service.--Id., pp. 750. 77. Reasonableness of regulation or practice proposed; routing privilege; cancellation of rates.--Due to the special circumstances attendant to the fact that there was a constant and apparently irreversible decline in the transportation of livestock handled by respondent, that its limited equip ment and facilities are not in good repair and that the cost of acquiring new cars for the dwindling volume of anticipated traffic is unwarranted, the Commission reversed a prior decision in finding cancellation of carload rates on livestock by respondents to be just and reasonable.--Cancellation of CRI&P & Soo Line Rates--Livestock, 340 I.C.C. 463 (467)*. 2. Construction and interpretation.--The Commission will not, in this investigation proceeding, consider the effect of "public cost" (the cost ncurred by governmental agencies in providing transportation facilities) on Intermodal competition and the rail freight rate structure. Since no carrier could establish the hypothetical costs assignable to its operations or those of its competitors, the "public cost" issue would emasculate §15a (3) and repeal the inherent advantages clause of the national transportation policy. We also have this issue in certain respects before us in another docket.Investigation of Railroad Freight Rate Structure, 340 I.C.C. 868 (874-75). 16 (2). PROCEEDINGS IN COURTS TO ENFORCE ORDERS; COSTS; ATTORNEY'S FEE 2. Enforcement of reparation orders by courts, in general.-Suit by shipper to enforce payment of reparations award by the Commission against defendant railroads, arising from alleged overcharges, requires interpretation of certain tariffs and, in particular, the application of so-called intermediate point rule in tariff publishing rate claimed to be applicable on laintiff's shipments. As is well settled, construction of language in a ariff presents a question of law; and for purposes of instant case, a tariff is not essentially different from any other written document. Also, it is settled law that a tariff must be construed to avoid unjust, absurd, or improbable results. Thus, it is the court's task to review the Commission's decision that, under tariff intermediate-point rule, the applicable rate on fruits and vegetables actually shipped from central California points to Philadelphia, Pa., was the claimed lower rate published from El Centro to Philadelphia; and if that interpretation is found contrary to law, the court must set it aside.--Samuel P. Mandell Co. v. Pennsylvania R. Co., 336 F. Supp. 565 (568-69)*. The court rejects the Commission interpretation of the tariff because, as held in the West Petroleum Co. case, 212 F. 2d 812, a route for 'intermediate point" rate purposes must not be unreasonable; however, El Centro-Philadelphia route sanctioned by the Commission is unreasonable in the way it constructs routes by piecing together rail lines without any semblance of relation to actual use or commercial reality. In addition, the Commission erred in its application of the intermediate-point rule so as to make rates from El Centro, rather than those from actual origin points, applicable on considered shipments; and since it also erred in its interpretation of provisions of the tariff, rate charged by the carriers from actual central California origins to Philadelphia was the proper one. Accordingly, since the court finds the hypothetically constructed El Centro route to be arbitrary, unreasonable, and contrary to law, it will not enforce the Comnission's reparations award; judgment entered in favor of defendants.--Id., p. 569, 571-75. §17 (3). CONDUCT OF PROCEEDINGS; SEAL, OATHS; QUORUM; RULES 1. Authority of Commission to control procedure before it.Petition of Motor Carrier Lawyers Association for informal changes in the Commission's handling of rulemaking proceedings of general interest to the public, denied. Procedures to be instituted within the Commission in rulemaking proceedings of general interest to the public wherein written statements are to be filed in place of oral hearing, announced informally. Such procedures, aimed at discouraging those persons not intending to file statements in such proceedings from stating an intent to participate, include (1) publication of the Notice of Proposed Rulemaking and Order with a general invitation to the public including a request that a person submitting a letter of intent state, with particularity, the extent of his interest, and (2) preparation by the Commission of a notice fixing dates for filing initial and reply statements and containing a list of parties upon whom a copy of each statement must be served, including a further statement of the Commission reemphasizing the desire of the Commission to pare the service list and stressing that any person having no further interest in receiving or filing pleadings in the proceeding should notify the Commission immediately so that a supplemental notice can be timely issued.--Petition to Amend Commission's Procedure for Rulemaking, 340 I.C.C. 190 (192). $17 (6). REHEARING, REARGUMENT, OR RECONSIDERATION OF DECISIONS, ORDERS, AND REQUIREMENTS 10. Rehearing; reconsideration.--It has been consistently held that rehearings in administrative proceedings are not matters of right, but pleas to discretion; and likewise, that the discretion to be invoked is that of the body making the order, and not that of a reviewing body. However, as the decisions in 327 U.S. 515 and 396 U.S. 491 make clear, that does not mean that a reviewing court may not remand for a refusal to reopen when the wide discretion accorded an administration agency has been abused. On the special facts in considered motor carrier application case, the Commission abused its discretion in donning "complete blinders" to a new situation that it had itself created; therefore, because of the denial of plaintiff's timely request for a further hearing the order is vacated and the cause remanded for further consideration on a reopened record.--Blue Bird Coach Lines, Inc. v. United States, 328 F. Supp. 1331 (1332, 1337-38) *. $20 (1). REPORTS FROM CARRIERS AND LESSORS 3. Periodical and special reports.-Since data concerning piggyback service are essential to the proper discharge of the Commission's regulatory responsibilities, all class I railroads, other than switching and terminal companies, and all class I intercity motor carriers of property are required to file quarterly reports with respect to such traffic, in accordance with the forms and instructions set forth at 49 CFR 1252.--Piggyback Traffic Statistics, 340 I.C.C. 856 (859). $20 (11). LIABILITY OF INITIAL CARRIER FOR LOSS; LIMITATION OF LIABILITY; Liability of Carriers 30. In general.--Proposed rule providing for a constructive schedule arrived at on the basis of published times (the actual operating schedules) plus 24 hours held inconsistent with present law of carrier |