goods authority granted plaintiff to a so-called "Kingpak" restriction, fact that the Commission did not affirm hearing examiner's findings that an unrestricted certificate should be granted is not important since, under the la the Commission and not an examiner or employee board has the duty to render: final decision based on the evidence of record. The Commission is charged with responsibility of evaluating public convenience and necessity; also, as pointed out in 275 F. Supp. 98, it is the Commission's duty and obligation t make its decisions, in the final analysis, and in so doing it is free to accept or reject the recommendations of its examiners. Relief sought by plaintiff is denied.--Towne Services Household Goods Transp. Co. v. United States, 329 F. Supp. 815 (820, 822)*. Judicial review: In reviewing freight classification determinations, the district court determines whether the Commission acted rationally and whether its findings are supported by substantial evidence. Reviewing freight classifications is a fact finding process and the court will not upset Commission decision because it evaluates evidence differently. In instant case Commission's general statement that shipper seeking classification change has failed to meet its burden of proof without indicating the basis of facts for such findings, is insufficient. Case remanded to Cammission for further proceeding.--Dutton-Lainson Company v. United States, 371 F. Supp. 1352 (1355)*. Procedure: Rulemaking proceedings of general public interest, being quasi-legislative, require full notice to the public and full and complete opportunity to participate by all interested persons, whether as active participant or merely as a viewer. Alternative procedure suggested in Association's petition for informal changes in the Commission's handling of certain rulemaking proceedings, under which statements would be served only on persons who filed initial statements instead of on all those filing notice of intent to participate, would discourage public interest and participation and would improperly limit the rights of persons desiring to parti cipate; therefore, the petition is denied. However, in view of valid questions concerning the unnecessary expense that may be incurred by persons desiring to become parties to general rulemaking proceedings wherein, in le of oral hearing, written statements are to be filed, the procedure described will be informally instituted within the Commission to facilitate the early specification of a person's particular interest and, thus, to reduce the lisa of parties upon whom statements need be served.--Petition to Amend Commissics Procedure for Rulemaking, 340 I.C.C. 190 (191-93). See also Blue Bird Coach Lines, Inc. v. United States, $207 (a), n. 7, Existing motor carriers. JUDICIARY AND JUDICIAL PROCEDURE $2325. 28 USC INJUNCTION; THREE-JUDGE COURT REQUIRED Jurisdiction of Courts to Restrain Enforcement of Commission's Orders 7. Jurisdiction of district court. --The court lacks jurisdictio in suit to enjoin, vacate, and set aside Commission orders assigning motor E arrier application for handling under its modified procedure rules, and denyng plaintiff's request for oral hearing by a joint board, as those orders re not final. The Commission has made no final decision on opposed threetate application itself; nor has it decided whether or not there will be an ral hearing. Clearly, considered orders are preliminary and procedural and, ot being directly reviewable, they are subject to review only on review of he final agency action; thus, doctrine of exhaustion of administrative remeies makes plaintiff's action a premature resort to the court. While the ɔnes Truck Lines, Inc. case, 321 F. Supp. 821, stressed by plaintiff, casts oubt on validity of the Commission's use of modified procedure rules in the ype of situation presented, that case does not stand for the proposition that laintiff is entitled to review of the proceedings at this time. The court as no jurisdiction to interfere now with the Commission's procedure; request o convene a three-judge court, denied.--T. J. Claveau Transp., Inc. v. I.C.C., 29 F. Supp. 931 (932-33) *. Scope of Judicial Review of Commission's Orders 40. In general.--The very limited role of the judiciary in reviewng actions of administrative agencies is restricted to a determination of hether the agency committed any errors of law or exceeded its statutory uthority; courts are not empowered to weigh the evidence de novo and reach n independent conclusion. Although the court reviewing administrative action s confined to the record made before the agency, it may review the entire ecord and is not limited to those portions cited by the parties. On review f the entire record in western railroads' suit to enjoin and set aside the ammission's decision, insofar as it concludes that proposed increase in the aterborne charge at western ports is not shown to be just and reasonable, he court concludes that challenged Commission order is based upon adequate indings and that those findings are supported by substantial evidence. herefore, carriers' complaint is dismissed.--Atchison, T. & S.F. Ry. v. nited States, 334 F. Supp. 651 (654-55)*. 48. Soundness of Commission's reasoning.--In motor carrier's action o enjoin and invalidate Commission orders granting it a "Kingpak" rather than n unrestricted, household goods certificate, it is neither the duty nor the ight of the court to inquire into the soundness of the Commission's reasonng, wisdom of its decisions, or the consistency of its conclusion with those eached in similar cases. Fact that an administrative tribunal's new deciion departs from the rule of an earlier one does not require corrective ction by a reviewing court; the court must decide whether the Commission orrectly applied the laws, not whether it followed its own precedents. The Commission's action, sustained.--Towne Services Household Goods Transp. b. v. United States, 329 F. Supp. 815 (821, 822)*. 56. Substantial evidence to sustain order.--In resolving question of whether a Commission determination is supported by substantial evidence, eneral test is whether the evidence is "enough to justify, if the trial ere to a jury, a refusal to direct a verdict when the conclusion sought o be drawn from it is one of fact for the jury" in order to determine hether the agency considered "such relevant evidence as a reasonable man Light accept as adequate to support a conclusion." Record before the Comission indicates that western railroads were unable to furnish adequate statistical data concerning their current port terminal costs and that, for some time, they had been sharing such costs with the water carriers; also, though plaintiffs' single witness attempted to show reasonableness of the overall rate structure on waterborne traffic, he could only offer partial information as to the volume of such traffic. Substantial evidence of record supports the Commission's finding that carriers had failed to prove that proposed increase in the waterborne additive charge at western ports was just and reasonable; complaint dismissed.--Atchison, T. & S.F. Ry. v. United States 334 F. Supp. 651 (654-55)*. 61. Burden of proof.--The burden of showing the invalidity of a Commission order rests on the plaintiff suing to enjoin and set aside that order.--Atchison, T. & S.F. Ry. v. United States, 334 F. Supp. 651 (654)*. NATIONAL ENVIRONMENTAL POLICY 42 USC $4332. COOPERATION OF AGENCIES; REPORTS; AVAILABILITY OF INFORMATION; RECOMMENDATIONS; INTERNATIONAL AND NATIONAL COORDINATION OF EFFORTS 2. Construction and interpretation.--Commission in considering petition for abandonment had duty to consider provisions of National Environmental Policy Act in reaching decision which could lead to increased use of alternative modes of transportation with greater polluting effects. Failure to consider environmental effects requires remand of proceedings for such consideration but does not compel court to vacate abandonment order. --City of New York v. United States, 337 F. Supp. 150 (151–52)*. National Environmental Policy Act does not indicate an intent to authorize federal agency to compel a parent or sister company to finance losing subsidiary or affiliate simply because latter's demise will have unfortunate environmental effects.--Id., pp. 151. Phrase "to fullest extent possible" in this Act imposing duties on all federal agencies with respect to consideration and exploration of environ mental effects of their decisions and plan obliges agencies to comply to fullest extent possible, and is not intended to relax obligations of administrative authorities to perform duties set forth in section.-Id., pp. 151. The National Environmental Policy Act (NEPA) has been construed by the courts to mean essentially that every Federal agency must consider ecologi cal factors when dealing with activities which may have an impact on man's evironment, Zabel, 430 F. 2d 199. Commission therefore adopted special rules and regulations designed to implement the NEPA in accordance with guidelines adopted by the Council on Environmental Quality (see appendix A). These rules amend the Code of Federal Regulations by addition of 49 CFR $1100.250 and will become effective upon their publication in the Federal Register.Implementation--Natl. Environmental Policy Act, 1969, 340 I.C.C. 431 (436-41). Commission required that environmental statements, alleging whether the environment will be affected by the Commission action sought, must be file ith all initial papers filed with this Commission to enable earliest considration of the environmental issues to ensure fullest compliance with the uidelines of the Council.-Id., pp. 439. Notice of all proceedings which may affect human environment will e given to the public through publication in Federal Register insofar as is practicable and to the Council on Environmental Quality and appropriate Jovernmental bodies. An initial decision that environmental issues are not resent will not preclude a later finding that such issues are involved and the consequent giving of public notice.-Id., pp. 440-41. 5. Environmental impact statement, when required.--In compliance with requirements of Council on Environmental Quality, this Commission will ssue an environmental impact statement together with and as part of each nitial determination made as a result of any hearing (oral or written) in hose cases determined to involve environmental issues. Such statements and initial determinations will be circulated to appropriate governmental agencies and made available to the general public in manner prescribed by the Council. All hearings on these issues will be public subject to the Administrative Procedure Act.--Implementation--Natl. Environmental Policy Act, 1969, 340 I.C.C. 431 (441-43). RULES OF PRACTICE Rule 23. Replies.--Applicant's motion to strike the reply of protestants to its exceptions on grounds that the reply constituted exceptions which were not timely filed and contained misstated evidence, overruled, on basis that applicant's motion represented a reply to a reply, which is prohibited by rule 23 (a).--American Delivery Systems, Inc., Frt. Forwarder Applic., 340 I.C.C. 776 (778). Rule 49. Modified procedure; content of pleadings.--Employee board's rationale in denying protestant's motion to strike certain specific statements in supporting shipper's rebuttal statement, on grounds that matter challenged was directly related and complementary to data in shipper's initial verified statement, is a technically proper interpretation of rule 49 as pertains to content of applicant's statement in rebuttal of protestant's statement. However, when applicant failed to state specifically and factually in its initial statement protestant's service deficiencies, protestant had no way to counter the nebulous criticism and then was precluded from entering a defense against the specific allegations in the shipper's rebuttal because of rule 23 which prohibits filing of a reply to a reply.--Kerr Contract Carriage, Inc., Contr. Car. Applic., 115 M.C.C. 862 (865-66). Controlling in this situation is rule 51 which, as made applicable to contested motor carrier application proceedings by rule 247 (e) (3), requires that within the time fixed in the order assigning the proceedings for handling under modified procedure applicant "shall serve upon the other parties a statement of all the evidence upon which it relies." When applicant failed in the duty of submitting the evidence in the rebuttal in its initial statement, and based its case on the inadequacy of existing service, protestant was prevented from presenting an adequate defense, against the spirit and intent of the rules of practice. Motion to strike granted.--Id., pp. 866-67. Rule 51. Modified procedure; when pleadings filed and served.Rule 51, as made applicable to contested motor carrier application proceedings by rule 247 (e) (3), requires that within the time fixed in the order assigning the proceedings for handling under modified procedure applicant "shall serve upon the other parties a statement of all the evidence upon which it relies." When applicant, basing its case on the inadequacy of existing service, failed in duty of submitting specific evidence of service deficiencies in its initial statement, but presented such specific evidence in its rebuttal statement, protestant (by rule 23, prohibiting filing of a reply to a reply) was prevente from presenting an adequate defense, contrary to the spirit and intent of the rules of practice. Motion to strike specific evidence in rebuttal granted.-Kerr Contract Carriage, Inc., Contr. Car. Applic., 115 M.C.C. 862 (866-67). Rule 96. Exceptions to officer's report. --Applicant's motion to strike protestant's exceptions on grounds that they were not in compliance with rule 96, inasmuch as they were not separately stated and numbered, overruled, since the exceptions were stated with clarity and were in substantial compliance with the applicable rule.--American Delivery System, Inc., Frt. Forwarder Applic., 340 I.C.C. 776 (777-78). TABLE OF CASES Airfield Service Co. Ext.--Charter Operations, 114 M.C.C. 493; reversing report and order decided February 12, 1970--$207 (a), n. 25 past Airfield Service Co. Ext.--Charter Operations, 117 M.C.C. 165, reversing 114 M.C.C. 493--§203 (b), n. 35; $208 (c), n. 3, 4 American Delivery Systems, Inc., Frt. Forwarder Applic., 340 I.C.C. 776-$410 (c), n. 26; §410 (e), n. 30; RP 23, 96 American International Driveaway Ext.-Hawaii, 117 M.C.C. 63—§204 (b), n. 7; $206(b), n. 22 admissibility; $207 (a), n. 25 commodity Atchison, T. & S.F. Ry. v. United States, 334 F. Supp. 651, sustaining Increased Waterborne Charge, 337 I.C.C. 534--§14 (1), n. 1; 28 USC §2325, n. 40 56, 61 Blue Bird Coach Lines, Inc. v. United States, 328 F. Supp. 1331, reversin and remanding Loker Extension--New York Route, 112 M.C.C. 64, which reversed 110 M.C.C. 363--§17 (6),. n. 10; §207 (a), n. 7 existing, 24; $208 (c), n. 1 Cancellation of CRI&P & Soo Line Rates--Livestock, 340 I.C.C. 463, reversing report of August 19, 1971--§l(4), n. 4; §3(1), n. 112; §15(7), n. 50, 77 Cartwright Van Lines, Inc., Ext.--Calif., 114 M.C.C. 303; reversing 112 M.C.C. 399--$207 (a), n. 25 interchange Caterpillar Tractor Co. v. Atchison, T. & S.F. Ry. Co., 333 F. Supp. 885--$6 (7), n. 12, 160 |