Joint through rates between rail and motor common carriers may be established only by virtue of §216(c) and this section contains no provision for the participation in such rates by carriers not subject to the Commission's economic jurisdiction. To hold otherwise and to permit the publication of rates for the performance of exempt transportation would be to contravene the intent of Congress to exclude such transportation from the rate provisions of the act.--Substituted Service-Piggyback, 322 I.C.C. 301 (354)*.

20. Divisions: reasonableness.--The commission has the authority to require the filing by common carriers subject to parts I, II, and III of all contracts with other common carriers related to regulated traffic and the filing of such contracts have been called in only a few special instances. Since the commission has recently made efforts to reduce and condense the amount of necessary information which must be filed in an attempt to relieve the carriers, as well as the commission's staff, of heavy administrative burdens and the fact that there has been no showing here that the division arrangements established by railroads and other common carriers engaging in joint intermodal TOFC service have been in any way unlawful or unduly prejudicial to any other carrier, no rule will be promulgated requiring such filing. However, should the Commission be informed in the future that the unpublished divisions are being used as a shield for improper activities by any carrier, it will then be time enough to make the determination whether a general rule is needed.-Substituted Service-Piggyback, 322 I.C.C.301 (350)*.

Section 216(c) requires only that the carriers, parties to the joint rates, establish "just, reasonable, and equitable divisions thereof as between the carriers participating therein which shall not unduly prefer or prejudice any of such participating carriers." The question of what constitutes just, reasonable, and equitable divisions necessarily involves many considerations, both factual and legal, but plainly the maintenance of divisions computed on exactly the same basis as is the overall joint rate, to the exclusion of all other factors and considerations, is not required by the statute and may, in fact, be in violation thereof. Freight forwarders' agrument that "it is highly probable that in some instances the 'division' is greater than the whole," is not supported by the record.-Substituted Service--Piggyback, 322 I.C.C. 301 (345)*.

Hearing examiners properly rejected proposed rules B-4 and B-5 which attempted to achieve the end that TOFC service be made available to all at equal charges and took the approach which would have required that the divisions received by a rail carrier providing joint intermodal service could not exceed any all-rail TOFC rate maintained by the rail carrier for like service; and the latter rule would have required any rail carrier providing joint intermodal TOFC service with any motor or water carrier to do so indiscriminately with other such carriers.--Substituted Service-Piggyback, 322 I.C.C. 301 (328)*.

And it would not be practical to attempt to control by a rule of

general applicability the level of compensation to be received under division agreements which are, by nature, private contracts negotiated by individual carriers.--Id., p. 328.

$216(g). NEW RATES; DETERMINATION OF FAIRNESS BY COMMISSION; SUSPENSION (COMMON CARRIERS)

5. Burden of proof.-

Justification for reductions: Although the commission generally recognizes the jointness of line-haul expense in round trip movements, and requires compensativeness of a particular rate to be shown by considering the reverse movement, its position with respect to the treatment of costs is not absolutely inflexible, in disregard of the specific factual situation. Therefore, since repondent would continue to suffer a traffic imbalance if the rate considered in the instant proceeding were disapproved, the traffic sought would continue to move in private carriage, and the rate would not adversely affect any regulated carrier and would improve respondent's relative revenue position, the rate was approved for respondent.--Aluminum Extrusions from Miami to Chicago, 325 I.C.C. 188 (191-192).

6. Issues in the investigation.--Approval of new rate of

for aluminum extrusions granted to respondent, in order to divert traffic from private carriage. The evidence was found to be convincing that the new rate would improve respondent's relative revenue position.--Aluminum Extrusions from Miami to Chicago, 325 I.C.C. 188 (189,191).

$217(a). TARIFFS OF COMMON CARRIERS BY MOTOR VEHICLE; FILING, POSTING, PUBLICATION

1. Construction and interpretation. --Section 217 of the act provides that tariffs must be filed with the commission and makes unlawful the transportation of property unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this part. A carrier may not lawfully perform transportation under a grant of temporary authority unless and until compliance has been made with the rate and other requirements of $217 of the act in the case of common carriers. The fact that applicant never had rates in effect governing the transportation of its commodities under its temporary authority indicates that applicant was conducting operations, in interstate commerce, without appropriate authority.--Ewen Brothers, Inc., Com. Car. Applic., 108 M.C.C. 878(880,886).

3. Purpose.--That part of §217(a) reading "between points on its own route and points on the route of any other such carrier, or on the route of any common carrier by railroad when a through route and joint rate shall have been established" was not intended to be, and is not, a limitation upon the general permission which $216(c) grants to motor common carriers to establish through routes and joint rates with rail carriers. Instead, such language is a necessary adjunct to the statutory requirement that motor common carriers shall file tariffs showing their rates and charges between points on their own routes, and but for the inclusion of that language in the statute, tariffs providing for joint rates and through routes would not be required to be filed. And because it is not lawful for a motor common carrier individually to publish rates to or from points it is not authorized to serve, tariffs containing such rates must be predicated upon previously established through routes and joint rates.--Substituted Service--Piggyback, 322 I.C.C. 301 (344)*.

$305(a). REASONABLE RATES, FARES, CHARGES; CLASSIFICATIONS, REGULATIONS, PRACTICES

1. Charges required to be just and reasonable.--Respondent's reduced rate for deferred service found just and reasonable, as well as compensatory.--Safety Matches from Atlantic Ports to Pacific Ports, 325 I.C.C. 212 (219)*.

Rates by Commodities

125. Commodities; characteristics; rates.

Piling casings: Proposed rate on piling casings for deferred service, whereby shippers request transportation when the carrier would have otherwise unutilized capacity available, approved at $28.00 per ton.--Safety Matches from Atlantic Ports to Pacific Ports, 325 I.C.C. 212 (219)*.

Safety matches: Proposed rate on safety matches deferred service, whereby shippers request transportation when the carrier would have otherwise unutilized capacity available, approved at $36.89 per ton.--Safety Matches from Atlantic Ports to Pacific Ports, 325 I.C.C. 212 (219)*.

550. Duty to provide transportation.--Under "deferred service" whereby shippers request transportation when the carrier would have otherwise unutilized capacity, and under which they would pay a special rate, the carrier nonetheless has an obligation which cannot be avoided and does not have the option to refuse to accept merchandise. Deferred service, therefore is not in violation of $305(a.).--Safety Matches from Atlantic Ports to Pacific Ports, 325 I.C.C. 212 (215)*.

$305(c). UNDUE PREFERENCES OR PREJUDICES PROHIBITED

15. Differences in and comparisons of rates.--Respondent's proposal to offer a special rate for "deferred service", whereby shippers request

transportation when the carrier would have otherwise unutilized capacity available, is not unjustly discriminatory, since all shippers alike could avail themselves of the proposed rate; approved.-Safety Matches from Atlantic Ports to Pacific Ports, 325 I.C.C. 212 (215)*.

Proposed rates for deferred service were not predicated on the "added-traffic" theory, which assumes that equipment would move empty or partially empty and that the running costs should be omitted except for the minor incremental costs incurred over and above that of running loaded rather than empty. The full amount of vessel steaming costs, based on an average cost per weight-ton, was used by respondent in computing the costs of moving the traffic on its deferred service basis.--Id., p. 218*.

n. 1.

SUPPLEMENTAL ACTS

ADMINISTRATIVE PROCEDURE ACT

5 USC

Judicial: See Navajo Freight Lines, Inc. v. United States, §210a,

Procedure: Interstate Commerce Commission proceedings, prescribing car service rules after notice of proposed rulemaking was published and interested parties had submitted verified statements and legal arguments, satisfied procedure requirements of the Administrative Procedure Act. Appellees claim the commission failed to comply with §§ 556 and 557 of the act but, under $553, those sections govern rulemaking procedure only when rules are required by statute to be made on the record after agency hearing. Proceedings under review were an exercise of legislative rulemaking power rather than adjudicatory hearings and, since the Esch Act which gives the commission authority to establish reasonable car service rules does not require that such rules "be made on the record," §§ 556 and 557 were inapplicable. Therefore, procedure in the instant case was governed by §553 of APA; and since the findings and conclusiohs in the commission's report fully comply with requirements of that section, nothing more was required by the statute.-United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (746-7, 755-8)*.

Record: Examiner's statement during course of hearing and before protestants offered evidence, to effect that application appeared appropriate to grant without conditions based on evidence thus far adduced, were it not for the qualifying words, would indicate bias and prejudice requiring a rehearing. However, after a complete review of the entire record, commission concluded that all parties received a fair hearing.--Howard's Exp., Inc.Purchase--Exchange Trucking Corp., 97 M.C.C. 341(342).

ANTITRUST ACTS

15 USC SHERMAN ACT

§1. TRUSTS, ETC., IN RESTRAINT OF TRADE ILLEGAL; EXCEPTION: PENALTY

11. Purpose; interpretation generally.-As a part of the right to petition protected by the First Amendment, any carrier has the right of access to administrative agencies and courts to defeat a competitor's application for motor carrier operating authority, and its purpose to eliminate applicant as a competitor may be implicit in such opposition; however, its First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates the antitrust laws. Complaint alleges that petitioners combined to harass and deter respondents from having "free and unlimited" access to agencies and the courts, and to defeat that right by massive, concerted, and purposeful activities of the group; if those alleged facts are proved, a violation of the antitrust laws has been established; and if the end result is unlawful, it matters not that the means used in violation may be lawful. Case remanded for trial.--California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (511-16)*.

RULES OF PRACTICE

Rule 42. Petitions for suspension of tariffs or schedules:-(b)When filed. Protests against, and requests for suspension of, tariffs or schedules filed under the act will not be considered unless made in writing and filed with the Commission at Washington, D.C. Such protests and requests for suspension shall reach the Commission at least 12 days (except as provided in paragraph (c) of this rule) before the effective dates of the tariffs, schedules, or parts thereof to which they refer, unless the protested publications were filed on less than 30-days notice under the authority of this Commission, in which event the protests should be filed not less than 5 days before such effective dates. In an emergency, telegraphic protests will be acceptable if received within the time limits herein specified, provided they also fully comply with paragraph (a) of this section and copies thereof are immediately telegraphed by protestants to the respondent carriers or their publishing agents. Six copies of such telegrams should immediately be mailed by the protestants to the Commission at Washington.

(၁)

Motor carrier revenue proceedings. When motor common carrier tariff bureaus file schedules of proposed general increases in rates and charges, or of a proposed rate restrucuring, which proposals are subject to the special procedures prescribed in Ex Parte No. MC-82, New Procedures in Motor Carrier Rev. Proc., 339 I.C.C. 324, and set forth in 49 CFR 1104, protests thereto shall reach the Commission at least 20 days before the published effective dates of those schedules. To assure consideration, replies to protests should reach the Commission not later than the seventh workday prior to the effective date of the protested schedules.

(d)Copies; service. Designation of paragraph (c) changed to (d).