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by the B&O along with their intention'to participate. In response to the notice concerning the L&N's petition, numerous parties submitted statements. Several statements suggest that the relief sought as to the railroad-owned cars be considered separately from the relief sought as to privately owned cars. However, except for the Commission's Bureau of Enforcement (the Bureau), no one opposes the relief sought by either petitioner. In general, the statements in support of petitioners stress the need to preserve the efficiency of unit-train operations by ensuring that the privately owned and railroad-owned cars moving in such operations continue to do so. In its statement, the Bureau opposes the relief sought as to both railroad-owned and privately owned cars, on the grounds that arguments as to the need to preserve unit-train movements were fully considered and rejected in the Assigned Cars case, and that the relief sought, if granted, would violate the order in the Assigned Cars case and section 3(1) of the Interstate Commerce Act.

By complaint in No. 35188, filed November 17, 1969, the complainants, Harlan County Coal Operators Association and Hazard Coal Operators Association, unincorporated associations of coal mining companies, allege that the defendant L&N from March 1969 to date, has failed to count cars moving in unit trains in the pool of cars available for pro rata distribution during car shortages, in violation of section 1(12) of the act. Complainants request the Commission to order the defendant to cease and desist from such alleged violation. Defendant argues that the act should not be construed to require the pro rata distribution of coal cars moving in unit-train service. The Bureau supports complainants' position, contending the defendant's method of allocating coal cars to various mines violates sections 1(9), 1(11), 1(12), and 3(1) of the act, and the order in the Assigned Cars case. Exceptions to the report and recommended order of the Administrative Law Judge in this proceeding were filed by defendant. Complainants responded to defendant's exceptions and filed one exception of their own, to which defendant replied. The Bureau also responded to defendant's exceptions. Except as indicated herein, our conclusions are the same as those recommended. Exceptions and requested findings not discussed or referred to in this report nor reflected in our findings or conclusions herein have been considered and found not justified.

While these proceedings were considered on separate records, they concern the same or related issues of law and will be disposed

A list of those submitting statements is attached as an appendix hereto.

of in this report on a consolidated basis. Certain procedural matters must be disposed of first.

In docket No. 12530, the Bureau sought leave to file an accompanying reply to the L&N's petition filed June 14, 1971, which leave was granted on October 8, 1971. The Bureau in its reply argues that action on the L&N's petition should be deferred until docket No. 35188 is decided, but as previously stated, these proceedings involve similar issues of the law, and should be disposed of simultaneously.

The L&N filed motions to reject or strike the Bureau's statement of position filed in response to the Commission's notice. The motion to reject is based on the contention that the Bureau's statement was not timely filed. The L&N urges that it did not receive the statement until December 8, 1971, while the due date for filing was November 29, 1971. However, the statement was filed with the Commission on the due date and the certificate of service indicates that copies were mailed to the parties on the same date in accordance with the Commission's General Rules of Practice. Furthermore, no one contends that it has been prejudiced by the late receipt. The motion to reject, therefore, is denied. The motion to strike is based on the contention that the Bureau was not specifically authorized by the Commission to participate in the proceeding. However, the Commission's order (dated October 8, 1971, and served October 21, 1971) granting the Bureau's petition for leave to file a reply to the L&N's petition constituted authority for the Bureau's participation. Accordingly, the motion to strike is also denied.

In its statement of exception in docket No. 35188, defendant objects to the Administrative Law Judge's failure to confine his consideration to the alleged violation of section 1(12) and his consideration of evidence directed to violations of sections 1(11) and 3(1), as well as 1(12). For the reason hereinafter stated, section 1(11) need not be discussed. The facts upon which the complainant relied in this case in support of its allegation under section 1(12) are substantially the same as would be used to support a section 3(1) allegation. Consistent with rule 28 of our General Rules of Practice, the defendant was properly apprised of the issues. See also Chicago, R. I. & P. Ry. v. U. S., 274 U.S. 29, 36. In view of the foregoing, the action of the Administrative Law Judge is sustained. In addition, of course, we have the authority to determine whether established facts result in a violation of any outstanding order. The order in the Assigned Cars case is relevant here and it was predicated upon section 3(1).

We now turn to the merits of these proceedings.

DOCKET No. 12530

To illustrate the relief sought by the petitioners, the following example may be helpful. Assume there are two bituminous coal mines, one of which ships in unit-train service (hereinafter referred to as the “unit-train mine”) while the other does not, and that each mine has a daily requirement of 100 cars. The nonunit-train mine must rely entirely on the railroad for its daily car requirements, and the unit-train mine, owning 25 of its own cars, and having 25 railroad-owned cars assigned to its unit-train movements, relies on the carrier for the remaining 50 cars. During a period of car shortage there are only 100 railroad-owned cars available for distribution to both mines, disregarding the 25 railroad-owned cars assigned to the unit-train mine. As required in the Assigned Cars case, the cars would be distributed as follows: The privately owned and railroad-owned cars assigned to the unit-train mine would be included in the pool of available cars or 150 cars (the 100 railroadowned cars, the 25 privately owned cars, and the 25 railroad-owned cars assigned to the unit-train mine), and would be counted in satisfaction of the unit-train mine's pro rata share. Each mine thus would get a pro rata share of 75 cars, one-half of the pool of 150 cars. 4

If the relief sought by the L&N were granted, the unit-train mine would have the use of not only the 50 cars (the 25 privately owned and the 25 assigned railroad-owned cars, none of which would be counted as a part of the pool available) used in the unit-train movement, but also 50 of the 100 otherwise available railroadowned cars, or a total of 100 cars. The nonunit-train mine would have the use of the other 50 unassigned railroad-owned cars. Thus, under L&N's proposal, each mine would get its pro rata (proportional) share of 50 percent of the "available" cars, but none of the cars used in the unit-train movement, regardless of ownership, would be included in the pool of available cars or be counted in satisfaction of the unit-train mine's pro rata share of the available cars. In other words, the L&N seeks pro rata distribution of the "available" coal cars, but neither the privately owned nor the railroad-owned -cars assigned to the unit-train service are to be counted and charged against the unit-train mine.

*Furthermore, under the 1923 order, if a mine has more private cars available than its pro rata share, the carrier can only transport the number of cars representing the pro rata share, and the mine must put the remainder to another use. This latter feature of the order the Assigned Cars case represented a change from the policy established in two earlier proceedings, Railroad Comm. of Ohio v. Hocking Valley Ry. R. Co., 12 I.C.C. 398, and Traer v. Chicago & Alton R. Co., et al., 13 I.C.C. 451 (Hocking Valley-Traer). We assume that petitioners are seeking a complete exemption for privately owned cars, rather than merely a return to the principle of Hocking Valley-Traer.

On the other hand, the B&O would exclude from the pool of cars available only the 25 privately owned cars which were a part of the unit-train movement. ,

Thus, the pool of cars available for distribution in the above example, under the B&O's proposal, would consist of all railroad-owned cars, or 125 instead of 100, and the unit-train mine would get its own 25 cars plus one-half (its pro rata share) of the pool of available cars (125), or a total of approximately 87 cars, and the nonunit-train mine would have the use of the remainder, approximately 62 cars.

We must first decide whether the relief sought with respect to privately owned or railroad-owned cars can be granted without modification of the outstanding order in the Assigned Cars case. Some parties urge that the order entered in the Assigned Cars case does not preclude the relief sought. That order provides, in effect, that “the total number of available cars," meaning all cars, privately owned and railroad-owned, must be included in the total number of cars available for distribution and in satisfaction of a shipper's pro rata share of the total. The terms of the order also require "pro rata" distribution and the counting of “all cars," regardless of ownership, in satisfaction of the pro rata share. Thus, the relief sought could be granted only by a modification of the order in the Assigned Cars case.

The petitioners take the position that the Commission's approval in other proceedings of assignment of equipment to unit-train operations for the transportation not only of coal but of other commodities, in effect, has modified the order in the Assigned Cars case, and that, therefore, no further modification is necessary to grant the relief sought with respect both to privately owned and railroad-owned cars. With an exception hereinafter discussed, those proceedings merely approved the general concept of assigning equipment to unit trains, and the impact of such assignment upon the number of cars available for distribution during periods of car shortage was not considered. Therefore, those cases do not represent modification of the order entered in the Assigned Cars

case.

See, for example, Natural Gas Pipeline Co. of America y, N. Y. C. R. Co., 323 I.C.C. 75.

cars

We now come to the alternative requests for modification of the order. Disregarding, for the moment, the question of whether such a modification would be consistent with the provisions of section 1(12), we first will determine whether exemption of privately owned in unit trains moving

coal from mines, in present circumstances, from inclusion in the total pool of cars available for distribution would result in undue prejudice and preference under section 3(1) of the act, and would be unjust and unreasonable under section 1.

Regarding section 3(1), a related issue was considered in the recent report in Distribution of Privately owned Freight Cars, 346 I.C.C. 278. In that proceeding, we noted that the decisions in the Assigned Cars case and the Hocking Valley-Traer cases held that the failure to include privately owned or railroad-owned cars as part of the pool of cars available for distribution to coal mines violated section 3(1) of the act. In the report in docket No. 35440, the following remarks were made:

Thus, the decision in the Hocking Valley-Traer, and Assigned Cars cases are based upon the following three circumstances which existed when they were decided:

(a) The widespread consumption of coal by rail carriers for motive power, and railroad ownership of various types of interests in coal mines.

(b) A conclusion that competitive equality (proportionality) in the distribution of an existing pool of cars (including private cars) to coal mines was more important than encouraging additions to the existing pool of cars. The Commission strengthened this conclusion by minimizing the importance of the private fleet of coal cars and assuming that the need for private cars would decline along with post-war difficulties.

(c) A scarcity of motive power or other basic facilities which only the carrier could provide.

We then evaluated these three circumstances to determine whether they apply today in industries other than coal mining, and concluded that they did not. We thereupon found, that, in the existing situation, section 3(1) did not require the counting of privately owned cars against such shippers in the allocation of railroad-owned equipment during times of car shortage. We believe that the same conclusions are warranted here with respect to coal mining for the reasons hereinafter discussed.

With respect to the first circumstance referred to above, the movement of coal for railroad consumption produced by mines in which railroads have an interest is no longer significant. Regardless of the present extent of railroad interests in coal mines, the main incentive for the acquisition of such interests and the discriminatory practices arising out of them are absent today since railroads no longer consume coal as a fuel for motive power.

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