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provisions under which recognition can be accorded to efficient types of movement, like unit trains, even though the economies of volume movement were not unknown when section 1(12) was enacted. In accordance with the well-known rule of statutory construction that specific language take precedence over general language, the specific requirement that mines be rated and every car be counted governs over the general language imposing a duty “to make just and reasonable distribution of cars.” Consequently, it is clear that section 1(12) does not permit the relief sought by the petitioners, namely, exclusion of privately owned cars moving in unit trains from coal mines from being counted as a part of the total pool of cars available for distribution during periods of car shortage.

Nevertheless, even if every car must be counted, it is argued that relief may be granted by departing from the strict pro rata distribution required by the Assigned Cars case. In support of the relief sought, the argument made on the record in docket No. 35188 is pertinent here. Reliance is placed on language in the Supreme Court's decision in the Assigned Car Cases, 274 U.S. 564, approving the Commission's contention in the Assigned Cars case that section 1(12) does not provide a complete rule of car distribution but leaves to the Commission discretion in determining how cars shall be distributed. The Supreme Court stated at page 577 as follows:

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The Commission contends that paragraph (12) does not prescribe a complete rule

and that it leaves to the Commission administrative discretion to determine how the cars shall be distributed. The Commission's contention is, in our opinion, the sound one.

In our view, the parties' reliance upon this language is ill founded. The court was dealing with the lawfulness of a particular car distribution rule, and the discretion imputed to us was in reference to that rule and not to the myriad rules which the Commission might prescribe in the future. Moreoever, it is argued that the legislative history of section 1(12) tends to support the proposition that departures from strict pro rata allocation of coal cars during car shortages may be permitted.* In our view, even if the Commission does have the discretion to depart from strict pro rata allocation, nevertheless that discretion is not sufficiently broad to encompass the relief sought by the petitioners with regard to privately owned cars. The departure from pro rata distribution

*For a discussion of such legislative history, see Assigned Car Cases, 274 U.S. 564, 577, and the Assigned Cars case, 80 I.C.C. at 531-533.

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contemplated by petitioners would have the same effect as an
exemption of a class of cars, to wit, privately owned cars moving in
unit trains from mines, from inclusion in the pool of available cars.
It would not merely somewhat rearrange the percentage distribution
of the available cars. Such a departure would render meaningless
the requirement of mine ratings and the counting of each car used
against a mine. Section 1(12) may not be construed to produce such
a result.

In summary, we conclude that, disregarding section 1(12),
granting the relief sought with respect to private cars, as described
herein, would be in the public interest and just and reasonable under
section 1. Furthermore, we conclude that granting the relief
pertaining to private cars would not be unduly preferential or
prejudicial under section 3(1) of the act, except possibly during
periods of chronic shortages of motive power or, other basic
facilities which shippers cannot provide for themselves. However,
regardless of the above conclusions concerning private cars, the
relief sought would be contrary to the provisions of section 1(12) of
the act.

Although we cannot grant the relief sought with respect to private cars, we believe, for reasons earlier stated, that such relief would be in the public interest, and we intend to recommend to the Congress that section 1(12) be amended to exclude privately owned cars used in unit-train coal operations.

Turning to the matter of railroad-owned cars embraced in the L&N's petition, a departure from the car allocation rules established in the Assigned Cars case would violate section 3(1). We are of the view that failure to count railroad-owned cars moving in unit trains of coal from mines would not result in increasing the total car fleet for general use, as we have concluded in the case of privately owned cars. Thus, with respect to railroad-owned cars we reaffirm the Commission's conclusion in the Assigned Cars

that competitive equality (proportionality) in the distribution of the pool of available cars is the principal consideration in determining the existence of undue prejudice and preference. Moreover, in the recent decision in Grain by Rent-A-Train, IFA Territory to Gulf Ports, 335 I.C.C. 111 (1969), modified, 339 I.C.C. 579 (1971), it was stated in the latter report, at pages 584-5, that the assignment of railroad-owned, but not privately owned, cars to the rent-a-train service was unduly preferential and prejudicial during periods of car shortages. We, therefore, conclude that the relief requested by the L&N relative to railroad-owned cars, if granted, would violate section 3(1).

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DOCKET No. 35188

Complainants allege that the defendant L&N since March 1969 has failed to make a just and reasonable distribution of railroadowned cars among the mines served by it, in violation of section 1(12). While complainants do not seek damages, they seek an order requiring the defendant to cease and desist from the alleged violation.

The complainants represent coal mines in the coal-rich eastern Kentucky area on the defendant's Cumberland Valley (CV) Division and the Cincinnati or Eastern Kentucky (EK) Division.

We find that the Administrative Law Judge's statement of the facts is correct in all material respects, and we adopt it as our own. Those facts will be repeated only to the extent necessary for a clear understanding of the issues.

The complaining mines, all but a few of the 66 producing mines on the EK Division and the 51 producing mines on the CV Division, are supplied from defendant's general fleet of hopper cars and their traffic moves in conventional service. To the remaining few mines, the defendants have assigned hopper cars for their exclusive use in unit-train service. During a severe car shortage in the latter part of 1969, mines on the EK and CV Divisions were supplied with only from 57 to 73 percent of their monthly car orders. During the same period, the mines using assigned equipment in unit-train service received considerably higher percentages, often 100 percent, of their monthly car orders. Shortly after the shortages began, defendant ceased establishing ratings for mines served by it in unittrain operations on its EK and CV Divisions, although it continued to provide cars in numbers sufficient to protect the unit-train movements. Defendant claims neither the provisions of the act nor the order in the Assigned Cars case embraces the furnishing of equipment for unit-train operations. The complaining mines contend that these practices violate the Commission's order in the Assigned Cars case and related provisions of the act requiring the rating of all mines and the pro rata distribution of coal cars based on

such ratings.

The Administrative Law Judge found that the defendant's car allocation practices with respect to unit-train movements of coal violated sections 1(11), 1(12), and 3(1) of the act, and the Commission's pro rata distribution order in the Assigned Cars case, and he ordered the defendant to cease and desist from further violations. Specifically, the defendant was ordered to assign just and reasonable ratings to all mines, as well as complainants' mines, and “to count each and every car furnished to or used by any such mine." He further found that “the defendant shall in the future publish in its monthly Coal Car Distribution bulletin the number of cars ordered and furnished for all mines on its EK and CV divisions." He further stated that there was no basis in the record for a finding that mines should be rated on the basis of uniform car-size units, for example, a given number of 50-ton cars, rather than the actual number of cars regardless of their capacity.

In its exceptions, defendant urges that (a) its coal car distribution policies violate neither the order in the Assigned Cars case nor any provisions of the act on the ground that today's unit-train operations result in more efficient use of equipment, and that such operations were not contemplated thereunder, and (b) it should not be required to publish the coal car distribution data in its monthly bulletin. Complainants in their exceptions urge that defendant should be required to publish coal car distribution data not only for its EK and CV Divisions, but also for other divisions which are not directly involved in this proceeding.

Although, as argued by complainants, defendant has not submitted comparisons of turnaround time of cars before and after the establishment of the unit-train service in 1963, the more efficient nature of unit-train movements of coal is clearly established. The efficiency of unit-train movements is not due solely to the recent introduction of the larger 100-ton cars, as argued by certain parties, but also to factors such as less switching, restricted loading and unloading time, less bookkeeping expense, and improvement of facilities accompanying the unit-train operations. Defendant urges that if railroad-owned cars are not permitted to be used exclusively in unit-train service and must be included in the pool of cars available for general distribution, its overall ability to transport coal would be adversely affected.

Complainants and the Bureau urge to the contrary. They maintain that unit-train shippers have access to a reserve of cars which is exclusively assigned to those services and that the relief sought would merely reduce the reserve of unused cars. In support of the argument, the Bureau shows (a) that one large unit-train shipper has sometimes obtained more assigned cars from the L&N than the carrier had estimated was necessary to meet the shipper's needs, and (b) that the actual average monthly car loadings tendered by that shipper to the defendant for the first 5 months of 1970 were fewer than the average monthly car loadings estimated by the carrier for

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that entire year. It is further argued that cars can be removed from unit trains without any effect on the efficiency or turnaround time of the cars remaining in the unit train.

There is no reason to accept the L&N's estimates of a shipper's car needs as being more reliable than that shipper's own estimates of its needs. Furthermore, car loadings for a 5-month period are not sufficiently representative to establish that a significant overassignment of cars exists throughout the year, or from year to year. Thus, the evidence submitted is not adequate to conclude that unit-train operations generally result in a shipper having a reserve of cars. As for the argument that cars can be removed from unit trains without any effect on the efficiency or turnaround time of the remaining cars, the evidence as to whether this would be true is conflicting and inconclusive. However, even if it were assumed that removing some assigned railroad-owned cars from unit-train service would not seriously disrupt the operation, the cars which would be removed during the shortage would be used significantly less efficiently in the overall movement of coal. Thus, the removal of railroad-owned cars from unit-train operations would only aggravate the overall shortage of cars, even though some shippers would have more cars available. Contrary to the contentions of the complainants and the Bureau, the use of railroad-owned cars in unit-train operations results in the more efficient use of equipment in transporting coal, and the removal of cars from coal unit trains would reduce the overall volume of coal moved.

With respect to the Administrative Law Judge's finding that the order in the Assigned Cars case was violated, aside from the argument concerning the age of the order, which is irrelevant, defendant argues that (a) the order does not cover railroad-owned cars, but only privately owned cars and railway fuel cars, and (b) since unit-train operations as they are today did not exist at the time of the order, it could not embrace such operations. Although only privately owned cars and railroad-owned fuel cars were specifically considered in that proceeding, the principles apply to all railroadowned cars. As previously stated, both the order and the findings upon which the order is based refer to “pro rata" distribution of "all cars” or the “total number of available cars,” and no exception is made for railroad-owned cars. The terms of the order are unequivocal and cover all cars regardless of the nature of the operations in which they are used. However, defendant asserts that the Commission has, in effect, modified the order by the approval of the unit-train concept in other proceedings. In the foregoing

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