adult diapers/disposable bedding pads manufactured by complainants are akin to the transportation of the commodities listed in section 2 of item 685 series, TL-CTB tariff 703-B, ICC No. C-366. The carriers, in their reply statement raise a "red herring" in alleging that the adult diapers/disposable bedding pads are not, in fact, paper. They argue that since the product is not paper, it cannot be classified as complainant contends but indeed belongs in item 88465 series of the E-2009-I tariff. They offer to modify that tariff which applies to mixed carloads only, to accommodate this product in straight carloads. We find this argument unpersuasive for several reasons. First, tariff 703-B applies to "PAPER AND RELATED ARTICLES." Thus, even if the adult diapers/bedding pads are not paper, they are related articles and therefore within the description. Second, the commodity "Diapers, Diaper Liners, other than single ply paper, non-woven fabric" as listed in item 88465 of tariff E-2009-I is a less specific description than the commodity listed in item 685 of tariff 703-B, the more specific item being applicable. Third, “Pads, bedding" in item 88465 of tariff E-2009-I appears to apply to the heavy quilted bedding pads that are commonly placed under sheets of a bed and not at all similar to the pads at issue. Fourth, the rates for the commodities listed for item 88465 of tariff E-2009-I are higher than those for item 685 of 703-B. Last, but of paramount importance, the product in question has the same or similar transportation characteristics as the commodities in section 2 of item 685, of tariff 703-B, and, therefore, it would be discriminatory and in violation of section 6(7) of the act to charge, demand, collect, or receive a greater or less or different compensation for transportation of the property in question. The just and reasonable rate for the commodities listed in section 2 of tariff 703-B is set at a certain level: that level is the just and reasonable level of rates for the adult diapers/disposable bedding pad manufactured and shipped by complainants. Any other rate or charge would be unjust and unreasonable and in violation of sections 1(5) and 1(6) of the act. FINDINGS We find that a just and reasonable rate for the adult diapers/disposable bedding pads manufactured by complainants is the rate for the commodities listed in section 2 of item 685 Trunk Line-Central Territory Railroads Tariff 703-B, I.C.C. C-366 "Diapers, sanitary, backed or not backed with plastic sheeting." ORDER It is ordered that the findings in the prior reports and orders are clarified as found above and that these proceedings are discontinued. APPENDIX List of defendants to docket No. 35274 1. Baltimore and Ohio Railroad Company 2. The Central Railroad Company of New Jersey, R. D. Timpany, Trustee 3. Erie Lackawanna Railway, Thomas F. Patton and Ralph S. Tyler, Jr., Trustees 4. Grand Trunk Western Railroad Company 5. Illinois Central Gulf Railroad Company 6. Louisville and Nashville Railroad Company 7. Penn Central Transportation Company, Robert W. Blanchette, Richard D. Bond and John H. McArthur, Trustees 8. Reading Company, Andrew L. Lewis, Jr., and Joseph L. Castle, Trustees 9. Richmond, Fredericksburg and Potomac Railroad Company 10. Seaboard Coast Line Railroad Company 11. Western Maryland Railway Company List of defendants to docket No. 36306 1. Reading Company, Joseph L. Castle and Andrew L. Lewis, Jr., Trustees 2. Baltimore & Ohio Railroad Company 3. Chicago, Milwaukee, St. Paul and Pacific Railroad Company 4. The Kansas City Southern Railway Company 5. Southern Pacific Transportation Company 6. Penn Central Transportation Company, Robert W. Blanchette, Richard D. Bond, and John H. McArthur, Trustees 7. Richmond, Fredericksburg, and Potomac Railroad Company 8. Seaboard Coast Line Railroad Company 9. Florida East Coast Railway Company 10. Western Maryland Railway Company 11. Norfolk and Western Railway Company 12. Chicago and Northwestern Transportation Company 13. Erie Lackawanna Railway Company, Thomas F. Patton, Ralph S. Tyler, Jr., Trustees 14. Illinois Central Gulf Railroad Company 15. Soo Line Railroad Company 16. Chicago, Rock Island and Pacific Railroad Company, William M. Gibbons, Trustee 17. The Central Railroad Company of New Jersey, Robert D. Timpany, Trustee 18. Delaware and Hudson Railway Company 19. Lehigh Valley Railroad Company, R. C. Haldeman, Trustee 20. Grand Trunk Western Railroad Company 21. Chesapeake and Ohio Railway Company 355 I.C.C. No. 36554 SANITARY PADS, OFFICIAL TERRITORY Decided September 23, 1977 Schedules publishing rates on disposable bedding pads found not shown to be just and reasonable and to be in violation of outstanding orders in docket Nos. 36274 and 36306. Proceeding-discontinued. John M. Baron for protestants. Joseph M. O'Malley for a respondent. REPORT AND ORDER OF THE COMMISSION DIVISION 2, Commissioners MURPHY, MACFARLAND, AND BY THE DIVISION: CLAPP This proceeding was instituted by order of the Commission, Suspension and Fourth Section Board dated April 6, 1977. It concerns the lawfulness of schedules adding to one of the lists of paper articles in connection with which commodity rates applicable, the description, "Pads, bedding, disposable, paper, cellulose or fabric ***." The schedules were published on behalf of respondent in order to comply with outstanding orders in docket No. 36274, Stirling Converting Company v. The Central Railroad Company of New Jersey, R. D. Timpany, trustee, et al. and docket No. 36306, Whitestone Products Company v. Reading Company, Joseph L. Castle and Andrew L. Lewis, Jr. trustees, et al. The protestants herein are complainants in the above proceedings and the respondent herein is successor to certain defendants in those proceedings. Administrative Law Judges in each of those cases found that class rates resulting from a rating provided in item 74475 of the Uniform Freight Classification (UFC)' were applicable to shipments of disposable bedding pads, but that the applicable rates were unjust 'Item 74475 contains the following commodity description: PADS: Bedding, disposable, paper, cellulose, or fabric, other than woven fabric, separate or combined, with or without plastic film backing, in boxes. and unreasonable. In each case the basis found to be just and reasonable was "the commodity rate (established) in TEA-ER Tariff 703-B, I.C.C. C-366 (Item 685)." No reference was made in either decision to the particular rate group or section of item 685 that provided the standard of reasonableness although that item provides various categories of rates. There was no indication that there might be different interpretations of the decisions until respondents set about to implement them by inserting the sought description (disposable bedding pads) in section 3 of item 685 which provides for rates on one other item, viz, "Sanitary Pads (sanitary diapers, napkins and tampons)." Whitestone and Stirling protested this method of implementing the orders, contending that the new description should have been added to section 2 of item 685 which provides for rates on several items, including "Diapers, sanitary, backed or not backed with plastic sheeting." 3 After the protest was filed the Commission, Division 2 by order dated April 6, 1977, reopened the proceedings in Docket No. 36274 and Docket No. 36306 in order to clarify the outstanding orders in those cases." Respondents contend that since the testimony and complaint in each of the proceedings refer to column D (section 3) rates, the Administrative Law Judges intended such rates to be the lawful rates. They also argue that since the record contains no reference to 'Item 685 does not publish actual rates, but lists commodity descriptions with rate group letters designated for each of the articles named. Two protests were filed. The earlier one resulted in an order in docket No. 36513 rejecting the protested schedule because of a technical deficiency; however, the deficiency was corrected and the tariff reschedule refiled with the description again inserted in section 3. 'Rates provided in section 2 are lower than those provided in section 3. For example, at distances of 250 short-line miles, rates at the Ex Parte No. 336 level are 108 cents (minimum weight 36.000 pounds) and 90 minimum weight 50,000 pounds) under section 2, and 182 cents (minimum weight 24,000 pounds) and 157 cents minimum weight 36,000 pounds) under section 3. "The following information was requested in the reopening order: (1) What it the exact nature, description, and composition of: (a) the commodity as shipped; (b) the commodity as listed in UFC item 77475 at time of its publication; (c) the commodity, "Diapers, sanitary, backed or not backed with plastic sheeting," as listed in section 2 of item 685 series, TL-CTB tariff 703-B, ICC No. C-366; (d) the commodity. "Sanitary Pads (sanitary diapers or napkins)" listed in section 3 of item 685 series, TL-CTB tariff 703-B, ICC No. C-366? (2) Which descriptions embrace "pad" type diapers with absorbent fillers? (3) What, if any, are the distinctions between the items covered by the above named tariffs? (4) What are the rates per cubic foot and value per pound as packed for shipment of the involved bedding pads and the various types of sanitary diapers as listed in the tariffs? |