that Jones would only be providing a service for which a detention charge could be assessed if it had some ownership interest in the trailers. While the master interchange agreement was in effect, Jones had an ownership interest because it paid the C & O a per diem charge for the use of the trailers. However, since the C & O form does not provide for any such payment by Jones for trailer use, Jones is said to have no ownership interest. Thermofil, therefore, argues that Jones' tariff is inapplicable by its own terms. Thermofil further argues that item 570A of the rail tariff does not permit assessment of a motor carrier detention charge where no interchange agreement exists. It notes that the master interchange agreement incorporated the C & O form by reference and added provisions concerning insurance coverage, per diem charges to be paid the C & O by Jones, control of equipment, liability for loss or damage, indemnification of the railroad from damages caused by motor carrier use, responsibility for repairs and ordinary maintenance, and replacement of equipment in event of destruction, loss, or theft. By contrast, the C & O form merely acknowledged receipt of the trailers by Jones in good condition, agreed to return the equipment in the same condition as provided, provided for indemnification of the railroad from damages caused by motor carrier use, and provided that Jones agreed not to use the trailers for purposes other than rail TOFC service. Thermofil, therefore, asserts that the C & O form cannot in any way be construed as an interchange agreement. Finally, Thermofil argues that the imposition of a double charge would constitute an unreasonable practice under these circumstances. One purpose of a detention charge is to compensate a carrier for the use of its equipment. Here, Jones has no ownership interest and does not derive any direct benefit from prompt return of the trailers. Jones' argument regarding its operating balance between terminals is deemed irrelevant because the C & O form provides that Jones could not use those trailers for its own purposes. Thermofil argues that deterrent effect alone does not make a detention charge reasonable, that the railroad detention charges meet all the purposes of detention charges, and that, unlike the cases cited by Jones, the double detention charges here constitute an unreasonable practice per se by Jones. In its reply, the C & O stresses the significance of an interchange agreement, particularly noting that unlike the receipts signed by Jones, an interchange agreement provides compensation to the owner or lessee of the trailer and usually provides that the parties will obtain liability insurance for injury to persons and damage to property. DISCUSSION AND CONCLUSIONS The fundamental question posed by this proceeding is whether, under these circumstances, imposition of a detention charge by a motor carrier which has no ownership interest or control over the use of the issue trailers constitutes an unreasonable practice on the part of the motor carrier. We conclude that it does. Contrary to Jones' contentions, the absence of an interchange agreement between the two carriers is crucial. In the absence of such an agreement, Jones' use of the railroad-owned or leased trailers was limited (by terms the individual C & O forms signed by Jones when the trailers were picked up at the C & O's Detroit ramp) to use in the C & O's TOFC service. Jones paid no per diem charges for use of the trailers and could not utilize the railroad-owned trailers in its own service. Jones, therefore, had no ownership rights in the trailers which would justify assessment of its own detention charges in addition to the rail detention charges. Jones' reliance on Car Demurrage Rules, Nationwide, 350 I.C.C. 777 and Allied Chemical Corporation v. Burlington Northern Inc., 353 I.C.C. 499, for the proposition that ownership of the cars is irrelevant to the reasonableness of assessing detention is misplaced. Unlike those proceedings, the issue of assessing detention on privately owned cars is not present here. In those cases, the private car owners clearly had an ownership interest as did the railroads which paid them mileage allowances for use of their cars. The issue here is whether a motor carrier which has no ownership interest can assess detention contemporaneously with, and in addition to, rail detention charges. Jones' contention that the individual trailer-by-trailer receipt forms which it signed constitute interchange agreements is without merit. The C & O form is essentially a receipt and clearly is not an interchange agreement. Although trailer-by-trailer interchange agreements can be used in place of a master interchange agreement covering all tendered trailers, the instant receipt forms do not provide Jones with any ownership interest sufficient to permit the imposition of motor carrier detention charges. While not controlling in this proceeding, it should be noted that the result reached here is in accord with the uniform rules on motor carrier detention promulgated in Detention of Motor Vehicles Nationwide, 124 M.C.C. 680 (1976), 126 M.C.C. 803 (1977). The rules as originally adopted excluded all motor carrier TOFC service from the motor carrier detention rules. By decision and order dated September 15, 1977, the rules were modified to exclude assessment of motor carrier detention in TOFC service only when railroadowned or leased equipment is involved. We find, and so advise the court, that application of the detention provisions of Jones' motor carrier tariff constitutes an unreasonable practice and is therefore unlawful and in violation of section 216(b) of the Interstate Commerce Act. We affirm the finding of the Administrative Law Judge that the C & O is entitled to assess any and all detention charges which may have been applicable under its tariff. We further find that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. COMMISSIONER MACFARLAND did not participate. It is ordered, That this proceeding be discontinued. This proceeding has been stayed by the United States Circuit Court of Appeals for the Third Circuit on September 3, 1977 pending completion of judicial review in docket Nos. 77-1977, 2093, and 2095. 355 I.C.C. INVESTIGATION AND SUSPENSION DOCKET NO. 9112 SWITCHING CHARGES AT PORT OF BUTTE, MONT., Decided March 25, 1977 Upon consideration, proposed elimination of reciprocal switching charges at Butte, Mont., on competitive domestic shipments from various origins not found to be just and reasonable or consistent with the public interest. Schedules ordered canceled and proceeding discontinued. Rodger K. Johnson for respondent. Robert B. Batchelder, John W. Hackman, and Peter M. Lee for protestants. REPORT AND ORDER OF THE COMMISSION ON DIVISION 2, ACTING AS AN Appellate DIVISION, COMMISSIONERS BY APPELLAte Division 2: The modified procedure was followed. Respondent filed a petition for reconsideration of the report and order of Review Board Number 4 and protestant railroads replied. The 7-month suspension period during which a final decision must be rendered, according to section 15(8) of the Interstate Commerce Act as amended by the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), had expired at the time the petition was filed. However, by an order concurrently entered this date, we have reopened this proceeding on our own initiative to correct material error in the review board's decision'. By schedules filed to become effective April 27, 1976, the respondent, the Chicago, Milwaukee, St. Paul and Pacific Railroad (Milwaukee), proposed that it be allowed to restrict a reciprocal switching charge at Butte, Mont., to noncompetitive domestic, 'This action, which appears warranted in several cases occurring during the transition to 4R Act procedures, is not to be construed as precedent. In the future, it is anticipated that material error, if any, will ordinarily be discovered within the new statutory time frames. import and export traffic only. Protests were filed by Burlington Northern, Inc. (BN) and the Union Pacific Railroad Co. (UP), the Port of Butte, the Governor of Montana, Pacific Forest Products, Inc., and Timberland Products, Inc. The Montana Consumer Counsel also filed a protest but later withdrew as a party. The basic facts are not in dispute and are adequately stated in the review board's report and order. Consequently, they are adopted as our own, and will not be discussed further except as is necessary to properly explain the action taken. Milwaukee has been providing reciprocal switching service between its connections with BN and UP in Butte, Mont., and the Port of Butte facility, 5.5 miles distant, since 1973. The switching service has been available for competitive and noncompetitive domestic as well as import and export traffic. By the terms of Milwaukee's proposal, competitive domestic traffic, which Milwaukee defines as that traffic in which it is able to compete in whole or in part, will no longer have the benefit of the reciprocal switching charge, but will instead be charged the local line-haul rate for the 5.5 mile movement. The review board found that the elimination of a reciprocal switching charge was equivalent, in its effect on the public, to the cancellation of a joint-through rate, citing Reciprocal Switching in Richmond, Va., 306 I.C.C. 97 (1959), 304 I.C.C. 255 (1958) (the Richmond case). The review board decided that respondent had not produced cost evidence or rate comparisons to support its contention that the proposal was just and reasonable under section 15(8) of the act, and had not shown sufficient probative evidence, beyond some general assertions that Milwaukee's line haul is 1 day faster than those of its competitors, to sustain its burden of proof under section 15(3) of the act. The board held at Milwaukee, therefore, failed to meet either burden of proof, ordered the proposal canceled, and the proceeding discontinued. Milwaukee asserts that the review board erred in concluding that the proposal was not shown consistent with the public interest. As factual support, Milwaukee points out that the protestant shippers did not submit evidence in support of the proposal, there was uncontested evidence that Milwaukee's service is 1 day faster than BN's or UP's, and there is only a small amount of traffic involved, so that the impact on competing carriers would minimal. In reply, protestant railroads argue that there is a significant amount of traffic involved; that shippers, in spite of Milwaukee's |