In the Conrail case we outlined a balancing test to identify service requests which a carrier would be obligated by law to respond to. Applying the test to the facts of this case, we find the following: Columbia shippers claim prospective need for the service but have demonstrated little past or present reliance upon it. The cost, convenience and proximity of alternative service weigh heavily against the protestants. On the carrier's side, the financial burden but not the operational burden of continuing the service is convincingly established on the record. If the service were at least meeting variable costs we would insist on some showing of the operational burden facing N&W. However, in this instance no such inquiry appears to be necessary. In the past N&W has held out to Columbia shippers' both TOFC and boxcar service. Cancellation of TOFC service at Columbia and continuation of comparable service at Jefferson City and Moberly seems consistent with N&W's prior holding out to perform these services. Finally, we believe that an order to continue service would be an undue and stifling interference with N&W's reasonable efforts to conduct an economically viable operation. If we prevent N&W from withdrawing from the Columbia market under the facts before us, we would exert a chilling effect on future decisions to enter into selected markets on an experimental basis. Absent a clear violation of the act we will not interfere with legitimate carrier efforts to determine appropriate markets for TOFC service. Of course, as demonstrated in the Conrail case, reasonable demands for service must be honored. Carriers will be held to their section 1(4) duties where the balancing test indicates a continuing need for service. FINDINGS AND ORDER We find that the cancellation of TOFC plan II 1/2 service at Columbia, Mo., has been shown to be just, reasonable, and otherwise lawful. 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 HARDIN, dissenting: I disagree with the findings of the majority that the proposed cancellation has been shown to be just, reasonable, and otherwise lawful. I would find the proposal not shown to be lawful in view of the minimal cost evidence, replete with deficiencies, that was submitted by respondent in support of the cancellation. It is ordered, That the proceedings be, and they are hereby, discontinued. 355 I.C.C. INVESTIGATION AND SUSPENSION DOCKET No. 9126 MINIMUM WEIGHT ON FREIGHT IN EXCESS OF FULL CARLOADS Decided January 28, 1977 Proposed change in rule 24 of the rail uniform freight classification to increase minimum weights on overflow portions of shipments in excess of carload found not shown to constitute a reasonable carrier practice under section 1(6) of the act. Proposed schedules ordered canceled, and proceeding discontinued. James E. Sykes and Stuart E. Vaugh for respondents. Joseph Dauksys, John J. C. Martin, Warren Price, Jr., L. D. Mangan, and Raynard F. Bohman, Jr., for protestants. REPORT AND ORDER OF THE COMMISSION BY THE COMMISSION: The modified procedure was followed. Due and timely execution of our functions under section 15(8) of the Interstate Commerce Act imperatively and unavoidably requires the omission of a recommended decision in this proceeding. Requested findings not specifically discussed in this report nor reflected in our findings or conclusions have been considered and found not justified. By schedules filed to become effective June 30, 1976, The Uniform Classification Committe (UCC), Agent, on behalf of the Nation's rail carriers (respondents) published in section 2 of rule 24 of their freight classification' provisions designed to increase the minimum weights on overflow shipments for application between all points in the United States. Upon protests by the Rubber Manufacturer's Association (RMA), the Gift Wrappings & Tyings Association (Gift), Northwestern Steel and Wire Company (Northwestern), Toy Manufacturers of America, Inc. (Toy), and the Southern Hardwood Traffic Association (Association), collectively Uniform Classification Committee, Agent, Uniform Freight Classification 12, I.C.C. No. 8, Supplement 10. referred to as protestants, the proposed schedules were suspended to and including January 29, 1977. The modified procedure order entered in this proceeding on June 29, 1976 and served July 8, 1976, directed that "the filing and service of pleadings be as follows: (a) opening statement of facts and argument by respondent(s) and any parties supporting respondent(s) on or before 20 days from the service date of this order; (b) 30 days after that date, statement of facts and argument by protestant(s) and any supporting parties; and (c) reply by respondent(s) and any supporting parties 20 days thereafter." On July 15, 1976, respondents requested a 30-day extension in which to file their statement as "a significant error in the calculation of a cost study that had been prepared for submission in this proceeding was discerned in the course of a review of that study *** that revising the study to eliminate the error will entail substantial time and effort." On July 21, 1976, the requested extension was granted conditioned upon the stipulation of respondents "that they will voluntarily extend the period of suspension, if necessary, by a period equivalent to the extension granted them for filing pleadings in this proceeding." Accordingly, the suspended matter at issue in this proceeding is scheduled to become effective March 1, 1977. The primary issue is whether the proposal is just and reasonable and whether it constitutes a reasonable carrier practice under section 1(6) of the act. Since the proposal involves a change in the presently applicable rules, the burden of proof is on the respondents. Evidence in support of the proposal was submitted by the UCC on behalf of respondent rail carriers, in opposition thereto by protestants, except protestant Association, and in reply by respondents. The Association did not participate in this proceeding after the entry of the suspension order. MOTION TO STRIKE Protestant Gift moves to strike certain statements contained in respondents' pleadings on the grounds that the statements are not supported by request for official notice or verified statement, and that the information presented therein is immaterial. Gift also moves to strike testimony by respondents' supporting witness. regarding the representativeness of the cost study he prepared on the grounds that the witness is not qualified as an expert. The statements protested by Gift are in the nature of argument and will be treated as such. Gift's objection to the witness' statement on the representativeness of the cost study offered in evidence concerns the weight to be given the evidence and not its admissibility. Therefore, we deny Gift's motion to strike. FACTS Rule 24 pertains to the determination of charges on most kinds of freight when tendered as a single shipment of at least 30,000 pounds which cannot be loaded in or on a single railcar. The lead car or cars must be loaded as fully as loading conditions will permit, and under the present rule 24 the overflow freight is subject to various minimum weights depending on the type of car required. The present minimum weights for overflow shipments are 4,000 pounds at class 100 rate for an open car, 10,000 pounds for a closed car, and 15,000 pounds for a specially prepared car. The proposal would raise each of the minimum weights to 20,000 pounds regardless of the type of car used, but would not apply to shipments that come within rule 60 or section 5 of rule 24.2 The stated purpose of the proposed change is to ameliorate the financial strain imposed on the railroads by the minimum weights in the present rule 24. In support of their proposal, respondents submitted a cost study prepared by the Western Railroad Association (WRA) at the request of the UCC. WRA's cost study includes a study of traffic moving under rule 24. The stated purpose of the study was to compare the rates on this traffic with the variable costs, separately, for the lead and trailer cars. The study is limited to issue traffic shipments where the trailer car lading did not exceed the proposed rule 24 minimum weight of 20,000 pounds. WRA chose for a study period the month of August 1975. Carriers represented in the study include 4 railroads in the eastern territory, 4 railroads in the southern territory, and 10 railroads in the western territory. WRA believes the study to be representative because the sampled railroads accounted for 60 percent of 1974 total operating revenues of class I railroads in the eastern territory, 95 percent in southern territory, 87 percent in western territory and 78 percent in United States. 'UCC has submitted similar proposals on behalf of the Nation's rail carriers to the Commission on two previous occasions. In 1.&S. 8873, Minimum Weights on Overflow Shipments, Nationwide, Review Board Number 4 found that a proposal to increase the minimum weights in rule 24 to various levels, depending on the type of car used, had not been shown to be just and reasonable. In 1.&S 8989 Minimum Weights on Freight in Excess of Full Carload, UCC proposed an increase identical to the present one, but voluntarily canceled and withdrew the proposal before proceedings were completed. |