BY THE COMMISSION:

DECISION

On September 22, 1979, a petition was filed by St. Louis Southwestern Railway Company (SSW)-and its corporate parent Southern Pacific Transportation Company (SPT)—seeking “temporary authority" to operate over a certain rail line of the Chicago, Rock Island & Pacific Railroad Company, debtor (William M. Gibbons, trustee) (“RI").2

The involved RI line extends from Santa Rosa, NM, to St. Louis, MO, via Kansas City, KS/MO, a total distance of 965.2 miles. This line consists of two main segments: the "Kansas City Segment," extending from Santa Rosa to Kansas City via Tucumcari, NM; and the "St. Louis Segment," extending from Kansas City to St. Louis. Additionally, SPT seeks to operate the RI branch line from Bucklin to Dodge City, KS, a distance of 26.5 miles. Collectively, we shall refer to the entire line as either the Santa Rosa/St. Louis line, the Golden State Route, or simply the Tucumcari line.

For the reasons discussed below, we believe SPT's petition should be conditionally granted, although not on the jurisdictional basis suggested in its petition, but rather under 49 U.S.C. 11123.

PROCEDURAL MATTERS

On September 27, 1979, the Commission served a notice inviting comments on SPT's petition from interested persons by October 12, 1979. By the October 12 deadline, 13 comments and a number of letters had been filed with the Commission. In addition, three comments were filed late, and two pleadings were filed in opposition to one of those comments. We shall treat the three late-filed pleadings as "petitions for leave to intervene" under rule 70 of our General Rules of Practice. See 49 CFR 1100.70 (1978). Further, a reply was filed by SPT.

The interventions.-Of the three late-filed comments, two supported SPT's application and one opposed it. The two supporting comments were submitted by Anamax Mining Company (Anamax) (filed October 15, 1979) and the Iowa Department of Transportation (Iowa DOT) (filed October 17, 1979). The one comment opposing the application was submitted by the Kansas City Terminal Railway Company (KCT) (filed October 19, 1979).

Unless otherwise indicated, all references to SPT shall embrace SSW, and vice-versa.

No parties object to our treating the late comments of Iowa DOT and Anamax as petitions for leave to intervene under rule 70. As these late comments would not unduly broaden the issues or otherwise hinder our consideration of the matters involved in this proceeding, they shall be received for substantive consideration. pursuant to rule 70.

However, two parties (SPT and RI) object to KCT's late-filed comment. In a telegram (filed October 22, 1979) RI challenged the contentions made in KCT's late comment. In a telegram (filed October 23, 1979), SPT urged the Commission to reject KCT's latefiled comment and to consider SPT's temporary authority application without reference to KCT's pleading.

Under rule 70(e), leave to intervene will be granted "on averments reasonably pertinent to the issues already presented and which do not unduly broaden them." See 49 CFR 1100.70(e). Since the averments presented by KCT-the "directed rail carrier" (DRC) under Directed Service Order No. 1398 (discussed below)-are clearly pertinent to the issues involved in the instant application and would not unduly broaden the issues, leave to intervene shall be granted. All other arguments against granting leave to intervene are irrelevant under rule 70(e). Thus, SPT's request that we reject KCT's late-filed pleading is denied.

As RI's challenge goes to the weight rather than the admissibility of KCT's evidence, we need not pass on it here. Rather, we shall consider it as appropriate in reviewing KCT's evidence.

The comments. Of the letters filed in response to our September 27 notice, a substantial number favored granting SPT's application for temporary operating authority over RI's Tucumcari line. Of the 16 timely and late-filed replies, the following parties took the following positions regarding SPT's application."

SUPPORT

RI

Iowa Department of Transportation (Iowa DOT)*

Anamax Mining Company (Anamax)*

Liberal, KS, Chamber of Commerce (Liberal)

OPPOSE

Missouri-Kansas-Texas Railroad Company (MKT)
Missouri Pacific Railroad Company (Mopac)
Union Pacific Railroad Company (UP)

'Late pleadings are identified with an asterisk (*).

Atchison, Topeka & Santa Fe Railway Company (Santa Fe)

Norfolk & Western Railway Company (N&W)

Chicago & North Western Transportation Company (CNW)
Railway Labor Executives Association (RLEA)

Brotherhood of Locomotive Engineers (BLE)

John W. McGinness, Illinois legislative director of United Transportation Union (McGinness)

Jointly, Brotherhood of Maintenance-of-Way Employees (BMWE), Brotherhood of Railroad Signalmen (BRS), Brotherhood of Railway and Airline Clerks (BRAC), International Association of Machinists and Aerospace Workers (IAM), and United Transportation Union (UTU) (collectively “Unions”)

Kansas City Terminal Railway Company (KCT)*

Burlington Northern, Inc. (BN)

NEUTRAL

The views of these parties shall be addressed as appropriate throughout this decision.

SPT's "TA" APPLICATION

Background.-SPT's "temporary authority" (TA) application grows out of RI's recent financial and operational difficulties. On August 28, 1979, RI's employees went on strike over certain wage issues. Although RI's management attempted to continue essential rail service, it soon became apparent that transportation needs were surpassing the limited ability of RI's management to meet those needs.

Accordingly, on September 20, 1979, President Carter invoked section 10 of the Railway Labor Act (45 U.S.C. 160) to establish an Emergency Board to intervene in the RI labor dispute. However, the President's action failed to end the strike by September 22, 1979, and SPT filed its petition for temporary operating authority on that date in an effort to resume essential services over RI's Tucumcari line. SPT has an interest in preserving the viability of the Tucumcari line since it has filed an application in Finance Docket No. 28799 (discussed below) to purchase that line.

Mootness. Since the filing of SPT's application, RI's employees have returned to work and most essential service on RI lines has been restored under the terms of the Commission decision in Directed Service Order No. 1398, Kansas City Term. Ry. Co.-Operate-Chicago, R. I. & P., 360 I.C.C. 289 (1979) and 44 F. R. 56343 (October 1, 1979). In Directed Service Order No. 1398,

we directed KCT to provide service as a DRC under 49 U.S.C. 11125 over safe RI lines.1

While directed service has afforded a temporary answer to RI's problem, it is not a long-range solution nor even an ideal shortrange one. Id., 360 I.C.C. at 293. By the terms of 49 U.S.C. 11125(b)(1), directed service may not last more than 240 days, at most. Directed service creates a significant drain on the Federal Treasury, the managerial resources of the DRC, and the

governmental agencies involved in implementing it. Accordingly, we conclude that SPT's TA application has not been mooted by the issuance of our directed service orders to KCT. Requested relief.-As noted above, SPT's petition was styled an "application for temporary authority" to operate RI's Tucumcari line. SPT relies on a number of provisions of the Interstate Commerce Act (49 U.S.C. Subtitle IV) as supporting our jurisdiction to grant its application for rail TA: 49 U.S.C. 10101(a), 10321(a), 11349, and 10928. We find it unnecessary to consider whether these provisions provide the requisite authority, because we have concluded that we have authority to grant the application under another section of the act, 49 U.S.C. 11123.

Under rule 2 of our General Rules of Practice, we are obliged to construe our rules liberally so as to secure a "just, speedy, and inexpensive determination of the issues presented." See 49 CFR 1100.2 (1978). Regardless of the title of the application or the statutory provisions expressly relied on by the applicant, rule 2 requires us to look beyond the form of the pleading to its substance in rendering our decision. Accordingly, we shall treat SPT's petition as one for authority under the two provisions of the act which empower us to order certain rail operations under emergency conditions:

49 U.S.C. 11123 (formerly 49 U.S.C. 1(15)); and 49 U.S.C. 11125 (formerly 49 U.S.C. 1(16)(b)).

Section 11123(a)(2) authorizes the Commission-in emergency situations-to "take action during the emergency to promote

'This authority was recently extended by us in Directed Service Order No. 1398 (Sub-No. 1), decided November 30, 1979. In that decision, we extended directed service for 90 days under 49 U.S.C. 11124(b)(1), with a partial reduction in the number of lines to be operated under directed service. While KCT was reinstated as DRC over the remaining directed service system, we specifically invited interested rail carriers to apply for temporary operating authority, without government subsidization, over portions of the RI system. We also express our willingness selectively to discontinue directed service over those portions of the RI system as to which temporary operating authority may be granted.

service *** regardless of the ownership (as between carriers) of a locomotive car, or other vehicle" on such terms of compensation as the carriers agree upon or, failing agreement, upon such terms of compensation as the Commission finds reasonable. Section 11123(a)(4) authorizes the Commission, in emergency situations, to direct the movement of rail traffic under appropriate permits (e.g., service orders). Section 11125-the "directed service" statute-empowers the Commission, under specified circumstances, to direct the handling, routing, and movement of an impaired carrier's traffic, and to direct its distribution over the lines of the impaired carrier by another rail carrier.

We shall now consider whether SPT's application warrants approval under any of the foregoing provisions.

49 U.S.C. 11123(A)(2)

Overview.-Section 11123(a)(2) provides, in pertinent part, as

follows:

(a) When the Interstate Commerce Commission considers that a shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in a section of the United States, the Commission may

(2) Take action during the emergency to promote service in the interest of the public and of commerce regardless of the ownership (as between carriers) of a locomotive, car, or other vehicle on terms of compensation the carriers establish between themselves subject to subsection (b)(2) of this section.

The key element of section 11123(a)(2) for present purposes is the finding of an "emergency." If it can be said that an emergency of the type contemplated by the statute exists here, then we may take such action as is necessary to promote service in the interests of public welfare and interstate commerce. For the reasons stated below, we believe a section 11123 "emergency" exists here, and warrants our granting SPT emergency authority temporarily to operate RI's Tucumcari line.

Emergency. To meet the threshold jurisdictional test under section 11123, we must first find that "a shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in a section of the United States." See 49 U.S.C. 11123(a). We believe this criterion is fully satisfied here.