INTERSTATE COMMERCE COMMISSION

ORDER

TITLE 49.

TRANSPORTATION

CHAPTER X INTERSTATE COMMERCE COMMISSION SUBCHAPTER C ACCOUNTS, RECORDS AND REPORTS

PART 1241 - ANNUAL, SPECIAL OR PERIODIC REPORTS

No. 36557

REPORTING RAILROAD TRACK MAINTENANCE

Consideration has been given to the matters involved in this proceeding, and the Commission has made and filed a report containing its findings and conclusions, which report is made a part of this order.

It is ordered;

1. Part 1241 of Title 49 of the Code of Federal Regulations is amended to read as shown in appendix to this report.

2. The prescribed revisions shall be effective for the reporting year beginning January 1, 1978.

3. Service of this order shall be made on all class I railroads and to the Governor of every State and to the Public Utilities Commissions or Boards of each State having jursidiction over transportation. Notice of this order shall be given to the general public by depositing a copy in the Office of the Secretary, Interstate Commerce Commission, Washington, D.C., and by filing a copy with the Director, Office of the Federal Register for publication in the Federal Register.

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.

(Authority: 49 U.S.C. 12 and 20)

By the Commission, Vice Chairman Christian did not participate. 357 I.C.C.

No. 36177

ENTERPRISE PRODUCTS CO., ET AL. v. TEXAS MEXICAN RAILWAY COMPANY

Export rates charged on numerous shipments of liquified petroleum gas in jumbo tank cars of 33,000-gallon capacity found to have been and to be unjust and unreasonable in violation of section 1 of the Interstate Commerce Act. Reparations awarded and just and reasonable rates for the future prescribed.

E. Stephen Heisley for complainants.

Elmore Borchers and Hugh L. McCulley for defendant.

DECISION AND ORDER

At a Session of the INTERSTATE COMMERCE COMMISSION, Division 2, (Commissioners Hardin, O'Neal, and Christian, held at its office in Washington, D.C., on the 17th day of December 1976.

Upon consideration of the complaint and record in the aboveentitled proceeding, including: The initial decision of the Administrative Law Judge served May 12, 1976; the limited exceptions thereto filed by complainants on June 21, 1976, the exceptions, including a motion for further hearing, filed by

defendant Texas Mexican Railway Company on June 21, 1976, and the exceptions filed by certain interested railroads pursuant to rule 96(c) of the Commission's General Rules of Practice (49 CFR 1100.96(c)) on June 21, 1976; a reply thereto filed by complainants on August 2, 1976; and

It appearing, That by order entered July 30, 1976, the motion for further hearing was denied;

It further appearing, That the Administrative Law Judge found that the rates charged on liquefied petroleum gas moving in “jumbo" 33,000-gallon capacity tank cars, from Realitos, Tex., to Laredo, Tex., for export to the Republic of Mexico, were unlawful in violation of section 1 of the Interstate Commerce Act to the extent charges thereon exceeded a maximum reasonable level reflecting the prescribed rate of 26 cents per 100 pounds; that complainants are entitled to reparations plus 6-percent interest on all such movements since December 13, 1973, the actual amount to be determined pursuant to rule 100 of the Commission's General Rules of Practice, (49 CFR 1100.100); and that for the future a just and

reasonable rate would be 26 cents, minimum 145,000 pounds subject to all authorized general increases on and after January 1, 1976;

It further appearing, That complainants except to the use of 33,000-gallon capacity of liquefied petroleum gas tank cars specified in the order; that few tank cars actually have a capacity of 33,000 gallons; that 32,000 gallons or greater is a more accurate identification of the tank cars for which rate relief was granted in the initial report; and that no statement to this exception was filed in opposition;

And it further appearing, That, except as hereinafter noted, the exceptions and reply do not show any material errors in the Administrative Law Judge's statement and evaluation of the facts, his conclusions of law or findings, nor do they raise any material matters of fact or law not adequately considered and properly disposed of in the initial decision, and are not of such a nature as to require the issuance of a report by division 2 discussing the evidence and the arguments in light of the exceptions;

Wherefore, and good cause appearing therefor:

We find, That the evidence, considered in light of the exceptions, does not warrant a result different from that reached below and that, as modified hereinafter, the statement of facts, conclusions, and findings of the Administrative Law Judge, being proper and correct in all material respects, should be, and they are hereby, affirmed and adopted as our own; and

It is ordered, That, in adopting the report of the Administrative Law Judge as our own, the following changes be, and they are hereby, made:

(1) At page 2, fourth paragraph, line 1, strike “gasses," and insert "gases," in lieu thereof;

(2) at page 16, second paragraph, line 1, strike "simply," and insert "simple," in lieu thereof;

(3) at page 19, line 1, strike "33,000 gallon," and insert "32,000 gallons or greater" in lieu thereof;

(4) at page 19, line 4, strike "6 percent per annum," and insert “4 percent per annum," in lieu thereof.

It is further ordered, That defendant be, and it is hereby, notified and required to establish on or before 45 days from the date of service of this decision and order, upon not less than 1 day's notice to the Commission and the general public by filing and posting in

the manner prescribed in section 6 of the Interstate Commerce Act, and thereafter to maintain and apply a just and reasonable rate of 26 cents per 100 pounds, minimum weight 145,000 pounds, subject to all general increases approved by this Commission after January 1, 1976, in accordance with the findings herein.

The complainant should comply with rule 100 of the Commission's General Rules of Practice (49 CFR 1100.100).

The statement of facts, conclusions, and finding of Administrative Law Judge Warren C. White, follows:

By complaint filed on April 16, 1975, Enterprise Products Company (Enterprise Products), of Houston, Texas, a petroleum distributor and marketer, and its subsidiary, Enterprise International, Inc. (Enterprise International), which exports liquified petroleum gas to the Republic of Mexico, allege that the rates charged are being charged on shipments of liquified petroleum gas (LPG) moved and moving from Realitos, Tex., to Laredo, Tex., in Jumbo tank cars of 33,000-gallon capacity for export to the Republic of Mexico were and are unjust and unreasonable in violation of section 1 of the Interstate Commerce Act. Defendant is the Texas Mexican Railway Company (Tex-Mex).

The Commission is requested to prescribe just and reasonable rates for the future and to award reparations on all shipments moving within the 2-year statutory period immediately prior to April 16, 1975, the date this complaint was filed.

By order served May 9, 1975, the Commission assigned the matter for handling under the modified procedure. By order dated March 19, 1976, the proceeding was assigned to this Administrative Law Judge for initial decision.

STATEMENT OF FACTS

Enterprise Products is a marketer of natural gas liquids, including but not limited to LPG. Enterprise International is a wholly owned subsidiary. Enterprise International is in the business of the international marketing of petroleum products including LPG for the parent company and, since the transportation which is the subject of this complaint ultimately is destined to the Republic of Mexico, Enterprise International is the marketing and sales agent used by Enterprise Products for the sale of LPG to the Republic of Mexico.

Enterprise Products began operations in 1968 and is thus a relatively new marketer in the petroleum products field.

To obtain LPG, Enterprise Products purchases the entire production of several natural gas plants. It provides the marketing expertise, transportation, and storage functions necessary to market, sell, store, and transport LPG and natural gas.

LPG is purchased from natural gas plants on a “take or pay” basis, i.e. complainants assume sole responsibility and any financial risk involved in the marketing, sale, and

357 I.C.C.