When this controversy arose, Enterprise was seeking a 6-cent reduction to 24 cents per hundredweight and Tex-Mex was tentatively offering a 2-cent reduction to 28 cents per hundredweight. The Administrative Law Judge, making allowance for the possibility that Tex-Mex's true cost may slightly exceed 14.47 cents, concludes that the maximum reasonable rate on carload shipments of LPG from Realitos to Laredo, Tex., for export, minimum weight 145,000 pounds, was and is 26 cents per hundredweight, subject to any general increases authorized in 1976 and following years. Finally, the Administrative Law Judge concludes that the above conclusions will not have an adverse environmental impact on the Nation's resources.,Rates so high as to constitute an embargo on export of LPG should not be seriously considered as an appropriate substititue for governmental allocations of export volumes. At least no energy crisis can be foreseen from the establishment of a just and reasonable rate for the exportation of LPG. FINDINGS On the basis of the evidence of record, the Administrative Law Judge finds that numerous jumbo carloads of LPG have moved from Realitos to Laredo, Tex., for export to Mexico City, Mex, since December 13, 1973, for the account of complainants, that complainants paid and bore the freight charges thereon, that complainants have been damaged to the extent charges thereon exceeded a maximum reasonable level herein determined to be 26 cents per hundredweight, that the charges collected in excess of 26 cents per hundredweight were unjust and unreasonable in violation of section 1 of act, that complainants are entitled to reparations plus 6-percent interest on all jumbo carloads of 33,000 gallons since December 13, 1973, the amount to be determined after the parties comply with rule 100 of the General Rules of Practice, that just and reasonable rates for the future will be 26 cents per hundredweight, minimum weight 145,000 pounds on carloads of LPG moving from Realitos to Laredo, Tex., for export, subject to all general increases approved by the Commission on and after January 1, 1976, and that this decision is not a major Federal action signficantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. It is the ORDER of the Administrative Law Judge, That defendant be, and it is hereby, authorized and directed within 45 days from the date this order becomes effective to pay the complainant reparations in the amount that charges based on the applicable rate on LPG in jumbo tank cars of 33,000-gallon capacity moved from Realitos to Laredo, Tex., for export on and after December 13, 1973, exceeded 26 cents per hundredweight, the rate herein found to be just and reasonable, plus interest at 6 percent per annum, after the parties comply with rule 100 of the General Rules of Practice: It is further ordered, That defendant be, and it is hereby, notified and required to establish on or before 45 days from the date this order becomes effective, 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 hundredweight, for the future minimum weight 145,000 pounds, subject to all general increases approved after January 1, 1976, in accordance with findings herein; And it is further ordered, That in the absence of a stay or postponement by the Commission or the timely filing of exceptions, the effective date of this order shall be 30 days from the date of service hereof. Dated at Washington, D.C., this 30th day of April 1976. EX PARTE No. MC-82 (SUB-No. 1) PROCEDURES IN MOTOR CARRIER REVENUE PRO- Decided May 18, 1977 Proposed procedures to govern the submission of evidence in revenue proceedings of the intercity bus industry modified in part and adopted. Appropriate order entered. Drew L. Carraway and John S. Fessenden for the National Bus Traffic Association, Inc., and John Hart Ely, William A. Kutzke, and Constance L. Abrams for the United States Department of Transportation. REPORT OF the CommISSION BY THE COMMISSION: This proceeding was initiated by Notice of Proposed Rulemaking and Order, served November 25, 1976, where we set forth proposed procedures governing the type of evidence to be submitted in general fare and charge increases filed by the National Bus Traffic Association, Inc., for and on behalf of its members. The Notice was published in the Federal Register, 40 F.R. 57465, December 10, 1975. Comments on the Notice were filed by the National Bus Traffic Association, Inc., hereinafter NBTA, and the Department of Transportation, hereinafter DOT. These comments and our discussion and conclusions thereon will be presented in this report as follows: Part I, entitled "General Matters," addresses general issues relating to (A) time frames, (B) study carrier groupings, (C) proposed system of accounts, (D) productivity changes, and (E) NBTA's voting pattern. Part II, entitled "Other Comments by NBTA," addresses other technical issues relating to certain sections of the proposed procedures and the various schedules therein. To avoid repetition, all issues discussed and resolved under "General Matters" will not be considered again under "Other Comments by NBTA." I. GENERAL MATTERS NBTA does not oppose rules of the nature initially proposed herein and directed its comments at clarification, simplification, and making the rules more workable. DOT, while strongly supporting rules of this nature, criticizes the specific regulations set forth in the Notice of Rulemaking on the grounds that they do not go far enough. It urges that the Commission require other information in addition to that initially contemplated. The specific comments and criticisms of NBTA and DOT are discussed below. A. Time frames.-NBTA points out that 10 different time frames contained in schedules A through G of the proposed procedures.' NBTA contends that collection of data for so many annual periods both increases the difficulty of compiling it and diminshes its usefulness because of confusion and the inability to make appropriate direct comparisons. Furthermore, NBTA notes that the proposed schedules A, B and C require the separation of revenues (a) between issue and nonissue traffic as well as (b) by basic types of service, e.g., passenger traffic revenue and express revenue. NBTA also points out that the definition of "issue traffic" requires an identification of interstate revenue as opposed to revenue derived from comparable services performed in intrastate commerce. Such revenue separations, NBTA argues, require a traffic analysis on the part of individual carriers using specific studies normally based on a full calendar year. Thus, NBTA concludes, it would be difficult, if not impossible, to furnish revenue separations between issue and nonissue traffic for individual quarters of a particular year, or for a year other than a calendar year. NBTA also criticizes the proposed procedures in that they designate the base year as ending with the last day of a four-quarter period which precedes the filing date of a proposed increase in fares or charges by only 3 to 5 months. Thus, if a fare increase were filed in January, the base year would include the four quarters ending on September 30 of the preceding year. This, it contends, would place a tremendous burden on the carriers because 3 months are, thereby, available to close out accounting records for the last period, aggregate annual data for individual carriers, compute pro forma data predicated on base year results, assemble totals for all study carriers, and prepare justification statements to be submitted concurrently with the filing of the proposed fare increase. For these reasons, NBTA concludes that it would be impossible, as a practical 'See table No. 1 for proposed and prescribed time frames. matter, to comply with the requirement concerning base year data. In lieu thereof, NBTA recommends that the procedures provide that the base year be a calendar year rather than an annual period made up of four quarters. Further, NBTA argues that to insure data as current as possible, the base year for any increase filed after May 15 (in a given calendar year) should be the preceding calendar year. Also, it believes that calendar year data: (1) Can be derived from the carriers' annual reports to the Commission, whereby such data can be readily verified and tabulated without tabulating four separate quarters; (2) Would eliminate three of the differing annual periods under the proposed procedures; and (3) Would be consistent with the prescribed procedures in New Procedures in Motor Carrier Rev. Proc., 339 I.C.C. 325, 340 I.C.C. 1, and 351 I.C.C. 1, for general increases of motor common carriers of general freight. NBTA also comments on the definition of “forecast year" as that four-quarter period immediately following the base year. If the base year were redefined as it recommends, the "forecast year" would then consist of the calendar year in which the fare increase is filed. Thus, NBTA believes that data for the "forecast year" would not differ significantly, if at all, from data developed for the "pro forma year" required by the proposed procedures. It states the only significant difference between the "pro forma" and "forecast" years would result from predictions concerning traffic levels or other matters since the "pro forma year" consists only of updating revenues and expenses for actual base year operations, whereas, the "forecast year" requires anticipation of changes in base year operations. Therefore, NBTA recommends that data for a "forecast year" not be required. Furthermore, it observes that prediction of changes in base year operations are not required in the Ex Parte No. MC-82 procedures for general freight carriers and that the bus industry is no more capable of predicting future traffic levels of future changes in traffic consist than the trucking industry. Indeed, NBTA says, because it deals with passengers instead of freight, the bus industry has less ability to predict future changes. Discussion and conclusions. In our opinion a meaningful and reliable analysis of the carriers' revenue needs must be based on the most currently available data that can be developed and processed by the carriers without undue burden. NBTA's contention (1) that the proposed revenue separations, based on a required annual period consisting of four calendar quarters, is difficult, if not impossible and (2) that the "base year" should be predicated on a calendar year for the various reasons cited by it are shown to be invalid by its recent justification statement in support of a 9.5percent increase in interstate bus passenger fares and package express rates. The filing date of that proposal was October 22, 1976, and the effective date was November 22, 1976. In its justification statement, NBTA filed data largely in compliance with the proposed procedures as set forth in our Notice of Proposed Rulemaking, supra, and met the proposed time frame requirements therein. In fact, NBTA submitted "base year" data for the four calendar quarters ending June 30, 1976; whereas, under NBTA's substitute proposal it would have filed "base year" data for the calendar year 1975. It would seem, therefore, that the accumulation of the required data for the "base year" as defined in the proposed procedures, is not unduly burdensome. Thus, the prescribed procedures will call for "base year" data consisting of the applicable four quarter calendar periods. On the other hand, there is merit in NBTA's argument that too many annual periods are called for under the proposed procedures, thereby unnecessarily increasing compilation difficulties and diminishing the usefulness of such data. We have reevaluated the need for, and the usefulness of, the various time frames, and as a result are revising the requirements. Table No. 1, infra, sets forth both the originally proposed time frames and the newly prescribed ones for the various schedules. Of particular note is the request for elimination of the "forecast year" and the substitution therefor of the "pro forma" year based on constructed revenue needs. While we continue to believe that data based on a "forecast year" may be useful to management and in meeting certain definable regulatory purposes and objectives, its use in evaluating revenue needs of the intercity bus industry in general fare and charge increases appears limited. Of special concern here, beyond the highly conjectural nature of forecast prognostications, is the implication that forecast data will be used to require passengers to pay now for some undefinable service and cost in the future. Stated differently, the mere designation of forecast data suggests that today's passengers may be paying for the future ills of the bus industry; or, conversely, reaping the benefits of its future "good times," although the latter is somewhat improbable. On the other hand, a pro forma "constructed revenue need" year offers both the industry and the Commission an opportunity to examine, in a practical way, what might be appropriately termed a "should be" situation, or perhaps more accurately, what "should have been," |