warranted in this proceeding, we see no reason not to include defendant's appeal and complainant's reply thereto in the record. Accordingly, these pleadings are accepted as part of the record.

For the purpose of our discussion, the following brief summary of the facts and circumstances giving rise to this proceeding will provide an adequate background to understand the issues involved; a more detailed reporting appears in the prior report at 355 I.C.C. 627.

Complainant, Shell, maintains a refinery at Norco, LA, which produces asphalt, coke, liquified petroleum gas, and other petroleum products. The cars involved in this complaint are loaded with these commodities, particularly liquified petroleum gas, and moved in interstate commerce. Once loaded, the cars moved from the loading spot to a hold track within the refinery at which point they were held until shipping orders were issued. The holding period lasted from 1 to 12 days.

Complainant shows that during a sample period for March 1976, approximately 48 percent of the held cars were detained less than 1 day. However, neither party attempts to break down the hold period so as to show the period of detainment in minutes for such cars released within 1 day.

Complainant admits that, by use of its private hold tracks rather than the carrier's nearby hold tracks, it avoids incurring hazardous storage and demurrage charges. Complainant admits that an additional switch movement is required by the placement of cars on the hold track.

Complainant has requested reparations of approximately $17,000 (plus interest) for charges assessed and paid on approximately 1,400 switching movements from June 1972 to January 1976. These charges were assessed under rate basis 29 of item 295 of Louisiana and Arkansas Tariff No. 15-F, I.C.C. 1845, to which item 255 of that tariff refers as the applicable basis for intraplant switching. Rate basis 29 does not provide a specific charge for intraplant switching on private cars in interstate movements. No request for payment for these switching movements was made by defendant from the institution of this service until January 1976. At that time, the L&A informed Shell it believed the above-noted intraplant switching charge was applicable on the involved movements. In March 1976, the L&A presented Shell with the contested balance due bill based on its intrastate switching charge.

Essentially Shell contends that the switching operation is included in the line-haul rate under the temporary holding exemption on cars

waiting for shipping or placement instructions set forth in Carrier Switching at Industrial Plants in the East, 294 I.C.C. 159 (1955), which modified the Ex Parte No. 104 prohibitions against providing such additional service promulgated in Propriety of Operating Practices-Terminal Services, 209 I.C.C. 11 (1935). Shell maintains that the charges assessed were unjust and unreasonable in violation of sections 1 and 6 of the Interstate Commerce Act.

Defendant avers that its intraplant switching charge is applicable on the past operations, and that the lengthy delay incurred while awaiting shipping instructions does not qualify the subject movements for the temporary holding exemption since only a short period of time was contemplated for cars awaitng shipping instructions.

The proceeding was first referred to an Administrative Law Judge, and handled under the modified procedure. The Administrative Law Judge found that defendant had provided intraplant switching beyond "simple switching or team track delivery"; that the operation could not be considered as a temporary holding due to the extended period of time the loaded cars remained in holding; and that the published tariff provided an appropriate charge which complainant had failed to show was unjust or unreasonable and upon which future charges could be assessed.

On April 6, 1977, complainant appealed to the initial decision of the Administrative Law Judge. By report and order of division 2, served October 18, 1977, it was found that the intrastate, intraplant switching charge provided in rate basis 29, item 295 of Louisville and Arkansas Railway Company Tariff No. 15-F, allegedly made applicable on the subject movements by item 255, did not apply on approximately 1,400 switch movements which precede interstate line-haul movements. Absent an appropriate published charge, it was found that complainant shipper was entitled to reparations of the charges assessed and paid for the switch movements, and that defendant had received reasonable compensation for the switching movements under its line-haul rates. Reparation of the entire charge was ordered.

In defendant's instant appeal, the L&A continues to maintain that the exceptions to the Ex Parte No. 104 principles are not applicable to the situation presented here because those principles are allegedly not mandatory upon a carrier absent publication of those provisions approved in Carrier Switching at Industrial Plants in the East, supra, in a carrier's tariffs. Defendant also avers that if this Commission believes defendant is bound under these circumstances

by the Ex Parte No. 104 exceptions, it cannot suggest the publication of an intraplant switching charge. Defendant continues to maintain that the intrastate switching charge can properly be applied on the movements regardless of whether they are interstate in nature or not.

In reply, Shell states that the intrastate intraplant switching charge cannot be considered applicable on the subject movements and that under the principles set forth in Ex Parte No. 104, the carrier receives adequate compensation for the switching operation under the line-haul rates.

The principles of Ex Parte No. 104 were designed to clarify what actions would constitute violations of sections 3(1) and 6(7) of the Interstate Commerce Act. These sections require that carriers do not discriminate among shippers, regardless of their size, volume of transportation, competitive standing, financial importance, et cetera. It is the fundamental purpose of the Interstate Commerce Act to insure that all shippers are treated equally. New Haven R. R. v. Interstate Commerce Commission, 200 U.S. 361 (1906). The adoption of Ex Parte No. 104, Propreity of Operating Practices-Terminal Services, 209 I.C.C. 11 (1935), (hereinafter referred to as Original Report), was based on underlying principles which were already well defined. No carrier subject to the Interstate Commerce Act could directly or indirectly charge less than its published rates. The assumption by a carrier of an additional obligation, not properly included in its line-haul rates, created a presumption of preference which need not be demonstrated to exist in fact. Davis v. Cornwell, 264 U.S. 560 (1924), Chicago & Alton R. Co. v. Kirby, 225 U.S. 155 (1912). Ex Parte No. 104 more clearly defined which types of terminal services were properly included in the line-haul charges and which were not. The basic standard adopted was simple: no carrier could provide a service, or pay an allowance to an industry for its performance of such service, on industrial tracks beyond the equivalent of team track switching. Among the services specified as beyond a carrier's line-haul obligation were additional movements or delays which were industry caused interruptions to the line-haul movements. Any service beyond such point of interruption or interference could not be properly included in the line-haul charge. However, no adequate allowance was made in the Original Report to account for interruptions or delays which were minor, unusual, infrequent, or nonrecurring and for which little or no practical reasons exist for maintaining separate charges. Accordingly, in Carrier Switching at

Industrial Plants in the East, supra, this Commission approved a tariff for transportation performed in the official territory proposed by certain railroads and members of the National Industrial Traffic League. The tariff was designed to clarify and to alleviate problems arising because of such minor or infrequent interruptions to the continuous movement of shipments or the ordinary operating convenience of the carriers. Among the provisions of the tariff considered therein was an exception to the Ex Parte No. 104 prohibitions for cars which were "temporarily delayed" while awaiting shipping or placement instructions from the shipper or the consignee. See Carrier Switching at Industrial Plants in the East, supra at 163-164. Those exceptions provided reasonable and needed relief from overly restrictive application of the principles set forth in the Original Report. Subsequently, the exceptions became general standards of national applicability. See, e.g., American Smelting & Refining Co. Terminal Services, 294 I.C.C. 745 (1955); United States Dept. of Defense v. Northern Pac. Ry. Co., 309 I.C.C. 691 (1960).

In this proceeding, the record clearly establishes that the placement of the cars on the industry's hold tracks is an additional switching operation to the normal line-haul service, is an industry caused interruption, and breaks the continuous movement of the shipments. The sole reason advanced for inclusion of this service under the line-haul rate is the temporary holding provision approved in Carrier Switching at Industrial Plants in the East, supra. However, the exemption approved in that report provides for a maximum holding period not to exceed 30 minutes without additional charge. The temporary holding rule embraced in paragraph 1 of note 3 is to be applied in accord with rule III which sets forth the 30-minute time limitation. Carrier Switching at Industrial Plants in the East, supra, at 161. This 30-minute period has been held to constitute the determining criterion in situations such as that presented here in which no tariff provisions exist setting forth exceptions to the Ex Parte No. 104 prohibitions. See, A. O. Smith Corporation Terminal Allowances, 313 I.C.C. 615 (1961), wherein switching test surveys were submitted in evidence to show compliance with the 30-minute rule. Accordingly, we are unable to find on this record that any of the 1,400 switching movements involved herein would constitute a temporary holding of cars within the meaning of that term as used in Carrier Switching at Industrial Plants in the East, supra.

Defendant has failed to publish appropriate intraplant switching charges on private cars in interstate transportation. The charges were assessed on the basis of an intrastate charge on private cars. Since this proceeding was instituted by complainant's request for reparations of charges already paid, the authority of this Commission in such actions is limited to the reimbursement of damages. No damage to complainant exists unless the shipper has been forced to pay more than a reasonable rate. Memphis Freight Bureau v. Kansas City S. Ry. Co., 17 I.C.C. 90, 92 (1909).' Complainant has failed to produce any evidence supporting its allegation that the rate level itself is unjust or unreasonable. The L&A has provided Shell with a beneficial service which defendant has not held itself out to provide free of charge under its published tariffs. The switching operation may not be included under its linehaul rates without constituting active discrimination among shippers in violation of sections 3(1) and 6(7) of the act. This Commission requires a charge to be assessed on such operations. Considering the above, we are unable to conclude that the charges assessed are unjust or unreasonable or that complainant has been damaged to any extent which would warrant an award of reparations for the charges paid.

The principles enunciated above are among the most essential requirements of the Interstate Commerce Act. Publication of appropriate tariff items setting forth the rates to be charged for a service or notation in the tariff of services included in the line-haul rate is fundamental for regulated carriers under the act. Avoidance of preferential or discriminatory treatment of shippers is a basic principle by which all carriers under our jurisdiction must operate. The record demonstrates that defendant carrier has not complied with these provisions of the act and also indicates the possibility of other violations at Shell's Norco, LA, facility. Therefore, defendant carrier is admonished that providing the switching service described above without appropriate tariff authority setting forth a reasonable change for that service is unlawful.

We find the report and order entered in this proceeding on October 18, 1977, was in error and should be reversed.

We further find that the intraplant switching service cannot lawfully be provided under defendant's line-haul rates, and that the charges assessed and collected on the approximately 1,400 switching movements have not been shown to be unjust or unreasonable. This

'See, also, Moore Business Forms, Inc. v. New York Central R. Co., 274 I.C.C. 404, 407-408 (1949).