1. In docket No. 12530, upon petition for a declaratory order, found that the order therein requires that railroad-owned and privately owned cars used to transport bituminous coal in unit trains must be counted as part of the pool of cars available for allocation on a pro rata basis during car shortages. Further found that, under the provisions of section 1(12) of the Interstate Commerce Act, the coal car distribution rules established in docket No. 12530 cannot be modified to exempt from their application any coal cars moving in unit trains from mines. Relief sought denied.

2. In docket No. 35188, found that defendant's failure to rate all mines and to count railroad-owned cars moving in unit trains from coal mines as part of the pool of cars available for allocation during car shortages is unlawful, and that defendant is not required to publish car distribution data in its monthly Coal Car Distribution bulletin. Cease and desist order entered.

3. Intention expressed to recommend an amendment to the Interstate Commerce Act to exempt privately owned cars used in unit-train movements of coal from mines from the requirements of section 1(12).

Fred R. Birkholz, John W. Hanifin, Joseph L. Lenihan, Richard J. Murphy, William J. O'Brien, C. C. Rettberg, Jr., R. D. Sickler, and John S. Walker for petitioners in No. 12530.

J. H. Anderson, Pierre O. Caron, Daniel H. Core, Jr., A. William Finke, Robert W. Gerson, John Guandolo, Donald H. Hauser, James T. Hemphill, Jr., Dwight L. Koerber, David F. MacDonald, Charles J. McCarthy, Brice O'Brien, O. K. Peterson, H. E. Roos, Michael D. Umphrey, Robert K. Waldo, Robert R. Wertz, and James D. Zakrajsheck for replicants in No. 12530.

Troy E. Cleveland, Bernard A. Gould, and James R. Taylor for the Bureau of Enforcement, Interstate Commerce Commission, in No. 12530.

William M. Maddox for complainants in No. 35188.

Joseph L. Lenihan and James W. Hoe land for defendant in No. 35188.

'This report also embraces No. 35188, Harlan County Coal Operators' Association, et al. v. Louisville and Nashville Railroad Company.

James R. Taylor and Bernard A. Gould for the Bureau of Enforcement, Interstate Commerce Commission, in No. 35188.

REPORT AND ORDER OF THE COMMISSION

BY THE COMMISSION:

By petitions filed On September 4, 1970, and June 14, 1971, respectively, the Baltimore and Ohio Railroad Company, et al. (B&O), and the Louisville and Nashville Railroad Company (L&N), sought leave to file the petitions for declaratory orders, tendered therewith, to interpret or modify the order in docket No. 12530, Assigned Cars For Bituminous Coal Mines, 80 I.C.C. 520 (1923) and 93 I.C.C. 701 (1924), called the Assigned Cars case. That proceeding resulted in an order requiring that in the transportation of bituminous coal during times of car shortages, the railroad respondents (a) cease and desist from placing for loading at any mine privately owned cars and "railway fuel" cars (system or foreign-line cars for railway fuel), in excess of the mine's pro rata share of the "total number of available cars," and (b) count and charge all such cars against the mines in determining pro rata shares of the individual mines.

The B&O requests the Commission to find that the order in the Assigned Cars case does not apply to privately owned cars moving in unit-train coal operations (hereinafter referred to simply as unit trains) or in the alternative, that the order be modified to exempt such cars from being counted as part of the pool available for distribution. The L&N requests that the Commission find that the order in the Assigned Cars case does not apply to either privately owned on railroad-owned cars moving in unit trains, or that the order be modified to provide for such an exemption. Notice of the filing of the B&O's petition was entered on September 23, 1970, and was published in the Federal Register on October 1, 1970, at 35 F.R. 15348, and a similar notice of the filing of the L&N's petition, dated October 8, 1971, was published on October 23 and 29, 1971, at 36 F.R. 20564 and 36 F.R. 20807, respectively.

In response to the notice in the Federal Register concerning the B&O's petition, numerous parties indicated that they wished to participate in future proceedings. Several of these parties submitted statements containing factual matter in support of the relief sought

The Chesapeake and Ohio Railway Company, The Denver and Rio Grande Western Railroad Company, The Illinois Central Railroad Company, and the Penn Central Transportation Company (George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, trustees at the time).

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