Petition — Pennsylvania v. Interstate Commerce Commission
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wiper our. U.
SEP 26 1977
MICHAEL RODAK, JR., CLERK
in the
Supreme Court of the Anited States
October Term, 1977
me. 97-478 ¢
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Petitioners,
vs.
INTERSTATE COMMERCE COMMISSION, et ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROBERT P. KANE, Attorney General
Capitol Annex
Harrisburg, Pa. 17120
BARNETT SATINSKY, Chief Counsel
JOHN B. WILSON, Asst. Counsel
CANDACE N. KREIGER, Asst. Counsel
Penna. Public Utility Commission
P.O. Box 3265
Harrisburg, Pa. 17120
GORDON P. MacDOUGALL, Special
Asst. Counsel
1100 17th Street, N.W.
Washington, D.C. 20036
Attomeys for Petitioners é
eee 1977 |
THE CASILLAS PRESS, INC.-1717 K Street, N. W.—Washington, D0. C.-223-1220
Rn NOL RS GORD Ten) SON Es hen, a or i RR
; : e,) Pha fy eames Aaa dates A) ti rs,
(i
TABLE OF CONTENTS
OPINIONS BELOW .
off
JURISDICTION .
QUESTION PRESENTED:
Whether the U.S. Court of Appeals, upon motion
of the petitioner and over objection of intervening
petitioners, properly dismissed a proceeding brought
to review a decision of the Interstate Commerce
Commission, where the effect may be to eliminate
any judicial review of the agency decision owing
to expiration of the statutory 60-day period for
instituting an independent anne for review by
the intervenors .. . ama «.—¢ ©
STATUTES AND RULES INVOLVED mae 6 & ek 3
REASONS FORGRANTING THE WRIT ....... II
I. THE DECISION BELOW CONFLICTS WITH
THE “NOTICE” FORM OF PETITION FOR
REVIEW PRESCRIBED BY THISCOURT ..... II
Il. THE DECISION BELOW IS INCONSISTENT
WITH ALLOWING AN INTERVENOR TO
RAISE ADDITIONAL CLAIMS IN JUDICIAL
REVIEW OF AN AGENCY DECISION ie thw fe
CONCLUSION a a ae a ee ar
APPENDIX:
Appendix A— Order of dismissal (April1,1977) . . . . Ila
ab ee LR SS Pe ee , Bei Prk 4 eae |
fon ok elt oe. ee ee
(ii)
Appendix B— Order denying petition for rehearing
(April 28, 1977) . yg
Appendix C— Order dismissing motion to consolidate
as moot . . +.) soe"
Appendix D— Joint Petition for Review (December 27,
1976) or ee ee
Appendix E— Interstate Commerce Commission, I. & S.
Docket No. 9108, report and order
decided October 28, 1977 (served Octo-
ber 29) . aes We a
Appendix F— Interstate Commerce Commission, I. & S.
Docket No. 9108 (Complaint), report
and order decided January 28, 1977
(served February 3) . ;
Appendix G— Petition for Review (February 3, 1977)
Sa
67a
(iii)
TABLE OF CITATIONS
Page
Cases:
Air Line Pilots Association International v. C.A.B.,
coe
Auto Workers v. Scofield,
rn oa £6 «es et fe ee ee
Borough of Moosic v. United States,
272 F. Supp. $13 (M.D. Pa. 1967) . . ....... =&JS
Chem-Haulers, Inc. v. United States,
a eee ee ee
Commonwealth of Pennsylvania and Pennsylvania Public
Utility Commission v. Interstate Commerce Commis-
sion and United States of America (No. 77-1147, D.C.
Cir., pending) . ie, bake i aes a 7,9
Corning Glass Works and Thatcher Glass Manufacturing
Company v. Interstate Commerce Commission and
United States of America (No. 76-2153, D.C.Cir.). . . passim
Delaware and Hudson Railroad Corp. v. United States,
279 F. Supp. 311 (S.D.N.Y. 1967). ........ #=I5
Erie-Lackawanna Railroad Company v. United States,
279 F. Supp. 303, 313, 316(S.D.N.Y.1967) ..... 15
Hickman v. Taylor,
«38. 6% 6 9 6 0 6 6 6 eee 1 e
New York Central Railroad Company v. United States,
200 F. Supp. 944(S.D.N.Y.1961). ........ «414
Pasadena City Bd. of Education v. Spangler,
Ee ee a ee ee ee
(iv)
Penn-Central Merger Cases,
389 U.S. 486 (1968)
Rules of Appellate Procedure,
389 U.S. 1063 (1968) .
Rules of Appellate Procedure,
43 F.R.D. 61 (1967)
Spangler v. United States,
415 F.2d 1242 (9th Cir. 1969) .
Stewart-Warner Corp. v. Westinghouse Electric 7 be
325 F.2d 822 (2d Cir. 1963) . :
United States v. Bursey,
515 F.2d 1228 (Sth Cir. 1975) .
Widing Transp., Inc. v. I.C.C.,
545 F.2d 654 (9th Cir. 1976)
Upshaw v. United States,
335 U.S. 410 (1948)
Statutes:
28 US.C. 1254
28 US.C, 2072
28 US.C. 2323
28 U.S.C. 2341
28 U.S.C, 2344
28 US.C. 2348.
49US.C.15(8) .
49 US.C. 1486
15
11
12
14
14
15
15
1]
2
5,11
. 14
3,12
. 3,7, 8, 12, 13
. 5,9, 11,14
>
16
(v)
Rules:
15, F.R.AP.
24, F.R.Civ.P. .
Miscellaneous:
4 Moore Fed. P. (2d Ed) 24.16-17 .
Page
. 4, 8,9, 12, 13, 14
15
15
In the
Supreme Court of the United States
October Term, 1977
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Petitioners,
vs.
INTERSTATE COMMERCE COMMISSION, et ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners, Commonwealth of Pennsylvania and Pennsyl-
vania Public Utility Commission, respectfully pray that a
writ of certiorari issue to review the judgment of the US.
Court of Appeals for the District of Columbia Circuit, en-
tered in this proceeding on April 1, 1977.
2
OPINIONS BELOW
The order of the U.S. Court of Appeals, dismissing the
review proceeding, not reported, is printed as Appendix A
hereto. (App. 1a).
The reports and orders of the Interstate Commerce Com-
mission in its I. & S. Docket No. 9108, Cancellation of
TOFC Service, Consolidated Rail Corporation, not yet re-
ported, are printed as Appendix E and Appendix F. (App.
9a-66a).
JURISDICTION
The judgment of the U.S. Court of Appeals dismissing
the petition for review was entered April 1, 1977, and is
printed as Appendix A hereto. (App. la). The order de-
nying rehearing was entered April 28, 1977, and is printed
as Appendix B hereto. (App. 2a). The time for filing a
petition for writ of certiorari was extended by Mr. Justice
Brennan to and including September 25, 1977.
This Court’s jurisdiction is conferred by 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the U.S. Court of Appeals, upon motion
of the petitioner and over objection of intervening
petitioners, properly dismissed a proceeding brought
to review a decision of the Interstate Commerce
Commission, where the effect may be to elimi-
nate any judicial review of the agency decision
owing to expiration of the statutory 60-day period
for instituting an independent petition for re-
view by the intervenors.
3
STATUTES AND RULES INVOLVED
The principal statutes and rules involved herein concern
the contents of a petition for review of an agency order
under the Hobbs Act,! and the status of an intervenor
who was a party to the agency proceeding.
28 U.S.C. 2344:
On the entry of a final order reviewable under
this chapter, the agency shall promptly give no-
tice thereof by service or publication in accord-
ance with its rules. Any party aggrieved by the
final order may, within 60 days after its entry,
file a petition to review the order in the court
of appeals wherein venue lies. The action shall
be against the United States. The petition shall
contain a concise statement of —
(1) the nature of the proceedings as to
which review is sought;
(2) the facts on which venue is based;
(3) the grounds on which relief is sought;
and
(4) the relief prayed.
The petitioner shall attach to the petition, as ex-
hibits, copies of the order, report, or decision of
the agency. The clerk shall serve a true copy of
the petition on the agency and on the Attorney
General by registered mail, with request for a re-
turn receipt.
1 28 US.C. 2341-51.
4
Rule 15, Federal Rules of Appellant Procedure:
(a) PETITION FOR REVIEW OF ORDER;
JOINT PETITION. Review of an order of an ad-
ministrative agency, board, commission or officer
(hereinafter, the term “agency” shall include agency,
board, commission or officer) shall be obtained by
filing with the clerk of a court of appeals which
is authorized to review such order, within the
time prescribed by law, a petition to enjoin, set
aside, suspend, modify or otherwise review, or a
notice of appeal, whichever form is indicated by
the applicable statute (hereinafter, the term “‘pe-
tition for review” shall include a petition to en-
join, set aside, suspend, modify or otherwise re-
view, or a notice of appeal). The petition shall
specify the parties seeking review and shall desig-
nate the respondent and the order or part there-
of to be reviewed. Form 3 in the Appendix of
Forms is a suggested form a petition for review.
In each case the agency shall be named respond-
ent. The United States shall also be deemed a
respondent if so required by statute, even though
not so designated in the petition. If two or
more persons are entitled to petition the same
court for review of the same order and their in-
terests are such as to make joinder practicable,
they may file a joint petition for review and may
thereafter proceed as a single petitioner.
(4) INTERVENTION. Unless an applicable stat-
ute provides a different method of intervention,
a person who desires to intervene in a proceeding
under this rule shall serve upon all parties to the
5
proceeding and file with the clerk of the court of
appeals a motion for leave to intervene. The mo-
tion shall contain a concise statement of the in-
terest of the moving party and the grounds upon
which intervention is sought. A motion for leave
to intervene or other notice of intervention author-
ized by an applicable statute shall be filed within
30 days of the date on which the petition for re-
view is filed.
28 U.S.C. 2348:
The Attorney General is responsible for and has
control of the interests of the Government in all
court proceedings under this chapter. The agency,
and any party in interest in the proceeding be-
fore the agency whose interests will be affected if
an order of the agency is or is not enjoined, set
aside, or suspended, mav appear as parties there-
to of their own motion and as of right, and be
represented by counsel in any proceeding to re-
view the order. Communities, associations, corpo-
rations, firms, and individuals, whose interests are
affected by the order of the agency, may inter-
vene in any proceeding to review the order. The
Attorney General may not dispose of or discon-
tinue the proceeding to review over the objection
of any party or intervenor, but any intervenor
may prosecute, defend, or continue the proceed-
ing unaffected by the action or inaction of the
Attorney General.
28 U.S.C. 2072:
The Supreme Court shall have the power to pre-
scribe by general rules, the forms of process, writs,
6
pleadings, and motions, and the practice and pro-
cedure of the district courts and courts of appeals
of the United States in civil actions, including ad-
miralty and maritime cases, and appeals therein,
and the practice and procedure in proceedings for
the review by the courts of appeals of decisions
of the Tax Court of the United States and for the
judicial review or enforcement of orders of admin-
istrative agencies, boards, commissions, and offi-
cers.
All laws in conflict with such rules shall be of
no further force or effect after such rules have
taken effect... .
STATEMENT
This proceeding to review a report and order of the In-
terstate Commerce Commission (“‘I.C.C.”’) was dismissed
by the Court of Appeals without reaching the merits, and
without filing the agency record with the Court. No. 76-
2153, Corning Glass Works and Thatcher Glass Manufac-
turing Company v. Interstate Commerce Commission and
United States of America. The dismissal of the proceed-
ing was over the vigorous objection by these intervening
petitioners in the review proceeding, namely, Common-
wealth of Pennsylvania and Pennsylvania Public Utility
Commission (hereinafter, “‘Pennsylvania’’).
As a result of the dismissal of this proceeding, the
United States of America now urges the court below, in
Pennsylvania’s subsequently-filed independent petition for
review, that Pennsylvania is barred from challenging the
7
1.C.C.’s decision because the 60-day period for instituting
judicial review has expired.”
The proceeding below (No. 76-2153) was instituted di-
rectly in the U.S. Court of Appeals under the Hobbs Act
by two shippers’ using the Trailer-on-Flat-Car (“TOFC”)
ramp at Elmira, N.Y., to review the October 29, 1976 re-
port and order issued by the 3-member Division 2 of the
L.C.C. (App. 9a-58a). The I.C.C.’s determination was ren-
dered in a tariff suspension proceeding, where an initial
decision by the hearing officer had been omitted due to
the 7-month statutory suspension period.* (App. 11a).
In its report and order, Division 2 allowed Consolidated
Rail Corporation (““ConRail’’) to terminate TOFC service
at 24 stations,> and denied permission for closing TOFC
service at 3 stations.®
Petitions for reconsideration of Division 2’s determina-
tion were submitted by a number of parties to the agency
proceeding.
> al
2 28 U.S.C. 2344. This position was taken by the United States
in its brief in No. 77-1147 (D.C. Cir.), Commonwealth of Pennsyl-
vania v. I.C.C., involving review of the same I.C.C. order. (App. 2a-
4a, 67a).
3 Corning Glass Works and Thatcher Glass Manufacturing Company.
4 49 US.C. 15(8). 90 Stat. 36-39.
5 Fort Wayne and South Bend, Indiana; Benton Harbor and Grand
Rapids, Michigan; Akron, Cleveland, and Lima, Ohio; Binghamton,
Buffalo, Elmira, Niagara Falls (EL), Niagara Falls (LV), Port Jervis,
Syracuse, and Utica, New York; Allentown, Harrisburg, Hershey,
Lancaster, Reading, Scranton, Sharon, Swedeland, and Wilkes-Barre,
Pennsylvania.
6 Huntington, Indiana; Marion, Ohio; and Kalamazoo, Michigan.
8
The petition for review in the U.S. Court of Appeals
was filed by the Elmira, N.Y. parties on December 27,
1976, 60 days after the October 28 order of Division 2,’
despite the pending petitions for reconsideration with the
agency. The Elmira, N.Y. petition for review was pre-
pared in the form called for by 28 U.S.C. 2344, and spe-
cifically so stated (App. 5a), rather than in the short-form
notice set forth by Rule 15(a) of the Federal Rules of
Appellate Procedure. (App. 5a-8a). The relief sought in
the petition for review was that the I.C.C.’s order be set
aside. The grounds on which the relief was sought was
that Division 2’s conclusion as to cancellation of TOFC
service at Elmira was invalid. (App. 7a).
Pennsylvania was allowed to intervene in the review
proceeding, as were ConRail and New York State Depart-
ment of Transportation. (App. la). Such intervention
by parties to the agency proceeding is by right. 28
U.S.C. 2348.
Thereafter, on February 2, 1977, the entire I.C.C. served
its report and order disposing of the petitions for recon-
sideration. (App. 59a-66a). The agency ruled that the pe-
titions for reconsideration were to be treated as “‘com-
plaints” against existing rates, rather than reconsideration
of a prior decision, in view of the amended section 15
(8)(a) of the Interstate Commerce Act. The I.C.C. found
the October 29 decision by Division 2 to have been ad-
ministratively final, and thus not subject to petitions for
reconsideration. (App. 59a-60a). This construction of sec-
tion 15(8)(a) was of first impression, coming as a surprise
7 The October 28 order was served October 29, 1976. (App. 9a),
so that the court filing was made on the 59th day after service. Cf.
Chem-Haulers, Inc. v. United States, 536 F.2d 610 (Sth Cir. 1976).
9
to the parties, including ConRail, who had filed and re-
sponded to petitions for reconsideration. The October
29 report and order constituted the first agency decision
in the proceeding.
On the merits, the February 2 report reversed the ear-
lier determination as to Elmira, N.Y., thus restoring TOFC
service at that point, but the I.CC. found that the peti-
tions as to stations in Pennsylvania and other states were
devoid of merit. (App. 60a).
Pennsylvania on February 3, 1977, instituted its own
petition for review of the I.C.C.’s October 29, 1976, and
February 2, 1977 reports and orders, and moved the court
for consolidation of the Elmira and Pennsylvania cases.
No. 77-1147, Commonwealth of Pennsylvania and Pennsyl-
vania Public Utility Commission v. Interstate Commerce
Commission and United States of America. Pennsylvania’s
petition, unlike that of the Elmira, N.Y. parties, was in
the “‘notice’”’ form mentioned in Rule 15(a) F.R.A.P., and
set forth in Form No. 3 to F.R.A.P. (App. 67a). Thus
in its petition for review, Pennsylvania did not set forth
grounds as to the unlawfulness of the I.C.C. decisions.
The Elmira, N.Y. parties and ConRail were allowed to inter-
vene in Pennsylvania’s case. (App. 4a). Pennsylvania wishes to
restore service at Reading and Sharon, Pa.
The Elmira parties thereupon moved to dismiss their
petition for review, on the ground that the relief they
were seeking had been granted by the subsequent agency
order. The I.C.C. and ConRail supported dismissal of the
case, and also urged that the Pennsylvania’s motion for
consolidation be denied. The United States of America
took no position. The Pennsylvania parties strongly
8 28 U.S.C. 2348 would seem to prohibit the Attorney General
from participation with the 1.C.C. on this score. “The Attorney
(continued)
10
opposed dismissal, pointing out that their February 3,
1977 petition for review was filed more than 60 days
from service of the October 29 agency report and order,
such that a contention might be raised that their petition
for review was untimely.’
The Court of Appeals on April 1, 1977! dismissed the
Elmira, N.Y. petition for review, on the ground that the
only issue properly before the Court is the lawfulness of
the cancellation of service at Elmira. (App. la):
Upon consideration of petitioners’ motion to dis-
miss, respondents’ supporting memorandum and
intervenors’ opposition, and it appearing that the
only issue properly before the Court is the law-
fulness of the cancellation of service at Elmira,
New York, it is
ORDERED by the Court that the motion to dis-
miss is granted.
With respect to the motion by Pennsylvania to conso-
lidate the two proceedings, the Court of Appeals on the
same day dismissed the motion to consolidate as moot in
light of the dismissal of No. 76-2153. (App. 4a).
8 (continued)
General may not dispose of or discontinue the proceeding to re-
view over the objection of any party or intervenor, but any inter-
venor may prosecute, defend, or continue the proceeding unaffect-
ed by the action or inaction of the Attorney General.”
9 Such fears were well founded. The U.S. Department of Jus-
tice now urges such dismissal on the grounds of timeliness.
10 Bazelon, Chief Judge and Wright, Circuit Judge.
1]
Pennsylvania’s petition for rehearing of these two orders
was denied on April 28, 1977. (App. 2a-3a).
REASONS FOR GRANTING THE WRIT
This proceeding presents important federal jurisdictional
and procedural issues which warrant review by this Court.
Hickman vy. Taylor, 329 U.S. 495 (1947); Upshaw v. United
States, 335 U.S. 410 (1948).
The Court of Appeals held that Pennsylvania, by way of
intervention in a direct review proceeding brought by ship-
pers at Elmira, N.Y. to set aside an I.C.C. order, could not
challenge issues other than the TOFC ramp at Elmira, N.Y.,
even though a single order was issued for 27 stations, and
despite the fact that Pennsylvania was granted intervention
as a matter of right as it was a party to the agency pro-
ceeding. 28 U.S.C. 2348. Thus the case was dismissed,
over objection, when the Elmira parties withdrew their op-
position to the agency order.
I. THE DECISION BELOW CONFLICTS WITH THE
“NOTICE” FORM OF PETITION FOR REVIEW
PRESCRIBED BY THIS COURT.
The Supreme Court promulgated the Federal Rules of
Appellate Procedure to become effective July 1, 1968.
Rules of Appellate Procedure, 389 U.S. 1063 (1968). Title
IV pertains to judicial review of administrative agencies,
boards, commissions and officers. These rules replaced in-
dividual Circuit rules which were often in conflict. More
important, 28 U.S.C. 2072 provides that all laws in con-
flict with such rules shall be of no further force or ef-
fect.
12
Rule 15(a) governs the contents of a Petition for Re-
view of an I.C.C. order.'! Only the parties seeking review,
respondent, and the agency order need be specified. Rule
15(a) reads in part:
The petition shall specify the parties seeking re-
view and shall designate the respondent and the
order or part thereof to be reviewed. Form 3
in the Appendix of Forms is a suggested form of
a petition for review.
The Elmira, N.Y. parties filed a lengthy petition for re-
view, indicating the “grounds upon which relief is sought”,
and other specifications as set forth in 28 U.S.C 2344.
(App. 7a). However, the Advisory Committee’s Note in
Rules of Appellate Procedure, 43 F.R.D. 61, 137 states that
Rule 15(a) supersedes the requirements of 28 U.S.C. 2344:
The proposed rule supersedes 28 U.S.C. 2344 and
other statutory provisions prescribing the form of
the petition for review and permits review to be
initiated by the filing of a simple petition similar
in form to the notice of appeal used in appeals
from judgments of district courts. The more ela-
borate form of petition for review now required
is rarely useful either to the litigants or to the
courts. There is no effective, reasonable way of
obliging petitioners to come to the real issues be-
fore those issues are formulated in the briefs.
If the Elmira, N.Y. parties had filed the simple “notice”
form of petition for review, there would have been no
11 pL. 93-584 (Jan. 2, 1975) changed the mode of review for
1.C.C. decisions from three-judge district courts to the U.S. Courts
of Appeals. 28 U.S.C. 2341-51.
13
basis for the Court below to have confined the scope of
the proceeding to the TOFC service at Elmira, N.Y. In
going beyond the three elements specified in Rule 15(a),
F.R.A.P., the Court of Appeals considered matters no
longer applicable to the requirements for a petition for
review.'2, Once Elmira, N.Y. petitioned for review of the
entire order, rather than merely a part thereof, the peti-
tion for review gave the court jurisdiction over the entire
order. It is immaterial to the scope of the proceeding
that the allegations of unlawfulness specified in the peti-
tion ran only against conclusions of the agency report
bearing upon TOFC service at Elmira, N.Y.
The real effect of the decision below will be to encour-
age the use of the outmoded and superseded form of re-
view contained in 28 U.S.C. 2344, which will allow a pe-
titioner to limit the scope of agency review against any
intervenors, and force such intervenors to file their own
petition for review. The number of “proceedings” may
show a busy Court of Appeals, but we wonder whether
such a sea of paperwork is in the interest of sound judi-
cial administration.
The Court below erred in holding that Elmira’s _peti-
tion for review only properly brings the lawfulness of the
cancellation of service at Elmira, N.Y. before the Court.
When Elmira specified the entire order for review, the sub-
ject of judicial review became that entire order, rather
than any particular ground for setting aside the order.
12 Pennsylvania’s subsequent petition for review was in the no-
tice form. (App. 67a).
14
ll. |. THE DECISION BELOW IS INCONSISTENT WITH
ALLOWING AN INTERVENOR TO RAISE ADDI-
TIONAL CLAIMS IN JUDICIAL REVIEW OF AN
AGENCY DECISION.
Even if the petition for review filed by the Elmira, N.Y.
parties is construed to embrace review of oniy that part
of the IL.C.C.’s order discontinuing the proceeding with
respect to the proposed cancellation of TOFC service at
Elmira, N.Y., the Court of Appeals erred in not allowing
Pennsylvania to broaden the proceeding so as to include
the proposed cancellation of TOFC service at Reading and
Sharon, Pa.
The Federal Rules of Appellate Procedure do not con-
template intervention in the ordinary appeal from a dis-
trict court. However, various statutes provide for review
of agency orders directly in the Court of Appeals, and
Rule 15(d), F.R.A.P. governs intervention.
The trend of decisions is not to restrict an intervenor
to the original claims of the petitioner. Spangler v. United
States, 415 F.2d 1242, 1245 (9th Cir. 1969), vac. other
grd’s sub nom. Pasadena City Bd. of Education v. Spangler,
427 U.S. 424, 427 (1976); Stewart-Warner Corp. v. West-
inghouse Electric Corp., 325 F.2d 822, 827 (2d Cir. 1963);
New York Central Railroad Company v. United States, 200
F. Supp. 944, 948-50 (S.D.N.Y. 1961).
This Court in Auto Workers v. Scofield, 382 U.S. 205
(1965), permitted a successful charging party to intervene
in a Labor Board review proceeding. The Court analogized
13 tn review of 1.C.C. proceedings, intervention is authorized as
a matter of right for any party to the agency proceeding. 28 U.S.C.
2323, 2348.
15
the intervention provisions of the Hobbs Act with those
in the district court under Rule 24, Federal Rules of Civil
Procedure, and stated that the policies underlying inter-
vention in the district court may be applicable in appel-
late courts. 382 U.S. at 280. See also: United States
v. Bursey, 515 F.2d 1228 (5th Cir. 1975). An intervenor
in a district court action is not today subordinate to the
claims of a party on whose behalf intervention is made.
4 Moore Fed. P. (2d Ed.) 24.16-17.
A recent court decision, in reviewing an I.C.C. order,
allowed an intervenor to broaden the scope of the petition
for review. Widing Transp., Inc. v. LC.C., 545 F.2d 654,
656 (9th Cir. 1976); in another I.C.C. review proceeding
an intervening defendant was allowed to raise defenses
broader than made by respondent I.C.C. Chem-Haulers,
Inc. v. United States, 536 F.2d 610 (Sth Cir. 1976).
This Court in the Penn-Central Merger Cases, 389 U.S.
486 (1968), sustained the requirement that persons broadly
attacking the Penn-Central merger and N&W Inclusion cases
should intervene in limited review proceedings or suffer dis-
missal with prejudice. Such parties were not allowed to
go forward with independent review actions of their own
but were dismissed with prejudice for failure to participate
in existing limited review proceedings by way of interven-
tion. Penn-Central Merger Cases, 389 U.S. at 504-7, 541-
48. See also: Borough of Moosic v. United States, 272
F. Supp. 513, 516 (M.D. Pa. 1967); Erie-Lackawanna Rail-
road Company v. United States, 279 F. Supp. 303 (S.D.
N.Y. 1967); Delaware and Hudson Railroad Corp. v. United
States, 279 F. Supp. 311 (S.D.N.Y. 1967); Erie Lackawanna
Railroad Company v. United States, 279 F. Supp. 313,
316 (S.D.N.Y. 1967).
16
On the other hand, the Court of Appeals for the Dis-
trict of Columbia Circuit in another proceeding did not
permit an intervenor to broaden judicial review of a Civil
Aeronautics Board order. Rather, the Court of Appeals
allowed the intervenor to file a petition for review out of
time. Air Line Pilots Association International v. C.A.B.,
514 F.2d 834, 835-36 (D.C. Cir. 1975). However, the
authority of the court to extend the period for instituting
judicial review of C.A.B. decisions, 49 U.S.C. 1486(2), does
not have a counterpart in judicial review of I.C.C. decisions.
The Supreme Court should settle the question of an in-
tervenor’s status in judicial review under the Hobbs Act.
The matter is of pressing importance.
CONCLUSION
For these reasons, a writ of certiorari should issue to re-
view the judgment of the United States Court of Appeals
for the District of Columbia Circuit in this case.
Respectfully submitted,
ROBERT P. KANE, Attorney General
Capitol Annex
Harrisburg, Pa. 17120
BARNETT SATINSKY, Chief Counsel
JOHN B. WILSON, Asst. Counsel
CANDACE N. KREIGER, Asst. Counsel
Penna. Public Utility Commission
P.O. Box 3265
Harrisburg, Pa. 17120
GORDON P. MacDOUGALL, Spec.
Asst. Counsel
1100 17th Street, N.W.
Washington, D.C. 20036
SEPTEMBER 1977 Attorneys for Petitioners
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed April 1, 1977]
No. 76-2153 September Term, 1976
Corning Glass Works and Thatcher
Glass Manufacturing Company,
Petitioners
v.
Interstate Commerce Commission and
United States of America,
Respondents
Consolidated Rail Corporation
New York State Department of Transportation
Commonwealth of Pennsylvania and Pennsylvania
Public Utility Commission
Before: Bazelon, Chief Judge and Wright, Circuit Judge
ORDER
Upon consideration of petitioners’ motion to dismiss, re-
spondents’ supporting memorandum and intervenors’ opposi-
tion, and it appearing that the only issue properly before
the Court is the lawfulness of the cancellation of service at
Emira, New York, it is
ORDERED by the Court that the motion to dismiss is
granted.
Per Curiam
2a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed April 28, 1977]
No. 76-2153 September Term, 1976
Corning Glass Works and Thatcher
Glass Manufacturing Company,
Petitioners,
v.
Interstate Commerce Commission and
United States of America,
Respondents
Consolidated Rail Corporation
New York State Department of Transportation
Commonwealth of Pennsylvania and Pennsylvania
Public Utility Commission
No. 77-1147
Commonwealth of Pennsylvania and
Pennsylvania Public Utility Commission,
Petitioners
v.
Interstate Commerce Commission and
United States of America,
Respondents
Consolidated Rail Corporation
Corning Glass Works & Thatcher Glass Manf. Co.
Before: Bazelon, Chief Judge and Wright, Circuit Judge
——— —
3a
ORDER
On consideration of petitioners’ petition for rehearing, it is
ORDERED by the Court that the aforesaid petition is denied.
Per Curiam
4a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed April 1, 1977]
No. 77-1147 September Term, 1976
Commonwealth of Pennsylvania and
Pennsylvania Public Utility Commission,
Petitioners
v.
Interstate Commerce Commission and
United States of America,
Respondents
Consolidated Rail Corporation
Corning Glass Works & Thatcher Glass Manf. Co.
Before: Bazelon, Chief Judge and Wright, Circuit Judge
ORDER
Upon consideration of petitioners’ motion to consolidate
their petition with No. 76-2153, and in light of the dismis-
sal of No. 76-2153, it is
ORDERED by the Court that the motion to consolidate
is dismissed as moot.
Per Curiam
Sa
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
[Filed December 27, 1976]
CORNING GLASS WORKS
Corning, New York 14830
and
THATCHER GLASS MANUFACTURING COMPANY
Post Office Box 265
Elmira, New York 14902,
Petitioners, No. 76-2153
v.
THE UNITED STATES OF AMERICA
and
INTERSTATE COMMERCE COMMISSION,
Respondents.
JOINT PETITION FOR REVIEW
Come now Corning Glass Works and Thatcher Glass Manu-
facturing Company, hereinafter referred to as Petitioners, and
pursuant to Section 2344 of Title 28 of the United States
Code, hereby petition the Court to review the report and
order of the Interstate Commerce Commission in Investiga-
tion and Suspension Docket No. 9108, Cancellation of TOFC
Service, Consolidated Rail Corporation, entered on October
21, 1976, and served on October 29, 1976, a copy of which
is attached herto as Appendix A. In support thereof Peti-
tioners respectfully state as follows:
6a
In Item 2A of Supplement | to Freight Tariff 1, Conso-
lidated Rail Corporation (ConRail) proposed not to adopt
any existing tariff provisions applying on trailer-on-flatcar
(TOFC) traffic moving from or to TOFC ramps located at
26 specified cities, including Elmira, New York. The effect
of that proposal, as pertinent, was to cancel the TOFC serv-
ice formerly available to and utilized by Petitioners at EI-
mira. The Interstate Commerce Commission (Commission)
suspended that proposal and ordered an investigation into
its lawfulness. Petitioners are parties of record and partici-
pated in that investigation proceeding.
In its report and order served on October 29, 1976, the
Commission, Division 2, with Commissioner O’Neal dissent-
ing, found that the proposed cancellation of TOFC rates at
Kalamazoo, Michigan, Huntington, Indiana, and Marion,
Ohio, was not shown to be just and reasonable, but that
the proposed cancellation at the other 24 designated termi-
nals, including the ramp at Elmira, New York, was just and
reasonable. Commissioner O’Neal, dissenting in part, found
that the opposition to the cancellation of TOFC rates and
services at Elmira, New York and Sharon, Pennsylvania, war-
ranted their continuation as ConRail obligations. Division
2 ordered that ConRail cancel the suspended schedules on
or before November 20, 1976, without prejudice to the fil-
ing of new schedules in conformity with its findings. Con-
Rail has complied with said order, and TOFC service at El-
mira has ceased.
Petitioners filed separate petitions with the Commission
seeking reconsideration of Division 2’s above report and or-
der on or about November 17, 1976. However, under Sec-
tion 303(h) of the Railroad Revitalization and Regulatory
Reform Act of 1976, Public Law 94-210, which amends
Section 17 of the Interstate Commerce Act, 49 U.S.C. § 17,
7a
Division 2’s report and order was administratively final on
the date served, and is now ripe for judicial review. That
section provides as follows:
Notwithstanding any other provision of this Act,
any decision, order, or requirement of the Commis-
sion, or of a duly designated division thereof, shall
be final on the date on which it is served. A civil
action to enforce, enjoin, suspend, or set aside
such a decision, order, or requirement, in whole
or in part, may be brought after such date in a
court of the United States pursuant to the provi-
sions of law which are applicable to suits to en-
force, enjoin, suspend, or set aside orders of the
Commission.
II
Section 2343 of Title 28 of the United States Code gives
the United States Court of Appeals for the District of Co-
lumbia Circuit venue to review orders of the Interstate
Commerce Commission.
The Commission’s decision is unlawful for the following
reasons:
(1) Its conclusion that the cancellation of TOFC service
at Elmira, New York, was shown to be just and reasonable
is not supported by substantial evidence, and is arbitrary,
capricious and without a rational foundation.
(2) Its conclusion regarding the cancellation of TOFC
service at Elmira, New York, is arbitrary, capricious and
not otherwise in accordance with the law in that the Com-
mission fails to apply the very standards it formulated to
test the lawfulness of the assailed tariff proposal.
Ra
IV
Wherefore, Petitioners respectfully pray that this Court
set aside, enjoin and vacate the order of the Interstate Com-
merce Commission in Investigation and Suspension Docket
No. 9108, Cancellation of TOFC Service, Consolidated Rail
Corporation, and grant such other and further relief as it
deems necessary and proper.
Respectfully submitted,
/s/ John R. Bagileo
John R. Bagileo
918 - 16th Street, N.W.
Washington, D.C. 20006
Phone: 202-785-3700
Of Counsel: Counsel for Petitioners
Rea, Cross & Auchincloss
700 World Center Building
918 - 16th Street, N.W.
Washington, D.C. 20006
Dated: December 27, 1976
9a
APPENDIX E SERVICE DATE
OCT 29 1976
INTERSTATE COMMERCE COMMISSION
INVESTIGATION AND SUSPENSION
DOCKET NO. 9108
CANCELLATION OF TOFC SERVICE,
CONSOLIDATED RAIL CORPORATION
Decided October 28, 1976
1. Proposed cancellation of TOFC rates at 24 designated
terminals in Indiana, Michigan, Ohio, New York, and
Pennsylvania found just and reasonable, and otherwise
lawful.
2. Proposed cancellation of TOFC rates at Kalamazoo,
Mich., Huntington, Ind., ana Marion, Ohio, found not
shown to be just and reasonable.
3. Schedules ordered cancelled without prejudice to filing
of new schedules in conformity with findings herein.
Proceeding discontinued.
Richard J. Murphy, °>+ respondent.
Stephen Kalish, Daniel J. Sweeney, Barry Start, John R.
Bagileo, Edward J. Klann, Michael J. Seboria, G. Sanford
Wilkins, Richard H. Streeter, and Harry E. Andrews for
shipper protestants.
Candace N. Kreiger, Gordon P. MacDougall, Richard A. Li-
dinsky, Jr., Diane V. Delevett, John N. Shanks II, and
William A. Shapiro for State and Federal agencies.
Thomas P. Shearer for the United Transportation Union,
Pennsylvania State Legislative Board.
10a
REPORT AND ORDER OF THE COMMISSION
DIVISION 2, COMMISSIONERS HARDIN, O’NEAL,
AND CHRISTIAN
BY THE DIVISION:
This proceeding is an investigation into the lawfulness of
certain portions of a tariff adoption notice filed by the Con-
solidated Rail Corporation (ConRail). The notice, designated
formally as Consolidated Rail Corporation Tariff ICC No. 1,
is the instrument by which ConRail has adopted the perti-
nent tariff routes, rates, and regulations of its predecessor
railroads to govern its operations commencing on April 1,
1976, pursuant to the Regional Rail Reorganization Act of
1973 (RRRA), 45 U.S.C. 701. Tariff No. 1 was designed
to conform generally to the operations and properties struc-
tured for ConRail operation in a plan issued by the United
States Railway Association (USRA) pursuant to the RRRA.
That plan, designated as the “Final System Plan”, has been
approved by the Congress.
As pertinent here, the ConRail adoption tariff stated a
number of specific exceptions from the tariff provisions be-
ing adopted. By one of these exceptions, ConRail did not
adopt trailer-on-flatcar (TOFC) rates to or from 31 desig-
nated TOFC terminals formerly operated by the Penn Cen-
tral Transportation Company, the Erie Lackawanna Railroad
Company, the Reading Railway System, and the Lehigh Val-
ley Railroad in the States of Indiana, Michigan, Ohio, New
York, and Pennsylvania.
The effect of this exemption was to cancel the provisions
of TOFC service at the designated TOFC terminals. Upon
consideration of numerous protests against the proposed can-
cellations, the Commission, Division 2, by an order served
March 31, 1976, suspended the operation of the tariff to
lla
the extent it affected 27 of the 31 TOFC terminals. By
the terms of the Commission order, the suspension is effec-
tive to, and including October 31, 1976, unless otherwise
ordered by the Commission.
A public hearing concerning this proposal was conducted
for the Commission by an Administrative Law Judge on
May 26 and 27, 1976. Post-hearing briefs were filed on
July 15, 1976, by respondent, and by the Commonwealth
of Pennsylvania and its Public Utility Commission; the Of-
fice of Public Counsel of the Interstate Commerce Commis-
sion; the Kalamazoo County Chamber of Commerce, Brown
Company, Clark Equipment Company, Eaton Corporation,
Kellogg Company, Simpson Lee Paper Company, and Up-
john Company, jointly; Maryland Port Administration; Cor-
ning Glass Works; and the Whirlpool Corporation. Due
and timely execution of our functions under the Interstate
Commerce Act imperatively requires omission of an initial
decision by the Administrative Law Judge.
Background and Jurisdiction
ConRail came into existence pursuant to the provisions
of the Regional Rail Reorganization Act of 1973. It began
its operations as a railroad on April 1, 1976. As pertinent
here, the 1973 legislation provided a special statutory basis
and procedure for establishment of a new corporate entity,
ConRail, to acquire and operate the railroad properties of
the then bankrup railroads of the Northeast and Midwest.
The Act provided for a complex planning process placing
specific responsibilities with the Department of Transporta-
tion, the Interstate Commerce Commission, and the United
States Railway Association, with a specific timetable for im-
plementation of the pertinent plans. At the final stage of
that planning process, the USRA issued a “Final System
i2a
Plan” on July 26, 1975. A Supplement to the Final Sys-
tem Plan was issued by the USRA on September 18, 1975.
As provided in the RRRA, the final system plan issued by
USRA was deemed approved by the Congress in the absence
of Congressional action to disapprove the plan within the
prescribed time period.
Section 301(b) of RRRA provides that ConRail shall be
deemed a common carrier by railroad under section 1(3) of
the Interstate Commerce Act, subject to the provisions of
the Interstate Commerce Act. On the other hand, section
601(b) of the RRRA provides that the provisions of the
Interstate Commerce Act are inapplicable to those actions
taken under the RRRA itself in the process of formulating
aid implementing the Final System Plan.
Although it previously had contended that this Commis-
sion lacked statutory jurisdiction to suspend or adjudicate
the proposed changes in TOFC services, as provided in its
Tariff No. 1, ConRail on brief specifically concedes that
jurisdiction and it recognizes that the provisions of the In-
terstate Commerce Act govern the proposals in issue. Pro-
testant parties and the RSPO argue strongly on brief that
the Commission has jurisdiction to consider the merits of
the ConRail proposal, and that the Commission should exer-
cise that jurisdiction. The participation of RSPO was di-
rected solely to that issue. In the light of the fact that
ConRail now concedes jurisdiction, there is no necessity for
an extended discussion of that question, and it will suffice
here to find that ICC jurisdiction does lie to consider the
merits of the matters in issue in this proceeding.
The ConRail Justification
ConRail handles more TOFC traffic than any other rail-
road in the country, with its traffic representing approxi-
l3a
mately 40 percent of the national TOFC market. In the
East, its TOFC operations comprise about 85 percent of
the TOFC market.
ConRail avers that it wants to compete aggressively for
TOFC traffic, and that specific management objectives in-
clude expansion of its TOFC business. It points out that
the USRA financial forecast of viability for ConRail in the
Final System Plan was predicated, among other things, on
a forecast of growth in its intermodal traffic. ConRail
management, however, believes that its present TOFC route
and terminal structure is too unwieldly and inefficient, and
that this structure should be shaped along the lines stated
in the USRA’S September 1975 Supplement to the Final
System Plan. In performing its piggyback services, ConRail
presently operates a total of 85 TOFC terminals, including
the 27 terminals in issue in this proceeding. Should the
present proposal become effective, its TOFC operations
would be performed through 36 “physical” and 22 “‘satel-
lite’ TOFC terminals. A “physical” terminal, in this con-
text, is one at which trailers are loaded directly onto flat-
cars at track sidings. Trailers accepted for TOFC transpor-
tation by ConRail at “satellite” terminals are moved by
ConRail over the highway to physical terminals for loading
onto piggyback trains.
The portion of the September 1975 Supplement to the
Final System Plan on which ConRail here relies for its con-
ceptual approach to the proposed reduction of TOFC termi-
nals states as follows:
“Route Structure. The proposed ConRail in-
termodal operating plan envisions a substantial re-
duction in route miles. The route structure would
be limited to major freight corridors with service
on additional routes provided by connecting con-
14a
ventional train services . . . . This plan would con-
centrate traffic flows over a core network, minimiz-
ing the route mileage that must be upgraded and
maintained for high-speed (60 m.p.h.) operations.
“The restructured system would continue direct
service to all major ConRail market areas. Increased
coordination with connecting railroads would im-
prove service to points outside the Region and
would lead to the development of an efficient in-
terregional intermodal network.
“The Association’s plan includes a number of
specific coordinations and intermodal market ex-
changes, including the following:
Market R: commendations
Elkhart, Ind. N&W to serve South Bend.
Ft. Wayne, Ind. N&W to serve.
Huntington, Ind. N&W to serve.
Lima, Ohio N&W to serve.
Louisville, Ky. ConRail to interchange
traffic to and from East
with L&N at Cincinnati;
L&N to handle all re-
maining traffic.
Kalamazoo, Mich. Chessie to service markets
from Benton Harbor
and Grand Rapids.
Cincinnati, Ohio ConRail to negotiate co-
ordinated terminal oper-
ations with the L&N and/
or Southern.
Wilkes-Barre, Pa. D&H establishing a terminal
in Yatesville to serve region.
lSa
New York-Washington Amtrak to provide all Rail-
way Post Office and
“head end” mail service.
“Terminals. ConRail would continue to operate 26
terminals and would serve 21 principal market areas
.... A total of 21 terminal facilities will be closed
or consolidated under the proposed operating plan,
as shown below.
Intermodal Terminals
Present Present Proposed Proposed
operator operator
Penn Central 35 23 ConRail
Lehigh Valley 4 l ConRail
Erie Lackawanna 19 13 Chessie!
CNJ 2 2 ConRail
Reading 8 8 Chessie
Total 68 47
| The Association’s estimate of intermodal terminals which Chessie
may wish to operate.” (FSP, Supplemental Report of September 18,
1975, pp. 38-39).
That Supplemental Report also provides:
“Incorporating Erie Lackawanna and Reading
intermodal traffic into Unified ConRail would
cause relatively few changes to the route and ter-
minal structure developed for the FSP recom-
mended system. Intermodal traffic of these two
roads accounted for approximately $40 million
in revenues in 1973 and involved 228,000 loaded
trailers (including some which are interchanged
with the Penn Central, Lehigh Valley and the
l6a
Central of New Jersey). The Association devel-
oped an operating plan that incorporated appro-
ximately 80 percent of this traffic. The same
general criteria were used in evaluating those
traffic flows recommended for retention, includ-
ing relative profitability, traffic balance and vol-
umes. These additional traffic flows could be ac-
commodated under Unified ConRail by incorpo-
rating two additional facilities — the Reading ter-
minal in Philadelphia and the Erie Lackawanna
terminal at Croxton, N.J. All other major traffic
generating points would be served from terminals
to be retained under the FSP recommended sys-
tem.” (p. 112)
In general, ConRail emphasizes that its TOFC business is
essentially service-sensitive, and that it must be free to shape
its TOFC operations to meet service competition of motor
carriers. It plans to center its TOFC service, therefore,
around the operation of dedicated intermodal trains, through
trains running directly between TOFC terminals, avoiding
yards and intermediate classifications, and avoiding use of
trains that stop off and set off cars at intermediate points.
Otherwise, ConRail believes, its TOFC operation would be
comparable with boxcar service, and unable to meet faster
highway competition. Thus, ConRail intends basically to
concentrate its TOFC services on operations between major
markets which can provide the high volumes of traffic to
justify through trains dedicated to TOFC service.
ConRail has been operating approximately 20 “TV” sym-
bol trains, or trailvan trains, the special through trains de-
dicated to TOFC service, daily in each direction, eastbound
and westbound, since taking over the operations of the bank-
rupt Northeastern railroads. Occasionally, when volumes jus-
17a
tify, additional sections of TV trains, or even additional spe-
cial trains, are added to the regular TV schedules. About
95 percent of ConRail’s TOFC traffic moves on the TV
symbol trains.
During calendar year 1975, the railroads now absorbed
into the ConRail structure handled a total of 627,694 re-
venue loaded trailers in TOFC service inbound to points on
their systems, and 604,711 revenue loaded trailers outbound.
The following table provides a breakdown of those totals
by carrier. It also shows total volumes handled by each
system at the terminals proposed to be closed pursuant to
the tariff in issue here. Omitted from the table are volumes
handled (a) at the 8 TOFC terminals located in those cities
where ConRail would continue to operate other TOFC ter-
minals, as discussed in detail below; and (b) at Huntington,
Ind., where ConRail has agreed to operate its TOFC termi-
nal pursuant to a contractual agreement with the State of
Indiana.
18a
Comparison of Revenue Loaded Trailers
(Inbound and Outbound)
At Affected Terminals with System
Year 1975
System Specified Terminals
Inboun Outbound Inbound Outbound
Penn Central 450,635 451,208 2,208 6,171!
Erie-Lackawanna 111,641 115,817 12,521 16,088?
Reading 15,771 8,566 812 1,488°
Lehigh Valley 36,530 20,058 749 3514
Central of New Jersey 13,117 9,062 - -
Totals 627,694 604,711 16,290 24,098
I Former Penn Cential Terminals Inbound Outbound
Benton Harbor, Mich. 16 507
Grand Rapids, Mich. 301 1,040
Kalamazoo, Mich. 789 2,462
Fort Wayne, Ind. 989 1 341
South Bend, Ind. 113 761
Totals 2,208 6,171
2 Former Erie-Lackawanna Terminals Inbound Outbound
Akron, Ohio 1,395 2,132
Binghamton, N.Y. 682 450
Elmira, N.Y. 423 975
Lima, Ohio 102 732
Marion, Ohio 3,232 3,927
Port Jervis, N.Y. 4,123 2,150
Scranton, Pa. 2,078 4,875
Sharon, Pa. 176 589
Utica, N.Y. 310 258
Totals 12,521 16,088
3 Former Reading Terminals Inbound Outbound
Reading, Pa. 444 891
Hershey, Pa. 25 135
Swedeland, Pa. 343 462
Totals 812 1,488
19a
4 Former Lehigh Valley Terminals Inbound Outbound
Wilkes Barre, Pa. 749 351
As this table demonstrates, the affected stations (those at which there
is not merely an elimination of duplication) handled but a small por-
tion of the TOFC traffic of the railroads whose lines are components
of ConRail.
ConRail has presented specific justifications for closing each
of the TOFC terminals in issue. Eight of those terminals
are located at “common points” where ConRail will con-
tinue to operate a TOFC terminal. The other proposed clos-
ings would mean the end of ConRail TOFC service in the
affected communities, although in several instances other rail-
roads would continue to operate TOFC facilities there.
A. Common point terminals. There are eight terminals
in this category, and ConRail emphasizes as to them that
their closings will not deprive any community of ConRail
TOFC service.
1. Buffalo, N.Y. The properties taken over by ConRail
at Buffalo include TOFC terminals formerly operated by the
Erie Lackawanna Railroad Company and the Penn Central
Transportation Company. ConRail proposes to discontinue
TOFC service at the Erie Lackawanna facility and to con-
tinue operations only at the Penn Central terminal. The
Penn Central ramp is approximately 1,000 feet from that
of the Erie Lackawanna, and the latter is located on pri-
vate property. The former Penn Central terminal has mul-
tiple dedicated intermodal train service, TV symbol trains,
available on a daily basis. ConRail’s preliminary investi-
gation showed average monthly volumes of the former Erie
Lackawanna terminal as approximately 100 per month in-
bound and outbound, with a 50 percent empty ratio.
20a
2. Niagara Falls, N.Y. There are two TOFC ramps at
this location which ConRail proposes to close, a terminal
formerly operated by the Erie Lackawanna (the traffic of
which has been moved by ConRail over the highway to the
physical ramp at Buffalo) and a physical ramp operated by
the former Lehigh Valley. A satellite TOFC terminal (Penn
Central) in the vicinity, at Suspension Bridge, will continue
to be operated by ConRail. All of the traffic of this area
will be handled over the ConRail physical ramp at Buffalo.
3. Syracuse, N.Y. The ConRail proposal involves clos-
ing of the former Erie Lackawanna TOFC terminal at Syra-
cuse. This terminal is located 5 miles from the former
Penn Central piggyback ramp, where there is ample capa-
city and service to handle the volumes formerly tendered
to the Erie Lackawanna ramp. That traffic av. raged ap-
proxiiiately 100 trailers per month, with twice as many
trailers inbound as outbound. Requiring Conitail to handle
piggyback traffic to or from eastern territory locations via
the Erie Lackawanna ramp at Syracuse would add 2 to 3
days transit time, compared with second-morning service
over the former Penn Central ramp, because that traffic
would be handled in regular mixed freight train service.
4. Cleveland, Ohio. The ConRail proposal here also is
to close the former Erie Lackawanna TOFC terminal, which
is located about 7 miles from the former Penn Central pig-
gyback ramp, which would be continued in operation. The
traffic volume formerly handled over the Erie Lackawanna
ramp averaged approximately 200 trailers per month, with
a high degree of empty return on the outbound shipments.
ConRail avers that there is ample capacity and service avail-
able at the former Penn Central ramp at Cleveland to handle
the former Erie Lackawanna volumes. Also, it states, transit
time from or to the Penn Central ramp will be substantially
2la
better in the dedicated intermodal trains to be serving that
ramp, than that available in the conventional freight train
service to be provided over the Erie Lackawanna trackage.
5. Allentown, Pa. The properties taken over by the Con-
Rail at Allentown included two ramps operated by the for-
mer Lehigh Valley Railroad and the Reading Company. It
is the ConRail proposal to continue to operate the Lehigh
Valley terminal and to close the Reading terminal, which is
located approximately 2 miles away. The volumes of the
former Reading Company at Allentown were approximately
45 trailers per month with a high empty return ratio, ap-
proximately twice as many outbound as inbound shipments.
6. Harrisburg, Pa. The TOFC terminals of the Penn
Central and the Reading Company are located approximately
3 miles apart at Harrisburg. It is the proposal of ConRail
here to close the Reading terminal and to continue opera-
tions at the Penn Central terminal. Approximately 100
trailers per month were handled via the Reading terminal,
with a substantial imbalance of movements, approximately
one-third more outbound than inbound shipments.
7. Lancaster, Pa. The railroad properties taken over by
ConRail at Lancaster include TOFC ramps of the Penn Cen-
tral and the Reading Company, located about 3 miles apart.
ConRail proposes to continue to provide TOFC service from
the Penn Central ramp, operated as a satellite terminal, with
substituted highway service to and from Harrisburg for con-
nection there with intermodal trains. Direct rail service from
Lancaster would involve mixed freight train service to Enola,
Pa., and thence beyond also in regular train service.
B. Terminal closings at other communities.
1. Benton Harbor, Mich. The former Penn Central ramp
is presently operated as a satellite TOFC terminal, with sub-
22a
stituted highway service provided to and from Kalamazoo,
Mich., a round-trip distance of 98 miles. That operation in-
volves an average drayage cost of $78 per loaded trailer. Dur-
ing the first four months of 1976, there were 22 trailers in-
bound and 118 trailers outbound from this location, or a
five to one imbalance. During calendar year 1975 there were
only 16 trailers received inbound at Benton Harbor, com- (
pared with a total of 567 trailers being moved outbound
from that ramp. The Chesapeake & Ohio Railway system
maintains a “physical” TOFC ramp operation at Benton Har-
bor, and it is ConRail’s contention that the Benton Harbor
area’s piggyback market should be conceded to the Chessie
system, allowing it to absorb the former Penn Central TOFC
traffic there. The major user of ConRail TOFC service at
Benton Harbor is the Whirlpool Corporation, which has in-
dicated to ConRail a willingness to truck its own TOFC traf-
fic to and from the ConRail ramp at Elkhart, Ind., provided
ConRail would continue its TOFC operation at that point.
ConRail plans to do so, and believes that it can provide
much better service from Elkhart.
2. Grand Rapids, Mich. Prior to April 1, 1976, the for-
mer Penn Central terminal at Grand Rapids was operated
by that carrier as a satellite terminal, with its TOFC traf-
fic trucked to and from Kalamazoo, Mich., at a round-trip |
drayage cost of $78 per trailer. When the Kalamazoo oper-
ation was converted by ConRail into a satellite terminal, man-
agement decided to convert the Grand Rapids operation to |
a physical terminal, with its TOFC traffic handled in con-
ventional freight train service to Elkhart, Ind., for connec-
tion there with dedicated TOFC trains. The present TOFC
service from Grand Rapids to Boston, Mass., or New York,
N.Y., is scheduled for 5th morning arrival. During the first
4 months of 1976 Grand Rapids received a total of 41 trail-
ers in piggyback operations, and shipped 94 trailers outbound,
23a
greater than a 2 to 1 imbalance. In 1975 there were 301
trailers received at Grand Rapids in piggyback operations,
and 1,040 trailers shipped outbound. ConRail points out
that the Chessie system operates a piggyback ramp at Grand
Rapids from which continued piggyback service would be
available in this community.
3. Port Jervis, N.Y. The former Erie Lackawanna TOFC
terminal at Port Jervis which ConRail proposes to close was
used almost exclusively as a pickup and drop point for
United Parcel Service traffic moving to and from its New
England distribution centers. Prior to April 1, 1976, most
of the outbound traffic from Port Jervis had already been
diverted from this Erie Lackawanna location when the Penn
Central established a through dedicated TOFC train originat-
ing at Springfield, Mass. The eastbound traffic from Chicago
and other western origins formerly terminating at Port Jervis
has also been transferred to other ConRail piggyback service.
During 1975 a total of 4,123 inbound trailers were received
at the Port Jervis TOFC terminal, and a total of 2,150 trail-
ers were moved outbound.
4. Utica, N.Y. The TOFC ramp proposed to be closed
here by ConRail also is a former Erie Lackawanna piggyback
ramp. The average monthly volumes handled through this
TOFC terminal were approximately 25 trailers inbound and
outbound, with a like number of empty trailers. Utica is
approximately 49 miles east of Syracuse, the nearest Con-
Rail ramp which would remain in operation. If regular
freight trains are used to and from Utica for TOFC oper-
ations, the service provided would be fifth-morning deliveries
to Chicago and fourth-morning deliveries to Croxton, N.J.
ConRail avers that such service would not be competitive
with available motor carrier service. In comparison, TOFC
service offered by ConRail from Syracuse holds out second-
morning delivery to Chicago.
24a
5. Hershey, Pa. The former Reading Company TOFC
ramp proposed to be closed here is located approximately
14 miles from Harrisburg, where ConRail piggyback service
would continue to be offered. During 1975, a total of 25
trailers were received at the Hershey piggyback ramp, and
a total of 135 trailers were shipped outbound.
6. Swedeland, Pa. The former Reading Company ramp
proposed to be closed here is located on private property
of the Allen Wood Steel Company in the Philadelphia metro-
politan area. It is operated by the Upper Merion and Ply-
mouth Railroad, a wholly-owned subsidiary of the Allen
Wood Steel Company. ConRail’s justification for the pro-
posed closing here is that this operation involves low volume
(approximately 10 to 20 trailers per month inbound and 5
to 10 trailers per month outbound), traffic imbalance, and
the need for use of special equipment. Alternate dedicated
piggyback service will continue to be available from Con-
Rail in the Philadelphia area via the former ramps of the
Reading Company (at Erie Avenue) and the Penn Central
(at Aramingo).
7. Wilkes-Barre, Pa. The TOFC ramp proposed to be
closed here is one formerly operated by the Lehigh Valley,
which previously had handled up to 100 to 150 trailers
per month. However, ConRail avers that this traffic has
now been diverted to the Delaware and Hudson, which es-
tablished a new piggyback ramp in this area at Yatesville,
Pa., approximately 10 miles from the Wilkes-Barre ramp.
Since Wilkes-Barre is at the eastern portion of the ConRail
system, TOFC service is primarily of interest for movement
to the west. ConRail’s present service west from Wilkes-
Barre to Buffalo for delivery to the Norfolk and Western
there is fourth-day, which ConRail avers is not competitive
with the faster D&H schedule.
Cx,
25a
8. Fort Wayne, Ind. ConRail proposes to close the for-
mer Penn Central piggyback ramp at this location on the
ground that it has handled low volumes, is faced with sub-
stantial traffic imbalances, and shows an apparent lack of
potential for improving those factors, even with dedicated
intermodal train service. ConRail believes that the piggy-
back market here should be handled over the Norfolk and
Western TOFC ramp at Fort Wayne, located approximately
6 miles east of the ConRail ramp, as recommended in the
Final System Plan issued by the USRA. During the first
four months of 1976, average inbound traffic was 71 trail-
ers per month and average outbound traffic was 93 trailers
per month. During calendar year 1975, a total of 989
trailers were received inbound at this facility and a total of
1,341 were shipped outbound. A terminal profit and loss
statement for the Penn Centrai operation in 1975 indicates
that the Fort Wayne TOFC operation resulted in an average
loss of $1,833 monthly, and that the terminal operated at
a deficit 7 out of the 12 months of the year.
9. Huntington, Ind. The former Erie Lackawanna ter-
minal here has been reopened, and it is ConRail’s intention
to continue this operation under a rail service continuation
subsidy agreement with the Public Service Commission of
Indiana. The subsidy makes it possible for ConRail to oper-
ate this ramp, with regularly scheduled freight train service.
As long as the present agreement is in effect, ConRail has
no plan to discontinue TOFC service to and from the Hun-
tington ramp.
10. South Bend, Ind. The former Penn Central TOFC
ramp proposed to be closed by ConRail here is a satellite
operation, with its traffic being handled in substituted serv-
ice via the physical ramp at Elkhart, Ind., a distance of
17 miles. The expense for this highway movement, as
26a
absorbed by the railroad, is $56 per trailer. During the
first 4 months of 1976, the average monthly volumes at
South Bend were 71 trailers inbound and 111 trailers out-
bound, or a total monthly average of 182 loaded trailers.
During 1975, the South Bend terminal received 113 inbound
loaded trailers, and shipped 761 trailers outbound.
11. Kalamazoo, Mich. During 1975, the former Penn
Central TOFC terminal here which ConRail proposes to close
received 789 loaded trailers inbound, and shipped outbound
2,462 trailers. During the first four months of 1976 the
pertinent totals were 74 trailers inbound and 197 trailers
outbound per month, approximately a 3 for | traffic imbal-
ance. ConRail proposes to continue to provide TOFC serv-
ice at its ramp at Elkhart, Ind., where dedicated through
train piggyback service would be available on a regular basis.
Until February 16, 1976, Kalamazoo was a scheduled serv-
ice pvint on Penn Central’s symbol TOFC train, TV 16. Un-
til that time TOFC traffic to and from the satellite ramps
at Grand Rapids and Benton Harbor was moved over the
highway to and from the physical ramp at Kalamazoo.
When Penn Central discontinued TV 16 scheduled service
at Kalamazoo, because of traffic imbalances and declining
traffic volumes, ConRail avers Penn Central then substituted
Grand Rapids as a physical TOFC terminal, in connection
with its train GRI-5, operating in regular boxcar freight serv-
ice. Thereafter, Kalamazoo TOFC service has been provided
as a satellite operation, with trailers transferred by highway
to the Grand Rapids ramp.
ConRail advances its concept of “market consolidation”
for this area, contending that while traffic and operating
factors justify its closing of the Kalamazoo ramp, shippers
in this area will continue to have nearby TOFC service from
the Chessie System at Benton Harbor and Grand Rapids
—t
27a
(highway distances of about 55 miles from Kalamazoo), or
from ConRail at Elkhart, a distance of 56 miles.
12. Binghamton, N.Y. The former Erie Lackawanna
terminal here which ConRail proposes to close handled an
average monthly volume of 32 trailers inbound and 23 trail-
ers outbound during the first 4 months of 1976. During
calendar year 1975 the pertinent totals were 682 trailers in-
bound, and 450 trailers outbound. ConRail avers that the
Delaware and Hudson has initiated a strong sales and mar-
keting campaign seeking increased piggyback traffic on their
road, with new TOFC ramps available on the D&H at Bing-
hamton and Wilkes-Barre. ConRail maintains that low vol-
umes in this area do not justify its operation of a TOFC
ramp at Binghamton. Binghamton TOFC service now is
provided by ConRail as a satellite operation to and from
Scranton, a distance of 112 miles.
13. Elmira, N.Y. ConRail here proposes to close the
TOFC ramp of the former Erie Lackawanna at Elmira. This
facility handled an average of 19 trailerloads inbound and
62 trailerloads outbound monthly during the first four
months of 1976. For calendar year 1975 the Elmira ramp
received a total of 423 inbound trailers and shipped out-
bound a total of 975 trailers. Prior to April 1, 1976, Erie
Lackawanna handled this to and from Elmira. ConRail since
then has been operating the Elmira terminal as a satellite,
moving the piggyback traffic over the highway to the Scran-
ton, Pa., ramp, a round-trip distance of 254 miles. That
highway operation requires a 10-hour round trip at a cost
of $135 per trailer. On service to Chicago from Elmira,
the total elapsed time was expected to average 6 or 7 days
duration. ConRail does not believe that such service can
be competitive with available highway transportation. The
Binghamton TOFC ramp of the Delaware and Hudson rail-
28a
road is located some 55 miles from Elmira. ConRail holds
out second-morning ramp delivery in Chicago from Syracuse,
Buffalo, and Rochester in its dedicated TOFC train sched-
ules. These points are 91 miles, 144 miles, and 97 miles,
respectively, from Elmira.
14. Akron, Ohio. ConRail proposes to close the former
Erie Lackawanna TOFC ramp at Akron, located approxi-
mately 30 miles southeast of Cleveland, Ohio. During the
first four months of 1976, the average monthly traffic to-
taled 70 loads inbound and 156 loads outbound through
the Akron TOFC facility. During calendar year 1975, the
Akron terminal received 1,395 inbound trailers and shipped
outbound 2,132 trailers. ConRail avers that the present
freight train service between Akron and major freight ter-
minals throughout the system is at least twice as long as
service to and from the ConRail terminal at Cieveland,
which provides second-morning service through the system.
ConRail believes that the Cleveland TOFC terminal could
easily absorb the Akron business. ConRail also points out
that the Chessie system will continue to have a TOFC ramp
at Akron.
——
15. Lima, Ohio. During the first four months of 1976,
inbound traffic received at the Lima facility averaged 6
loads monthly, with outbound traffic totaling 24 loads per
month. During calendar year 1975 a total of 102 shipments
were received at the Lima TOFC facility and 732 trailers
were shipped outbound. Since taking over this former Erie
Lackawanna terminal, ConRail has been draying the piggy-
back traffic to the physical ramp at Marion, Ohio, a round-
trip distance of 112 miles with a drayage cost of $90 per
trailer. The Norfolk and Western railroad has a TOFC ramp
at Lima, which, ConRail contends, could easily absorb this
traffic.
29a
16. Marion, Ohio. The TOFC ramp facility proposed to
be closed at Marion is located on the former Erie Lackawanna
railroad. It was predominantly used as a drop and pickup
point for United Parcel Service traffic. During calendar year
1975, the Marion facility received a total of 3,232 trailers
inbound, and it shipped outbound 3,927 trailers in TOFC
service. Since that time, however, the United Parcel Service
traffic has been diverted to other ConRail ramps and to de-
dicated piggyback train service, and the traffic volumes at
Marion have been reduced substantially. ConRail points out
that elapsed time on present freight train service from Marion
to major markets on the ConRail system is approximately
twice as long as the through train piggyback service availa-
ble from the ConRail TOFC ramp at Columbus, located
some 46 miles from Marion.
17. Reading, Pa. ConRail proposes to close the former
Reading Company TOFC ramp at Reading. The revenue
handled at that ramp for the first four months of 1976 aver-
aged 19 loads inbound and 54 loads outbound monthly. Dur-
ing calendar year 1975, the Reading TOFC ramp facility re-
ceived 444 inbound trailers and shipped outbound 891 trail-
ers. ConRail believes that this traffic could be handled read-
ily at its piggyback facilities at Harrisburg or Allentown,
which are 51 and 40 miles respectively from Reading. The
service to and from ConRail system points over the Harris-
burg ramp would be performed at approximately one-half
the transit time presently required to and from the Reading
ramp.
18. Scranton, Pa. The TOFC ramp proposed to be
closed here is located on the trackage of the former Erie
Lackawanna Railroad. ConRail has operated this as a con-
solidating point serving several satellite stations, including
Elmira. United Parcel Service formerly used this ramp as a
30a
major drop point for traffic originating at Allentown, Pa.,
for westbound movement. ConRail has now provided United
Parcel with similar service at its Harrisburg ramp, and the
customer is no longer interested in using the Scranton fa-
cility. While some of the former Erie Lackawanna TOFC
operated through Scranton prior to April 1, 1976, ConRail
has not used this route since then for its piggyback trains,
deciding to use alternate trackage at Port Jervis. A second
major customer of the Erie Lackawanna at Scranton has ad-
vised ConRail that it will use the new piggbyack facility of
the D&H at Wilkes-Barre instead of the ConRail TOFC
ramp at Scranton.
19. Sharon, Pa. The TOFC terminal proposed to be
closed here also is located on the property of the former
Erie Lackawanna railroad. During the first four months of
1976, average monthly volume at Sharon was 11 trailers in-
bound and 35 trailers outbound. ConRail points out that
Sharon is located on the interstate highway system, and
that substantial motor carrier competition is available for
Sharon traffic. During 1975, a total of 176 trailers were
received at Sharon and 589 trailers were shipped outbound.
ConRail has alternate intermodal TOFC facilities available
at Cleveland or Pittsburgh, distances of 55 and 81 miles
respectively from Sharon. In addition, the Chessie system
operates a terminal at Youngstown, Ohio, approximately 14
miles from Sharon.
Cost Evidence. ConRail presented a cost computation in-
tended to show the fully allocated and variable costs per
trailer from and to selected ConRail system terminals in
Plan II% TOFC operations, the plan predominantly in use
at the ramps involved in this proceeding. The study also
shows the revenues generated per trailer pursuant to the
rates applicable on such movements. Eleven of the TOFC
3la
terminals here involved are represented in the study, which
shows movements to or from such key markets or gateways
as Baltimore, Md., Chicago, Ill., and Kearney, N.J. For ex-
ample, the study shows per trailer variable costs of $463.12,
and fully allocated costs of $546.45, on shipments from the
Kalamazoo ramp to Baltimore, compared with earned reve-
nue at the minimum weight levels of $398.50. On ship-
ments to Kearney the study shows $489.74 as the variable
costs, and $577.74 as the fully allocated cost, compared
with revenue of $446.50.
The study purports to show a pattern of non-compensa-
tiveness on the point-to-point movements which were costed,
but on examination we find the study to have no probative
value in deciding the issues presented in this proceeding.
The unit costs employed in that study are based prima-
rily on Penn Central’s transportation expenses for calendar
year 1974, by the use of Rail Form A. These unit costs
were then adjusted by wage and price indexes to April 1,
1976, levels. Certain factors, such as car costs and tie and
untie costs, are more current, but they too are Penn Cen-
tral costs.
While we recognize, of course, that ConRail, coming into
existence as an operating carrier only on April 1, itself had
no historical system cost data upon which to base its cost
calculations, the cost study gives no significant effect to
operating changes under the new management, nor any ra-
tionalization for why relevant adjustments are not incorpo-
rated into the study. It would be unrealistic to assume
that, contrary to the objectives of the Regional Rail Reor-
ganization Act, ConRail is not achieving significant new
economies in its operating expenses compared with those
of Penn Central in 1974.
32a
Moreover, in a proceeding of this nature and scope, a
more pertinent inquiry would be to ascertain the costs
which would be avoided upon reduction of the ConRail
services to the levels proposed. A pro forma revenue and
cost per trailer comparison for an arbitrarily selected group
of point-to-point movements, such as that prepared by Con-
Rail, fails to present a reliable, or even plausible, indicator
of the appropriate dollar and cents consequences of the
proposal.
EVIDENCE IN OPPOSITION TO
THE PROPOSAL
Testimony was presented on behalf of the New York
State Department of Transportation to the effect that the
State is greatly interested in preserving an adequate level of
transportation, including TOFC service, for the shipping pub-
lic at the affected communities in New York. It emphasizes
that the ICC should base its decision in this proceeding on
its impact for the total transportation system involved, not
merely on whether certain TOFC ramp closings were subject
to specific shipper protests. The State supports in principle
the concept that unnecessary and duplicative TOFC facilities
of ConRail should be consolidated.
Wheatland Tube Company of Philadelphia, Pa., manufac-
tures about 17,500 tons of steel pipe, conduit, and tubing,
in various sizes, at its plant in Mercer County, Pa., about
3 miles from the ConRail TOFC ramp at Sharon and about
14 miles northeast of Youngstown, Ohio. It has 17 cus-
tomers who call for TOFC shipments of its products in the
ConRail service area: four of these customers are in the
Chicago area and they received 560,240 pounds, or about
14 TOFC loads, in 1975; five of them are in the Boston,
Mass., area, and they received 1.3 million pounds, or about
33a
32 trailerloads in 1975; and eight are located in the New
York City area and they moved about 805,655 pounds, or
about 20 loads, in 1975. These shipments require flat-bed
trailers. In the past this shipper also used TOFC service
to customers in midwestern and southwestern States but
that traffic was diverted to the highway carriers, shipper
asserts, because of poor rail service, lack of equipment,
and a decision of the Erie Lackawanna, which had origin-
ated the traffic at Sharon, too keep its flat-bed trailers on
its own line.
The Wheatland distribution manager stated:
We have surveyed the alternate railroad piggy-
back ramps outside the Sharon area. Another
company in the Sharon area requiring flat-bed
equipment has advised it takes 6 to 7 days lead
time to receive a flat bed at the C&O in Youngs-
town. The C&O would not do us too much good,
irrespective of their lead time, as they have no
routes to our principal market in Boston. All
other piggyback ramps are too far to reach.
The Picture Tube Division of RCA operates the world’s
largest color picture tube manufacturing plant at Marion,
Ind. It expresses great concern about the ConRail proposal
to end TOFC service at Fort Wayne, Ind. RCA points out
that it already has been adversely affected by the ConRail
takeover in the Northeast, because of the resulting abandon-
ment of a branch line of the Erie Lackawanna between
Hammond, Ind., and Lima, Ohio.
During 1975, Erie Lackawanna operated a TOFC ramp
at Huntington, about 31 miles from the RCA plant. RCA
used the Huntington ramp almost exclusively for its 1975
export shipments. The Fort Wayne ramp is 52 miles from
34a
RCA’s Marion plant. The alternative ConRail TOFC service
for RCA if the Huntington and Fort Wayne ramps are closed
would be Indianapolis, about 75 miles distant. RCA has de-
clined io use a still available ConRail TOFC satellite ramp
at Marion, Ind., because service there was not considered
flexible or responsive. At rate levels current at the time
of the hearing for the volume then being shipped, the ad-
ditional cost to RCA for use of the Indianapolis ramps
would be approximately $50,000 annually. During the first
4 months of 1976, RCA shipped 373 TOFC trailer units.
Its inbound TOFC volume has been negligible.
Whirlpool Corporation of Benton Harbor presented testi-
mony in opposition to the proposed closing of the ConRail
ramp at Marion, Ohio. That plant shipped a total of 2,517
piggyback truckloads of its products from Marion over the
Norfolk and Western and the Erie Lackawanna during 1972;
1,080 trailerloads in 1973; 440 trailerloads in 1974; and
545 trailerloads in 1975. Until late 1974, the Norfolk and
Western was handling about 70 percent of that traffic but
between October 1974 and May 1975, Norfolk and Western
canceled its TOFC rates from Marion and, by 1975, Nor-
folk and Western had been handling only a minimal portion
of this traffic.
At the present time, Whirlpool pays a local cartage carrier
$12.19 to move its trailers between its plant and the Con-
Rail facility at Marion. If the Marion ramp is closed as Con-
Rail has proposed, the costs for Whirlpool to transport its
trailers between Marion and the ConRail ramp at Columbus,
Ohio would be 81 cents per mile at 100 miles round trip, or
$81 per trip. This would represent what Whirlpool refers to
as a peanlty of $68.81 per trailer. Assuming traffic volume
on the scale handled in 1975, Whirlpool would face an ad-
ditional cost of nearly $35,000 annually. It contends that
35a
such a consequence will place a serious financial strain on
its interstate rail traffic and that it would have to consider
initiation of private carriage. In addition, Whirlpool points
out that it is expanding its plant at Marion, which could
lead to an annual traffic volume of as many as 7,500 TOFC
trailers and 1,000 rail cars. Expansion to reach this objec-
tive at this plant. with an estimated building cost of $10
million, is now in progress.
Eaton Corporation of Cleveland, Ohio, a major diversi-
fied multinational manufacturer, produces truck transmis-
sions at its Kalamazoo plant, which employs 1,200 per-
sons and has an annual payroll in excess of $15.5 million.
The transmissions are marketed overseas as well as through-
out North America. It strongly opposes the ConRail ef-
fort to close the Kalamazoo TOFC ramp. The Kalamazoo
plant received 113 containers of imported steel castings
during the first quarter of 1976, and Eaton is confident
that this flow of traffic is on the increase, expecting the
total of inbound containers to reach 500 units for calen-
dar year 1976. Eaton’s immediate projections for the
movement of these transmissions in 1976 are of more
than 17 million pounds of traffic, generating TOFC freight
revenues for ConRail of about $171,750 at rate levels in
effect at the time of the hearing. Projections through
1977 are for an increase of about 45 percent in this traf-
fic volume, to a rate of about 720 trailers per year.
Eaton’ ‘use of container service from Baltimore to Ka-
lamazoo is not a recent development. The transmission
division here has been receiving uiported castings by this
form of transportation for over 3 years. In addition to
the inbound tonnage, the Kalamazoo plant also ships
transmissions and parts through the ports of Baltimore
and New York to various overseas destinations. In the
36a
past these outbound shipments have been moving to the
ports by motor common carriers. However, on April 28,
1976, this Kalamazoo facility forwarded its first TOFC
trailer container to the port of New York for overseas
movement. A second trailer was shipped on May 4, also
destined to move through the port of New York. The
rail transit time was satisfactory on these movements. If
the contents of the containers arrive at their foreign des-
tinations in good condition, Eaton is confident that the
use of TOFC service on export traffic can be greatly ex-
panded.
If the ConRail piggyback ramp at Kalamazoo is closed,
Eaton will probably divert the import Baltimore-Kalamazoo
steel castings traffic from the railroads to steel-hauler mo-
tor carriers. Eaton contends that such a development
would have a substantial negative impact on the environ-
ment from the standpoint of fuel consumption, air quality,
and noise. In this connection, Eaton presents calculations
based on current tonnage to show that conversion of the
TOFC movement to highway operations would result in
429 truckloads from Baltimore averaging 40,000 pounds
per load. Considering a mileage over the highway of 575
miles, and using an average of 5 miles per gallon of fuel
consumed, the new highway movement would require
49,335 gallons of fuel. With the projected increase in 1977
to 618 truckloads, the highway movement would require
consumption of 71,070 gallons of fuel.
Eaton also is concerned that its competitors in the area,
located primarily at Indianapolis, Ind., and Toledo, Ohio
will continue to have ready access to intermodal transpor-
tation facilities for their plants. Eaton contends that ter-
mination of the Kalamazoo TOFC service would subject
its Kalamazoo plant to prejudice or disadvantage when com-
peting with these other manufacturers.
37a
Upjohn Company is a major manufacturer of pharmaceu-
ticals, agricultural chemicals and plastics, with headquarters
in Kalamazoo. Upjohn employs some 6,200 employees in
the Kalamazoo area, which represents more than one-third
of its worldwide employment. The Kalamazoo pharmaceu-
tical plant serves the entire domestic market and 15 interna-
tional markets. The plant is a substantial user of TOFC serv-
ices at ConRail’s Kalamazoo ramp; during 1975 Upjohn
shipped outbound a total of 269 trailers and received 22
trailers inbound. It strongly protests the closing of this
facility.
Upjohn presented a detailed showing of the substantial
growth experienced in its use of TOFC service in the past
several years. In the light of this growth and the poten-
tail for accelerating that growth in the foreseeable future,
Upjohn argues that the closing of the Kalamazoo ramp would
be a hasty and unjustifiable move on the part of ConRail.
During the past 4 years, it points out, eastern railroads
made more aggressive efforts to attract piggyback traffic,
removing what Upjohn refers to as artificial rate barriers
and establishing transit times competitive with motor carrier
service, and have begun steadily to attract more TOFC traf-
fic. In 1975, for the first time in more than 30 years, Up-
john shipped greater tonnage by rail in TOFC service than
by motor carriers. In 1970, the Upjohn Kalamazoo faci-
lity shipped a total of 168 trailers in TOFC service. The
total grew to 293 trailers in 1971, 325 trailers in 1972,
320 trailers in 1973, 440 trailers in 1974, and 679 trailers
in 1975, representing a gross increase in annual volume of
312 percent in that 5-year period. The share of that vol-
ume moving to markets served over the ConRail absorbed
lines increased from 12 trailerloads in 1970 to 301 trailer-
loads in 1975. The Penn Central participation in that vol-
ume increased from 3 trailers in 1970 to 269 trailers in
1975.
38a
Upjohn presented a computation of the additional trans-
portation costs its 1975 traffic would have borne in the ab-
sence of TOFC service. Restating those costs in terms of
current costs for the various service alternatives available to
Upjohn at Kalamazoo, including use of TOFC ramps at Bat-
tle Creek, Chicago, Detroit, and Grand Rapids, as well as
direct motor common carrier service from Kalamazoo to
destination, Upjohn’s annualized costs for the 269 TOFC
shipments would be increased by $33,988, or 23.1 percent,
over transportation costs using the ConRail ramp. Upjohn
also points out that it actually paid Penn Central a total
of $109,218 for TOFC traffic in 1975. The Upjohn cost
studies did not contain a calculation of the costs of using
the Elkhart TOFC ramp, which ConRai! proposes to con-
tinue in operation, because that ramp was initially proposed
for closing and, secondly, because its drayage costs to Elk-
hart would range about $120 per trailer, nearly $100 more
than present drayage costs to the Kalamazoo ramp. The
net result would be to make the total transportation costs
for a TOFC shipment, on a movement to New York City
for example, almost identical to the direct motor common
carrier costs. The price for the TOFC shipment over Elk-
hart would be about $670, compared with about $690 by
motor common carrier direct. Upjohn believes that, con-
sidering the relative convenience and the complexities in-
volved, its most feasible choice — and its most probable
choice in selecting between these alternatives — would be
the use of motor common carrier service on such ship-
ments.
Upjohn also contends that closing the Kalamazoo TOFC
ramp would give its principal nearby competitors an un-
due preference since its competitors — at Elkhart, Indiana-
polis, and Chicago — would continue to have direct TOFC
service and rates from ConRail. On traffic to the Atlanta
39a
market, for example, Miles Laboratories in Elkhart would
have TOFC service available to it at a cost 32.3 percent
lower than the cost to Upjohn in using its most suitable
transportation alternative from Kalamazoo. Similarly, the
costs to Eli Lilly in Indianapolis on shipments to Atlanta
would be 38.4 percent less than Upjohn’s and similar,
though lower, cost differentials would apply on shipments
to other markets.
Brown Company, a major manufacturer of forest pro-
ducts, opposes closing of the Kalamazoo TOFC ramp.
About 25 percent of its outbound traffic from Kalamazoo
moves »y rail, the remainder by motor carrier. Of the rail
portion, TOFC shipments totaled 650 trailer loads, com-
pared with about 3,500 carlods during the year 1975. The
rail carload traffic consists mainly of heavy shipments of
large paper rolls, and this traffic is not likely to be diverted
to TOFC service. However, the motor carrier portion of
Brown's traffic could be diverted with the provision of com-
petitive rates and transit times on TOFC service.
In addition to its outbound TOFC movements, Brown
Company is hopeful also of developing a substantial in-
bound flow of waste paper products for recycling at the
Kalamazoo plant from such areas as North Carolina, Mary-
land, and New York. Brown has “practically doubled” its
consumption of such waste paper in the last year. This
type of movement would be suitable for TOFC handling.
No specific projection of possible tonnage was provided,
however.
Brown expects that the closing of the Kalamazoo ramp
will mean diversion of the TOFC traffic flow to motor car-
riers. On the other hand, Brown avers, substantially more
traffic than now is shipped in TOFC service could be di-
verted to TOFC operations if the railroad could work with
40a
shippers in the Kalamazoo area to negotiate the necessary
rate and service factors. Brown’s distribution manager ex-
pressed this view at the hearing:
Q.
POF ©
In your opinion, what would be necessary on the
part of ConRail for your company to develop ad-
ditional inbound TOFC tonnage to Kalamazoo?
In my opinion, we have to sit down with them
and they with us look at the individual pieces of
business to see what has to be done to make
them profitable and competitive for us. I think
this has to be done — well, it has to be done in
a business manner rather than looking at the rates
of the tariff. Just to say we have rates at this
point going into Kalamazoo or what could we do
about it. That is not the way to go about it.
The way to do it is to look at our business on
a very intensive basis, both inbound and outbound
to come up with a solution.
Is your company willing to sit down with ConRail
people to work toward developing additional in-
bound business of TOFC?
Yes, we attempted that prior to the suspension
of these rates.
What was the result of the effort?
We were not successful.
They would not sit down with you or discuss it?
What we wanted them to do was to change the
effective date on the suspension and allow the
rates to go in such as they did at Elkhart for a
trial period. Also, to sit down to see if we could
make it a viable business.
4la
We suggested we would look at our business care-
fully. We were prepared to change some of our
purchasing patterns to reflect use of movement of
piggyback service inbound. Those were some of
the things we did. In all fairness, they did come
to Kalamazoo after the rates had been suspended.
That was not a satisfactory arrangement.
* * *
Clark Equipment Company is a multinational manufacturer
of materials handling equipment, construction machinery,
auto accessories, and refrigeration equipment. During 1974
it shipped 287 trailers outbound over the TOFC ramp at
Kalamazoo, with that volume growing to 315 trailers in
1975. This traffic originates at its plant at Battle Creek,
about 25 miles east of Kalamazoo, and represents about 10
or 15 percent of Clark’s total outbound shipments from
Battle Creek. The remainder moves by highway carriers,
both private and for-hire. Inbound TOFC volume was 64
trailers in 1974 and 87 trailers in 1975. In addition, Clark
is in the process of determining whether to move the pro-
duction facilities to another plant, now located at La Porte,
Ind., to the Kalamazoo area, which would mean the addi-
tion of nearly 700 more outbound TOFC shipments an-
nually over the Kalamazoo ramp. That traffic now moves
over TOFC ramps of several railroads in the Chicago area.
The availability of a ConRail TOFC ramp at Kalamazoo is
an important consideration in Clark’s plan, but the final de-
cision had not been made at the time of the hearing.
Should the Kalamazoo ramp be closed, Clark will prob-
ably dray its eastbound TOFC traffic to Detroit for connec-
tion with ConRail’s TV Train 16 there, rather than use the
Elkhart ramp. Use of the Detroit ramps will cost Clark a
net additional $83 per trailer, considering comparative dray-
age charges and rail rates. Detroit is directly east of Battle
42a
Creek, and not significantly farther from Clark’s Battle
Creek facility than the Elkhart ramp. Clark has not been
fully satisfied with service from the Elkhart ramp on past
shipments from La Porte. It also believes that, in terms
of cost and service, use of the Detroit ramp would be pre-
ferable to use of either Benton Harbor or Grand Rapids
ramps on any eastbound traffic originating in the Kalama-
zoo area.
Kellogg Company of Battle Creek anticipates that it will
incur about $28,500 in additional transportation costs for
its outbound TOFC volume, should the Kalamazoo service
be terminated. Much of the outbound traffic moves to
Baltimore for export to Puerto Rico and Europe. The ad-
ded cost will be its net differential in using TOFC ramps at
Dctroit, the best alternative to the Kalamazoo service. It
would prefer that Kalamazoo be served with a direct dedi-
cated trailvan operation, but would continue to use it as a
satellite because of the lower transportation cost. It would
prefer not to haul its TOFC trailers westbound to Benton
Harbor, Grand Rapids, or Elkhart for the Baltimore-bound
traffic, since, among other things, that would be a circuit-
ous movement involving higher railroad rates. Kellogg did
not check the potential transit times, services, or costs of
using the Chessie system TOFC ramp at Lansing, Mich.,
about 50 miles northeast of Battle Creek. The 1975 TOFC
volume of the Kellogg Company through the Kalamazoo
ramp included 178 trailers outbound and 144 trailers in-
bound. While the inbound traffic will stay about the same,
outbound traffic is expected to grow to about 250 trailers
during 1976.
The Kalamazoo County Chamber of Commerce presented
a detailed statement of the economic situation of this area
and its hopes and efforts for continued economic growth.
43a
In particular, the business community here asks the Com-
mission to require ConRail to provide TOFC service at Ka-
lamazoo for at least a 12-month evaluation period. The
Chamber of Commerce is confident that the number of trail-
ers moving through the Kalamazoo TOFC ramp facility will
increase considerably during the next 2 years, and it is con-
cerned about the probable economic hardship in the area
Should the ConRail TOFC ramp be closed.
Kalamazoo County is located in southwestern Michigan
approximately midway between Chicago and Detroit which
are the third and fifth largest metropolitan areas in the na-
tion. Within a 300-mile radius of Kalamazoo County resides
a population of approximately 20 million people, and more
than 32,000 manufacturing firms. This represents nearly 10
percent of the nation’s population, and more than 13 per-
cent of the nation’s manufacturing firms. Within the boun-
daries of Kalamazoo County itself reside 2,200,800 persons
constituting more than 63,800 households with an effective
annual buying income of nearly $1 billion. The economic
base of Kalamazoo County includes more than 400 manu-
facturing and processing firms which provide jobs to more
than 25,000 employees, about 25 percent of the area’s to-
tal labor force. Present unemployment in the county is
about 8.3 percent, compared with a national average of 7.5
percent. Kalamazoo County has been making vigorous ef-
fects to encourage and assist development and expansion of
industrial growth in this area, and it is concerned that its
substantial progress in this direction in the past 2 years
ee if the ConRail TOFC facility at Kalamazoo
Corning Glass Company of Corning, N.Y., is a speciality
glass manufacturer producing items generally for use in the
horne or in science and industry. Its major products extend
44a
from such items as fluorescent tubing, light bulbs and tele-
vision parts to laboratory containers, automobile headlight
lenses, and optical glass.
Its sales volume in 1975 was ap-
proximately $939,000,000.
In the vicinity of Corning the
company operates six major manufacturing plants and one
warehouse with over one million square feet of floor space.
The bulk of production from this area is shipped to other
Corning plants or warehouses for further distribution. The
former Erie Lackawanna Elmira TOFC ramp is located about
5 miles from the Corning warehouse from which most of
this traffic is moved.
The following table shows the pertinent volume in dis-
tribution origin flows of TOFC traffic shipped and received
by Corning at Elmira in 1975:
TOFC TRAILERS SHIPPED AND RECEIVED
AT ELMIRA, N.Y. RAMP
BY CORNING GLASS WORKS — 1975
Origin/Destination
From: Elmira, N.Y.
To: Chicago, Ill.
Asheville, N.C.
Miami, Fla.
Miami, Fla.
Los Angeles, Cal.
Houston, Tex.
TOTAL:
To: Elmira, N.W.
From: Muskogee, Okla.
Bluffton, Ind.
Danville, Ky.
TOTAL:
Commodity
Lab. Glass
Lamp Refractors
Lab. Glass
Incan. Bulbs
Lab. Glass
Lab. Glass
Lab. Glass
TV Parts
Glass Tubing
No. of
TOFC Trailers
106
12
7
2
5
|
232
45a
For the 1975 TOFC shipments summarized above, Corning
paid the railroads a total of $187,271 for ramp-to-ramp
transportation, and, in addition, it paid a total of $41,676
for drayage.
Since 1960 Corning has received second-day delivery from
the Erie Lackawanna on its TOFC shipments to Chicago
over the Elmira ramp. Since ConRail has taken over, how-
ever, Elmira has been operated as a satellite terminal to
Scranton, and transit times to Chicago have been ranging
between 7 and 13 days.
Corning regards this service as unsatisfactory because it
disrupts of a well established ordering/shipping cycle, mak-
ing it very difficult for Corning and its customers to plan
their supply operations. With respect to the use of an al-
ternative ConRail TOFC ramp at Rochester, Corning esti-
mates that its additional costs would be substantial. The
cost of shipping a single trailer from Elmira to Chicago
would increase from $387 to $524, or an annual increase
of about $14,500 based on the volume moved during 1975.
Similarly, the added cost on shipments from Muskogee to
Elmira would rise from $809 to $912, or an annual increase
of about $15,500 based on the volume moved during 1975.
The distance from Elmira to Rochester is approximately 97
highway miles.
Thatcher Glass Manufacturing Company of Elmira, N.Y.,
is a major glass container manufacturer supplying the food
processing and beverage industries. Thatcher Glass has a
manufacturing plant in Elmira and, during the past 15
years, has used and come to depend upon TOFC service
over the Erie Lackawanna ramp at Elmira. During 1975,
250 trailers were shipped over the Elmira ramp by Thatcher.
Through the first 4 months of 1976 Thatcher had shipped
a total of 84 trailers in TOFC service with an additional
46a
52 trailers scheduled to be shipped within the next 2 months.
The nearest alternative TOFC ramp is at Syracuse, 91 miles
distant, but use of the Syracuse ramp would increase its
drayage expense for each trailer by approximately $163.
During April and May ConRail provided TOFC service
in the Elmira area by its substituted service between Elmira
and the “physical” TOFC ramp at Scranton, approximately
97 miles from Elmira. That service has not been satisfac-
tory. During April for example Thatcher Glass shipped 40
trailers to Florida, over the Scranton ramp. It had requested
4 to 6 empty trailers per day for loading, anticipating that
all 40 trailers would be loaded within 10 days. However,
due to a lack of equipment in the Elmira area, loading of
these 40 trailers was not completed until April 27. Prior
to the ConRail operation, service to Tampa, Fla. from El-
mira consistently took 6 days transit time, with a seventh
day grounding at the destination ramp. The service on
these 40 trailers handled by ConRail, however, ranged from
6 to 11 days, resulting in an average transit time of 8 days.
Thatcher argues that closing of the Elmira ramp is not war-
ranted by the facts, and that it should, in fact, be returned
to its prior status as a “physical” terminal, as it had been
under Erie Lackawanna operation.
Commonwealth of Pennsylvania and Pennsylvania Public
Utility Commission seek to prevent cancellation of TOFC
rates and service at Hershey, Reading, Sharon, Scranton,
and Swedeland. A witness for the Pennsylvania PUC pre-
sented data to rebut ConRail’s cost showing and testimony
of loaded trailer traffic for the final 4 months of 1975, as
follows:
47a
Station Inbound Outbound Total
Hershey 0 45 45
Reading — 251 297 548
Swedeland 179 154 333
The State argues that by ConRal’s own evidence TOFC re-
venues exceed variable costs at Reading and Scranton.
No testimony was presented at the hearing by shippers
from the Reading area, but traffic managers for two ship-
pers at Reading, Parish Division — Dana Corporation and
AM General Corporation, did transmit “statements of fact”
to the Commision by mail, on May 20 and May 26, respec-
tively. Since these traffic managers did not present them-
selves for cross-examination of their statements at the public
hearing, their statements should not be regarded as evidence
of record under this Commission’s Rules of Practice. Be-
cause of the peculiar nature of this proceeding, however,
with its potential for adverse impact on communities as well
as individual shippers, we have concluded that it would be
appropriate to consider this evidence. Their transmittal let-
ters show that copies were forwarded to ConRail, and we
will entertain any appropriate motion deemed necessary by
ConRail to protect its interests. The important facts stated
by these shippers are those showing the extent of their use
of TOFC service from Reading during 1975, and the prob-
able impact of the proposed cancellation.
AM General shipped a total of 142 loads over the Read-
ing ramp during 1975, at a weight of 5.8 million pounds.
It fears that loss “of our Plan II% rates will jeopardize our
bidding on new government contracts for new business.” It
provides no description of the exact nature of its movements,
although it indicates that this traffic moves to South Bend,
Ind., nor any estimate or projection of future traffic.
48a
During the 6 month period through March 1976, the
Parish Division - Dana Corporation shipped a total of 132
truckloads, averaging 42,000 pounds, over the Reading ramp.
Of these 75 units were shipped to Fort Wayne, Ind.; 48 to
South Bend, Ind.; 7 to Ft. Valley, Ga.; and 2 to Warren,
Mich. The following table shows the pattern of these move-
ments:
Destination
Month Fort Wayne, South Bend, Ft. Valley, Warren,
Shipped Ind. Ind. Ga. Mich.
March, 1976 14 18 3
Feb., 1976 18 5 3
Jan., 1976 21
Dec., 1975 8 13
Nov., 1975 8 12 2
Oct., 1975 6 4 pas
6 Month Total 75 (57%) 48 (36%) 7 (5%) 2 (2%)
Shipper provides no description of the nature of the traffic
involved, the potentials for its growth and balancing, nor any
explanation for the changes in traffic flows shown above.
Use of the Allentown ramp, Dana avers, would mean an
additional freight and drayage charges that would be in-
curred. On 80,000 pound shipments, this would represent
increases of 18.2 percent and 16.7 percent to its transpor-
tation costs to Fort Wayne and South Bend, respectively.
Discussion and Conclusion
Under section 15(8)(f) of the Interstate Commerce Act,
ConRail, a common carrier by railroad, must bear the bur-
den of proof regarding the justness and reasonableness of
the proposed cancellation of TOFC rates at certain of its
terminals. Elimination of TOFC rates necessarily termi-
49a
nates ConRail’s holding out to perform TOFC service at
the affected points. In this proceeding, satisfaction of Con-
Rail’s statutory burden of proof turns on an examination
of the cancellation in light of ConRail’s responsibility un-
der section 1(4) of the act to provide and furnish transpor-
tation upon reasonable request therefor. A failure to satisfy
its section 1(4) responsibilities would, of course, constitute
an unreasonable practice under section 1(6) of the act.
Proposals to cancel TOFC rates are a relatively new breed
of animal. Until recently, new TOFC rates and ramp open-
ings were the main activities in this area. However, as in-
dicated by ConRail (Ex. 1, pp. 8-9) rail carriers are taking
a hard look at reducing the number of TOFC terminals in
order to improve service. To remain competitive with mo-
tor carrier service, rail TOFC service must match the price
and service characteristics of the competition.
ConRail has candidly set forth its TOFC marketing stra-
tegy and desire to maximize its TOFC business. However,
ConRail management is concerned that if its decision to
enter into and exit from TOFC markets through tariff
publication is unduly exposed to protracted legal proceed-
ings it will be unable to function as an efficient competi-
tor. Protestants, on the other hand, are concerned about
preserving service which they feel is vital to the economic
health of their industries and communities.
As to the legal issues, this is substantially a case of first
impression. The proceeding most closely resembling the in-
stant proceeding is the report and order of Review Board
Number 4 in Investigation and Suspension Docket No. 9070,
TOFC Service at Columbia, Mo., Norfolk & Western Rail-
way Co., (served May 20, 1976, not printed). That proceed-
ing was reopened for reconsideration by our order served
September 20, 1976, and is of limited value here. However,
50a
there are other lines of decisions which offer assistance by
analogy.
Recent cases involving cancellation of rates for livestock
service provide useful standards for evaluating termination
of service. In Livestock, So., Sw., Cent., and W. Terrs.,
346 IL.C.C. 418 (1974), Division 2 examined the cost of
service borne by the carriers and the practical reasons ad-
vanced by the carriers for discontinuing a deteriorating, stand-
by service. On the other side, the Division considered pre-
sent and future demand for the service. Of course in the
Livestock and in a proceeding like Icing Services, U.S. Rail-
roads, 343 I.C.C. 67 (1973), the Commission was making
a practical determination about the timed phase out of
obsolete services. Here we are concerned with a type of
service with a great future under the proper circumstances.
Nevertheless, we believe it is appropriate to look to these
reports and the long line of decisions governing railroad
abandonment of services, i.e., Missouri Pac. R. Co. Abandon-
ment, Crete Branch, 307 I.C.C. 189 (1959), to guide our de-
cision here.
Our inquiry here is to seek a proper balance between the
interests of the individual shippers and communities, on the
one hand, and those of the carrier, on the other. On the
user side we wiil address reliance, past and present, on these
services, the prospective need for service, proximity of com-
parable alternative service, and the cost and convenience of
alternative service. As to the carrier interests involved, we
will look to the financial and operational burden of con-
tinuing service, the likelihood that continuing service will
be consistent with the carrier’s prior holding out to per-
form the service, see CC. v. Oregon-Washington R. Co.,
288 U.S. 14 (1932), and whether an order to continue serv-
ice would be an undue or stifling interference with reason-
able efforts to conduct an economically viable operation.
Sla
In balancing these competing interests and sifting the op-
posing claims we should be able to identify reasonable
requests for service which ConRail must, by law, respond
to.
With these criteria in mind, we are persuaded that ConRail
here has made a prima facie showing of the justness and
reasonableness of its proposal. In the first place the over-
all proposal is in furtherance of the basic objectives of the
USRA’s supplemental report of September 1975 to the Final
System Plan for ConRail. As pertinent here, ConRail pro-
poses to streamline its TOFC operating structure by closing
a number of the smaller TOFC ramp facilities it inherited
from its bankrupt predecessors. Although there is no re-
liable quantification of dollar savings that will be achieved
by the ConRail proposal, there is ample evidence that Con-
Rail’s costs will be reduced and its TOFC operations made
more efficient and more competitive with motor carrier serv-
ice. However, in several instances as discussed hereinafter,
we find that protestants have adequately rebutted ConRail’s
prima facie case, and in these instances the TOFC services
should not be terminated.
First, as to those communities where ConRail would con-
tinue to operate TOFC ramp facilities, ConRail has fully
satisfied its burden of proof, and our order will allow
cancellation of TOFC rates at the eight duplicative facili-
ties (Buffalo, Niagara Falls - El, Niagara Falls - LV, and
Syracuse, N.Y.; Cleveland, Ohio, Allentown, Harrisburg, and
Lancaster, Pa.). The New York State Department of
Transportation quite properly desired an opportunity to
advise ConRail of its views before the final selection of
ramp closings at these communities was fixed, as in the Nia-
gara Falls-Buffalo area, for example, but the State does not
present a factual basis for blocking ConRail’s specific pro-
52a
posals at this time. Otherwise, there also is no adequate
factual justification presented on this record to overcome
ConRail’s reasons and plans for closing these duplicative
facilities.
Next, however, there are two communities (Kalamazoo,
Mich.; and Marion, Ohio) where we are persuaded ConRail
TOFC service should not be terminated. As to these ramps,
protestants have presented adequate, specific factual data
to rebut ConRail’s prima facie case for ending TOFC serv-
ices.
More than 3,200 loaded trailers were shipped through the
Penn Central’s Kalamazoo TOFC facilities during 1975, and
there is persuasive evidence of record demonstrating that
there will be substantial growth in that volume in the com-
ing months. While this ramp has been experiencing a seri-
ous imbalance in its traffic flow, a rate of three outbound
for every inbound TOFC trailer, there is strong evidence
of new and increasing inbound traffic volume, on the part
of the Brown Company and the Eaton Corporation, for ex-
ample.
There seems a likelihood, moreover, that additional in-
bound volume will be generated if the quality of this serv-
ice were upgraded somewhat. Alternative TOFC ramps for
Kalamazoo shippers are about 55 miles distant, and their
use would be significantly slower, more expensive, and ad-
ministratively burdensome. The substantial and rapidly
growing flow of steel castings from Baltimore to Kalama-
zoo, for example, would be diverted to line-haul motor
carriage. By the same token, the evidence on this record
reveals that a quality TOFC service afforded by ConRail
at Kalamazoo would be likely to stimulate further diver-
sion of traffic from the highway, and this competitive pos-
sibility should not lightly be foreclosed.
53a
In 1975 there were 7,159 trailers handled through Erie
Lackawanna’s Marion TOFC facility. Although United Par-
cel Service has now diverted its TOFC traffic from the for-
mer Erie Lackawanna ramp, Whirlpool Corporation origi-
nated 545 trailers in 1975 and continues to be a substantial
TOFC shipper. Whirlpool is in the process of a $10 million
expansion of its Marion plant, and forecasts shipment of up
to 7,500 TOFC trailers annually. ConRail provides no satis-
factory justification on this record for ignoring this traffic
potential. The cost and administrative inconvenience for
Whirlpool in draying to Columbus could even work as an
impediemnt to use of TOFC for the new traffic to be gen-
erated by expansion. ConRail does not address this matter
and the failure to do so, we conclude, tips the scales in
favor of retention of TOFC service at Marion.
We conclude that protestants have demonstrated a sub-
stantial and growing public demand for TOFC service under
the rates proposed to be cancelled by ConRail at Kalamazoo,
Mich., and Marion, Ohio, sufficient to constitute a reasonable
request for transportation under section 1(4), and that can-
cellation of these rates would be unjust and unreasonable,
and would constitute an unreasonable practice.
With respect to the other TOFC terminals involved in this
proceeding, we believe that, in contrast to ConRail’s prima
facie justification for its proposals, those parties opposing
cancellation of ConRail’s rates and services have not made
an adequate case for their continuation as a ConRail obliga-
tion. The Commonwealth of Pennsylvania and its Public
Utility Commission argue strongly against discontinuance of
TOFC service by ConRail at Sharon, Reading, Hersey, Scran-
ton, and Swedeland. The Mercer County plant of Wheatland
Tube Company will suffer serious disadvantages by a closing
of the ConRail ramp at Sharon, and we have carefully weighed
54a
its arguments as well as those of the Commonwealth of Penn-
sylvania on this issue. Nevertheless, we are persuaded that
ConRail should be permitted to close this ramp. The vol-
ume of traffic there is not great and the imbalance ratio is
well above the 3-to-1 level. There is no satisfactory predi-
cate on this record for a reasonable expectation of signific-
ant change toward greater volume or balance at Sharon.
While the ConRail alternative ramps will be a substantial dis-
tance away, the Chessie System operates a TOFC terminal
just 14 miles distant at Youngstown. The C&O Service will
not be fully satisfactory for Wheatland’s needs, but here we
find the balance of interests supports ConRail’s proposal and
that cancellation of the rates involved would not be an un-
reasonable. The situation at Elmira, N.Y., like Sharon, Pa.,
indicates a demand for service which is not necessarily best
satisfied by requiring ConRail to continue maintaining a
physical or satellite TOFC service. Traffic at Elmira is re-
latively light and imbalanced. It does not appear that it can
be operated as a satellite terminal in a system which seeks
to efficiently coordinate large volume movements in a serv-
ice which is reasonably competitive with motor carrier oper-
ations. Alternative service is available at Binghamton, N.Y.
from the D & H and ConRail offers second morning deli-
very to Chicago from ramps in Syracuse, Buffalo, and Ro-
chester. Under these circumstances, it would be an unrea-
sonable burden on ConRail to order service continued at
Elmira.
The situation of Reading presents a difficult problem for
resolution, hut we think that the decisive factor here is the
continued accessibility of ConRail TOFC service at a com-
paratively nearby ramp site, Allentown. Also, in contrast
with the situations at Kalamazoo and Marion, there is no
satisfactory indicator of meaningful growth in traffic volume,
or improvement in traffic balance, at Reading for the fore-
55a
seeable future. On these facts we are persuaded that the
proposed cancellation of TOFC rates at Reading is just ‘and
reasonable.
There is no shipper opposition to closing the TOFC ramp
at Hershey. There was only very light traffic tendered there
to the former Reading Company in 1975. Since a ConRail
TOFC ramp will continue to be available at Harrisburg, we
think ConRail’s proposed cancellation of the Hershey rates
has been justified.
No shipper appeared at the public hearing in opposition
to the proposed closing of the Scranton TOFC terminal.
The Commonwealth of Pennsylvania opposes cancellation,
but presents no adequate factual basis to overcome the
ConRail evidence, particularly its showing that the United
Parcel traffic will now move over Harrisburg, and that a
second major shipper now plans to use the D&H TOFC
facility at Wilkes-Barre instead. Pennsylvania’s arguments
do not stand up in the face of these facts. On balance,
we believe the ConRail proposal to cancel the Scranton
rates is adequately justified.
Similarly, ConRail has presented an adequate justification
for closing the Swedeland TOFC ramp. There is alternate
ConRail TOFC service from other locations in the Philadel-
phia metropolitan area, and there is no showing of any sub-
stantial, specific adverse effect on area shippers as a conse-
quence of the Swedeland closing. Pennsylvania presents no
factual justification for disapproving the ConRail proposal
here.
There is no shipper opposition to ConRail’s proposal for
closing the former Lehigh Valley TOFC ramp at Wilkes-Barre,
and, on brief, the Commonwealth of Pennsylvania withdraws
its opposition to that proposal. The D&H has established a
56a
new TOFC ramp about 10 miles from the ConRail ramp,
and it appears that there is no significant public demand or
need for the ConRail operation, which seems not to be com-
petitive with that of D&H.
Closing of the Fort Wayne TOFC ramp is opposed by the
Picture Tube Division of RCA, but that shipper will continue
to have TOFC service available at ConRail’s Huntington ramp,
where RCA moved its export traffic almost exclusively dur-
ing 1975. Apart from the evidence of RCA, there is no spe-
cific indication of probable future TOFC volume at Fort Wayne
and, in fact, TOFC service will continue to be available in this
community over the Norfolk and Western facility. In these
circumstances we conclude that the ConRail proposal to close
its facility at Fort Wayne has been adequately justified.
At Binghamton TOFC service will continue to be available
from the D&H, which is aggressively seeking such traffic there.
There is no opposition to ConRail’s proposal, and we believe
it has been adequately justified.
No opposition is presented with respect to the proposed
closing of ConRail TOFC terminals at Utica, Port Jervis, Ak-
ron, Lima, Benton Harbor, Grand Rapids, or South Bend.
In light of the facts shown by ConRail as to these opera-
tions, we are satisfied that ConRail should be allowed to
close these ramps as proposed. There is comparatively light
volume at Utica, and no evidence of potential growth is pre-
sented. The Port Jervis TOFC facility was used almost ex-
clusively by United Parcel for traffic which has recently
been diverted to other ConRail service. South Bend is only
a short distance from Elkhart, where ConRail will operate a
major concentration TOFC facility. At Benton Harbor, Grand
Rapids, and Akron, TOFC service will continue to be avail-
able from the Chessie, while Norfolk and Western will con-
tinue to provide service at Lima. Accordingly the clear weight
57a
of the evidence requires that we approve the ConRail propo-
sal to cancel TOFC rates and services in these communities.
As noted above, ConRail will continue to operate its Hun-
tington TOFC ramp under a line subsidy arrangement with
Indiana. In effect, ConRail has withdrawn its proposal to
close the Huntington ramp, but it will be embraced in our
order for purposes of technical clarity.
We find that the tariff provisions under investigation, inso-
far as they provide for cancellation of TOFC rates at 24 de-
signated terminals identified below, have been shown to be
just and reasonable and otherwise lawful :
Indiana New York Ohio Pennsylvania
Fort Wayne Binghamton Akron Allentown
South Bend Buffalo Cleveland Harrisburg
Elmira Lima Hershey
Niagara Falls (EL) Lancaster
Niagara Falls (LV) Reading
Port Jervis Scranton
Syracus Sharon
Michigan Utica Swedeland
Benton Harbor Wilkes-Barre
Grand Rapids
We further find that to the extent such tariff provisions
provide for cancellation of TOFC rates at Kalamazoo, Mich.,
Huntington, Ind., and Marion, Ohio, respondent has failed
to establish that such provisions are just, reasonable, or
otherwise lawful.
We further find that this decision is not a major Federal
action significantly affecting the quality of the human envi-
ronment within the meaning of the National Environmental
Policy Act of 1969.
58a
Commissioner O’Neal, dissenting in part:
I am satisfied that the opposition to the cancellation of
rates and services as they affect the Sharon, Pennsylvania,
and Elmira, New York, ramps, is adequate to require their
continuation as ConRail obligations.
It is ordered, That respondent herein be, and its is hereby
notified and required to cancel the schedules described in
the order of the Commission, Division 2, on March 31, 1976,
on or before November 20, 1976, upon not less than 10
day’s notice to this Commission and to the general public
by filing and posting in the manner prescribed by the Com-
mission under section 6 of the Interstate Commerce Act,
without prejudice to the filing of new schedules in accord-
ance with the above findings.
And it is further ordered, That this proceeding be, and it
is hereby discontinued.
By the Commission, Division 2.
RO. “RT L. OSWALD
(SEAL) S. retary
59a
APPENDIX F
SERVICE DATE
FEB 2 1977
INTERSTATE COMMERCE COMMISSION
INVESTIGATION AND SUSPENSION
DOCKET NO. 9108 (COMPLAINT)
CANCELLATION OF TOFC SERVICE,
CONSOLIDATED RAIL CORPORATION
Decided January 28, 1977
Upon complaint, cancellation of TOFC service at Elmira, N.Y.,
found to be unlawful under sections 1(4), 1(5)(a) and 1(6).
Appearances as shown in Investigation and Suspension Dock-
et No. 9108 and Edward J. Canty, Carl L. Haderer, and
Robert J. Walsh for shipper interests.
REPORT AND ORDER OF THE COMMISSION
BY THE COMMISSION:
In a prior report, (Investigation and Suspension Docket No.
No. 9108) decided October 28, 1976, Division 2 found just
and reasonable, and otherwise lawful proposed cancellation
of trailer-on-flatcar (TOFC) rates at 24 designated terminals
in Indiana, Michigan, Ohio, New York, and Pennsylvania
and found not shown to be just and reasonable the proposed
cancellations at Kalamazoo, Mich., Huntington, Ind., and Ma-
rion, Ohio.
Under section 15(8)(a) of the act the Commission is re-
quired within 7 months to issue a final decision concerning
the lawfulness of proposed carrier rate changes. However,
if prior to the expiration of the 7 month period, the Com-
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mission makes a prescribed report to Congress then a 3
month extension is available for making the final decision.
In this case, the investigation and suspension report was is-
sued two days before the expiration of the 7 month suspen-
sion period. No report to Congress was filed and no exten-
sion of time was made. Therefore, our prior decision con-
stitutes the final decision of the Commission and pursuant
to section 15(8)(a) the tariff matter which became effective
at the close of the 7 month period may be set aside only,
if upon complaint of an interested party, the Commission
finds it to be unlawful.
We have before us petitions attacking the validity of the
prior decision. Included in two of the petitions is additional
evidence which was not available when the record which
formed the basis of the prior decision was closed. In view
of the fact that the investigation and suspension proceed-
ing is now administratively final, pursuant to section 15(8)
(a), we are treating the petitions as complaints against the
effective cancellations of TOFC service and accept the evi-
dence submitted in support thereof. Since ConRail has
replied to the instant petitions (treated herein as complaints)
it would serve no useful purpose to require petitioners to
refile the same material under a complaint caption.
The petitions, to the extent they seek restoration of
TOFC service at points other than Elmira, are devoid of
merit. Our ultimate findings differ from those of the prior
report with respect to the TOFC ramp at Elmira, New York.
By schedules filed to become effective April 1, 1976,
Consolidated Rail Corporation (ConRail) proposed to can-
cel TOFC rates at 31 terminals formerly operated by the
Penn Central Transportation Company, the Eire Lackawanna
Railroad Company, the Reading Railway System, and the
Lehigh Valley Railroad in the States of Indiana, Michigan,
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New York, Ohio, and Pennsylvania. Upon protests filed by
shipper protestants and State and Federal agencies, the Com-
mission, Division 2, by an order served March 31, 1976,
suspended the operation of the tariff to and including Octo-
ber 31, 1976, to the extent it affected 27 of the 31 termi-
nals. Division 2, found just and reasonable, and otherwise
lawful the cancellation of TOFC rates at 24 terminals, in-
cluding Elmira, New York, in its report and order served
October 29, 1976. The Division further found that Con-
Rail had failed to show that cancellation of TOFC rates
at Huntington, Ind.,! Kalamazoo, Mich., and Marion, Ohio,
were shown to be just and reasonable. After the date of
service of the report and order, ConRail voluntarily post-
poned the date upon which said schedule, with regard to
Elmira, N.Y., was to become effective, until November 20,
1976.
ConRail’s evidence and arguments, submitted in the inves-
tigation and suspension case briefly restated to the extent
they involve service at Elmira, indicated the following:
(1) the proposed cancellation is in furtherance of the “Fi-
nal System Plan” (FSP),? which seeks to consolidate this
traffic system-wide into major and flow corridors served by
special “trailvan” trains; (2) The Elmira terminal, formerly
operated by the Erie Lackawanna, was established as a rel-
atively low volume terminal handling 423 inbound revenue
loaded trailers and 975 outbound revenue loaded trailers
during 1975; (3) the low traffic volume generated at this
| ConRail is presently operating this facility under a subsidy agree-
ment with the Public Service Commission of Indiana, and it no longer
seeks to discontinue service to and from the Huntington ramp.
2 The (FSP) was issued by the United States Railway Association
in accord with the provisions of t .e Regional Rail Reorganization
Act of 1973, and approved by the Congress.
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station would impose an operational (and subsequently a
financial) burden on the new system in that it would not
justify use of trailvan trains and regular flatcar service would
not be competitive with over-the-road motor carrier service;
(4) the 2-to-1 inbalance of outbound traffic over inbound
traffic indicates that continued TOFC service at Elmira
would not be an efficient operation; and (5) the affected
shippers in the Elmira area have available alternate TOFC
service offered by ConRail (which holds out second day
ramp to ramp delivery at these terminals) between Chicago
and Syracuse, N.Y., 90 miles distant from Elmira; Roches-
ter, N.Y., 98 miles distant; Buffalo, N.Y., 143 miles distant;
and by the Delaware and Hudson (D&H) at Binghamton,
N.Y., 55 miles distant.
Corning and Thatcher presented evidence, in the investi-
gation and suspension proceeding which, briefly restated,
indicated: (1) both companies have used TOFC service at
Elmira for over 15 years; (2) Corning shipped 133 out-
bound trailers and received’ 232 trailers during 1975; (3)
the Elmira TOFC ramp is located about 5 miles from its
Corning warehouse from which most of its TOFC traffic
moves; (4) Corning has received second day service on
movements to Chicago since 1960, except for the period
during which Elmira was operated as a satellite terminal
to Scranton; (5) use of alternative TOFC ramps would in-
crease its per trailer costs from $387 to $524 or an an-
nual increase of $14,500; (6) Thatcher, while experiencing
problems obtaining an adequate number of rail cars for its
TOFC traffic continued to depend on the availability of
service at Elmira even during that period this terminal was
operated as a satellite for Scranton, Pa. terminal.
In the investigation and suspension proceeding, it was
found that continued TOFC operations at Elmira would
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place an unreasonable burden on ConRail. The decision
was based on the relatively light and unbalanced traffic
volume and the conclusion based on past operations that
it could not successfully operate as a satellite terminal for
any other station. Notice was taken of alternative TOFC
services in the area.
In their petitions for reconsideration (treated herein as
complaints for the reasons stated above) complainants set
forth the following: (1) greater consideration must be pro-
vided to the long dependence of shippers on the availability
of this service; (2) ConRail has no first hand knowledge of
the burdens, if any, continued operations at Elmira would
place on this reorganized system; (3) additional traffic will
become available at Elmira as the economy improves and
with the additional inbound traffic of Corning from its ce-
ramic substrate facility at Parkersburg, W.Va.; (4) operations
conducted at Elmira immediately prior to the hearing in the
investigation and suspension proceeding are not indicative of
the true nature of the traffic movements at this station in
that the facility was operated as a “satellite” terminal for
the Scranton, Pa. terminal, a distance in excess of 120 miles
which greatly affected distribution operations, and was also
subjected to a two-week embargo; (5) while ConRail volun-
tarily operated this facility as a “‘physical” terminal (one
from which trailers are loaded directly onto the trains), af-
ter the hearing, all the involved shippers made relatively. sub-
stantial use of the available service; Thatcher shows a 37
percent increase over comparable 1975 figures, and A&P of-
fers new evidence of 107 trailers shipped through this ramp
within a 13-week period; (6) use of alternative ConRail TOFC
terminals, and the D&H noted above, are too distant to meet
the shippers’ transportation requirements and will increase
the shippers’ transportation costs significantly; Thatcher esti-
mates its tender of traffic to motor carriers would increase
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its annual transportation costs by $96,700.00 based on its
1975 traffic volume; (7) Corning alleges that the cost re-
venue figures contained in ConRail’s worksheet for its dis-
allowed cost computations should have been considered here-
in, and that such figures demonstrate in 1974, movements
from and to Chicago produced revenues in excess of variable
costs by 14.7 percent and 16.6 percent, respectively; and
(8) cancellation of the Elmira TOFC rates is premature at
this time and considering the potential hardship on affected
shippers continuation of such service should be required.
DISCUSSION AND CONCLUSIONS
Since complainants’ contentions in regard to terminals
other than Elmira have been found to be without merit, the
sole issue remaining for discussion is whether ConRail’s can-
cellation of TOFC service at Elmira, N.Y., is just and reason-
able and otherwise lawful. In making this determination, we
will follow the standard enunciated in the prior decision to
weight and balance the interests of the community and af-
fected shippers with those of the carrier. Consideration has
been accorded to past and present reliance on this service
and the prospective need for continued operations, to the
proximity, costs and convenience of alternate service, and
to the financial and operational burden continued service
would place on the carrier, including whether an order re-
quiring continued service would unduly interfere with the
carrier’s reasonable efforts to formulate an economically
viable operation and whether continued service would be
consistent with the carrier’s prior holding out to perform
such service. Considering these factors with regard to oper-
ations at Elmira, in light of the positions advanced by com-
plainants, we are convinced that it has established that
TOFC services at Elmira should be restored.
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Initially, it is noted that TOFC service has consistently
been provided at Elmira on a second day delivery basis for
movements to Chicago. Corning and Thatcher have relied
on this service since its inception in 1960. Alternative
TOFC terminals in the area do not provide an adequate
substitute to this past service. The nearest ConRail faci-
lity is at Syracuse, 90 miles to the north of Elmira. The
facilities of the D&H at Binghamton are 55 miles from
Elmira and cannot provide direct east-west service; traffic
moving .to and from Chicago would most likely be routed
through Buffalo, incurring additional time, expense, and ad-
ministrative inconvenience. If the lack of TOFC service is
allowed to continue, shippers will be forced to transfer an
appreciable amount of their traffic to motor carriers with
substantial increase in shippers’ cost and greater fuel con-
sumption.
In the investigation and suspension proceeding, little merit
was attached to the cost evidence submitted by ConRail
on the basis that such costs were incurred by that carrier’s
predecessor companies and did not take into consideration
anticipated economies in operation that the consolidated
system would provide. However, that rationale is not neces-
sarily applicable to shippers’ use of this evidence which de-
monstrates that in 1974, revenues from operations conducted
between Chicago and Elmira exceeded variable costs, but not
fully allocated costs. Additionally, Corning and Thatc’.er
have established that greater traffic, both inbound and out-
bound can be anticipated from their operations. It is also
not unreasonable to expect some traffic formerly moving
by the terminated TOFC service at Binghamton and at Scran-
ton may be transferred to Elmira. Considering this and an-
ticipated operational savings from the consolidation, we can-
not foreclose the possibility that continued service at Elmira
will be profitable.
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We conclude that a public demand, constituting a reason-
able request for transportation under section 1(4), has been
demonstrated for continued TOFC service at Elmira, N.Y.,
and that cancellation of these rates by ConRail is unjust
and unreasonable, and constitutes an unreasonable practice.
Upon complaint, we find that ConRail’s cancellation of
TOFC rates at Elmira, N.Y., is unlawful.
COMMISSIONERS MURPHY, BROWN AND HARDIN
concur in the result.
It is ordered, That Consolidated Rail Corporation be, and
it is hereby, notified and required to restore TOFC rates
and services at Elmira, New York, on or before February 15,
1977, upor not less than 5 days’ notice to this Commission
and to the general public by filing and posting in the man-
ner prescribed by the Commission under section 6 of the
Interstate Commerce Act.
It is further ordered, That this proceeding be, and it is
hereby, discontinued.
By the Commission.
ROBERT L. OSWALD
(SEAL) Secretary
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APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Petitioners,
No. 77-1147
vs.
INTERSTATE COMMERCE COMMISSION
and UNITED STATES OF AMERICA,
Respondents.
PETITION FOR REVIEW
Commonwealth of Pennsylvania, and Pennsylvania Public
Utility Commission, hereby petition the court for review
of orders of the Interstate Commerce Commission in its
I. & S. Docket No. 9108, Cancellation of TOFC Service,
Consolidated Rail Corporation, dated October 28, 1976
(served October 29), and January 28, 1977 (served Feb-
ruary 2).
ROBERT P. KANE, Attorney General
Capitol Annex
Harrisburg, Pa. 17120
BARNETT SATINSKY, Chief Counsel
JOHN B. WILSON, Asst. Counsel
CANDACE N. KREIGER, Asst. Counsel
P.O. Box 3265
Harrisburg, Pa. 17120
GORDON P. MacDOUGALL, Spec.
Asst. Counsel
1100 17th Street, N.W.
Washington, D.C. 20036
Attorneys for Petitioners
February 3, 1977
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