# Petition — Pennsylvania v. Interstate Commerce Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2608%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1011 ## Text 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2608%3A1. Public record. Not legal advice.