# Amicus Curiae Brief — ICC v. Oregon Pacific Industries, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0457%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 184 ## Text 7 as 43 tor chs Doster 9f Oragne INDEX INTEREST OF AMICUS CURIAE ..000000..0220.0.0..0.0..0ccceeeeceeees SUMMARY OF ARGUMENT ...................-.---sccscecceeeeeeeeeeeeeeeeeeees I. CAR SERVICE ORDER 1134 IS A VALID EMERGENCY REGULATION ISSUED UNDER SECTION 1(15) OF THE INTERSTATE COMMERCE ACT TO IMPROVE CAR UTILIZATION. 1. Car service orders can affect the application of pub- TREO CE ssa cesirosiicseewesesssb eevee eerceseereeeecinecknasniens 2. Car service orders can regulate shippers ...................... 3. Car Service Order 1134 is a conventional regulation of MI NO icc ee raster cere cece oes cee 4. Emergency car service orders are controlled by the duration and the nature of the emergency ................ II. CAR SERVICE ORDER 1134 IS NOT A RATE ORDER SUBJECT TO SECTION 15 OF THE INTERSTATE A PGE iaisccssisinsinictesacsvecanssauctsanianarnecennnenssaninanicy III. THE DISTRICT COURT’S DECISION REQUIRES THE COMMISSION TO PROCEED UNDER SECTION 15 OF THE INTERSTATE COMMERCE ACT, WHICH IS A SEVERE AND UNREASONABLE LIMITATION IN ITS AUTHORITY TO REMEDY EMERGENCY CAR SHORTAGES. 1. Section 1(15) authorizes the Commission to regulate car use without a hearing to alleviate emergency car shortages ..... Saisie gnaw ohana exiecsrsstes sass aniwesewecsiainwntaneseabass 2. It is uncertain whether a regulation limiting hold time is authorized by Section 15 20.0.2... .ceeeeeceeeeeeeeeeeees AIR adic sctete ccs eectnpe clears nncentindiin ahvsiptnseneeecs TABLE OF AUTHORITIES CASES Page Armour & Co. v. Louisiana Southern Ry. Co., (5th Cir 1951) 190 F2d 925, cert den (1952) 342 US 913 -...000..... 4, 5, 8, 10 Atchison, T. & S. F. R. Co. v. Bd. of Trade, (1973) 412 i 800 Avent v. United States, (1924) 266 US 127 0.0.00... 14 Chicago, M., St. P. & P. R. Co. v. McCree Co., (D Minn 1950) OE OF shag pce ese cee en Daugherty Lumber Co. v. United States, (D Or 1956) 141 F Es er any a ne ae nee 13 Investigation of Adequacy of Freight Car Owership, (1969), OP ZO ene One Sri nn nro ew Oe ee 16 Iverson v. United States (D DC 1946), 63 F Supp 1001, aff CUD) Se IS TF ices care ncecpentescee nnn 4, 6, 8, 15 Palmer v. United States (D DC 1947) 75 F Supp 68 ................ 20 Peoria & Pekin Union Railway Co. v. United States, (1923) Co Bi \* cn 4,5, 11, 13 —— v. Commodity Credit Corp., (3d Cir 1961) 289 F2d Sion tar ican uheniennsertdaceassnoacaaestndoacsanctatentonteas 5, 6, 8, 9, 10, 15 Turner, Dennis & Lowery Lumber Co. v. Chicago, M. & St. P. Ry. Co., (1926) 271 US 259... eet ieaeeo 3 United States v. Allegheny-Ludlum Steel Corp., (1972) 406 NF cg ness ape omens a eedaegeesercaees 1, 10, 16, 18 United States v. Florida East Coast Railway’ Co., (1973) 410 | 5 5”, Zenner een Even 4, 6, 12, 16, 18 United States v. Michigan Portland Cement Co., (1925) 270 a Be FR acca cies eechioncarinct ee pipnnetosrtereie tents Peete 11,12 —_ States v. Southern Railway Co., (4th Cir 1967) 380 F2d PEGE OE SS LALO OS DOOR PALI FLU Wz al BOERNE LE RD mettle cece, UNITED STATES STATUTE Page Transportation Act of February 28, 1920, ch. 91, § 402, 41 Stat. 456, 476, amending Act of May 29, 1917, ch. 23, 40 Stat. 101; 49 USC § 1015) 20... eee ee eeeceeecececceeeeeeteeceneceneee passim OTHER AUTHORITIES Interstate Commerce Comm’n, Service Order No. 1134 0 7 ) Neen ner nn ne en rs en passim | Interstate Commerce Comm’n, Corrected Service Order No. 905 CNS sssicscdecencacevsvesersesvvesncseseetieneectes acne biet erences Interstate Commerce Comm’n, Service Order No. 858 (1950)... 11 | Interstate Commerce Comm’n, Service Order No. 775 (1948)... 8 Interstate Commerce Comm'n, Revised Service Order No. 180 pd CR) acres escent eee eens ranean erine es eenemntntanses 8 National Transportation Policy, 49 US.C. preceding Section 1.. 19 U.S. Congress, H.R. Rep No. 456, 66th Cong. 1st Sess. (1919)... . 4 U.S. Congress, H.R. Rep. 18, 65th Cong., 1st Sess. (1917).......... 17 PFET NPL DIES | PRONE BS OTST LEFT SOIL RN POLL OPES TELE OES OLA A IOI APSO an the Supreme Court of the Wnited States October Term, 1973 No. 73-1210 INTERSTATE COMMERCE COMMISSION, Appellant, Vv. OREGON-PACIFIC INDUSTRIES, INC.,.ARTHUR A. POZZI CO., TIMBERLAND LUMBER CO., CHAPMAN LUMBER CO., NORTH PACIFIC LUMBER CO., and AMERICAN INTERNATIONAL LUMBER CO., Appellees. On Appeal irom the United States District Court for the District of Oregon INTEREST OF AMICUS CURIAE Western railroads which are members of Western Railroad Traffic Association are primarily responsible for moving wood products from western mills to east- ern markets, traffic which requires a sufficient sup- ply of boxcars and other freight cars suitable for ship- ping lumber and plywood.'/ In October 1972 high do- 1/ See United States v. Allegheny-Ludlum Steel Corp., (1972) 406 US 742 at 750 discussing recurring car shortages affecting the wood products industry. Eateeseres ENEMA Fe SSN NE SPB NSS SAE E RAI T MDEPR EPI MIG Te SA NORT SPIRIT NEL LT aw SRS 2 mestic demand and grain shipments to the U.S.S.R. combined to create a critical shortage of cars suitable for transporting grain and lumber, and the shortage grew progressively worse during 1973. By May, the average daily shortage of plain boxcars, which are used for both grain and wood products and are the “work horse of the car fleet,” exceeded 13,000 cars (Comm Letter 5/14/73; Byrne aff). Much of the burden of the shortage fell upon members of Western Railroad Traf- fic Association. The shortage was aggravated by inefficient car utilization practices employed by shippers.2/ Among these practices is one referred to by the District Court. as “sales-in-transit” marketing. Under this system, brokers who sell approximately 75% of all lumber and plywood produced in the nation (Cheatham affidavit) commonly ship loaded cars from western mills to recon- signment points prior to sale and without a destination. There the cars are held until completed sales — hope- fully made in a rising market — permit the shippers to notify the carriers of their destinations. Under pub- lished tariffs, shippers receive the benefit of through rates to those points. The practical effect of in-transit sales is to immo- bilize large numbers of cars by using them as ware- 2/ See Atchison, Topeka & Santa Fe Railway v. Witchita Trade Board, (1973) 412 US 800, 803 n. 2, 829 n. 1, 836. 3 houses, and the practice has been harshly criticized.3/ The extent of this non-transportation use of cars is _ shown by appellees’ evidence that they house 55,000 carloads of lumber in boxcars each year, and their con- — tention that the economic effect of the order is to make them provide storage for an additional 2.5 million board feet of wood products (Cheatham affidavit). Car Service Order 1134 was issued in May 1973 under Section 1(15) of the Interstate Commerce Act (49 USC Sec 1(15)) to afford relief from such prac- tices during the emergency which had developed, by limiting hold time at reconsignment points to five days. After that period, through rates to final destinations would no longer apply and charges would be calcu- lated by combining local rates. The order succeeded in _its purpose. While it was in effect, shippers ceased to hold cars at reconsignment points for excessive periods. (Byrne affidavit) The District Court’s decree setting the order aside has had a substantial and adverse impact on the sup- ply of cars available to the western lines. This, how- ever, is not its entire significance. It nullified an im- portant decision of the Commission which had been taken in the public interest to alleviate an emergency car shortage. In doing so, it gave no weight to the 3/ Turner, Dennis & Lowry Lumber Co. v. Chicago M & S T P RR Co., (1926) 271 US 259 at 262. 4 Commission’s duty under Section 1(15) ‘“*** to act promptly on the spur of the moment in case of emer--. gency,’’*/ and required it instead to follow procedures which have been criticized for involving “too many hearings and .. . too little action.”5/ 7 This Court should not merely analyze and sustain the order; it should support the Commission’s determi- | nation to meet emergencies promptly and vigorously by effective temporary measures such as this, which supplement decisions under other provisions of the law that require a longer time to have their intended ef- fect of improving the national car supply. SUMMARY OF ARGUMENT I Car service orders, including emergency orders un- der Section 1(15), commonly affect published tariffs, regulate shippers and increase charges for transporta- tion service. Jverson v. United States, (D DC 1946) 63 - F Supp 1001, aff (1946) 327 US 767; Armour & Co. v. Louisiana Southern Ry Co., (5th Cir 1951) 190 F2d 925 at 927, cert den (1952) 342 US 913. They are not limited to orders which fix demurrage charges or _-—...which regulate carriers as opposed to shippers. Reading 4/ See / House Report 456, 66th Congress, ist Sess ath17, quoted in Peoria Ry. Co. v. United States, (1923) 263 US 528 at 533, n. 7. 5/ See United States v. Florida East Coast Railway Co., (1973) 410 US 224 at 232. 5 Co. v. Commodity Credit Corp., (34 Cir 1961) 289 F2d 744; Armour & Co. v. Louisiana Southern Ry Co., (5th Cir 1951) 190 F2d 925, cert den (1952) 342 US 913. Their character as car service orders is established by ° their purpose to regulate the use and supply of cars. - Segtion 1(10); Peoria & Pekin Union Railway Co. v. United States, (1923) 263 US 528. Their validity is not affected by any incidental effect on published tariffs, shippers, or charges for transportation services. Like all emergency orders, this one is controlled by the nature and duration of the emergency which called it forth, which provides sufficient protection against abuse of the Commission’s authority under Section 1(15). United States v. Thompson, (ED Mo 1944) 58 F Supp 213. Car Service Order 1134 is purely regulatory; its suc- cess is not measured by revenues it generates for car- riers, but by its effect on shippers’ use of cars. In sub- stance, it does no more than limit hold time at recon- signment points. References in the order to local ‘rates do not change it into a compensatory rate order, but merely explain the economic effect of limiting hold time. Reading Co. v. Commodity Credit Corp., (3d Cir 1961) 289 F2d 744 at 748. The order supplements the Commission’s long range efforts to eliminate car short- ages through incentive per diem and other measures, 6 by providing temporary relief in an emergency. United States v. Florida East Coast. _ Co.; (1973) 410. US 224. Wl. | Circumstances arising from time to time can ele- vate the chronic shortage of cars in the national car pool into an emergency requiring immediate action in the national interest, and unwarranted limitations on the Commission’s authority under Section 1(15) will cause hardship to shippers and carriers, and to the pub- lic. By requiring the Commission to employ lengthy hearing procedures before meeting the emergency in the way its judgment dictates, the District Court ignored the legislative history of the Esch Car Service Act and | forced the Commission to adopt a course which has been | harshly criticized and is inconsistent with the purpose of emergency measures. 7 The District Court’s narrow definition of car service orders will apply equally to orders entered after limited hearing procedures under Section 1(14) and to emer- gency orders entered without hearing. under Section 1(15). The unfortunate result of its decision is to Tre- quire proceedings under Section 15 of the Act, which characterize changes of compensatory rates, before ac- tion deemed responsive to an emergency car shortage can‘be taken. However, it is not at all clear that such an order is authorized under Seyion 15, and the Commis- sion’s authority io deal effectively with an emergency car shortage contributed to by sales-in-transit may exist only under Section 1(15). ARGUMENT I. Car Service Order 1134 is a valid emergency regula- tion issued under Section 1(15) of the Interstate Commerce Act to improve car utilization. The District Court attempted to distinguish between “car service orders” and “rate orders,” holding that an emergency car service order to improve the use of cars by shippers cannot affect the application of published tariffs. Section 1(10) of the Act contains no such con- ceptual limitation on orders to control the use of cars, and none have been implied by the courts, which have refused to restrict the remedies available to the Com- mission to alleviate emergency car shortages. 1. Car service orders can affect the application of pub- lished tariffs. Car Service Order 1134 is one of several orders which have been required from time to time during emer- gency car shortages to regulate shippers’ use of cars by suspending published tariffs and increasing transpor- 8 tation charges. Thus, orders increasing demurrage charges paid by shippers and suspending published de- murrage tariffs have been uniformly sustained.®/ Such orders commonly establish car retention periods beyond which charges become burdensome, and they operate like this one, through temporary economic incentives to regulate the use of cars by shippers. In Iverson v. United States, (D DC 1946) 63 F Supp 1001 at 1006, aff (1946) 327 US 767 the court held that orders suspending published tariffs. which determine transportation charges are authorized by Section 1(15).’/ Such orders are sustained hecause they “clearly provide an effective means of relieving a shortage of railroad freight cars.”* Armour & Company v. St. Paul Railroad Company, (5th Cir 1951) 190 F2d 925 at 927, cert den (1952) 342 US 913. In Reading Co. v. Commodity Credit Corp., (3a Cir 1961) 289 F2d 744 the court sustained Car Service Or- der 905, which provided, economic incentives to improve car utilization by limiting free time to seven days. Un- 6/ E.g., Car Service Order 180 (October 2, 1944) sustained in Iverson vs United States, (D DC 1946) 63 F Supp 1001, aff (1946) 327 US 767; Car Service Order 775 (A rt 96, 1948) sustained in Chicago, M. St. P. & P. R. Co. v. McCree & Co., (DC Minn 1950) 91 F Supp 57 and Armour & Co. v. Louisi- ana Southern Ry. Co., (5th Cir 1951) 190 F2d 925, cert den (1952) 342 US 913; Car Service Order 905 (July 13, 1955) sustained in Reading Company v. Commodity Credit Corp., (3d Cir 1961) 289 744. 7/ “. . . Ifa published rule or — affects or determines a charge, it is nevertheless a rule or regulation.” Jd at 1006. 9 like the present order, it did not contain any: explana- tion of its effect on charges after that period. The court refused to limit emergency orders under Section 1(15) to those applying to demurrage charges and sustained the order as a proper and effective regulation of car use by affecting the application of published tariffs.°/ Such orders affecting published tariffs are designed to provide economic incentives to increase car utiliza- tion in an emergency. Their character as car service orders is established by their purpose, and is not changed by reason of the particular published tariff which may be involved. Such incentive regulation is an essential alternative to direct regulation, and it should be sustained as a reasonable measure which preserves to shippers continuing control over transportation charges which they will pay during periods of emer- gency. 2. Car service orders can regulate shippers. The Distzict Court’s conclusion that Aad 1(10) 8/ The court stated: - “|. Another cause [of car shortages] is diversion of the car from its primary use as an instrument of trans- — by cnplevien it as 4 place of storage, either at estination or at reconsignment points, for a long peri while seeking a market for the goods stored therein. If Order 905 were held to apply only to oe charges it would not have the effect of expediting the release of cars utilized by shippers for storage purposes. Thus, the Order would less efficiently accomplish its purpose of alleviati a critical shortage of box cars a1.4 refrigerator cars.” at 748. 10 of the Act limits car service orders to rules affecting carriers, not shippers, is not required by its terms and has been rejected by the courts which have considered it. Reading Co. v. Commodity Service Corp., (3d Cir 1961) 289 F2d 744 at 750 (order reducing free time from.20 to 7 days is legitimate regulation which forces shippers to reduce detention time at destination and at reconsignment points) ; Armour & Co. v. Louisiana Southern Railway, (5th Cir 1951) 190 F2d 925 at 927, cert den (1952) 342 US 913. Clearly, the need for increased car utilization dur- ing periods of shortage requires authority to regulate shippers as to relevant matters which shippers control}, : ° principally the time required to return the car to the | carrier for other transportation service. The retention of cars by shippers for non-transportation purposes bur- _ dens the national pool no less than delays by carriers in returning cars to originating lines. See United States v. Allegheny-Ludlum Steel Corp., (1972) 406 US 742. The regulation of car use under the Esch Car Service Act must extend equally to both. 3. Car Service Order 1134 is a conventional regulation of car service. The District Court was concerned that Car Service Order 1134 constitutes an unprecedented use of the Commission's emergency power to deny shippers an es- 11 tablished business practice. However, the order is not an innovation. It is substantially identical in material respects to Service Order 858, which was promulgated in 1950 to alleviate an emergency car shortage affecting the lumber industry during the Korean War. It is also identical in its economic effect to demurrage and other orders referred to above, which control shippers’ use of cars through economic incentives without the complete ban on given practices which is suggested by the District Court. In substance and effect, it is not different from orders which have preceded it and are an established part of the Commission’s jurisdiction. Peoria & Pekin Union Railway Co. v. United States, (1923) 263 US 528 does not suport a narrow construc- tion of Section 1(10) or suggest t car service orders cannot affect charges for transportation services or the application of published tariffs. In the Peoria case, the: Court broadly defined “car service” as connoting “the. use to which the vehicles of transportation are put; not ad the transportation service rendered by means of them.” 263 US at 533.9/ @ 9/ In United States v. Michigan Portland Cement Co., (1925) 270 US 521 the Court limited Peoria to a restriction on the Com- mission’s power to impose an “affirmative duty on another carrier” to perform switching services, and approved orders under Section 1(15) regulating “preference or, priority’? in transportation: ‘*. . . It was in this connection that this court»used the expression that car service connotes the use to which ve- hicles of transportation are put, but not the transportation 12 Car Service Order 1134 is a conventional and valid order for the regulation of car use, and it is authorized under 1(15) of the Act regardless of its incidental effect on published tariffs, its regulatory impact on shippers, and its indirect effect on transportation charges. 4. Emergency car service orders are controlled by the duration and the nature of the emergency. Orders issued without hearing under Section 1 (15) of the Act are by their nature limited in duration and narrow in scope; it is their temporary and limited na- ture and the conditions to which they respond which justify issuing them without following the limited pro- cedural requirements of Section 1(14). See United States v. Florida East Coast Railway Co., (1973) 410 US 224. In this case, the record demonstrates the existence of a critical shortage of cars used to ship plywood and lumber and the need for immediate relief. Indeed, the District Court did not question the Commission’s opinion that an emergency existed. Nor is there any doubt that the order was carefully tailored to the spe- cific shortage which prevailed when it was issued. It affected only cars commonly used for shipping lumber service rendered by means of them. The opinion expressly affirms the authority of the Commission under 915 [sec 1 (15) ] to give regulatory directions for preference or priority in transportation.” 270 US at 527. \ and plywood and was issued in the first instance for 13 only six weeks. It could be extended only upon a ra- tional determination that the emergency had not ceased and that such regulation was still necessary. United States v. Thompson, (ED Mo 1944) 58 F Supp 213. Emergency orders do not pose a threat to established rate-making procedures or deprive shippers of any right they may have under published tariffs to use cars as warehouses. Because they are responsive to an emer- gency, pect remedy adopted by the Commission will be limited'®/ as well as temporary. However, the fact that there is an emergency requires that the range of action available to the Commission be broadly con- ceived. The Commission has — and needs — wide dis- cretion in selecting appropriate remedies to deal with such cases. It also follows that emergency orders are subject to only limited judicial review. Daugherty Lum- ber Co. v. United States, (D Or 1956) 141 F Supp 576. The controlling: consideration is the congressional de- sire that the Commission should act promptly “on the spur of the moment in case of an emergency.” Peoria Ry. Co. v. United States, (1923) 263 US 528 at 533, n. 7. 10/ aa United States v. Southern Ry. Co., (4th Cir 1967) 380 49: “The contours of a ‘direction’ issued in response to a — emergency situation are necessarily shaped by the character of emergency.” 380 F2d at 55-56, n. 7. _14 The Commission should be encouraged to follow that mandate, and the Court should not circumscribe action it can take in such cases. The Commission’s power is broad, but it is sufficiently limited by the statute, which “confines the power of the Commission to emer- gencies and the requirement that the rule shall be rea- sonable wine interests of the public and of commerce fixes the only standard that is practical or needed.” Avent v. United States, (1924) 266 US 127 at 130. Car Service Order 1134 is not a rate order subject to Section 15 of the Act. | References in the order to the application of local rather than through rates after five days were unnec- essary to its regulatory operation and had no visible purpose except to explain the result of limiting hold time to that period and to notify shippers of charges which should be considered in making their selling d cisions at reconsignment points. The impact of the o der is the same, with or without those references, and fe cannot affect its character as a rule whose purpose is to regulate car use and increase car supply. The purely regulatory purpose ofthe order is clear from its text, which describes the emergency that called it forth and its objective. Clearly, it would achieve a acs scl Sp: 15 its purpose only if it did not generate revenue for car- riers, and it would fail if it did so. The order is designed to discourage in-transit sales, not to compensate carriers for the use of their cars, and it is not its ‘only result * * * to cause payments to be made to the railroad by shippers.” Iverson v. United States, (D DC 1946) 63 F Supp 1001, aff (1946) 327 US 767. Indeed, it was al- most completely successful in eliminating excessive de- tention of cars prior to the decree of the District Court. The effect of the order on the application of pub- lished tariffs does not deny shippers all freedom of choice as to rates they will pay for transportation serv- ices. An order like this one, which limits hold time, achieves its regulatory purpose without imposing on shippers an inflexible rule which arbitrarily bans in- transit sales or establishes flat increases in demurrage | charges. This was a flexible and effective response to a critical situation, which did not become a rate order simply because it was reasonable. Reading Co. v. Com- modity Credit Corp., (3d Cir 1961) 289 F2d 744. Emergency regulations such as Car Service Order 1134 are important supplements to the Commission’s long-range program of action, including orders under Section 1(14), to alleviate the chronic shortage of cars in the national pool. /nvestigation of the Adequacy P 16 of Freight Car Ownership, (1969) 335 ICC 264; United States v. Allegheny-Ludlum Steel Corp., (1972) 406 US 742 at 746. Orders under Section 1(14), such as the one sustained in Allegheny-Ludlum, require time to achieve their purpose, and this Court recognized in that case that “the railroad and shippers were in- flicted with an economic illness that might have to get worse before it-gets better.”” 406 US at 754. See also United States v. Florida East Coast Railway Co., (1973) 410 US 224. The Commission must depend heavily at this time on its emergency authority to meet tem- porary situations which may arise and threaten to turn a chronic shortage into a disaster for carriers, shippers and the public. The Commission’s authority to handle these cases must extend to this kind of temporary incen- tive regulation of shipper practices which so decisively affect car supply. : The District Court’s decision requires the Commission to proceed under Section 15 of the Interstate Commerce Act, which is a severe and unreasonable limitation of its authority to remedy emergency car shortages. 1. Section 1(15) authorizes the Commission to regulate car use without a hearing to alleviate emergency car shortages. 17 An underlying question in this case is whether an order regulating car use to alleviate an emergency car shortage can be issued without a hearing when it affects the application of published tariffs for transportation services, which in other instances would require pro- ceedings, including hearings, under Section 15 of the Act. The effect of the District Court’s decision is that it cannot, although the Act places no such limitation on orders under Section 1(15) and the courts have refused to do so. When the Esch Car Service Act was before Congress, the report of the House Committee on Interstate and Foreign Commerce, HR Rep No 18, 65th Cong, 1st Sess at 7 (1917) emphasized the need for summary proce- dures and broad options to deal with emergency car shortages: . “It may be objected that this [see 1(15)] authorizes a summary proceeding, but similar lan- guage may be found in section 15 of the interstate commerce act relating to the investigation of new schedules. The authority to make just and reason- able direction with respect to car service during the emergency as in the opinion of the commission will best meet the emergency and promote operation of car service in the interest of the public and the ad- vantage of convenience and commerce of the peo- ple presents in general terms the main object for the enactment of the pending bill, and if through its enactment the operation of car service in the inter- 18 ests of the public and to the advantage of conven- ience and commerce of the people is secured its en- actment is wise.” (Emphasis added) ; ee . Present conditions in the industry do not suggest that the Commission’s authority to respond promptly in such cases without a hearimg has become less nec- essary. Indeed, this Court has-recently held that the hearing required before issuing car service orders un- der Section 1(14) of the Act need not be adjudicatory in nature. United States v. Allegheny-Ludlum Steel Corp., (1972) 406 US 742. See also United States v. Florida East Coast Railway Co., (1973) 410 US 224, in which the Court took note of criticism of the Commis- sion for “conducting too many hearings and taking too little action.” 410 US at 232. It is clear from the statute and from the decided cases that car service orders do not depend upon oral testimony and cross-examination, and that hearing procedures designed to determine “reasonable com- pensation for use” are unnecessary in proceedings for such orders. A corresponding liberality should be ex- tended to orders under Section 1(15), which are the only summary proceedings authorized by the Act 19 to deal with emergency situations. The right to a hear- ing in rate proceedings under Section 15 should not in- hibit or limit the scope of emergency orders under Sec- tion 1(15). The| District Court’s view that Car Service Order 1134 caii only be issued after hearings because it affects transportation charges unreasonably restricts the Com- , wa authority to deal with emergency car short- ages and is not consistent with the Congressional pur- pose or with the ve of this Court. 2. It is uncertain if a regulation limiting hold time is authorized by Section 15. i shown above, Car Service Order 1134 is a regula- tory limitation on hold time which is limited in scope and duration, Consequently, there was no need to ‘en- | gage in lengthy proceedings under Section 15, which would be appropriate if it was an order ‘to establish | compensation to’ reimburse railroads for loss of use of cars held at reconsignment points. We should add that it is not clear that a regulatory order of this kind, which does not contemplate increased revenue for carriers and would fail if there were any, is authorized by Section 15. This Court has recognized that in applying the National Transportation Policy (49 USC preceding Section 1) orders under Section 15 can 20 be shaped by regulatory considerations,!1/ inchiding considerations. of car supply. However, it is difficult to find in the dieiie of Section 15 authority to engage in regulation, as such, for purposes other than to determine reasonable com- pensation and to prevent or remedy unjust or discrimi- natory charges, and a purely regulatory order whose only purpose is to control the use of cars does not ap- pear to be contemplated by Section 15. See Palmer v. United States, (D DC 1947) 75 F Supp 63 at 68. Cer- tainly, orders such as this are commonly issued as car service orders under Section 1(14) or 1(15). : If the Commission cannot, deal with in-transit salés ethene: under Section 15 or through car service’ or- ders under its emergency power when circumstances require such action, it follows that it has little authority to deal with the matter at all. However, the practice of in-transit sales is a substantial factor contributing to car shortages, and the Court should not invite such a result. 11/ In Atchison, T. & S. F. R. Co. v. Bd. of Trade, (1973) 412 US 800 the Court considered i ge forget in accessorial charges for in-transit grain inspections t were esigned primarily to eliminate wasteful Moy we g ager in the grain industry. The Court order was the result of car — eae re at the Russian grain —— agen | and ; ustices descri it as a’ “promising effort to solve a critical: problem.” “12 US at 836. 21 CONCLUSION Car Service Order 1134 was a valid order under Section 1(15) of the Act, and the decree of the District Court should be reversed. Respectfully submitted, JAMES H. CLARKE, Counsel for Western Railroad Traffic Association, amicus curiae. June 10, 1974 . § OGLESBY H. YOUNG MARK S. DODSON of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0457%3A08. Public record. Not legal advice.