Basic to section 3(1) is the concept of common control. Under outstanding orders of this Commission if one railroad serves both Houston and Corpus Christi, it may not estabish rates to one port without publishing equivalent rates to the other. Further, if two railroads jointly serve both ports, they cannot publish rates favoring one port. However, if one railroad serves one port directly and serves the other by means of joint service with a second railroad, section 3(1) does not give this Commission the power to require equalized rates in the event that the second railroad refuses to participate in an equalized joint rates. The first railroad, by its willingness to offer equivalent service at equivalent rates effectively rebuts any presumption of undue preference or prejudice arising from its publication of a reduced rate to one port.

In Corn & Soybeans Midwest to Gulf Ports, supra, we found that the originating carrier, due to lack of concurrence from the delivering carriers, has not been able to participate in joint-line traffic to the disadvantaged ports and thus lacked the requisite common control for a finding of undue preference and prejudice. In both situations now before us, Sante Fe, the originating carrier, is willing to join in equivalent joint rates with SP and MP to serve Corpus Christi. SP and MP, however, refuse to concur due to a disagreement over divisions. Thus, the requisite common control is lacking over the traffic to Corpus Christi. This conclusion is consistent with our order in Nueces County Nav. District No. 1 v. Atchison, T. & S.F. Ry. Co., supra, and requires no modification of it.

We find that the investigated rates and charges in Investigation and Suspension Docket No. 9052 have been shown to be just and reasonable, and not unduly preferential or prejudicial; and that the assailed cancellation of rates in I. and S. Docket No. 9052 (Sub-No. 1) has also been shown just, reasonable and not unduly preferential or prejudicial.

We further find that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.

Commissioner Murphy, whom COMMISSIONER HARDIN and GRESHAM join, dissenting:

This is one more dismal chapter in the dismantling of the port equalization policy carefully erected by the Commission over a period of time. See my separate expression in Corn & Soybeans Midwest to Gulf Ports, 349 I.C.C. 1, 6-8, and the reports cited therein. The only difference from Corn & Soybeans Midwest to Gulf Ports, supra, appears to be in the origin area of the movements and the initiating carrier. The connecting carriers, Missouri Pacific and

the Southern Pacific, although necessary to an understanding of the proceedings have again chosen not to make an appearance.

The evidence of record warrants a finding that both proposals are unduly prejudicial to Corpus Christi and in violation of the gulf port equalization orders. Some of the routings involve the Santa Fe and the Texas and Pacific Railway Company. The latter is involved in the merger with the Missouri Pacific. See Mopac-Merger-T&P and C&EI, 348 I.C.C. 414.4

Of significant importance is the matter involving the proposed cancellation of reduced rates on corn and sorghum grain to Corpus Christi. Despite the contention that the schedules under consideration were allegedly published in error, respondents have the burden of proof in justifying the proposed cancellation, Cf. Lake Cargo Coal, Ky., Va., and W. Va. to Ashtabula Harbor, 329 I.C.C. 549. In my opinion, respondents have failed to meet their burden under the statute. Additionally, it appears that the matter was handled before a rate bureau under the former section 51 (49 U.S.C. 5b) procedures. If the Commission's decision in Rate Bureau Investigation, 349 I.C.C. 811, 351 I.C.C. 437 is to have any significant meaning, then the circumstances involving the processing of this matter before the rate bureau should be fully explained by the carriers.

Accordingly, I stand on my separate expression in Corn & Soybeans Midwest to Gulf Ports, supra, and respectfully dissent from today's decision.

COMMISSIONER O'NEAL, dissenting in part:

I would reopen the investigation in the proceeding in order to ascertain the divisions which the Santa Fe offered to the Missouri Pacific and the Southern Pacific. The report of the majority indicates that the nonconcurrence of a connecting carrier effectively deprives the origin carrier of common control over the routes to the allegedly preferred and prejudiced parts. That is not necessarily so. An originating carrier may predicate the lower joint rate upon a division of revenues which substantially reduces the share of the connecting carrier or carriers. By so doing the origin

*Certain interveners therein, including the Santa Fe, withdrew their opposition to the merger on the stipulation that traffic conditions, such as those prescribed in Detroit, T. & I. R. Co. Control, 275 I.C.C. 455, or similar conditions be imposed.

355 I.C.C.

carrier could virtually compel the nonconcurrence of the connecting carriers.

The Commission should therefore examine the proposed divisions for any significant departure from their prior basis.

VICE CHAIRMAN CLAPP did not participate.

It is ordered, That this proceeding be, and it is hereby, discontinued.

355 I.C.C.

No. 36279

DENENHOLZ & JANER, INC., PETITION FOR DECLARATORY ORDER-STATUTE OF LIMITATIONS

Decided August 31, 1977

Upon petition for a declaratory order and arguments tendered by petitioner and interveners, found that (1) the statute of limitations on overcharge claims is tolled upon the filing of an overcharge claim with any carrier participating in a through joint rate; (2) a carrier's inability to handle an overcharge claim establishes a privilege and a right to transfer said overcharge claim for handling by any connecting carrier in the route movement; and (3) a connecting carrier's failure to handle a claim shall constitute a disallowance of the claim as said term is used in section 16(3)(c) of the act. Proceeding discontinued.

James I. Collier, Jr., John J. Paylor, and James E. Sykes for railroads.

Milton H. Bortz, David H. Coburn, John T. Coon, Rex Eames, John W. Joyce, Ronald J. Mastej, Elmer J. Maue, Bryce Rea, Jr., John M. Records, Sherman D. Schwartzberg, Thomas G. Sloan, and C. H. Swanson for motor carriers.

William J. Augello, Raphael J. Janer, Jack H. Miner, George Carl Pezold, Jon R. Roy, Barrie Vreeland, and Charles G. Wise for shippers.

Richard G. Lougee for himself.

REPORT AND ORDER OF THE COMMISSION

DIVISION 2, COMMISSIONERS HARDIN, MURPHY, AND CLAPP

BY DIVISION 2:

The modified procedure has been followed. Requested findings not specifically discussed in this report nor reflected in our findings or conclusions have been considered and found not justified or their resolution not necessary for the proper disposition of this proceeding.

By petition filed May 20, 1976, Denenholz & Janer requested reconsideration of the order of the Commission entered May 3,

1976, denying petitioner's request for a declaratory order. Petitioner requested an interpretation of sections 16(3)(c) and 204a(2) of the act that (1) the statute of limitations on overcharge claims is tolled upon the filing of an overcharge claim with any carrier participating in a through joint rate; (2) a carrier's failure, because of bankruptcy or other financial inability to pay an overcharge claim which it acknowledges to be correct, establishes a privilege and a right to transfer said overcharge claim for handling by any financially capable connecting carrier in the route movement; and (3) a connecting carrier's failure to accept and honor such binding obligation shall constitute a disallowance of the claim as said term is used in the statute of limitations on overcharge claims.

By order entered February 4, 1977, the Commission, Division 2, instituted this proceeding to render an interpretation of sections 16(3)(c) and 204a(2) of the act and to settle the questions stated hereinabove. By its order, the Commission invited by publication in the Federal Register, representations from all persons desiring to participate in this proceeding. Sixteen pleadings and six replies thereto representing rail and motor carriers, shippers, and one individual were filed with this Commission. A list of parties appears in the appendix.

Several motor carriers argue that this Commission does not have jurisdiction to interpret section 204a(2) of the act because that section directs shippers to institute an action at law. Jurisdiction to adjudicate overcharge claims with respect to motor carriers rests in the courts; therefore, these carriers contend, the Commission should not address the applicability of the above questions to motor carriers.

Since we do not have primary jurisdiction over complaints arising in connection with overcharges by motor carriers, we recognize the nonbinding nature of a Commission order concerning these carriers. However, as the questions presented involve a technical interpretation of certain provisions of the Interstate Commerce Act, and the courts often ask for our advice, we are exercising our general authority to entertain the petition seeking an interpretation. See Duplicate Payments of Freight Charges, 350 I.C.C. 513, 516, citing Movers & Warehousemen's Assn. of America, Inc. Petition, 304 I.C.C. 517, 518, and Frozen Cooked Vegetables-Status, 81 M.C.C. 649, 655-656. As for rail carriers, there is no question that we have jurisdiction. Our discussion will thus be primarily directed towards applicability to the railroads and only incidentally to motor carriers.