possibility that an affected shipper may not be a subscriber to a particular obscure tariff publication. We note that the problems of according notification to affected shippers when an individual rail carrier exercises its right of independent action is not unique to the publication of schedules under § 15(17). Section 5b only applies to rates filed collectively by two or more carriers. Then and only then are the extensive notification requirements made mandatory and the fact that demand-sensitive rates are involved does not alter this fact. NACS questions the ability of the railroads to furnish accurate cost and revenue data specifically relating to individual commodities on the grounds that rail costing is based on periodic volumes, rather than individual shipments and commodity characteristics. In reply, we note that where the carriers submit cost and revenue data which shippers do not feel is representative, the expeditious procedures adopted herein ensure the shipper will have an opportunity to make such a showing. Without further elaboration, GMI states that while they have no specific objections to any truly expedited procedures and the regulations set forth in the proposed rules, they see many of the proposed procedures to be a hindrance rather than expedition. AAR submits an entire revamping of the proposed rules. In addition to those issues involving definitions, deletion of the initial statement section and allowing for 5 days' notice in certain circumstances, AAR also suggests that a "purpose" section be added to incorporate the objectives specified in §15(17) of the act as amended (in lieu of incorporating the same in a definitional context), and a "standards" section, which places emphasis on the need for innovative ratemaking and the attainment by the railroads of adequate revenue levels, also be included. We concur with these two latter proposals and have incorporated them into the amended rules by adding the two sections (see appendix D). 9. ADDITIONAL GOALS We also solicited a listing of goals (other than those set forth in the 4R Act) which seasonal, regional, or peak-period rates may achieve, and also an appraisal of what weight these goals should be accorded. GPC cites four such goals: the demise of anachronistic and inflexible rate structures, rate making synchronized to capitalize on inherent rail advantages, a more competitive modal profile, and market awareness. ADM submits that the use of a rail transit freight bill and the reduction of rail gathering rates to price basing markets respect to publishing, posting, and filing of tariffs, either in particular circumstances or by a general order applicable to special or peculiar circumstances or conditions. The Commission will be liberal in granting special permission where appropriate. Use of this provision will not only afford the carriers the requisite flexibility necessary for the success of § 15(17), but at the same time provide adequate and sufficient notice and safeguards to the affected shippers. Regarding certain notice requirements we proposed requiring the carriers to place on the title page of publications containing demand sensitive rates (see appendix A of the proposed rules, § 1109.10(b)) and on transmittal letters (see appendix A, § 1109.10(c)), we now believe greater clarity and uniformity can be obtained by specifying the content of the title page, thereby ensuring that it will be identical to what we have specified for inclusion in the letters of transmittal. Accordingly, we will revise the rule governing the title page to read as follows: (c) Title page. In addition to requirements of 49 CFR 1300.3, the title page of publications containing demand-sensitive rates must show the following notation: "This tariff (or supplement or loose leaf amendment) contains a demand-sensitive rate (see item(s) ) within the meaning of 49 CFR 1109.10(b).” Moreover, because of this change the proposed § 1109.10(f), "Notice to Subscribers," can be eliminated. This is feasible because the title page notation as revised above will serve as notification for all receivers thereof, and hence all subscribers. In view of this change, the rules following the former § 1109.10(f) will be appropriately renumbered. In response to representations regarding the role multitiered rates play in the standards and expeditious procedures adopted herein, it should be noted that multitiered rates are not precluded by our regulations. The need of some shippers to have assurances that the demandsensitive rates will remain in effect for a sufficient period as a prerequisite to investing in equipment and facilities necessary for utilizing the rate incentive is in apparent conflict with the need of the carriers to be able to extricate themselves from experimental rate schedules which fail to obtain their expected objectives. If carriers feel that they will be unable to quickly cancel these financially burdensome rate schedules, then they will be wary of initiating experimentation, and the innovative aspect of § 15(17) will have been frustrated. In balancing the conflicting interests, we believe that both can be satisfied by the promulgation of the following amendment of the proposed rules. (e) Standards. (7) when cancellation of a demand-sensitive tariff is at issue, shippers' investment made for the purpose of availing themselves of the incentive offered thereunder will only be considered where: (i) the rate has been in effect for 2 years without substantial change; or (ii) the shipper can show that the carrier has made respresentation regarding the duration of the rate schedule and that the shipper in fact relied on such representations to his detriment. (h) Cancellation of a demand rate.-A demand rate published pursuant to this section may be cancelled on 30 days' notice and the cancellation supplement will not be suspended within 3 years of the date of its initial publication, unless an affected shipper makes a showing pursuant to section 1109.10(e)(7). The type of carrier representation we refer to in the amended Standards section, supra, relates only to the duration of a specified rate and is clearly distinguishable from formal agreements between shipper and carrier regarding the amount or percentage required of the shipper to obtain a lower rate at times referred to as an "incentive rate." Agreements of that nature have in certain circumstances been found to result in destructive competition. See Guaranteed Rates, Sault Ste. Marie, Ontario, to Chicago, 315 I.C.C. 311 (1961), and Contract Rates, Rugs and Carpeting from Amsterdam, N. Y., 313 I.C.C. 247 (1961), affirmed sub nom. New York Central R. Co. v. United States, 194 F. Supp. 947 (S.D. N.Y. 1961), affirmed per curiam 386 U.S. 349 (1962). More recently, we found unlawful an agreement requiring an 850,000-ton shipper commitment because the volume was so substantial, irrespective of its percentage to the total traffic movement, as to also destroy competition. Great Lakes Ship Owners Assn. v. Chicago & N. W. Ry., 341 I.C.C. 272 (1972). Such rates resulting in destructive competition are unlawful even though they have favorable aspects. (See Guaranteed Rates, supra, at 318-319.) Our prior findings with regard to destructive competition, however, are not to be construed as indicating any misgivings on our part toward innovative rate making which benefits shipper and carrier alike. Indeed, we have approved unit-train rates, annual volume rates-provided no destructive competition is involved-multiple car rates, and rent-a-train agreements where they result in more efficient use of carrier equipment and thereby provide a cost savings for the carriers, which can and should, at least in part, in turn be passed on to the shipper. See, for example, Grain by Rent-A-Train, IFA Territory to Gulf Ports, 335 I.C.C. 111 (1969) and 339 I.C.C. 579 (1971); Unit Train Rates on Wheat, 346 I.C.C. 814 (1974); and Investigation of Railroad Frt. Rate Structure-Coal, 345 I.C.C. 493 (1976). In Tariff Cir. No. 20-Intermediate Applic. of Rates, 352 I.C.C. 28, 34 (1976), we said: We believe that it is in the best interests of shippers and carriers alike for the Commission to follow current practices of allowing the greatest flexibility in the establishment of modified rules under special permission authority to meet the challenges posed by continual changing transportation and economic circumstances and conditions regarding the publication of volume and other rates generally. The development and refinement of rail volume rates, including annual volume, may likely increase rather than diminish because of competition among the various transport modes. 8. MISCELLANEOUS ISSUES RELATED TO THE PROPOSED RULES ADM also supports the proposed rules as sound with the reservation that the Commission should make clear its intent to make certain, on a case-by-case basis, that competing shippers are accorded equal treatment within a region regardless of whether served by the same railroad. In reply, we note that § 15(17) neither supersedes or eliminates other sections of the act and, thus, the prohibition in the act against discrimination remains in full force. Anheuser observes that the proposed rules do not require consultation by the publishing carrier with the industry affected by the demand-sensitive scheme. As discussed earlier, while we believe such interplay between the carrier and the shipping public should be fostered, it should not be forced upon either party. Such meetings could eliminate or reduce later protest to a proposal, and we urge that they be employed. To the extent feasible the Commission offers its good offices to promote discussion and informal conferences upon request of carriers and shippers. At this time it does not appear that shipper requests without some assurance from carriers as to a willingness to discuss would result in meaningful conferences. GF and NITL urge that the proposed rules be amended to provide that proposed demand-sensitive rates be publicized through the socalled "section 5b" process prior to publication because of the possibility that an affected shipper may not be a subscriber to a particular obscure tariff publication. We note that the problems of according notification to affected shippers when an individual rail carrier exercises its right of independent action is not unique to the publication of schedules under § 15(17). Section 5b only applies to rates filed collectively by two or more carriers. Then and only then are the extensive notification requirements made mandatory and the fact that demand-sensitive rates are involved does not alter this fact. NACS questions the ability of the railroads to furnish accurate cost and revenue data specifically relating to individual commodities on the grounds that rail costing is based on periodic volumes, rather than individual shipments and commodity characteristics. In reply, we note that where the carriers submit cost and revenue data which shippers do not feel is representative, the expeditious procedures adopted herein ensure the shipper will have an opportunity to make such a showing. Without further elaboration, GMI states that while they have no specific objections to any truly expedited procedures and the regulations set forth in the proposed rules, they see many of the proposed procedures to be a hindrance rather than expedition. AAR submits an entire revamping of the proposed rules. In addition to those issues involving definitions, deletion of the initial statement section and allowing for 5 days' notice in certain circumstances, AAR also suggests that a "purpose" section be added to incorporate the objectives specified in §15(17) of the act as amended (in lieu of incorporating the same in a definitional context), and a "standards" section, which places emphasis on the need for innovative ratemaking and the attainment by the railroads of adequate revenue levels, also be included. We concur with these two latter proposals and have incorporated them into the amended rules by adding the two sections (see appendix D). 9. ADDITIONAL GOALS We also solicited a listing of goals (other than those set forth in the 4R Act) which seasonal, regional, or peak-period rates may achieve, and also an appraisal of what weight these goals should be accorded. GPC cites four such goals: the demise of anachronistic and inflexible rate structures, rate making synchronized to capitalize on inherent rail advantages, a more competitive modal profile, and market awareness. ADM submits that the use of a rail transit freight bill and the reduction of rail gathering rates to price basing markets |