have been in force and effect not more than 45 days and condition (D) should be restricted to the correction of tariff errors in force no longer than 90 days. Condition (C) is vague and indefinite, and condition (G) appears duplicative of condition (A), since carriers are required to publish rates covering the full scope of their operating authority. The purpose for rule 9 of the rules of procedure relating to special docket meetings is not clear in view of the fact that rule 7 provides for a regular docket meeting at least once a month whenever there is a pending proposal. The scheduling of regular docket meetings appears flexible enough to permit prompt consideration of all proposals without the need for the provisions of rule 9. Rule 11 discusses the procedures for voting by the rate committee. It is deficient as presently proposed in that under agreement quorum requirements two carrier members can take final action for the entire membership. This rule should be amended to provide that rate committee action will be in the form of a recommendation to the member carriers which will become final in the event that there is no objection from a majority of the carriers party to the subject agreement. Rule 12 permits the chairman of the rate committee, who is not a carrier, to become involved in the rate making function. Such rule is beyond the scope of section 5a of the act and should be revised. Rule 15 relates to notification of affected carriers upon receipt by the conference of written notice of independent action by a member carrier. As noted above, what constitutes an "affected" member is unclear, particularly in light of the small number of carriers that make up the conference. Moreover, Notice of Independent Action, 332 I.C.C. 22 requires that rate making organizations give notice of independent action proposals to all member carriers as well as to the shipping public. The agreement should be amended to comply with the foregoing. It is unclear in rule 17 why special permission applications for the waiver of tariff rules are subject to special requirements by the conference. These requirements include special written justification prepared by the carrier and payment of the sum of $25. Fees for such applications should be included in the dues structure on the grounds that any rule relief granted would benefit other members should they elect to become party thereto. Rule 18 permits the conference to publish without docket procedure and without notice to member carriers, such tariff changes as are required by formal order of the Interstate Commerce Commission. As proposed, the grant of authority to make tariff changes without the consent of the carriers is too broad. While normal docket procedures might not be required for some tariff changes, such as those set forth in rule 8 of the rules of procedure, the lack of notice for these changes cannot be approved. We conclude and find that the considered agreement, as amended, does not fully comply with the essential standards established by and under section 5a of the act to support a finding that such an agreement will be in furtherance of the national transportation policy. The record will be held open for a period of 3 months from the date of service of this report to enable the applicants to present a revised agreement in harmony with the conclusions reached herein. If such an agreement is not filed within that period, an order dismissing the application and terminating approval of the agreement in force will be entered. 355 I.C.C. No. 36507 RESTRICTED SWITCHING AT BUTTE, MONTANA, Decided August 4, 1977 New proposed reciprocal switching charge restricted to export-import and noncompetitive domestic traffic found not shown to be unlawful. Proceeding discontinued. Rodger K. Johnson for respondent. Peter M. Lee and Allan R. Post for protestants. REPORT AND Order of Division 2, Commissioners BY THE DIVISION: The modified procedure was followed. Due and timely execution of our functions under section 15(8) of the Interstate Commerce Act imperatively and unavoidably requires the omission of a recommended decision in this proceeding. 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. A magnetohydrodynamics plant (MHD), an experimental facility for the production of electricity, will begin to be constructed near Butte, Mont., in the middle of 1977. This project is funded by the Federal Government through the Energy and Research. Development Administration. By schedules filed to become effective January 12, 1977, respondent Chicago, Milwaukee, St. Paul and Pacific Railroad Company (MW) proposes to establish a new restricted reciprocal switching charge of $44.40 per car, on freight, all kinds, moving between MHD and track connections with protestants Union Pacific Railroad Company (UP) and Burlington Northern, Inc. (BN). The publication provides for open reciprocal switching in connection with import/export traffic and noncompetitive domestic traffic. This latter traffic is defined as that traffic in which the MW does not participate in the line-haul movement. On domestic competitive traffic which the MW handles as the delivering line-haul carrier, it will perform the line-haul terminal switch at no extra charge. If domestic competitive traffic moved inbound line-haul on the rails of the BN or UP, since there is no published reciprocal switching charge, a combination of charges made up of the line-haul rate plus the MW local rate would be assessed against the shipment. The proposed schedules were not suspended, but were ordered investigated by order of the Commission's Suspension and Fourth Section Board served January 13, 1977. Protestants allege that the proposal fails to provide reasonable through routes, provides unjust rates and unreasonable classifications, results in unjust discrimination and undue prejudice, and deprives MHD of its choice of routes in violation of sections 1(4), 1(6), 2, 3(1), and 15(8) of the Interstate Commerce Act. Evidence in support of the proposal was submitted by respondent and in opposition by protestants. Respondent replied. RESPONDENTS EVIDENCE Respondent attributes the selection of the MHD site on the MW tracks to superior service opportunities. Respondent submits it will serve MHD with its main lines, while protestants have only branch lines entering Butte. Respondent argues also that since it has constructed over 200 feet of spur track to reach the MHD site, it should not be deprived of the line-haul revenue that would be lost to it if it permitted reciprocal switching. Respondent states further that similar switching arrangements are common at other nearby industries. Cited in particular was the Victor Bow Chemical Company at Silver Bow, Mont., where Burlington Northern Tariff 191, ICC 228, Item 640, closes the industry to respondent except on Montana intrastate traffic. Respondent states also that protestants are not completely precluded from serving MHD. Respondent suggests that through combination of rates, traffic could move over protestants' lines tó a junction point from which respondent would haul the traffic to MHD. : PROTESTANTS' EVIDENCE Protestants state that there is no proof that MHD chose to locate on respondent's line in order to avoid delay because there have been no actual operations to show evidence of delays. Protestants aver also that BN's Butte line is on the Amtrak route and is considered a main line, not a branch line, as stated by respondent. The BN operates daily and could provide additional service, if necessary. Respondent, as pointed out by protestants, gave no evidence concerning the frequency of its trains. In reference to respondent's comparison of MHD with Victor Chemical Company, protestants indicate that Victor Chemical is the only industry located in Silver Bow. MHD, state protestants, is competitive with other industries at Butte which are served by respondent where open reciprocal switching is maintained between the MW and protestants. These industries include a hardware company, furniture company, Treasure State Gas and Electric Company, and Westinghouse Electric Supply Company. Protestants argue that unless there is substantial dissimilarity in the switching operation between competitive and noncompetitive traffic, the local carrier may not favor one type over the other. Contrary to respondent's statement that protestants are not completely excluded from serving MHD, protestants state that the combination rates suggested by respondent will always be higher than the charges for shipping by respondent's line alone. Thus according to protestants' example, machinery shipped to MHD via BN-Butte-MW would be charged the BN-Butte line-haul rate plus the MW local line-haul rates. The same routing to Westinghouse would result only in the BN line-haul charge because BN, under Milwaukee Tariff 11606-P, ICC B-8381, Item 1440, could absorb MW's switching charge. Thus on general commodities such as cement, gravel, plumbing supplies, furniture machinery, and electrical equipment which are needed now by MHD and possibly by the other Butte businesses in the future, these other businesses. are preferred. The other companies can ship at equally low rates on any of the railroads including the MW, while MHD will pay more if it chooses any line other than MW. Protestants state that under these tariffs coal is the only significant commodity to be received by MHD which will be shipped on other than respondent's lines. Protestants argue that the tariff thus discriminates between export-import and domestic noncompetitive traffic, on the one hand, and domestic competitive traffic on the other. Respondent's physical switching operation remains the same in both cases. Protestants aver also that denial of full reciprocal switching discriminates against MHD as well as protestants in violation of section 2 and 3(1). Finally, it is argued that the restricted switching |