provisions create a denial of routing discretion in violation of section 15(8).

RESPONDENTS REPLY EVIDENCE

Respondent states that MHD, as a unique facility, does not compete with other Butte industries. Thus, not only is there no unjust discrimination or undue prejudice by comparison with these other industries, but the comparison with Victor Chemical Company, which is closed to MW by BN tariffs, remains valid. Respondent states further that closed industries are common occurrence, and names other industries closed to MW by BN.

On the question of service, respondent suggests that the fact that MHD chose to locate on MW lines is unassailable evidence that MW facilities, location, and access to Butte are superior. Respondent states further that delay in the home yard before switching means a 12- or 24-hour delay for commodities arriving by BN or UP. Thus goods arriving on the 6 a.m. BN will not be switched until 6 p.m., while goods arriving on the 6 p.m. BN will not be switched until 6 p.m. the following day. MW, on the other hand, operates three freight trains in each direction through Butte, two of which will either pick up or set out cars for Butte.

Respondent states further that the fact that BN does not participate will not impede traffic flow or increase prices. All commodities, state respondent, can be handled by MW or by joint BN-MW routes with no increased charges. Respondent states that there has been no showing by any shipper of a need for a direct BN

route.

A list of the commodities and origins needed by MHD was submitted by MW. Respondent states that the shipment of these commodities will result in no additional charges for MHD. Traffic from California, Utah, Denver, St. Louis, and Dallas can be handled by joint lines. Chicago, Minneapolis, and Kansas City traffic can be handled by direct MW routing or by joint BN-MW routing. MW can handle directly traffic from Seattle. Respondent indicates that BN will move coal, the most important long-range commodity entering MHD, since coal originates only on BN lines. As a noncompetitive commmodity, coal will be subject to reciprocal switching by MW. Respondent argues that requiring it to establish reciprocal switching for competitive commodities would be requiring it to short haul itself while establishing a through route. This is contrary to section 15(4) unless lack of a through route unduly prejudices

shippers in violation of section 3. Respondent argues that no such violation has been shown.

DISCUSSION AND CONCLUSIONS

Respondent in this case proposes to establish a reciprocal switching tariff applicable only to import-export and domestic, noncompetitive traffic. It should be considered that protestants desire not the elimination of this reciprocal switching charge but the expansion of that tariff to include domestic competitive traffic. It should also be noted that this proposal does not involve the cancellation or restriction of switching charges already in effect. To that extent, the factual situation is quite different from the cases cited by protestants.

Protestants allege that MW's refusal to include in their tariff proposals the establishment of reciprocal switching charges on domestic competitive traffic is a violation of sections 1(4) and 1(6). Section 1(4) requires that carriers furnish transportation upon reasonable request therefor, and that they establish reasonable through routes with other carriers and provide reasonable facilities and regulations for operating such routes. However, as stated in Routing Restrictions Over Seatrain Lines, Inc., 296 I.C.C. 767, 774 (1955), there is nothing in the act that requires a railroad to establish through routes via all possible junctions or by way of all railroads. While a carrier may not, except under extraordinary conditions, lawfully refuse to transport a shipment from or to any point on its lines, including interchange points, it has greater latitude in determining when to establish joint routes.

The decisions of the Commission concerning reciprocal switching provide that so long as a railroad does not unduly discriminate or prejudice shippers or receivers on its line, it is not required to provide reciprocal switching and thus short haul itself. See, Veenstra Lbr. & Supply Co. v. Chicago & N. W. Ry. Co., 279 I.C.C. 203, 208 (1950); Northwest Metal Products, Inc., v. C., M., St. P. & P. R. Co., 272 I.C.C. 401 (1948); Columbus Freight Bureau v. Central of Georgia Ry. Co., 303 I.C.C. 367 (1958); High Point Chamber of Commerce v. Southern Ry. Co., 314 I.C.C. 683 (1961). The record does not support a finding that the MW, by its proposal, will discriminate or prejudice shippers or receivers on its line. Protestants have alleged that other industries in the Butte area, served by both the MW and protestants, and subject to open reciprocal switching provisions, will be preferred on many

commodities, while MHD, under the present proposal, will be prejudiced on the same commodities. Protestants' general allegations are insufficient. There is no showing by protestants that discrimination or prejudice is other than a future possibility. In these questions, moreover, there has been no showing that origins are like, that services are contemporaneous, that products are or will be the same, or actual showing of competitive injury to establish discrimination or preference and prejudice. Respondent notes that of the commodities needed by MHD in its initial phase of construction, shipments of these commodities will result in no additional charges for MHD, because they will move via established joint-line routes, by the MW alone, or by joint BN-MW service. As a result, in not one of these routed movements on competitive commodities will additional charges be assessed against MHD or against the shipper at origin. Based on the above, protestants have not shown violations of sections 1(4), 2, and 3(1) of the act.

The Commission has held that it cannot accomplish through section 1 what it is prohibited from doing by section 15. Columbus Freight Bureau v. Central of Georgia Ry. Co., supra at 377. Under section 15(3), the Commission may establish through routes and joint rates, fares, or charges. However, section 15(4) states that:

In establishing any such through route the Commission shall not (except as provided in section 3 ***) require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad *** which lies between the termini of such proposed through route, (a) unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established, or (b) unless the Commission finds that the through route proposed to be established is needed in order to provide adequate, and more efficient or more economic, transportation.

Since establishment of the issue through route would require MW to short haul itself, prescription is prohibited unless the facts fall within one of the exceptions of section 15(4). It does not appear that the establishment of a through route exclusively on MW lines makes shipping routes unreasonably long. The Commission concluded in a related Butte switching case that distances from representative points to Butte via MW were comparable to distances via BN. I. & S. docket No. 9112, Switching Charges at Port of Butte, Mont., C. M. St. P. & P. R.R., decided March 25, 1977 (not printed).

The question remains whether protestants' proposed through route is necessary to provide adequate, and more efficient or more economic, transportation. The fact that MW is trying to establish a

price advantage over UP and BN may indicate that MW doubts its ability to compete on service where the charges are identical for use of any of the three railroads. There is some evidence also that shippers generally have favored BN in spite of delays that may arise from switching requirements. Switching Charges at Port of Butte, Mont., C.M. St. P. & P. R.R., supra.

However, respondents' evidence indicates that it operates three freight trains in each direction through Butte and that it expended a special effort in building a 200-foot spur track to serve MHD. Protestants have submitted no evidence indicating that MW cannot meet the requirements of MHD or that joint rates on competitive traffic are needed to provide adequate service. Thus, we cannot require MW to establish reciprocal switching under section 15, and, therefore, find no violation of section 1(4).

For the same reasons, we find no violation of section 1(6). Columbus Freight Bureau v. Central of Georgia Ry. Co., supra at 377; High Point Chamber of Commerce v. Southern Railway Co., supra at 689; Joseph A. Goddard Realty Co. v. New York, C. & St. L.R. Co., 229 I.C.C. 497, 502 (1938).

Protestants allege that respondent is violating section 15(8) of the Interstate Commerce Act. Although protestants offer little discussion of this allegation, we assume they meant to refer to section 15(10) of the act, as amended by the 4R Act. This provision gives the shipper the right to designate by which of two or more established through routes his shipments must be transported. Note, however, that section 15(10) refers to "established" through routes. The issue in the present case is whether a through route for domestic competitive traffic should be established for the future by means of reciprocal switching provisions. Thus the question raised by section 15(10) is never reached. See, High Point, supra, 691. We find the proposed restricted reciprocal switching charge not shown to be unlawful.

We further find that this decision is not a major Federal acton significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. It is ordered, That this proceeding is discontinued.

355 I.C.C.

ORDER'

At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D.C., on the 28th day of June 1977.

INVESTIGATION AND SUSPENSION DOCKET No. 9164

TRANS ALASKA PIPELINE SYSTEM
(Rate Filings)

No. 36611

TRANS ALASKA PIPELINE SYSTEM
(Rules and Regulations)

Initial rate tariffs have been filed by eight pipeline companies, proposing to operate as common carriers of crude petroleum over the Trans Alaska Pipeline System (TAPS).

Protests and petitions for suspension of the tariffs have been filed by the United States Department of Justice, the State of Alaska, the Arctic Slope Regional Corporation and our Bureau of Investigations and Enforcement. These pleadings seek to invoke our power under section 15(7) of the Interstate Commerce Act (1) to enter upon a hearing concerning the lawfulness of the tariffs and (2) pending the hearing and decision, to suspend the operation of the tariffs for a period no longer than 7 months. Replies to the protests have been filed by each of the eight carriers.

The tariffs are identified in appendix 1 to this order. As noted therein, the various rules contained in the tariffs have already been placed under investigation by Commission order dated June 17, 1977, docket No. 36611. Consideration of the tariff rates, however, was deferred to the present order. The rates per barrel proposed by the respective companies are as follows:

With respect to these rates, we have given careful consideration to the protests, and to the carriers' replies. In addition, we have heard oral argument by the parties. It is our conclusion that a formal investigation concerning the lawfulness of the proposed rates should be instituted pursuant to sections 15(1) and 15(7) and that because of the close interrelationship of the rate filings and the applicable rules and regulations, they should be considered in the same proceeding. We further conclude that such rates should be suspended, without prejudice to the filing of interim rates, during the suspension period.

Corrected to include charges set forth in correction notice dated June 29, 1977.