Complainant has challenged the classification ratings maintained as unreasonable as applied to its shipments here. It argues that each of the commodities compared are of similar materials, and are heavy loading, low value, and low risk commodities. Complainant does not allege that the classification ratings are unreasonable as applied nationwide or even in Alaska, but rather requests that the application of the class rates to the plaster and shale shipped "under the circumstances of this case" be found unreasonable and that application of the commodity rate on cement be applied as the reasonable rate. We find no merit to this contention. It is a fundamental rule of tariff interpretation that commodity rates may not be applied to analogous articles. See Peter J. Schweitzer, Inc. v. Chicago & N. W. Ry. Co., 262 I.C.C. 327, 328 (1945).

Complainant has tendered no evidence to demonstrate the existence of lower rates on shale or plaster between the involved points or between other points. Complainant has limited its comparison to lower commodity and distributive rates on cement and has ignored the equal classification rating between cement and plaster. Although complainant has pointed out that the classification rating on shale is higher than those on cement and plaster, the weight per tote bin of the shale actually shipped was substantially lighter than that for the other two commodities. This fact strongly supports a finding of reasonableness as to the higher classification rating on shale since density is an important factor in the establishment of such ratings.

3

Defendant's tariff provides a class rate of 146 cents hundredweight on hydraulic cement, and two commodity rates of 117 cents hundredweight for hydraulic cement, in collapsible containers subject to a 40,000-pound minimum and 105 cents hundredweight on cement in bulk subject to an 80,000-pound minimum.

Since the minimum volume is not in question, complainant is entitled to one of the lower commodity rates. To determine which commodity rate is applicable, we must decided whether the relatively new Dry Bulk Tote Bins constitute, because of their size (48" x 48" x 53") and carrying capacity, an in-bulk or in-container movement. The record establishes that the carrying capacity approaches 4,500 pounds and that each fully loaded rail car carried

"Although complainant has offered evidence to the effect that the densities of shale and of plaster are almost the same, shipper has testified that the tote bins used were of uniform size; yet, the average bin weight of these two commodities is substantially different. Whether this difference is due to different size loading in the bins or other factors is not pertinent here since the relative density of containers shipped must ultimately provide the actual density for transportation considerations.

between 22 and 23 individual tote bins. We are of the opinion that despite the greatly increased carrying capacity of the containers, these shipments cannot be considered as an in-bulk movement nor qualify for the in-bulk commodity rate. A common legal definition given to "in bulk" is: "As a whole; as an entirety without division in items or physical separation into packages or parcels." Standard Oil Co. v. Commonwealth, 119 Ky. 75, 82 S. W. 1020 and see Wholesale Fruit & Produce Asso. v. A., T. & S. F. Ry. Co., 14 I.C.C. 410, 418 (1908). This is clearly not the situation here and we conclude the involved shipments were not in bulk movements.

The Administrative Law Judge found that the in-container commodity rate was not applicable because allowance is made for return service on the containers used under this item. In its administrative appeal to the initial report, defendant states that the in-container commodity rate is the only applicable rate on the shipments of cement in containers, that the inclusion of a permissive provision for the return of containers does not defeat the item's applicability, and that it continues to offer a return movement of the containers without charge. We also note that defendant provided equipment and personnel to unload the shipment upon arrival at Fairbanks.

In determining the reasonableness of the dual rate structure between in-bulk and in-container movements, consideration must be accorded the average load per car, the type of rail equipment and personnel required, resultant differences in the relative values of the commodity, and the volume of movement. Rate Structure Investigation, Part 13, Salt, 197 I.C.C. 115, 160-1 (1933). The evidence of record shows that defendant provided equipment and personnel to unload the shipment at Fairbanks and that the reason the containers were not returned under the provision for free return movements of containers was due to the value of the containers which were scrapped for their lumber at the North Slope where lumber was in great demand. Although the circumstances presented here are unusual, it is obvious that defendant has incurred increased costs through its supply of man power and equipment and that the value of the shipment was increased by the inclusion of the containers and was greater than what would have been the cement's value had it been shipped in bulk. Therefore, we are unable to find that higher rates were unjust or unreasonable as applied to the subject shipment. Since complainant does not intend to make further shipments of this nature and has not challenged the reasonableness of the dual rate structure as it may be applied in the future, we need not address this question here.

Accordingly, we find the following charges to be legally applicable and reasonable for the considered movement:

Since neither party has disputed the Administrative Law Judge's finding that $37,800 has already been paid to defendant by complainant, the amount remaining due and payable to defendant is $11,320.63, with interest."

FINDINGS

We find that the legally applicable rates were not assessed on the subject shipments; that the class rate of $1.74 hundredweight and $1.46 hundredweight were the applicable and legal rates at the time of movement on ground shale and plaster respectively; that the commodity rate of $1.17 hundredweight was applicable at the time of movement on hydraulic cement, in sacks or collapsible containers; and that the rates and charges they produce are just and reasonable and otherwise lawful for the transportation service performed.

We further find that complainant made the shipments described above; that complainant has paid $37,800; that $11,320.63 remains due and payable to defendant for the service performed.

And 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.

It is ordered, That defendants assess and collect and complainants pay an additional $11,320.63 for the service performed plus interest at a rate which is equal to the average yield (for the week including October 30, 1975), of marketable securities of the United States which have a duration of 90 days.

And it is further ordered, That in all other respects the relief requested is denied and that this proceeding is discontinued.

'See: Notice of Revised Procedures to Calculate Interest Rates, served April 18, 1977.

No. 36558

ROUTING, LOUISVILLE AND NASHVILLE RAILROAD CO.

Decided October 26, 1977

Proposed routing restrictions on interterritorial traffic moving from or to Theodore, Ala., through Northern and Western Gateways found not shown to be just and reasonable or consistent with the public interest. Schedules ordered canceled and proceeding discontinued.

Emried D. Cole, Jr. for respondent.

Donald E. Engle and Donal L. Turkal for protestant.

REPORT AND ORDER OF THe Commission

DIVISION 2, COMMISSIONERS MURPHY, GRESHAM, AND

BY THE DIVISION:

CLAPP

The modified procedure was followed. Pursuant to 15(8) of the Interstate Commerce Act, this proceeding has been assigned to this division for final disposition. 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 appropriate disposition of this proceeding.

By schedules' filed to become effective April 15, 1977, Southern Freight Association, Agent, published for the account of Louisville and Nashville Railroad Company (L&N or respondent), under its right of independent action, new routing restrictions on traffic between Theodore, Ala., and Northern and Western Gateways. Upon protest of the St. Louis-San Francisco Railway (SLSF or protestant), the schedules were permitted to become effective without suspension, but were placed under investigation by order of the Commission's Suspension and Fourth Section Board entered April 12, 1977. For convenience of discussion, these now effective

'Published in SFTB Tariff 985-A, ICC S-739, referred to as Southern-Northern & Western Gateway Routing Guide or Routing Guide.

'Pursuant to section 15(8)(e) of the Interstate Commerce Act, the Commission ordered respondent to keep account of all amounts received, specifying by whom, and in whose behalf the amounts resulting from the rates, charges, rules, regulations, and practices contained in the schedules subject to this investigation were paid.

restrictions will be referred to as the proposal or the proposed restrictions. The present and proposed routing provisions are shown in appendix A.

Evidence in support of the schedules was submitted by the L&N. Evidence in opposition was submitted by the SLSF, to which the L&N replied. Under section 15(8) of the act, respondent has the burden of proof.

Protestant has moved to strike certain portions of respondent's reply filed June 27, 1977. As the basis for its motion, protestant asserts that those portions it objects to contain inaccuracies, and, therefore, should be stricken from the record. We see insufficient reason to strike the involved references because the objection. affects the weight assigned to the evidence and not its admissibility. We also note, as pointed out by respondent in its reply to the motion, that portions of protestant's motion are objectionable and constitute an attempt to expand the record. Accordingly, the motion to strike is denied.

The L&N operates primarily in the Southeast with lines extending from the Gulf of Mexico to the Ohio River and Chicago, Il.. Theodore, served excluisvely by the L&N, is a station on its line between New Orleans and Mobile, and is located approximately 13 miles southwest of Mobile. The L&N currently maintains routes via numerous gateways between Theodore and points in Southwestern (SWL), Western Trunk Line (WTL), Illinois Freight Association (IFA), Central Freight Association (CFA) territories which provide interchange with connecting carriers including the SLSF at junctions within southern territory. The proposed restrictions would apply generally to all commodities moving interterritorially between Theodore and stations in the above territories. The effect of the proposal is to cancel certain joint routes and gateways' which will result in substantially eliminating the SLSF participation in traffic within southern territory on interterritorial shipments moving through gateways to and from Theodore.

The intended objectives of the proposed restrictions, as stated by respondent, are to protect its long haul, and eliminate unnecessary and wasteful transportation and expensive, time-consuming "Routing restrictions between Theodore and TCFB Territory apply only in connection with rates on lumber and related articles published in TCFB Tariffs 17-V, ICC 1743, and 27-X, ICC 1679.

'The proposal restricts routings to the gateways of Memphis, Tenn., St. Louis, Mo., East St. Louis, Ill., New Orleans, La., Evansville, Ind., Louisville, Ky., Cincinnati, Ohio, Covington, Ky., Lexington, Ky., Norton, Va., Paducah, Ky., Metropolis, Ill., Thebes, III., and Cairo, Ill., only from Theodore and not from or to other stations in the vicinity of Theodore.