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July 22, 1970

The UNITED STATES of America and Interstate Commerce Commission, Defendants

Friendly, Circuit Judge, Mishler, Chief District Judge, and Bartels, District Judge.

The opinion of the court was delivered by: FRIENDLY

FRIENDLY, Circuit Judge:

The Long Island Railroad asks us to enjoin the enforcement of an order of the Interstate Commerce Commission in Ex parte No. 252 (Sub. No. 1) Incentive Per Diem Charges -- 1968, made under § 1(14)(a) of the Interstate Commerce Act. The order adopted rules and regulations establishing additional "incentive" per diem charges for unequipped boxcars from September 1 through February of each year. *fn1" The Long Island does not claim a lack of substantial evidence or of rational basis for the order if the Commission was entitled to rely on the study hereafter described without allowing this to be tested and rebutted at an oral hearing. Its criticisms go rather to procedure. *fn2" Chicago & Northwestern Railway Company intervened in support of the order.

 The order is the latest chapter in a long history of freight-car shortages in certain regions and seasons and of attempts to ease them. Power over car service and payments by a railroad for the use of cars not owned by it was first conferred on the Commission by the Esch Car Service Act of 1917, 40 Stat. 101. One provision added to the Interstate Commerce Act a new section, now § 1(14)(a):

The commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service, including the classification of cars, compensation to be paid for the use of any car not owned by any such common carrier and the penalties or other sanctions for nonobservance of such rules.

 Another provision added the predecessor of § 1(15), which empowers the Commission, whenever it is "of opinion that shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in any section of the country * * * either upon complaint or upon its own initiative without complaint, at once, if it so orders, without answer or other formal pleading by the interested carrier or carriers, and with or without notice, hearing, or the making or filing of a report" to take various steps designed to alleviate or end the crisis.

 In utilizing the power conferred by § 1(14) to fix compensation by one railroad for use of the cars of another, the Commission had considered, at least since Judge Prettyman's characteristically able opinion for a three-judge court in Palmer v. United States, 75 F. Supp. 63 (D.D.C. 1947), that it could not include in per diem charges any amount designed solely to stimulate the early return of freight cars but was limited to fixing fair compensation in the public utility sense. Despite increases in the amount of such payments *fn3" and the Commission's use of its emergency powers under § 1(15), car shortages have become an increasingly serious problem. As stated by the Senate Committee on Commerce in 1966, in recommending the amendment of § 1(14) with which we are here concerned, "Car shortages, which once were confined to the Midwest during harvest seasons, have become increasingly more frequent, more severe, and nationwide in scope as the national freight car supply has plummeted" S. Rep. No. 386, 89th Cong., 1st Sess., pp. 1-2; see also H. Rep. No. 1183, 89th Cong., 1st Sess. To help the Commission deal with car shortages more effectively Congress added to what had become § 1(14)(a) the following two sentences:

In fixing such compensation to be paid for the use of any type of freight car, the Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed solely on the basis of elements of ownership expense involved in owning and maintaining such type of freight car, including a fair return on value, or whether such compensation should be increased by such incentive element or elements of compensation as in the Commission's judgment will provide just and reasonable compensation to freight car owners, contribute to sound car service practices (including efficient utilization and distribution of cars), and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense. The Commission shall not make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate and may exempt from the compensation to be paid by any group of carriers such incentive element or elements if the Commission finds it to be in the national interest.

 Pursuant to this new authority, the Commission, on June 23, 1966, instituted an investigation, Ex parte No. 252, Incentive Per Diem Charges, see 31 Fed. Reg. 9240, "to determine whether information presently available warranted the establishment of an incentive element increase, on an interim basis, to apply pending further study and investigation," 332 I.C.C. 11, 12 (1967). Representations were received from many railroads, the Commission's Bureau of Enforcement, and other interested parties, and hearings for the examination of witnesses were conducted. The Commission rendered a decision in October, 1967, 332 I.C.C. 11. The agency thought it to be "of the most utmost importance" that before imposing incentive per diem charges "little, if any, doubt exist as to its necessity and effectiveness," 332 I.C.C. at 13-14. It considered the available information, consisting of reports summarizing shortages and surpluses for each carrier, -- the type of reports regularly made by Class I carriers to the Association of American Railroads -- "insufficient to support any valid conclusions in this case," 332 I.C.C. at 17. While discontinuing the proceeding, it announced that it was embarking "on an investigatory-research program which will use sampling procedures developed and administered by our staff to provide current data on valid car orders and the available supply of operative cars to meet actual needs" and other studies relevant to the discharge of its duties under the 1966 amendment. Two Commissioners dissented, arguing in effect that the agency should not defer action that was plainly needed in a quest for a degree of certainty whose attainment, if possible at all, would take much time. *fn4"

 In December, 1967, the Commission initiated the rule-making proceeding that gave rise to the order here under review, 32 Fed. Reg. 20987. It directed 72 Class I and 63 Class II line-haul railroads to compile and report detailed information with respect to freight car demand and supply at 2641 sample stations for selected days of the week during 12 four-week periods beginning January 29, 1968. The proceeding was "assigned for hearing" at the Washington office of the Commission "on a date hereafter to be fixed;" consideration would be given to requests for hearings at other places.

 In response to petitions filed by ten railroads (including the Long Island) early in 1968 for clarification of the order initiating the proceeding and for a pre-study conference, the staff conducted such a conference on April 23, which counsel for the Long Island attended. There was an extensive agenda, including several items relating to the disclosure of staff work papers and data obtained in the study. A detailed report of the results of the conference was sent to all parties. The Commission kept close watch over the data being supplied and, on July 22, 1968, called the railroads' attention to some instances of improper reporting although these were regarded as "rare" and "minor." Also, on January 24, 1969, it issued a further order indicating that as a result of the processing and a preliminary analysis of the accumulated data, "certain revisions and refinements" appeared desirable. The Commission sought the views of the parties about the revisions and suggested that any party disagreeing with the need for the further study should submit "its alternate suggestions, if any, as well as any suggestions as to additional studies which are deemed necessary to supplement those which are involved here." Various parties responded; the Long Island thought the proposed new study would be "useless and ridiculous" and a "waste of time and money on a wild goose chase." The proposed new study was not further pursued.

 The Chairman of the Commission, another Commissioner who had dissented from the discontinuance of the 1967 proceeding, and members of the agency's staff appeared at a hearing before the Sub-committee on Surface Transportation of the Senate Committee on Commerce on May 13, 1969. See 91st Cong. 1st Sess., Serial No. 91-8. They presented a staff "Report of the Results of Freight Car Study in Ex Parte No. 252 (Sub No. 1)." This included a narrative summary and analysis, a set of five tables of data, and a justification of the statistical reliability of the underlying information. The Chairman announced the Commission's intention to give the study "to the railroads in the very near future," id. at 4, and then to proceed to have "the validity of the study's conclusions * * * tested against other evidence" to be received "in the hearings which must be held before any incentive per diem rates can be established."

 To say that the presentation was not received with enthusiasm would be a considerable understatement. Senators voiced displeasure at the Commission's long delay in taking action under the 1966 amendment, engaged in some merriment over what was regarded as an unintelligible discussion of methodology, id. at 119, and expressed doubt about the need for a hearing, id. at 116-17 (Senator Hartke), 119, 130 (Senator Magnuson). But the Commission's general counsel insisted that a hearing was needed, id. at 117, 119, and the Chairman of the Commission agreed, id. at 127.

 The expressed intention to make the staff report available to the railroads shortly after the Sub-committee hearings was not carried out as such, although counsel for the intervenor obtained a copy and counsel for the Long Island acknowledges seeing the tables in the spring of 1969. The principal reason for this, apparently, was not any desire for secrecy but rather that the tables in this report assembled the data only for the first six and second six periods (as well as for the full year), a division which, it was concluded, was not sufficiently refined. In any event seven months later, in December 1969, an Interim Report of the Commission was released.

 In the Report the Commission announced its tentative conclusion to adopt an incentive per diem charge for standard boxcars only. This was to be payable only during the six months period from September 1 to the end of February. Since the incentive charge was to produce an additional 6% return over and above the 6% already fixed as fair compensation, the incentive payment during the six months was to be at the rate of 12% on depreciated cost. "Net incentive balances" were to be set aside in a reserve earmarked for the purchase of general service, unequipped boxcars in addition to normal replacements. The Interim Report included a sixteen page description of "The Railroad Freight Car Study" and nine pages of data and graphs drawn from it. In some respects the material was more and in other respects less detailed than the document presented to the Senate Subcommittee, to which reference was made. Attached to all this were a proposed rule embodying the Commission's tentative conclusions and an order directing that "verified statements of facts, briefs and ...

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