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Mr. DINGELL. These times that you have been discussing with us are fixed by the Commission's rules and not by the Administrative Procedures Act?

Mr. WRIGHT. That's right.

Mr. DINGELL. So the Commission could for good cause, because they have a limitation on the amount of time involved for their procedures, actually abbreviate their procedures and bring the rules in conformity to the requirements of the statute could they not? Mr. WRIGHT. I don't know, sir. Can we ask the views of the

representative from the general counsel's office?

Mr. DINGELL. I would rather have your comments, but Mr. Kahn and I have a great deal of respect for each other.

Mr. Kaun. May I trouble you to repeat the question, Mr. Congressman ?

Mr. DINGELL. Since these requirements with regard to limitations are statutory with regard to the train-off cases, and since the requirements imposed with regard to filing of answers and comments with regard to the opinions of the examiner are simply done by rules, perhaps you may inform us why the Commission could not simply change the Commission rules to provide for expedited response by interested parties in regard to the opinion of the hearing examiner.

Mr. Kaun. Conceivably it might be possible, Mr. Congressman, but the 4-month period also embraces the hearing period

Mr. DINGELL. I am fully aware of this.

Mr. Kaun. So after the close of the record and after the submission of briefs there may not even be time after the submission of the examiner's report for an exchange of exceptions and replies.

Conceivably the time period could be shortened by regulation, yes, sir.

Mr. DINGELL. I find myself very much curious how we can really call this due process, fair play, full hearing, full compliance with procedural due process and fair play, for the Commission to receive the report of the hearing examiner to rather lightly pass it aside and instruct the hearing examiner on what the opinion is going to be, after they have work papers of this kind from many, apparently in thoroughly finished form, with no opportunity for the parties, whether they are railroads, or ordinary citizens, to make appropriate comments.

Mr. Kaun. Of course as Mr. Wright pointed out, Mr. Congressman, the Administrative Procedures Act specifically excludes the service of an examiner's recommended decision when due and timely execution of the Commission's findings does not permit such service.

The Commission in each case, sir, makes findings of fact. Those findings are subject, first, to the filing of petitions for reconsideration at the Commission, and upon

Mr. DINGELL. The statute, 13(a), apparently negates that.
Mr. Kaun. No, sir.
Petitions for reconsideration-
Mr. DINGELL. Limitations of 4 months-

Mr. Kahn. Notwithstanding, petitions for reconsideration are filed as a matter of right by the parties, and of course, after the Commission considers the petition for reconsideration and replies, the matter is subject to judicial review.

Mr. DINGELL. Without ever having in the official records of the Commission the recommendations and factfinding of the person who heard all the facts, circumstances, and pleadings, who had a chance to see and observe the behavior of the different witnesses.

Mr. Kain. That is correct. That is in accordance with the Administrative Procedures Act.

Mr. DINGELL. Well, I have reason to think that it is really not. You have here a situation where you have indicated that it is theoretically possible for the Commission to change, to abbreviate the time and the opportunity for requests, or rehearings, for different kinds of redress and submissions of different types of evidence, rebuttals and so forth by the parties before the Commission with regard to the case.

So I think here we are not discussing the clear requirements of the Administrative Procedures Act, but simply the Administrative Proce. dures Act as applied by the ICC in the light of the circumstances, and I must confess without a great deal of

Mr. Kaun. However, this is subject to judicial review, which determination has been challenged from time to time, but has never been sustained.

Mr. DINGELL. I would have to yield to you on knowledge of this point, but I would be of the opinion that the question has never been presented to the courts in the manner that you and I are discussing it.

Mr. Kaun. I beg to differ.

There are matters where not permitting the filing of an examiner's report has been an issue in the case and has been sustained by the court.

Mr. DINGELL. Can you cite the case?
Mr. Kaun. Not off hand.
I can describe it for the record.

Mr. DINGELL. Knowing you, I knew you would be able to do so, but I would like to have the citation.

Mr. Kaun. I would be pleased to furnish it. (The document referred to follows:)



Washington, D.O., June 18, 1970. Hon. John D. DINGELL, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN DINGELL: At yesterday's hearing before the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, I undertook to furnish you with citations to court cases sustaining the practice of the Interstate Commerce Commission of not serving an examiner's report and recommended order in proceedings that must be accorded expeditious handling, such as train-off cases under section 13(a) of the Interstate Commerce Act.

The Administrative Procedure Act contemplates the omission of an initial decision of an examiner "in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires." 5 U.S.C. $ 557 (b) (2).

The practice of omitting examiner's reports pursuant to the requisite findings has been followed by the Commission almost routinely in proceedings involving rate changes, suspended pending their investigation for the statutory period of seven months. The Commission's handling of such investigation and suspension cases consistently has been sustained by the reviewing courts. Middleuoest Jotor Freight Bureau v. United States, 234 F. Supp. 151, 155 (D. Minn. 1964); Watson Bros. Transportation Co. v. United States, 180 F. Supp. 732, 737-738 (D. Nebr. 1960) and Kenny v. United States, 103 F. Supp. 971, 977-978 (D. N.J. 1952).

The practice as applied by the Commission in its disposition of train-off cases, in which the carriers are free to discontinue the operation of their passenger trains at the end of the four-month statutory period, absent Commission findings that the trains are required by the public convenience and necessity and will not unduly burden interstate commerce, won judicial approval in State of New York v. United States, 299 F. Supp. 989, 993, fn. 4 (N.D. N.Y. 1969), aff'd mem., 396 U.S. 281 (1970). If I can be of further assistance to you, I should be pleased to oblige. Respectfully yours,


Deputy General Counsel. Mr. DINGELL. Mr. Chairman, I thank you. Mr. Moss. Mr. Lishman.

Mr. LISHMAN. Mr. Wright, in your experience on train-off cases, on what do you primarily base your draft report?

Mr. Wright. It is my personal opinion that if the train is operating with very few passengers and at a large loss then that is the most important factor present in the case.

Mr. LISHMAN. What significance do you place on the testimony obtained by the hearing examiner while on itinerary?

Mr. Wright. The use of the train, that is, how necessary it is for the communities that they serve, and the financial evidence in the-well, on and off counts and so forth, are always brought up, or usually brought up to date by the hearing examiner at the hearing.

Mr. LISHMAN. Do you place any significance on the testimony of former railroad employees who have appeared as witnesses?

Mr. Wright. You have to give them some--yes, you have to give them weight. They probably know as much about the trains and their operation as anybody.

Mr. LISHMAN. What is your opinion of the veracity of the testimony submitted by the railroads and the evidence they submit?

Mr. WRIGHT. Well, it is sworn testimony. It is subject to cross-examination at the hearing. Most of the protestants to the case are represented by lawyers who are apparently capable in conducting their cross-examination.

I think the carrier's financial evidence is usually, well, pretty honest.

Mr. LISHMAN. Do I understand that it is your opinion that if the railroad is losing money the train should be removed ?

Mr. Wright. Just on the losing money alone, losing a lot of money and very few passengers using the train, I think it could safely be removed.

Mr. LISHMAN. Do you consider that a train that is losing money furnishes the basis of prima facie evidence that there would be an undue burden on public convenience and necessity in requiring it to be continued ?

I am getting at the fact that 13(a) has provisions concerning public convenience and necessity provided it is not an undue burden on interstate commerce?

Mr. Wright. Of course, that undue burden and convenience and necessity clause in the act is not explained, but I think it is a pretty good indication that a train is not necessary for the public convenience and necessity if it is losing a lot of money.

Mr. LISHMAN. What emphasis do you give the testimony and evidence submitted other than by the carrier?

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Mr. WRIGHT. Evidence submitted-
Mr. LISHMAN. By the protestants!

Mr. WRIGHT. Well the protestants sometimes are rather handicapped in their evidence. That is, they don't have access to records that the carriers do, so you have to more or less lean over backwards to consider their testimony.

Mr. LISHMAN. Am I correct in saying that you, as a grade 15 attorney, review and revise the draft reports of hearing examiners who are grade 16's?

Mr. WRIGHT. I have done so; yes, sir.
Mr. LISHMAN. I have no further questions.
Mr. Moss. Do you have questions, Mr. Springer?
Mr. SPRINGER. Yes, Mr. Chairman.
Just two things I want to clear up, Mr. Wright.

You do take into consideration the public convenience and necessity if there is a public convenience and necessity that is being used, is that correct?

Mr. WRIGHT. Yes.

Mr. SPRINGER. In other words, you don't run a railroad when there are no passengers on it?

Mr. WRIGHT. That is right.

Mr. SPRINGER. There would be a further reason that if it is not paying its way, you don't want to charge that to your freight, and that is the only other way you can make money, isn't it?

Mr. WRIGHT. Money has to come from someplace, yes.
Mr. SPRINGER. Say that, well, the Pennsylvania lost $150 million.

Now the only way they can charge that is to freight. Isn't that the only other service?

Mr. WRIGHT. That is the only other service.

Mr. SPRINGER. So you take the public service and convenience into account as to whether it is being adequately served as it is?

Mr. WRIGHT. Yes.

Mr. SPRINGER. Part of that is whether it is used sufficiently so that it either comes close to breaking even or makes a profit, isn't that correct?

Mr. WRIGHT. Yes.

Mr. SPRINGER. I think there was probably a little misunderstanding between you and the chairman a moment ago. I don't want to say that because I am a lawyer I better understand what the chairman said, but I think I understood, in a way, that you serve the Commissioners in the same way that we will say one of the clerks does—I am not putting you as a clerk, you are a lawyer, but so is the clerk at the Supreme Court a lawyer.

He writes the preliminary opinion. The judge either gets the facts. or he tells him the facts after reading the record, and then he comes to a sort of a conclusion.

They go now into the law on it, and then he gives him an idea of what kind of an opinion he wants written.

Isn't that true?
Mr. WRIGHT. That is correct.

Mr. SPRINGER. I take it that you do at the Commission the same way they do at the courts.

You have those considered liberal, those more central, and thos considered on the conservative side.

Mr. WRIGHT. Yes, sir.

Mr. SPRINGER. Therefore you can't write an independent opinion of your own. You have to write a philosophy of the particular Commissioner, isn't that true?

Mr. WRIGHT. Yes. Mr. SPRINGER. That is what I think you are attempting to say here when you mentioned that, possibly, Mr. Tuggle had a general philosophy that those which were not paying should be discontinued.

Mr. WRIGHT. Sir, I did not mention Mr. Tuggle at all in that respect.

Mr. SPRINGER. I was only speaking in a general way. I am reading from the interview.

Mr. Moss. Would you yield at this point for unanimous consent to include the interview in the record, with the reservation that Mr Wright have a chance to make comments on it?

Mr. SPRINGER. He certainly should have that right. I am not saying whether the interview is right, but Mr. Rebein and Mr. Smethurst were the interviewers in it. I want to explain this, Mr. Wright said that Mr. Tuggle favors taking trains off, Commissioner Brown is generally neutral, and Commissioner Bush is in favor of keeping

trains on.

Did you in essence say that?

Mr. WRIGHT. Yes; that was my opinion. Of course, there isn't any secret about it. Mr. SPRINGER. There isn't any secret about it at the Commission? Mr. WRIGHT. That is the way I believe it to be.

Mr. SPRINGER. So what you do, in writing your opinions, you read the record and you tell them what is on record and then they sort of indicate to you the way in which they think the opinion should be written.

Isn't that right?

Mr. Wright. Yes, sir; in fact, some of the Commissioners send around a little memorandum that instructs me, after I have read the record

Mr. SPRINGER. Then you write the opinion, is that correct?
Mr. WRIGHT. That is right.

Mr. SPRINGER. Then it goes to the Commissioner and he goes over it and changes it or modifies it or strikes through, and it becomes the Mr. Wright. It is adopted by division 3, or the Mr. SPRINGER. That is about the practical way it is done. Mr. WRIGHT. Yes. Mr. SPRINGER. I wanted to correct it, because I think there was an impression that you were free to write any way you wanted, when in fact you were writing the opinion for the Commissioner.

Mr. WRIGHT. That is right. That is the way I am instructed. Could I add something more?

Mr. Moss. Yes, indeed.

Mr. Wright. The testimony about reading the transcript, the question was when I revised a hearing examiner's draft, did I read the entire transcript, but when I have a hearing examiner's draft in front of me there is really no necessity for me to go back and reread, or look at all the stuff he has read, as long as I know that it is pretty factual.

final opinion.

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