rather than concern about who would be rendering the service.
The respondents, however, take the position that it does make a substantial difference to them whether the 600 series of trains between Philadelphia and Harrisburg, and the 200 series of trains between Philadelphia and New York, all of which are included in the Amtrak contract, are to be operated as intercity trains by Amtrak, or as commuter trains by the Debtor. If the former, as now contemplated, these trains could theoretically be discontinued at any time, since they were added after the basic system was established.
This much, at least, is certain: It is essential that uniform standards be applied in determining whether or not a given train is intercity. The Interstate Commerce Commission has already made such determinations in at least one case, Penn Central Transportation Company discontinuance or change in service of 22 trains between Boston, Massachusetts and Providence, Rhode Island, Finance Docket 26200 (decided February 10, 1971), a decision which attempts to flesh out the Statutory definition into practical guidelines for application in particular cases. Moreover, it is important that the standards which are to be applied for present purposes should be consistent with the standards applied in 'avoidable loss' determinations under Section 401(a)(3) of the Statute, a matter which is expressly within the jurisdiction of the Commission in the event of dispute.
And, finally, categorization of train service in this context is obviously a matter within the expertise of the Commission.
Accordingly, the parties have indicated that they would have no objection if the Court should refer these issues to the Commission for initial study and determination. 28 U.S.C. § 1336(b) clearly contemplates such references. And cf. Illinois Commerce Commission v. Chicago & Eastern Illinois R.R. Co., 400 U.S. 987, 91 S. Ct. 449, 27 L. Ed. 2d 434 (1971). As stated by the Supreme Court in United States v. Western Pacific Railroad (1956) 352 U.S. 59 at pp. 63-64, 77 S. Ct. 161 at p. 165, 1 L. Ed. 2d 126:
'The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. 'Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. 'Primary jurisdiction,' on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S. Ct. 325, 331, 84 L. Ed. 361.'
The Court has been advised informally that the Commission would be willing to undertake such a reference. Under these circumstances, it is unnecessary to decide the precise basis for referral.
The remaining question is whether a deadline should be fixed for the Commission's initial determination. With respect to the trains which will be operated under the Amtrak contract in any event, namely, the 600 series between Philadelphia and Harrisburg and the 200 series between Philadelphia and New York, there is no immediate urgency. The same is true with respect to trains Nos. 22, 23, 176 and 177 in New Jersey, as to which the objecting parties are apparently satisfied with the Amtrak arrangements on an interim basis. However, with respect to the New York City to Chatham, New York trains, and the bus service between York, Pennsylvania, and Lancaster, Pennsylvania, it would be desirable to have a prompt determination made; the Debtor will be required to operate some of these lines at a loss in the interim. With respect to the Amtrak trains in question, the Debtor will be required to resume their operation in the (unlikely) event of discontinuance of Amtrak, pending the initial determination by the Commission.