Appendix — Aberdeen & Rockfish Railroad v. United States
Supreme Court brief1984
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FILED
82-707 OCT 29 1982
No. —__ ALEXANDER L. STEVAS.
= «
IN THE
Supreme Court of the United States
OcTOBER TERM, 1982
ABERDEEN AND ROcKFISH RAILROAD ComPANy, et ai.,
Petitioners,
Ve
UNITED STATES OF AMERICA and
INTERSTATE COMMERCE COMMISSION,
Respondents.
‘mm Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
APPENDIX
JAMES R. PASCHALL MICAHEL BouDIN*
P.O. Box 1808 Stuart C. Stock
Washington, D.C. 20013 1201 Pennsylvania
ALsert B. Russ, Jr. Avenue, N.W.
500 Water Street P.O. Box 7566
Jacksonville, Florida 32202 Washington, D.C. 20044
(202) 662-6000
Harry N. Bascock
P.O. Box 6419 a pay
Cleveland, Ohio 44101 St. Louis, Street —
Harry McCa it, Jr.
Rogert S. Rooru Stuart E. VAUGHN
1500 First National Bank One Market Plaza
of Commerce Building San Francisco, CA 94105
New Orleans, Louisiana 70112
Attorneys for Petitioners
October 1982 *Counsel of Record
PRESS OF BYRON & ADAMS PRINTING. INC.. WASHINGTON, D.C.
TABLE OF CONTENTS
Page
APPENDICES
eae
Lists of Petitioner Railroads and of Parent Com-
panies, Subsidiaries and Affiliates .............. la
A 9, 1982, Opinion of the United States Court
of for the Fifth Circuit ................ lb
August 14, 1980, Decision and Order of the In-
terstate Commerce Commission in ddidiideniiti ne le
Commission
October 9, 1979, Notice of Proposed Rulemaking . 1
August 9, 1982, J t of the United States
Court of Appeals for Fifth Circuit .......... if
September 22, 1982, Order of the United States
Court of Appeals for the Fifth Circuit pocecgenet lg
I aio oe ne Gaeneedeueede lh
Pertinent Regulations pausscncsonetbanesannoces li
la
1. The following railroads are petitioners in this case:
Aberdeen and Rockfish Railroad Company
Ahnapee and Western Railway Company, The, A division of
McCloud River Railroad Company
Akron & Barberton Belt Railroad Company, The
Akron, Canton & Youngstown Railroad Company, The
Alabama Great Southern Railroad Company, The (See South-
ern Railway System)
Alaska Railroad, The
Alexander Railroad Company
Algoma Central Railway
Aliquippa and Southern Railroad Company
Almanor Railroad Company
Alton & Southern Railway Company
Amador Central Railroad Company
Angelina & Neches River Railroad Company
Ann Arbor Railroad Company, The, John M. Chase, Jr.,
Trustee
Apache Railway Company, The ~
Apalachicola Northern Railroad Company
Arcade and Attica Railroad Corporation
Arcata and Mad River Rail Road Company, The
Arkansas & Louisiana Missouri Railway Company
Arkansas Western Railway Company, The
Aroostook Valley Railroad Company
Ashley, Drew & Northern Railway Company, The
Atchison, Topeka and Santa Fe Railway Company, The
Atlanta & Saint Andrews Bay Railway Company
Atlanta and West Point Rai] Road Company
Atlantic and East Carolina Railway Company (See Southern
Railway System)
Atlantic and Western Railway Company
Aurora, Elgin and Fox River Electric Company
Baltimore and Annapolis Railroad Company, The
Baltimore and Ohio Chicago Terminal Railroad Company, The
2a
Bath and Hammondsport Railroad Company
Bauxite & Northern Railway Company
Beaufort and Morehead Railroad Company (A. T. Leary,
Lessee)
Belfast and Moosehead Lake Railroad Company
Bellefonte Central Railroad Company
Belt Railway Company of Chicago, The
Belton Railroad Company
Bessemer and Lake Erie Railroad Company
Bevier & Southern Railroad Company
Birmingham Southern Railroad Company
Black River & Western Corporation
Boston and Maine Corporation, Robert W. Meserve and Ben-
jamin H. Lacy, Trustees
British Columbia Hydro and Power Authority
Brooklyn Eastern District Terminal
Burlington Northern, Inc.
Burlington Northern (Manitoba) Limited
Butte, Anaconda & Pacific Railway Company
Cadiz Railroad Company
Cadillac & Lake City Railway Company C. F. Lenten and
W. H. Nicholls, Jr., Trustees
California Western Railroad
Camas Prairie Railroad Company
Cambria and Indiana Railroad Company
Camino, Placerville & Lake Tahoe Railroad Company
— Lejeune Railroad Company (See Southern Railway
vstem)
Canada and Gulf Terminai Railway Company, The
Canadian National Railways (Lines Port Arthur, Armstrong,
Ont., and West thereof)
Canadian National Railways (Lines West Fort William, Ont.,
and East thereof)
Carolina and Northwestern Railway Company (See Southern
Railway System)
CP Rail (Canadian Pacific Limited) (Lines Thunder Bay, Ont.,
and East thereof)
£2. set” i ieee Ae anh arr a ae SS ee IS
3a
CP Rail (Canadian Pacific Limited) (Lines Thunder Bay, Ont..,
and West thereof)
Canton Railroad Company
Cape Fear Railways, Incorporated
Carbon County Railway Company
Carolina, Clinchfield and Ohio Railway; Carolina, Clinchfield
and Ohio Railway of South Carolina. Lessees: Seaboard
Coast Line Railroad Company; Louisville and Nashville
Railroad Company
Carrollton Railroad, The
Cedar Rapids and Iowa City Railway Company
Central California Traction Company
Central New York Railroad Corporation
Central of Georgia Railroad Company (See Southern Railway
System)
Central Vermont Railway, Inc.
Charles City Western Railway Company
Chattahoochee Industrial Railroad
Chattahoochee Valley Railway Company
Chesapeake and Ohio Railway Company, The
Chesapeake Western Railway
Chesnut Ridge Railway Company
Chicago & Illinois Midland Railway Company
Chicago & Illinois Western Railroad
Chicago and North Western Transportation Company
Chicago and Western Indiana Railroad Company
Chicago Heights Terminal Transfer Railroad Company
Chicago, Madison and Northern Railway Company
Chicago, Milwaukee, St. Paul and Pacific Railroad Company
Chicago, Rock Island and Pacific Railroad Company
Chicago, South Shore and South Bend Railroad
Chicago, West Pullman & Southern Railroad Company
Cincinnati, New Orleans and Texas Pacific Railway Company,
The (See Southern Railway System)
City of Prineville Railway
Claremont and Concord Railway Company, Inc.
Clarendon and Pittsford Railroad Company, The
Cliffside Railroad Company
3 ‘ rs ,
o's ors ; we ~~" -
da
Colonel's Island Railroad Company
Colorado and Southern Railway Company, The
Colorado and Wyoming Railway Company, The
Columbia & Cowlitz Railway Company
Columbia, Newberry and Laurens Railroad Company
Columbus and Greenville Railway Company
Condon, Kinzua & Southern Railroad Company
Conemaugh & Black Lick Railroad Company
Consolidated Rail Corporation
Cooperstown and Charlotte Valley Railroad Corporation
Corinth and Counce Railroad Company, The
Curtis, Milburn and Eastern Railroad Company
Cuyahoga Valley Railroad Company, The
Dansville and Mount Morris Railroad Company, The
Dardenelle & Russellville Railroad Company
Davenport, Rock Island and North Western Railway Com-
pany
Delaware and Hudson Railway Company, The
Delta Valley & Southern Railway Company
Denver and Rio Grande Western Railroad Company, The
DeQueen and Eastern Railroad Company
Des Moines and Central Iowa Railway Company
Detroit and Mackinac Railway Company
Detroit and Toledo Shore Line Railroad Company, The
Detroit, Toledo and Ironton Railroad Company
Dominion Atlantic Railway Company, The
Doniphaz:., Kensett & Searcy Railway
Duluth & Northeastern Railroad Company
Duluth, Missabe and Iron Range Railway Company
Duluth, Winnipeg and Pacific Railway Company
Durham and Southern Railway Company
East Camden & Highland Railroad Company
East Cooper and Berkeley Railroad Company
East Jersey Railroad and Terminal
East Tennessee and Western North Carolina Railroad Com-
pany
East Washington Railway Company
El Dorado and Wesson Railway Company
5a
Elgin, Joliet and Eastern Railway Company
Esquimalt and Nanaimo Railway Company, The
Essex Terminal Railway Company, The
Fairport, Painesville and Eastern Railway Company, The
Ferdinand Railroad Company
Ferrocarril del Pacifico, S.A. de C.V. (Pacific Railroad)
Florida East Coast Railway Company
Fonda, Johnstown and Gloversville Railroad Company
Fordyce and Princeton R.R. Co.
Fore River Railroad Corporation
Fort Myers Southern Railroad Company
Fort Smith and Van Buren Railway Company
Fort Worth and Denver Railway Company
Frankfort & Cincinnati Railroad Company
Gainesville Midland Railroad Company
Galveston, Houston and Henderson Railroad Company
Garden City Western Railway Company, The
Genessee and Wyoming Railroad Company
Georgetown Railroad Company
Georgia Northern Railway Company (See Southern Railway
System)
Georgia Rail Road & Banking Company—Operated as the
Georgia Railroad by Lessees: Seaboard Coast Line Railroad
Company, Louisville and Nashville Railroad Company
Georgia Southern and Florida Railway Company (See South-
ern Railway System)
Grafton and Upton Railroad Company
Grand River Railway Company, The
Grand Trunk Railway System (Lines in the United States, east
of the west bank of the Detroit and St. Clair Rivers),
comprising the following carrier: Canadian National Rail-
way Company
Grand Trunk Western Railroad Company
Graysonia, Nashville & Ashdown Railroad Company
Great Southwest Railroad, Inc.
6a
Great Western Railway Company, The
Green Bay and Western Railroad Company
Green Mountain Railroad Corporation
Greenville and Northern Railway Company
Greenwich & Johnsonville Railway Company
Hampton & Branchville Railroad Company
Hartford and Slocomb Railroad Company
Hartwell Railway Company
High Point, Thomasville & Denton Railroad Company
Hoboken Shore Railroad
Hollis & Eastern Railroad Company
Holton Inter-Urban Railway Company (See Southern Pacific
Lines)
Hoosac Tunnel and Wilmington Railroad Company
Houston Belt & Terminal Railway Company
Hutchinson and Northern Railway Company, The
Illinois Central Gulf Railroad Company
Illinois Terminal Railroad Company
Indiana and Ohio Railroad, Inc.
Indiana Harbor Belt Railroad Company
International Bridge and Terminal Company, Inc.
Interstate Railroad Company (See Southern Railway System)
lowa Terminal Railroad Co.
Kankakee, Beaverville and Southern Railroad Company, The
Kansas City Southern Railway Company, The
Kansas City Terminal Railway Company
Kentucky & Indiana Terminal Railroad Company
Kentucky and Tennessee Railway
Klamath Northern Railway Company
Lacawaxen and Stourbridge Railway Corporation
Lake Erie and Eastern Railroad Company, The
Lake Erie and Northern Railway Company, The
Company
La Salle and Bureau County Railroad Company, The
7a
Laurinburg and Southern Railroad Company
Live Oak, Perry & South Georgia Railroad Company (See
Southern Railway System)
Livonia, Avon & Lakeville Railroad Corporation
Long Island Rail Road Company, The
Longview, Portland & Northern Railway Company
Lorain & West Virginia Railway Company, The
Los Angeles Junction Railway Company
Louisiana & Arkansas Railway Company
Louisiana and North West Railroad Company, The
Louisiana Midland Railway Company
Louisiana Southern Railway Company (See Southern Railway
System)
Louisville and Nashville Railroad Company
Louisville and Wadley Railway Company
Louisville, New Albany & Corydon Railroad Company
Lowville and Beaver River Railroad Company, The
Sa
Missouri-Kansas-Texas Railroad Company
Missouri Pacific Railroad Company
Mobile & Gulf Railroad Company, The
Modesto and Empire Traction Company
Monongahela Connecting Railroad Company, The
Monongahela Railway Company, The
Montour Railroad Company
Montpelier and Barre Railroad Company
____Morristown & Erie Railroad Company
Moscow, Camden & San Augustine Railroad
Moshassuck Valley Railroad Company
Mount Hood Railway Company
Natchez, Urania and Ruston Railway Company, The
Nevada Northern Railway Company
New Brunswick Coal and Railway
Newburgh and South Shore Railway Company, The
Paducah & Illinois Railroad Company
Patapseo & Back Rivers Railroad Company
Pearl River Valley Railroad Company
Fecos Valley Southern Railway Company, The
Pend Oreille Valley Railroad, Inc.
Peoria and Pekin Union Railway Company
Petaluma and Santa Rosa Railroad Company (See Southern
Pacific Lines)
Philadelphia, Bethlehem and New England Railroad Company
Pickens Railroad Company
Pittsburgh & Shawmut Railroad Company, The
Pittsburgh and Lake Erie Railroad Company, The
Pittsburgh, Chartiers & Youghiogheny Railroad Company
Point Comfort & Northern Railway Company
Port Bienville Railroad
Port Huron and Detroit Railroad Company
, Garfield and Western Railway Company
San Luis Central Railroad Company, The
San Manue! Arizona Railroad Company
Santa Maria Valley Railroad Company
Seaboard Coast Line Railroad Company
Seattle & North Coast Railroad Company
Sierra Railroad Company
Skaneateles Short Line Railroad Corporation
Soo Line Railroad Company
South Brooklyn Railway Company
Southern Indiana Railway, Inc.
Southern Pacific Transportation Company (See Southern Paci-
fic Lines)
Southern Pacific Lines: Holton Inter-Urban Railway Com-
pany, Northwestern Pacific Railroad Company, Petaluma
and Santa Rosa Railroad Company, Southern Pacific Trans-
portation Company, Visalia Electric Railroad Company
Southern Railway Company (See Southern Railway System)
Southern Railway System: The Alabama Great Southern Rail-
Company, The Cincinnati, New Orleans and Texas Pacific
Railway Company, eS ee ee een
Georgia Southern and Florida Railway Company, Interstate
Railroad Company, Live Oak, Perry & South Georgia Rail-
lla
Orieans Terminal Company, St. Johns River Terminal Com-
pany, Southern Railway Company, State University Rail-
road Company, Tennessee, Alabama & Georgia Railway
Company
Southern San Louis Valley Railroad Company
Spokane International Railroad Company
Springfield Terminal Railway Company (Vermont)
State University Railroad Company (See Southern Railway
System)
Staten Island Railroad Corporation, The
Steelton & Highspire Railroad Company
Stevens Line Company
Stockton Terminal and Eastern Railroad
Sumter & Choctaw Railway Company
Sunset Railway Company
Tampa Southern Railroad Company
Tennessee, Alabama & Georgia Railway Company (See South-
ern Railway System)
Tennessee Railroad Company (Samuel Spencer and Tom J.
Gentry, Receivers)
Terminal Railroad Association of St. Louis
Texas & Northern Railway Company
Texas Central Railroad Company
Texas Mexican Railway Company, The
Texas, Oklahoma & Eastern Railroad Company
Texas South-Eastern Railroad Company
Tidewater Southern Railway Company |
Toledo, Peoria & Western Railroad Company
Toledo Terminal Railroad Company, The
Tucson, Cornelia and Gila Bend Railroad Company
Tulsa-Sapulpa Union Railway Company
Twin Branch Railroad Company
Union Pacific Railroad Company
- is
4 ee eee Me
Valley and Siletz Railroad Company
Ventura County Railway Company
Vermont Railway, Inc.
Virginia and Maryland Railroad Company, The
Virginia Blue Ridge Railway
Virginia Central Railway
Visalia Electric Railroad Company (See Southern Pacific
Lines)
Walla Walla Valley Railway Company
Ware Shoals Railroad Company
Warren & Saline River Railroad Company
Warrenton Rail Road Company
Warwick Railway Company
Washington, Idaho & Montana Railway Company
Waterloo Railroad Company
Weatherford, Mineral Wells and Northwestern Railway Com-
pany, The
Western Maryland Railway Company
Western Pacific Railroad Company, The
West Virginia Northern Railroad Company
White Sulphur Springs & Yellowstone Park Railway Company
Winchester and Western Railroad Company
Yreka Western Railroad Company
United States of America
Interstate Commerce Commission
National Motor Freight Traffic Association, Inc.
13a
2. The following is a list of parent companies, subsidiaries
and affiliates, as available to counsel, for the principal railroads
of the United States that are petitioners in this case.'
Companies Related To The Atchison, Topeka And Santa Fe
Railway Company
Advertising Direction, Inc.
Alameda Belt Line
B&C General Agency, Inc.
Clinton and Oklahoma Western Railroad Company, The
Dodge City and Cimarron Valley Railway Company, The
Fresno Interurban Railway Company
Gallo Wash Coal Company
Garden City, Gulf and Northern Railroad Company, The
Global Security Company, Inc.
Gulf and Inter-State Railway Company of Texas
Gulf Central Pipeline Company
Gulf Central Storage and Terminal Company
Gulf Central Storage and Terminal Company of Nebraska
Haystack Mountain Development Company
Hospah Coal Company
Kansas Southwestern Railway Company, The
Kirby Forest Industries, Inc.
Los Alamos Constructors, Inc.
Los Angeles Junction Railway Company
McKee Development Services, Inc.
Oakland Terminal Railway, The
Oklahoma City Junction Railway Company
Pintada Coal Company
Rio Grande, E] Paso and Santa Fe Railroad Company
Robert E. McKee, Inc.
' Because of uncertainty about the definition of these terms and the
complexity of corporate relationships, the following list includes a
_ limited number of companies that may, depending on the definition
employed, not constitute parent companies, subsidiaries or affiliates.
l4a
St. Joseph Terminal] Railroad Company
San Diego Pipeline Company
Santa Fe Energy Company
Santa Fe Energy Company of Seychelles, Inc.
Santa Fe Energy Products Company
Santa Fe Forwarding Company
Santa Fe Industrial Realty Company
Santa Fe Industries, Inc.
Santa Fe Land Improvement Company
Santa Fe Mining, Inc.
Santa Fe Natural Resources, Inc.
Santa Fe Oil Company
Santa Fe Pacific Railroad Company
Santa Fe Pipeline Company
Santa Fe Pipelines, Inc. (Del.)
Santa Fe Rail Equipment Company
Santa Fe Terminal Services, Inc.
Santa Fe Towers Land Company
Santa Fe Trail Transportation Company, The
Santa Fe Transportation Company
Security Guard Service, Inc.
SF Coal Corporation
SFP Minerals Corporation
Southwest Pipe Line Company
Toledo, Peoria & Western Railroad Company
Walker-Kurth Lumber Company
Zia Company, The
Companies Related To The Baltimore And Ohio Railroad
Company, The Chesapeake And Ohio Railway Company, And
Western Maryland Railway Company
Adrian Realty Co.
Baltimore and Ohio Chicago Terminal Railroad Co., The
Baltimore and Ohio Connecting Railroad Co., The
4
3
;
4 eee ee, Ge! —
lda
Baltimore and Ohio Warehouse Co., The —
Baltimore and Philadelphia Railroad Co., The
B&O Transportation Co., The
Baltimore Belt Railroad Co., The
Buffalo, Rochester and Pittsburgh Railway Co.
Centralia and Webster Springs Railroad Co.
Cheat Haven and Bruceton Railroad Co.
Cheat Haven Railroad Co., The
Chesapeake and Curtis Bay Railroad Co., The
Chessie Corp., The
Chessie Motor Express, Inc.
Chessie Realty, Inc.
Chicago South Shore and South Bend Railroad
Cincinnati, Indianapolis & Western Railroad Co., The
Cleveland Terminal & Valley Railroad Co.. The
Covington and Cincinnati Elevated Railroad and Transfer and
Bridge Co., The
CSX Corporation
Curtis Bay Railroad Co.
Dayton and Union Railway Co., The
Fairfax Realty Co.
Fairmont, Morgantown and Pittsburgh Pailroad Co.
Fruit Growers Express Co.
Kanawha-Ohio Corp.
Lake Erie and Detroit River Railway Co., The
Lancaster, Cecil and Southern Railroad Co., The
l6a
Seaboard Coast Line Railroad Company
Staten Island Railroad Corp., The
Terminal Realty Baltimore Co.
Toledo, Lorain & Fairport Co.
Toledo Ore Railroad Company, The
Toledo Terminal Railroad Co., The
Washington and Western Maryland Railroad Co.
Washington County Railroad Co.
West Virginia and Pittsburgh Railroad Co.
Western Maryland Railway Co.
Western Maryland Truck Lines, Inc.
Western Maryland Warehouse Co.
Winchester and Potomac Railroad Co., The
Winchester and Strasburg Railroad Co., The
Companies Related To Bessemer And Lake Erie Railroad
Company’
Birmingham Southern Railway Company
Carbon County Railway Company
Duluth, Missabe and Iron Range Railway Company
Elgin, Joliet & Eastern Railway Company
Johnstown and Stony Creek Rail Road Company
17a
North Station Hotel Building, Inc.
North Station Industrial Building, Inc.
Springfield Terminal Railway Co.
Companies Related To Burl’ «on Northern Inc.
Arden Lumber Company, Inc.
Belt Railway Company of Chicago, The
BN Transport Inc.
BNT Terminals, Inc.
BNL Development Corporation
Burlington Equipment Company
Burlington Northern Air Freight (Aust.) Pty. Limited
Burlington Northern Air Freight (U.K.) Pty. Limited
Burlington Northern Air Freight Inc.
Burlington Northern Airmotive Inc.
Burlington No~thern Dock Corporation
Burlington Northern (Manitoba) Limited
Colorado and Southern Railway Company, The
18a
Ksanka Lumber Co., Inc.
Lake Superior Terminal and Transfer Railway Co., The
Lemhi Telephone Company
Longview Switching Company
Minnesota Transfer Railway Company
New Mexico and Arizona Land Company
906 Olive Corporation
Northern Resources, Inc.
Northern Rockies Pipeline Co.
Oregon Electric Railway Company
Oregon Truck Railway
Paducah & Illinois Railroad Company
Pueblo Union Depot and Railroad Company, The
Plum Creek Lumber Co.
Portal Pipe Line Company
Portland Terminal Railroad Company
Quanah, Acme & Pacific Railway Company
Royal Logging Co.
Saxony Corporation
Saint Paul Union Depot Company, The
Terminal Railroad Association of $* Louis
Trailer Train Company
Walla Walla Valley Railway Company
Western Fruit Express Company
Wichita Union Terminal Railway Company
Winona Bridge Railway Company
Companies Related To Chicago And North Western
Transportation Company
Des Moines and Central lowa Railway Company
Ford Dodge, Des Moines and Southern Railway Company
Illinois Terminal Railroad
- a. “a Bs +e
a 7 -. a. eee
19a &
Minneapolis Industrial Railway Company
North Western Communications Inc.
North Western Leasing Company
North Western Locomotive Company
NW Railquip Inc.
Oshkosh Transportation Company
Peoria and Pekin Union Railway Company
Railbox Company
Railway Transfer Company of the City of Minneapolis, The
St. Paul Union Depot Company
Trailer Train Company
Western Railroad Properties Inc.
Wisconsin Town Lot Company
Companies Related To Consolidated Rail Corporation
Akron & Barberton Belt Railroad Company
20a
Pennsylvania Truck Lines, Inc.
Peoria and Pekin Union Railway Company
Philadelphia, Reading and Pottsville Telegraph Company
Pittsburgh, Chartiers & Youghiogheny Railway Company
Relco-Pa, Inc.
St. Lawrence and Adirondack Railway Company
* Terminal Railroad Association of St. Louis
Toledo Terminal Railroad Company, The
Trailer Train Company
Companies Related To Detroit, Toledo & Ironton Railroad
Company
None.
Companies Related To Elgin, Joliet & Eastern Railway
Company’
Bessemer and Lake Erie Railroad Company
Birmingham Southern Railway Company
Carbon County Railway Company
Duluth, Missabe & Iron Range Railway Company
Johnstown and Stony Creek Rail Road Company
Newburgh & South Shore Railway Company, The
Union Railroad Company
United States Steel
Youngstown & Northern Railroad Company
Companies Related To Grand Trunk Western Railroad
Company
None whose stock is publicly held.
_ + Non-rail related companies are not listed.
2la
Companies Related To Illinois Central Gulf Railroad Company
Abex A/S
Abex Corporation
Abex Denison Limited
Abex Engineered Products Limited
Abex Ges. m.g.H.
Abex G.m.B.H.
Abex Industrial, S.A.
Abex Industries. A.B.
Abex Industries Ltd.
Abex Industries, S.A.
Abex International Holdings, Limited
Abex International, S.A.
Abex Mead, Limited
Abex Pagid Equipment S.A.
Abex Pagid Reibbelag G.m.b.H.
Abex S.A.
Almacenes Refrigerantes S.A. De C.V.
Alton Manufacturing Company
American Brake Shoe Company
American Refrigeration Products, S.A.
American Refrigeraction De Centro America, S.A.
Amsco Italinana S.p.A.
Amsco Mexicana S.A.
Au Gourmet Foods De Luxe, Inc.
22a
Chesley Industries, Inc.
Chicago Bank of Commerce, The
Chicago Community Ventures, Inc.
Chicago & Illinois Western Railroad Company
Chicago Intermodal Company
Covex S.r.L.
23a
Hussmann Acceptance Co. Canada Limited
Hussmann Food Store Equipment Limited
Hussmann International Sales, Inc.
Hussmann (Pty) Limited
Hussmann Ontario Sales, Ltd.
Hussmann Refrigeration , Inc.
Hussmann Refrigerator Co.
Hussmann Store Equipment, Ltd.
Huth Manufacturing Corporation
IC Equipment Leasing Inc.
IC Industries, Inc.
IC Industries Finance Corporation, N.V.
IC Industries Insurance Co. Ltd.
IC Leasing, Inc.
IC Products Company
IC Sub, Inc.
Iconic, Inc.
Illinois Center Corporation
Illinois Central Export Corporation
Illinois Central Industries, Inc.
Illinois Terminal Railroad Company
Indiana Trailer Supply, Inc.
Internation2] Parts i
International Parts Manufacturing, Ltd.
International Parts, Ltd.
International Stamping Company, Inc.
Jefferson Southwestern Railroad Company
Joliet Union Depot Company
Kansas City Terminal Railway Company
Le Silencieux, S.A.
Lincoln Financial, Inc.
Lloyds Abex Limited
Lloyds (Burton) Ltd.
Merchants Refrigerating Company of California
Micas-M.T.M. Australia Pty. Ltd.
Mid-America Improvement Corporation
Midas International Corporation
Midas Muffler (Vic.) Pty., Limited
Midas Properties, Inc.
25a
Pet Consolidated Limited
Pet Incorporated (Delaware)
Pet Incorporated (Wyoming)
Pet International Sales, Inc.
Pet Milk Company
Petsub, Inc.
Philipsborn Equities, Inc. (Del.)
Philipsborn Equities of Texas, Inc.
Port 406 Holding Company
Pullman Company, The
Royton Holdings (Pty) Ltd.
S.A. Ateliers et Fonderies B. Piret
S&T of Mississippi, Inc.
S&T South, Inc.
St. Louis Lithographing Company
Sea Nymph Corporation
Seay & Thomas of Florida, Inc.
Signal-Stat Corporation
Societa Italiana per l’Amianto S.p.A.
26a
Companies Related To The Kansas City Southern Railway
Company
American-Coleman Company, The
American-Coleman International Corporation
Arkansas Western Railway Co., The
Boston Financial Data Services, Inc.
Carland, Inc.
DST, Inc.
DST-Computer-Services, S.A.
Financial Mirror, Inc.
Fort Smith and Van Buren Railway Co.
Investors Fiduciary Trust Company
Joplin Union Depot Co.
Kansas and Missouri Railway and Terminal Co., The
Kansas City Southern Industries, Inc.
‘Kansas City Southern Transport Company, Inc.
Kansas City Terminal Railway Co.
Landa Motor Lines
Louisiana & Arkansas Railway Company
Louisiana, Arkansas & Texas Transportation Co.
Maywood and Sugar Creek Railway Co., The
Mid-America Television Company
Pabtex, Inc.
Pioneer Western Corporation
Pioneer Western Financial Corporation
Rycom Instruments, Inc.
Rice-Carden Corporation
Southern Development Co.
Tolmak, Inc.
Veals, Inc.
Western Reserve Financial Services, Corp.
Western Reserve Life Assurance Co. of Ohio
Companies Related To Louisville & Nashville Railroad
Company And Seaboard Coast Line Railroad Company
Athens Terminal Company
Atlanta and West Point Rail Road Company
>»
. _— a. ~ * -"T ape toe. \ ae. Ae eee oe
27a
Atlantic Land and Improvement Company, The
Baltimore & Ohio Railroad Company, The
Carrollton Railroad Company, The
Chesapeake and Ohio Railway Company, The
Chicago and Indianapolis Coal Company, Inc.
Clinchfield Railroai Company —
Columbia, Newberry and Laurens Railroad Company
CSX Corporation
Cybernetics & Systems, Inc.
Durham and Southern Railway Company
Duval Connecting Railroad Company
Evansville Connecting Railroad Company
Fort Myers Southern Railroad Company
Fruit Growers Express Company
Gainesville Midland Railroad Company
Georgia Railroad
Haysi Railroad Company
Holston Land Company, Inc.
Houston-McCord Realty Company
Kentucky Central Railway Company
L&N Investment Corporation
Louisville, Henderson & St. Louis Railway Company
Monon Coal Company, Inc.
Monon Realty Company, Inc.
Monon Corporation
Nashville and Decatur Railroad Company
North Bank Development Company
28a
Companies Related To Missouri-Kansas-Texas Railroad
Company
Aero Stop Nut Co.
Aetna Bearing Company
AGM Exports Inc.
All Risk Management Services, Inc.
American Gage & Machine Company
Ashford Holding Corporation
Bach-Simpson Ltd.
Balteau Standard, Inc.
B-B Liquidating Company, Inc.
Bee Gee Shrimp, Inc.
Berry Brothers Limited
B. G. Shrimp Sales Co.
Bush Universal, Inc.
Capacity Managers International, Inc.
Capacity Managers International Inc. (Georgia)
Capacity Managers International Inc. (Illinois)
Capacity Managers International Inc. (New Jersey)
Capacity Managers International Insurance Agency, Inc.
Carib Reefer Services, Ltd.
Carib Services, Inc.
Cornavin Virgin Islands, Inc.
Coverage Innovators Insurance Agency, Inc.
29a
Fulton Iron Works Company
Galveston, Houston and Henderson Railroad Company
Georgetown Seafoods and Trading Company, Limited
Guarantee Security Life Insurance Company
Hamilton Technology, Inc.
Handi-Man Distributors, Inc.
Handi-Man Industries, Inc.
Hermann Loewenstein, Inc.
HMW Industries, Inc.
Industrial Bolt & Nut Co.
Intrad Imports, Limited
Jewell Electrical Instruments, Inc.
Katy Exports, Inc.
Katy Industries, Inc.
Katy Leather Corporation
Katy Oil Company
Katy Teleswitch, Inc.
Katy Transporation Company
Kolb-Lena Cheese Co.
KT-Plas, Inc.
LaBour International Limited
Pecheries Internationales de Guyanc Francaise S.A. (PIDEG)
Peters Machinery Company
Process Metals Company
30a
Pulsar International Sales Corporation
Quality Food Machinery, Inc.
Ruttonsha-Simpson Private Ltd.
Sahlman Seafoods, Inc.
San Antonio Belt and Terminal Railroad Company
Schedule Finance Corporation
Schoen Machinery USA, Inc.
Schon & Cie, Verualtungs und Vertriebs GmbH Co. KG
Seacom Sales Company, Inc.
Shrimp Group
i Instrument Sales & Service, Inc.
Societe de Fabrication Europeene des Machines, S.a.r.|.
Southwestern States Management Co.
Spiral Step-Tool Company
Sterling-Salem i
Corporation
Sterling-Salem Export, Inc.
Time Computer, Inc.
Trans-Continental Leathers, Inc.
Waltham Watch
3la
Chicago & Western Indiana Railway Company
Chicago Heights Terminal Transfer Railroad Company
Doniphan, Kensett & Searcy Railway
Galveston, Houston and Henderson Railroad Company
Great Southwest Railroad, Inc.
Houston Belt & Terminal Railway Company
Illinois Terminal Railroad Company
Jefferson Southwestern Railroad Company
Kansas City Terminal Railway Company
Mississippi River Transmission Company
Missouri Improvement Company
Missouri Pacific Airfreight, Inc.
Missouri Pacific Corporation
Missouri Pacific Equipment Corp.
Missouri Pacific Intermodal Transport, Inc.
Missouri Pacific Truck Lines, Inc.
MRT Exploration Company
Park Spring, Inc.
Pueblo Union Depot and Railroad Company, The
Rie-Con Corporation
Southern Illinois and Missouri Bridge Company
Park, Inc.
Terminal Industrial Land Company
Terminal! Railroad Association of St. Louis
Texas City Terminal Railway Company
Trailer Train Company
Weatherford Mineral Wells and Northwestern Railway Co.,
The
Companies Related To Norfolk & Western Railway Company
A.C.&Y. Terminal Properties Company, The
Akron & Barberton Belt Railroad, The
Akron, Canton & Youngstown Railroad Co., The
32a
Chesapeake Western Railway
Cincinnati, New Orleans and Texas Pacific Railway Company
Chicago and Western Indiana Railroad
Cincinnati Union Terminal Co., The
Cleveland Union Terminals Co., The
Delaware and Hudson Railway Company
Dereco, Inc.
Des Moines Union Railway Company
Detroit and Toledo Shore Line Railroad Company, The
Erie Lackawanna Railway Company
Fairport, Painesville and Eastern Railway
Fort Wayne Union Railway Company
Fruit Growers Express Company
Green Real Estate Company
High Point, Thomasville & Denton Railroad
Illinois Terminal Railroad Company
Iowa Transfer Railway Company
Kansas City Terminal Railway Company
Keokuk Union Depot Company
Lafayette Union Railway Company
Lake Erie Dock
Lake Erie and Fort Wayne Railroad, The
Lambert’s Point Docks, Incorporated
Lorain & West Virginia Railway, The
Norfolk Southern i
NW i Corporation
New Jersey, Indiana & Illinois Railroad
Nickel Plate Improvement Co., Inc., The
Norfolk, Franklin and Danville Railway Company
Norfolk and Portsmouth Belt Line Railroad
Northern Ohio Food Terminal, Inc.
Peoria and Pekin Union Railway Company -
Pittsburgh & West Virginia Railroad 2
Pocahontas Kentucky Corporation
Pocahontas Land
Powhatan Oil and Gas Corporation
Pullman Company, The
Scioto Valley and New England Railroad, The
ad
33a
Shenandeah- Virginia Corp.
South Buffalo Development Co., Inc.
Toledo Belt Railway Co., The
Toledo Terminal Railroad Co., The
Trailer Train Company
Union Belt of Detroit
Virginia Holding Corporation
Wabash Railroad Company
Wheeling and Lake Erie Railway, The
Winston Land Corporation
Winston-Salem Southbound Railway
Companies Related To Pittsburg & Lake Erie Railroad
Company
Lake Erie & Eastern Railroad Company, The
Monongahela Railway Company
Montour Land Company
Montour Railroad Company
Pittsburgh, Chartiers & Youghiogheny Railway Co.
Pleco, Inc.
Youngstown & Southern Railway Company
Companies Related To Soo Line Railroad Company’
Belt Railway Co. of Chicago, The
Lake Superior Term. & Tfr. Ry. Co., The
‘ There is also a relationship between Canadian Pacific Limited and
Soo Line Railroad Company which will be supplied on request but
cannot be described in a single term.
34a
Companies Related To Southern Pacific Transportation
Company
Alton & Southern Ry. Co., The
American Communities—Santa Barbara, Inc.
Arkansas & Memphis Railway Bridge & Terminal Company
Asociados Internacionales del & Pacifico
B L C Corporation
Bankers Leasing Corporation
Black Mesa Pipeline, Inc.
Bravo Oil Company
Central California Traction Co.
Chattell Leases, Inc.
Commetro Leasing, Inc.
Commonwealth Control, Inc.
Commonwealth Plan, Inc., The
Commonwealth Plan Leasing, Inc.
Commonwealth Plan of Puerto Rico, Inc.
Commonwealth System, Inc.
Dallas Terminal Ry. and Union Depot Co.
35a
Pacific Motor Transport Company
Pacific Motor Trucking Company
Pacific Petroleum Pipe Lines, Inc.
Pacific Plan, Inc., The ‘
Petaluma and Santa Rosa R.R. Co.
Portland Terminal R.R. Co.
Portland Traction Company
Pullman Company, The
St. Louis Southwestern Ry. Co. of Texas
St. Louis Southwestern Railway Co.
San Diego & Arizona Eastern Ry. Co.
San Diego Pipeline Company
Santa Barbara—Cabrillo Corporation
Southern Ill. and Mo. Bridge Co.
Southern Pacific Air Freight, Inc.
Southern Pacific Communications Company
Southern Pacific Company
Southern Pacific Development Company
Southern Pacific Equipment Company
Southern Pacific Industrial Development Company
Southern Pacific Land Company
Southern Pacific Marine Transport, Inc.
Southern Pacific Pipe Lines, Inc.
ee Se a Louisiana
Terminal R.R. Assoc. of St. Louis
Ticor’
* The following are active subsidiaries of Ticor.
36a
Tops On-Line Services, Inc.
Trailer Train Company
Transportation Microwave Corp.
Video Microwave, Inc.
Visalia Electric Railroad Company
Worcester Plan, Inc., The
Companies Related To Southern Railway Company, Central
Of Georgia Railroad Company, The Cincinnati, New Orleans
And Texas Pacific Railway Company, And Carolina And
Northwestern Railway Company
Airforce Pipeline, Inc.
Alabama Great Southern Railroad Company, The
Algers, Winslow and Western Railway Company
37a
Arrowood-Southern Company
Arrowood Southern Executive Park, Inc.
Atlanta and Charlotte Air Line Railway Company, The
Atlanta Terminal Company
Atlantic and East Carolina Railway Company
Atlantic and North Carolina Railroad Company
Augusta and Summerville Railroad Company
Beaver Street Tower Company
Birmingham Terminal Company
Blue Ridge Railway Company
Camp Lejeune Railroad Company
Central Transfer Railway and Storage Company
Chattanooga Terminal Railway Company
Cincinnati Union Terminal Company, The
Citico Realty Company
Danville and Western Railway Company
Durham and Southern Carolina Railroad Company
Elberton Southern Railway Company
ee ot be < Vu <—_ - > «tin - .4
38a
New Orleans Terminal Company
Norfolk and Portsmouth Belt Line Railroad Company
Norfolk Southern Corporation
Norfolk Southern Industrial Development Corp.
Norfolk & Western Railway Company
North Carolina Midland Railroad Company, The
North Carolina Railroad Company, The
North Charleston Terminal Company
NWS Enterprises, Inc.
Ocean Steamship Company of Savannah
Pullman Company
Queen City Developers
Richmond, Fredericksburg and Potomac Railroad Company
Richmond-Washington Company
St. Johns River Terminal Company
700 North Fairfax Street Limited Partnership
Southern Rail Terminals, Inc.
Southern Rail Terminals of Alabama, Inc.
Southern Rail Terminals of North Carolina, Inc.
|
39a
Companies Related To Union Pacific Kailroad Company
Bitter Creek Coal Company
Champlin Trading Company
Denver Union Terminal Railway Company, The
Des Chutes Railroad Company
4a
St. Joseph Terminal Railroad Company
Stauffer Chemical Company of Wyoming
Trailer.Train Company
Uinta Development Company
Union Pacific Corporation
Union Pacific Foundation
Union Pacific Fruit Express Company
Union Pacific Land Resources Corporation
Union Pacific Motor Freight Company
Union Pacific Railroad Company
Union Pacific Resources Corporation
Winton Coal Company
Yakima Valley Transportation Company
Companies Related To The Western Pacific Railroad Company
lb
UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT.
Nos. 80-2099, 80-2327
ABERDEEN & ROcCKFISH RAILROAD COMPANY
& Other Railroads,
Petitioners,
v.
The UNITED STATES OF AMERICA and
The INTERSTATE COMMERCE COMMISSION,
Respondents.
NATIONAL Motor FREIGHT TRAFFIC ASSOCIATION, INC.,
Petitioner,
Vv.
The UNirep STATES OF AMERICA and
INTERSTATE COMMERCE COMMISSION,
Respondents.
Aug. 9, 1982
Before GARZA, POLITZ and WILLIAMS, Circuit Judges
JERRE S. WILLIAMS, Circuit Judge:
Petitioners in these consolidated cases are the nation’s rail-
roads and the National Motor Freight Traffic Association
(NMFTA), an organization composed of approximately 3,000
common motor carriers. We shall refer to petitioners collec-
tively as “Carriers.” The Carriers have sought review, pur-
suant to 28 U.S.C. $§ 2321(a), 2342(5), and 2344, of a portion of
an order by the Interstate Commerce Commission (the Com-
mission), Ex Parte No. 370, Tariff Improvement (June 10,
1981). As explained below, Ex Parte No. 370 introduced a new
= for ensuring compliance with the Commission’s
tariff symbolization requirements. The Carriers contend that
the Commission has exceeded its statutory authority under the
ey
2b
Revised Interstate Commerce Act, 49 U.S.C. §$§ 10761(a),
10762(b), and 10762(e), in adopting the new policy. They fur-
ther maintained that the regulation devised to enforce the new
policy is arbitrary and capricious, in contravention of the Ad-
ministrative Procedure Act, 5 U.S.C. § 706(2)(A) & (C). Hav-
ing reviewed the arguments and pertinent authorities, we
conclude that the new regulation is both authorized by law and
supported in the record.
I. Symbolization
The Revised Interstate Commerce Act (the Act) requires
carriers providing transportation or service subject to the
jurisdiction of the Commission to publish and file with that
agency tariffs containing the rates that are charged to ship-
pers. See ge~zrally 49 U.S.C. § 10762. Regulated carriers may
collect only the rates that are contained in tariffs on file with
the Commission, see 49 U.S.C. § 10761, and departure from
the filed rate schedule wil! subject a carrier to civil and criminal
liability, 49 U.S.C. $§ 11901, 11903. The Commission is
empowered to prescribe the form and manner of publishing,
filing, and keeping the tariffs open for public inspection. 49
U.S.C. § 10762(bX1). However, the Act itself clearly states
that newly filed tariffs must “plainly identify” any proposed
rate change and indicate its proposed effective date. 49 U.S.C.
§ 10762(¢X3). Normally a new tariff will become effective thir-
ty days or, in the case of railroads, twenty days, after the
carrier files it, id., unless the Commission suspends the pro-
posed rate pending the outcome of an investigation pursuant to
49 U.S.C. § 10707(a) or § 10708(a).
FI a a a § 10762(b)(1), the Commission
has promulgated regulation: orescribing the form in which
tariffs are to be published and filed. One such regulation gov-
erns the symbolization of changed rates, requiring that
ooiag aye indicate changes made in exist-
charges, classifications, rules, or other provi-
3b
sions by use of the follo uniform reference marks in
connection with each coe bee
or (R) to denote reductions -
or (A) to denote increases
or (C) to denote changes which result in neither in-
creases nor reductions in charges
49 C.F.R. § 1310.10(f(1). As justified by the Commission,
these requirements “are designed to allow tariff users to rely
on symbolization to (1) discover changes and (2) evaluate those
changes. Discovery and evaluation are vital to tariff users’
rights to timely protest proposed tariff changes.” 44 Fed. Reg.
60123 (1979).
Until 1979, the Commission maintained a staff that ex-
amined every proposed tariff prior to its effective date in order
to uncover obvious defects in publication, including symboliza-
tion errors. Tariffs submitted without the appropriate change-
denoting symbols were rejected, pursuant to 49 U.S.C.
§ 10762(e), and the offending carrier then had to resubmit the
proposed schedule in acceptable form. Apparently in the belief
that few improperly symbolized tariffs would escape this scru-
tiny, the Commission never sought to exact any penalty for
symbolization errors discovered after a tariff had gone into
effect. Rather, S eaanely Sb rnes the quster of Re eter and
requested more caution in the future.
On October 18, 1979, however, the Commission published a
Notice of Proposed Rulemaking reporting a change of policy.
In an order docketed as Ex Parte No. 370, the Commission
explained that budgetary constraints had forced it to abandon
its comprehensive tariff examination service. Thenceforth, the
Commission could review only a random sample of newly filed
tariffs. Since increasing numbers of inadequately symbolized
increases would go undetected, the agency had concluded that
stiffer sanctions were in order:
We believe it would be for tariff users to
be burdened with the onerous of comparing pro-
oie, th —
4b
posed tariff filings word-for-word or for-figure
against existing tariff matter. They be able to rely
on the accuracy of tariff symbolization. Sees
here would stipulate that im rly-s ized changes
which result in increases would be considered improperly
published and thus invalid and uncollectable. This would
offer retroactive protection to tariff users who had been
effectively deprived of their right to protest b
sdepuibelination . 4 :
44 Fed. Reg. 60123 (1979). The Notice proposed the following
regulation for inclusion in the Code of Federal Regulations:
Changes resulting in increases which are not identified by
proper symbols shall be considered unlawfully published
filed and therefore invalid and not collectable. In such
cases, the lawful provisions will be those which were
purportedly superseded. Invalid provisions shall be can-
celled by publications which shall bring forward, or
Pay amend, provisions which have remained in effect
y reason of invalid publication.
The Notice declared further that “[cJharges assessed on the
basis of the invalid provisions would be subject to the usual
overcharge claim procedures.” 44 Fed. Reg. 60124.'
Following the obligatory period in which it received com-
ments and suggestions from interested parties, the Commis-
sion published its decision in Ex Parte No. 370, Tariff
Improvement (August 14, 1980). Despite the predictably un-
favorable response from Carriers,’ the Commission adopted
' See generally 49 U.S.C. § 11705. Subsection 11705(bx 1) provides
that “[a) common carrier providing transportation or service subject
to the jurisdiction of the Commission under Chapter 105 of this title is
liable to a person for amounts charged that exceed the applicable rate
for transportation or service contained in a tariff filed under Sub-
chapter IV of Chapter 107 of this title.”
* The Commission reported in Ex Parte No. 370 that 52 parties,
basically shippers, receivers, and their organizations, had responded
favorably: 38 parties. basically carriers and their organizations, were
5b
the proposed rule without change. The decision explained that
yearly increases in the number of published tariffs had com-
bined with budgetary and personnel constraints to make the
new policy imperative. As originally proposed, the new regula-
tion was to apply only to improperly symbolized increases,
since unnoticed rate raises pose the greatest threat to tariff
users. The decision also made it clear that claims for over-
charges accruing from publication of improperly symbolized—
and therefore unlawful—tariffs could be filed at any time with-
in the ordinary three-year limitation period prescribed by 49
U.S.C. § 11706(b).
The controversial regulation was duly codified at 49 C.F.R.
$§ 1300.2(a)(4), 1303.4(d)(3), 1304.2(c), 1306.5(b)(2),
1307.5(r)(1), 1308.2(a), and 1310.10(f)(5). Although it was
scheduled to become effective on Octuver 14, 1980, this Court
granted a temporary stay of its operation and enforcement
pending our review. The Commission subsequently denied
several petitions for reconsideration of Ex Parte No. 370. See
365 1.C.C. 43 (1981).
Il. The Commission’s Authority
A. Standard of Review
In reviewing a decision of the Commission, “[wJe can ask
only whether the Commission has observed the statutory lim-
its that Congress has set for its discretion, whether its action
was arbitrary or capricious, or whether its findings are sup-
ported by adequate analysis and substantial evidence in the
record considered as a whole.” Missouri-Kansas-Teras Rail-
road v. United States, 632 F.2d 392, 400 (Sth Cir. 1980), cert.
denied, 451 U.S. 1017, 101 S.Ct. 3004, 69 L. Ed.2d 388 (1981).
See5 U.S.C. § 706(2A), (C), (E). At the outset, then, we must
determine whether the Commission has remained within the
statutory bounds set forth i. the Act. Statutory construction
normally raises only questions of law, which are freely review-
able de novo by the courts. See Coca-Cola Co. v. Atchison,
Topeka & Santa Fe Railway, 608 F 2d 21? 218 (Sth Cir. 1979).
6b
While courts must not shirk through inertia their responsibil-
ity as final authorities on matters of statutory interpretation,
“(tJhe construction put on a statute by the agency charged with
administering it is entitled to deference by the courts, and
ordinarily that construction will be affirmed if it has a ‘reason-
able basis in law.’” Volkswagenwerk Aktiengesellschaft v.
FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090
(1968). See also Coca-Cola Co., supra, 608 F.2d at 222
(“(E]}ven when the issue is one of pure law, such as interpreta-
tion of contracts, tariffs, regulations, and statutes, room still is
present for deference to the views of administrative agencies,
particularly where the understanding of the problem is er-
hanced by the agency’s expert understanding of the indus-
try”).
B. Rejection of Tariffs
The Carriers insist that the proposed regulation exceeds the
Commission’s statutory authority in that it provides for
retroactive rejection of tariffs and creates a private right of
action on behalf of shippers who are not necessarily injured by
a missymbolized increase. The new policy permits the retroac-
tive voiding of otherwise reasonable rates, the argument con-
tinues, thereby allowing unharmed shippers to reap the wind-
fall of up to three years in overcharges because of a printer’s
oversight. Of course, the contrast between a potentially major
usurped.
section of 49 U.S.C. § 10762(e) in support of their contention
that the Act does not authorize rejection of a tariff already in
effect.
Section 10762(e) provides that “{t Jhe Commission may reject
a tariff submitted to it by a common this section if
that tariff violates this section or regulation Commission
carrying out this section.” The Carriers first seize upon the
phrese “under this section,” suggesting that since section
Tb
10762 generally governs the publishing and filing of propesed
tariffs, the Commission can only reject a tariff submitted
“under (that) section” while it is still proposed, i.e. ineffective.
The argument is imaginative, but sophistic. Section 10762 does
not confine itself to proposed tariffs; it prescribes general rules
for the filing of tariffs, and they obviously must remain on file
tariffs go into effect and requires that they remain oper. for
inspection. Moreover, since section 10762 is the source of all
tariff publication and filing requirements, any tariff, proposed
or effective, must have been submitted to the Commission
“under this section.”
The Carriers next focus on the word “may” and submit that
Congress intended for the rejection process to be discretiona-
ry, not mandatory. We fail to see how this lends any weight to
the Carriers’ position, however. Certainly the statute makes
rejection of any tariff an act of discretion, but the Commission's
election to reject all tariffs containing unsymbolized rate in-
creases remains wholly authorized by this broad grant of dis-
cretion
Third, the Carriers suggest that the word “reject” connotes
an immediate refusal to accept a tariff rather than a reserva-
tion of power to discard it at any time. Insisting that the
Commission canz:0t “reject” a tariff after it has gone into effect,
petitioners cite the following language from Delta Air Lines,
Inc. v. CAB, 543 F.2d 247, 268 (D.C. Cir.1976):
8b
Sega eee Oat ene O eee Seats aay
only prior to a tariffs effective date
The Carrier’s reliance upon Delta Air Lines as controlling
precedent, however, founders upon crucial factual differences
between that case, which construed a section of the Federal
Aviation Act (FAA),’ and the case before us.
In Deita Air Lines, the D.C. Circuit considered a challenge
by several air carriers to five orders of the Civil Aeronautics
Board (CAB). The CAB had relied on section 403 of the FAA,‘
a provision similar to section 10762 of the Revised Interstate
Commerce Act, to reject the airlines’ properly filed tariffs on
the grounds that the tariffs—which propounded the airlines’
policies on carriage of hazardous cargo—were inconsistent
with applicable federal air safety regulations. The Court of
Appeals held that the CAB had improperly relied on section
403, a provision designed solely to set forth the procedural
prerequisites for filing a tariff, in order to cancel the tariffs on
substantive grounds. The Court concluded that the CAB could
only challenge such substantive defects in effective tariffs by
proceeding against them under section 1002 of the FAA, which
empowers the CAB tc determine the lawfulness of a new tariff
only after providing notice and a hearing.’ As the Court ex-
plained:
Under the circumstances of this case rejection was
an alternative available to the Boa d under the Act. Ab.
*49 U.S.C. § 1301 et seq.
*49 U.S.C. § 1378.
* Section 1002 of the FAA, 49 U.S.C. § 1482, governs “Complaints
to and investigation by” the Administrator and the Civil Aeronautics
Coramerce Act, 49 U.S.C. $4 10707, 10708.
—ag = por
9b
prevent a new, proposed tariff from effective
ai pees Sys ete 180 days,
~ RA. a 8 to the
’ proposed tariffs we
find = substantive deficiencies warranting rejection
under section 403.
543 F.2d at 261 (emphasis original).
By contrast, the symbolization errors that form the basis for
tariff rejectien under the Commission's new regulation belong
precisely to the type of “technical or formal defect([s} relating to
the filing, posting, or publication of a tariff’ that the Court
noted as appropriate for rejection under section 403 of the
FAA. The requirement that rate increases be symbolized on a
filed tariff is not “substantive”; it does not “raise difficult issues
of economic cost and common carrier responsibility,” see 543
F.2d at 247, that invariably require investigation and dis-
cussion as aids to a decision on the merits. It is merely a
procedural regulation prescribing the form in which a tariff
must be published and filed, and rejection is the remedy that
agencies commonly are empowered to use against tariff filings
that are obviously “defective in form.” See Municipal Light
Boards v. F PC, 450 F.2d 1341, 1364 (D.C. Cir. 1971), cert.
denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972),
(quoted in Delta Air Lines, supra) (rejection “is appropriate
where the filing is so deficient on its face that the agency may
properly return it to the filing party without even awaiting a
responsive filing by ary other party in interest.”).
Of course, the neec for a symbol denoting a rate increase
may not always be obvious. As petitioner NMFTA points out,
see note 15, infra, ambiguit es that arise during the process of
amending rate classifications may create uncertainty as to
whether the rate for a particular commodity has gone up or
down. However, the Commission's new
CAB procedure struck down in Delta Air
10b
complaint procedures of 49 U.S.C. § 11701, which entitle a
carrier charged with violating the Act to “notice of the in-
vestigation and an opportunity for a proceeding.”
Fourth, and finally, the Carriers fall back on the familiar
argument that Congress surely would have stated its inten-
tions more clearly and vested a private right of enforcement in
shippers had it meant for section 10762(e) to empower the
Commission to void any tariff not in compliance with its “tech-
nical” requirements. This contention, at least as it bears upon
the language of section 10762(e), is mystifying. Congress did
create a private right of enforcement when it permitted ship-
pers to sue “for amounts charged that exceed the applicable
-rate-—- -eontained in a tariff filed under Subchapter IV of
Chapter 107 of this titie.” 49 U.S.C. § 11705(b)(1). As we shall
see in Part C, infra, the question becomes whether a tariff
lacking the necessary symbol should be considered as having
been so filed.
As for the Carriers’ wish for a clearer statement of Con-
gressiona! intent, we can only reiterate that section 10762(e)
authorizes the Commission to “reject a tariff submitted to it by
a common carrier under this section if that tariff violates this
section or regulation of the Commission carrying out this sec-
tion.” Taken at face value, the statute would seem to empower
the Commission to reject any tariff not in conformity with its
regulations prescribing the form in which tariffs are to be filed.
It mentions nothing about “proposed” or “ineffective” tariffs,
nor does it place any time constraints on the power to reject.
Turning petitioners’ guns around, one might suggest that Con-
gress surely would have limited the reach of section 10762(e) to
“ineffective” tariffr had it intended such a result.
Se 10762(e), therefore, in-
dicates that the Commission not reject a tariff that has
into effect but has not been in the prescribed format.
. the precedents cited by the Carriers suggest that
the sppreprstanens of rejection oo «remedy tro regulary
more upon the type of error being corrected
1lb
(i.e., formal versus substantive) than upon the type of tariff
being challenged (proposed versus effective). Missymboliza-
tion is a formal defect and an important one. Especially since
the Commission intends to provide notice and a hearing on
_ challenged tariffs,‘ we conclude that the Commission may re-
C. Retroactive Voidance
Having reached the conclusion that the Commission may
reject improperly symbolized tariffs, we must immediately
concede to an impression that the Commission's power of rejec-
tion does not lie at the heart of this dispute.’ The Carriers’ own
proposals for sanctions against symbolization errors—notably
fines—indicate that their primary concern is not to escape all
*In Southern Motor Carriers Rate Conference v. United States,
676 F.2d 1374 (11th Cir. 1982) (amended opinion), the Court con-
sidered “whether § 10762(e) of the Interstate Commerce Act autho-
rizes the Commission to reject or strike an effective tariff using the
Tariff Integrity Board procedures.” These procedures, announced in
Ex Parte 367, Tariff Integrity Board, 49 Fed. Reg. 39658 (1979),
provided for expeditious handling of disputes over whether a tariff
had been filed without complying with the requirements of § 10762 or
Commission regulations. The Eleventh Circuit conchuded that the
Act did not authorize rejection of effective tariffs through the in-
formal proceedings proposed for use by the new Board. The Co zt
expressly reserved, however, the issue of “whether through forma/
complaint procedures the Commission may strike a tariff retroactive-
ly for procedural publishing errors.” At 1379 (emphasis added).
*The Commission does not even rely upon subsection 10762ie) as
primary suthority fur its new reguistion. although it insists that a
defective tariff may be rejected at any time. Rather, it falls back on
saan ab eaten dian Gal tome aaa
een e for _
a mI eh
cnutiunemamanatndaiaee
12b
responsibility for their errors. If the Commission were seeking
to reject improperly symbolized tariffs merely by imposing a
fine or notifying the offending carrier that it could no longer
collect on the defective tariff until it filed a proper substitute, it
appears likely that the Commission’s power to reject such
tariffs would have gone unchallenged. What deeply disturbs
the Carriers is the potential for retroactive liability that
accompanies rejection. Consequently, they insist that section
10762, however we construe its provision for rejection,
certainly does not contemplate retroactive overcharg: liability
for rates which are reasonable but which were filed originally
without the required symbol. To this argument we now turn.
As wetiei thusiastically point out, the C natnai
Phe one cantina tive invalidity of
published tariffs carrying with it the retroactive liability te
shippers moves away from an impressive list of prior decisions
by the Commission. Only recently the Eleventh Circuit, in
reviewing a separate but very similar order by the Commis-
sion," observed that “{iJn a long line of cases where shippers
brought formal complaints of overcharge on grounds that the
current tariff had been improperly established, the Commis-
sion held that the applicability of tariffs or rates does not
depend upon strict compliance with the Commission’s publica-
tion rules.” Southern Motor Carriers Rate Conference v.
United States, 676 F.2d 1374 at 1379 (11th Cir. 1982) (amended
opinion) (citations omitted).
Yet, an agency’s interpretations of practices under a statute
are not carved in stone.
of reconaiertin ofthe relevant facts ane te ma
of the office of 2
of transportation is an essential part
* See Note 6, supra.
American Trucking Associations, Inc. v. Atchison, Topeka &
Santa Fe Railway, 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18
L.Ed.2d 847 (1967). Of course, the flexibility permitted by this
approach, does not permit us blithely to accommodate each
new gloss placed by an agency upon its enabling legislation
without troubling ourselves to inquire whether the revised
interpretation, ruling, or practice remains plausibly within the
authority conferred by statute. Our scrutiny of the Commis-
sion’s new posture under section 10762, however, has led us to
conclude that the challenged regulation is, if anything, more
clearly authorized by the Act than was the Commission’s for-
mer policy of denying overcharge liability for improperly svm-
Shobe, Inc. v. Bowman Transportation, Inc., 350 1.C.C. 664
(1975), is the most recent in the line of cases cited in Southern
Motors, supra, which state the Coramission’s former policy.
The defendant carrier in Shobe published a tariff without the
required symbol. When sued for overcharges by a shipper who
had not discovered the defect in time to protest under the
F.2d 449 (9th Cir. 1957). Since the Alouette Court had held that
a carrier's violation of the thirty-day notice requirement ren-
dered the change rate unlawful, void, and uncollecti>le, the
ALJ reasoned that a carrier’: violation of the Commission's
publication requirements warranted the same penalty.
The Commission disagreed. It did not explain its refusal to
impose retroactive liability ior a defectively published tariff as
an act of discretion, however. The Commission justified its
14b
policy by reading into the Act a curious distinction between
statutory violations, for which the Act permitted retroactive
voidance, and regulatory defects, for which it supposedly did
not.
The distinction relied upon a subtle misreading of the In-
terstate Commerce Act as it read in 1975. Section 217 of the
unrevised Act, 49 Stat. 560, then codified as 49 U.S.C. § 317,
contained four subsections. Subsection 317(a) required the
filing of tariffs, authorized the promulgation of publishing
regulations, and authorized the Commission “to reject any
tariff filed with it which is not in consonance with this section
and with such regulations” (emphasis added). In short, it in-
cluded rough counterparts to subsections 10762(a)(1), (a)(2),
and (e) of the current codification. Subsection 317(c) contained
the thirty-day notice requirement that now appears in subsec-
tion 10762(¢)(3).
The Commission read the language italicized above as con-
fining the rejection remedy to violations of “section” 317(a),
established in Alouette, that remedy could not be
to the self-contained hothouse of “section” 317(a) and its
15b
dy. Ther emedy for a regulatory violation, rejection by the
- , is exclusive, as is the penalty: —
350 I.C.C. at: 670 (emphasis original).
The conclusion reached in Shobe is unsatisfactory for at least
two reasons. First, the Commission lacked persuasiveness in
arguing that rejection was a “specific administrative remedy”
applicable only to violations of publication regulations issued
pursuant to “section” 317(a). There is no reason to suppose that
the phrase “in consonance with this section” referred to any-
thing other than the entirety of section 317. Although we
customarily refer to any fragment of a statute as a section—
hence our prior reference to “section” 10762(e)—
Congressional draftsmen must be more careful. Drafters of the
Act were familiar with the distinction between a section and a
subsection;’ certainly they would have used the right word had
they intended to restrict the possibility of rejection to the
“regulatory” provisions authorized by the first paragraph of
section 317.
The structure of the Revised Act supports this criticism of
Shobe. Congress clearly intended the new codification to effect
no substantive changes in the law.” Yet the Commission’s
rejection authority under subsection 10762(e) of the Revised
Act expressly extends to tariffs that violate “this section or
regulation of the Commission carrying out this section” (em-
phasis added). In view of the presumptive continuity between
the old and new codifications, then, the Commission has always
had the authority to reject tariffs containing “regulatory”
violations.
* See, ¢.g., § 218%) of the unrevised codification, 49 Stat. 561,
Sy St ee a a a
subsection. .
# See H.R. Rep. No. 96-1296, 96th Cong., 2d Sess. 9, reprinted in
(1978) U.S.Cede Cong. & Admin. News 3008, 3018. See also note 14
infra and accompanying text.
16b
Second, Alouette itself drew no distinction between
“statutory” and “regulatory” defects as grounds for holding a
tariff unlawful and, therefore, retroactively actionable for
overcharges. Rather, the court differentiated only between an
“applicable” rate—that is, one that has been accepted and filed
by the Commission and is, therefore, binding on both shippers
and carriers—and a “lawful” rate—one filed in accordance with
the Act. The Court noted that a shipper must always pay the
applicable rate; but can recover overcharges if that rate proves
to have been unlawful at the time of payment.
While the acceptance for filing by the Commission of the
rate makes that rate applicable, it in no way cures any
defect which may be present either in the establishme nt or
the reasonableness of the rate. . . . A rate which is in fact
unreasonable is not made reasonable by the mere act of
filing, nor does the mere act of filing make lawful a publica-
tion not made in accordance with the provisions of the Act.
Filing does not constitute publication, or cure a defective
publication.
253 F.2d at 455-56 (emphasis added)."'
Nothing in the Commission’s contrary pronouncements
prior to 1978, and certainly nothing in Alouette, convinces us
'' The applicable/lawful distinction also is important to an under-
standing of why the Carriers err in suggesting that the new regula-
tion undermines the “filed rate doctrine.” The filed rate doctrine
“forbids a regulated entity from charging rates for its services other
than those properly filed with the appropriate federa! regulatory
authority.” Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 101
S.Ct. 2925, 2930, 69 L.Ed.2d 856 (1981). See also Lowden v.
Simonds-Shields-Lonsdale Grain Company, 306 U.S. 516, 520-21,
59 S.Ct. 612, 614, 83 L. Ed. 963 (1989). Originally devised as a means
of ending discriminatory rebate practices, the doctrine binds both
carriers and shippers to pay only the rate on file in the current tariff,
i.e. what has been described above as the “applicable” rate. How-
ever, as the Court explained in Middlewest Motor Freight Bureau v.
United States, 433 F.2d 212, 238 (8th Cir. 1970), cert. denied, 402
17b
that a tariff not in accordance with the publication regulations
authorized under section 10762(b)(1) of the Revised Act is any
less “unlawful” than one published in contravention of section
10762(c)(3)’s notice requirement. The logic behind Alouette is
that a tariff not filed and published in accordance with statuto-
ry or regulatory provisions is not lawfully on file with the
Commission." Just because the Commission does not
immediately notice the defect and accepts the defective tariff
does not mean that the tariff, through this mischance, becomes
lawful.”
Perhaps the best expression of the applicable/lawful distinc-
tion occurs in a comparatively recent decision of the Commis-
U.S. 999, 91 S.Ct. 2169, 29 L. Ed.2d 165 (1971), the doctrine creates a
right to collect, but not a right to retain, unlawful charges.
lected on the basis of improperly filed tariffs.
See Axinn & Sons Lumber Co. v. Long Island Railroad, 466 F.
Supp. 998, 996-97 (E.D.N. Y.1978) (following Alouette).
“In Acme Fast Freight Inc. Common Carrier application, 17
M.C.C. 549, 556-57 (1939), sustained, 30 F. Supp. 968
(S.D.N.Y.1940), aff'd, 309 U.S. 638, 60 S.Ct. 810, 84 L.Ed. 993
(1940), the Commission observed: |
If tariffs are unlawful. . . they may not lawfully be used [and]
ha in files. If not
om a ee eal edaas tha eae
18b
sion, H. J. Baker Bros., Inc.—Statute of Limitations, 357
1.C.C. 640 (1978). In H. J. Baker Bros., the carrier had
charged an excessive rate, violated the thirty-day notice
requirement, and failed to symbolize the rate increase. Find-
ing overcharge claims to be the appropriate remedy, the Com-
mission explained as follows:
The tariffs on file, although unlawful, specified the
plicable rate which the shippers were bound to pay, pur
suant to the act. The act requires strict observance of the
ee ilies toca eee
8 However, when and if the rates are shown to be
unlawful for any reason, shi are entitled to recover
the difference between what they paid under the
ble tariff, and what is determined to be the
lawful rate. Since the rate cannot be deemed
the lawful rate merely by virtue of on file with the
.. . Rates and charges unlawfully established whether in
the method of filing or contrary to specific commission
orders are not due the carrier.
375 I.C.C. at 644-45 (emphasis added). We conclude that tariffs
One difficulty remains. The cases we have cited on this point
relied on the definition of “overcharges” contained in the pre-
As the Eleventh Circuit pointed out in Southern Motor Carriers,
supra, a. 1379, the Commission struck the tariff involved in Acme
Freight for jurisdictional rather than procedural reasons. The
reasoning behind the Commission's statement, however, remains
pertinent here.
s
’
> ‘
ot
a“ Ye — ae | > Ji a lll
19b
1978 version of the Act. Section 16(3\(g) of the unrevised
statute described overcharges as “charges for transportation
services in excess of those applicable thereto under the tariffs
lawfully on file with the Commission.” Obviously, this wording
gave rise to the construction, developed in Alouette and H. J.
Baker Bros., that a rate must be both “applicable” and in-
cluded in a tariff “lawfully on file” in order to be fully collecti-
ble. Section 11705(b)(1) of the Revised Act, however, replaced
section 16(3g) with the following wording:
A common carrier providing transportation or service
subject to the jurisdiction of the Commission under Chap-
ter 105 of this title is liable to a person for amounts charged
that exceed the applicable rate for yy ee or serv-
ice contained in a tariff filed under Subchapter IV of
Chapter 107 of this title.
In eliminating the words “lawfully on file with the Commis-
sion,” did Congress purposefully estinguish the applicable/
lawful distinction discussed above?”
We are convinced that it did not. First, the legislative histo-
ry of the Revised Act clearly states that the 1978 revisions
wrought no substantive change in the law:
Like other codifications undertaken to enact
tive law all titles of the United States , this
iH
mere changes in terminology and style will result in
changes in substance or SS pies one
earlier decisions other i . This
fear might have some ¢ if this were the usual kind of
amendatory legislation it can be inferred that a
aw change of language is intended to change substance. In a
statute, however, the courts uphold the con-
trary presumption: the statute is intended to remain sub-
stantively unchanged.
H.R.Rep. No. 95-1395, 95th Cong., 2d Sess. 9, repri ited in
/ [1978] U.S.Code Cong. & Admin. News 3009, 3018."
(
“ See also Fourco Glass Co. v. Transmirra Producis Uorp., 358 :
U.S. 222, 227, 17 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957) (“{I}t will not be '
20b
Moreover, the revised wording still creates overcharge liabil-
ity for charges that exceed the rate “contained in a tariff filed
under Subchapter IV of Chapter 107 of this title.” Since a well
accepted meaning of “under” as used in legal writings is “in
accordance with,“ section 11705(b)(1) remains subject to the
' interpretation that a rate increase is not collectible unless it
a ita 2 sme si
appears in a tariff filed in accordance with section 10762 (which
is part of Subchapter IV, Chapter 107) and the regulations
authorized by subsection 10762(b’i).
III. Is The Regulation Arbitrary?
The Carriers argue that the Commission's action in adopting
the proposed regulation is unlawful, even if authorized by
statute, because it is arbitrary and capricious. Before consider-
ing this challenge to the reasoning that underlies the Commis-
sion’s decision, we note that the “arbitrary and capricious”
standard is highly deferential and forbids a court from sub-
stituting its judgment for that of an agency. Evironmental
Defense Fund, Inc. v. Costle, 657 F.2d 275, 282 (D.C. Cir.
1981). “If the agency considers the relevant factors and articu-
lates a rational connection between the facts found and the
choice made, the decision is not arbitrary and
Watkins Motor Lines, Inc. v. 1.C.C., 641 F.2d 1183, 1188 (5th
Cir. 1981). See also City of Houston v. FAA, 679 F.2d 1184 at
1189-90 (5th Cir. 1982).
Briefly, the Carriers contend that the new regulation is
arbitrary and capricious because it is unnecessarily harsh
when viewed against its objectives. They submit that rate
symbols are mere technicalities and that shippers are likely to
learn about increases through prefiling notices or new filings
o0eh WEES Cho cages pues. Then, Wie ga
21b
ful, symbols are not of sufficient importance to justify ex-
tensive penalties for carriers who erroneously omit them.
Certainly, the Carriers insist, the sanction adopted by the
Commission—retroactive overcharge liability with a three-
year statute of limitations—is out of all proportion to the
seriousness of such omissions. An unscrupulous shipper lucky
enough to detect an unsymbolized increase could sit on his
discovery for three years and collect the windfall of a massive
overcharge judgment. This is particularly capricious, the Car-
riers continue, since the shipper is not even required to show
injury: in other words, an otherwise reasonable increase may
be declared retroactively invalid up to three years after going
into effect just because the carrier neglected to symbolize it.
Finally, the NMFTA, which publishes the National Motor
Freight Classification, complains particularly that the new
regulation is arbitrary and capricious because it fails to make
concessions for unavoidable errors that occur whenever a new
(or newly amended) rate classification creates a dispute over
which rate applies to a certain commodity."
The Commission replies that efficient symbolization is cru-
cial to tariff users’ right to lodge timely protests against pro-
‘® The National Motor Freight Classification is a catalogue of prod-
ucts gouped according to the similarity of their rates. As described
by the Supreme Court in Director General of Railroads v. Viscose
Co., 254 U.S. 498, 503, nin 151, 153, 65 L.Ed. 372 (1921),
(classification in aesmiing pepaiee te copne tne
associating in designated tet
their inherent qualit or value, Sadie thie
aga ye te at
given similar rates —
The Classificaton is a tariff and must comply with the Commission's
symbolization rules.
The comments on proposed rulemaking submitted by NMFTA
suggested that the new rule may impose substantial liability for
symbolization errors that are inevitable. According to NMFTA,
22b
posed rate changes. Since the Commission can no longer afford
to police the thousands of rate changes that are published
weekly, it must shift the burden of ensuring exact compliance
with symbolization requirements to the carriers themselves. It
has concluded that the best means of compelling carrier to
assume this burden is to adopt the new policy under which
unsymbolized rate increases are considered unlawful and,
therefore, void ab initio. The threat of substantial liability is
the surest means of encouraging thorough compliance. No
carrier need ever repay an overcharge, after all, if it exercises
care to symbolize its rate increases as required. In defense of
the three-year limitations period, the Commission points out
that this is merely the time limit mandated by 49 U.S.C.
§ 11706(b) for any civil action to recover overcharges under
§ 11705(b)\(1). As for the uncertainties predicted by NMFTA,
the Commission responds that tariff publishers who are uncer-
tain of a new or amended classification’s ultimate effect on
rates can apply to the Commission for a waiver of the
symbolization requirement. Moreover, the Commission points
out that it retains sufficient discretion under the new regula-
tion to take account of special cases in determining liability.
Admittedly, the petitioners have voiced robust objections to
the new regulation. Allowing shippers three years in which to
file a claim for overcharges based on a symbolization error is a
potentially harsh remedy. Also of concern is the absence of any
injury-in-fact prerequisite to such a claim. Shippers who could
not possibly have challenged a newly-filed rate increase as
unreasonable may be able to secure its subsequent revocation
simply because they did not have the opportunity to offer a
futile protest. Moreover, a shipper with actual notice of the
amendments to a classification may change the descriptive wording,
thereby creating uncertainty as to which classification (and which
rate) covers a particular product. Until this matter is settled, it may
be impossible to determine whether the rate for that commodity has
been lowered, been increased, or remained unchanged.
23b
increase can seek damages for the absence of a symbo! whose
purpose is to provide notice.
These problems reflect severity, however, not caprice. The
Commission has provided a rational explanation for its deci-
sion. Pleading necessity, the Commission has opted for what
comes down to a rule of strict liability for noncompliance with
its symbolization regulations. Having persuasively described
the necessity of shifting monitorial duties to the carriers them-
selves, where the ultimate legal responsibility always has lain,
the Commission is not unreasonable in concluding that over-
charge liability is the most appropriate means of encouraging
the carriers to check and recheck thoroughly all tariff revi-
sions. The predicted decline in intentional or negligent
symbolization errors compensates, at least arguably, for the
possibility of recovery by an unharmed shipper. After all, it is
clear that a carrier is not entitled to a rate increase, just or
otherwise, that has not been filed in the prescribed manner.
Moreover, the Commission is correct in pointing out that the
carriers can prevent windfall recoveries simply by carefully
carrying out their own legal obligation to mark their rate
increases.
The need is clear for a symbol to indicate rate increases
ever, and the Commission retains the right to fashion relief
to individual circumstances. Thus, with regard to
* See, e.g., Genstar Chemical Ltd. v. ICC, 665 F .2d 1304, 1309-10
(D.C.Cir.1961), cert. denied, __. U.S. —_, 102 S.Ct. 1750, 72
L.Ed.2d 161 (1982).
ey
majority of cases, carries the possibility of an arbitrary
adjudication in some future circumstance. The Commission has
clearly stated that it will take action on a symbolization error
only after providing notice and a hearing pursuant to 49 U.S.C.
§ 11701. In the concrete disputes that arise under this proce-
dure, the Commission undoubtedly will encounter situations in
which the duty to symbolize a rate as “increased” was not
apparent at the time of filing. If, as the result of some future
adjudication, a carrier believes that the Commission has
arbitrarily struck down a tariff because of a symbolization
error that was truly unavoidable, the carrier may petition for
judicial review of the Commission’s order on that basis. See 28
U.S.C. §§ 2321(a), 2342(5).
We conclude that the challenged regulation is authorized by
$§ 10762(b\(1), 10762(e), and 11705(b\(1), and that the Com-
mission’s decision to exercise this authority was, in view of the
capricious.
Stay VACATED and Petitions for Review DENIED.
le
INTERSTATE COMMERCE COMMISSION
Ex Parte No. 370
TARIFF IMPROVEMENT
Decided August 14, 1980
Tariff publishing regulations adopted which will (1) permit
tariffs to express rates and rate changes as percentages; (2)
declare rate increases unlawful which result from
improperly-symbolized tariff changes; (3) prescribe stand-
ard titles and item numbers for commonly-published tariff
rules, and (4) allow tariffs to identify commodities and point
locations by certain uniform standard code designations.
DECISION
By THE COMMISSION:
We began this proceeding on our own motion by Notice of
Proposed Rulemaking (NPR) entered October 9, 1979, and
published in the Federal Register on October 18, 1979 (44 F.R.
60122).' Our purpose is to improve, simplify and modernize
tariffs by reducing their size, compiexity and cost; by
(1) Lape Pw awn bpp, 1 ~ hc aalinanarmaati scent
crease and reduction as percentages;
' The regulations proposed are set forth in appendix A.
2c
(2) declare rate increases unlawful which result from
improperly symbolized tariff changes;
(3) prescribe standard titles and item numbers for
commonly published tariff rules; and
(4) allow tariffs to identify commodities and t loca-
Sots iene.
Interested persons were invited to submit written com-
merits on these rules and, in response to that invitation, a total
of 109 comments were received,’ representing virtually all
segments of the surface transportation community: carriers
traffic consultants, civic organizations, port authorities and
Federal agencies. A complete list of the commenters is set
forth in appendix B.
After a thorough analysis and evaluaiion of the comments,
which unanimously applauded the Commission’s goals in this
proceeding, we have concluded to adopt the proposed regula-
tions with several modifications which were suggested by the
commenters. These modifications, together with all relevant
issues, suggestions and objections raised in the cormments, are
discussed below in the same order they were introduced in our
NPR. The adopted regulations and a notice of this action are
set forth in appendix C.
PART I: PERCENTAGE EXPRESSION OF RATES,
CHARGES AND AMOUNTS OF INCREASE OR REDUCTION
This proposal was designed primarily to reduce the size and
cost of tariffs and, at the same time, to give carriers the kind of
tariff flexibility they will need to compete effectively in what
we foresee as a substantially less-regulated environment in the
future. It was predicated on the assumption that the “explicit
statement of rates” required in the past is no longer necessary
? Including one late-filed comment filed by Middlewest Motor
Freight Bureau.
x
3
3e
because of changed technological conditions—particularly the
universal availability and use of inexpensive solid-state calcu-
lators. A substantial majority of the 92 comments which
specifically addressed this proposal not only favored adoption
of the proposed rules, but supported the Commission's purpose
Opposition comments were based primarily upon two con-
tentions: (1) that a general relaxation of the explicit statement
requirement of the Interstate Commerce Act is outside the
Commission's jurisdiction, and (2) that the use of percentages
would have an adverse effect on the manual tariff user. Other
comments, while supporting the basic concept of the proposal,
took issue with the pace and scope of the relaxation and the
degree of flexibility afforded by the proposed rules. Generally
speaking these comments were balanced between those who
thought the proposal was too far reaching and those who
thought it did not go far enough. The former argued, for
example, that the proposal should first be tested on a trial-
tariff basis and that its use should be limited to the expression
of class or class and column-commodity rates only. The latter,
on the other hand, contended that the rules are unnecessarily
restrictive, that they should allow the use of mathematical
formula and rate-factor expression, that they should permit
percentage supplements to be used in connection with master
tariffs, and that the rules should be mandatory, rather than
permissive.
JURISDICTION
Although only three comments challenged the Commission's
ney Se ee OF © ee ee
, we believe that our position on this
salad toutes fen ahoeot eneainad ican kanal
Section 10762(a) of the Interstate Commerce Act (49 U.S.C.
10762(a)(2)) specifically requires that motor carrier, water car-
rier and freight forwarder rates be stated in “money of the
United States.” Previously, we held that rates must always be
ot oe - eT UN eee ox“
de
stated exactly in dollars and cents, and tariff users should
never have to resort to calculations to determire applicable
rates. See Rice v. Atchison, Topeka & Santa Fe R. Co., 4
I.C.C. 228, 246 (1890); Colorado Fuel & Iron Co. v. Southern
Pacific Co., 6 1.C.C. 488, 519 (1895). We now believe that this
policy is unduly restrictive and, indeed, not required by section
10762(a)(2). It is our view that the initial publication of rates in
dollars and cents satisfies the requirement of section
10762(a)(2).
In our NPR we cited the “universal availability and use of
inexpensive, solid-state calculators” as one of the circum-
stances underlying this proposal. But this phenomenon is only
the surface manifestation of an even larger, and more signifi-
cant, set of circumstances—namely, the rapidly developing
technological and educational sophistication of the American
public in general and of Americar business in particular.
Requirements and restrictions that may have been seen .as
absolutely necessary under the social and educational condi-
tions prevalent in 1935, when the Motor Carrier Act was
tion in the early days of this century, has today—due to chang-
ing times and conditions—largely outlived its usefulness. As
the court stated in Akron, Canton & Youngstown R. Co. v.
United States, 370 F. Supp. 1231 (D. Md. 1974), at page 1234:
i
fe
H
F
2
|
a
a * Ae ee oe ee Ue
oc
Because of these “changing conditions and times,” the Com-
mission has broadly relaxed the act’s posting requirements
over the last few decades.
We contend now that similar circumstances exist, because of
changing conditions and times, with regard to the requirement
that all rates be stated in money of the United States.
Over the last 45 years, the use of percentages has moved
from what was once only a classroom exercise to a familiar and
accepted facet of American daily life. The average consumer
has grown accustomed to dealing comfortably with interest
rates on loans, credit card purchases, and savings accounts;
with retail and wholesale discounts; with mortgage rates and
taxes—all expressed in terms of percentages. Clearly, the
expression of figures and prices in terms of percentages has
become a normal part of this country’s social and business life,
and it is clearly within the Commission’s jurisdiction to utilize
its exemption power liberally to respond to this change.
EFFECT ON THE MANUAL TARIFF USER
We realize that relaxation of the explicit-statement require-
ment will have an effect on manual tariff users. They will be
forced, in many instances, to perform percentage computa-
tions to determine transportation charges. We do not believe,
however, that this burden will be an unreasonable one. And it
will be more than offset by the benefits accruing: fewer tariff
pages to buy, to file and to store, lower subscription costs and,
ultimately, lower freight rates.
For carriers and their agents, the relaxation will offer re-
duced printing, production and compilation time, and a greai
reduction in the use of paper. Examples of the possible savings
identified by Commission studies are as follows:
507 pages of class rate tables in one for-
wardes trill could be retoed 00.80 peace ly uthidinn the
percentage-rate system.
To meet the explicit-rate in connection
with a general increase last year, one motor .
—
6
rate bureau had to publish 2,160 pages of rate tables.
Because the ori yp geen sens Vee aes
“without p for a lower amount, 2,160
mane panied Seats tables to be filed. This is a total of
4,320 pages—all of which could have been eliminated
a supplement concept advanced inthe .
ee kere filed in this
example can haibeaieas taeranion tariff matter
m
of
ete tae | Subscription lists for tariffs of maj
or or
bureaus often run into the thousands.)
Tables of volume incentive rates, aggregate tender
rates, discount rates, and rate conversion tables (e.g.,
those used to convert rates in cents per 100 pounds to
cents per gallon), the yo of which can run any-
where from one to 50 , could be replaced in many
instances by a single item.
Despite these obvious benefits, several carrier commenters
registered objections to the proposed rules on the grounds that
their own rating personnel would be adversely affected.
Frankly, we find it difficult to take these contentions seriously.
Carriers and their agents will be under no obligation to utilize
the permissive authority conferred on them by these rules. If
they believe that the disadvantages of expressing their rates
and rate changes as percentages outweigh the advantages—
either for themselves or for their shipping customers—they
are quite at liberty to continue their present practices.
We have no doubt, however, that when carriers, agents and
shippers become aware of the enormous potential for savings
inherent in the new regulations, they will not only accept the
principle of percentage expression, but will demand that it be
utilized wherever possible.
PACE, SCOPE AND FLEXIBILITY
Many shipper commenters are concerned that the proposed
rules would be an open invitation for carriers to make their
tariffs incomprehensibly complex. They contend that the Com-
mission is moving much too fast and that adoption of the rules
Te
should be preceded by further Commission and industry study,
interim reports and sample percentage tariffs. While we do see
a need for caution and planning in implementing the regula-
tions (and this view is shared by almost all carriers and agents
who submitted comments), we do not believe such steps are
necessary. Requiring shippers to perform simple percentage
calculations in order to determine applicable rates is hardly a
revolutionary concept. Many carriers have had percentage
provisions of one kind or another in their tariffs for several
years. Within the last year, moreover, we have granted sever-
al special tariff authority applications to express rates and rate
changes as percentages. For example, Bulk Carrier Con-
ference was authorized to publish general increases in terms of
a percentage figure; Southern Freight Association was autho-
rized to provide for rate reductions by percentages; and Mid-
diewest Motor Freight Bureau was authorized to establish
commodity rates in terms of percentage amounts of class rates.
The implementation of these authorities has not appeared to
unduly complicate these agents’ tariffs. To the contrary, we
believe that most of them have not only succeed in reducing the
number of tariff pages enormously, but have actually simpli-
fied the rate-checking process. Moreover, they have enabled
these agents, on behalf of their member carriers, to respond to
their customers’ needs quickly and simply.
We have also been urged by a number of commenters to
quests are attributable, we believe, to two failures: first, the
failure to foresee the potential for commodity-rate percentage
publication and second, the failure to understand the true
nature of this proposal.
While it is true that present class and column-commodity
rate structures lend themselves more readily to immediate
even greater. The Middlewest Motor Freight Bureau’s recent
grant of Special Tariff Authority was not for the conversion of
8¢
present commodity reves to percentages, but for the establish-
ment of new commodity rates; and we are confident that car-
riers and agents will continue to formulate new and innovative
ways to utilize commodity-rate percentage expression in the
future.
As to the nature of this proposal, we want to make it clear
from the outset that it was not intended in any way to disrupt
present rate structures. It is a rate expression proposal, not a
rate making one. We are fully aware that many existing rate
structures—both class and commodit y—simply cannot be ex-
pressed in percentage form. Most motor carriers’ class rate
structures under class 100, for example, no longer reflect a
tautology of true percentages (i.e., where the class 70 rate is
identical to 70 percent of the class 100 rate, et cetera). Thus,
their tariffs could not utilize the percentage concept without
severely disrupting the rate structures.
This is one of the two basic reasons why the proposed and
adopted rules are permissive rather than ma’ latory. The
other reason is simply that we have no wish to force carriers to
express rates and rate changes in a manner which might be
unsuitable for their own needs or incompatible with their ship-
pers’ wishes. In a less regulated future environment, carriers
will need the flexibility to explore diversity, innovation and
simplification, not only in their services and prices, but in their
tariffs as well. If constraints and restrictions are necessary,
they should be imposed by the demands of the marketplace
rather than by the limitations of our regulations.
To this end, we have been persuaded by a surprisingly large
number of commenters—both carriers and shippers—that the
proposed rules are unnecessarily restrictive. That is, instead
of protecting the tariff user from publishing abuses, the
restrictions form an effective barrier against the use of the new
rules and a realization of the advantages they offer. We have
therefore made the following liberalizing modifications:
(1) The restrictions in sections 1300.4(i)(1) and
1310.7(aX(2), which permit conversion of a tariff to percentage-
9e
rate expression only by reissue, has been deleted. This will
allow tariffs and portions of a tariff to be converted by amend-
ment, without unduly delaying, or increasing the cost of, utiliz-
ing the new authority.
(2) The restrictions in section 1300.4(i(1) and 1310.7(a)(2)
prohibiting expression of a rate as a percentage of a rate
contained in another tariff has also been eliminated. This will
permit commodity rates to be expressed as percentages of
class rates, as was permitted in recent Special Tariff Authority
grants.
(3) Part 1312 has been deleted, and the essential provisions
of section 1312.1 have been incorporated into section 1300, 9(n)
and 1310.10(k), respectfully. However, the prohibitions
against incorporating more than 1 percentage change; against
reissuing the supplement with a same or earlier expiration
date; against extending the supplement by a like supplement;
and against using percentage supplements in connection with
master tariffs, connecting link supplements and conversion
supplements have been eliminated. The 1-year expiration date
provision has been changed to a 2-year period to coincide with
the updating limitation imposed on the railroads by the Com-
mission in Transfer of General Increases, 358 1.C.C. 158
(1977). The provision in section 1312.1(h) exempting percen-
tage from the terms of section 1300.%e) and
1310.9 d), which govern the number of supplements and
volume of supplemental matter permissible, has also been
eliminated.
The provision of section 1312.2 have been eliminated in their
entirety and not incorporated into any other section. By ex-
tending the incorporation date from | to 2 years and allowing
percentage supplements to be used in connection with master
tariffs, connecting link supplements and conversion supple-
ments, v’e have eliminated the necessity for a special supple-
ment for converting rate-change percentages to explicit rates.
10¢
FORMULA RATES
Several shippers, carriers and taffic consultants have im-
plored us to expand the rules to allow for mathematical-for-
mula rate expression. By Special Permission No. 80-1838,
decided March 19, 1980, the Commission approved a rate-ex-
pression scheme, developed by the Southern Freight Associa-
tion, for determining applicable rates in one of its tariffs by use
of a multistep mathematical formula. This scheme is the first
ever to be approved for use in tariffs subject to our regulation.
Unlike simple percentage calculations, however, mathemati-
cal-formula computations are not yet in the public domain.
Usually they require not only a calculating machine, but ex-
tensive mathematical training and skill, as well. For this
reason, we will continue to review any similar applications on a
case-by-case basis. However, we wish to go on record as
applauding past industry efforts in this area and encouraging
future efforts.
PART Il: SYMBOLIZATION OF TARIFF MATTER
RESULTING IN INCREASES
In part II of our NPR we proposed regulations which stipu-
late that increases resulting from tariff changes not properly
symbolized are unlawful and therefore invalid and not collect-
able. Of the 90 parties commenting on this proposal, 52 were in
favor and 38 were opposed. Support for the proposal came
basically from shippers, receivers, and their related organiza-
tions. Opposition was voiced by carriers and their related
organizations. After reviewing the comments we have decided
to adopt the rules as proposed without change.
DEPARTURE FROM PAST POLICY AND PRACTICE
Several commenters contend that the increased emphasis on
proper symbolization of proposed rate increases is an unwar-
ranted departure from our past policy and practice. We dis-
agree.
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The courts have often held that the Commission is free to
make changes to accommodate its own needs and those of the
transportation community. In American Truck, Asa’ns. v.
Atchison, T.&S.F Ry. Co., 387 U.S. 397 (1967), for example,
the Supreme Court stated:
the Commission, faced with new developments or in light
of reconsideration of the relevant facts and its mandate,
may alter its past apne ote any and overturn ad-
ministrative rulings practices * * *. In fact, ——
we make no judgment as to the policy aspects of
Commission’s action, this kind of ility and adaptabil-
ity to changing needs and of transportation is an
essential part of the office of a yoguiotery agency.
Regulatory do not establish rules of
within the limits of the
last forever; hey avo
law and of fair and prudent administration, to adapt their
our tariff e
tion function has been sharply curtailed. It is imperative
for us to alter our rulings that symbolized
are and collectible, it is now more
persuaded not that this is necessary for us to
continue to sar and progent administration, ut
that its is within the limits of the law.
STATUTORY V. REGULATORY VIOLATIONS
Several commenters criticize this proposal, however, as
being contrary to law. They contend that our tariff
publishing
rules requiring symbolization of tariff changes are regulatory,
nature. Penalties for violations of regulatory requirements,
12¢
they argue, cannot be of the same magnitude as penalties for
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Our regulations calling for the proper symmbolization of
increases were prescribed under authorities contained in vari-
ous provisions of the former Interstate Commerce Act. These
authorities were recently revised, codified, and enacted with-
out substaritive change as section 10762(b) of subtitle IV of title
49 of the United States Code. Considering the findings in the
Arinn cases, an increase which is established in violation of our
tariff publishing rules can be found to be unlawful under the
terms of the Commission’s statute. The same finding can be
made of other violations of our tariff publishing rules. Codified
regulations have the force of statutory law. /CC v. Appleyard,
371 F. Supp. 168 (1974), affirmed 513 F. 2d 575 (1975), cert.
denied 423 U.S. 840 (1975).
In the Azinn case the court found that the situation was
controlled by Chicago, M., St. P. & P.R. Co. v. Alouette Peat
Products, 253 F . 2d 449 (1957). In that case a finding was made
that certain essentials must be met in order for rates to have
final lawfulness. At page 455, the court said:
Thus under the Act, a rate, to have final lawfulness and
must be lawfully established (Sec. 6, Par. 7, 49
CA.) must be just and reasonable (See. 1(5), 49
3, Par. 1, 49 U.S.C.A.). Lacking any of these ene
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payers of freight charges are entitled to recover the difference
between what they paid under the applicable tariff and what is
subsequently determined to be the lawful rate. H. J. Baker &
Bros., Inc.—Statute of Limitations, 357 1.C.C. 640, 644 (1978).
Several parties are concerned with the fact that we did not
provide a time limit for the filing of overcharge claims when
improperly symbolized increases are detected. Periods of 30
and 60 days from effective dates of the violation are suggested.
Some feel that ~ Tariff Integrity Board is already setup to
handle considerat on of complaints alleging improper
symbolization and therefore such allegations should be
brought before that Board.
We see no need to assign any time limit nor do we see that
improperly symbolized increases must be considered by the
Tariff Integrity Board. We are placing a great deal more
emphasis on the proper symbolization of increases. Improperly
symbolized increases resulting in overcharges will be handled
under normal overcharge procedures. (See Overcharge, Dup.
Payment, or Overcollection Claims, 358 1.C.C. 114 (1978)).
Therefore, these overcharges, as is the case with other types of
overcharges, will be governed by the appropriate statute of
limitations. Section 11706(b) of 49 U.S.C. provides that a
claimant must begin a civil action to recover overcharges with-
in 3 years after a claim accrues. If a claim is against a rail or
water carrier, a claimant may elect to file a complaint with the
Commission within 3 years after a claim accrues.
PENDING COURT ACTION
Several parties are of the opinion that action of this portion of
our Tariff Improvement rulemaking should be held in
abeyance pending the outcome of the case now before the
United States Court of Appeals for the Fifth Circuit involving
our Ex Parte No. 367 rulemaking. As stated earlier, the pro-
posal put forth in part II our NPR in this proceeding was an
expansion of principles we adopted in Ex Parte No. 367. Since
the court has not stayed the effectiveness of the rules adopted
15¢
in Ex Parte No. 367, the Tariff Integrity Board remains oper-
ational. Therefore, we see no need to hold this portion of our
rulemaking in abeyance. Should it develop that any adjust-
ments are necessary as 3 result of the findings of the court in
the Ex Parte No. 367 case, we will promptly make them.
WHAT CONSTITUTES AN INCREASE?
Several commenters requested that we provide a clearer
definition of the standards by which the tariff symbols pro-
vided in our tariff publishing regulations are to be measured.
The symbols and the requirements that they be used in all
tariffs have been in effect for a number of years, and tariff
publishers should be familiar with the symbols and their
application. However, we realize that in certain instances they
may not be able to gauge the exact effect of all tariff changes. In
most cases, however, the determination of whether a certain
tariff amendment would result in an increase can easily be
made. When publishers cannot be certain of a change’s ulti-
mate effect, they are at liberty to file applications seeking
Special Permission authority to waive the symbolization
requirements.
REDUCTIONS
In our NPR we also requested comments on the advisability
of extending the rules proposed in part II to improperly sym-
bolized reductions, as well as increases. Some comments sup-
ported such an extension and some comments were opposed to
it.
Presently, improperly symbolized increases have a much
greater potential for harm to tariff users (shippers, receivers,
o abaahantaanepeinemadimteraenin Maat
of cases this Commission and the courts have found that dis-
l6c
JOINTLY FILED TARIFFS
In comments filed by Sea-Land Service, Inc., and Sea-Land
Freight Service, Inc. (Sea-Land), a request has been made
that jointly filed ICC/FMC tariffs (authorized under Ex Parte
No. 261, Jn the Matter of Tariffs Containing Joint Rates and
Through Routes for the Transportation of Property Between
Points in the United States and Points in Foreign Countries),
be declared exempt from the rules proposed in part II of our
NPR. In Ex Parte No. 261, the Commission reaffirmed its
jurisdiciton to regulate the traffic covered by such joint tariffs
only insofar as such transportation takes place within the
United States. Thus, a total exemption of jointly filed ICC/
FMC tariffs from the rules proposed in part II of our NPR
would not be in keeping with the Commission's findings in Ex
Parte No. 261. The rules we will adopt in this part of the
rulemaking will extend to the jointly filed tariffs. However,
the rules will apply only on changes that are made in a division,
rate or charge which accrues to the domestic carrier.
PART III: STANDARD TITLES AND ITEM NUMBERS
FOR COMMONLY PUBLISHED TARIFF RULES
As part of the Commission’s effort to promote uniformity
and standardization of common tariff elements, we proposed in
part III of our NPR to adopt regulations requiring standard
titles and item numbers for all tariffs and schedules. Our pur-
pose is not only to facilitate computer compatibility, but to
enable manual tariff users to determine transportation serv-
ices and charges quickly and accurately. After reviewing the
comments, which almost unanimously supported the basic
thrust of our proposal, we have decided to adopt the proposed
rules, with only minor modifications. These modifications,
together with the major contentions of the commenters, are
discussed below.
Automobile Transporters Tariff Bureau, Inc. (ATTB),
Household Goods Carriers’ Bureau (HBCB), and Heavy and
17e
Specialized Carriers Tariff Bureau (H&SCTB) are opposed to
the application of the proposed rules to tariffs published on
behalf of their member carriers. They contend that standard
titles and item numbers that might be compatible with general-
commodity carriers’ operations are not necessarily workable
for the operations of specialized carriers.
We realize that the operations of the carriers participating in
the tariffs published by ATTB, HGCB and H&SCTB differ
from those conducted by general-commodity carriers. This is
true for other types of specialized carriers, too, such as horse
and film carriers. However, all motor carriers perform some
services which fall under several of the general titles outlined
in 49 CFR 1310.4(h\(i). For example, claims, loss and damage;
detention; minimum charges; et cetera. Further, the tariffs of
all motor carriers and their agents contain commonly used
items which are provided for in the rule. For example, govern-
ing publications; definitions; application of tariff; et cetera.
Since the tariffs of specialized carriers do contain provisions
which are covered by 49 CFR 1310.4(h)(i), they will not be
exempted from the requirements of that rule. These carriers,
as well as all other motor carriers, will be required to in-
corporate the use of the standard titles and item numbers in
their tariffs within 5 years of the effective date of the regula-
tions. Tariff items which contain provisions which are unique
to the type of service provided by specialized carriers cannot
be numbered with any of the numbers provided in 49 CFR
1310.4(h)(4\i) unless, of course, the provisions of the item are
covered by the general title shown opposite that number in the
rule. An adequate spread of numbers exists between the pre-
scribed item numbers to allow the publication of provisions for
which a general title is not provided.
COMPLIANCE
In view of the Commission’s recent change to a random
sampling tariff examination program, some parties question
our capacity to ensure compliance with the rules. Under the
present examination program, only a random sampling of the
18¢
tariff filings we receive are fully examined. This program,
however, is subject to change and/or modification. Since com-
pliance with the standard titles and item numbers will not be
required for 5 years from the effective date of the adopted
rules, it would be premature for us to determine here what
effect the sampling examination program will have on com-
pliance with the new rviles. Regardless of the form of our
examination program in > years, the Commission would con-
tinue to act upon complaints from members of the public con-
cerning noncompliance with our tariff publishing and filing
rules.
Substantial support is shown for the 5-year compliance
period. However, one party criticizes the period as being too
long. The 5-year period was arrived at by computing the aver-
age “life” of tariffs from information submitted to the Commis-
sion in No. 35867 (Sub-No. 1), Standard Headings and Stand-
ard Item Numbers for Commonly Published Rules and
Tariffs of Class | Motor Common Carriers of Property and of
Agents. From this information we determined that the aver-
age tariff life is somewhat less than 5 years. To shorten the
compliance period, however, could impose an unnecessary
hardship on tariff makers. Therefore, we will maintain the
5-year period. Of course, we encourage voluntary conversion
to, and use of, the standard titles and item numbers before the
ultimate compliance date.
In our NPR we stated that conversion to the standard titles
and item numbers could be accomplished by requiring that
system will be complicated and will require considerable plan-
ning on its part and on the part of other carriers. Schneider
states that modifications of headings and item numbers in
tariffs that are referred to in other tariffs which are not being
canceled or reissued could create a number of interpretive
19¢
problems. We agree. Consequently, our order in this proceed-
ing will be limited to the requirements that all tariffs be in
compliance with the adopted title and item number rules with-
in 5 years from the effective date of the rules. However,
tariffmakers are encouraged to begin voluntarily using the
prescribed titles and item numbers as soon as possible.
TARIFFS AND SCHEDULES SUBJECT TO RULES
In our NPR we proposed that all tariffs and schedules —
regardless of size — be required to use the prescribed titles and
item numbers. Some commenters, however, contend that
tariffs of only a few pages in length should be exempted.
Similiarly, they contend that the rules would impose an
unnecessary burden upon carriers which publish only a few
tariffs. We do net agree with these contentions. The pre-
scribed titles and item numbers will be published in the Com-
mission's tariff publishing rules and may be referred to by all
tariff compilers. Since the purpose of the rules is to promote
standardization and uniformity in al/ tariffs, the exemption of
tariffs and schedules of certain sizes would not be consistent
with our purpose. In any event, we are providing an ample
amount of time for the transportation community to become
familiar with the rules and their requirements. Any problems
compilers may have with the rules should be resolved before
the ultimate compliance date.
HYPHENS V. DECIMALS
In our NPR we proposed that hyphens be used between
prescribed item numbers and any suffixes assigned to the
prescribed items. Information contained in the comments in-
dicates that the use of hyphens would not be compatible with
existing rail carrier computer programs. Thus, a requirement
that hyphens be used could result in confusion to rail
ers and disruption of existing programs. It is indicated that the
use of decimals in lieu of hyphens would be a solution to this
problem. Therefore, the rules to be adopted in this proceeding
will allow the use of a decimal or a hyphen to separate pre-
scribed item numbers from any assigned suffixes.
:
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20¢
UPDATING STANDARD TITLES AND ITEM NUMBERS
Some parties ask who would be responsible for updating the
standard title and item number rules to take into account
commonly published rules which might be adopted subsequent
to the conclusion of this rulemaking. After this rulemaking has
been concluded, it may be reopened by petition or on the
Commission’s own motion at any time for the purpose of
amending the title and item number rules for the inclusion of
additional provisions or to change existing provisions.
The Nation’s railroads suggest that the computerized tariff
publishing system developed by the Joint Railroad Tariff
Computerization Committee (JRTCC) should be the standard
to be used in connection with rail carriers rather than the
limited system prescribed by the Railroads Tariff Research
Group (RTRG). Our NPR in this proceeding did not include
any of the tariff publishng requirements which have been
developed by the JRTCC. Therefore, it would not be in keep-
ing with the terms of the Administrative Procedure Act to
adopt here, without public notice or comment, any aspects of
the JRTCC tariff publishing system. However, rail carriers
may petition the Commission for the institution of a rulemak-
ing proceeding in which the requirements of the JRTCC could
be considered for inclusion in our tariff publishing rules.
OTHER CONSIDERATIONS
In its comments, Rate Comparison Services (RCS) offers
several suggestions for the modification of the rules we pro-
posed in appendix C of our NPR in this proceeding. Some of
RCS’s suggestions have already been treated in our
discussion. Other suggestions offered by RCS are discussed in
the following paragraphs.
RCS criticizes proposed section 1300.4(h)(2)(i) and
1310.4(n)(4)(i) as being unclear, and offers language it feels will
clarify the application of the two provisions. RCS feels that the
provisions could be misinterpreted as requiring the use of all
the prescribed item numbers and standard titles in all tariffs
2l1c
regardless of whether or not the tariffs contain provisions
covered by the items and titles. Upon review we agree with
RCS that the two proposed provisions are unclear. In the
adopted rules we have changed the wording of the two provi-
sions to clarify their application.
RCS suggests that substantial revision of section 1310.7(q)
be made to reflect current tariff publishing practices. This rule
deals with the publication of released rates and authorities for
released rates. The rule revision suggested by RCS was not a
part of the rules initially proposed in this proceeding. There-
fore, the general public has not had the opportunity to review
or comment on RCS’s proposal, as required by the Administra-
tive Procedure Act. Consequently, it would be improper for us
to adopt RCS’s proposal here. However, the Commission is in
the process of reviewing all of its tariff publishing rules for the
purpose of consolidating the rules into one comprehensive set
which would be applicable for all modes. When the review is
completed, the consolidation proposal will be handled in a
rulemaking proceeding. RCS will have the opportunity to pre-
sent its suggested wording for section 1310.7(q) in any com-
ments it may submit at that time. RCS may also petition the
Commission for the institution of a rulemaking proceeding to
consider its request for an amendment of section 1310.7(q).
RCS and other respondents offered several suggestions and
requests for rearranging, retitling and adding to the standard
titles and item numbers proposed in our NPR. Where we have
found merit to these suggestions and requests, we have made
changes in the prescribed titles and item numbers. These
changes are minor and we do not see a need to elaborate on
them. -
Comments filed by Sea-Land point out that the standard
titles and item number proposed in our NPR would conflict
with the rule-numbering system adopted by the Federal Mari-
time Commission (FMC) in General Orders 13 and 38. Con-
sequently, Sea-Land requests that the rules be specifically
precluded from applying on export and import tariffs which are
filed jointly with the FMC and this Commission.
22c
In Ex Parte No. 261, Jn the Matter of Tariffs Coutaining
Joint Rates and Through Routes for the Transportation of
Property Between Points in The United States and Points in
Foreign Countries, we reaffirmed our jurisidiction over traffic
covered by these joint tariffs, but only insofar as the transpor-
tation takes place within the United States. We also adopted
rules governing the filing and publishing of joint rates over
international-domestic through routes. These rules were si-
lent, however, as to standard titles and item numbers. Since
the FMC has already prescribed a rule-numbering system for
tariffs containing these types of rules, the adopted rules in this
proceeding will exempt joint FMC-ICC tariffs from our stand-
ard titles and itein number requirements.
PART IV: STANDARD TARIFF CODES FOR COMMODITY
AND POINTS IDENTIFICATION
The original notice announced the Commission’s intent to
have its tariff requirements realistically attuned to the needs
of the entire transportation community. To this end, and par-
codes be adopted as standards for permissive use in future
tariff filings. One of these codes—the Standard Transportation
Commodity Code (STCC)—was proposed as the only valid
Federal Information Processing Standards Publication 55
(FIPS PUB 55)—was proposed as the only valid tariff code for
identifying points or places. We proposed that both of these
codes could be used “standing alone”—that is, absent the
named commodity and absent the named point or place.
Of the 109 written comments received in this proceeding, all
but 20 addressed the STCC code proposal, and all but 22
addressed the FIPS PUB 55 code proposal. The relevant
points raised in those comments are discussed below.
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Subpart (A): Standard Tariff Codes For Commodity
Identification
Taken collectively, the consensus of the comments ex-
presses a three-part central theme: —
(1) The 7 of establishing a standard commodity
code as a utility for current or future users of electronic
technology is meritorious;
(2) Stand-alone commodity codes (STCC or any other)
are unacceptable to the multitude of tariff users who do
not employ electronic technology; and
(3) While STCC may be entirely appropriate for rail
carrier service, it is incompatible with motor carrier serv-
ice.
We realize that stand-alone codes could be an impediment to
those tariff users who are not geared to electronic technology.
Certainly shippers, receivers, dock personnel, billing clerks,
auditors and others who rely on the “written word” could be
severely disadvantaged if they were required manually to
translate codes to named commodities. For this reason, the
rules adopted here will permit tariff commodity codes to be
shown in addition to named commodities. However, we will
not require commodity codes to be accompanied by named
As adopted, the rules will permit future tariffs to show:
(1) the named commodity; or
(2) the commodity code; or
(3) the named commodity accompanied by the com-
modity code. f '
We believe this will allow the carriers maximum flexibility in
formatting their tariffs. Those carriers whose clients are bet-
ter served by coded commodities will be free to implement such
codes in their tariffs. Other clients whose interests are better
met by publishing named commodities will also be accommo-
dated. Carriers serving a mixed clientele can publish codes
along with the named commodities.
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One commenter raised the question of applicabi' ity on those
occasions when through error a published commodity code
might not be in agreement with its named-commodity counter-
part. Recognizing the possibility of such a situation, the
adopted rules establish a presumption that the named-
commodity description is the proper one rather than the coded
description. That presumption will be rebuttable on a showing
of clear evidence of the commodity actually transported.
As previously noted, many commenters applaud the concept
of a single tariff commodity code available to, and workable for,
the users and carriers of all modes. This applause is premised
on the dual realization that: (1) the failure to introduce com-
modity codes into tariffs is a severe hindrance to the benefits
obtainable through electronic technology; but that (2) the in-
troduction of a multitude of diverse tariff commodity codes will
just as surely hinder achievement of the benefits of data ex-
change through electronics. Should multiple tariff commodity
codes come into being, electronic communications would be
extremely fragmented among the various segments of the
transportation community. The users of one commodity code
(be they shippers, receivers, carriers, auditors, et cetera)
would find themselves isolated from the users of any other
code. Thus, it is our assessment that the installation of only one
tariff commodity code is imperative. It is on this basis that we
must reject the suggestion of several commenters that multi-
ple codes be permitted—for example, the Standard Industrial
Classification (SIC), the Uniform Freight Classification
(UFC), the National Motor Freight Classification (NMFC), or
the Coordinated Freight Classification (CFC).
Although recognizing the value of only one permissible tariff
commodity code, many comments express the concern that the
STCC is not workable for the motor carrier industry. In order
to resolve the concern, it is first necessary to understand the
focus of the opposition to STCC. It is clear to us that—from a
purely conceptual view—there is little opposition to the pro-
posal that STCC could serve as a viable code for identifying
commodities. The hard opposition to STCC as a successful
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commodity code for motor carriers stems from the view that
STCC does not permit the ratemaking flexibility required for
motor carriers.
The perceived deficiency of STCC as a motor carrier
ratemaking tool is perhaps best explained by one commenter,
the National Motor Freight Traffic Association (NMFTA)
which states:
It is emphasized that the STCC was developed as a com-
modity identifier code, and in furtherance of that
the motor carrier industry is cooperating in its continued
development. Nevertheless * * * it is important to note
that the STCC has not been develo to distinguish
commodities by their transportation characteristics, e.g.,
density, loadibility, value, etc.
The NMFTA (and other commenters) further explain that
the STCC code frequently fails to detail those transportation
characteristics which are essential to motor carrier pricing
structures. For example, a STCC description may fail to dis-
tinquish between a given article of one density and the same
article of different densities. Motor carrier service, however,
is often subject to different rate levels dependent on density
factors.
In addressing this concern, we first wish to emphasize that
this rulemaking proceeding was never intended to intrude on
the ratemaking decisions of the carriers. The thrust of this
proceeding is to determine better means for tariffs to present
service and pricing information after the levels of service and
pricing have been determined.
We understand and appreciate the fact that the STCC code
is not always precise enough to satisfy motor carrier pricing
demands. Nonetheless, we believe that the goal of a single
tariff commodity code is commanding, and we are persuaded
that no other known code would be more appropriate to the
transportation community at large than the STCC code.
We also hold a strong expectation that in the foreseeable
future the STCC code will undergo an evolutionary process
*
es
*
26
that will render it far more compatible with motor carrier
pricing. This process is being spearheaded by the Transporta-
tion Data Coordinating Committee (TDCC), a nonprofit orga-
nization comprised of shippers, carriers of all modes, and other
interested companies that seek to advance the state-of-the art
of tariff modernization and simplification. A current priority of
the TDCC is the development of a standard intermodal com-
modity descriptions list which gives consideration to transpor-
tation attributes (which, as used here, are synonomous with
“transportation characteristics”) as well as commodity attri-
butes. The design of the structure contemplates use of the
commodity groupings of the STCC tariff, working in concert
with commodity attributes and transportation attributes, in
order that tariff users of all modes may achieve rating/pricing
capabilities. The TDCC envisions that the continued develop-
ment and maintenance of that product would remain in the
private sector under the Standard Transportation Commodity
Code Technical Committee which might be expanded to in-
clude wider shipper and carrier representation. Although it
may be somewhat premature to place total confidence in the
plans of the TDCC, successful completion of that program
would appear to resolve the misgivings of the motor carrier
industry against the use of STCC as the single valid tariff
commodity code. In this regard, we endorse all efforts leading
to the intermodal acceptance of STCC.
We recognize that adoption of the STCC code might, at this
time »e of practical value primarily to the rail industry and its
users. On the other hand, many shipper organizations (includ-
ing Bethlehem Steel, Proctor & Gamble, the Department of
Defense and the General Services Administration (GSA)) sup-
port STCC as being viable for all modes. Even the motor
carrier industry is not unanimous in resistance to STCC. The
Middle Atlantic Conference (MAC), representing some 950
motor common carriers, does not object to the permissive use
of STCC as the only valid code. Similarly, a major motor
carrier, Roadway Express Inc., voices no opposition to STCC,
stating: “When the motor freight industry accepts STCC num-
a
“ :
pre aa ee - . wr.ues" — > tee- —
27e
bers for rating, product descriptions can be used to move
freight.”
We wish to clarify one additional point. Several comments
express concern that adoption of STCC as the only permissible
code will result in the prohibition of the use of classification
“item numbers” as an integral part of named commodity
descriptions. For example, a current commodity descriptor
might read:
Cushions, or pillows, as described in items 55220
through of NMFC.
Since we have no desire to disrupt current commodity descrip-
tions established in the tariffs, the continued use of classifica-
tion item numbers as an integral part of a named commodity
description will not be viewed as being contrary to the installa-
tion of STCC as the only permissible code.
SUBPART (B): STANDARD TARIFF CODE FOR POINTS
IDENTIFICATION
The comments not only express widespread opposition to
the adoption of FIPS PUB 565 as a standard permissible points
code for tariffs, but they indicate substantial support for adop-
tion of the Standard Points Location Code (SPLC), instead.
Moreover, the majority of commenters contend that no points
code should stand alone—i.e., that any points code should be in
addition to the named tariff point.
The extensive opposition to adoption of FIPS PUB 55 was
not unexpected. In view of the fact that FIPS PUB 56 is a
relatively new code product, it follows that it ha; not yet gained
either wide acceptance or extensive utilizetion. In contrast,
the SPLC has been in vogue in the transport. tion community
for a number of years and—at no small cost—has been im-
plemented by many carriers and organizations to meet their
data transmission needs. Understandably, there would be
strong resistance by the current users of SPLC against any
other code perceived to be a threat against the continued use of
SPLC. We appreciate the nature of that resistance and are
;
. 4
tt —
28e
extremely sympathetic to the apprehension of the users of
SPLC who seek adoption of that code rather than any other.
Nevertheless, in our duty to prescribe meritorious tariff
regulations we must consider long-term as well as short-term
results. To this end, it is our considered opinion that FIPS
PUB 55 will, in time, become the most recognized and widely
used points code in domestic use in the Nation. If this assess-
ment is accurate, any endorsement at this time of SPLC as the
only valid tariff code would ultimately prove to be a gross
disservice, since users relying on that endorsement would
later find they had installed a code system at variance with
what would then be the most widely accepted points code,
namely FIPS PUB 55.
Our assessment of the future role of FIPS PUB 55 is premis-
ed partly on a known fact, and partly on a projection of the
significance of that fact. The fact is that FIPS PUB 55 is to be
made a mandatory standard code for points identification for
use throughout the Federa/ sector. Our information is that,
pursuant to Public Law 89-306, the mandate for FIPS PUB 55
will be implemented not later than during fiscal year 1981. The
significance of this mandate is that once Federal agencies are
required to adopt FIPS PUB 565, those same agencies will, in
turn, cause their private sector contacts to adopt and utilize it.
The pervasive influence of the mandated FIPS PUB 565 on the
transportation community seems obvious. As manufacturers
and shippers seek to provide services or goods to, or on behalf
of, the Federal agencies, communications detailing the location
of those services or goods will be required to be made in FIPS
PUB 565. Carriers handling the movement of those goods will
also be required to utilize the code.
To underscore our assessment of the future use of FIPS
PUB 56 in the Federal sector, we are aware that at least one
agency—GSA—has already implemented the code and, in its
comments in this proceeding, fully endorses FIPS PUB 55.
We also wish to stress that FIPS PUB 55 is not a
government-created code. Rather, the Federal Government is
29e
adopting a code developed and approved by the American
National Standards Institute (ANSI), an organization drawn
from the private sector. Essentially then, resistance to FIPS
PUB 565 by the transportation community is resistance to a
voluntary standard agreed on by a mix of business communi-
ties under ANSI stewardship. Although we recognize that our
decision will not be wholly popular, we must serve the advoca-
cy of only one points code, and for reasons expressed above,
feel compelled to join the ranks of the ANSI and Federal
agencies in support of FIPS PUB 55.
We are eager to minimize any adverse impact on SPLC users
by adoption of FIPS PUB 56. It is for this reason that the
Cemmission has entered into a partnership with two other
sister agencies in the development of a one-for-one “bridge”
from the SPLC code of FIPS PUB 55. Upon completion of this
bridge, users of SPLC may continue to utilize that data trans-
mission network while, at the same time, they will also have
available the capability to interface with FIPS PUB 55.
We recognize that it would be inappropriate to endorse
FIPS PUB 55 prior to: (1) its mandated use in the Federal
sector, and (2) the completion of the bridge. For this reason,
effectiveness of FIPS PUB 55 as the only permissible tariff
points code will be delayed until June 30, 1981 by which time
use of the code should be appropriate.
Although FIPS PUB 55 was selected by ANSI as the chosen
code over other code candidates (including SPLC), several
commenters argue that SPLC is a superior code for transpor-
tation purposes and that, consequently, SPLC should prevail
as the only acceptable tariff points code. As discussed below,
we have considered such arguments and conclude that there is
- nosound reasons to favor SPLC over FIPS PUB 56 at the risk
of being aloof from the standard points code adopted by other
business communities and by the Federal sector.
One argument offered in support of SPLC as the preferred
code is the fact that Canadian and Mexican are given
consideration by that code whereas FIPS 56 is limited to
30¢
points within the United States. That is true at this time, Fut
our information is that Canadian and Mexican codes are being
developed as part of an international system that will be com-
patible with the American FIPS PUB 55. Any advantage of
SPLC because of its coding of Canadian and Mexican points
will be relatively short-lived as the international code system
comes to fruition. Moreover, during the pendency of that fu-
ture coding system, we will be receptive to carrier requests for
special permission authority to implement other recognized
codes in tariffs where the situation warrants.
One commenter argues that FIPS PUB 55 “contains many
points that are not transportation points.” The complaint
seems to be that FIPS PUB 56 lists too many points. We are
puzzled by this challenge (which is not further explained) since,
in our view, it is at least theoretically possible for freight to
move from or to any place, site or locale in the United States.
Another complaint heard is that the current edition of FIPS
PUB 55 fails to contain many transportation locations named in
the rail carriers’ “Open and Prepay Station List.” We believe
we can quickly dispel any anxiety on this point. The National
Bureau of Standards (NBS), U.S. Department of Commerce,
which administers FIPS PUB 565 hes assured us that they will
extend maximum cooperation in establishing bona fide “trans-
portation locations” in the FIPS issue. This willingness on the
part of NBS also extends to points currently named in the
SPLC code which may not yet be included in the FIPS PUB 55
file.
Some commenters argue that SPLC is designed to reveal
geographical relationships between its coded points, whereas
FIPS PUB 56 is said to lack this feature. To illustrate, the
six-digit SPLC code allows identify of a “region” (for example,
the Rocky Mountain Region) as well as identify of the State,
county and point itself. In contrast, the 10-character FIPS
PUB 55 contains no “region” distinguisher. We are not per-
suaded that failure of the FIPS PUB 56 to provide for “regions”
is a telling flaw. We believe that the identity of a State, county
and point is sufficient to induce a geographical location that can
3lc
be related to another State, county and point without a need for
yet another “locator”—the region.
Although commenters suggest that the “region” capability
of the SPLC is a vital aid to market analysis, we have been
given no data which would reveal how extensively used this
tool may be. Nor have we been given any data by which to
measure whatever impact the absence of such a specific tool
might have.
Several commenters also focus on the fact that SPLC is
structured to permit six digits to identify the region, State (or
portion of a State), the county, and the point itself, whereas 10
digits are required in the FIPS PUB 56 to provide the same
information. The greater number of digits required by the
FIPS code is said to be more cumbersome and, thus, more
expensive to users. We agree that the greater number of digits
required by the FIPS code is likely to be somewhat more costly
to users than would SPLC. But no facts or data are presented
which would quantify whatever excess costs might be in-
volved. Thus, we have no idea whether such costs would be
minimal or exhorbitant. Moreover, we are influenced by the
fact that SPLC was one of the code candidates rejected by
ANSI in favor of FIPS PUB 55. We must assume that the
place code favored by the balance of the business communit y—
i.e., FIPS PUB 55.
32¢
RELATED ISSUES AND RECOMMENDATIONS
We want to emphasize that the decision in this proceeding
does not in any way mark the end of our tariff improvement
efforts. Nor do the regulations adopted here preclude our
consideration of the many additional suggestions and
recommendations voiced in the comments which, although out-
side the strict parameters of our proposed rules, are directly
related to tariff improvement, simplification and moderniza-
tion.
We have been urged, for example, to adopt a ten-point tariff
modernization program developed by the TDCC. This pro-
gram, as reflected in TDCC’s recently published “Phase II
Final Report,” calls for the development of:
1. A Tariff Locator Guide
2. Improved Distribution and Maintenance Procedures
for Tariff Data
3. Standardized Intermodal Commodity Descriptions
Processible Rules, Exceptions and Reference Marks
Route Coding and Expression Standards
Geographic Coding
Tariff Data Exchange Formats
A Strategic Plan for Elimination of Obsolete Tariff
Material
9. Territorial Application
10. Electronic Data Interchange (EDI) Formats.
Other recommendations include the adoption of rules which
would permit the filing of microfiche tariffs and “national”
rules, grouping and rate basis tariffs; which would amend 49
CFR 1300.7 to provide for alternation of rates with rate fac-
tors; and which would phase out rai] master tariffs and motor
carrier conversion supplements. The Railroads, on the other
hand, have urged us to restore their conversion-supplement
authority which was withdrawn in Ex Parte No. 326, supra.
We are directing the Commission’s staff to study and evalu-
ate these, and other, suggestions to determine whether or not
; = _
Prone
33¢
they are sufficiently consistent with our tariff improvement
goals, and with the action taken here, to warrant a future
reopening of this proceeding.
FINDINGS AND CONCLUSION
The regulations adopted reflect our consideration of all the
comments receive” ‘n response to our NPR. They will, we
believe, substantiz.:; ceduce the size and cost of tariffs; ensure
consumer protections in the face of Commission budgetary
restraints; promote tariff standardization and uniformity; en-
courage electronic technology compatibility; and afford car-
riers and forwarders greater flexibility to meet the commercial
urgencies of a more competitive environment.
We find:
(1) The Commission has the requisite authurity under sec-
tion 553 of the Administrative Procedure Act (5 U.S.C. 553)
and section 10762 of the Interstate Commerce Act (49 U.S.C.
10762) to prescribe the regulations set forth in the attached
notice.
(2) The regulations adopted are necessary, warranted, and
in the public interest.
(3) This action will not significantly affect either the quali-
ty of the human environment or conservation of energy re-
sources.
Vice CHAIRMAN GRESHAM, dissenting in parts:
Adoption of the FIPS PUB 55 as the standard permissible
points code for tariffs is premised on its anticipated widespread
future use and adaptation to the needs of transportation. How-
ever, the SPLC has been proven its worth and flexibility.
While the FIPS PUB 55 might require costly conversion for
users and future adjustments in the code itself, the adoption of
the SPLC as the standard permissible points code would create
no such problems. The FIPS PUB 55 can always be used
parenthetically with named points. If it becomes more preva-
lent in transportation uses in the future, its adoption as the
34c
standard code can be subsequently exammined without the
variables which seriously question the value of mandating its
use at this time.
COMMISSIONER STAFFORD, dissenting in part:
Commissioner Stafford dissented in part I of the report
because he did not believe that section 10762(a)(2) of the In-
terstate Commerce Act permits the Commission to allow car-
riers to express rates as percentages of an initial filing.
It is ordered:
Chapter X of title 49 of the Code of Federal Regulations is
amended as set forth in appendix C.
By the Commission, Chairman Gaskins, Vice Chairman
Gresham, Commissioners Stafford, Clapp, Trantum, Alexis,
and Gilliam. Vice Chairman Gresham dissenting in part with a
separate expression. Commissioner Stafford dissenting in part
with a separate expression.
AGATHA L. MERGENOVICH,
(SEAL) Secretary.
APPENDIX A
Proposed Rules to Govern Percentage Expression of Rates,
Charges and Amounts of Increase or Reduction
We proposed to amend 49 CFR, chapter X, supchapter D, as
follows:
~ 1. By revising section 1300.4(i)(1) to read as follows:
§ 1300.4 CONTENTS OF TARIFFS
Tariffs shall contain, in the order named:
7. +: + ¢+- + 8+
(i) A statement of the rates and the places from, to, and
between which they apply, arranged in a simple and systema-
>»
a
Ss ee et i
a ee ee _ eh, 6 ee ee
35¢
tic manner. At least one of the rates shall be explicitly stated
(per 100 pounds, ton, car or other unit) in dollars and cents in
lawful money of the United States. Other rates in the tariff
may be expressed as percentages of the stated rates, provided
that the tariff clearly explains how to compute the other rates,
including how to dispose of fractions. A rate may not be ex-
pressed as a fraction or multiple of another rate, as a percen-
tage of rate contained in another tariff, or as a percentage of
another rate which is itself expressed as a percentage. A tariff
may be converted to percentage-rate expression only by reis-
sue, not by amendment.
2. By adding section 1300.9%n) to read as follows:
§ 1300.9 AMENDMENTS AND SUPPLEMENTS
(n) Percentage supplements to provide general rate
changes. A supplement, which expresses the amount of change
as a percentage by which the tariffs explicitly stated rates and
charges are to be increased or reduced, may be filed to any
tariff to provide.a general change in the level of all or sub-
stantially all rates and charges, or all or substantially all the
rates and charges in a specific category in the tariff. This
wiil be subject to the regulations contained in part
1312 of this chapter.
3. By deleting the first two sentences and the first word of
the third sentence of section 1310.7(a)(2), and replacing them
§ 1310.7 STATEMENT OF RATES (RULE 7)
(a) Rates must be clear and explicit.
(1) *#**
(2) The rates and the places from, to, and between which
they apply shal] be arranged in a simple and systematic man-
ner. At least one of the rates shall be explicitly stated in dollars
and cents in lawful money of the United States. Other rates in
36¢
the tariff may be expressed as percentages of the stated rates,
provided the tariff clearly explains how to compute the other
rates and how to dispose of fractions. A rate may not be
expressed as a fraction or multiple of another rate, as a percen-
tage of a rate contained in another tariff, or as a percentage of a
rate which is itself expressed as a percentage. A tariff may be
converted to a percentage-rate expression only by reissue, not
by amendment. All explicitly stated rates * * *
a ee. oe
4. By deleting section 1310.7(c) which now prohibits the
expression of class rates as percentages, fractions or multiples
of another rate.
5. By adding section 1310.10(k) to read as follows:
§ 1310.10 AMENDMENTS (RULE 10)
(k) Percentage supplements to provide general rate
changes. A supplement which expresses the amount of change
as a percentage by which the tariff’s explicitly stated rates and
charges are to increased or reduced may be filed to any tariff to
provide a general change in the level of all or substantially all
the rates and charges, or all or substantially all the rates and
charges in a described category in the tariff. This supplement
will be subject to the regulations contained in part 1312 of this
chapter.
6. By adding part 1312 to read as follows:
PART 1312—PERCENTAGE SUPPLEMENTS
' $1312.1 PERCENTAGE SUPPLEMENTS TO PROVIDE
GENERAL RATE CHANGES
(a) A percentage supplement shal! contain an application
provision reading substantially as follows:
“Except as provided in subsequent amendments to this
tariff, on explicitly stated rates and charges tn thio tariif
37¢
are [specify whether increased or reduced } as follows for
the period this supplement is in effect.”
The supplement shall state where any exceptions to its applica-
tion are listed. If not all of the explicitly stated rates are being
changed, the provisions shal] state the exact category of rates
being changed or list the items, sections, et cetera, of the tariff
which contain them.
(b) The supplement shall show how to compute the in-
creased or reduced rates from the percentages shown; how to
dispose of fractions; and how to compute multiple factor rates
made by the use of arbitraries or other means.
(c) The supplement shall have an expiration date which
must be within i year from its effective date. The title page
shall indicate, in the top margin, whether the changes are
increases or reductions. If both, “as indicated” shall be added,
and the different categories of changes shall be appropriately
referenced.
(d) Only 1 percentage supplement to a tariff may be in
effect at one time. A percentage supplement may not be reis-
sued with the same or an earlier expiration date unless the
Commission requests its reissue. The application of changes in
a percentage supplement may not be extended by a like supple-
ment providing essentially the same increases or reductions. A
percentage supplement reflecting a change in the general rate
level may, however, cancel] the preceding percentage supple-
ment reflecting a change in the general rate level and in-
corporate that change (and related provisions) into the new
percentage supplement. ey ae
corporated more than once.
(e) Only matter concerning the percentage change and its
application may be published in the supplement.
(f) An exception item or note may not be republished from
the percentage supplement into a regular supplement of a
bound tariff or incorporated into the tariff proper of a looseleaf
tariff.
—“=_—i x. s.r
38c
(g) Tariff amendments containing explicitly-stated rates
or charges becoming effective during the effectiveness of a
percentage supplement shall state whether or not they are
subject to the provisions of the percentage supplemen:.
(h) Percentage supplements shall be exempt from the
terms of sections 1300.%e) and 1310.%d) governing the num-
ber of supplements and volume of supplemental matter per-
missable.
(i) The provisions of this section do not authorize the
publication and filing of so-called master tariffs or connecting
link supplements, and percentage supplements may not be
filed to tariffs which refer to a master tariff for the application
of increases or reductions.
(j) Percentage supplements may change tariff matter
which will not have been in effect for 30 days. Subsequent
amendments filed prior to the effective date of the percentage
supplement may change or cancel, on lawful notice, matter
changed by the percentage supplement before that change has
been in effect for days.
§ 1312.2 SUPPLEMENTS TO TRANSFER RATE
CHANGES FROM PERCENTAGE SUPPLEMENTS INTO
BASE RATES
(a) A supplement (not a percentage supplement) may be
i applicable changes
effected by use of a percentage supplement filed under section
supplements are canceled. The supplement shall bring forward
all explicitly stated rates in the original tariff and prior supple-
ments even though some rates already include all applicable
increases or reductions effected by means of percentage
supplements.
39e
(b) The title pages of supplements issued under authority
of this section shall bear the following notation:
“Issued under authority of 49 CFR 1312.2 This supple-
ment contains all the explicitly-stated rates and
provided by this tariff in effect on the effective date of thi
supplement.”
(c) This paragraph applies to rail carriers only. If different
increases or reductions apply on related articles shown in an
item or descriptive listing of commodities, the rates may be
brought forward into the supplement on the basis of the in-
creases or reductions applying to the predominant article in
the item or description, provided that a statement is included
in the supplement that this has been done. The rate changes
shall be appropriately referenced except as specified in para-
graph (d) of this section for exceptions concerning symboliza-
tion.
(d) Symbolization of the increases and reductions (see sec-
tions 1300.4(m) and 1310.10(f)) resulting from the normal
rounding off of fractions, or from the use of predominant article
authority in the case of rail carriers, may be omitted in the
spplement providing the supplement is filed on not less than
45 days’ notice and the title page of the supplement also bears
the following statement:
result in no change in the rates and
are not shown by use of uniform
uave omitted under authority of 49 1312.2.”
(e) Supplements issued under authority of this section
shall be exempt from sections 1300.%e) and 1310.9%d) govern-
ing the number of supplements and the volume of supple:nental
matter permissible.
The supplement also contains variations in wording which
which
40¢
PROPOSED RULES TO GOVERN SYMBOLIZATION OF
CHANGED TARIFF MATTER RESULTING IN INCREASES
We propose to amend 49 CFR 1300, 1303, 1304, 1306, 1307,
1308 and 1310 by adding the following new paragraph to be
designated, respectively, as section 1300.2(a)(4), section
1303.4(d)(3), section 1304.2(c), section 1306.5(b)\(2), section
1307.5(r\(1), section 1308.2(a) and section 1310. 10(f(5):
Changes resulting in increases which are not identified by
proper symbols shall be considered unlawfully published and
filed and therefore invalid and not collectable. In such cases,
the lawful provisions will be those which were purportedly
superseded. Invalid provisions shall be cancelled by publica-
tions which shall bring forward, or properly amend, provi-
sions which have remained in effect by reason of invalid
publication.
PROPOSED RULES TO GOVERN STANDARD TITLES AND
ITEM NUMBERS FOR COMMONLY PUBLISHED TARIFF
RULES
We propose to amend 49 CFR Chapter X, Subchapter D as
follows:
1. By revising section 1300.4(h)(2) to read as follows:
§ 1300.4 CONTENT OF TARIFFS
(h) Rules governing the tariffs.
(1) ***
(2) (i) Each rule shall be assigned the appropriate item
number and title from the following list. If a title includes
subjects not treated in the rule, those subjects may be elimi-
nated from the title.
—— cS” Oa éi:
| |
4le
Item Title
Description of Governing Classification, Exceptions
and Rules Tariffs
Explosives, Dangerous Articles
Reference to Tariffs, Items, Notes, Rules, etc.
Terminal or Transit Privileges or Services
Perishable Freight
Transfer Between Connecting Carriers
Consecutive Numbers
Capacities and Dimension of Cars
Combination Rates
Substitution of Motor Service for Rail or Water Serv-
o
RSLRKEASRS WLKSKSRVas
if
(ii) A carrier or agent may assign a title and number of its
choosing for matter not listed in subparagraph 2(i), provided
the title anc number chosen do not conflict with those listed.
(iii) Ifa title in subparagraph 2(i) does not properly identify
a rule’s content, qualifying words, phrases or subtitles may be
added. When qualifying words or phrases are used, the pre-
scribed title shall be followed by a dash and the added words,
for example: “Alternation—C.L. Rates—Varying Minimum
Weights.” Subtitles or references to excepted classification
rules shall follow the title.
(iv) When it is necessary or practicable to split a rule into
two or more parts, the prescribed item number may be sub-
divided. The first part of the rule (which shall contain the
42c
general or master rule, if any) must be assigned the prescribed
item number without a numerical suffix. Each subdivision shall
be assigned a compound number, which shall be constructed by
use of the prescribed number followed by a hyphen, then anew
series of numbers, for example: item 70-1, 70-2, 70-3, et cetera,
in numerical sequence. Each subdivision must show the pre-
_, . (¥) Exceptions to a rule may be included in the general rule
or arranged in items immediately following the rule to which
exception is taken. In the latter case, exception items are to
use the standard item number of the general rule followed by a
suffix—for example, exceptions to item 85 would use items
85-1, 85-2, et cetera.
2. By revising section 1307.5(1) to read as follows:
§ 1307.5 FORM AND CONTENT OF SCHEDULES
(1) Rules. (1) Rules and other provisions affecting rates
and charges shall be published following the index of points.
Each rule or regulation shall be given a separate item number.
Where the subjects shown in section 1310.4(h)\(4)i) of this
chapter are to be provided for in schedules, the rules covering
them shall bear the titles and be assigned the item numbers
listed in section 1310.4(h)(4)i) of this chapter.
(2) A-carrier may assign a title and number of its choosing
for matter not listed in section 1310.4(h)4\i) of this chapter;
provided the title and number chosen do not conflict with those
listed :
(3) Ifa title listed in section 1310.4(h)i) of this chapter does
43c
(4) When it is necessary or practicable to split a rule into
two or more parts, the prescribed item number may be sub-
divided. The first part of the rule (which shall contain the
general or master rule, if any) must be assigned the prescribed
item number without a numerical suffix. Each subdivision
must be assigned a compound number, which shall be con-
structed by use of the prescribed number followed by a
hyphen, then a new series of numbers—for example, items
390-1, 390-2, 390-3, et cetera, in numerical sequence. Each
subdivision must show the prescribed title.
(5) Exceptions to a rule may be included in the general rule
or arranged in items immediately following the ruic to which
exception is taken. In the latter case, exception items are to
use the standard item number of the general rule followed by a
suffix—for example, exceptions to item 510 would use items
510-1, 510-2, et cetera.
7 + + *&* &©+ * *
(3) By adding the following sentence at the end of section
1309.1: “Rules contained in tariffs shall be numbered and titled
using the system prescribed either in section 1300.4(h)(2)(i) of
this chapter or in section 1310.4(h)(4)(i) of this chapter.”
(4) By adding the following subparagraph (4) to section
1310.4(h):
§ 1310.4 FORM, SIZE, AND PRINTING (RULE 4)
(h) * *> *
(4Xi) Each rule shal) be assigned the appropriate item
Item Title
100 Governing Publications
100 to 119 ~=Definitions
150 Application of Tariff, Schedule
160 to 290 Application of Rates
300 Advancing Charges
305 Advertising on Carrier Equipment
310 Advertising or Premiums
315 to 335 = Allowances
Arbitraries or Differentials
Arrival Notice and Undelivered Freight
Assembling or Distributing Freight
Bills of Lading
Bulk Freight
Cancellation of Items
Cancellation of Looseleaf Pages
Capacity Loads
Carrier Trade Names
to419 Claims, Loss and Damage
Classification of Articles—General
Classification by Analogy
Classification of Combined Articles
Classification of Loose Articles
Classification of Parts or Pieces of a Complete Article
Classification of Reconditioning Bags —
Classification of Various Documents Included with
Control and Exclusive Use of Vehicles
Customs or In-Bond Freight
Density
SESRSRERS ESERRESSRSRESSEEE
» os eles E
SEEE F
SRZEASIRSRFSERE
fz)
cm
i)
SR RRLPFESTSSIBSEE
Title
Detention—Vehicles With Power Units
Detention—Vehicles Without Power Units
Detention—LTL or AQ Shipments
Distances
Equipment
Expiration Dates
Explosives and Other Dangerous Articles
Export, Import, Coastwise or Intercoastal Fyeight
Extra Labor
Fractions
Handling Freight not Adjacent to Vehicle
Heavy or Bulky Freight
Impracticable Operations
Light or Bulky Freight
Loading by Consignor— Unloading by Consignee
Marking or Tagging Freight
Maximum Charge
Meat Hooks or Racks
Minimum Charge
Mixed Shipment—LTL
Mixed Shipment—TL or Vol.
Notification Prior to Delivery
Operating Rights
Over Dimension Freight
to 689 Packing or Packaging
Pallets, Platforms or Skids
Prepayment
Prohibited or Restricted Articles
Proof of Delivery
Proportional Rates
Protective Service
Reconsignment or Diversion
Redelivery
Reference to Tariffs, Schedules
Reissued Matter, Method of Treating
Released Value
Reporting Charge
Sealing of Trucks
Shipments Tendered as a Truckload
Single Shipment Pickup
Sorting or Segregating
Special Services
Stopoffs
Storage
Substitution of Service
Terminal Areas
Terminal Charges at Ports
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Vehicle Furnished But Not Used
Weighing and Weights
Weight Verification
Weights—Gross Weights and Dunnage
Weights—Minimum Weight Factor
(ii) A Carrier or agent may assign a title and number of its
choosing for matter not listed in subparagraph (4)i), provided
the title and number chosen do not conflict with those listed.
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(iii) Ifa title in subparagraph (4)(i) does not properly iden-
tify a rule’s content, qualifying words, phrases or subtitles may
be added. When qualifying words or phrases are used, the
prescribed title shall be followed by a dash and the added
words, for example: “Bills of Lading—Order Notify.” Subtitles
or references to excepted classification rules shall follow the
title.
(iv) When it is necessary or practicable to split a rule into
two or more parts, the prescribed item number may be sub-
divided. The first part of the rule (which shall contain the
general or master rule, if any) must be assigned the prescribed
item number without a numerical suffix. Each subdivision
must be assigned a compound number, which shall be con-
structed by use of the prescribed number followed by a
hyphen, then a new series of numbers—for example, item
390-1, 390-2, 390-3, et cetera in numerical sequence. Each
subdivision must show the prescribed title.
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or arranged in items immediately following the rule to which
exception is taken. In the latter case, exception items are to
use the standard item number of the general rule followed by a
suffix—for example, exceptions to item 568 would use items
568-1, 568-2, et cetera.
PROPOSED RULES TO GOVERN STANDARD CODES FOR
COMMODITY IDENTIFICATION
We propose that 49 CFR 1300, 1304, 1307, 1308 and 1310 be
amended by adding to each part
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