# Appendix — Aberdeen & Rockfish Railroad v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1050%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1237 ## Text 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. y P - ase ee lle 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 na GR Pau suluiaia rij! bee 22 Pinel apnea: 3 THES ili [pul 3 Ghia Aan Hitilh ee [ah ie HHA Ete ese sil rate echodialen bes filed in “Section in 49 by the i He <3} ppangieen ’ 1 Hi | ‘Responsi the Ex Parte without the ‘unlawful’ unlawful as and P.R.Co. 1957) * r of if ati , « 4 13e 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 rate of on cc oe ” f Aj i : : a : ; i os g g : 4 ° - > 0 eee MES tt l4c 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. : =< * vases 27 eee — 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. — a) ieee fe eee " 23¢ 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. ; . 2 . el al + > —A 24c 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1050%3A3. Public record. Not legal advice.