American Trucking Associations, Inc. v. I. C. C.
| Decision Date | 21 September 1981 |
| Docket Number | Nos. 81-4046,81-4080,s. 81-4046 |
| Citation | 656 F.2d 1115 |
| Parties | AMERICAN TRUCKING ASSOCIATIONS, INC. and Saia Motor Freight Lines, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth E. Siegel, Washington, D.C., for petitioners.
Craig M. Keats, Atty., ICC, Kenneth P. Kolson, John J. Powers, III, Dept. of Justice, Washington, D.C., Wiley G. Lastrapes, Jr., New Orleans, La., John Guandolo, Washington, D.C., for respondents.
Cyrus C. Guidry, Port Counsel, New Orleans, La., for Bd. of Comm. Port of New Orleans.
Stanley B. Hebert, Oakland, Cal., B. Carlton Bailey, Jr., Sea-Land Ind. Inc., Edison, N. J., for Port of Oakland.
R. Frederic Fisher, San Francisco, Cal., for Pacific Westbound Conference.
Raymond J. Salassi, Jr., New Orleans, La., Albert B. Russ, Jr., Jacksonville, Fla., for Seaboard Coast Line R.R., et al.
Wiley Lastrapes, New Orleans, La., John Guandolo, John D. Quinn, John T. Downing, Washington, D.C., for Sea-Land Service, Inc., et al.
K. Edward Wolcott, Atlanta, Ga., for Watkins Motor Lines, Inc.
Raymond J. Salassi, Jr., New Orleans, La., Louis P. Warchot, II, San Francisco, Cal., for Southern Pacific Transportation Co.
Robert A. Peavy, Howard T. Weir, Washington, D.C., for U. S. Flag Far East Discussion Agreement.
Neal M. Mayer, Washington, D.C., for Seapack Container Service, S. A.
Raymond J. Salassi, Jr., New Orleans, La., Frederick G. Pfrommer, San Francisco, Cal., Louis P. Warchot, II, San Francisco, Cal., Albert B. Russ, Jr., Jacksonville, Fla., for The Atchison, Topeka and Santa Fe Railway Co., et al.
John A. Daily, Philadelphia, Pa., for Consolidated Rail Corp.
Alan P. Sherbrooke, Thomas M. Kilbane, Jr., Seattle, Wash., Brockman Adams, Washington, D.C., for Totem Ocean Trailer Express, Inc.
Stanley O. Sher, Anthony J. Ciccone, Jr., John Attanasio, Washington, D.C., for Australia-Eastern U.A.A. Shipping Conference, et al.
Petitions for Review of an Order of the Interstate Commerce Commission.
Before MARKEY *, Chief Judge, and GEE and POLITZ, Circuit Judges.
Before us today are challenges to a decision of the Interstate Commerce Commission ("ICC" or "Commission") exempting from regulation rail and truck transportation provided by rail carriers in connection with trailer-on-flatcar (TOFC) and container-on-flatcar (COFC) service. 46 Fed.Reg. 14,348 (1981). TOFC and COFC services involve intermodal operations in which the various goods shipped are not handled individually. Rather, they are loaded into a trailer or container that then can be expeditiously transferred from one mode of transportation to another. The exemption applies to (1) domestic rail TOFC/COFC transportation; (2) domestic TOFC/COFC transportation provided by trucks owned and operated by railroads; and (3) domestic TOFC/COFC rail or rail-owned truck transportation involving goods with a prior or subsequent movement by ocean carrier (ex-water traffic). While petitioners 1 seek review of the exemption as it applies to all three kinds of services, the more serious challenges are made to the latter two. We deny the petitions for review except as to the exemption's application to the government-owned and subsidized Alaska Railroad.
In 1976, Congress passed the Railroad Revitalization and Regulatory Reform Act, Pub. L. No. 94-210, 90 Stat. 31 ("4-R Act"), in response to poor financial and competitive conditions of the rail industry 2 and its recognition that regulation was a cause of the rail industry's difficulties. 3 Included in the 4-R Act was a provision, section 207, which gave the ICC authority to exempt rail services from regulation when, in the Commission's judgment, certain conditions were met. 4 This authority was exercised, apparently satisfactorily, to exempt rail transportation of fresh fruits and vegetables. Rail General Exemption Authority Fresh Fruit and Vegetables, 361 I.C.C. 374 (1979).
Again, in 1980, Congress addressed the economic and competitive condition of the rail industry when it enacted the Staggers Rail Act of 1980, 94 Stat. 1895 () ("Staggers Act"). In section 2 of that Act, Congress set forth explicit findings as to the need to revamp the regulatory scheme governing the rail industry. 5 The Staggers Act also contained a provision, section 101(a), now codified at 49 U.S.C. § 10101a, that explicitly stated the nation's rail transportation policy. The first two subsections of section 10101a read as follows:
In regulating the railroad industry, it is the policy of the United States Government
(1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportation by rail;
(2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair and expeditious regulatory decisions when regulation is required....
The exemption authority the Commission had been granted in the 4-R Act was altered by section 213 of the Staggers Act; under new section 10505 the Commission is directed to grant an exemption when it finds that, with respect to a person, class of persons, or a transaction or service regulation
(1) is not necessary to carry out the transportation policy of section 10101a of this title; and
(2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power. 6
The ICC's authority to revoke an exemption should it find that regulation is necessary was retained. 49 U.S.C. § 10505(d). The legislative history of section 10505 reveals that it was considered an "important cornerstone" of the Staggers Act and that, under it, "the Commission is charged with the responsibility of actively pursuing exemptions for transportation and service that comply with the section's standards." H.R.Rep.No. 96-1035, 96th Cong., 2d Sess. 60 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 3978, 4005. Further, as to the Commission's exercise of its exemption authority the Conference Report states that "the conferees expect that as many as possible of the Commission's restrictions on changes in prices and services by rail carriers will be removed and that the Commission will adopt a policy of reviewing carrier actions after the fact to correct abuses of market power." H.R.Rep.No. 96-1430, 96th Cong., 2d Sess. 105 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4110, 4137.
The challenged exemption was granted pursuant to the Commission's authority under section 10505. 7 Some of the petitioners and intervenors argue that the Commission exceeded its statutory authority under section 10505 by granting the exemption. That argument clearly is without merit insofar as the "core" of the exemption applying to domestic rail TOFC/COFC transportation is concerned: after giving the Commission authority to grant exemptions when certain conditions are met in subsection (a) of section 10505, Congress, in subsection (f), singled out "transportation that is provided by a rail carrier as a part of a continuous intermodal movement" 8 as appropriate for deregulation.
The more difficult statutory authority issue is the applicability of the exemption to TOFC/COFC transportation provided by trucks owned by railroads. The parties have, as they must, made arguments relating to the literal language of the statute, the structure and scheme of the Interstate Commerce Act ("the Act") and the legislative history of that Act in an attempt to demonstrate the intent of Congress with respect to whether rail-owned motor carrier TOFC/COFC service was an appropriate subject for an exemption under section 10505. Our review of the competing contentions leaves us with some doubt as to whether Congress had any intent whatsoever on that issue. Because we find rail-owned truck transportation of TOFC/COFC traffic within the scope of the literal language of section 10505, and because we find no clear indication in the remainder of the Act or its legislative history that such service was not a proper subject for an exemption, we reject petitioners' argument that the Commission exceeded its statutory authority in granting the exemption.
Petitioners first argue that the Commission's section 10505(f) authority "to exempt transportation that is provided by a rail carrier" extends only to rail transportation. We disagree rail-owned truck TOFC/COFC service is "transportation that is provided by a rail carrier." Had Congress intended to limit the Commission's exemption authority to rail transportation, it could easily have done so by using that language. Instead, it chose the broad "transportation-that-is-provided-by-a-rail-carrier" language and presumably did so with knowledge that it previously had defined "transportation" to include the movement of passengers or property by motor vehicle. 49 U.S.C. § 10102(24). 9
More important, the source of the Commission's authority to grant exemptions is found in section 10505(a) and not in section 10505(f), which simply singles out continuous intermodal movement as an appropriate candidate for the exercise of the Commission's section 10505(a) exemption authority. Section 10505(a) authorizes the Commission to grant an exemption "(i)n a matter related to a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under this subchapter" when certain findings are made. Again we note that Congress has chosen not to define narrowly the Commission's exemption authority but instead has extended that authority...
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