Consolidated Rail Corp. v. U.S.
| Decision Date | 14 November 1977 |
| Docket Number | No. 75-2089,75-2089 |
| Parties | CONSOLIDATED RAIL CORPORATION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Grocery Manufacturers of America, Inc., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John A. Daily, Philadelphia, Pa., with whom Leo C. Franey, Washington, D. C., was on the brief, for petitioners and intervening railroads.
Lloyd John Osborn, Atty., Dept. of Justice, Washington, D. C., with whom Barry Grossman, Atty., Dept. of Justice, Washington, D. C., was on the brief, for respondent United States of America.
Frederic L. Wood, Jackson, Mich., with whom John F. Donelan and John M. Cleary, Washington, D. C., were on the brief, for intervenor.
Arthur J. Cerra, Gen. Counsel I.C.C., Charles H. White, Jr., Associate Gen. Counsel I.C.C., Washington, D. C., were on the brief for respondent I.C.C.
Leo C. Franey and John A. Daily entered appearances for the following intervenors, Illinois Central Gulf Railroad Company, Chicago Rock Island, et al. and the Florida East Coast Railway Company, Chicago and North Western Transportation Company and Consolidated Rail Corporation.
Before WRIGHT and ROBB, Circuit Judges, and GESELL, * District Judge, United States District Court for the District of Columbia.
Opinion for the Court filed by District Judge GESELL.
In a special rulemaking proceeding, the Interstate Commerce Commission has determined that there exists a national shortage of epoxy-lined ("XF") boxcars and has required railroads using another line's XF cars to make incentive per diem ("IPD") payments to their owners. 1 Petitioner, Consolidated Rail Corp. ("Conrail"), asserts that there is not sufficient evidence in the record to support the shortage finding, which is a prerequisite to the imposition of the additional, incentive, payments. 49 U.S.C. § 1(14) (a). We affirm the Commission. 2 According to the Commission, the transportation of processed foods in ordinary boxcars presents serious risks of contamination. Ordinary boxcars ("XM") are often infested with insects and rodents from the cargoes they carry. Processed food at the present time is carried predominantly in "class A" XM boxcars, which are ordinary cars that have been cleaned and inspected. The Commission has determined that these sanitizing procedures are insufficient. The visual inspection carried out for class A designation cannot detect any infestations between car walls, and the quality of such inspections varies. Further, it is possible for non-visible contaminants to later be introduced into the car. Thus, the Commission found that only the XF boxcars are sufficiently sanitary for the transportation of processed food, since the white epoxy lining prevents contaminants between the car walls from reaching the food.
The Commission's finding of a shortage was based on evidence that 750,000 carloads of processed food are shipped annually, requiring a nation-wide fleet of 40,000-50,000 suitable cars. Since it has determined that only XF cars are suitable, and evidence indicated that only about 3,000 such cars exist, the Commission found a clear national shortage. IPD was thus imposed with the expectation that this would encourage the acquisition of XF boxcars.
Petitioner contends that there is no evidence of an XF boxcar shortage because there was no evidence that any processed food shipper had requested an XF car and not received one. It also claims that the Commission did not meet its own previously established criteria for the imposition of IPD.
Conrail assumes that there can be no finding of boxcar shortage under the statute unless there is a record of shipper complaints. However, in determining the existence of a shortage the Commission may certainly consider the public interest as well as the interests of shippers. IPD may be imposed to "encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce . . . ." 49 U.S.C. § 1(14)(a). We cannot define the needs of commerce so narrowly as to exclude the need of consumers for uncontaminated, infestation-free food. 3 There certainly is sufficient evidence on the record to support the Commission's determination that the public's needs are best served by the use of XF cars. 4
It is clear that, as petitioner asserts, the Commission did not compile as elaborate a statistical record in the XF boxcar proceeding as it did in prior proceedings. 5 But as Judge Wright notes, 6 it would not have been possible for the Commission to generate such a record due to the recent development of the XF classification. The need to depart from previous procedures is adequately explained by this situation. See, e.g., Greyhound Corp. v. ICC, 179 U.S.App.D.C. 228, at 230-231, 551 F.2d 414, 416-417 (1977).
The dissent, however, after an exhaustive examination of the legislative history of this statute, concludes that IPD can be imposed only where boxcar shortages are caused by the tendency of some railroads to hold cars owned by other lines. It says, in essence, that this section of the statute was aimed only at inefficient car utilization practices. However, the statutory delegation of power goes far beyond this limited field:
It is the intent of Congress to encourage the purchase, acquisition and efficient utilization of freight cars. * * * In determining the rates of compensation to be paid for each type of freight car, the Commission shall give consideration to the transportation use of each type of freight car, to the national level of ownership of each such type of freight car, and to other factors affecting the adequacy of the national freight car supply. * * * Such compensation may be increased by any incentive element which will . . . provide just and reasonable compensation to freight car owners, contribute to sound car service practices (including efficient utilization and distribution of cars), and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce . . . . 49 U.S.C. § 1(14)(a). 7
We do not think the Court should rewrite this broad delegation by reference to the legislative history. It is too clear from the statute on its face that inefficient car utilization and distribution is but one of the permissible grounds for the imposition of incentive payments.
The Commission here has acted within its grant of statutory authority, and with substantial evidence to support its actions. The Commission is affirmed.
This case has been argued by the Interstate Commerce Commission and the Justice Department as though the health of the American public would be gravely affected by its outcome. Were this true, I would find it difficult to lodge a dissent. But in fact the health of the nation is not at stake here because no matter how this case is decided the Commission will have ample power to create a fleet of sanitary freight cars, if indeed such a fleet is needed. 1 What is at issue here is the proper interpretation of a sliver of the Commission's overall regulatory authority. 2 Specifically, what must be decided today is whether there is a need for a fleet of white, epoxy-lined boxcars and, if so, whether the cost of creating this fleet should be borne in part by railroads which terminate food shipments. By its imposition of incentive per diem ("IPD") on XF boxcars, the Commission has decided both these issues and has opted for an increased car fleet and for putting much of the burden of paying for this fleet on terminating railroads, even though this group is predominantly made up of bankrupt eastern railroads which now comprise the Government-supported Conrail system.
While the Commission's action might be affirmed on a proper record, I do not agree with the majority that the record we have been presented in this case is satisfactory. 3 My objections are twofold. First, unlike the majority, I cannot conclude that the XF car is the only type of car suitable for the sanitary transportation of food. Therefore, although the record clearly supports the need for some 40,000 to 50,000 sanitary vehicles, I conclude that it does not support the need for equal numbers of XF cars. My principal disagreement with the majority, however, is over the definition of the shortage finding which the Commission must make before it can impose incentive per diem. 4 With all due respect, I do not think the meaning of the statutory language is "plain," but even if it is, the Supreme Court has recently reminded us: " 'When an aid to construction of the meaning of words, as used in a statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear * * *.' " Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976), quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). 5 Once the history of the incentive per diem provisions is examined, the meaning of the statute becomes relatively clear, but in my judgment that meaning is rather different from that accepted by the majority. For this reason, I respectfully dissent.
In order to understand the incentive per diem scheme authorized by Section 1(14)(a) of the Interstate Commerce Act, 6 it is necessary to consider in some detail railroad practices governing interline shipments of freight. In the early days of railroading, freight was physically transferred between the cars of connecting railroads whenever delivery was required at a destination not served by the originating road. By agreement among the railroads, this custom was superseded by the practice of interchanging...
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