Carolina, Clinchfield and Ohio Railway, et al., Petitioners, v. Interstate Commerce Commission and United States of America,respondents,national Association of Regulatory Utility Commissioners, Intervenor, 593 F.2d 1305 (D.C. Cir. 1979)

This case involves the procedures through which the Interstate Commerce Act protects railroads from intrastate rates which discriminate against interstate commerce. Petitioners, certain interstate railroads operating in the state of North Carolina, seek review of Interstate Commerce Commission orders¹  rejecting a tariff filing which the Commission claims it has no authority to process. The tariff sought to apply to traffic moving wholly within North Carolina a four per cent general rate increase that had previously been filed and placed into effect for interstate traffic nationwide, including North Carolina. We believe the Commission has correctly construed its statutory authority affecting intrastate rates and, accordingly, we affirm.

An understanding of this controversy requires a little background. At least since the Shreveport case²  it has been settled that there is federal authority under the Commerce Clause to regulate Intrastate rates which affect interstate commerce. Congress exercised this authority in the Transportation Act of 1920 which, by adding new paragraphs (3) and (4) to § 13³  of the Interstate Commerce Act, in effect codified the Shreveport decision.⁴  Section 13(3) authorized the Commission to investigate intrastate rates and § 13(4) expressly empowered the Commission to "prescribe" intrastate rates in order to cure undue discrimination against interstate commerce, but only "after (a) full hearing."

The procedures which have historically governed Interstate ratemaking are quite different. These are set out in § 15 of the Act.⁵  Under these provisions the ratemaking initiative lies with the railroads. Rate changes are filed with the ICC⁶  and take effect immediately unless suspended by the Commission. Section 15(8) provides that when a tariff schedule is filed, the Commission, on its own initiative or on complaint of an interested party, may conduct a hearing to determine if the proposed rates are lawful.⁷  If a hearing is held, the Commission may suspend operation of the new rates for a maximum of seven months, but only if it is shown by a complainant (1) that the proposed rate change will cause him substantial injury and (2) that he is likely to prevail on the merits.⁸  Although the complainant has the burden of establishing the conditions for a suspension,⁹  the railroads have the ultimate burden of proving that their rates are lawful.¹⁰ 

Petitioners contend that this long-standing difference in the procedures governing interstate and intrastate ratemaking was changed by the addition in 1976 of a new paragraph (5) to § 13 of the Act.¹¹  Section 13(5) allows state regulatory authorities 120 days to act upon carrier applications to adjust intrastate rates to correspond to the rates for similar interstate traffic. However, if the state authority has not "acted finally" within the 120-day period, the ICC is given "exclusive authority . . . to prescribe the intrastate rate." Petitioners argue that the grant of "exclusive authority" to the ICC entitles the railroads to file intrastate rate changes pursuant to § 15(8), just as they file interstate rates, thus making intrastate rate changes automatically effective unless a complainant can meet the § 15(8) burden. The Commission disagrees, maintaining that § 13(4), with its "full hearing" requirement, affords the exclusive means of affecting intrastate rates contemplated by the Act.

Finally, the Interstate Commerce Act was newly codified in October 1978, shortly before this case was argued. Although Congress expressly stated that it intended no substantive change in the law, it did alter the structure and wording of numerous provisions, including §§ 13(4) and 13(5).¹²  We think the codification largely resolves against petitioners the ambiguities which led to the instant controversy, but it should be recalled that the parties proceeded throughout on the basis of the earlier version.

B. The Course of These Proceedings.

1. The X-336 Proceeding.

On 9 November 1976 the nation's railroads petitioned the ICC for permission to file a master tariff and connecting supplements in order to implement a general four percent increase on freight rates nationwide. The petition showed that the railroads had experienced increases in annual operating costs of nearly $1 billion.¹³  Even were the rate increase implemented nationwide on both interstate and intrastate traffic, there would have been a revenue shortfall of some $300 million.¹⁴  The Commission permitted¹⁵  the railroads to file master tariff X-336 to effect the four percent increase nationwide for interstate traffic. Finding the railroads' revenue needs unquestionable, the ICC concluded that it was unnecessary to suspend and investigate the X-336 tariff as permitted under section 15(8).¹⁶  The Commission concluded that the increase was "necessary to prevent a further decline in the railroads' overall financial condition"; that the railroads' rate of return continued to be "substandard"; and that, absent the increase, the railroads would not have "sufficient funds . . . to defray the cost escalations" established.¹⁷ 

2. The North Carolina Proceedings.

As is ordinarily the case, the cost increases justifying the four percent general rate increase in tariff X-336 affected intrastate as well as interstate traffic. Consequently, the southern railroads in January 1977 began to seek, through state proceedings, identical increases in intrastate rates in each of the states within the Southern Freight Association Territory. The increase was eventually accepted and implemented in each of those states, except North Carolina.¹⁸ 

On 4 January 1977 the railroads filed with the North Carolina Utilities Commission (NCUC) a tariff supplement which would have applied the four percent increase to North Carolina traffic. The NCUC suspended the increase until 6 November 1977 and began an investigation.¹⁹  Because the NCUC did not act finally on the railroads' four percent increase within 120 days after the filing of the tariff supplement, the railroads moved to discontinue the proceedings, arguing that § 13(5) had ousted the North Carolina authorities of jurisdiction. The NCUC terminated its investigation by order of 16 May 1977.²⁰ 

3. The ICC Proceeding.

On 9 May 1977 the railroads petitioned the Commission to investigate the allegedly discriminatory North Carolina rates pursuant to its § 13(4) authority. An investigation was ordered on 25 May 1977.²¹ 

On 31 May 1977 the railroads sought to invoke what they conceived to be an alternative procedure for implementing the intrastate rate increase under § 13(5). The railroads filed with the ICC tariff supplement S-20 to master tariff X-336 in order to apply the general increase to North Carolina traffic. Contemplating the ordinary course of practice under §§ 6 and 15, the railroads filed the supplements to become effective on 7 July 1977, after more than 30 days notice, unless suspended by the ICC.

The Commission rejected tariff supplement S-20 by letter of 5 July 1977.²²  Noting that an investigation into the North Carolina rates had been docketed pursuant to § 13(4), the letter asserted that there was no "authority" to establish the increase "(i)nasmuch as no order of the Commission has been served authorizing the increase to be placed in effect."²³ 

The railroads appealed the decision letter within the Commission. On 18 July 1977, Division 2 of the ICC denied the railroads' application for review,²⁴  finding that the railroads were required to observe the existing rates until the Commission had concluded its § 13(4) investigation of those rates.

Ten days later, the railroads sought review in this court²⁵  and a stay of the orders Pendente lite. On 13 September 1977, without ruling on the motion for a stay, we remanded the record and directed the Commission to file a supplemental memorandum regarding the railroads' motion. While the record was on remand, Division 2 entered a further order on 6 October 1977.²⁶  The latest order reaffirmed the 18 July order, although on slightly different grounds, disclaiming authority to process the railroads' tariff supplement pursuant to §§ 13(5) and 15(8).

Finally, during the course of the filing controversy, the ICC had been conducting its investigation of the North Carolina rates pursuant to § 13(4). On 18 November 1977 the Administrative Law Judge (ALJ) found that the North Carolina rates caused an unjust discrimination against interstate commerce and ordered that the rates be raised to the interstate level.²⁷  After 30 days, no exceptions having been filed, this ruling became the final decision of the ICC. In light of the outcome of the § 13(4) proceeding, the Commission moved for dismissal of the instant petition for review, arguing that the controversy had become moot. The motion to dismiss was denied and our review followed.

This case requires us to construe the ICC's statutory authority over intrastate rates. If, as petitioners contend, § 13(5) permits the Commission to process rates under the procedures set out in § 15(8), we may assume without deciding that the Commission could not otherwise decline to exercise its jurisdiction.²⁸  We interpret the statutory language at issue in light of its legislative history and the Congressional purpose which that history discloses. Although we entirely agree that petitioners' construction is consistent with the general purposes Congress apparently had in enacting the 1976 amendments, we cannot accept it as our own for two reasons. First, the construction is linguistically implausible and second, we are particularly reluctant to rewrite statutes affecting sensitive issues of federalism.

A. Statutory Language.

As we have noted, the provisions we are called upon to interpret were recodified shortly before oral argument in this case. Some of the language has been changed, but we are told that this worked no substantive change in the law.²⁹  The new language is much clearer, however, with respect to the procedures for changing intrastate rates. We think the persuasiveness of petitioners' position is undercut by the fact that their construction would never occur to us from reading the pertinent codified passages of the Act. Concededly, the language in which § 13(5) was originally enacted is not entirely irrelevant and could somewhat plausibly be construed as petitioners suggest.³⁰  Of course, if the original version had had some established or fairly obvious meaning, that understanding would largely inform our construction of the codification.³¹  However, particularly because the codified language admits of little doubt, if any, we do not find the mere ambiguity in the earlier language of much help.

Sections 13(4) and 13(5) were codified, as we have said, as 49 U.S.C. § 11501.³²  Section 11501(b) (1) provides that the Commission "has exclusive authority to prescribe" an intrastate rate where (A) a railroad has filed an application with a state authority to adjust such rate to the similar interstate rate and (B) the state authority has not "acted finally" within 120 days. Section 11501(b) (2) provides that the Commission shall "prescribe" the intrastate rate under the standards of § 11501(a) (1) which restated the criteria formerly contained in § 13(4). Finally, § 11501(c) provides that the Commission may take action under the section "only after a full hearing."

It is apparently undisputed that the Commission obtained exclusive authority over the controversy pursuant to § 11501(b) (1). The live question is what this entails procedurally. Petitioners opine that the Commission, having ousted the state of jurisdiction, should treat the rate like any other over which it has exclusive jurisdiction (I. e., all interstate rates) and permit filing under § 15(8), codified as 49 U.S.C. § 10707.

Petitioners' analysis of the statute's "plain language" is straightforward and, we think, wrong. Section 10707 is said to be entirely general, applying to all rate changes over which the Commission has authority.³³  Inasmuch as § 11501 gives the Commission "exclusive authority" over certain intrastate rates, § 10707 must likewise apply. The "full hearing" requirement of § 11501(c) is said to be inapposite as it applies only to rates which the Commission imposes and not to those initiated by railroads under § 10707.³⁴ 

We begin with the observation that the Commission's statutory authority over intrastate rates derives entirely from § 11501;³⁵  and we do not think that that section's use of the phrase "exclusive authority," without more, enables railroads to implement changes in intrastate rates simply by filing them with the ICC. Apart from being scant predicate for such an abrupt departure from practice, the phrase in any event cannot sensibly be read as an operative cross-reference to § 10707. Section 11501 nowhere refers to § 10707 or to equivalent procedures, and a reference cannot, we think, fairly be implied from the language. The "exclusive authority" which the Commission is given is not plenary, but rather is expressly confined by § 11501(b) to prescribing an intrastate rate under the circumstances set out in subsection (b) (1) and the substantive standards set out in § 11501(a). Moreover, when the Commission thus prescribes an intrastate rate, it is plainly "tak(ing) action under . . . section (11501)" for purposes of the prior hearing requirement in § 11501(c). Thus it is fairly apparent on the face of the statute that the Commission's power to prescribe rates under § 11501 exhausts its authority over intrastate rates and is governed, Inter alia, by the requirement of a hearing in subsection (c).³⁶ 

B. Congressional Purposes and Intent.

Were the meaning of the statutory language less plain, we would be somewhat inclined to adopt petitioners' construction in light of the apparent purposes of the 1976 amendments. The legislative history of the 1976 amendments contains extensive Congressional findings about the financial decline of the industry, occasioned in no small part by the "cumbersome slow process of making rates."³⁷ 

The ratemaking scheme advanced by petitioners would be a quite rational answer to the damaging delays which have often occurred before discriminatory intrastate rates are raised to the interstate level. Under petitioners' construction, after 120 days of inaction by the state authorities the railroads would place the rates into effect by filing them (with notice) under § 10707. Shippers would be protected from unlawful rates through the customary suspension and refund provisions of § 10707,³⁸  and the autonomy of the states would be assured for at least the 120 day exhaustion period.

Moreover, this construction would avoid some anomalous possibilities admitted by the scheme Congress chose. First, to the extent that § 11501 ousts the Commission of concurrent jurisdiction for 120 days,³⁹  it may (if state authorities do not take their national obligations seriously) simply tack that period of delay onto the time ordinarily consumed by a § 13(4) investigation. Second, if state authorities do not act within 120 days, there will always be some period of time during which no one may implement the rates the state may not, having been ousted of jurisdiction, and the ICC may not until it has conducted the "full hearing" assured by § 11501.⁴⁰  Although to be sure the paralysis would be relieved by expediting the ICC hearing, former tardigrade practice is not a source of hope.

Of course, petitioners' construction would not be free of anomaly either. The procedural consequences attaching to the passage to 120 days without "final action" might encourage the railroads to delay state proceedings in order to avail themselves of § 10707. On the other hand, state authorities could bar recourse to § 10707 simply by acting even if summarily and adversely, on the 119th day. Although we would not expect such perverse behavior,⁴¹  it is hardly a strong argument for petitioners' construction that such conduct would be encouraged.

In any event, we think it apparent that the changes intended by Congress, at least in enacting § 13(5), were undramatic. Although other of the 1976 amendments did streamline aspects of railroad ratemaking,⁴²  § 13(5) operates, we think, exclusively as a jurisdictional provision. That is, of course, precisely what its minimal legislative history said that it did. The Conference Committee Report states:

(The bill) assure(s) State regulatory bodies at least 120 days exclusive jurisdiction over an intrastate rate case, require(s) a railroad to exhaust its State remedy for a change in intrastate rates, and provide(s) that if a State failed to act on the railroad's application for rate change within 120 days the Interstate Commerce Commission would have exclusive authority to determine these intrastate rates.⁴³ 

Insofar as § 13(5) may be said to expand federal authority over intrastate rates, it does so only by ousting the states of their former concurrent jurisdiction after 120 days of inaction. As we have explained, the language Congress chose cannot support a more expansive reading, and nothing in the legislative history suggests its choice of language was mere drafting error.

Even were the linguistic argument closer, we would be hesitant to construe loosely an ambiguous passage so as to unsettle the practice of conducting a prior hearing. A finding (after hearing) of discrimination against interstate commerce has always conditioned the exercise of federal power over intrastate rates.⁴⁴  Inasmuch as the most plausible construction of the statute's language would continue the practice, we decline to strain a reading which Congress could freely enact, especially in view of Congress' historic sensitivity to the legitimate role of the states in this field.

We believe that the railroads are not entitled by § 11501, formerly § 13(5), to place changes in intrastate rates into effect by filing them with the Commission under § 10707. Rather, federal authority to affect intrastate rates is confined to the power of the Commission to prescribe rates "after a full hearing." Adopting this construction, however, we do not imply that the Commission should ignore the urgency which prompted Congress to enact the 1976 amendments. It is plain that in giving the ICC exclusive authority Congress intended that it move expeditiously in prescribing rates after the statutory exhaustion period. The substantive inquiry called for when intrastate rates recurrently lag behind general interstate rate increases is straightforward. The interstate rate will ordinarily already have been found just and reasonable. The Commission may confine the hearing to the ostensible justifications for the varying intrastate rate. We contemplate that the Commission will devise appropriately expedited procedures to avoid all escapable delay.⁴⁵ 

Affirmed.