Before WALD, MIKVA and GINSBURG, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Interstate Commerce Commission (No. 37622).
Opinion for the Court filed by Circuit Judge GINSBURG.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GINSBURG
The Staggers Rail Act of 1980, Pub.L.No.96-448, 94 Stat. 1895 (codified in scattered sections of 11, 45, & 49 U.S.C.) (Staggers Act), significantly amended the Interstate Commerce Act to provide for financial assistance to railroads and to deregulate substantially the setting of railroad rates. In February 1981, an attorney who practices before the Interstate Commerce Commission (ICC or Commission), James W. Lawson, petitioned the Commission to address points of uncertainty concerning the meaning of Section 229 (49 U.S.C. § 10701a note) (the "Savings provisions") of the Staggers Act. Interested shippers, principally electric utilities who envisioned the possibility of large increases in their future shipments of coal, supported Lawson's petition and invited further clarification of Section 229. In March 1981, the ICC issued an interpretive order answering questions raised in the petition and supporting comments. Petition for Declaratory Order-Existing Railroad Rates, 364 I.C.C. 749 (1981). Baltimore Gas and Electric Co. seeks our review of one of the answers the ICC's interpretive order supplied. *fn1
Both BG&E and the Commission acknowledge that they have placed before us, in advance of the development of any concrete case, the bare text of a statutory provision and legal argument as to its meaning. The parties further recognize that no imminent harm confronts BG&E as a result of the Commission's interpretation. In response to the court's inquiry at argument concerning the ripeness of the case for judicial review, counsel for BG&E stated he would prefer to await a concrete controversy before seeking a court ruling on the ICC's March 1981 interpretive order. *fn2 However, he noted the 60-day limit on petitions for judicial review of ICC orders. See 28 U.S.C. § 2344. This limitation, he feared, might be read to command a petition to contest the Commission's interpretation now or never.
We hold that the Commission's interpretive order, which currently threatens no hardship to BG&E, is not reviewable on the petition before us. Because review is not available now, BG&E and other similarly situated shippers will not be barred, if and when a fact-based controversy eventuates, from challenging the Commission's interpretation. I.
Prior to October 1, 1980, the effective date of the Staggers Act, affected shippers generally had the right to challenge the reasonableness of existing rail rates at any time. See 49 U.S.C. 11701. By contrast, the Staggers Act largely insulates rates from challenge. *fn3 ICC oversight of rates alleged to be unreasonably high is confined to transportation over which the carrier has "market dominance." 49 U.S.C. § 10701a(b)(1). Even as to rates on "market dominant" traffic, a rate in existence on the effective date of the Staggers Act is immune from attack unless challenged by a shipper's complaint filed within a 180-day period commencing on October 1, 1980. Staggers Act § 229(a). A rate not challenged within this 180-day period becomes a "base rate," which may be adjusted upward within certain statutorily-prescribed limits *fn4 without further ICC surveillance. Congress provided an exception to the 180-day limitation to permit later challenges with respect to "paper rates." Specifically, Section 229(c) of the Staggers Act permits a challenge to
any rate under which the volume of traffic moved during the 12-month period immediately preceding the effective date of this Act did not exceed 500 net tons and has increased tenfold within the 3-year period immediately preceding the bringing of a challenge to the reasonableness of such rate.
The petition before us challenges the Commission's interpretation of this provision. No other issue is tendered for our review.
BG&E maintains that the "paper rate" exception defined in Section 229(c) permits a shipper to challenge a rate in existence on October 1, 1980, without regard to the total traffic that may have moved under the rate, so long as the challenging shipper did not ship more than 500 net tons under the rate during the 12-month period immediately preceding October 1, 1980, and the volume of that shipper's shipments increased tenfold thereafter. The ICC, in its March 1981 interpretive order, disagreed. The Commission declared: "It seems clear to us that the 500 ton/tenfold conditions refer to the aggregate of all traffic moving under the rate," not to "the traffic of the (individual) shipper that desires to challenge the rate." 364 I.C.C. at 752.
BG&E does not assert that it is now positioned to satisfy the Section 229(c) test as it reads the provision, nor does it identify any current rate as unreasonable. Thus, it seeks our preview whether Section 229(c) will provide an avenue for relief should it some day fall within the "paper rate" exception, as it interprets that exception, and should it at that time find itself subjected to a charge it regards as unreasonable. Since BG&E labors under no current hardship by reason of its disagreement with the ICC concerning the meaning of Section 229(c), and can now complain only of a hypothetical state of affairs, we must decline consideration of its petition. II.
As this court has had several occasions to observe, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967), is the pathmark decision regarding the ripeness of agency orders for judicial review. See, e.g., Diamond Shamrock Corp. v. Costle, 188 U.S. App. D.C. 407, 580 F.2d 670 (D.C.Cir.1978); Continental Air Lines, Inc. v. CAB, 173 U.S. App. D.C. 1, 522 F.2d 107, 122, 124-28 (D.C.Cir.1975) (en banc). Abbott Laboratories presented for judicial review Food and Drug Administration regulations interpreting provisions of the 1962 amendments to the Food, Drug and Cosmetic Act that required drug labels and promotional material to indicate the generic name of a drug as well as the trade name. The Court stated a two-fold test for ripeness, requiring evaluation of "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. at 149, 87 S. Ct. at 1515. Applying that test, the Court found the "generic name" regulations ripe for review. As to the second aspect of the ripeness test, the Court pointed out that the regulations had an immediate impact on the business of the complainant drug manufacturers: they would sustain extensive costs in complying with the agency's specifications or, if they did not comply, they would risk enforcement with attendant criminal penalties. Clarifying the reach of Abbott ...