Petitions for review of rules promulgated by the Interstate Commerce Commission, Ex Parte No. 387, Railroad Transportation Contracts, 367 I.C.C. 9 (1982) concerning the filing of rail transportation contracts under Section 208 of the Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat. 1895 (1980) codified at 49 U.S.C. § 10713 (Supp. IV 1980).
Feinberg, Chief Judge, Lumbard and Winter, Circuit Judges.
This consolidated proceeding involves two petitions for review of rules promulgated by the Interstate Commerce Commission ("ICC" or "Commission"), Ex Parte No. 387, Rail Transportation Contracts, 367 I.C.C. 9 (1982). The rules concern the filing of rail transportation contracts with the ICC under Section 208 of the Staggers Rail Act of 1980 ("Staggers Act" or "Act"), 49 U.S.C. § 10713 (Supp. IV 1980). The first petition claims that the ICC rules violate the Act by denying water carriers standing to challenge rail transportation contracts before the Commission. The first and second petitions claim that the rules fail to require the publication of the essential terms of rail transportation contracts as required by Section 10713(b). The challengers include the Water Transport Association and parties representing the interests of water carriers, ports and grain shippers. We uphold the rules as promulgated except as to disclosure of particular contract terms to parties with standing to challenge contracts before the Commission. As to those rules we remand.
In the late 1970's, the Interstate Commerce Commission began a review of its policies regulating the nation's railroads. Earnings by the railroads were then the lowest in the transportation industry and were insufficient to generate funds for necessary capital improvements. The Commission decided that this situation could be rectified only if the railroads were substantially deregulated. Accordingly, the Commission abandoned its traditional rule that individually negotiated contracts between railroads and shippers, in contrast to uniform tariffs of general applicability, were unlawful per se, and announced a new policy that the lawfulness of rail transportation contracts would be considered on a case-by-case basis. In the spring of 1980, the Commission proposed new rules and regulations to that end.
Before these regulations had become final, Congress undertook its own review of the ICC's regulatory framework. Finding that substantial responsibility for the railroads' financial crisis lay with the regulation, Congress concluded that "modernization of economic regulation of railroads, with greater reliance on the marketplace, [is] essential." H. Conf. Rep. No. 1430, 96th Cong. 2d Sess. at 79, reprinted in 1980 U.S. Code Cong. & Ad. News, 4110, 4111. In that spirit, Congress adopted the Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat. 1898 codified at 49 U.S.C. §§ 10101 et. seq. (Supp. IV 1980). Section 208 of the Act, 49 U.S.C. § 10713, allows rail carriers to conduct their operations by contract like other businesses. Congress thus adopted the conclusion arrived at by the ICC.
Congress retained some traditional regulatory provisions, however. Shippers and ports are allowed to challenge rail transportation contracts before the ICC on narrowly circumscribed grounds, 49 U.S.C. § 10713(d), and the Commission is directed to disclose some contractual information to facilitate the filing of complaints, 49 U.S.C. § 10713(b). The Commission proposed interim rules to implement the contract provisions of the Act on October 24, 1980, but delayed the promulgation of final rules until November 4, 1982.
The final contract rules deny water carriers standing to challenge rail transportation contracts before the ICC. 367 ICC at 18. The rules allow challenges before the Commission only by those parties specifically authorized to file challenges under Section 10713(d) of the Act. 49 C.F.R. § 1039.3(c) (1982). The final rules require disclosure to the public of a general description of each contract but do not require disclosure of the actual rates under a contract, volume information other than minimum annual volume or names of shippers. 49 C.F.R. § 1300.313 (1982). Other regulations provide for private disclosure of additional contract terms to parties with standing to challenge particular contracts, 49 C.F.R. § 1300.310(b)(1)(1982), and establish a time requirement of 18 days for the filing of such challenges, 49 C.F.R. § 1039.3(d)(1) (1982).
We uphold the regulations save those governing private disclosure of contractual information to parties with standing to challenge such contracts. As to those, we remand.
We consider first petitioners' claim that Section 707 of the Staggers Act gives water carriers standing to challenge rail transportation contracts before the ICC on the grounds that they undermine rail-water competition.*fn1 Petitioners assert that the Commission's rule denying water carriers standing violates the express language of the Act and Congress' intent as revealed by the legislative history. We disagree.
Section 707 of the Staggers Act, entitled "Construction of Amendments," provides that the Act shall not be construed to alter the relationship between water carriers and rail carriers by making lawful practices that undermine competition. Petitioners claim this quite general provision gives ...