"practicably participate in an interline movement" if he participates in a route, as published in a tariff, from an origin involved in the proposal to a destination involved therein. According to the League, in order to "practicably participate in an interline movement" a carrier must not only participate in a published route from origin to destination, but must also participate in the movement of the particular commodity involved in the interline proposal.

The League further objects to the proposed agreement on the grounds that it fails to require that the public notice of a recommended final disposition contain the reasons for the action

taken.

In reply to the statements in opposition, applicants contend that the agreement expressly preserves the right of independent action and that this right has been vigorously exercised by member carriers of the ports committee. Applicants point out that during the past 5 years about 24 percent of all proposals filed have been independent actions.

Moreover, applicants maintain that the allegation of the League that only carriers who are transporting the particular commodity involved in an interline proposal may vote or agree on such proposal, is predicated upon an erroneous interpretation of the legislative history of section 5b. According to applicants, if the League's definition were adopted it would prohibit voting and agreement by carriers when they seek only to establish movements of traffic not previously handled over their lines.

Applicants further contend that the term "broad tariff change" is adequately and specifically defined in the agreement. In addition, they allege that FTC's request that the exceptions to the statutory prohibitions relating to "broad tariff changes" and "general increases or decreases" should not be included in the proposed agreement absent specific findings of necessity, is erroneous. Applicants contend that Congress recognized the necessity for these exceptions by including them in the 5b statute.

Applicants also request that the Commission defer its determination of the definition of the terms "general increase or decrease," "discussion," and "participation in agreement" pending the disposition of these issues in section 5b Application No. 2, Western Railroad-Agreement.

Responsive to FTC's allegation that section 5b permits discussion of single-line rates only in connection with appropriate discussion of joint-line rates, applicants maintain that section 5b clearly

authorizes discussion by carriers not permitted to vote or agree on proposals subject to either the single-line or interline prohibitions. Applicants also assert that the Commission should reject FTC's suggestion that verbatim transcripts be required of all rate committee proceedings on the grounds that such a requirement would be unduly burdensome and expensive. Furthermore, applicants point out that they are currently taking detailed formal minutes which adequately reflect rate committee proceedings.

Finally, applicants contend that the Commission's statement in Ex Parte No. 297 that "public notice of recommended final dispositions should contain the reasons for the action taken" applies only to motor carrier agreements.

DISCUSSION AND CONCLUSIONS

As previously discussed in Railroads Per Diem, Mileage, Demurrage-Agreement, 353 I.C.C. 673, the Commission is invested with the duty and responsibility of effectuating the Congressional mandate to approve rate making agreements between and among railroads under section 5b, if approval is not prohibited by that section, and if it finds that the agreement furthers the national transportation policy to the extent that relief from the operation of the antitrust laws is appropriate with respect to the making and carrying out the agreement. Section 5b further authorizes the Commission to prescribe such terms and conditions as are necessary to enable it to grant approval in accordance with the foregoing standard.

Prior to consideration of the agreement a preliminary matter requires disposition. No presentation has been made to support FTC's contention that the handling of this proceeding under modified procedure did not permit sufficient time for its determination of possible anticompetitive features. Notice of the filing of the proposed agreement was published in the Federal Register on August 18, 1976 (41 F.R. 35035) to which FTC responded and at that time was fully apprised of the terms of the proposed agreement. FTC presents no reasons or justification for its allegation at this late date. It is concluded that the parties were afforded adequate and sufficient time to present their views and objections in this proceeding.

In determining whether the proposed agreement should be approved we must first consider the possible applicability of the prohibitions contained-in paragraphs (4) and (5) of section 5b. The

agreement does not pertain to a pooling, division, or other matter or transaction to which section 5 of the act applies, and therefore is not prohibited by paragraph (4). Paragraph (5), subsection (a) of section 5b provides, in part, that the Commission will not approve any agreement under this section unless there is accorded to each party the free and unrestrained right to take independent action. The subsection further prohibits participation in agreements, or voting, on single-line rates, or participation in agreements, or voting, on rates relating to any interline movement unless a carrier can practically participate in the movement; or permit joint action to protest or otherwise seek suspension of an independent action established and filed by a carrier of the same mode. These limitations of subsection (a) do not apply to general rate increases or decreases if special notice requirements are adhered to, or to broad tariff changes of general or substantially general application throughout the territory within which the bureau has jurisdiction.

The terms of the agreement explicitly accord to each member the free and unrestrained right to take independent action either before or after any determination is arrived at under the agreement procedures. In addition, any provision of the agreement which might otherwise be construed as a limitation or restraint on this right is declared to be advisory and not mandatory or binding upon the rights and privileges of any member. In view of the foregoing explicit terms of the agreement, we cannot subscribe to the FTC's allegation that there is nothing in the agreement to establish that the right of independent action will be protected. However, in order to comply fully with the statutory prohibition of paragraph (5) it is suggested that applicants amend the proposed agreement to accord each member the right of independent action "without fear of any sanction or retaliatory action',,

The FTC alleges that the terms "general rate increases or decreases" and "broad tariff changes" require more specific definition within the agreement. It is well settled under section 5a of the act, and applies equally under section 5b that an agreement be definite and certain by its terms. We agree that the term "general rate increases or decreases" requires a more detailed explanation to delineate the precise scope of this exception to the statutory prohibition of the 5b statute. However, in our opinion, "broad tariff changes" is adequately defined within the agreement. Article I section 4(b) of the agreement defines a broad tariff change as "a

change of general or substantially general application from, to, or within the territory defined in article I section 3(c) and (d)." This territory is specifically set out by the foregoing section and is sufficiently large and broad-based to constitute a territory within the meaning of the 5b(5)(b) "broad tariff change" exception.

Section 2d of article I gives members the right to discuss any matters coming before the ports committee. Such a provision is vague and indefinite in the absence of standards defining the scope of such activity. Although the section 5b statute does not forbid discussions among the carrier parties, the agreement should set out with definiteness the nature and parameters of discussion in view of the statutory prohibitions which preclude participation in agreement to single-line rates and limit agreement concerning jointline rates to those carriers who can practicably participate in the movement. In the circumstances, applicants are admonished to cease and desist from engaging in any discussions under the iterim approval previously granted by the Commission.

The contention that the Commission require verbatim transcripts of all rate committee proceedings to ensure that rate bureau activity is consistent with the structures of section 5b has merit. As noted by applicants, the Commission concluded in Ex Parte No. 297 that formal minutes and not verbatim transcripts would ensure effective monitoring of rate committee proceedings. This finding, however, was prior to the enactment of section 5b which prohibits joint carrier action with respect to specified matters and increases the Commission's monitoring responsibilities. In view of the foregoing, it may be necessary to require verbatim transcripts in some instances depending on the nature and scope of collective rate bureau handling of matters which are subject to the statutory prohibitions. Accordingly, tinal disposition of this issue will be delayed until such time as applicants have detailed the nature, scope and procedures relating to discussion of single-line and joint-line rates within the context of the instant agreement.

Regarding member participation in agreements, article I, section 2(d)(2)(b) of the agreement limits participation and voting on interline proposals to those carriers who can "practically participate" in the movement. The agreement further provides that:

(a) carrier can practically participate in a movement involved in a proposal if such carrier participates in a route as published in a tariff on file with the Interstate Commerce Commission from an origin involved in the proposal to a destination involved in the proposal.

It is our opinion that the foregoing is an adequate statement of the standards necessary for determination of the eligible member carriers authorized to consider collectively or vote on an interline proposal under the section. Accordingly, we reject the League's contention that a carrier must also participate in the movement of the particular commodity involved in the proposal in order to participate practically therein. Such additional restriction has no justification either under the plain language of the statute or in its legislative history, and would preclude carriers seeking to establish rates on traffic not previously handled over their lines from participating in agreement with respect to such rates.

Relative to carrier eligibility, it is observed that article I, section 2(d)(5), provides that, after the chairman determines and announces the names of the eligible carriers, or those that are not eligible, to vote and agree on a proposal, any member may object to such determination. Further provision that a majority of the members present at a meeting shall determine the matter is unacceptable. Such a provision tends not only to defeat the published tariff standard of the agreement cited above, but leaves carrier eligibility a matter of discretion of the majority of the members possibly in contravention of the statutory prohibitions. Further, regarding an objection by a member to its ineligibility in conjunction with proposals to be processed by mail or telegraph vote, the procedure is not clear or definite.

As mentioned previously, Commission approval of a proposed agreement under section 5b of the act, must consider apart from the specific prohibitions of section 5 b(5)(a), whether the agreement is in furtherance of the national transportation policy. If a finding cannot be made that a proposed agreement is consistent with this policy and contributes to its effectuation then the agreement must be disapproved. Determination of the foregoing necessitates a broad examination of conditions which affect the public interest, the interests of the carriers, the needs of commerce, and the national defense. Those parts of the policy most directly pertinent here involve promotion of "adequate, economical, and efficient service," for the fostering of "sound economic conditions in transportation," and for encouraging the establishment and maintenance of "reasonable charges for transportation services, without unjust discrimination, undue preference, or advantages, or unfair or destructive competitive practices."

In Western Traffic Assn.-Agreement, 276 I.C.C. 183, the Commission recognized a need for joint rate making to guarantee a