effective. A carrier as well as a shipper has the right to call to the Commission's attention reasons why the proposal should not be permitted to become effective. A carrier party to a proposed joint rate may by a request for special permission inform the Commission of reasons why the proposal should be changed, withdrawn or canceled. This conclusion does not conflict with either rule 54(a) or rule 58(b) Tariff Circular 20, 49 CFR 1300.54(a) and 1300.58(b). In this case Southern was not trying to change a rate but rather was acting to prevent a rate from being changed. In other words, it only advocates maintenance of the status quo. In any event, the matter remains under our control in future situations so that the public will not be adversely affected by such petitions.

Our conclusion here differs from that reached in the earlier report. We believe the earlier report, in relying heavily on those parts of section 6(3) and rule 54(a) which require that rates once filed must be allowed to become effective, failed to accord proper significance to the fact that exceptions to that general requirement are permitted. Section 6(3), as implemented by rule 54(b), permits the Commission "for good cause shown" to allow filed rates to be withdrawn before effectiveness. Failing to recognize that fact, the earlier report also failed to make a determination whether or not the factual situation then at hand constituted "good cause" for the Commission to allow the withdrawal of the proposed (but not yet effective) increased rates. It is very clear that it is the Commission which is empowered to determine what constitutes "good cause." Any action on the part of the publishing agent which interferes with the Commission's obligation to receive and act on such an application is an unjustified intrusion into the rights and duties of the Commission.

Moreover, we do not agree with the statement in the prior report that Southern's request to withdraw its previously given concurrence after the joint-rate increase proposal had been disposed by final action under the procedures of the eastern railroads agreement constitutes a new joint-rate proposal requiring action by the other joint-line carrier participants. Southern is not proposing to establish a new or changed joint rate, but merely seeking to preserve the existing rate level. In the circumstances, the tariff publishing agent was not required to secure the concurrence of all carriers participating in the joint rate. Any other interpretation would infringe on Southern's right of independent action under section 5a(6) [now section 5b(5)(a)].

To deny a carrier the right to file an application for special permission runs contrary to that portion of section 6(3) which bestows upon the Commission the power, in a proper case, to grant special permission to deviate from the usual requirements otherwise specified in that section of the act regarding the filing and publishing of rates. Failure of the publishing agent to seek relief from the usual rules of this Commission usurps our right to receive and act upon such special permission applications. 10

We find that the refusal of the tariff publishing agent to comply with the unilateral instructions of the Southern to seek special permission to preclude the application of increased joint rates after they were filed but before they became effective was inconsistent with section 6(3) of the act. We do not anticipate that this conclusion will give rise to uncertainty in the rate making process since we have the power under the same section of the act to preclude last minute changes by withholding the requisite special permission." Accordingly, a tariff filing agent may not refuse to file a petition for short notice publication since such refusal is contrary to the act and might deprive us of an opportunity to exercise our discretion in this regard. Of course, there is nothing to prevent the tariff publishing agent from making known to this Commission the views of joint carriers participating in the rate regarding the application.

We find that the refusal of the tariff publishing agent to comply with the unilateral instructions of the Southern to withdraw its concurrence to increased joint rates after they were filed but before they became effective was inconsistent with section 6(3) of the act.

COMMISSIONER CHRISTIAN, dissenting:

The question before us is whether an individual carrier can withdraw its concurrence to a joint rate after the rate has been filed with the Commission but before it has become effective. Southern seeks an order declaring that its right of independent action protected by section 5b(5)(a) would be violated if it were not permitted to withdraw its concurrence under these circumstances. The majority's response to this question is to find that the tariff publishing agent's refusal to comply with Southern's instructions to

"The opposing parties would rely on section 5a [now section 5b] of the act as determinative of the issues presented. However, section Sa may not deprive a carrier of recourse to the usual procedures of the Commission.

"We are thus not constrained in our decision by fear of rate instability resulting from “one day" rates, a concern expressed in Revocation of Tariff Circular Rules, 346 LC.C. 1. 7 (1973).

withdraw its concurrence is inconsistent with section 6(3) of the act. In my view, this finding cannot be reconciled with the Commission's tariff publishing rules issued under the authority of section 6(3). 49 CFR 1300.58(b) provides:

Applications for permission to establish rates, rules, or regulations on less than statutory notice, or for waiver of the provisions of Tariff Circular 20 (this part) must be made by the agent or carrier that holds authority to file the proposed changes. If the application requests permission to make changes in joint tariffs, it must state that it is filed for and on behalf of all carriers parties to the proposed change. [Emphasis added.]

This rule stops an individual carrier from attempting to change a joint tariff after it is filed unless the other participants agree to the change. Prohibiting the filing of a special permission application under these circumstances seems perfectly reasonable to me. Presuming the validity of this rule, I can see no basis for the majority's finding that the tariff publishing agent acted unlawfully and deprived the Commission of the opportunity to exercise our discretion under section 6(3). The Commission has already exercised its discretion under section 6(3) by promulgating 49 CFR 1300.58(b) which prohibits the type of filing the majority would consider. Clearly, if the tariff publishing agent had filed under Southern's unilateral instructions, he would have been violating the Commission's rules.

The majority sees no conflict between its finding and the requirements of 49 CFR 1300.58(b). I cannot subscribe to their conclusion that Southern's unilateral attempt to withdraw from a proposed joint rate was a neutral act to preserve the status quo. Southern and its connections authorized the filing of a proposed change in joint rates. Southern's attempt to withdraw from the joint rate after the filing is surely a change in the filing unless one is willing to ignore the fact that the filing was made.

Our rules do not permit unilateral changes to joint rates once they are filed-and rightfully so. If carriers were free to ignore the rate bureau process and change joint rates at will, subsequent to filing but prior to the effective date, the orderly process of rate filings would be disrupted, and the 30-day statutory notice period would be meaningless. Southern has adequate remedies to protect its rights without our licensing it to trample the rights of connecting carriers. After considerable and, in my view, unsuccessful efforts to remove Southern's conduct from the ambit of 49 CFR 1300.58(b), the majority finally reaches what I consider to be the real issue in this

case. Notwithstanding the proper application of our tariff publishing rules, would Southern's right of independent action under section 5b(5)(a) be violated by prohibiting its withdrawing from joint rates filed with its concurrence? The majority has placed Southern's action within the range of activities protected by section 5b(5)(a). Southern's unilateral withdrawal is protected on the theory that existing rate levels are being preserved and no new or changed rates are being proposed. Again the majority chooses to ignore the fact of the proposed rate increase and permits Southern to scuttle the rate change at the expense of its connections. The majority states that any other approach would infringe on Southern's right of independent action.

I do not believe that the result reached in the prior report denies Southern its right of independent action. Southern was given every opportunity to act independently up until the point it concurred in the proposed joint rate and authorized its agent to file the joint rate. Once the rate was filed, Southern's ability to act unilaterally was necessarily restrained by our rules which require all participants in a joint filing to join in a request to change a joint rate.

On the surface the result reached by the majority does not seem especially odious. A rate increase is averted and Southern is permitted to correct its tariff publishing "error." However, I believe it is a mistake to be lulled by appealing facts into errors of law. The public's right to adequate notice of proposed rate changes and carriers' and shippers' rights to rely on the integrity of the rate bureau process have been seriously eroded by this decision.

It is ordered, that in the future, tariff publishing agents shall not refuse to submit for the Commission's consideration all petitions for short notice pursuant to section 6(3) of the act, except that tariff publishing agent need not submit special permission applications which would seek short notice to revise effective tariff rates or provisions which have joint line application unless the special permission request is concurred in all parties to the effective matter. 357 I.C.C.

No. 36053 (SUB-NO. 1)

DEPARTMENT OF AGRICULTURE, STATE OF MONTANA-PETITION FOR A DECLARATORY ORDERAPPLICABLE LEVEL OF RATES ON MONTANA INTRASTATE TRAFFIC

Decided September 29, 1977

Determination that section 17(9)(d) as amended was applicable to pending proceeding upon enactment of 4R Act. Refund due of charges collected in contravention of Commission notice to stay. Proceeding discontinued.

Robert A. Batchelder, Curtis H. Berg, William R. Power, J. Fred Simpson, and William G. Sternhogen for petitioners.

Thomas M. Auchincloss, Jr., Geoffrey L. Brazier, Gene J. Carroll, David H. Coburn, John C. Doubek, and Frederick A. Muth, Jr., for respondents.

REPORT AND ORDER OF THE COMMISSION

DIVISION 2, Commissioners Murphy, MACFARLAND, AND CLAPP

BY DIVISION 2:

The modified procedure was followed. Pursuant to section 17(9)(b) of the Interstate Commerce Act (Act), this matter will be considered by this division. Requested findings not specifically discussed in this report nor reflected in our findings or conclusions have been considered and found not justified, or their resolution not necessary for the proper disposition of this proceeding.

By order dated March 4, 1977, this Commission granted the petition for a declaratory order filed by the Department of Agriculture, State of Montana. This proceeding was insituted to clarify the effect of the Railroad Revitalization and Regulatory Reform Act (4R Act), of 1976 on the proper effective date for the increased rates and charges in Montana intrastate traffic, and whether refunds are due for those rates and charges. Montana intrastate rates and charges were authorized in docket No. 36503 by report and order of the Commission, Division 2, served July 26, 1976, finding Montana intrastate freight rates and charges the causes