FINDINGS

We find that the 4R Act was in effect at the time of the service of the report and order of division 2, July 26, 1976, and applied in docket No. 36053. The report and order authorized increased rates and charges in Montana intrastate traffic. The effective date of those increases was stayed by notice to the parties dated August 26, 1976. On October 27, 1976, when reconsideration was denied, the rates were ordered effective forthwith.

We also find that refunds are due, because the rates charged were not lawfully published.

This decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.

It is ordered, That this proceeding is discontinued.

357 I.C.C.

DECISION

No. 36796

WEST VIRGINIA INTRASTATE RATES-EX PARTE NO. 343

Decided July 25, 1978

West Virginia intrastate rates found not filed with the West Virginia Commission. Proceeding discontinued.

The West Virginia Public Service Commission (WVPSC) has filed a petition to rescind the Interstate Commerce Commission's order instituting this investigation of West Virginia intrastate rates, or in the alternative to set this investigation for oral hearing with the Interstate Commerce Commission and the West Virginia Public Service Commission. The Acme Limestone Company, a shipper of crushed limestone in the State of West Virginia, has filed a petition to vacate the order instituting the investigation and to dismiss the proceeding. Tri-State Materials Corporation, also a West Virginia shipper, has filed a petition to vacate the order instituting this investigation. The West Virginia railroads have replied in opposition. Amherst Industries and Union Boiler Company have each petitioned to intervene.

In this decision, we order this proceeding discontinued and accordingly deny intervention.

The facts are essentially that the West Virginia railroads submitted for filing to WVPSC a change in intrastate rates. The WVPSC rejected the tariff, because the railroads failed to comply with two requirements:

(1) The railroads failed to give statutory notice of the proposed change and accompany the change with a certificate of public notice. Chapter 24, article 2, section 4 of the Code of West Virginia and rules 22 and 23 of the WVPSC rules. (2) The railroads also failed to accompany the tariff with accounting information and economic data. Rule 42 of the WVPSC rules.

After 120 days passed from the date the railroads submitted the tariff to the State, the railroads applied to this Commission for authority to increase intrastate rates.

Section 13(5) of the Interstate Commerce Act provides:

The Commission shall have exclusive authority, upon application to it, to determining and prescribe intrastate rates if

(a) a carrier by railroad has filed with an appropriate administrative or regulatory body of a State, a change in an intrastate rate, fare, or charge *** and

(b) the State administrative or regulatory body has not, within 120 days after the date of such filing, acted finally on such change.

Petitioners contend that this Commission cannot assume jurisdiction. They argue that the State has not held a hearing on the merits of the tariffs, and that the 120 day period under section 13(5) has not begun to run, because the intrastate tariffs were never filed with the State.

The principal underlying issue in this proceeding is whether the tariffs were filed with the State. It turns on the question, what did Congress mean in section 13(5) by "file?"

In the absence of anything in the statute clearly to the contrary, a word used in one portion of a statute means what it does in other portions of the same statute. 82 C.J.S. Statutes $348. Congress has used "file" in section 6 of the act. There is no reason to believe that Congress intended any other meaning for "file" in section 13(5). Portions of section 6 are set out in the footnote to help in interpreting section 13(5).'

Essentially, under section 6, if this Commission rejects a proposed tariff change for failure to comply with procedural requirements, the change is not "filed" with this Commission. See, for example, Phillips Petroleum Co. v. Akron, C. & Y. R. Co. 308 I.C.C. 257, 260 (1959), and Kaseman v. A. T. & S. F. Ry. Co., 102 I.C.C. 315 (1925).

Similarly, we conclude here, if this Commission finds that a proposed change in intrastate rates fails to comply with a State's procedural requirements, the change is not "filed" with the State, under section 13(5).

This Commission is not bound by a State's determination of whether an intrastate tariff is filed with it, in order to decide when to begin the running of the 120 day period under section 13(5).

'(1) That every common carrier subject to the provisions of this part shall file with the Commission created by this part and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation ***.

(3) No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public ***. (footnote continued on next page)

Otherwise, if the State were to impose requirements more stringent than this Commission's requirements, the purpose of section 13(5) to avoid delays at the State level could be defeated.

Of course, in a State proceeding where this Commission's authority under Federal law is not at issue, a State is not bound by this Commission's determination of when an intrastate tariff is filed. Each State has the power to determine for itself whether a change in intrastate rates is filed with its commission, in order to act upon a proposed change. "A local rate within a State may be changed without the necessity for such notice as is required by the act ***.” Morgan v. Missouri, K. & Ry. Co., 12 I.C.C. 525, 528 (1907).

Interpretation of section 13(5) in this proceeding requires one further reference to section 6. Under section 6, we distinguish a failure to meet substantive requirements in filing tariffs from a failure to meet procedural requirements. Similarly we do so under section 13(5).

Filing is purely procedural. Once a change in rates meets the procedural requirements, it is filed. Any deficiencies that affect whether the change is justified are substantive. They do not warrant rejection of the rates. They warrant a hearing and findings.

The power given to the ICC to reject rates is specific, but limited. In brief, §6(6) provides the schedules required shall be published, filed and posted in such form and manner as the ICC shall by regulation provide. The power to reject any schedule of rates is found in $6(9) This is procedural regulation, as distinct from establishing a procedure to determine the substantive unlawfulness of the rates per se. North Carolina Natural Gas Corp. v. United States 200 F. Supp. 745, 750 (D.C. Dela. 1961). In the instant case, one of the railroads' violations of state statute was substantive. The railroads failed to meet the State's requirement to submit accounting and economic evidence to justify their proposed changes. Such evidence is relevant only to a determination of the merits of the proposed changes. The failure to submit accounting and economic evidence did not prevent the proposed changes from being filed. Without the evidence, the State could still have found that the rates were filed but not justified.

On the other hand, the railroads failed to meet the State's notice requirements. These requirements are procedural. The State rejected the proposed changes. Thus, we find the intrastate tariffs were never filed with the State.

(footnote I continued)

(6) The schedules required by this section to be filed shall be published, filed, and posted in such form and manner as the Commission by regulation shall prescribe; and the Commission is authorized to reject any schedule filed with it which is not in accordance with this section and with such regulations. Any schedule so rejected by the Commission shall be void and its use shall be unlawful.

(9) The Commission may reject and refuse to file any schedule that is tendered for filing which does not provide and give lawful notice of its effective date, and any schedule so rejected by the Commission shall be void and its use shall be unlawful.

This finding necessitates resolution of the ultimate issue-whether this Commission is now authorized to assume jurisdiction even though the tariffs were not first filed with the State. We conclude that the Commission is so authorized, but it is not required, to assume jurisdiction.

Sections 13(1) and 13(2) of the act authorize this Commission to exercise broad powers to institute investigations, including investigations on its own motion.

Sections 13(3) and 13(4) extend these same powers to certain violations of the act caused by intrastate rates.

Section 13(5) expressly provides that this Commission's authority is exclusive, if the State fails to act finally within 120 days after a tariff is "filed." Furthermore, the last sentence of section 13(5), added by amendment October 1, 1976, states:

Nothing in this paragraph shall affect the authority of the Commission to institute an investigation or to act in such investigation as provided in paragraphs (3) and (4) of this section.

The Commission could have instituted this intrastate investigation on its own motion. Although the railroads failed to meet the State's filing requirements, the petitioners' argument is not persuasive that this Commission is not authorized to grant the railroads' petition to institute this investigation.

Nevertheless the Commission exercises discretion in such cases. Although the railroads may filed a section 13 petition for investigation with this Commission, if the petition is not filed under the authority of section 13(5) the Commission need not exercise. jurisdiction. Primary jurisdiction is traditionally with the States. Good reason must appear before this Commission will assist the railroads to bypass the States.

The parties have cited portions of legislative history of section 13(5) to support both sides of the issue whether Congress intended. to authorize Commission jurisdiction in cases such as this one. The legislative history is not conclusive. The clear meaning of the words of the whole section, as discussed above, is determinative.

Congress intended to expedite hearings at the State level. It has limited State exclusive jurisdiction to 120 days after tariffs are “filed." It did not remove the Commission's authority under other parts of section 13.

The railroads have only presented feeble excuses why they have not complied with the procedural requirements for filing tariffs