Freightcor Services, Inc. v. Vitro Packaging, Inc. ( 1992 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE FIFTH CIRCUIT
    
                            ____________________
    
                                 No. 91-1507
                            ____________________
    
    
    
    FREIGHTCOR SERVICES, INC.
    
                                                      Plaintiff-Appellee,
    
                                   versus
    
    VITRO PACKAGING, INC.
    
                                                    Defendant-Appellant.
    
    __________________________________________________________________
    
            Appeal from the United States District Court for the
                         Northern District of Texas
    
    __________________________________________________________________
    
                         ON PETITION FOR REHEARING*
    
               (Opinion June 26, 1992, 5 Cir., 1992, ___F.2d___)
    
                         (August 14, 1992)
    
    Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
    
    
    
    E. Grady JOLLY, Circuit Judge:
    
    
    
    
        *
          The plaintiff-appellee, Freightcor Services, Inc., has filed
    a petition for rehearing challenging our decision and opinion dated
    June 25, 1991. The petition for rehearing is granted; our earlier
    opinion is hereby withdrawn, and the following opinion, which
    differs from its predecessor in part III.B(2), is entered in its
    place.
         In this suit a bankrupt interstate carrier, Freightcor, Inc.,
    
    seeks undercharges1 from a shipper, Vitro Packaging, Inc.                  The
    
    district court rejected Vitro's defense that, under the "filed rate
    
    doctrine,"2 Freightcor's tariff was void because it referred to a
    
    mileage guide in which Freightcor did not formally participate.
    
    The court therefore granted summary judgment for Freightcor.               For
    
    the reasons below, we today hold that a mileage guide is a tariff
    
    and that a tariff that refers to another tariff without official
    
    participation     in   that   tariff    is   void   as   a   matter   of   law.
    
    Freightcor therefore cannot collect undercharges against Vitro
    
    under the filed rate doctrine.
    
                                            I
    
         Freightcor, now in bankruptcy, is a common carrier operating
    
    in interstate commerce and subject to regulation by the ICC.               From
    
    1985 until 1987, Freightcor hauled glass bottles and containers for
    
    Vitro.      Vitro paid rates between $.98 and $1.13 per mile.          All of
    
    these charges were based upon rates that were not drawn from
    
    
    
    
        1
         "Undercharges" are the difference between the rate a shipper
    is billed for a shipment and the amount of the rate for that
    shipment according to the carrier's tariff. See Maislin Industries
    U.S., Inc. v. Primary Steel, 
    497 U.S. 116
    , ___, 
    110 S. Ct. 2759
    ,
    2764 (1990).
            2
          The "filed rate doctrine" requires that only a tariff duly
    filed with the ICC can govern the billing of shipments by common
    carriers. The rate, however, must be reasonable. The filed rate
    doctrine seeks to avoid secret rates negotiated between shippers
    and carriers.   Maislin Industries, U.S., Inc. v. Primary Steel,
    Inc., 
    497 U.S. 116
    , ____, 
    110 S. Ct. 2759
    , 2766 (1990).
    
    
    
                                           -2-
    tariffs filed with the ICC, but instead were negotiated between
    
    Freightcor and Vitro.
    
           During these years, Freightcor had two filed tariffs that are
    
    now material.       Tariff ICC FSSI 282 applied to "Building Materials
    
    or Supplies."        Tariff ICC FTHS 275 applied to "Freight of all
    
    Kinds, except       Class    A   and   B    Explosives,    Household   Goods   and
    
    Materials in Bulk."         The rate for ICC FTHS 275 was $3.00 per mile,
    
    and the rate in FSSI 282 was considerably less.
    
           Both FTHS 275 and FSSI 282 computed mileage for specific
    
    shipments according to the Household Goods Carriage Bureau ("HGCB")
    
    MF-ICC 100-A Mileage Guide.            The parties agree that Freightcor did
    
    not file a power of attorney or concurrence with the HGCB to
    
    "participate" in the mileage guide.
    
           Freightcor declared bankruptcy and, as debtor-in-possession,
    
    sued   Vitro   in    U.S.    district      court   for    undercharges,   or   the
    
    difference between the rate actually charged and the rate posted in
    
    a carrier's applicable tariff on file with the ICC.              Vitro answered
    
    alleging, among other defenses, that the proper forum for this
    
    dispute is the ICC, that the tariffs Freightcor sought to apply
    
    were void because Freightcor had not participated in the mileage
    
    guide these tariffs referred to, that an attempt to collect filed
    
    rates after negotiating a lower rate was an unreasonable practice,
    
    and that the rates sought were unreasonable.               Freightcor moved for
    
    summary judgment, arguing that, under the filed rate doctrine, the
    
    sole question for the court was whether Vitro had paid the amount
    
    
    
    
                                               -3-
    of   money    required    in   the   duly    filed      tariffs    that    governed
    
    Freightcor's shipments of Vitro's cargo.                     The court initially
    
    denied   the    motion,    noting    that    a    factual      dispute    persisted
    
    concerning the applicability of FSSI 282: whether glass bottles and
    
    containers, which Freightcor had hauled for Vitro, were included
    
    within the term "Building materials or supplies" as found in FSSI
    
    282.
    
           On March 15, 1991, however, the court granted reconsideration.
    
    The court rejected Vitro's defenses and held that FTHS 275 had
    
    properly referred to mileage guide HGCB MF-ICC 100-A.                     The court
    
    further held that, although there was a dispute with respect to the
    
    applicability of FSSI 282, there was no factual dispute as to the
    
    applicability of FTHS 275, which covered "freight of all kinds."
    
    The court therefore held that FTHS 275 was applicable.                    It noted,
    
    however,     that    because   Freightcor        had    also    contended,    viz.,
    
    "conceded," that FSSI 282 was also applicable, the court would
    
    apply the lower rate under FSSI 282 and assess Freightcor's damages
    
    on that basis.       In so doing, the court observed it was undisputed
    
    that when two tariffs are applicable, the proper rate to apply is
    
    the lower rate.       Because Freightcor had contended that both FSSI
    
    282 and FTHS 275 were applicable, it could not complain that the
    
    district     court   applied   the   lower       rate   to     assess   undercharge
    
    damages.     Judgment was entered for $19,199 in principal and $5,449
    
    in prejudgment interest.         Vitro filed a motion for "new trial,"
    
    which was denied.        Vitro then filed this appeal.
    
    
    
    
                                          -4-
                                              II
    
          We review de novo the summary judgment, applying the same
    
    standards of law as those available to the district court.                     Trial
    
    v. Atchison, Topeka and Santa Fe R. Co., 
    896 F.2d 120
    , 122 (5th
    
    Cir. 1990).       Therefore, to sustain the summary judgment rendered
    
    below, we must find that there is "no genuine issue as to any
    
    material fact and that the moving party is entitled to judgment as
    
    a matter of law."       Fed.R.Civ.P. 56(c).
    
                                          III
    
          The heart of Vitro's appeal is its argument that the district
    
    court    erred    in    applying   the     filed       rate   doctrine   based    on
    
    Freightcor's tariff FTHS 275.         Vitro argues that FTHS 275 was void
    
    under ICC regulations because, although FTHS 275 refers to HGCB MF-
    
    ICC 100-A for the mileage of specific shipments, Freightcor did not
    
    give to the HGCB a power of attorney in order to "participate" in
    
    the     tariff,    as   required     by    the     Commission's      regulations.
    
    Therefore,       contends   Vitro,    FTHS       275    is    unenforceable,     and
    
    Freightcor may not collect undercharges based upon its rates.                     In
    
    response, Freightcor argues that the regulations do not require it
    
    to participate in the mileage guide in order to refer to it, and if
    
    they do, they still cannot be used to retrospectively void a tariff
    
    that had been otherwise duly filed and effective.
    
          The district court found that Freightcor
    
          permissibly referred to HGCB MF-ICC 100-A in tariff ICC
          FTHS 275 for the purpose of computing the distance rate.
          See 49 C.F.R. § 1312.30(c)(1).      The mileage guide in
          question complied with 49 C.F.R. § 1312.30(c)(4) because,
    
    
    
                                          -5-
         without dispute, it was on file with the ICC at the time
         the tariff was published and filed. The court rejects
         Vitro's arguments to the contrary.
    
    Thus the district court did not expressly address the effect of
    
    Freightcor's failure to file a power of attorney with respect to
    
    the HGCB mileage guide.       We read the district court's opinion as
    
    holding implicitly either (1) that the mileage guide is not a
    
    tariff, or (2) that Freightcor was not required to participate in
    
    the mileage guide, or (3) that Freightcor's mere reference to the
    
    mileage guide amounted to participation.
    
                                             A
    
         The      ICC   regulations   make       clear   that   whether    a    carrier
    
    "participates" in the tariff of another carrier or an agent is a
    
    matter   of    certain   formalities.          ICC   regulation   49       C.F.R.   §
    
    1312.4(d) mandates that
    
         a carrier may not participate in a tariff issued in the
         name of another carrier or an agent unless a power of
         attorney or concurrence is attached. Absent effective
         concurrences or powers of attorney, tariffs are void as
         a matter of law.
    
    The regulations do not require that Freightcor file its power of
    
    attorney or concurrence with the ICC; instead, it files such
    
    documents with the HGCB, which in turn publishes the carriers
    
    participating in MF-ICC 100-A.       Freightcor did not file a power of
    
    attorney or a concurrence with the HGCB, and it therefore did not
    
    participate in the HGCB MF-ICC 100-A.                The initial question for
    
    this court is, therefore, whether under the ICC's regulations
    
    
    
    
                                         -6-
    Freightcor was obligated to participate in the HGCB mileage guide
    
    in order to refer to it in Freightcor's own tariffs.
    
         First, Freightcor argues that MF-ICC 100-A is only a distance
    
    guide and not a "tariff issued in the name of another carrier or an
    
    agent."   Freightcor asserts that formal participation is only
    
    required if a carrier refers to another agent's tariffs in order to
    
    designate the rate per mile governing shipments.
    
         We begin our inquiry, therefore, by determining whether HGCB
    
    MF-ICC 100-A is a tariff issued in the name of an agent under
    
    section 1312.4(d).   "Tariff" and "agent" are defined in 49 C.F.R.
    
    § 1312.1(b).
    
           (2) "Agent" means a person, association or
           corporation authorized to publish and file rates
           and provisions for a carrier's account in tariffs
           published in the agent's name.
           .....
           (35) "Tariff" means a publication containing rates,
           classification ratings, rules, regulations, and
           other provisions as amended, filed in the carrier's
           or an agent's name.
    
      Indisputably, the HGCB is an agent authorized to publish and
    
      file rates, and a mileage guide is a publication, containing
    
      provisions meant to be the basis for shipping bills, filed in
    
      an agent's name.   Furthermore, HGCB MF-ICC 100-A was filed
    
      with the Commission in accordance with section 1312.30(a), as
    
      is required in order for Freightcor to refer to the guide.   49
    
      C.F.R. § 1312.30(c)(4). The number "100-A" is assigned by the
    
      Commission to designate it as a tariff in accordance with
    
    
    
    
                                    -7-
      section 1312.8(3). Freightcor's own tariffs describe HGCB MF-
    
      ICC 100-A as a tariff.
    
           We    conclude,   therefore,    that   HGCB     MF-ICC    100-A   was
    
      clearly a "tariff" as the word is used in section 1312.4(d).
    
      The conclusion    that   MF-ICC     100-A   is   a   tariff    does    not,
    
      however, end our inquiry. We must determine whether a mileage
    
      guide, even though a tariff, is an exception to the general
    
      rule that a carrier who utilizes the tariff of another carrier
    
      or agent can only participate in that tariff by complying with
    
      the formalities of filing a power of attorney or concurrence
    
      with the issuing agent pursuant to section 1312.4(d).
    
           No current ICC regulation specifically addresses this
    
      point.3
    
           The ICC, however, has recently addressed the question and
    
      found that, under its regulations, reference to a mileage
    
      guide requires participation in that tariff.                  Petition of
    
      Jasper Wyman & Son, et al. re: Overland Express, Inc., ICC
    
      Case No. 40150, 8 I.C.C.2d 246 (1992).                We defer to an
    
      agency's    interpretation    of     its    governing     statute       and
    
      regulations, and affirm that interpretation if it has a
    
    
           3
            ICC regulation 49 C.F.R. § 1312.27(e) provides indirect
    authority for such a requirement.    Under section 1312.27(e), a
    carrier whose tariff refers to a second tariff that refers to a
    third tariff must either participate in the third tariff or limit
    its participation in the second tariff to terms that are not
    controlled by the third tariff. This regulation does not, however,
    expressly establish an obligation to participate in the second
    tariff.
    
    
    
                                         -8-
       reasonable basis in law. Western Coal Traffic League v. U.S.,
    
       
    719 F.2d 772
    , 777 (5th Cir. 1983) cert. denied 
    466 U.S. 953
    
       (1984).
    
                In Jasper Wyman, the Commission addressed the fundamental
    
       argument made by Freightcor:                           that section 1312.30(c)(4)4
    
       requires only that tariffs be on file in order to refer to
    
       them; consequently, a carrier, who only refers to a mileage
    
       table, is not required to participate in that tariff.                                              In
    
       supporting that contention, Freightcor points out that in
    
       adopting 1984 amendments to Commission's regulations, the ICC
    
       eliminated          the      explicit         requirement           that      carriers          must
    
       participate in a mileage guide.5
    
                The ICC, however, found that the excising of the language
    
       only removed a redundant requirement to participate in the
    
            449 C.F.R. § 1312.30(c)(4) provides
    
            Except as provided in § 1312.13(e)(2), only distance guides on file with the Commission may
            be referred to. More than one may be referred to provided the rate tariff clearly specifies
            the circumstances under which each guide will apply. An agent's tariff may refer to another
            agent's distance guide.
    
    Section 1312.13(e)(2) provides that rules published by the federal government need not be separately filed with
    the Commission.
    
    
            5
             Prior to 1984, section 1310.16 provided
    
            Only distance guides officially on file with the
            Commission may be referred to.     More than one may be
            referred to provided the rate tariff clearly specifies
            the circumstances under which each guide will apply. All
            carriers parties to distance rates referring to one or
            more distance guides must also be parties to each guide
            referred to. An agent may refer to a distance guide
            published in the name of another agent for the account of
            participating carriers also parties to the guides.
    
    When this section became effective as revised section 1312.20, the
    underlined language was omitted.
    
    
    
                                                        -9-
    tariffs of other carriers, Jasper Wyman, 8 I.C.C.2d at 251,
    
    which was set out at 49 C.F.R. § 1312.25.          Furthermore, the
    
    ICC found that the elimination of the redundant language
    
    allowed carriers, who, as private entities, could not be
    
    "parties" to government distance guides, to nevertheless use
    
    those guides. Therefore, the ICC held that the requirement of
    
    section 1312.4(d) to participate formally in the tariffs of
    
    another agent continued to apply to mileage guides.             Jasper
    
    Wyman, 8 I.C.C.2d at 252.
    
         The ICC's ruling -- that mileage guides are tariffs, that
    
    carriers must participate in mileage guides as in any other
    
    tariff, and that the 1984 amendments did not remove this
    
    requirement   to   participate    in    mileage   guides   --   has   a
    
    reasonable basis in law.    As to the first prong of the ruling,
    
    we have independently determined above that mileage guides are
    
    clearly tariffs. As to the next prong of the ruling, the
    
    Interstate Commerce Act does not distinguish between one form
    
    of tariff and another in requiring Commission regulation of
    
    joint tariffs.     49 U.S.C. § 10762(a)(1).       Moreover, the text
    
    of section 1312.30(c)(4) establishes no exception to the
    
    general obligation placed upon a carrier whose tariff is
    
    governed by the terms of the tariff of another carrier or
    
    agent: it must formally participate in the tariff of the other
    
    carrier or an agent.    As to the last prong of the holding, the
    
    Commission's view that the 1984 amendments did no more than
    
    
    
    
                                     -10-
      delete a redundant regulation is a plausible explanation for
    
      what occurred.
    
             We hold, therefore, that section 1312.4(d) requires that
    
      a carrier who refers to the mileage guide of another carrier
    
      or agent to participate in that mileage guide.   Thus, because
    
      FTHS 275 referred to the mileage rates of HGCB MF-ICC 100-A,
    
      Freightcor was required under section 1312.4(d) to participate
    
      in HGCB MF-ICC 100-A.     Freightcor filed neither a power of
    
      attorney nor a concurrence with HGCB to participate in MF-ICC
    
      100-A.   Accordingly -- under regulation 1312.4(d) -- FTHS 275
    
      was "void" as a matter of law.6
    
    
    
    
         6
          Freightcor argues that a mere irregularity in the tariff is
    no basis for the ICC to void the tariff, because the tariff is in
    substantial compliance. Freightcor cites Genstar Chemical Ltd. v.
    ICC, 
    665 F.2d 1304
     (D.C.Cir. 1981) cert. denied Nitrochem, Inc. v.
    ICC, 
    456 U.S. 905
     (1982); Davis v. Portland Seed Co., 
    264 U.S. 403
    (1924); and Berwind-White Coal Mining Co. v. Chicago & E. R. Co.,
    
    235 U.S. 371
     (1914), in support of this position.
         In Jasper Wyman, the ICC distinguished these cases as being
    suits on effective tariffs that did not conform to a regulation, as
    opposed to tariffs that are void or otherwise ineffective. (In
    Berwind-White, the tariff's failing was in not conforming to page
    format requirements; in Davis, the rate was too high, and in
    Genstar, there was an insufficient period of notice prior to the
    effective date.)   Certainly, none of the cases were based on a
    statutory or regulatory provision stating that the "tariff is void
    as a matter of law."
         We need not reach this question of substantial compliance, as
    there is no question but that Freightcor did not comply at all,
    much less substantially, with section 1312.4(d), which defines
    nonconforming tariffs as void. We therefore will concern ourselves
    with the operation and validity of section 1312.4(d) and do so
    according to the standards set out in ICC v. American Trucking
    Assos., Inc., 
    467 U.S. 354
     (1984), which is more recent than the
    cases indicated by Freightcor.
    
    
    
                                    -11-
                                        B
    
              Freightcor   argues,   however,   that,   even    if   section
    
      1312.4(d) applies to mileage guides, its tariffs are not void
    
      because the ICC is without authority to issue regulation
    
      1312.4(d) to the extent that it retrospectively voids a tariff
    
      that has been approved by, and is on file with, the ICC.
    
      Here, for example, Freightcor contends that it duly filed its
    
      tariff FTHS 275 with the ICC, and the ICC accepted that
    
      tariff; accordingly, it is an effective rate.             The ICC, it
    
      argues, has no authority to promulgate a regulation that
    
      retrospectively voids this effective tariff.
    
                                       (1)
    
              Freightcor relies on the Supreme Court's opinion ICC v.
    
      American Trucking Assos., Inc., 
    467 U.S. 354
     (1984), and its
    
      simultaneous remand of Aberdeen & Rockfish R. Co. v. U.S., 
    467 U.S. 1237
     (1984), in contending that its tariffs are not void
    
      pursuant to the terms of section 1312.4(d).              In doing so,
    
      Freightcor acknowledges that this circuit has upheld the
    
      authority of the ICC to issue regulations that void effective
    
      tariffs.     Aberdeen & Rockfish R. Co. v. U.S., 
    682 F.2d 1092
    
      (5th Cir. 1982).        It asserts, however, that by vacating
    
      Aberdeen & Rockfish, the Supreme Court precluded our reaching
    
      that result in this case.      We disagree.7
    
          7
           The Supreme Court, in Aberdeen & Rockfish, 
    467 U.S. 1237
    (1984), vacated and remanded Aberdeen & Rockfish R. Co. v. U.S.,
    
    682 F.2d 1092
     (5th Cir. 1982), for reconsideration in the light of
    
    
    
                                       -12-
             In   American   Trucking,   the    Supreme   Court   reviewed   a
    
      holding of the Eleventh Circuit that although the ICC clearly
    
      had authority to reject proposed tariffs that did not conform
    
      to rate bureau requirements, the ICC lacked the express
    
      statutory authority to reject retrospectively a tariff that
    
      had been on file with the ICC and applied by the carrier in
    
      the conduct of its business; or, in short, the appellate court
    
      held    that    the    ICC   lacked   the    authority      to   reject,
    
      retroactively, effective tariffs. American Trucking Assos. v.
    
      U.S., 
    688 F.2d 1337
     (11th Cir. 1982).
    
    
    
    
    American Trucking. Freightcor argues that this remand overruled
    our opinion rather than merely vacating it.
         In Aberdeen & Rockfish, we considered an ICC regulation
    providing that tariffs that did not contain certain symbols
    denoting rate changes would be unenforceable, even if the tariffs
    were duly filed with the ICC. We held that the ICC did not abuse
    its discretion by adopting the regulation, and it was consequently
    enforceable.   The Supreme Court granted certiorari in American
    Trucking and Aberdeen & Rockfish because the Eleventh Circuit
    opinion conflicted with our opinion in Aberdeen & Rockfish.
    American Trucking, 467 U.S. at 358. Ultimately, the Supreme Court
    reversed the Eleventh Circuit's holding that the ICC may not
    enforce rate bureau agreements by rejecting effective tariffs.
    Compare American Trucking, 467 U.S. at 370 to American Trucking,
    688 F.2d at 1354; on remand American Trucking Assos. v. United
    States, 
    744 F.2d 754
     (11th Cir. 1984), cert. denied 
    467 U.S. 1240
    .
         The Supreme Court merely vacated the judgment in Aberdeen &
    Rockfish and remanded it to this court "for further consideration
    in light of" American Trucking. Aberdeen & Rockfish, 
    467 U.S. 1237
    (1984). This court then remanded the case to the ICC where it
    became moot when the ICC repealed the regulations that were the
    subject of the suit. 49 Fed.Reg. 38641 (1985). Although it is
    certainly true that our opinion was vacated in Aberdeen & Rockfish,
    it is incorrect to assume that the Supreme Court's remand
    constituted a bar to our upholding the power of the ICC to void an
    effective tariff.
    
    
    
                                         -13-
         The Supreme Court agreed that the Motor Carrier Act, 49
    
    U.S.C. § 10762(e), does not expressly authorize the Commission
    
    to reject effective tariffs -- a holding that Freightcor
    
    suggests controls our case today. American Trucking, 467 U.S.
    
    at 364.    This holding, however, did not resolve the issue
    
    presented.     The court proceeded further to hold that the
    
    Commission has discretion to develop extrastatutory remedies,
    
    including the remedy of voiding effective tariffs.       American
    
    Trucking, 467 U.S. at 370.    In exercising this discretionary
    
    power, however, the Court prescribed a standard for the
    
    Commission to follow:
    
         To lie within the Commission's discretionary power,
         the proposed remedy must satisfy two criteria:
         first, the power must further a specific statutory
         mandate of the Commission, and second, the exercise
         of power must be directly and closely tied to that
         mandate.
    
    American Trucking, 467 U.S. at 367.      The court then applied
    
    that standard to the Commission's remedy of voiding tariffs
    
    that had become effective but later were found to be in
    
    violation of agreements among members of the particular rate
    
    bureaus.     The Commission argued that, after the tariff had
    
    become effective, the only appropriate remedy to address a
    
    later   discovered   non-conforming   tariff,   was   voiding   the
    
    tariff.    The court accepted the argument, saying
    
         [W]e agree with the Commission that its new remedy
         is a justifiable adjunct to its express statutory
         mandate.   The nullification of effective tariffs
         submitted in violation of rate-bureau agreements is
         directly aimed at ensuring that motor carriers
    
    
    
                                  -14-
                comply   with    the     guidelines    established      by
                Congress...
    
      467 U.S. at 370.      Accordingly, the Supreme Court reversed the
    
      Eleventh Circuit's holding that the ICC lacked the power to
    
      enforce rate bureau agreements by voiding effective tariffs.
    
      American Trucking, 467 U.S. at 370.
    
                                           (2)
    
                Our question is then, in the light of American Trucking,
    
      whether section 1312.4(d) -- in retrospectively voiding a non-
    
      complying tariff -- is within the ICC's statutory authority.
    
      Applying the standards set down by the Supreme Court, we will
    
      uphold the power claimed by the ICC in its regulation if (1)
    
      the     power   furthers   a     specific   statutory   mandate   of   the
    
      Commission, and (2) the exercise of power is directly and
    
      closely tied to that mandate.          American Trucking, 467 U.S. at
    
      367.8
    
                Before we apply American Trucking's two-step test, we
    
      briefly restate the power claimed by the Commission in our
    
      case today:       the authority to declare "void as a matter of
    
      law" a carrier's tariffs that refer to other tariffs without
    
      participation in the second tariff.             This power may also be
    
            8
           We believe that the American Trucking test appropriately
    governs our review of section 1312.4(d), despite the procedural and
    substantive distinctions between 1312.4(d) (governing participation
    by several carriers or agents in a common tariff) and Motor Carrier
    Rate Bureaus -- Implementation of P.L. 96-296, 364 I.C.C. 464
    (1980)(governing the conformity of carriers' tariffs to applicable
    agreements of rate bureaus to which the carriers belonged), the
    ruling of the Commission considered by the American Trucking court.
    
    
    
                                           -15-
      characterized as a power to determine whether a tariff is
    
      effective.   Jasper Wyman, 8 I.C.C.2d at 258.         In other words,
    
      section    1312.4(d)   does   not   authorize       the    ICC   to   act
    
      affirmatively to void a tariff.      This regulation defines when
    
      a tariff became effective or becomes void through the action
    
      or inaction of a carrier.
    
             The first inquiry that American Trucking requires us to
    
      make is whether this power claimed by the Commission furthers
    
      a statutory mandate. The relevant statutory mandate is in the
    
      Interstate Commerce Act, under which the Interstate Commerce
    
      Commission   has   jurisdiction     to   regulate    the    tariffs    of
    
      interstate motor common carriers.9        Congress first set forth
    
      the transportation policy it intends to govern interstate
    
      carriers in the Interstate Commerce Act, 24 Stat. 379 (1887),
    
      which has been refined in its amendments and successor acts,
    
      particularly, the Interstate Commerce Act of 1978, 92 Stat.
    
      1337, and the Motor Carrier Act of 1980, 94 Stat. 2013.               This
    
      policy is currently codified at 49 U.S.C. § 10101.               As goals
    
    
    
    
         9
          Subchapter II of section 105 of the Interstate Commerce Act
    provides, in part,
         ...[T]he Interstate Commerce Commission has jurisdiction
         over transportation by motor carrier ... to the extent
         that passengers, property, or both are transported by
         motor carrier (1) between a place in -- (A) a State and
         a place in another State; ..... (2) ... or on a public
         highway.
    49 U.S.C. § 10521.
    
    
    
                                      -16-
      of this policy, federal regulation of transportation should
    
      promote fairness and efficiency.10
    
              The courts have long recognized that a central purpose
    
      underlying       the    transportation     policy    of   the     Interstate
    
      Commerce Act is a Congressional mandate that the ICC regulate
    
      the     relationship     between   carriers    and   agents     to   prevent
    
      secrecy     in    the    negotiation     of   tariffs,    which      promotes
    
      discrimination,          favoritism,      market     inefficiency,        and
    
      artificially high rates.           See Maislin, 110 S.Ct. at 2768,
    
      quoting Armour Packing Co. v. United States, 
    209 U.S. 56
    , 81
    
      (1908).     Simply put, public disclosure of the parties to each
    
      tariff promotes fairness and helps to level the playing field
    
      on which the players must know whom they are playing with and
    
      against.      See, e.g., Kansas City Southern R. Co. v. C.H.
    
    
    
         10
          49 U.S.C. § 10101(a)(1) provides, in part,
         It is the policy of the United States Government .....
         (B) to promote safe, adequate, economical, and efficient
         transportation;
         (C)   to   encourage   sound   economic   conditions   in
         transportation, including sound economic conditions among
         carriers;
         (D) to encourage the establishment and maintenance of
         reasonable rates for transportation, without unreasonable
         discrimination or unfair or destructive competitive
         practices....
    Furthermore, the statutory policy is directed specifically to
    regulate transportation by motor carrier to promote competition and
    efficiency so that motor carriers' services will, in sum,
         (A) meet the needs of shippers, receivers, passengers,
         and consumers; (B) allow a variety of quality and price
         options to meet changing market demands and the diverse
         requirements of the shipping and travelling public...
    49 U.S.C. § 10101(a)(2).
    
    
    
                                          -17-
      Albers Comm. Co., 
    223 U.S. 573
    , 597 (1912)(secret agreements
    
      between shipper and carrier forbidden).
    
           In support of this policy, the Interstate Commerce Act
    
      specifically requires the ICC to regulate the relations among
    
      motor common carriers that have entered into joint tariffs.
    
      49 U.S.C. § 10762(a)(1) provides, in part,
    
           .... A motor common carrier shall publish and file
           with the Commission tariffs containing the rates
           for transportation it may provide under this
           subsection. The Commission may prescribe the other
           information that motor common carriers shall
           include in their tariffs. .....
    
      Thus, each motor carrier is required by statute to publish and
    
      file with the Commission all tariffs containing rates.              The
    
      Commission, moreover, is under an express mandate -- distinct
    
      from the mandates of the statute imposed on carriers -- both
    
      to determine the nature of the information the carrier must
    
      file in each tariff and to require that this information be
    
      provided. Within this mandate to require certain information,
    
      and in     the   light   of   the   policy   against   allowing   secret
    
      agreements, we believe it is necessary, practically, for the
    
      Commission to require the identification of each participant
    
      in every tariff.11
    
            11
              As well as this general mandate of the ICC to set
    requirements for joint tariffs, the ICC is specifically required to
    monitor the use of joint classifications and rates, as well as the
    division of revenues collected pursuant to charges under joint
    rates among shippers.    49 U.S.C. § 10705(b)(1) provides:
         The Interstate Commerce Commission may, and shall when it
         considers it desirable in the public interest, prescribe
         ... joint classifications, joint rates, (including
    
    
    
                                          -18-
           In sum, the congressional mandate to the ICC is that the
    
      Commission must maintain a fair and efficient transportation
    
      market, which, at the very least, does not permit secret
    
      negotiations and arrangements between carriers and shippers.
    
      Mindful of this policy, the Commission is specifically under
    
      a statutory mandate to determine what information must be
    
      provided in every joint tariff and provide mechanisms to
    
      ensure that this information is provided and is accurate.
    
      Pursuant to this obligation, we believe that there is a strong
    
      presumption that the Commission must require the disclosure of
    
      the identity of the carriers participating in every tariff.
    
           Our second step in applying the American Trucking test is
    
      to determine whether the ICC's regulation -- which requires
    
      that a tariff is void if the participating carrier fails to
    
    
    
    
         maximum and minimum rates or both), the division of joint
         rates ... for a motor common carrier of property
         providing transportation subject to the jurisdiction of
         the Commission under subchapter II of chapter 105 of this
         title [i.e. motor carriers] with another such carrier...
    Furthermore, 49 U.S.C. § 10701(a) provides:
         A rate (other than a rail rate), classification, rule, or
         practice related to transportation or service provided by
         a carrier subject to the jurisdiction of the Interstate
         Commerce Commission under chapter 105 [e.g. motor common
         carriers] must be reasonable. Divisions of joint rates
         by those carriers (including rail carriers) must be made
         without    unreasonable    discrimination    against    a
         participating carrier and must be reasonable.
    (Emphasis added.) Certainly, the Commission cannot monitor such
    joint rates and joint classifications, nor can it guard against
    unreasonable discrimination in the use of joint tariffs unless the
    participants of each tariff are identified.
    
    
    
                                   -19-
      follow the prescribed procedure12 -- is directly and closely
    
      tied to the Commission's mandate under the Interstate Commerce
    
      Act.    We find that this power is clearly tied to the statute
    
      as a necessary means of enforcing the Interstate Commerce Act.
    
      As we have noted, the Commission is required by statute to
    
      determine the standards for filing tariffs. The Commission is
    
      further required to determine the information that must be
    
      provided by every carrier participating with other carriers in
    
      a tariff.      Finally, we have noted that the Commission is
    
      expected to further the transportation policy of the federal
    
      government, which, at the very least, bars secret arrangements
    
      among   carriers   and   between    carriers   and    shippers.      The
    
      Commission was well within its mandate in dictating that every
    
      tariff must identify the carriers that are party to it.
    
             In   fulfilling   the   statutory   mandate,   the   Commission
    
      designated     participation     via   concurrence     or   powers    of
    
      attorney.     The ICC regulations prescribe a simple method for
    
      compliance with the statute and declare that tariffs that do
    
      not comply with important statutory mandates are void. Stated
    
      in another way, the regulation defines the essential elements
    
        12
          49 C.F.R. § 1312.4(d). The Commission has promulgated other
    rules that are in furtherance of this same mandate, which are not
    implicated by Freightcor's argument: Each tariff must list all
    other tariffs that govern its terms.      49 C.F.R. § 1312.13(e).
    Conversely, every tariff in which carriers participate must include
    a section listing all participating carriers.         49 C.F.R. §
    1312.13(c). The Commission has also detailed the form and scope of
    powers of attorney used by a carrier to participate in another
    carrier's or an agent's tariff. 49 C.F.R. § 1312.10(a).
    
    
    
                                         -20-
     of an effective tariff that refers to other tariffs that
    
     govern its terms.
    
              Although the use of voiding as a method of compliance is
    
     potentially     a    harsh   measure,   we   are    satisfied   that   the
    
     Commission has not exceeded its discretion by determining that
    
     tariffs are void if they fail to comply with formalities that
    
     serve important statutory purposes.13              A stricter corrective
    
     measure -- voiding tariffs and giving shippers an explicit
    
     right to overcharges -- was upheld by the Supreme Court in
    
     American Trucking to remedy non-conforming tariffs.              American
    
     Trucking, 
    467 U.S. 370
    . The public policy that the Commission
    
     seeks to enforce through the exercise of this mandate is one
    
     that has long been integral to the regulation of interstate
    
     commerce:      the prevention of secrecy in the dealings among
    
     carriers and between carriers and favored shippers.              Thus, we
    
     conclude that section 1312.4(d) was within the Commission's
    
     statutory authority.
    
                                        IV
    
              We have thus determined that section 1312.4(d) voids as
    
     a matter of law any tariff that has not complied with the
    
     regulation's        provisions.    We     have     determined   that   the
    
    
         13
          We note that, of the vast number of technical requirements
    the Commission has placed on tariffs, only the requirement of
    formal participation is enforced with the voiding mechanism. We
    find no other regulation in which the ICC currently requires a
    carrier to comply with the regulation or find that its non-
    conforming tariff is "void as a matter of law."
    
    
    
                                        -21-
    Commission has the authority to issue such a provision.
    
    Consequently, both of Freightcor's tariffs -- FSSI 282 and
    
    FTHS 275 -- are void as a matter of law because neither
    
    complied with section 1312.4(d).            Therefore, Freightcor can
    
    assert     neither   tariff   as    a   basis    for    an   action   for
    
    undercharges    under   the   filed     rate    doctrine.     Thus,   the
    
    district court erred in granting summary judgment and entering
    
    judgment in favor of Freightcor.           Accordingly, we reverse the
    
    district    court,   vacate   the    judgment,    and   remand   to   the
    
    district court with directions to enter a judgment for Vitro.
    
                                       VACATED, REVERSED, and REMANDED.
    
    
    
    
                                        -22-