authority under § 223 to provide rules and regulations for the weekly or monthly settlement of the carrier's accounts. Similarly, in an analogous situation, the ICC has utilized demurrage charges to be paid to the shippers after an initial period of free time, to encourage the prompt use and return of freight cars. Demurrage Rules and Charges Nationwide, 340 I.C.C. 83 (1971), aff'd sub nom., General Mills, Inc. v. United States, 364 F.Supp. 1278 (D.Minn.1973) (three-judge court) ((authority based on 49 U.S.C. § 1 (15))).
Plaintiff also ignores the pervasive impact of the Commission authority over the total transportation system, recently emphasized by the Supreme Court in Interstate Commerce Commission v. Oregon Pacific Industries, Inc., 420 U.S. 184, 95 S. Ct. 909, 43 L. Ed. 2d 121 (1975). In that case, the Court unanimously upheld the Commission's authority under § 1(15), to require a shipper, holding lumber cars at reconsignment points for more than five days, to pay the sum of the rates from the origin point, to the hold point, to the destination point.
Although in this case the Commission is not invoking its emergency powers under § 1(15), as it did in Oregon Pacific, we hold that the Commission had the power to promulgate these credit regulations under § 223.
(2) We hold that, under the circumstances of this case, the Commission's notice of proposed agency action was adequate and that plaintiff was not deprived of any opportunity to participate fairly in the proceedings before the Commission.
Under 5 U.S.C. § 553, the agency's notice to the public is sufficient if the substance of the proposed agency action is presented. California Citizens Bank Ass'n v. United States, 375 F.2d 43, 48-49 (9th Cir.), cert. denied, 389 U.S. 844-45, 88 S. Ct. 96, 19 L. Ed. 2d 112 (1967). See also American Airlines v. C.A.B., 123 U.S.App.D.C. 310, 315, 359 F.2d 624, 629 (1966) (en banc).
While the notice of proposed rule-making stated only that the ICC would consider whether to impose a penalty charge on a recalcitrant shipper, the ultimate decision of the ICC to impose a mandatory extension of credit and service charge does not rise to the level of violating the fair notice provisions of § 553. The Commission, in its notice, had alerted the household goods industry that the existing credit regulations might be modified or changed, and the mandatory requirements were well within the intendment of the hearings.
In our view, the Commission's decision amending 49 C.F.R. § 1322.1 was determined within a proper framework, and plaintiff was thus afforded adequate notice.
(3) Finally, we discern a rational basis in the Commission's decision. See Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 284-86, 95 S. Ct. 438, 42 L. Ed. 2d 447 (1974). There is no basis to characterize the Commission's decision as 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' § 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). To the contrary, there is ample evidence in the record to support the ICC finding that the seven-day free credit period provided in the old rule was being abused. The national account shippers, considered as a group, had not been paying their accounts within the seven-day period, and the carriers, in turn, had been ignoring the delay in payments, presumably because the national accounts were so lucrative. The Commission, in its expertise, found that prompt payment of accounts was necessary to preserve strong competition among the carriers for the traffic of the national account shippers. Any extension of the free credit period, the ICC noted, would have an adverse effect on some carriers since they, as an industry, operate on a high cash flow. Indeed, the ICC laid the primary blame on this late payment situation directly on the shippers who demanded a pre-audit of billing documents before payment, rather than a post-audit. Moreover, the Commission stated that any extension of the free credit period would be inconsistent with the mandate of § 223 that such regulations 'prevent unjust discrimination' since ordinary household and smaller shippers do not enjoy any free credit period and must pay the carrier's charges before the shipment is unloaded. 118 M.C.C. 795-96.
Viewed in that perspective, we cannot say that the Commission, applying its long acquired expertise in the transportation field, abused its discretion in requiring carriers, who have extended seven days free credit to a shipper, to impose a 1% Service charge on such shipper if his account is not paid during that period. It appears entirely reasonable for the Commission to eliminate discrimination in the household goods industry by inducing credit shippers, regardless of size, to render prompt payments and by penalizing those shippers who fail to do so.
Accordingly, it is, by the Court, this 11th day of July, 1975,
Ordered, adjudged and decreed that the Interstate Commerce Commission decision in Payment of Rates and Charges of Motor Carriers Credit Regulations -- Household Goods be, and the same is hereby, affirmed; and it is further
Ordered, adjudged and decreed that plaintiff's motion for summary judgment be, and the same is hereby, denied; and it is further
Ordered, adjudged and decreed that defendants' motion for summary judgment be, and the same is hereby, granted; and it is further
Ordered, adjudged and decreed that judgment be, and the same is hereby, entered in favor of the defendants in the above-entitled action.