Several barge operating companies petition for review of an order of the Interstate Commerce Commission (ICC). The challenged order permits Ohio Barge Lines (OBL) to provide barge service to several Chicago area steel mills belonging to OBL's parent corporation, United States Steel. The petitioners, common carriers serving the same steel mills, object to the increased competition which will result from the Commission's order.

The petitioners attack the order on four grounds. They contend first that the Commission erred in not holding hearings to determine whether the order would result in a violation of 49 U.S.C. §§ 5(14)-5(16) (1970). (These sections were added to the Interstate Commerce Act by the Panama Canal Act of 1912 and will be referred to throughout the remainder of this opinion as "The Panama Canal Act"). The petitioners also contend that the Commission erred in not following its own precedents; in making arbitrary findings unsupported by the record; and in not reopening the record to consider new evidence proffered by the petitioners. Concluding that none of petitioners' contentions warrants reversal we affirm. We shall consider each of petitioners' contentions in turn.

We turn first to the petitioners' argument that the ICC abused its discretion in not, on its own initiative, holding hearings to determine whether the contested permit would result in violations of the Panama Canal Act. That Act mandates that no company shall be permitted to operate rail and water carriers which may compete with each other.1 The statute permits the Commission to conduct hearings to determine whether such competition may arise. The hearings may be conducted either upon application of any carrier or upon the Commission's own motion. 49 U.S.C. § 5(15) (1970).2 The administrative law judge who heard this case declined to conduct such hearings on his own motion, but invited the petitioners to apply for such a hearing as a separate proceeding. The petitioners have never done so.

The petitioners nevertheless contend that the ICC should have convened hearings on its own motion. The petitioners reason as follows: United States Steel controls both OBL and a railroad which serves the same steel mills OBL will serve under its permit, so that OBL's operation under the permit may violate the Panama Canal Act. If there is such a violation OBL's application does not meet a major prerequisite to the issuance of a permit; i. e., that the issuance be "consistent with the public interest and the national transportation policy . . . ." See 49 U.S.C. § 909(g) (1970). In order to make a finding of consistency with the public interest, the petitioners argue, the Commission must investigate the potential violation of the Panama Canal Act.

We find the petitioners' argument unpersuasive for several reasons.

First, provided that an agency has considered all the relevant factors, "An agency's decision to refrain from an investigation . . . is generally unreviewable . . . ." Kixmiller v. S.E.C., 160 U.S.App.D.C. 375, 379, 492 F.2d 641, 645 (1974). The Administrative Procedure Act exempts from judicial review agency decisions which, like this one, are "committed to agency discretion by law." Id., n. 27; 5 U.S.C. § 701(a)(2) (1970). And in considering a provision of the Interstate Commerce Act almost identical to the one at issue in this proceeding, the Supreme Court flatly stated:

Whether the Commission should make an investigation of a § 13a(1) discontinuance is of course within its discretion, a matter which is not reviewable.

City of Chicago v. United States, 396 U.S. 162, 165, 90 S. Ct. 309, 311, 24 L. Ed. 2d 340 (1969) (emphasis supplied).3 We conclude that the Commission's refusal to conduct an investigation in this case is similarly unreviewable.

Of course, in order to have its decision escape review, the Commission must actually exercise its discretion. If an agency simply ignores issues whose relevance to the public interest is obvious, the agency's decision may be reversed. Michigan Consolidated Gas Co. v. F.P.C., 108 U.S.App.D.C. 409, 431, 283 F.2d 204, 226 (1960), cert. denied, 364 U.S. 913, 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960).

In the present case, however, the Commission did not simply ignore the Panama Canal Act, but squarely confronted it. That the Commission's treatment of this issue is somewhat cursory does not change our conclusion. We do not judge the Commission's orders like entries in an essay contest. Rather:

If satisfied that the agency has taken a hard look at the issues with the use of reasons and standards, the court will uphold its findings, though of less than ideal clarity, if the agency's path may reasonably be discerned . . . .

Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971).

In this case the Commission's path "may reasonably be discerned", although its language is convoluted. The Commission noted the number and complexity of elements required to make out a violation of the Panama Canal Act and concluded that there was no indication of their presence in this case. Ohio Barge Line, Inc., Extension Upper Mississippi River, No. W-406 (Sub-No. 11) ICC Div. 1, at p. 1 (January 27, 1976).

We conclude that the Commission has affirmatively exercised its discretion in refusing to investigate possible violations of the Panama Canal Act. As we have noted above, such decisions are unreviewable. We hold that the Commission's refusal to conduct an investigation (either as part of the present case or during separate hearings) is not subject to review in this court.

Even if the Commission's decision were reviewable, we would be compelled to affirm as to this issue on at least two separate grounds. First, the Commission's refusal to conduct an investigation is clearly supported by the record. The record contains no evidence of any competition between OBL and the railroads owned by United States Steel (USS). There is no evidence or allegation that OBL and any USS railroad would serve common points of both origin and destination, or that there is any cargo for which OBL and any such railroad might compete. Consequently, we cannot say that the ICC abused its discretion in declining to make further inquiry into possible competition between OBL and any railroad owned by United States Steel. When, as in this case, an agency's action is supported by an adequate basis, this court must affirm even if the court might arrive at a different conclusion were it to consider the case de novo. Greater Boston Television Corp. v. F.C.C., supra.

Finally, the petitioners raise their Panama Canal Act argument before the wrong forum. The petitioners were invited to apply to the Commission for a separate hearing and presumably may still do so.4 Having failed to exhaust this administrative remedy, petitioners are foreclosed from obtaining relief in this court. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L. Ed. 638 (1938).

In summary, we hold that the ICC's decision not to make further inquiry into possible violations of the Panama Canal Act is neither arbitrary nor subject to review in this court, and that petitioners' remedy in any event is to apply to the ICC for a hearing.

We turn next to the petitioners' contention that the ICC abused its discretion in refusing to consider evidence proffered by the petitioners after the record had been closed.

The evidence which the petitioners sought to introduce concerned the impact of permits granted to four barge operators in the Chicago area while this case was pending before the agency. The petitioners argue that the presence of four new common carriers will enable the common carriers as a group to provide service better than that offered by OBL. The ICC based its grant of a permit to OBL upon a finding that OBL would provide better service to United States Steel than had the common carriers (including petitioners) then serving United States Steel. Hence, the petitioners argue, the ICC should have considered the impact of the four new permits.

The petitioners face the heavy burden of demonstrating that the ICC abused its discretion in refusing to reopen the record. The Supreme Court directs that federal courts decline to require reopening the record "except in the most extraordinary circumstances." Bowman Transportation Company, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 296, 95 S. Ct. 438, 447, 42 L. Ed. 2d 447 (1974). The reasons for this policy are clear:

"Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promulgated. . . . If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen . . . there would be little hope that the administrative process could ever be consummated . . . ."

Id. at 294-95, 95 S.Ct. at 446 (quoting I.C.C. v. Jersey City, 322 U.S. 503, 514-15, 64 S. Ct. 1129, 88 L. Ed. 1420 (1944)).

So strong is this policy that the Supreme Court has only once remanded a case because of an agency's refusal to reopen evidentiary hearings. Id.,419 U.S. at 295, 95 S. Ct. 438 (citing Atchison, Topeka & Santa Fe Ry. Co. v. United States, 284 U.S. 248, 52 S. Ct. 146, 76 L. Ed. 273 (1932)). And the one case in which the Supreme Court did reverse (the Santa Fe case above) involved the setting of freight rates for grain throughout the western United States, based upon economic conditions which were drastically changed by the advent of the depression shortly after the close of the hearings. United States v. Northern Pacific Ry. Co., 288 U.S. 490, 492-94, 53 S. Ct. 406, 77 L. Ed. 914 (1933).

In contrast, the Supreme Court has held that no reopening of the record will be ordered in cases which involve only a few points of origin and destination and revenue loss which, "while substantial, is far less than that effected by the order in the Santa Fe proceeding." Id. at 493, 53 S.Ct. at 407.

These pronouncements by the Supreme Court impel this court to affirm the Commission's refusal to reopen the record. Our conclusion is bolstered by the petitioners' lack of diligence. The "new" evidence proffered by the petitioners concerned four permits which were granted by the ICC well before the record was closed in this case. The petitioners did not seek to introduce evidence concerning the permits until March of 1975, eight months after the record was closed and two months after the administrative law judge's initial decision. As the Supreme Court noted under similar circumstances, "(W)e think the carriers' lack of diligence in bringing this matter to the Commission's attention deprived them of any equity to complain of the refusal of their petition." Id. at 494, 53 S.Ct. at 407.

Petitioners next contend that even if the Commission did not err in refusing to hold hearings on the Panama Canal Act issue or in refusing to reopen the record, the Commission's grant of a permit to OBL is inconsistent with two sets of precedents established by Commission decisions. If the ICC has been inconsistent as alleged, then the Commission's order must be reversed as arbitrary and capricious. See Columbia Broadcasting System, Inc. v. F.C.C., 147 U.S.App.D.C. 175, 454 F.2d 1018 (1971); Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971).

The Commission addressed both sets of precedents invoked by the petitioners, and explained at length why those precedents do not apply to this case. See Ohio Barge Line, Inc. Extension Upper Mississippi River, No. W-406 (Sub-No. 11) at 17-18, 21-22 (December 20, 1974) (initial decision by administrative law judge in this case) Ohio Barge Line, Inc., Extension Upper Mississippi River, No. W-406 (Sub-No. 11) ICC Div. 1, at p. 2 (January 27, 1976) (Commission order adopting conclusions of initial decision). We see no need to reproduce the Commission's explanation; it is enough to say that we find the reasoning compelling and we therefore reject the petitioners' argument.

The petitioners argue finally that the Commission was not supported by the evidence in concluding that OBL would provide better service than the petitioners and that the resulting loss of revenue to petitioners would not impair their operations. We have carefully considered the record and conclude that the Commission's findings have ample support in the record.

Uncontroverted testimony revealed that the grant of authority to OBL would cause petitioners to lose only a tiny percentage of their revenues, and that even that loss would be made up quickly by petitioners' rapidly growing business. The Commission quite reasonably concluded that impairment of petitioners' operations would be minimal.

The Commission's conclusion that OBL would provide better service than the petitioners is also supported by the record. The record shows that OBL will dedicate its barges exclusively to United States Steel, will advance or delay sailing dates as requested, will offer special low rates for uninsured cargo, and will not levy demurrage charges. Petitioners cannot match any of these advantages. Furthermore, United States Steel has experienced difficulties in obtaining barges when requested from petitioners and has frequently had to order barges it did not need in order to ensure their availability when needed.

Testimony favorable to the petitioners reveals that they offer larger, faster tugs than OBL. In the balance, however, we conclude that the Commission was supported by substantial evidence in deciding that OBL would provide United States Steel with better service than petitioners.

In summary, we conclude that the Commission was justified in refusing to reopen the record or to convene Panama Canal Act hearings, that the Commission did not deviate impermissibly from its own precedents, and that the Commission's factual findings are supported by substantial evidence.

affirmed.

I concur with the majority, but add a word on the Panama Canal Act issues.

The Commission's brief incorrectly assumes that the dispositive issue is whether its decision not to initiate sua sponte a Panama Canal Act hearing is non-reviewable. In actuality, the more significant issue is whether the Commission could properly grant OBL its operating authority in light of the Panama Canal Act allegations. Section 309(g) of the Interstate Commerce Act, 49 U.S.C. § 909(g), provides that authority may be granted only when the Commission finds that the service to be provided will "be consistent with the public interest and the national transportation policy declared in this Act." Simply stated, the Commission could not have granted the OBL authority if petitioners' evidence demonstrated that doing so would have placed OBL in violation of the Panama Canal Act.

Petitioners claim the Commission disregarded what they characterize as a "prima facie" violation of the Canal Act. In fact, the Commission's order did briefly advert to their allegation of violation, stating it,

overlooks the complexity of (the Canal Act) issues including the fact that more than potential competition must exist and many factors such as service differences or prevailing rate differences may preclude a finding of competition. Southern Ry. Co. Section 5(15) Application, 342 I.C.C. 416, 433 (1972).

J.A. at 394. In affirming the Commission, the majority concludes that this language indicates the Commission has "squarely confronted" the Panama Canal Act. Maj.Op. at --- of --- U.S.App.D.C., at 725 of 556 F.2d.

Evidently, petitioners' theory is that the Canal Act is presumptively violated whenever a commonly owned railroad and barge operator service two common points.1 If so, then the Commission's discussion is adequate for the authority cited clearly indicates that this theory is legally deficient. Service of two common points is necessary too, but does not by itself establish a violation. On the other hand, petitioners claim to have been denied discovery on their Panama Canal Act claim. So they may have been proceeding under a proper theory but were unable to develop the facts adequately. If so, the Commission has not articulated the basis of its decision with sufficient precision to enable this court to perform its limited review function.

As the majority indicates, the basis of an agency decision need not be stated with ideal clarity. But it must be discernible from the agency's order; the reviewing court cannot be expected to scour the record to ascertain it. Citizens Ass'n of Georgetown, Inc. v. Zoning Com'n of D. C., 155 U.S.App.D.C. 233, 239, 477 F.2d 402, 408 (1973). However, in order to expedite resolution of this case, I have had the benefit of an unguided examination of the 2,300 page joint appendix. Having done so, I suspect that petitioners' theory was and was found to be legally deficient. I have doubts on this matter. But I can put aside those doubts and vote to affirm the Commission because petitioners are free still to petition the Commission for a full hearing on their Panama Canal Act allegations.2

SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and dissenting in part:

The Panama Canal Act1 forbids common control of a water carrier and a railroad with which it "does or may compete."2 This interdiction is designed to prevent railroads from curtailing waterborne and, necessarily, intermodal competition by underwriting predatory practices of captive water carriers.3 By the Commission's long-standing construction, rail and water carriers "do or may compete" if they serve, either directly or by interchange with other carriers, two or more points in common4 unless the character of their respective services is such that the prospect of competition is clearly chimerical.5 Once the Commission has found that the two carriers compete or may do so, the Act tolerates "the continuance or acquisition" of common control only if the water carrier will operate in the public interest and without "reduc(ing) competition on the route by water."6

I agree with Judge Bazelon that the policy reflected in the Panama Canal Act is subsumed in the national transportation policy articulated elsewhere in the Interstate Commerce Act,7 of which it is a component. I agree, too, that since the Commission may permit only such water-carrier operations as are consistent with the latter policy,8 it may not license service that would run afoul of the Panama Canal Act unless and until it has determined that the public interest will be furthered and competition on the water route will be preserved.9 Conversely to my colleagues, however, I think the Commission should be required to do just that in this very proceeding. So, while joining in the disposition made of the other issues raised on appeal, I would remand this case to the Commission for that purpose.10

Ohio Barge Line sought the authority in controversy in order to haul to and from three steel mills located in the Chicago area and owned by United States Steel Corporation, Ohio Barge Line's parent. United States Steel also controls several railroads having trackage so located that routes over which they operate likely encompass points in common with the expanded overwater service11 that Ohio Barge Line seeks to provide. No one pretends that the iron and steel traffic in which Ohio Barge Line would engage is unattractive to railroads.12 If, then, the co-owned rail lines do in fact participate in parallel routings, there is a prima facie violation of the Panama Canal Act, and Ohio Barge Line can be granted the requested authority only after the Commission has made the investigation13 and findings14 that the Act requires.

Petitioners asked for discovery from United States Steel as to what railroads served its Chicago-area mills15 in order to ascertain whether parallel routings exist.16 Their request was rejected by the administrative law judge17 and in turn by the Commission18 on the ground that issues stemming from the Panama Canal Act are not germane to Ohio Barge Line's application for operating authority. Both the judge19 and the Commission20 invited petitioners to initiate an independent proceeding centering on the Panama Canal Act questions,21 and thereby to hazard such harm as the allegedly illegal conduct might inflict for as long as it takes the Commission to conclude it.

Judge Bazelon and I concur in the view that exclusion of those issues from the then-pending proceeding was erroneous. But both of my colleagues would relegate petitioners to a separate proceeding if the issues are to be litigated at all. That position derives in large measure from the Commission's claim that "many factors such as service differences or prevailing rate differences may preclude a finding of competition" under the Panama Canal Act.22 This assertion, however, is not borne out either by the Commission's own precedents23 or, so far as the record reveals, by the facts of this case. Indeed, accompanying as it does the Commission's untenable limitation on the scope of the ongoing proceeding, it hardly appeals as a particularly well-conceived attempt at justification. I would remand this case to the Commission so that it may either give the Panama Canal Act issues the consideration they deserve or demonstrate that such consideration lay behind its cryptic catalogue of circumstances that "may preclude a finding of competition."24