dissenting:
I respectfully dissent. In my view, the Commission reasonably decided that the best way to implement congressional intent, as embodied in section 204(e) of the Staggers Act, was to allow for individual complaints by shippers and refunds for charges that exceeded the 146% average level. The agency’s interpretation, moreover, contradicts neither the Staggers Act nor any court decision, while at the same time fully effectuating Congress’ clear intent. For that reason, I would uphold the order in question here.
The object of the recyclables portion of the Staggers Act was, of course, to “insure reasonable and nondiscriminatory rate levels on [recyclable] commodities by statutory proscription.” S.Rep. No. 470, 96th Cong., 1st Sess. 34 (1979). This court in NARI III held that Congress’ intent in this respect could be satisfied if the ICC required the railroads to have average rates of 146% of variable costs. But Congress’ goal would obviously be better achieved under the ICC’s approach than under NARI lira minimal standards. If only average rates are used, then railroads could lawfully charge many shippers rates for recyclables far above the 146% level; this of course constitutes a clear disincentive to the rail shipment of recyclables subject to such high rates. On the other hand, if individual complaints are permitted, then no recyclable materials would be shipped at a rate higher than 146% of variable costs, at least not without the potential for resort to the Commission for a fully efficacious remedy. Admittedly, this regime, as contemplated by the Commission, will result in the railroads’ receiving less than 146% of variable costs for their total shipments of recyclables; however, as this court stated in NARI III:
While it is true that [the Staggers Act’s] overall purpose is to provide the opportunity for railroads to obtain adequate earnings, it is equally true that section *265204 requires the Commission to enforce its requirement “notwithstanding any other provision of this title or any other law____” Congress deliberately chose to single out recyclable or recycled materials, other than iron or steel, for special treatment and thereby created a specific exemption from the general purposes of the Act.
660 F.2d at 799. What is equally important, section 204(e) does not prohibit rates below the 146% level; to the contrary, the provision states that the rates shall be “equal to or less than” the 146% level. Thus, the prime concern of section 204(e) is to provide incentives for increased recycling; the ICC’s approach reasonably achieves that goal, in a manner superior to a pure average-rate approach.
Indeed, I think even the railroads would admit that Congress did not appear to have an intent as to whether only average rates, or some other rate methodology, should be employed. Under elementary principles, adequately obvious so as to require little elaboration, when Congress does not express an intent, the court’s sole duty is to determine whether the agency’s action in the context of its mission is reasonable; if so, then the agency’s view must be upheld. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., — U.S. -, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984).
The Commission’s approach, moreover, would scarcely sound any financial-havoc alarm for the railroads. One of their own number, Conrail, has taken steps on its own initiative which achieves that which the ICC’s order invalidated here today would have accomplished. That is to say, if the railroads rued the notion of operating under an ICC-mandated regime of average rates plus individualized reductions, the carriers could elect, with no interference from Washington, to set rates on an individual level, just as Conrail did'. Either the Conrail method or the ICC method would better effectuate Congress’ intent than the average-rate method that the court today in effect imposes on the Commission, to the clear detriment of encouraging rail shipment of recyelables. In addition, the problem — which is concededly a real one — of the railroads actually receiving less than 146% of variable costs would likely be only of temporary duration. Once the railroads were required to pay a refund for any rate set above the 146% level, the clear incentive would be provided for the carriers, if acting rationally (as we must assume they would) to set more and more of their rates for recyelables on an individual basis; at the end of the day all railroads would likely choose to set all their rates on an individual basis, again, just as Conrail has done.
Since the court can point to nothing explicit in section 204(e) or NARI III to support its decision scuttling the agency’s order, the court seeks to justify its ruling through inference-drawing. But with all respect, none of the inferences seem to me valid, much less decisive. First, the court states that its interpretation gives meaning to the second sentence of section 204(e), while the ICC’s reading “ascribes no purpose to the second sentence.” Op. at 379. However, the ICC’s interpretation does give meaning to the second sentence in two respects. First, the provision has meaning if one reads section 204(e) as giving the Commission several options as to how to achieve Congress’ goal. One of those options would be to set rates on an average basis only. If the Commission selected that option, then the second sentence of section 204(e) ensures that no increase will occur in individual rates that are equal to or above the 146% level. On the other hand, if the ICC chose the option of setting all rates individually, or setting rates on an average basis but allowing individual reductions, then the second sentence will not have to come into operation. Under this approach, the second sentence is not meaningless, but rather comes into play if the ICC chooses one of several options that are open to it. Indeed, the court’s argument against the ICC’s interpretation would apply with equal force to a rule by the ICC that, in the future, all rates are to be set on an individualized basis. Yet, it is inconceivable that Congress meant to proscribe a *266system that assured every recyclable shipment would be at 146% of variable costs.
In addition to the foregoing, the second sentence of section 204(e) could actually come into operation under the Commission’s approach. The court assumes that shippers would protest all rates above the 146% level, but it is quite possible that a shipper might not find it worth the expense and effort to protest a particular rate, or a proposed increase for that rate, even though the increase might tend to discourage the shipment of recyelables. Nonetheless, the second sentence of section 204(e) would prohibit any increase in that rate, and thus prevent an even greater barrier to the shipment of recyelables from being erected.
The court next maintains that its interpretation of section 204(e) is more faithful to NARI III than is the Commission’s construction of the statute. But the NARI III court was faced with the entirely different problem that, under the agency’s interpretation at that time, the ICC truly read the first sentence of section 204(e) into meaninglessness. The court was obliged to demonstrate that the first two sentences of section 204(e) could be read so as not to be in conflict and so both could have effect. Thus, the court laid out one approach, consistent with the Commission’s historical practice, that the ICC could take which would give meaning to all parts of section 204(e), and at the same time effectuate Congress’ intent. 660 F.2d at 799. As I read NARI III, the court neither stated nor implied that territorial averaging was the only approach which the Commission could lawfully embrace. It certainly seems to me that the NARI III court would never have invalidated an approach which both gives meaning to all of section 204(e) and has the happy advantage of coming even closer to achieving Congress’ goal of encouraging shipments of recyelables. Indeed, it is, as we would all agree, not the job of the courts to tell an agency how to fulfill its statutory mandate; the judicial role, properly limited, is only to insure that the method the agency chooses is not arbitrary, capricious, or inconsistent with the operative statute. That standard, in my judgment, has been satisfied here.
The court nonetheless concludes that the ICC’s approach is unfair, in that the spectre of individual shipper complaints and refunds represents a sharp break with past practice and reasonable railroad industry expectations. In particular, the point is pressed that the railroads were not truly put on notice of this change in the railroads’ potential refund liability. The ICC, on the other hand, strenuously argues that it did give such notice in clear, plain English. To resolve this debate, it is necessary to quote in context the crucial section of the 1981 Decision:
As a practical matter, it would not be feasible to require the carriers to develop ratios for every individual movement. We also realize that tariff changes will be more numerous and complex if the schedule C traffic segments are used. However, to come as close as possible to applying the average figure to individual rates, we will require reductions based on the schedule C traffic segments. This method will best serve the purposes Congress intended to achieve with section 204.
Furthermore, should a shipper of nonferrous recyelables believe that his particular rate still exceeds the permissible level, he may file a complaint with the Commission.
1981 Decision, 365 I.C.C. at 307.
In this passage, the ICC set forth its decision to allow the use of average rates,' based on a certain type of data — schedule C traffic segments. Next came the key sentence, stating that a shipper still may file individual complaints. The Commission contends that this statement sent a clear message to both the railroads and shippers that individual rates greater than the 146% level would be subject to refunds even if average rates were at the mandated 146% level. That seems to me an entirely sensible reading of the sentence. The court, however, asserts again and again that this sentence is “cryptic,” in that it did not *267state what action would be taken on a complaint. See Op. at 376, 378, 381. But while the sentence may not be a model of clarity, it is hard to read the passage as having a meaning other than that ascribed to it by the ICC. The sentence does not state what will be done with a shipper’s complaint, but it seems ludicrous to suggest that the Commission was inviting shippers to file complaints that would be filed away on some bureaucratic shelf or summarily dismissed. The only reason the Commission, immediately after holding that reductions would be based on average rates, would go on to state that a shipper may “file a complaint” if the shipper believes “his particular rate still exceeds the permissible level” would obviously be that the ICC was prepared to order refunds to shippers whose individual rates were above the 146% level despite the fact that the average rates in its area were at the proper level. Certainly, shippers of recyclables had no difficulty discerning the meaning of the sentence.
Regardless of all this, the railroads should not be able to seize upon this perceived ambiguity to their great advantage. The sentence was pivotal, as it followed immediately on the heels of the ICC’s precise holding on how to set rates. Even if the railroads were uncertain as to exactly what the sentence meant, they surely could not have believed that it was favorable to their interests, encouraging as it did complaints to be filed against them. But rather than ask the ICC for clarification, the railroads merrily went on about their business, ignoring the sentence completely for a season, and ultimately repairing to this court three years later to pronounce that they were not given fair notice. I can divine no unfairness whatever to the railroads in all this; quite to the contrary, it seems manifestly unfair to permit the railroads now to use to their considerable advantage their skillfully rising above and disregarding what seems to me a crucial, if brief, part of the 1981 Decision. If a party, in truth, does not understand a decision, then the agency’s doors are open to a request for clarification; if on the other hand, the party ignores the ambiguity laden with potential for adverse impact, then the party should have to face the music when the agency ultimately renders an interpretation that is, as here, true to the original passage.
Finally, in its process of inference-drawing, the court is of the view that the revenue adequacy requirements of section 204(e) are such that, if individualized reductions were allowed, individualized assessments of the revenue-to-variable cost ratio would be required. Op. at 379-80 & n. 8. The court’s view is that section 204(e) requires that. railroads earn a sufficient return on recyclable shipments; thus “if individualized assessments were to be made, it would be as necessary to guard against subsidization as against discrimination.” Op. at 380 n. 8. But as I attempted to show previously, both section 204(e) and NARI III make it clear that revenue adequacy is at most a secondary consideration when it comes to the favored class of recyclables.
When all is said and done, the Commission has, at long last, come to an entirely defensible and reasonable construction of the pertinent statutory provision, an interpretation which faithfully effectuates Congress’ intent. Because the will of Congress with respect to encouraging the use of recyclables, as implemented by the Commission, is subverted by today’s decision, I respectfully dissent.