dissenting.
I respectfully dissent because I do not agree with the majority that the proceedings should be remanded for the Commission to modify its order. I would affirm the Commission’s decision.
If I read Judge Jameson’s opinion correctly, the Commission, on remand, must modify its order so that it may require the railroads to publish their operating schedules. The railroads would not, however, be bound to maintain those schedules at the risk of a penalty at the hands of either the Commission or a court of law. In other words, schedules are to be published solely for information purposes.
One of the difficulties with the majority’s approach is that operating schedules are already being published, albeit voluntarily. Mere publication, however, whether voluntary or compelled, has no teeth to it, and *1207this is not what the Commission desires in order to improve the efficiency of our Nation’s railroad system.
The majority says that the Commission has authority under sections l(3)(a), 1(4), and 12(1) of the Interstate Commerce Act to mandate the railroads to publish operating schedules in “non-tariff form.” Apparently what this means is that a Commission rule to publish operating schedules does not fall within the rubric of “rates, fares, and charges” contained in section 6 of the Act and, therefore, it may not be enforced by investigatory/adjudicatory proceedings since only “rates, fares, and charges” (“tariff” items) are so enforceable.
Laying aside the semantic problem about the meaning of the term “tariff,” which seems to some extent to be the source of the difference in views between the majority and me, I believe that because the Commission has statutory authority outside of section 6 to require the publication of operating schedules, it follows that the maintenance of those schedules may be enforced in the same manner as rates, fares, and charges.
The petitioners’ principal contention is that the “Commission’s regulation requiring ‘tariff’ publication of railroad operating schedules ... is clearly beyond the scope of Section 6 of the Act.” Pet.Br. at 18. This contention, however, begs the question. The question is: Does the Commission have authority under any of the provisions of the Act to issue the rule under attack. Clearly it does. Section 1(4) of the Act requires the railroads to provide adequate service upon reasonable request. Section 12(l)(a) requires the Commission “to execute and enforce the provisions of this chapter.” Thus, statutory sources outside of section 6 give the Commission authority to mandate the publication of operating schedules. The recent revision and codification of the Act, enacted “without substantive change” belies petitioners’ argument that Section 6 is the only statutory source which is relevant to the Commission rule requiring the railroads not only to mandatorily publish but to maintain operating schedules. Section 12(l)(a) corresponds to 49 U.S.C. § 10321(a)—the revised version. Section 10321(a) reads:
The Interstate Commerce Commission shall carry out this subtitle. Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle. The Commission may prescribe regulations in carrying out this subtitle.
A secondary contention made by petitioners is easily answered. That the Commission’s decision has a rational basis is demonstrated by both the report of the Coordinator and the decision of the Commission. Both the Coordinator and the Commission found on the basis of the evidence submitted that the shipper has a compelling need to know how long his shipment will be in transit. The Commission’s response was to provide the remedy here challenged. It noted that the mandatory publication of schedules would not increase the railroads existing civil liability for failure to transport goods with “reasonable dispatch.”1 In sum, the Commission’s rule is bottomed on a decision that is fully supported not only by the facts but by logical and fully-articulated reasoning.
. The decision in pertinent part reads:
Both the railroads and the Coordinator expressed concern that required publication, in tariffs could expose the railroads to potential criminal and civil liability. As the Special Projects Staff pointed out, the language of the Elkins Act depends on a finding of willful violation. In addition, the railroads are already subject to civil liability for failure to transport goods with reasonable dispatch under section 20(11) of the act and the common law. Therefore, we do not find the question of liability to be a serious obstacle to the publication of freight schedules. 345 I.C.C. at 2951.