American Trading Transportation Company, Inc. v. United States of America

SILBERMAN, Circuit Judge,

dissenting:

The court holds that MarAd erred in permitting the temporary transfer into one segment of the Alaskan oil trade of two large oil tankers (Very Large Crude Carriers, or VLCCs) whose construction was subsidized by the Federal Government pursuant to Title V of the Merchant Marine Act of 1936, codified as amended at 46 U.S.C. § 1151 et seq. (1982). The majority determines that the Secretary’s seemingly sweeping discretion to consent to such transfers “when necessary or appropriate to advance the purposes of [the Merchant Marine] Act” is circumscribed by a “special concern” that unsubsidized vessels enjoy vis-a-vis “large, subsidized vessels,” Maj. Op. at 948. Accordingly, the majority concludes that MarAd did not adequately consider an argument in opposition to these temporary transfers advanced by certain domestic carriers whose construction was not directly subsidized.1 Because I find nothing in the Act, its legislative history, or applicable precedent supporting the majority’s limitations on the Secretary’s discretion, and, in any event, ample indication of MarAd’s consideration of the unsubsidized carriers’ arguments and interests, I am obliged to dissent.

The Merchant Marine Act of 1936, 46 U.S.C. § 1101 et seq. (1982), declared it necessary for national defense and the development of commerce that the United States possess a merchant marine that would at all times suffice to carry both our domestic maritime trade and a substantial portion of our foreign maritime trade. The U.S. merchant marine was to be capable of serving as a naval and military auxiliary in time of war or national emergency, and it was to be composed of “the most suitable types of vessels ... manned with ... citizen personnel,” insofar as practicable owned by American citizens and operated under the flag of the United States. Id. § 1101 (emphasis added). The Secretary of Commerce2 was given broad discretion in administering the battery of grants and loans authorized by the statute to effectuate these goals, including operating subsidies, loan guarantees, a vessel-acquisition program, and the construction subsidies here at issue. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 585-86, 100 S.Ct. 800, 808, 63 L.Ed.2d 36 (1980).

To be sure, the 1936 Act was passed and amended against the backdrop of the Jones Act, 46 U.S.C. § 883 (1982). That earlier statute, passed in 1920, sought to protect American shipping and shipbuilding industries from foreign competition by reserving our domestic maritime trade for American-built and American-owned vessels. See supra note 1. The 1936 Congress recognized “from the outset that substantial limits would have to be placed upon the entry of *952subsidized vessels into the domestic trade.” Seatrain, 444 U.S. at 586, 100 S.Ct. at 808. As a result, both the 1936 Act and the 1938 amendments incorporate mechanisms to reduce the competitive impact of temporary transfers upon the unsubsidized fleet.

Section 506 of the Act originally authorized the Secretary, inter alia, to permit temporary transfers of subsidized vessels to the domestic trade for periods of three months, and only in cases of “emergency.” 49 Stat. 1999-2000 (1936). In 1938, with war clouds gathering, Congress extensively amended the Act and, directly pertinent to the case at bar, modified Section 506 to permit the Federal Maritime Commission, at that time the designated statutory administrator, to “consent in writing to the temporary transfer of [subsidized vessels into the domestic trade] for periods not exceeding six months in any year, whenever the Commission may determine that such transfer is necessary or appropriate to carry out the purposes of this Act.” 52 Stat. 958-59 (1938) (emphasis added). If the emergency language had remained unamended, the majority’s holding that the Secretary’s discretion to consent to temporary transfers is severely circumscribed would have support.3 But that is not the case. Accordingly, the Supreme Court has described the power to consent to such temporary transfers under the Act as amended as a “highly discretionary administrative decision.” Seatrain, 444 U.S. at 589, 100 S.Ct. at 810.

The extension of the transfer period and the substitution of a statutory standard vesting much broader discretion in the Secretary were balanced, however, by further amendments affording new protections to the unsubsidized fleet. The Secretary’s consent was conditioned upon cessation of the transferred vessel’s operating-differential subsidies (ODS) during the period of operation in the domestic trade, and upon repayment by the transferred carrier of a percentage of the vessel’s construction-differential subsidy (CDS) directly proportional to the time spent in the domestic trade relative to its economic life.4

Although the 1936 and 1938 enactments balanced the interests of subsidized vessels temporarily transferred into the domestic trade against the interests of unsubsidized vessels, Congress did not expressly refer to the Jones Act in Section 506, much less require, as does the majority, that the Secretary explicitly consider the impact of temporary transfers on affected portions of the domestic fleet.5 To the extent that the conflicting interests and policies at stake were not completely resolved by the 1936-1938 enactments, Congress confided the *953task of reconciling these tensions to the agency charged with administering the statute by means of an extraordinarily sweeping delegation. See supra p. 944.

While nothing in the statute requires the Secretary to adopt any particular procedures to govern her consent to temporary transfers,6 in 1977, following notice and comment, she published a regulation setting forth a framework for considering applications for temporary transfers into the Alaskan oil trade. See 42 Fed.Reg. 21,821 (1977); 42 Fed.Reg. 33,035 (1977), codified at 46 C.F.R. Part 250. That regulation, at the time acceptable to the then-existing parties in this action,7 was intended to ensure adequate tanker transport for Alaskan North Slope oil brought to the port of Valdez through the soon-to-be completed Trans-Alaska Pipeline. 42 Fed.Reg. 33,035 (1977). The regulation embodied the Secretary’s express determination that “suitable tank vessels built without CDS appear to be available to serve the Alaska-West Coast trade and Panama Canal-Atlantic/Gulf Coast trade, but that CDS vessels appear to be required to serve the Alaska-Panama Canal trade.” Id. The Secretary expressly found that “a suitable vessel for the Alaska-Panama Canal trade is one of at least 100,000 deadweight tons.” Id. The regulation accommodated the economics of the shipping trade by establishing expedited consideration by the Secretary of any application for temporary transfer by a “suitable” (over 100,000 dwt) CDS tanker. See 46 C.F.R. § 250.4 (1985). Any unsubsidized tanker could protest a proposed temporary transfer, and the Secretary would be obliged to consider any such protest. See id. Indeed, the regulation went so far as to grant a veto over such applications to “suitable” (over 100,000 dwt) unsubsidized tankers available over the proposed six-month period. Apart from the protections for the unsubsidized tanker fleet built into the statute, then, the Secretary exercised her discretion to limit transfers of CDS tankers to one-third of one type of domestic trade, imposed identical suitability restrictions on both CDS applicants and unsubsidized protestants, granted “suitable” protestants a veto over temporary transfers not required by the statute, accorded all unsubsidized shippers opportunity for protest, and required the Secretary to consider all such protests. It is hardly surprising that the unsubsidized shippers had no objections to the regulations when promulgated.

When appellants protested these proposed temporary transfers, MarAd did not, however, merely rest on its regulation to reject their contentions. Opinion of the Maritime Administrator at 42-45, 52-60 (Nov. 16,1984) (J.A. at 63-66, 73-81) (“Mar-Ad Opinion”). The agency noted, reasonably, that an expedited proceeding was not the appropriate forum for arguments that a seven-year regulation was void ab initio. Id. at 42 (J.A. at 63); see supra note 7. It also maintained that the agency’s original Federal Register notice, together with contemporaneous and subsequent agency decisions, adequately provided a statement of the regulation’s basis and purpose. Id. at 43 (J.A. .at 64). Still, despite its objections to the appellants’ choice of forum and *954“standing,” 8 the agency set out an extended discussion of the substantive validity of the regulation both when promulgated and in the light of changed market conditions. Id. at 52-60 (J.A. at 73-81).

MarAd considered and rejected appellants’ contention that smaller tankers should be deemed suitable for even the long leg of the Alaskan oil carriage. The agency found that “large size CDS VLCC tankers effect substantially lower rates than vessels under 100,000 DWT.” Id. at 53 (J.A. at 74). MarAd noted that as late as 1983 it had “specifically analyzed” the economics of the Valdez-Panama run and found that ships of less than 100,000 dwt “could not be considered to be competitive with the VLCC’s in the Alaska/Panama trade and that it would be unfair to both the charters and the ultimate consumer to require the charter of all available small vessels, even though they are unsuitable for the trade.” Id. at 54 (J.A. at 75). Mar-Ad, moreover, reviewed supervening changes in market conditions which might have undermined the vitality of the regulation, such as the significant deterioration of the coastwise and intercoastal tanker trades, id. at 44 (J.A. at 65), the construction of the trans-Panama pipeline, id., and the annual percentages of Valdez-Panama oil cargoes carried by below-100,000 dwt tankers. Id. at 55-56 (J.A. 76-77). The agency’s judgment that it “is not aware of any change in shipping conditions that alter these fundamental conclusions,” id., reflects an expertise which we are not at liberty to ignore. Finally, the agency specifically found that the disputed transfers were “necessary” (within the meaning of Section 506) because of the “anticipated surge of oil supply from the Kuparuk fields of between 80,000 and 100,000 barrels per day ...,” id. at 58 (J.A. at 79), and that this “[necessity ... does not require forcing on transportation users and consumers unsuitable vessels.” Id. at 59 (J.A. at 80). In this context, the agency explicitly addressed the effect of the two transfers on the whole unsubsidized tanker fleet, noting the overarching protections built into the statute and regulation: “The permission is limited to the Alaska-Panama Canal trade and the temporary nature of the approval tends to limit any impact on unsubsidized Jones Act tankers.” Id. at 60 (J.A. at 81).

The agency’s explicit consideration of the interests of smaller unsubsidized tankers (which, arguably, exceeds statutory requirements) goes for naught, however, because the majority finds that it ignored the appellants’ “bumping” argument. The gist of this argument is that large unsubsidized tankers did not exercise their veto right over the two applications at issue here because those tankers are profitably employed in the remaining two short-haul segments of the Alaskan oil trade, “bumping” appellants’ smaller tankers out of opportunities on these routes.9 In other words, *955although the temporary transfers do not directly cause the bumping, they are predicated on a bumping by unsubsidized large tankers that has already taken place, and the temporary transfers somehow reinforce the bumping.10 At bottom, the argument is that temporary transfers cause the domestic fleet discomfort and, in this case, appellants ultimately feel the discomfort most intensely. The majority treats this argument as novel and commands MarAd to consider it.11

It follows, however, as the night the day, that any time partially subsidized competitors are permitted to transfer temporarily into competition with unsubsidized competitors, the unsubsidized competitors will to some degree be competitively disadvantaged. (Indeed, any added competition will alter, to some extent, the balance of supply and demand.) And basic economics further teaches that those competitors most vulnerable to added competition are the highest-cost competitors. As the agency has repeatedly determined, small tankers are, at least vis-a-vis large tankers, high-cost competitors. See, e.g., MarAd Opinion at 53 (J.A. at 74); Order of the Assistant Secretary for Maritime Affairs, Docket No. S-682 at 3 (Jan. 9, 1981) (J.A. at 105); 42 Fed.Reg. 33,035 (1977). Surely, Congress in 1938 contemplated that temporary transfers (with or without the 1977 regulation) would cause portions of the domestic fleet some competitive discomfort. That is simply one of the inevitable tradeoffs that Congress authorized the agency to make. Therefore, that the agency’s policies may favor large tankers over small is no grounds to challenge the Secretary’s action under this statute. We must bear in mind that the Act delegated to the Secretary the responsibility for determining what vessels were “suitable” for a multipurpose merchant marine. The agency has determined that “[t]he trade is enhanced by temporary employment of large, modern, efficient tankers.” MarAd Opinion at 59 (J.A. at 80). This determination, embodied in the regulation and the agency’s opinion, is, viewed in the harshest light, a rather obvious example of ‘a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.’ ” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984) (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961). See also United States v. City of Fulton, — U.S. —, —, 106 S.Ct. 1422, 1428, 89 L.Ed.2d 661 (U.S. 1986).

This court, of course, has no authority— either directly, or indirectly by ordering the Secretary to “consider” appellants’ arguments — to seek a redistribution of business opportunities among types of vessels or companies. To be sure, the majority does not instruct MarAd on the result it must reach: the agency is merely required explicitly to measure the extent to which unsubsidized vessels will be disadvantaged when temporary transfers are proposed, and to weigh that disadvantage against whatever benefits are to be gained. Maj. Op. at 950. This finely calibrated cost-benefit analysis must, according to the majority, be conducted either through regulation or *956by adjudication. Maj. Op. at 950.12 This strikes me as nothing less than judicial amendment of a simple statutory authorization. I do not see how Section 506, as the majority interprets it, could any longer be described as delegating to the Secretary a “highly discretionary administrative decision.” Seatrain, 444 U.S. at 589, 100 S.Ct. at 810.13 Requiring additional procedure (in the context of requiring consideration of all arguments presented), moreover, has substantive consequences, cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978) (footnote omitted): the Secretary will naturally be more reluctant to consent to temporary transfers when the cost in agency resources of doing so will be so substantially increased. Indeed, although the majority insists that the Secretary need not perform this careful cost-benefit analysis with respect to every temporary transfer, the logic of the majority opinion strongly suggests otherwise. Each proposed temporary transfer will surely have a somewhat different economic impact and therefore, if protested, would require MarAd to explore its unique market effect down a lengthy chain of competitive causation, until the agency finds the proximate injured party.14

Because I cannot find the majority’s requirements in the broad delegation of the statute, I would affirm the Secretary’s decision, and that of the district court.

. The Jones Act, 46 U.S.C. § 883 (1982), sought to protect our shipping and shipbuilding industries by requiring that this country’s domestic shipping trade be carried exclusively in vessels built in the United States and owned by United States citizens. See Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 574-75 & n. 1, 100 S.Ct. 800, 802 & n. 1, 63 L.Ed.2d 36 (1980). That requirement creates a higher-than-market demand for American shipping, whose construction and operating costs exceed those of foreign competitors, see id. at 574, 100 S.Ct. at 802, and this demand ensures that credit for American ship construction and operation is available at lower interest rates than would be the case in the absence of the Jones Act exclusion. Our domestic-trade shipping therefore enjoys an indirect construction and operating subsidy conferred by the Jones Act, as opposed to the direct construction-differential subsidy (CDS) and operating-differential subsidy (ODS) granted to our foreign-trade shipping by the 1936 Act.

. This authority has been transferred to the Secretary of Transportation, and to her delegate, presently the Maritime Administration (MarAd). I will refer to the statutory administrator as "the Secretary” for convenience.

. The appellants argued before MarAd, and reiterate before us, that the emergency requirement was somehow retained under the 1938 amendment despite its adoption of far more sweeping terms. See Brief for Appellants at 7-9; Opinion of the Maritime Administrator, Dockets S-761, S-762 and S-763, at 59 n. 11 (Nov. 16, 1984) (J.A. at 80) ("MarAd Opinion”). As the agency noted, however, both the express terms of the statute and consistent agency interpretations of it since 1938 eviscerate this argument. Id.

. As Justice Brennan noted in a footnote in Seatrain, the proportionate repayment of the subsidy does not completely neutralize the effects of the foreign-trade vessels’ CDS: Congress did not require the transferred subsidized carrier to pay an added amount reflecting the interest on the loans which would have been necessary to finance unsubsidized construction. 444 U.S. at 588 n. 30, 100 S.Ct. at 810 n. 30. Presumably, for that reason Congress restricted the temporary transfers into the domestic market to six months in any one year.

.The majority suggests that protection of the unsubsidized fleet is "a principal goal of the legislation.” Maj.Op. at 948. Protection of the unsubsidized fleet is certainly the priority — indeed the sole raison d’etre — of the Jones Act, but the Merchant Marine Act of 1936 furthers other goals. Under Section 506 as amended in 1938, the Secretary may, of course, consider the competitive interests of the domestic unsubsidized fleet. Atlantic Richfield Co. v. United States, 774 F.2d 1193 (D.C.Cir.1985), holds that the Secretary has authority under the regulation at issue here to condition a temporary transfer of a subsidized VLCC into the Alaskan trade on the continued employment of four “suitable" (over 100,000 dwt) unsubsidized tankers during the applicable six-month period. Atlantic Rich-field is decidedly not authority for the proposition that the Secretary must consider the interests of unsubsidized vessels she does not regard as "suitable.”

. As MarAd observed in its original disposition of this case, “There is no requirement that there be any rule to govern action on section 506 waivers for the Alaska-Panama Canal operations. [MarAd] could and has proceeded without rule-making on applications to operate CDS tankers in that trade for six months or less." MarAd Opinion at 43 (J.A. at 64) (footnote omitted).

. While appellants would not be estopped from challenging the application of the regulation if they could show that its application were now inconsistent with the purposes of the statute, their claim that the regulation was void ab initio because of its defective statement of basis and purpose is more vulnerable. See Aluminum Co. of America v. ICC, 761 F.2d 746, 751 (D.C.Cir.1985) (summarizing this Circuit’s inconsistent holdings). I find the majority’s dicta on this point unhelpful: appellants do not challenge the statement of basis and purpose as “interpret[ed]” or "as currently being used in a particular proceeding.” Maj.Op. at 950 n. 11. All their arguments concern the statement as published and the circumstances immediately surrounding its publication. Brief for Appellant at pp. 35-43.

. The "standing” issue seems to me to be a tempest in a teapot. Granted, the Administrator’s opinion misuses the term, MarAd Opinion at 51 (J.A. at 72), but on the next page the Administrator makes clear what he means: under the regulation appellants had standing to protest but not the right to veto temporary transfers of subsidized tankers, because the vessels they own weigh less than 100,000 dwt. Id. at 52 n. 8 (J.A. 73). Surely an administrative agency can be forgiven some confusion as to the meaning of the term as long as nothing significant turns on that confusion; After all, the judiciary also has difficulty with the concept.

The majority’s treatment of the agency’s misstep seems more significant. By viewing ”[t]he section of Marad’s opinion concerning the protests of small, unsubsidized tankers [as] devoted entirely to a discussion of why they lack standing," Maj.Op. at 947, the majority ignores the agency’s examination of the substance of the appellants' claims. The majority’s interpretation of the agency’s harmless confusion over the legal term "standing” leads it to brush aside reasoning which should be read as addressing the merits of the case on the basis of agency expertise. See, e.g., MarAd Opinion at 44, 52-60 (J.A. at 65, 73-81).

. The majority unaccountably assumes that MarAd need only consider the effect of temporary transfers on the three segments of the Alaskan trade. I can see no reason why “bumping” should occur only within this trade, however. Presumably tankers bumped out of the Alaskan trade together would bump other unsubsidized vessels out of non-Alaskan tanker routes, and further indirect effects may occur in non-tanker unsubsidized commerce. The majority’s reading of the 1936 Act as mandating "special concern” for the unsubsidized fleet, Maj. Op. at *955948-49, combined with the applicable regulation’s definition of "competitor" as any unsubsidized U.S.-flag vessel, see 46 C.F.R. § 250.2 (1985), suggests that MarAd would be obliged to accept comments from, and give "special concern" to, the interests of any unsubsidized vessel (tanker or not) which alleged the indirect competitive effects which the majority classes under the rubric of "bumping.”

. The majority suggests, without any record support that I can find other than assertions in appellants’ brief, that companies owning both subsidized and unsubsidized VLCCs are in some undesirable manner manipulating this process. See Maj.Op. at 949.

. The record is not clear as to whether appellants presented their bumping argument to the Secretary, as it was presented to this court. It seems implicit in their protests, however — just as the Secretary’s response to it is implicit in the regulation and opinion. See MarAd Opinion at 54 (J.A. at 75). (“[I]t would be unfair to both the charters and the ultimate consumer to require the charter of all available small vessels, even though they are unsuitable for the trade.”) (citation omitted).

. Given the subtlety of this inquiry, should MarAd choose to proceed by adjudication it is unlikely that a competent analysis could be completed by the end of the six-month term of the transfer, much less within the thirteen working days mandated by the present regulation. See 46 C.F.R. § 250.4 (1985).

. Seatrain, cited by the majority as support, seems to me to cut against the majority's position. There the Supreme Court, reversing this court, held that the Merchant Marine Act delegated to the Secretary discretion so broad as to encompass the authority to permit the permanent transfer of a subsidized tanker into the domestic fleet, upon full reimbursement of the CDS, a power not specifically granted in the statute. This case, it would seem, presents far stronger grounds for sustaining the Secretary’s exercise of her discretion.

. Indeed, the majority has suggested no persuasive reason why the agency would not, under its holding, be required to perform a similar inquiry for the subsidized fleet whenever it received an application for a temporary transfer. Maj.Op. at 948 n.6. Surely subsidized vessels in our foreign commerce could be disadvantaged by failure to allow a competing subsidized vessel to transfer into the domestic trade. The agency would therefore seem, under the majority’s logic, to be required to consider the economic consequences of granting an application for a temporary transfer on the totality of the unsubsidized tanker and non-tanker fleet, on all domestic routes, and to consider the economic consequences of not granting it on the totality of the subsidized tanker and non-tanker fleet, on all foreign routes. The agency’s task would be limited to considering the impact on the domestic fleet only if the Act gave a clear priority to the interests of the unsubsidized fleet. But the Act explicitly found necessary a merchant marine sufficient for both our domestic maritime commerce and a substantial portion of our foreign maritime commerce. 46 U.S.C. § 1101.