               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        ____________________

                             No. 91-1507
                        ____________________



FREIGHTCOR SERVICES, INC.

                                                  Plaintiff-Appellee,

                               versus

VITRO PACKAGING, INC.

                                                Defendant-Appellant.

__________________________________________________________________

        Appeal from the United States District Court for the
                     Northern District of Texas

__________________________________________________________________

                     ON PETITION FOR REHEARING*

           (Opinion June 26, 1992, 5 Cir., 1992, ___F.2d___)

                     (August 14, 1992)

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.



E. Grady JOLLY, Circuit Judge:




    *
      The plaintiff-appellee, Freightcor Services, Inc., has filed
a petition for rehearing challenging our decision and opinion dated
June 25, 1991. The petition for rehearing is granted; our earlier
opinion is hereby withdrawn, and the following opinion, which
differs from its predecessor in part III.B(2), is entered in its
place.
     In this suit a bankrupt interstate carrier, Freightcor, Inc.,

seeks undercharges1 from a shipper, Vitro Packaging, Inc.                  The

district court rejected Vitro's defense that, under the "filed rate

doctrine,"2 Freightcor's tariff was void because it referred to a

mileage guide in which Freightcor did not formally participate.

The court therefore granted summary judgment for Freightcor.               For

the reasons below, we today hold that a mileage guide is a tariff

and that a tariff that refers to another tariff without official

participation     in   that   tariff    is   void   as   a   matter   of   law.

Freightcor therefore cannot collect undercharges against Vitro

under the filed rate doctrine.

                                        I

     Freightcor, now in bankruptcy, is a common carrier operating

in interstate commerce and subject to regulation by the ICC.               From

1985 until 1987, Freightcor hauled glass bottles and containers for

Vitro.      Vitro paid rates between $.98 and $1.13 per mile.          All of

these charges were based upon rates that were not drawn from




    1
     "Undercharges" are the difference between the rate a shipper
is billed for a shipment and the amount of the rate for that
shipment according to the carrier's tariff. See Maislin Industries
U.S., Inc. v. Primary Steel, 497 U.S. 116, ___, 110 S.Ct. 2759,
2764 (1990).
        2
      The "filed rate doctrine" requires that only a tariff duly
filed with the ICC can govern the billing of shipments by common
carriers. The rate, however, must be reasonable. The filed rate
doctrine seeks to avoid secret rates negotiated between shippers
and carriers.   Maislin Industries, U.S., Inc. v. Primary Steel,
Inc., 497 U.S. 116, ____, 110 S.Ct. 2759, 2766 (1990).



                                       -2-
tariffs filed with the ICC, but instead were negotiated between

Freightcor and Vitro.

       During these years, Freightcor had two filed tariffs that are

now material.       Tariff ICC FSSI 282 applied to "Building Materials

or Supplies."        Tariff ICC FTHS 275 applied to "Freight of all

Kinds, except       Class    A   and   B    Explosives,    Household   Goods   and

Materials in Bulk."         The rate for ICC FTHS 275 was $3.00 per mile,

and the rate in FSSI 282 was considerably less.

       Both FTHS 275 and FSSI 282 computed mileage for specific

shipments according to the Household Goods Carriage Bureau ("HGCB")

MF-ICC 100-A Mileage Guide.            The parties agree that Freightcor did

not file a power of attorney or concurrence with the HGCB to

"participate" in the mileage guide.

       Freightcor declared bankruptcy and, as debtor-in-possession,

sued   Vitro   in    U.S.    district      court   for    undercharges,   or   the

difference between the rate actually charged and the rate posted in

a carrier's applicable tariff on file with the ICC.              Vitro answered

alleging, among other defenses, that the proper forum for this

dispute is the ICC, that the tariffs Freightcor sought to apply

were void because Freightcor had not participated in the mileage

guide these tariffs referred to, that an attempt to collect filed

rates after negotiating a lower rate was an unreasonable practice,

and that the rates sought were unreasonable.               Freightcor moved for

summary judgment, arguing that, under the filed rate doctrine, the

sole question for the court was whether Vitro had paid the amount




                                           -3-
of   money    required    in   the   duly    filed      tariffs    that    governed

Freightcor's shipments of Vitro's cargo.                     The court initially

denied   the    motion,    noting    that    a    factual      dispute    persisted

concerning the applicability of FSSI 282: whether glass bottles and

containers, which Freightcor had hauled for Vitro, were included

within the term "Building materials or supplies" as found in FSSI

282.

       On March 15, 1991, however, the court granted reconsideration.

The court rejected Vitro's defenses and held that FTHS 275 had

properly referred to mileage guide HGCB MF-ICC 100-A.                     The court

further held that, although there was a dispute with respect to the

applicability of FSSI 282, there was no factual dispute as to the

applicability of FTHS 275, which covered "freight of all kinds."

The court therefore held that FTHS 275 was applicable.                    It noted,

however,     that    because   Freightcor        had    also    contended,    viz.,

"conceded," that FSSI 282 was also applicable, the court would

apply the lower rate under FSSI 282 and assess Freightcor's damages

on that basis.       In so doing, the court observed it was undisputed

that when two tariffs are applicable, the proper rate to apply is

the lower rate.       Because Freightcor had contended that both FSSI

282 and FTHS 275 were applicable, it could not complain that the

district     court   applied   the   lower       rate   to     assess   undercharge

damages.     Judgment was entered for $19,199 in principal and $5,449

in prejudgment interest.         Vitro filed a motion for "new trial,"

which was denied.        Vitro then filed this appeal.




                                      -4-
                                          II

      We review de novo the summary judgment, applying the same

standards of law as those available to the district court.                     Trial

v. Atchison, Topeka and Santa Fe R. Co., 896 F.2d 120, 122 (5th

Cir. 1990).       Therefore, to sustain the summary judgment rendered

below, we must find that there is "no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law."       Fed.R.Civ.P. 56(c).

                                      III

      The heart of Vitro's appeal is its argument that the district

court    erred    in    applying   the     filed       rate   doctrine   based    on

Freightcor's tariff FTHS 275.         Vitro argues that FTHS 275 was void

under ICC regulations because, although FTHS 275 refers to HGCB MF-

ICC 100-A for the mileage of specific shipments, Freightcor did not

give to the HGCB a power of attorney in order to "participate" in

the     tariff,    as   required     by    the     Commission's      regulations.

Therefore,       contends   Vitro,    FTHS       275    is    unenforceable,     and

Freightcor may not collect undercharges based upon its rates.                     In

response, Freightcor argues that the regulations do not require it

to participate in the mileage guide in order to refer to it, and if

they do, they still cannot be used to retrospectively void a tariff

that had been otherwise duly filed and effective.

      The district court found that Freightcor

      permissibly referred to HGCB MF-ICC 100-A in tariff ICC
      FTHS 275 for the purpose of computing the distance rate.
      See 49 C.F.R. § 1312.30(c)(1).      The mileage guide in
      question complied with 49 C.F.R. § 1312.30(c)(4) because,



                                      -5-
     without dispute, it was on file with the ICC at the time
     the tariff was published and filed. The court rejects
     Vitro's arguments to the contrary.

Thus the district court did not expressly address the effect of

Freightcor's failure to file a power of attorney with respect to

the HGCB mileage guide.       We read the district court's opinion as

holding implicitly either (1) that the mileage guide is not a

tariff, or (2) that Freightcor was not required to participate in

the mileage guide, or (3) that Freightcor's mere reference to the

mileage guide amounted to participation.

                                         A

     The      ICC   regulations   make       clear   that   whether    a    carrier

"participates" in the tariff of another carrier or an agent is a

matter   of    certain   formalities.          ICC   regulation   49       C.F.R.   §

1312.4(d) mandates that

     a carrier may not participate in a tariff issued in the
     name of another carrier or an agent unless a power of
     attorney or concurrence is attached. Absent effective
     concurrences or powers of attorney, tariffs are void as
     a matter of law.

The regulations do not require that Freightcor file its power of

attorney or concurrence with the ICC; instead, it files such

documents with the HGCB, which in turn publishes the carriers

participating in MF-ICC 100-A.       Freightcor did not file a power of

attorney or a concurrence with the HGCB, and it therefore did not

participate in the HGCB MF-ICC 100-A.                The initial question for

this court is, therefore, whether under the ICC's regulations




                                     -6-
Freightcor was obligated to participate in the HGCB mileage guide

in order to refer to it in Freightcor's own tariffs.

     First, Freightcor argues that MF-ICC 100-A is only a distance

guide and not a "tariff issued in the name of another carrier or an

agent."   Freightcor asserts that formal participation is only

required if a carrier refers to another agent's tariffs in order to

designate the rate per mile governing shipments.

     We begin our inquiry, therefore, by determining whether HGCB

MF-ICC 100-A is a tariff issued in the name of an agent under

section 1312.4(d).   "Tariff" and "agent" are defined in 49 C.F.R.

§ 1312.1(b).

       (2) "Agent" means a person, association or
       corporation authorized to publish and file rates
       and provisions for a carrier's account in tariffs
       published in the agent's name.
       .....
       (35) "Tariff" means a publication containing rates,
       classification ratings, rules, regulations, and
       other provisions as amended, filed in the carrier's
       or an agent's name.

  Indisputably, the HGCB is an agent authorized to publish and

  file rates, and a mileage guide is a publication, containing

  provisions meant to be the basis for shipping bills, filed in

  an agent's name.   Furthermore, HGCB MF-ICC 100-A was filed

  with the Commission in accordance with section 1312.30(a), as

  is required in order for Freightcor to refer to the guide.   49

  C.F.R. § 1312.30(c)(4). The number "100-A" is assigned by the

  Commission to designate it as a tariff in accordance with




                                -7-
  section 1312.8(3). Freightcor's own tariffs describe HGCB MF-

  ICC 100-A as a tariff.

       We    conclude,   therefore,    that   HGCB     MF-ICC    100-A   was

  clearly a "tariff" as the word is used in section 1312.4(d).

  The conclusion    that   MF-ICC     100-A   is   a   tariff    does    not,

  however, end our inquiry. We must determine whether a mileage

  guide, even though a tariff, is an exception to the general

  rule that a carrier who utilizes the tariff of another carrier

  or agent can only participate in that tariff by complying with

  the formalities of filing a power of attorney or concurrence

  with the issuing agent pursuant to section 1312.4(d).

       No current ICC regulation specifically addresses this

  point.3

       The ICC, however, has recently addressed the question and

  found that, under its regulations, reference to a mileage

  guide requires participation in that tariff.                  Petition of

  Jasper Wyman & Son, et al. re: Overland Express, Inc., ICC

  Case No. 40150, 8 I.C.C.2d 246 (1992).                We defer to an

  agency's    interpretation    of     its    governing     statute       and

  regulations, and affirm that interpretation if it has a


       3
        ICC regulation 49 C.F.R. § 1312.27(e) provides indirect
authority for such a requirement.    Under section 1312.27(e), a
carrier whose tariff refers to a second tariff that refers to a
third tariff must either participate in the third tariff or limit
its participation in the second tariff to terms that are not
controlled by the third tariff. This regulation does not, however,
expressly establish an obligation to participate in the second
tariff.



                                     -8-
   reasonable basis in law. Western Coal Traffic League v. U.S.,

   719 F.2d 772, 777 (5th Cir. 1983) cert. denied 466 U.S. 953

   (1984).

            In Jasper Wyman, the Commission addressed the fundamental

   argument made by Freightcor:                           that section 1312.30(c)(4)4

   requires only that tariffs be on file in order to refer to

   them; consequently, a carrier, who only refers to a mileage

   table, is not required to participate in that tariff.                                              In

   supporting that contention, Freightcor points out that in

   adopting 1984 amendments to Commission's regulations, the ICC

   eliminated          the      explicit         requirement           that      carriers          must

   participate in a mileage guide.5

            The ICC, however, found that the excising of the language

   only removed a redundant requirement to participate in the

        449 C.F.R. § 1312.30(c)(4) provides

        Except as provided in § 1312.13(e)(2), only distance guides on file with the Commission may
        be referred to. More than one may be referred to provided the rate tariff clearly specifies
        the circumstances under which each guide will apply. An agent's tariff may refer to another
        agent's distance guide.

Section 1312.13(e)(2) provides that rules published by the federal government need not be separately filed with
the Commission.


        5
         Prior to 1984, section 1310.16 provided

        Only distance guides officially on file with the
        Commission may be referred to.     More than one may be
        referred to provided the rate tariff clearly specifies
        the circumstances under which each guide will apply. All
        carriers parties to distance rates referring to one or
        more distance guides must also be parties to each guide
        referred to. An agent may refer to a distance guide
        published in the name of another agent for the account of
        participating carriers also parties to the guides.

When this section became effective as revised section 1312.20, the
underlined language was omitted.



                                                    -9-
tariffs of other carriers, Jasper Wyman, 8 I.C.C.2d at 251,

which was set out at 49 C.F.R. § 1312.25.          Furthermore, the

ICC found that the elimination of the redundant language

allowed carriers, who, as private entities, could not be

"parties" to government distance guides, to nevertheless use

those guides. Therefore, the ICC held that the requirement of

section 1312.4(d) to participate formally in the tariffs of

another agent continued to apply to mileage guides.             Jasper

Wyman, 8 I.C.C.2d at 252.

     The ICC's ruling -- that mileage guides are tariffs, that

carriers must participate in mileage guides as in any other

tariff, and that the 1984 amendments did not remove this

requirement   to   participate    in    mileage   guides   --   has   a

reasonable basis in law.    As to the first prong of the ruling,

we have independently determined above that mileage guides are

clearly tariffs. As to the next prong of the ruling, the

Interstate Commerce Act does not distinguish between one form

of tariff and another in requiring Commission regulation of

joint tariffs.     49 U.S.C. § 10762(a)(1).       Moreover, the text

of section 1312.30(c)(4) establishes no exception to the

general obligation placed upon a carrier whose tariff is

governed by the terms of the tariff of another carrier or

agent: it must formally participate in the tariff of the other

carrier or an agent.    As to the last prong of the holding, the

Commission's view that the 1984 amendments did no more than




                                 -10-
  delete a redundant regulation is a plausible explanation for

  what occurred.

         We hold, therefore, that section 1312.4(d) requires that

  a carrier who refers to the mileage guide of another carrier

  or agent to participate in that mileage guide.   Thus, because

  FTHS 275 referred to the mileage rates of HGCB MF-ICC 100-A,

  Freightcor was required under section 1312.4(d) to participate

  in HGCB MF-ICC 100-A.     Freightcor filed neither a power of

  attorney nor a concurrence with HGCB to participate in MF-ICC

  100-A.   Accordingly -- under regulation 1312.4(d) -- FTHS 275

  was "void" as a matter of law.6




     6
      Freightcor argues that a mere irregularity in the tariff is
no basis for the ICC to void the tariff, because the tariff is in
substantial compliance. Freightcor cites Genstar Chemical Ltd. v.
ICC, 665 F.2d 1304 (D.C.Cir. 1981) cert. denied Nitrochem, Inc. v.
ICC, 456 U.S. 905 (1982); Davis v. Portland Seed Co., 264 U.S. 403
(1924); and Berwind-White Coal Mining Co. v. Chicago & E. R. Co.,
235 U.S. 371 (1914), in support of this position.
     In Jasper Wyman, the ICC distinguished these cases as being
suits on effective tariffs that did not conform to a regulation, as
opposed to tariffs that are void or otherwise ineffective. (In
Berwind-White, the tariff's failing was in not conforming to page
format requirements; in Davis, the rate was too high, and in
Genstar, there was an insufficient period of notice prior to the
effective date.)   Certainly, none of the cases were based on a
statutory or regulatory provision stating that the "tariff is void
as a matter of law."
     We need not reach this question of substantial compliance, as
there is no question but that Freightcor did not comply at all,
much less substantially, with section 1312.4(d), which defines
nonconforming tariffs as void. We therefore will concern ourselves
with the operation and validity of section 1312.4(d) and do so
according to the standards set out in ICC v. American Trucking
Assos., Inc., 467 U.S. 354 (1984), which is more recent than the
cases indicated by Freightcor.



                                -11-
                                    B

          Freightcor   argues,   however,   that,   even    if   section

  1312.4(d) applies to mileage guides, its tariffs are not void

  because the ICC is without authority to issue regulation

  1312.4(d) to the extent that it retrospectively voids a tariff

  that has been approved by, and is on file with, the ICC.

  Here, for example, Freightcor contends that it duly filed its

  tariff FTHS 275 with the ICC, and the ICC accepted that

  tariff; accordingly, it is an effective rate.             The ICC, it

  argues, has no authority to promulgate a regulation that

  retrospectively voids this effective tariff.

                                   (1)

          Freightcor relies on the Supreme Court's opinion ICC v.

  American Trucking Assos., Inc., 467 U.S. 354 (1984), and its

  simultaneous remand of Aberdeen & Rockfish R. Co. v. U.S., 467

  U.S. 1237 (1984), in contending that its tariffs are not void

  pursuant to the terms of section 1312.4(d).              In doing so,

  Freightcor acknowledges that this circuit has upheld the

  authority of the ICC to issue regulations that void effective

  tariffs.     Aberdeen & Rockfish R. Co. v. U.S., 682 F.2d 1092

  (5th Cir. 1982).        It asserts, however, that by vacating

  Aberdeen & Rockfish, the Supreme Court precluded our reaching

  that result in this case.      We disagree.7

      7
       The Supreme Court, in Aberdeen & Rockfish, 467 U.S. 1237
(1984), vacated and remanded Aberdeen & Rockfish R. Co. v. U.S.,
682 F.2d 1092 (5th Cir. 1982), for reconsideration in the light of



                                   -12-
         In   American   Trucking,   the    Supreme   Court   reviewed   a

  holding of the Eleventh Circuit that although the ICC clearly

  had authority to reject proposed tariffs that did not conform

  to rate bureau requirements, the ICC lacked the express

  statutory authority to reject retrospectively a tariff that

  had been on file with the ICC and applied by the carrier in

  the conduct of its business; or, in short, the appellate court

  held    that    the    ICC   lacked   the    authority      to   reject,

  retroactively, effective tariffs. American Trucking Assos. v.

  U.S., 688 F.2d 1337 (11th Cir. 1982).




American Trucking. Freightcor argues that this remand overruled
our opinion rather than merely vacating it.
     In Aberdeen & Rockfish, we considered an ICC regulation
providing that tariffs that did not contain certain symbols
denoting rate changes would be unenforceable, even if the tariffs
were duly filed with the ICC. We held that the ICC did not abuse
its discretion by adopting the regulation, and it was consequently
enforceable.   The Supreme Court granted certiorari in American
Trucking and Aberdeen & Rockfish because the Eleventh Circuit
opinion conflicted with our opinion in Aberdeen & Rockfish.
American Trucking, 467 U.S. at 358. Ultimately, the Supreme Court
reversed the Eleventh Circuit's holding that the ICC may not
enforce rate bureau agreements by rejecting effective tariffs.
Compare American Trucking, 467 U.S. at 370 to American Trucking,
688 F.2d at 1354; on remand American Trucking Assos. v. United
States, 744 F.2d 754 (11th Cir. 1984), cert. denied 467 U.S. 1240.
     The Supreme Court merely vacated the judgment in Aberdeen &
Rockfish and remanded it to this court "for further consideration
in light of" American Trucking. Aberdeen & Rockfish, 467 U.S. 1237
(1984). This court then remanded the case to the ICC where it
became moot when the ICC repealed the regulations that were the
subject of the suit. 49 Fed.Reg. 38641 (1985). Although it is
certainly true that our opinion was vacated in Aberdeen & Rockfish,
it is incorrect to assume that the Supreme Court's remand
constituted a bar to our upholding the power of the ICC to void an
effective tariff.



                                     -13-
     The Supreme Court agreed that the Motor Carrier Act, 49

U.S.C. § 10762(e), does not expressly authorize the Commission

to reject effective tariffs -- a holding that Freightcor

suggests controls our case today. American Trucking, 467 U.S.

at 364.    This holding, however, did not resolve the issue

presented.     The court proceeded further to hold that the

Commission has discretion to develop extrastatutory remedies,

including the remedy of voiding effective tariffs.       American

Trucking, 467 U.S. at 370.    In exercising this discretionary

power, however, the Court prescribed a standard for the

Commission to follow:

     To lie within the Commission's discretionary power,
     the proposed remedy must satisfy two criteria:
     first, the power must further a specific statutory
     mandate of the Commission, and second, the exercise
     of power must be directly and closely tied to that
     mandate.

American Trucking, 467 U.S. at 367.      The court then applied

that standard to the Commission's remedy of voiding tariffs

that had become effective but later were found to be in

violation of agreements among members of the particular rate

bureaus.     The Commission argued that, after the tariff had

become effective, the only appropriate remedy to address a

later   discovered   non-conforming   tariff,   was   voiding   the

tariff.    The court accepted the argument, saying

     [W]e agree with the Commission that its new remedy
     is a justifiable adjunct to its express statutory
     mandate.   The nullification of effective tariffs
     submitted in violation of rate-bureau agreements is
     directly aimed at ensuring that motor carriers



                              -14-
            comply   with    the     guidelines    established      by
            Congress...

  467 U.S. at 370.      Accordingly, the Supreme Court reversed the

  Eleventh Circuit's holding that the ICC lacked the power to

  enforce rate bureau agreements by voiding effective tariffs.

  American Trucking, 467 U.S. at 370.

                                       (2)

            Our question is then, in the light of American Trucking,

  whether section 1312.4(d) -- in retrospectively voiding a non-

  complying tariff -- is within the ICC's statutory authority.

  Applying the standards set down by the Supreme Court, we will

  uphold the power claimed by the ICC in its regulation if (1)

  the     power   furthers   a     specific   statutory   mandate   of   the

  Commission, and (2) the exercise of power is directly and

  closely tied to that mandate.          American Trucking, 467 U.S. at

  367.8

            Before we apply American Trucking's two-step test, we

  briefly restate the power claimed by the Commission in our

  case today:       the authority to declare "void as a matter of

  law" a carrier's tariffs that refer to other tariffs without

  participation in the second tariff.             This power may also be

        8
       We believe that the American Trucking test appropriately
governs our review of section 1312.4(d), despite the procedural and
substantive distinctions between 1312.4(d) (governing participation
by several carriers or agents in a common tariff) and Motor Carrier
Rate Bureaus -- Implementation of P.L. 96-296, 364 I.C.C. 464
(1980)(governing the conformity of carriers' tariffs to applicable
agreements of rate bureaus to which the carriers belonged), the
ruling of the Commission considered by the American Trucking court.



                                       -15-
  characterized as a power to determine whether a tariff is

  effective.   Jasper Wyman, 8 I.C.C.2d at 258.         In other words,

  section    1312.4(d)   does   not   authorize       the    ICC   to   act

  affirmatively to void a tariff.      This regulation defines when

  a tariff became effective or becomes void through the action

  or inaction of a carrier.

         The first inquiry that American Trucking requires us to

  make is whether this power claimed by the Commission furthers

  a statutory mandate. The relevant statutory mandate is in the

  Interstate Commerce Act, under which the Interstate Commerce

  Commission   has   jurisdiction     to   regulate    the    tariffs    of

  interstate motor common carriers.9        Congress first set forth

  the transportation policy it intends to govern interstate

  carriers in the Interstate Commerce Act, 24 Stat. 379 (1887),

  which has been refined in its amendments and successor acts,

  particularly, the Interstate Commerce Act of 1978, 92 Stat.

  1337, and the Motor Carrier Act of 1980, 94 Stat. 2013.               This

  policy is currently codified at 49 U.S.C. § 10101.               As goals




     9
      Subchapter II of section 105 of the Interstate Commerce Act
provides, in part,
     ...[T]he Interstate Commerce Commission has jurisdiction
     over transportation by motor carrier ... to the extent
     that passengers, property, or both are transported by
     motor carrier (1) between a place in -- (A) a State and
     a place in another State; ..... (2) ... or on a public
     highway.
49 U.S.C. § 10521.



                                  -16-
  of this policy, federal regulation of transportation should

  promote fairness and efficiency.10

          The courts have long recognized that a central purpose

  underlying       the    transportation     policy    of   the     Interstate

  Commerce Act is a Congressional mandate that the ICC regulate

  the     relationship     between   carriers    and   agents     to   prevent

  secrecy     in    the    negotiation     of   tariffs,    which      promotes

  discrimination,          favoritism,      market     inefficiency,        and

  artificially high rates.           See Maislin, 110 S.Ct. at 2768,

  quoting Armour Packing Co. v. United States, 209 U.S. 56, 81

  (1908).     Simply put, public disclosure of the parties to each

  tariff promotes fairness and helps to level the playing field

  on which the players must know whom they are playing with and

  against.      See, e.g., Kansas City Southern R. Co. v. C.H.



     10
      49 U.S.C. § 10101(a)(1) provides, in part,
     It is the policy of the United States Government .....
     (B) to promote safe, adequate, economical, and efficient
     transportation;
     (C)   to   encourage   sound   economic   conditions   in
     transportation, including sound economic conditions among
     carriers;
     (D) to encourage the establishment and maintenance of
     reasonable rates for transportation, without unreasonable
     discrimination or unfair or destructive competitive
     practices....
Furthermore, the statutory policy is directed specifically to
regulate transportation by motor carrier to promote competition and
efficiency so that motor carriers' services will, in sum,
     (A) meet the needs of shippers, receivers, passengers,
     and consumers; (B) allow a variety of quality and price
     options to meet changing market demands and the diverse
     requirements of the shipping and travelling public...
49 U.S.C. § 10101(a)(2).



                                      -17-
  Albers Comm. Co., 223 U.S. 573, 597 (1912)(secret agreements

  between shipper and carrier forbidden).

       In support of this policy, the Interstate Commerce Act

  specifically requires the ICC to regulate the relations among

  motor common carriers that have entered into joint tariffs.

  49 U.S.C. § 10762(a)(1) provides, in part,

       .... A motor common carrier shall publish and file
       with the Commission tariffs containing the rates
       for transportation it may provide under this
       subsection. The Commission may prescribe the other
       information that motor common carriers shall
       include in their tariffs. .....

  Thus, each motor carrier is required by statute to publish and

  file with the Commission all tariffs containing rates.              The

  Commission, moreover, is under an express mandate -- distinct

  from the mandates of the statute imposed on carriers -- both

  to determine the nature of the information the carrier must

  file in each tariff and to require that this information be

  provided. Within this mandate to require certain information,

  and in     the   light   of   the   policy   against   allowing   secret

  agreements, we believe it is necessary, practically, for the

  Commission to require the identification of each participant

  in every tariff.11

        11
          As well as this general mandate of the ICC to set
requirements for joint tariffs, the ICC is specifically required to
monitor the use of joint classifications and rates, as well as the
division of revenues collected pursuant to charges under joint
rates among shippers.    49 U.S.C. § 10705(b)(1) provides:
     The Interstate Commerce Commission may, and shall when it
     considers it desirable in the public interest, prescribe
     ... joint classifications, joint rates, (including



                                      -18-
       In sum, the congressional mandate to the ICC is that the

  Commission must maintain a fair and efficient transportation

  market, which, at the very least, does not permit secret

  negotiations and arrangements between carriers and shippers.

  Mindful of this policy, the Commission is specifically under

  a statutory mandate to determine what information must be

  provided in every joint tariff and provide mechanisms to

  ensure that this information is provided and is accurate.

  Pursuant to this obligation, we believe that there is a strong

  presumption that the Commission must require the disclosure of

  the identity of the carriers participating in every tariff.

       Our second step in applying the American Trucking test is

  to determine whether the ICC's regulation -- which requires

  that a tariff is void if the participating carrier fails to




     maximum and minimum rates or both), the division of joint
     rates ... for a motor common carrier of property
     providing transportation subject to the jurisdiction of
     the Commission under subchapter II of chapter 105 of this
     title [i.e. motor carriers] with another such carrier...
Furthermore, 49 U.S.C. § 10701(a) provides:
     A rate (other than a rail rate), classification, rule, or
     practice related to transportation or service provided by
     a carrier subject to the jurisdiction of the Interstate
     Commerce Commission under chapter 105 [e.g. motor common
     carriers] must be reasonable. Divisions of joint rates
     by those carriers (including rail carriers) must be made
     without    unreasonable    discrimination    against    a
     participating carrier and must be reasonable.
(Emphasis added.) Certainly, the Commission cannot monitor such
joint rates and joint classifications, nor can it guard against
unreasonable discrimination in the use of joint tariffs unless the
participants of each tariff are identified.



                               -19-
  follow the prescribed procedure12 -- is directly and closely

  tied to the Commission's mandate under the Interstate Commerce

  Act.    We find that this power is clearly tied to the statute

  as a necessary means of enforcing the Interstate Commerce Act.

  As we have noted, the Commission is required by statute to

  determine the standards for filing tariffs. The Commission is

  further required to determine the information that must be

  provided by every carrier participating with other carriers in

  a tariff.      Finally, we have noted that the Commission is

  expected to further the transportation policy of the federal

  government, which, at the very least, bars secret arrangements

  among   carriers   and   between    carriers   and    shippers.      The

  Commission was well within its mandate in dictating that every

  tariff must identify the carriers that are party to it.

         In   fulfilling   the   statutory   mandate,   the   Commission

  designated     participation     via   concurrence     or   powers    of

  attorney.     The ICC regulations prescribe a simple method for

  compliance with the statute and declare that tariffs that do

  not comply with important statutory mandates are void. Stated

  in another way, the regulation defines the essential elements

    12
      49 C.F.R. § 1312.4(d). The Commission has promulgated other
rules that are in furtherance of this same mandate, which are not
implicated by Freightcor's argument: Each tariff must list all
other tariffs that govern its terms.      49 C.F.R. § 1312.13(e).
Conversely, every tariff in which carriers participate must include
a section listing all participating carriers.         49 C.F.R. §
1312.13(c). The Commission has also detailed the form and scope of
powers of attorney used by a carrier to participate in another
carrier's or an agent's tariff. 49 C.F.R. § 1312.10(a).



                                     -20-
 of an effective tariff that refers to other tariffs that

 govern its terms.

          Although the use of voiding as a method of compliance is

 potentially     a    harsh   measure,   we   are    satisfied   that   the

 Commission has not exceeded its discretion by determining that

 tariffs are void if they fail to comply with formalities that

 serve important statutory purposes.13              A stricter corrective

 measure -- voiding tariffs and giving shippers an explicit

 right to overcharges -- was upheld by the Supreme Court in

 American Trucking to remedy non-conforming tariffs.              American

 Trucking, 467 U.S. 370. The public policy that the Commission

 seeks to enforce through the exercise of this mandate is one

 that has long been integral to the regulation of interstate

 commerce:      the prevention of secrecy in the dealings among

 carriers and between carriers and favored shippers.              Thus, we

 conclude that section 1312.4(d) was within the Commission's

 statutory authority.

                                    IV

          We have thus determined that section 1312.4(d) voids as

 a matter of law any tariff that has not complied with the

 regulation's        provisions.    We     have     determined   that   the


     13
      We note that, of the vast number of technical requirements
the Commission has placed on tariffs, only the requirement of
formal participation is enforced with the voiding mechanism. We
find no other regulation in which the ICC currently requires a
carrier to comply with the regulation or find that its non-
conforming tariff is "void as a matter of law."



                                    -21-
Commission has the authority to issue such a provision.

Consequently, both of Freightcor's tariffs -- FSSI 282 and

FTHS 275 -- are void as a matter of law because neither

complied with section 1312.4(d).            Therefore, Freightcor can

assert     neither   tariff   as    a   basis    for    an   action   for

undercharges    under   the   filed     rate    doctrine.     Thus,   the

district court erred in granting summary judgment and entering

judgment in favor of Freightcor.           Accordingly, we reverse the

district    court,   vacate   the    judgment,    and   remand   to   the

district court with directions to enter a judgment for Vitro.

                                   VACATED, REVERSED, and REMANDED.




                                    -22-
