Bauer, Circuit Judge, Davis, Judge,*fn* and Coffey, Circuit Judge.
This is a proceeding to review two decisions of the Interstate Commerce Commission ("ICC") in which the Commission ordered the petitioners, five railroad carriers, to refund the penalty portion of certain demurrage charges to Farmers Export Company ("Farmers Export"), the intervenor. Jurisdiction rests in this court under 28 U.S.C. § 2321(a) and § 2342(5) (1976 & Supp. IV 1980). We affirm.
Railroads assess demurrage charges*fn1 against shippers and receivers for detaining freight cars beyond certain periods known as "free time." The demurrage concept embraces both compensatory and penalty elements. We are concerned only with the penalty portion of demurrage charges assessed against Farmers Export Company, a grain exporter that operated a grain elevator in Galveston, Texas. The compensatory element of demurrage charges is designed to cover the railroads' "per diem" cost for the use of the rail car. In contrast, the penalty element promotes the prompt return of cars by shippers and receivers. While penalty charges increase over the period of time that a rail car is detained, compensatory charges are paid at a level rate for all time that a car is held by a shipper or receiver. ICC rules provide that a shipper or receiver is allowed a certain period of "free time" to load or unload railroad cars, after which demurrage charges begin to accrue. Demurrage is then imposed on a scale that reflects increasing penalty charges, for example, $10 for each of the first four chargeable days, $20 per day for the next two days, and $30 per day thereafter. See Central Ill. Pub. Service Co. v. ICC, 659 F.2d 820, 821 (7th Cir. 1981) (citing Freight Tariff 4-K, ICC H-74, General Car Demurrage Rules and Charges, effective July 1, 1977).
The ICC regulates demurrage charges pursuant to its statutory authority to initiate and implement rules and regulations contributing to sound car service. See, e.g., ICC v. Oregon Pacific Industries, Inc., 420 U.S. 184, 189-91, 43 L. Ed. 2d 121, 95 S. Ct. 909 (1975). This ICC regulatory power over demurrage charges was reinforced by the enactment of the Rail Revitalization and Reform Act of 1976 ("4R Act"), Pub. L. No. 94-210, 90 Stat. 31 (codified in scattered sections of 49 U.S.C.), which added the following provision to the Interstate Commerce Act:
Demurrage charges shall be computed, and rules and regulations relating to such charges shall be established, in such a manner as to fulfill the national needs with respect to (a) freight car utilization and distribution, and (b) maintenance of an adequate freight car supply available for transportation of property.*fn2
Petitioners do not contest the ICC's authority to regulate demurrage charges, but assert that the ICC's decisions before us were arbitrary, capricious, an abuse of discretion, and unsupported by substantial evidence, and should therefore be overturned pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (1976).
The case arises out of events following the catastrophic explosion which occurred at the Farmers Export grain elevator in Galveston on the evening of December 27, 1977. It is agreed that the explosion was beyond Farmers Export's control. At the time, there were 519 rail cars awaiting unloading at the Farmers Export facility, and another 1,174 cars carrying grain were en route.*fn3 One ship was docked at the elevator loading grain for export, and several ships were offshore awaiting their turn to pick up grain. The grain elevator facility, then one of the busiest in the South, was rendered inoperable by the sudden explosion which killed 18 people and injured 22 others.
The day after the explosion, Farmers Export applied to the ICC for a service order permitting diversion and reconsignment of the rail cars either en route to the grain elevator or already at the facility. The result was ICC Service Order No. 1293, issued on December 30, 1977, which allowed diversion or reconsignment of cars without payment of additional charges that would normally be due for these services. The petitioners did not oppose this emergency service order. In addition to allowing free transfers to other Gulf coast ports, the service order provided a day free from demurrage at Galveston, removed the cars from demurrage during the time necessary to divert them to another port, and granted two additional free days to allow for unloading at the new port.
Within the time allotted in the service order (31 days), Farmers Export diverted or reconsigned all of the rail cars which were either already at the grain facility or en route. Farmers Export did permit all cars en route to Galveston to continue to Galveston, where they were then reconsigned. Despite the issuance of the service order and Farmers Export's ultimate success in diverting or reconsigning all the rail cars from the Galveston facility within the time specified in the order, substantial demurrage charges accrued on the grain cars located at the facility at the time of the explosion or arriving shortly thereafter. Total demurrage charges of $481,790 were assessed, of which approximately $308,000 constituted penalty demurrage. Farmers Export paid the total amount due, but in the fall of 1978 filed a complaint with the ICC to recover the penalty portion of the demurrage paid for delay after the explosion. The Administrative Law Judge found that the demurrage charges were reasonable, and dismissed Farmers Export's complaint. Farmers Export's subsequent appeal to the review board (Review Board No. 4) was also unsuccessful. Farmers Export then sought administrative review before the ICC, which was summarily denied.
In May 1980, Farmers Export sought review of the adverse ICC decision in the United States Court of Appeals for the Tenth Circuit, which subsequently transferred the case to the Eighth Circuit. On October 2, 1980, the entire ICC voted to reopen the Farmers Export case for further administrative consideration. The Eighth Circuit accordingly remanded the proceeding to the ICC on October 6, 1980.
On remand, the full ICC reversed the prior determinations of the Administrative Law Judge and Review Board No. 4 and concluded that Farmers Export was entitled to a refund of the penalty demurrage (decision of April 13, 1981). Shortly thereafter, the ICC issued a supplemental decision defining the penalty portion of the demurrage charges to be refunded (decision of May 7, 1981). In July 1981 the Commission denied the railroads' petition to reopen the April 13 decision and their request for stay. The ...