the Commission would be remiss in our duty if we hampered, rather than promoted, the free flow of commerce", the Division also referred to its more recent General Policy Statement of November 15, 1973, on operational feasibility. It pointed out that "a grant would improve the quality of existing service by eliminating circuity and generally enhancing the efficiency of applicant's operations." The authority granted was for irregular-route operations, and the commodity was liquified petroleum gas in bulk, an energy source which the energy-conscious Division considered particularly important to be moved efficiently. In Howard Kaylor and Kenneth Z. Stuart Extension-Copperhill, Tenn., 124 M.C.C. 441, Division 1, acting as an Appellate Division, granted irregular-route authority to transport sulfur dioxide, despite a finding that existing service was "adequate." But this grant of authority was based upon the shipper's needs, rather than the carrier's operational efficiency. The shipper, the Division concluded, is expanding and also needs prompt service due to the potential competitive advantage of other firms utilizing their own private carriage. Common Control of Applicant With One of Supporting Shippers Not A Bar To Grant of Authority Applicant sought authority as common carrier over irregular routes of animal feeds and was supported by three shippers. One of the shippers was under common control with applicant. Division 1, acting as an Appellate Division, reversed a Review Board denial of the application because of the common control and lack of knowledge as to whether the other two shippers knew of the control. Since the other two shippers strongly petitioned for reconsideration and did not fear the possibility of preference and prejudice arising out of the common control, the Division granted the authority. C.B. Transportation, Inc., Extension-Animal Feed, 124 M.C.C. 452. The Division said that the continued support of shippers not affiliated with applicant and fully aware of the relationship between the applicant and its affiliated shipper, gives rise to the presumption that favoritism, preference, or discrimination will not occur, citing Cousins. Inc., Common Carrier Application, 102 M.C.C. 481 (1966) and Federal Transfer Co., Inc., Extension-Seattle, Wash., 111 M.C.C. 559 (1970). Schaeffer Rules Stoutly Upheld Applicant sought general commodity regular-route authority between Memphis-Shreveport-Houston and Dallas-Fort Worth. An administrative law judge recommended denial of the application based on the hearings of some seventy witnesses. A petition for reconsideration proposing further restrictions was denied. Thereafter, applicant filed a petition to reopen the proceeding for further hearing in light of the results of another proceeding. In that proceeding, another carrier proved the need for service in the same general area, but chose not to provide the service due to certain restrictions imposed by the Commission. Applicant's petition to reopen was accompanied by a list of fortyfive shippers who had supported the other carrier's application. Applicant later filed thirty verified statements, twenty-three of which were drawn from the list. At the further hearing, applicant sought to present witnesses from a group of 300 in addition to the ones already mentioned. Some, but not all, protestants received the list six days prior to the hearing. The second ALJ refused to permit the new witnesses to testify. While a petition for extraordinary relief from the ALJ's rulings was pending, the ALJ filed his report recommending denial of the application. Division 1 upheld the second denial and discussed at length the purpose and applicant's violations of the Schaeffer rules, which arose in Schaeffer Extension-New York City, 106 M.C.C. 100 (1967), are published at 32 Fed. Reg. 19209, December 20, 1967, and are also printed on application form OP-OR-9. According to the Division, the rules serve the following purposes: The so-called Schaeffer rules require an applicant to disclose the identity and location of all shippers by means of certificates of support or identifications, sending copies to the Commission and all parties of record, as soon as possible upon discovery of a supporting witness. The filing of this information assures the Commission that the application is bona fide and will be supported if set for oral hearing. It also enables the Commission to determine an appropriate location and allocate sufficient time for a hearing. Another function of the Schaeffer rules is to avoid prejudice to the protestants by providing them with a degree of information for use in arriving at their positions in the matter and in preparing their presentation in opposition, including cross-examination. The The Division found that the applicant took these duties lightly and was delinquent in reducing the substantial support it obtained to writing and in notifying the Commission and the protestants. Division upheld the ALJ's rulings to disallow the testimony and also his findings that the additional evidence presented at the further hearing indicated no change in shipping circumstances to warrant a grant of authority. Ryder Truck Lines, Inc., Ext.-Dallas & Fort Worth, Tex., 124 M.C.C. 520. Motor Carriers Not Subjected To New Rules Dealing The Commission's Investigation Into The Need For Defining Reasonable Dispatch (Perishable Commodities), Ex Parte No. 284, was decided on April 8, 1976 (351 I.C.C. 812), and new railroad rules were adopted at 49 C.F.R. Part 1038, subject to additional comment by interested parties. As far as motor common and contract carriers are concerned, the Commission decided not to apply the new rules for these reasons, at pages 829-30: Transportation performed by many motor carriers of perishable commodities is, by virtue of the provisions of section 203(b)(6) of the act, exempt from economic regulation by this Commission and, therefore, whatever we might here decide to do with respect to it would have limited effect. This is especially true in light of the narrow definition of the term perishable commodities adopted below. ATA points out in its initial statement, for example, that a study by the U.S. Department of Agriculture, using 1960 data, shows that only about 5.6 percent of the total volume of interstate movements of fresh fruits and vegetables originating in California and Arizona move by common and contract carriers not engaged exclusively in the transportation of exempt commodities. Furthermore, because (a) shipper dissatisfaction evidenced in the Claims case, insofar as it pertained to the transportation of perishable commodities, was predominantly rail related; (b) railroads specifically are required to provide protective services on perishable commodities whereas the duty to provide such service is not the same in motor carriage (see, for example, the discussion of this point in Travenol Laboratories, Inc., Petition for Invest., 121 M.C.C. 588, 610 (1975) (7); and (c) regulations promulgated by the Department of Transportation to govern the hours of service of drivers make no distinction between the duty hours of those who are or are not engaged exclusively in the transportation of perishable commodities, there is a lack of convincing evidence as to the inadequacy of service provided by regulated motor carriers. BOOKS FOR SALE I.C.C. Report-Volumes 300-339 (except Vol. 312) Annotated Volumes-11-19 Mr. J. Aiden Connors, 145 East 49th Street, New York, NY 10017 PIPELINE TRANSPORTATION RICHARD R. MYALL, Editor Special Permission No. 76-2730 At a session of the Interstate Commerce Commission, Special Permission Board held on February 13, 1976 Special Permission No. 76-2730 was granted. This "blanket" special permission will permit any pipeline carrier to cancel rates or provisions in tariffs which are under suspension rather than attempt to justify them, when this is the desire of the pipeline company. Such relief is granted upon not less than ten days notice and is subject to the following conditions: (1) notify all parties of record and the Interstate Commerce Commission Office of Proceedings, (2) certify to the Office of Proceedings. that all parties have been notified and (3) furnish a signed copy of such letter to the Bureau of Traffic. Such cancellations must become effective on or prior to the date to which the matter has been suspended (or postponed), or on or before the date a final decision is reached by the Commission. Prior to the granting of this special permission it was necessary for a pipeline carrier to file its own special permission application for each and every instance of this nature. Northville Dock Pipe Line Corp. and Consolidated Petroleum Terminal, Inc., Petition for Declaratory Order. Nos. 35794-35852 By petition the aforementioned companies jointly asked for a declaratory order determining that the distribution of petroleum products by a certain pipeline operation on Long Island, N.Y. was not subject to the regulatory jurisdiction of the Interstate Commerce Act. Consolidated Petroleum maintains a port and terminal facilities at Port Jefferson and Setauket, Long Island. Northville Dock Pipe Line owns and operates an eight mile pipeline for petroleum products from CPT's Setauket facilities to storage facilities at Holtsville, Long Island. In addition, it also owns and operates a twenty-three mile pipeline from Holtsville to Plainview, Long Island. Some users of the facility have segregated storage, other users store in commingled facilities. All order products to be shipped by tanker or barge to the Port Jefferson dock where it is placed in storage at Setauket. Product moving into Port Jefferson is from foreign or interstate origins. Product in Setauket storage is later shipped to other destinations. Because the product in the tanks is fungible it is not possible to designate specific barrels for reshipment. Tenants who use the aforementioned facilities when ordering additional product do so to replenish storage space available at Setauket. No specific customer's requirements nor any earmarking for final destination occurs. The location of tankage at Setauket is the nearest reasonable location to Port Jefferson. There is no continuous movement. Accordingly, Administrative Law Judge David H. Allard concluded that the transportation of oil from ship to shore was incidental to unloading and that the transportation from Setauket, Long Island to ultimate destinations was intrastate commerce. The proceedings were discontinued. Investigation and Suspension Docket 9089 General Increase, Williams Pipe Line Company Williams Pipe Line filed a general increase to become effective December 14, 1975. Upon appeal, this increase was suspended by Division II until July 14, 1976. The carrier has since voluntarily postponed the effective date until August 1, 1976. The oral hearings before Administrative Law Judge Earl S. Dowell have been concluded and the record was closed on May 14, 1976. Briefs are due June 21, 1976. Investigation Docket 36352 Petroleum Crude Oil- Ashland Petroleum Company filed a protest against increased rates published by Lakehead Pipeline Company to become effective May 1. 1976. The Fourth Section and Suspension Board did not recommend suspension and investigation. On appeal Division II did not suspend but ordered an investigation. The case has been set for oral hearing at a time and place yet to be set. |