limited operations of protestants would make for impractical fragmenta-
tion of operating authority and operating abilities in light of complete
service shown to be required throughout destination territory involved
and would result in less efficient distribution of shipper's traffic.
MC-127099, Sub. 19, Robert Neff & Sons, Inc., Ext.-Copying Machines,
124 M.C.C. 616, 621, 4-28-76, Ap. Div. 1.
24.13 In Part (1) of its application, applicant has failed to establish
existence of public need which cannot be satisfactorily met be existing car-
riers. Protestant has clearly shown that it can meet shipper's needs. It
holds requisite authority, operates necessary dry freight equipment, and, at
present time, is adequately serving shipper. Although shipper states
that grant of authority to applicant will not adversely affect volume cur-
rently tendered to protestant, such statement does not in and of itself
bind shipper to continued tender of this volume to protestant, nor does
it assure protestant that it will not in fact be hurt by tender of some of
traffic to applicant. MC-106674, Sub. 160, Schilli Mtr. Lines, Inc., Ext.—
GA Flour, 5-3-76, Rev. Bd. No. 3.
24.3 Rates, Charges & Tariff Privileges
24.30 Shipper has failed to specify inadequacies in services of pro-
testants. Question of rates cannot be considered in determining whether
common carrier authority should be granted, and evidence otherwise fails
to demonstrate that existing service cannot fulfill shipper's transportation
requirements. In light of paucity of shipper evidence and demonstrated
satisfactory quality of existing service, application must be denied.
MC-140182, Sub. 2, Leroy Hoffman and Gilbert Hoffman, Cont. Car. App.,
5-5-76, Rev. Bd. No. 1.
24.5 Adequate Amount of Service
24.51 Emergency Shipments
24.51 In disposition of proceedings involving public convenience and
necessity, operations under temporary authority may be of some value
in indicating applicant's ability to perform proposed service, and effect
that grant of authority might have upon existing carriers. MC-119557,
Sub. 7, Kaylor and Stuart, Ext.—Copperhill, TN, 124 M.C.C. 441, 446,
3-24-76, Ap. Div. 1.
24.53 Approval of application will provide greater rail competition
in general; and in particular, direct single-line route to applicant's points,
resulting in better service through elimination of delays, lower rates, and
greater car supply for shipper. This is clearly in public interest, 307
I.C.C. 493, 527. FD 27628, Oregon-Washington RR. & Navigation Co.-
Construction and Operation-Near Hedges, Benton County, WA 3-31-76,
Rev. Bd. No. 5.
24.70 While shipper has indicated desire to have available services
of carrier able to serve all points in seven proposed destination states,
Commission is unable to conclude from record that shipper requires ser-
vices of one carrier able to provide complete, multi-state service.
absence of showing that shipper has tried, without success, to utilize
available single-line services, application must be denied to extent it con-
flicts therewith. MC-128273, Sub. 162, Midwestern Distribution, Inc.,
Ext.-Household Appliances, 4-9-76, Rev. Bd. No. 3.
24.78 Shipper's Requirements
24.78 Applicant has failed to provide evidence indicating that equip-
ment will be dedicated to use of either supporting shipper, or that his
service is designed to meet distinct needs of supporting shippers. Com-
mission cannot construe assertions as to shortage of railroad hoppers and
professed need for emergency service as reguirements for specialized
service. Neither does assertion that granting of application will give
better control of shipping schedules by eliminating some of customer
pickup trucks present at its facilities, nor fact that applicant will provide
"in house" carrier service for both shippers establish distinct need man-
dated by Sec. 203(a) (15) of Act. Furthermore, fact that applicant does
not propose to serve new shipper by this application does not entitle him
to presumption that whatever dedication of equipment or distinct needs
may have been found to exist in past will continue in new operations
proposed. MC-125518, Sub. 8, Cletus Ruhlman, Ext.-Indianapolis, IN,
4-5-76, Rev. Bd. No. 3.
24.78 Shipper's current method of shipping its safety devices and
chemicals in separate LTL shipments is impractical, inefficient, and gener-
ally not in best business interests. Shipper's distribution pattern for its
traffic will be considerably improved by proposed operation. Applicant's
service would be faster as well as more economical. MC-119689, Sub. 14,
Peerless Transport Corp., Ext.-Safety Devices, 4-12-76, Rev. Bd. No. 3.
24.78 Applicant will dedicate suitable equipment to shippers and
provide employees who will be available on 24-hour-a-day basis so that
deadline deliveries can be made. Applicant's specially trained employees
will pick up shippers' product wherever located, including fields where
feed is harvested or remote places where it is stored. Neither protestant
appears capable of providing complete type of service. Only in unusual
circumstances are existing carriers adversely affected by grant of contract
carrier authority when they have not participated in involved traffic, and
such circumstances do not appear to be present here. Denial of permit
would not harm applicant as it does not now hold authority from Com-
mission to serve supporting shippers. MC-140382, Braun Trucking, Inc.,
Cont. Car. App., 4-13-76, Rev. Bd. No. 2.
25 Alternate Routes or Gateways
25.00 Necessity for Certificate-Deviation Rule
25.00 Applicant has failed to satisfy applicable criteria and authority
sought cannot be granted on record. Comparison of past participation in
traffic by protestants with that by applicant would negate conclusion that
latter is in effective competition with existing carriers for traffic moving
between termini. Applicant did not supply information on volume,
commodities, or revenues from 32 "trips" nor did it inform Commission
of terminal facilities at either termini as protestants did. The second and
third parts of the instant_application must also be denied. MC-18416,
Sub. 19, Clawges Transfer Co., Ext.-Three Routes, 3-26-76, Rev. Bd. No. 1.
25.36 Elimination of Gateways
25.36 Authorization of tacking in Sec. 5 proceeding, since it creates
gateway, is triggering event which precipitates consideration of related
gateway elimination proceeding under Sec. 207 of Act. Therein applicant's
burden is to meet public convenience and necessity standard. Policy
Statement indicates that, for those applicants with proceedings which are
pending (here MC-F-11891 was pending), Sec. 207 applications would be
accepted until February 4, 1975. Policy Statement should not be inter-
preted to require that applicants meet public convenience and necessity
standard on basis of evidence in record prepared by applicants at time that
they had no foreknowledge of standard other than public interest standard
of Sec. 5. These standards of Secs. 5 and 207 differ substantially. In
future Sec. 5 application submitted with related gateway elimination
applications, applicants will be held to usual Commission procedures re-
garding submission of evidence. MC-F-11891, Gray Moving & Storage,
Inc.,-Pur.-Warner, 122 M.C.C. 316, 329, 2-19-76, Div. 3.
25.36 Determination permitting elimination of gateways requires
finding that either applicant is actually using gateway or transporting
substantial volume of traffic between two proposed points or that from
showing of public need that public convenience and necessity require
initiation of such new competitive operations. Activity pursuant to
temporary authority is admissible for consideration, but such cannot alone
be basis for approving new competitive service. Accordingly, such
temporary operations by applicant may be considered with evidence of
public need by shippers supporting applications and for purpose of mea-
suring whether proposed unified operations through elimination of gate-
ways here involved would have detrimental effect on operations of pro-
testant. MC-F-12332, Great Coastal Exp., Inc.-Pur.-Shippers Exp., Inc.,
3-18-76, Rev. Bd. No. 5.
SERVICE & OPERATIONS
41 Transportation
41.1 Rail
41.10 1. Commission found to have jurisdiction and statutory author-
ity to conduct investigation and to make appropriate findings with respect
to rail freight service deficiencies.
2. Railroad freight service found to be not sufficient to meet shippers'
demands; general plans suggested to halt further material service de-
terioration and to correct service deficiencies; and suggestions made that
greater and more extensive publication of service schedules be made in
publications generally consulted by shippers.
3. Examination of recommended proposals that Commission (a) adopt
and implement plan of reciprocal demurrage; (b) establish alternate
freight structures; (c) require ear-marking of certain percentages of future
rate increases for equipment improvements; (d) require publication of
empty car movement schedules; (e) sponsor shipper-carrier conferences;
and (f) define reasonable dispatch.
4. Examination of labor-management relations in railroad industry.
5. Rulemaking proceedings suggested for purpose of (a) defining con-
cept of reasonable dispatch for nonperishable commodities; and (b) es-
tablishing terminal operation schedules.
6. Further study recommended in areas of (1) contract rates for rail
service; (2) assigned and special car allocation; (3) circuitous routing of
freight cars; (4) billing and forwarding information; (5) demurrage and
free-time allowances; (6) railroad electrification; and (7) utilization of
"short trains."
7. Appropriate order entered closing this phase of Sub. No. 2 pro-
ceeding. A table of contents is set forth in Appendix F. Ex Parte 270,
Sub. 2, Investigation of RR. Frt. Service, 345 I.C.C. 1223, 3-18-76, Rpt. of
Coordinator.
53.82 Applicant's justification, that competing parcel services main-
tain comparable provisions, is indication of reasonableness of proposed
limitation. Another indication of reasonableness lies in level of rates
proposed by applicant. While reasonableness of level of rates proposed
is not at issue here, intended level of rates is nonetheless relevant in
weighing reasonableness of proposed declared-value limitation. Applicant
proposes to base its rates primarily upon weight and distance traveled and
thereby to eliminate element of loss and damage expense from ratemaking
considerations. For purposes of this released-rates application, it is as-
sumed that reduced level of rates will be designed to compensate shippers
for abrogation of their loss and damage rights. Proposed declared-value
limitation is reasonable. Released Rates Order FF-261, General Com-
modities-American Delivery Systems, Inc., 351 I.C.C. 760, 767, 3-31-76,
Div. 2.
53.40 Commodity rates higher than corresponding class rates are
abnormality requiring special justification. Rule should encompass both
types of publications in order to prevent_carriers from avoiding justifica-
tion requirement by publishing commodity rates in lieu of exceptions
ratings. Rationale holds true with respect to exceptions rating, commodity
rate, charge, rule, or other tariff provision, application of which results
in higher charge than otherwise would result from application of classifi-
cation basis. Accordingly, filing of tariff provision which would result
in higher charge than would result from application of classification class
or rating and rules to class rates must be accompanied by justification
statement. No. 36135, Rules Governing Publication of Exceptions Ratings,
351 I.C.C. 716, 729, 3-10-76, R&O.
55.80 Full cost of service exceeds present charges or rates by sub-
stantial margins and also exceeds proposed rates in every instance as
well. Added to this is fact that proposed increases are relatively modest
in view of significantly increased operating costs, and are generally not
contested. Unrebutted evidence of record shows need for proposed in-
creased rates and charges by respondent to provide adequate and efficient
motor carrier service in issue state. I&S M-28700, Increased Rates Within
Montana, Salt Creek Freightways, 3-17-76, Rev. Bd. No. 4.
57 Tariffs
57.3 Interpretation
57.36 Specific v. General Provision
57.36 Under well established principles of tariff interpretation,
specific provisions take precedence over general ones, but only to extent
so stated. In case of mixed shipments, general rules in Items 640 and 645
are superceded by specific exceptions in other rules only if all stated con-
ditions are met. Where classification item is stated to apply on predomi-
nant article and also that other higher-rated commodities "may" be in-
cluded, "provided" contraband not exceed certain limits, it is clear that
provision does not apply if those margins are exceeded. Terms such as
"provided" (Item 119389) or "must not exceed" (Item 59422) are manda-
tory in nature and create conditions precedent to applicability of lower
rating on mixed shipments than would apply under general rules. "There
can be no doubt that in ordinary usage such words (as "provided") denote
limitation upon, and exception to, or requirement in addition to, that
which has gone before." I&S M-28449, Less-Truckload, Truckload or
Volume Shipments, Nationwide, 4-1-76, Rev. Bd. No. 4.
Administrative Policies
60.08 Carrier Responsibility for Rate Changes
60.08 Proposal merely clarifies existing rating procedure and does
not result in changes in rules, regulations, or practices affecting rates and
charges. Proper method of rating mixed shipments containing contra-
band exceeding allowable margins is to apply general mixed-shipment
rules in item 640 or 645 series, unless particular rule explicity makes
provision for rating excess. Close comparison of wording of general rules
and representative specific exceptions which are silent as to excess con-
traband indicates that general and specific items are mutually exclusive.
Either one applies or the other, but not both unless explicitly so stated.
I&S M-28449, Less-Truckload, Truckload or Volume Shipments, Nation-
wide, 4-1-76, Rev. Bd. No. 4.
Analogous or Homogeneous Articles
61.1 Similarity in Nature
61.10 1. Upon investigation of railroad freight rate structure on
iron ores, and in particular effect of general freight rate increases thereon,
examined technical, economic, and environmental aspects of iron ore
mining, marketing, and consumption; examined transportation charac-
teristics and rate structure of iron ores; made extensive intracommodity
revenue-cost analysis; and composed other material measuring reasonable-
ness and effects of freight rate structure on iron ores.
2. Upon consideration of record, found that iron ores are carried un-
der conditions which, while not optimum, are probably as favorable as
those associated with transportation service performed for other individual
commodity by U.S. railroads; that overall freight rate structure on iron
ores is compensatory and not unreasonably high, but some individual
rates fall above and below zone of reasonableness; that railroads should
examine current costs and revenues on movements of iron ores shown to
be noncompensatory at September 1, 1973 rate and cost levels to determine
need for increases on rates for these movements; that respondents should
examine current costs and revenues on movements shown to have rate/
variable cost relationship in excess of 230 percent at September 1, 1973
rate and cost levels and that in future complaint cases showing that move-
ments of iron ores return revenues in excess of 230 percent of variable
cost may give rise to rebuttal presumption that involved rates are unjustly
and unreasonably high; that need exists for review of individual tariffs
on iron ores to determine need for republication of single-car rates as
multiple-car or trainload rates in order to give shippers benefits of high-
volume traffic and in order to make analysis of freight rate structure on
iron ores more accurate; that investigation should be instituted to deter-
mine if equal rate structures should be established for all types of ex-lake
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