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such a certificate “filed with the Commis- 1 Certificates of registration are to be treatsion" on October 15, 1962, within the mean- ed no differently than any other certificate ing of the statute and thus is not entitled to insofar as suspension or termination is cona certificate of registration under $206(a)(7) | cerned. Such termination can be effected of the Act.-Dalton, Application for Certifi only by the procedures set forth in $212(a) cate of Registration, 106 M.C.C. 774 which accords the holder the opportunity to (776, 778).

demonstrate or achieve compliance prior to The “pendency of litigation" exception to such termination.-Id., p. 248-9*. $206(a)(7) is intended to excuse an appli When a holder of a certificate of registracant's failure to engage in operations in in- tion comes under the control of a multipleterstate or foreign commerce if his intrastate state carrier in violation of $5(4), the cercertificate was being subjected to some type tificate is thereby invalidated so long as the of judicial or quasi-judicial review which control continues. Divestiture of the unlaw. would make it impossible for him to oper ful control would terminate the violation and ate. A typical example would be where a reactivate the validity of the certificate of court enjoined operation under such a certif registration.-Reliance Truck Co.-Control icate pending a suit to determine its validity, and Merger, 109 M.C.C. 495 (499)*. rather than the present applicant's voluntary

Complainant alleges that defendant is concessation of operations because of the ex ducting operations pursuant to certificates of pense involved in the litigation of his state registration in violation of $206(a) of act by certificate. Additionally, the cessation of

unauthorized tacking between various New service involved herein does not fall within York counties and New York City. Defendthe category of “interruptions of service | ant contends that proper forum for this over which applicant had no control" since complaint is the issuing state authority, i.e., applicant voluntarily chose to terminate his the New York State Public Service Commisoperations and there is no evidence to estab sion. In 108 MCC 301 (1969), this Commislish the presence of circumstances such as sion set out guidelines for the interpretation to render applicant powerless to operate.

of registration authorities; the scope of auId., pp. 779-80.

thorities for carriers operating in interstate Held that “conclusive proof” provision of commerce under registration procedures is 8206(a)(7) does not require the automatic governed by the interpretation or construcissuance of “grandfather" certificates of tion placed upon such certificates by the registration to carriers operating pursuant to issuing state agency. However, this Comthe former second proviso. Congress only mission will interpret or construe registered intended to preclude Commission inquiry authority for the purpose of determining the into the bona fides of the operations with scope of interstate operations which may be respect to commodities and territory, and performed thereunder, where state commisdid not intend to require the Commission to sion has issued an opinion or where the grant a certificate of registration to a carrier meaning of the scope of operations is clear. which either prior or subsequent to the Defendant's contention that this Commis“grandfather" date had willfully violated sion is not the proper forum for considerathe Act. See 281 F. Supp. 436. tion of its registered authority is unfoundAll-American Transport, Inc.-Control and ed.-Flying Freight v. Van's Auto Express, Merger, 109 M.C.C. 243 (246-8)*.

Inc., 110 M.C.C. 358 (360, 361). A certificate of registration loses its validi

The purpose and scope of amended provity during the period that common control sions of $206(a) of Act relate to operation with a multiple-State carrier exists, but if by a motor carrier within a single state the situation is remedied, it is again in full based upon its having obtained appropriate force and effect-unless earlier revoked by authority to conduct intrastate operations a formal Commission order under $212(a). within that state, and such provisions are The contrary dictum in the prior report, 104 also exceptions to general requirement of MCC 396, was specifically voided.-All certification. Section 205(a)(6) requires that American Transport, Inc.-Control and state commission make concurrent separate Merger, 109 M.C.C. 243 (249-50)*.

| findings of both interstate and intrastate

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commerce public convenience and necessi | since such certificates are valid only as long ty, i.e., state commission must determine as the holder is a carrier in operation solely whether the public need requires an intra within a single state; the phrase "in operastate motor service, and as an incident to tion solely within a single state” is interpretsuch determination whether a corresponding ed to proscribe transportation outside the interstate need exists. Therefore, in order United States as well as at any point outside to satisfy procedural requirements of of a single state by motor carriers operating $206(a)(6), there must exist: (1) the early | under $206(a)(7). Since this section shows identification of the issues to be resolved in substantial conformity with the original the dual proceeding before state commis terms of the former second proviso of sion, (2) an opportunity for interested per- | $206(a) it is reasonable to assume that Consons to be heard as to both intrastate and gress, absent any legislative history to the interstate aspects of the operations in issue, contrary, did not intend to alter the interpre(3) the concurrent consideration and finding tation of the phrase as enunciated in preby state commission that the public conveni vious decisions of the Commission; thereence and necessity require both the intra fore, such decisions are pertinent in deterstate and interstate operations in question. mining the meaning of the phrase "in operaRay Price, Inc.-Certificate of Registration, tion solely within a single state":-Imperial 110 M.C.C. 381 (383, 384, 385)*.

Truck Lines, Inc. Common Carrier Appli50. “Grandfather" clause.—(Vol. 21). cation, 106 M.C.C. 741 (746-48). See also Barton Truck Lines, Inc., Eligibili On October 15, 1962, applicant was enty-Utah, at $207(a), n. 25 past operations; gaged in operations in interstate and foreign Helphrey Motor Freight, Inc.-Purchase commerce solely within Illinois under the Manning Freight, at $5(2), n. 110; and Lake certificate exemption provisions of the forShore Delivery, Inc.-Purchase-Delivery, mer second proviso of $206(a)(1) despite the Inc., at 85(2), n. 48 intrastate.

fact that it held and now holds state certifiCarrier's application for a certificate must cates in both Indiana and Illinois; its activibe denied, because she is controlled by, ties in Indiana were confined to the leasing controlling, or under a common control with of vehicles with drivers and it has never a carrier engaged in interstate operations. performed transportation in interstate or The existence of legal control in one person foreign commerce in Indiana. Further, its does not prevent the concurrent existence of Indiana certificate has never been registered actual control by another through acquies- | with this Commission, and it has expressed cence of, or a management contract with, willingness to tender its Indiana certificate the former, in addition, although family con for cancellation if such action is a condition trol does not show control or power to con precedent to the approval of the present trol, it is a factor to be given consideration. application. Since the evidence shows that Herein uncontested facts of business and applicant's operations in Indiana have not family connections demand conclusion that been those of a for-hire carrier in interstate there has been an actual exercise of unlaw or foreign commerce within the meaning of ful control and management by Livek, a section 202(a) of the Act, those operations, multi-state carrier, over applicant's transpor standing alone, do not impair applicant's elitation operations. In effect Livek has been gibility to obtain the requested certificate of utilizing the intrastate certificate of his registration under $206(a)(7) of the Act.daughter to originate shipments from points Excel Trans. Service Co.,-"Grandfather" in Mlinois that cannot be served under his Registration, 106 M.C.C. 898 (901, 903-04). certificates, through the guise of tripleasing Applicant's sole stockholder Mandel has and interline operations.-Norquist “Grand shown satisfactoily that prior to, and on and father" Registration Application, 99 M.C.C. after October 15, 1962, applicant neither 501 (503-504).

was, not is, under common control with two Respondents' shipments to Mexico from other trucking companies of which her faCalifornia under their certificates of registra- | ther is sole stockholder and her brother is tion issued pursuant to the "grandfather" secretary; while there is evidence of occaprovisions of $206(a)(7) are unauthorized | sional business transactions between applicant and these companies, and the signing | eign commerce subject to combined Federof some checks was performed by Mandel's al-State licensing process, and there is but a brother for applicant, these matters standing single standard by which to determine alone fail to show that there is any common whether such an application should be grantownership or management of the considered ed or denied, i.e., whether public convenicompanies, or that there is any material ence and necessity require the considered financial stake on the part of Mandel's fa single-state carrier to engage in interstate ther or brother in applicant's business. commerce.-Dugan Extension-Certificate Notwithstanding the close blood relation- of Registration, 99 M.C.C. 557 (566-67). ships that exist between persons in applicant Based on the record made before the and the considered companies, none appear State commission and the lack of evidence to have the power, either legally or actually, of need for service in interstate commerce to control the business of the other.-Id., at two points, the State commission's findpp. 901, 904.

ings as to need for proposed interstate servApplicant filed its application under the ice is modified to eliminate any service to “grandfather" provisions of $206(a)(7) of those two points.-Id., p. 568. the Act for a "grandfather" certificate of While order granting State certificate to registration as evidence of its right to oper applicant Worldwide did not include reate as a common carrier, by motor vehicle, I quired findings and recitation as to public within a single state (Massachusetts). The convenience and necessity, it did recite that review board found that Edmund C. Merritt, proposed interstate operations “are authorpresident and holder of one-half of appli ized in interstate commerce pursuant to cant's corporate stock, is in a position to $203(b)(8) of the Interstate Commerce control or direct applicant's operations in a Act." State commission when inserting this common interest with the operations of Vio recitation viewed the considered interstate la M. Merritt, doing business as E. C. Mer operations of Worldwide as within the city ritt Express Co., a multiple-state carrier limits of Albuquerque, N. Mex., and, thereengaged in interstate commerce, and also fore, exempt. And from the record it is apwith a third motor carrier conducting intra parent that Worldwide's operations comstate operations within a state other than prise only local collection and delivery servMassachusetts, namely Rhode Island, in his ices, not under common control, manageown name. Applicant admits its affiliation | ment, or arrangement for continuous transwith a multi-state carrier, and therefore, it is portation in interstate or foreign commerce not entitled to benefits of the registration to or from a point beyond Albuquerque, for provisions of $206(a)(7) because of its local business concerns or line-haul motor common control with a multi-state carrier on carriers within their terminal areas. Therethe statutory date of the enactment of the fore, since considered operations are exsection on Oct. 15, 1962. Application de empt, no authority is required. Denied.nied.-Merritt Corporation Common Carrier Miller Van Lines, Inc., Certificate of RegisApplication, 108 M.C.C. 865 (866, 869. tration, 102 M.C.C. 116 (118-9). 871)*.

However, after noting that the cardinal 75. State commission findings, used as basis purpose of this section is to make single for certificate of registration review state operators in interstate and foreign of.—Under statute the Commission's review commerce subject to combined Federalof the State commission's findings, regard State licensing and that tests first applied ing need for proposed interstate transporta

in 1 MCC 190 to determine need are application, must be based entirely on the record ble here, Commission agreed with the State made before the State commission and the commission that on the record public conCommission cannot substitute its judgement venience and necessity require operation by for that of the State body when the latter's Miller, Inc. But since J. Clell Miller, condecision is based upon substantial evidence trolling stockholder in Miller, Inc., already and conforms in all respects to the require- holds authority duplicating in part that ments of the Act; this amendment makes sought, since it is against the Commission's single-state operators in interstate and for- l policy to authorize commonly controlled entities to engage in duplicate operations | tacking would be proper in interstate and
and since $8206(a)(6), (7) were enacted to foreign commerce, if it were proper in in-
prevent a multiplicity of authorized inter trastate commerce.—Flying Freight v. Van's
state carriers with duplicate authorities, any Auto Express, Inc., 110 M.C.C. 358
duplicating authority will not be included in (359-60-61).
the certificate of registration. Moreover, Commission denied 3 Nebraska applica-
because of common control aspects, issu- tions for certificates of registration based on
ance of certificate deferred, pending filing underlying intrastate authority obtained
under $5 or submission of evidence to es through state transfer proceedings on
tablish that transaction is not subject to grounds that Nebraska State Commission
$5(2).-Id., pp. 121-2.

failed to make concurrent separate findings
Complainant alleges that defendant, a cer of both intrastate and interstate commerce
tificate of registration holder, is operating in public convenience and necessity; that the
excess of its authority by unauthorized tack finding of need for intrastate service is
ing of its separate underlying state certifi meaningful only when state commission has
cates. Defendant is authorized to operate as under consideration an application for initial
a common carrier by motor vehicle between or additional intrastate service, and that a
Albany and Kingston in Ulster County, simple refinding of intrastate public conveni-
N.Y., and from points in Ulster County to ence and necessity is insufficient to satisfy
points in Rockland County, N.Y. It holds requirements of $206(a)(6). Commission's
separate authority to operate from West- denial was set aside by Nebraska District
chester County, N.Y. to New York City. Court on grounds that nothing in legislative
Defendant holds itself out to provide direct history or Act itself requires an initial appli-
service from Albany (Ulster County) to cation to state commission before applicant
New York City by claiming that New York can qualify under $206(a)(6) for an inter-
State law permits tacking where any munici state certificate; court agreed with Commis-
pal commercial zone overlaps common sion's construction that statute requires
boundaries of counties. Under $206(a)(6), state commission to make dual findings of
(7) of Act, scope of authorities for carriers public convenience and necessity as to both
operating in interstate commerce under reg intrastate and interstate operations but that
istration procedures is governed by interpre under Nebraska law, intrastate public con-
tation or construction placed upon such cer venience and necessity is an issue in a cer-
tificates by the issuing state agency. There tificate transfer proceeding.-Ray Price,
fore, New York State Public Service Com-|| Inc.-Certificate of Registration, 110
mission rules on tacking are applicable to | M.C.C. 381 (383-84)*.
the instant proceeding; and accordingly

Regulations of the Commission

35 FR 17264, Nov. 10, 1970, Part 1060: new Part 1060 Special Relief for Motor Carriers Affected by a Temporary High-
way Closing. $1060.1 Special relief for motor carriers affected by temporary closing of West Virginia Highway 2, added,
effective upon publication in the Federal Register..

Section 206. (b) (8306 (b) U.S.C..) Application for certificate; form and
contents.—(Unchanged See Vol. 10, p. 7978]

Notes of Decisions

Volume 10-p. 7978; Volume 11-p. 9425; Volume 12—p. 10386; Volume 13—p. 11067;
Volume 14p. 11586; Volume 15p. 12192; Volume 16—p. 12839; Volume 17–p. 13532;
Volume 18 p. 14343; Volume 19—p. 15582; Volume 21—p. 17213.

15. Filing and verifying applications; par- tion, if tendered after notice of the filing of ties; notice. (Vols. 10-19, 21).–See also said application has been published, will not Blue Bird Coach Lines, Inc. v. United be allowed. However, discretion rests with States, at $208(c), n. 1; and lowa Beef the Commission in these matters, and in Packers, Inc. v. United States, at APA, 5 order to facilitate the administrative process USC, Judicial Review.

this provision has been liberally construed. When plaintiff's apparently restrictive Yet, there are persons, who in reliance upon amendment (which actually broadened scope published notice of matters involved, have of its application) was accepted after notice not become parties in a particular proceedof the application was published and was ing. Thus, every effort should be made to incorporated into the certificate issued with see that published notice merits this reliance out republication of notice, intervening de and that any tendered amendment be scrutifendant carriers who had no notice of the nized lest it result in an unnoticed broadenamendment could not have anticipated that ing of applicant's original proposal. In inplaintiff's certificate would enable it to oper stant proceeding an apparently restrictive ate in competition with them; the lack of amendment, which in fact broadened the proper notice deprived interveners of the application, was permitted without additionopportunity to appear in opposition to the al notice. This lack of notice resulted in failapplication; and, in such circumstances, the ure of due process, depriving those relying Commission had inherent power to correct on the Federal Register publication of their an obvious injustice. Accordingly, a broad statutory right to notice and of the opportuening amendment having been incorporated nity to participate in the proceeding.-Carl therein without adequate notice to compet Subler Trucking, Inc., Modification of Cering carriers, the Commission had the power tificate, 103 M.C.C. 307 (312-3)*. to cancel plaintiff's certificate and issue a Each of the truckers who provide considmodified (correct) one; and it correctly exer ered local cartage service for forwarders of cised such power; sustained.-Carl Subler used household goods (on shipments moving Trucking, Inc. v. United States, 313 F. | in containerized service on through forwardSupp. 971 (976-7)*

er bills of lading) will have to apply for When verified application of plaintiff (ap authority covering operations they conduct plicant) for irregular-route authority denied beyond terminal areas or commercial zones, that extension authority sought could or since their service is part of a through interwould be joined with any authority then state movement and they do not qualify for held for performance of a through service, exemptions provided in $202(c)(2) or and published notice of the application was 8203(68); and, though precise number thereconsistent with assurances therein, other of is not known, it is estimated that 400 to carriers were not given proper notice of ac- 600 local truckers must file applications. tual authority sought and nature of proposed | There is no legal requirement for an oral operations. Failure adequately to warn com hearing in motor carrier application proceedpeting carriers of the authority actually | |ings, nor is there a practical necessity theresought and intended to be used, albeit by for in every such case; therefore, in view of tacking, has an injurious impact on the in- the burden on carriers of filing and prosetegrity of administrative process. Also, as cuting their applications, and the burden on expressed in 206 F. Supp. 835, the Commis the Commission of processing them in addision must be able to rely on representations tion to its heavy and mounting caseload, of the parties; and when carrier made its each of the applications will be handled, application, it became bound to the repre insofar as possible, under modified procesentations contained therein. Complaint dure without oral adversary hearings.dismissed.—Eagle Motor Lines, Inc. v. Kingpak, Inc., Investigation of Operations, United States, 331 F. Supp. 80 (81-2)*. 103 M.C.C. 318 (342-5)*

Right to notice is specifically provided for In an effort to develop clear and unmisin $205(e) of the Act. In addition, Commis takable guidelines, which are to be used as sion Rules of Practice provide that amend an aid in drafting proper and workable appliments which broaden scope of an applica-l cations for motor carrier operating authority

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