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the carrier's agent and the driver can be checked independently at the carrier's headquarters. To the extent that persons representing Interstate Division are still permitted to trip lease vehicles which previously hauled an exempt load, sufficient additional material must be attached to the trip lease so that persons in the executive offices can check both the carrier's own agent and the driver, thereby trusting no one. In addition, more complete auditing procedures have been introduced with respect to the carrier's records to detect inaccurate trip leases. Thus, the carrier contends, the summary action taken by it with respect to the persons involved and its substantial reduction of the type of trip leasing which brought about the problem, the minimal number of trip leases involved, and the new procedures instituted all prior to the institution of this proceeding demonstrate, not willful disregard of the rules, but instead recognition of the carrier's duty to comply with all rules and regulations of the Commission and its effective actions to achieve such compliance.
Regarding the observance of required gateways, respondent contends that the certificate formerly held by Interstate Truck Service, Inc., is a very difficult and complex one and the prior owners of the company instituted certain services to the public involving the tacking of certain portions of that certificate and necessitating the use of complicated gateways primarily at Wheeling, W. Va., with respect to service between points in Pennsylvania and Ohio. Respondent explained the difficulty in tacking these authorities and in observing required gateways relative thereto in order lawfully to provide service between the authorized points. Although during the Bureau's investigation period 88 vehicles missed a part of the gateway routes required to provide service between certain points in Pennsylvania and certain points in Michigan, Illinois, and Ohio, during that same period over 8,000 vehicles traversed one or another of the Wheeling gateways. This, respondent contends, evidences a comprehensive and effective effort to comply with the act and rules of the Commission. Subsequent to the respondent's offer of settlement, approved and accepted by the Commission in its order of April 16, 1971, elaborate procedures had been instituted to require vehicles to operate lawfully through required gateways. The truck drivers have been brought to what is referred to as the "Windmill" truck stop where they are required to sign in, giving full information with respect to origin, destination, commodities, and hours of service. Thus, the vehicles are brought to the start of the Wheeling complex of gateways and, depending upon origin and destination, some may then proceed directly to destination while others must negotiate what was designated by respondent as the “T-100 Loop.” A map of the "T100 Loop" appeared as an appendix to the initial decision, and is reprinted here as appendix C.
Upon learning that the Bureau's district supervisor had found instances where some vehicles were not traversing the entire gateway route, although they were going through Wheeling and Belmont County, the procedures were tightened still further by requiring that each driver sign a "T-100" form depicting the exact route and attach a toll ticket to prove that the proper route had been followed.
Respondent concluded its presentation at oral hearing with the testimony of its shippers who testified that suspension of respondent's operations would have serious repercussions on their transportation needs.
In its exceptions Midwest refers to the statements of various Midwest representatives and drivers taken by the district supervisor. Respondent does not deny that such statements were actually made to the district supervisor but asserts that even though the statements were made. they cannot be relied upon as truthful because (1) some of the statements were unsigned, (2) the Bureau made no effort to introduce any evidence of fraud by respondent, and (3) the Bureau made no effort to prove the veracity of the statements by issuing subpoenas to those individuals who made the statements.
← Benwood, w. Va.
Wheeling, W. Va.
No. MC-114632 (SUB-No. 67)
APPLE LINES, INC., EXTENSION-ELEVEN STATES
Decided December 24, 1975
1. On reconsideration, findings in prior report and order (not printed), decided April
22, 1975, modified. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of foodstuffs (except in bulk) from the facilities of Western Potato Service, Inc., at or near Grand Forks, N. Dak., to points in five States, subject to a restriction. Issuance of a certificate approved upon compliance by applicant with certain
conditions, and application in all other respects denied. 2. Dual operation approved.
Robert D. Gisvold for applicant.
REPORT OF THE COMMISSION ON RECONSIDERATION
DIVISION I, ACTING AS AN APPELLATE DIVISION, COMMISSIONERS
MURPHY, GRESHAM, AND CLAPP
By application filed December 26, 1973, as amended, Apple Lines, Inc., of Madison, S. Dak., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of foodstuffs (except commodities in bulk) from the plantsite of warehouse facilities of Western Potato Service, Inc., near Grand Forks, N. Dak., to points in Iowa, Minnesota, Kansas, Missouri, Nebraska, South Dakota, Oklahoma, Illinois, Indiana, Michigan, and Wisconsin, restricted to traffic originating at or destined to the points named above. The application is opposed by Hey! Truck Lines, Inc., and Hirschbach Motor Lines, Inc., both motor common carriers.
The modified procedure was followed. By report and order entered April 22, 1975 (not printed), Review Board Number 1 granted the application in its entirety. The board concluded that the protestants, either individually or collectively, do not hold sufficient authority to satisfy shipper's transportation requirements and that the volume of shipper's traffic is large enough to support an additional carrier without diversion from existing carriers. Thereafter, upon consideration of the record, the petition for reconsideration filed by protestant Heyl' and the reply thereto by applicant, and for good cause shown, we reopened the proceeding for reconsideration on the present record by order entered October 23, 1975.
In its petition, Heyl asserts that its authority enables it to transport the entire line of shipper's commodities to points in Iowa, Kansas, Missouri, Nebraska, South Dakota, and Oklahoma; that the review board erred in failing to consider its pending application to broaden the commodity description in its present authority to encompass shipper's entire line (previously granted 6 months prior to the decision herein); that its equipment has never been fully utilized by shipper; and that, owing to the lack of evidence of anticipated increases in volumes to be shipped to the involved States as a result of shipper's commodities, expansion of its line, and to the failure of shipper even to make general allegations of the inadequacy of existing service, a denial is warranted to the extent it conflicts with protestant's authority. In reply, applicant summarizes the evidence in support of the application and contends that such evidence justifies the review board's decision.
The evidence, the review board's report, and the pleadings have been considered. Although we disagree in part with the review board's conclusions, we find its statement of facts (except for the statement that shipper has been unable to receive the type of service desired from existing carriers) to be substantially correct; and, as supplemented and modified herein, we adopt that statement as our own. The facts will be restated only to the extent necessary for clarity of discussion. Inasmuch as the application is unopposed to the extent authority is sought to serve points in Minnesota, Illinois, Indiana, Michigan, and Wisconsin, and since the evidence establishes a need for applicant's service to points in these States, authority to serve such points will be granted in our findings below without further discussion.
'The failure of the other protestant to file a petition for reconsideration indicates its lack of continuing interese in this proceeding. lis opposition will not be further considered in this report. Cf. Morgun Drive-Away, Inc.. E.17.-Virginiu, 113 M.CC. 137, 138 (1971).
Applicant is an irregular-route motor carrier holding both contract and common carrier authority. It holds temporary authority corresponding to that sought here. It maintains a terminal at Madison, S. Dak., and is experienced in the transportation of frozen and perishable commodities. Applicant offers call-ondemand service and will spot trailers at shipper's facilities if necessary. Its contract carrier authority in Permit No. MC-129706 authorizes the transportation of butter for B. C. Christians Company, of Chicago, from five points in South Dakota to Chicago, III. Applicant contends that presently it is not conducting any operations thereunder. Inasmuch as the commodities involved and territories authorized to be served are different from those involved in the instant application, there appears to be no opportunity for applicant to engage in any of the discriminatory or undesirable practices against which section 210 of the Interstate Commerce Act is aimed.
Western Potato Service, Inc., which is engaged in the production and distribution of frozen potatoes and potato products from its facility at Grand Forks, is expanding its product line to include frozen chicken, sausage, and vegetables. During 1973, it shipped 21.2 million pounds of potato products by motor carrier. Its expanded product line is now in either test marketing stages or, in the case of some items, limited distribution. As a result, it has little need for truckload shipments of any of the new products, but instead anticipates mixed loads of potato products and the various new items. It has provided a list of customer locations in each of the States where service is proposed and volumes of its commodities shipped by truck and rail to each such State in 1973. It states that it requires multiple deliveries of mixed loads of its commodities and has provided examples of actual multiple deliveries in the past, some of which were to points in different States during one movement. Western has indicated it will tender to applicant a minimum of one load every 2 weeks to each of the involved States.
Heyl is authorized under its Sub-No. 17 certificate, as pertinent, to transport frozen potatoes and potato products from Grand Forks to points in Nebraska, Iowa, Kansas, Missouri, Oklahoma, and South Dakota. By order entered August 7, 1974, the Commission, Operating Rights Board, in Heyl's Sub-No. 44 proceeding, granted it authority to transport, as pertinent, foodstuffs, except frozen
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