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simply create a new “backhaul problem" for applicant in California, since it has no authority to haul traffic out of California. In balance with this weakness in applicant's case, there must be weighed the likelihood that its entry as a certificated motor common carrier in this market would tend further to diffuse carrier responsibility for meeting the shippers' legitimate requirements. Applicant promises no significant commitment of the resources shippers say they require. It apparently will be little more than one additional bidder for these critical resources. Granting this application on the basis of the facts of this record would be tantamount to authorizing brokerage services, not common carrier services.
Al things considered, this record does not show that the shippers or the general public would benefit from issuance of the operating authority sought in this application
Upon consideration of all evidence of record I find that public convenience and necessity have not been shown to require the operation for which authority is sought. I further find that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. Wherefore, it is ORDERED that the application be and it is hereby, denied.
CHEMICAL LEAMAN TANK LINES, INC.
CORRECTED DECISION AND ORDER'
At a Session of the INTERSTATE COMMERCE COMMISSION,
Division 1, Commissioners Murphy, Gresham, and MacFarland, held at its office in Washington, D.C., on the 27th day of August 1975.
Upon consideration of the complaint and the record in the aboveentitled proceeding, including the recommended order of the Administrative Law Judge, the exceptions filed by defendant, and the reply thereto filed by complainant, and
It appearing, That the Administrative Law Judge recommended that a cease and desist order be entered;
It further appearing, That defendant argues that this proceeding is moot because it has received a recommended grant of authority to transport the commodities which are the subject of this complaint; that the recommended grant of authority is pending on exceptions and not administratively final and does not render this proceeding moot; that even if such grant of authority were administratively final, this proceeding would not be moot as a cease and desist order acts as a means of assuring future compliance with the Interstate Commerce Act and can be issued even if the unlawful operations have ceased or have become lawful, Manhattan Transit Co. v. National Ski Tours, Inc., 121 M.C.C. 456, 459 (1975), Braswell Motor Frt. Lines, Inc., Investigation, 118 M.C.C. 392, 412-413 (1973);
And it further appearing, That otherwise the pleadings raise no new or material matters of fact or law not adequately considered and properly disposed of by the Administrative Law Judge in his order and are not of such nature as to require the issuance of a report discussing the evidence in the light of the pleadings;
Wherefor, and good cause appearing therefor: 'Issued to correct prior decision and order served September 8, 1975, which inadvertently mitted compliance date in the last ordering paragraph.
We find, That the evidence considered in the light of the pleadings does not warrant a result different from that reached by the Administrative Law Judge, and that the statement of facts, the conclusions, and the findings of the Administrative Law Judge, being proper and correct in all material respects, should be, and they are hereby, affirmed and adopted as our own; and
It is ordered, That defendant Central Transport, Inc., be, and it is hereby, ordered to cease and desist forthwith, and thereafter to refrain and abstain from the operations herein found to be unlawful, unless and until appropirate authority is obtained from the Commission; and that respondent is further required to comply with the provisions of rule 99 of the Commission's General Rules of Practice (49 CFR 1100.99);
And it is further ordered, That the statutory effective and compliance date of this order be, and it is hereby, fixed as October 14, 1975.
The statement of facts, conclusions, and findings of Administrative Law Judge Edward J. Reidy, follows:
It appearing, That, by formal complaint filed April 11, 1974, Chemical Leaman Tank Lines, Inc. (complainant), has alleged that Central Transport, Inc. (defendant), is, and has been, transporting certain commodities which are produced or derived from petroleum, in violation of express restrictions against the transportation of "petrochemicals" contained in its certificates of public convenience and necessity granted it by this Commission;
It further appearing, That "petrochemicals" are chemicals which are produced or derived from petroleum, Pacific Intermountain Exp. Co. Ext.-Petrochemicals, 81 M.C.C. 177, 184 (1959), and Navajo Freight Lines, Inc., v. Steere Tank Lines, Inc., 98 M.C.C. 447, 450 (1965);
It further appearing, That there is no substantial dispute concerning the material facts herein, and that defendant has admitted the acts of transportation alleged;
It further appearing, That substantially the same issues as are involved herein are already before the Commission in No. MC-C-7723, Bulk Hauler, Inc. v. Central Transport, Inc.;
It further appearing, That, in said No. MC-C-7723, Joint Board Number 196, by its Report and Order served April 20, 1973, ordered defendant herein to cease and desist from acts of transportation of the nature of those of which complaint is herein made, 124 M.C.C.
and that exceptions to said Report and Order are now pending before the Commission for determination;
It further appearing. That the undersigned accepts the rationale and agrees with the findings of Joint Board No. 196; in said No. MC-C-7723, and hereby adopts such findings and reasons and incorporates the same herein by reference;
It further appearing. That defendant's "Motion to Strike Portions of the Brief of Complainant" is without merit, in light of the action hereinafter taken, and should be denied:
It further appearing. That this is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4331, et seq.;
And it further appearing. That the public interest does not require the issuance and service herein of a detailed initial decision, or a discussion of the matters presented by the briefs;
It is, therefore, ordered, That defendant's “Motion to Strike Portions of the Brief of Complainant" be, and it is hereby, denied.
It is further ordered, That defendant, Central Transport, Inc., be, and it is hereby, ordered and required to cease and desist from any and all acts of transportation of chemicals produced or derived from petroleum, as heretofore ordered in said No. MC-C-7723, unless and until appropriate authority for such acts has been obtained.
It is further ordered, That the statutory compliance date after which, failing compliance, defendant will be found to be in willful violation of this order, shall be the 30th day following the service of a notice that this order has become effective as the order of the Commission.
And it is further ordered, That, in the absence of a stay or postponement hereof by the Commission, or the timely filing of exceptions hereto pursuant to the provisions of the Commission's General Rules of Practice, the effective date of this order shall be 30 days from the date of service hereof.
248-348 O -77 - 4
On reconsideration, findings in prior report and order (not printed), decided January
24, 1975, affirmed. Operation by applicant at New York, N.Y., as a broker in
Arthur M. Gurfein and Marie Louise McEvoy for applicant.
Constance L. Abrams, Rodney E. Eyster, and L. D. Santman for the United States Department of Transportation, intervenor in support of the application.
James L. Beattey, Stanley I. Goldman, Frederick J. Graf, and Joseph E. Rebman for protestants.
REPORT OF THE COMMISSION ON RECONSIDERATION
DIVISION 1, ACTING AS AN APPELLATE DIVISION, COMMISSIONERS
MURPHY, GRESHAM, AND MACFARLAND
By application filed October 4, 1973, as amended, Marie Louise McEvoy, doing business as House hold Moving Services, of New York, N.Y., seeks a license authorizing operation at New York, N.Y., as a broker in arranging transportation by motor vehicle, in interstate or foreign commerce, of house hold goods as defined by the Commission, between points in the United States, including Alaska and Hawaii. The application is opposed by Global Van Lines, Inc., Wheaton Van Lines, Inc., Alaska Orient Van Service, Inc., Alaska Terminals, Inc., Alaska Transfer and Storage, Alaska Van and Storage Co., Inc., Denali Transportation Corporation, Orme Transfer, Inc., Sig Wold Storage and Transfer, Inc., Sourdough Express, Inc., Aero Mayflower Transit Company, Inc., United Van Lines, Inc., and Imperial Van Lines, Inc., all motor common carriers.