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Virginia, and the District of Columbia, and (3) of meat, meat products, meat byproducts, and dairy products, as defined in sections A and B of appendix I to the report in the Descriptions case, supra, from Bowling Green, Owensboro, and Lexington, Ky., to points in Alabama, Arkansas, North Carolina, South Carolina, Connecticut, South Dakota, Florida, Georgia, Illinois, Indiana, Louisiana, Michigan, Mississippi, New York, Ohio, Pennsylvania, Oklahoma, Texas, Tennessee, Virginia, and West Virginia; restricted in each instance to the transportation of traffic originating at the named origins.
Various petitions and replies were filed in No. MC-115841 (SubNo. 425), and by an order dated October 8, 1974, Appellate Division 1 recalled the proceeding in No. MC-107515 (Sub-No. 858) for consideration by Division 1 and reopened that proceeding and the proceeding in No. MC-115841 (Sub-No. 425), for the purpose of receiving additional evidence as to the present status of shipper Baltz Brothers Packing's plants3 at Lexington, Owensboro, and Bowling Green, Ky., and the need for motor carrier service therefrom. That order further provided for consideration of both proceedings on a consolidated basis on the records as then made. In all other respects the petitions in No. MC-115841 (Sub-No. 425) were denied.
The evidence in each proceeding, the initial decision and the review board's decision and order in No. MC-115841 (Sub-No. 425), and the pleadings have been considered. We adopt the board's statement of facts, as modified and supplemented herein, as our own. Inasmuch as the reopening of No. MC-115841 (Sub-No. 425) was concerned only with part (3) of the application, only that part will be further discussed.
THE PERTINENT FACTS
Refrigerated is an irregular-route motor an irregular-route motor common carrier authorized to transport various perishable commodities. It presently has authority, under Sub-No. 687, to transport frozen sausage from Bowling Green, Ky., to points in Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Ohio, South Carolina, Texas, and Wisconsin. Applicant has transported mixed shipments of frozen and unfrozen meat for shipper Baltz under temporary authority. 'Supporting shipper in No. MC-107515 (Sub-No. 858) and of part (3) in No. MC-115841 (SubNo. 425).
Refrigerated operates 913 tractors and 1,050 trailers (all mechanically refrigerated) and maintains numerous terminals throughout its system. It offers truckload or less than truckload (LTL), as well as multiple pickup and delivery service. Applicant has tendered appropriate financial and safety information.
Colonial, a motor common carrier specializing in the transportation of foodstuffs, is authorized to serve numerous States, mostly east of the Rocky Mountains. Portions of applicant's present authority duplicate the authority sought herein. Colonial stations 200 tractors and 157 trailers (some with meat hooks) at its Louisville (New Albany, Ind.) terminal and offers truckload and LTL service as well as combination stop-off service.
Baltz Brothers Packing Co., of Nashville, Tenn., is a processor of meat, meat products, and meat byproducts. Its original statements submitted in each application stated that it maintained plants at Bowling Green, Owensboro, and Lexington, Ky. However, in the additional verified statements filed subsequent to the Commission's order of October 8, 1974, Baltz indicated that its operations had changed. The plantsite at Bowling Green has been sold to Bob White Packing Company, Inc., of Bowling Green, and the Owensboro facility of Baltz has ceased operations. As a result, Baltz's operations concerning those two facilities need not be further discussed. The Lexington facility, however, is still being operated by Baltz. In its original verified statements, Baltz explained that the Lexington plant slaughtered 90 to 100 head of cattle and 1,000 head of pork a week. The plant produced carcass and boxed beef and pork items and weiners, luncheon meat, and boneless beef. Those perishable products, which were destined to customer warehouses, public warehouses, and supermarkets, required transportation in mechanically refrigerated equipment. As of June 1973 (when the original verified statement in No. MC-107515 (Sub-No. 858) was filed) the Lexington plant had a total capacity of 121,845 pounds. weekly. The initial support was for the movement of the products produced at Lexington from Bowling Green where they were taken by shipper in private carriage operation for movement in mixed loads with frozen sausage then being produced at Bowling Green. Baltz utilized the services of Refrigerated for the transportation of frozen sausage, but when it decided to ship unfrozen and frozen goods together it chose to support Colonial. Shipper has been
'A July 1972 prepared statement in the Colonial application indicated that 525 hogs a week were slaughtered, while a later (June 1973) statement in the Refrigerated proceeding states that the weekly slaughter is 1,000.
utilizing the services of Colonial under temporary authority, but in its June 1973 verified statement filed in the Refrigerated proceeding it asserts that this service has been inadequate because Colonial has refused to carry various shipments. On the other hand, in Baltz's original support of Colonial it stated that the service of Refrigerated (for frozen sausage from Bowling Green) was unsatisfactory. Baltz has now filed additional verified statements in behalf of each applicant that do not further mention service failures. Those additional statements merely show that the Lexington plan is still operating; that interstate traffic presently is moving to points in Ohio, Tennessee, and West Virginia; and that the destination States "may" change in the future. In the additional statement filed in the Refrigerated proceeding the witness says that he is unable to project the tonnage that the Lexington plant “may wish to ship by common carrier now or in the future" while in the Colonial proceeding he claims, without further amplification, that shipper still requires "some" common carrier service from Lexington.
Transfer of operations at Bowling Green to Bob White was to take place around February 1975. Bob White has now submitted a verified statement in support of Colonial's application but did not support Refrigerated. Shipper is a distributor of meat cuts to institutions, hotels, and restaurants, and also a distributor of cheese and cheese products (25,000 pounds weekly) from its existing nearby plant. It plans to utilize this new facility to operate a slaughtering operation, a smoked meat operation, a provisions. operation selling to retail outlets, and as a storage and distribution. point for products manufactured at the other plant. Bob White anticipates shipping an initial volume of approximately 200,000 pounds a week (one-third within Kentucky) which will increase to approximately 500,000 pounds a week after 5 years. Shipper's destination territory will include points in Alabama, Arkansas, North Carolina, South Carolina, Connecticut, South Dakota, Florida, Georgia, Illinois, Indiana, Louisiana, Michigan, Mississippi, New York, Ohio, Pennsylvania, Oklahoma, Texas, Tennessee, Virginia, and West Virginia. It incorporates by reference a list of representative points within each State that Baltz submitted and adds several additional points. The meat and dairy products Bob White seeks to transport will be transported in both a frozen and unfrozen state in mixed loads. Initially 50 percent of the goods transported will be frozen but that proportion will later drop to 30 percent. Shipper requires a carrier with mechanically refrigerated
trailers and Statewide authority to make four or five stops in transit in one or more States with full loads or in LTL service. It presently operates limited private carriage, but the additional volume created by these new operations necessitates the common carrier service requested. Shipper feels that it requires the service initially recommended by the Administrative Law Judge in No. MC-115841 (Sub-No. 425).
Midwest Emery is the only protestant in No. MC-115841 (Sub-No. 425) to have any authority relevant to the issues now involved herein. Its authority, however, is limited to service between Bowling Green and Louisville, Ky., Cincinnati, Ohio, and Nashville, Tenn. No verified statements in opposition were filed by protestants in reply to the additional verified statements filed by applicants pursuant to the order of October 8, 1974.
DISCUSSION AND CONCLUSIONS
In deciding whether new common carrier operating authority should be granted, we must determine whether the new operation or service will serve a useful purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation proposed without endangering or impairing the operations of existing carriers contrary to the public interest. Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936).
The evidence presented by shipper Baltz in the two proceedings has been confusing and ambiguous. Baltz first supported Colonial for the relevant authority stating that Refrigerated (who had been serving shipper) could not transport both frozen and unfrozen goods which Baltz now wished to combine in its shipments. It also asserted that Refrigerated's service was unsatisfactory. Baltz also supported Colonial for temporary authority, under the same reasoning, and such authority was granted. However, claiming poor service by Colonial under this temporary authority, it went on to support. Refrigerated for similar rights. Then, in response to the Commission's consolidation order of October 8, 1974, it filed additional verified statements in both applications.
Baltz's selling of the Bowling Green facility and its closing of the Owensboro plant ends its support of the proposed service from those points. Baltz still apparently supports both applicants for authority from its Lexington facility to points in Ohio, Tennessee, and West Virginia. It appears, however, that the Lexington traffic,
to the limited extent that it involves interstate movements, will be handled by private carriage. Now that shipper's operations have undergone the extensive changes noted, there is insufficient reliable noncontradictory evidence in these records to support a finding that common carrier service would be used if any authority were granted, or to enable us to determine the feasibility of the proposed operations. Lexington is even outside the scope of the Refrigerated application. In any event, the evidence of need by Baltz for common carrier service from Lexington is too vague and speculative to support any grant of authority to either applicant. Accordingly, the Refrigerated application must be denied in its entirety and no Lexington authority can be granted in the Colonial proceeding.
The evidence presented does indicate a need by shipper Bob White in the Colonial proceeding for motor common carrier service in the transportation of various meats, meat products, meat byproducts, and dairy products from Bowling Green to the 21 States indicated below. Protestant Midwest Emery's relevant authority from Bowling Green to only three named cities is much too limited to satisfy shipper's needs. Refrigerated only possesses authority to transport frozen sausage from Bowling Green. This limited authority. does not allow Refrigerated to transport Bob White's wide range of products. Thus, a grant of authority from Bowling Green is warranted in the Colonial application. We conclude, therefore, that to the extent the proposed operations will serve a useful public purpose responsive to an unmet public need for service, the Colonial application should be granted as indicated below.
Inasmuch as the grant of authority described in our findings duplicates Colonial's previously noted existing motor common carrier authority to a certain extent, such grant of authority and applicant's existing authority that it duplicates shall be construed as conferring only a single operating right.
We find in No. MC-107515 (Sub-No. 858) that applicant has failed to establish that the present or future public convenience and necessity require the proposed operation; that the application should be denied; and 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.