effective competitor for the traffic depends entirely on the nature of the shipments it has transported and not on the ultimate consequences, adverse or otherwise, stemming from the adjudication of its gateway elimination application. Shipments of military household goods, traditionally viewed as noncompetitive, do not suddenly acquire the attributes of competitive traffic by virtue of an administrative decision to terminate gateway operations. The evidentiary status of military traffic is predicated solely on the method of its distribution. Allocation by rotation has not been in the past and is not now competitive.

Lastly, applicant Paramount argues that the review board erred in denying its application by (1) failing to consider the adverse effects of a denial, and (2) depriving it of its right to join its authorities without due process of law. Both of these contentions are without merit. Applicants are not being required to cease any operations for which a public need was proven. Rather, they are being required to cease circuitous, energy-inefficient operations for which a public need was never demonstrated and to forego traffic for which they have been unable to show they are existing, effective competitors. Moreover, Paramount's gateway elimination application has been duly considered in accord with procedures which were approved in Thompson Van Lines, Inc., v. United States, 399 F. Supp. 113 (D.D.C. 1975), affirmed per curiam, 96 S. Ct. 763 (1976).

Upon further consideration of the title proceeding in light of applicant's late-tendered evidence, we conclude in accordance with the findings of Review Board No. 3, that applicant Paramount has failed to show any substantial movement of nonmilitary traffic which would make it an effective competitor for the traffic involved herein. The late-tendered evidence merely supplies additional statistical information on shipments previously considered. Accordingly, the application will be denied.

In No. MC-75110 (Sub-No. 6G), upon reconsideration on the present record, we conclude that the partial grant of authority made by Review Board No. 1 must be reversed. An examination of applicant's traffic abstract reveals that of the 105 shipments listed, two were handled after the 2-year period specified in the regulation, and 32 other shipments moved from, to, or between named military installations such as Fort Leonard Wood, Mo., and Tinker Air Force Base, Okla. The overwhelming majority of the remaining 71 shipments moved between cities and localities surrounding military bases, such as Colorado Springs, Colo. (Fort Carson and the United States Air Force Academy), and Lawton, Okla. (Fort Sill). As part

of its burden of proof, an applicant has the duty to demonstrate affirmatively that said shipments are in fact competitive, nonmilitary traffic. Since no such showing was made by applicant, the suspect shipments are entitled to little weight. Inasmuch as applicant has presented little, if any, traffic evidence of a nonmilitary nature which establishes that it is a bona fide competitor for the involved traffic, the application must be denied.

FINDINGS

On reconsideration, we find that applicants in both proceedings have failed to establish that the present or future public convenience and necessity require the proposed operations; 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; and that the applications should be denied. An appropriate order will be entered.

COMMISSIONER CHRISTIAN, dissenting:

I would grant applicant's petition for reconsideration in the title proceeding and deny protestants' petition for reconsideration in the embraced proceeding. Evidence of shipments for the military should be included in our consideration of gateway elimination applications. I realize that military traffic has been excluded in the past when the Commission has evaluated the competitive position of a carrier proposing to eliminate its gateways and perform a direct service. However, blindly citing historic treatment of military traffic ignores the purposes of the new rules adopted in Gateway Elimination, 119 M.C.C. 530 (1974), and brings with it unintended results.

The criteria used to evaluate voluntarily filed carrier proposals to eliminate gateway operations were first enunciated in Childress-Elimination Sanford Gateway, 61 M.C.C. 421 (1952). Under Childress a carrier seeking direct authority to replace gateway operations was required to establish that it was an effective competitor transporting substantial traffic through the involved gateway. As noted in the majority report, the Commission has consistently held, in voluntarily filed gateway elimination cases, that military shipments transported under Government bills of lading would not be considered as competitive traffic. However, in such cases if a carrier failed to satisfy Childress because its traffic was

substantially military, it could continue to operate through its gateways.

The new gateway elimination rules were adopted to promote economical and efficient motor carrier operations, without endangering the existing competitive balance, by authorizing direct service in lieu of circuitous gateway operations. The primary goal of the rules was a significant reduction in fuel consumption. Carriers were required to file gateway elimination applications in order to continue serving points previously served through the gateways. And unlike the previous voluntary procedure, the result of a denial of an application under the new gateway elimination rules is to force a carrier to cease operations through the gateway. Thus, a denial under the new gateway elimination rules may completely eliminate a competitor from the area if certain evidence of past operations is excluded.

In Gateway Elimination, supra, at 550, it was stated that the Childress criteria would be applied to required filings under the new gateway elimination rules. The Gateway Elimination decision itself, however, did not address the question of the treatment to be accorded military traffic, and the special problems posed by an application of the prior exclusionary practice to the context of the new rules have never been focussed upon. The logic of applying old remedies in new settings has its limits. Before a carrier is ordered to cease its operations in the name of energy conservation, we must be sure that our action is tailored to achieve the desired result-energy conservation and the preservation of the existing competitive balance.

Initially it should be noted that the application in the title proceeding was filed to "round out" authority granted to applicant under the letter-notice procedure. Applicant in the embraced proceeding has received approximately 46 grants of authority under the Commission's letter-notice procedures. The character of applicants' traffic (i.e., whether military or nonmilitary) was not questioned in applicants' "E" filings. This patently inconsistent treatment of military traffic under different procedures of the new gateway elimination rules is, in my opinion, reason enough in itself to grant applicant's petition for reconsideration in the title proceeding.

In my opinion, the majority's refusal to consider military traffic runs counter to the stated goals of the new gateway elimination rules. The majority's decision forces the applicants to discontinue service that they may have been providing through their gateways

without offering any opportunity for the substitution of direct service. Surely there is a way to appropriately restrict applicants' operations rather than summarily terminate them. By applying legal precedent which is unsuited to the task at hand, the majority has deprived the applicants not only of an opportunity to participate in our gateway elimination procedures, but of the right to continue to conduct the operations which they may have lawfully conducted in the past.

This action is both ironic and unfair because applicant in the title proceeding was among the group of carriers that originally petitioned the Commission to adopt the gateway elimination rules, Gateway Elimination, 119 M.C.C. 170 (1973).

125 M.C.C.

APPENDIX A

Authority sought in No. MC-31462 (Sub-No. 21G)

To transport household goods, as defined by the Commission,

(1) Between points in Alabama, on the one hand, and, on the other, points in Arkansas, Colorado, Connecticut, District of Columbia, Florida, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana (within 450 miles of Williston, N. Dak.), Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

(2) Between points in Arkansas, on the one hand, and, on the other, points in Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana (within 450 miles of Williston, N. Dak.), Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

(3) Between points in Colorado, on the one hand, and, on the other, points in Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

(4) Between points in Connecticut, on the one hand, and, on the other, points in Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana (within 450 miles of Williston, N. Dak.), Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin.

(5) Between points in the District of Columbia, on the one hand, and, on the other, points in Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, Montana (within 450 miles of Williston, N. Dak.), Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and Mississippi.

(6) Between points in Florida, on the one hand, and, on the other, points in Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana (within 450 miles of Williston, N. Dak.), Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklanoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, and Wisconsin.

(7) Between points in Georgia, on the one hand, and, on the other, points in Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana (within 450 miles of Williston, N. Dak.), Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Vermont, West Virginia, and Wisconsin.

(8) Between points in Illinois, on the one hand, and, on the other, points in Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana (within 450 miles of Williston, N. Dak.),