The evidence of record establishes a need for the service of a carrier which can provide shipper with specialized equipment on short notice. Applicant maintains a substantial quantity of the needed equipment at terminals close to shipper's Calumet City plant and is, therefore, capable of supplying sufficient equipment, as required, to meet shipper's time requirements. Applicant is currently transporting the involved commodity for shipper in a satisfactory manner, which is an additional reason to believe that it can and will adequately provide the proposed service.

It appears that both protestants are incapable of furnishing the requisite service. Although Rogers has a terminal in the vicinity of shipper's plant, it apparently does not have a sufficient inventory of the required equipment stationed at this terminal on a continuous basis. Presumably, this is one reason why Rogers' previous service to shipper has entailed unacceptable postponements and delays. Although no specific instances are given, Rogers has "invariably” been 12 to 24 hours late in making pickups. Based on past experience, shipper cannot rely on Rogers for the future transportation of its dry plastic on a timely basis to the involved destination points. Its offer to relocate suitable equipment now domiciled elsewhere to terminals near shipper's plant is conditioned upon the uncertainty of whether or not this equipment will be fully utilized by it elsewhere.

Coastal has no suitable trailers at its Chicago area terminal and, although it states that it can locate four such trailers at this location, there is no certainty it would do so, even if offered shipper's traffic. This level of service is clearly inadequate to meet shipper's stated needs. Moreover, Coastal may provide service to one of the involved destination States (Massachusetts) only through an interline agreement with P. B. Mutrie, which has not joined in a protest to this application. Mutrie's lack of interest leads us to give little weight to Coastal's assertion that it is able to conduct the proposed service to Massachusetts, see Home Transp. Co., Inc., Extension-Lift Trucks, 95 M.C.C. 128, 132 (1964). It should be noted that neither protestant provides service to points in Tennessee.

In regard to protestants' argument that applicant has failed to meet its burden of establishing an insufficiency in existing service, we note (1) that there is substantial evidence that existing service is not suitable to meet shipper's needs in providing the proposed operation, and (2) that the Commission has often said that the

benefits to be derived from a proposed operation warrant a grant of authority even if it is not found that existing service is inadequate. If this application is granted, shipper will have applicant's large number of suitable trailers available for shipments to points in the five involved destination States. If it is denied, shipper will be faced with the present inadequacy and future uncertainty mentioned above. We cannot find, on this record, that protestants' services are, or will be, adequate to meet shipper's needs.

In conclusion, having carefully weighed all of the evidence and considered all arguments, we conclude that the application should be granted.

FINDINGS

We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of dry plastics, in bulk, in tank vehicles, from the plantsite of Cosden Oil & Chemical Company, located at or near Calumet City, Ill., to points in Massachusetts, New Jersey, New York, Pennsylvania, and Tennessee; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; 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 a certificate authorizing such operation should be granted.

Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act and with the Commission's rules and regulations thereunder, within the time specified in the order entered concurrently herein, an appropriate certificate will be issued. An appropriate order will be entered.

125 M.C.C.

No. MC-C-8313

HEAVY AND SPECIALIZED HAULERS, INC.-INVES-
TIGATION OF OPERATIONS'

Operations performed by respondent pursuant to its certificate in No. MC-113963 found to be unlawful. Cease and desist order entered.

John M. Nader for respondent.

J. Preston Proffitt, Jr., and John J. Charuhas for the Bureau of Enforcement,, Interstate Commerce Commission.

DECISION AND ORDER

At a Session of the INTERSTATE COMMERCE COMMISSION, Division 1, held at its office in Washington, D.C., on the 9th day of September 1975.

Upon consideration of the record in the above-entitled proceeding, including the initial decision of the Administrative Law Judge, the exceptions there to filed by respondent, and the reply filed by this Commission's Bureau of Enforcement; and

It appearing, That the Administrative Law Judge found respondent to have engaged in transportation not authorized by its Certificate No. MC-1139632 in violation of section 206(a) of the Interstate Commerce Act, and recommended the issuance of a cease and desist order;

It further appearing, That the certificate in question, issued February 26, 1970, reads, as pertinent:

Commodities which because of size or weight require the use of special equipment or handling, between points in Tennessee, Alabama, Kentucky, Georgia, North Carolina, South Carolina, Virginia, and Mississippi, within 175 miles of Chattanooga, Tenn., including Chattanooga. [Emphasis added]

that the principal issue in this proceeding is whether the phrase italicized above modifies only "Mississippi" or all of the preceding

'Reentitled Heavy and Specialized Haulers, Inc.-Investigation and Revocation of Gertificates. In his report, the Administrative Law Judge inadvertently, but consistently, refers to the lead certificate here in question as respondent's Sub-No. 3 Certificate. We find his inadvertence to be harmless, inasmuch as he otherwise clearly confined his deliberations to the lead certificate in question.

3

named States; and that by applying the grammatical rule of construction known as the Doctrine of the Last Antecedent, the Administrative Law Judge concluded that the territorial scope of respondent's operations under the lead certificate could extend only to points in the named States no more than 175 miles from Chattanooga;

It further appearing, That it is well established this Commission is not permitted to go beyond the certificate in question in determining its meaning unless it is patently ambiguous, cf. Leonard Bros. Trucking Co., Inc.-Investigation, 120 M.C.C. 762 (1974); that, although respondent contends that the certificate here in question is "somewhat uncertain" in meaning, for which reason the Doctrine assertedly should not be applied, it has been held that it is not improper to apply the Doctrine in the initial determination of ambiguity, see T. I. McCormack Trucking Co. v. United States, 251

"According to the Doctrine, relative and qualifying words, phrases, and clauses are to be applied to the word or phrase immediately preceding and should not be construed as extending to more remote words or phrases unless such extension is clearly required by the context of the language in question. Where a comma separates a modifying clause from the word or clause immediately preceding, the presence of the comma is an indication that the modifying clause was intended to modify all the preceding clauses and not merely the last antecedent clause. T. I. McCormack Trucking Co., Inc.-Investigation, 110 M.C.C. 499, 500 (1969).

'It appears that pursuant to the report in Heavy & Specialized Haulers, Inc., Investig. & Revocation, 105 M.C.C. 63 (1967), the Commission issued to respondent Certificate No. MC113963, dated October 3, 1969, which authorized the irregular-route transportation of "size and weight" commodities between points within 175 miles of Chattanooga, but did not name the States obviously implied by the territorial description. Respondent concedes that operations under this certificate would clearly be limited to only those points within 175 miles of Chattanooga. However, respondent argues that since the Commission in the subsequently issued certificate here in question named the States otherwise implied by the territorial description used in the 1969 certificate, the Commission appears to have intended the authorization of operations broader in territorial scope than those clearly authorized in the 1969 certificate. It is in this sense that respondent finds "uncertainty" in the meaning of its extant certificate.

The record shows, however, that the Commission by a "Notice to the Parties," dated October 28, 1969, and served the next day, declared that the "purported" certificate of October 3, 1969. was without force and effect and should be disregarded, inasmuch as petitions for reconsideration to the report at 105 M.C.C. 63 were pending. The "Notice" further declared that Certificate No. MC-113963, issued December 9, 1963, remained in full force and effect. This latter certificate read:

Industrial plants (and related commodities), between points in Tennessee, Alabama. Kentucky, Georgia, North Carolina, South Carolina, Virginia, and Mississippi, within 175 miles of Chattanooga, Tenn., (restricted against operations between points in Tennessee, Alabama, and Georgia, within 15 miles of Chattanooga).

The certificate here in question, issued pursuant to the report in No. MC-113963, Heavy & Specialized Haulers, Inc., Modification, "Grandfather" Authority, 109 M.C.C. 137 (1969), in fact superseded the December 1963 certificate and not, as respondent apparently believes, the purported certifcate of October 1969.

F. Supp. 526, 534 (1966); and that applying the rule to the disputed phrase here in issue indicates that the qualifying phrase "within 175 miles", following the comma after the word "Mississippi", is intended to modify not only the last antecedent "Mississippi", but also all of the preceding States; i.e., Tennessee, Alabama, Kentucky, Georgia, North Carolina, South Carolina, and Virginia, compare T. 1. McCormack, 110 M.C.C. 499, supra;

It further appearing, That respondent contends that the Bureau's letter of April 5, 1974, informing respondent of the nature of the complaint here considered failed to comply with the notice requirement of the Administrative Procedure Act (APA), [5 U.S.C. 554(b)(3)], inasmuch as the Bureau therein did not cite Home Transp. Co., Inc., Ext.-Chattanooga, Tenn., 109 M.C.C. 137 (1969), embracing as here pertinent, Heavy & Specialized Haulers, Inc., Modification, supra, at footnote 4, as a case it would thereafter rely upon; that the pertinent APA provision requires that all persons entitled to notice of an agency hearing shall be timely informed of the "matters of fact and law asserted" [emphasis added]; that it does not appear this provision requires that an affected party be given notice of every case to be relied upon, but only a reasonable notice of the factual and legal issues involved;5 that, moreover, the assailed letter notice did apprise respondent that the Bureau would rely on other cases "Among the precedent cases" cited therein; and that respondent may not here fairly claim inadequate notice or surprise, particularly inasmuch as it is charged with knowledge of its own. participation in the prior case (in which it was represented by the same law firm as in this proceeding);

It further appearing, That in prior proceedings before this Commission (reported at 105 M.C.C. 63 and 109 M.C.C. 137), the specific question of the proper interpretation of the territorial scope of respondent's Certificate No. MC-113963 was not decided; and that, otherwise, it does not appear that the Administrative Law Judge regarded these prior cases or the evidence of respondent's prior conviction on a criminal information charging unlawful operations under its certificate" as dispositive precedents for the

See generally Walter Gellhorn and Clark Byse, Administrative Law: Cases and Comments, 4th ed. (Brooklyn: The Foundation Press, Inc., 1960), pp. 837-59.

"In the body of his report, the Administrative Law Judge refers to respondent's criminal indictment, rather than information, "of handling commodities more than 175 miles from Chattanooga." Respondent claims to have been prejudiced by these remarks, although it concedes that the Administrative Law Judge did set forth its contrary contention that the criminal information involved the handling of unauthorized commodities, rather than operations to (footnote continued on next page)