of these refineries in the usual course of his business. Inquiries were made of all the Montana refineries with respect of this application, and the refineries expressed no dissatisfaction as to the service by rail.

In addition, protestants also presented three witnesses who were of the opinion that the existing rail service is adequate. These witnesses own and operate bulk stations at Stanley, Battleview, or Noonan, N. Dak. Small trucks are used by them to deliver to their customers, but none of them desires the proposed motor-carrier service. Their supplies are received from Casper, Wyo., Minneapolis, Minn., or Tulsa, Okla.

There is no doubt as to the existence of adequate rail service to numerous points included herein. However, we have found in prior cases that communities are entitled to adequate service by motor vehicle as well as by rail, upon a showing that such motor-carrier service is required.

From the foregoing, there is some doubt as to whether the Montana refineries require the proposed service. No witness representing them appeared. While the wholesale distributor stated that he would discontinue his private-carrier operations if the authority sought is granted, his operations from the Montana points have not been such as to show a substantial demand for the services. The last shipment transported by him from Great Falls moved approximately 1 year prior to the hearing herein, and he has transported but one or two shipments from Havre. In addition, most of the gasoline consumed in this North Dakota territory comes from Laurel, a point which applicant is authorized to serve, and the largest percentage of the gasoline used by this distributor comes from Newcastle, a point which applicant is authorized to serve by our findings in No. MC-63513 (Sub-No. 4) also included herein. In the circumstances, the authority granted in this application must be limited to Greybull and Cody.

Rail carriers contend that the application should be denied owing to applicant's financial unfitness to conduct the business. It is true that applicant's financial statement is conflicting, but the fact that it has operated as a motor carrier for over 8 years at a profit we think is substantial proof that it is financially fit to receive the authority sought. Protestant rail carriers contend further that applicant cannot operate at a profit at the rates proposed, but this contention must be rejected since rates are not in issue in this proceeding. Findings. We find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle of liquid petroleum products, in bulk, in tank trucks, in interstate ign commerce, from Cody, Greybull, and Newin North Dakota on or west of a line consisting

castle, Wyo.,

1

of North Dakota Highway 49 from the South Dakota-North Dakota State line to the Missouri River, thence easterly along that river to the crossing thereof by North Dakota Highway 28, thence along the latter to the international boundary, over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the Interstate Commerce Act and our rules and regulations thereunder; that it should be granted a certificate authorizing such operations; and that in all other respects the applications should be denied.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the applications except to the extent a certificate is granted herein.

28 M. C. C.

No. MC-100270 (SUB-No. 1)

GEORGE E. BIDDISON CONTRACT CARRIER

APPLICATION

Submitted July 17, 1940. Decided March 18, 1941

Operation by applicant as a contract carrier by motor vehicle, of asphalt of a certain specification, in temperature-controlled tank trucks, from Baltimore, Md., to points in Delaware, Maryland, New Jersey, Pennsylvania, Virginia, West Virginia, and the District of Columbia within 165 miles of Baltimore, over irregular routes, found to be consistent with the public interest and the national transportation policy declared in the Interstate Commerce Act. Issuance of a permit approved upon compliance by applicant with certain conditions, and application in all other respects denied. John R. Norris for applicant.

Guy K. Stewart, Frank X. Masterson, and Karl J. Eisenhardt for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by protestants to the order recommended by the examiner, applicant replied, and the parties were heard in oral argument.

By application filed April 29, 1939, as amended, George E. Biddison, of Baltimore, Md., doing business as Asphalt Service Company, seeks a permit authorizing operation as a contract carrier by motor vehicle, in interstate or foreign commerce, of petroleum asphalt of a B. (or A. P. I.) gravity of 14° or less, and which requires a minimum unloading temperature of 230° F., from Baltimore, Md., to points in Delaware, Maryland, New Jersey, Pennsylvania, Virginia, West Virginia, and the District of Columbia within 165 miles of Baltimore, over irregular routes. Rail carriers in trunk-line territory, National Petroleum Carriers, Inc., and Petroleum Transport Company oppose the application.

Commodity.-The commodity proposed to be transported, petroleum asphalt, is the residue of crude petroleum after the removal by refinement of various petroleum products. This asphalt is then refined to various grades. Some grades, especially "cut-back” which has been thinned by being mixed with lighter grades of petroleum, do

not need to be hot to permit unloading, but, in the main, asphalt solidifies at atmospheric temperatures and must be kept at temperatures substantially in excess thereof to be in a sufficiently fluid state to permit loading and unloading. It is loaded at a sufficiently high temperature to be fluid, and the primary problem in its transportation is the maintenance or obtaining of this same temperature at destinations. Existing for-hire carriers employ for this purpose tanks equipped with coils of pipe within the tank, through which steam can be circulated on arrival at destination. Even on short-haul trips where the actual application of heat is usually unnecessary, such facilities must be provided to permit unloading should a delay in transit because of break-down or any other reason allow the asphalt to solidify en route. Applicant desires to transport only those grades which require a minimum temperature of 230° Fahrenheit to permit unloading at destination, and proposes to operate trucks equipped with burners which can be used either to maintain this temperature in transit or to raise it quickly to that level at destination, thereby saving the consignee the expense of steam, and avoiding the delay incident to its use. As hereinafter used, the term asphalt applies to a commodity of the character proposed to be hauled.

Equipment.-Applicant owns and operates a total of 8 tractors and 22 tank semitrailers. One of the tractors and 4 of the semitrailers are equipped with power pumps for unloading purposes; 15 of the semitrailers are equipped with heating units; and 3 with spraying equipment. Applicant will use in the proposed operation 5 tractors, and 9 tank trailers with capacities ranging from 2,300 to 3,123 gallons. Five of these tanks are equipped with heater equipment, consisting of a kerosene burner under air pressure or a low-pressure fuel-oil burner, located at the rear of the tank. The burning chamber or flue is U-shaped and extends from the burner through the center of the tank to its front, doubles back, and emerges at the toprear of the tank. The burners are manually operated from the side or rear of the trailer and are not equipped with any automatic thermostatic controls or safety devices to prevent overheating or to shut off the heater if the equipment overturns or the driver fails to regulate it properly. Applicant relies solely on the experience of his drivers for the safe operation of the burners.

This type of equipment has been in use for a number of years in local short-haul work, principally in the application of hot asphalt directly to road surfaces. Applicant contends that line-haul transportation involving the use of this equipment is a service not heretofore performed by any carrier for hire and should be accorded a special classification. On this premise, he argues that existing carriers who are authorized to transport petroleum products generally

may not perform this type of service. Whether they may or may not is a question which we do not find it necessary to decide in this proceeding, for even if we assume that they may the result is not changed.

Protestants contend that the operation of heater-equipped tank trucks on the highways is a great hazard and that the granting of the authority here sought would accordingly not be consistent with the public interest. Much of the testimony tends to support this contention and points to the conclusion that the open-flame burner is hazardous from the standpoint of fire or explosion because of leakage or overheating, as well as from the possibility of fires resulting from collisions with other vehicles, particularly those loaded with gasoline or other inflammables. Applicant as well as others now operates such equipment over the highways, and two of the protesting carriers offer to provide the same type of equipment. The record contains no showing that such equipment cannot under any circumstances be operated safely, but it is convincing that extra precaution in the handling of such vehicles is necessary in the interest of public safety. What these extra precautions should be is difficult of determination in the absence of more comprehensive factual information concerning these vehicles and the conditions under which they are used. It is clearly evident, however, that the use of the flame burners while the vehicle is actually moving along the highways creates a hazardous situation which can be obviated without unduly burdening the carrier or inconveniencing either the shipper or consignee. We think that a special condition prohibiting a carrier using this type of equipment from lighting or using open-flame burners except and only when the vehicle is at rest off the highway is not an unreasonable rule. Accordingly, any authority to be granted applicant herein will be subject to his compliance with such a condition.

Present operations.-Since 1917, applicant has been a distributor of asphalt, engaged in selling it to road-building contractors, including direct application to road surfaces. A small percentage of his business has consisted of selling and delivering asphalt directly to storage tanks of plants which produce Amiesite and other premixed road-building materials. Since 1931 or 1932, applicant has been the sales distributor at Baltimore for the Mexican Petroleum Corporation, hereinafter referred to as the shipper. In making sales of asphalt, applicant quotes a delivered price and includes no separate charge for transportation. As such transportation is performed in the furtherance of applicant's primary business of a distributor of asphalt, it is that of a "private carrier of property by motor vehicle" as defined in section 203 (a) (17) of the Interstate Commerce Act.