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that they now have as many terminals as present traffic flow will permit, and any more would be inefficient. Additional terminals would cause re handling and higher costs. Rather the freight forwarders argue that the Commission should recognize the realities of forwarder operating practices and expand their terminal areas to reflect the proper scope of the pickup and delivery areas within which Congress, in enacting forwarder regulation, intended forwarders to function.

The Freight Forwarder Institute submitted with its representations a report prepared by a research and consulting firm entitled, “An Assessment of the Population-Mileage Formula." Twelve major cities were selected," and population movements within a 60-mile radius of each selected city were analyzed. Using United States Bureau of Census statistics for 1960 and 1970 and the aid of a computer data service firm, the diffusion of population over a 10-year period could be traced throughout the urban and outlying area as defined by the 60-mile radius. Certain relevant statistics from this study are reproduced in Appendix C. The consulting firm after analyzing these statistics discerns the following general trends:

(1) Major cities are experiencing an accelerating tendency to expand ou tward. The growth rate for the area surrounding the selected central cities has been more than five times that of the central cities.

(2) Decentralization of metropolitan areas is also apparent from an employment stand point. The SMSA employment figures for the 12 studied cities reveal that the central cities' share of overall SMSA employment in manufacturing, retail and wholesale trade, and selected services declined when compared to the surrounding area.

(3) Present commercial zone and terminal area limits are outdated, since they include a diminishing share of urban area population.

The consulting firm concludes than the proposed populationmileage formula can serve as a reasonable proxy for an exact delineation of the location of economic and industrial activity about municipalities.

It recommends that the Commission adopt the proposed expansion with several suggested additions. The initial recommendation is that the proposed distances be increased for cities greater than 1 million and 2 million in population. It further suggests that the formula be administered so as to take account of those cities that cannot expand in all directions due to the presence

"Baltimore, Md., Boston, Mass., Cleveland and Columbus, Ohio, Denver, Colo., Indianapolis, Ind. Miami, Fla., New York, N.Y., Phoenix, Ariz., St. Louis, Mo., and Los Angeles and San Francisco, Calif.

of a physical or geographic barrier, such as an ocean, mountain, or desert. Finally, it is suggested that distances be measured from the center of cities rather than municipal limits. This would ease administration of the exemption. If this approach is adopted, then 10 miles should be added to the proposed formula distances. The following table represents the population-mileage formula recommended by this study:

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Several carriers contend that the complexity of the issues raised herein, as well as the gravity of impact upon the motor carrier industry entailed by expansion of commercial zones and terminal areas, merits a formal oral hearing, and that failure to provide for such oral participation is violative of procedural due process as guaranteed by the Constitution. They assert specifically that this Commission cannot fully consider the devastating effects of the proposed expansion upon small short-haul carriers without affording them an opportunity to appear and present oral evidence in this matter. It is claimed that the procedure utilized here'in deprives participants of the right to confront and cross-examine those who espouse opposing views, which is seen as a necessary aid to this Commission's careful determination of the issues. The initial procedure followed by this Commission, i.e., Federal Register publication of the notice of proposed rule making inviting written submissions by interested persons, is attacked as unduly secretive and as failing to provide sufficient time to treat properly the questions posed therein. A few carriers suggest that the entire

procedure represents an attempt by this Commission and the larger carriers to force smaller carriers into bankruptcy or merger. Finally, in addition to the general proposition that oral hearings be scheduled in this matter, several carriers propose that we employ a joint board format in holding hearing on a regional or statewide basis, with the participation of State regulatory bodies, so that the local impact of expanded commercial zones and terminal areas may be more fully ascertained.

There are three bases for the assertion that an oral hearing is required in this type of proceeding the Interstate Commerce Act, the Administrative Procedure Act (APA), and the Fifth and Fourteenth Amendments to the Constitution. Since neither the Act nor the General Rules of Practice promulgated thereunder impose any such requirement, this discussion will be limited to consideration of pertinent APA provisions and the constitutional arguments.

Section 553(c) of the APA provides:

After notice required by this section, the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation. (Emphasis added.)

Clearly the APA does not mandate that administrative rule making be accomplished by oral hearing. Instead, it sets out minimum standards for the participation of parties by requiring that they be afforded an opportunity to make written presentations. Absent a specific statutory requirement to the contrary, the decision to hold oral hearings in a rule making proceeding is a matter solely within the discretion of the particular agency. 5 U.S.C. $$1003(b).

The only question remaining is whether failure to hold oral hearings violates established concepts of procedural due process. In Bi-Metallic Co. v. Colorado, 239 U.S. 441 (1915), the Supreme Court clearly held that it does not. Speaking for the Court, Justice Holmes observed that:

Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption*** There must be a limit to individual argument in these matters if government is to go on."

239 U.S. 441, a. 445. Accord, see Bowles v. Willingham, 321 U.S. 503, 519 (1944) (upheld Emergency Price Control Act providing for maximum rents without hearing); Willapoint Oysters v. Ewing, 174 F. 2d. 676, 694, ceri denied 338 U.S. 860 (1949) (FDA oyster canning); Gari v. Cole, 263 F.2d. 244 (1959) (FHHFA sium relocation); Air Line Pilois Association, International v. (fooinote continued on next page)

The rule which has emerged provides that in a rulemaking proceeding, where an administrative body undertakes legislative action of a prospective nature applicable to a general class of persons, and where no adjudicative facts are found to be in dispute, there is no constitutional right to a hearing. The reasons for the rule are readily apparent. Participation through written submissions is more convenient and less expensive and time-consuming, thus encouraging a greater number of parties to take an active part in the proceeding. The agency benefits from a wider spectrum of views presented in an orderly manner, without the burden of conducting sometimes unwidely hearings, all of which facilitate an expeditious review of the issues and a prompt decision.

The second major objection voiced by several of the carriers involves deprivation of the right of confrontation. There is no authority to be found, and none cited by the carriers, to support the assertion that such a right obtains in a rulemaking proceeding. It is available only when adjudicative facts are in dispute, in an adjudicatory proceeding. K. Davis, Administrative Law Treatise 87.05 (1958). Moreover, the submissions involved here in contain economic, demographic, and other information which this Commission is well qualified to weigh and consider, in light of our substantial experience over the years in handling commercial zone cases. It is not clear that an adversary-type cross-examination of this material would aid us in reaching a decision or measurably protect the participants' interests.

The third procedural objection goes to the question of whether notice given in the Federal Register is adequate. Section 553(b) of the Act states:

General notice of proposed rulemaking shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice in accordance with law.

None of the parties herein contend that the notice given by the Commission fails to comply with pertinent APA requirements, and the question of whether such notice is constitutionally sufficient has been conclusively answered in the affirmative by the Supreme Court in Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). The assertion of a conspiracy between this Commission and large carriers based on “secretive notice” hardly merits comment, except

(footnote 15 continued) Quesada, 276 F.2d. 892, 895-898 (1960) (FAA rule against over-60 pilots); U.S. v. Bodine Produce, 206 F. Supp. 201, 204 (1962) (FAA rules on DDT); Hahn v. Gottlieb, 430 F.2d 1243, 1248 (1970) (FHA rate-making); and see generally, St. Louis, Mo.-East St. Louis, III., Commercial Zone, 61 M.C.C. 489, 492 (1953).

to note that notice and the opportunity to be heard have been extended equally to all who may wish to participate, and that all representations have received equal consideration.

Lastly, several carriers suggest that the Commission should solicit the active participation of State regulatory bodies in hearings or joint boards. It should be noted at the outset that State agencies, along with other interested persons, have already been invited to participate through written submissions, (and as noted in Appendix A hereto certain State agencies have filed representations in this proceeding), and that, as discussed above, there is no constitutional right to an oral hearing. The jurisdiction of this Commission over matters in interstate commerce, specifically regulation of surface transportation, is clearly established in section 202(a) of the Act. Section 202(b)(1) further specifies the jurisdiction reserved to the States as intrastate commerce and taxation. Moreover, section 205(a) provides that this Commission may, in its discretion, refer to a joint board matters not enumerated in that section (commercial zones would appear to be in this category). In sum, the decision to hold oral hearings, whether in Washington, by region, or by joint boards, is one solely within the discretion of this Commission, and, absent a showing that such discretion has been abused, there is no basis for requiring that any type of oral hearing be held.

We must now consider the petition of Garment Truckmen Association of New Jersey, Inc., for leave to fiļe its representation in this proceeding after the time limit of October 14, 1975, set forth in the Federal Register. Petitioner avers that inasmuch as the pleading was mailed on October 14, although not received by this Commission until October 22, it should not be penalized for the slowness of postal delivery. However, Rule 4(b) of our General Rules of Practice 149 CFR 1100.4(b)] clearly states that the time limit is determined by date of receipt at the Commission and not date of deposit in the mails. It is petitioner's responsibility to meet all reasonable time limits, as well as other procedural rules, set forth by this Commission to aid in an orderly determination in this proceeding. Petitioner has failed to show good cause why its latefiled pleading should be accepted, other than to state that it inadvertently noted the time limit as October 24.

This Commission has been very liberal in accepting late-submitted statements in this important matter. But we have also been under a commitment to the public to issue an interim report in this matter within 90 days of the October 14, 1975 comment deadline. Therefore, we accepted filings received through October 17, 1975. Petitioner's filing received 8 days late, as well as other representations received after October 17, 1975, have been properly

124 M.C.C.

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