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At a Session of the INTERSTATE COMMERCE COMMISSION,
Division 1, Acting as an Appellate Division, held at its office in
No. MC-37578 (SUB-No. 23)
JOSEPH W. TREHAN, INC., EXTENSION-REFRACTORIES
(NORTH LIMA, OHIO)
No. MC-124802 (SUB-No. 11)
ACE MOTOR FREIGHT, INC., EXTENSION-REFRACTORIES
Upon consideration of the records in the above-entitled proceedings, and of:
(1) Petition of applicant in No. MC-37578 (Sub-No. 23), filed June 9, 1975, for reconsideration;
(2) Reply by Butler Trucking Company, protestant, filed June 18, 1975, to the petition in (1) above;
(3) Joint reply by Short Freight Lines, Inc., and Red Line Express, Inc., protestants, filed June 23, 1975, to the petition in (1) above;
(4) Petition of applicant in No. MC-124802 (Sub-No. 11), filed July 3, 1975, for reconsideration;
(5) Reply by Chem-Haulers, Inc., protestants, filed July 22, 1975, to the petition in (4) above;
(6) Reply by Freeport Transport, Inc., protestant, filed July 23, 1975, to the petition in (4) above;
(7) Reply by J Miller Express, Inc., protestant, filed July 23, 1975, to the petition in (4) above;
(8) Reply by Mercury Motor Express, Inc., protestant, filed July 23, 1975, to the petition in (4) above;
(9) Reply by Deioma Trucking Company, protestant, filed July 23, 1975, to the petitions in (1) and (4) above;
and good cause appearing therefor:
It is ordered, That the petitions be, and they are hereby, denied, for the reason that the findings of Review Board Number 2 are in accordance with the evidence and the applicable law.
It is further ordered, That unless compliance is made by applicant in No. MC-37578 (Sub-No. 23) with the requirements of sections 215, 217, and 221(c) of the Interstate Commerce Act within 90 days after the application under section 5(2) of the act, mentioned in the report and order of April 25, 1975, shall have been approved or dismissed or determined to be unnecessary, or within such additional time as may be authorized by the Commission, the grant of authority shall be considered as null and void, and the application shall stand denied in its entirety effective upon the expiration of the said compliance time, and if the Commission determines that approval of an application under section 5(2), is necessary and withholds such approval, the grant of authority will be null and void, and the application shall stand denied in its entirety.
It is further ordered, That this order shall be effective 15 days from the date of service hereof.
NOTICE: By this order, these proceedings are rendered administratively final within the meaning of 49 CFR 1101.2(f) of the Commission's regulations; and, in accordance with the provisions of section 558(c) of the Administrative Procedure Act, any corresponding temporary authority expires and operations thereunder must cease upon the effective date of this order, except that to the extent permanent authority is granted in these proceedings (and if partial, only to that extent) the corresponding temporary authority
authority or portion thereof will continue in effect until a certificate or permit is issued and becomes effective. The filing of any further pleadings in these matters will not stay the expiration of the temporary authority related to the denied portion of the sought permanent authority.
No. MC-36629 (SUB-No. 3)
STEINWAY TRUCKING, INC., EXTENSION_NEW JERSEY
Decided May 7, 1975
1. Application, insofar as it seeks motor contract carrier authority, denied. 2. Proposed operation found to be that of a common carrier by motor vehicle. 3. Public convenience and necessity found not shown to require operation by
applicant as a common carrier by motor vehicle, over irregular routes, of building glass, from piers and wharves in the New York, N.Y., commercial zone as defined by the Commission in Commercial Zones and Terminal Areas, 53 M.C.C. 451, within which local operations may be conducted pursuant to the partial exemption of section 203(b)(8) of the Interstate Commerce Act, the “exempt" zone, to points in four States and portions of New York and Pennsylvania. Application denied.
Arthur J. Piken and Bruce J. Robbins for applicant.
REPORT OF THE COMMISSION
REVIEW BOARD NUMBER 3, MEMBERS BILODEAU, FORTIER, AND HILL
BY THE BOARD:
Exceptions to the initial decision of the Administrative Law Judge were filed by applicant, and protestant replied. Our conclusions agree with those of the Administrative Law Judge; however, we believe that some of the issues involved require more extended discussion.
By application filed November 20, 1972, Steinway Trucking, Inc., of Astoria, N.Y., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle, over irregular routes, of building glass, from the piers and wharves in the New York, N.Y., commercial zone, as defined in Commercial Zones and Terminal Areas, 53 M.C.C. 451, within which local operations may be conducted pursuant to the partial exemption of section 203(b)(8) of the Interstate Commerce Act, the “exempt" zone, to points in Connecticut, New Jersey, Massachusetts, Rhode Island, and that part of Pennsylvania on and east of U.S. Highway 15, and that part of New York within 100 miles of New York City, under contracts with Seaply Glass Corporation, Daniel DeGorter, Inc., John DeGorter, Inc., Amworth Industries Corp., Merchants Glass Distributors, Inc., Remington Aluminum Window Corp., Sentinel Enterprises, Inc., Bienenfeld Industries, Inc., and Flat Glass Ltd. The application is opposed by Malba Trucking, Inc.
The Administrative Law Judge found that the application should be denied. He found that applicant's present and proposed operations bear no resemblance to contract carriage inasmuch as the number of shippers to be served exceeds the maximum consistent with contract carrier status, no equipment will be dedicated to the exclusive use of any shipper, and there is nothing so inherently specialized about the proposal as to qualify it as contract carriage under the second alternative criterion of section 203(a)(15). He declined to treat the application as one for common carriage inasmuch as the granting of a certificate would raise insurmountable dual operations problems.
Before turning to the substantive issues raised in the pleadings, certain procedural matters require consideration. Protestant's reply to applicant's exceptions embraces (a) a motion to strike or reject applicant's exceptions for the reasons that they fail to comply with rule 15 of the Commission's General Rules of Practice (49 CFR 1100.15) regarding typographical specifications, and (b) a request to revoke applicant's existing temporary authority.
The motion will be denied inasmuch as the cited rule was promulgated to facilitate the binding of pleadings and exhibits in covers of uniform size and is, thus, primarily for the Commission's benefit and not that of the parties. We note that protestant's own pleadings do not conform in all respects with said rule. As to protestant's second request, suffice it to say that in view of our action herein, revoking applicant's corresponding temporary authority at this time would serve no useful purpose.
In its exceptions, applicant urges that the Administrative Law Judge erred in his conclusion that if the application is granted, “almost double" the maximum permissible number of contract shippers will be served. Applicant indicates that it serves eight firms, namely, Sentinel, Seaply, J. DeGorter, Amworth, Solomon Glass Corp., Bienenfeld, General Glass, and Associated Import; however, it urges that with respect to the last two named shippers that the evidence does not establish whether their traffic moves beyond the New York, N.Y., commercial zone, and is thus subject to regulation. Moreover, Bienenfeld assertedly failed to submit evidence in support of the applications, has not tendered applicant traffic in over a year, and should not be counted.
According to applicant's calculations, then, it currently serves five shippers, four of which appear in support of the application (Sentinel, Seaply, J. DeGorter, and Amworth), which together with the new shippers supporting the application (Daniel DeGorter, Merchants, Remington, and Flat), would bring the total to seven or eight' depending upon whether John DeGorter and Daniel DeGorter are considered as one or two shippers. As to the first alternative criterion of section 203(a)(15), applicant concedes that it does not dedicate equipment to the exclusive use of supporting shippers, but maintains that the proposed use of specialized equipment and drivers familiar with the transportation of building glass meets the shippers' distinct needs, and, thus, brings the proposal squarely within the second alternative criterion of the contract carrier definition.
Applicant further contends that the Administrative Law Judge erred in applying the section 209(b) criteria in that he (a) failed to give sufficient positive weight to evidence of operations conducted under temporary authority, (b) failed to consider that a denial of the application would put applicant "for all intents and purposes” or “substantially out of business, while a grant would have no effect upon protestant which only recently acquire the authority upon which it relies, and (c) failed to find that limitations contained in protestant's certificate preclude it from performing a substantial portion of the service. Applicant also urges that the Administrative Law Judge could have and, indeed, should have considered and granted the application as one for common carriage. It indicates its belief that a condition requiring applicant to seek cancellation of its existing permit or its conversion to a certificate would avoid the dual operations difficulty. In its reply, protestant generally supports the finding of the Administrative Law Judge.
The evidence, the Administrative Law Judge's findings, the exceptions, and the reply there to have been considered. We find the statement of facts in the initial decision to be substantially correct, and we adopt that statement, as modified or supplemented herein as
'Applicant's figure of “seven or eight” shippers is apparently an inadvertent error inasmuch as it appears to have counted Seaply twice.