Service, Marvin and Ruth Baska, doing business as M & R Transfer, Earnest Bieri, doing business as Stanley Transfer, and the Great Northern Railway Company oppose the granting of the application, but only United-Buckingham and Great Northern presented evidence of their operations. In the prior report, 92 M.C.C. 581, decided September 17, 1963, division 1 granted authority to applicant to transport: contractors' equipment, materials, and supplies the transportation of which, because of their size or weight, requires special equipment, from points in Bottineau, Burke, McHenry, McLean, Mountrail, Renville, Sheridan, and Ward Counties, N. Dak., to intercontinental ballistic missile launching sites located in Bottineau, Burke, McHenry, McLean, Mountrail, Renville, Sheridan, and Ward Counties, N. Dak., restricted to the transportation of traffic having a prior movement by rail. Upon consideration of petitions for reconsideration by applicant, intervener, and Great Northern, and of a reply to applicant's petition by United-Buckingham, and for good cause shown, division 1, acting as an appellate division, by order of April 27, 1964, reopened the proceeding for reconsideration on the present record. In separate petitions applicant and intervener Soo Line Railroad Company urge that the limitation to "heavy hauling" commodities be removed from the grant of authority, contending that the shippers require a complete service which will allow movement of mixed loads comprised of commodities which require special equipment and those which do not, and that the shippers also require a carrier authorized to transport both intrastate and interstate traffic. They maintain that the existing service of United-Buckingham, a long-haul competitor of the Soo Line, cannot meet the shippers' reasonable transportation requirements. The Soo Line points out that its rail competitor, the Great Northern, now has motor carrier authority to provide this type of complete service from its railheads and that the "heavy hauling" limitation will deprive the Soo Line of a comparative service. In its petition the Great Northern objects to the broadening of the scope of the application in the prior report in that traffic was not limited specifically to that originating at stations on the Soo Line Railroad. 1 In reply to applicant's petition United-Buckingham asserts that the prior report properly assesses the issues and reaches The Soo Line notes in its petition that it has no objection to the grant of authority being restricted in that manner. a correct conclusion. Protestant maintains that it is fully capable of providing the service required by the shippers to the extent of its authority. The evidence has been fully stated in the prior report and we do not deem it necessary to restate the facts herein. At the outset, it is clear that the authority granted in the prior report represents a broadening of the scope of the application as filed. The service proposed by applicant was specifically limited to that performed in conjunction with the Soo Line Railroad. A grant of authority limited only to "traffic having a prior movement by rail," however, authorizes motor service at points on other rail lines such as those of the Great Northern, without any opportunity for the Great Northern to demonstrate the adequacy of existing service at those points. Accordingly, the authority granted herein will be limited to traffic originating at stations on the Soo Line Railroad. Upon review of the evidence, we are persuaded that a grant of authority limited to "heavy hauling" commodities will not be fully responsive to the needs of the supporting shippers herein. A complete motor carrier service is required in order to accommodate mixed loads of commodities which require special equipment for their transportation and those which do not. Protestant United-Buckingham is restricted in its ability to meet the shippers' requirements in that it is not authorized to provide service as to commodities requiring heavy hauling service. Applicant is presently providing the proposed service under temporary authority, and we do not believe that United-Buckingham will be adversely affected to any significant degree by a grant of the application, particularly so because the bulk of the traffic movement involved will be of limited duration. We conclude that the application should be granted as set forth in our findings below. On reconsideration, 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 contractors' equipment, materials, and supplies, from the Soo Line Railroad Company stations in Bottineau, Burke, McHenry, McLean, Mountrail, Renville, Sheridan, and Ward Counties, N. Dak., to intercontinental ballistic missile launching sites in Bottineau, Burke, McHenry, McLean, Mountrail, Renville, Sheridan, and Ward Counties, N. Dak., restricted to traffic having a prior movement by rail; that appli cant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that a certificate authorizing such operation should be granted; and that the application in all other respects should be denied. Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act and our 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. 95 M.C.C. No. MC-115841 (SUB-NO. 148) COLONIAL REFRIGERATED TRANSPORTATION, INC., Decided June 17, 1964 Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of shortening and vegetable oils from Memphis, Tenn., to points in 11 States and the District of Columbia. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Robert E. Tate for applicant. John H. Doeringer, R. J. Glass, Edward G. Grogan, and Frank K. Moore for protestants. REPORT OF THE COMMISSION OPERATING RIGHTS REVIEW BOARD NUMBER 2, MEMBERS BY THE BOARD: Exceptions to the order recommended by the examiner were filed by certain protestants, and applicant replied. Our conclusions differ slightly from those recommended. By application filed August 19, 1963, as amended, Colonial Refrigerated Transportation, Inc., of Birmingham, Ala., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of lard substitutes, vegetable oil shortenings, shortenings not otherwise identified by name, vegetable oils, and fatty acids, not including such commodities in bulk, in tank vehicles, from Memphis, Tenn., to points in Connecticut, Delaware, Iowa, Maryland, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Virginia, West Virginia, and the District of Columbia, over irregular routes. Modern Truck Line, Inc., Mason & Dixon Lines, Inc., and Malone Freight Lines, Inc., hereinafter called Modern, Mason & Dixon, and Malone, respectively, the Illinois Central Railroad Company, and the Gulf, Mobile and Ohio Railroad Company oppose the application. The examiner recommended that the application be granted. On exceptions the rail protestants and Modern contend that applicant should be found unfit to receive a grant of authority because it has transported the involved traffic for many years without authority; and that existing carriers are able to provide whatever service is needed. Applicant replies that it has served the supporting shippers in the past in good faith in the belief that it held appropriate authority; and that it has clearly demonstrated that there is a need for the service proposed. The evidence, the examiner's recommendation, the exceptions, and the reply have been considered. We find the examiner's statement of the facts to be correct, and we adopt it as our own. Applicant is a motor common carrier transporting, for the most part, commodities requiring refrigeration in transit. It has ample equipment and facilities to perform service of the type proposed. As pertinent, it is authorized to transport meats, meat products, and meat byproducts, as defined by the Commission, from Memphis to all points in the destination territory described in this application except those in Delaware and Iowa. For many years, applicant transported substantial volumes of vegetable oils and vegetable oil shortenings from Memphis on the ground that these commodities were properly classified as "oils" and included in the list of "meats, meat products, and meat byproducts" contained in section A of appendix I to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209 and 766. However, on November 19, 1963, in Modern Truck Line, Inc., v. Colonial Refrigerated, 94 M.C.C. 149, the Commission, division 1, found that such operations were not permitted by applicant's outstanding authority, and it entered a cease and desist order. The instant application was filed in order to obtain the necessary authority to continue the service heretofore performed for many years without appropriate authority. The application is supported by two divisions of National Dairy Products Corporation which collectively produce and ship by truck to the involved destination territory over 2.5 million pounds monthly of vegetable oils and shortening, most of which require refrigeration while in transit. The shippers have used 1The decision in Modern Truck Line, Inc., v. Colonial Refrigerated has been appealed to the United States District Court for the Northern District of Alabama in civil action No. 63-618. On February 14, 1964, the court entered an order staying further action in that proceeding and continuing in effect a temporary restraining order directed against enforcement by the Commission of the cease and desist order pending the outcome of the instant application. |