Our review of the evidence presented on applicant's behalf convinces us that the joint board correctly concluded that the supporting shippers have failed to demonstrate that they require the service which applicant proposes. They express interest in more rapid motor carrier transportation to points in Alberta, but their testimony with respect either to the inadequacies of existing services or to their future requirements is too indefinite to warrant a grant of authority. The success of the application, then, must rest upon applicant's claim that operating through the port of entry at Sweetgrass rather than that at Portal would allow it to enjoy added operating economies without disrupting the existing competitive situation. The Commission has, on occasion, treated applications such as this, in which authority is sought to operate through an "alternate port of entry," similarly to alternate route or gateway elimination proposals. Boston & R. Transp. Co., Ext.-Rockland-Calais, Maine, 71 M.C.C. 507, and Frank Cosgrove Transp. Co., Inc., Ext.Liquid Commoditics, 83 M.C.C. 691. The essential facts to be determined in such a proceeding are (1) whether the applicant is actually engaged in transporting a substantial volume of traffic between the points involved and is effectively competing with existing carriers and (2) whether a grant of the authority sought would enable applicant to institute a new service or a service so different from that already provided as to improve materially its competitive situation to the detriment of other authorized carriers. In considering whether applicant, if authorized to operate through the Sweetgrass gateway in the transportation of traffic it now moves through Portal, would remain in the same competitive position vis-a-vis the opposing motor carriers, it is apparent that the location of the United States terminus of a given movement is of vital significance. As to traffic moving from or to the area which applicant characterizes in its exceptions as "west of Denver," it is clear that use of the Sweetgrass port of entry would result in very substantial mileage and time-in-transit reductions. Furthermore, it has not been established that applicant is now an effective competitor with respect to such traffic. In the 12-month period covered by applicant's exhibits, its traffic from points in and west of Montana, Wyoming, and Colorado, except Denver, amounted to 237,270 pounds, or an average of 19,773 pounds per month. Consolidated transported an average of 480,704 pounds per month and Garrett transported an average of 150,140 pounds per month from such points to Sweetgrass during the periods covered by their operating exhibits. To the extent that authority is sought to use the Sweetgrass port of entry in connection with traffic moving from or to the Western States, the application must be denied. We think that the same conclusion is called for with regard to applicant's proposed operations from and to Denver. A grant of authority which would allow use of the Sweetgrass gateway in the transportation of Denver-Alberta traffic would mean a saving of approximately 400 miles or 25 percent as compared to operation through Portal. By applicant's own estimates, the average time in transit would be reduced from an average of 6 to 8 days to an average of 5 to 6 days. Even though applicant appears to be an effective competitor of protestants with respect to this movement (its shipments average 74,944 pounds monthly as compared to Consolidated's and Garrett's averages of 135,581 and 30,410 pounds, respectively), a grant of this authority would, in our opinion, allow it to institute what would amount to a new service. This cannot be said, however, insofar as applicant's operations between points in the Midwestern and Eastern States, on the one hand, and, on the other, points in Alberta are concerned. Applicant has transported an average of about 1,250,000 pounds per month northbound through the Portal gateway, almost equaling Consolidated's monthly average of about 1,400,000 pounds from and to such points and greatly exceeding Garrett's St. Paul-Alberta traffic. Obviously, applicant is now an effective competitor. Operation in the manner proposed would not allow applicant to enjoy any appreciable time-in-transit or mileage savings, and would actually increase the distance it must travel in many instances. On the other hand, use of the Sweetgrass port of entry in the movement of traffic from and to points in the eastern portion of applicant's authorized territory would allow it to utilize its larger vehicles, which it may not now use in North Dakota and Saskatchewan, thus increasing the efficiency of its operations. A grant of authority to the extent described in our findings will, therefore, permit applicant to enjoy certain operating economies, to the ultimate benefit of the shipping public, without enabling it to institute a new motor carrier service to protestants' detriment. 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 of general commodities (except those of unusual value, classes A and B explosives, household goods as defined by the Commission, commodities in bulk, and commodities requiring special equipment) between Shelby, Mont., and the port of entry on the international boundary between the United States and Canada at Sweetgrass, Mont., over U. S. Highway 91 (also designated as Interstate Highway 15), serving no intermediate points, restricted against the transportation of traffic originating at or destined to points in or west of Montana, Wyoming, Colorado, or New Mexico; 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 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 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. 95 M.C.C. No. MC-116702 (SUB-NO. 24) THADDEUS A. GORSKI EXTENSION-HARDBOARD Decided July 17, 1964 Operation by applicant as a common or contract carrier by motor vehicle, over irregular routes, of wallboard and related commodities between certain ports of entry on the United States-Canada boundary to points in the Lower Peninsula of Michigan found not shown to be required by the public convenience and necessity or to be consistent with the public interest and the national transportation policy; and applicant found not shown to be fit and able properly to perform the proposed operation. Application denied. Eugene C. Ewald for applicant. David L. Nelson, Edward T. Lyons, and Floyd B. Piper for pro testants. OPERATING RIGHTS REVIEW BOARD NUMBER 2, MEMBERS Boss, BY THE BOARD: Exceptions to the order recommended by the joint board were filed by applicant, and certain protestants replied. By application filed September 24, 1963, Thaddeus A. Gorski, doing business as Gorski Bulk Transport, of Harrow, Ontario, Canada, seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle, over irregular routes, of wallboard, building boards consisting of boards, ceiling or wall (made of fibreboard or pulpboard), painted, enameled, or lacquered, or not painted, lacquered, or enameled, and boards or sheets, flat, consisting of wood shavings, wood chips, wood particles, with added resin binder not exceeding 10 percent by weight, compressed, from the ports of entry on the international boundary line between the United States and Canada located at Port Huron, Detroit, and Sault Ste. Marie, Mich., to points in the Lower Peninsula of Michigan, limited to the transportation of traffic originating in Canada, and of returned shipments of the same commodities in the reverse direction. Consolidated Truck Lines, Ltd., Direct Winters Transport, Ltd., Inter-City Truck Lines, Limited, Kramer-Consolidated Freight Lines, Inc., and The Overland Express, Limited, oppose the application. Only the three last-named carriers offered evidence. The joint board recommended that the application be denied. On exceptions applicant contends that the joint board erred in finding that granting the authority sought would allow applicant to serve more than a limited number of shippers so that his operations would become those of a common rather than a contract carrier; that the shipper has a distinct need for transportation service which can be met by applicant but not by protestants; and that denial of the application would adversely affect applicant and the shipper but not protestants. Applicant also requests that action on the instant proceeding be withheld pending final determination of Umthun Trucking Co. Ext.-Phosphatic Feed Supplements, 91 M.C.C. 691, the decision upon which the joint board relied in recommending denial of the application. In the alternative, applicant asks that this application be considered as one seeking common carrier authority and, if necessary, be republished as such in the Federal Register.1 Overland, Consolidated, Inter-City, and Direct-Winters reply that the shipper evidence shows little or no specialized need either as to equipment or service; that the service proposed is not contract carriage because applicant offers no specialized service and proposes to serve all persons who request his services; that the joint board was, therefore, not required to evaluate the application in light of the criteria in section 209(b) of the Interstate Commerce Act; that applicant's purpose in requesting alternative relief is to continue its operations under temporary authority; and that because applicant has entered into a conditional sale agreement to dispose of its Canadian licenses and the equipment which would be used in the proposed operation, the bona fide nature of the application is questionable. The evidence, the joint board's recommendation, the exceptions, and the replies have been considered. We find the joint board's statement of facts to be correct in all material respects, and we adopt it as our own. Applicant holds motor contract carrier authority from the Commission to transport a variety of specified commodities, including bulk liquids and certain dry chemicals and fertilizers both in bulk and in bags. His United States operations are limited 1Petitions for reconsideration in the Umthun case were denied by the entire Commission on July 8, 1963. By application filed April 14, 1964, in No. MC126171, applicant here in seeks to have his permanent contract carrier authority converted to common carrier authority. Protests to the granting of this application have been filed by, among others, certain of the protestants in the instant proceeding. |