Anheuser-Busch manufactures liquid yeast at its plant at St. It ships several million pounds a year of liquid yeast to Galesburg where it is processed into a dry form and substance. The shipper has used applicant's service, under temporary authority, to transport the liquid yeast to Galesburg and has found. it satisfactory. It has a continuing need for applicant's service and is not aware of any motor carrier that can render it the required service. The shipper's traffic manager testified very generally that some chemicals are used in the processing of liquid yeast and that it goes through a fermenting stage, but, pointedly, that he is not qualified to give an opinion as to whether or not liquid yeast is a liquid chemical. No other evidence was offered as to the nature of the considered commodity.

In Southern Tank Lines, Inc., Extension-St. Bernard, Ohio, 88 M.C.C. 127, 144, the Commission found that for determining the commodities which are embraced in the description "liquid chemicals, in bulk, in tank vehicles" a definition of liquid chemicals is "those substances or materials resulting from a chemical or physical change induced by processes employed in the chemical industry, including uniting, mixing, blending, and compounding." Considering such definition in light of the meager and vague testimony submitted by the applicant, the evidence is insufficient for us to determine in this proceeding whether or not liquid yeast is a liquid chemical. Further, in the circumstances, a determination of such issue is not necessary to a decision in this matter and will not be made herein. In our opinion, applicant could have presented expert witnesses to testify as to the nature of liquid yeast without revealing any trade secrets connected with the shipper's production of same. Having failed to establish that liquid yeast is a liquid chemical, applicant has no basis to complain of our resulting inability to make a finding thereon.

We do not agree with Kampo's contention that this application should be denied because of applicant's failure to submit sufficient evidence to support a finding as to the nature of the involved commodity. The shipper has a definite need for the transportation of liquid yeast from St. Louis to Galesburg, and there is no evidence on the record of the ability or willingness of any protestant to render such service. Consequently, in view of the lack of effective opposition on behalf of protestants, we can find that public convenience and necessity require the proposed operation without further consideration of protestants' operating authority, and in that respect the instant proceeding is distinguished from

O'Boyle Tank Lines Extension-Fish Oil,67 M.C.C. 502, 504. We do not propose to deny the shipper the availability of a carrier with unquestionable authority to render such service merely because an unresolved issue is raised as to interpretation of applicant's existing commodity authority. Further, no burden of proof as to the nature of the considered commodity has beem imposed on protestants in this proceeding, as contended by Kampo, and certainly not the latter which does not hold liquid chemical authority from St. Louis to Galesburg. We conclude that, in the circumstances, a grant of specific authority to applicant to transport liquid yeast to the extent to which a need has been shown by the shipper should be made herein.

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 liquid yeast, in bulk, in tank vehicles, from St. Louis, Mo., to Galesburg, Ill.; 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-125138 (SUB-NO. 1)

R. T. SHAW COMMON CARRIER APPLICATION

Decided August 17, 1964

Public convenience and necessity found to require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of (1) fertilizer, in bags, from Galveston and Texas City, Tex., to points in Grady and Canadian Counties, Okla., and (2) wire from Houston to points in Canadian County. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Walter S. Allen for applicant.

T. S. Christopher, Marion F. Jones, R. H. Lawson, Richard H. Champlin, and William H. Cole for protestants.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS HUTCHINSON, BUSH, AND BROWN

HUTCHINSON, Commissioner

Exceptions to the order recommended by the joint board were filed by protestants, Lee Way Motor Freight, Inc., and Wright Motor Lines, Inc., and applicant replied. Our conclusions differ somewhat from those recommended.

By application filed August 12, 1963, R. T. Shaw, doing business as Shaw Trucking Co., of Ninnekah, Okla., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of salt, wire, twine, fertilizer, oyster shells, cottonseed products, and seeds, in sacks, blocks, cartons, rolls, packages, or bundles, (not in bulk), from Houston, Grand Saline, Galveston, and Texas City, Tex., to points in Grady, Canadian, Kingfisher, Garfield, Grant, Alfalfa, Woods, Woodward,

Major, Ellis, Dewey, Blaine, Roger Mills, Custer, Caddo, Washita, Beckham, and Harper Counties, Okla. Lowrie Trucking Company, Wright Motor Lines, Incorporated, Thayne R. Olson, Lee Way Motor Freight, Incorporated, and Western Transport Company oppose the granting of the application.

The joint board recommended that applicant be granted irregular route, common carrier authority to transport (1) fertilizer, in bags, from Galveston, Houston, and Texas City, Tex., to points in Grady and Canadian Counties, Okla., and (2) wire from Houston, Tex., to points in Canadian County. Protestant Wright excepts to the recommended grant of authority insofar as fertilizer from Houston is concerned. It argues that it holds all the authority needed to conduct this part of the proposed operation and that it should be given an opportunity to handle the traffic before a competing service is authorized. Lee Way contends that no need for additional service in any respect has been shown in that presently existing carriers including itself are adequate to handle the involved traffic. Applicant replies by reaffirming the need for service and emphasizing the desirability of a carrier who can offer farm site delivery.

The evidence, the joint board's recommendations, the exceptions, and the reply thereto have been considered. We find the statement of facts in the joint board's report to be adequate and correct in all material respects, and we adopt it as our own. The joint board's recommended partial denial, not being objected to by applicant, renders much of the evidence immaterial at this stage of the case. Only such facts as are pertinent to the case in its present posture will be repeated here.

Applicant is authorized to operate intrastate in Oklahoma and holds a Texas permit to transport exempt commodities. He presently holds no operating authority from this Commission. He has been in the trucking business for several years, and operates one late-model tractor-trailer unit which will be used in the proposed service.

The application is supported by the Midcontinent Farmers Coop which operates an agricultural supply business. It has retail outlets in Yukon, Piedmont, Tuttle, and Oklahoma City, Okla., and conducts its wholesale business in all parts of the State including the involved destination counties. It receives wire and fertilizer from Houston and Galveston and fertilizer from Texas City. This shipper carries on a private carriage operation in the movement of this traffic but, in addition, it needs the services of a dependable

for-hire carrier. Fertilizer cannot be stored for any extended length of time because of its tendency to deteriorate in bags. For this reason it is necessary to have expedited transportation of this commodity in order to satisfy its cutomers' requirements. Also, farm site deliveries of fertilizer are frequently required. In 1962 this shipper moved 500 tons of fertilizer from Houston alone and it is estimated that that figure would be greatly increased if reliable motor carrier service were available. The volume of need for wire, which is used for bailing purposes, is variable with the size of the harvest and a sudden, timely, heavy rainfall could create proportionately greater demand which in turn would produce a need for rapid transportation of that commodity. This shipper has used applicant's service in the past and has found it satisfactory.

The Moore-Shauffer Company which deals in certain of the involved commodities at its store in Amber, Okla., also supports the application. Aside from its headquarters in Amber, it operates plant and storage facilities at Chickasha, Tuttle, Minco, Pocasset, and Verden, all of which are located in Grady County, and Hennessey in Kingfisher County. This shipper receives fertilizer and wire from Houston. Its inbound traffic moves mainly via its own private trucks with supplemental use of for-hire carriage during rush periods. It has used with satisfaction applicant's service in the transportation of other commodities.

Ross Seed and Grain is a wholesale and retail dealer in general farm commodities. From its Chickasha plant and through the El Reno Feed and Seed at El Reno, Okla., it offers service to both Grady and Canadian Counties. It needs farm site deliveries to this destination territory. It receives fertilizer from Best Fertilizer Co. and Olin Mathieson in Houston. The Best Company makes a part of its deliveries via private carriage and it determines whether or not this is to be done. Olin Mathieson frequently arranges the transportation of its products to this shipper. A part of the fertilizer received from Houston moves via rail but the complaint is made that this mode is too slow.

Finally the application is supported by El Reno Terminal Grain, a supplier of grain seed and fertilizer with outlets in El Reno, Union City, and Okarche, Okla., all of which are located in or near Canadian County. As here pertinent, it receives fertilizer from Texas City. It has been unable to find adequate for-hire transportation service and would probably use applicant's service if it were authorized.