# Jurisdictional Statement — Thompson Van Lines, Inc. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1976
- **Citation:** 423 U.S. 1041

## Text

Supreme Court, U. S,
- FiLED

SEA 15 1975

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

Ocroser Term, 1975

>

THompson Van Lungs, Lvc., e¢ al.,

Appellants,

—V.—-

THe Unitep States or America and
InTERSTATE COMMERCE COMMISSION,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

Hersert BurstTErn
Counsel for Appellants
One World Trade Center
Suite 2373
New York, New York 10048
(212) 432-0940

—_— ne

TABLE OF CONTENTS

PAGE
Opinion Below .............--.----:-s-c-s-cssecesessssnsnssnssnssesnsnsnenssnenenes 1
Beem neces sewn encsnecccneseenissssccnnsannenemmnencnnienmnnmmaianenatie 2
Question Presented .......--.-..---.-c-secscsseceseeseesecenseseeesenenences 2
itty Tel ccceccsetcncccenicsncnsscenecensestnsstnnnormnetnimmnantannntte 3
TR TT 3
The Question Is Substantial -........... at +
APPENDICES:

Appendix A—Opinion of District Court for the
District of Columbia ......................---- la
Appendix B—Judgment of District Court for the
District of Columbia ....................-- 15a
Appendix C—Notice of Appeal to the Supreme
Court of the United States ................ 17a
Appendix D—Order Extending Time to Docket
Appeal to September 15, 1975 .......... 19a
Appendix E—Statutes Involved ............---.-----------+++ 20a
Appendix F—Order and Rules of Interstate Com-
merce Commission .... sivabeninnineanei 24a

ii

PAGE

Cases CITED

American Airlines, Inc. vy. Civil Aeronautics Board,
359 F. 2d 624 (1966), cert. den. 385 U.S. 843 (1966) ..
American Trucking Associations, Inc. vy. Friseo Trans-
portation Company, 358 U.S. 133 (1958)...

Civil Aeronautics Board vy. Delta Airlines, Inc., 367
I i eh
Commercial Oil Transport Extension, 76 M.C.C. 773
UMD
Tuompson Van Lives, Inc., et al.,

Appellants,
—vV.—

Tue Unitep Srates or AMERICA and
INTERSTATE CoMMERCE COMMISSION,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of United States
District Court for the District of Columbia dismissing
appellants’ complaint which sought to set aside an Order
of the Interstate Commerce Commission, and submit this
Statement to show that the Supreme Court of the United
States has jurisdiction of the appeal and that a substantial
question is presented.

Opinion Below

The Memorandum Opinion of the United States District
Court for the District of Columbia is not officially reported ;
but a copy is appended hereto as Appendix “A”. A motion
for a temporary restraining order was denied by the Dis-
trict Court [Thompson Van Lines, Inc. v. United States,
381 F. Supp. 184 (1974)]. The Report of the Interstate

2

Commerce Commission (“Commission”) which incorporated
the challenged Order and Rules of the Commission is re-
ported in 119 M.C.C. 530 (1974). A copy of the Order and
the Rules prescribed by the Order are appended hereto as
Appendix F.

Jurisdiction

This suit was instituted under 28 U.S.C. §1336 to set
aside the Order of the Commission. The judgment of the
District Court was entered on April 28, 1975 and notice
of appeal was filed in that Court on June 17, 1975. The
time to docket the appeal was extended by this Court to
September 15, 1975. The jurisdiction of the Supreme Court
to review the judgment by direct appeal is conferred by
Title 28 United States Code Sections 1253 and 2101(b).
The following decisions sustain the jurisdiction of the
Supreme Court to review the judgment of the District
Court on direct appeal in this case: United States v. Pierce
Auto Freight Lines, 327 U.S. 515 (1946): United States v.
Capital Transit Company, 325 U.S. 357 (1945); Rochester
Telephone Corporation v. United States of America, 307
U.S. 125 (1939).

Question Presented

May the Commission, by rules adopted in a general rule-
making proceeding, prohibit a motor carrier from combin-
ing its operating authorities where such combination has
been exercised, under Certificates of Public Convenience
and Necessity (“Certificates”) issued by the Commission,
with the knowledge, consent and approval of the Commis-
sion and may the Commission do so without observing
the limitations and restrictions prescribed by the Inter-

3

state Commerce Act and the Administrative Procedure Act
relating to the revocation, modification or suspension
of a Certificate and does such prohibition constitute an
impermissible revocation, suspension or modification of
the Certificates?

Statutes Involved

Sections 207(a), 208(a) and 212(a) [49 U.S.C. $§307(a),
308(a) and 312(a)] of the Interstate Commerce Act, as
amended (‘‘Act”) and Section 558(c) of the Administrative
Procedure Act, as amended [5 U.S.C. $558 (Appendix
“B”)], are set forth in Appendix “E” hereto.

Statement

The appellants are motor common carriers engaged in
the transportation of household goods in interstate com-
merce pursuant to Certificates of Public Convenience and
Necessity issued by the Commission under Section 207 of
the Act [49 U.S.C. §307]. The Certificates granted to the
appellants authorized them to “tack” two separate seg-
ments of their respective operating authorities. To illus-
trate: appellants’ Certificates authorized service from
point “A” to point “B” and service from point “B” to point
“OC”, By “tacking” at the common service point or gateway
“B”, the appellants could transport used household goods
from point “A” to point “C”. Appellants and other car-
riers have been “tacking” for many years with restriction
or objection by the Commission.

On or about November 23, 1975, the Commission insti-
tuted a proposed rulemaking proceeding sparked, osten-
sibly, by the need for fuel conservation. After receipt
of statements by those who favored and those who

4

opposed the Commission’s proposal to restrict or prohibit
tacking, the Commission adopted a series of Rules which
provide, in effect, that if the circuitous mileage occasioned
by observance of a gateway exceeds 300, tacking will be
prohibited (27a). Petitions for reconsideration filed by
various parties to the proceedings were denied by the Com-
mission. The Commission, and the Court below, deter-
mined that the Commission could resort to rulemaking
instead of case-by-case adjudication and, by a blanket
rule, emasulate existing licenses.

The Question Is Substantial

The seminal issue involved in this appeal is whether the
Commission, or any other administrative agency, under
the guise, pretense or charade of general rulemaking may
impair and destroy property rights. This issue is of im-
portance not only to carriers who are subject to the Act
but to all segments of our private enterprise system bound
by the rules and regulations of the “headless fourth”
branches of government whose participation in the free
enterprise economy is more that of master than partner.
More significantly, this appeal ought to be the occasion for
declaring anew that ours is a government of laws and not
of administrators acting without legislative or judicial sane-
tion. If the Congress of the United States cannot confiscate
property rights, may administrative agencies, by hermetic
techniques, evade Constitutional inhibitions? If adminis-
trative agencies are no longer required to conform to
statutory standards and are free to legislate, rather than
articulate the law by filling in the interstices of legislation,
then this Court, and not the agencies, must formulate this
new and radical sempiternal principle. The polestar of

5

jurisprudence is finality, but finality is unattainable if
agencies operating ubiquitously in all areas of economic
and political activity, fashion, distort or reconstruct the
law to satisfy their perceptions of what the law ought to
be. What the Commission has done in this case, and other
agencies will attempt to do, is to rewrite statutes (or im-
pose their notions of what the law ought to say) and re-
ject decisional precedents upon which our society relies
for its sense of security of expectations.

The issue in this appeal, which this Court has never
resolved, is whether an administrative agency may employ
“rulemaking to amend some—but not all—of the outstand-
ing certificates authorizing a particular kind of service so
as to deprive the licensees of a significant part of their
license authority”. [American Airlines, Inc. v. Civil Aero-
nautics Board, 359 F. 2d 624, 635 (1966), cert. den. 385
U.S. 843 (1966) dissenting opinion. ]

In short, this appeal invites this Court to reexamine the
role of administrative agencies and to reconcile the dicho-
tomy of rulemaking and adjudication. [Verkuil, Judicial
Review of Informal Rulemaking, 60 Va. L. Rev. 185 (1974) ;
Davis, The Doctrine of Precedent as Applied to Adminis-
trative Decisions, 50 W. Va. L. Rev. 111 (1957).]

Appellants conceded that if the Commission had authority
to enact the challenged Rules then the substantial evidence
of record supported their adoption. But this begs the ques-
tion. Appellants suggest that the Commission had no au-
thority to adopt the Rules and apply these, ex cathedra,
to licensed cariers. Simply stated, this is not a case of im-
proper exercise of power but rather the unlawful assump-
tion of power and authority by the Commission and, as
appellants contend, a clear violation of the Act.

6

Contrary to the statements by the District Court (Ap-
pendix A) appellants did not admit that the gateway elimi-
nation rule was “in the public convenience” (Sa), nor that
the policy changes “are rational examples” of the Com-
mission’s power (9a) nor that tacking is justified only
if the Commission authorized it (9a). Appellants never
Stated that the past authorization of tacking was meaning-
less (10a).

1. Under Section 207 of the Act [49 U.S.C. §307], the
Commissicn is authorized to issue to a qualified motor car-
rier a certificate permitting the transportation of prop-
erty in interstate and/or foreign commerce.

Section 208(a) of the Act [49 U.S.C. §308] reserves to
the Commission a precisely defined right to attach “such
reasonable terms, conditions and limitations as the public
convenience and necessity may from time to time require
...”’ But this is not a sanction for a total or partial revo-
cation of a license. The reach and ambit of Section
208(a) must be read co-jointly with Section 212(a) of the
Act [49 U.S.C. §312(a)]. Section 212(a) provides that the
Commission may suspend, change or revoke a certifieate in
whole or in part “for willful failure to comply” with the
Act but only after notice and a hearing and an oppor-
tunity by the carrier to comply “with a lawful order” the
Commission “commanding obedience” to the Act or to a
rule or regulation issued by the Commission. Moreover
revocation or suspension must meet the criteria enacted
in Section 558 of the Administrative Procedure Act [5
U.S.C. §558(a)]. That Section 208(a) of the Act and Sec-
tion 212(a) are coherent, independent and reconcilable
statutory provisions was made clear in Texas & Pacific
Motor Transport Co. v. United States, et al. [87 F. Supp.

7

107 (D.C. Tex. 1949), rev’s’d on other grounds 340 U.S.
450 (1951), re’h’g den. 341 U.S. 706 (1951) ] where the Court
held:

“Nor can revocation be accomplished in any way except
under See. 212. It cannot be brought about by the im-
po: tion of terms and conditions, or, limitations. The
Commission, itself, said in Quaker City Bus Co. v.
Black Hawk Lines, Inc. that ‘The existence of a cer-
tificate creates a vested motor carrier status which
stays in force and effect * * * until that certificate is
revoked in accordance with the procedure prescribed in

See. 212 (a).’

“If we give the Commission power to revoke by terms,
limitations and conditions, by an attempted stretch of
Sec. 208(a), then we make Sec. 212(a) utterly useless.
Each Section has its purpose. Each Section expresses
the intent of the Congress. Such intent must govern”
(pp. 112-113).

2. Appellants contend that the Commission has partially
revoked their Certificates, not only in violation of the Act
but by an Orwellian obliteration of a long line of decisional
precedents upon which appellants and other motor carriers
relied in making investments and in devoting their energies
and talents. Appellants’ claim to the right to tack is sup-
ported by principles repeatedly enunciated and reaffirmed
by the Commission. Thus, in Fleetlines, Inc. v. Arrowhead
Freight Lines, Ltd. [54 M.C.C. 279, 285 (1952)], the Com-
mission stated:

“The right of a motor common carrier to tack separate
grants of authorities is well settled, regardless of
whether the authorities involve regular routes .. .”
(emphasis supplied)

8

In Motor Common Carriers of Property Routes and Ser-
vice, [S88 M.C.C. 415, 417 (1961) ], which involved a similar
rulemaking proceeding, the Commission concluded that:

“A certificate authorizing operations over two or more
routes having one or more service points in common
confers the right to operate over all combinations of
such routes and between all the designated points there-
on, unless the service is specifically restricted in the
certificate. (citing cases)” (emphasis supplied.) (pp.
419-420)

3. In United States vy. Rock Island Motor Transit Co.,
[340 U.S. 419 (1951)] and in United States v. Seatrain
Lines, Inc., (829 U.S. 424 (1947) ], this Court made clear that
the Commission cannot impose limitations on either the
freight to be handled or service to be performed under an
existing certificate. In this case, we are not dealing with the
right to modify authority “issued due to inadvertence”
[American Trucking Associations, Inc. v. Frisco Transpor-
tation Company, 358 U.S. 133, 144 (1958) ], but rather the use
of rulemaking “as a guise for changing previous decisions”
under the pretext of correction. (Cf. Watson Bros. Trans-
portation Co. v. United States, [132 F. Supp. 905 (N.D. Neb.
1955) aff'd 350 U.S. 927 (1956) ] ; Civil Aeronautics Board v.
Delta Airlines, Inc., [867 U.S. 316 (1961)]; Donald B.
Zirbel—Investigation of , Operations, [53 M.C.C. 684
(2951)]; Fox-Smythe Transportation Co—Extension—
Oklahoma, [106 M.C.C. 1 1967)].

4. The plain fact is that the Commission did not have
the option of proceeding by way of rulemaking or by case-
by-case adjudication. The elimination of gateways reverses

ewe

9

a long-standing policy dictated by, and consistent with, the
Act, and impairs vested rights. [Garrett Freightlines, Inc.
—Control and Merger—Inland Motor Freight and Pacific
Highway Transport, Inc., 87 M.C.C. 23 (1960); Hennepin
Transportation Co., Inc—Purchase—Oligney Motor Ex-
press Co., 80 M.C.C. 655 (1959) ; George C. Rawlings—Ex-
tension—Emporia, 78 M.C.C. 636 (1959) J.

5. The right to tack two separate grants of authority at
a common point reflects a coherent and unchallenged Com-
mission policy, mandated by the Act; and this right has been
withdrawn by the Commission only upon proof by opposing
carriers that no service was performed in the territory
covered by the authority sought to be tacked, coupled with a
persuasive demonstration that their interests or operations
will be adversely affected. [H.N. Dahlsten-Fertilizer, 1968
Fed. Car. Cas. (CCH) 136,245; Liquid Transporters, Inc.,
Extension—Columbia Park, Ohio, 76 M.C.C. 685 (1955) ;
Commercial Oil Transport Extension, 76 M.C.C. 773, 777
(1958) ; Eldon Miller, Inc., Extension—Utica, Ill., 74 M.C.C.
609, 610 (1958); Home Transportation—Ball Bros., 116
M.C.C. 18 (1972).]

In Howard Hall Company v. U. S., [332 F. Supp.
1076, 1082 (N.D. Ala., 1971)], the Commission’s rejection
of tacking restrictions was sustained by the Court:

“ _. the tacking of two separate unrestricted irregular-
route authorities is permissible as a basic right inet-
dental to the holding of such authorities ...” (em-
phasis supplied)

6. This case does not involve a prospective rule or a
complainant who holds no license [National Petroleum Re-

10

finers Association v. F.T.C., 482 F. 2d 672 (C.A.D.C. 1973) ]
nor is an instance of removing restrictions imposed on
a whole class of carriers identically situated [Regular
Common Carrier Confereace vy. United States, 307 F.
Supp. 941 (D.D.C. 1969) ]. This is simply a case of adminis-
trative action which, at best, is misguided and, at worst, is
an arrogant assumption of power and authority which Con-
gress never intended be exercised by the Commission.

Appellants submit that the District Court misread the
Act and thereby vested the Commission with power to
rewrite the Act. We believe that the question presented
by this appeal is substantial and implicates issues which
have transcendent political, economic and legal conse-
quences for our society.

Respectfully submitted,

Hersert Burstein
Counsel for Appellants
One World Trade Center
Suite 2373
New York, New York 10048
(212) 432-0940

are

——

i a J oe

Cc E §

la

APPENDIX A

Opinion of District Court for the
District of Columbia

UNITED STATES DISTRICT COURT
For tHe District or CoLUMBIA

Civil Action No. 74-860

—>

Tompson Van Lines, Inc., and ALEXANDER B. PoLLocg,

d/b/a Jirry Vans,
Plaintiffs,

—V.—

Unitep States or America and the
INTERSTATE COMMERCE COMMISSION,

Defendants.

Txompson VAN Lings, INc., and
ALEXANDER B. Po.tiock, d/b/a Jirry Vans,

Plaintiffs,

—V,—=

Untrtep States or America and the
INTERSTATE COMMERCE COMMISSION,

Defendants.

Notice is hereby given that Thompson Van Lines, Ine.
and Alexander B. Pollock, d/b/a Jiffy Vans, the plaintiffs
above named, hereby appeal to \1e Supreme Court of the
United States from a final order and judgment of a three-
judge District Court dismissing the plaintiffs’ complaint,
entered in this action on April 28, 1975.

18a

This appeal is taken pursuant to 28 U.S.C. §1253.

Dated: June 11, 1975

Hersert Burstein
Attorney for Thompson Van Lines,
Inc. and Alexander B. Pollock
d/b/a Jiffy Vans
2373 One World Trade Center
New York, New York 10048
(212) 432-0940

19a

APPENDIX D

Order Extending Time to Docket Appeal to
September 15, 1975
(August 12, 1975)
SUPREME COURT
OF THE UNITED STATES

No. A-112

>
THompson Van Lungs, ef al.,
Appellants,

—V,—

Unitep States and
INTERSTATE COMMERCE COMMISSION.

<> ~—

Upon CONSIDERATION of the application of counsel for ap-
pellants,

IT 1s ORDERED that the time for docketing an appeal in the
above-entitled cause be, and the same is hereby, extended to
and including September 15, 1975.

Warren E. Burcer
Chief Justice of the United States

Dated this 12
day of August, 1975

20a

APPENDIX E
Statutes Involved

INTERSTATE CoMMERCE AcT
IssuANCE OF CERTIFICATE

Sec. 207. [August 9, 1935] [49 U. S. C. §307] (a) Subject
to section 210, a certificate shall be issued to any qualified
applicant therefor, authorizing the whole or any part of
the operations covered by the application, if it is found that
the applicant is fit, willing, and able properly to perform
the service proposed and to conform to the provisions of
this part and the requirements, rules, and regulations of the
Commission thereunder, and that the proposed service, to
the extent to be authorized by the certificate, is or will be
required by the present or future public convenience and
necessity; otherwise such application shall be denied: Pro-
vided, however, That no such certificate shall be issued to
any common carrier of passengers by motor vehicle for
operations over other than a regular route or routes, and
between fixed termini, except as such carriers may be au-
thorized to engage in special or charter operations.

(b) No certificate issued under this part shall confer
any proprietary or property rights in the use of the public
highways.

TerRMS AND CoNDITIONS OF CERTIFICATE

Sec. 208. [August 9, 1935, November 10, 1966.] [49
U.S.C. 308.) (a) Any certificate issued under section 206
and 207 shall specify the service to be rendered and the
routes over which, the fixed termini, if any, between which,
and the intermediate and off-route points, if any, at which,

2la

and in case of operations not over specified routes or
between fixed termini, the territory within which, the motor
carrier is authorized to operate; and there shall, at the time
of issuance and from time to time thereafter, be attached
to the exercise of the privileges granted by the certificate
such reasonable terms, conditions, and limitations as the
public convenience and necessity may from time to time re-
quire, including terms, conditions, and limitations as to the
extension of the route or routes of the carrier, and such
terms and conditions as are necessary to carry out, with
respect to the operations of the carrier, the requirements
esta’ ‘ished by the Commission under section 204 (a) (1)
and (6): Provided, however, That no terms, conditions, or
limitations shall restrict the right of the carrier to add to
his or its equipment and facilities over the routes, between
the termini, or within the territory specified in the certifi-
cate, as the development of the business and the demands
of the public shall require.

Suspension, CHANGE, REvocaTION, AND TRANSFER OF
CERTIFICATES, PERMiTs, AND LICENSES

Sec. 212. [August 9, 1935, amended June 29, 1938, Sep-
tember 18, 1940, August 22, 1957, October 15, 1966.] [49
U.S. C. §312.) (a) Certificates, permits, and licenses shall
be effective from the date specified therein, and shall remain
in effect until suspended or terminated as herein provided.
Any such certificate, permit, or license may, upon applica-
tion of the holder thereof, in the discretion of the Commis-
sion, be amended or revoked, in whole or in part, or may
upon complaint, or on the Commission’s own initiative, after
notice and hearing, be suspended, changed, or revoked, in
whole or in part, for willful failure to comply with any pro-
vision of this part, or with any lawful order, rule, or regula-

22a

tion promulgated thereunder, or with any term, condition,
or limitation of such certificate, permit, or license: Pro-
vided, however, That no such certificate, permit, or license
shall be revoked (except upon application of the holder)
unless the holder thereof willfully fails to comply, within a
reasonable time, not less than thirty days, to be fixed by the
Commission, with a lawful order made as provided in see-
tion 204 (c), commanding obedience to the provision of this
part, or to the rule or regulation thereunder, or to the term,
condition, or limitation of such certificate, permit, or license,
found by the Commission to have been violated by such
holder: And provided further, That the right to engage in
transportation in interstate or foreign commerce by virtue
of any certificate, permit, license, or any application filed
pursuant to the provisions of section 206, 209, or 211, or by
virtue of the second proviso of section 206 (a) or temporary
authority under section 210a, may be suspended by the
Commission, upon reasonable notice of not less than fifteen
days to the carrier or broker, but without hearing or other
proceedings, for failure to comply, and until compliance,
with the provisions of section 211 (c), 217 (a), or 218 (a) or
with any lawful order, rule, or regulation of the Commis-
sion promulgated thereunder.

ADMINISTRATIVE Procepure Act

Sec. 558. Imposition or Sanctions; DeTERMINATION oF AP-
PLICATIONS FOR LicENsES; SusPENsION, Revocation,
AND Expiration or Licenses [5 U. S.C. §558.]

(a) This section applies, according to the provisions
thereof, to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule
or order issued except within jurisdiction delegated to the
agency and as authorized by law.

aes cece

23a

(c) When application is made for a license required by
law, the agency, with due regard for the rights and privi-
leges of all the interested parties or adversely affected per-
sons and within a reasonable time, shall set and complete
proceedings required to be conducted in accordance with
sections 556 and 557 of this title or other proceedings re-
quired by law and shall make its decision. Except in cases
of willfulness or those in which public health, interest, or
safety requires otherwise, the withdrawal, suspension, rev-
ocation, or annulment of a license is lawful only if, before
the institution of agency proceedings therefor, the licensee
has been given—

(1) notice by the agency in writing of the facts or
conduct which may warrant the action; and

(2) opportunity to demonstrate or achieve com-
pliance with all lawful requirements.

When the licensee has made timely and sufficient applica-
tion for a renewal of a new license in accordance with
agency rules, a license with reference to an activity of a
continuing nature does not expire until the application has
been finally determined by the agency.

24a

APPENDIX F
Order

Title 49—TRaNSPOoRTATION
Chapter X—LyrerstaTteE CoMMERCE COMMISSION
Subchapter A—GenerAL Rutes anp ReGuLAtTIONS
Part 1065—GatTeways anp Tackinc—IrreGuLar Route
Moror Common Carriers OF PROPERTY

At a General Session of the [yTerstaTteE CoMMERCE ComMMIs-
sion, held at its office in Washington, D.C., on the 15th
day of February 1974.

Ex Parte No. 55 Sus-No. 8)

MOTOR COMMON CARRIERS OF PROPERTY,
ROUTES AND SERVICE

(PETITION FOR THE ELIMINATION OF GATEWAYS
BY RULEMAKING)

It appearing, That by joint petition filed March 21, 1973,
42 motor common carriers requested this Commission to
institute a rulemaking proceeding to investigate the pos-
sibility of promulgating regulations which would permit
all motor carriers to operate directly between any two
points they are authorized to serve, without the necessity
of observing any of their presently required gateways; and
that on November 23, 1973, this Commission issued a Notice
of Proposed Rulemaking and Order, 119 M.C.C. 170 (dated
November 15, 1973), in this proceeding which set forth cer-
tain provisional findings on the matters involved and which
invited comments on those tentative findings;

es RO ca RN Cie aa

25a

And it further appearing, That investigation of the mat-
ters and things involved in this proceeding has been made
and that the Commission has made and filed its report
herein containing its findings of facts and conclusions
thereon, which report is hereby referred to and made a
part hereof;

It is ordered, That Chapter X of Title 49 of the Code of
Federal Regulations be, and it is hereby, amended by add-
ing a new part 1065 reading as set forth in appendix B to
the said report.

It is further ordered, That this order shall become effec-
tive on April 5, 1974, and shall remain in effect until modi-
fied or revoked in whole or in part by further order of the
Commission.

And it is further ordered, That notice of this order shall
be given to the general public by depositing a copy thereof
in the Office of the Secretary of the Commission at Wash-
ington, D.C., and by filing a copy with the Director, Office
of the Federal Register. (49 U.S.C. 301, 302, 304, and 308,
5 U.S.C. 553 and 559.)

By the Commission.

Rosert L. Oswa.p,
Secretary.

(Szau)

26a

Rules of Interstate Commerce Commission

The adopted rules
[49 CFR Cuapter X]

Section 1065. Gateways and tacking—irregular-route motor
common carriers of property.

(a) Where a common carrier by motor vehicle author-
ized to transport property in interstate or foreign com-
merce holds separate and unrestricted irregular-route cer-
tificated authorities issued by the Interstate Commerce
Commission, which authorities have a common point of
service (a “gateway”) to which a given shipment may be
transported under one authority and from which the same
shipment may be transported under the other, the carrier
is required, upon reasonable request therefor, to furnish
through service on the shipment under a combination of
the authorities and may do so without transporting the
shipment through the common service point or points; pro-
vided: (1) that the certificated authorities so utilized were
issued to the carrier pursuant to an application proceed-
ing pending before the Interstate Commerce Commission
on or before November 23, 1973, (2) that none of the au-
thorities is restricted against such joining, (3) that the
most direct highway distance between the points’ to be

‘In those cases where a carrier may serve a municipality or unin-
corporated community pursuant to this rule without the necessity
of observing a gateway specified in its certificated authorities, the
carrier shall serve all points within its terminal area at such
municipality or unincorporated community in accordance with 49
CFR 1049.

ee eee eee 6 ee

27a

served is not less than 80 percent of the highway distance
between such points over the carrier’s authorized routing
through the gateway, (4) that a lawful and appropriate
tariff covering the movement via the gateway was on file
with the Interstate Commerce Commission on November
23, 1973, or that the carrier had pending an application on
the aforementioned date which was subsequently granted,
and (5) the earrier follows the procedures prescribed in
paragraph (d)(1) below.

(b) Except where expressly allowed under paragraph
(a) above, or on movements of 300 miles or less, or where
its certificated authorities specifically authorize such tack-
ing or joinder, a common carrier by motor vehicle author-
ized to transport property, in interstate or foreign com-
merce, is prohibited from joining any of its irregular-route
certificated authorities on and after the effective date of
this regulation. Any common carrier by motor vehicle
providing such prohibited service on or before the date
this regulation takes effect shall cease such operations on
or before the 60th day following the said effective date,
unless it files an application for direct-service operating
authority pursuant to section 206 of the Interstate Com-
merce Act on or before the 60th day following the effective
date. Such an application may have the suport of the ship-
per or shippers currently served by the carrier applicant,
shall be filed and processed in accordance with the pro-
cedures prescribed in paragraph (d)(2) below, and shall
be determined in accordance with the requirements of sec-
tion 207 of the Interstate Commerce Act giving full effect
to the applicant’s past service and operations through the
gateway. Any such carrier filing such an application in
good faith may continue to provide such service by observ-

28a

ing its gateways or gateway until final disposition of its
application proceeding.

(c) The mileages utilized in determining whether the
most direct highway distance between the points to be
served is not less than 80 percent of the highway distance
between such points over the carrier’s authorized routing
through the gateway, shall be calculated from the point of
origin (i.e., the point on the ecarrier’s authorized route
where the shipment begins its journey) to the point of
destination (i.e., the point on the same carrier’s authorized
route where the shipment ends its journey) of the ship-
ment or shipments involved.

(d)(1) A earrier seeking to eliminate gateways pursuant
to paragraph (a) above shall be required to adhere to the
following procedures:

(i) file a letter and two copies thereof with this Com-
mission at its offices in Washington, D.C., and one copy
with this Commission’s field office having jurisdiction over
the point at which the carrier is domiciled, describing the
gateways to be eliminated (this should include origin, des-
tination, and gateway, applicable mileages, and a suitable
map), and attaching either (A) copies of appropriate tariff
provisions establshing that such through services were
offered by the carrier on November 23, 1973, or (B) a
verified statement establishing that the certificated author-
ity enabling operations through the gateway were issued
to the carrier pursuant to an application proceeding pend-
ing before the Interstate Commerce Commission on No-
vember 23, 1973.

(ii) allow 15 days from the date of publication in the
Federal Register of a notice of the ecarrier’s intention to

tee Bee et A ce hd ee oe

ee ee ae

Pe See Nee

29a

eliminate its gateways and for Commission review of the
letter submission. Protests to such notices must be received
at the Commission at Washington, D.C., within 10 days of
the date of that publication. If the carrier is not otherwise
informed by this Commission, operations may commence
at the termination of the said 15-day period. This Com-
mission reserves the right to require that a carrier termi-
nate these operations if it should later be discovered that
the carrier’s operations do not qualify for the benefits of
this rule.

(iii) Letter submissions under this rule will not be ac-
cepted after May 15, 1974, except in those cases in which
the certificated authority to be joined was issued pursuant
to an application proceeding pending before the Interstate
Commerce Commission on November 23, 1973. In such in-
stances, the carrier shall make such filing within 60 days
from the date of issuance of the authority in issue.

(2) A carrier that maintains gateway operations which
do not meet the criteria set forth in paragraph (a) above
may, if it desires to continue to provide such through
service to the public, file OP-OR-9 applications with this
Commission seeking direct-service authority. Such an ap-
plication shall include:

(i) in bold print in the upper right-hand corner of page 1,
the words Gateway [{LIMINATION.

(ii) (A) A earrier relying on certificated authorities is-
sued to it on or prior to November 23, 1973, shall submit
copies of appropriate tariff provisions establishing that
such through services were offered by the carrier on No-
vember 23, 1973.

30a

(B) A earrier relying on certificated authorities issued
to it after November 23, 1973, as a result of an application
pending on that date shall present verified statements
establishing either (1) that the service through the gate-
way point has been performed (as in the case of the car-
rier’s demonstrated participation in deteriorating interline
or interchange service) on November 23, 1973, or (2) that
a public need for such through service exists.

(iii) an initial verified statement in support of the ap-
plication. This should include all of the evidence applicant
plans to present in the proceeding, including (to the extent
pertinent) evidence of the applicant’s (or its established
predecessor-in-interest’s) past operations via the gateway
for the 2 year preceding November 23, 1975, and the rele-
vant matters and evidence set forth in subparagraph (ii)
above. Evidence of supporting shippers need not be pre-
sented except as set forth in (ii)(B) above, but will be
considered and accorded appropriate weight if submitted.

(iv) Such applications must be filed on or before the
60th day following the effective date of these regulations,
or within 60 days following the date of issuance of the cer-
tificated authorities so to be joined if such authorities are
issued to the carrier pursuant to an application proceeding
pending before the Interstate Commerce Commission on
November 23, 1973, whichever date last occurs. The ap-
plication will be processed in accordance with the normal
procedures of the Interstate Commerce Commission as
modified in the Federal Register publication of a notice
of the filing of such applications (which shall reflect the
procedure outlined in the Commission's report and order
in Gateway Elimination, 119 M.C.C, 530).

3la

(e) Any mot» carrier which has pending on the effec-
tive date of these regulations an application for the elim-
ination of a gateway and which desires to utilize the rules
set forth above, should notify the Director of the Office
of Proceedings of the Interstate Commerce Commission of
the pendency of such application and should include the
pertinent docket number. Duplicate applications should
not be filed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1048%3A1. Public record. Not legal advice.