On Petition for Review of Orders of Interstate Commerce Commission
Before Tone and Wood, Circuit Judges, and East,*fn* District Judge.
Pre-Fab Transit Co. (Pre-Fab) petitions for review of an order of the Interstate Commerce Commission (ICC) denying its application for authority to carry prefabricated buildings and related accessories from Houston, Texas to points in 14 states. We note jurisdiction under 28 U.S.C. §§ 2321 and 2342, and affirm the ICC's order.
Pre-Fab, an Illinois corporation, is a common carrier engaged in nationwide transportation of specific commodities under authority grants from the ICC.
On October 14, 1975, Pre-Fab filed an application with the ICC for authority to transport over irregular routes: (1) buildings, complete, knocked down, or in sections, (2) building sections, and building panels, (3) parts and accessories used in the installation and completion of commodities in (1) and (2) above, and (4) metal prefabricated structural components and panels, and accessories used in the installation and completion thereof. Pre-Fab has been transporting some of these commodities under temporary and emergency temporary authority grants since 1974.
Section 207 of the Interstate Commerce Act, 49 U.S.C. § 307, provides:
"(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 chapter 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 . . . ."
The Administrative Law Judge (ALJ) found that the proposed shipments fell within the authority of "heavy haulers."*fn1 Because heavy haulers were already available, the ALJ concluded that Pre-Fab's services were not required by "present or future public convenience and necessity" within the meaning of § 207.
The components of the buildings Pre-Fab proposed to carry included major structural items, secondary framing members, panels, sheets and accessories. The major structural items are undisputedly within heavy hauler authority. The focus of the dispute is the panels, which are shipped in bundles which exceed 200 pounds and require use of special equipment. If these panels were merely incidental to the heavy items, heavy haulers could carry them in the same shipment regardless of whether the panels were themselves appropriate subjects of heavy hauling certificates. But under the reasoning of Sammons Trucking, Extension Galesburg, Ill., 119 MCC 826, 834-35 (1974), the bundled panels constitute too great a portion of the entire building to be considered "related and incidental" to transportation of the larger items.
An obstacle to the panels qualifying in their own right for carriage by heavy haulers is the presumption that the individual commodity is the controlling consideration in determining which carriers have authority to transport aggregated commodities. W. J. Dillner Transfer Co. Investigation of Operations, 79 MCC 335, 358 (1959), Aff'd 193 F. Supp. 823, (W.D.Pa.1961), and 368 U.S. 6, 82 S. Ct. 16, 7 L. Ed. 2d 16 (1961). The ALJ found that the panels fit within the limited exception which allows consideration of the aggregated items as a whole when the commodities require aggregation due to their "inherent nature." Ace Doran Hauling & Rigging Co., Investigation, 108 MCC 717 (1969), Aff'd sub nom. Pittsburgh & New England Trucking Co. v. United States and ICC, 345 F. Supp. 743 (W.D.Pa.1972), Aff'd, 409 U.S. 904 and 1070, 93 S. Ct. 235, 686, 34 L. Ed. 2d 169, 660 (1972). With a great preponderance of the components found to be within heavy hauling authority, the accessorial items were determined to be incidental and likewise within heavy hauling operating authority.
Pre-Fab filed exceptions to the ALJ's decision, contending error in the conclusion that heavy haulers were authorized to carry the commodities. The ICC affirmed the ALJ's decision, and Pre-Fab filed this petition for judicial review.
1. Whether the ICC acted arbitrarily or capriciously or abused its discretion in departing from agency precedent to hold that the commodities were within ...