This Court has before it consolidated appeals from two orders of the Interstate Commerce Commission (ICC). Appeal No. 76-1225 involves a Commission ruling that an application by the Youngstown Cartage Company (YCC) for gateway elimination, which was filed pursuant to the ICC's
The Commission held that the applicant had failed to indicate which shipments were transported over which gateways, thereby precluding a determination that YCC had been a substantial competitor for each of its fourteen proposed authorities, as required under Childress—Elimination Sanford Gateway, 61 M.C.C. 421 (1952). The Commission also found that YCC had failed to identify which shipments involved a circuity of less than 20% and were already the subject of E-Letter-Notices.
In a petition for reconsideration the carrier identified 29 shipments out of the 800 as involving more than 20% circuity. But the carrier still failed to advise the Commission which part or parts of its fourteen part application were supported by evidence of these 29 shipments. We think the ICC was not unreasonable in requiring that the applicant meet the minimal procedural burden put on the carriers in order to help the agency with the formidable administrative burden of the gateway elimination program, particularly in view of the benefits that program conferred on the carriers.
The effect of the ICC's action was to require that YCC discontinue "tacking" these irregular routes on and after January 22, 1976.
Under the ICC's gateway elimination rules, carriers that did not file applications prior to June 4, 1974, lost authority to tack their authorized routes. In view of the late filing, the Commission did not process YCC's second application under the gateway elimination rules, but instead treated the application as one for new operating authority under § 207 of the Interstate Commerce Act, which embodies a public convenience and necessity standard.
Traditionally an applicant shows shipper support by filing affidavits of shippers indicating
The Commission has taken the view that the standard reflected in the gateway elimination exception to the shipper affidavit rule is applicable only when the carrier has a continuing tacking authority. YCC's application was filed on the day before the effective date of the denial of its gateway application. It had no ongoing tacking authority. As noted, the gateway regulations specifically established June 4, 1974, as the final date for the filing of applications for the elimination of gateways. operations that did not receive approval under the regulations were prohibited after that date.
It is apparent that this case involves issues of regulatory policy and internal administration of Commission operations. We are not free to select the rules we think best. The Commission must be given considerable leeway in control of its calendar. Dart Trucking Co. v. United States, 555 F.2d 555 (6th Cir. 1977). Our charter permits intervention only when we can say that the Commission has acted in a way that is arbitrary and capricious. We do not think that the Commission was acting in an arbitrary and capricious manner when it put its special gateway program, conceived in 1973 in an effort to cope with the energy emergency, under rigorous time limits, and decided that in subsequent applications it would apply the standards for shipper support that are normally employed in evaluating applications for new authority.
Historically, motor common carriers have been free to provide through service by combining two or more authorized routes at common geographical points of service ("gateways"). Use of such gateways commonly involved a degree of circuity, i. e., more driving miles than would be required by a direct route. The gateway elimination rules were prompted by the energy crisis and a consequent desire to reduce the circuity involved in transporting shipments. Those rules provided procedures whereby carriers could obtain authority to provide direct service between points currently linked by gateways.