On Petition for Review of an Order of the Interstate Commerce Commission (I.C.C. Docket No. MC-148160 Sub No. 3)
BEFORE: GARTH and HIGGINBOTHAM, Circuit Judges and McGLYNN, District Judge*fn*
In this petition for review, we are asked to determine whether the Interstate Commerce ("ICC") erred in granting L.S. Geist, Inc. ("Geist") authority to transport general commodities without a bulk*fn1 restriction. The petitioner, Port Norris Express Co., Inc. ("Port Norris"), argues that Geist did not present sufficient evidence to support the ICC's finding that there was a need for general bulk service, and that therefore, such authority was improperly granted by the ICC.
After a careful review of the record, we conclude that Geist did not present substantial evidence of a public demand or need for bulk service. Accordingly, we grant Port Norris' petition.
On July 1, 1983, Geist filed an application with the ICC which sought to expand its existing radial*fn2 authorization to transport commodities. Geist's existing authority allowed it to transport food and related, specified products in non-bulk form. Geist also had the authority to transport fruit juices in bulk form. In its application for extended authorization, Geist sought nonradial*fn3 authority to transport "general commodities (expect classes A and B explosives, household goods, and commodities in bulk)"*fn4 among a total of 32 states. App. at 4.
In support of its application, Geist submitted statements from eleven shippers, many of which Geist was already servicing under its existing authority. These shippers expressed a need for more complete commodities. Their products included printing paper, tires, wheels, tubes, mobile homes, fertilizer, farm equipment, shell eggs, liquid egg tankers, baked goods, and raw ingredients. App. at 17. In addition, the eleven shippers identified specific origin and destination points between which they required transport for their products. None of the shippers expressed a need for bulk service, nor did any shipper state Geist was currently providing it with bulk service.
Also submitted in support of Geist's application was the verified statement of Lawrence S. Geist, president of the company. In that company owned and operated seven tractors, eight insulated trailers, six refrigerated trailers, seven open top trailers, four flat-bed trailers, and one "straight truck." He stated that he was fully familiar with the safety regulations promulgated by the Department of Transportation and the I.C.C. App. at 10. Lawrence Geist also stated that he sought expanded authority, which would permit the carriage of products other than food and related commodities, because his present limited authority often prevented his company from obtaining other commodities to transport on its return trips (backhaul). Lawrence Geist claimed that this deadhead hauling resulted in inefficient service. App. at 11-12.
As previously noted, although Geist's application did not seek authority to transport bulk commodities, the verified statement of Lawrence Geist did not exclude bulk transportation from the authority sought. Nevertheless, Lawrence Geist's verified statement did not specify that there existed a public demand or need for bulk transportation, nor did his statement claim that his company was currently providing such bulk service.
Thus, at the time the ICC granted Geist general bulk authority, which is the only authority at issue in this case, the ICC had before it, in addition to the Geist application for extended authority (for other commodities to other states), the following evidence: (1) Geist's existing authority; (2) the statements from eleven shippers in support of Geist's application for extended authority; and (3) Lawrence Geist's verified statement.
The ICC Review Board, in determining that Geist had presented sufficient evidence of a public need for bulk authority, stated:
The commodities of the supporting shippers cover several generic groups and includes some items which are susceptible to transportation in bulk....When the shipper evidence is considered along with the scope of applicant's present exempt operations, and the difficulty applicant has encountered in obtaining sufficient return traffic to operate efficiently, we conclude a public demand or need has been demonstrated for the entire scope of authority sought.
Port Norris filed an appeal from the Review Board's decision, arguing that Geist had failed to present any evidence of a need for bulk transportation authority. The Appeals Division of the ICC, relying entirely on the Review Board's reasoning, rejected Port Norris' argument. Port Norris ...