948 F.2d 338 (7th Cir. 1991), 90-3868, Schneider Nat., Inc. v. I.C.C.

Docket Nº:90-3868.
Citation:948 F.2d 338
Party Name:SCHNEIDER NATIONAL, INCORPORATED, Schneider Transport, Incorporated, Schneider National Carriers, Incorporated, Schneider Tank Lines, Incorporated, Schneider Specialized Carriers, Incorporated, Schneider National Fleet Services, Incorporated, Schneider National Bulk Carriers, Incorporated, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United S
Case Date:November 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 338

948 F.2d 338 (7th Cir. 1991)

SCHNEIDER NATIONAL, INCORPORATED, Schneider Transport,

Incorporated, Schneider National Carriers, Incorporated,

Schneider Tank Lines, Incorporated, Schneider Specialized

Carriers, Incorporated, Schneider National Fleet Services,

Incorporated, Schneider National Bulk Carriers,

Incorporated, Petitioners,

v.

INTERSTATE COMMERCE COMMISSION and United States of America,

Respondents.

No. 90-3868.

United States Court of Appeals, Seventh Circuit

November 19, 1991

Argued Sept. 4, 1991.

Page 339

Daniel C. Sullivan (argued), Sullivan & Associates, Oak Brook, Ill., for petitioners.

Ira H. Raphaelson, Asst. U.S. Atty., Crim. Div., Chicago, Ill., Robert S. Burk, Theodore K. Kalick (argued), Interstate Commerce Com'n, Office of the General Counsel, Richard L. Thornburgh, U.S. Atty. Gen., Washington, D.C., William Redmond, Interstate Commerce Com'n, Compliance & Consumer Assistance, Chicago, Ill., for respondents.

Before CUMMINGS, WOOD, Jr., and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The petitioners, Schneider National, Incorporated and six of its wholly-owned motor carrier affiliates (hereafter collectively referred to as "Schneider"), seek review of a final order of the respondent, the Interstate Commerce Commission ("ICC" or "Commission"), denying Schneider's request for reinstatement of exemptions from ICC accounting and reporting requirements under 49 C.F.R. §§ 1207, 1249. Schneider contends that the company would be forced to implement a new accounting system at great cost in order to comply with the reporting requirements. Schneider argues further that the cost of the implementation has no corresponding benefit to the Commission and is arbitrarily and capriciously illogical. The ICC counters that the newly revised reporting requirements are substantially reduced and that the lesser reporting requirements, consequently, lead to reduced accounting burdens. Moreover, the ICC believes Schneider greatly overstates the burden of converting its accounts to the format required by agency regulations.

The circuitous course of these proceedings has generated several orders. Schneider has requested that we review each of the ICC rulings involved in this case. The first is the ICC letter order revoking Schneider's exemptions from the agency's accounting and reporting requirements. The second is the ICC's denial of Schneider's petition for reinstatement of the exemptions. The final order that we have been requested to review is the ICC's decision rejecting Schneider's petition to reopen, or reconsider, the denial of reinstatement of exemptions and the ICC's denial of

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Schneider's request for a stay of the agency's order to comply with reporting and accounting regulations.

We hold that there is no jurisdiction to review the ICC's first order revoking Schneider's exemptions from agency accounting and reporting requirements because Schneider did not timely appeal the orders to this court pursuant to the Hobbs Act. 1 There is also no jurisdiction to review the ICC's last order in this case because the ICC's decision to deny reconsideration of a previous decision is committed to the agency's discretion when the petition requesting reconsideration is based on "material error." There is jurisdiction to review the ICC's denial of Schneider's request to reinstate the exemptions. We affirm the ICC's denial because the Commission's decision not to reinstate the exemptions was neither arbitrary nor capricious and is, therefore, lawful.

FACTUAL BACKGROUND AND PROCEDURAL POSTURE

Schneider National and its trucking subsidiaries are "special commodities carriers" ("SCCs"). SCCs transport bulk liquid chemicals, foodstuffs, raw and finished paper, and other products using specialized equipment. See Classification of Motor Carriers of Property, 2 M.C.C. 703 (1937). SCCs such as Schneider transport shipments by contract carriage as opposed to common carriage. Because of this arrangement Schneider does not participate in collectively set rates. Prior to revising the reporting regulations, see Elimination of Accounting and Reporting Requirements for Motor Carriers of Property, 5 I.C.C.2d 17 (1988), the ICC granted Schneider and approximately 40 other SCCs relief from agency reporting and accounting requirements. At least one of the reasons for the exemption was the fact that SCCs do not participate in collectively set rates.

Schneider National, Incorporated and four of its wholly-owned subsidiaries received exemptions from the ICC's accounting and reporting requirements under 49 C.F.R. §§ 1207, 1249, on May 17, 1985. Four years later, the ICC sent to Schneider a letter dated June 7, 1989, stating that the Commission had voted unanimously by notation to revoke the exemptions.

Schneider filed with the ICC a petition entitled "Petition for Reinstatement of Exemption" on September 1, 1989. The Commission voted to deny Schneider's petition, stating that there was no justification under the newly revised rules for relieving Schneider from the reporting requirements. The ICC notified Schneider of its decision by letter served on September 12, 1990.

Schneider next filed with the ICC on October 2, 1990, a petition to reopen the denial of its previous petition for reinstatement of exemption. Schneider also requested a stay of the Commission's denial order. The Commission rejected Schneider's petition to reopen and review and also denied the petition for stay by Decision No. 40489, served on November 2, 1990.

On November 28, 1990, Schneider submitted to the ICC a petition for stay pending request for judicial review of the Commission's November 2 order. Schneider's petition was denied in ICC Decision No. 40489, served on December 26, 1990.

On December 28, 1990, Schneider filed in this court a petition for review of ICC Decision No. 40489. Schneider requested that this court: (1) reverse the ICC's June 7, 1989, decision that revoked Schneider's exemption from agency accounting and reporting requirements; (2) reverse the...

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