American Trucking Ass'n, Inc. v. U.S., s. 80-1214
| Decision Date | 17 April 1981 |
| Docket Number | Nos. 80-1214,80-1225 and 80-1198,s. 80-1214 |
| Citation | 642 F.2d 916 |
| Parties | AMERICAN TRUCKING ASSOCIATION, INC., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. AMERICAN MOVERS CONFERENCE, Petitioner, v. INTERSTATE COMMERCE COMMISSION and the United States of America, Respondents. C & H TRANSPORTATION CO., INC. et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gary D. Dunbar, Atty., Washington, D. C., for Regular Common Carrier Conference Inc.
Richard P. Watson, Watson & Rockford, Indianapolis, Ind., for Mayflower Warehousemen's Assn., Inc.
David Earl Tinker, Washington, D. C., for Belknap Van & Storage of San Antonio, Inc., et al.
Denning & Wohlstetter, Alan F. Wohlstetter, Stanley I. Goldman, Washington, D. C., for Imperial Van Lines, Inc., et al.
Thomas E. James, Dallas, Tex., Phillip Robinson, James M. Doherty, Doherty, Birnbaum & Munson, Austin, Tex., for C & H Transp. Co., Daily Express and intervenors Dealers Transit, Inc., et al.
Gregory A. Stayart, Daniel C. Sullivan, Chicago, Ill., for intervenor Assure Competitive Transp.
Donald W. Smith, Indianapolis, Ind., for Sammons Trucking.
Robert B. Nicholson, Evelyn G. Kitay, Kathy M. Dollar, Richard A. Allen, ICC, Washington, D. C., for the ICC.
Jacob P. Billig, Billig, Sher & Jones, Mark J. Fritz, Washington, D. C., for Minority Trucking Transp. Development and Alliance Moving & Storage.
Fritz R. Kahn, Member, Committee on Regulatory Reform, Washington, D. C., for Motor Carrier Lawyers Assn A. Charles Tell, Baker & Hostetler, Columbus, Ohio, for Ace Doran Hauling & Rigging Co.
Petitions for Review of an Order of the Interstate Commerce Commission.
Before THORNBERRY, RANDALL and TATE, Circuit Judges.
The petitioners in these consolidated cases ask us to review final rules adopted by the Interstate Commerce Commission in Ex Parte No. MC-107, Transportation of Government Traffic, 131 M.C.C. 845 (1979). These rules established a simplified licensing procedure for motor carriers proposing to transport traffic on behalf of the United States. For the reasons that follow, we affirm.
This rulemaking proceeding was initiated when the Minority Trucking Transportation Development Corporation (MTTDC) asked the Commission to remedy a lack of representation of disadvantaged persons in the transportation field and, in particular, to focus on the difficulty in obtaining contracts for government traffic. The Commission issued an interim decision in July 1978, identifying two major objectives for the proposed rules: (1) allowing government agencies to tender a fair portion of their freight shipments to small businesses and those operated by disadvantaged persons, and (2) spurring competition in bidding for government traffic. Ex Parte No. MC-107, Transportation of Government Traffic, 129 M.C.C. 623 (1978). The Commission tentatively decided to expand the rulemaking to include all truckers, not just those economically disadvantaged. The Commission provisionally found that the present and future public convenience and necessity require the licensing of qualified applicants to transport government traffic upon a demonstration of fitness to perform the service, and that this finding was reasonable, necessary, and consistent with the national transportation policy and the intent of Congress. In January 1980, the Commission issued its decision re-examining the interim decision in light of numerous statements submitted in response to that decision as well as a staff study of economic impact, and concluded that the regulations should be implemented. The final rules became effective March 18, 1980. 45 Fed.Reg. 3586-88.
The rules simplified licensing procedures for motor carriers proposing to transport traffic of the federal government by allowing qualified applicants to operate under a master certificate, which eliminated the need for each applicant to show in an individual adjudicatory proceeding that its application was consistent with the public convenience and necessity. In MC-107, the Commission made a general finding that the present and future public convenience and necessity require operation by any qualified motor carrier in the transportation of general commodities (with certain exceptions) where the traffic is handled for the United States and the total benefit inures to the government. A carrier may request authority simply by filing a sworn, notarized letter containing certain information concerning its designated agent, insurance coverage, and fitness. Because of the general finding of need, other carriers protesting the application can only challenge the applicant's fitness and capacity to perform the proposed service and to conform to the Interstate Commerce Act.
C & H Transportation, Inc., American Trucking Associations, Inc., and the American Movers Conference filed petitions in this court for review of this final ICC decision. Both the Commission and this court denied petitioners' request for stay pending judicial review. Other interested parties intervened.
On July 1, 1980, the Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793, was signed into law, amending certain provisions of subtitle IV of title 49, United States Code, to provide for more effective regulation of motor carriers. Although the Act states that the Commission may no longer make public convenience and necessity determinations based on general findings developed in rulemaking proceedings, as it did in this case, the Act adopts standards for government traffic that are very similar to the rules at issue here. The statute eliminates the need for carriers desiring to carry government traffic (other than used household goods) to show that the application is consistent with the public convenience and necessity; the applicant need only show that he is fit to perform the service. Motor Carrier Act § 5(a), 49 U.S.C. § 10922.
To implement the new Act, the Commission repealed the MC-107 rules and no longer accepts applications under them. The Commission also has issued interim rules establishing procedures for applying for authority to transport government traffic under the new Act. Although the significance of this case has been substantially reduced, 1 the MC-107 rules did form the basis for a significant number of government traffic applications published or granted before July 1, 1980, and for that reason the case is not entirely moot.
We must consider the following issues: (1) whether the Commission properly used the informal rulemaking procedure to make a general prospective finding of public convenience and necessity; (2) whether the Commission properly considered and applied the controlling legal standards for determining public convenience and necessity; and (3) whether the Commission complied with the requirements of the National Environmental Policy Act of 1969 and the Energy Policy and Conservation Act of 1975. 2
Because we lack the knowledge and experience needed to evaluate the transportation requirements of the nation, we accord the Commission a great deal of discretion and appropriately defer to its expertise. We are to review this informal rulemaking conducted under § 553 of the Administrative Procedure Act (APA) only to determine whether the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of review is narrow. We neither weigh the evidence before the Commission nor assess the wisdom of the rule promulgated, and we inquire into the soundness of the Commission's reasoning only to determine that its conclusions are rationally supported. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S.Ct. 1941, 1946, 32 L.Ed.2d 453 (1972). Our task is to ensure that the agency considered all relevant factors and avoided clear errors in judgment. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). The agency must articulate a rational connection between the facts as it finds them and the conclusion it premises on those facts. Id. We cannot supply a reasoned basis for agency action that the agency itself has not given, but "we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. at 285-86; 95 S.Ct. at 442.
We are satisfied that the Commission was entitled to use an informal notice and comment procedure under its rulemaking authority to make a general finding of public convenience and necessity. Chemical Leaman Tank Lines, Inc. v. United States, 368 F.Supp. 925 (D.Del.1973). See also United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953); American Trucking Associations, Inc. v. United States, 602 F.2d 444 (D.C.Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). We need add nothing to the thorough discussion by the Chemical Leaman court explaining why neither the APA nor the Motor Carrier Act then in effect prevented the Commission from making a prospective finding of public convenience and necessity for a broad class of motor carrier traffic. 368 F.Supp. at 932-40. Nonetheless, certain petitioners continue to argue that applications to operate under the master certificate were mere procedural formalities and that the MC-107 decision therefore constituted "licensing" requiring adjudication. We disagree, noting the distinction between MC-107's advance declaration of licensing criteria and the subsequent acknowledgment of an applicant's right to operate under the...
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