American Trucking Associations, Inc. v. U.S., 78-2260
| Decision Date | 24 April 1980 |
| Docket Number | No. 78-2260,78-2260 |
| Citation | 201 U.S.App.D.C. 327,627 F.2d 1313 |
| Parties | AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, * v. UNITED STATES of America and Interstate Commerce Commission, Respondents *. Common Carrier Conference-Irregular Route, National Industrial Traffic League et al., Steere Tank Lines, Inc. et al., Chemical Leaman Tank Lines, Inc., Motor Carrier Lawyers Association, Colonial Fast Freight Lines, Inc. et al., J. H. Rose Truck Line, Inc. et al., International Brotherhood of Teamsters et al., and Michigan and Nebraska Transit Co., Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of a Decision of the Interstate Commerce commission.
Alan J. Thiemann, Washington, D.C., with whom Nelson J. Cooney and Kenneth E. Siegel, Washington, D.C., were on the brief, for petitioner American Trucking Associations, Inc.
Ronald J. Mastej and Rex Eames, Detroit, Mich., were on the brief for petitioners Motor Carriers Central Freight Association et al.
Alan E. Serby, Clyde W. Carver, and John J. Capo, Atlanta, Ga., were on the brief for petitioners Refrigerated Transport Co., Inc. et al.
H. E. Miller, Jr., Chesterton, Ind., was on the brief for petitioner Sawyer Transport, Inc.
John P. Fonte, Atty., I.C.C., Washington, D.C., for respondents. Mark L. Evans, Gen. Counsel, Frederick W. Read, III, Associate Gen. Counsel, and Kenneth P. Kolson, Atty., I.C.C., and John J. Powers, III and William D. Coston, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents. Robert B. Nicholson, Barry Grossman, and Bruce E. Fein, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent United States.
Richard H. Streeter, Washington, D.C., for intervenors International Brotherhood of Teamsters et al. Edward K. Wheeler and Chandler L. van Orman, Washington, D.C., also entered appearances for intervenors International Brotherhood of Teamsters et al.
Renee D. Rysdahl, Washington, D.C., with whom John F. Donelan, Washington, D.C., was on the brief, for intervenor National Industrial Traffic League.
Harry J. Jordan, Washington, D.C., was on the brief for intervenor Common Carrier Conference-Irregular Route.
Leonard A. Jaskiewicz and Edward J. Kiley, Washington, D.C., were on the brief for intervenor Chemical Leaman Tank Lines, Inc.
Hugh T. Matthews, Dallas, Tex., was on the brief for intervenors Steere Tank Lines, Inc. et al.
Peter A. Greene, New York City, was on the brief for intervenor Motor Carrier Lawyers Association.
E. Stephen Heisley and Elizabeth A. Purcell, Washington, D.C., were on the brief for intervenors Colonial Fast Freight Lines, Inc. et al.
Mert Starnes, Austin, Tex., was on the brief for intervenors American Transfer and Storage Co. et al. (No. 79-1105).
James M. Doherty was on the brief for intervenors J. H. Rose Truck Line, Inc. et al.
Steven H. Loeb entered an appearance for intervenor Michigan and Nebraska Transit Co., Inc.
Before WRIGHT, Chief Judge, and McGOWAN and MIKVA, Circuit Judges.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
These consolidated petitions for review 1 challenge regulations recently promulgated by the Interstate Commerce Commission (ICC or Commission) governing intervention in motor carrier licensing proceedings by persons opposing issuance of the license. 2 Petitioner American Trucking Associations, Inc., the national organization of the trucking industry, is joined by other motor carrier interests and by intervenor International Brotherhood of Teamsters in asking this court to strike down the regulations. 3 They contend that the regulations restrict the right of intervention in ICC licensing proceedings guaranteed to competitors and carrier employees under the Interstate Commerce Act, 49 U.S.C.A. §§ 10306(b), 10328(a) & (b) (1979), the Administrative Procedure Act, 5 U.S.C. §§ 544(c), 556(d) (1976), and the Due Process Clause. They also argue that the regulations are arbitrary, capricious, without rational basis, and abusive of discretion.
The Commission, joined by intervenor National Industrial Traffic League, an organization of shippers, argues that the challenged regulations are within the discretion of the agency, being a reasonable way to control the docket and restore order and manageability to licensing proceedings. The Commission denies that the regulations will take from any party a right of intervention it may have under the relevant statutes or the Constitution. The Commission observes that the new regulations are similar to the procedures governing intervention in licensing proceedings conducted by other federal agencies.
We agree with the Commission that the new rules are within its statutory authority and, being a sensible method of improving and streamlining ICC licensing proceedings, are not arbitrary, capricious, or abusive of discretion. We therefore affirm.
Until the challenged regulations went into effect 4 the ICC permitted any person to file a protest to a motor carrier application and to participate in the proceeding without making any showing of interest. 5 In his 1958 treatise on administrative law Professor K. C. Davis commented on the uniquely open intervention rules of the ICC:
(T)he ICC almost as a matter of course grants petitions for leave to intervene, with no inquiry except into the timeliness of the petitions and the question of undue broadening of issues. Moreover, in nearly any proceeding except a complaint case, one may become a party by merely entering an appearance without filing a petition for leave to intervene. The ICC thus avoids problems about adequacy of legal interest or right. Even a substantial broadening of the issues is commonly permitted.
1 K. Davis, Administrative Law Treatise § 8.11 at 569-570 (1958) (footnotes omitted).
Recently, however, the ICC has experienced an "influx of applications," 6 which has caused a substantial backlog. 7 In the Commission's estimation, this backlog has reached the point at which the agency can no longer be "as responsive as it could be" to the requirements of the transportation industry and the interests of the public. 8 Accordingly, on June 2, 1977 the Commission established a staff task force to investigate ways of improving outmoded ICC procedures. After study the staff concluded that the ICC should grant standing to protest license applications "only to carriers actually participating in the involved traffic during the 2-year period preceding the filing of the application." 9 By this change in procedure the staff expected to eliminate many "frivolous protests" and to permit more cases to be handled as unopposed. 10
After inviting comments on the staff report 11 the Commission published proposed rules restricting the right of intervention in motor carrier licensing proceedings 12 and set the matter for notice and comment rulemaking without oral argument. The proposed rules were much less restrictive than those supported by the staff report. 13 In summary, they permitted automatic intervention by carriers in direct competition with the applicant's proposed service and permissive intervention by other parties upon petition. The Commission was to base its decision whether to grant such permissive intervention on seven criteria designed to identify parties with sufficient interest in the proceeding to warrant their participation. Many members of the public and some federal agencies submitted comments on the proposed rules. Carrier interests generally agreed that the Commission should take action to eliminate frivolous protests, but opposed the proposed rules on the ground that they would interfere with the ability of carriers with competing authority to protect their economic interests. 14 Shipping interests and the federal agencies generally supported the proposed rules or suggested that they be strengthened so as to restrict the right of intervention still further. 15
On November 1, 1978 the ICC promulgated final rules governing intervention in motor carrier licensing proceedings. Protest Standards in Motor Carrier Application Proceedings (1978), printed at 43 Fed.Reg 50908 (November 1, 1978), Deferred Appendix (DA) 28. The new rules amend 49 C.F.R. § 1100.247(i) (1978) and add new subsections (e)(9), (k), (l), and (m). Under the new intervention rules the ICC will permit intervention as a matter of right in motor carrier licensing proceedings to persons supporting the application, and to any carrier that submits a petition showing that it:
(1) Is authorized to perform any of the services which the applicant seeks authority to perform(;) and
(2) Has the necessary equipment and facilities for performing that service; and
(3) Has performed a service within the scope of the application either (i) for those supporting the application, or, (ii) where the service is not limited to the facilities of particular shippers, from and to or between any of the involved points.
Protest Standards, supra, 43 Fed.Reg. at 50911, DA 52, 49 C.F.R. § 1100.247(k) (1979). Other parties may petition to intervene in motor carrier licensing proceedings, although they do not satisfy the criteria of subpart (k). The Commission will decide whether to permit such intervention, based on the following factors:
(i) The nature, if any, of the petitioner's right under a statute to be made a party.
(ii) The nature and extent of the property, financial, or other interest of the petitioner, including petitioner's service capabilities and the extent, if any, to which petitioner (A) has solicited the traffic or business of those supporting the application, or, (B) where the identity of those supporting the application is not included in the published application notice, has solicited traffic or business identical to any part of that sought by applicant within the affected marketplace.
(iii) The effect of the decision which...
To continue reading
Request your trial
-
Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan
...not entitled to judicial review resists precise legislative or judicial delineation, American Trucking Ass'ns v. United States, 201 U.S.App.D.C. 327, 333-334, 627 F.2d 1313, 1319-1320 (1980), and requires close scrutiny, in the context of the statutory and regulatory schemes governing the p......
-
Abiona v. Thompson
...the Secretary's fee schedule, therefore, is "entitled to `more than mere deference or weight.'" American Trucking Assn's, Inc. v. United States, 627 F.2d 1313, 1320 (D.C.Cir.1980) (quoting Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977)). As the Supreme Court r......
-
ITT World Communications, Inc. v. F.C.C., s. 80-1721
...Resources Defense Council, Inc., 435 U.S. 519, 543-48, 98 S.Ct. 1197, 1211-13, 55 L.Ed.2d 460 (1978); American Trucking Ass'ns v. United States, 627 F.2d 1313, 1321 (D.C.Cir.1980).188 The Commission so argues on appeal, see FCC Brief at 26-27, but the proposals' "unworkability" did not form......
-
Massachusetts v. U.S. Nuclear Regulatory Comm'n
...standards were not met was not arbitrary and capricious, as just discussed, the AEA claim fails. See Am. Trucking Ass'ns, Inc. v. United States, 627 F.2d 1313, 1321 (D.C.Cir.1980) (stating that agencies have wide discretion in establishing and applying rules for hearings).IV. Rather than ar......