629 F.2d 611

PENINSULA AIR DELIVERY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents.

No. 78-2099.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 1980.

Decided Oct. 6, 1980.

*612Walter H. Walker, III, San Francisco, Cal., for petitioner.

H. Glenn Scammel, Washington, D. C., for respondents.

Before WRIGHT and POOLE, Circuit Judges, and CRAIG, Senior District Judge.*

EUGENE A. WRIGHT, Circuit Judge:

This appeal presents two questions: (1) whether the decision of the Interstate Commerce Commission (ICC) to issue a certificate of registration to Blue Ribbon Express (BR) was supported by the record; and (2) whether the procedure followed complied with the Interstate Commerce Act. We affirm the Commission’s issuance of the certificate of registration.

FACTS

In 1976, Blue Ribbon Express (BR) applied to the California Public Utilities Commission (CPUC) and the ICC for a certificate of registration under § 206(a)(6) of the Interstate Commerce Act. 49 U.S.C. § 306(a)(6). Peninsula Air Delivery (PAD), a competitor, opposed its application.

Section 206(a)(6) provides a streamlined certification procedure for motor carriers engaging in interstate commerce incidental to their intrastate operations. The carrier’s application is considered initially by the appropriate state agency. If it decides to authorize the incidental interstate operation, it must recite in the record that: (1) notice by publication in the Federal Register was given to interested persons; (2) they had a reasonable opportunity to be heard; (3) it “duly considered the question of the proposed interstate and foreign operations;” and (4) it found that “public convenience and necessity require [the service].” Id.

State authorization must “be evidenced by appropriate certification of registration issued by the [Interstate Commerce] Commission.” Any party who opposed the carrier’s application before the state agency may petition the ICC to “affirm, reverse, or modify the decision of the State commission . .” Id. The ICC’s review is solely *613on the record generated by the state agency.1

Contrasted with the above procedure under which carriers operating wholly within a state may receive a certificate of registration to engage in interstate and foreign commerce incidental to their intrastate operation, the Interstate Commerce Act (ICA) also provides the procedure under which the ICC issues certificates of convenience and necessity to carriers authorizing them to engage in interstate commerce.2

*614DISCUSSION

PAD argues that (1) the record before the CPUC was not sufficient to demonstrate a need for interstate operations; (2) both the CPUC and the ICC failed to make a fitness finding; and (3) the ICC failed to comply with the Administrative Procedure Act (APA) by failing to issue a complete written decision and order. We reject all of these arguments.

SUFFICIENCY OF THE RECORD:

(1) Scope of Review by ICC and Court:

The state agency has the primary responsibility for authorizing incidental interstate operations. It considers whether the public convenience and necessity require the interstate service and recites its conclusions in the record. The ICC is required to review the state’s authorization only if an interested party objects and, on review, cannot take new evidence to support findings of its own. ICA § 206(a)(6), 49 U.S.C. § 306(a)(6).

Congress intended only to require the ICC to give the best review reasonably possible on the state agency’s record, not to make its own findings and conclusions on each element of the public convenience and necessity test. Section 206(a)(6) provides a streamlined certification procedure for incidental interstate operations. Requiring the ICC to redetermine public convenience and necessity would prevent efficient administration of certificate applications. ICA § 206(a)(6); H.Rep. 1090, 87th Cong., 2d Sess., Reprinted in (1962) U.S.Code & Cong. & Admin.News, p. 3165.

In John E. Dugan, Extension-Certificate of Registration, 99 M.C.C. 577 (1965), the ICC declared that it would review the state agency’s record to determine whether certification was inconsistent with the public convenience and necessity. We hold that this standard of ICC review is appropriate under § 206(a)(6).

In determining the validity of a state agency’s decision in a certificate of registration case this court reviews: (1) proper procedure; (2) whether there was a finding that public convenience and necessity required the proposed service; and (3) whether there was substantial evidence to support those findings. Murfreesboro Freight Line Co. v. United States, 357 F.Supp. 336 (M.D.Tenn.1973); Goggin Truck Line, Inc. v. United States, 276 F.Supp. 884 (M.D.Tenn.1967).

(2) Certificate of Convenience and Necessity:

Here the record shows that the CPUC gave Federal Register notice, held a hearing at which BR and PAD appeared and offered witnesses, and made findings on intrastate and interstate public convenience and necessity.

PAD’s argument that the CPUC must apply the criteria of Pan American Bus Lines Operation, 1 M.C.C. 190 (1936), to its determination to convenience and necessity would subject a state agency to the same requirements in a certificate of registration proceeding as are faced by the ICC in applications for certificates of convenience and necessity under ICA §§ 206(a)(1) and 207(a), U.S.C. §§ 306(a)(1) and 307(a). This argument is supported neither by the language of § 206(a)(6) nor the legislative intent, (1962) U.S.Code & Cong. & Admin.News, H.R. 1090, p. 3165, supra; Ray Price, Inc. v. United States, 297 F.Supp. 55 (D.Neb.1969); Merrill v. Stewart Certificate of Registration, 102 M.C.C. 1 (1966). We find that the record sufficiently indicates that the CPUC considered the requisite elements of convenience and necessity and made adequate findings.

FITNESS FINDING

PAD argues that § 207(a) requires the ICC to make a specific fitness finding when *615issuing any “certificate.” 49 U.S.C. § 307(a). Section 207(a) was enacted in 1935, long before § 206(a)(6) was added in 1962, and we read “certificate” to mean “certificate of public convenience and necessity.”

The CPUC addressed the elements of fitness sufficiently in its order, stating:

applicant has the business experience, the facilities, and the ability, including financial ability, to initiate and maintain the proposed service.

WRITTEN DECISION AND ORDER

The APA requires an agency decision to include:

findings and conclusions, and the reasons or basis therefor, on all material issues of fact, law, or discretion presented on the record.3

The ICC concluded summarily that CPUC’s authorization was “proper and correct in all material respects.” We find this an adequate statement of its decision.

After reviewing the CPUC’s decision the Commission stated:

[T]he procedures followed [by the CPUC] in reaching such conclusions and findings are in accordance with the requirements of Section 206(a)(6) of the Act, as amended; Dugan Extension-Certificate of Registration, 99 M.C.C. 557 [1965].

A shor.t-form expression of finding by the ICC has been held proper. See Kerner Trucking Service, Inc., 108 M.C.C. 888, 889 (1969), aff’d sub nom. Brake Delivery Service v. United States, 306 F.Supp. 629 (D.Cal.1969). Cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970).

The issuance of the certificate is AFFIRMED.

Peninsula Air Delivery v. United States
629 F.2d 611

Case Details

Name
Peninsula Air Delivery v. United States
Decision Date
Oct 6, 1980
Citations

629 F.2d 611

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!