motions to strike overruled. MC-126814, Shannon Transport, Inc., Petition for Correction of Ctfe., 2-21-68, Rev. Bd. No. 3.

17.20

Motion to strike that portion of witness Hastings' verified statement concerning alleged unauthorized operations by applicant granted for reason that matter objected to is without factual support and, furthermore, not in issue in this proceeding. MC-119268, Sub 67, Osborn, Inc., Ext.Textiles, 2-26-68, Rev. Bd. No. 5.

17.20 Irrelevant matter related to matters before Pennsylvania Public Utility Commission and intrastate commerce and are not pertinent to this proceeding. Applicant's petition to strike that part of verified statement granted. MC-116280, Sub 4, W. C. McQuaide, Inc., Ext.-Airfrt., 2-29-68 Rev. Bd. No. 3.

17.43 Rulings

17.4 Reception of Evidence

17.43 Examiner erred in holding that a witness could not give oral testimony concerning specific movements unless he had available underlying documents in support thereof. Commission has always permitted testimony concerning transportation matters relating to shipper's enterprise by those who have personal knowledge of business operations and transportation requirements of their company. 62 M.C.C. 513, 533 and 72 M.C.C. 317, 324. Such testimony is subject to effective cross-examination by opposing parties. Moreover, where as here, freight bill numbers and dates are available, protesting carriers are not only in position to cross-examine witness but they also can rebut shipper testimony from information in their possession. 102 M.C.C. 336, 343 and 89 M.C.C. 150, 152. MC-107107, Sub 343, Alterman Transport Lines, Inc., Ext.-General Commodities, 106 M.C.C. 402, 405, 1-9-68, Div. 1.

17.43 Commissioners do not agree with ruling of examiner that evidence was not admissible testimonially because it was hearsay. It is not found necessary to go into effect of hearsay testimony and weight to be assigned it in administrative proceedings. Statement was one made in course of conversation between two persons, and person to whom statement was made was present to testify and be cross-examined on his testimony. Moreover, in this case person alleged to have made statement was also available to testify in rebuttal, if applicant desired, and did seek to do so. This is not in any sense hearsay evidence as that term is understood in law. It is entitled to be considered along with other evidence on issue of control of Brandt by Pals. MC-F-9015, All-American Transport, Inc.-Control and Merger-Pals Transfer, Inc., 104 M.C.C. 396, 408, 2-1-68, Div. 3.

18.23 By Examiner

18. Decisions

18.2 Initial or Recommended

18.23 Thrun asks that Commission expunge from examiner's report certain statements assertedly reflecting upon this protestant and its counsel. Board does not possess authority to expunge statements of a hearing officer. It is observed that if this protestant had prepared its exhibits with same care as it has prepared its exceptions, hearing examiner would have had no occasion to make comments complained of. MC-119767, Sub 156, Beaver Transport Co., A Corp., Ext.-Duluth, 1-11-68, Rev. Bd. No. 2.

18.23 Fact that Commission stayed report of examiner and assumed primary responsibility for a determination herein relieves possibility of any error in hearing jurisdiction, particularly in absence of any allegations of prejudice or unfairness in conduct of hearing. Objections of protestants to examiner's jurisdiction to hear applications are rejected. MC-F-9015, AllAmerican Transport, Inc.-Control and Merger-Pals Transfer, Inc., 104 M.C.C. 396, 401, 2-1-68, Div. 3.

18.32 Form & Content

18.3 Exceptions

18.32 In exceptions Truck Transport states unequivocally that since conclusion of hearing Darling has abandoned its facilities at Monsanto (E. St. Louis) and no longer ships from that point. Truck Transport requests permission to file a verified statement in support of this fact, if necessary. In its reply Keightley makes no specific refutation of Truck Transport's statement, nor does it even mention allegation. Consequently, although closing of Darling's plant is technically not a matter of record, Board members are constrained to accept Truck Transport's unrebutted statement at face value. Testimony presented by Darling will not be considered further. MC-19945, Sub 18, Behnken Truck Service, Inc., Ext.-Bulk Commodities In Dump Vehicles, 1-18-68, Rev. Bd. No. 1.

18.32 Commission can take official notice of applications filed with and pending before Commission; however, advertisement referred to is inadmissible for it is an attempt to introduce evidence after record was closed. That part of motion to strike is granted and advertisement will be stricken. MC-87720, Sub 62, Bass Transp. Co., Inc., Ext.-Nine States, 1-29-68, Rev. Bd. No. 2.

18.32 Assailed material in exceptions of rail carriers is based upon inferences which such protestants have drawn from several specific parts of transcript relating to rate matters. Matter of rate levels is generally irrelevant in cases of this nature. However, though it be irrelevant this does not necessarily mean it has to be stricken from a pleading. In this instance, rates were mentioned on record, and rail protestants have chosen to frame an argument based thereon. In circumstances, there is no good reason for striking such argument from exceptions. Motion is overruled. MC-73688, Sub 16, Southern Trucking Corp., Ext.-Zinc, 2-15-68, Rev. Bd. No. 3. 18.33 Replies

18.33 Certain portions of Cole's reply set forth affirmatively matters more appropriately included in its exceptions and there are some evident inaccuracies. However, Commissioners shall give no consideration to such matters in determination of issues and, consequently, no useful purpose would be served by striking portions referred to in protestants' motions. Motions are therefore overruled. MC-3009, Sub 57, West Bros. Inc., Ext.Baton Rouge, La., 106 M.C.C. 792, 795, 2-19-68, Div. 1.

18.61

18.6 Relief From Decisions

Clerical or Inadvertent Mistakes

18.61 No mention is made of obligation of CDI and Shannon to make known to Commission any error or errors in operating rights issued to them of which they were aware. Compare 103 M.C.C. 307. MC-126814, Shannon Transport, Inc., Petition for Correction of Ctfe., 2-21-68, Rev. Bd. No. 3. 2. FRANCHISES

20.01

20. Generally 20.0 Jurisdiction

Rail & Express Carriers

20.01 Since WMATA has exclusive jurisdiction to plan, construct and operate rapid transit passenger service in Washington metropolitan area, nature and scope of its future operations, and its agreements relating thereto, are not subject to Commission review. F.D. 23492, Washington & Old Dominion R.-Abandonment of Entire Line in Va., I.C.C. ... 1-23-68, Comm.

20.02 Motor Carriers

20.02 Plainly, Commission's power to attach terms, conditions, and limitations to certificates conferred by Sec. 208 (a) is a broad one; standards are only that they must be reasonable, and that they must be either required by public convenience and necessity or necessary to implement any requirements established under Sec. 204(a)(1) and (6). 4 M.C.C. 582. They cannot, however, by implication nullify a specific separate provision of Act, 33 M.C.C. 471, nor encroach upon a carrier's right, specifically safeguarded by statute, to enlarge its equipment and facilities within scope of its authority. Ex Parte MC-68, Removal Of Truckload Lot Restrictions, 106 M.C.C. 455, 474, 475, 1-15-68, Comm.

20.04 Forwarders

20.04 There may be a requirement on part of a small percentage of applicant's customers that it handle their automobiles at shipside in a port area. Even if there is such a requirement, operations of this type are not within purview of Act as they apparently involve solely foreign commerce by ocean vessel with no movement within United States subject to Commission regulation. No. FF-316 Routed Thru-Pac, Inc., Frt. Forwarder App., 332 I.C.C. 352, 362, 2-9-68, Comm.

20.08 Restriction Upon Service

20.08 Request by Parkhill, Dunn, and Cox for deletion from their Willett certificates of standard "right-of-way" restriction denied. Term "right-of-way" is sufficiently broad to encompass "jobsites" and "appurtenant storage facilities." MC-704, Sub 24, Willett Ext.-Pipeline Machinery, 106 M.C.C. 354, 365, 1-9-68, Div. 1.

20.08 Only sound and feasible method of determining whether truckload lot restrictions involved herein are incompatible with public convenience and necessity is to consider all of them on a national scale.

Commission has often refused to impose restrictions that lack precision and consequently are difficult to enforce. 88 M.C.C. 57, 61. Similar courses have been followed where a restriction is administratively undesirable, 89 M.C.C. 389, 410, and where policing of a restriction would place an intolerable burden upon Commission, upon shippers and receivers of freight, and upon transportation industry as a whole. Ex Parte MC-68, Removal Of Truckload Lot Restrictions, 106 M.C.C. 455, 477, 484, 1-15-68, Comm.

20.08 Truckload lot restrictions violate basic tenets of common carriage. 95 M.C.C. 269, 275, findings modified, 98 M.C.C. 607.

Truckload lot restriction prohibits segments of motor carrier industry and shipping public from full utilization of present-day transportation methods; and present anomalous situation is repugnant to public interest and national transportation policy. Reasonableness of present proposal is thus firmly established.

Safety, efficiency, and economy in operations warrant a finding that public convenience and necessity require deletion of truckload lot restriction from existing certificates. Shippers generally require services of carriers able to satisfy their complete transportation needs, and removal of truckload restriction, which unduly precludes such services, will be in public interest. Compare 77 M.C.C. 359.

Even though these restrictions have been allowed in remote regulatory past, Commission may, and indeed must, reexamine them from time to time pursuant to powers conferred in Sec. 208(a), and judge them in light of contemporary circumstances. So considered, their removal is found to be required by public convenience and necessity. Ex Parte MC-68, Removal of Truckload Lot Restrictions, 106 M.C.C. 455, 484, 487, 490, 493, 1-15-68, Comm.

20.08 Limitation "except in bulk" was employed in description of authority in title proceeding by review board; however, because subject commodities (frozen prepared foods) are not shown to be such commodities as properly may be made subject to an "in bulk" restriction, that limitation will not be imposed herein. 83 M.C.C. 725 and 67 M.C.C. 343.

Only if some procedure for obtaining data relative to actual operations following issuance of certificate is established, can Commission be satisfied that its present policy against multiple-delivery type of service restrictions requires no change. Having considered various alternatives, including issuance of limited-term certificates, it is not unreasonable to require applicant who has been successful in obtaining authority on basis of its proposal of a shipper-tailored pickup and delivery service to report to Commission in an annual "Performance Report" its success in meeting shipper's requirements. To give applicant sufficient opportunity to establish and develop service contemplated, a reasonable reporting period would be 3 years. Each "Performance Report" should include sufficient and pertinent information concerning applicant's multiple delivery shipments and its actual performance under each certificate issued in these proceedings. MC123393, Sub 102, Bilyeu Refrigerated Transport Corp., Ext.-Mo. Origins, 106 M.C.C. 692, 695, 1-18-68, Ap. Div. 1.

20.08 Application granted subject to restriction against transportation of involved commodity in bulk imposed to protect interest of protestant. MC116077, Sub 215, Robertson Tank Lines, Inc., Ext.-Calif., 1-26-68, Rev. Bd. No. 4.

Sim

20.08 Proposed restriction "in bags and in bulk" is redundant. pler description, "dry fertilizer," will be used instead in findings. MC-128910, Sub 1, William K. Wood, Cont. Car. App., 2-5-68, Rev. Bd. No. 2.

20.08 Commission repeatedly has refused to impose burdensome restrictions upon common carrier grants of authority without adequate proof by protestants that they will be materially adversely affected in absence of such restrictions. 86 M.C.C. 796. There is no evidence here that protestants will be so affected unless restriction is imposed. A restriction against nonperishable commodities not requiring refrigeration, as suggested by certain protestants is administratively undesirable, and will not be imposed. MC113678, Sub 133, Curtis, Inc., Ext.-Food Products, 106 M.C.C. 698, 702, 2-8-68, Div. 1.

20.08 Opposition was withdrawn upon restrictive amendment of application against transportation of commodities in bulk. Inasmuch as commodities involved are not susceptible to transportation in bulk, however, and as sole contracting shipper has no need for such a service, protection of protestant's interest does not require imposition of requested restriction and it will accordingly be omitted from any grant of authority herein as unwarranted and administratively undesirable. MC-129253, Sub 1, P & H Trucking Co., Cont. Car. App., 2-15-68, Rev. Bd. No. 2.

20.08 A restriction against transportation of commodities in bulk would deprive shippers of a needed service and unnecessarily segment grant of authority to applicant. Therefore, restriction will not be imposed. MC113678, Sub 278, Curtis, Inc., Ext.-Greeley, Colo., 2-16-68, Rev. Bd. No. 1.

20.08 Inasmuch as proposed restriction against transportation of "commodities injurious or contaminating to other lading" is little used at present because carriers are permitted, by appropriate tariff provisions, to refuse to handle such offensive or contaminating commodities, such restriction will not be imposed on grant of authority. 95 M.C.C. 696, 698. MC-127898, Sub 1, Direct Air Frt. Corp., Com. Car. App., 106 M.C.C. 785, 791, 2-23-68, Div. 1.

20.08 Term "not in bulk" will not be included as a restriction in grant of authority herein because it is redundant and serves no useful purpose when commodity to be transported is required to be packaged. 106 M.C.C. 1, 37. MC-87379, Sub 11, C. H. Hooker Trucking Co., Ext.-Ohio, 2-28-68, Rev. Bd. No. 1.

20.08 Restriction employed in application stating: "With no authorization to transfer property from one vehicle to another," is difficult of enforcement and administratively undesirable, and will not be imposed in grant of authority in this report. MC-129262, Ayers & Maddux, Inc., Com. Car. App., 2-29-68, Rev. Bd. No. 3.

20.09 Restriction Upon Equipment

20.09 Negative restriction sought by applicants, "other than those in bulk, in tank vehicles," is administratively undesirable, and will be modified to extent set forth in findings. MC-21170, Sub 125, Bos Lines, Inc., Ext.— La Porte, Ind., 106 M.C.C. 581, 585, 1-12-68, Div. 1.

20.09 Negative restriction sought by applicants, "except liquids in bulk, in tank vehicles," is administratively undesirable. 106 M.C.C. 1. MC-113678, Sub 133, Curtis, Inc., Ext.-Food Products, 106 M.C.C. 698, 703, 2-8-68, Div. 1.

20.09 Because evidence indicates that motor vehicles utilized should be of covered hopper or pneumatic types, proposed equipment limitation changed to "in tank or hopper-type vehicles." MC-107403, Sub 729, Matlack, Inc., Ext.-Dry Silica Gel Catalyst, 2-19-68, Rev. Bd. No. 1.

20.09 While flatbed equipment is most desirable in transportation of considered traffic, it does not appear essential particularly in moving traffic in less than truckloads. It is not in public interest that carriers should be prevented from performing a complete transportation service with optimum efficiency by restrictions designed primarily to protect a carrier which has not fulfilled shippers' complete transportation needs. Restricting applicant's service to flatbed equipment is not in public interest and will not be accepted. Compare 106 M.C.C. 1, 44 and 45. MC-107295, Sub 101, Pre-Fab Transit Co., Ext.-Houston, Texas, 2-26-68, Rev. Bd. No. 4.

20.09 Application seeks authority to transport candy and confectionery "requiring refrigerated service.' Such limitations are ambiguous and difficult to apply, and they are generally rephrased so as to limit service to movements "in vehicles equipped with mechanical refrigeration." MC129171, Arthur Shelley, Com. Car. App., 2-29-68, Rev. Bd. No. 1.

20.09 Since application as amended would limit proposed service to transportation in tank vehicles, no useful purpose would be served in restricting grant of authority against transportation in dump vehicles. MC. 115331, Sub 204, Truck Transport, Inc., Ext.-Meredosia, Ill., 3-8-68, Rev. Bd. No. 1.

20.1 When Interstate Franchise Required

20.10 Generally

20.10 Considered transportation consists of a through movement of truckload shipments by motor vehicle from points in California to a point in Mexico. By definition contained in Sec. 203(a) (11) (A) of Act, this is obviously an operation in foreign commerce and requires authority to conduct it to be obtained from Commission. MC-99745, Sub 3, Imperial Truck Lines, Inc., Com. Car. App., 106 M.C.C. 741, 749, 2-2-68, Div. 1.

20.12 Exempt Operations

20.12 Authority for transportation of empty containers in manner proposed is not required. 82 M.C.C. 677. However, authority will be included for transportation of advertising material when shipped with malt beverages. MC-125023, Sub 9, Bast and Carter, Ext.-Malt Beverages from Newark, 106 M.C.C. 340, 343, 1-10-68, Ap. Div. 1.

20.12 Shipments which have been rejected by consignee because of damage in transit, or for any other reason, may be transported back to their respective origins by carrier having them in its possession without necessity of having specific operating authority. On other hand, shipments which have been accepted by a consignee and which such consignee later desires