contemplated by the agency's statute.' This court finds American Airlines' rationale to be indistinguishable from and applicable to the instant case.
In this case plaintiffs have not even attempted to show how an adjudicatory hearing would have better protected their alleged rights. Rather, it appears clear that here, as in American Airlines, supra at 629-31, the agency was concerned with policy rule making rather than focusing on evidentiary facts relating to a particular party. Here, as in American Airlines, the proposed rule was applicable to an entire class of certificate holders. Plaintiffs have argued that since some irregular-route motor carriers may continue to tack under the new rule and others may not depending on the degree of circuity, that the rule does not apply to an entire class and that adjudicatory safeguards should have been applied. However, the Supreme Court recently in United States v. Florida East Coast Railway, 410 U.S. 224, 245-46, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973), dealt with the question of when an order or rule has general applicability.
Here, the incentive payments proposed by the Commission in its tentative order, and later adopted in its final order, were applicable across the board to all of the common carriers by railroad subject to the Interstate Commerce Act. No effort was made to single out any particular railroad for special consideration based on its own peculiar circumstances. Indeed, one of the objections of appellee Florida East Coast was that it and other terminating carriers should have been treated differently from the generality of the railroads. But the fact that the order may in its effects have been thought more disadvantageous by some railroads than by others does not change its generalized nature.
Similarly, in the instant case certain irregular-route motor carriers feel more disadvantaged by the rule than others but that does not change the fact that the gateway elimination rule applies equally to all carriers. As stated in American Airlines, supra at 631, 'each carrier is protected by the fact that it cannot be disadvantaged except as the Board takes action against an entire class.'
In the instant case it is indeed true that carriers, as a result of the ICC rule, will now be forced to stop tacking unless special permission is obtained. However, this is not such a circumstance as would distinguish American Airlines. The American Airlines court, in explaining the rationale enunciated by the Supreme Court in United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S. Ct. 763, 100 L. Ed. 1081 (1956), stated
The Storer doctrine . . . rests on a fundamental awareness that rule making is a vital part of the administrative process, particularly adapted to and needful for sound evolution of policy in guiding the future development of industries subject to intensive administrative regulation in the public interest, and that such rule making is not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making. 359 F.2d at 629.
The court finds that elimination of gateways by rule making was an appropriate exercise of the ICC's rule making authority and the decision appealed from will be affirmed.