# Petition — RYDER/PIE NATION NATIONWIDE, INC. v. UNITED STATES (Nos. 83-1030, 83-943, 83-1119) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0982%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text i{LED 83710380 DEC 22 1983 ALEXANDER L. STEVAG, CLERK 0. IN THE Supreme Court of the United States OCTOBER TERM, 1983 RYDER TRUCK LINES, INC., Petitione”’, Vv. UNITED STATES OF AMERICA and INTERSTATE COMMERCE COMMISSION, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT JOHN C. BRADLEY Suite 1801 1600 Wilson Boulevard Arlington, VA 22209 (708) 522-0900 Counsel for Petitioner RyYDER/PIE NATIONWIDE, INC. (formerly Ryder Truck Lines, Inc.) Of Counsel: RICE, CARPENTER AND CARRAWAY 1600 Wilson Boulevard Arlington, VA 22209 DATED: December 22, 1983 WILson - Eves Printing Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED The Motor Carrier Act provides definitional distinc- tions between (a) regulated motor carriers which per- form transportation for compensation, and (b) unregu- lated shippers which, as private carriers, haul their own property. When a shipper leases both of the instrumen- talities of transportation—vehicle and driver—from a single source, an issue periodically has arisen as to whether the resulting transportation is for-hire carriage by the lessor or private carriage by the lessee. Reversing more than 40 years of consistent interpreta- tion by both it and Federal Courts, including this Court, the Interstate Commerce Commission [ICC] issued what it labeled a “policy” statement radically changing the test or formula to be applied in resolving such issues. The Eleventh Circuit Court of Appeals affirmed. With this background, the following questions are presented: (1) Did the Eleventh Circuit err in finding that the ICC had the power to reject the test for distin- guishing between private and for-hire carriage announced by this Court in Drum?* (2) Whether the National Transportation Policy [NTP] [49 U.S.C. §10101(a) and (b)] consti- tutes a mandate to the ICC to improve the eco- nomic and competitive position of unregulated SS ee eee ers (3) Are the new definitional distinctions by the ICC and affirmed by the Eleventh Circuit de . structive of and in conflict with the statutory scheme enacted by Congress? * United States v. Drum, 368 U.S. 870 (1962). (i) + 4 fe _—_.) =e ii THE PARTIES The parties to the proceeding before the Eleventh Cir- cuit are listed blow. Petitioners and intervenors supporting petitioners were as follows: American Movers Conference American Trucking Associations, Inc. Bowman Transportation, Inc. Charter Express, Inc. Common Carrier Conference—Irregular Route (now “Interstate Carriers Conference”’ ) Frank Bros. Trucking Co. Hedrick Associates, Inc. Import Dealers Service Corporation International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America J. H. Rose Truck Line, Inc. National Association of Regulatory Utility Commis- sioners National Automobile Transporters Association National Tank Truck Carriers, Inc. North Alabama Transportation, Inc. Osborne Truck Line, Inc. Port Norris Express Co., Inc. Regular Common Carrier Conference, Inc. Ryder Truck Lines, Inc. [Ryder] (renamed Ryder/PIE Nationwide, Inc.) Senn Trucking Company Southern Intermodal! Logistics, Inc. Specialized Carriers and Rigging Association Steel Carriers’ Tariff Association, Inc Respondents and intervenors supporting respondents were as follows: United States of America Interstate Commerce Commissior National-American Wholesale Grocers’ Association National Industrial Traffic League (now “National Industrial Transportation League” ) Private Carrier Conference, Inc. Private Truck Council of America Ryder is a wholly-owned subsidiary of IU Interna- tional Corporation [IU]. Through IU, Ryder is affiliated with the numerous companies listed in Appendix G. Peti- tioner has no knowledge concerning corporate affiliations of the other parties. TABLE@F CONTENTS SPT TED eeticerecctdcntninqnenneciincmnsesnnonion TABLE OF AUTHORITIES ... OPINIONS BELOW STATEMENT OF THE CASE .W0...........-.-c-cscseeeeeeeees REASONS FOR GRANTING WRIT OF IEE Siethiciscsmnedsneictgmimbtinence canines A. Historical Background 2.2.2.2 .ceoceeceeeneneeee Nature Of The Problem The Church Decision The Oklahoma Furniture Decision This Court’s Decision In Drum B. Rejection Of This Court’s Test In Drum _..... The ICC’s New Formula _..... Muddling Of The Elements Resulting Conflict With Drum C. Erroneous Application Of NTP To Unregulated Entities Reliance On The NTP .. (v) vi TABLE OF CONTENTS—Continued NTP Confined To Regulated Entities _............. Erroneous Concept Of Competition : D. New Formula Destructive Of Statutory Scheme.. Amendments In 1980 Retention Of Statutory Definitions Appendix A—U.S. Court of Appeals Opinion, 716 F.2d 1869 (1983) Appendix B—Interstate Commerce Commission Opin- ion, 182 M.C.C. 756 (1982) Appendix C—U.S. Court of Appeals Stay Order * Appendix D—U.S. Court of Appeals Stay Order Appendix E—Statutes Involved In Proceeding Appendix F—Wall Street Journal Article Concerning Leaseway Appendix G—Corperations Under Commen Control With Ryder Appendix H—Citations To Terminology Used By ICC And The Eleventh Circuit vii TABLE OF AUTHORITIES CASES: . Page All Points, Inc.—Investigation of Operations, 128 I A nsitanshenninoenetalitliey 5 Allen—Investigation of Operations and Practices, eS 8 Sencar cre ee 5 Bridge Auto Renting Corporation v. Pedrick, 174 F.2d 788 (2nd Cir. 1949) 5 Central Forwarding, Inc. v. 1.C.C., 698 F.2d 1266 a aa a A 15 H. B. Church Truck Service Co., Com. Car. Appli- cation, 27 M.C.C. 191 (1940) ................................ 6, 7, 16 NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974).. 16 1.C.C. v. Moore, 236 F.Supp 168 (MD FL-1964)...... 5 Lease Of Equipment And Drivers To Private Car- riers, 182 M.C.C. 351 (1980) ................................ 2 Oklahoma Furniture Mfg. Co.—Investigation, Op- erations, 79 M.C.C. 408 (1959) 0... 7, 8, 16,18 Pacific Diesel Rental Co.—Investigation of Opera- tions, 78 M.C:C. 161 (1968) ...............2....00...... 5 United States v. Dakota-Montana Oil Co., 288 U.S. ERE ARE AE 16 United States v. Drum, 368 U.S. 370 (1962) ........ i, passim United States v. LaTuff Transfer Service, 95 F.Supp. 875 (D MN-1950) 0. 5 Zemel v. Rusk, 381 U.S. 1 (1965) 16 STATUTES: 28 I premEses Te 1 I so ahioe ichnshicitinlitanen-tdtiidinkataans neti 4 § 23844 = 4 ee i, passim REIS a a 2,14 EA SSR Ee 2, 16 a ae a 2,16 $ 10921 .. 2,15 § 10922... 2, 15 § 109238 15 49 C.F.R. § 1057 17 viii TABLE OF AUTHORITIES—Continued Page Motor Carrier Act of 1935 5, 15 Motor Carrier Act of 1980 5, 7, 15, 16, 18 House Report No. 96-1069, 96th Cong., 2nd Sess... 17 Pub. Law 96-296, 96th Cong., 94 Stat. 793... 17 IN THE Supreme Court of the United States OCTOBER TERM, 1983 No. — RYDER TRUCK LINES, INC., 7 Petitioner, UNITED STATES OF AMERICA and INTERSTATE COMMERCE COMMISSION, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Ryder/PIE Nationwide, Inc. [Ryder], formerly Ryder Truck Lines, Inc., petitions for a writ of certiorari to review the judgment of the United States Court of Ap- peals for the Eleventh Circuit entered on October 11, 1983. OPINIONS BELOW The opinion of the United States Court of Appeals for the Eleventh Circuit as reported at 716 F.2d 1369 (1983), is attached as Appendix A. The opinion of the Interstate Commerce Commission as reported at 1382 M.C.C. 756 (1982), is attached as Appendix B. JURISDICTION The decision of the Eleventh Circuit was entered on October 11, 1983. This Petition was filed within 90 days of that date. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTES INVOLVED Involved in this proceeding, and reproduced in whole or in part in Appendix E hereto, are 49 U.S.C. § 10101 {the National Transportation Policy], § 10102(12), (13), and (14) [Definitions], § 10524 [Transportation further- ing a primary business ], § 10526 [Miscellaneous exemp- tions], § 10921 [Requirement of operating authority], and § 10922 [Licensing and related matters]. STATEMENT OF THE CASE The Mctor Carrier Act, 49 U.S.C. § 10101, et seq., defines motor common carriers and motor contract car- riers as those which haul the property of others for com- pensation, 49 U.S.C. §10102(12) and (18). Conse quently, they are frequently referred to as “for-hire” carriers. On the other hand, a motor private carrier is one which, essentially, hauls its own property, 49 U.S.C. § 10102(14). A for-hire carrier must obtain operating authority from the Interstate Commerce Commission [ICC] and subject itself to ICC regulation. The ICC has no jurisdiction over a private carrier. It has often been necessary for the ICC or a Federal Court to determine, in a given fact situation, which type of carriage was On December 24, 1980, the Interstate Commerce Com- mission [ICC] made public a “proposed policy statement” [PPS] in Ex Parte No. MC-122 Sub No. 2, Lease Of Equipment And Drivers To Private Carriers, 182 M.C.C. transporting would be diverted to unregulated transpor- tation entities. On February 17, 1982, in the same proceeding, the ICC made public a “policy” statement, 132 M.C.C. 756, pur- porting to modify and make final the PPS referred to above, effective March 25, 1982. The ICC’s “policy” statement—for the expressed pur- pose of promoting efficiency and economy among shippers not subject to ICC jurisdiction and proclaiming a broad area of administrative discretion to re-define the distinc- tions between for-hire and private carriage—purported to establish a six point test which, if satisfied, would create a presumption that one leasing a vehicle with driver to a shipper for transportation of the shipper’s goods in interstate commerce is engaged in private car- riage. As demonstrated infra, pages 10-12, the so-called test is so fluid that in real world terms it is no test at all. Substantial reliance was placed upon the National Trans- portation Policy [NTP], 49 U.S.C. § 10101, in justifying the ICC’s redrawing of boundary lines between for-hire and private carriage, and in proclaiming its power to do so. The ICC has attempted to accomplish what it has referred to as “redefinition of the distinction” (1382 M.C.C. at 772; App. B, p. 26b) between for-hire and private carriage. For decades the agency and the Courts, including this Court in Drum, in making the definitional distinctions, held that a single-source lessor was engaged in for-hire carriage unless the shipper (a) ,exercised a degree of dominion and control over the driver which could be achieved by making him its employee, or (b) as- sumed “* * * in significant measure the characteristic burdens of the transportation business,” * i.e., the shipper shouldered significant financial burdens and risks. 1 Drum, 868 US. at 875, 4 In contradiction to every known precedent, administra- tive or judicial, the ICC has sought to make drastic revisions in the “boundary line,”* so drastic that a single-source lessor who has merely executed an ICC- prescribed lease form is presumed to be participating with the shipper in private carriage. Indeed, they may even enter into oral leases, and because the arrangement on its face would be beyond the ICC’s jurisdiction, both the agency and State enforcement officials are, as a practical matter, powerless to police it. Under what the Eleventh Circuit referred to as the ICC’s “new formula” (716 F.2d at 1871; App. A, p. 2a), (a) owner/operators, estimated to exceed 125,000 in number, (b) fleet operators whose numbers are unknown, and (c) commercial lessors, such as Hertz,, Avis, Ryder Truck Rental, Leaseway Transportation, Inc., and scores of others, would be able, without submitting to ICC regu- lation, to engage in what heretofore has been defined as regulated for-hire carriage. Thus, the ICC’s new “policy” would have the effect of exempting from regulation tens of thousands of persons providing both vehicle and driver to haul a shipper’s goods. Under date of February 26, 1982, Petitioner Ryder, Case No. 82-5247, forwarded to the U.S. Circuit Court of Appeals for the Eleventh Circuit a petition for review of the ICC’s decision, pursuant to 28 U.S.C. §§ 2842(5) and 2344. Subsequently, Bowman Transportation, Inc. [Bow- man], joined by The American Trucking Associations, Inc. [ATA], and a number of other parties, Case No. 82- 8133, also sought judicial review. Still other parties in- tervened either in support of or in opposition to the ICC. The Court consolidated the two cases. Under date of March 16, 1982, Petitioner Ryder for- warded to the Eleventh Circuit a motion for stay of the ICC’s decision. The motion was granted. * For examples of use of the term, see 182 M.C.C. at 770, 771; App. B, pp. 22b, 24b; 716 F.2d at 1888; App. A, p. 27a. 5 On October 11, 1983, the Eleventh Circuit issued its decision affirming the ICC. Subsequently, it stayed its mandate pending disposition of proceedings before this Court, see Appendices C and D. On December 7, 1983, the American Trucking Associations, Inc., and various other parties filed a petition for writ of certiorari, Case No. 83-943. REASONS FOR GRANTING WRIT OF CERTIORARI A. Historical Background Nature Of The Problem Since the original Motor Carrier Act* was passed in 1935, the ICC* and the Courts*® have often faced the responsibility of determining whether the owner of a vehicle leasing it to a shipper for transportation of the shipper’s goods was engaged in unregulated private* or regulated for-hire carriage. Stated somewhat differently, it has been necessary to determine whether the lessor was engaging in for-hire transportation subject to regulation or the lessee in unregulated private carriage. Most often these cases have involved an owner wao, in addition to * Formerly 49 U.S.C. §§ 801, et seq. (now 49 U.S.C. §§ 10101, et seq.). The Motor Carrier Act of 1980 [MCA-1980] made substan- tial changes in the law, but did not touch the statutory distinctions between for-hire carriers and shippers hauling their own goods. * Among many, three representative examples are Pacific Diesel Rental Co.—Investigation of Operations, 78 M.C.C. 161 (1958); Allen—investigation of Operations and Practices, 79 M.C.C. 727 (1959); and All Points, Inc.—investigation of Operations, 123 M.C.C. 242 (1975). 5 Among many, three representative examples are United States v. LaTuff Transfer Service, 95 F Supp. 375 (D MN-1960), a criminal proceeding; Bridge Auto Renting Corporation v. Pedrick, 174 F.2d 778 (2nd Cir. 1949), a tax proceeding; and /.C.C. v. Moore, 236 F.Supp. 168 (MD FL-1964), an injunction proceeding. * The ICC has no jurisdiction over private carriers, i.e., persons transporting their own property. providing the vehicle, has also functioned as the vehicle’s driver, i.e., single-source leasing of the two instrumentali- ties of transportation—vehicle and driver. Thus, an owner/operator is “an individual who owns a single vehicle which he also drives * * *.” [182 M.C.C. at 774; App. B, p. 29b]. It has been estimated that there are more than 125,000 owner/operators in the United States today. However, there are two other classes of entities which may engage in single-source leasing. One is a so-called “fleet owner” who owns more than one vehicle and may hire others to drive. The other is the commercial] lessor" who may own: many thousands of vehicles. Included among them are such entities as Leaseway Transporta- tion,* Ryder Truck Rental,® Jartrans, Hertz, Avis, and many others. The Church Decision In a landmark case, H. B. Church Truck Service Co., Com. Car. Application, 27 M.C.C. 191 (1940), the ICC found that where transportation of a shipper’s goods was performed by means of single-source leasing, there was a rebuttable presumption that the lessor was engaged in regulated for-hire carriage. More specifically, where Church * leased vehicles with drivers to a shipper by the week, it was concluded that Church was engaged in con- tract carriage subject to ICC regulation. It was noted that the presumption would yield if, for example, “the T See 182 M.C.C. at 785-786; App. B, pg. 46b. ®See text of an advertisement appearing in the Wall Street Journal, November 30, 1988, proclaiming the availability of 8,000 drivers and 78,000 vehicles, Appendiz G. See also “Riding in the Fast Lane,” OF: See aka: Panty Mishen, Deaber: We, 1983, p. 54. * No connection with Petitioner Ryder. ’ * Under the ICC’s new formula, Church today probably would be considered a fleet owner. 7 equipment were operated by the shipper’s employee,” ™ i.e., the owner/operator was an employee subject to con- trol by the shipper in the status of an employer. The Church decision adopted what has been called a “control test.” In order that the means by which a ship- per’s goods were transported could qualify as bona fide private carriage, it was necessary to demonstrate that the shipper had exclusive control over the transportation being accomplished. Thus, where the driver actually be- came the shipper’s employee, the issue of control would be resolved in the shipper’s favor. The Oklahoma Furniture Decision There have been dozens, if not scores, of ICC and court decisions which have followed the Church control test. At this juncture one warrants specific recognition because it culminated in a decision by the U.S. Supreme Court. In Oklahoma Furniture Mfg. Co. —Investigation, Operations, 79 M.C.C, 403, 410-411 (1959), in a proceeding involv- ing use of owner/operators by a shipper, the ICC em- phasized that the Church case presumption could be re- butted only if the shipper was shown to have the ezclu- sive right and privilege of controlling the transportation service. It then found that the provision by the owner/ operator of both of the significant instrumentalities of transportation (vehicle and driver) and the assumption of the costs of operation gave the owner/operator the “right and power * * * to defeat any supposed right to contro] that the shipper-lessee may believe exists.” (79 M.C.C. at 411). It concluded, therefore, that the owner/ operators were “in substance” (79 M.C.C. at 412) en- gaged in for-hire carriage subject to regulation under the Motor Carrier Act, even though the shipper “relieved them of certain of the burdens of their for-hire trans- portation” service (79 M.C.C. at 415). 27 M.C.C. at 196. 8 This Court’s Decision In Drum The U.S. Supreme Court affirmed Oklahoma Furniture in United States v. Drum, supra, stating that: “* * * the Commission’s resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far de- veloped in this area, * * *.” (368 U.S. at 376. The Court further found that the ICC’s decision: “* * * betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of admin- istrative discretion.” (368 U.S. at 384) Thus, this Court upheld the ICC, at least in part be- cause the ICC’s Oklahoma Furniture decision was con- sistent with administrative and judicial precedents. Fur- ther, the Court put its imprimatur on the ICC’s defini- tional decision with the statement that: “* * * From the outset the Commission has correctly interpreted them as importing that a purported pri- vate carrier who hires the instrumentalities of trans- portation from another must—if he is not to utilize a licensed carrier—assume in significant measure the characteristic burdens of the transportation busi- ness.” (368 U.S. at 375) It is clear from the text of the Drum decision that “characteristic burdens” this Court had in mind were principally of a financial nature, including capital invest- ment, risk of premature depreciation or catastrophic loss, risk of rise in variable costs of fuel, repairs and main- tenance, risk of non-utilization, and the risk of non- productive backhaul (368 U.S. at 379, 380). Under the circumstances, this Court found that the shipper had, “* * * so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner/ operators would be inconsistent with the statutory scheme” (368 U.S. at 380). The statutory terminology 9 distinguishing private and for-hire carriers is the same now as it was then. B. Rejection Of This Court’s Test In Drum The ICC’s New Formula ICC and court decisions since Drum have uniformly held that single-source leasing by a shipper involved the lessor in for-hire carriage, unless it could be found (a) that the driver had become an employee of the shipper, subject to dominion and contro] as such, or (b) the shipper had as- sumed in significant measure the “characteristic burdens” of the transportation business. Petitioner believes the two standards to be compatible one with the other. The iCC’s “policy” statement of February 9, 1982, if allowed to become effective, would constitute an abrupt reversal of the definitional distinctions between for-hire and private carriage developed by the ICC and the Courts. And while both the agency and the Eleventh Cir- cuit purported to view the ICC statement as merely an expression of non-binding “policy,” terminology utilized by both reveals beyond a doubt an awareness that the real world effect was an actual redefinition of statutory distinctions, as may be seen from Appendix H hereto. Stating that other features might be considered (132 M.C.C. at 780; App. B, p. 37b), the ICC adopted a vague six-part test which, if nominally satisfied, would establish a presumption of private carriage (132 M.C.C. at 778; App. B, p. 34b). It further provided that if a written form lease was entered into on a form it pre- scribed merely reciting the six elements, a presumption of private carriage would arise (132 M.C.C. at 778, 793; App. B, pp. 34b, 57b), apparently without any require- ment of faithful adherence to these lease terms.” The 12 Because the ICC has no jurisdiction over shippers it has no power to “prescribe” a form of Jease or to impose requirements of any kind upon transactions between shippers and unregulated entities such as owner/operators or leasing.compa.nies. 10 r six elements may be summarized as follows (132 M.C.C. at 793; App. B, p. 57b) (emphasis added) : 1. The period for which the lease applies shall be for 30 days or more. 2. The equipment subject to the lease shall be exclusively committed to the lessee’s use for the term of the lease. 3. During the term of the lease, the lessee shall exercise exclusive dominion and control over the leased equipment, and assume complete responsibility for the operation of the equipment. 4. The lessee shall accept responsibility to the public for any injury to persons or damage to prop- erty, and agree to display appropriate identification on all equipment leased by it. 5. During performance by it of transportation, the lessee shall accept responsibility for, and bear the cost of, compliance with governmental safety and other requirements. 6. The lessee agrees to remain liable for cargo damage and/or loss. Muddling Of The Elements It then proceeded to gut these elements by stating that the 30-day exclusivity provisions “does not preclude lessor’s own use” of the vehicle when the lessee was not utilizing it, nor would it prevent interim sublease to a third party (132 M.C.C. at 778; App. B, p. 35b). Fur- ther, the ICC stated that the concept of exclusive commit- ment is not compromised when, “the lessor executes a concurrent and more or less complementary lease for backhaul purposes and repositioning of equipment.” (182 M.C.C. at 780; App. B, p. 38b). Moreover, an oral lease would be permissible (132 M.C.C. at 780; App. B, pp. 37b-38b). 11 Thus, if the single-source lessor carries an ICC-devised written lease form in his cab, he is preswmed to be en- gaged in private carriage. The lease form will bestow upon the lessor the same aura of authenticity that an I©C-issued operating license would. Moreover, the lessor can enter into any number of “concurrent” leases with other parties. In real world terms, an owner/operator may rove the country picking up loads wherever he finds them, subject only to the requirement that an ICC-devised lease form be executed when each load is picked up. In this way no shipper bears the risk of idle equipment or lack of backhaul freight, and one of the hallmark burdens of for-hire carriage is borne by the owner/ operator or leasing company. The lessee need only accept nominal responsibility for public liability and property damage, execute the lease form, assume the risk in the first instance that its property may be subject to dam- age, and instruct the lessor where to take the load.” Or the parties can enter into an oral lease, the provisions of which would be virtually impossible to prove. It is obvi- ous that, having announced its six-part “test,” the ICC then systematically reduced its prescriptions to what can aptly be called a confused mess. Resulting Conflict With Drum It is clear that the ICC’s new definitional distinctions cannot be squared with this Court’s decision in Drum. It is also clear that the Eleventh Circuit viewed the ICC’s decision as having rejected Drum (716 F.2d at 1375, 13 The shipper’s acceptance of responsibility to the public does not nega right of action it may have against the owner/operator or ng company for injury caused by the latter’s negligence (182 M.C.C. at 778, fn. 86; App. B, p. 36b). Similarly, the shipper may recover from the lessor for cargo loss or damage resulting from the lessor’s negligence (132 M.C.C. at 779; App. B, p. 36b). In short, the shipper as a practical matter may shift these burdens to its lessors just as it does when it purchases for-hire transpor- tation. 12 1379; App. A, pp. 9a, 18a), as we believe it did. We further believe that the ICC was bound by Drum, absent a pertinent statutory amendment by Congress, or a modi- fying decision by this Court. Again, in real world terms, the ICC has sought to create a vast area of exemption from regulation open to owner/operators, fleet owners, and commercial lessors alike. In a decision which does not disguise the Court’s doubts and reservations (716 F.2d at 1376 fn. 10, 1384; App. A, pp. lla, 28a), the Eleventh Circuit sustained the ICC. C. Erroneous Application Of NTP To Unregulated Entities Reliance On The NTP The avowed purpose of the ICC’s shift away from the Drum requirements is to improve the competitive posture and economic position of unregulated private carriage and owner/operators and leasing companies (132 M.C.C. at 769; App. B, pp. 21b-22b). It finds authority for this shift in the NTP, 49 U.S.C. § 10101—-stating that, “* * * the new national transportation policy (NTP) * * * calls for reappraisal of our former policy.” (132 M.C.C. at 771; App. B, p. 25b). It further found specifically that the NTP is applicable to unregulated entities—private carriers and owner/operators (132 M.C.C. at 771-772; App. B, p. 25b). The Eleventh Circuit agreed, also placing strong em- phasis upon the NTP. Referring to the justification ad- vanced by the ICC for its action, the Court stated: (716 F.2d at 1382; App. A, p. 24a) “* * * In particular, the Commission points to the amendments in the National Transportation Policy, which stress the promotion of ‘competitive and effi- cient transportation services,’ and contends that these amendments demonstrate congressional aware- ness of basic changes in the motor carrier industry.” 13 The Court further stated: (716 F.2d at 13885; App. A, pp. 3la-32a) “* * * Even if the amendments to the National Transportation Policy were concerned only with the regulated sector, it would be rational to assume that providing owner/operators alternatives to employ- ment solely with common and contract carriers would lead to greater competition for their services within that sector. Such competition would in turn foster a healthier transportation industry in both the regu- lated and unregulated sectors.” If we correctly translate the Court’s remarkably am- biguous statement, it seems to have said that, even if the NTP is not applicable to unregulated entities, its pro- visions justify promoting a healthier unregulated sector through more competition. With all due respect to the Eleventh Circuit, its conclusion is in direct conflict with the premise it initially postulated. NTP Confined To Regulated Entities The ICC believed that the NTP is applicable to unregu- lated entities and the Eleventh Circuit concluded that it empowered the ICC to act as it did. However, § 10101 (a) directs the ICC to (emphasis added) “* * * provide for impartial regulation of the modes of transportation sub- ject to this subtitle, and in regulating those modes * * *” to accomplish certain enumerated things. A shipper which transports its own goods is not subject to the subtitle nor to ICC regulation. Neither is an owner/operator partic- ipating in bona fide private carriage. The ICC has no power over the shipper, and Congress has not given the ICC responsibility for the welfare of private carrier in- terests. Yet, the ICC took it upon itself to assume both the power and the responsibility. Subsection (7) thereof specifically relates (emphasis added), “ * * * to transportation of property by motor 14 carrier * * *.” By statutory definition a “motor private carrier” is a person “other than a motor carrier * * *,” 49 U.S.C. § 10102(14). Unlicensed lessors, if engaged in bona fide private carriage, are effectively omitted from the reach of the NTP, as are their unregulated lessees. Yet, the ICC stated that “to improve their overall effi- ciency by augmenting their fleets with equipment and drivers leased from owner-operators * * * * we will open up this additional source of fleet augmentation to private carriers * * *.” (182 M.C.C. at 769; App. B, p. 21b)* Erroneous Concept Of Competition The Eleventh Circuit agreed, referring to increased competition in the private sector (716 F.2d at 1382; App. A, p. 24a), fostering the competition desired by Congress (716 F.2d at 1382; App. A, p. 25a), heightened competi- tion (716 F.2d at 1383; App. A, p. 27a), and greater competition for the services of owner/operators (716 i°.2d at 1385; App. A, p. 32a). Both the agency and the Court ignored the obvious, namely, that the NTP seeks to pro- mote competition among regulated carriers for the busi- ness of shippers, an important objective being to assure low prices. The ICC and the Eleventh Circuit would pro- mote more competition for driver services and equipment, thus assuring higher costs to the carrier and higher prices to the consumer. Both the ICC and the Eleventh Circuit found in the NTP the power to change and the justification for changing statutory definitions. The real effect is that of a statu- tory amendment, or, at the very least, a new regulation, as the ICC must have recognized when it touched the necessary Administrative Procedure Act bases. The de- cisions of both the agency and the Court are inconsistent 14 As well as from fleet owners and commercial lessors (182 M.C.C. at 786; App. B, pp. 46b-47b). 18 See also, 182 M.C.C. at 775, 788; App. B, pp. 30b, 50b. 15 and in conflict with that of the Fifth Circuit in Central Forwarding, Inc. v. 1.C.C., 698 F.2d 1266 (5th Cir. 1983), wherein the Court stated: (at p. 1283) “We cannot agree with the Government’s conten- tion that section 10101 is a source of ICC rulemak- ing authority. Based on the wording of the statute, its legislative history, and prior judicial construc- tions, we conclude that the National Transportation Policy operates to constrain rather than grant rule- making authority.” D. New Formula Destructive Of Statutory Scheme Amendments In 1980 The Motor Carrier Act, since its inception in 1935, and after a number of interim amendments, has continued to make it unlawful to engage in for-hire carriage without first obtaining the appropriate common carrier certifi- cate or contract carrier permit. The Motor Carrier Act of 1980 [MCA-1980] made certain changes in the statu- tory scheme, among them easier access to motor carrier operating authority. But Congress retained the require ment of operating authority, 49 U.S.C. § 10921. As pertinent her& the MCA-1980 made several other statutory changes. Among other things: (1) (2) It took away from the ICC whatever power it had to indulge in “master licensing”—the granting of motor carrier operating rights to a specified group based upon general findings developed in rule- making proceedings [see §§ 10922(b)(3) and 10923 (b) (6) ]; It made available to owner/operators the right to obtain operating authority to transport food and other edible products, et al., upon a showing of fitness only [§ 10922(b) (4) (E)], thus making it easy for them to cross over into the regulated sec- tor; 16 (3) It also expanded the scope of exempt commodities that owner/operators may transport [§ 10526 (a) (11), (12) and (18)]; (4) Reversing rulings by the ICC, under the heading “private carriage,” §9 of the Act exempted from the ICC’s jurisdiction transportation performed by one member of a corporate family for an- other,”* proyided the participants are 100% under common control [§ 10524(b)]; and (5) It added subsection (7) to the NTP [§ 10101]. Retention Of Statutory Definitions However, the longstanding and well recognized distinc- tions between regulated for-hire carriage and unregu- lated private carriage by a shipper were not touched. The MCA-1980 is the latest of a number of legislative re-enactments since the definitional distinctions between for-hire and private carriage emerged in a long line of administrative and judicial decisions dealing with the issue. That Congress has amended the Act on a number of occasions without altering the statutory definitions is strong proof that it agrees*’ with the prior interpreta- tions of the ICC and the Courts.** In short, Congress has modified certain aspects of the regulatory scheme and left others intact. For-hire car- riers must still obtain operating rights, and when they do 16 Commonly referred to as Compensated Intercorporate Hauling {C.1.H.}. 17 NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275 (1974), United States v. Dakota~-Montana Oil Co., 288 U.S. 459, 466 (1983) ; Zemel v. Rusk, 381 U.S. 1, 11 (1965). 18 The Eleventh Circuit rejected Petitioners’ re-enactment argu- ment, observing that, “* * * the parties have brought to our atten- tion no congressional comment on either the definition of private carriage as formulated in Drum or the presumptions regarding single-source leasing adopted by the Commission in the Church and Okdahoma Furniture decisions.” (716 F.2d at 1378). 17 they are subject to many requirements of law and regu- lation, and not the least of which are those relating to filing of tariffs, rate reasonableness, and the so-called “truth in leasing” regulations, 49 C.F.R. § 1057. The statutory scheme enacted by Congress contemplates a strong and financially sound regulated motor carrier industry, and the NTP directs the ICC to perform its duties with that objective firmly in mind. The ICC’s new definitional distinctions are directly antithetical to Congress’ objectives because the agency’s single-source leasing scheme would divert traffic and revenue from regulated carriers upon whom the general public depends, and would force them to pay more for owner/operator equipment. That Congress was all too keenly aware of the ICC’s propensity to exceed its jurisdiction is clear from the following text in House Report No. 96-1069, 96th Con- gress, 2nd Session, to wit: (pp. 10-11) “In revising the statute, Congress also intends to give the Interstate Commerce Commission explicit direction for the regulation of the motor carrier in- dustry and to ease that industry’s uncertainty about the future of regulation by the Commission. The Commission is admonished to stay within the ers specifically vested in it by the revised law.” Furthermore, Public Law 96-296, Congress, 94 Stat. 793, was passed with this further admonition in Chapter 3 thereof under the heading “Congressional Findings” [emphasis added] : “* * * the Interstate Commerce Commission should be given explicit direction for regulation of the mo- tor carrier industry and well-defined parameters within which it may act pursuant to corgressional policy; that the interstate Commerce Commission should not attempt to go beyond the powers vested in it by the Interstate Commerce Act and other leg- islation enacted by Congress; and that legislative 18 and resulting changes should be implemented with the least.amount of disruption to the transportation system consistent with the scope of the reforms en- acted.” Contrary to the regulatory scheme enacted by Con- gress, the ICC would enable single-source lessors by the tens of thousands to provide what for decades has been considered for-hire transportation. No operating author- ity would be required. And no regulatory obligations or expense would be imposed. The ICC would provide ex- emption from regulation for owner/operators estimated to number more than 125,000 and for many commercial lessors, at least one of which, Leaseway Transportation, advertises to availability of 8,000 drivers and 78,000 ve- hicles. In contrast, Roadway Express, Inc., the nation’s largest regulated motor common carrier of general freight reported to the ICC in its 1982 Annual Report” that it owned 7,354 tractors and 14,494 trailers. Petitioner Ryder, then the nation’s fifth largest motor common car- rier of general freight, reported 2,920 tractors and 6,615 trailers. The potential for disruption of the regulatory scheme emplaced by Congress is awesome. A little over two decades ago, this Court deemed the matter of definitional distinctions in the Oklahoma Furni- ture case to be of such magnitude and importance that its consideration of an appeal was warranted. The result was the Drum decision. The issues presented to the Court in this proceeding are of much greater importance, involv- ing not only reversal of this Court’s decision in the Drum case, and erroneous application of the NTP to unregu- lated entities, but also exemption from regulation on a grand scale with enormous potential for disrupting the regulatory structure Congress envisioned when it enacted the MCA-1980. 1® See Trinc’s Blue Book of the Trucking Industry, 1988 Edition. 19 Petitioner Ryder/PIE Nationwide, Inc., respectfully requests that this Petition for a Writ of Certiorari be granted. * _ (11) transportation of used pallets and used empty shipping containers (including intermodal cargo containers), and other used shipping devices (other than containers or devices used in the trans- Te portation of motor vehicles or parts of motor vehi- cles) ; (12) transportation of natural crushed, vesicular rock to be used for decorative purposes; or (13) transportation of wood chips. § 10527. Written contracts pertaining to certain inter- state movements by motor vehicle (a) Notwithstanding the provisions of section 10526 (a) (6) of this subchapter’, the Interstate Commerce Commission, in cooperation with the Secretary of Agri- culture, shall, where appropriate, require by regulation the use of written contracts for the interstate movement by motor vehicle of property described in such section and for brokerage services to be provided in connection with the interstate movement of such property. (b) A written contract between an owner or operator of a motor vehicle and a broker, shipper of property, or receiver of property which is required to be used by the Commission under this section shall specify the arrange- ments, including compensation, with respect to loading and unloading of the property transported under such contract. Whenever the shipper or receiver of the prop- erty transported under such contract requires that the operator of the vehicle load or unload any part of the property onto or from the vehicle contrary to any provi- sion of such contract, the shipper or receiver shali compen- sate the owner or operator of the vehicle for all costs associated with loading or unloading that part of the property. Any person who knowingly violates the preced- ing sentence is liable to the United States Government for a civil penalty of not more than $10,000 for each violation. _ (ce) The Commission shall prescribe, by regulation, the minimum requirements and conditions of written con- tracts required to be used under this section. 8e § 10921. Requirement for certificate, permit, or license Except as provided in this subchapter or another law, a person may provide transportation or service subject to the jurisdiction of the Interstate Commerce Commission under subchapter II, III, or IV of chapter 105 of this title or be a broker for transportation subject to the jurisdic- tion of the Commission under subchapter II of that chap- ter, only if the person holds the appropriate certificate, permit, or license issued under this subchapter authoriz- ing the transportation or service. § 10922. Certificates of motor and water common carriers * _ = . (b) (1) Except as provided in this section, the Inter- state Commerce Commission shall issue a certificate to a person authorizing that person to provide transporta- tion subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title as a motor com- mon carrier of property if the Commission finds— (A) that the person is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with this subtitle and regu- lations of the Commission; and (B) on the basis of evidence presented by persons supporting the issuance of the certificate, that the service proposed will serve a useful public purpose, responsive to a public demand or need; unless the Commission finds, on the basis of evidence pre- sented by persons objecting to the issuance of a certifi- cate, that the transportation to be authorized by the certificate is inconsistent with the public convenience and necessity. (2) In making a finding under paragraph (1) of this subsection, the Commission shall consider and, to the ex- tent applicable, make findings on at least the following: 9e (A) the transportation policy of section 10101 (a) of this title; and (B) the effect of issuance of the certificate on existing carriers, except that the Commission shall not find diversion of revenue or traffic from an exist- ing carrier to be in and of itself inconsistent with the public convenience and necessity. (3) The Commission may not make a finding relating to public convenience and necessity under paragraph (1) of this subsection which is based upon general findings developed in rulemaking proceedings. (4) The provisions of paragraph (1) of this subsection (other than subparagraph (A)) shall not apply to appli- cations under this subsection for authority to provide— (E) transportation by motor vehicle of food and other edible products (including edible byproducts but excluding alcoholic beverages and drugs) in- tended for human consumption, agricultural] lime- stone and other soil conditioners, and agricultural fertilizers if— (i) such transportation is provided with the owner of the motor vehicle in such vehicle, ex- cept in emergency situations; and (ii) after issuance of the certificate, such transportation (measured by tonnage) does not exceed, on an annual basis, the transportation provided by the motor vehicle (measured by tonnage) which is exempt from the jurisdiction of the Commission under section 10526(a) (6) of this title and the owner of the motor vehicle certifies to the Commission annually that he is complying with the provisions of this clause and provides to the Commission such information and records as the Commission may require. 10e § 10923. Permits of motor and water contract carriers and freight forwarders (a) Except as provided in this section and section 10930 of this title, the Interstate Commerce Commission shall issue a permit to a person authorizing the person to provide transportation subject to the jurisdiction of the Commission under subchapter II or III of chapter 105 of this title as a motor contract carrier * * * if the Commission finds that— (1) the person is fit, willing, and able— (A) to provide the transportation or service to be authorized by the permit; and (B) to comply with this subtitle and regula- tions of the Commission; and (2) the transportation or service to be provided under the permit is or will be consistent with the public interest and the transportation policy of sec- tion 10101 of this title. (b) (1) A person must file an application with the Commiszion for a permit to provide transportation as a contract carrier * * *. The Commission may approve any part of the application or deny the application. The application must— (A) be under oath; (B) contain information required by Commission regulations; and (C) be served on persons designated by the Commission. (3) In deciding whether to approve the applica- tion of a person for a permit as a motor contract carrier of property, the Commission shall consider— (A) the nature of the transportation pro- posed to be provided; lle (B) the effect that granting the permit would have on the protesting carriers if such grant would endanger or impair their operations to an extent contrary to the public interest; (C) the effect that denying the permit would have on the person applying for the permit, its shippers, or both; and (D) the changing character of the require- ments of those shippers. * * * o (6) With respect to applications of persons for permits as motor contract carriers of property, the Commission may not make a finding relating to the public interest under subsection (a) (2) of this sec- tion which is based upon general findings developed in rulemaking proceedings. lf APPENDIX F THE WALL STREET JOURNAL, Wednesday, November 30, 1983 LEASEWAY ANNOUNCES YET ANOTHER WAY TO INCREASE YOUR DISTRIBUTION PRODUCTIVITY. The Interstate Commerce Commission now allows you to lease your drivers and your trucks from a single source. You could always lease a driver. You could always lease a truck. Now lease both from Leaseway Transportation, a company experienced in each for more than 25 years. Here are just four of our 29 reasons for a Single Source Lease: @ Freedom from recruitment, training, and manage- ment of drivers ®@ Insulation from labor negotiations @ Reduced operating and administrative costs @ Increased labor and equipment productivity Leaseway Transportation employs more than 8,000 drivers and 78,000 vehicles. We are the only na- tional company with a proven record in leasing both. And we are ready to meet your needs now. Don’t wait. Call Lee Lazar for all the reasons you should get a Single Source Lease from Lease- way Transportation. 800-321-8970. In Ohio, call 216-464-3300. LEASEWAY TRANSPORTATION 3700 Park East Drive, Cleveland, OH 44122 lg APPENDIX G CORPORATIONS UNDER COMMON CONTROL WITH PETITIONER RYDER IU International Corporation (MD) Conversion Systems, Inc. (DE) Conversion Systems (Texas), Inc. (TX) , Envirosafe Services of Idaho, Inc. (DE) Earth Management, Inc. (GA) Envirosafe Services of Georgia, Inc. (GA) Envirosafe Services, Inc. (DE) Envirosafe Services of Texas, Inc. (DE) Envirosafe Services of Pennsylvania, Inc. (DE) Envirosafe Services of Iowa, Inc. (DE) Envirosafe Services of Colorado, Inc. (DE) Associated Chemical and Environmental Services, Inc. (OH) Fondessy Enterprises, Inc. (OH) Narvon Products Corp. (DE) Fox Hunt Farms, Inc. (DE) Corporacion Chatarraven, C.A. (DE) Echo Bay Mines Ltd. (Canada) Edmonton Telephone Answering Service Ltd. (Alberta, Canada) Envirosafe, Inc. (DE) Transportation System, Inc. (DE) Independent Freightway, Inc. (DE) Fleetway Insurance Limited (Bermuda) Ligon Nationwide, Inc. (DE) GWC Corporation (DE) Biggers Brothers, Inc. (DE) Select Foods, Inc. (NC) IMS Holdings, Inc. (DE) IMS Caribbean Operations Ltd. (DE) IMS Intermetal de Chile Limitada (Chile) IMS Japan Ltd. (Japan) Intermetal Mexicana S.A. (Mexico) 2g International Metals Recovery, Inc. (DE) International Mill Service, Inc. (PA) Beaver County Trucking, Inc. (PA) H and H Equipment Corp. (NY) Clarance A. Hackett, Inc. (NY) New Bridge Development Company (PA) Internationa] Utilities Corporation (DE) International Utilities Overseas Capital Corporation (DE) IU International Management Corporation (DE) IU Europe, Ltd. (DE) C. Brewer Hawaii, Ltd. (HI) IU Oil & Gas Limited (England) Trans-Services Investment Corporation (DE) I.U. Overseas Transportation Ltd. (Bermuda) IU Nationwide, Inc. (DE) IUUK Corporation (DE) Special Carriers, Inc. (DE) Customized Transportation, Inc. (DE) CCX Nationwide, Inc. (DE) Trans-Service Express, Inc. (DE) Pioneer Trucking, Inc. (DE) Special Carriers Leasing, Inc. (DE) Telephone Answering Service Limited (Quebec, Canada) Unijax, Ine. (DE) The Coachman Insurance Company (CO) Unijax Realty Company (FL) SWF Holdings, Inc. (DE) Signature Brands, Inc. (DE) Valve Systems International, Inc. (DE) Byevalve Company (DE) Byevalve Company, Ltd. (Ontario, Can.) Byevalve Limited (England) Cyclejack, Inc. (DE) IU Air Service, Inc. (DE) IU Land Development Corporation (DE) NOSROC Corp. (PA) PAC Finance Corporation (DE) 3g P.I.E. International Inc. (DE) General Waterworks Corporation (DE) Bethel Township Water Company (PA) Boise Water Corporation (ID) Hoosier Water Company, Inc. (IN) West Lafayette Water Company, Inc. (IN) Lincoln Water Corporation (IL) Orida Investment Corporation (ID) Butler Township Water Company (PA) Capital City Water Company (MO) Caribou Water Works Corporation (ME) Clearview Water Supply Company (PA) Clymer Citizens Water Company (PA) Colorado Utility Management Corporation (CO) Preston Utilities Corp. (IL) Dauphin Consolidated Water Supply Company (PA) East McKeesport Water Company (PA) Eastport Water Company (ME) Ellsworth Water Company (ME) Freeport Water Company (PA) The Citizens Water Supply Company of Newtown (NY) Clarkston General Water Supply, Inc. (WA) G.W.C. Data Service Corporation (PA) GW Service Corp. (DE) Galeton-Edlred Water Company (PA) General Securities Corp. (DE) General Waterworks Corporation of Pine Bluff, Arkansas, Inc. (AR) General Waterworks Management and Service Company (PA) Greenville Water Company (ME) HRWS Co. (PA) Illinois Municipal Water Company (IL) Jacksonville Suburban Utilities Corporation (FL) Jersey Shore Water Company (PA) Lambertville Water Company (NJ) MTL Corporation (DE) Mechanic Falls Water Company (ME) 4g Mechanicsburg Water Company (PA) Millinocket Water Company (ME) The New Milford Water Company (CT) The New Rochelle Water Company (NY) The Newtown Water Company (CT) The North Berwick Water Company (ME) Octoraro Water Company (PA) Russellville Water Company, Inc. (AR) Skowhegan Water Company (ME) South Gate Water & Sewer Co., Inc. (FL) Toms River Water Company (NJ) Owego Water Works (NY) Nichols Water Company (NY) Stewartstown Water Company (PA) Spokane Suburban Water Company (WA) The Trevorton Water Company (PA) Wakefield Water Company (RI) Warrenville Water Company (IL) 2522 Covington Street Corporation (DE) Wilmington Suburban Water Corporation (DE) The Woodbury Water Company (CT) Wrightsville Water Supply Company (PA) International Utilities Overseas Capital Corporation (DE) IU North America Finance, Inc. (DE) IU International Holdings Limited (DE) I.U. Overseas Finance N.V. (Netherland Antilles) IU Finance Canada Limited (Canada) IU Barbados Limited (Barbados) IU Liberian Finance Company (Liberia) Pagette Airsignals Ltd. (Ontario, Canada) Distacom Communications (Alta) Ltd. (Alberta, Canada) IMS Laycrete, Inc. (DE) Cleveland Machine Hire Limited (U.K.) IMS Lycrete Egypt, Ltd. (DE) IMS Lycrete Limited (U.K.) IMS Lycrete (London) Limited (U.K.) Lycrete Limited (U.K.) 5g Minesco Limited (U.K.) IMS Lycrete France, S.A. (France) IMS Nordiska International Mill Service AB (Sweden) IMS Lycrete S.A. (Spain) IMS-Schlacken-und-Metallaufbereitung GmbH (Germany) IMS Sodynad Holdings, S.A. (Luxembourg) IMS-Sodynad, s.a.t.l. (Luxembourg) IMS Teeside Ltd. (U.K.) ' Engineering & Metal Recovery Limited (U.K.) Movig Limited (U.K.) Lifermag S.A. (Belgium) Loyquip S.A. (Belgium) Sociedale Brasileira de Recuperacao de Metals (Sobremetal) Ltda. (Brazil) Atlantic Direct Service, Inc. (DE) IU International Oil & Gas, Inc. (DE) IU Resolute Corporation (DE) Round Valley, Inc. (NJ) Beaver Brook Land Company (NJ) Beaver Brook Country Club, Inc. (NJ) Round Valley Realty, Inc. (NJ) All States Terminals, Inc. (OH) All States Trucking, Inc. (RI) Intermountain Terminal Company (NV) Pacific Intermountain Express Co. (NV) Metric Associates (CA) P.LE. Air Freight Forwarding, Inc. (CA) X-M Truck Brokers, Inc. (NV) Vanguard Contract Carrier, Inc. (DE) P.I.E. Forwarding, Inc. (NV) P.I.E. Transport, Inc. (DE) P-X Consolidators, Inc. (CA) Tyrco Industries (CA) P.I.E. Transport A/S (Denmark) P.ILE. Transport AB (Sweden) P.I.E. Transport A/S (Norway) P.LE. Transport OY (Finland) Ryder Transportation Services, Inc. (DE) 6g P.I.E. Bulk Transport, Inc. (DE) Ranger Nationwide, Inc. (DE) Helm’s Salvage, Inc. (PA) RTL Holdings, Inc. (DE) Transportation Tele-Processing Systems, Inc. (FL) Rating Services, Inc. (DE) O.N.C. Forwarding (CA) Ryder Forwarding, Inc. (CA) Ryder Truck Lines Ltd. (Ontario, Canada) C. Brewer and Company, Limited (HI) Agrex Engineering Co., Ltd. (HI) Empresa Agropecuaria Patzulin, S.A. (Guatemala) Agri-Spices International, Inc. (HI) Empresa Agricola E] Pacayal, S.A. (Guatemala) Agrobusiness Company, Limited (HI) Cariblanco, S.A. (Costa Rica) Brewer Chemical Corporation (HI) Brewer, Inc. (DE) Bioenergy Development Corporation (HI) Brewer Farms, Inc. (OR) Brewer Properties, Inc. (DE) Brewer Support Housing, Inc. (HI) C. Brewer Service Corp. (HI) Guatrex Services, Ltd. (HI) Agronomicas de Guatemala, S.A. (Guatemala) Industria Guatemalteca de Macadamia, S.A. (Guatemala) Hilo Transportation & Terminal Co., Inc. (HI) Kilauea Agronomics, Inc. (HI) Mauna Loa Macadamia Nut Corporation (HI) Monte de Oro, S.A. (Guatemala) Nudelco, Inc. (DE) Seamountain-Hawaii Ranch Company, Inc. (HI) Hawaiiana Investment Co., Inc. (HI) C.B. Kilauea, Inc. (HI) Punalu’u Water and Sanitation Corporation (HI) Volcano Gulf & Country Club, Inc. (HI) Kilauea Irrigation Co., Inc. (HI) Hawaiian Insurance & Guaranty Company, Limited (HI) 7g Guardian Financial Corporation (HI) Guardian Life Underwriters, Inc. (HI) Independent Adjustment, Inc. (HI) United National Insurance Company, Limited (HI) Hawaii Underwriters Insurance Co., Ltd. (HI) Ka’u Sugar Company, Inc. (HI) Mauna Kea Sugar Company, Inc. (HI) Hilo Coast Processing Company (CA) Okokele Sugar Company, Limited (HI) Wailuku Sugar Company (HI) Namolco Inc. (DE) International Molasses Limited (England) Namoleo AC (Switzerland) Namolco GmbH (Germany) Namolco §.r.]. (Italy) Namolco de Mexico, S.A. (Mexico) National Molasses Company, Inc. (DE) Namolco (Panama) S.A. (Panama) Willow Grove Shipping Company Limited (Liberia) non = . p 9 pep lh APPENDIX H TERMINOLOGY DEMONSTRATING THAT THE ICC’S ACTION HAS THE EFFECT OF A REGULATION OR STATUTORY AMENDMENT Terminology Used By ICC Defining the line Distinctions * * * between private and for-hire carriage Drawing the line Distinctions between for-hire and private carriage Definitional distinction Redefined the distinction Drawing the line Establish the boundary line Drawing the line Boundary line Redefinition of the distinction Terminology Used By 11th Circuit “New formula” for determine whether lease arrangement constitutes private carriage Defining private carriage Boundary line Distinction between private and for-hire carriage Page Where Appears (132 M.C.C. at 757; App. B, p. 8b) ( "i at 760; App. B, p. 7b) ( “a at 761; App. B, p. 8b) ( . at 763; App. B, p. 12b) ( as at 767; App. B, p. 18b) ( os at 768; App. B, p. 19b) ( a at 768; App. B, p. 20b) ( eg at 770; App. B, p. 22b) ( af at 770; App. B, p. 23b) ( = at 771; App. B, p. 24b) ( . at 722; App. B, p. 26b) Page Where Appears (716 F.2d at 1871; App. A, p. 2a) ( ” at 1383; App. A, p. 26a) ( a at 1383; App. A, p. 27a) ( ” at 1886; App. A, p. 33a) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0982%3A1. Public record. Not legal advice.