Amicus Curiae Brief — Security Services, Inc. v. Kmart Corp.

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Mgrems Court, We

FILED

No. 93-284 DEC -2 1993

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1993

SECURITY SERVICES, INC. f/k/a RISS

INTERNATIONAL CORPORATION,

Petitioner,

K-MART CORPORATION,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

BRIEF OF OVERLAND EXPRESS, INC., AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

JoserH L. STeInreLp, JR.*

Ropert B. WALKER

JOHN T. SIEGLER

Scorr H. Lyon

Sims, WALKER & STeINFELD, P.C. ~

1275 K Street, N.W., Suite 775

Washington, D.C. 20005

(202) 842-1741

Attorneys for Amicus Curiae,

Overland Express, Inc.

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225

OR CALL COLLECT (402) 342-2831

044

TABLE OF CONTENTS

Page

Pe Ge BD be ove sek ees dcccccccewecseseces iii

Interest of Amicus Curiae ................0000e eee 2

EY Ge SID occ wonsevedcesdecenssceeuees 4

ATQUMENE ... 2... eee cece eee cece eer eeececeeeees 5

I. PRIOR TO JASPER WYMAN THE ICC NEVER

ENFORCED THE REGULATIONS WHICH

FORM THE BASIS OF ITS VOID-FOR-NON-

PARTICIPATION POLICY .................005. 5

Il. IN ORDER TO ELIMINATE UNDERCHARGE

CLAIMS, THE ICC, IN JASPER WYMAN, HAS

ONCE AGAIN IMPROPERLY ATTEMPTED TO

INVALIDATE THE FILED RATE DOCTRINE .. 10

A. Introduction: The ICC’s Negotiated Rates

PEPER cabekecethdbeccedcaséckangwesgnecs 10

B. The Tariff Regulations Relied Upon By The

ICC Do Not Provide The ICC With The

Authority To Retroactively “Void” Overland’s

PI aya e6UN uss eas evesvceeccosceness 12

1. The Tariff Regulations At Issue........ 12

2. The Revised Regulations Eliminated The

Participation Requirement For Distance

GPSS ORS conenecescedesesshiszesecs 17

3. Participation In A Tariff Is Distinct From

Reference To A Distance Guide And Is

Treated Differently Under The Regula-

PU sch ceccdecocesenecscesesssccacsces 19

ii iii

TABLE OF CONTENTS - Continued TABLE OF AUTHORITIES

Page ann Page

Ill. THE ICC’S “VOID-FOR-NON —

RULE EFFECTS A pe Ny gs ol Berwind-White Coal Mining Co. v. Chicago and Erie

REJECTION IN EXCESS OF THE ICCc’S STATU- Railroad Co., 235 U.S. 371 (1914) TUT TTEUTITTL 10, 25, 26

TORY AUTHORITY AND IN VIOLATION OF

AER oo vccccvcceccecenenetseke eine eeeuienils 22 Brizendine v. Cotter & Co., 4 F.3d 457 (7th Cir. 1993) . .3, 23

IV. THE ICC’S VOID-FOR-NONPARTICIPATION Davis v. Portland Seed Co., 264 U.S. 403 (1924) .. 10, 24, 25

POLICY DOES NOT MEET THE ATA STAN-

DARD FOR PERMISSIBLE RETROACTIVE : F.P. Corp. v. Twin Modal, Inc., 989 F.2d 285 (8th

PE SUITED 6000 0ccesnnetoncews es an tees 23 Cir.), cert. denied, 114 S. Ct. 95 (1993) .............. 3

V. THE DAVIS AND BERWIND-WHITE OPINIONS , , : ;

PREVENT TARIFF IRREGULARITIES FROM Freightcor Services, Inc. v. Vitro Packaging, Inc., 969

VOIDING A CARRIER’S TARIFF.............. 24 F.2d 1563 (Sth Cir. 1992), cert. denied, 113 S. Ct.

Sty SMa ihiebiceddoddecesboencceecesecccess 3

CURT EARS co cccvesscevedevcteetesetes cel 27

_— Genstar Chemical Ltd. v. ICC, 665 F.2d 1304 (D.C.

Cir. 1981), cert. denied, 102 S. Ct. 1750 (1983)

rr ey PAE POET ELL TTELELTTEe Tee 10, 25, 26

Interstate Commerce Comm'n v. American Trucking

Assocs., Inc., 467 U.S. 354 (1984), reh’g denied, 468

i ccc peckececccennccateccesecvcesees 3, 4

Maislin Indus., Inc., U.S. v. Primary Steel, Inc., 497

i Ps chewesessseccoccesecscecccccescece 11

Overland Express, Inc. v. ICC, 996 F.2d 356 (D.C.

Sy PT RG sckbicdesdcosedesoesécosoouccesees passim

Security Services, Inc. v. K-Mart Corp., 996 F.2d 1516

(3rd Cir.), cert. granted, 114 S. Ct. 341 (1993)

eC eedebeseeveveccsrerersecnaececvoseccns 3, 4, 5, 23, 26

Security Service, Inc. v. P-Y Transp., Inc., 3 F.3d 966

SEE GE Bee cccccccccccccoccccccesescecccoes 3, 23

TABLE OF AUTHORITIES - Continued

Page

Square D Co. v. Niagara Frontier Tariff Bureau, Inc.,

Se Sh Se a nonis c evdocanccdenscasbiccioscs 10

ADMINISTRATIVE DECISIONS

Jasper Wyman & Son, et al. — Petition for Declaratory

Order — Certain Rates and Practices of Overland

Express, Inc., 8 L.C.C. 2d 246 (1992), rev'd sub

nom. Overland Express, Inc. v. Interstate Commerce

Comm'n, 996 F.2d 356 (D.C. Cir. 1993)......... passim

NITL — Pet. to Inst. Rule on Negotiated Motor Car., 3

EEE Ut GEE nbs eniceredeewiunbendbecedeecesnes 11

NITL — Pet. to Inst. Rule on Negotiated Motor Car., 5

PR MED bececepecdusesPnceessecsnccces: 11

Petition for Intervention and Reconsideration of Spe-

cial Tariff Authority No. 82-1827 and Petition for

Declaratory Order Concerning the Lawfulness of

Copyrighted Tariffs, Docket No. 38886 (unprinted

decision, February 24, 1983) ...............000005- 18

Revision of Tariff Regulations, All Carriers, 1 1.C.C.

| ree 12, 13, 16

STATUTES

SP es OF Sn aie veccccccecucscccenwedseesneeses 10

Se Ps cececcsebdnecseccicecsuceceses 10, 11

OP ee Or I hci ccccdvccccecsscduceruss 10, 23

er ton ch ansesbaensdvebhevessereuns 10

SF Cee ED a nencscsconscccocecsounens 9, 10, 24

FEDERAL REGISTER

eS ED cccccuseceeneenceseteneteds 3

TABLE OF AUTHORITIES - Continued

Page

Cope or FeperRaAt REGULATIONS

Le i FEET TTITTT TT Te eTrT eT ITT E Ty 12, 13

GD CRE. © RIBBED occ ccccccccccccccccsccccscces 12, 13

GD CARE. © TRGRIGERD 0 occ ccccccccccccccccccccccees 14

GD CIR. © BDEB DED. «20. ccccccccccccccccccess 14, 21

GD CARR. © BRERA. ccc cccccccccccccccccccccces passim

fet BS 5 PPPPPPPITITTTTTTTT TTT T TTT ee 14

GD Cie © BD cc cc ccccccccccccccsccccccceneces 6

GD CRE. © BOER TD cc ccccccccccccvceccess 14, 15, 17, 21

GD CIR. © BBG BIED ccc cccccccccccccdscccccce 5, 16, 19

Court RuLes

Supreme Court Rule 37.1 ........ 6... 60sec eee e eee eee 4

PERIODICALS

Goodman, Commission Accelerates the Discharge of

Motor Carrier Undercharges, 60 Transportation

Practitioners Journal 257 (Spring 1993)......... 18, 20

Jackson, The Supreme Court Speaks Again on Freight

Rate Undercharge Issues, 61 Transportation Prac-

titioners Journal 51 (Fall 1993)................-. 12, 21

OTHER

Webster’s Ninth New Collegiate Dictionary (1984) .... 19

No. 93-284

In The

Supreme Court of the United States

October Term, 1993

SECURITY SERVICES, INC. f/k/a RISS

INTERNATIONAL CORPORATION,

Petitioner,

K-MART CORPORATION,

Respondent.

| On Writ Of Certiorari To The

| United States Court Of Appeals

For The Third Circuit

BRIEF OF OVERLAND EXPRESS, INC., AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Overland Express, Inc. respectfully files this brief as

an amicus curiae in support of Petitioner. Written consent

has been obtained from counsel for Petitioner and from

counsel for Respondent for filing of this brief pursuant to

Supreme Court Rule 37. The letters reflecting consent

have been filed with the clerk’s office.

INTEREST OF AMICUS CURIAE

Prior to filing bankruptcy in 1988, Overland Express,

Inc. (hereinafter “Overland” or “Amicus”) operated as an

interstate motor carrier licensed by the Interstate Com-

merce Commission (hereinafter “ICC” or “Commission”).

Shortly after its bankruptcy, Overland engaged an audit

company to review its freight bills and payment records

to determine whether shippers served pursuant to Over-

land’s common carrier authority had properly paid in

accordance with Overland’s filed tariffs. When it was

discovered that many shippers had not properly paid

Overland’s filed rate charges, Overland rebilled these

shippers for the full charges. When a shipper failed to

pay after rebilling, suit was instituted to collect the

charges.

In January, 1991, Jasper Wyman & Sons and thirty

other shippers who had been sued by Overland (hereinaf-

ter referred to as “ICC Petitioners”) filed a Petition for

Declaratory Order with the ICC. The Declaratory Order

sought determination of the validity of Overland’s mile-

age based rates. ICC Petitioners claimed that Overland

had improperly utilized the Household Goods Carriers’

Bureau (“HGCB”) Mileage Guides to determine mileages

for use in Overland’s filed tariffs. ICC Petitioners

asserted that this irregularity “voided” Overland’s tariffs,

and thus Overland could not pursue motor carrier under-

charges against them. See Jasper Wyman & Son, et al. -

Petition for Declaratory Order — Certain Rates and Practices

of Overland Express, Inc., 8 1.C.C.2d 246, 247 (1992) (here-

inafter “Jasper Wyman”), rev'd sub nom. Overland Express,

Inc. v. Interstate Commerce Comm'n, 996 F.2d 356 (D.C. Cir.

1993) (hereinafter “Overland”).

Because of the industry-wide importance of the issue

presented, the ICC published a notice in the Federal Regis-

ter seeking comments from “interested persons, including

any party to a case involving this issue pending before

the Commission or in court.” 56 Fed. Reg. 24,091 (1991).

After receiving comments from the public, the ICC issued

its final order on January 30, 1992. In Jasper Wyman the

ICC first announced its “void-for-nonparticipation” pol-

icy in which it claimed that a carrier’s tariff which

referred to a distance guide without the carrier “partici-

pating” in that tariff was void ab initio. 8 1.C.C.2d at

247-48. Overland timely appealed the ICC’s decision to

the D.C. Circuit arguing that the void-for-nonparticipa-

tion policy announced in Jasper Wyman was in effect an

illegal, retroactive tariff rejection which violated this

Court’s decision in Interstate Commerce Comm'n v. Ameri-

can Trucking Assocs., Inc., 467 U.S. 354, reh’g denied, 468

U.S. 1224 (1984) (hereinafter “ATA”). The D.C. Circuit

agreed and granted Overland’s petition for review. Over-

land, 996 F.2d at 362.

Prior to the D.C. Circuit’s opinion, the Third, Fifth

and Eighth Circuits had adopted the ICC’s void-for-non-

participation rationale. See Security Services, Inc. v. K-Mart

Corp., 996 F.2d 1516 (3rd Cir.), cert. granted, 114 S. Ct. 341

(1993); Freightcor Services, Inc. v. Vitro Packaging, Inc., 969

F.2d 1563 (5th Cir. 1992), cert. denied, 113 S. Ct. 979 (1993);

F.P. Corp. v. Twin Modal, Inc., 989 F.2d 285 (8th Cir.), cert.

denied, 114 S. Ct. 95 (1993). Subsequent to the Overland

decision, the Sixth and Seventh Circuits have concurred

with the D.C. Circuit. See Security Services, Inc. v. P-Y

Transp., Inc., 3 F.3d 966 (6th Cir. 1993); Brizendine v. Cotter

& Co., 4 F.3d 457 (7th Cir. 1993).

Amicus has a direct interest in the outcome of this

case because of its impact on the D.C. Circuit’s Overland

decision. In providing the Court with the relevant por-

tions of the ICC record not contained in the K-Mart record

below, Amicus also fulfills one of the primary purposes of

an amicus filing. See, Supreme Court Rule 37.1.

SUMMARY OF THE ARGUMENT

In the ATA decision, this Court established the stan-

dard for the ICC’s ability to reject tariffs. In essence, the

ICC has the authority to reject tariffs at the time of filing,

and also has the ability to cancel the prospective effects of

tariffs, yet its power to retroactively reject a tariff is

severely limited. ATA, 467 U.S. at 361-64. Thus, under the

ATA standard, the ICC’s use of its void-for-nonparticipa-

tion policy must “further a specific statutory mandate”

and be “directly and closely tied to the statutory man-

date.” ATA, 467 U.S. at 367. The Third Circuit and the

D.C. Circuit agree that in the Jasper Wyman decision, the

ICC has effected a retroactive tariff rejection. See, e.g.,

K-Mart, 996 F.2d at 1524-25, Overland, 996 F.2d at 359-60.

It is however, in the application of the ATA standard that

the D.C. Circuit and the Third Circuit diverge - the Third

Circuit finding that the ICC’s actions in the Jasper Wyman

decision met the ATA standard and the D.C. Circuit find-

ing they did not. See, e.g., K-Mart, 996 F.2d at 1526,

Overland, 996 F.2d at 362. As correctly noted by the D.C.

Circuit, the ICC’s “regulatory policy” of tariff rejection in

this instance was not “driven by a specific statutory

mandate.” Overland, 996 F.2d at 362. In addition, the ICC

had failed to follow the directives of ATA in that it had

RO te ee ih ee) oe ee SE

not attempted to formulate a “less draconian” remedy for

failure to participate in the Mileage Guide than the com-

plete abrogation of the carrier’s tariff.

The D.C. Circuit had before it a fully developed

record, including the regulatory record before the ICC

when it considered the Jasper Wyman decision. Amicus

has excerpted relevant portions of that record in the

appendix hereto, to assist the Court in its review of the

K-Mart decision. Amicus suggests that the D.C. Circuit

therefore had a better basis for review of the ICC’s

actions and has reached the sounder result under the ATA

standard.

ARGUMENT

I. PRIOR TO JASPER WYMAN THE ICC NEVER

ENFORCED THE REGULATIONS WHICH FORM

THE BASIS OF ITS VOID-FOR-NONPARTICIPA-

TION POLICY

As a motor common carrier operating in interstate

commerce pursuant to authority granted by the ICC,

Overland had filed tariffs with the Commission. Over-

land’s tariffs established charges for transportation of

freight based on a “per mile” rate. To determine the

specific mileage between any two points, the tariff

“referred” to the HGCB Mileage Guide (hereinafter

“Mileage Guide”).!

1 The ICC’s regulations establish three methods of computing

mileages for motor common carrier tariffs based upon distances.

See, 49 C.ER. § 1312.30(c). Carriers can compute distances by (i)

Overland had issued a power of attorney to the

HGCB in 1970, however, the HGCB unilaterally cancelled

Overland’s participation in the Mileage Guide because

Overland had failed to pay the yearly administrative fee.?

Nevertheless, Overland continued to file with the ICC

mileage-based rates in tariffs denominated ICC OVLA

200, 200A, 202, 202A, 203 and 203A. These tariffs speci-

fically referenced Mileage Guide 100 issued by the HGCB.

The ICC accepted all of these tariff filings without objec-

tion despite the fact that after May 22, 1983, Overland’s

participation in the Mileage Guide had been cancelled by

the HGCB.

Overland, in its submissions to the ICC provided the

following undisputed evidence:

publishing a list of the distances between all locations covered by

the distance rates, (ii) referring to an attached map, or (iii) referring

to a distance guide. The regulations are silent as to any penalty

should the carrier fail to utilize one of the three methodologies for

determining distances.

In addition, 49 C.F.R. § 1312.27(e), requires carriers whose

tariffs “refer to, and are governed by separate tariffs (classifica-

tions, exceptions, rules, etc.)” to “participate” in the tariff

referred to. Distance guides are not specifically defined as tar-

iffs in this or any other regulation.

Finally, 49 C.F.R. § 1312.4(d) sets forth the power of attorney

requirement for carriers who “participate in a tariff issued in the

name of another carrier or an agent.” The regulation goes on to

state, that, “absent effective concurrences or powers of attorney,

tariffs are void as a matter of law.”

2 On May 22, 1983, Overland was deleted from the list of

participating carriers. The HGCB removed Overland from “Par-

ticipating Carrier and Scope Tariff” ICC HGB 101 via Supple-

ment Number 72 to ICC HGB 101-A.

1. Since the tariff regulations were amended in

1984, the ICC had never rejected, or voided any distance

rates filed by a motor common carrier with the Commis-

sion for failure to “participate” in a distance guide when

reference to a distance guide was necessary to compute

the carrier’s rates. See Affidavit of Don Norman, App.

7-9.

2. During the months of April and May, 1991 (while

the Commission was considering the Jasper Wyman peti-

tion), the Commission accepted tariffs from more than

230 carriers which referred to the HGCB Mileage Guide

as a methodology for determining distances, without

those carriers having been listed by the HGCB as “partici-

pating” carriers. See Affidavit of Don Norman, App. 8,

17-24.

3. From 1984 until 1988, approximately 15,000 car-

riers, or 40% of all common carriers who filed tariffs

containing mileage rates, referred to the HGCB Mileage

Guile without participating in the same. App. 9.

4. The Commission also routinely accepted and con-

tinued to accept other improper (i.e., not authorized by 49

C.F.R. § 1312.30(c)) methodologies for determining dis-

tance and prior to Jasper Wyman had never rejected a

tariff for failure to properly state the appropriate distance

methodology. App. 9-12.

5. ICC records revealed that in 1990 and 1991 its

Section of Enforcement conducted audits of several truck-

ing companies to determine whether they had issued

powers of attorney or otherwise participated in the Mile-

age Guide. The audits also discussed the results of “void-

ing” the carriers’ mileage based rates for failure to

“participate” in the Mileage Guide. The Commission was

informed by its Section of Enforcement that if distance

rates were to be considered void because of non-partici-

pation, higher rates would have to be charged to ship-

pers. The ICC did nothing to inform any of the carriers

involved that their tariffs in any way were deficient and

that they should, as required by law, rebill the non-

distance based higher rates. App. 25-38.5

Based upon the foregoing, Overland argued to the

ICC that the Commission had condoned, if not encour-

aged, motor common carriers to file “defective” distance-

based rates which refer to the HGCB Mileage Guide

without the carriers actually participating in the guide.

The ICC never accepted responsibility for allowing car-

riers to ignore its tariff regulations. Nor did the ICC agree

with Overland that its regulations did not require partici-

pation in a distance guide. Instead, when presented with

the undercharge claims filed by Overland, as well as

other carriers, the ICC crafted an ingenious use of its

tariff regulations to defeat those claims. The ICC used

three particular regulations in such a fashion so as to

almost “magically” cause filed rates, never rejected by the

ICC, to disappear so that they could not be used by

* The appendix hereto includes portions of the ICC’s enfor-

cement files obtained by FOIA requests. While the entire con-

tents of each relevant enforcement file were made a part of the

Jasper Wyman record, Amicus has included only one “Table of

Rate Referrals” for each carrier. For example, in connection with

an investigation of Bar Enterprises, the ICC provided 53 exhibits

(Tables of Rates Referrals). See App. 25-26. For simplicity,

Amicus has provided the Court with onlv one Table for each

carrier. See, e.g., App. 27-33, 35, and 38.

Overland or other similarly situated carriers to collect

filed rate charges.

Although Overland’s rates remained “on file” with

the ICC, in order to prevent any filed rate undercharge

claims, the Commission considered Overland’s filed rates

to be not “effectively on file” with the ICC after May 23,

1983. Jasper Wyman, 8 1.C.C.2d at 256 (emphasis added).

That is, Overland had filed rates, just not “effective” filed

rates. Of course, if shippers and competing carriers were

to go to the ICC’s tariff library and request Overland’s

tariffs, they would have no notice that the filed rates were

“ineffective.” The ICC admits that it has not been policing

the tariff filing system for faulty tariffs, and yet somehow

expects the public, including Overland, to engage in a

“treasure hunt” to determine which are effective and

which are not effective tariffs. This is bureaucratic non-

sense and runs contrary to the statutory scheme which

anticipates the ICC rejecting tariffs which “[violate] this

section or regulation of the Commission carrying out this

section” 49 U.S.C. § 10762(e).

Rather than police the tariff filings as required by

Congress, the Commission fabricated a self-serving

requirement that filed tariffs must comply with its regula-

tions to be “effective.” However, there is nothing within

the statutory scheme which would allow the ICC to ear-

mark as “ineffective” a tariff filing which had been

received, placed on file by the agency and never rejected

by the Commission. See 49 U.S.C. § 10762. The only

remedy available to the ICC is its power of rejection

pursuant to 49 U.S.C. § 10762(e). The ICC’s duty to reject

defective tariffs is critical if the public is to be informed

as to which rates are on file and which are not. The ICC

in creating a legal fiction of filed, but “ineffective” tariffs,

has gone way beyond its statutory authority and would

make a mockery of the filed tariff system. Similar

attempts to treat filed, but defective tariffs as legal nulli-

ties have been soundly rejected by this Court in Davis v.

Portland Seed Co., 264 U.S. 403 (1924); Berwind-White Coal

Mining Co. v. Chicago and Erie Railroad Co., 235 U.S. 371

(1914), and the D.C. Circuit in Genstar Chemical Ltd. v.

ICC, 665 F.2d 1304 (D.C. Cir. 1981).

Il. IN ORDER TO ELIMINATE UNDERCHARGE

CLAIMS, THE ICC, IN JASPER WYMAN, HAS

ONCE AGAIN IMPROPERLY ATTEMPTED TO

INVALIDATE THE FILED RATE DOCTRINE

A. Introduction: The ICC’s Negotiated Rates Pol-

icy

In 1980 Congress enacted the Motor Carrier Act

which reformed the Interstate Commerce Act, 49 U.S.C.

§§ 10101, et seq. (hereinafter “Act” or “ICA”). The reforms

generally relaxed the strict entry requirements in an

effort to promote more competitive and economical trans-

portation services. However, one central feature of the

Act was retained without change - the requirement that

motor common carriers publish their rates, rules and

classifications in tariffs, file those tariffs with the ICC and

strictly adhere thereto. See 49 U.S.C. §§ 10761 and 10762.

Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S.

409, 420 (1986). (“The duty to file rates with the Commis-

sion, see § 10762, and the obligation to charge only those

* Pub. L., 96-296, July 1, 1980, 94 Stat. 793.

rates, see § 10761, have always been considered essential

to preventing price discrimination and stabilizing

rates.”).

In 1986 the ICC concluded that changes in the motor

carrier industry warranted a tempering of the rule of

strict adherence to the tariff rate. NITL — Pet. to Inst. Rule

on Negotiated Motor Car., 3 1.C.C.2d 99 (1986), (hereinafter

“Negotiated Rates I).Under this policy statement, the ICC

invited references from the various courts in which

actions for the collection of motor common carrier freight

charges were pending so that it could determine whether

the collection of undercharges would be an unreasonable

practice.5 This Court soundly rejected the ICC’s new pol-

icy enunciated in Negotiated Rates I and II. See Maislin

Indus., Inc., U.S. v. Primary Steel, Inc., 497 U.S. 116 (1990).

Thus, neither the ICC nor the transportation community

may now assert the “unreasonable practices” defense to a

motor common carrier’s efforts to collect the rates pub-

lished in its ICC-filed common carrier tariff. The Com-

mission, however, in Jasper Wyman demonstrated its

continued ingenuity in attempting to frustrate the

requirements of the filed rate doctrine.®

5 The ICC clarified its new policy in NITL — Pet. To Inst. Rule

on Negotiated Motor Car., 5 1.C.C.2d 623 (1989) (hereinafter

“Negotiated Rates II”).

6 The Commission's overzealous campaign against under-

charges is most ironic in light of the widely held view that the

Commission is generally to blame for the “crisis” in the first

place. For example, in an article reviewing the history of freight

undercharges, William P. Jackson, Jr. recounts a 1980 speech by

an ICC Commissioner to the Southern Traffic League. The Com-

missioner instructed shippers to “pretend that the ICC doesn’t

B. The Tariff Regulations Relied Upon By The

ICC Do Not Provide The ICC With The Author-

ity To Retroactively “Void” Overland’s Filed

Rates

1. The Tariff Regulations At Issue

By decision served October 1, 1984, in No. 37321

Revision of Tariff Regulations, All Carriers, 1 1.C.C.2d 404

(1984) (“Revision of Tariff Regulations”), the ICC revised its

tariff publishing rules which govern the tariffs at issue in

this proceedings.” The stated purposes of these new rules

were to: (1) consolidate existing rules and regulations so

that only one set of rules applies to all carriers; (2) modify

procedural rules “to insure that they do not conflict with

substantive law and policy;” and (3) ensure that the tariff

rules “are flexible enough to encourage innovation as

well as tariff simplification efforts.” 1 I.C.C.2d at 404.

The Commission stated further: “Moreover, we hope

that such rules and regulations as we do retain are flex-

ible enough to encourage carriers to continue to be inno-

vative and competitive in designing tariffs that are

simpler and easier for shippers to employ.” Id. Thus, 49

C.F.R. § 1312.1(c)(3) provides: “These regulations are to

exist, and do what you want to.” As noted by Mr. Jackson, this

comment “excited much disbelief on the part of the attendees.”

Jackson, The Supreme Court Speaks Again on Freight Rate Under-

charge Issues, 61 Transportation Practitioners Journal 51, 53, n. 11

(Fall 1993).

? The former tariff regulations in effect prior to 1984 were

found in 49 C.F.R. Part 1310. Although former §1310.1(f)

required filing of powers of attorney and revocations at the

Commission, it did not void filed rates for failure to comply with

the power of attorney requirements.

be liberally construed. The absence of specific approval of

particular practices or provisions does not imply disapproval of

them”. (emphasis added).

The new tariff rules in Part 1312 replaced the motor

common carrier tariff rules formerly found at 49 C.F.R.

Part 1310. It is those rules that were characterized by the

Commission in Revision of Tariff Regulations as “inhibi-

ting” tariff simplification because “there is no reason for

this Commission to require that prices and services be

presented in tariffs in any particular manner.” 1 L-C.C.2d

at 405. Moreover, the Commission stated that in amend-

ing the prior regulations, it desired to “eliminate” all of

the tariff rules and regulations “that have been rendered

obsolete by the marketplace or are no longer appropriate

under the law, and to retain only those rules that are truly

necessary to carry out the statutory disclosure function of

tariffs.” 1 LC.C.2d at 405.

In sum, the rules contained in Part 1312 were to be

less stringent, more flexible, simpler, and more encourag-

ing of innovations or competition, than the stricter rules

contained in Part 1310. In Jasper Wyman, however, the ICC

reads the provisions in Part 1312 so narrowly and strictly

as to produce a result that is significantly harsher.

For example, consider the following regulations in

Part 1310.

49 C.F.R. § 1310.1(f) —- Concurrences and powers of attorney

required.

Any participation by a carrier in a tariff publica-

tion other than its own issue must be supported

by a power of attorney or concurrence, which-

ever is appropriate (see § 1310.27 (rule 27)). If it

is not already on file with the Commission, it

must accompany the publication being filed.

49 C.F.R. § 1310.16(e) — When a distance guide is referred to.

(1) Only distance guides officially on file

with the Commission may be referred to. More

than one may be referred to provided the rate

tariff clearly specifies the circumstances under

which each guide will apply. All carriers parties

to distance rates referring to one or more dis-

tance guides must also be parties to each guide

referred to. An agent may refer to a distance

guide published in the name of another agent

for the account of participating carriers also par-

ties to the guide.

lawfully published tariff revisions effected con-

currently. In the event of failure to so revise the

applicable tariff or tariffs, the rates of such tariff

or tariffs will remain applicable until lawfully

changed. If the scope of the power of attorney is

questioned by any person, the document shall

be produced.

49 C.F.R. § 1312.30(c) - Determination of distances.

(1) A tariff containing distance rates shall

contain provisions for the determination of dis-

tances by -

(i) Publishing the distances between all loca-

tions covered by the distance rates in the tariff;

Compare those provisions with the replacement reg-

(ii) Referring to a map(s) attached to the tariff;

ulations now codified in Part 1312.

49 C.F.R. § 1312.4(d). Concurrences and powers of attorney.

Concurrences and powers of attorney shall

not be filed with the Commission. However, a

carrier may not participate in a tariff issued in

the name of another carrier or agent unless a

power of attorney or concurrence has been exe-

cuted. Absent effective concurrences or powers

of attorney, tariffs are void as a matter of law.

Should a challenge to a tariff be made on this

basis, carriers will be required to submit the

necessary proof.

49 C.F.R. § 1312.10 - Powers of attorney, concurrences,

transfer of agent.

(a) Powers of attorney .. . Powers of attor-

ney shall not be filed at the Commission, but

shall be maintained and produced if requested

by any person. Revocation or amendment of the

power of attorney shall be reflected through

(iii) Referring to a distance guide(s).

* * *

(4) Except as provided in Section

1312.13(e)(2), only distance guides officially on

file with the Commission may be referred to.

More than one may be referred to provided the

rate tariff clearly specifies the circumstances

under which each guide will apply. An agent's

tariff may refer to another agent’s distance

guide.

In reviewing the above-cited sections of Part 1312

and Part 1310, the following becomes readily apparent.

First, the ICC in Part 1312 clearly removed the require-

ment that carriers file their powers of attorney with the

Commission. Instead, the ICC added the penalty of void-

ing of the tariff in the event that a power of attorney was

not properly on file with the carrier and/or agent pub-

lishing a tariff in which a carrier desired to participate. In

effect, the Commission put the entire burden of enforce-

ment upon the carriers to ensure the execution of powers

of attorney by threatening to void their tariffs should

they fail to do so.§

The regulations governing distance rates themselves,

however, do not clearly call for the use of powers of

attorney and/or the requirement that carriers “partici-

pate” in distance guides. Rather, the ICC specifically

removed any requirement that carriers “be parties to” dis-

tance guides referred to when it promulgated 49 C.F.R.

§ 1312.30(c)(1)(iii) and (4). Thus, the ICC in Jasper Wyman

uses disparate parts of its regulations to effect a desired

result — the elimination of undercharges.

The comments in Revision of Tariff Regulations, “Sec-

tion 1312.31 DISTANCE RATES” demonstrate that the

ICC eliminated the requirement that carriers participate

in any referenced mileage guide:

No comments were received regarding this sec-

tion and the adopted rule is substantially the

same as that shown in our proposed rules. Due

to issues of copyright and general availability,

we will not mandate, for distance guides, who must

* It is highly questionable, however, whether the Commis-

sion has any right to abrogate its statutory responsibility to

ensure that carriers file their tariffs, and as a necessary part

thereof, their powers of attorney and concurrences by simply

threatening to void rates for failure to do so. Thus, the voiding

provision of 49 C.F.R. § 1312.4(d) exceeds the ICC’s statutory

authority to promulgate tariff regulations under 49 U.S.C.

§ 10762(b).

be parties or 1.C.C. filing of the publication.

1 L.C.C.2d at 425 (emphasis added).

That the new voiding provision was not intended to

be used to retroactively cancel filed rates is demonstrated

by the ICC’s own failure to enforce the regulations in this

manner against operating carriers despite its knowledge

of their transgressions. See App. 25-38 and Affidavit of

Don Norman, App. 7-9.

2. The Revised Regulations Eliminated The

Participation Requirement For Distance

Guides

There is simply no nexus between 49 C.F.R.

§ 1312.4(d) and 49 C.F.R. § 1312.30(c) which would justify

the voiding of mileage rates. The nexus is lacking because

there is no requirement that carriers participate in distance

guides referred to in their tariffs. This lack of a nexus is

revealed by comparing the proposed rule for 49 C.F.R.

§ 1312.30(c)(4) with the rule as adopted. The proposed rule

reads as follows:

(4) . . . Only distance guides officially on file

with the Commission may be referred to. More

than one may be referred to provided the rate

tariff clearly specifies the circumstances uncer

which each guide will apply. An agent's tariff

may refer to another agent's distance guide. All

carrier parties to distance rates referring to one or

more distance guides shall be parties to each distance

guide referred to. (emphasis added).

The final rule specifically removed the last sentence,

and therefore contained no participation requirement for

distance guides. According to the Official Comments,

these changes were made due to “copyright issues” and

the “general availability” of distance guides.’

* The HGCB Mileage Guide has become the standard refer-

ence book used by carriers and shippers in determining dis-

tances for mileage rates. Previously, there was a controversy

concerning the use of copyrighted material contained in the

distance guides published by the HGCB. See Petition for Inter-

vention and Reconsideration of Special Tariff Authority No. 82-1827

and Petition for Declaratory Order Concerning the Lawfulness of

Copyrighted Tariffs, No. 38886, unprinted decision (February 24,

1983) (“Copyrighted Tariffs”).

In Copyrighted Tariffs, the ICC made a conscious decision not

to get involved in the copyright issue. Recognizing that distance

guides contained copyrighted material, the Commission elimi-

nated any requirement that carriers be participants in distance

guides. This position is consistent with the aforementioned pur-

pose of the new tariff regulations of Part 1312 which was to

“ensure that they do not conflict with substantive law and pol-

icy.” However, should this Court accept Respondent's claim that

the provisions of § 1312.4(d) can be used to mandate participa-

tion in the HGCB distance guides in order for mileage rates to be

effective then the Official Comments, as well as the decision in

Copyrighted Tariff become meaningless.

Whether or not Overland was a “participant” in the HGCB

distance guides is thus irrelevant for the purposes of assuming

the validity of Overland’s tariffs. Rather, the only relevance

participation has concerns any possible copyright infringement

claim which could be made by the Household Goods Carriers’

Bureau. See Goodman, Commission Accelerates the Discharge of

Motor Carrier Undercharges, 60 Transportation Practitioners Jour-

nal 257, 258-60 (Spring 1993).

3. Participation In A Tariff Is Distinct From

Reference To A Distance Guide And Is

Treated Differently Under The Regulations

There is a clear distinction within the regulations

themselves between “participation” and “reference”. 49

C.F.R. § 1312.4(d) governs participation in joint tariffs;

whereas 49 C.F.R. § 1312.30(c) governs reference to official

distance guides. The difference between the plain English

meaning! of these two words, as well as the difference

between the context and regulatory intent of these two

sections could not be more obvious. The concept of “joint

rates,” “joint tariffs” «nd the use of another agent to

publish and file tariffs is consistent with “participation”

and the use of powers of attorney and concurrences.

Concerted or joint activity is what is involved in such

cases. To participate in joint rates requires the execution of

a power of attorney or concurrence.

On the other hand, the publication of tariffs based on

the distances between two or more points requires some

uniform means to determine the distances. Under the

provisions of 49 C.F.R. § 1312.30(c), this may be accom-

plished by reference to a distance guide. The carrier, by

referring to a distance guide in its tariff, holds out to the

public that the mileages contained in the guide apply. The

public has no interest or need to inquire as to whether the

carrier has “participated” in the guide by paying a fee to

the guide publisher. Thus, regardless of the fact that the

10 To “participate” means to “take part,” “to take part in” or

“to share in”. To “refer” means to “relate,” “to direct attention

usually by clear and specific mention.” Webster's Ninth New

Collegiate Dictionary (1984).

HGCB claims that “participation” is mandatory the regu-

lations only require reference. As the Commission noted

in Copyrighted Tariffs, as well as in other statements con-

cerning the use of copyrighted material, the HGCB’s

“participation” requirement is a private copyright issue

and has no bearing on the regulatory requirement for the

use of distance guides. See Affidavit of Don Norman,

App. 12-15.

In fact, a study of the regulatory history of the ICC’s

tariff participation requirements, led Leonard S. Good-

man to conclude that tariff voiding was not even consid-

ered by the Commission at the time that the regulations

were promulgated. See, Goodman, Commission Accelerates

the Discharge of Motor Carrier Undercharges, 60 Transporta-

tion Practitioners Journal, 257, 258-60 (Spring 1993). Mr.

Goodman noted:

There was not the slightest hint in 1984

[when the regulation was revised] that the Com-

mission might comb the filed concurrences and

powers of attorney to determine whether car-

riers who referred to distance guides in fact

participated in those guides. In fact, it had taken

steps to disassociate itself from any such pro-

cedure. It had eliminated the requirement for

filing all concurrences and powers of attorney,

stating quite openly, “These documents are not

used by us.” (1 I.C.C.2d at 408).

60 Transp. Practitioners J. at 264.

Mr. Goodman concluded that in Jasper Wyman, the

Commission had done an about face on the issue. He

reached this conclusion by comparing the 1984 explana-

tion to the ICC’s interpretation of the regulation. In 1984,

the Commission noted that “due to issues of copyright

and general availability, we will not mandate, for dis-

tance guides, who must be parties or ICC filing of the

publication.” 60 Transp. Practitioners J. at 265. However,

in Jasper Wyman, the Commission noted:

[We] meant simply that because of the pending

author a mileage guide, [we] would not preclude

any author from filing a mileage guide with the

Commission, nor deny any carrier’s right to par-

ticipate in any filed mileage guide. However, a

carrier election to participate in a filed mileage

guide of choice still required compliance with

power-of-attorney and participation regulations.

Jasper Wyman, 8 I.C.C.2d at 252 (emphasis by Mr. Good-

man). Thus, “[t]he two-sentence revision of the 1984 lan-

guage suggests that in 1992 the Commission is embarking

on the clearly troublesome path of retroactive rulemak-

ing.” 60 Transp. Practitioners J. at 265.

In sum, there is no nexus between the tariff voiding

provisions of 49 C.F.R. § 1312.4(d) and the rules govern-

ing distance guides set forth in 49 C.F.R. § 1312.30. To

find a nexus requires such a convoluted and unnatural

construction of these rules as to violate the aforemen-

tioned § 1312.1(c)(3) provision that “[t]hese regulations

are to be liberally construed. The absence of specific

approval of particular practices or provisions does not

imply disapproval of them”. (emphasis added).

Ill. THE ICC’S “VOID-FOR-NONPARTICIPATON”

RULE EFFECTS A RETROACTIVE TARIFF

REJECTION IN EXCESS OF THE ICC’S STATU-

TORY AUTHORITY AND IN VIOLATION OF

ATA

The ICC argued in Overland that its Jasper Wyman

decision did not retroactively reject Overland’s tariff

because an incomplete tariff filing cannot, by definition,

give rise to a filed rate. However, this is simply not

correct. As found by this Court in ATA, while the Com-

mission's ability to cancel the prospective effect of a tariff

is broad, the Commission’s ability to retroactively reject a

tariff is severely limited. The D.C. Circuit correctly noted

this distinction and also addressed the ICC’s argument

that its ruling did not retroactively reject the tariff

because the tariff was “never in effect.” The D.C. Circuit

considered and properly rejected the ICC’s faulty logic,

noting that the Commission cannot “slip” the limitation

on its ability to retroactively reject by simply claiming

that under the rule the tariff never took effect. 996 F.2d at

360-61. When the Commission accepts a tariff for filing

and later claims that the rate contained in that tariff was

never effectively on file, the Commission is effecting a

retroactive rejection of that tariff. Claiming that the tariff

was never “effective” does not change the impact of the

ICC’s action.

IV. THE ICC’s VOID-FOR-NONPARTICIPATION

POLICY DOES NOT MEET THE ATA STANDARD

FOR PERMISSIBLE RETROACTIVE REJECTIONS

In ATA, this Court held that the Commission may

effect a retroactive rejection only if the remedy “furthers

a specific statutory mandate . . . and is directly and

closely tied to that mandate.” 467 U.S. at 367. The Com-

mission claimed (and the K-Mart court agreed) that the

void-for-nonparticipation rule furthered the statutory

“mandate” to prescribe the information which must be

included with tariffs. See 49 U.S.C. § 10762(a)(1); Over-

land, 996 F.2d at 362. The D.C. Circuit considered and

rejected the same argument. “We rather doubt that

§ 10762(a)(1)’s permissive authorization for the Commission

to require carriers to include other unspecified informa-

tion is the type of ‘specific statutory mandate’ the Court

had in mind in ATA.” 996 F.2d at 362 (emphasis added).

This conclusion was adopted by the Seventh Circuit in

Brizendine, 4 F.3d at 464 (“We also question whether such

a goal [the requirement of participation] regardless of its

validity, would be backed by a specific statutory mandate

of the kind [ATA] requires.”) and the Sixth Circuit in P-Y

Transportation, 3 F.3d at 970 n.2.

In fact, the D.C. Circuit found that the Commission’s

void-for-nonparticipation rule actually hinders the speci-

fic statutory mandate of the filed-rate doctrine. The D.C.

Circuit noted that while rigid adherence to the filed rate

may sometimes render harsh results, the harshness of the

filed rate doctrine is justified in order to further the

primary goal of the Act, i.e. the prevention of discrimina-

tion. Conversely, the ICC’s void-for-nonparticipation rule

actually frustrates that statutory goal. “That purpose is

hardly served, indeed it is undermined, by an ICC policy

that would make the disclosed rate unreliable . . . ” 996

F.2d at 361.1! The D.C. Circuit thus appropriately recog-

nized the nonsensical argument made by the ICC “that

retroactive rejection (that is deviation from the filed rate)

is necessary to promote the filed rate doctrine.” 996 F.2d

at 361 n.6. In reality, all that is promoted by retroactive

rejection is adherence to secret, negotiated rates.

V. THE DAVIS AND BERWIND-WHITE OPINIONS

PREVENT TARIFF IRREGULARITIES FROM

VOIDING A CARRIER’S TARIFF

That the ICC has the authority under 49 U.S.C.

§ 10762(e) to “reject a tariff submitted to it by a common

carrier .. . if that tariff violates . . . [a] regulation of the

Commission ... ” is not disputed. Overland’s tariff was

on file with the ICC and was not rejected. Thus, Over-

land’s tariff cannot be disregarded or treated as nonexi-

stent merely because of some element of substantive

unlawfulness in the rate or some irregularity in tariff

filing formalities. Instead, so long as the shipper is

charged no more than the tariff rate on file with the ICC,

the filed rate must be enforced. Davis v. Portland Seed Co.,

't Not being constrained by the hobgoblin of consistency

the Commission sometimes recognizes the importance of

reliance upon tariffs it has accepted for filing. Reconsideration of

Special Tariff Authorities Authorizing The Publication of Customer

Account Codes in Tariffs, No. 40888, unprinted (served September

1, 1993). In fact it notes there that even tariffs which fail to

“comply with the statutory disclosure requirements” must be

enforced if on file at the agency. Of course, the ICC in that

decision was eliminating undercharge suits.

264 U.S. 404 (1924); Berwind-White Coal Mining Co. v.

Chicago & E. R. Co., 235 U.S. 371 (1914); see also, Genstar

Chemical Ltd. v. Interstate Commerce Comm'n, 665 F.2d 1304

(D.C. Cir. 1981), cert. denied, 102 S.Ct. 1750 (1983).

In Davis, this Court recognized “ . . . that the carrier

violated the statute by publishing the lower rate for the

longer haul without permission. . . . ” The Court nev-

ertheless ruled that “ . . . mere publication of the forbid-

den lower rate didnot wholly efface the higher

intermediate one from the schedule and substitute for all

purposes the lower one... . ” 264 U.S. at 424-25. In

Berwind-White, Chief Justice White’s memorandum opin-

ion affirmed the lower court's decision finding the rail-

road’s submission of a letter to the ICC stating that its

demurrage charge would be $1.00 per day was suffi-

ciently formal to comply with the law. “The documents

were received and placed on file by the Commission

without any objection whatever as to their form, and it is

certain that, as a matter of fact, they were adequate to

give notice.” 235 U.S. at 375. More recently, the D.C.

Circuit in Genstar summarized this Court’s holdings in

Berwind-White and Davis:

The principle in these cases is that where the

shipper has been charged no more than the rate

reflected in the tariff on file, the remedy for any

unlawfulness or irregularity is measured not by

looking to some other tariff but by the harm, if

any, caused by the unlawfulness or irregularity.

665 F.2d at 1308.

In Genstar, the carrier had improperly filed an

increase in its tariff rates by failing to include the proper

notations to its increase in rates (which notations were

required by the ICC’s regulations). The D.C. Circuit held

that a tariff on file with the Commission, and never

rejected cannot be ignored simply because of “some ele-

ment of substantive unlawfulness in the rate.” 665 F.2d at

1308. The D.C. Circuit decision in Overland correctly notes

(directly in line with the Genstar opinion) that not all

defects warrant complete abrogation of the carrier’s tar-

iff, but rather the ICC should fashion a remedy more

closely related to the harm caused. 996 F.2d at 361-62. See,

e.g., Genstar, 665 F.2d at 1309-10.

Finally, the D.C. Circuit recognized that even if a

shipper had noticed that the carrier was not a participant

in the Mileage Guide, it hardly warrants ignoring the

carrier’s entire tariff. The ultimate purpose of the ICA is

to prevent price discrimination, and the policy espoused

by the ICC hinders rather than furthers that goal.

The carriers and the shippers are bound by that

which is openly disclosed so as to prevent price

discrimination. That purpose is hardly served,

indeed it is undermined, by an ICC policy that

would make the disclosed rate unreliable unless

the shipper took the extraordinary step of deter-

mining whether a carrier's tariff filing was

defective because its power of attorney was not

up to date.

Overland, 996 F.2d at 361. Amicus submits that the D.C.

Circuit’s opinion furthers the purposes of the Interstate

Commerce Act, and the K-Mart decision does not.

CONCLUSION

For the reasons set forth herein, and in Petitioner's

brief, Amicus respectfully requests that this Court reverse

the decision of the Third Circuit and order such other

relief as it deems appropriate.

Respectfully submitted,

JoserpH L. Sremvrecp, Jr.*

Rosert B. WALKER

JouN T. StecLer

Scott H. Lyon

Sims, WALKER & SreINFELD, P.C.

1275 K Street, N.W., Suite 775

Washington, D.C. 20005

(202) 842-1741

Attorneys for Amicus Curiae,

Overland Express, Inc.

*Counsel of Record

App. 1

BEFORE THE

INTERSTATE COMMERCE COMMISSION

Overland Express, Inc. Docket 40510

Jasper Wyman & Son

Et Al Petition for

v. Declaratory Order -

Certain Rates and

Practices of Overland

Defendant Express, Inc.

Embracing:

Case Nos. IP 90-499-C,

IP 90-506-C; IP 90-582-C;

IP 90-641-C; —— IP 90-787-C;

IP 90-926-C

Complainant

Jasper Wyman & Son

AFFIDAVIT

DON H. NORMAN

DATE: July 25, 1991

My name is Don H. Norman. | am President and

Owner of Don H. Norman Associates, Inc. (DNA), whose

executive office and principal place of business is located

at 8301 Greensboro Drive, Suite 1190 in McLean, Virginia

22102, and additional offices maintained within the Inter-

state Commerce Commission Building, Room 4330, in

Washington, D.C. Don H. Norman Associates is a trans-

portation consulting firm, specializing in rate and tariff

research and rate information dissemination involving

motor carriers and railroads as well as preparation and

publication of tariffs for surface transportation com-

panies. The firm compiles, publishes and files thousands

App. 2

of tariff pages annually with the Interstate Commerce

Commission (ICC or Commission) and other regulatory

agencies.

The research and watching service aspects of the firm

are personally monitored and reviewed by me. These

services include the preparation of pricing initiatives and

daily briefings to carrier and shipper interests from our

office within the Interstate Commerce Commission. |

have been afforded the opportunity to review and

research virtually every conceivable type of tariff initia-

tive filed with the Commission for the past 35 years.

Since the inception of the firm, I have also been involved

in the rate research and tariff publishing activities of

DNA. I have prepared and advanced verified statements,

affidavits and testimony as an expert witness before the

Interstate Commerce Commission and the courts.

I have been requested by the estate of Overland

Express, Inc. to review the Petition for Declaratory Order

in Docket No. 40510 (Jasper Wyman & Son, et al. -

Petition for Declaratory Order - Certain Rates and Prac-

tices of Overland Express, Inc.) as filed by Mr. William J.

Augello, et al. I have also been asked to determine if a

nexus exists for application of mileages to filed rates of

Overland Express, Inc., in their tariffs ICC OVLA 200,

200-A, 202, 202-A, 203 and 203-A, and to explore the

practices and applicability provisions for other carriers

referencing the Household Goods Mileage Guide and/or

other publications as a methodology for assessing miles

to filed rates with the Interstate Commerce Commission.

App. 3

1. IF THE COMMISSION WERE TO FIND THAT

HGB MILEAGE GUIDE 100-B HAS NO APPLI-

CATION FOR FILED RATES IN OVLA 202 AND

202-A AND WERE VOID AS A MATTER OF

LAW, THEN THE MILEAGES WOULD BE

REQUIRED TO BE COMPUTED FROM THE

REMAINING MILEAGE GUIDE APPLICATION,

NAMELY HGB 105.

At the outset, a clarification must be made to Mr.

Augello’s statement at Page 3 of the original petition filed

by Jasper Wyman & Son, Et Al., which reads, “As the

Commission well knows, the Household Goods Mileage

Guide No. 100 is completely distinct from Household

Goods Zip Code Mileage Guide 105.” The implication by

Petitioners is that somehow in the absence of proper

reference to Mileage Guide 100, reference to Mileage

Guide 105 could not be utilized to determine mileage

rates. Yet, the Household Goods Carriers’ Bureau pub-

lishes two mileage-based guides for application of provi-

sions for mileages in connection with rates filed at the

Commission. Carriers routinely reference one or both

guides as a methodology for computing mileages to filed

rates. Overland Express, in tariffs 202 and 202-A, did in

fact make specific reference to both mileage guides effec-

tive with February 6, 1985. Exhibit “1”

The Commission has recognized that these two mile-

age guides conflict with one another and if a conflict

exists between the two, a shipper is entitled to that inter-

pretation which will render to him the greater benefit. As

an example, see Informal Opinion of Mr. Lawrence C.

Herzig, Section of Rates and Informal Cases,

RCC-19845-88, Exhibit “2”.

App. 4

It follows, then if the Commission completely

removes one of the mileage guides from application, the

conflict ends and the remaining mileage guide must

apply, despite whether it would produce higher or lower

mileages than the now rejected guide. Similarly, when-

ever a carrier restricts application of one guide over

another to prevent a conflict between the guides, the

restriction would be rendered meaningless by the striking

of one guide. The following facts highlight the appli-

cability of HGB 105 in the event HGB 100 is stricken.

Overland Express, Inc. had effective participation in

Household Goods Mileage Guides by these outlined facts:

1. Overland Express, Inc. did execute and file a

full power of attorney with Household

Goods Carriers’ Bureau, Inc., Agent for par-

ticipation in one or more of their Mileage

Guides. (This power of attorney was subse-

quently restricted by someone to apply only

to Household Goods Mileage Guide No.

105.)

2. Household Goods Carriers’ Bureau pub-

lishes two mileage based guides for applica-

tion of “mileages” used by Overland

Express, Inc., in the determination of the

miles for distance mileage commodity rates.

3. Overland Express was listed as a participat-

ing carrier to one of these guides in Supple-

ment 13 to ICC HGB 101-B effective

December 28, 1984. It therefore has filed an

appropriate power of attorney with House-

hold Goods Carriers’ Bureau, paid participa-

tion fees, and has obtained tariff compliance

by its agent, Household Goods Carriers’

Bureau by the filing of Supplement 13 to

App. 5

ICC HGB 101-B, effective December 28,

1984.

Overland Express, Inc. filed with the Inter-

state Commerce Commission, tariff ICC

OVLA 202 (1 RP 131) and Original Page 125,

202-A, effective February 6, 1985 and Sep-

tember 10, 1986. Exhibit “1” Item 25 of that

publication under Governing Publications

lists both Household Goods mileage based

guides. The Mileage Guide HGB 105 is

restricted to apply only when specific refer-

ence is made thereto.

As an example, a review of ICC OVLA

202-A reflects the application of, and the

determination of, mileage by the use of

Mileage Guide 105 in Item 6200 on Original

Page 373, ICC OVLA 202-A. Exhibit “3”

The referencing of two Mileage Guides in

the Governing Publications required the

restriction of one Guide; (1) (applies only

when specific reference is made hereto) to

avoid conflict in mileage application. Exhibit

“wy”

Household Goods Carriers’ Bureau, Mileage

Guide ICC HGB 105-A lists as a Governing

Publication, HGB 100-B. Exhibit “4”

Section 6 (distance commodity rates applica-

tion, Original Page 387) and Section 8 (dis-

tance commodity rates application, Original

Page 389) to ICC OVLA 202-A provides:

Exhibit “5”

“Mileage for the rates shown herein are

obtained from governing Mileage

Guide, see item 25.”

App. 6

The framer of Overland Express, Inc., ICC OVLA

202-A, recognized the conflict between the two mileage

based guides and restricted ICC HGB 105 to apply only

when specific reference was made thereto. Since House-

hold Goods tariff 100-B was intended to provide applica-

tion for other provisions in this tariff, the restriction of

ICC HGB 105 was necessary.

It is a well-settled principle of tariff interpretation

that the intention of the framers of the tariff is to be

considered, and if all of the pertinent provisions of the

tariff considered together may be said to express the

intention of the framers under a fair and reasonable con-

struction, that intention must be given effect. Forbes &

Sons Piano Co. v. A.G.S.R.R. Co., 118 I.C.C. 185, 186 (1926),

and Peterson Biddick Co. v. Chicago B & O R Co., 15 L.C.C.

376, 377 (1929) and No. 40417 D.W. Davies & Co., Inc. vs.

Express Freight Lines, Inc., ICC Decision decided May 6,

1991.

If, in fact, ICC HGB 100-B is determined to be a

nullity, the only remaining governing Mileage Guide con-

tained in Item 25 would be ICC HGB 105, and the NOTE

(1) (Exhibit “1”) applies only when specific reference is

made hereto would have no force or effect. Application of

mileages for rates shown in Section 6 and Section 8,

would be obtained from the remaining governing Mile-

age Guide (see Item 25), namely, 105. This would require

the re-rating of all undercharges on the basis of mileages

contained in Household Goods tariff 105.

App. 7

2. EVEN IF THE ICC FINDS ALL MILEAGE RATES

WHICH REFER TO HGB 100 VOID, OVERLAND

WOULD STILL BE ENTITLED TO COLLECT

THE TARIFF CHARGES BASED UPON THE

RATES IT HAD IN EFFECT ON MAY 22, 1983,

THE DATE OVERLAND WAS OFFICIALLY

STRICKEN FROM PARTICIPATION IN HGB 100.

If for the first time in connection with distance guides,

the Commission were to make a finding that these provi-

sions are void under 49 C.F.R. 1312.4(d) as a matter of

law, then prior filed rate provisions maintained by Over-

land would be re-established as effective filed rates. This

would be consistent with Commission practices in the

rejection of tariff publications or suspension proceedings,

which hold in force tariff filings purported to be can-

celled by the filed tariff.

3. BASED UPON THE COMMISSION’S HISTORIC

ACCEPTANCE OF DISTANCE RATES FILED

WITHOUT PARTICIPATION IN HGB 100 AND/

OR IN VIOLATION OF 49 C.F.R. 1312.30(c), IT IS

NOT REASONABLE TO CONCLUDE 49 C.ER.

1312.4(d) WOULD RESULT IN THE VOIDING

OF DISTANCE RATES.

49 C.F.R. 1312.4(d) which petitioners argue requires a

carrier that uses a Guide of an agent, to file a concurrence

or power of attorney with the issuer of that Guide was

gratuitously added to the promulgated regulations at 49

C.F.R. 1312 to protect these types of publications when

the requirement to file powers of attorney and concur-

rences with the Commission was discontinued in their

revised regulations. Since 1984 the Commission has not

App. 8

made any review of publications received for filing cover-

ing this requirement. Compliance is only brought about

by the enforcement of copyright provisions by the author

or publisher of these Guides. The provisions of 49 C.ER.

1312.4(d) did not appear in the prior regulations at 49

C.F.R. 1310, nor do they now appear in new regulations

published by the ICC at 49 C.RR. 1314.

I assume that the provisions of 49 C.F.R. 1312 were

lawfully promulgated under the requirement of the

Administrative Procedure Act. However, inquiry to the

Commission for review of docket 37321 to verify compli-

ance with the Administrative Procedure Act has been

unsuccessful. The file is missing from the Commission’s

records and as of the date of this statement, they have

been unable to locate the document. Surely if 49 C.FR.

1. 12.4(d) was promulgated to void distance rates, the ICC

would have rejected at least a few such improperly filed

rates during the past seven years. Yet, my daily review of

Commission decisions fails to reveal even a single such

rejection of an improperly filed mileage tariff.

As an example, a study of filings for the months of

April and May, 1991, with the Commission shows that

more than 230 carriers (Exhibit “6”) filed tariffs that

contain rates which reference the Household Goods Mile-

age Guide as a methodology for determining miles appli-

cable to these filed rates. These publications have been

accepted and passed to the tariff files without criticism or

rejection by the ICC even though as initially filed they

did not have effective participation in the Household

Goods Mileage Guide which they reference as a govern-

ing publication.

App. 9

The rampant lack of enforcement by the Commission

of any requirement that carriers comply with the need for

effective participation in the Household Goods Mileage

Guide is further supported by the statement made by

Joseph Harrison, President of the Household Goods Car-

riers’ Bureau, that three years ago, only 40% of the com-

panies using Mileage Guide 100 had a power of attorney

on file (See Traffic World, June 17, 1991, page 33, Exhibit

“7”). Based upon this statement, I believe that over 15,000

carriers would have ineffective mileage rates should Peti-

tioner’s view of 49 C.F.R. 1312.4(d) be accepted by the

Commission. This figure is based upon the listing in the

participating carrier tariff HGB 107 of approximately

10,000 carriers in 1987. If this represents only a 40%

compliance figure, the total number of carriers using

HGB 100 would be approximately 25,000 leaving 15,000

carriers who improperly referred to the mileage guide by

failing to have an effective power of attorney on file with

the Household Goods Carriers’ Bureau.

My daily review of the mileage based tariffs filed by

carriers with the ICC also indicates that the Commission

since 1984 no longer provides any oversight or review for

applicability or methodology for applying mileages to

filed rates at the ICC. The Commission accepts routinely

improper (i.e. not authorized by 49 C.F.R. Section 1312.30

(g)) methodologies for determining mileage in connection

with filed rates. The following recent filed examples are

typical references:

1. Distances or mileages will be determined by use

of odometer reading at origin and destination

(not filed with ICC) Exhibit 8: Little Bear Oil

Company, ICC LBOL 400

App. 10

2. Mileage Guide — current Rand McNally Road

Atlas (not filed with ICC) Exhibit 9: Doug

Wheadon Trucking, ICC WHDG 300

3. The latest edition of the Official United States

(3)

App. 11

P.C. *Miler Practical Miles Version 5.00 (not

on file with ICC)

Exhibit 15: Cardinal Transport, Inc.

ICC CRDT 4859-D

Highway Map issued by Rand McNally & Co. (4) Mileage Guide: Information Software ICC

aun toe cee 10: Don’s Mobile ISIC 101 (participation not on file with ICC)

es,

Exhibit 16: J. V. Motor Lines, Incorpo-

4. Rand McNally’s Road Atlas (not filed with rated

ICC) Exhibit 11: B.R. James Trucking, Inc. ICC JVML 223-C

ICC JMBR 200 (5) Mileages to be determined by the Rand

5. Mileage map as published by Rand McNally McNally Milemaker (not on file with ICC)

(not filed with ICC) (See Exhibit 12, Ricsons, Exhibit 17: Chief Freight Lines, Inc.

Inc., ICC RCSO 400-A). ICC CEFG 4100 (i RP 2)

O iso discl ne (6) For Mileage: ALK Associates, Inc. ICC

déjen mma 7 vr aa eon none " pe mee ALKP 1001-B and ICC ALKP 1000-C (Alter-

, facie ote a0 4 a 7 nen OF ee nate and Shortest Route) (participation not

age rPin geen with wed : rates at the ICC. As an on file with ICC)

example, the following publications have also been ond :

, ~ Exhibit 18: Centennial Express, Inc.

received and accepted for filing by the ICC, which refer- ICC CXIN 200-A (Original

enced electronic or computer applications for mileage Page 4)

and no participating carrier link is on file: ' , ,

(7) Mileage Guide - Prophesy Pro Driver Mile-

(1) P.C. Miler issued by J. J. Keller & Associates age System issued by Information Software,

(not on file with ICC) Inc., Grandy, CT (participation not on file

with ICC)

nae ao eoneneN, Ste. Exhibit 19: Transportation Resources &

Management

(2) Mileage Guide ICC ALKP 1001-A issued by BCR TENS 200-A (9 RP 2)

ag ra a Inc. (participation not on The Commission has provided space in their public

pi me tariff file for the positioning of terminals for access by the

Exhibit 14: MHF, Inc. public of mileage to these data bases. There are, however,

ICC MHFI 200 (1 RRP 2) no filed tariffs for the aforementioned carriers that reflect

participation to these data bases. Inquiry into the data

App. 12

base, in some instances, may provide some carrier partici-

pation (Exhibit 20) but prior participating carrier listings

were in transmittal form (see ALK Associates, Inc. Trans-

mittal 89-0340) and are different standards than those

which the Commission is applying to Overland Express,

Inc. I believe by the Commission’s informal opinions

holding that Overland Express, Inc. does not have effec-

tive application of mileages to filed rates, they are estab-

lishing a different standard for Overland than they apply

to other carriers.

4. THE COMMISSION DOES NOT PRESENTLY

ENFORCE PROVISIONS OF 49 C.ER. 1312.4(d)

OR 1312.27(e).

Based upon my daily oversight of carriers filings

with the ICC, I have found that carriers routinely refer-

ence, and the ICC accepts for filing, tariffs which do not

contain a participating carrier list and therefore no

powers of attorney are issued. The Standard Transporta-

tion Commodity Code tariff, ICC STCC 6001-S (Exhibit

21) issued by Western Trunk Line Committee, Agent, et

al., is such an example and is widely used in lieu of

participation in the National Motor Freight Classification

for commodity identification. The technical committee

membership of the publication is made up of representa-

tives from railroads and motor carriers; the National Rail-

road Freight Committee, the National Motor Freight

Traffic Association, Railroad and Motor Carrier Associa-

tions and Conferences including the National Industrial

Transportation League, along with U.S. Government Liai-

son Membership. If the Commission’s “standards” for

App. 13

referencing governing publications for effective applica-

tion to filed rates requiring an effective power of attorney

and a participating carrier tariff is to be applied, then

thousands of tariffs in addition to mileage based tariffs

are subject to be stricken from the Commission’s files and

may be void as a matter of law. Compliance with 49

C.F.R. 1312.27 (e) requires a carrier to participate in any

governing tariff that it refers to in its publication. Yet,

here we have a publication which does not require or

provide for participation in a tariff on file with the ICC

by waiving inclusion of a participating carrier list in the

publication and by not providing a separate participating

carrier's tariff.

Based upon the ICC’s acceptance of the STCC tariff,

which did not require a participating carrier's tariff and

based upon the fact that the Commission has accepted

literally thousands of carrier tariffs that have mileage

rates which refer to HGB 100 without being listed as

“participating carriers” and without later rejecting a sin-

gle such tariff, it is inconceivable that the Commission

intended 40 C.F.R. 1312.4(d) to allow the retroactive rejec-

tion of mileage based rates.

Rather, I believe it was the Commission's intent to

not interfere with the copyright provisions of similar

classifications or mileage application guides which

prompted the inclusion in 49 C.R.F. [sic) 1312.4(d) the

provisions for Non Applicability of Rates as a Matter of

Law. This way the ICC would not give its “regulatory

blessing” to the inclusion of copyrighted materials in

carriers’ tariffs.

App. 14

The issue of powers of attorney to filed rates with the

ICC has always been one of copyright and equity, not

tariff applicability. Prior to the promulgation of tariff

rules at 49 C.F.R. 1312 in 1984, there was no provision for

the voiding of rates filed without powers of attorney.

Also, it would not be equitable for a non-participating

carrier to take advantage of the publication expense of

the Household Goods Carriers’ Bureau and/or Rand

McNally in the publication of the Household Goods Mile-

age Guide while declining to share in that expense. Con-

sequently, in return for filing the Mileage Guide with the

ICC on behalf of participating motor carriers, the House-

hold Goods Carriers’ Bureau requires the payment of a

participation tee and the execution of a power of attorney

which will ensure that all carriers who benefit from the

joint guides share in the expenses of its compilation and

publication.

The question of participation in the Household

Goods Mileage Guide is simply one of copyright and

equity, and the Commission has long recognized this.

Since the Commission has abdicated all oversight in con-

nection with this requirement, compliance is brought

about by the enforcement of copyright provisions by the

author or publisher of these Guides.

In the ICC decision No. 3886, Petition for Interven-

tion and Reconsideration of Special Tariff Authority No.

82-1827, and Petition for Declaratory Order concerning

the lawfulness of copyrighted tariffs - served March 2,

1983, the Commission said, “The reopening of Special

Tariff Authority No. 82-1827 granting symbolization relief

denied. Declaratory Order and Rulemaking concerning

the propriety of filing copyrighted tariffs denied.” The

App. 15

Commission went on to say “regardless of our views on

copyrighted tariffs are not sufficiently compelling to war-

rant issuance of the proposed Declaratory Order. Copy-

righted tariffs are being published and filed, kept open

and made accessible to the public consistent with the Act

and their regulations, including those relating to the

transmission of publications to subscribers. Therefore, we

shall refrain from acting until the courts have resolved

the issues relating to the validity of copyrighted tariffs.”

The Commission, in 1981 under Special Tariff

Authority No. 81-2583, Contract Carriers Schedule Refer-

encing to Bureau Tariffs for Rates, granted to Commercial

Lovelace Motor Freight, Inc., the right to reference exist-

ing rate bureau rates and tariffs in a proposed schedule of

actual rates and charges filed with the Commission with-

out the execution of powers of attorney or concurrences

to those publications. Exhibit 22.

In that April 14, 1981 decision by the Commission,

Acting Chairman Alexis and Commissioners Gresham,

Clapp, Trantum and Gilliam said, “Reference to existing

rate bureau rates and tariffs is permissible. However, we

have not undertaken a thorough analysis of the possible

antitrust issues raised by the proposal and we reach no

conclusion whatever as to the property rights in the

tariffs which are being infringed, as this is a matter for

the courts and not for the Commission.”

CONCLUSIONS

I conclude that a proper nexus exists between House-

hold Goods Carriers’ Bureau, Inc., Agent’s Mileage

App. 16

Guides and Overland Express, Inc. tariffs OVLA 202 and

202-A either through reference to HGB 105 or by the fact

that the requirements of 49 C.ER. 1312.4(d) are one essen-

tially of copyright and not of applicability to a determina-

tion of mileage for filed rates. The Commission's repeated

acceptance of mileage base rates by carriers who do not

Participate in Mileage Guide 100 proves the issues of

Participation in Household Goods’ mileage guide are

essentially those of a copyright controversy and, as the

Commission has stated on a number of occasions, is to be

settled by the Courts to enforce issues of equity to copy-

right.

AND FURTHER AFFIANT SAYETH NOT.

VERIFICATION

I have read the foregoing statement and the contents

thereof are true and accurate to the best of my informa-

tion, belief, and knowledge.

/s/ Don H. Norman

DON H. NORMAN

Subscribed and sworn to before me this 25th day of

July 1991.

/s/ Jessie Ray Hodge

Notary Public

My Commission Expires: September 30, 1995

App. 17

MOTOR COMMON CARRIERS MAKING TARIFF

REFERENCE TO HOUSEHOLD GOODS CARRIERS’

BUREAU MILEAGE GUIDE WITHOUT PARTICIPATION

CARRIER NAME

A Victory Limousine Service

A.O.T. Limousine

AAA South Central New

England

AAA Transportation, Inc.

Air Freight Specialsits [sic], Inc.

Alcones L. A. Express, Inc.

All American Carriers, Inc.

Alliance International

Allied Towing Service, Inc.

Alvan Motor Freight, Inc.

America’s Carriers, Inc.

American Asphalt Products, Inc.

American Marine Transport, Inc.

Arab Cartage and Express Co.,

Inc.

Atlantic Transfer, Inc.

Atwood Trucking, Inc.

B & M Consolidation, Inc.

B & R Services

B-Line Auto Transporting

B.H.S. Environmental, Inc.

Baldwin Transfer Company, Inc.

Baltzell’s

Beattie & Son Trucking, John

Bevel’s Inc.

Blacksburg Limousine Service

Bost Trucking, Inc., R. Wayne

NUMBER

234421

239387

237424

239211

45875

239817

241544

167509

1395

185817

165548

177746

181641

164237

239881

241851

155689

239703

198096

219670

234550

2164156

217789

ALPHA

CODE

AVCL

AOTQ

ASOH

AAPH

AFSO

ALNP

AAJY

ANI

ALDW

ALVN

AIIE

AAPP

AMNP

ARAB

ASDD

ATWT

BMCA

BRSS

BQLN

BHSI

BWIF

BTZL

BJSO

BVLS

CYJT

BSOR

App. 18

Brandt Construction Co.

Braun Milk Hauling, Inc.,

William F.

Byrum & Son, Inc., A. T.

Byrum Trucking

C & H Transfer/Janitorial, Inc.

C. D. J. Trucking, Inc.

Calhoun Transportation Service,

Inc.

Canyon State Charters, Inc.

Carolina Transit Lines of

Charlotte, Inc.

Central Blacktop Co., Inc.

Chief Freight Lines, Inc.

Choctaw Express, Inc.

Chris Truck Line

Christopher, Inc. R. A.

Clark Express, Inc., B. L.

Colonial Freight Warehouse Co.

Combined Express, Inc.

Consolidated Services

Cook’s Express, Inc.

Coonrod Wrecker and Crane

Service

Corbett, Cliff

Cotton Express, Inc.

Courtesy Cartage Co.

Crussin Bus Tours and Charters

Curly’s Towing

Curtin, Austin

D & M Distribution Service, Inc.

Dayton Freight Lines, Inc.

Direct Transit, Inc.

Dodd, William L.

Dommer, Inc., Elroy

Dos Transportation

233644

158715

241550

239530

190130

154108

239204

133336

237865

176315

238628

229289 ©

184326

164779

143852

238203

215685

150251

240766

238801

240331

234787

189528

240733

239317

152656

236321

BSCO

BWMH

BYRM

BYMT

CNHJ

CDJT

CAHP

CYNC

CTLE

CBCH

CEFG

CEXK

CSKL

CKBE

CFWH

CXIB

CDDV

CKEP

COOW

CBFF

CNXE

CUGQ

CRUB

CUOW

CUAN

DMDB

DAFG

DIRN

DWIL

DOET

DOSP

App. 19

Double Diamond Distribution,

Inc

Dowd Trucking Corp.

Duffy Bros., Inc.

Dunworth, Inc., Jim

Emshoff, Vernon

Encore Transport, Inc.

Eog Freight System, Inc.

ESI Trucking Incorporated

Excellent Transport, Inc.

Falcon Express, Inc.

Ferguson & Son’s, W. L.

Fleetway Transport

Foreway Transportation, Inc.

Free Spirit Transport, Inc.

Freight Direct, Inc.

Freight Link New Jersey, Inc.

Freight Sales, Inc.

Friendly Freight Forwarders, Inc.

Galil Moving & Storage, Inc.

Gemini Transit, Inc.

Genso Cartage Co., W. A.

Georgia Southern Transportation,

Inc.

Giorgio Foods, Inc.

Gladden Trucking Co., Inc.

Golden West Travel, Inc.

Goodin Bros., Inc.

Grant, Inc., Rich

Grayline Tours of Dallas/Fort

Worth

Green Arrow, Inc.

Green Express, Inc.

Gulf Coast Transport, Inc.

Gwen Tours, Inc.

241491

240121

53989

239726

236680

239492

198325

240277

239986

238594

146976

241442

151822

232394

180465

236599

237819

233608

156849

193860

241422

152843

176100

195515

242429

DBDD

DWDK

DUFB

DNWR

EMSH

ENCR

EOGF

EXSI

EXLP

FEXI

FWLS

FWAP

FOWN

FSPT

FDIT

FLNJ

FSIP

FFRF

GLIV

GEIN

GWAC

GASR

GRGO

GLDM

GWVL

GOOB

GRRH

GDFW

GAOI

GNxI

GUCT

SCAC

App. 20

H & S Sand & Gravel Haulers

Company, Inc.

Hayes & Son’s Ltd., R. J.

Hendricks, Aaaron [sic]

Hendrix Transport, Inc.

Hicks Trucking, Inc.

Hieden Feed & Supply, Inc.

Hobson Transfer

Hoffman, Richard J.

Holman Transportation, Inc.,

D. L.

Homer Trucking Inc.

Howard, Inc., Lewis C.

Huma Hauling

Hushpuppy Express

Hyland Horse Transportation

I. A. T., Incorporated

I. L. O. Carriers, Inc.

Industrial Freight System, Inc.

Inland Express Lines,

Inc6rporated

Interboro Messenger Service

Intercity Transport, Inc.

Interstate Trucking Corporation

of America '

lowa Tank Lines, Inc.

Itz-Ohlson Transport, Inc.

J. A. Trucking, Inc.

J.D.R. Oilfield Services, Inc.

J.K.C. Express

Jacobs, Tim

JHM Enterprises, Inc.

Jim’s Hauling, Inc.

Jordan Bus Service, Inc.

K & R Delivery, Inc.

Keelen and Sons, Inc., Pat

233659

240581

239196

238403

238046

234767

167718

241843

216765

235503

206953

240116

239923

240368

239612

120822

240376

207468

240943

182834

239966

180904

191789

236954

241104

230040

240131

HHSG

HRJS

HDRK

HNXT

HCKK

HFNS

HBAT

HERJ

HDLP

HMRK

HWLC

HMAH

HSPY

HYHR

IATI

ILOC

IDRL

IEXL

IBMS

ITIX

ITCA

ITLD

ITZO

JAWN

JDRO

JKCE

JCBS

JHME

JMHI

JBSE

KNRQ

KPNS

App. 21

Kindersley Transport Ltd.

L & K Industries, Inc.

Laughlin, Transit, Inc.

Lemmond’s Marine

Leonardo Truck Lines, Inc.

Logistics Services, Inc.

Loomis Transportation

Los Angeles Yuma Freight Lines,

Inc.

M & M Cartage

M.S.L. Leasing Company, Inc.

Mansun North, Inc.

Matthews Trucking, Gaylord L.

McGregor Cartage Co., Inc.

Midatlantic Transport

Corporation

Midwest Delivery

Mike’s Moving & Trucking Inc.

Mississippi Transport, Inc.

Modern Transportation Company

Montgomery Trucking

Morris Trucking, George

Morristown Driver’s Service, Inc.

Morton Grove Transport System,

Inc.

Murphy Transportation, Inc.

Myers Group (U.S.), Inc., The

Nelson Trucking, T. P.

New Cops, Inc.

NK Parts Industries, Inc.

Noramco Transport Corp.

Norris Grain & Transportation,

Inc.

Oasis Enterprises, Inc.

Ottawa Country Farm Supply

Over the Hill Transport, Inc.

234999

240264

26377

205326

231685

14045

239636

148848

166584

238441

156502

176885

219889

161945

240195

239228

238225

177575

205966

174171

237952

236331

240801

206290

240918

240684

238990

195306

240591

KIDY

LKII

LAGN

LMMD

LEOL

LGCS

LOOT

LAYM

MMCT

MSLL

MNI

MGLK

MGRC

MIDN

MWDL

MKNN

MIPP

MNPA

MGOR

MGEO

MSDV

MRGV

MGUS

NTPT

NCPS

NKPI

NRTC

NRGI

OASE

OCFS

OTHP

App. 22

P & H Trucking, Inc.

Parkway Bus Service

Pasco Lines, Inc.

Peach Transport, Ltd.

Perfect Limousine

Phoenix Express, Inc.

Piggyback Specialists, Inc.

Pollock Transport, J.

Premier Charter Service

Premier Furniture Delivery, Inc.

Prestige Limousine Service, Inc.

Priority Mail & Messenger

Service, Inc.

Pro Truck Lines, Inc.

Pro-Courier, Inc.

Professionally Yours Tours

R & A Trucking Co. of

Minnesota

Raleigh Air Cargo Express, Inc.

Rauch, Inc., Steve

Rehagen Bros. Trucking

Rem Transport

Ridge Express Co., Inc.

Road Burners Tours Bus Service

Inc.

Robb, Susan R.

Russo, Trucking Company, Inc.,

Laber

Sal-Son Trucking Co., Inc.

Salo Salvage Corporation

Santini & Co., Inc., Alfred

Satilla Coach

Savercool Clay Sales, Inc., R. C.

Schmidt, Michael J.

Security Motor Service, Inc.

me |

237012

197101

239357

238816

238520

224662

238445

240230

239802

237564

176535

241199

55414

212802

234614

242109

237447

238860

235971

42796

239723

21313

217794

240171

239911

241299

PNHG

PWBS

PLIQ

PCHL

PFCL

PHXE .

PIGY

PLKJ

PCHV

PMFD

PMMS

PTLP

PCUR

PFSO

RNAK

RACG

STRA

RJGB

REOR

RIDG

RBUR-

RYNR

RLTK

SLSN

SAOV

SAAC

SCAH

SVLR

SDMJ

SEMS

App. 23

Service Motor Transportation Co.

Service Transport

Simon Trucking, Inc., Dick

Slama Trucking, Robert

Smith Trucking

Southfield Cab Co.

Special Transport Service

Starling’s Auto Transport

Statewide Home Supply Service,

Inc.

Stevens Transport, Inc.

Sturgeon Truck Leasing

Sun Coach Lines

Sun Coach Lines of Colorado,

Inc.

Sundown Transport

Susquehanna Transit Company

T & T Trucking, Inc.

T. L. Express

Taylor Distributing Company

Taylor Transportation, Inc.,

Darryl] B.

Tecopa Hot Springs

Transportation Incorporated

Terminal Consolidation

Company, Inc.

Terrco Distributors, Inc.

Thomas Trucking, Sidney

Tibbetts House Moving

TNT Dugan, Inc.

Today Transportation, Inc.

Total Courier

Transpro Carriers, Inc.

Tri-Western Express, Inc.

Triple J Ranch

Valley Express, Inc.

58790

140392

238355

178789

177106

218636

239370

203372

150578

240155

151711

236344

241624

148069

222974

206385

22276

178489

160258

233126

239654

239672

239604

237926

211518

117832

193508

149591

SERM

SERJ

SILD

SLAJ

SMBN

SFCB

STXV

SGAO

SWHV

STVV

SGEO

SNCH

SNOC

SDWO

SHT

TTTE

TLDA

TADS

TDBT

TCOH

TCCY

TCDO

TOSD

TBHM

DUGN

TDAY

TCUR

TCRN

TRWR

TPJR

VLEP

App. 24

Van's Interstate Service, Inc.

VC Trucking Inc.

Vidmar, Inc.

Walker, Michael W.

Weldon and Peck Trucking

Westburne Transportation

Services, Inc.

Western Industries, Inc.

Westside Carriers

White Line Trucking

Williams, Gilbert

Winfield Charter Company

Winkler Trucking, Inc.

Wylie Corp., E. W.

Yaeger Co., D. L.

Young Equipment Co., Inc.,

Clayton

Young, Robert

196448

238882

224788

234638

237713

186540

236314

215460

240190

240056

235170

149406

239107

230912

236514

VISI

VCT]

VDMR

NTEN

WNPT

WTBE

WEIJ

WSDE

WHLF

WGIL

WNFC

WNKR

WYLC

YDLC

YCEC

YROB

App. 25

EAS 1144

February 20, 1990

Mike Walker, Special Agent

Kansas City, MO

James E. Manning

Chief, EAS Branch, BOT

Verification of rates and charges — Bar Enterprises

This is in response to your memorandum of January

19, 1989, concerning fifty three OCP-F-19 tables submit-

ted for rate verification.

Three of the carriers, LaRochelle, Inc., Barlow Truck

Lines, Inc., and Trumpet Transport Co., maintain only

mileage rates to cover the involved shipments in their

respective tariffs. These carriers tariffs refer to Household

Goods Carriers’ Bureau Mileage Guide to determine the

distances, but these carriers never issued a power of

attorney or otherwise concurred in the Household Goods

Carriers’ Bureau Mileage Guide. Therefor [sic], all mile-

age rates are void as a matter of law (49 C.F.R. 1312.4(d)).

We have indicated on the tables the rates for these car-

riers that would have applied had these carriers partici-

pated in the Household Goods Carriers’ Mileage Guide.

Cal-Inland also did not participate in the HGB mile-

age guide, but it did maintain higher point-to-point rates

on the involved shipments. These point-to-point rates are

shown in the tables.

The other carriers’ rates and charges have been veri-

fied and/or corrected.

All papers are returned.

a re

App. 26

INTERSTATE COMMERCE COMMISSION

Memorandum

DATE: 1/19/89

TO : OCCAE, Frank D. Bail

/s/ Mike Walker

FROM : SA Mike Walker, K.C., MO

SUBJECT : REQUEST FOR RATE VERIFICATION

I have enclosed the Table of Rate Referrals and sup-

porting freight bill and bill of lading copies for 53

exhibits involving rate defeats in the Bar Enterprises

investigation, C-88-89. Please provide rate verification for

these 53 shipments.

Approved for transmittal: /s/ D. V. Armitage

D. V. Armitage, RCO

ad PEELE TEP

;

App. 27

TABLE OF RATE REFERRALS

Pitan: [ande 4

La Rochelle , luce. MC-\9862S

tee LARQ 206. Ltem gee

B/. WO. OTHER TOTAL

AMD CATE COMMODITY DESCRIPTION AS BILLED won mate Qwnnts CHARGES

leo | #4. Bstops |+) 881.60

' 7 y 0 s |*I

Dyes accovied mes> ve cans $40 + 320

= 1320 5201.60

COMAQDITY DESCRIPTION AS SHOULD HAVE BEEN BILLED ; 4 A ster? $5132.48

I'792 4

Fy th aster +e2D wm ents bei = "per mle reat H 408

= 7400 ¥ 2532-48

ARTY AS ATE HORT — (wowe o {oven on (7) ween ovens [F350 FS

mw hece wi.td Adee ape’: ved hal

CA pactve paced in

7g4 A seaye gods.

Slo Item 85 -

Lg Bis

= a TRAFFIC

bw Loon te, “be Zz TA

| TWTERSTATE COMMERCE COMMISSION

TABLE OF RATE REFERRALS

App. 28

jRic

{SE

hard M

the

cTicaTt

. St , d/b/a Ba i

ie. tek atime

Why ise. Fords Corp.

Kc. Distib. Conley - KC KS

192088 P"¢/28/44

G/L NO. OTHER TOTAL

AND DATE COMDDITY DESCRIPTION AS BILLED WEIGHT RATE QWRGES CHARGES

" 12024 wiles $(.05 5 ag $9)°5.c0

pey mule + £00

Nes), vated a haw =$500 #93.26.%0

COMMODITY DESCRIPTION AS SHOULD HAVE —_ BILLED 9024 m, jor Fj, in) G Stopse AAs. yo

VY5.00 | 22 500

Rukh vovt 4s hows S| BRST Ye

So TT Te oe $(dG.do

Rowald W. Winter, d/b/a Row Winley Trucking HC~17084&

TCC WIRN 2000, Item soo:

S/o Trem ¥d 7

4 "| Wea OF iWvESTIONTON @ CATE

WE WS VIVE ye , “< peare i. i/i0/so— ti

\ , - TK? 7A 12.4 -90 |'rticheet W. Wether, Special Agent

é 7 i OcP-F-19 (7/81)

App. 29

TUBECT OF ThvesTiGaTio:

~ INTERSTATE COmERCE COPIES Ton se

Ra [Richard M. Stephens, d/b/a Bar Enterprit

| TABLE OF RATE REFERRALS ; Jon L. Girod; and Ness and Co, ~

hors Hovvell + Co, e e

veet Beud KS: A

——— ) | |

AMD DATE . COMIODITY DESCRIPTION AS BILLED

¥ * 11614 mites thio — $9474.49

, ; perv wale }

ccoved we ate

COMMODITY DESCRIPTION AS SHOULD HAVE BEEN BILLED — fi $5.09 aad ‘waprana

. 43076 ie Cud ' Pear

Cuved weal> | |

| | , aoe _ Ah

Bavlew Track Liwe Inc, HC- 148899 ' bag» par gobs oo

[aE OF TNERTTONTOR BD BATE

roa 1/10/90

2 -/% %e Michael W. Welker, Special Agent

OCP-F-19 (7/81)

App. 30

INTERSTATE COMMERCE COMMISSION SUBIECT OF F..ESTICATION

TABLE OF RATE REFERRALS

ichard M. St , d/b/a Bar En el

I Jon L. ioe an foes >. om

O18 Reliable Tv

Horrel) + CG,

Falls . SD

| "G/26 /es

8/L NO. a -. &

AND DATE COMMODITY DESCRIPTION AS BILLED WEIGHT mATE CHARGES CHARGES

* 11194 males |#4:10 | —— | $1313.40

me at iper mile

COMAODITY DESCRIPTION AS SHOULD HAVE BEEN BILLED 4 . ’ PP

: an 44, ad 44.39 \756

wast aon iv)

ortatton Jnc. MC- 187755.

Icc¢ CLRT ;

TZLEM 725 ~e |

VERIFICATION BY oF tarric ¢ "Ted OF TWESTIGATON O@ CATE

We WS VIVE ; ' Lo ae % os £2 sp ae 1/10/90 . £ 2

ey an meee TT

App. 31

INTERSTATE COMMERCE COMM:SSION

TABLE OF RATE REFERRALS Fe Le Cheat na elle Boe Sntorpri on b-88-89

Ling

d OR

“Ae 3414 ‘Pere/a9

AO DATE COMMODITY DESCRIPTION AS BILLED WEG mre Onna aovets

. 94

a meet per walle va + 96

=" 9° | £1784

COMMODITY DESCRIPTION AS SHOULD HAVE = BILLED 7 | $5.41 y) sbps ¢ ,

° 2164

meat ese SB + 80

40H win) = F80 |g 2244

SICC

“ Rave band on moles Pate

Yumpet Transport Co. Mc— 1649 290 ° re td hae 4yipiret med

Ree Tuer gee a alge foe

: «

VERIFICATION TrarFic = @ | woe OF imvESTICNNN n@ GATE

ES Vv Fx . | - 4 * § BPNOP9O >

' ir 5 4 TA 2-99-90 | Micheel W. Walker, Special Agent

re.6.14@

creat)

App. 32

INTERSTATE COMMERCE COMMISSION SUEJECT OF Tint: TiGaTi>.

ichard M. Stephens, d/b/a Bar

TABLE OF RATE REFERRALS ; Jon L. Girod; and Ness and

sn Movyvell 4 Ce.

jeux Falls, SD

0 tatt COMMODITY DESCRIPTION AS BILLED owas ounas

* 11540 wiles] #10 | —- | leq

vm est Por wale :

COMMODITY DESCRIPTION AS SHOULD HAVE BEEN BILLED ns )

ot 35:76 | \bs. | |

_ “4 | Ylovo 5 1953 ee

}

TARTAR RT KOTOR (oar o£ Loven ont Vi veen ovens | F2a5qoc_

cy ds Truck Servicer Ine. MC- 150499

ce ENTL 20)

aad FTO a BT

Tiem Zebu

ow > : " TATE AP ee 1/10/90

: we Au el 77 ed |. a ae | richoet W. Walker, Special Agent

' OP-F-19 (7/81)

f fruit 2h : x

App. 33

TABLE OF RATE REFERRALS

4d Co.

Be S$

wo var COMMODITY DESCRIPTION AS BILLED

" yng waled 1c | Shop FI9GB PO

| Cuwed wees ' pov we 3 4o + 46

4 2008.04

COMEQDITY DESCRIPTION AS SHOULD HAVE BEEW BILLED ’

43155 | 550.) | PP | 2373.52

Cuyecd mests PSO 1+ GOw.e

7133 83

| tay ' : ,

Gy i“ - a. | - ré: Zz : te Caanet be vied,

4 C BI ulaud dnc M C S583) oF: ae A CAL He gh. 2 aor

/eFLeec CALL 200-A pertagete 10 NED Ai leays goide-

ere ; Vo Teen Jee ,

VERIFICATION — Z “TET ETON BS OT

‘ — “i: ' 1/10/90

T£LY72e - - Po, |. Micheel W. Welker, Special Agent

' OP-F-19 (7/81)

es ~

A ar mens

eee coe.

ae “4 > —_

App. 34

UNITED STATES GOVERNMENT

EAS 1369

DATE: January 29, 1991

TO : Frank H. Wait Jr.

Special Agent — Jacksonville

FROM : James E. Manning

Chief, EAS Branch, BOT

SUBJECT : Verification of Rates - World Marine Trans-

port, Inc.

This is in reference to your memorandum of January

15, 1991, requesting verification of rates shown on 20

OCP-F-19 tables.

Where possible, the rates on the 20 exhibits have

been verified, or corrected. Exhibit 1 could not be rated

since the shipment moved prior to World Marine Trans-

port’s rates becoming effective February 6, 1990.

It is also noted that the carrier does not participate in

Household Goods Carriers’ Bureau mileage guide, ICC

HGB 100 series, but the carrier does maintain provisions

in its tariff that provide that actual mileages via route of

movement may be used under certain circumstances such

as requirements by State authorities.

Exhibit 18 could not be rated since the carrier does

not maintain rates on iron or steel pipe.

Basic research and analysis was performed by

TR&TA Reynolds. I have reviewed the file and agree with

his conclusions.

All papers are returned.

App. 35

INTERSTATE COMMERCE COMMISS

" Iten

PORT, INC. $7

9768 Normandy Boulevard

TABLE OF RATE REFERRALS Jacksonville, Florida 32221 E-5486-90

i :

W.M.T. Lockwood Boat Works

CATT ; . anes

Fontana, CA South Amboy NJ

SITE : TORYE

WMT - Direct 203736 5/22/90

8/L NO. OTR TOTAL

A OATE - COMMODITY DESCRIPTI=N AS BILLED WEIGHT pate Qwes CHARGES

5/22/90) One (1) Freedom 27' Sailboat 1.26 - ist 100 les

1.01 - 2659 mileq:

Item 205 --- 50100

34) --- 136441

WMT Freight Bill Attached $3000.00

COMMODITY DESCRIPTION AS SHOULD HAVE BEEN BILLED

5/22/90) Same as above 1.94 = ist 100 ajies 199,00

1.47 - 2659 mile 390%, 73

Item 205 --- 205/114 of if

Item 34) --- N/A

$4307.67

a ee on ave $_1307,87_

Household Goods Mileage Guide $14 effective 12/31/87.

WMT Tariff - WMTB 400 - Section 5, Single boat charge for 27’ boat.

Plus corrected application of the referenced item nos. in the tariff.

i OF TRAFFIC | ed OF INVESTIGATOR A0@ DATE.

VERIFICATION BY GUREAG Special Agent

Prank &. Wait, Jr.

lav-41 |

App. 36

UNITED STATES GOVERNMENT

Memorandum

EAS 1381

DATE: February 7, 1991

TO : David Armitage

Regional Compliance Officer

Chicago, IL

FROM : James E. Manning

Chief, EAS Branch, BOT

SUBJECT : Verification of Rates —- Nebraska Transport

Co., Inc.

This is in response to your memorandum of January

28, 1991, concerning twelve unnumbered OCP-F-19 tables

submitted for rate verification.

Nebraska Transport Co.'s Tariff ICC NEBT 400 refers

to Household Goods Carriers’ Bureau Mileage guide to

determine the distances. This carrier never issued a

power of attorney or otherwise concurred in the House-

hold Goods Carriers’ Bureau Mileage Guide. Therefor

[sic] all the mileage rates are void as a matter of law (49

C.F.R. 1312.4(d) [sic]. We have indicated on the tables the

rates and charges that would have applied had the carrier

participated in the mileage guide.

Where Nebraska Transport participated in bureau

tariffs, we have shown the applicable class rate. In the

case of the two shipments from Ohio points, to Illinois

points, the carrier did not participate in Central States

Motor Freight Bureau.

It may be possible that the carrier had a discount in

effect that was applicable on the class rates, but do to the

App. 37

volume and different types of discounts that the carrier

maintained it is impossible to determine if any one dis-

count was applicable.

All papers are returned.

INTERSTATE COMMERCE COMMISSION

Memorandum

DATE: 1-28-91

TO : James E. Manning

Chief, Enforcement Branch

FROM : David Armitage

Regional Compliance Officer /s/ D. Arm-

itage

Chicago, IL

SUBJECT : Assignment C-23-91

Nebraska Transport Co., Inc.

MC 121066

Attached is Special Agent Daugherty’s memorandum Jan-

uary 23, 1991, including twelve (12) Tables of Referrals.

In the past, these Tables have been sent through Mr.

Frank Bail, OCCA. However, while Mr. Bail is on detail to

the Inspector General's office, Associate Director Love

has approved my sending them directly to you.

Thank you in advance for your assistance in this matter.

Atts.

cc: SA Daugherty

wants both the applicable class rate & the mileage rate if

carrier had participated in the mileage guide.

App. 38

INTERSTATE COMME MLE COMP oo iu caaare ee EO ae

NEBRASKA TRANSPORT CO., INC. nae -

TABLE OF RATE REFERRALS SCOTTSBLUFF, NE 1A 23-91;

"CONS TGHOR y oe ae

Motal Goods Metal Goods ot

Ta : en

Ambridge, PA [See23 Kansas City, MO L444 ’ te AS . Teale

Nebraska Transport Co., Inc. 8-05239 \ ae - | 12/4/90 °

B/L NO. 2 . OTHER . TOTAL .

AM DATE COMMODITY DESCRIPTION AS BILLED WEIGHT PATE CHARGES - * CHARGES

. ahet: ; e Se, :

hate Coat 16" | "Gua of 9 yto0 |

| , +f

COMMODITY DESCRIPTION AS SHOULD HAVE BEEN BILLED es bey) 2 ) iad

LlaAt A~Ltut 937 mo | ¥sbr7 NS put 2,5 fiz | 96aSS

, A WZ 34g Fufel ecole A ie :

x RB /0%S3 cisaccn Sos Nut

at sorchargh b% 179.24

Fzec wetrT oe . 2

Aiee muB SSe-D Tate F ICC mwB/Pd Evel Serchatae

htte Tale [ky Pan

VERIFICATION BY BUREAU OF TRAFFIC

Zt TA we 9 |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.