Petition for Writ of Certiorari — Tri-State Motor Transit Co. v. Interstate Commerce Commission

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84-1518 | TLE D

{ CLERK

‘WAR 25 1985

US.

AS,

IN THE |

Supreme Court of the Uritted States

OCTOBER TERM, 1984

TRI-STATE MOTOR TRANSIT CO., AND

AMERICAN TRUCKING ASSOCIATIONS, INC.,

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

m Petitioners,

INTERSTATE COMMERCE COMMISSION AND

UNITED STATES OF AMERICA,

and

THE DENVER & RIO GRANDE WESTERN

RAILROAD COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM S. BUSKER GEORGE KAUFMANN

KENNETH E. SIEGEL (Counsel of Record)

2200 Mill Road—Room 823 ROBERT J. HIGGINS

Alexandria, VA 22314 JOSEPH E. KOLICK, JR.

(703) 838-1857 2101 L Street, N.W.

Attorneys for Washington, D.C. 20037

_ Tri-State Motor Transit (202) 785-9700

Co.,and American Trucking Attorneys for

Associc tions, Inc. International Brotherhood

\ of Teamsters, Etc.

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

® «GE co

QUESTION PRESENTED

For over forty years railroads (and railroad affiliates)

have been granted motor carrier operating authority

other than that which is auxiliary to and supplemental

of rail service only if the applicant can establish “special

circumstances” negativing any disadvantage to the pub-

lic from the fact that it is a railroad. The Motor Carrier

Act of 1980 and the Staggers Rail Act of 1980 amended

the Interstate Commerce Act to a substantial extent, but

retained the statutory provisions on which the “special

circumstances” doctrine was held to rest. The question

presented is:

Is the Interstate Commerce Commission empowered to

abandon the “special circumstances” doctrine, thereby

permitting unrestricted entry of railroads 1»io motor

carrier operations, although this Court has held, in a

series of decisions culminating in American Trucking

Assns. v. U.S., 364 U.S. 1, that this doctrine is a Con-

gressional mandate under the Interstate Commerce Act?

(i)

PARTIES IN THE COURT BELOW

—

cri-State Motor Transit Company

American Trucking Associations, Inc.

International Brotherhood of Teamsiers, Chauffeurs,

Warehousemen and Helpers of America

The Denver and Rio Grande Western Railroad Company

Interstate Commerce Commission

United States of America

TABLE OF CONTENTS

Page

ts ty yy | | ca i

PARTIES IN THE COURT BELOW ........ oo... ii

I a ssanedslondhinmnsocinnnions 1

CGE A A Ce ee 2

STATUTORY PROVISIONS INVOLVED |... 2

STATEMENT OF THE CASE ........................0..0..00000.00.. 2

A. The Histery of and Statutory Basis for the

“Special Circumstances” Doctrine _.................... 3

ee secctsicnccusecuweonene 8

1. Proceedings Before the Commission .............. 8

2. Proceedings Before the Court of Appeals.... 9

REASONS FOR GRANTING THE WRIT ................ 10

I. THE DECISION BELOW CONFLICTS WITH

A SERIES OF DECISIONS OF THIS COURT

AND WITH A LONGSTANDING, UNAL-

TERED CONGRESSIONAL POLICY ............ 10

II. THE QUESTION IS IMPORTANT TO THE

ECONOMIC HEALTH OF THE MOTOR CAR-

II: calorilaidiacchsictunsiiastiscebebianioeensiosatoau 17

a 18

ESTEE ve Oc - la

TERE Pe SO 8a

SSL eee 9a

SRN ables siicudlinkdeeiucconasess l4a

IES STL EES A a OP 19a

SEES IS EEA 28a

(iii)

TABLE OF AUTHORITIES

CASES: Page

American Trucking Assns. v. U.S., 355 U.S. 141

Cy Se nd emeeiinecenniiall 6, 8, 13, 14, 16

American Trucking Assns. v. U.S., 364 U.S. 1

2 BE LG ECS a passim

B-H Transfer Co. v. United States, 420 U.S. 968

TID ccahscschenissnslentinnietasaeaianssttahieaeniiicl tea teteiielaiititabitinanan 15

Ex parte MC-156, Applications for Motor Car-

rier Operating Authority by Railroads and Rail

Affiliates, 132 M.C.C. 378 (1982), affirmed, 722

F.2d 1243 (C.A. 5), cert. den., 53 U.S.L.W. 3324

CD a scassennccacrtat aici iain lead talidtahaalenpiiaeattbaiinaniated passim

Kansas City S. Transport Co., Inc., Com. Car. Ap-

plication, 10 M.C.C. 221 (1938) ............................. 11, 12

Labor Board v. Insurance Agents, 361 U.S. 477

I i i ia urabetisatinabiinbaconse 16

Pennsylvania Truck Lines, Inc.-Control-Barker, 1

M.C.C. 101 (1986)............. CAE iene ee EET a 11

Rock Island M. Transit Co.-Purchase-White Line

M. Frt., 40 M.C.C. 457 (1946) .............................. 5, 6

United States v. Rock Island Co., 340 U.S. 419

I cane sine Silat snl iciantaliceitiiabieinadel 6, 11, 12, 15, 16, 17

STATUTES AND RULES:

Interstate Commerce Act, 49 U.S.C. §§ 10101 et

seq.

49 U.S.C. § 10101(a) (1) (A) —........................ 7,11,15

ID © pinciicnscnnindecenncanentnns 2

cs ticrinidlisaaibilanicich 6

§ 10922(b) (2) (B) __... eS allman 6

$11844(e) .. ........... AS Ses PEAS passim

Judicial Code:

4 SR |, : ea ees 2

a Ne 2

cect, laters 2

Motor Carrier Act of 1935, Pub. L. No. 255, Ch.

498, 49 Stat. 453 (1935) :

[| ff | See “ 5

TABLE OF AUTHORITIES—Continued

Page

Motor Carrier Act of 1980, Pub. L. No. 96-296,

I ad passim

Staggers Rail Act of 1980, Pub. L. No. 96-448, 94

Stat. 1895 (1980) ........ AE ERS RO ESE Be passim

United States Supreme Rule 17.1(¢) 000.000.0000. 11

MISCELLANEOUS

I I a 28a

Motion to Affirm U.S. Sup. Ct. No. 74-515 2.000000... 15

Notice of Proposed Policy Statement, 46 F.R.

RR a eae ee ee Oe EL en aT 7

Railroad Deregulation Act of 1979: Hearings on

S. 796 Before the Senate Subcommittee on Sur-

face Transportation of the Sen. Comm. on Com-

merce, Science and Transportation, 96th Cong.,

"y % €:. 3% | ee 17

In THE

Supreme Court of the Anitrd States

OCTOBER TERM, 1984

No.

TrRI-STATE Motor TRANSIT Co., AND

AMERICAN TRUCKING ASSOCIATIONS, INC.,

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

. Petitioners,

INTERSTATE COMMERCE COMMISSION AND

UNITED STATES OF AMERICA,

and

THE DENVER & Rio GRANDE WESTERN

RAILROAD COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OPINIONS BELOW

The opinion of the Interstate Commerce Commission

Review Board is not reported and is reproduced in the

appendix at pp. 9a-13a, infra. The final opinion of the

Interstate Commerce Commission is not reported and is

reproduced at pp. 14a-17a, infra. The opinion of the

Court of Appeals denying a petition for review of that

decision is reported at 739 F.2d 1373, and is reproduced

at pp. la-7a, infra.

JURISDICTION

The decision of the Court of Appeals was issued on

August 3, 1984 and a timely petition for rehearing and

suggestion for rehearing en banc filed by the respondent

agency was denied on October 26, 1984. (P. 8a, infra).

On January 15, 1985 Justice Blackmun signed an order

extending the time for filing this petition to March 25,

1985. This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The Court of Appeals had jurisdiction under

28 U.S.C. §§ 2321 and 2342(5).

STATUTORY PROVISIONS INVOLVED

This case involves the Interstate Commerce Act, 49

U.S.C. § 10101 et seg., as amended by the Motor Carrier

Act of 1980, P.L. 96-296, 94 Stat. 793, and the Staggers

Rail Act of 1980, P.L. 96-448, 94 Stat. 1895. The per-

tinent provisions are reproduced at pp. 18a-27a, infra.

STATEMENT OF THE CASE

This petition grows out of the decision of the Inter-

state Commerce Commission (“ICC” or “Commission” )

to grant the Denver & Rio Grande Western Railroad

(“DRGW”) authority to conduct a nationwide general

commodities trucking operation. That decision repre-

sented a particularized application of a policy shift an-

nounced in a rulemaking proceeding, Ex Parte MC-

156, Applications for Motor Carrier Operating Author-

ity by Railroads and Rail Affiliates, 1832 M.C.C. 978

(1982). affirmed, 722 F.2d 1243 (C.A. 5), cert. den., 53

U.S.L.W. 3324 (1984), wherein the Commission aban-

doned the “special circumstances doctrine” which had

limited rail affiliated motor carriers to operations “aux-

iliary to or supplemental of” the company’s rail opera-

tions unless the company could demonstrate special cir-

cumstances justifying an exception to the general rule.

The decision in Ex Parte MC-156 will be referred to

hereafter as “the Policy Statement.” The court below

—_— «

concluded that the Commission was empowered to aban-

don the special circumstances doctrine and grant un-

restricted trucking authority to rail carriers on the same

basis as any other applicant. The correctness of that

holding is the issue presented by this case. In order to

put that issue in context, we shall first describe the his-

tory and statutory basis for the doctrine, and we shall

then set forth the proceedings in this litigation.

A. The History of and Statutory Basis for the “Specia’

Circumstances” Doctrine

1. In its Policy Statement the ICC correctly character.

ized the doctrine at issue in this case as follows:

The “special circumstances” doctrine requires the

restriction to incidental rail service of motor carrier

operating authority issued to railroads or rail affil-

iates in licensing proceedings unless special circum-

stances are shown that unrestricted authority is re-

ouired to fulfill a compelling public need for service

not being offered by independent motor carriers.

The aim of the doctrine is to prevent rail domina-

tion of motor carrier markets. [132 M.C.C. 978,

emphasis added]

The Policy Statement also described the origins and

statutory underpinnings of the doctrine:

The “special circumstances” doctrine has its ori-

gins in the earliest days of the Commission’s regula-

tion of motor curriers. The underlying policy

against granting unrestricted motor carrier operat-

ing authority to railroads or their affiliates origi-

nated in the motor-rail acquisition and control sec-

tion 213(a)(1) of the Interstate Commerce Act as

amended by the Motor Carrier Act of 1935. This

legislation prohibited a railroad from acquiring or

merging with a motor carrier “unless * * * the

transaction * * * [would] promote the public inter-

est by enabling the [rail] carrier * * * to use serv-

ice by motor vehicle to public advantage in its opera-

tions and not unduly restrain competition.” Pur-

suant to this statutory language, the Commission

restricted motor operations resulting from rail-

motor acquisitions proceedings to those auxiliary or

supplemental to rail service. See Pennsylvania

Truck Lines, Inc.—Control—Barker, 1 M.C.C. 101

(1936). The rationale for this policy was to pro-

tect the nascent motor carrier industry from anti-

competitive control by the more mature railroads

with their dominant size and great financial re-

sources. Id. at p. 112.

Although there was no express statutory require-

ment for doing so, this principle was extended to

motor carrier licensing proceedings under sections

207 and 209 of the act. See Kansas City S. Trans-

port Co., Inc., Com. Car. Application, 10 M.C.C. 221,

240-41 (1938) (The Commission found that the mo-

tor carrier applicant’s affiliation with a railroad re-

quired imposition of specific auxiliary-to-rail restric-

tions). The basis for this was both the Commis-

sion’s interpretation of the acquisition section 213

(a) (1), and the requirements of the Declaration of

Policy of the Motor Carrier Act of 1935, which pro-

vided that the Commission was—

to regulate transportation by motor carriers in

such manner as to recognize and preserve the

inherent advantages of, and foster sound eco-

nomic conditions in, such transportation and

among such carriers in the public interest; pro-

mote adequate, economical, and efficient service

by motor carriers, * * * improve the relations

between, and coordinate transportation by and

regulation of, motor carriers and other car-

iia ae

The “special circumstances” doctrine itself was a

departure from the strict requirement of imposing

auxiliary-to-rail restrictions on motor carrier au-

thority issued to railroads or rail affiliates in li-

censing proceedings. The doctrine allowed issuance

of unrestricted authority where the rail-affiliated ap-

plicant could show a “compelling need” for its serv-

ice by demonstrating (1) that a grant of unre

stricted authority would not result in undue re-

straint of competition, and (2) that the public in-

terest requires the proposed operation which was not

being furnished by independent motor carriers. See

e.g., Rock Island M. Transit Co.—Purchase—White

Line M. Frt., 40 M.C.C. 457 (1946). [182 M.C.C.

980-981, footnote omitted]

2. The Rock Island case was the ICC’s first major de-

cision on this subject after the pertinent language of

§ 213(a) (1) of the 1935 Motor Carrier Act was reen-

acted as § 5(2) (b) of the 1940 Interstate Commerce Act,

54 Stat. 906. The ICC there stated:

The reenactment of Section 213 as part of Sec-

tion 5... without any change suggesting any dis-

satisfaction with our established administrative con-

struction thereof must be taken as a definite ap-

proval thereof, which speaks strongly against any

Significant departure therefrom in the future. [40

M.C.C. 457, 468-469]

And in Rock Island the ICC succinctly explained the

meaning of the doctrine:

In other words, a railroad applicant for authority

to operate as a common carrier by motor vehicle,

though required to do no more than prove, as any

other applicant, that its service is required by public

convenience and necessity, has a special burden...

by reason of the very circumstance that it is a rail-

road. Where it fails to show special circumstances

negating any disadvantage to the public from this

fact, a grant of authority to supply motor service

other than service auxiliary to and supplemental of

train service is not justified. [40 M.C.C. at 474.]

The foregoing “special burden” formulation was quoted

with approval by this Court in affirming the Rock Island

decision (United States v. Rock Island Co., 340 U.S. 419,

re eT ea ae

428-429, n.4), and again in American Trucking Assns. v.

U.S., 355 U.S. 141, 151 (“ATA I’).

In ATA I the Court affirmed the grant to a railroad

subsidiary of authority to supply motor service which

was not auxiliary to and supplemental of train service

because special circumstances had been shown, but

stressed

that the underlying policy of 5(2)(b) must not be-

divorced from proceedings for new certificates under

§ 207. Indeed, the Commission must take “cogni-

zance” of the National Transportation Policy and

apply the Act “as a whole.” [3855 U.S. at 151-152]

And, in American Trucking Assns. v. U.S., 364 U.S. 1

(“ATA II’’), this Court held that the Commission had

committed an error of law by issuing unrestricted motor

carrier operating authority without finding that special

circumstances justified such a grant. Jd. at 6-15. The

ATA II decision is fully discussed at pp. 11 to 14, infra.

3. In 1980 Congress enacted two statutes which

amended the Interstate Commerce Act’s regulation of

motor carriers (the Motor Carrier Act of 1980) and of

railroads (the Staggers Rail Act of 1980). In general,

as the court below observed, these amendments adopted

a “deregulatory approach” (p. 7a, infra). Specifically,

the 1980 Motor Carrier Act eased restrictions on entry

into the trucking industry by eliminating altogether cer-

tain of the substantive requirements for an operating

license, by liberalizing the remaining requirements, and

by shifting the burden of proof to those opposing an ap-

plication for operating authority. See 49 U.S.C. §§ 10922

(b) (1) and (b) (2) (B), (pp. 24a-25a, infra). The Motor

Carrier Act amendments also evinced a new congressional

emphasis on intermodal operations. The Act expressly

declared that national transportation policy is to “pro-

mote intermodal transportation.” 49 U.S.C. § 10101 (a)

(2) (I) (pp. 19a-20a, infra). However, the amendments

preserved the portion of the Nationa! Transportation Pol-

icy which directs that the Act be so administered “as to

recognize and preserve the inherent advantage of each

mode of transportation”, 49 U.S.C. § 10101(a) (1) (A) (p.

19a, infra). Likewise unchanged was § 5(2)(b) of the

1940 Act (now 49 U.S.C. §11344(c), p. 27a, infra)

which, as we have seen, permits railroad acquisition of

motor carriers only when the acquisition “* * * will en-

able the rail carrier to use motor carrier transportation

to public advantage in its operations * * *.”

In Ex Parte MC-156, the ICC issued a Policy State-

ment wherein it concluded “that the ‘special circum-

stances’ doctrine should be eliminated from motor car-

rier licensing proceedings.” (132 M.C.C. at 987). The

ICC asserted that “[t]he ‘special circumstances’ doctrine

is not a viable policy under the newly revised Interstate

Commerce Act.” (Heading, id.) It observed that at “the

heart of [the 1980 Motor Carrier Act] is the mandate

for eased regulatory entry requirements offering ‘in-

creased opportunities for new carriers to get into the

trucking business and for existing carriers to expand

their services’[; the] new licensing provisions at 49

U.S.C. 10922 and 10923 markedly reduce the burden of

proof of those seeking motor carrier authority and sub-

stantially increase the burden of proof of those opposing

the issuance of motor carrier authority.” Also, the

“Staggers Rail Act of 1980 endorses more competitive,

less restricted rail operations and stresses minimized

federal control over the rail transportation system.”

1 The Policy Statement issued in a proceeding which was initiated

by the ICC by a Notice of Proposed Policy Statement (46 F.R.

50423) in which the ICC sought public comment on the “continued

viability” of the “special circumstances” doctrine in light of the

1980 amendments. Comments were received from motor carrier and

rail carrier interests, shippers, freight forwarders and the United

States Department of Transportation. See 132 M.C.C. at 978.

as |

(Id.) The ICC opined that ATA I and ATA II no longer

have “precedential value” because (1) the “special cir-

cumstances” doctrine did not establish an absolute bar

to the licensing of rail affiliates to perform non-rail-

related motor service, and (2) after those decisions “cir-

cumstances and the transportation legislation have

changed markedly.” (Jd. at 988.) The ICC asserted that

“the special circumstances doctrine is an agency ‘created

and transformed’ doctrine’ and as such is not “immu-

table’ but “must change with the changing realities of

the economy and the industries regulated by the Commis-

sion.” (Jd., emphasis added. )

B. The Instant Litigation

1. Proceedings Before The Commission

On April 8, 1988, DRGW applied to the ICC for truck-

ing authority to haul general commodities nationwide.

Pursuant to the Commission’s modified approval proce-

dures, ICC Review Board No. 1 tentatively granted

DRGW’s application. Tri-State contested that action on

two grounds: first, the grant would harm Tri-State’s

overall operations contrary to the public interest; and

second, the application was fatally defective because

DRGW failed to demonstrate “special circumstances”

justifying authority for unrestricted motor carrier op-

erations, that is, motor service not incidental and auxil-

iary to DRGW’s rail service.

In a decision served September 8, 1983, the ICC Re-

view Board affirmed the tentative grant of unrestricted

motor carrier authority. The license was approved on

the view that “a railroad need no longer demonstrate

‘special circumstances’ in order to obtain unrestricted

motor carrier authority,” citing the Commission’s Policy

Statement in Ex Parte MC-156. (P. 11a, infra). Tri-State

appealed the Review Board’s decision. In addition, peti-

tioners ATA and the IBT filed petitions to intervene and

for administrative review, contending that the Review

Board’s grant to DRGW should be overturned because

the Commission’s blanket abandonment of limitations on

the authority of railroads to engage in motor carriage

was contrary to law.

The Commission’s final decision first denied ATA’s

and the IBT’s petitions to intervene, stating that the

attack on the validity of the elimination of the “special

circumstances” doctrine “would unduly broaden the is-

Sues raised in this proceeding.” (P. 15a, infra). Second,

on the basis of its prior Policy Statement, the Commission

rejected the argument that unrestricted trucking author-

ity could not be granted to a rail carrier absent a show-

ing of “special circumstances” (P. 16a, infra).

2. Proceedings Before The Court Of Appeals

Tri-State and ATA petitioned for review of the ICC’s

decision in the court below. The IBT, which represents

Tri-State employees, intervened in support of that peti-

tion. DRGW intervened on the side of the ICC and the

United States in support of the agency decision.

Before the Court of Appeals, the Commission argued

that the Court was without jurisdiction to entertain pe-

titioners’ challenge to its failure to require a showing of

“special circumstances” because the correctness of that

decision was reviewable only on direct appeal from the

rulemaking proceeding in which the Commission first

announced its intention to abandon the “special circum-

stances” doctrine; that the doctrine of collateral estoppel

barred litigation of that issue by petitioners below; and

that the 1980 amendments to the Interstate Commerce

Act justified the Commission’s policy shift. The Court of

Appeals rejected the Commission’s attack on its jurisdic-

tion (p. 4a, n.2, infra), and found it unnecessary to

reach the Commission’s collateral estoppel argument.

(P. 2a, n.1, infra). On the merits, the Court of Appeals

acknowledged that in American Trucking Assns. v. U.S.,

364 U.S. 1, this Court had held that “Congress has ex-

pressed a strong general policy against railroad invasion

of the motor field,” and that this policy prohibited the

Commission from granting general trucking authority to

rail carriers absent a finding of “special circumstances.”

(P. 6a, infra, quoting 364 U.S. at 6 and 15). Nonethe-

less, the Court concluded that “when the Act is read as

a whole, including the 1980 amendments, the ICC had

proper authority to find that the special circumstances

doctrine should no longer be recognized.” (P. 6a, infra).

On that basis, the Court of Appeals affirmed the ICC’s

order.

Although it had achieved total success by the Court’s

affirmance, the Commission petitioned for rehearing and

rehearing en banc, contending that the case should have

been decided in its favor on either jurisdictional or col-

lateral estoppel grounds. After directing and receiving a

response from the petitioner below, the Court of Ap-

peals denied the Commission’s petition. (P. 8a, infra).

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH A

SERIES OF DECISIONS OF THIS COURT AND

WITH A LONGSTANDING, UNALTERED CON-

GRESSIONAL POLICY

A. The court below declared that the “central issue

fin the Fifth Circuit], and here, is whether the special

circumstances doctrine, which was created by the ICC,

has been recognized by the Supreme Court to be statu-

torily required.” (P. 4a, infra). The Eighth Circuit

(like the Fifth Circuit on review of the Policy State-

ment) answered that question in the negative, and ac-

cordingly concluded that the ICC was authorized to aban-

don that doctrine. The issue thus defined is “central”

2 Although the point is not decisive herein, we note that the

observation that the doctrine “was created by the ICC” is, in our

view, correct only with respect to licensing. The restriction on

also in considering whether the judgment below should

be reviewed, because if the Court of Appeals was wrong,

it “has decided a federal question in a way in conflict

with applicable decisions of this Court.” (U.S. Sup. Ct.

Rule 17.1(c)). We therefore shall show that the court

below has misinterpreted this Court’s governing deci-

sion; analysis and holdings in those cases made clear that

the “special circumstances” doctrine embodies a Congres-

sional policy. (Indeed, years ago, the ICC itself so ac-

knowledged in a submission to this Court, quoted at

pp. 14a-l5a, infra). The most revealing of this Court’s

decisions is American Trucking Assns. v. U.S., 364 U.S. 1

(“ATA II’), which we therefore discuss in some detail.

At the outset of his analysis for a unanimous Court,

Chief Justice Warren began: “Both the Commission and

this Court have recognized that Congress has expressed

a strong general policy against railroad invasion of the

motor carrier field,” referring to the National Transpor-

tation Policy, 54 Stat. 899, and the proviso to § 5(2) (b)

of the Interstate Commerce Act. (364 U.S. at 6, emphasis

added. )

The Court observed:

The Commission long ago concluded that the policy

of the transportation legislation requires that the

railroad acquisitions of motor carriers first appeared in the proviso

to §213(a) of the 1935 Act. Commissioner Eastman’s subsequent

description of the 1935 legisiative process, quoted in Rock Island

at 340 U.S. 431-432, n.9, made clear that this proviso was intended

to confine such acquisitions to those which would be used by the

acquiring carrier in its railroad operations. Pennsylvania Truck

Lines, Inc.-Control-Barker, 1 M.C.C. 101 (1936), in which Mr.

Eastman joined, implemented that Congressional decision. See

p. 4, supra, and 340 U.S. at 433, n.11. See also Pennsylvania

Truck Lines, Inc., 5 M.C.C. 9 (1937). It was, however, the ICC

which initially extended the doctrine to licensing proceedings,

in the Kansas City Southern case, 10 M.C.C. 221, described at

p. 4, supra. The doctrine was ratified by Congress with respect to

both acquisitions and licensing proceedings by the 1940 Act, and

thereby became Congressional policy as to both.

ai a a I

standards of § 5(2) (b)—then § 213(a) of the Motor

Carrier Act of 1935, 49 Stat. 555—be followed as a

general rule in other situations, notably in applica-

tions for common carrier certificates of convenience

and necessity under § 207. Kansas City Southern

Transport Co., Common Carrier Application, 10

M.C.C. 221 (1938). And this Court has confirmed

the correctness of the Commission’s conception of its

responsibilities under both § 5(2)(b) and § 207. See

United States v. Rock Island Motor Transit Co., 340

U.S. 419; United States v. Texas & Pacific Motor

Transport Co., 340 U.S. 450; Interstate Commerce

Comm’n V. Parker, 326 U.S. 60. The Court has also

taken cognizance of the congressional confirmation of

the Commission’s policy by the 1940 re-enactment in

§ 5(2) (b) of the provisions of § 213(a), after some

of the pertinent Commission decisions had been spe-

cifically called to Congress’ attention. See United

States v. Rock Island Motor Transit Co., supra, at

432. [364 U.S. at 6-7, emphasis added] *

Thus, “the policy of oppositi.n to railroad incursions

into the field of motor carrier service” (364 U.S. at 7)

was plainly viewed as Congress’ policy. So, too, in ap-

proving the Commission’s implementation of that policy

to restrict “certificates issued to rail carriers or their

affiliates in order to insure that the service rendered

thereunder shall be no more than that which is auxiliary

to or supplemental of train service,” the Court said:

If a trucking service can fairly be so characterized,

it is clear enough that there is compliance with the

mandate of § 5(2)(b) that the carrier should be able

“to use service by motor vehicle to public advantage

in its operations.” But if, on the other hand, the

motor transportation is essentially unrelated to rail

service, the railroad parent is invading the field of

3In Rock Island, the Court expressly identified Kansas City

Southern Transport Co., supra, as one of the cases “which were

specifically called to Congress’ attention prior to the enactment of

the 1940 Act.” 340 U.S. at 432 and n.10.

trucking, and, under normal circumstances, the Na-

tional Transportation Policy is thereby offended.

[364 U.S. at 9, emphasis in original]

The Court reaffirmed its holdings in AJA IJ that the

public interest may sometimes be promoted by not im-

posing the “auxiliary and supplemental” restrictions on

motor carrier subsidiaries of railroads, but that this ex-

ception has only a narrow scope:

We there observed that the mandatory provisions

of §5(2)(b) do not appear in § 207, and approved

the Commission’s policy of not attaching auxiliary

and supplemental restrictions where “special circum-

stances” prevail. We concluded:

“We repeat . . . that the underlying policy of

§5(2)(b) must not be divorced from proceed-

ings for new certificates under § 207. Indeed,

the Commission must take ‘cognizance’ of the

National Transportation Policy and apply the

Act ‘as a whole.” But... we do not believe that

the Commission acts beyond its statutory author-

ity when in the public interest it occasionally de-

parts from the auxiliary and supplementary lim-

itations in a § 207 proceeding.” 355 U.S., at

151-152. [364 U.S. at 11]

Because the ICC had granted to a railroad subsidiary

motor carrier authority without attaching “auxiliary and

supplemental” restrictions, and without making a finding

of “special circumstances,” this Court set aside the ICC’s

decision, saying:

[W]e do not believe that the policy of the Act allows

the Commission to authorize service by Pacific Motor,

limited only to points on the Southern Pacific line,

simply because General Motors [the shipper] wants

a contract carrier operation. If that desire of Gen-

eral Motors, in combination with the policy of the

Act, disables a railroad subsidiary from obtaining

the business, that is simply the result of the National

Transportation Policy. This consequence, we believe,

does not meet the compelling public interest standard

established by [A7'A J]. A contrary conclusion would

open the door to approval of over-the-road contract

trucking by railroad subsidiaries to most, if not vir-

tually all, major destinations, and hence would

greatly attenuate the safeguards which have been

painstakingly erected to prevent railroad domination

of trucking. Appellees say that these safeguards are

no longer needed, because independent trucking is no

longer an “infant industry.” This is an immaterial

argument in this forum. We do not condemn the

wisdom of the Commission’s action. We simply say

that the transportation legislation does, and that the

pardoning power in this case belongs to Congress.

[364 U.S. at 15, emphasis added]

The Court concluded:

Thus the decision of the District Court must be re-

versed, because we conclude that the Commission fell

into error of law. [364 U.S. at 15] *

The proposition that the “special circumstances” doc-

trine is merely a matter of agency policy simply cannot

be reconciled with either the reasoning of the ATA II]

opinion, or the result in that case. There was a time

when the ICC, too, understood the correct meaning of this

Court’s decisions. It represented to this Court at the

1974 Term:

It has long been established that the Congressional

“policy of opposition to railroad incursions into the

field of motor carrier service’ (American Trucking

Associations, Inc. v. United States, 364 U.S. 1, 7)

usually limits any motor carrier service performed

by a railroad affiliate or subsidiary to service auxil-

iary or supplemental to its rail service. See United

States v. Rock Island Motor Transit Co., 340 U.S.

*The Court remanded the case to the ICC to consider whether

the record would support a finding that there exist special circum-

stances warranting an unrestricted certificate. (364 U.S. at 15-17.)

i ceaeeeeeenaneiennitiiemanaiammaaieianeemiiiel

419. An unrestricted certificate, authorizing motor

service unrelated to the railroad parent’s rail serv-

ice and in competition with independent ‘truckers,

may be granted only where “special circumstances”

prevail.®

The meaning of the cited opinions has not changed in

the intervening years.

B. The ICC and the court below relied on the 1980

amendments to the Interstate Commerce Act as justify-

ing the abandonment of the “special circumstances” doc-

trine. But Congress did not in that legislation exercise

its “pardoning power” (364 U.S. at 15) to ease the re-

strictions on the motor carrier operations of railroads

and their subsidiaries. That portion of the National

Transportation Policy “which articulates the congres-

sional purpose that the Act be ‘so administered as to

recognize and preserve the inherent advantages’ of ‘all

modes of transportation’” (364 U.S. at 6), remains in

the Act as 49 U.S.C. §10101(a)(1)(A). (P. 19a,

infra). So too, what was §5(2)(b) of the Interstate

Commerce Act (364 U.S. at 6-7, 9, 11) is retained as 49

U.S.C. § 11344(c). (P. 27a, infra).

The new licensing standards established by 49 U.S.C.

§§ 10922 and 10923 do not affect the result. To be sure,

these “markedly reduce the burden of proof of those

seeking motor carrier authority and substantially in-

crease the burden of proof of those opposing the issu-

ance of motor carrier authority”.* But careful ‘examina-

tion of the ICC’s formulation of the “special circum-

stances” doctrine in Rock Island, which this Court has

twice approved, see pp. 5-6, supra, makes clear that this

change does not affect its statutory underpinnings. By

5 Motion to Affirm, p. 3 in No. 74-515, B-H Transfer Co. v. United

States (emphasis added). The motion to affirm was granted, 420

U.S. 968.

* Ez Parte MC-156, 132 M.C.C. at 979.

virtue of the new licensing provisions, a railroad appli-

cant, in common with all others, is relieved of the obli-

gation to prove “that its service is required by public

convenience and necessity” (340 U.S. at 428, n.4; 355

U.S. at 151). But the new licensing provisions do not

affect the railroad applicant’s “special burden” imposed

“by reason of the very circumstance that it is a railroad

* * * to show special circumstances negativing any dis-

advantage to the public from this fact * * *.” (Jd.) That

burden, which derives from provisions of the Interstate

Commerce Act which were not changed, remains because,

however desirable the change might appear to the ICC,

“Congress’ policy has not yet moved to this point.” Cf.

Labor Board v. Insurance Agents, 361 U.S. 477, 500."

7A railroad spokesman, testifying in general support of an early

version of what became the Staggers Rail Act, discussed the “special

circumstances” doctrine, and criticized as a significant “omission”

the failure of the bill to overturn that doctrine.

Walter G. Treanor, senior vice-president-law of The Western

Pacific Railroad Company, testified :

Insofar as the bill [S. 796] is concerned, we have only one

concern of omission, although we understand the reason for it

at this time, and this is that this bill does not propose to strike

down the artificial restraints that are in the present statute on

the railroads becoming total transportation companies. .. .

[Als a direct consequence of legislative and administrative

restrictions, the railroads with a few notable exceptions are

generally effectively foreclosed from engaging in common car-

rier motor services except where such services are structured

so as to be strictly auxiliary of, and supplemental to, the exist-

ing rail lines. Statutory limitations presently set forth in 49

U.S.C. (Transportation) 11344 require special, and debilitat-

ing, findings before any railroad is permitted to effect a merger

with, or control of, a motor carrier. Although there do not

exist any similar statutory restrictions with regard to railroad

applications to obtain a Certificate of Public Convenience and

Necessity to commence a new motor carrier operation, the

Interstate Commerce Commission, at least until very recently,

has as a matter of policy imposed similar restrictions in certifi-

cation cases. We are very much encouraged by the [ICC’s)

II. THE QUESTION IS IMPORTANT TO THE ECO-

NOMIC HEALTH OF THE MOTOR CARRIER

INDUSTRY

In Rock Island, this Court succinctly stated the eco-

nomic reason why the “auxiliary and supplemental” lim-

itation on railroad motor carrier operations was in fur-

therance of the National Transportation Policy:

[O]therwise the resources of railroads might soon

make over-the-road truck competition impossible, as

unregulated truck transport, it was feared, might

have crippled some railroads. Motor transportation

then would be an adjunct ‘o rail transportavion, and

hoped-for advancements in land _ transportation

from supervised competition between motors and

rails would not materialize. The control of the bulk

of rail and motor transportation would be concen-

trated in one type of operation. Complete rail domi-

nation was not envisaged as a way to preserve the

inherent advantages of each form of transporta-

tion. [340 U.S. at 432-433, footnote omitted]

If the decision below is permitted to stand, the way

for rail domination of land transportation will have been

cleared. Despite substantial significant changes in the

trucking and railroad industries (to which Congress re-

sponded with the 1980 amendments) the power of the

railroads to dominate the motor carrier field if their

entry is unrestricted is undiminished. They possess vast

recent loosening of such restrictions in non-merger cases but

legislative changes are necessary if this program is to have

any assurances of continuation into the future.

Railroad Deregulation Act of 1979: Hearings on S. 796 Before the

Senate Subcomm. on Surface Transportation of the Sen. Comm. on

Commerce, Science and Transportation, 96th Cong., lst Sess. 221,

223-224 (Part I, 1979) (emphasis added.)

No subsequent change was made in § 11344 to meet Mr. Treanor’s

ob’ ‘ion. But the ICC has given that which Congress withheld.

economic resources which enable them to undertake motor

carrier operations where to do so would serve their cor-

porate objectives. For example, the four largest United

States transportation companies, ranked by assets, are

railroads; the largest trucking company ranks twenty-

first. Seven railroad corporations have assets of more

than $1 billion (including three with assets of more than

$10 billion) ; only one trucking company has more than

$1 billion in assets. (See Table I, p. 28a, infra). Rank-

ing these transportation companies by annual operating

revenues likewise illustrates the superior economic power

of the railroads: the top fifteen include four railroads,

but no trucking company. Those four railroads each earn

over $3 billion annually, while the largest trucking com-

pany earns only $1.3 billion. (See Table II, p. 29a, infra.)

The Commission now believes that unrestricted com-

petition by railroads in the motor carrier field is desir-

able and has abandoned the “special circumstances” re-

strictions to accomplish tha. result. We submit that the

Commission has thereby committed an error of law, and

that the court below should have so held. See pp. 10-

16, supra. But whatever doubt there may be on that

score, it cannot be gainsaid that the decision below por-

tends a drastic transformation of the motor carrier in-

dustry and of rail-motor competition generally. For this

reason, too, plenary review of the decision below is

clearly warranted.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

WILLIAM S. BUSKER GEORGE KAUFMANN

KENNETH E. SIEGEL “Counsel of Record)

2200 Mill Road—Room 823 ROBERT J. HIGGINS

Alexandria, VA 22314 JOSEPH E. KOLICK, JR.

(703) 838-1857 2101 L Street, N.W.

Attorneys for Washington, D.C. 20037

Tri-State Motor Transit (202) 785-9700

Co.,and American Trucking Attorneys for

Associations, Inc. International Brotherhood

of Teamsters, Etc.

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

EIGHTH CIRCUIT

No. 83-2564

TRI-STATE MOTOR TRANSIT Co., and

AMERICAN TRUCKING ASSOCIATIONS, INC.,

Petitioners,

Vv.

INTERSTATE COMMERCE COMMISSION and

UNITED STATES OF AMERICA, |

Respondents.

THE DENVER AND RIO GRANDE

WESTERN RAILROAD COMPANY,

Intervenor/ Respondent.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA,

Intervenor.

Submitted May 17, 1984

Decided Aug. 3, 1984

Rehearing and Rehearing En Banc

Denied Oct. 26, 1984

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior

Circuit Judge, and FAGG, Circuit Judge.

LAY, Chief Judge.

Tri-State Motor Transit (Tri-State) contested the ap-

plication before the Interstate Commerce Commission

(ICC) of unrestricted motor carrier operations for the

Denver and Rio Grande Western Railroad Co. American

Trucking Associations, Inc. (ATA) and the International

?rotherhood of Teamsters, Chauffeurs, Warehousemen and

ielpers of America (Teamsters) unsuccessfully sought

to intervene before the ICC in opposition of the applica-

tion. Tri-State, ATA, and the Teamsters now ask this

court to set aside ICC’s grant to Denver/Rio Grande of

unrestricted motor carrier operations. We affirm the order

of the ICC.*

1ICC and Denver/Rio Grande argue that Tri-State et al. are

estopped from challenging the Commission’s order on the basis of

collateral estoppel. ATA and the Teamsters very well may be

estopped from such a challenge based on their participation in a

similar challenge of the same issue before the Fifth Circuit.

American Trucking Ass’ns, Inc. v. I.C.C., 722 F.2d 1243 (5th Cir.

1984). Additionally, Tri-State may be estopped because of its

privity with ATA; Tri-State is a member of the Association. West-

ern Coal, Traffic League v. I1.C.C., 735 F.2d 1408, at 1411 (D.C. Cir.

1984), supports this view. Since we approve the grant of the cer-

tificate, we need not pass on the estoppel argument.

We also find no abuse of discretion in the ICC’s denial of inter-

vention for ATA and the Teamsters in the ICC proceeding. The

decision whether to grant a petition to intervene before the ICC

is governed by statute, 49 U.S.C. § 10922(b) (7), and by regulation,

49 C.F.R. § 1112.4. The latter states that intervention “may” be

granted so long as it does not unduly disrupt or broaden the issues

raised in the proceeding. In denying leave to intervene, the ICC

stated :

The ATA and Teamsters had the opportunity to appear when

this proceeding was commenced and prior to the decision by the

Review Board. They did not choose to do so. Furthermore, the

apparent purpose of intervening in this proceeding is to attack

the validity of the elimination of the “special circumstances”

doctrine. This would unduly broaden the issues raised in this

proceeding contrary to our rules of practice [49 C.F.R. 1112.4]

and in effect constitutes a collateral attack on Ex Parte No.

ee en Nee ne

or ils etn tT Oe

The unrestricted motor carrier operations granted to

Denver/Rio Grande allows the railroad to engage in un-

limited trucking operations. Historically, the ICC re

stricted rail-affiliated motor carriers to operations “auxil-

iary to or supplemental of” the rail operations of the com-

pany, unless the particular rail-affiliated trucking com-

pany could demonstrate special circumstances justifying

an exception to the general rule. This general rule and

exception thereto was known as the “special circumstances

doctrine,” and required that motor carrier operating au-

thority for railroads be restricted to incidental rail service

unless unrestricted authority was required to fulfill a com-

pelling public need for service not being offered by inde-

pendent motor carriers. The purpose of the special cir-

cumstances doctrine was to prevent rail domination of

motor carrier markets.

In 1982 the ICC abrogated the special circumstances

doctrine in Ex Parte No. MC-156, Applications for Motor

Carrier Operating Authority by Railroads and Rail A ffili-

ates, 182 M.C.C. 978 (1982). This decision was made in

light of amendments to the Interstate Commerce Act—

the Motor Carrier Act of 1980 and the Staggers Rail Act

of 1980. The ICC concluded that, in light of the 1980

amendments, a rail-affiliated trucking company no longer

needs to prove special circumstances to justify an un-

restricted grant of authority. ATA and the Teamsters un-

successfully challenged the ICC decision before the Fifth

Circuit. American Trucking Associations v. I.C.C., 722

F.2d 1243 (5th Cir. 1984). The Fifth Circuit concluded

that the ICC was within its authority when it abolished

MC-156. As such, petitioners raise no issues that can properly

be considered here. We will deny the petitions of ATA and

Teamsters to intervene. Petitioners’ interests will not be prej-

udiced inasmuch as their concerns will be addressed by the

Court of Appeals [for the Fifth Circuit].

Interstate Commerce Commission Decision No. MC-166474 (Sub-

No. 1) (Nov. 8, 1983). We find no error in this ruling.

the special circumstances doctrine, noting especially the

changes in the trucking and rail industries and the Inter-

state Commerce Act. |

On appeal to this court, Tri-State, ATA, and the Team-

sters argue that the Interstate Commerce Act precludes

the ICC from removing all special limitations on the

licensing of railroads to engage in motor transportation.

Therefore, contends Tri-State et al., the ICC was without

authority to remove the special circumstances doctrine

from its licensing procedure, and the Fifth Circuit was in

error in affirming the ICC decision.’

The Fifth Circuit extensively reviewed the history of

the special circumstances doctrine in its opinion. See 722

F.2d at 1244-47. The central issue there, and here, is

whether the special circumstances doctrine, which was

created by the ICC, has been recognized by the Supreme

Court to be statutorily required. Prior to the passage of

the Motor Carrier Act of 1935, the trucking industry was

economically unstable and dominated by ease of competi-

tive entry. The special circumstances rule arose from the

2The ICC argues that, considering the Fifth Circuit’s affirm-

ance of Ex Parte No. MC-156, this court does not have jurisdiction

to review a subsequent challenge on the substantive validity of an

agency’s rules. This argument is based on the Hobls Act, which

provides that a party aggrieved by a rule, regulation, or final order

of the ICC must file a petition for judicial review within sixty days.

28 U.S.C. §§ 2342, 2344. We agree that this rule now precludes an

attack on the procedure by which the policy was adopted. How-

ever, we hold that the Hobbs Act does not bar judicial review on the

substantive validity of the rule, even if more than sixty days have

elapsed since its issuance. As the District of Columbia and Fifth

Circuits have noted, “administrative rules and regulations are cap-

able of continuing application; limiting the right of review of the

underlying rule would effectively deny many parties ultimately af-

fected by a rule an opportunity to question its validity.” Texas

v. United States, 730 F.2d 409, 415 (5th Cir. 1984) (quoting Func-

tional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958), cert.

denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959) ).

Act itself and was intended to protect the motor trans-

portation system from over competition.

The explicit Congressional restriction on rail-affiliated

trucking companies was the enactment of high barriers to

rail companies’ acquisition of trucking companies. Motor

Carrier Act of 1935, § 213(a), currently at 49 U.S.C.

§ 11344(c).* The implicit Congressional restriction was

recognizing and preserving “the inherent advantages” of

each mode of transportation. Motor Carriers Act of 1935,

§ 202(a), currently at 49 U.S.C. §10101(a). In con-

trast to the acquisition provisions, the licensing provisions

did not provide for any restrictions on rail companies’

operations of trucking companies. However, the ICC in-

terpreted the acquisition provisions of § 11344(c) to mean

that not only could railroads not acquire, but that they

could not operate as unrestricted trucking companies. The

ICC additionally interpreted the National Transportation

Policy’s requirement of preserving the inherent advan-

tages of each mode as support for protection of the infant

trucking industry from the railroads. In J.C.C. v. Parker,

326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945), and

later in United States v. Rock Island Co., 340 U.S. 419,

71 $.Ct. 382, 95 L.Ed. 391 (1951), the Supreme Court

affirmed the ICC’s power to restrict the licensing of rail-

affiliated trucking companies.

The ICC modified its restrictions on the licensing of

trucking operations for rail companies in Rock Islard

Motor Transit Co. Common Carrier Application, 63 M.C.C.

91 (1954). The ICC held that unrestricted authority

3 Section 11344(c) provides in pertinent part:

When a rail carrier, or a person controlled by or affiliated with

a rail carrier, is an applicant and the transportation involves a

motor carrier, the Commission may approve and authorize the

transportation only if it finds that the transaction is consistent

with the public interest, will enable the rail carrier to use motor

carrier transportation to public advantage in its operations, and

will not unreasonably restrain competition.

could be granted to a rail-affiliated trucking company if

the rail affiliate could prove that the grant would not

restrain competition and that the public interest required

the proposed service. This policy was the “specia! circum-

stances” exception and the Supreme Court affirmed its use

in American Trucking Associations v. United States, 355

U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158 (1957). The Su-

preme Court noted that the licensing and acquisitions sec-

tions were interpretive brothers, and stated that “the

Commission must take ‘cognizance’ of the National Trans-

portation Policy and apply the Act ‘as a whole.’” Jd. at

151-52, 78 S.Ct. at 171.

In American Trucking Associations v. United States,

364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527 (1960), the

ICC. had granted operating licenses to a trucking com-

pany that was a wholly owned subsidiary of a railroad.

ATA challenged the grant, claiming that the ICC did not

properly apply the special circumstances doctrine. The

Supreme Court agreed, finding that “[b]oth the Commis-

sion and this Court have recognized that Congress has

expressed a strong general policy against railroad in-

vasion of the motor field,” id. at 6, 80 S.Ct. at 1574, and

concluding that the ICC had deviated from this policy by

granting operating authority to a railroad subsidiary

without finding special circumstances. Jd. at 15, 80 S.Ct.

at 1578.

Tri-State now urges that the principles of American

Trucking are violated by the ICC’s grant of operating

licenses to the Denver/Rio Grande. We must disagree.

The ICC was charged by the Supreme Court with apply-

ing the Act “as a whole.” We believe that when the Act

is read as a whole, including the 1980 amendments, the

ICC had proper authority to find that the special circum-

stances doctrine should no longer be recognized.

Specifically, the amendments established “a new Federal

policy which is designed to promote a competitive and

efficient motor carrier industry.” H.R. Rep. No. 1069,

96th Cong., 2d Sess. 14 (1980). The legislation mandated

eased regulatory entry requirements in order to increase

“opportunities for new carriers to get into the trucking

business and for existing carriers to expand their serv-

ices.” Jd. at 3. Moreover, Congress found that “today

most transportation is competitive and many Government

regulations affecting railroads have become unnecessary

and inefficient.” H.R. Rep. No. 1430, 96th Cong., 2d Sess.

79, reprinted in 1980 U.S. Code Cong. & Ad. News 3978,

4111. See generally American Trucking Associations v.

I.C.C. 722 F.2d 1243, 1249-52 (5th Cir. 1984) (detailing

the deregulatory approach of the 1980 amendments). We

therefore agree with the ICC and the Fifth Circuit ATA

decision, id., that the showing required under the special

circumstances doctrine of compelling necessity for un-

restricted authority for rail-affiliated motor carriers has

no place in the procompetitive licensing regulations of the

revised Interstate Commerce Act.

For the above reasons, the decision of the ICC is af-

firmed.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1984

No. 83-2564

TrRI-STATE Motor TRANSIT Co., and

AMERICAN TRUCKING ASSOCIATIONS, INC.,

Petitioners,

vs.

INTERSTATE COMMERCE COMMISSION and

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR REVIEW OF ORDER OF THE

INTERSTATE COMMERCE COMMISSION

Respondents’ petition for rehearing en banc has been

considered by the Court and is denied.

Petition for iehearing by the panel is also denied.

October 26, 1984

APPENDIX C

Service Date

Sep. 8, 1983

INTERSTATE COMMERCE COMMISSION

DECISION

No. MC-166474 (Sub-No. 1)

THE DENVER AND RIO GRANDE WESTERN RAILROAD

COMPANY EXTENSION—POINTS IN THE UNITED STATES

(Denver, CO)

Decided: August 26, 1983

Applicant seeks a certificate authorizing the operations

described in the appendix. The evidence has been con-

sidered under the modified procedure. Tri-State Motor

Transit Co. opposes the application.

Applicant holds no existing authority from this Com-

mission. It argues that a grant of the proposed authority

will enhance the competitive environment and will pro-

mote a safe and sound intermodal transportation system.

The application is supported by 27 shippers. They are

The John Sexton Co., Morton Salt Division of Morton

Thiokol, Inc., The Quaker Oats Company, and Gee Co.,

all of Chicago, IL; Packaging Corporation of America of

Evanston, IL; Grain Processing Corporation of Musca-

tine, IA; F. Korbel and Brothers of Guerneville, CA;

American Timber Products, Inc., of Oklahoma City, OK;

Nobel/Sysco Food Services Co., Association Grocers of

Colorado, Inc., Keebler Company and McKesson Wine

and Spirits Co., all of Denver, CO; American Excelsior

Corp. of Arlington, TX; Alpine Lumber Co. and Husky

Oil Company of Englewood, CO; Pacific Coast Produc-

er’s of Santa Clara, CA: Slaughter Brothers, Inc. and

Lennox Industries, Inc., of Dallas, TX; Alamaden Vine-

yards of San Jose, CA; The Dorris Lumber & Mouldings

10a

Co. and Western Bark Sales, Inc., of Sacramento, CA;

Trammell Crow Distributions Corporation and National

Distribution Systems of Clearfield, UT; Gonzalez & Com-

pany, Inc., of Gonzalez, CA; Gerber Products Company

of Fremont, MI; American Forest Products Co., and

United Vinters Inc., of San Francisco, CA. Collectively,

shippers require service on a wide variety of commodi-

ties including air conditioners, foods and food products,

boxes, pulpwood and paper products, cleaning compounds,

plastic articles, wines, lumber and lumber products and

appliances. All of the shippers have described the com-

modities to be transported, the volume to be tendered

applicant, and problems with existing service. Repre-

sentative origin and destination points are shown by most

of the shippers. Others indicate customers are located

throughout the 48 contiguous States. A number of ship-

pers require insulated equipment, while several require

high cube van equipment. A large number of shippers

support the instant application in order to shift trans-

portation services from rail to motor common carriage.

Shippers currently using motor common carriers gen-

erally express a need to have additional equipment avail-

able and an opportunity to use a carrier with a more

competitive rate structure.

Tri-State holds authority to transport general commodi-

ties between points in the United States, operates 1,164

tractors and 2,585 trailers, and contends that a grant of

this application would have a detrimental effect upon its

operations. Tri-State, in 1982, generated approximately

$64 million in revenue which assertedly would be subject

to diversion by a grant of the application. Protestant

claims that the diversion of any meaningful portion of

this traffic would have a disastrous effect upon its opera-

tions; it suffered a loss of $799.00 in 1982. Tri-State

notes that its traffic was down 20 percent in 1982, that it

currently had idle equipment throughout its system, and

it attributes this decrease in business to the more liberal

he en AOR Lh aires.

lla

entry policy of the Commission. Further diversion and

lack of traffic, we are told, will result in further closing

of terminals and additional layoffs in personnel. It be-

lieves that the application should be denied in view of

applicant’s failure to provide “special circumstances”.

On the record before us, we find that applicant has

met its threshold burden. A representative showing is

all that is required, and the specific commodities, origins

and destinations named are sufficiently representative of

the authority sought by the 27 supporting shippers.

Tri-State has not shown that a grant of authority to

applicant would harm its overall operations to an extent

injurious to the public interest. So long as it provides

reasonable service and competitive rates, there is no rea-

son to assume that its traffic would be diverted by appli-

cant. Furthermore, Tri-State has done little to show that

a grant of the application would be inconsistent with the

public convenience and necessity, merely citing poten-

tially divertible traffic and revenues from increased

competition. This factor, in and of itself, cannot, under

the Motor Carrier Act of 1980, be made the basis for a

denial of authority otherwise adequately supported by the

record.

Finally, contrary to protestant’s contentions, a rail-

road need no longer demonstrate “special circumstances”

in order to obtain unrestricted motor carrier authority.

Motor Carrier Operating Authority—Railroads, 132

M.C.C. 978 (1982).

We find:

Performance by applicant of the service described in

the appendix will serve a useful public purpose, re-

sponsive to a public demand or need. Applicant is fit,

willing and able properly to perform the granted service

and to conform to statutory and administrative require-

ments. This action will not significantly affect either

12a

the quality of the human environment or conservation of

energy resources. An appropriate certificate should be

granted.

It is ordered:

The application is granted to the extent set forth in the

appendix. Operations may begin only following the serv-

ice of a certificate and upon compliance with the follow-

ing requirements set forth in the Code of Federal Regu-

lations: insurance (49 CFR 1043), designation of process

agent (49 CFR 1044), and tariffs (49 CFR 1310).

Compliance with these requirements must be made

within 90 days after the date of service of this decision

or the grant of authority shall be void.

By the Commission, the Review Board, Members Carle-

ton, Parker, and Krock.

AGATHA L. MERGENOVICH

Secretary

[SEAL]

13a

APPENDIX

Authority to conduct the following operations will be

issued in an appropriate document. This decision does

not constitute authority to operate.

To operate as a common carrier, by motor vehicle, in

interstate or foreign commerce, over irregular routes,

transporting general commodities (except classes A and

B explosives, household goods, and commodities in bulk),

betwen points in the United States (except Alaska and

Hawaii).

14a

APPENDIX D

INTERSTATE COMMERCE COMMISSION

DECISION

No. MC-166474 (Sub-No. 1)

Service Date

Nov. 15, 1983

THE DENVER AND RIO GRANDE WESTERN RAILROAD

COMPANY, EXTENSION—POINTS IN THE UNITED STATES

(Denver, CO)

Decided: November 8, 1983

We have considered the application and the record in

this proceeding, the appeal filed by protestant Tri-State

Motor Transit Co., the petitions to intervene filed by

American Trucking Associations, Inc. (ATA) and the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America (Teamsters),

and applicant’s reply.

The ATA and Teamsters here renew their challenge to

the legality of the elimination of the “special circum-

stances” doctrine in Ex Parte No. MC-156, Motor Carrier

Operating Authority—Railroads, 182 M.C.C. 978 (1982).

1 The “special circumstances” doctrine allowed a departure from

the requirements of imposing auxiliary-to-rail restrictions on motor

carrier authority issued to railroads or rail affiliates in licensing

proceedings. The doctrine allowed issuance of unrestricted author-

ity where the rail affiliated applicant could show a “compelling

need” for its service by demonstrating (1) that a grant of unre-

stricted authority would not result in undue restraint of competi-

tion, and (2) that the public interest requires the proposed opera-

tion which was not being furnished by independent motor car-

riers. Ex Parte No. MC-156, supra, at 981. The doctrine was elimi-

nated to make it easier for railroads and rail affiliates to obtain

unrestricted motor carrier authority.

eee Se

CRE PE PON id TA? non SoG

Poe A CLE De Clg hE EE, peat, TE

Ok Cette aC OR,

tt RENN IER ELS AMEE AE DALE NGOS

fee PA AO

15a

This issue is pending before the United States Court of

Appeals for the Fifth Circuit in American Trucking

Associations, et al. v. I.C.C., et al., No. 83-4039. They

contend that they should be allowed to intervene in this

proceeding in order to “maintain the integrity of the

licensing procedures” of this Commission and compliance

with “the regulatory scheme set forth by Congress in the

Interstate Commerce Act.”

The ATA and Teamsters had the opportunity to ap-

pear when this proceeding was commenced and prior to

the decision by the Review Board. They did not choose

to do so. Furthermore, the apparent purpose of inter-

vening in this proceeding is to attack the validity of the

elimination of the “special circumstances” doctrine. This

would unduly broaden the issues raised in this proceeding

contrary to our rules of practice [49 C.F.R. 1112.4.] and

in effect constitutes a collateral attack on Ex Parte No.

MC-156. As such, petitioners raise no issues that can

properly be considered here. We will deny the petitions

of ATA and Teamsters to intervene. Petitioners’ inter-

ests will not be prejudiced inasmuch as their concerns will

be addressed by the Court of Appeals.

By decision served September 8, 1983, the Review

Board granted applicant’s request to transport general

commodities (except classes A and B explosives, house-

hold goods, and commodities in bulk), between points in

the United States (except Alaska and Hawaii). The

Board held that a railroad need no longer demonstrate

“special circumstances” in order to obtain unrestricted

motor carrier authority, citing Ex Parte No. MC-156,

supra.

Protestant does not challenge whether applicant has

met the criteria of 49 U.S.C. 10922 or established a need

for the proposed service. Rather, it contends that the

authority should not be granted since applicant failed

to establish “special circumstances.” Protestant is con-

16a

cerned that the granting of this application will result

in the filing of similar applications by other rail carriers

and their affiliates while the review of Ex Parte No. MC-

156 is pending in Court. It requests us to (1) issue a

notice or order that, pending final decision by the Court,

applications filed under Ex Parte No. MC-156 will be

held in abeyance or not accepted for filing until further

order; or (2) attach a condition limiting any certificates

granted in those proceedings to the lesser of (a) a term

of one year from its issuance, or (b) reconsideration of

the proceeding based on the final decision by the Court.

The Fifth Circuit Court of Appeals has not issued a

stay of the rules in Ex Parte No. MC-156 pending its

review of that proceeding. Accordingly, there is no legal

impediment to rendering a decision in this application

proceeding. We see no valid reason to either hold this

case or other similar cases in abeyance or to impose a

condition on the certificates to be issued. Ex Parte No.

MC-156 is quite clear that a railroad need no longer dem-

onstrate “special circumstances.” Therefore, we will not

reverse the Review Board decision. For reasons stated

above, protestant’s attack on the validity of the elimina-

tion of the “special circumstances” doctrine constitutes an

inappropriate issue to consider here.

The Review Board correctly found that applicant has

established a need for the proposed service. The applica-

tion is supported by 27 shippers which require service for

a wide variety of commodities throughout the 48 con-

tiguous states. Those using motor carriers expressed a

need to have more service available. Only one protestant

opposed the application. Protestant did not show that a

grant of the application would be inconsistent with the

public convenience and necessity.

The grant of the requested authority will allow im-

proved and innovative service through the combined use

of piggyback, motor, and rail service by one carrier. In

addition to promoting intermodal service, the granted au-

Rabati: a Dnt ue sata Pes ¢ weal

17a

thority should afford shippers a new and efficient service

option.

It is ordered:

The petitions to intervene of the American Trucking

Associations, Inc., and the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America are denied.

Protestant’s appeal is denied because the findings of

the Review Board are in accordance with the evidence

and the applicable law.

The application is granted to the extent set forth in

the appendix. Operations may begin only following the

service of a certificate and upon compliance with the

following requirements set forth in the Code of Federal

Regulations: insurance (49 CFR 1043), designation of

process agent (49 CFR 1044), and tariffs (49 CFR

1310).

Compliance with these requirements must be made

within 90 days after the date of service of this decision

or the grant of authority shall be void.

This decision will take effect 25 days from its date

of service.

By the Commission, Division 1, Acting as an Appellate

Division, Commissioners Andre, Taylor, and Sterrett.

Commissioner Taylor is assigned to this Division for the

purpose of resolving the votes. Since there was no tie

in this matter, Commissioner Taylor did not participate.

AGATHA L. MERGENOVICH

Secretary

[SEAL ]

18a

APPENDIX

Authority to conduct the following operations will be

issued in an appropriate document. This decision does

not constitute authority to operate.

To operate as a common carrier, by motor vehicle, in in-

terstate or foreign commerce, over irregular routes,

transporting general commodities (except classes A and

B explosives, household goods, and commodities in bulk),

between points in the United States (except Alaska and

Hawaii).

19a

APPENDIX E

The pertinent provisions of the Interstate Commerce

Act as amended by the Motor Carrier Act of 1980, P.L.

96-296, 94 Stat. 793, et seg. and the Staggers Rail Act

of 1980, P.L. 96-448, 94 Stat. 1895 et seq. are as follows:

§ 10101. Transportation policy

(a) Except where policy has an impact on rail car-

riers, in which case the principles of section 10101a of

this title shall govern, to ensure the development, co-

ordination, and preservation of a transportation system

that meets the transportation needs of the United States,

including the United States Postal Service and national

defense, it is the policy of the United States Government

te provide for the impartial regulation of the modes of

transportation subject to this subtitle, and—

(1) in regulating those modes—

(A) to recognize and preserve the inherent

advantage of each mode of transportation;

(B) to promote safe, adequate, economical,

and efficient transportation;

in transportation, including sound economic

conditions among carriers;

(D) to encourage the establishment and main-

tenance of reasonable rates for transportation,

without unreasonable discrimination or unfair

or destructive competitive practices;

(E) to cooperate with each State and the of-

ficials of each State on transportation matters;

and

(F) to encourage fair wages and working

conditions in the transportation industry;

(2) in regulating transportation by motor car-

rier, to promote competitive and efficient transpor-

20a

tation services in order to (A) meet the needs of

shippers, receivers, passengers, and consumers; (B)

allow a variety of quality and price options to meet

changing market demands and the diverse require-

ments of the shipping and traveling public; (C)

allow the most productive use of equipment and

energy resources; (D) enable efficient and well-

managed carriers to earn adequate profits, attract

capital, and maintain fair wages and working con-

ditions; (E) provide and maintain service to small

communities and small shippers and intrastate bus

services; (F) provide and maintain commuter bus

operations; (G) improve and maintain a sound,

safe, and competitive privately owned motor carrier

system; (H) promote greater participation by mi-

norities in the motor carrier system; and (I) pro-

mote intermodal transportation; and

(3) in regulating transportation by motor carrier

of passengers (A) to cooperate with the States on

transportation matters for the purpose of encourag-

ing the States to exercise intrastate regulatory juris-

diction in accordance with the objections of this sub-

title; (B) to provide Federal procedures which en-

sure that intrastate regulation is exercised in ac-

cordance with this subtitle; and (C) to ensure that

Federal reform initiatives enacted by the Bus Regu-

latory Reform Act of 1982 are not nullified by State

regulatory actions.

(b) This subtitle shall be administered and enforced

to carry out the policy of this section.

§1010la. Rail transportation policy

In regulating the railroad industry, it is the policy of

the United States Government—

(1) to allow, to the maximum extent possible,

competition and the demand for services to establish

reasonable rates for transportation by rail;

2la

(2) to minimize the need for Federal regulatory

control over the rail transportation system and to

require fair and expeditious regulatory decisions

when regulation is required;

(3) to promote a safe and efficient rail trans-

portation system by allowing rail carriers to earn

adequate revenues, as determined by the Interstate

Commerce Commission ;

(4) to ensure the development and continuation

of a sound rail transportation system with effective

competition among rail carriers and with other

modes, to meet the needs of the public and the na-

tional defense;

(5) to foster sound economic conditions in trans-

portation and to ensure effective competition and

coordination between rail carriers and other modes;

(6) to maintain reasonable rates where there is

an absence of effective competition and where rail

rates provide revenues which exceed the amount

necessary to maintain the rail system and to attract

capital;

(7) to reduce regulatory barriers to entry into

and exit from the industry;

(8) to operate transportation facilities and equip-

ment without detriment to the public health and

safety ;

(9) to cooperate with the States on transportation

matters to assure that intrastate rezulatory jurisdic-

tion is exercised in accordance with the standards

established in this subtitle;

(10) to encourage honest and efficient manage-

ment of railroads and, in particular, the elimination

of noncompensatory rates for rail transportation;

(11) to require rail carriers, to the maximum ex-

tent practicable, to rely on individual rate increases,

22a

and to limit the use of increases of general appli-

cability ;

(12) to encourage fair wages and safe and suit-

able working conditions in the railroad industry;

(13) to prohibit predatory pricing and practices,

to avoid undue concentrations of market power and

to prohibit unlawful discrimination;

(14) to ensure the availability of accurate cost

information in regulatory proceedings, while mini-

mizing the burden on rail carriers of developing

and maintaining the capability of providing such

informaticn ; and

(15) to encourage and promote energy conserva-

tion.

Added Pub.L. 96-448, Title I, §101(a), Oct. 14, 1980,

84 Stat. 1897.

§ 10505. Autherity to exempt rail carrier transportation

(a) In a matter related to a rail carrier providing

transportation subject to the jurisdiction of the Inter-

state Commerce Commission under this subchapter, the

Commission shall exempt a person, class of persons, or a

transaction or service when the Commission finds that

the application of a provision of this subtitle—

(1) is not necessary to carry out the transporta-

tion policy of section 10101a of this title; and

(2) either (A) the transaction or service is of

limited scope, or (B) the application of a provision

of this subtitle is not needed to protect shippers

from the abuse of market power.

(b) The Commission may, where appropriate, begin

a proceeding under this section on its own initiative or

on application by the Secretary of Transportation or an

interested party.

23a

during which an exemption granted under this section

is effective.

(d) The Commission may revoke an exemption, to the

extent it specifies, when it finds that application of a

provision of this subtitle to the person, class, or trans-

portation is necessary to carry out the transportation

policy of section 10101la of this title.

(e) No exemption order issued pursuant to this sec-

tion shall operate to relieve any rail carrier from an

obligation to provide contractual terms for liability and

claims which are consistent with the provisions of section

11707 of this title. Nothing in this subsection or section

11707 of this title shall prevent rail carriers frorn of-

fering alternative terms nor give the Commission the

authority to require any specific level of rates or services

based upor the provisions of section 11707 of this title.

(f) The Commission may exercise its authority under

this section to exempt transportation that is provided

by a rail carrier as a part of a continuous intermoda!

movement.

(a) The Commission may not exercise its authority

under this section (1) to authorize intermodal ownership

that is otherwise prohibited by this title, or (2) to re

lieve a carrier of its obligation to protect the interests

of employees as required by this subtitle. Pub.L. 95-473,

Oct. 17, 1978, 92 Stat. 13861; Pub.L. 96-448, Title II,

§ 213, Oct. 14, 1980, 94 Stat. 1912.

§ 10922. Certificates of motor and water common car-

riers

(a) Except as provided in this section and section

10930(a) of this title, the Interstate Commerce Com-

mission shall issue a certificate to a person authorizing

that person to provide transportation subject to the ju-

risdiction of the Commission under subchapter ITI of

24a

chapter 105 of this title as a water common carrier if

the Commission finds that—

(1) the person is fit, willing and able—

(A) to provide the transportation to be au-

thorized by the certificate; and

(B) to comply with this subtitle and regula-

tions of the Commission; and

(2) the transportation to be provided under the

certificate is or will be required by the present or

future public convenience and necessity.

(b) (1) Except as provided in this section, the Inter-

state Commerce Commission shall issue a certificate to

a person authorizing that person to provide transporta-

tion subject to the jurisdiction of the Commission under

subchapter II of chapter 105 of this title as a motor

common carrier of property if the Commission finds—

(A) that the person is fit, willing, and able to

provide the transportation to be authorized by the

certificate and to comply with this subtitle and reg-

ulations of the Commission; and

(B) on the basis of evidence presented by persons

supporting the issuance of the certificate, that the

service proposed will serve a useful public purpose,

responsive to a public demand or need;

unless the Commission finds, on the basis of evidence

presented by persons objecting to the issuance of a cer-

tificate, that the transportation to be authorized by the

certificate is inconsistent with the public convenience and

necessity.

(2) In making a finding under paragraph (1) of this

subsection, the Commission shall consider and, to the

extent applicable, make findings on at least the following:

(A) the transportation policy of section 10101 (a)

of this title; and

25a

(B) the effect of issuance of the certificate on

existing carriers, except that the Commission shall

not find diversion of revenue or traffic from an ex-

isting carrier to be in and of itself inconsistent with

the public convenience and necessity.

(i) (1) Not later than 180 days after the date of en-

actment of this subsection, the Commission shall—

(A) eliminate gateway restrictions and circuitous

route limitations imposed upon motor common car-

riers of property; and

(B) implement, by regulation, procedures to proc-

ess expeditiously applications of individual motor

carriers of property seeking removal of operating

restrictions in order to—

(i) reasonably broaden the categories of prop-

erty authorized by the carrier’s certificate or

permit ;

(ii) authorize transportation or service to in-

termediate points on the carrier’s routes;

(iii) provide round-trip authority where only

one-way authority exists;

(iv) eliminate unreasonable or excessively

narrow territorial limitations; or

(v) eliminate any other unreasonable restric-

tion that the Commission deems to be wasteful

of fuel, inefficient, or contrary to the public

interest.

* - a o

(k) A motor common carrier of property may deliver

to or receive from a rail carrier a trailer moving in

trailer-on-flat-car service at any point on the route of the

rail carrier if the motor carrier is authorized to serve

the origin and destination points of the traffic.

26a

Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1409; Pub.L. 96-

296, §§ 5(a), 6, 34(a), July 1, 1980, 94 Stat. 794, 796,

825; Pub.L. 96-454, §10(a), Oct. 15, 1980, 94 Stat.

2021; Pub. L. 97-261, §§ 6(a)-(c), (g), 7, 8, Sept. 20,

1982, 96 Stat. 1103, 1107, 1108.

§ 10923. Permits of motor and water contract carriers

and freight forwarders

(a) Except as provided in this section and section

10930 of this title, the Interstate Commerce Commission

shall issue a permit to a person authorizing the person

to provide transportation subject to the jurisdiction of

the Commission under subchapter II or III of chapter

105 of this title as a motor contract carrier or water

contract carrier, respectively, or to provide service sub-

ject to that jurisdiction under subchapter IV of chapter

105 as a freight forwarder, if the Commission finds

that—

(1) the person is fit, willing, and able—

(A) to provide the transportation or service

to be authorized by the permit; and

(B) to comply with this subtitle and regula-

tions of the Commission; and

(2) the transportation or service to be provided

under the permit is or will be consistent with the

public interest and the transportation policy of sec-

tion 10101 of this title.

(e) A motor contract carrier of property may deliver

to or receive from a rail carrier a trailer moving in

trailer-on-flat-car service at any point on the route of

the rail carrier if the motor carrier is authorized to

serve the origin and destination points of the traffic.

Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1410; Pub.L. 96-

258, §1(9), June 3, 1980, 94 Stat. 426; Pub.L. 96-296,

§§ 10(a) (2), (3), 34(b), July 1, 1980, 94 Stat. 799, 800,

27a

825; Pub. L. 97-261, §13(a), Sept. 20, 1982, 96 Stat.

1114,

§ 11344. Consolidation, merger, and acquisition of con-

trol: general procedure and conditions of ap-

proval

a * * *

(ec) The Commission shall approve and authorize a

transaction under this section when it finds the transac-

tion is consistent with the public interest. The Commis-

sion may impose conditions governing the transaction.

When the transaction contemplates a guaranty or as-

sumption of payment of dividends or of fixed charges

or will result in an increase of total fixed charges, the

Commission may approve and authorize the transaction

only if it finds that the guaranty, assumption, or increase

is consistent with the public interest. When a rail car-

rier, or a person controlled by or affiliated with a rail

carrier, is an applicant and the transaction involves a

motor carrier, the Commission may approve and au-

thorize the transaction only if it finds that the transac-

tion is consistent with the public interest, will enable the

rail carrier to use motor carrier transportation to public

advantage in its operations, and will not unreasonably

restrain competition. When a rail carrier is involved in

the transaction, the Commission may require inclusion of

other rail carriers located in the area involved in the

transaction if they apply for inclusion and the Commis-

sion finds their inclusion to be consistent with the public

interest.

- + a *

Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1486; Pub.L. 96-

448, Title II, § 228(a)-(c), Oct. 14, 1980, 94 Stat. 1931;

Pub.L. 97-261 § 21(f), (g), Sept. 20, 1982, 96 Stat. 1123.

28a

APPENDIX F

THE FIFTY LARGEST TRANSPORTATION COMPANIES

(Source: Fortune Magazine, June 11, 1984, pp. 188-189)

TABLE I—TRANSPORTATION COMPANIES RANKED

ACCORDING TO ASSETS

Rail

Company Rank Assets

Santa Fe Southern Pacific 1 $11.4B

Burlington Northern 2 $10.9B

CSX 3 $10.8B

Norfolk Southern 4 $ 8.2B

Illinois Central Gulf RR 15 $ 1.9B

Chicago & North Western Transportation 19 $ 1.3B

Chicago Milwaukee St. Paul & Pacific RR 25 $ 1.0B

Rio Grande Industries 32 $ .8B

Kansas City Southern Industries 34 $ .7B

Motor

Company Rank Assets

McLean Industries 21 $ 1.1B

Consolidated Freightways 27 $ .9B

Roadway Services 30 $ .8B

Yellow Freight System 39 $ .6B

Overnite Transportation 43 $ .2B

Arkansas Best 44 $ .2B

Carolina Freight 45 $ .2B

American Carriers 47 $ .1B

29a

TABLE II—TRANSPORTATION COMPANIES RANKED

ACCORDING TO OPERATING REVENUES

Motor Operating

Company rank Revenue

Santa Fe Southern Pacific 1 $6.3B

CSX 4 $5.7B

Burlington Northern 6 $4.5B

Norfolk Southern 11 $3.1B

Illinois Central Gulf RR 25 $ .9B

Chicago & North Western Transportation 28 $ 9B

Kansas City Southern Industries 42 $ .4B

Chicago Milwaukee St. Paul & Pacific RR 44 $ .4B

Rio Grande Industries 46 $ .3B

Rail Operating

Company Rank Revenue

Consolidated Freightways 16 $1.3B

Roadway Services 19 $1.2B

Yellow Freight System 22 $1.1B

McLean Industries 30 $ .8B

Arkansas Best 36 $ .5B

Overnite Transportation 47 $ .38B

Carolina Freight 48 $ .3B

American Carriers 50 $ 3B

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.