ORDER

At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D. C., on the 22d day of May A. D. 1964.

No. MC-89684 (SUB-NO. 23)

WYCOFF COMPANY, INCORPORATED, EXTENSION-AIR FREIGHT

(SALT LAKE CITY, UTAH)

It appearing, That on November 22, 1961, the Commission, division 1, entered its report, 89 M.C.C. 369, and order herein denying the above-entitled application for a certificate of public convenience and necessity; and that on May 16, 1962, the Commission denied applicant's petition for reconsideration of the said order of division 1;

It further appearing, That by order entered September 21, 1962, the order of May 16, 1962, was vacated and set aside and the proceeding was reopened for further consideration on the record as made; and that action thereon has been deferred pending determination of No. MC-C-3437, Motor Transp. of Property Incidental to Air, 95 M.C.C. 71 (decided May 4, 1964), a rulemaking proceeding instituted upon the Commission's own motion.

It further appearing, That further consideration of the matters and things involved in this proceeding has been given;

It further appearing, That the said report herein of November 22, 1961, in reliance upon the decision in Panther Cartage Co. Extension-Air Freight, 88 M.C.C. 37, found, at 89 M. C. C., pages 371, 374-375, that transportation by motor vehicle to come within the partial exemption of section 203(b)(7a) of the Interstate Commerce Act must be performed within the terminal area of the direct air carrier providing the line-haul air transportation;

And it further appearing, That the finding described in the immediately preceding paragraph is in certain respects inconsistent with the conclusions reached and the regulations adopted in No. MC-C-3437, but that such findings are not determinative of the issues involved herein:

It is ordered, That the said report herein of November 22, 1961. be and it is hereby, modified (1) by the insertion of a period after the word "tariff" in the fourth line from the end of the full paragraph on page 371 of volume 89 M.C.C. (Sheet 5, line 15 of the mimeographed report served November 30, 1961) and striking the remainder of the said paragraph; and (2) by striking the paragraph beginning 10 lines from the end of page 374 and extending through line 10 of page 375 of volume 89 M.C.C. (the first full paragraph of sheet 11 of said mimeographed report);

It is further ordered, That the order entered herein on September 21, 1962, be, and it is hereby, vacated and set aside;

And it is further ordered, That to the extent the operation proposed is transportation incidental to transportation by aircraft within the partial exemption of section 203(b)(7a) of the Interstate Commerce Act and the Commission's rules and regulations thereunder, the said application be, and it is hereby dismissed; and that the application in all other respects be, and it is hereby denied.

By the Commission.

(SEAL)

HAROLD D. MCCOY,
Secretary.

95 M.C.C.

No. MC-C-1919

UNITED TRANSPORTS, INC., v. GULF SOUTHWESTERN TRANSPORTATION COMPANY

Decided June 30, 1964

Upon reconsideration, findings in prior reports, 81 M.C.C. 1 and 84 M.C.C.565, reversed. Transportation by defendant of certain military cargo trucks found to be beyond the scope of its authority. Cease and desist order entered.

Appearances as shown in the prior reports.

REPORT OF THE COMMISSION ON FURTHER RECONSIDERATION

TIERNEY, Commissioner:

The order of the Commission in this proceeding was set aside and permanently enjoined by the United States District Court for the Western District of Oklahoma in United Transports, Inc. v. United States, 214 F. Supp. 34. We subsequently have reopened the proceeding for reconsideration in light of the court's opinion. The proceeding arose from a formal complaint by United Transports, Inc., of Oklahoma City, Okla., alleging that the defendant Gulf Southwestern Transportation Company, of Houston, Tex., transported certain U. S. Army cargo trucks from Toledo, Ohio, to Fort Bliss in El Paso, Tex., without appropriate authority. In answer defendant admitted that the transportation was performed, but contended that its operating rights authorized such transportation, being embraced in authority to transport "contractors' equipment and commodities, the transportation of which because of their size or weight requires the use of specialized equipment."

In the initial report herein, 81 M.C.C. 1, decided June 23, 1959, division 1, applying the 15,000 pound "last-resort" test enunciated in Dallas & Mavis Forwarding Co., Inc., Ext.-Galion, Ohio, 79 M.C.C. 285, and W. J. Dillner Transfer Co.-Investigation of Operations, 79 M.C.C. 335, concluded that military cargo trucks of the type involved could be transported by defendant under its heavy-hauling authority, when transported in the manner described hereinafter. In the prior report, 84 M.C.C. 565, decided March 16,

1961, the entire Commission affirmed the division's findings, while clarifying the construction of the "last-resort" test by emphasizing that there is no necessity for considering and discarding each of the usual criteria for heavy-hauling service before applying the

test.

HISTORICAL BACKGROUND

Soon after the commencement of motor carrier regulation in 1935, the Commission, in accordance with section 204(b) of the Interstate Commerce Act, established classifications of motor common carriers consonant with the natural divisions in the industry existing at that time. See Classification of Motor Carriers of Property, 2 M.C.C. 703. There the distinction between the types of service offered by general-commodity carriers and heavy haulers, or carriers of heavy machinery, as they were then called, was recognized and described primarily in terms of the commodities transported, although it was also noted that there was some variation in methods of operation. There was, however, no indication that the two areas of service were competitive to any significant extent. In the ensuing years the concept of heavy hauling became expanded to include not only heavy machinery and equipment such as road machinery, structural steel, and oilfield equipment (see the Classification case, supra, p. 710), but all commodities requiring the use of special equipment or handling for their transportation. During the same period specific commodity grants and the improvement of equipment utilized by generalcommodity carriers, as well as the development of better methods of handling freight, including heavy, single-unit shipments, resulted in a gradual erosion of that field of service previously considered to be solely that of the heavy haulers. For further discussion of this background, see the Dillner case, supra, at page 347 et seq.

The problem of defining "special equipment" has likewise undergone considerable refinement during the past years. It was recognized early that the term related both to over-the-road vehicular equipment and to auxiliary devices used for loading and unloading. In Gallagher Common Carrier Application, 48 M.C.C. 413, it was found that ordinary flat-bed vehicles do not constitute special equipment, but in St. Johnsbury Trucking Co., Inc., Extension-Heavy Hauling, 53 M.C.C. 277, it was concluded that "special equipment * includes * * flat-bed vehicles, especially

*

designed for the transportation of articles of exceptional size, shape, or weight, or which have attached as a part of the vehicle any type of mechanical loading device except the ordinary tail-gate lift ** Implicit in these and other Commission decisions bearing on the heavy hauling question was the Commission's regard for preserving the respective fields of service of the heavy haulers and general-commodity carriers without creating, in effect, an artifically static economic situation which ignores technological progress. The Commission's rather comprehensive restatement and redefinition of some of the areas relating to this problem as set forth in the Dillner case has been upheld by the courts, in large measure, in W. J. Dillner Transfer Co. V. Interstate Commerce Commission 193 F. Supp. 823, aff'd 368

U. S. 6.

The so-called last-resort test had its genesis in Dallas & Mavis Forwarding Co., Inc., Ext.-Galion, Ohio, 72 M.C.C. 653. The commodities involved therein were road rollers varying in weight from 6,000 to 40,000 pounds. Division 1 found:

The transportation of the larger units, those weighing approximately 15,000 pounds or more, obviously necessitates the use of braced or heavily reinforced flat-bed trailers especially designed for hauling exceptionally heavy commodities and which, when used for that purpose, would belong in the category of "special equipment" as that term has been defined by the Commission.

The division in the first Dallas & Mavis decision was in effect saying that heavy items weighing about 15,000 pounds require the use of trailers so constructed as to constitute "special equipment" as defined in prior cases. On further hearing, 79 M.C.C. 285, the entire Commission concluded that the standard prescribed was insufficiently precise. It described further the increased load capacity of newly constructed heavy-duty flat-bed trailers and pointed out that under the test of the prior decision, a reinforced or braced vehicle of an older type might constitute special equipment while newer trailers with a load capacity as great or greater would not be classed as special equipment because they had no extra bracing or reinforcing. It was then concluded that no practical and realistic distinction could be drawn in the area, and that henceforth, contrary to the St. Johnsbury case and those decisions that followed it, flat-bed vehicles of ordinary design and usage, regardless of whether reinforced or braced, would not be considered "special equipment."

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