B-153067, JUN. 22, 1964

B-153067, JUN. 22, 1964

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 14, 1964, FROM THE DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, WITH ENCLOSURES, INCLUDING A LETTER OF MAY 8, 1964, FROM HEADQUARTERS, UNITED STATES ARMY TANK-AUTOMOTIVE CENTER, WARREN, MICHIGAN, WITH REFERENCE TO PROCUREMENT OF M-105A2 CARGO TRAILERS (SPECIFICATION MIL -T-10579C) DATED JUNE 1, 1962, WHICH MATTER WAS THE SUBJECT OF OUR DECISIONS OF MARCH 20, AND JUNE 2, 1964; B-153067, TO YOU. IN OUR DECISION OF JUNE 2, WE AGREED TO GIVE FURTHER CONSIDERATION TO THE CONTENTION THAT THE USE OF HEAVY HAULER MOTOR CARRIER SERVICES TO TRANSPORT TRAILERS FROM DOC-O MANUFACTURING COMPANY, SAND SPRINGS, OKLAHOMA, TO VARIOUS POINTS OUTSIDE THAT STATE IN INTERSTATE COMMERCE MAY BE ILLEGAL. A COPY OF PAGE 22-61 OF TECHNICAL MANUAL 9-500 INCLUDED IN THE FILE HERE SHOWS THE TRAILERS WEIGH 2,650 POUNDS (SHOWN OTHERWISE IN THE RECORD AS 2,750 POUNDS) AND HAVE AN OVERALL WIDTH OF 83 INCHES, A HEIGHT OF 52 5/8 INCHES FROM BASE LEVEL TO THE TOP OF BODY NOT INCLUDING THE HEIGHT OF STAKE RACK, AND AN OVERALL LENGTH OF 166 INCHES INCLUDING THE LENGTH OF THE DRAWBAR.

SECTIONS 206 (A), 209 (A), AND 210A OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 306 (A), 309 (A), AND 310A PROHIBIT COMMON AND CONTRACT CARRIERS BY MOTOR VEHICLE FROM ENGAGING IN INTERSTATE COMMERCE ON ANY PUBLIC HIGHWAY WITHOUT A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY (IN THE CASE OF COMMON CARRIERS) OR A PERMIT (IN THE CASE OF CONTRACT CARRIERS) OR OTHER TEMPORARY AUTHORITY ISSUED BY THE INTERSTATE COMMERCE COMMISSION. ALSO, IT HAS BEEN HELD THAT THE FACT THAT THE CARRIAGE IS FOR THE UNITED STATES DOES NOT REMOVE THE NECESSITY FOR SUCH AUTHORITY TO OPERATE AS A COMMON OR CONTRACT MOTOR VEHICLE CARRIER IN INTERSTATE COMMERCE. UNIVERSAL TRANSPORTATION COMPANY EXEMPTION AND CONTRACT CARRIER APPLICATIONS, 250 I.C.C. 737; U.S.A.C. TRANSPORT V. UNITED STATES, 203 F.2D 878, CERTIORARI DENIED 345 U.S. 997; UNITED STATES V. SCHUPPER MOTOR LINES, 77 F.SUPP. 737. THE CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AS TO COMMON CARRIERS UNDER SECTION 208 (B) AND PERMITS AS TO CONTRACT CARRIERS UNDER SECTION 209 (B) AS WELL AS TEMPORARY PERMITS MAY BE AND USUALLY ARE RESTRICTED AS TO THE TYPES OF COMMODITIES WHICH MAY BE CARRIED, TERRITORY TO BE SERVED, ETC. CRIMINAL SANCTIONS ARE PROVIDED FOR KNOWING AND WILLFUL VIOLATIONS OF THE TERMS OF THE CERTIFICATES, PERMITS OR LICENSES UPON COMPLAINT OF THE COMMISSION BY SECTION 222 OF THE ACT, 49 U.S.C. 322, AND THE COMMISSION IS AUTHORIZED UNDER SECTION 204 (C), 49 U.S.C. 304 (C) UPON COMPLAINT IN WRITING TO IT BY ANY PERSON, STATE BOARD OR BODY POLITIC OR UPON ITS OWN INITIATIVE TO INVESTIGATE WHETHER ANY MOTOR CARRIER HAS FAILED TO COMPLY WITH ANY REQUIREMENT ESTABLISHED UNDER PART II OF THE INTERSTATE COMMERCE ACT AND TO ISSUE ORDERS TO COMPEL COMPLIANCE. THE QUESTION OF INTERPRETING WHETHER CERTAIN ACTIONS ARE WITHIN THE OPERATING AUTHORITY GRANTED A CARRIER OR A PARTICULAR GROUP OR CLASS OF CARRIERS IS ONE WHICH SHOULD IN THE FIRST INSTANCE BE MADE BY THE AUTHORITY WHICH ISSUED THE CERTIFICATE AND A MULTITUDE OF INTERPRETATIONS OF THE SAME FEDERAL CERTIFICATE OR TYPE OF CERTIFICATE WILL THUS BE AVOIDED AND A UNIFORM ADMINISTRATION OF THE ACT WILL BE ACHIEVED. SERVICE STORAGE AND TRANSFER CO., INC. V. VIRGINIA, 359 U.S. 171; UNITED TRANSPORTS, INC. V. UNITED STATES, 214 F.SUPP. 34.

WE HAVE EXAMINED VARIOUS DECISIONS OF THE INTERSTATE COMMERCE COMMISSION CONCERNING CERTIFICATES OF CONVENIENCE AND NECESSITY ISSUED TO HEAVY HAULERS AND FIND THAT SUCH CERTIFICATES USUALLY LIMIT THEIR OPERATING RIGHTS TO THE CARRIAGE OF CERTAIN SPECIFIED HEAVY ARTICLES AND OTHER COMMODITIES WHICH BECAUSE OF THEIR SIZE (BULK) OR WEIGHT "REQUIRE" THE USE OF SPECIAL EQUIPMENT FOR THEIR TRANSPORTATION SUCH AS LOW-BED TRAILERS, GOOSE NECKS, WINCH-EQUIPPED TRAILERS OR TRAILERS OF OLD AND UNUSUAL APPEARANCE OR "REQUIRE" THE USE OF SPECIAL EQUIPMENT SUCH AS CRANES, WINCHES OR FORK LIFT TRUCKS FOR LOADING AND UNLOADING OF THE COMMODITIES. THUS THE AUTHORITY OF SUCH HEAVY TRAILERS IS LIMITED TO COMMODITIES WHICH BY THEIR NATURE REQUIRE SPECIAL EQUIPMENT EITHER FOR THEIR TRANSPORTATION OR FOR THE LOADING AND UNLOADING. GALLAGHER COMMON CARRIER APPLICATION, 48 M.C.C. 413, 415; ST. JOHNSBURY TRUCKING CO., INC., EXTENSION--- HEAVY HAULING, 53 M.C.C. 277, 278; NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION V. ROWE TRANSFER, 64 M.C.C. 229; W. J. DILLNER TRANSFER CO.--- INVESTIGATION OF OPERATIONS, 79 M.C.C. 335.

THE TEST AS TO WHETHER AN ARTICLE REQUIRES THE USE OF SPECIAL EQUIPMENT IS GENERALLY BASED ON AN INDIVIDUAL ITEM OF THE COMMODITY TO BE TRANSPORTED AND NOT ON PALLETS OR AGGREGATION OF SUCH ITEMS. AS TO THIS, SEE JOHNSON COMMON CARRIER APPLICATION, 61 M.C.C. 783, AT PAGE 791, WHEREIN IT WAS SAID:

"ALTHOUGH, AS PREVIOUSLY INDICATED, COMMODITY DESCRIPTIONS USED BY US IN CERTIFICATES AND PERMITS HAVE VARIED SOMEWHAT IN THE WORDS ACTUALLY USED, WE HAVE NOT, SO FAR AS WE ARE AWARE, EVER AUTHORIZED A GRANT OF AUTHORITY TO TRANSPORT "SHIPMENTS" AS DISTINGUISHED FROM "COMMODITIES," * * *. WE THEREFORE CONCLUDE COMMODITY OR COMMODITIES TO BE TRANSPORTED, AS CONTRASTED TO A SHIPMENT IN THE AGGREGATE, MUST BE WITHIN THE SCOPE OF THE AUTHORITY GRANTED.' THE COMMISSION HAS OFTEN HELD THAT THE INDIVIDUAL ITEM (EXCEPT FOR COMMODITIES REQUIRING AGGREGATION FOR PROTECTION PURPOSES) AND NOT THE BUNDLED OR AGGREGATED PACKAGE MUST BE USED IN DETERMINING IF SPECIAL EQUIPMENT IS REQUIRED AND WITHIN THE PROVINCE OF THE HEAVY HAULER. TARANTOLA EXTENSION, 81 M.C.C. 515, 518. THE MERE FACT THAT THE SHIPPER BUNDLES ITS PRODUCTS TO LOAD MORE CONVENIENTLY BY CRANE DOES NOT PLACE SUCH COMMODITIES IN THE CATEGORY OF THOSE REQUIRING SPECIAL EQUIPMENT BECAUSE OF SIZE OR WEIGHT. H. J. JEFFRIES TRUCK LINE, INC. EXTENSION, 68 M.C.C. 191, 194. AS STATED IN NATIONAL AUTOMOBILE TRANSPORTERS ASSN. V. ROWE TRANSFER, 64 M.C.C. 229, AT PAGE 238:

"THE MERE USE OF SPECIAL EQUIPMENT IN ORDER MORE EFFICIENTLY TO HANDLE A PAYLOAD OF A CERTAIN COMMODITY WHICH, OF ITSELF, ORDINARILY HAS NO SPECIAL REQUIREMENTS DOES NOT MAKE THE COMMODITY ONE WHICH "REQUIRES" SPECIAL EQUIPMENT AS THAT TERM IS USED IN CARRIER AUTHORITIES.'

SEE ALSO, L. C. JONES TRUCKING CO. EXTENSION--- THE DAKOTAS, 62 M.C.C. 539, 541.

THE INTERSTATE COMMERCE COMMISSION HAS FOUND THAT HEAVY HAULERS WHOSE AUTHORITY IS CONFINED TO MOVEMENT OF COMMODITIES REQUIRING THE USE OF SPECIAL EQUIPMENT OR HANDLING MAY NOT TRANSPORT ROAD ROLLERS AND SCRAPERS WEIGHING UNDER 15,000 POUNDS WHERE NO SPECIAL EQUIPMENT OR HANDLING IS REQUIRED EITHER FOR LOADING, UNLOADING OR OVER THE ROAD TRANSPORTATION, DALLAS AND MAVIS FORWARDING CO., INC., EXTENSION--- GALION, OHIO, 72 M.C.C. 653, 656-657, 79 M.C.C. 285; TRACTORS, FREEMAN V. DONALDSON TRANSFER CO., 71 M.C.C. 151; OR NEW AUTOS AND TRUCKS, L. C. JONES TRUCKING CO., EXTENSION - THE DAKOTAS, 62 M.C.C. 539, 541. IN EACH INSTANCE ELEVATED LOADING DOCKS AND RAMPS WERE AVAILABLE FOR LOADING AND UNLOADING MOST OF THE SHIPMENTS, WHICH HAVE BEEN HELD NOT TO BE SPECIAL EQUIPMENT, CONVOY CO., EXTENSION--- SNOWMOBILES, 79 M.C.C. 187, 191.

HOWEVER, THE COMMISSION HAS RECOGNIZED THAT THERE IS A TWILIGHT ZONE IN WHICH CARRIERS SPECIALIZING IN THE TRANSPORTATION OF MOTOR VEHICLES AND THOSE OPERATING UNDER HEAVY HAULER'S AUTHORITY MAY OVERLAP WHEN THE COMMODITY IS SUCH AS TO REQUIRE SPECIAL EQUIPMENT FOR LOADING, UNLOADING OR TRANSPORTATION. DESCRIPTIONS IN MOTOR CARRIER CERTIFICATES, 61 M.C.C. 209; ASHWORTH TRANSFER CO., COMMON CARRIER APPLICATION, 52 M.C.C. 492; AND, IN NATIONAL AUTOMOBILE TRANSPORTERS ASSN. V. ROWE TRANSFER, 64 M.C.C. 229, 239, IT HELD THAT A CARRIER AUTHORIZED TO TRANSPORT ,COMMODITIES THE TRANSPORTATION OF WHICH BECAUSE OF SIZE OR WEIGHT REQUIRE THE USE OF SPECIAL EQUIPMENT" MAY TRANSPORT SUCH COMMODITIES WHETHER OR NOT THE SPECIALIZED EQUIPMENT REQUIRED FOR LOADING OR UNLOADING BE FURNISHED BY IT OR BY THE CONSIGNOR OR COSIGNEE OR BOTH.

CONSIDERING THAT THE COMMODITY HERE SHIPPED IS NOT SUCH AS IS CAPABLE OF BEING LOADED UNDER ITS OWN POWER; THAT NO INFORMATION IS OF RECORD AS TO WHAT FACILITIES ARE AVAILABLE EITHER AT ORIGIN OR DESTINATION FOR LOADING OR UNLOADING (FOR EXAMPLE WHETHER A CRANE OR WINCH MAY BE REQUIRED FOR LOADING THE TRAILERS ON OR OFF THE CARRIER'S TRUCKS); THAT NO SPECIFIC DECISION OF THE INTERSTATE COMMERCE COMMISSION FORBIDDING USE OF HEAVY HAULER EQUIPMENT FOR TRANSPORTING SUCH TRAILERS HAS BEEN FOUND AND THAT SUCH A QUESTION REPRESENTS ONE IN THE FIRST INSTANCE FOR ITS DETERMINATION AS TO THE SCOPE OF THE OPERATING RIGHTS GRANTED; AND THAT SUCH TRAILERS ARE CURRENTLY UNDERSTOOD TO BE CARRIED BY BOTH CARRIERS SPECIALIZING IN CARRIAGE OF AUTOMOBILES AND BY HEAVY HAULERS, IT IS OUR VIEW THAT WE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE USE OF HEAVY HAULERS FOR TRANSPORTING THE TRAILERS FROM DOC-0 MANUFACTURING COMPANY, SAND SPRINGS, OKLAHOMA, IS ILLEGAL. WE NOTE THAT MR. E. K. HILLIS, DISTRICT SUPERVISOR OF THE INTERSTATE COMMERCE COMMISSION, DALLAS, TEXAS, IN LETTER OF MAY 7, 1964, ADDRESSED TO ATLANTIS ELECTRONICS CORPORATION, STATES IN PART

"IT IS MY OPINION THAT THE PRODUCT INVOLVED (M10542 CARGO TRAILERS) IS NOT OF SUCH SIZE OR WEIGHT TO REQUIRE THE USE OF SPECIAL EQUIPMENT TO LOAD, OR UNLOAD"

AND THEREFORE EXPRESSES THE VIEW THAT A HEAVY HAULER MAY NOT LAWFULLY TRANSPORT THE PRODUCT. HOWEVER, SUCH AN INFORMAL OPINION BY AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION, APPARENTLY BASED ON EX PARTE REPRESENTATIONS AND WITHOUT KNOWLEDGE OF THE AVAILABLE LOADING AND UNLOADING FACILITIES AT THE ORIGIN OR DESTINATION, OBVIOUSLY CANNOT BE ACCEPTED AS AN AUTHORITATIVE DECISION OF THE COMMISSION OR BINDING ON THE PARTIES NOR AS SUFFICIENTLY AUTHORITATIVE SO AS TO BE CONTROLLING UPON OUR DECISIONS. AS TO THE EFFECT OF SUCH INFORMAL OPINIONS, THE COMMISSION HAS CONSISTENTLY HELD THEY ARE "NOT BINDING ON US (THE COMMISSION) IN THE DETERMINATION OF FORMAL QUESTIONS.' SEE ZIFFRIN INC., CONTRACT CARRIER APPLICATION, 28 M.C.C. 683, 691; WASHINGTON EXPRESS, INC., INTERPRETATION OF CERTIFICATE, 63 M.C.C. 537, 543; AND, DEALERS TRANSIT, INC., INTERPRETATION OF CERTIFICATE, 79 M.C.C. 85, 87.

ACCORDINGLY, WE FEEL THAT THE OFFER OF DOC-0 MANUFACTURING COMPANY TO SHIP SIX TRAILERS BY A HEAVY HAULER MAY NOT PROPERLY BE DISREGARDED IN DETERMINING WHICH BID, CONFORMING TO THE INVITATION, WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.