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needed direction from the Congress as to the type and scope of economic regulation it desired for the

it desired for the motor carrier industry. This direction was desperately needed, for in its absence were faced with deregulation by administrative

we

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industry.

Now, two years later, we need another directive.

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Commerce Commission to administer the law as written and as

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APPENDIX I

Status Report of the 1.c.c.'s and D.O.T.'s

Implementation of the
Motor Carrier Act of 1980

Last year, eleven charges were made against the Interstate Commerce Commission for malfeasance, misfeasance or procrastination in implementing the Motor Carrier Act of 1980. Nothing in the past year has occurred to lessen those charges.

The 1.c.c. has kept on a steady course of attempting to implement policies which Congress did not enact, but which the 1.c.c.

hoped it would have enacted.

of last year's charges, the most glaring deficiency in 1.2.c. administration continues to be its unlawful implementa

tion of the entry provisions of the Motor Carrier Act of 1980

This has been discussed in the body of my statement.

The

remaining charges levelled against the 1.C.C. last year can be

updated as follows:

Lack of Canadian and Mexican Reciprocity

Only at the express urging of the Congress did the

1.C.C. finally initiate an investigation proceeding on the

Canadian aspect of this problem.

As a result of proposed

Senate Resolution 317 and the requests of individual Congressmen and Senators, the 1.c.c. put a hold on the granting of Canadian carrier applications and instituted an investigation (Ex Parte No. MC-157) into Canadian law and policy as it affects applications

of American carriers seeking Canadian operating authority.

The trucking industry participated extensively in the 1.C.C. proceeding. We demonstrated that entry control is tighter in

Canada and, by that fact alone, a competititive disadvantage is
created for u.s. carriers requiring I.C.C. relief, regardless
of whether Canada discriminates in its licensing process by
favoring domestic carriers. We also established the outright
discrimination represented by the Canadian Foreign Investment

Review Act.

A decision in the investigation proceeding is expected shortly, but we are not at all certain that the I.C.C. will

deal with the real issue of competitive equity in any meaningful

manner.

In view of the lack of understanding by the Commission

of the true nature of the problem, we continue to consider a legislative remedy as necessary.

Insofar as the Mexican side of the problem is concerned, the I.C.C. early on placed a moratorium on grants of authority to Mexican carriers. Since Mexico flatly bans u.s. carrier operations in that country, the 1.C.C. may well elect to ban Mexican carrier operations in the United States. The U.s. Department of Transportation and other Federal agencies have recommended

such a course of action.

However, since so much time has

elapsed in this relatively uncomplicated area, we hesitate to

predict what the 1.c.c. will ultimately decide.

Undue Enhancement of Private Carriage

The I.C.C. continues to expand the opportunities of

private carriage in excess of the provisions of the Motor Carrier Act of 1980. Last year, we pointed out that the 1.C.C. unduly broadened the scope of compensated intercorporate hauling

authorized by the provisions of section 9 of the Act.

The

for-hire segment of the trucking industry had supported this

section of the law, but felt compelled to challenge in court

the 1.c.c.'s implementation of the section on two counts.

The U.S. Court of Appeals for the Eleventh Circuit

agreed with us on the first count that the Commission was in error in holding that even individuals and partnerships who are not corporations can utilize the intercorporate hauling provisions and that such a conclusion violated the unambiguous language of the Act.1 By a decision dated June 8, 1982, the 1.2.c. has

corrected this aspect of its implementation.

Unfortunately, the court rejected our principal attack

upon the Commission's determination that a private corporation

could set up a wholly-owned subsidiary whose only business would be transportation. We had argued that, since Congress did not eliminate the existing requirements of private carriage, such an interpretation violates the statutory requirement that private carriage must be performed by and in furtherance of a non

transportation business.

The Court decided that if Congress

meant to include such a limitation on intercorporate hauling
"they would have at some point in their deliberations seen fit

to inform the Commission, and the Judiciary of their intentions

in a manner more explicit than the mere juxtaposition of the new

section to an old one that is so limited." American Trucking Associations at 853.

1

American Trucking Associations, Inc. v. I.C.C., 672 F.2d 850 TIIth Cir. 1982).

16-604 O

83 - 7

The court's rejection of this challenge presents the dilemma of controlling an administrative agency hellbent on

interpreting a Congressional law in a very liberal manner.

The

discretion afforded the agency by the courts leaves us with

only limited possibilities of curtailing the most far-flung

administrative decisions.

The rejection of this challenge significantly enhances the utilization of compensated intercorporate hauling and poses a serious threat to the continuation of a regulated transportation

system in this country.

Those who will be most adversely

affected by this onslaught of private carriage are small

shippers, small communities, and occasional shippers (both

individuals and businesses).

It is they who are most, if not

entirely, dependent upon the transporation services provided

by a regulated system.

Still another example of the I.C.C.'s undue efforts

to expand private carriage is its decision to permit for the

first time private carriers to utilize owner-operators.

Historically, this has been considered for-hire carriage. By its decision of February 17, 19822 and without any direction from

Congress, the I.C.C. has decided to dilute the distinction

between for-hire and private carriage. A court challenge of the decision is pending. 3 A stay of the effective date of

2 Ex Parte No. MC-122 (Sub-No. 2), Leave of Equipment and Drivers to Private Carriers, 132 M.C.C. 351 (1982).

3

Ryder Truck Lines, Inc. v. 1.C.C., No. 82-5247 and Bowman Transportation, Inc. v. I.C.C., No. 82-8133 (U.S. Court of Appeals, llth Cir.).

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