No. MC-87720 (SUB-NO. 131)'

BASS TRANSPORTATION CO., INC., EXTENSION-
ST. LOUIS, MO.

Decided July 29, 1976

Upon consideration of 10 applications and 1 petition for modification involving the issue of qualification of the proposed services as contract carriage:

1. Applications and petition, insofar as they seek motor contract carrier authority, denied;

2. Proposed operations found to be those of a common carrier by motor vehicle; 3. In Nos. MC-87720 (Sub-Nos. 143, 145, 153, and 158), public convenience and

necessity found not shown to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of specified commodities, from and to points in specified territories. Applications denied.

4. In Nos. MC-87720 (Sub-Nos. 88, 131, 146, 147, 149, 160, and 161) and No. MC135684 (Sub-No. 12), public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of specified commodities, from and to points in specified territories, subject to certain restrictions. Issuance of certificates approved upon cancellation of applicant's existing contract carrier authority and upon compliance by applicant with certain conditions within 90 days of final determination of specified conversion applications. Applications in all other respects denied.

Bert Collins, John F. Donelan, Morton E. Kiel, John K. Maser III, William A. Quinlan, William P. Sullivan, John C. White, and Frederic L. Wood for applicant/petitioner and interveners in support.

'This report also embraces Nos. MC-87720 (Sub-No. 143), Bass Transportation Co., Inc., Extension-Thompson Industries Co.; MC-87720 (Sub-No. 145), Bass Transportation Co., Inc., Extension-Dry Resins; MC-87720 (Sub-No. 146), Bass Transportation Co., Inc., Extension-Many Products; MC-87720 (Sub-No. 147), Bass Transportation Co., Inc., Extension-Thatcher Glass Manufacturing Company; MC-87720 (Sub-No. 149), Bass Transportation Co., Inc., Extension-London, Ohio; MC-87720 (Sub-No. 153), Bass Transportation Co., Inc., Extension-Bridgewater Township; MC-87720 (Sub-No. 158), Bass Transportation Co., Inc., Extension-Household and Industrial Cleaning Products; MC-87720 (Sub-No. 160), Bass Transportation Co., Inc., Extension-Neville Island and Chestertown; MC87720 (Sub-No. 161), Bass Transportation Co., Inc., Extension-Indiana Glass; MC-87720 (SubNo. 88), Bass Transportation Co., Inc., Petition for Modification of Permit and MC-135684 (SubNo. 12), Bass Transportation Co., Inc., Extension-Duplicate Glass. The decision herein in No. MC-87720 (Sub-Nos. 131, 145, 149, 153, 158, 160, 161, and 88), and in No. MC-135684 (Sub-No. 12), is by Division 1. The decision herein in No. MC-87720 (Sub-Nos. 143, 146, and 147) is by Division 1, Acting as an Appellate Division.

L. F. Abel, Henry O. Barnhart, Maurice F. Bishop, Wilhelmina Boersma, H. L. Brady, R. Edwin Brady, Eldon E. Bresee, Elliott Bunce, R. W. Burgess, John P. Carlton, Sam Cerniglia, Robert Cross, J. R. Ferris, Norbert B. Flick, H. B. Foster, Michael E. Gribble, J. B. Ham, Thomas M. Hummer, Frank V. Klein, William J. Lavelle, Lawrence E. Lindeman, William J. Little, Vernon M. Masters, Ralph B. Matthews, B. K. McClain, W. C. Mitchell, Larry Mussle white, Keith G. O'Brien, Michael J. Ogborn, David Peterson, Harry Pohland, Joseph E. Rebman, Roland Rice, C. F. Schnee, Jr., Richard R. Sigmon, J. B. Stuart, Robert M. Sweatman, Frank W. Taylor, Jr., Richard M. Tettelbaum, and W. C. Thornton for protestants and interveners in opposition.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS MURPHY, GRESHAM, AND CLAPP

MURPHY. Commissioner:

These proceedings encompass all the applications filed prior to July 1975 for contract carrier authority by Bass Transportation Co., Inc., of Flemington, N.J., and one corresponding common carrier application. Appendix A to this report indicates the authority sought by Bass in each proceeding, as amended where noted, as well as the filing date of each application. Appendix B lists those carriers protesting each application.

The Sub-Nos. 143 and 147 applications were considered together and denied by Review Board Number 3, by report and order entered April 25, 1974. Applicant filed a petition for reconsideration, as did the Contract Carrier Conference of American Trucking Associations, Inc.' Petitions for leave to intervene were filed by The National Industrial Traffic League, the Private Truck Council of America, Inc., and the Regular Common Carrier Conference of American Trucking Associations, Inc. They were accompanied by, respectively, a tendered petition for reconsideration, a tendered brief, and a tendered reply to the petitions for reconsideration. O.N.C. Freight Systems also filed a reply to applicant's petition in the Sub-No. 143 proceeding.

By order entered July 18, 1974, Review Board No. 3 denied the Sub-No. 146 application. Applicant filed petition for reconsideration and reopening, to which replies were filed by Churchill Truck Lines, Inc., and Chicago Kansas City Freight Line,

The Contract Carrier Conference was permitted to intervene by order entered July 23, 1974.

Inc. (jointly), Terminal Transport Company, Inc., Frozen Food Express, Inc., Refrigerated Transport Co., Inc., Midwest Coast Transport, Inc., and Hennis Freight Lines, Inc. The Contract Carrier Conference and the Regular Common Carrier Conference each filed a petition for leave to intervene, and that of the latter organization was accompanied by a tendered reply to applicant's petition.

Oral hearing was held in the Sub-No. 131 proceeding and the Administrative Law Judge recommended denial of the application. Applicant filed exceptions, and joint replies were filed (1) by Churchill Truck Lines, Inc., and Truck Transport Incorporated, (2) by Anderson Motor Service, Inc., Garrison Motor Freight, Inc., and Superior Forwarding Company, Inc., and (3) by Buske Lines, Inc., Lovelace Truck Service Inc., McBride's Express, Inc., L.A. Tucker Lines, Inc., and J.C. Ward Transfer, Inc.

The remaining applications under consideration here are pending on modified procedure, and have not yet been the subject of a report or order. All but one are contract carrier applications, including the proceeding in Sub-No. 88, which is a petition for modification of an existing permit by adding a new contracting shipper.'

The common carrier application in No. MC-135684 (Sub-No. 12) involves substantially the same commodities and territories encompassed in the contract carrier applications in Sub-Nos. 147 and 161. Because the issue of applicant's contract carrier status is relevant to all of these proceedings, it has been considered advisable to dispose of them on a consolidated basis. By order entered October 24, 1975, Division 1, Acting as an Appellate Division, reopened the Sub-Nos. 143, 146, and 147 proceedings for reconsideration on their present records in consolidated proceeding and permitted the intervention of all parties filing petitions for leave to intervene.

Bass operates as both a motor contract and common carrier. Its common carrier authority allows it to transport fresh meats from the facilities of Flavorland Industries at three midwestern points to points in 15 States and the District of Columbia. Applicant's present permits list six shippers for which contract carrier service is performed: American Biltrite, Inc., American Home Products Corporation, Tenneco, Inc., Bemis Company, Inc., Purex

'Such a petition is in reality an application for extension of contract carrier authority and section 203(a)(15) and 209(b) criteria are considered in the same manner as in a proceeding designated as an application. Blue Fleet Distributors Corp. Modification of Permit, 113 M.C.C. 778 (1971).

Corporation, Ltd., and Fisher Scientific Company. One of the Bemis permits is restricted to service under contract with Louisiana Plastics, Inc., a division of Bemis Company. Applicant has pending applications for common carrier authority to transport such commodities as ornamental iron products, commodities used by hospitals, clinics, laboratories, and nursing homes, and glass containers. Since October 1975, applicant has filed a number of conversion applications which are identified in appendix D.

The denials and recommended denials of the Sub-Nos. 131, 143, 146, and 147 applications focus on Bass' qualification as a contract carrier, specifically in reference to the "limited number of persons" criterion of section 203(a)(15) of the Interstate Commerce Act. In recommending a denial of the Sub-No. 131 application, to serve Purex, the Administrative Law Judge found that issue to be of major importance. His review of Commission records revealed that applicant held contracts to serve nine persons (the eight listed above and in footnote 3, plus Dart Industries, Inc.). However, consideration of the various subsidiaries and divisions actually benefiting from applicant's service raised the number to 15. Using either standard, the Administrative Law Judge decided the number was excessive and, therefore, the operations proposed would not be those of contract carrier.

The Sub-No. 146 application seeks authority to serve American Home Products. Review Board No. 3 noted that the evidence indicated five divisions or subsidiaries of American Home Products were involved in manufacturing and shipping products. It concluded that each of these entities would have to be considered a separate and independent person and the proper party with which the contracts for transportation service should be made. The board then concluded that a grant of the sought authority would place applicant far beyond the permissible number of shippers (persons) it may properly serve as a contract carrier, and applicant's proposal was deemed not to qualify as one for contract carriage.

'Authority to serve another shipper, Federal Paper Board Company, Inc., was purchased from Bass by Specialty Transport, Inc., pursuant to an order of the Commission, Review Board No. 5 in No. MC-F-12267, entered December 16, 1974. By order of November 21, 1975, in No. MC-F12318, that review board also approved the sale of Bass' authority to serve Riegel Products Corporation to Victory Express, Inc., and Commission records indicate that the sale has been consummated. In addition Bass has stated its intention to sell its authority to serve Fisher Scientific. Originally this authority was also to have been sold to Victory Express but was eventually excluded from consideration in the above noted proceeding. The subsequent filing of a conversion application relating to Fisher Scientific indicates applicant no longer intends to sell such authority.

In the Sub-Nos. 143 and 147 proceedings, Bass seeks authority to serve Dart Industries, Inc., an entity not presently served under permanent authority. The verified statements in support of the authority sought were submitted by two divisions of Dart in the SubNo. 143 application and by a third Dart division in the Sub-No. 147 application. The witnesses making these statements indicated that they were responsible for the transportation requirements of their individual divisions. Review Board No. 3 concluded that each division must be considered a separate person under section 203(a)(15) and that if the application were granted applicant would be serving at least 11 persons (including Federal Paper Board). Because this number would again exceed the number of persons a contract carrier is permitted to serve, the board concluded that applicant's proposal did not meet the definition of contract carriage.

DISPOSITION OF MOTIONS

Before discussing the contentions of the parties on petition for reconsideration and on exceptions, we must dispose of certain procedural matters. In the Sub-No. 143 proceeding, applicant moves to strike a portion of the reply of protestant O.N.C. Freight Systems to its petition for reconsideration, on the grounds that the information stated therein is based on a telephone conversation with an employee of the supporting shipper not qualified to furnish such information. Because this information is hearsay, this portion of protestant's reply will be stricken. Various other comments in the reply to which applicant objects will not be stricken as they merely constitute argument.

In the Sub-No. 146 proceeding, protestant Terminal Transport Company, Inc., moves to strike the verified statements of the assistant vice-president and the manager of corporate distribution analysis of American Home Products Corporation, which accompany applicant's petition, on the grounds that the filing of additional statements at this point in the proceeding is not permitted by rule 51 of the Commission's General Rules of Practice and the statements contain information which should have been included in applicant's original statement. The motion will be overruled since the statements complained of deal primarily with the issue of the status of American Home Products' divisions and subsidiaries as separate persons. This issue was raised by the review board and the statements in question are directed toward its clarification.