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01/14/83 American Trucking v. Te Commerce Commission and

January 14, 1983

CONFERENCE-IRREGULAR ROUTE, PETITIONERS

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS 1983.CDC.16



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMERICAN TRUCKING ASSOCIATION, INC., and COMMON CARRIER

Petition for Review of an Order of the Inerstate Commerce Commission.

APPELLATE PANEL:

Wilkey, Bork and Scalia, Circuit Judges. Opinion for the Court filed by Circuit Judge Scalia.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCALIA

This is a proceeding under 28 U.S.C. §§ 2321(a) and 2342(5) (1976) to enjoin or suspend an order of the Interstate Commerce Commission. Petitioners are associations of carriers who would be adversely affected by competition which the Order permits. At issue is the Commission's interpretation and enforcement of provisions of the Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793 et seq. (codified in scattered sections of 49 U.S.C. (Supp. IV 1980)) (the "Act"), which exempt from some regulatory requirements owner-operators who carry certain agricultural commodities.

The Order that is challenged was promulgated on March 20, 1981 in the Commission's proceeding Ex Parte No. MC-143, Owner-Operator Food Transportation, 132 M.C.C. 521. This appeal was filed within 60 days, see 28 U.S.C. § 2344. The Commission has since rejected three successive motions for reconsideration by one or both of these Petitioners.*

To qualify as carriers, applicants generally must show that they are fit and that the transportation they offer is either required by public convenience and necessity, see 49 U.S.C. § 10922(a) (certificates for common carriage), or consistent with the public interest, see 49 U.S.C. § 10923(a) (permits for contract carriage). These showings need not be made, however, by applicants for

transportation by motor vehicle of food and other edible products (including edible byproducts but excluding alcoholic beverages and drugs) intended for human consumption, agricultural limestone and other soil conditioners, and agricultural fertilizers if --

(i) such transportation is provided with the owner of the motor vehicle in such vehicle, except in emergency situations; and

(ii) after issuance of the [certificate or permit, certain annual tonnage limits are observed] and the owner of the motor vehicle certifies to the Commission annually that he is complying with the provisions of this clause and provides to the Commission such information and records as the Commission may require.

49 U.S.C. §§ 10922(b) (4) , 10923(b) (5) .

The Order at issue here adopts rules to implement this provision. Petitioners' principal complaint is the definition of "owner" which it prescribes -- namely, "any person with an ownership interest of 10-percent or greater in the motor vehicle used to provide regulated transportation." 49 C.F.R. § 1138.2 (1981). We are asked to decide whether this is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (1976). We conclude that it is not.

The first step in our analysis is to determine whether the term "owner" was used by Congress in a sense that was meant to refer to a well-established legal definition or series of legal precedents, in which case we should not defer to the agency's interpretation; or rather in a sense that was meant to be informed by the nature and purpose of the statutory scheme which the Commission is charged with elaborating. See NLRB v. Hearst Publications, Inc., 322 U.S. 111, 120, 124, 88 L. Ed. 1170, 64 S. Ct. 851 (1944). We find the latter to be the case. The highly flexible nature of the term, and the subordination of rigid legalities to the overall purpose of the provision is amply demonstrated by the discussion in the House Report. Since this is ...


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