gestion of "increased reliance on competitive forces in ratemaking." exhibit II.) (See (d) The most damaging proposal for a more restrictive basis in the Commission's authority to suspend proposed changes in rates, to shorten the suspension period to 3 months, and other changes: It is our understanding that approximately 98 percent of all tariffs become effective without suspension. The other 2 perceut, however, is very important and the burden of the proof of the lawfulness of this rate should be definitely upon the carrier that is proposing it, for they are serviced by adequate traffic consultants and legal authority and know beforehand whether or not the rate is a lawful one or an unlawful one. Our farmers and industries in the Pacific Northwest would have been injured tremendously on numerous occasions if this 2 percent that we speak of had been permitted to go into effect short of the suspension period or by having to prove the lawfulness of the rate themselves. The burden of proof is properly upon the carrier suggesting the rate. It is our considered judgment that the carrier proposing the rate change has been thinking of this for quite some time with adequate opportunity of determining ahead whether it is a lawful or just rate. It seems to us that shifting this burden of proof is not in the public interest. (e) The amendment to the Agricultural Exemptions Act: Our farmers respecfully suggest that the Congress and the Interstate Commerce Commission move carefully in amending the agricultural commodity exemption for this particular section is of vital importance to our farmers in the Pacific Northwest. If it is to them, we feel certain it also is important to agricultural areas at large throughout the Nation. The existing rate structures are the result of many conditions which have been carefully considered by the Interstate Commerce Commission and which are constantly being studied by the Commission with a view to arriving at a solution fair to both carrier and shipper. The major change of philosophy such as recommended by the Presidential Advisory Committee is not, in our judgment, in the public interest and can only result in chaos, time loss, and an expenditure of hundreds of thousands of dollars in an attempt to understand the meaning of these changes and how the courts will interpret them. Industries, communities, and carriers alike would be in a state of chaos for a considerable period of time. The national transportation policy as adopted in 1940 is a sound, realistic, and democratic approach to the building of a strong national transportation system. Some reasonable body must necessarily weigh in balance the transportation industry of the country as a whole, as opposed to the dynamic competitive forces of any particular group of shippers or even groups of communities or of carriers. We conclude that the points covered in our statement as recommended by the Presidential Advisory Committee are not in the national interest, and do recommend the retention of those parts of the Interstate Commerce Act, including the national transportation policy as now constituted. Comparison of 1930 versus present 1956 all-rail and rail-barge rates on grain to Portland, Oreg., and Vancouver, Wash. REDUCED RATES REFLECTED BY BARGE COMPETITION Comparison of 1930 versus present 1956 all-rail and rail-barge rates on grain to 1 Rates include all ex parte increases including ex parte 196-A-5 percent, effective Mar. 7, 1956. Source: N. P. C. F. B. Tariffs No. 10-Series 1330-I. C. C. No. 222 and 1956-I. C. C. No. 875. STATEMENT OF JOSEPH E. KELLER ON BEHALF OF PRIVATE CARRIER CONFERENCE, INC. My name is Joseph E. Keller of the law firm of Dow, Lohnes & Albertson, Munsey Building, Washington, D. C. I file this statement here today on behalf of the Private Carrier Conference, Inc., of American Trucking Association, Inc. We are indeed grateful for this opportunity to give our views on House bill 6141. The conference is an independent, autonomous association with offices at 1424 16th Street. NW., Washington, D. C. Its direct membership is composed of over 1,600 firms which operate private motortrucks in the furtherance of their principal business activity, including mining, lumbering, farming, manufacturing, processing, distribution, etc. In addition, the conference speaks for all of the thousands of private carrier members of State Trucking Associations affiliated with American Trucking Associations, Inc. There are 50 such State organizations, 1 in each State and the District of Columbia, with 2 such affiliated groups in the State of Illinois. There are approximately 5,224,000 trucks engaged in private carriage in the United States, not including 2,903,000 trucks operated by farmers. Approxi mately 648,000 such trucks are intercity in character, and 4,576,000 are engaged in local deliveries. The Private Carrier Conference, as you can see, represents a vast segment of truck operators in the United States. The conference at this time wants to express its firm opposition to House bill 6141, as a whole, and more particularly to those provisions which would redefine a private carrier of property by motor vehicle. In this respect, the Private Carrier Conference fully supports the position taken by witnesses for the American Trucking Associations, and particularly the testimony of Mr. James F. Pinkney, who informed the committee that all conferences of ATA, both private and for-hire, are opposed to the redefinition of a private carrier as proposed in H. R. 6141. It is our purpose to supplement that testimony, and to point out the disastrous effect such legislation would have on the private truck operators of this Nation. The legislative proposal advocated by Secretary of Commerce Sinclair Weeks, Chairman of the Presidential Advisory Committee on Transport Policy and Organization, in his statement issued on April 18, 1955, and as embodied in House bill 6141, has revealed itself to be what private carriers have feared all along it was-a smokescreen attack upon all businessmen and farmers hauling their own goods in their own private trucks. It has become abundantly clear since April of 1955, if there were questions in people's minds at that time about the import of the Weeks report, that the national transportation policy as recommended by the Presidential Cabinet Com. mittee represents one of the greatest threats which private carriers have ever faced. The purported objective of the Weeks committee report was to eliminate unregulated truckers operating under athe guise of private carriage, but its real effect will certainly demolish the solid and substantial legislative foundation upon which the operations of all bona fide private truckowners is presently based. The recommendations contained in the Weeks report specifically call for a redefinition of private carriage under the Interstate Commerce Act, which would nullify the hard-won "primary business" test which has afforded a definite and workable basis for the existent definition of private carriage. These recommendations have found expression in section 10 (c) of House bill 6141 which would amend the present definition of private carrier by motor vehicle in section 203 (a) (17) of the present act by eliminating the clause "When such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise," and substitute in lieu thereof this provision: “Provided, That such owenrship, lease, or bailment was not for the purpose of such transportation." In addition to some probably inadvertent undesirable effects which would flow from this change, the fundamental threat it assures is the upsetting of the "primary business" doctrine. We have already gone through a long process of judicial interpretation once and as a result we now have a definition of "private carrier" which is eminently fair and workable. It is a definition which has been developed at the expense of much litigation before the Commission and the courts. The basic test was laid down in Woitishek Common Carrier Application (42 M. C. C. 193 (1943)), where the Commission reviewed the entire subject of for-hire versus private carriage. Though this was not the first time the Commission had considered the subject, it laid down a definitive rule in the Woitishek case as follows: "After careful reconsideration of the entire subject, we are convinced that we should continue as in the past to determine all issues of for-hire versus private carriage on the basis of the operator's primary business. In so doing, we shall, of course, give appropriate consideration to the fact, when shown, that an operator receives compensation for transportation performed identifiable as such, but we do not think that such fact alone should be allowed to control our decisions. Neither does it follow that an operator having a bona fide business other than transportation may not also be a carrier for hire if it appears that any transportation which he performs is not primarily in furtherance of his noncarrier interest but rather is performed with a purpose to profit from the transportation as such. In short, each case must be determined upon its own particular facts and neither the receipt of compensation for transportation identifiable as such nor the existing of some noncarrier business to which the transportation may be incidental is alone conclusive." Following the Woitishek case there was a series of Commission decisions further defining and reaffirming the basic difference between private carriers and those subject to regulation by the Interstate Commerce Commission. A good example of the continuous struggle that has been waged for recognition by private carriers is the matter of Burlington Mills Corp.-Transp. for Compensation (48 M. C. C. 787 (1948); rehearing 53 M. C. C. 327 (1951)). In 1948 the Commission opened an investigation on its own motion into the motor carrier operation of Burlington Mills. In its decision the Commission stated, "The facts above stated clearly established that Burlington's primary business is that of the manufacturer and processing of textiles. There is no showing that any motor-carrier transportation service is furnished by Burlington for any of the now remaining subsidiary corporations." Proceedings were again opened in 1950 upon the basis of petitions filed by rail carriers, and new evidence was submitted relating to the policy and intent of Burlington Mills in the operation of their motor vehicles. For a second time the Commission held Burlington Mills to be a private carrier. "Upon careful consideration of the entire record, we find nothing to support a conclusion that the operation by Burlington of its wn vehicles in the manner above described is done with the intention of profiting from a motor-carrier operation as a separate enterprise apart from its primary business of manufacturing." In both decisions the Commission cited the WaitiAk case and Lenoir Chair Co. Contract Carrier Application (48 M. C. C. 259 (1948)), as being controlling and as presenting the true test, the "primary business purpose" test, as the basis for determination. The Commission decisions in the Lenoir case and the Schenley Distillers Corp. Contract Carrier Application case were appealed to the United States Court for the Eastern District of Virginia, which specifically upheld the Commission's criterion of primary business purpose. On appeal, this decision was affirmed by the United States Supreme Court. The "primary business" doctrine which emerged from this series of tests has since been given repeated and successful application. To undo it now, as recommended by the Cabinet Committee, would be utter folly, and would work a grave injustice and hardship upon private carriers. In addition, it would raise new questions about the definitions of other types of carriers. Moreover, the "primary business" test provides the control over "pseudo carriers whose operations are largely opportunistic in character"-to quote from the Cabinet Committee Report-which the committee so bitterly scores. They are "illegitimate private carriers"-those who engage in what amounts to public carriage by buying their loads outright and selling them at the end of a trip. Certainly the voice of the Private Carrier Conference is not raised in any way on behalf of these so-called gypsies; we decry their operations and are officially on record to that effect. The point is, concerning the unregulated trucks, that the primary business test-which the Cabinet Committee would nullify-is the very tool by which such operations could be stopped. Its doctrine, implemented by the powers of the Interstate Commerce Commission, would disqualify them. The Cabinet Committee report would discard the solution to the very problem which it most loudly deplores. In this connection, the committee's attention is directed to a recent exchange of correspondence between the Private Carrier Conference and Chairman Arpaia, of the Interstate Commerce Commission, in which this matter of "subterfuge" was frankly discussed. Copies of this correspondence are offered for the record as being directly pertinent to this problem. It will be noted that this conference has offered its full cooperation to the Interstate Commerce Commission in attacking this problem, and is of the firm conviction that corrective measures can be taken without disturbing the truck operations of legitimate, bona fide private highway transporters in the manner proposed in the Weeks committee bills. It is to be noted, of course, that the committee report flatly stated “legitimate private carriage is not in issue." This has indeed a hollow ring, following as it does directly upon the heels of the committee statement that— "A primary problem in transportation at present concerns the infringement of private carriers upon the fields of common carriage and the need for remedial action in the form of more effective regulation of private carriers or enactment of legislation to delineate more adequately the proper place and status of such carriers." [Italic supplied.] Manifestly, the term "private carriers" as here used does not by implication, by context, or by the statement following upon the heels of the sentence in which it is used, in any sense refer only to the "gypsy operators." It obviously refers to all private carriage, thus placing all private carriage within the pale of criticism purportedly directed toward some. That this is true is further attested by the fact that all this appears under the recommendation to redefine the term "private carrier." There is no question but that the recommendation ipso facto places legitimate private carriage at issue. Then add to all this the critical fact that legitimate private carriers, such as laundries and processing plants, under the proposed redefinition offered in the original Weeks Committee report, which purportedly did not place legitimate private carriage in issue, could no longer operate at all as private carriers. It appears unquestionably that not only is legitimate private carriage in issue in the report-it is virtually at stake. In addition to upsetting the "primary business" test, the Weeks Committee report suggested change in the definition of private carriage by dropping the requirement that transportation must be for "furtherance of any commercial enterprise" would have another interesting and certainly undesirable effect. As Chairman Magnuson, of the Senate Interstate and Foreign Commerce Committee, recently said in an address to private carriers: "Without the requirement that the transportation must be for commercial purposes, anyone who transports in interstate commerce goods which he owns or leases would be a private carrier subject to ICC safety regulation. This would be true even though the transportation is carrying one's own camping equipment or taking one's clothing to the cleaners in a private automobile. Thus enormous numbers of additional people would be brought under safety regulation by the ICC by the change in definition. The Cabinet Committee, as I read the report, wanted additional economic regulation of private and contract carriers that now compete with common carriers. I doubt that the committee has accomplished what it intended by vastly increasing safety regulation. This seems to be unnec essary legislation in any event." We wholeheartedly agree. The Weeks Committee report, which inadvertently brings all tourists carrying their own baggage under Interstate Commerce Com |