interruption, and the general custom and practices prevailing in an industry. See Thomas Keery Co., Inc. v. New York, O. & W. Ry. Co., 206 I.C.C. 585, 588-589 (1935). as Though intent is in issue, we do not find error in the Administrative Law Judge's refusal to permit questions on subjective intent at the hearing. The shipper's state of mind as respects the movement of the commodity in commerce demonstrated by the documents and circumstances of the transactions and by reference to the series of acts in which they participated. Cf. Farmers Union Cooperative Marketing Association v. State Corporation Commission of Kansas, 302 F. Supp. 778 (D. Kans., 1969). Nor do we agree with the Bureau and intervener that the written statements of the witnesses should have been entered into the record. Former rule 77 of the Commission's General Rules of Practice leaves the admission of such documents to the discretion of the hearing officer and there has been no showing of harm by the exclusion of the statements, particularly since the witnesses were available for questioning at the hearing. No single factor of those considered by the Commission determines the essential nature of the commerce at issue. However, the Commission has noted several indicia of intrastate commerce in Petroleum Products Transported Within a Single State, supra. They include: (1) the absence of specific orders for specific amounts of product to a specific destination from terminal storage, (2) the fact that the terminal storage area also serves as a local marketing facility or distribution point from which amounts of product are sold or allocated, and (3) the fact that transportation arrangements for subsequent distribution within the State are made only after the product has arrived in storage facility. The initial decision is correct in its findings that these critieria exist for most of the shippers which use Northville's pipeline. Distributors decide to withdraw oil at either Setauket, Holtsville, or Plainview, depending on conditions existing at the time the product arrives in the Setauket terminal. Most shippers maintain supply at the terminal according to historic area demand patterns, and the product they withdraw has been commingled with that of several other shippers. The Bureau and intervener cite the existence of throughput agreements which specify prices for transportation throughput the system as proof of shippers' continuing intent. However, such agreements do not determine intent, since the destination for removal of the product from the pipeline may vary from Setauket to Holtsville to Plainview, depending on variable distribution and marketing factors. We are satisfied that transportation through the ship-to-shore pipes extending from Port Jefferson to Setauket by itself is not in interstate commerce. The record indicates that the pipes are relatively short and used primarily for offloading product from tankers in the harbor. Any movement back to a ship through these pipes is similar in nature to the offloading process, and does not alone constitute pipeline transportation in interstate commerce. While the Administrative Law Judge correctly concluded that there was insufficient evidence of interstate commerce with respect to most of the movements involved, we disagree with his conclusion concerning the shipments by Lilco. Although Lilco's product is in many ways handled in a fashion similar to the handling of product belonging to other shippers, there are significant differences. Lilco uses only segregated storage, and its product is never commingled with product ordered by other shippers. Lilco's product is not sold or distributed from storage because Lilco itself is the ultimate consumer. The record indicates that Lilco uses all the product at its Holbrook generating plant, and removes all the product from Northville's pipeline at Holtsville. The fact, that Lilco has the option of removing its product at Setauket is not determinative in light of Lilco's actual practice. Respondent has argued that Lilco's product does not move in interstate commerce beyond Setauket because Lilco's Setauket storage tank is larger than its Holtsville storage tank and because Lilco's product undergoes processing at Setauket. We do not find these arguments persuasive in light of the other facts of record. The 24-hour period for settling and testing for specifications is not equivalent to the more extensive processing implied in the Jet Fuel case. Moreover, it is clear from the record that Lilco's shipments have their destination determined prior to their arrival at Port Jefferson, that the ultimate consumer is known at all times and that they are never commingled with these of any other shipper. The brief stopover in Setauket for setting and testing is no more than a temporary interruption in the flow of petroleum into Port Jefferson and from Port Jefferson to Holtsville. This Commission recently stated that "Public policy and the law dictate a preference of Federal regulation where pipelines are involved in interstate or foreign commerce." (United States DOD v. Interstate Storage, 353 I.C.C. 397, 404 (1977)). The fact that here there are intrastate movements as well as shipments in interstate commerce using the same facilities does not preclude a finding of Commission jurisdiction over the interstate movement. Therefore, we conclude the Administrative Law Judge erred to the extent that he concluded that Northville's pipeline is not engaged in interstate commerce and found that this Commission does not have jurisdiction to regulate the pipeline. According, we find that the movements as described above of petroleum by pipeline from ship to ultimate destination at Holtsville, N.Y., constitutes transportation in interstate commerce, and are, therefore, subject to regulation under the Interstate Commerce Act and this Commission's jurisdiction. ULTIMATE FINDINGS 1. Movements of petroleum products from U.S. and foreign origins outside New York State to the ultimate destination at Holtsville, N.Y., constitutes transportation in interstate commerce. 2. Northville Industries Corp., Northville Dock Pipe Line Corp., Consolidated Petroleum Terminal, Inc., and Total Resources, Inc., operate a pipeline system and are engaged in interstate commerce subject to the Commission's jurisdiction under section 1(1)(b) of the Interstate Commerce Act, to the extent they participate in the interstate movements found here. 3. Northville Industries, Corp., Northville Dock Pipe Line Corp., Consolidated Petroleum Terminal, Inc., and Total Resources, Inc., are common carrier pipeline companies within the meaning of section 1(3)(a) of the act. IT IS ORDERED: 1. Respondents shall file annual, periodic, and special reports and institute and maintain a uniform system of accounts applicable to pipelines, both under section 20 of the act, and shall publish and file schedules showing the rates and charges for interstate transportation of petroleum products, pursuant to section 6 of the act. Proceedings. discontinued. 357 I.C.C. No. 36400 ALLADIN LAMPSHADE CORP. v. GEORGIA LTL lots of lampshades manufactured by complainant found to be properly classified under item 109139 of the National Motor Freight Classification 100-B to take a nested rating of class 250 and all allegations of unlawfulness in connection with the movement of lampshades so classified found not substantiated. Complaint denied. James B. Curasi and Bernard C. Pestcoe for complainant. John W. Joyce and Sherman D. Schwartzberg for defendants. William W. Pugh for intervenor, National Classification Committee. DECISION AND ORDER At a Session of the INTERSTATE COMMERCE COMMISSION, Division 2 (Commissioners Hardin, Murphy, and Clapp), held at its office in Washington, D.C., on the 8th day of August 1977. Upon consideration of the complaint and of the record in the above-entitled proceeding, including the initial decision of the Administrative Law Judge served April 20, 1977, the exceptions filed thereto by complainant on May 20, 1977, and the reply filed by defendants on June 16, 1977; and including a prior order served on March 10, 1977, granting complainant's motion to strike certain letters submitted in evidence in the statements of facts and arguments of defendants and of an intervenor in support of defendants, to which the said intervenor, National Classification Committee, filed a petition for reconsideration on March 14, 1977, and complainant filed a reply on April 5, 1977; It appearing, That the Administrative Law Judge's decision based on the entire record as submitted, including the disputed letters, found against complainant to the effect that complainant's shipments of plastic lampshades were not properly classified under the sought class 85 rating' in the National Motor Freight 'Class 85 rating applies on commodities described in item 109090 of the National Motor Freight Classification 100-B, as follows: Diffusers, globes, shades, refractors, or reflectors, NOI, incandescent lamp or lighting fixtures, molded plastic, in boxes or crates. Classification applying on molded plastic lampshades but were properly classified under a class 250 rating' charged by defendant carriers, which latter description was not restricted to molded lampshades but included lampshades "constructed in various ways. from *** various materials such as complainant's products, consisting of a combination of such materials;" and that complainant did not show the applicable rating to be unreasonable or otherwise unlawful; It further appearing, That the order striking the disputed letters on the grounds that one is hearsay and the other two are related to informal proceedings and, therefore, not probative evidence in a formal proceeding, should be vacated and set aside; that the Commission is not bound by the same strictures of a court of law with respect to evidence; that rule 73 of the Commission's General Rules of Practice (49 CFR 1100.75) states that the rules of evidence shall be applied only to the end that justice is served while protecting the substantial rights of the parties and the Commission has, therefore, traditionally interpreted evidentiary rules liberally; that the letter 3 submitted by a witness for intervenor, the National Classification Board, was from the traffic manager of the Lamp and Shade Institute of America to the Chairman of NCB; that the letter, while it may not be strictly within a court of law's interpretation of the business records exception, is within its sprit; that it is probative of the matters athand, and its reliability is strengthened by the fact that it was obtained by intervenor in the normal course of business and was for 10 years a part of its official records; that in any event the Administrative Law Judge gave the letter no weight in his decision; and (2) the other two letters' submitted in evidence by "Class 250 rating applies on commodities described in item 109139 of the National Motor Freight Classification 100-B, as follows: Globes, shades, diffusers, refractors, or reflectors, NOI, lamp or lighting fixtures, in wooden boxes or Packages ***. "A letter submitted in evidence by intervenor's witness Collins, a member of the National Classification Board since June 1975, from the traffic manager of the Lamp and Shade Institute of America to the chairman of the board in September 1965, concerning the then proposed descriptive item which is now item 109090 and, in essence, urging that the description be limited to molded plastic shades since molded plastic shades were the product manufactured by the shipper proposing the item and because other than molded plastic shades allegedly "have the same transportation characteristics as the cellulose, cloth, paper or pulpboard shades." 'Two letters submitted in evidence by witness Collins and by two witnesses for defendants, namely, witnesses Adams and Martin, from the Chief of the Section of Rates and Informal Cases of this Commission to the president of complainant in February and April 1976, which stated, in the main: After careful examination of the three shades it is our determination that they are not molded plastic within the meaning of item 109090. Such shades are manufactured from several different materials, one of which is plastic sheeting. As stated in your explanation of the manufacturing process, it is the plastic sheeting that is molded plastic, and not the lamp shade itself. |