to a great degree the original fresh flavor of the article, and retains the greatest amount of vitamins. Intense cold is used in freezing, and thereafter the frozen product must be continuously kept in subfreezing temperature until ready for actual consumption. In transportation, ordinary refrigeration will not suffice, a constant temperature of 15 degrees Fahrenheit, or below, usually with dry ice (solid carbon dioxide gas), being necessary. One consignee of the frozen products specifies by contract with the carrier a temperature of 5 degrees or under. Foods so processed are termed frozen or frosted, interchangeably. It is not practicable to refreeze any of this food which has been accidentally thawed or defrosted in transit. It is clear that agricultural commodities, frozen in the manner hereinabove described, are subjected to a process of manufacture, and that the finished products are as distinct from agricultural commodities as are canned fruits and vegetables, from which both are manufactured. Fresh frozen goods are also distinguishable from foods merely under refrigeration, such as peaches, watermelons, et cetera, in that they are never prepared by the producer of the agricultural commodities from which made, are packaged, and preserved goods sold under trade brands, and can be placed in cold storage for long periods of time. We conclude that fresh frozen fruits and vegetables are "manufactured products" as that term is used in section 203 (b) (6) of the act, and that the transportation of such commodities is subject to the certificate or permit requirements of part II of the act. As to frozen sea foods, the record is lacking in material facts upon which to base a finding as to whether they are within the term "fish (including shell fish)" as used in the exemption provision of section 203 (b) (6). In any event, since applicant proposes to transport them in the same vehicles that it would use in transporting fresh frozen fruits and vegetables, the exemption provided for fish (including shell fish) would not apply thereto, and, hence, the vehicles used in their transportation also would be subject to the certificate or permit requirements of the act. The frozen-food industry, although relatively in its infancy, shows signs of expansion, especially in those areas which produce large quantities of fresh fruits, vegetables, and sea foods. There is now an acute shortage of suitable cold-storage space owing to requisition of such space by the United States Government, as a consequence of which shippers frequently are obliged to ship their products from one plant to another. Applicant has three tractors and three semitrailers. Two of the trailers were acquired in 1940 for the purpose of transporting his farm produce, but were thereafter leased to a shipper of frozen foods. Prior to April 1941, applicant had numerous requests from shippers to institute the proposed service. Representatives of John H. Dulaney & Son, of Fruitland, Md., and H. P. Cannon & Son, Inc., of Bridgeville, Del., packers of frozen foods, supported the application. Dulaney is said to handle about five-sixths of the frozen-food business on the Del-Mar-Va peninsula. During 1904, it shipped about 5 million pounds by rail and motor, the bulk of which moved by rail. Its products have been transported from points on the Del-Mar-Va peninsula to Atlanta, Ga., Asheville, Rocky Mount, and Charlotte, N. C., Charlottesville and Norfolk, Va., Salisbury and Frederick, Md., Pittsburgh, Doylestown, and Hanover, Pa., Vineland, Plainfield, and Newark, N. J., Brooklyn, Buffalo, Albany, Rochester, Elmira, Syracuse, and Canajoharie, N. Y., Hartford, Conn., and some other points in Connecticut, and Boston and Cambridge, Mass. It also buys certain frozen vegetables at Brockport, N. Y., which move to Exmore and Bridgeville from which points they are reshipped. About 90 percent of this shipper's products move from Exmore, Va., Bridgeville, and Dover, Del., are sold on delivery to cold-storage plants throughout the territory involved nearest its customer's place of business, and remain in storage until called for by the customer. Some also moves between plants at Exmore, Bridgeville, and Dover, and also Vineland, N. J. About 10 percent of this shipper's products are moved to local markets for immediate consumption. Almost any place in the territory involved is a potential cold-storage point for buyers of frozen foods. In addition to Dulaney, there are about 10 or 12 frozen-food processors and 4 or 5 other shippers on the Del-Mar-Va peninsula. In March 1941, Dulaney purchased three insulated trucks which it uses to transport its products from Exmore, Bridgeville, and Dover to points in the territory involved, and to other points, such as Chicago, Ill., and Columbus, Ohio. It also has been leasing two insulated units from applicant to take care of its overflow traffic. In addition, it has been regularly using the service of Horlacher Delivery Service, on less-than-truckload quantities throughout the Del-Mar-Va peninsula, and to Baltimore, Md., Richmond, Va., Washington, D. C., New York, N. Y., Jersey City and Camden, N. J., and Harrisburg and Philadel phia, Pa. Although Horlacher serves Dulaney's plant at Exmore daily with dry ice, and has solicited its truckload traffic, Dulaney has refused to give Horlacher this business, partly because of Horlacher's rates, and further because Horlacher does not serve all points within its trade territory. It desires to continue the use of its own trucks when economical to do so, and to lease other trucks, if and when per Hereinafter called Dulaney. missible. Dulaney does not intend to use common-carrier service if the charges therefor are higher than the cost of transporting its products in its own or leased equipment. On small shipments, Dulaney has used a small container service offered by Victor Lynn Lines, in conjunction with rail service. This service, so far as it goes, has proven satisfactory. Rail service is available throughout the territory here involved, but it has not met with satisfaction by this shipper because of advance notice required by the carrier and the time consumed in properly preparing their refrigerated equipment for service. The other shipper who supported the application has been shipping its entire output of frozen foods from Bridgeville to Camden since 1939. It has used only trucks leased from one individual, who at the date of the hearing had transferred his activities to Florida. This shipper has not been solicited by common carriers. Its representative professed lack of knowledge of the existing services of other carriers. In No. MC-60580 (Sub-No. 1), Horlacher was granted a certificate authorizing it to transport, among other things not pertinent here, general commodities, except those requiring tank truck or special equipment, over regular routes, between (a) Baltimore, Md., and Cape Charles, Va., (b) between Dover, Del., and Salisbury, Md., and (c) between New York, N. Y., and State Road, Del., and various intermediate and off-route points. Pursuant to its "grandfather" application, now pending, this carrier is engaged also in the transportation of a wide variety of commodities between certain points on the eastern seaboard extending from New York City to the southern part of Virginia. At the time of the hearing, it owned and had in operation six completely refrigerated units which it used in transporting shipments of frozen commodities, principally in truckload lots. During June or July 1940, which is the normal shipping season, it had stationed at Salisbury, Md., two refrigerated units for the purpose of handling frozen foods from points on the Del-Mar-Va peninsula. During such time, it had no calls for such service. Thereafter, these units were put into service between other points. This carrier can furnish suitable equipment to shippers on the Del-Mar-Va peninsula upon 5 or 6 hours' notice. The examiner recommended denial of the instant application. Applicant's exceptions urge that the evidence adequately shows a need for the proposed service between all points in the territory involved, particularly between points not served by existing motor carriers. He contends, among other things, that the examiner failed to give due weight to the testimony of a shipper witness to the effect that the shipper was obliged to purchase the type of refrigerated equipment required by its customers, and lease similar equipment from others, and also to engage in private operations in order to supply the demands of his customers. Although counsel for protestants stated for the record that a certain motor carrier, not represented at the hearing, was authorized to transport the commodities described above from Dover, Del., to points within 200 miles thereof, there is no showing of record that such carrier is actually performing any such service or if so that it is meeting the needs of the shippers interested in this proceeding. The evidence fairly establishes that the service offered by rail and motor carriers do not meet all of the demands of the shippers who supported the application. Shippers have the right to expect that adequate rail and motor-carrier service will be available to meet all reasonable requirements in their trade territories. While Horlacher is able to meet some of their transportation requirements, it is evident that that carrier cannot fulfill all of their demands. These shippers require a highly specialized service and one which cannot be satisfactorily performed by general-commodity haulers. The proposed operations would afford these shippers a more complete service than they now have available, and there is no showing of record that the granting of such authority would endanger or impair the operations of other carriers. We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle (1) of fresh frozen fruits and vegetables, and fresh frozen sea foods, (a) from Exmore, Va., and Bridgeville and Dover, Del., to Boston and Cambridge, Mass., and to all points in Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, and the District of Columbia, and (b) between Vineland, N. J., Exmore, Va., Bridgeville, and Dover, Del.; and (2) of fresh frozen fruits and vegetables from Brockport, N. Y., to Exmore, Va., and Bridgeville, Del., over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects should be denied. Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application except to the extent granted herein. 43 M. C. C. LEE, Commissioner, concurring in part: I agree that the record establishes a need for applicant's proposed service and that if authority to render such service is required by the act it should be issued. I think, however, that the proposed operations fall within the exemption provided in section 203 (b) (6) of the act. It appears that applicant does not intend to transport any other traffic on the vehicles with frozen fruits and vegetables and frozen sea foods. No doubt he will transport other traffic on such vehicles at other times. We have concluded in other cases that the exemption provided in section 203 (b) (6) is directed to the use which is made of a motor vehicle by the person who is conducting its operation, regardless of the use to which it may be put at some other time by another person, and that if the person who is conducting the operation does not engage in the transportation for hire of any commodities, except those specified in section 203 (b) (6) his operation is exempt, notwithstanding that the motor vehicle may at some other time be used by another person in transporting commodities not so specified. I now think that this conclusion places an unduly strict meaning on the provisions of section 203 (b) (6). These provisions refer to "motor vehicles" used in transporting the specified commodities and not to the "operations" or other transportation activities of the person who controls such vehicles while they are being used in carrying such commodities. I believe that the correct interpretation of these provisions of the act is that all transportation, in interstate or foreign commerce, of "livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof)" performed with motor vehicles on which no other commodities are transported for compensation at the same time falls within the exemption regardless of who controls and operates such vehicles. This interpretation is in accord with the intent of Congress, expressed in section 203 (b) (4a) and (5), to relieve, to the fullest extent consistent with the national transportation policy, transportation by motor vehicle of the unprocessed products of the agricultural industry. In determining whether the proposed operations fall within the exemption provided in section 203 (b) (6) it is, of course, necessary to decide whether frozen fruits and vegetables are unmanufactured agricultural commodities. The frozen-food industry is comparatively new and no doubt will greatly expand in the future, both with respect to volume and kinds of foods handled. Improvements in the methods of processing foods will be developed by that industry. It |