S T A T E O F M I C H I G A N
BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION
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In the matter of the application of
PREMIER FOODS, INC., d/b/a
PREMIER FOODS , for motor carrier authority.
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File No. 27366
At the May 11, 1999 meeting of the Michigan Public Service Commission in Lansing,
Michigan.
PRESENT: Hon. John G. Strand, Chairman
Hon. David A. Svanda, Commissioner
Hon. Robert B. Nelson, Commissioner
OPINION AND ORDER
On February 17, 1999, the Commission issued an order dismissing, without prejudice, an application for motor carrier authority filed by Premier Foods, Inc., d/b/a Premier Foods (Premier).
The order noted that the application was appropriately processed, but that the applicant failed to comply with the Commission’s safety requirements. On March 15, 1999, Premier filed a request for reconsideration of the dismissal and a grant of authority.
1 On April 5, 1999, the Commission Staff
(Staff) filed an answer.
In its petition, Premier refers to an exchange of written correspondence between its attorney and the Staff relating to the processing of the application. Copies of the correspondence attached to
1 Premier entitled its request a “petition for hearing” pursuant to 1992 AACS,
R 460.17403, which sets forth provisions for requesting rehearing.

the petition indicate that Premier and the Staff disputed whether the application was adequate to demonstrate compliance with MCL 479.10a(6); MSA 22.575(1)(6), which requires the driver of equipment leased to a motor carrier to be employed by the carrier. MCL 479.10a(6);
MSA 22.575(1)(6). Premier advised the Staff that it leases both drivers and vehicles from Bert
Hazekamp & Son, Inc., d/b/a Hazekamp Meats (Hazekamp). Premier, however, claimed that it exercises full control over the drivers, vehicles, and trucking functions when it is conducting carriage operations. In a letter to Premier dated January 29, 1999, the Staff indicated that it had conducted a safety/fitness analysis of Premier’s safety documentation and, as a result, had determined that Premier “does not possess the control over drivers and vehicles required by Article V,
Section 10(a) of the Michigan Motor Carrier Act [MCL 479.10a(6); MSA 22.575(1)(6)] and does not possess proper safety documents.” The Staff indicated that it had recommended dismissal of
Premier’s application (which the Commission acted on in the February 17, 1999 order). In a subsequent letter dated February 24, 1999, the Staff advised Premier that it could request a hearing within seven days.
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Premier requests that the Commission reconsider its order dismissing the application and grant its application for authority. Premier says that a grant would further the statutory policy of
“promot[ing] entrepreneurship in the motor carrier industry by allowing greater contract carrier economic and entry flexibility.” MCL 475.2(m); MSA22.532(m).
3 Premier claims that its hearing.
2 There is no indication in the docket file whether Premier either requested or waived a
3 The Commission’s January 11, 1995 order in Case No. T-1273 held that Section 601(h) of the Federal Aviation Administration Authorization Act of 1994, 49 USC 14501(c), preempted the Michigan statutory policy cited by Premier.
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operations comply with MCL 479.10a(6); MSA 22.575(1)(6) because the drivers are under its complete control and responsibility during the time that it employs them.
In response, the Staff argues that Premier failed to document compliance with federal and
Michigan safety regulations, given that much of the safety documentation it submitted was actually in the name of Hazekamp or refers to Hazekamp and Premier interchangeably. The Staff says that
Hazekamp employs the drivers leased to Premier and appears to be the controlling entity behind a business arrangement formed with Premier to provide motor carriage. The Staff argues that
Premier has not met the standard for rehearing in 1992 AACS, R 460.17403, and that its request for authority is without merit, so that the Commission would be justified in dismissing it for failure to state a claim upon which relief may be granted.
It is evident, from the parties’ briefs and the docket file, that this dispute raises material questions of fact. Because the parties’ conflicting representations do not clearly demonstrate whether Premier’s proposed service would comply with MCL 479.10a(6); MSA 22.575(1)(6) or whether it, and not Hazekamp, would in fact be providing the service, the record, as it stands, does not permit the Commission to grant Premier’s request for authority. The docket file does not indicate that Premier requested a hearing, and Premier’s petition requests a grant of authority, apparently under the Commission’s modified procedure. To assure that Premier has an opportunity to present evidence proving that it meets the requirements of the Motor Carrier Act, MCL 475.1 et seq.; MSA 22.531 et seq., for a grant of authority, the Commission will grant Premier seven days to file a written request for an evidentiary hearing on its application. If no request is filed within seven days, the docket file will be closed.
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The Commission FINDS that: a. Jurisdiction is pursuant to 1933 PA 254, as amended, MCL 475.1 et seq.; MSA 22.531 et seq.; 1939 PA 3, as amended, MCL 460.1 et seq.; MSA 22.13(1) et seq.; 1969 PA 306, as amended, MCL 24.201 et seq.; MSA 3.560(101) et seq.; and the Commission's Rules of Practice and Procedure, as amended, 1992 AACS, R 460.17101 et seq.
b. Premier should be granted seven days to file a written request for a contested case hearing.
THEREFORE, IT IS ORDERED that Premier Foods, Inc., d/b/a Premier Foods, shall have seven days from the date of this order to file a written request for a contested case hearing on its application. If no request for a hearing is filed, this docket file shall be closed.
The Commission reserves jurisdiction and may issue further orders as necessary.
Any party desiring to appeal this order must do so in the appropriate court within 30 days after issuance and notice of this order, pursuant to MCL 462.26; MSA 22.45.
MICHIGAN PUBLIC SERVICE COMMISSION
( S E A L ) /s/ John G. Strand
Chairman
By its action of May 11, 1999.
/s/ Dorothy Wideman
Its Executive Secretary
/s/ David A. Svanda
Commissioner
/s/ Robert B. Nelson
Commissioner, abstaining.
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The Commission FINDS that: a. Jurisdiction is pursuant to 1933 PA 254, as amended, MCL 475.1 et seq.; MSA 22.531 et seq.; 1939 PA 3, as amended, MCL 460.1 et seq.; MSA 22.13(1) et seq.; 1969 PA 306, as amended, MCL 24.201 et seq.; MSA 3.560(101) et seq.; and the Commission's Rules of Practice and Procedure, as amended, 1992 AACS, R 460.17101 et seq.
b. Premier should be granted seven days to file a written request for a contested case hearing.
THEREFORE, IT IS ORDERED that Premier Foods, Inc., d/b/a Premier Foods, shall have seven days from the date of this order to file a written request for a contested case hearing on its application. If no request for a hearing is filed, this docket file shall be closed.
The Commission reserves jurisdiction and may issue further orders as necessary.
Any party desiring to appeal this order must do so in the appropriate court within 30 days after issuance and notice of this order, pursuant to MCL 462.26; MSA 22.45.
MICHIGAN PUBLIC SERVICE COMMISSION
Chairman
By its action of May 11, 1999.
Its Executive Secretary
Commissioner
Commissioner, abstaining.
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In the matter of the application of
PREMIER FOODS, INC., d/b/a
PREMIER FOODS , for motor carrier authority.
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File No. 27366
Suggested Minute:
“Adopt and issue order dated May 11, 1999 granting Premier Foods, Inc., d/b/a Premier Foods, an opportunity to request a hearing on its application for motor carrier authority, as set forth in the order.”