Tariffs and service contracts: Carrier automated tariff systems,
[Federal Register: April 29, 1999 (Volume 64, Number 82)]
[Rules and Regulations]
[Page 23020-23022]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap99-9]
FEDERAL MARITIME COMMISSION
46 CFR Part 520
[Docket No. 98-29]
Carrier Automated Tariff Systems
AGENCY: Federal Maritime Commission.
ACTION: Adoption of final rule.
SUMMARY: This rule adopts as final, with certain clarifying modifications, the interim rule published on February 26, 1999, which added a definition for motor vehicles to the Federal Maritime Commission's regulations concerning automated tariff systems.
DATES: Effective May 1, 1999.
FOR FURTHER INFORMATION CONTACT:
Austin L. Schmitt, Director, Bureau of Tariffs, Certification and Licensing, Federal Maritime Commission, 800 North Capitol Street, NW, Room 940, Washington, DC 20573, (202) 523-5796 Thomas Panebianco, General Counsel, Federal Maritime Commission, 800 North Capitol Street, NW, Room 1018, Washington, DC 20573, (202) 523- 5740
SUPPLEMENTARY INFORMATION: On March 8, 1999, the Federal Maritime Commission (``FMC'' or ``Commission'') published a final rule establishing requirements for carrier automated tariff systems in accordance with the Shipping Act of 1984 (``1984 Act''), 46 U.S.C. app. section 1702 et seq., as amended by the Ocean Shipping Reform Act of 1998 (``OSRA''), Public Law 105-258, 112 Stat. 1902, 64 FR 11218. At the same time, the Commission adopted a new definition for the term ``motor vehicle.'' Because this term was not included in the proposed rule, it went into effect as an interim final rule, and interested parties were given an opportunity to comment on it.
The Commission's proposed definition in Sec. 520.2 stated:
[[Page 23021]]
Motor vehicle means an automobile, truck, van, or other motor vehicle used for the transportation of passengers and cargo; but does not include equipment such as farm or road equipment which has wheels, but whose primary purpose is other than transportation.
The Commission explained that although the proposed rule did not contain a definition for ``motor vehicle,'' the appearance of the term in OSRA may have created some confusion in the industry. The Commission concluded that the proposed definition appears consistent with the discussion in the Senate Report on S. 414, S. Rep. No. 61, 105th Cong., 1st Sess. (1997) (``Report'').
The Commission received only one comment on the definition of ``motor vehicle,'' from Wallenius Lines AB (``Wallenius''), a common carrier engaged in the transportation of vehicles. Wallenius contends that it was involved in the process that led to the elimination of the tariff publishing requirement for ``new assembled motor vehicles.'' It further submits that those involved in this process were clear as to the intent and reach of this exception, and that the legislative history of OSRA would be adequate to reflect that intention. It contends, however, that the Commission's proposed definition has upset this balance by adding to the definition of ``motor vehicles'' vehicles used for transportation of cargo.
Wallenius believes that the legislative history of OSRA indicates that the commodity described as ``new assembled motor vehicles'' is substantially narrower than that defined by the Commission. It contends that the Report refers to motor vehicles in terms of automobiles that move in ``* * * specialized, roll-on, roll-off vessels, usually in very large quantity, single shipment lots pursuant to a * * * (service) contract.'' Report at 22. Wallenius submits that this type of service is understood in the automobile manufacturing industry and by its transportation providers as referring to ``new, fully assembled automobile manufacturer products the primary purpose of which is the non-commercial transportation of passengers.'' Wallenius contends that this includes vehicles such as automobiles, sport utility vehicles, passenger minivans and pickup trucks, which move in large quantities, in single shipment lots, for the manufacturer under contract with a carrier.
In this regard, Wallenius notes that the Report refers to prior petitions for exemption before the Commission that related exclusively to automotive manufacturers' products. It also notes that the Report states that the reason for the excepted treatment under OSRA is the nature of the ``new, assembled automobile shipper market,'' which is described as very concentrated and employing unique shipping practices.
Wallenius believes that the market encompassed by the Commission's proposed definition of ``motor vehicles'' is significantly broader than the market intended to be reached by the exception. It interprets the Commission's proposed definition as including vehicles solely for the transportation of cargo, including commercial trucks and vans (including ``18-wheelers''), and buses and trolleys. It argues, however, that such cargoes are not part of the new, assembled automobile shipper market that OSRA intended to address. Wallenius further asserts that such an extension flies in the face of the general rule of statutory construction that exceptions to statutory provisions should not be expanded by implication. Wallenius, therefore, suggests that the Commission adopt the following definition for ``new assembled motor vehicles'':
a new, assembled passenger vehicle product which is an automobile, a sport utility vehicle, minivan, pickup truck or other wheeled vehicle, the primary purpose of which is the non-commercial transportation of passengers, and which is tendered for shipment by the manufacturer or the manufacturer's authorized representative.
As an initial matter, Wallenius has overstated the breadth of the Commission's proposed definition for motor vehicle. The definition refers to automobiles, trucks, vans, or other motor vehicles used for the transportation of passengers and cargo. The latter portion of this provision is written in the conjunctive and does not, therefore, include vehicles used solely for the transportation of cargo, e.g. ``18-wheelers.'' It covers simply vehicles used for the transportation of passengers and cargo--for example, automobiles. It was not the intent of the Commission to carve out such a broad exception, as indicated by the further explication that motor vehicle does not include wheeled equipment such as farm or road equipment whose primary purpose is other than transportation.
Wallenius' proposed definition has four distinct elements for a motor vehicle: (1) It must be new and assembled; (2) it must be a passenger vehicle product--i.e. an automobile, a sport utility vehicle, minivan, pickup truck or other wheeled vehicle; (3) its primary purpose must be the non-commercial transportation of passengers; and (4) it must be tendered by the manufacturer or the manufacturer's authorized representative. This particular definition may be somewhat narrower than that intended by Congress, although, as Wallenius points out, Congress did reference the fact that common carriers of automobiles using specialized roll-on, roll-off vessels did previously petition the Commission for an exemption from tariff filing under the 1984 Act. Moreover, the discussion of the motor vehicle exemption was limited to the common carriage of automobiles and the new, assembled automobile shipper market, and concluded that common carriage requirements are not necessary for that particular market. Report at 22.
Nonetheless, Congress chose the term ``motor vehicles'' rather than ``automobiles'' in the statute, and that term must be given its full and proper meaning. The term ``motor vehicle'' is necessarily broader than the term ``automobile.'' At the very least, ``motor vehicle'' includes automobiles, but it must include more. In addition, there is nothing in the legislative history that indicates that new, assembled motor vehicles are only excepted if they are tendered by a manufacturer or a manufacturer's authorized representative. Accordingly, the Commission is adopting a compromise definition that should meet most of Wallenius' concerns and still comport with Congress' intent.
The Commission has received OMB approval for this collection of information pursuant to the Paperwork Reduction Act of 1995, as amended. In accordance with that Act, agencies are required to display a currently valid control number. The valid control number for the collection is 3072-0064.
The Commission is not aware of any other federal rules that duplicate, overlap, or conflict with the new rule.
List of Subjects in 46 CFR Part 520
Common carriers; Freight; Intermodal transportation; Maritime carriers; Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 46 CFR part 520 which was published at 64 FR 11218 on March 8, 1999, is adopted as a final rule with the following change:
PART 520--CARRIER AUTOMATED TARIFFS
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The authority citation for part 520 continues to read as follows:
Authority: 5 U.S.C. 553; 46 U.S.C. app. 1701-1702, 1707-1709, 1712, 1716; Pub. L. 105-258, 112 Stat. 1902; and sec. 424 of Pub. L. 105-383, 112 Stat. 3411.
[[Page 23022]]
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Amend Sec. 520.2 by revising the definition of motor vehicle to read as follows:
Sec. 520.2 Definitions.
* * * * *
Motor vehicle means a wheeled vehicle whose primary purpose is ordinarily the non-commercial transportation of passengers, including an automobile, pickup truck, minivan, or sport utility vehicle. * * * * * Bryant L. VanBrakle, Secretary.
[FR Doc. 99-10783Filed4-28-99; 8:45 am]
BILLING CODE 6730-01-P
