[Federal Register Volume 64, Number 82 (Thursday, April 29, 1999)]
[Rules and Regulations]
[Pages 23020-23022]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 99-10783]



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.


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-

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:


    1. The authority citation for part 520 continues to read as 

    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]]

    2. 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,
[FR Doc. 99-10783 Filed 4-28-99; 8:45 am]