[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 17883-17885]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       LIMITED SERVICE EXCLUSION

  Mr. PRYOR. Mr. President, I rise today to address an issue that has 
arisen between companies within the moving industry. Recently, a group 
of full-service moving companies has attempted to change rules 
established by law, regulations, and court findings. These full-service 
moving companies are aiming to undermine the clear intent of Congress 
by avoiding the formal rulemaking or legislative process. The changes 
sought would benefit their companies and damage their competitors 
within the sector.
  In recent years, full-service moving companies have faced new 
competition from a growing number of companies that allow consumers a 
``do it yourself'' alternative to more expensive, traditional movers. 
Some general freight motor carriers have been offering ``do it 
yourself'' consumers an option for moving: a non-household goods motor 
carrier drops off empty containers or trailers at the consumer's 
doorstep for the consumer to load, the consumer loads the trailer--
individually, with help from neighbors, or by hiring a third party. 
After loading, the consumer calls the container company or freight 
carrier to pick up the container or trailer, the container company then 
arranges for an authorized general freight or flatbed carrier to pick 
up and haul the loaded container, dropping it off on the requested 
delivery date for the consumer to unload; and the carrier returns to 
pick up the empty container or trailer when unloaded. The customer is 
able to purchase the level of service he or she wants and manage the 
process themselves from start to finish.
  Mr. President, that is precisely the type of service alternative 
Congress intended to encourage when it included the so-called ``Limited 
Service Exclusion'' in the ``Household Goods Mover Oversight 
Enforcement and Reform Act of 2005,'' enacted as Sec. Sec.  4201-16 of 
Pub. L. No. 109-59, 119 Stat. 1144 (2005), now known as ``SAFETEA-LU.'' 
This Limited Service Exclusion, codified at 49 U.S.C. Sec.  13102 
(12)(c), expressly states that:

       The term [household goods motor carrier] does not include a 
     motor carrier when the motor carrier provides transportation 
     of household goods in containers or trailers that are 
     entirely loaded and unloaded by an individual (other than an 
     employee or agent of the motor carrier).

  I sponsored this provision and worked with others in Congress to 
incorporate this Limited Service Exclusion into law and want to be 
clear of the intent of the law. The ``Limited Service Exclusion'' was 
intended for the non-household goods motor carrier that drops off empty 
containers or trailers, which are loaded by the consumer or a third 
party, and then delivered or stored by the container company or freight 
carrier. The exclusion's

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intent was to keep portable container supply companies and general 
freight carriers from the regulations required for household good 
movers.
  The written guidance that has been requested by the full-service 
moving companies are pushing would ignore the Limited Service 
Exclusion's intent by blocking portable container supply companies and 
general freight carriers from relying on this statutory exclusion to 
work together and with the do it yourself consumer to move the 
consumer's belongings to his new home. That requested interpretation 
would reverse decades of legal precedent and rule that if the container 
supplier or general freight carrier refers the consumer to a third 
party who provides the labor to load or unload the containers and 
trailers, and the consumer elects to use those services, this third 
party automatically becomes the ``agent'' of that container company or 
trucking company. This attempted change of the statute with its 
anticompetitive effects is exactly the opposite of what I and my 
colleagues in the Senate and the House who voted for SAFETEA-LU 
intended.
  The traditional moving companies urge the FMCSA to adopt a definition 
of ``agent''--as such term is used in the Limited Service Exclusion. 
This would result in greater costs to consumers and will prevent 
container and general freight carriers from using the Limited Service 
Exclusion as Congress intended. The FMCSA already has embedded in its 
regulations the ideal basis for arriving at a definition of ``agent'' 
that is consistent with our intent. The FMCSA's own regulation, 49 CFR 
Sec.  375.103, requires it to apply the ``ordinary practical meaning'' 
to the term ``agent.'' The ``ordinary practical meaning'' of the term 
agent is well settled as a matter of black letter law and there is no 
cause for a federal agency to attempt to further interpret such a well-
established term. Simply put, the definition compels a finding that: as 
long as the container or freight carrier does not control the third 
party who the consumer engages to load and unload the container or 
trailer, the carrier does not authorize the third party to act for and 
on behalf of this carrier, and the third party does not agree to act on 
behalf of the carrier, then the third party is not the agent of the 
carrier. Facilitating the consumer to contract with a third party that 
provides loading and unloading services does not create an agency 
relationship as we intended that term in the Limited Service Exclusion. 
Moreover, on a related issue, the Limited Service Exclusion should 
remain intact even if the carrier receives compensation for 
facilitating the consumer to contract with packing and loading 
providers, provided that the carrier does not have an agency 
relationship with the packing and loading providers.
  Mr. RUBIO. Mr. President, as Senator Pryor points out, the clear 
intent of Congress in adopting the Limited Service Exclusion section of 
SAFETEA-LU was to ensure cost-conscious, budget-driven consumers will 
continue to have the option to choose low-cost moving services for 
their goods. Although I was not a member of Congress when SAFETEA-LU 
was passed, you can plainly see that Congress made it clear in another 
section of SAFETEA-LU that it was codifying and preserving decades of 
law developed and perpetuated at the FMCSA, its predecessor the 
Interstate Commerce Commission, and the courts that authorize general 
commodity motor carriers lacking household goods authority to transport 
household goods as long as they do not perform specialized household 
goods related services such as loading and unloading. Here is what 
Congress added to SAFETEA-LU, now codified at 49 U.S.C. Sec.  
13102(12)(B):

       The term [``household goods motor carrier''] includes any 
     person that is considered to be a household goods motor 
     carrier under regulations, determinations, and decisions of 
     the Federal Motor Carrier Safety Administration that are in 
     effect on the date of enactment of the Household Goods Mover 
     Oversight Enforcement and Reform Act of 2005.

  The definition of ``household goods motor carrier'' that Congress 
sought to preserve and perpetuate focuses on the nature of the services 
performed, not on the commodity itself. If the motor carrier provides 
specialized household goods related services--packing, loading, 
unloading, etc.--for the consumer, the carrier must be deemed a 
``household goods motor carrier'' with respect to the goods it 
transports under a long line of court, FMCSA and ICC decisions and 
implementing regulations. Conversely, if the carrier (or its agent) 
does not perform those specialized services in conjunction with those 
household goods, it may transport them without being registered and 
regulated as a ``household goods carrier.'' This emphasis on the nature 
of the carrier services performed and not the nature of the commodity 
itself is also at the very heart of and reflected in the appropriately 
named ``Limited Service Exclusion.'' The interpretation that the 
traditional movers advocate would overturn, not preserve, agency 
precedent and arrive at a definition of ``household goods motor 
carrier'' that unlawfully contravenes the service-based exclusion 
codified in 49 U.S.C. Sec.  13102(12)(c).
  Mr. PRYOR. Along with the growth of general freight motor carriers 
and container-supply companies catering to the needs of do-it-yourself 
consumers, we have seen some of these same companies become regulated 
property brokers and step forward in this capacity to assist these 
consumers. For a negotiated fee, they offer to arrange with portable 
container companies and general freight carriers to place the 
containers and trailers for loading and to have them transported to 
their destinations when loaded. To counteract this middleman-service, 
the full-service traditional moving companies are now urging the FMCSA 
to require do it yourself consumers desiring broker assistance to 
engage only brokers registered with and regulated by the FMCSA as 
``household goods brokers'' to make these arrangements on their behalf 
and to require them to use only registered, full-service ``household 
goods motor carriers'' to perform the underlying transportation.
  Their principal argument relies upon a false negative inference they 
want the FMCSA to draw from the absence of a similar ``Limited Service 
Exclusion'' from the ``household goods broker'' definition for brokers 
that arrange household goods moves for do-it-yourself consumers. This 
effort at changing the meaning of the statute further obstructs the 
intent behind the Household Goods Mover Oversight Enforcement and 
Reform Act of 2005. We want the consumers to have access to low-cost 
transportation services as an alternative to the traditional full-
service moving companies when motor carriers, lacking specific 
household goods authority and not providing specialized household goods 
related services, perform the underlying transportation in reliance 
upon the Limited Service Exclusion codified at 49 U.S.C. 
Sec. 13102(12)(c). No broker-specific Limited Service Exclusion is 
required: if the underlying motor carrier service does not provide 
packing and loading services, then the motor carrier need not hold 
household goods authority from the FMCSA. In turn, the broker engaged 
by the consumer to arrange the transportation (without any packing and 
loading services) likewise need not hold household goods broker 
authority and need not use a household goods motor carrier. 
Accordingly, a motor carrier authorized to haul property (excluding 
household goods) can perform the move.
  Mr. RUBIO. Mr. President, as Senator Pryor has articulated, the FMCSA 
should not suppress competition in the moving industry, and my fear is 
that this would happen if the agency eliminates an important moving 
option for do-it-yourself consumers. This would economically hurt the 
principal users of portable storage companies, namely the middle class, 
military, students and other price conscious consumers. For these 
reasons and the others mentioned by my colleague, it is my sincere hope 
that the FMCSA preserves the rights of consumers, as intended by 
Congress, to ready and unfettered access to lower cost options with 
respect to moving their household goods.

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