Limited Service Exclusion

Floor Speech

By:  Mark Pryor
Date: Dec. 19, 2012
Location: Washington, DC

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  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.  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 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  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.

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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. 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.

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