(This is the second of three parts of my article as published in the April 2018 edition of The Transportation Lawyer. The footnote references were modified to accommodate the formatting parameters of this blog.) Current statute. The statute in its current form, 49 USC §13506 (a)(6), provides, in part, that transportation by motor vehicle of the following commodities is exempt: (A) ordinary livestock; (B) agricultural or horticultural commodities (other than manufactured products thereof); (C) commodities listed as exempt in the Commodity List incorporated in ruling numbered 107, March 19, 1958, Bureau of Motor Carriers, Interstate Commerce Commission, other than frozen fruits, frozen berries, frozen vegetables, cocoa beans, coffee beans, tea, bananas, or hemp . . . (it continues on) (Emphasis added.) Note that subparagraph (C) starts out by stating what commodities are exempt but then abruptly changes gears - “other than” - and proceeds to specify a litany of commodities that heretofore were mostly, if not completely, exempt commodities and changes them to nonexempt commodities. The “other than” language is seemingly casual, kind of like “by the way”. Subparagraphs D and E further exempt the transportation of certain fish, livestock, poultry feed, agricultural seeds and plants. (This is the second of three parts of my article as published in the April 2018 edition of The Transportation Lawyer. The footnote references were modified to accommodate the formatting parameters of this blog.)
Current statute. The statute in its current form, 49 USC §13506 (a)(6), provides, in part, that transportation by motor vehicle of the following commodities is exempt: (A) ordinary livestock; (B) agricultural or horticultural commodities (other than manufactured products thereof);(C) commodities listed as exempt in the Commodity List incorporated in ruling numbered 107, March 19, 1958, Bureau of Motor Carriers, Interstate Commerce Commission, other than frozen fruits, frozen berries, frozen vegetables, cocoa beans, coffee beans, tea, bananas, or hemp . . . (it continues on) (Emphasis added.) Note that subparagraph (C) starts out by stating what commodities are exempt but then abruptly changes gears - “other than” - and proceeds to specify a litany of commodities that heretofore were mostly, if not completely, exempt commodities and changes them to nonexempt commodities. The “other than” language is seemingly casual, kind of like “by the way”. Subparagraphs D and E further exempt the transportation of certain fish, livestock, poultry feed, agricultural seeds and plants. Current administrative rulings. There are currently two administrative rulings which address the issue of exempt and nonexempt transportation by motor vehicle. One is codified in the CFRs, addresses only nonexempt commodities, is very brief and has no notations or annotations citing authority. The other is not codified in the CFRs, is published on the FMCSA website, addresses both nonexempt and exempt commodities, is very lengthy and contains notations and annotations (and mistakes). Keep in mind that the FMCSA has demonstrated little interest in the topic of economic regulation. Another look back in time. As with the statutory history, we need to first take a look at the regulatory history before wading through the administrative rulings. This quest for truth involved a side trip through the almost-forgotten but still-loved ICC Interpretations Manual. Fn. 6. After the issuance of Administrative Ruling 107 in 1958, there were a number of ICC decisions and court decisions, which prompted the ICC to issue Administrative Ruling 119 (discussed below) in 1974 which is referred to in the manual as a composite list of commodities. As shown below, there is a long list of a mixture of exempt and nonexempt commodities in Administrative Ruling 119. (There was also an intervening Administrative Ruling 110.) Fn. 6. For the uninitiated, the ICC IM contains ICC case annotations pertaining to all things transportation, including foreign, interstate, intrastate and related topics, including a section regarding exemptions. In 1988 the ICC, in its infinite wisdom, in a 5-1 decision decided to abandon (though it didn't work out that way in the end) its Administrative Ruling 119, with its long list of exempt and nonexempt commodities, and replace it with a two page list consisting of only nonexempt commodities, embodied in Administrative Ruling 133. Agricultural Commodities Exemption; [49 CFR Part 1047]; [Administrative Ruling No. 133], 4 I.C.C. 2d 402 (1988); 1988 MCC Lexis 258. The ICC stated that Administrative Ruling 119 (and 110) “are extremely lengthy, redundant, and of little use to the general public.” It noted that these prior “rulings will remain in effect, but will no longer be published in the Code of Federal Regulations.” The dissent stated that “it is important that the public be provided with a conveniently available list of commodities which are exempt (as well as commodities which are not exempt) . . . (We cannot assume that a given commodity is exempt merely because it is not on the list of nonexempt commodities.)” and that “The best place for such a listing is in the Code of Federal Regulations. Moreover since the current listing adequately explains which commodities are and are not exempt, the change is not necessary.” In other words, if it isn't broke, don't fix it. So let's take a look at these two rulings, keeping in mind that 133 was the ICC's favored child and with 119 now relegated to the back shelf. Fn. 7. Fn. 7. A discussion of the nuances of the FMCSA amending an ICC Administrative Ruling is beyond the scope of this article. Administrative Ruling 133 – Nonexempt commodities. Administrative Ruling 133 contains a list of commodities, which includes certain agricultural commodities, livestock and fish, among other commodities, which have been determined to be nonexempt. This ruling, promulgated in 1988, has been codified at 49 CFR §372.115, last amended in 1997. Unlike Administrative Ruling 119, discussed below, Administrative Ruling 133, as published in the CFRs, does not cite any authority confirming how these nonexempt determinations came about. As published, this ruling is only two pages in length.And one more thing: these commodities are also included in Administrative Ruling 119. Fn. 8. Fn. 8. Although Administrative Ruling 133 is a list of nonexempt commodities, there are two Notes at the end that remind the reader that there are other statutory exemptions that could turn around and render some of these commodities exempt. Administrative Ruling 119 – Exempt and nonexempt commodities. As noted above, this ruling was first published in 1974 and is derived from, though is different from, the Commodity List (107) referred to in 49 U.S.C. §13506 (a)(6) cited above. It substantially modifies the 107 list. The current version was published by the FMCSA in 2002. Fn. 9. It contains errors, as noted further below. And, as written, it can be an absolute nightmare to decipher, depending on what the reader is looking for. The numerous subheadings are in the same size and font as the main headings so at times it is difficult to know where the subheadings stop and a new heading begins. Fn. 10. Fn. 9. Per a response to an information request submitted via the FMCSA website; a dated copy of 119 as amended was not furnished. Fn. 10. The 1987 published format was not great but was better than the 2002 format. In the 1987 edition (codified at 49 CFR §1047.25) some of the headings are indented which made it a much easier read. The 2002 format did away with the indenting and seems to have reverted to the 1958 format. A side by side comparison of the 1987 CFR edition, with the long 119 list, with the 1988 CFR edition, with the short 133 list, reflects the new road then taken by the ICC. This administrative ruling contains a mixed list of exempt and nonexempt commodities and has not been codified in the CFRs. It includes notations such as “exempt – law”, “exempt – office”, “nonexempt – law”, and “nonexempt – office”. There are 35 citations to various ICC decisions and couple of court cases at the end of the document. As published on the FMCSA website it is 31 pages (depending upon your browser) in length. Fn. 11. As noted above, the commodities listed in Administrative Ruling 133 are also included in 119. Fn. 11. https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Administrative Ruling 119.pdf. The two page nonexempt list (Ad. Ruling 133) is a quick read with clearly listed nonexempt commodities so you may want to give it a first quick glance to see if is helpful, before embarking on the potentially arduous journey through 119. Fn. 12. There is a list of exempt commodities pertaining to rail transportation published at 49 CFR 1039. It is not clear how the ICC's decision in 1988 to publish the 133 list, but not the 119 list, in the CFRs has helped anything, since the 119 list is still readily available on the FMCSA website and, as the ICC noted, would remain in effect, albeit quietly or so the ICC believed. As noted below, 119 does not seem to get the care and feeding that 133 is afforded, as little if any as that may be. Comments are closed.
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Larry R.
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