[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2021 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 2021

To establish procedures to resolve undercharge claims by motor carriers 
based on negotiated but unfiled or illegal tariff rates, to ensure the 
 proper, timely, and accurate filing and enforcement of motor carrier 
       rates in tariffs, to reaffirm the requirement for written 
           transportation contracts, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 6, 1993

Mr. Lipinski introduced the following bill; which was referred jointly 
 to the Committees on Public Works and Transportation, the Judiciary, 
                        and Education and Labor

_______________________________________________________________________

                                 A BILL


 
To establish procedures to resolve undercharge claims by motor carriers 
based on negotiated but unfiled or illegal tariff rates, to ensure the 
 proper, timely, and accurate filing and enforcement of motor carrier 
       rates in tariffs, to reaffirm the requirement for written 
           transportation contracts, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Undercharge Settlement and Amnesty 
Act of 1993''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) over the past decade there have been ongoing disputes 
        between shippers of freight, on the one hand, and motor 
        carriers or their representatives in bankruptcy and creditors, 
        on the other hand, regarding the proper resolution of claims 
        for collection of freight charges for transportation services 
        that represent the difference between filed tariff rates and 
        rates that were negotiated with shippers for which tariffs were 
        not filed, not timely filed, or not legally filed with the 
        Interstate Commerce Commission as required by law or for which 
        lawful contract carriage did not result;
            (2) such disputes continue to remain unresolved and have 
        burdened the dockets of the Federal courts, consumed the time 
        and resources of the Interstate Commerce Commission, caused 
        shippers and the motor carrier industry to engage in seemingly 
        endless debate and litigation, and prevented or delayed the 
        collection and distribution of the assets of motor carrier 
        bankruptcy estates to creditors, including pension funds and 
        former employees of the bankrupt motor carriers;
            (3) in order to resolve these disputes and allow the proper 
        administration of motor carrier bankruptcy estates through the 
        prompt collection of assets and distribution of funds to 
        creditors, it is in the public interest to establish a 
        procedure authorizing persons to resolve these claims without 
        fear of violating the Interstate Commerce Act and without the 
        allocation of fault;
            (4) the interests of motor carriers, shippers, and the 
        public are best served by the requirement that the rates, 
        charges, rules, and classifications of motor common carriers 
        continue to be filed with the Interstate Commerce Commission 
        and made available to the public in tariffs; and
            (5) the filed rate doctrine continues to be a valid 
        principle governing all interstate common carriage conducted in 
        the United States.

SEC. 3. PROCEDURE FOR RESOLVING CLAIMS INVOLVING UNDERCHARGE CLAIMS.

    Section 10701 of title 49, United States Code, is amended by adding 
at the end the following:
    ``(f) Procedure for Resolving Claims Involving Undercharge 
Claims.--
            ``(1) In general.--
                    ``(A) Election authority.--When an undercharge 
                claim is made by a motor carrier of property (other 
                than a household goods carrier), by a nonhousehold 
                goods freight forwarder, or by a party representing or 
                succeeding to the rights of such a carrier or forwarder 
                (hereinafter in this subsection such a carrier, freight 
                forwarder, or party is referred to as a `carrier 
                claimant'), the person against whom the claim is made 
                may elect to satisfy such claim in accordance with the 
                procedures set forth in paragraph (2).
                    ``(B) Undercharge claim defined.--For the purposes 
                of this subsection, the term `undercharge claim' means 
                a claim for any undercharges made by a carrier claimant 
                arising out of a rate, charge, classification or rule 
                agreed upon by the motor carrier or nonhousehold goods 
                freight forwarder and a shipper that either allegedly 
                was not legally or timely filed in a tariff with the 
                Commission or, in the case of a claim of contract 
                carriage, where the contract or services performed 
                thereunder did not constitute valid contract carriage, 
                and where a shipper tendered freight and made payment 
                to the motor carrier in reasonable reliance upon the 
                agreed upon rate, charge, classification, or rule.
                    ``(C) Jurisdiction of courts.--The district courts 
                of the United States shall have exclusive jurisdiction 
                over an undercharge claim.
                    ``(D) Limitation on applicability.--This subsection 
                does not apply to a claim based upon the failure of a 
                shipper to pay a tariff rate where no undercharge claim 
                is involved.
                    ``(E) Undercharge defined.--For the purposes of 
                this subsection, the term ``undercharge'' means the 
                difference between the alleged legally applicable 
                tariff rate and the rate paid by the shipper when the 
                rate paid is less than the tariff rate.
            ``(2) Procedure.--
                    ``(A) 35 percent payment.--Subject to subparagraph 
                (B) and paragraphs (3) and (4), the person against whom 
                an undercharge claim has been made may elect to satisfy 
                such claim by payment of 35 percent of the undercharge.
                    ``(B) Deadline for election.--The election must be 
                made no later than the 90th day after the carrier 
                claimant has notified the person from whom additional 
                freight charges are sought of the provisions of this 
                subsection and the person's right of election 
                thereunder.
                    ``(C) Effective period.--The election to satisfy 
                undercharge claims provided for in this paragraph shall 
                apply to all undercharge claims pending as of the date 
                of the enactment of this subsection and to all 
                undercharge claims arising from transportation 
                shipments tendered on or before the last day of the 12-
                month period beginning on such date of enactment.
                    ``(D) Effect of claim satisfaction.--Satisfaction 
                of a claim under this paragraph shall be binding on the 
                parties, and the parties with respect to the claim 
                shall not be subject to chapter 119 of this title, 
                relating to civil and criminal penalties.
            ``(3) Effect of nonelection.--
                    ``(A) Preservation of existing rights and 
                remedies.--In the event a shipper or person against 
                whom an undercharge claim has been made does not elect 
                to use the procedure established under paragraph (2), 
                the shipper or person may pursue all existing rights 
                and remedies under this title.
                    ``(B) Determination of rate reasonableness.--In the 
                case of an undercharge claim referred to in 
                subparagraph (A), if the shipper or person asserts a 
                counterclaim against a carrier claimant arising out of 
                the undercharge claim on the ground of rate 
                reasonableness, a court may stay proceedings so as to 
                permit the shipper or such other person to file a 
                complaint with the Commission challenging the 
                reasonableness of the rate being sought. In the event 
                the court permits the filing of such a complaint, the 
                Commission shall issue a ruling thereon and report it 
                to the court within 6 months of the date the complaint 
                is filed unless the court further extends its stay for 
                an additional specified period. If the rate sought to 
                be collected is found unreasonable, the Commission 
                shall determine a maximum reasonable rate.
                    ``(C) Attorneys' fees.--If a carrier claimant 
                ultimately prevails in recovering any part of an 
                undercharge claim referred to in subparagraph (A) 
                following litigation of a rate reasonableness 
                complaint, the court shall award such carrier claimant 
                reasonable attorneys' fees and costs of litigation.
            ``(4) Defense to undercharge claim.--
                    ``(A) In general.--Notwithstanding paragraphs (1), 
                (2), and (3), a person shall not be liable for an 
                undercharge claim made by a carrier claimant if such 
                person is a small-business concern, a charitable 
                organization, or the cargo involved in the claim is 
                recyclable materials, as defined in section 10733.
                    ``(B) Waiver.--The defense to liability granted 
                under subparagraph (A) shall be waived unless asserted 
                within 90 days of receipt from the carrier claimant of 
                notice of the provisions of this subsection.
                    ``(C) Definitions.--For purposes of this 
                paragraph--
                            ``(i) the term `small-business' concern 
                        means a business whose average gross annual 
                        revenues as evidenced by its Federal income tax 
                        returns for its last 3 years of operation were 
                        less than $5,000,000; and
                            ``(ii) the term `charitable organization' 
                        means any organization which is described in 
                        section 501(c)(3) of the Internal Revenue Code 
                        of 1986 and exempt from tax under section 
                        501(a) of such Code.
            ``(5) Burden of proof.--In the case of any claim to which 
        the reasonableness of the rate filed before, on, or after the 
        date of the enactment of this subsection with the Commission is 
        in question, the Commission shall determine the reasonableness 
        of such rate for shipments of property made before, on, or 
        after such date of enactment in accordance with the criteria 
        set forth in subsection (e). The complainant shall have the 
        burden of proof in any action challenging the reasonableness of 
        such a rate. For undercharge claims based upon shipments 
        transported prior to January 1, 1992, the carrier claimant 
        shall have the burden of presenting evidence supporting the 
        reasonableness of its filed rate or a maximum reasonable rate.
            ``(6) Preservation of duty to file rates.--Except as 
        authorized in paragraphs (2) and (8) of this subsection, 
        nothing in this subsection shall relieve a motor carrier or 
        nonhousehold goods freight forwarder of the duty to file and 
        adhere to its rates, rules, and classifications as required by 
        sections 10761 and 10762.
            ``(7) Customer account code.--
                    ``(A) Limitation on assertion of undercharge 
                claim.--Notwithstanding any other provision in this 
                subsection, motor carriers or nonhousehold goods 
                freight forwarders that transported property in 
                interstate or foreign commerce on or after July 1, 
                1992, pursuant to a certificate or license issued by 
                the Commission shall not be permitted to assert any 
                undercharge claim against any person based upon the 
                illegality of a tariff filed with the Commission 
                containing a customer account code.
                    ``(B) Deletion.--Any tariff which does not identify 
                the recipient of the coded customer account code rate 
                shall be deleted by the motor carrier from its tariff 
                within 90 days of the date of the enactment of this 
                subsection.
                    ``(C) Customer account code defined.--For purposes 
                of this subsection, the term `customer account code' 
                means a rate filed with the Commission in a tariff of a 
                motor carrier or nonhousehold goods freight forwarder 
                in code form for the benefit of an unnamed shipper or 
                other person.
            ``(8) Enforceability of claims.--
                    ``(A) Pre-effective date.--Notwithstanding any 
                provision of this title, any settlement or payment of 
                an undercharge claim entered into prior to the 
                effective date of this subsection shall be deemed 
                binding, enforceable, and not contrary to law.
                    ``(B) Post-effective date.--Any settlement of an 
                undercharge claim on or after the effective date of 
                this subsection shall be binding, enforceable, and not 
                contrary to law only if such settlement is accomplished 
                in conformity with this subsection or is approved by a 
                court of competent jurisdiction.
            ``(9) Counterclaims and setoffs.--Notwithstanding any other 
        provision of this title or any defense provided for in this 
        subsection, motor carriers or nonhousehold goods freight 
        forwarders may assert undercharge claims as counterclaims or 
        setoffs to any action commenced or claim made by a shipper 
        unless the shipper has complied with the provisions of 
        paragraphs (2)(A) and (2)(B).''.

SEC. 4. STATUTE OF LIMITATIONS.

    (a) Motor Carrier Undercharges.--Section 11706(a) of title 49, 
United States Code, is amended by striking the period at the end and 
inserting the following: ``; except that a common carrier providing 
transportation or service subject to the jurisdiction of the Commission 
under subchapter II of chapter 105 of this title--
            ``(1) must begin, within 24 months after the claim accrues, 
        a civil action to recover charges for such transportation or 
        service if such transportation or service is provided by the 
        carrier on or after the date of the enactment of the 
        Undercharge Settlement and Amnesty Act of 1993 and before the 
        date that is 1 year after such date of enactment; and
            ``(2) must begin such a civil action within 18 months after 
        the claim accrues if such transportation or service is provided 
        by the carrier on or after the date that is 1 year after such 
        date of enactment.''.
    (b) Motor Carrier Overcharges.--Section 11706(b) is amended by 
striking the period at the end of the first sentence and inserting the 
following: ``; except that a person must begin within 24 months after 
the claim accrues a civil action to recover overcharges from a carrier 
subject to the jurisdiction of the Commission under subchapter II of 
chapter 105 of this title for transportation or service taking place on 
or after the date of the enactment of the Undercharge Settlement and 
Amnesty Act of 1993 and before the date that is 1 year after such date 
of enactment and, for the transportation or service taking place on or 
after the date that is 1 year following such date of enactment, a 
person must begin such a civil action within 18 months after the claim 
accrues.''.
    (c) Conforming Amendment.--Section 11706(d) is amended--
            (1) by striking ``The three-year period'' each place it 
        appears and inserting ``A limitation period''; and
            (2) by striking ``that 3-year'' and inserting ``that 
        limitation''.

SEC. 5. TARIFF RECONCILIATION RULES FOR MOTOR COMMON CARRIERS OF 
              PROPERTY.

    (a) In General.--Chapter 117 of title 49, United States Code, is 
amended by adding at the end the following new section:
``Sec. 11712. Tariff reconciliation rules for motor common carriers of 
              property
    ``(a) In General.--Subject to Commission review and approval, motor 
carriers subject to the jurisdiction of the Commission under subchapter 
II of chapter 105 of this title and shippers may, within 6 months after 
the date of the shipment, resolve, by mutual consent in a writing 
signed by both parties and retained by a motor carrier for 3 years, 
overcharge and undercharge claims resulting from billing errors or 
incorrect tariff provisions arising from the inadvertent failure to 
properly and timely file and maintain agreed upon rates, rules, or 
classifications in compliance with sections 10761 and 10762 of this 
title. Resolution of such claims among the parties shall not subject 
any party to the penalties of chapter 119 of this title.
    ``(b) Limitation on Statutory Construction.--Nothing in this 
section shall be construed to relieve a motor carrier of the duty to 
file and adhere to its rates, rules, and classifications as required in 
sections 10761 and 10762, except as provided in subsection (a) of this 
section.
    ``(c) Institution of Rulemaking Proceeding.--Within 90 days after 
the date of the enactment of this section, the Commission shall 
institute a proceeding to establish rules pursuant to which the tariff 
requirements of sections 10761 and 10762 of this title shall not apply 
under circumstances described in subsection (a) of this section.''.
    (b) Conforming Amendment.--This analysis for chapter 117 of such 
title is amended by adding at the end the following:

``11712. Tariff reconciliation rules for common carrier of property.''.

SEC. 6. RATES AND CONTRACTS OF MOTOR CONTRACT CARRIERS.

    Section 10702 of title 49, United States Code, is amended by adding 
at the end the following:
    ``(c) Contracts of Motor Contract Carriers.--
            ``(1) General rule.--A motor contract carrier shall enter 
        into a written agreement, separate from the bill of lading, for 
        each contract of carriage.
            ``(2) Contents of agreement.--The written agreement shall, 
        at a minimum--
                    ``(A) identify the parties thereto;
                    ``(B) commit the shipper to tender and the carrier 
                to transport a series of shipments;
                    ``(C) contain the contract rate or rates for the 
                transportation service to be or being provided; and
                    ``(D)(i) provide for the assignment of motor 
                vehicles for a continuing period of time for the 
                exclusive use of the shipper; or
                    ``(ii) provide that the service is designed to meet 
                the distinct operational needs of the shipper.
            ``(3) Period of contract retention.--All written agreements 
        entered into by a motor contract carrier shall be retained by 
        the carrier while in effect and for a minimum period of 3 years 
        thereafter and made available to the Commission upon request. 
        Failure by a motor carrier to so retain its written agreement 
        with a shipper shall not, however, subject such shipper to any 
        undercharge or other liability.
            ``(4) Random audits.--The Commission shall conduct periodic 
        random audits to ensure that motor carriers are complying with 
        this subsection and are adhering to the rates set forth in 
        their agreements.''.

SEC. 7. TARIFF FILING ENFORCEMENT.

    Subchapter IV of chapter 107 of title 49, United States Code, is 
amended by adding at the end the following:
``Sec. 10767. Tariff filing enforcement
    ``Not later than 90 days after the date of the enactment of this 
section, the Commission shall issue final regulations prohibiting the 
filing of tariffs under this chapter by motor carriers that fail to 
state clearly and concisely the actual rates or charges for a 
transportation service or a methodology for determining the rates or 
charges (such as range and trigger tariffs) or that misapply freight 
classifications.''.

SEC. 8. BILLING AND COLLECTION PRACTICES.

    (a) In General.--Subchapter IV of chapter 107 of title 49, United 
States Code, is further amended by adding at the end the following:
``Sec. 10768. Billing and collection practices
    ``Not later than 90 days after the enactment of this section, the 
Commission shall issue final regulations prohibiting a motor carrier 
subject to the jurisdiction of the Commission under subchapter II of 
chapter 105 of this title--
            ``(1) from giving a reduction in a rate set forth in its 
        tariff or contract to any person other than the person who is 
        paying for the transportation service and is indicated on the 
        original bill of lading as the person paying for such service; 
        and
            ``(2) from failing to insert that reduction in the rate on 
        the freight bill or other document presented for payment.
It shall be a violation of chapter 119 for any carrier or person 
knowingly to pay, accept, or solicit a reduced rate in violation of 
this section. It shall also be a violation of chapter 119 for any 
carrier or person knowingly to provide false or misleading information 
about the actual rates or charges for the transportation service in a 
freight bill or document presented for payment.''.
    (b) Chapter Analysis Conforming Amendment.--The analysis for such 
subchapter is amended by adding at the end the following:

``10767. Tariff filing enforcement.
``10768. Billing and collection practices.''.

SEC. 9. REPORT ON ELECTRONIC TARIFF FILING.

    Within 1 year after the date of the enactment of this Act, the 
Interstate Commerce Commission shall submit a report to Congress on the 
feasibility, costs, and benefits of implementation of a system for 
electronic tariff filing of motor common carrier rates and charges and 
a program for implementation thereof.

SEC. 10. PRIORITY PAYMENTS IN CASES INVOLVING THE DEBTOR'S RECOVERY OF 
              UNDERCHARGES.

    Paragraphs (3) and (4) of section 507(a) of title 11, United States 
Code, are each amended by adding at the end the following:
        ``The limitations specified in subparagraphs (A) and (B) shall 
        not apply in a case in which the debtor is a motor carrier (as 
        defined in section 10102 of title 49) that asserts a right 
        against any person or governmental unit to a recovery of an 
        undercharge (as defined in section 10701(f) of title 49).''.

SEC. 11. PROTECTION FOR PENSION FUND OBLIGATIONS OF MOTOR CARRIERS.

    Part 1 of subtitle D of title IV of the Employee Retirement Income 
Security Act of 1974 is amended by adding at the end the following:

``SEC. 4226. LIEN FOR LIABILITY IN FAVOR OF MOTOR CARRIER PLANS.

    ``(a) In General.--If any motor carrier that is subject to the 
jurisdiction of the Interstate Commerce Commission under subtitle IV of 
title 49, United States Code, is a debtor in a case under title 11, 
United States Code, and is liable to a multiemployer plan under section 
4219 neglects or refuses to pay, after demand has been made by the plan 
in accordance with section 4219(b)(1) or after a default described in 
section 4219(c)(5), any installment payment or any amount of 
accelerated withdrawal liability, there shall be a lien in favor of the 
plan in the amount of such payment or amount on all undercharges, as 
defined in section 10701(f) of title 49, United States Code, which such 
motor carrier then has or may have in the future.
    ``(b) Timing of Lien.--The lien imposed by subsection (a) arises on 
the date that any installment payment under section 4219(c)(1)(A) was 
due but not paid or on the date that default occurs under section 
4219(c)(5).
    ``(c) Administration and Enforcement of Lien.--For all purposes 
related to the administration and enforcement of the lien established 
by subsection (a), the provisions applicable to liens in favor of the 
corporation under sections 4068(c) and 4068(d) shall apply to such lien 
in connection with the multiemployer plan in the same manner and to the 
same extent as such provisions apply to liens in connection with the 
corporation.
    ``(d) Release of Subordination.--The lien established under 
subsection (a) may be released or subordinated, in whole or in part, if 
and only if the plan, in its judgment, issues a certification that such 
release or such subordination will ultimately increase the likelihood 
of the plan's collection of the withdrawal liability obligations which 
are the subject of the lien.''.
    (b) Clerical Amendment.--The table of contents in section 1 of such 
Act is amended by inserting after the item relating to section 4225 the 
following new item:

``Sec. 4226. Lien for liability in favor of motor carrier plans.''.

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