[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 412 Engrossed Amendment House (EAH)]
103d CONGRESS
1st Session
S. 412
_______________________________________________________________________
AMENDMENTS
In the House of Representatives, U. S.,
November 15, 1993.
Resolved, That the bill from the Senate (S. 412) entitled ``An
Act to amend title 49, United States Code, regarding the collection of
certain payments for shipments via motor common carriers of property
and nonhousehold goods freight forwarders, and for other purposes'', do
pass with the following
AMENDMENTS:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Negotiated Rates Act of 1993''.
SEC. 2. PROCEDURES FOR RESOLVING CLAIMS INVOLVING UNFILED, NEGOTIATED
TRANSPORTATION RATES.
(a) In General.--Section 10701 of title 49, United States Code, is
amended by adding at the end the following:
``(f) Procedures for Resolving Claims Involving Unfiled, Negotiated
Transportation Rates.--
``(1) In general.--When a claim is made by a motor carrier
of property (other than a household goods carrier) providing
transportation subject to the jurisdiction of the Commission
under subchapter II of chapter 105 of this title, by a freight
forwarder (other than a household goods freight forwarder), or
by a party representing such a carrier or freight forwarder
regarding the collection of rates or charges for such
transportation in addition to those originally billed and
collected by the carrier or freight forwarder for such
transportation, the person against whom the claim is made may
elect to satisfy the claim under the provisions of paragraph
(2), (3), or (4) of this subsection, upon showing that--
``(A) the carrier or freight forwarder is no longer
transporting property or is transporting property for
the purpose of avoiding the application of this
subsection; and
``(B) with respect to the claim--
``(i) the person was offered a
transportation rate by the carrier or freight
forwarder other than that legally on file with
the Commission for the transportation service;
``(ii) the person tendered freight to the
carrier or freight forwarder in reasonable
reliance upon the offered transportation rate;
``(iii) the carrier or freight forwarder
did not properly or timely file with the
Commission a tariff providing for such
transportation rate or failed to enter into an
agreement for contract carriage;
``(iv) such transportation rate was billed
and collected by the carrier or freight
forwarder; and
``(v) the carrier or freight forwarder
demands additional payment of a higher rate
filed in a tariff.
If there is a dispute as to the showing under subparagraph (A),
such dispute shall be resolved by the court in which the claim
is brought. If there is a dispute as to the showing under
subparagraph (B), such dispute shall be resolved by the
Commission. Pending the resolution of any such dispute, the
person shall not have to pay any additional compensation to the
carrier or freight forwarder. Satisfaction of the claim under
paragraph (2), (3), or (4) of this subsection shall be binding
on the parties, and the parties shall not be subject to chapter
119 of this title.
``(2) Claims involving shipments weighing 10,000 pounds or
less.--A person from whom the additional legally applicable and
effective tariff rate or charges are sought may elect to
satisfy the claim if the shipments each weighed 10,000 pounds
or less, by payment of 20 percent of the difference between the
carrier's applicable and effective tariff rate and the rate
originally billed and paid. In the event that a dispute arises
as to the rate that was legally applicable to the shipment,
such dispute shall be resolved by the Commission.
``(3) Claims involving shipments weighing more than 10,000
pounds.--A person from whom the additional legally applicable
and effective tariff rate or charges are sought may elect to
satisfy the claim if the shipments each weighed more than
10,000 pounds, by payment of 15 percent of the difference
between the carrier's applicable and effective tariff rate and
the rate originally billed and paid. In the event that a
dispute arises as to the rate that was legally applicable to
the shipment, such dispute shall be resolved by the Commission.
``(4) Claims involving public warehousemen.--
Notwithstanding paragraphs (2) and (3), a person from whom the
additional legally applicable and effective tariff rate or
charges are sought may elect to satisfy the claim by payment of
5 percent of the difference between the carrier's applicable
and effective tariff rate and the rate originally billed and
paid if such person is a public warehouseman. In the event that
a dispute arises as to the rate that was legally applicable to
the shipment, such dispute shall be resolved by the Commission.
``(5) Effects of election.--When a person from whom
additional legally applicable freight rates or charges are
sought does not elect to use the provisions of paragraph (2),
(3), or (4), the person may pursue all rights and remedies
existing under this title.
``(6) Stay of additional compensation.--When a person
proceeds under this section to challenge the reasonableness of
the legally applicable freight rate or charges being claimed by
a carrier or freight forwarder described in paragraph (1) in
addition to those already billed and collected, the person
shall not have to pay any additional compensation to the
carrier or freight forwarder until the Commission has made a
determination as to the reasonableness of the challenged rate
as applied to the freight of the person against whom the claim
is made.
``(7) Limitation on statutory construction.--Except as
authorized in paragraphs (2), (3), (4), and (9) of this
subsection, nothing in this subsection shall relieve a motor
common carrier of the duty to file and adhere to its rates,
rules, and classifications as required in sections 10761 and
10762 of this title.
``(8) Notification of election.--
``(A) General rule.--A person must notify the
carrier or freight forwarder as to its election to
proceed under paragraph (2), (3), or (4). Except as
provided in subparagraphs (B), (C), and (D), such
election may be made at any time.
``(B) Demands for payment initially made after date
of enactment.--If the carrier or freight forwarder or
party representing such carrier or freight forwarder
initially demands the payment of additional freight
charges after the date of the enactment of this
subsection and notifies the person from whom additional
freight charges are sought of the provisions of
paragraphs (1) through (7) at the time of the making of
such initial demand, the election must be made not
later than the later of--
``(i) the 60th day following the filing of
an answer to a suit for the collection of such
additional legally applicable freight rate or
charges, or
``(ii) the 90th day following the date of
the enactment of this subsection.
``(C) Pending suits for collection made before or
on date of enactment.--If the carrier or freight
forwarder or party representing such carrier or freight
forwarder has filed, before or on the date of the
enactment of this subsection, a suit for the collection
of additional freight charges and notifies the person
from whom additional freight charges are sought of the
provisions of paragraphs (1) through (7), the election
must be made not later than the 90th day following the
date on which such notification is received.
``(D) Demands for payment made before or on date of
enactment.--If the carrier or freight forwarder or
party representing such carrier or freight forwarder
has demanded the payment of additional freight charges,
and has not filed a suit for the collection of such
additional freight charges, before or on the date of
the enactment of this subsection and notifies the
person from whom additional freight charges are sought
of the provisions of paragraphs (1) through (7), the
election must be made not later than the later of--
``(i) the 60th day following the filing of
an answer to a suit for the collection of such
additional legally applicable freight rate or
charges, or
``(ii) the 90th day following the date of
the enactment of this subsection.
``(9) Claims involving small-business concerns, charitable
organizations, and recyclable materials.--Notwithstanding
paragraphs (2), (3), and (4), a person from whom the additional
legally applicable and effective tariff rate or charges are
sought shall not be liable for the difference between the
carrier's applicable and effective tariff rate and the rate
originally billed and paid--
``(A) if such person qualifies as a small-business
concern under the Small Business Act (15 U.S.C. 631 et
seq.),
``(B) if such person is an 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, or
``(C) if the cargo involved in the claim is
recyclable materials, as defined in section 10733.''.
(b) Conforming Amendment.--Subsection (e) of such section is
amended by striking ``In'' and inserting ``Except as provided in
subsection (f), in''.
(c) Applicability.--The amendments made by subsections (a) and (b)
of this section shall apply to all claims pending as of the date of the
enactment of this Act and to all claims arising from transportation
shipments tendered on or before the last day of the 24-month period
beginning on such date of enactment.
(d) Report.--Not later than 18 months after the date of the
enactment of this Act, the Interstate Commerce Commission shall
transmit to Congress a report regarding whether there exists a
justification for extending the applicability of amendments made by
subsections (a) and (b) of this section beyond the period specified in
subsection (c).
(e) Alternative Procedure for Resolving Disputes.--
(1) General rule.--For purposes of section 10701 of title
49, United States Code, it shall be an unreasonable practice
for a motor carrier of property (other than a household goods
carrier) providing transportation subject to the jurisdiction
of the Commission under subchapter II of chapter 105 of such
title, a freight forwarder (other than a household goods
freight forwarder), or a party representing such a carrier or
freight forwarder to attempt to charge or to charge for a
transportation service provided before September 30, 1990, the
difference between the applicable rate that is lawfully in
effect pursuant to a tariff that is filed in accordance with
chapter 107 of such title by the carrier or freight forwarder
applicable to such transportation service and the negotiated
rate for such transportation service if the carrier or freight
forwarder is no longer transporting property between places
described in section 10521(a)(1) of such title or is
transporting property between places described in section
10521(a)(1) of such title for the purpose of avoiding the
application of this subsection.
(2) Jurisdiction of commission.--The Commission shall have
jurisdiction to make a determination of whether or not
attempting to charge or the charging of a rate by a motor
carrier or freight forwarder or party representing a motor
carrier or freight forwarder is an unreasonable practice under
paragraph (1). If the Commission determines that attempting to
charge or the charging of the rate is an unreasonable practice
under paragraph (1), the carrier, freight forwarder, or party
may not collect the difference described in paragraph (1)
between the applicable rate and the negotiated rate for the
transportation service. In making such determination, the
Commission shall consider--
(A) whether the person was offered a transportation
rate by the carrier or freight forwarder or party other
than that legally on file with the Commission for the
transportation service;
(B) whether the person tendered freight to the
carrier or freight forwarder in reasonable reliance
upon the offered transportation rate;
(C) whether the carrier or freight forwarder did
not properly or timely file with the Commission a
tariff providing for such transportation rate or failed
to enter into an agreement for contract carriage;
(D) whether the transportation rate was billed and
collected by the carrier or freight forwarder; and
(E) whether the carrier or freight forwarder or
party demands additional payment of a higher rate filed
in a tariff.
(3) Stay of additional compensation.--When a person
proceeds under this subsection to challenge the reasonableness
of the practice of a motor carrier, freight forwarder, or party
described in paragraph (1) to attempt to charge or to charge
the difference described in paragraph (1) between the
applicable rate and the negotiated rate for the transportation
service in addition to those charges already billed and
collected for the transportation service, the person shall not
have to pay any additional compensation to the carrier, freight
forwarder, or party until the Commission has made a
determination as to the reasonableness of the practice as
applied to the freight of the person against whom the claim is
made.
(4) Treatment.--Paragraph (1) of this subsection is enacted
as an exception, and shall be treated as an exception, to the
requirements of sections 10761(a) and 10762 of title 49, United
States Code, relating to a filed tariff rate for a
transportation or service subject to the jurisdiction of the
Commission and other general tariff requirements.
(5) Nonapplicability of negotiated rate dispute resolution
procedure.--If a person elects to seek enforcement of paragraph
(1) with respect to a rate for a transportation or service,
section 10701(f) of title 49, United States Code, as added by
subsection (a) of this section, shall not apply to such rate.
(6) Definitions.--For purposes of this subsection, the
following definitions apply:
(A) Commission, household goods, household goods
freight forwarder, and motor carrier.--The terms
``Commission'', ``household goods'', ``household goods
freight forwarder'', and ``motor carrier'' have the
meaning such terms have under section 10102 of title
49, United States Code.
(B) Negotiated rate.--The term ``negotiated rate''
means a rate, charge, classification, or rule agreed
upon by a motor carrier or freight forwarder described
in paragraph (1) and a shipper through negotiations
pursuant to which no tariff was lawfully and timely
filed with the Commission and for which there is
written evidence of such agreement.
(f) Prior Settlements and Adjudications.--Any claim that, but for
this subsection, would be subject to any provision of this Act
(including any amendment made by this Act) and that was settled by
mutual agreement of the parties to such claim, or resolved by a final
adjudication of a Federal or State court, before the date of the
enactment of this Act shall be treated as binding, enforceable, and not
contrary to law, unless such settlement was agreed to as a result of
fraud or coercion.
(g) Rate Reasonableness.--Section 10701(e) of title 49, United
States Code, is amended by adding at the end the following: ``Any
complaint brought against a motor carrier (other than a carrier
described in subsection (f)(1)(A)) by a person (other than a motor
carrier) for unreasonably high rates for past or future transportation
shall be determined under this subsection.''.
SEC. 3. STATUTE OF LIMITATIONS.
(a) Motor Carrier Charges.--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 motor carrier (other than a motor
carrier providing transportation of household goods) or freight
forwarder (other than a household goods freight forwarder)--
``(1) must begin such a civil action within 2 years after
the claim accrues if the transportation or service is provided
by the carrier in the 1-year period beginning on the date of
the enactment of the Negotiated Rates Act of 1993; and
``(2) must begin such a civil action within 18 months after
the claim accrues if the transportation or service is provided
by the carrier after the last day of such 1-year period.''.
(b) Motor Carrier Overcharges.--Section 11706(b) of title 49,
United States Code, is amended by striking ``. If that claim is against
a common carrier'' and inserting the following: ``; except that a
person must begin a civil action to recover overcharges from a motor
carrier subject to the jurisdiction of the Commission under subchapter
II of chapter 105 of this title for transportation or service--
``(1) within 2 years after the claim accrues if such
transportation or service is provided in the 1-year period
beginning on the date of the enactment of the Negotiated Rate
Act of 1993; and
``(2) within 18 months after the claim accrues if such
transportation or service is provided after the last day of
such 1-year period.
If the claim is against a common carrier''.
(c) Conforming Amendment.--Section 11706(d) of title 49, United
States Code, is amended--
(1) by striking ``3-year period'' each place it appears and
inserting ``limitation periods'';
(2) by striking ``is extended'' the first place it appears
and inserting ``are extended''; and
(3) by striking ``each''.
SEC. 4. TARIFF RECONCILIATION RULES FOR MOTOR CARRIERS OF PROPERTY.
(a) In General.--Chapter 117 of title 49, United States Code, is
amended by adding at the end the following:
``Sec. 11712. Tariff reconciliation rules for motor common carriers of
property
``(a) Mutual Consent.--Subject to Commission review and approval,
motor carriers subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of this title (other than motor carriers
providing transportation of household goods) and shippers may resolve,
by mutual consent, overcharge and undercharge claims resulting from
incorrect tariff provisions or billing errors 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 relieve the 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) Rulemaking Proceeding.--Not later than 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.--The analysis for chapter 117 of title
49, United States Code, is amended by adding at the end the following:
``11712. Tariff reconciliation rules for motor common carriers of
property.''.
SEC. 5. CUSTOMER ACCOUNT CODES AND RANGE TARIFFS.
(a) Customer Account Codes.--Section 10762 of title 49, United
States Code, is amended by adding at the end the following:
``(h) Customer Account Codes.--No tariff filed by a motor carrier
of property with the Commission before, on, or after the date of the
enactment of this subsection may be held invalid solely on the basis
that a numerical or alpha account code is used in such tariff to
designate customers or to describe the applicability of rates. For
transportation performed on and after the 180th day following such date
of enactment, the name of the customer for each account code must be
set forth in the tariff (other than the tariff of a motor carrier
providing transportation of household goods).''.
(b) Range Tariffs.--Such section is further amended by adding at
the end the following:
``(i) Range Tariffs.--No tariff filed by a motor carrier of
property with the Commission before, on, or after the date of the
enactment of this subsection may be held invalid solely on the basis
that the tariff does not show a specific rate or discount for a
specific shipment if the tariff is based on a range of rates or
discounts for specific classes of shipments. For transportation
performed on or after the 180th day following such date of enactment,
such a range tariff must identify the specific rate or discount from
among the range of rates or discounts contained in such range tariff
which is applicable to each specific shipment or must contain an
objective means for determining the rate.''.
SEC. 6. CONTRACTS OF MOTOR CONTRACT CARRIERS.
(a) In General.--Section 10702 of title 49, United States Code, is
amended by adding at the end the following new subsection:
``(c) Contracts of Carriage for Motor Contract Carriers.--
``(1) General rule.--A motor contract carrier providing
transportation subject to the jurisdiction of the Commission
under subchapter II of chapter 105 of this title shall enter
into a written agreement, separate from the bill of lading or
receipt, for each contract for the provision of transportation
subject to such jurisdiction which is entered into after the
90th day following the date of the enactment of this
subsection.
``(2) Minimum content requirements.--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) state that it provides for the assignment
of motor vehicles for a continuing period of time for
the exclusive use of the shipper; or
``(ii) state that it provides that the service is
designed to meet the distinct needs of the shipper.
``(3) Retention by carrier.--All written agreements entered
into by a motor contract carrier under paragraph (1) shall be
retained by the carrier while in effect and for a minimum
period of 3 years thereafter and shall be made available to the
Commission upon request.
``(4) Random audits by commission.--The Commission shall
conduct periodic random audits to ensure that motor contract
carriers are complying with this subsection and are adhering to
the rates set forth in their agreements.''.
(b) Civil Penalty.--Section 11901(g) of such title is amended--
(1) by inserting ``or enter into or retain a written
agreement under section 10702(c) of this title'' after ``under
this subtitle'' the first place it appears; and
(2) by striking ``or (5)'' and inserting ``(5) does not
comply with section 10702(c) of this title, or (6)''.
(c) Criminal Penalty.--Section 11909(b) of such title is amended--
(1) by inserting ``or enter into or retain a written
agreement under section 10702(c) of this title'' after ``under
this subtitle'' the first place it appears; and
(2) in clause (1) by inserting after ``make that report''
the following: ``or willfully does not enter into or retain
that agreement''.
SEC. 7. BILLING AND COLLECTING PRACTICES.
(a) In General.--Subchapter IV of chapter 107 of title 49, United
States Code, is amended by adding at the end the following:
``Sec. 10767. Billing and collecting practices
``(a) Regulations Limiting Reduced Rates.--Not later than 120 days
after the date of the enactment of this section, the Commission shall
issue regulations that prohibit a motor carrier subject to the
jurisdiction of the Commission under subchapter II of chapter 105 of
this title from providing a reduction in a rate set forth in its tariff
or contract for the provision of transportation of property to any
person other than (1) the person paying the motor carrier directly for
the transportation service according to the bill of lading, receipt, or
contract, or (2) an agent of the person paying for the transportation.
``(b) Disclosure of Actual Rates, Charges, and Allowances.--The
regulations of the Commission issued pursuant to this section shall
require a motor carrier to disclose, when a document is presented or
transmitted electronically for payment to the person responsible
directly to the motor carrier for payment or agent of such responsible
person, the actual rates, charges, or allowances for the transportation
service and shall prohibit any person from causing a motor carrier to
present false or misleading information on a document about the actual
rate, charge, or allowance to any party to the transaction. Where the
actual rate, charge, or allowance is dependent upon the performance of
a service by a party to the transportation arrangement, such as
tendering a volume of freight over a stated period of time, the motor
carrier shall indicate in any document presented for payment to the
person responsible directly to the motor carrier for the payment that a
reduction, allowance, or other adjustment may apply.
``(c) Payments or Allowances for Certain Services.--The regulations
issued by the Commission pursuant to this section shall not prohibit a
motor carrier from making payments or allowances to a party to the
transaction for services that would otherwise be performed by the motor
carrier, such as a loading or unloading service, if the payments or
allowances are reasonably related to the cost that such party knows or
has reason to know would otherwise be incurred by the motor carrier.''.
(b) Conforming Amendment.--The analysis for such subchapter is
amended by adding at the end the following new item:
``10767. Billing and collecting practices.''.
(c) Violation.--
(1) In general.--Section 11901 of such title is amended by
redesignating subsection (l) as subsection (m) and by inserting
after subsection (k) the following:
``(l) Rate Discounts.--A person, or an officer, employee, or agent
of that person, that knowingly pays, accepts, or solicits a reduced
rate or rates in violation of the regulations issued under section
10767 of this title is liable to the United States for a civil penalty
of not less than $5,000 and not more than $10,000 plus 3 times the
amount of damages which a party incurs because of such violation.
Notwithstanding any other provision of this title, the express civil
penalties and damages provided for in this subsection are the exclusive
legal sanctions to be imposed under this title for practices found to
be in violation of the regulations issued under section 10767 and such
violations do not render tariff or contract provisions void or
unenforceable.''.
(2) Venue.--Section 11901(m)(2) of such title (as
redesignated by paragraph (1)) is amended by striking ``or
(k)'' and inserting ``(k), or (l)''.
SEC. 8. RESOLUTION OF DISPUTES RELATING TO CONTRACT OR COMMON CARRIER
CAPACITIES.
Section 11101 of title 49, United States Code, is amended by adding
at the end the following:
``(d) Resolution of Disputes Relating to Contract or Common Carrier
Capacities.--If a motor carrier (other than a motor carrier providing
transportation of household goods) subject to the jurisdiction of the
Commission under subchapter II of chapter 105 of this title has
authority to provide transportation as both a motor common carrier and
a motor contract carrier and a dispute arises as to whether certain
transportation is provided in its common carrier or contract carrier
capacity and the parties are not able to resolve the dispute
consensually, the Commission shall have jurisdiction to, and shall,
resolve the dispute.''.
SEC. 9. LIMITATION ON STATUTORY CONSTRUCTION.
Nothing in this Act (including any amendment made by this Act)
shall be construed as limiting or otherwise affecting application of
title 11, United States Code, relating to bankruptcy; title 28, United
States Code, relating to the jurisdiction of the courts of the United
States (including bankruptcy courts); or the Employee Retirement Income
Security Act of 1974.
Amend the title so as to read: ``An Act to amend title 49,
United States Code, relating to procedures for resolving claims
involving unfiled, negotiated transportation rates, and for
other purposes.''.
Attest:
Clerk.
S 412 EAH1S----2