[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 412 Enrolled Bill (ENR)]

        S.412
                       One Hundred Third Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
  the fifth day of January, one thousand nine hundred and ninety-three


                                 An Act

  
 
  To amend title 49, United States Code, relating to procedures for 
resolving claims

   involving unfiled, negotiated transportation rates, 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 ``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:

``§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:

``§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.







                                Speaker of the House of Representatives.







                             Vice President of the United States and    
                                                President of the Senate.