[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5625]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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INTERSTATE COMMERCE COMMISSION

49 CFR Parts 1002, 1011, and 1130

[Ex Parte No. MC-219]

 

Implementation of Section 4 of the Negotiated Rates Act of 1993

AGENCY: Interstate Commerce Commission (ICC).

ACTION: Notice of proposed rules.

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SUMMARY: The Commission is proposing regulations to implement section 4 
of the Negotiated Rates Act of 1993. The proposed regulations would 
establish a mechanism for obtaining ICC review and approval for motor 
carriers (other than household goods carriers) and shippers to resolve, 
by mutual consent, overcharge and undercharge claims resulting from 
incorrect tariff provisions or billing errors arising from inadvertent 
failure to properly and timely file and maintain agreed-upon rates, 
rules, or classifications in compliance with 49 U.S.C. 10761 and 10762.

DATES: Comments are due on April 11, 1994.

ADDRESSES: Send comments (an original and 10 copies) referring to [Ex 
Parte No. MC-219] to: Interstate Commerce Commission, Office of the 
Secretary, Case Control Branch, Washington, DC 20423.

FOR FURTHER INFORMATION CONTACT: Larry Herzig or James Manning (202) 
927-5180. TDD for hearing impaired: (202) 927-5721.

SUPPLEMENTARY INFORMATION: Section 4 of the Negotiated Rates Act of 
1993 (Pub. L. 103-180), to be codified at 49 U.S.C. 11712, provides 
that:

    Subject to Commission review and approval, motor common carriers 
subject to the jurisdiction of the Commission * * * [other than 
household goods carriers] 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 [49 U.S.C.] 10761 and 
10762 * * * 49 U.S.C. 11712(a).

    Under this language, the Commission may approve a departure from 
the filed rate when the shippers and carriers agree, and the departure 
is needed to settle claims resulting from incorrect tariff provisions 
or billing errors arising from the carrier's inadvertent failure to 
properly and timely file and maintain agreed upon rates, rules, or 
classifications.1
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    \1\Carriers are otherwise required by law to collect only the 
filed rate. Where the carrier has collected a rate higher than the 
applicable filed rate, and the filed rate is the rate the parties 
intended, the carrier may continue, as it would prior to the NRA, to 
repay the excess amount without recourse to the Commission. Carriers 
do not require court or Commission approval when merely conforming 
to that requirement.
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    A shipper might consent to waive carrier payment of overcharges if, 
for example, the charges collected at the time of shipment were the 
charges the shipper had agreed to pay, and later the parties determined 
that a lower rate was in fact the applicable filed rate.2 
Similarly, a carrier might consent to waive undercharges where the 
applicable filed rate is higher than the rate the parties had intended. 
For example, the carrier might have inadvertently failed to file the 
rate it had negotiated and intended to apply. In other cases, the filed 
tariff provision may have been incorrect; for example, the commodity 
description might not be sufficiently inclusive or the shipment origin 
might be described as within a commercial zone when it is actually 
several miles outside the zone.3
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    \2\``Overcharge'' has traditionally meant the amount by which 
the collected rate exceeds the legally applicable filed rate. See 49 
U.S.C. 11706(b) and 11705(b)(1).
    \3\In some cases where there are incorrect tariff provisions or 
an inadvertent carrier failure to properly and timely file and 
maintain the agreed upon rates, rules, or classifications, the 
shipper may have already paid charges that were based on a higher 
rate than the one the parties had intended. In this situation, the 
proposed rules would permit carriers to pay back the excess amounts.
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    To implement the provisions of Section 11712(a), we are proposing 
rules that are similar to our Special Docket rules at 49 CFR 1130.2(e), 
which allow rail and water carriers to waive collection of undercharges 
or pay reparations for similar reasons.4 These proposed motor 
``Tariff Reconciliation'' rules provide a process that will in most 
cases require the carrier to file only a letter of intent and an 
appropriate filing fee. (If a protest is filed or the Commission 
initiates an investigation on its own motion, the carrier could reply.) 
Following the protest period and Commission review, the Commission will 
issue an order either approving or disapproving the agreement.
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    \4\Unlike the rail rules, the proposed rules for motor carriers 
do not provide for the tolling of a statute of limitations. The 
reason is that for proceedings involving motor carriers, the statute 
of limitations can be tolled only by the filing of a court (not a 
Commission) action. 49 U.S.C. 11706(a), 11706(b), and 11706(c)(2). 
Since the section 11706 limitations periods apply only to civil 
actions, not to matters brought to the Commission under section 
11712, the Commission proposes to accept letters of intent for motor 
shipments without regard to the dates of the shipments. This will 
allow carriers to adjust their charges even after the time for civil 
actions has passed, so as to avoid exposure to penalties for 
departure from the filed rate. See 18 U.S.C. 3282 (setting a five 
year period for enforcement actions against carriers) and 49 U.S.C. 
11902 (six years for actions against shippers who have received 
rebates).
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    The letter of intent must describe the action intended (i.e., 
departure from the filed rate). While we are not proposing any 
particular format for these letters, they must contain, at a minimum, 
the following information:

1. The name(s) and address(es) of the payer(s) of the freight 
charges;
2. The name(s) of the carrier(s) involved in the traffic;
3. The amount(s) involved;
4. The tariff authority(ies) for the charged and sought rates;
5. The date(s) when the shipment(s) involved were delivered or 
tendered for delivery;
6. The point(s) of origin and destination of the shipment(s) and the 
route(s) of movement;
7. The commodity(ies) transported;
8. A statement certifying that the carrier(s) participating in the 
shipment(s) or the payer(s) of the freight charges (if waiver of 
overcharge is involved) concur(s) with the intent to depart from the 
filed rate;
9. A brief explanation of the incorrect tariff provision(s) or 
billing error(s) causing the request to depart from the filed rate; 
and
10. The reason(s) why the Commission should approve the proposed 
resolution.

    Letters of intent would be made available for public inspection in 
the Special Docket Board Public File, Room 4313, at our offices in 
Washington, DC. Letters of objection may be filed within 30 days of the 
filing of the petition. Following filing of the letter of intent, the 
proposed rules would provide separate procedures for the processing of 
uncontested and contested cases. With respect to uncontested petitions 
(letters of intent) on which the Commission does not initiate a formal 
investigation the Commission proposes two alternative procedures and 
requests comments from interested parties as to which procedure the 
Commission should adopt.
    One procedure would adapt the Special Docket procedures. Under 
these procedures, objections could be lodged against a petition for a 
period of 30 days following its filing. If none were received and if by 
the 45th day following the filing date of the petition the Commission 
did not institute an investigation on its own motion, the petition 
would be considered to have been approved by the Commission. This would 
be consistent with the Special Docket Procedures where, unless 
objections are filed within 45 days after a petition is filed, the 
petition is thereafter considered to be ``an order of the Commission 
authorizing the action contemplated in the petition.'' See 49 CFR 
1130.2(e)(4). Under an alternative procedure for processing uncontested 
petitions, where the Commission decides not to investigate, the 
Commission would issue an order, through its Special Docket Board 
either approving or disapproving the petition.
    Both procedures would meet section 11712's requirement for 
Commission ``review and approval'' of the consensual resolution of 
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 by providing for careful Commission monitoring to 
assure that the new process is not misused or abused. Both procedures 
would do this by providing sufficient time for Commission consideration 
of each petition and the opportunity for a formal Commission 
investigation. The procedures differ in whether a final order will be 
issued granting approval of a petition not investigated by the 
Commission in an uncontested case. Under these circumstances, the first 
procedure would assure parties of a resolution of their case within 45 
days. The second procedure would assure receipt of a written order 
confirming approval of a petition. This would also be accomplished in a 
short time, but the rules would not establish a standard deadline. In 
proposing these rules, the Commission notes that departures from the 
filed rate are not to be usual or expected activities. For any petition 
approved, under either of the procedures described above, or the other 
procedures proposed for contested and investigated cases, the claims to 
overcharges or undercharges would then be deemed to be waived (and, 
where refunds are involved, the carrier could then return to the 
shipper the excess amounts already collected).
    If a letter is contested, or if the Commission decides on its own 
motion to investigate a particular case, carriers would not be allowed 
to take any action until the case is reviewed by the Special Docket 
Board and an appropriate order either granting or denying the 
application is issued. Carriers may file replies if objections are 
filed, or if an investigation is initiated on the Commission's own 
motion.
    We are proposing a filing fee of $70.00. This is the same as the 
current filing fee of $70.00 under the rail/water Special Docket letter 
of intent procedures, and seems appropriate because each procedure 
requires similar processing.
    Unlike the rail/water Special Docket procedures, the proposed rules 
would not require carriers to notify the Commission that the proposed 
transaction has been consummated. We see no need for notification, as 
carriers can be assumed to consummate the transactions for which they 
seek agency approval.
    Public comment is invited on the scope of application of the 
proposed rules, the appropriateness of the letter of intent 
requirements, the alternative procedures for uncontested petitions not 
investigated by the Commission, the level of the fee, and on all other 
aspects of the proposed rules. To obtain a copy of the decision, write 
to, call, or pick up in person from: Office of the Secretary, room 
2215, Interstate Commerce Commission, Washington, DC 20423. Telephone: 
(202) 927-7428. [Assistance for the hearing impaired is available 
through TDD services (202) 927-5721.]

Environmental Statement

    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

Regulatory Flexibility Certification

    Pursuant to 5 U.S.C. 605(b), we conclude that our proposed action 
in this proceeding would not have a significant economic impact on a 
substantial number of small entities. The economic impact would be 
minimal because the proposed rules merely provide a simple, voluntary 
method to resolve certain billing problems that are likely to arise in 
only a small proportion of the shipments transported by the motor 
carrier industry. Thus the economic impact is unlikely to be 
significant within the meaning of the Regulatory Flexibility Act.

List of Subjects

49 CFR Part 1002

    Administrative practice and procedure, Common carriers, Freedom of 
information, User fees.

49 CFR Part 1011

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies).

49 CFR Part 1130

    Administrative practice and procedure.

    Decided: March 4, 1994.

    By the Commission: Chairman McDonald, Vice Chairman Phillips, 
Commissioners Simmons and Philbin. Commissioner Philbin dissented.
Sidney L. Strickland, Jr.,
Secretary.

    For the reasons set forth in the preamble, Title 49, Chapter X, 
parts 1002, 1011 and 1130 are proposed to be amended as set forth 
below.

PART 1002--FEES

    1. The authority citation for part 1002 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a)(4)(A), 5 U.S.C. 553, 31 U.S.C. 9701 
and 49 U.S.C. 10321.

    2. In Sec. 1002.2(f), in the table, a new No. 81 is added to read 
as follows:


Sec. 1002.2  Filing fees.

* * * * *
    (f) * * * 

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                      Type of proceedings                         Fees  
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(81) Tariff reconciliation petitions from motor common                  
 carriers.....................................................       $70
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* * * * *

PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY

    3. The authority citation for part 1011 continues to read as 
follows:

    Authority: 49 U.S.C. 10301, 10302, 10304, 10305, 10321; 31 
U.S.C. 9701; 5 U.S.C. 553.

    4. Section 1011.6(e) is proposed to be revised to read as follows:


Sec. 1011.6  Employee boards.

* * * * *
    (e) Special Docket Board. Disposition of special docket and tariff 
reconciliation proceedings under 49 CFR 1130.2 (e), (f), and (g).
* * * * *

PART 1130--INFORMAL COMPLAINTS

    5. The authority citation for part 1130 is proposed to be revised 
to read as follows:

    Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 10321, 10707 and 
11712.

    6. In Sec. 1130.2, paragraph (f) is proposed to be revised by 
adding the words ``or tariff reconciliation petition'' after the word 
``petition'' in the parenthetical phrase in the first sentence and by 
adding the words ``or tariff reconciliation'' after the words ``Special 
Docket'' in the second sentence, and by adding a new paragraph (g) to 
read as follows:


Sec. 1130.2  When damages sought.

* * * * *
    (g) Tariff reconciliation proceedings for motor common carriers.
    (1) Petitions to waive collection or permit payment.
    Pursuant to 49 U.S.C. 11712, subject to Commission review and 
approval, motor common carriers (other than household goods carriers) 
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 49 U.S.C. 10761 and 10762. Under section 11712, the Commission may 
approve a departure from the filed rate when the shipper and carrier 
agree, and the departure is needed to settle claims resulting from 
incorrect tariff provisions or billing errors arising from the 
carrier's inadvertent failure to properly and timely file and maintain 
agreed upon rates, rules, or classifications. Petitions for appropriate 
authority should be filed by the carrier in the Commission's tariff 
reconciliation docket by submitting a letter of intent to depart from 
the filed rate. Copies of the petitions must be served on all parties 
named in the petitions. The petitions will be deemed the equivalent of 
an informal complaint and answer admitting the matters stated in the 
petition. Petitions shall be sent to the Special Docket Board, 
Interstate Commerce Commission, Washington, DC 20423. The petitions 
shall contain, at a minimum, the following information:
    (i) The name(s) and address(es) of the payer(s) of the freight 
charges;
    (ii) The name(s) of the carrier(s) involved in the traffic;
    (iii) The amount(s) involved;
    (iv) The tariff authority(ies) for the charged and sought rate;
    (v) The date(s) when the shipment(s) involved were delivered or 
tendered for delivery;
    (vi) The point(s) of origin and destination of the shipment(s) and 
the route(s) of movement;
    (vii) The commodity(ies) transported;
    (viii) A statement certifying that the carrier(s) participating in 
the shipment(s) or the payer(s) of the freight charges (if waiver of 
overcharges is involved) concur(s) with the intent to depart from the 
filed rate;
    (ix) A brief explanation of the incorrect tariff provision(s) or 
billing error(s) causing the request to depart from the filed rate; and
    (x) The reason(s) why the Commission should approve the proposed 
resolution.
    (2) Public notice and protest. Tariff reconciliation petitions 
(letters of intent) shall be served on all parties named in the 
petition and will be made available by the Commission for public 
inspection in the Special Docket Board Public File Room, Room 4313, 
Interstate Commerce Commission, Washington, DC 20423. Any interested 
person may protest the granting of a petition by filing a letter of 
objection with the Special Docket Board within 30 days of Commission 
receipt of the petition. Letters of objection shall identify the tariff 
reconciliation proceeding, shall clearly state the reasons for the 
objection, and shall certify that a copy of the letter of objection has 
been served on all parties named in the petition.
    (As to uncontested petitions, not investigated by the Commission 
two alternative rules are offered for comment. Comments from interested 
parties are requested on which procedure the Commission should adopt.) 
(First possible rule)
    (3) Uncontested petitions. If a petition is not contested, and if 
the Commission does not initiate an investigation of the petition on 
its own motion, approval is deemed granted without further action by 
the Commission, effective 45 days after Commission receipt of the 
petition. (Second possible rule)
    (3) Uncontested petitions. If a petition is not contested, the 
Commission may initiate an investigation of the petition on its own 
motion, or it may simply issue an order either approving or 
disapproving the petition.
    (4) Contested petitions. If a petition is contested or the 
Commission initiates an investigation of the petition on its own 
motion, 15 days will be allowed for reply. The 15 day period will 
commence on the date of service of the objections or, if the Commission 
initiates an investigation on its own motion, on the date of service of 
the decision initiating the investigation. After the period for reply 
has expired, the Commission will issue a decision approving or 
disapproving the agreement, or requesting further submissions from the 
parties.

[FR Doc. 94-5625 Filed 3-9-94; 8:45 am]
BILLING CODE 7035-01-P