[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8221]
[[Page Unknown]]
[Federal Register: April 6, 1994]
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INTERSTATE COMMERCE COMMISSION
49 CFR Parts 1312 and 1314
[Ex Parte No. 444]
Electronic Filing of Tariffs
AGENCY: Interstate Commerce Commission (ICC).
ACTION: Notice of proposal to establish a negotiated rulemaking
committee.
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SUMMARY: The ICC is proposing to establish a committee under the
Negotiated Rulemaking Act to develop rules for electronic tariff filing
(ETF). The agency is inviting applications and nominations for the
committee. The ICC has requested approval from the Office of Management
and Budget (OMB) to establish the committee. Although no difficulty in
obtaining approval is anticipated, no committee will be established
until approval is obtained.
DATES: Comments are due on May 6, 1994.
ADDRESSES: Send comments (an original and 10 copies) referring to Ex
Parte No. 444 to: Interstate Commerce Commission, Office of the
Secretary, Case Control Branch, Washington, DC 20423.
FOR FURTHER INFORMATION CONTACT: James W. Greene (202) 927-5597 or
Charles E. Langyher, III (202) 927-5160. TDD for hearing impaired:
(202) 927-5721.
SUPPLEMENTARY INFORMATION: After considering the comments filed in
response to our last notice in this proceeding, we have decided to
proceed with the planning of a comprehensive ETF system (i.e., one that
will support EDI and automated analyses). We believe that determining
the scope and type of ETF system we should adopt can best be achieved
by initially specifying a comprehensive system in the context of an
ongoing effort to identify the needs that an ETF system should serve
and the technologies (including EDI, tariff imaging, and others) needed
to meet them. There is currently no common understanding of what
constitutes ETF. As ETF design progresses, the choices among various
benefit and cost packages will become clearer. This will help carriers
and shippers to determine what type of ETF system to support.
We agree with virtually all of the commenters supporting ETF that
extensive industry participation is needed to resolve the technical and
policy issues involved in ETF. We believe the project can best move
forward under procedures authorized by the Negotiated Rulemaking Act of
1990.1 The ``Reg-Neg'' Act establishes a framework by which Reg-
Neg committees may resolve particular questions that would otherwise be
resolved under traditional, formal rulemaking proceedings. If the
committee reaches a consensus2 on a proposed rule, it prepares a
report to the agency containing the proposal.3 The agency
typically then publishes the proposal in a notice of proposed
rulemaking.
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\1\Public Law 101-461.
\2\The Reg-Neg Act, section 582(2), defines ``consensus'' as
``unanimous concurrence among the interests represented on a
negotiated rulemaking committee . . . unless such committee (A)
agrees to define such term to mean a general but not unanimous
concurrence; or (B) agrees upon another specified definition.''
\3\A committee not reaching consensus may still prepare a report
outlining the areas in which consensus was reached. Reports may also
contain any other material which the committee deems appropriate.
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The Reg-Neg approach seems well-suited to the development of ETF.
Many ETF issues will be highly technical and complex. A Negotiated
Rulemaking Committee will allow a core of experts representing the
affected interests to work together on the issues on a continuing basis
until consensus is reached. Moreover, a Reg-Neg Committee will be
flexible; it could, for example, choose to host one or more industry
conferences to allow different groups to present proposals. An agency
may establish a negotiated rulemaking committee if the head of the
agency determines that the use of the procedure is in the public
interest. Reg-Neg Act, section 583(a). In making this determination,
the agency must consider whether:
(1) There is a need for the rule;
(2) There is a limited number of identifiable interests;
(3) These interests can be adequately represented by persons
willing to negotiate in good faith to reach a consensus;
(4) There is a reasonable likelihood that the committee will reach
consensus within a fixed period of time;
(5) The negotiated rulemaking procedure will not unreasonably delay
the notice of proposed rulemaking;
(6) The agency has adequate resources and is willing to commit such
resources to the process; and
(7) The agency is committed to use the result of the negotiation in
formulating a proposed rule if at all possible. Id. For the reasons
stated in the decision, we believe these criteria can be met for an ETF
undertaking.
ETF Issues
As guidance to the Reg-Neg Committee, we will describe our current
views on certain ETF issues and the characteristics of a comprehensive
system. We will also instruct the committee, however, not to limit its
consideration to this type of system. Rather, the Committee to identify
the needs that an ETF system should serve, should review whatever
alternative technologies it believes may be preferable, and recommend
appropriate rules to the Commission.
We will specifically direct the Committee's attention to the
electronic tariff imaging system currently being developed by the
Commission. The tariff imaging system provides for the retention of
tariff page images on optical disks, rather than retaining the printed
tariff pages themselves. This system will provide much-improved
security for tariff documents, will greatly reduce the space required
to store them, and will offer easier access to tariff information. The
imaging system can be enhanced to provide for the electronic
transmission of tariff pages to the Commission, which will allow
carriers to file their tariffs ``electronically'' and avoid the time
and expense of processing printed documents. Therefore, unless EDI and
automated analysis capabilities are required for tariff data, the
tariff imaging system (or some enhancement thereof) might offer a
satisfactory and less expensive solution.
Our views on specific issues are as follows:
Bifurcation Into Separate Rail and Motor Carrier Sub-Dockets
We intend to begin with a unified proceeding, but to authorize the
Committee to establish separate sub-groups (for example, for rail and
non-rail) at a later date if necessary.4 Some standardization
across modes (using American National Standards Institute (ANSI)
standards, for example) may be necessary to ensure that one EDI
standard can accommodate all tariffs and that one ICC data base
structure can handle all tariffs. Ultimately, however, some data coding
standards (commodity codes, etc.) may differ for rail and motor
carriers.
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\4\Railroads indicate that they are prepared to move ahead
immediately; however, they have had the ability to proceed on their
own since the Commission lifted the stay on rail carrier ETF in
November of 1989.
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Carrier Sharing of the Commission's Custodial Responsibility for
Official Tariff Data
No commenter has described a shared system which assures protection
of official tariff data. Under these circumstances, we believe we must
maintain custody of the data. The Commission will consider future
shared custody arrangements that do adequately ensure data integrity.
Railroads' proposal to have carriers act as custodian of official
tariff data is the most complete of those described, but it does not
contain enough information to permit an evaluation of the adequacy of
data security. We have learned from the undercharge crisis that strict
security measures will be required to ensure that carriers cannot make
unauthorized changes to rates. Additionally, it's difficult to tell
whether the data in Railroads' system is organized in ways that would
facilitate its use by shippers. It appears that Railroads, in response
to an inquiry, can supply their determination of ``the applicable
rate''; however, prior tariff disputes have shown us that the carrier's
determination is not always accurate. Shippers need access to the array
of published rates so they can make their own determination of the
correct rate. It is not clear whether or how Railroads' system would
respond to such requests.
Whether ETF Should Be Voluntary or Mandatory
We reach no conclusion on this issue at this time.
We will request that the Reg-Neg Committee consider it and make a
recommendation.
Other ETF System Design Issues
We anticipate that the recommendations from the Reg-Neg Committee
will encompass ETF system design issues. Particularly in light of the
lack of detail in the comments, we agree with commenters that further
consultations are required before such decisions can be made.
Whether General Standards or Detailed Publishing Regulations Are More
Appropriate for Printed Tariffs
We will retain the status quo (general standards for rail tariffs
and detailed regulations for other tariffs) while ETF issues are being
considered. The primary focus of this proceeding is on ETF; very few
commenters address the printed tariff issue; and we see no need to deal
extensively with printed tariff issues at this time.
Characteristics of a Comprehensive ETF System
While we expect the Reg-Neg Committee to thoroughly consider design
issues and recommend appropriate regulations to the Commission, we
offer the following comments on what might be appropriate for a
comprehensive ETF system (i.e., one that will support EDI and automated
analyses):
1. Rates would be filed in a data base-oriented format with
defined, computer readable codes designating origins, destinations,
commodities, and other conditions of rate application (such as minimum
weight, special packaging requirements, etc.).
2. Although data coding standards should be required in a
comprehensive system, additional analysis is necessary to determine
whether a common standard data coding structure should be required for
all filers or whether different standard structures should be adopted
for rail, motor and/or water carriers.
3. Although the publication of rules and accessorial charges in
computer ratable formats is desirable, we do not believe we should
require that they be published in this manner.
4. Only raw ETF data should be made available from the Commission.
Whether the Commission would develop software to automatically analyze
rates would depend on whether the Commission needs such software for
agency operations.
5. The system should utilize ANSI EDI standards. We note FMC's
contention that ANSI standards do not include all of the fields
required for tariff filing purposes, and hope that the ANSI standards
can be expanded to meet such requirements and enable us to avoid
proprietary formats.
6. We do not believe we should include a requirement that our ETF
system be capable of determining the rates applicable to particular
movements. This determination does not, however, eliminate the need for
data standards and standardized EDI formats, since they will be
required to enable shippers and carriers to automatically process ETF
data.
Establishing the Reg-Neg Committee
We request the public to address in particular the interests that
should be represented on the Committee (First notice). As described
more fully below, we are also soliciting volunteers5 to serve on
the Committee. When OMB approves the Committee, we will publish another
notice (Second notice) listing the interests that are likely to be
significantly affected by a rule; the persons proposed to represent
such interests and the persons or person proposed to represent the
agency; and a proposed agenda and schedule for completing the work of
the committee, including a target date for publication by the agency of
a proposed rule for notice and comment. See Reg-Neg Act, section
584(a).6 The public will be asked to comment, particularly on the
composition of the Committee and whether all interests are represented,
and will have another opportunity to volunteer to participate. We
anticipate that the first meeting of the Committee will occur some time
during the summer.
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\5\Members of a committee are generally required to pay their
own expenses of participating. Section 588 of the Reg-Neg Act
provides that the agency may pay for a member's reasonable travel
and per diem expense, expenses to obtain technical assistance, and a
reasonable rate of compensation if the member certifies a lack of
adequate resources to participate in the committee and if the agency
determines that such member's participation on the committee is
necessary to assure an adequate representation of the member's
interest. The Commission does not anticipate paying any expenses
under this provision. The Commission will, however, provide
administrative support and appoint an employee to represent the
agency on the Committee, and is investigating the hiring of a
contractor to provide technical support.
\6\The Reg-Neg Act, section 584(a), requires the notice to
contain, in addition to the information listed above, an
announcement that the agency intends to establish a negotiated
rulemaking committee; a description of the subject and scope of the
rule to be considered, and the issues to be considered; a
description of the administrative support for the committee to be
provided by the agency, including technical assistance; a
solicitation for comments on the proposal to establish the
committee; and an explanation of how a person may apply or nominate
another person for membership on the committee.
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As indicated above and in the Reg-Neg Act, a negotiated rulemaking
committee must contain members representing all interests that will be
affected by the rule. Membership is generally limited to 25, unless the
agency determines that a greater number is necessary for the
functioning of the committee or to achieve balanced membership. Reg-Neg
Act, section 585(b). A committee must include at least one person
representing the agency. Id.
Persons may apply for, or nominate another person for, membership
on the Committee by submitting an application or nomination containing
the information required by the Reg-Neg Act, section 584(b). The
required information is as follows:
(1) The name of the applicant or nominee and a description of
the interests such person shall represent;
(2) Evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent; and
(3) A written commitment that the applicant or nominee shall
actively participate in good faith in the development of the rule
under consideration.7
\7\Persons submitting applications or nominations after
publication of the next notice will also have to state the reasons
that the persons specified in that notice do not adequately
represent the interests of the person submitting the application or
nomination. See section 584(b)(4).
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We expect that the Committee's work will require knowledge of
technical tariff and electronic data processing matters, and expect
that those skills (as well as others) will be possessed by the persons
who apply, or are nominated, for the Committee.
Additional information concerning the ICC's views on meeting the
Reg-Neg Act section 583(a) criteria is contained in the Commission's
decision. To obtain a copy of the full 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.
Decided: March 21, 1994.
By the Commission Chairman McDonald, Vice Chairman Phillips,
Commissioners Simmons and Philbin. Vice Chairman Phillips and
Commissioner Simmons commented with separate expressions.
Sidney L. Strickland, Jr.,
Secretary.
[FR Doc. 94-8221 Filed 4-5-94; 8:45 am]
BILLING CODE 7035-01-P