[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