[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Rules and Regulations]
[Pages 2543-2545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-579]



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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.

ACTION: Adoption of final rules.

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SUMMARY: The Commission is adopting final rules to implement section 4 
of the Negotiated Rates Act of 1993. These rules provide a mechanism 
for obtaining Commission review of motor carrier and shipper 
resolutions 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 in compliance with 49 U.S.C. 10761 and 10762.

EFFECTIVE DATE: The rules are effective February 9, 1995.

FOR FURTHER INFORMATION CONTACT: Lawrence C. Herzig, (202) 927-5180. 
[TDD for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: By a notice of proposed rulemaking (NPR) in 
Ex Parte No. MC-219, Implementation of Section 4 of the Negotiated 
Rates Act (not printed), served March 4, 1994, and published at 59 FR 
11240, March 10, 1994, we proposed rules which would implement section 
4 of the Negotiated Rates Act of 1993 (NRA), Pub. L. No. 103-180. The 
NPR proposed a mechanism for obtaining Commission review of motor 
carrier and shipper resolutions of overcharge and undercharge claims. 
These claims result from incorrect tariff provisions or billing errors 
arising from the inadvertent failure to properly and timely file and 
maintain agreed-upon rates in compliance with 49 U.S.C. 10761 and 
10762.
    The NPR proposed two alternate methods of settlement. Under the 
first method, a petition to depart from the filed rate would be filed 
which would become equivalent to an order of the Commission after 45 
days if it was not protested or investigated; the second method would 
require a formal order to be issued in all instances, whether or not 
there was a protest or investigation. The NPR also proposed standards 
for the information required to be included in a petition to depart 
from the filed rate, and set a filing fee of $70.
    Nine comments were received. In response to these comments, we are 
modifying the information required to be included in a petition, and we 
will permit either a carrier or a shipper to file a petition. We will 
also adopt the first method of settlement and filing fees of $40 and 
$80, depending on the amount involved in the petition.
    Consolidated Freightways Corporation of Delaware states that the 
proposed rules are too burdensome in requiring written Commission 
orders in all cases, prefiling of the petitions for relief, and a 
docketing fee on insignificant amounts. Also, it is concerned that the 
proposed rules do not clarify that multiple tariff errors may be 
resolved by a single filing. The final rules will not require an order 
on any uncontested petition. Also, while each petition should encompass 
only one shipper or one consignee, it can include multiple tariff 
errors. However, we will require payment of a fee for all petitions.
    D&J Associates, a freight transportation consulting firm, is 
concerned that the proposed rules apply only to publishing errors and 
not to billing errors and overcharge claims based on published and 
timely filed rates. In this regard section 4 of the NRA is very clear; 
it applies only to 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. Thus, the concerns of D & J Associates need not be 
addressed further.
    The National Industrial Transportation League (NITL) states that 
the proposed procedures are too complex and formalistic. First, it 
argues that they will prevent the parties from quickly and efficiently 
resolving paperwork errors. We agree, and will simplify the 
requirements for information to be included in each petition. Also, 
NITL is concerned that any private party, even though not a party to 
the transportation at issue, could protest petitions. We do not 
consider this to be a significant problem. The right of any interested 
party to protest a petition has been part of the rail special docket 
procedures for a number of years, without causing any problems.
    The Transportation Brokers Conference of America generally endorses 
the proposed rules. However, it favors the method whereby an 
uncontested petition automatically becomes an order of the Commission 
after 45 days. We are adopting this method in the final rules.
    The National Motor Freight Traffic Association, which publishes the 
National Motor Freight Classification on behalf of its member carriers, 
generally supports the proposed rules. However, it suggests that a 
notice should be published by the Commission when a petition concerning 
classification matters is investigated on the Commission's own motion 
or is protested. We consider this publication to be unnecessary. 
Petitions will concern tariff publishing errors or the failure to 
publish agreed-upon rates, covering primarily discounts or 
[[Page 2544]] commodity rates and not classification matters.
    Baldor Electric Company, GAF Building Materials Corp. and W.R. 
Grace Company filed consolidated comments. These firms assert that 
shippers should be allowed to initiate tariff reconciliation 
procedures. We agree, and are amending the rules to this effect. The 
commenters also believe that the responsibility for serving the 
petition is unclear. We have amended the regulations to show that the 
party who files the petition has the responsibility to serve all the 
parties. These three corporations also argue that the Commission should 
adopt the second method of reconciliation by issuing an order, and that 
the procedures should encompass contract carriage. We disagree. To 
expedite dispute resolution and in light of our limited resources, we 
will permit uncontested and uninvestigated petitions to become orders 
of the Commission after 45 days. The contract carriage issue does not 
lie because contract carriage does not involve filed tariffs.
    National Small Shipments Traffic Conference, Inc., considers that 
the requirements for the information proposed to be contained in each 
petition are too burdensome. It also favors permitting the petitions to 
become orders of the Commission after 45 days. We agree in both 
instances and the final rules respond to both concerns.
    The Petroleum Marketing Association of America argues that we 
should adopt a single-page standardized form for the petitions. We do 
not consider this necessary. The Association also argues that there 
should be no fee, or at most a nominal fee for filing the petitions. We 
are required to assess a fee based on actual cost for services rendered 
to the public. The fees adopted here are based on the average cost of 
processing similar applications.
    Roadway Services, Inc., a common carrier, is concerned, as is D & J 
Associates, that the rules not be applied to pure billing errors. We 
have disposed of this issue in connection with the comments of D & J 
Associates discussed previously. Also, Roadway indicates that the 
information required in the proposed 10-step procedures is too complex 
and burdensome. We agree and in the final rules have significantly 
reduced the amount of required information. Roadway also believes that 
nominal claims ($1,000 or less) should be settled without our 
involvement. We disagree. We do not think that the adopted rules are 
burdensome, especially since we would permit multiple claims involving 
one shipper or consignee to be consolidated.
    We note that, because it substantially eliminated tariff filing 
requirements for independently determined rates, enactment of the 
Transportation Industry Regulatory Reform Act has substantially reduced 
the need for the remedy authorized by section 4 of the NRA and our 
proposed regulations. In the past few months we have received fewer 
than 15 requests for adjustments, and these requests primarily involve 
one motor carrier. Nevertheless, we expect that, as filed tariff 
provisions are reviewed, these requests will continue at the rate of 
one or two per month for some time. Also, because it is possible that 
tariff errors will be made in collectively set tariffs, we may receive 
requests pertaining to rate bureau tariffs.
    We believe that the simplified regulations adopted here will allow 
efficient processing of section 4 petitions by the Commission without 
subjecting petitioners to undue burdens. Actual handling of the 
petitions will be by our Special Docket Board. The filing fees of $40 
for petitions involving $25,000 or less and $80 for petitions involving 
more than $25,000 correspond to the fees currently in place for rail 
special dockets.

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 adoption of these 
rules will not have a significant economic impact on a substantial 
number of small entities. The economic impact will be minimal because 
the 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: December 21, 1994.

    By the Commission, Chairman McDonald, Vice Chairman Morgan, 
Commissioners Simmons and Owen.
Vernon A. Williams
Secretary.

    For the reasons set forth in the preamble, title 49, chapter X, 
parts 1002, 1011 and 1130 are 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) * * *

------------------------------------------------------------------------
                       Type of proceeding                          Fee  
------------------------------------------------------------------------
(81) Tariff reconciliation petitions from motor common                  
 carriers:                                                              
  (i) Petitions involving $25,000 or less......................      $40
  (ii) Petitions involving over $25,000........................       80
------------------------------------------------------------------------

* * * * *

PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY

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

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 10301, 10302, 
10304, 10305, 10321, 10762.

    4. Section 1011.6(e) is 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 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 amended by adding the words 
``or tariff reconciliation petition'' after the word ``petition'' in 
the parenthetical phrase in the first sentence and by adding the 
[[Page 2545]] 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 any departure from the filed rate when the shipper and carrier 
agree, and the departure is needed for the reason(s) stated in section 
11712. Petitions for appropriate authority may be filed by either the 
carrier, shipper or consignee on the Commission's tariff reconciliation 
docket by submitting a letter of intent to depart from the filed rate. 
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) An estimate of the amount(s) involved;
    (iv) The time period when the shipment(s) involved were delivered 
or tendered for delivery;
    (v) A general description of the point(s) of origin and destination 
of the shipment(s);
    (vi) A general description of the commodity(ies) transported;
    (vii) A statement certifying that the carrier(s) and shipper(s) 
participating in the shipment(s) or the payer(s) of the freight charges 
concur(s) with the intent to depart from the filed rate; and
    (viii) A brief explanation of the incorrect tariff provision(s) or 
billing error(s) causing the request to depart from the filed rate.
    (2) Public notice and protest. Tariff reconciliation petitions 
(letters of intent) shall be served on all parties named in the 
petition by the party who files the petition and will be made available 
by the Commission for public inspection in the Special Docket Board 
Public File, 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. The 
Commission may initiate an investigation of the petition on its own 
motion.
    (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.
    (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 petition, or requesting further submissions from the 
parties, and then will issue a decision based on the further 
submissions.

[FR Doc. 95-579 Filed 1-9-95; 8:45 am]
BILLING CODE 7035-01-P