[Federal Register Volume 61, Number 229 (Tuesday, November 26, 1996)]
[Notices]
[Pages 60140-60141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30180]


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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[No. 41826]

National Association of Freight Transportation Consultants, 
Inc.--Petition for Declaratory Order
AGENCY: Surface Transportation Board, DOT.
ACTION: Institution of declaratory order proceeding.
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SUMMARY: The Board is instituting a proceeding under 5 U.S.C. 554(e) to 
resolve questions regarding the application of the 180-day shipper 
notification provisions of 49 U.S.C. 13710(b)(3)(B).

DATES: Comments by or on behalf of those opposing the positions of the 
National Association of Freight Transportation Consultants, Inc. 
(NAFTC) or petitioner and the Transportation Consumer Protection 
Council (TCPC), including any further comments by the Regular Common 
Carrier Conference (RCCC), are due December 26, 1996. Petitioner's 
replies and comments from any person desiring to submit comments in 
support of its positions are due January 10, 1997.

ADDRESSES: The original and 10 copies of submissions identified as such 
and referring to No. 41826 must be sent to: Office of the Secretary, 
Case Control Branch, Surface Transportation Board, Washington, DC 
20423.
    One copy of evidence and arguments by or on behalf of those 
opposing the positions of NAFTC and TCPC must be served simultaneously 
on their representatives: Donna F. Behme, Executive Director, National 
Association of Freight Transportation Consultants, Inc., P.O. Box 
21418, Albuquerque, NM 87154-1418; Raymond A. Selvaggio, Augello, 
Pezold & Hirschmann, P.C., 120 Main Street, Huntington, NY 11743-6936.
    One copy of evidence and arguments by or on behalf of those 
opposing the positions of the RCCC must be served simultaneously on its 
representative: Kevin M. Williams, Executive Director and General 
Counsel, Regular Common Carrier Conference, 211 North Union Street, 
Suite 102, Alexandria, VA 22314.

FOR FURTHER INFORMATION CONTACT: Michael Martin, (202) 927-6033, [TDD 
for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: In Carolina Traffic Services of Gastonia, 
Inc.--Petition for Declaratory Order, STB No. 41689 (June 7, 1996) 
(CTS), we issued a declaratory order answering certain questions 
regarding the so-called ``180-day rule'' of 49 U.S.C. 13710. That 
provision requires, inter alia, that shippers ``contest the original 
bill or subsequent bill within 180 days of the receipt of the bill in 
order to have the right to contest such charges.'' 49 U.S.C. 
13710(a)(3)(B).1
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    \1\ This provision and the companion carrier-notification 
provision [49 U.S.C. 13710(a)(3)(A)], which requires carriers to 
rebill within 180 days of the original freight bill in order to 
collect any amounts in addition to those originally billed and paid, 
were enacted in the Transportation Industry Regulatory Reform Act of 
1994 (TIRRA), Pub. L. No. 103-311, 206(c)(4), 108 Stat. 1683, 1685 
(1994) and reenacted by the ICC Termination Act of 1995 (ICCTA), 
Pub. L. No. 104-88, 1103, 109 Stat. 803, 876-77 (1995). Further 
background concerning these provisions is set forth in CTS.
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    In CTS, we concluded: (1) That the rule applies to all original 
freight bills issued on or after August 26, 1994 (date of TIRRA's 
enactment), and to rebillings issued on or after January 1, 1996 (the 
effective date of ICCTA, which clarified the applicability of the 180-
day rule to rebillings by carriers); (2) that, to perfect its right of 
action, a shipper must, in addition to complying with the statute of 
limitations on court actions (49 U.S.C. 14705), notify carriers that 
they contest a billing or rebilling within 180 days of the contested 
billing, but that they need not request a Board determination within 
that time period, or at all; and (3) that there is no statutory 
prohibition against carriers paying late-contested claims.
    On June 17, 1996, NAFTC (which represents the interests of freight 
bill auditors for shippers) filed a petition for declaratory order 
asking the Board to resolve a number of issues relating to the 180-day 
rule. In its petition, NAFTC suggests that we establish a procedural 
schedule to permit interested parties to file comments regarding the 
issues it raises.
    NAFTC asserts that the 180-day rule does not apply to billing 
``errors'', but only to billing ``disputes''. It attempts to draw a 
distinction between erroneous billings based on factual, arithmetical 
or clerical mistakes and disputes over, for example, which of two or 
more rates should apply. NAFTC points to the title of section 
13710(a)(3) (``Billing disputes'') and relies on legislative history of 
TIRRA. It also cites Duplicate Payments of Freight Charges, 350 I.C.C. 
513 (1975), in which the ICC ruled that duplicate payments, because 
they are made in response to bills issued in error, are not subject to 
the statute of limitations on court actions for overcharges.
    NAFTC also challenges the Board's holding in CTS that 49 U.S.C. 
13710(a)(3)(b) requires a shipper to notify the carrier (rather than 
bring an action before the Board) within 180 days in order to perfect 
its claim. According to NAFTC, the subsection, when read as a whole, 
indicates that the 180-day rule is simply a time limit for filing 
challenges before the Board.
    NAFTC next contends that the 180-day rule applies only to billings 
for transportation that is subject to the tariff filing requirements 
administered by the Board. Petitioner also argues that carriers should 
be required to accept fax notification of overcharge claims and should 
be required to accept such

[[Page 60141]]

claims as long as they are postmarked by the 180th day.
    Finally, NAFTC expresses concern that carriers may be engaging in 
concerted action by uniformly declining to pay overcharge claims 
received after the 180-day period, based on advice from the General 
Counsel of the National Motor Freight Traffic Association. It suggests 
that such action may constitute a violation of the antitrust 
laws.2
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    \2\ Athearn Transportation Consultants, Inc.; Sandusky Traffic 
Counsellors, Inc.; Traffic Service Bureau, Inc.; Transportation Cost 
Control; Audit Branch of Traffic; Scott Traffic Consultants, Inc.; 
Industrial Traffic Consultants, Inc.; Carolina Traffic Services of 
Gastonia, Inc.; Orchard Supply Hardware; and Robert R. Piper, Ph.D., 
all filed comments in support of the petition. They all raise 
arguments similar to those raised by petitioner and express their 
view that the statute applies (or should apply) only to disputes 
over the level of rates, rather than to ``billing errors'' 
generally.
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    We initially determined to address NAFTC's claims at a voting 
conference we had scheduled for September 24, 1996. However, on 
September 23, 1996, TCPC filed a statement raising additional issues. 
As a result, we removed the matter from the conference agenda, and 
decided to ask for comments on the issues raised by petitioner and 
TCPC.
    TCPC, in its comments, points to what it considers to be a possible 
inconsistency between 49 U.S.C. 13710(a)(3)(B), which provides that 
shippers must ``contest [a carrier's] original bill or subsequent bill 
within 180 days of the receipt of the bill in order to have the right 
to contest such charges,'' and certain applicable limitations 
provisions. In particular, it notes that 49 U.S.C. 14705(b) allows a 
shipper to ``begin a civil action to recover overcharges within 18 
months after the claim accrues,'' or within three years after the claim 
accrues if it is against a carrier providing transportation subject to 
the jurisdiction of the Board and the Secretary under Chapter 135 of 
Title 49 and the shipper has elected to file a complaint under 49 
U.S.C. 14704(c)(1), and that 49 U.S.C. 14705(d) extends those 
limitations periods ``if a written claim is given to the carrier within 
those limitation periods.'' Therefore, according to TCPC, the 180-day 
rule should not be read--as we read it in CTS--to disallow all claims 
for overcharges as to bills that are not contested within 180 days of 
the date of the bill. Rather, its view is that the 180-day rule applies 
only to unpaid freight bills; once a bill is paid, the only limitations 
or conditions on a shipper's subsequent challenge to the charges are 
those embodied in the provisions of 49 U.S.C. 14705 (b) and (d).3 
Although we are not certain that we share TCPC's logic in 
distinguishing, for purposes of the 180-day rule, between unpaid and 
paid bills, or overcharges in general and unpaid bills in particular, 
we seek comment on it.
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    \3\ Although not directly at issue in this proceeding, we note 
an apparent technical error in the statute. Section 14704(c)(1) 
authorizes a person to ``bring a civil action under subsection (b) 
[of section 14704] to enforce liability against a carrier or broker 
providing transportation subject to jurisdiction under chapter 
135.'' As codified, subsection (b) refers only to tariff 
overcharges, while the provision allowing recovery of damages from 
carriers is contained in section 14704(a)(2) (as to which the 
statute does not expressly authorize a civil action). Both the House 
and Senate bills (H.R. 2539 and S. 1396) that became the ICC 
Termination Act of 1995, however, placed the damages provision in 
subsection (b)(2), as to which the statute does authorize a civil 
action. Subsection (b)(2), as passed by both Houses, reads as 
follows:
    A carrier or broker providing transportation or service subject 
to jurisdiction under chapter 135 of this title is liable for 
damages sustained by a person as a result of an act or omission of 
that carrier or broker in violation of this part.
    Thus, as enacted by Congress, section 14704(c)(1) authorized 
civil actions both for damages and for charges exceeding the tariff 
rate. Notwithstanding the fact that section 14704(b)(2) was 
misplaced [having been codified as section 14704(a)(2)], in our 
opinion, section 14704(c)(1) was intended to authorize a person to 
bring a civil action against a carrier or broker for damages 
sustained by that person as a result of any act or omission of the 
carrier in violation of Part B, Subchapter IV, of Title 49.
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    TCPC raises two other issues in addition to the matters raised by 
NAFTC. First, it asserts that 49 U.S.C. 13710(a)(3)(A)'s requirement 
that a carrier must rebill within 180 days in order to collect 
additional charges does not bar a carrier from seeking to collect its 
originally-billed rates at any time before the expiration of the 18-
month statute of limitations contained in 49 U.S.C. 14705(a). We 
believe that the plain language of the statute supports TCPC's 
conclusion. However, interested parties may also comment on this 
question, should they desire to do so. Second, TCPC contends that, even 
if the 180-day rule were deemed to bar overcharge claims contested more 
than 180 days after receipt of a bill, it could not apply to duplicate 
payment claims, because those claims seek recovery of a second payment 
made on an uncontested freight bill. Although our decision in CTS 
reached essentially that same conclusion, we do not preclude commentors 
from addressing that issue further.
    Finally, we note that on October 22, 1996, the RCCC filed comments 
essentially supporting our decision in CTS, and responding to the 
comments of NAFTC and others.4 First, it contends that we should 
reaffirm our holding that the 180-day rule applies broadly to all 
billing disputes, including those arising from errors or disputes 
involving challenges to the reasonableness or applicability of the 
rate. Second, it asserts that the 180-day rule is not a time limit for 
bringing disputes before the Board, but applies to any effort to 
contest a bill. Third, it argues that the 180-day rule applies to all 
billings, not just those for transportation that is subject to the 
tariff filing requirements administered by the Board. Fourth, it 
challenges TCPC's view that the 180-day rule applies only to unpaid 
freight bills. Finally, it agrees with NAFTC and with our view, as set 
forth in CTS, that carriers and shippers may mutually agree to waive 
the 180-day rule, but it asserts that the parties must do so expressly 
and in writing.
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    \4\ On November 7, 1996, the American Trucking Associations, 
Inc., filed a letter supporting the comments of RCCC.
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    Despite its general concurrence with our CTS ruling, RCCC believes 
it appropriate that we address the issues raised by NAFTC and the other 
commentors. It suggests that the public be given an opportunity to 
comment prior to such a decision.
    The petition will be granted and a declaratory order proceeding 
instituted. Opponents of the positions taken by NAFTC and TCPC, 
including RCCC, will be permitted to file comments on the issues 
presented, and NAFTC and TCPC, and any other party supporting their 
positions, will be permitted to file reply comments.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. A declaratory order proceeding is instituted to consider the 
issues raised in this proceeding.
    2. Comments by or on behalf of opponents of the positions of NAFTC 
and TCPC, including any further comments by RCCC, are due December 26, 
1996.
    3. Petitioner's and TCPC's replies and any comments from other 
interested persons are due January 10, 1997.

    Decided: November 14, 1996.

    By the Board, Chairman Morgan, Vice Chairman Simmons, and 
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-30180 Filed 11-25-96; 8:45 am]
BILLING CODE 4915-00-P