[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Rules and Regulations]
[Pages 32040-32048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15441]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 356, 370 and 379
RIN 2125-AE12
Motor Carrier Routing Regulations; Disposition of Loss and Damage
Claims and Processing Salvage; Preservation of Records
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: This document adds to 49 CFR chapter III certain motor carrier
transportation regulations, also codified in 49 CFR chapter X, which
involve functions delegated to both the FHWA and the Surface
Transportation Board (STB). These regulations govern motor carrier
routing, the processing of claims for loss or damage, and the
preservation of records. The Interstate Commerce Commission Termination
Act of 1995 (ICCTA) abolished the Interstate Commerce Commission (ICC)
and transferred certain functions and proceedings to the STB and the
DOT. The Secretary of Transportation delegated to the FHWA certain
motor carrier functions which were transferred to the DOT from the ICC.
On October 21, 1996, the FHWA and the STB issued a final rule which
transferred and redesignated those regulations in 49 CFR chapter X
involving functions exclusively within the jurisdiction of the FHWA. 61
FR 54706. This document completes the transfer process. Technical
changes have been made to the regulations, where appropriate, to
conform with current statutory citations and definitions and the
transfer of regulatory functions to the Department of Transportation.
EFFECTIVE DATE: June 12, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. John F. Grimm, Director, Office of
Motor Carrier Information Analysis, (202) 366-4039, or Mr. Michael
Falk, Motor Carrier Law Division, Office of the Chief Counsel, (202)
366-1384, at 400 Seventh Street, SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: This document adopts certain motor carrier
transportation regulations codified in 49 CFR chapter X and
incorporates them, with appropriate technical changes, into 49 CFR
chapter III. These regulations involve motor carrier routing,
processing of claims for loss and damage, and preservation of records.
The ICCTA, Pub. L. 104-88, 109 Stat. 803, which was enacted on December
29, 1995, and took effect on January 1, 1996, abolished the ICC and
transferred certain functions and proceedings to the STB and the DOT.
Certain motor carrier functions previously under the jurisdiction of
the ICC were transferred to the Secretary of Transportation, who
subsequently delegated those functions to the FHWA. Implementing
regulations for those motor carrier functions delegated exclusively to
the FHWA have already been redesignated and transferred to 49 CFR
chapter III, where regulations under the authority of the FHWA are
codified. 61 FR 54706 (October 21, 1996).
Unlike the transfer and redesignation procedure employed in that
proceeding, the regulations embraced by this proceeding will be added
to chapter III but not removed from chapter X. No substantive changes
are being made to the regulations at this time. Consequently, prior
notice and opportunity for comment are unnecessary.
Summary of Technical Changes From 49 CFR Chapter X Regulations
The regulations being added to chapter III in this proceeding have
been modified to reflect current statutory citations, jurisdictional
delegations, and regulatory responsibilities. Accordingly, references
to the ``Interstate Commerce Act'' in the chapter X regulations have
been changed to ``49 U.S.C. subtitle IV, part B'' and references to the
``ICC'' or ``Commission'' have been changed to either the ``Secretary''
or ``FHWA'', where appropriate. Other differences between the chapter X
regulations and the regulations being added to chapter III in this
proceeding are discussed below.
Interpretations and Routing Regulations (Part 356)
These regulations are currently found in 49 CFR part 1004 and are
being added to chapter III as part 356 with the changes noted below.
All references to ``household goods'' appearing in 49 CFR part 1004
have been deleted from part 356 to reflect the Secretary's registration
jurisdiction, which embraces all freight forwarders. Since the part 356
regulations are essentially interpretive and impose no affirmative
compliance requirements, including all freight forwarders within this
part is not a substantive regulatory change.
The FHWA is not incorporating 49 CFR 1004.26 into part 356 because
that section involves claims and disputes relating to the lawfulness of
shipment routing, matters which are within the jurisdiction of the
Surface Transportation Board under 49 U.S.C. 13701.
Principles and Practices for the Investigation and Voluntary
Disposition of Loss and Damage Claims and Processing Salvage (Part 370)
These regulations are currently found in 49 CFR part 1005 and are
being added to chapter III as part 370 with the changes noted below.
Section 370.1 does not include the words ``railroad'' and ``express
company'', which are contained in 49
[[Page 32041]]
CFR 1005.1. Inasmuch as 49 CFR 1005.7 pertains solely to rail
transportation, it has not been incorporated into part 370.
Preservation of Records (Part 379)
These regulations are currently found in 49 CFR part 1220 and are
being added to chapter III as part 379 with the changes noted below.
The words ``railroad companies'', ``electric railway companies'',
``express companies'', ``persons furnishing cars to railroads'',
``ratemaking organizations'', and ``demurrage and car service bureaus''
which appear in 49 CFR 1220 have not been incorporated into part 379.
Appendix A does not contain requirements regarding the preservation of
records relating to tariffs and rates and rail transportation since
such matters fall within the jurisdiction of the STB.
Rulemaking Analyses and Notices
Because the amendments made by this document relate to departmental
management, organization, procedure, and practice, prior notice and
opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(A). In
addition, prior notice and opportunity for comment are unnecessary
pursuant to 5 U.S.C. 553(b)(3)(B) because the process of incorporating
existing regulations into chapter III is merely technical in nature and
proposes no substantive changes to which public comment could be
solicited. Issuing this document as a final rule is also in the public
interest because, once codified in chapter III, the sections now under
the FHWA's jurisdiction may be modified or removed readily to
correspond with the FHWA's new functions.
This final rule is made effective upon publication in the Federal
Register. The FHWA believes that good cause exists for this final rule
to be exempt from the 30-day delayed effective date requirement of 5
U.S.C. 553(d) for the above reason and because the process of adding
the motor carrier transportation regulations to chapter III makes no
substantive changes to the regulations. In fact, the sooner the
regulations are incorporated into chapter III, the more quickly the
FHWA can begin the process of updating those regulations and making
necessary changes to them.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. It is anticipated that the economic
impact of this rulemaking will be minimal; therefore, a full regulatory
evaluation is not required. This final rule simply provides notice to
the public that certain motor carrier transportation regulations
currently found in 49 CFR chapter X are being incorporated into 49 CFR
chapter III. No substantive changes are being made to the existing
regulations. The regulations are simply being added to chapter III of
title 49 of the Code of Federal Regulations so that the FHWA may
administer and execute those motor carrier functions transferred to it
from the ICC by the ICCTA.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on
small entities. Based on the evaluation, the FHWA hereby certifies that
this action will not have a significant economic impact on a
substantial number of small entities. As noted above, this final rule
simply provides notice to the public that certain motor carrier
transportation regulations currently found in 49 CFR chapter X are
being incorporated into 49 CFR chapter III. No substantive changes are
being made to the regulations which will affect small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq. In the course of its ongoing regulatory review
process, the FHWA will be reviewing these regulations in the near
future and, where appropriate, may propose substantive changes. At that
point in time, the FHWA intends to solicit public comment on the
information collection burdens associated with these regulations, and
to seek and obtain Office of Management and Budget approval.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects
49 CFR Part 356
Administrative practice and procedure, Freight forwarders, Highways
and roads, Motor carriers.
49 CFR Part 370
Claims for property transported, Freight forwarders, Motor
carriers.
49 CFR Part 379
Brokers, Freight forwarders, Motor carriers, Recordkeeping
requirements.
Issued on: June 4, 1997.
Jane Garvey,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA amends title 49, Code
of Federal Regulations, chapter III, by adding parts 356, 370 and 379
as set forth below:
1. Chapter III is amended by adding part 356 to read as follows:
PART 356--MOTOR CARRIER ROUTING REGULATIONS
Sec.
356.1 Authority to serve a particular area--construction.
356.3 Regular route motor passenger service.
356.5 Traversal authority.
356.7 Tacking.
356.9 Elimination of routing restrictions--regular route carriers.
356.11 Elimination of gateways--regular and irregular route
carriers.
356.13 Redesignated highways.
Authority: 49 U.S.C. 13301 and 13902; 5 U.S.C. 553; 49 CFR 1.48.
Sec. 356.1 Authority to serve a particular area--construction.
(a) Service at municipality. A motor carrier of property, motor
passenger
[[Page 32042]]
carrier of express, and freight forwarder authorized to serve a
municipality may serve all points within that municipality's commercial
zone not beyond the territorial limits, if any, fixed in such
authority.
(b) Service at unincorporated community. A motor carrier of
property, motor passenger carrier of express, and freight forwarder,
authorized to serve an unincorporated community having a post office of
the same name, may serve all points in the United States not beyond the
territorial limits, if any, fixed in such authority, as follows:
(1) All points within 3 miles of the post office in such
unincorporated community if it has a population of less than 2,500;
within 4 miles if it has a population of 2,500 but less than 25,000;
and within 6 miles if it has a population of 25,000 or more;
(2) At all points in any municipality any part of which is within
the limits described in paragraph (b)(1) of this section; and
(3) At all points in any municipality wholly surrounded, or so
surrounded except for a water boundary, by any municipality included
under the terms of paragraph (b)(2) of this section.
Sec. 356.3 Regular route motor passenger service.
(a) A motor common carrier authorized to transport passengers over
regular routes may serve:
(1) All points on its authorized route;
(2) All municipalities wholly within one airline mile of its
authorized route;
(3) All unincorporated areas within one airline mile of its
authorized route; and
(4) All military posts, airports, schools, and similar
establishments that may be entered within one airline mile of its
authorized route, but operations within any part of such establishment
more than one airline mile from such authorized route may not be over a
public road.
(b) This section does not apply to those motor passenger common
carriers authorized to operate within:
(1) New York, NY;
(2) Rockland, Westchester, Orange, or Nassau Counties, NY;
(3) Fairfield County, CT; and
(4) Passaic, Bergen, Essex, Hudson, Union, Morris, Somerset,
Middlesex, or Monmouth Counties, NJ.
Sec. 356.5 Traversal authority.
(a) Scope. An irregular route motor carrier may operate between
authorized service points over any reasonably direct or logical route
unless expressly prohibited.
(b) Requirements. Before commencing operations, the carrier must,
regarding each State traversed:
(1) Notify the State regulatory body in writing, attaching a copy
of its operating rights;
(2) Designate a process agent; and
(3) Comply with 49 CFR 387.315.
Sec. 356.7 Tacking.
Unless expressly prohibited, a motor common carrier of property
holding separate authorities which have common service points may join,
or tack, those authorities at the common point, or gateway, for the
purpose of performing through service as follows:
(a) Regular route authorities may be tacked with one another;
(b) Regular route authority may be tacked with irregular route
authority;
(c) Irregular route authorities may be tacked with one another if
the authorities were granted pursuant to application filed on or before
November 23, 1973, and the distance between the points at which service
is provided, when measured through the gateway point, is 300 miles or
less; and
(d) Irregular route authorities may be tacked with one another if
the authorities involved contain a specific provision granting the
right to tack.
Sec. 356.9 Elimination of routing restrictions--regular route
carriers.
(a) Regular route authorities--construction. All certificates that,
either singly or in combination, authorize the transportation by a
motor common carrier of property over:
(1) A single regular route or;
(2) Over two or more regular routes that can lawfully be tacked at
a common service point, shall be construed as authorizing
transportation between authorized service points over any available
route.
(b) Service at authorized points. A common carrier departing from
its authorized service routes under paragraph (a) of this section shall
continue to serve points authorized to be served on or in connection
with its authorized service routes.
(c) Intermediate point service. A common carrier conducting
operations under paragraph (a) of this section may serve points on, and
within one airline mile of, an alternative route it elects to use if
all the following conditions are met:
(1) The carrier is authorized to serve all intermediate points
(without regard to nominal restrictions) on the underlying service
route;
(2) The alternative route involves the use of a superhighway (i.e.,
a limited access highway with split-level crossings);
(3) The alternative superhighway route, including highways
connecting the superhighway portion of the route with the carrier's
authorized service route,
(i) Extends in the same general direction as the carrier's
authorized service route and
(ii) Is wholly within 25 airline miles of the carrier's authorized
service route; and
(4) Service is provided in the same manner as, and subject to any
restrictions that apply to, service over the authorized service route.
Sec. 356.11 Elimination of gateways--regular and irregular route
carriers.
A motor common carrier of property holding separate grants of
authority (including regular route authority), one or more of which
authorizes transportation over irregular routes, where the authorities
have a common service point at which they can lawfully be tacked to
perform through service, may perform such through service over any
available route.
Sec. 356.13 Redesignated highways.
Where a highway over which a regular route motor common carrier of
property is authorized to operate is assigned a new designation, such
as a new number, letter, or name, the carrier shall advise the FHWA by
letter, and shall provide information concerning the new and the old
designation, the points between which the highway is redesignated, and
each place where the highway is referred to in the carrier's authority.
The new designation of the highway will be shown in the carrier's
certificate when the FHWA has occasion to reissue it.
2. Chapter III is amended by adding part 370 to read as follows:
PART 370--PRINCIPLES AND PRACTICES FOR THE INVESTIGATION AND
VOLUNTARY DISPOSITION OF LOSS AND DAMAGE CLAIMS AND PROCESSING
SALVAGE
Sec.
370.1 Applicability of regulations.
370.3 Filing of claims.
370.5 Acknowledgment of claims.
370.7 Investigation of claims.
370.9 Disposition of claims.
370.11 Processing of salvage.
Authority: 49 U.S.C. 13301 and 14706; 49 CFR 1.48.
Sec. 370.1 Applicability of regulations.
The regulations set forth in this part shall govern the processing
of claims for loss, damage, injury, or delay to property transported or
accepted for transportation, in interstate or foreign commerce, by each
motor carrier, water
[[Page 32043]]
carrier, and freight forwarder (hereinafter called carrier), subject to
49 U.S.C. subtitle IV, part B.
Sec. 370.3 Filing of claims.
(a) Compliance with regulations. A claim for loss or damage to
baggage or for loss, damage, injury, or delay to cargo, shall not be
voluntarily paid by a carrier unless filed, as provided in paragraph
(b) of this section, with the receiving or delivering carrier, or
carrier issuing the bill of lading, receipt, ticket, or baggage check,
or carrier on whose line the alleged loss, damage, injury, or delay
occurred, within the specified time limits applicable thereto and as
otherwise may be required by law, the terms of the bill of lading or
other contract of carriage, and all tariff provisions applicable
thereto.
(b) Minimum filing requirements. A written or electronic
communication (when agreed to by the carrier and shipper or receiver
involved) from a claimant, filed with a proper carrier within the time
limits specified in the bill of lading or contract of carriage or
transportation and:
(1) Containing facts sufficient to identify the baggage or shipment
(or shipments) of property,
(2) Asserting liability for alleged loss, damage, injury, or delay,
and
(3) Making claim for the payment of a specified or determinable
amount of money, shall be considered as sufficient compliance with the
provisions for filing claims embraced in the bill of lading or other
contract of carriage; Provided, however, That where claims are
electronically handled, procedures are established to ensure reasonable
carrier access to supporting documents.
(c) Documents not constituting claims. Bad order reports, appraisal
reports of damage, notations of shortage or damage, or both, on freight
bills, delivery receipts, or other documents, or inspection reports
issued by carriers or their inspection agencies, whether the extent of
loss or damage is indicated in dollars and cents or otherwise, shall,
standing alone, not be considered by carriers as sufficient to comply
with the minimum claim filing requirements specified in paragraph (b)
of this section.
(d) Claims filed for uncertain amounts. Whenever a claim is
presented against a proper carrier for an uncertain amount, such as
``$100 more or less,'' the carrier against whom such claim is filed
shall determine the condition of the baggage or shipment involved at
the time of delivery by it, if it was delivered, and shall ascertain as
nearly as possible the extent, if any, of the loss or damage for which
it may be responsible. It shall not, however, voluntarily pay a claim
under such circumstances unless and until a formal claim in writing for
a specified or determinable amount of money shall have been filed in
accordance with the provisions of paragraph (b) of this section.
(e) Other claims. If investigation of a claim develops that one or
more other carriers has been presented with a similar claim on the same
shipment, the carrier investigating such claim shall communicate with
each such other carrier and, prior to any agreement entered into
between or among them as to the proper disposition of such claim or
claims, shall notify all claimants of the receipt of conflicting or
overlapping claims and shall require further substantiation, on the
part of each claimant of his/her title to the property involved or his/
her right with respect to such claim.
Sec. 370.5 Acknowledgment of claims.
(a) Each carrier shall, upon receipt in writing or by electronic
transmission of a proper claim in the manner and form described in the
regulations in the past, acknowledge the receipt of such claim in
writing or electronically to the claimant within 30 days after the date
of its receipt by the carrier unless the carrier shall have paid or
declined such claim in writing or electronically within 30 days of the
receipt thereof. The carrier shall indicate in its acknowledgment to
the claimant what, if any, additional documentary evidence or other
pertinent information may be required by it further to process the
claim as its preliminary examination of the claim, as filed, may have
revealed.
(b) The carrier shall at the time each claim is received create a
separate file and assign thereto a successive claim file number and
note that number on all documents filed in support of the claim and all
records and correspondence with respect to the claim, including the
acknowledgment of receipt. At the time such claim is received the
carrier shall cause the date of receipt to be recorded on the face of
the claim document, and the date of receipt shall also appear in the
carrier's acknowledgment of receipt to the claimant. The carrier shall
also cause the claim file number to be noted on the shipping order, if
in its possession, and the delivery receipt, if any, covering such
shipment, unless the carrier has established an orderly and consistent
internal procedure for assuring:
(1) That all information contained in shipping orders, delivery
receipts, tally sheets, and all other pertinent records made with
respect to the transportation of the shipment on which claim is made,
is available for examination upon receipt of a claim;
(2) That all such records and documents (or true and complete
reproductions thereof) are in fact examined in the course of the
investigation of the claim (and an appropriate record is made that such
examination has in fact taken place); and
(3) That such procedures prevent the duplicate or otherwise
unlawful payment of claims.
Sec. 370.7 Investigation of claims.
(a) Prompt investigation required. Each claim filed against a
carrier in the manner prescribed in this part shall be promptly and
thoroughly investigated if investigation has not already been made
prior to receipt of the claim.
(b) Supporting documents. When a necessary part of an
investigation, each claim shall be supported by the original bill of
lading, evidence of the freight charges, if any, and either the
original invoice, a photographic copy of the original invoice, or an
exact copy thereof or any extract made therefrom, certified by the
claimant to be true and correct with respect to the property and value
involved in the claim; or certification of prices or values, with trade
or other discounts, allowance, or deductions, of any nature whatsoever
and the terms thereof, or depreciation reflected thereon; Provided,
however, That where property involved in a claim has not been invoiced
to the consignee shown on the bill of lading or where an invoice does
not show price or value, or where the property involved has been sold,
or where the property has been transferred at bookkeeping values only,
the carrier shall, before voluntarily paying a claim, require the
claimant to establish the destination value in the quantity, shipped,
transported, or involved; Provided, further, That when supporting
documents are determined to be a necessary part of an investigation,
the supporting documents are retained by the carriers for possible FHWA
inspection.
(c) Verification of loss. When an asserted claim for loss of an
entire package or an entire shipment cannot be otherwise authenticated
upon investigation, the carrier shall obtain from the consignee of the
shipment involved a certified statement in writing that the property
for which the claim is filed has not been received from any other
source.
Sec. 370.9 Disposition of claims.
(a) Each carrier subject to 49 U.S.C. subtitle IV, part B which
receives a
[[Page 32044]]
written or electronically transmitted claim for loss or damage to
baggage or for loss, damage, injury, or delay to property transported
shall pay, decline, or make a firm compromise settlement offer in
writing or electronically to the claimant within 120 days after receipt
of the claim by the carrier; Provided, however, That, if the claim
cannot be processed and disposed of within 120 days after the receipt
thereof, the carrier shall at that time and at the expiration of each
succeeding 60-day period while the claim remains pending, advise the
claimant in writing or electronically of the status of the claim and
the reason for the delay in making final disposition thereof and it
shall retain a copy of such advice to the claimant in its claim file
thereon.
(b) When settling a claim for loss or damage, a common carrier by
motor vehicle of household goods as defined in Sec. 375.1(b)(1) of this
chapter shall use the replacement costs of the lost or damaged item as
a base to apply a depreciation factor to arrive at the current actual
value of the lost or damaged item: Provided, That where an item cannot
be replaced or no suitable replacement is obtainable, the proper
measure of damages shall be the original costs, augmented by a factor
derived from a consumer price index, and adjusted downward by a factor
depreciation over average useful life.
Sec. 370.11 Processing of salvage.
(a) Whenever baggage or material, goods, or other property
transported by a carrier subject to the provisions in this part is
damaged or alleged to be damaged and is, as a consequence thereof, not
delivered or is rejected or refused upon tender thereof to the owner,
consignee, or person entitled to receive such property, the carrier,
after giving due notice, whenever practicable to do so, to the owner
and other parties that may have an interest therein, and unless advised
to the contrary after giving such notice, shall undertake to sell or
dispose of such property directly or by the employment of a competent
salvage agent. The carrier shall only dispose of the property in a
manner that will fairly and equally protect the best interests of all
persons having an interest therein. The carrier shall make an itemized
record sufficient to identify the property involved so as to be able to
correlate it to the shipment or transportation involved, and claim, if
any, filed thereon. The carrier also shall assign to each lot of such
property a successive lot number and note that lot number on its record
of shipment and claim, if any claim is filed thereon.
(b) Whenever disposition of salvage material or goods shall be made
directly to an agent or employee of a carrier or through a salvage
agent or company in which the carrier or one or more of its directors,
officers, or managers has any interest, financial or otherwise, that
carrier's salvage records shall fully reflect the particulars of each
such transaction or relationship, or both, as the case may be.
(c) Upon receipt of a claim on a shipment on which salvage has been
processed in the manner prescribed in this section, the carrier shall
record in its claim file thereon the lot number assigned, the amount of
money recovered, if any, from the disposition of such property, and the
date of transmittal of such money to the person or persons lawfully
entitled to receive the same.
3. Chapter III is amended by adding part 379 to read as follows:
PART 379--PRESERVATION OF RECORDS
Sec.
379.1 Applicability.
379.3 Records required to be retained.
379.5 Protection and storage of records.
379.7 Preservation of records.
379.9 Companies going out of business.
379.11 Waiver of requirements of the regulations in this part.
379.13 Disposition and retention of records.
Appendix A to Part 379--Schedule of Records and Periods of Retention
Authority: 49 U.S.C. 13301, 14122 and 14123; 49 CFR 1.48.
Sec. 379.1 Applicability.
(a) The preservation of record rules contained in this part shall
apply to the following:
(1) Motor carriers and brokers;
(2) Water carriers; and
(3) Household goods freight forwarders.
(b) This part applies also to the preservation of accounts, records
and memoranda of traffic associations, weighing and inspection bureaus,
and other joint activities maintained by or on behalf of companies
listed in paragraph (a) of this section.
Sec. 379.3 Records required to be retained.
Companies subject to this part shall retain records for the minimum
retention periods provided in appendix A to this part. After the
required retention periods, the records may be destroyed at the
discretion of each company's management. It shall be the obligation of
the subject company to maintain records that adequately support
financial and operational data required by the Secretary. The company
may request a ruling from the Secretary on the retention of any record.
The provisions of this part shall not be construed as excusing
compliance with the lawful requirements of any other governmental body
prescribing longer retention periods for any category of records.
Sec. 379.5 Protection and storage of records.
(a) The company shall protect records subject to this part from
fires, floods, and other hazards, and safeguard the records from
unnecessary exposure to deterioration from excessive humidity, dryness,
or lack of ventilation.
(b) The company shall notify the Secretary if prescribed records
are substantially destroyed or damaged before the term of the
prescribed retention periods.
Sec. 379.7 Preservation of records.
(a) All records may be preserved by any technology that is immune
to alteration, modification, or erasure of the underlying data and will
enable production of an accurate and unaltered paper copy.
(b) Records not originally preserved on hard copy shall be
accompanied by a statement executed by a person having personal
knowledge of the facts indicating the type of data included within the
records. One comprehensive statement may be executed in lieu of
individual statements for multiple records if the type of data included
in the multiple records is common to all such records. The records
shall be indexed and retained in such a manner as will render them
readily accessible. The company shall have facilities available to
locate, identify and produce legible paper copies of the records.
(c) Any significant characteristic, feature or other attribute that
a particular medium will not preserve shall be clearly indicated at the
beginning of the applicable records as appropriate.
(d) The printed side of forms, such as instructions, need not be
preserved for each record as long as the printed matter is common to
all such forms and an identified specimen of the form is maintained on
the medium for reference.
Sec. 379.9 Companies going out of business.
The records referred to in the regulations in this part may be
destroyed after business is discontinued and the company is completely
liquidated. The records may not be destroyed until dissolution is final
and all pending transactions and claims are completed. When a company
is merged with another company under
[[Page 32045]]
jurisdiction of the Secretary, the successor company shall preserve
records of the merged company in accordance with the regulations in
this part.
Sec. 379.11 Waiver of requirements of the regulations in this part.
A waiver from any provision of the regulations in this part may be
made by the Secretary upon his/her own initiative or upon submission of
a written request by the company. Each request for waiver shall
demonstrate that unusual circumstances warrant a departure from
prescribed retention periods, procedures, or techniques, or that
compliance with such prescribed requirements would impose an
unreasonable burden on the company.
Sec. 379.13 Disposition and retention of records.
The schedule in appendix A to this part shows periods that
designated records shall be preserved. The descriptions specified under
the various general headings are for convenient reference and
identification, and are intended to apply to the items named regardless
of what the records are called in individual companies and regardless
of the record media. The retention periods represent the prescribed
number of years from the date of the document and not calendar years.
Records not listed in appendix A to this part shall be retained as
determined by the management of each company.
Appendix A to Part 379
Schedule of Records and Periods of Retention
------------------------------------------------------------------------
Item and category of records Retention period
------------------------------------------------------------------------
A. Corporate and General
1. Incorporation and
reorganization:
(a) Charter or Note A.
certificate of
incorporation and
amendments.
(b) Legal documents Note A.
related to mergers,
consolidations,
reorganization,
receiverships and
similar actions which
affect the identity or
organization of the
company.
2. Minutes of Directors, Note A.
Executive Committees,
Stockholders and other
corporate meetings.
3. Titles, franchises and
authorities:
(a) Certificates of Until expiration or cancellation.
public convenience and
necessity issued by
regulating bodies.
(b) Operating Until expiration or cancellation.
authorizations and
exemptions to operate.
(c) Copies of formal Note A.
orders of regulatory
bodies served upon the
company.
(d) Deeds, charters, and Until disposition of property.
other title papers.
(e) Patents and patent Note A.
records.
4. Annual reports or 3 years.
statements to stockholders.
5. Contracts and agreements:
(a) Service contracts, Until expiration or termination plus 3
such as for operational years.
management, accounting,
financial or legal
services, and agreements
with agents.
(b) Contracts and other Until expiration or termination plus 3
agreements relating to years.
the construction,
acquisition or sale of
real property and
equipment except as
otherwise provided in
(a) above.
(c) Contracts for the Until expiration.
purchase or sale of
material and supplies
except as provided in
(a) above.
(d) Shipping contracts Until expiration.
for transportation or
caretakers of freight.
(e) Contracts with Until expiration.
employees and employee
bargaining groups.
(f) Contracts, leases and Until expiration or termination plus 1
agreements, not year.
specifically provided
for in this section.
6. Accountant's auditor's,
and inspector's reports:
(a) Certifications and 3 years.
reports of examinations
and audits conducted by
public accountants.
(b) Reports of 3 years.
examinations and audits
conducted by internal
auditors, time
inspectors, and others.
7. Other..................... Note A.
B. Treasury
1. Capital stock records:
(a) Capital stock ledger. Note A.
(b) Capital stock Note A.
certificates, records of
or stubs of.
(c) Stock transfer Note A.
register.
2. Long-term debt records:
(a) Bond indentures, Until redemption plus 3 years.
underwritings,
mortgages, and other
long-term credit
agreements.
(b) Registered bonds and Until redemption plus 3 years.
debenture ledgers.
(c) Stubs or similar Note A.
records of bonds or
other long-term debt
issued.
3. Authorizations from Note A.
regulatory bodies for
issuance of securities
including applications,
reports, and supporting
papers.
4. Records of securities Until the securities are sold, redeemed
owned, in treasury, or held or otherwise disposed of.
by custodians, detailed
ledgers and journals, or
their equivalent.
5. Other..................... Note A.
C. Financial and Accounting
1. Ledgers:
(a) General and Until discontinuance of use plus 3 years.
subsidiary ledgers with
indexes.
(b) Balance sheets and 3 years.
trial balance sheets of
general and subsidiary
ledgers.
2. Journals:
(a) General journals..... Until discontinuance of use plus 3 years.
(b) Subsidiary journals 3 years.
and any supporting data,
except as otherwise
provided for, necessary
to explain journal
entries.
3. Cash books:
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(a) General cash books... Until discontinuance of use plus 3 years.
(b) Subsidiary cash books 3 years.
4. Vouchers:
(a) Voucher registers, 3 years.
indexes, or equivalent.
(b) Paid and canceled 3 years.
vouchers, expenditure
authorizations, detailed
distribution sheets and
other supporting data
including original bills
and invoices, if not
provided for elsewhere.
(c) Paid drafts, paid 3 years.
checks, and receipts for
cash paid out.
5. Accounts receivable:
(a) Record or register of 3 years after settlement.
accounts receivable,
indexes thereto, and
summaries of
distribution.
(b) Bills issued for 3 years after settlement.
collection and
supporting data.
(c) Authorization for 1 year.
writing off receivables.
(d) Reports and 1 year.
statements showing age
and status of
receivables.
6. Records of accounting 3 years after discontinuance.
codes and instructions.
7. Other..................... Note A.
D. Property and Equipment
Note.--All accounts, records, and memoranda necessary for making a
complete analysis of the cost or value of property shall be retained for
the periods shown. If any of the records elsewhere provided for in this
schedule are of this character, they shall be retained for the periods
shown below, regardless of any lesser retention period assigned.
1. Property records:
(a) Records which 3 years after disposition of property.
maintain complete
information on cost or
other value of all real
and personal property or
equipment.
(b) Records of additions 3 years after disposition of property.
and betterments made to
property and equipment.
(c) Records pertaining to 3 years after disposition of property.
retirements and
replacements of property
and equipment.
(d) Records pertaining to 3 years after disposition of property.
depreciation.
(e) Records of equipment 3 years after disposition of property.
number changes.
(f) Records of motor and 3 years after disposition of property.
engine changes.
(g) Records of equipment Only current or latest records.
lightweighed and
stenciled.
2. Engineering records of 3 years after disposition of property.
property changes actually
made.
3. Other..................... Note A.
E. Personnel and Payroll
1. Personnel and payroll 1 year.
records.
F. Insurance and Claims
1. Insurance records:
(a) Schedules of Until expiration plus 1 year.
insurance against fire,
storms, and other
hazards and records of
premium payments.
(b) Records of losses and 1 year after settlement.
recoveries from
insurance companies and
supporting papers.
(c) Insurance policies... Until expiration of coverage plus 1 year.
2. Claims records:
(a) Claim registers, card 1 year after settlement.
or book indexes, and
other records which
record personal injury,
fire and other claims
against the company,
together with all
supporting data.
(b) Claims registers, 1 year after settlement.
card or book indexes,
and other records which
record overcharges,
damages, and other
claims filed by the
company against others,
together with all
supporting data.
(c) Records giving the 3 years.
details of authorities
issued to agents,
carriers, and others for
participation in freight
claims.
(d) Reports, statements 3 years.
and other data
pertaining to personal
injuries or damage to
property when not
necessary to support
claims or vouchers.
(e) Reports, statements, 1 year.
tracers, and other data
pertaining to unclaimed,
over, short, damaged,
and refused freight,
when not necessary to
support claims or
vouchers.
(f) Authorities for 3 years.
disposal of unclaimed,
damaged, and refused
freight.
3. Other..................... Note A.
G. Taxes
1. Taxes..................... Note A.
H. Purchases and Stores
1. Purchases and stores...... Note A.
I. Shipping and Agency
Documents
1. Bills of lading and
releases:
(a) Consignors' shipping 1 year.
orders, consignors'
shipping tickets, and
copies of bills of
lading, freight bills
from other carriers and
other similar documents
furnished the carrier
for movement of freight.
(b) Shippers' order-to- 1 year.
notify bills of lading
taken up and canceled.
2. Freight waybills:
(a) Local waybills....... 1 year.
(b) Interline waybills 1 year.
received from and made
to other carriers.
[[Page 32047]]
(c) Company freight 1 year.
waybills.
(d) Express waybills..... 1 year.
3. Freight bills and
settlements:
(a) Paid copy of freight
bill retained to support
receipt of freight
charges:
(1) Bus express 1 year.
freight bills
provided no claim
has been filed.
(2) All other freight 1 year.
bills.
(b) Paid copy of freight
bill retained to support
payment of freight
charges to other
carriers:
(1) Bus express 1 year.
freight bills
provided no claim
has been filed.
(2) All other freight 1 year.
bills.
(c) Records of unsettled 1 year after disposition.
freight bills and
supporting papers.
(d) Records and reports 1 year.
of correction notices.
4. Other freight records:
(a) Records of freight 1 year.
received, forwarded, and
delivered.
(b) Notice to consignees 1 year.
of arrival of freight;
tender of delivery.
5. Agency records (to include
conductors, pursers,
stewards, and others):
(a) Cash books........... 1 year.
(b) Remittance records, 1 year.
bank deposit slips and
supporting papers.
(c) Balance sheets and 1 year.
supporting papers.
(d) Statements of 1 year.
corrections in agents'
accounts.
(e) Other records and 1 year.
reports pertaining to
ticket sales, baggage
handled, miscellaneous
collections, refunds,
adjustments, etc..
J. Transportation
1. Records pertaining to
transportation of household
goods:
(a) Estimate of charges.. 1 year.
(b) Order for service.... 1 year.
(c) Vehicle-load manifest 1 year.
(d) Descriptive inventory 1 year.
2. Records and reports
pertaining to operation of
marine and floating
equipment:
(a) Ship log............. 3 years.
(b) Ship articles........ 3 years.
(c) Passenger and room 3 years.
list.
(d) Floatmen's barge, 2 years.
lighter, and escrow
captain's reports,
demurrage records,
towing reports and
checks sheets.
3. Dispatchers' sheets, 3 years.
registers, and other records
pertaining to movement of
transportation equipment.
4. Import and export records 2 years.
including bonded freight and
steamship engagements.
5. Records, reports, orders 3 years.
and tickets pertaining to
weighting of freight.
6. Records of loading and 2 years.
unloading of transportation
equipment.
7. Records pertaining to the 2 years.
diversion or reconsignment
of freight, including
requests, tracers, and
correspondence.
8. Other..................... Note A.
K. Supporting Data for
Reports and Statistics
1. Supporting data for
reports filed with the
Federal Highway
Administration, the Surface
Transportation Board, the
Department of
Transportation's Bureau of
Transportation Statistics
and regulatory bodies:
(a) Supporting data for 3 years.
annual financial,
operating and
statistical reports.
(b) Supporting data for 3 years.
periodical reports of
operating revenues,
expenses, and income.
(c) Supporting data for 3 years.
reports detailing use of
proceeds from issuance
or sale of company
securities.
(d) Supporting data for 3 years after disposition of the
valuation inventory property.
reports and records.
This includes related
notes, maps and
sketches, underlying
engineering, land, and
accounting reports,
pricing schedules,
summary or collection
sheets, yearly reports
of changes and other
miscellaneous data, all
relating to the
valuation of the
company's property by
the Federal Highway
Administration, the
Surface Transportation
Board, the Department of
Transportation's Bureau
of Transportation
Statistics or other
regulatory body.
2. Supporting data for 3 years.
periodical reports of
accidents, inspections,
tests, hours of service,
repairs, etc..
3. Supporting data for 3 years.
periodical statistical of
operating results or
performance by tonnage,
mileage, passengers carried,
piggyback traffic,
commodities, costs, analyses
of increases and decreases,
or otherwise.
M. Miscellaneous
1. Index of records.......... Until revised as record structure
changes.
2. Statement listing records For the remainder of the period as
prematurely destroyed or prescribed for records destroyed.
lost.
------------------------------------------------------------------------
Note A.--Records referenced to this note shall be maintained as
determined by the designated records supervisory official. Companies
should be mindful of the record retention requirements of the Internal
Revenue Service, Securities and Exchange Commission, State and local
jurisdictions, and other regulatory agencies. Companies shall exercise
reasonable care in choosing retention periods, and the choice of
retention periods shall reflect past experiences, company needs,
pending litigation, and regulatory requirements.
[[Page 32048]]
[FR Doc. 97-15441 Filed 6-11-97; 8:45 am]
BILLING CODE 4910-22-P